CAAF decided the Army case of United States v. Flesher, No. 13-0602/AR, 73 M.J. 303 (CAAFlog case page) (link to slip op.), on Tuesday, July 8, 2014. A fractured court finds that the record does not provide an adequate basis to demonstrate that the military judge acted within the bounds of his discretion when he permitted the expert testimony of a former sexual assault response coordinator (SARC), and that the Government failed to show that this error was harmless, reversing the decision of the Army CCA and the appellant’s conviction for aggravated sexual assault.

Judge Ohlson writes for the court, joined by Judges Erdmann and Stucky. Chief Judge Baker dissents, finding neither error nor prejudice. Judge Ryan also dissents, finding greater error than the majority, but she joins Chief Judge Baker in finding no prejudice.

The case presents a Daubert challenge to the Government’s presentation of a former SARC as an expert witness at trial and her testimony that in her experience sexual assault victims almost never fight back against their attacker, almost never scream or call for help, and generally first report the attack to a friend or family member and not to law enforcement. But the witness did not examine the victim and her testimony was based on her own anecdotal experience with suspected victims of sexual assault. CAAF granted review of 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.

The appellant entered mixed pleas at a general court-martial in 2011. He pleaded guilty to, and was convicted of, two specifications of furnishing alcohol to a minor as an assimilated offense under Article 134. He pleaded not guilty to one specification of aggravated sexual assault in violation of Article 120 (2006) and one specification of burglary with intent to commit rape. A panel of members with enlisted representation convicted the appellant of the sexual assault, acquitted him of the burglary, and sentenced him to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The facts of the case involve a sexual encounter between the appellant and a 16 year-old girl, in her bedroom at her parent’s house, after she consumed alcohol at the appellant’s home with the appellant and the girl’s 15 year-old brother. The sexual encounter occurred while the girl’s brother slept on a couch approximately 20 feet from the girl’s open bedroom door. Both the girl and the appellant testified at trial about the encounter: The appellant asserted a consensual encounter while the girl asserted the opposite. All agreed that the girl didn’t fight back against the appellant and that she didn’t scream or otherwise call out to her brother who she knew was sleeping nearby.

At trial the military judge allowed the Government to call the former SARC (whose name was Ms. Falk) as an expert witness over the objection of the Defense. But the military judge did a poor job of addressing the Defense objections relating to Ms. Falk, and CAAF’s resolution of the case turns on this failure. Judge Ohlson finds that an early email from the judge “did not address the question of the admissibility of Ms. Falk’s testimony; it merely assumed it.” Slip op. at 6. He notes that “the military judge did not approach his evidentiary rulings in a methodical manner.” Slip op. at 17. And he concludes that:

Here, the military judge delayed ruling on the defense’s request for a continuance and the defense’s motion to compel Dr. Grieger until the morning of trial, denied the motion to compel based on his experience in other cases rather than strictly on the facts of this particular case, did not affirmatively address the defense’s request for a Daubert hearing, did not address the Houser factors, did not explicitly deny on the record the defense’s motion to exclude the testimony of Ms. Falk, did not provide any findings of fact, and did not apply the law to the facts to support his decision to admit Ms. Falk’s expert testimony. Of these concerns, the most important is the fact that the military judge did not conduct even a rudimentary Daubert hearing — despite the fact that the defense specifically and repeatedly requested one — or even briefly address the various Houser factors. As a result, we are left with a limited understanding of the military judge’s decision-making process and, accordingly, we give his decisions in this case less deference than we otherwise would.

Slip op. at 20-21 (emphasis added). In the absence of the significant deference normally afforded a trial-stage ruling permitting a witness to testify as an expert, Judge Ohlson and the majority conduct a de novo review of the admissibility of Ms. Falk’s testimony, employing the six-factor test from United States v. Houser, 36 M.J. 392 (C.M.A. 1993), where the court affirmed the admission of the testimony of a Government expert on rape trauma who did not interview the victim.

But this review begins with a clear caveat “affirm[ing] the appropriateness of allowing expert testimony on rape trauma syndrome where it helps the trier of fact understand common behaviors of sexual assault victims that might otherwise seem counterintuitive or consistent with consent.” Slip op. 23. And Judge Ohlson repeatedly emphasizes that the court’s decision is based on the unique circumstances presented in this case.

