Yesterday CAAF granted review in an Army case:
No. 13-0602/AR. U.S. v. Thomas C. FLESHER. CCA 20110449. Review granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED THE TESTIMONY OF A PUTATIVE EXPERT WITNESS IN VIOLATION OF THE MILITARY RULES OF EVIDENCE AND CASE LAW ON BOLSTERING, EXPERT QUALIFICATIONS, RELEVANCE, AND THE APPROPRIATE CONTENT AND SCOPE OF EXPERT TESTIMONY.
Flesher was argued at the CCA back in May (link to TWIMJ mention). But I can’t find an opinion from the ACCA. The issues at oral argument were:
I. Whether the military judge abused his discretion when he allowed the government’s expert on counter-intuitive behavior and denied the expert appellant requested to refute the government’s expert and assist defense counsel in developing trial strategies.
II. Whether the military judge abused his discretion by admitting the testimony of an expert witness in violation of the military rules of evidence and case-law on bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony.
If this case is about “counter-intuitive behavior” “experts” (a “subject” about which I have absolutely nothing nice to say), then this term just got a whole lot more interesting.