The six Houser factors are:

(1) the qualifications of the expert, (2) the subject matter of the expert testimony, (3) the basis for the expert testimony, (4) the legal relevance of the evidence, (5) the reliability of the evidence, and (6) whether the probative value of the testimony outweighs other considerations.

Slip op. at 14 n.3 (citing Houser, 36 M.J. at 397). Curiously, Chief Judge Baker’s dissenting opinion conducts only a three-part analysis based on relevance, reliability, and whether the testimony assists the fact-finder (noting that “the third and final question the Houser test asks is whether the testimony will assist the members as factfinders.” Baker, C.J. diss. op. at 11 (emphasis added)). In doing so, the Chief Judge truncates the Houser analysis, writing:

The threshold for admissibility of expert testimony is whether the testimony is relevant, reliable, and will assist the trier of fact. Houser, 36 M.J. at 399-400.

Baker, C.J. diss. op. at 1. These three questions are certainly part of the Houser test – and these three questions do appear at pages 399-400 of the opinion – but Judge Crawford’s 1993 opinion in Houser clearly establishes a six-part test beginning two pages earlier, on page 397:

We now turn to the question of admissibility of Dr. Remer’s testimony. For expert testimony to be admissible, certain factors must be established under the Military Rules of Evidence in Manual for Courts-Martial, United States, 1984: (A) the qualifications of the expert, Mil.R.Evid. 702; (B) the subject matter of the expert testimony, Mil.R.Evid. 702; (C) the basis for the expert testimony, Mil.R.Evid. 703; (D) the legal relevance of the evidence, Mil.R.Evid. 401 and 402; (E) the reliability of the evidence, United States v. Gipson, 24 MJ 246 (CMA 1987) , and Mil.R.Evid. 401; and (F) whether the “probative value” of the testimony outweighs other considerations, Mil.R.Evid. 403. The burden is on the proponent to establish each of these factors.

Houser, 36 M.J. at 397. The Chief Judge’s dissent doesn’t explain why he would truncate the Houser analysis in this case, asserting instead at the end of the first paragraph of his dissent: “I would stick with the Houser test.” Baker, C.J. diss. op. at 1.

Returning to the majority’s six-factor application, Judge Ohlson’s analysis of the first factor (qualifications) is almost entirely a criticism of the military judge:

The military judge placed little focus on the foundational question of whether Ms. Falk truly was an “expert witness.” There are several possible explanations for this inattention. . . . However, we note that the admission of a putative expert’s testimony may be of utmost significance in any criminal trial. Thus, a trial judge must first assure himself or herself that a proffered expert is truly an expert.

We further note that the record reflects significant confusion between the military judge and the trial counsel about the exact nature of Ms. Falk’s proffered expertise. After the Government asked to have Ms. Falk recognized as an expert in “sexual assault victim responses” the following colloquy ensued:

MJ: Ms. Falk will be recognized as an expert in sexual assault — as a sexual assault response coordinator.

ATC: Thank you, Your Honor.

MJ: Not in sexual assault victim responses or however you put it.

This exchange raises several questions. We first question how an individual can be characterized as an expert based simply on his or her job title. We next question whether there was ever a “meeting of the minds” between the military judge and the trial counsel about what Ms. Falk was an expert on, and thus we ultimately question whether there was ever a careful determination on the military judge’s part about the qualifications of Ms. Falk to serve as an expert witness in this particular case and under these particular circumstances. Finally, we note that the qualitative differences between this witness’s practical victim advocacy experience and the qualifications of witnesses in other cases where we have approved of testimony on counterintuitive behavior make it more difficult for us to summarily accept, without more specific factual findings and legal analysis of the issue on the record, the implied conclusion of the military judge that this witness was qualified to testify as she did.

Slip op. at 25-27  (citations omitted). The final sentence of this analysis emphasizes that it is the procedure leading to Ms. Falk’s testimony, and not its content, that is the error in this case. Had the military judge conducted a more thorough review of the witness’s qualifications, the majority may well have found them adequate.

On the second factor (subject matter), Judge Ohlson explains how the Government lost this factor by making a significant concession:

[I]n the instant case, the trial counsel conceded that Ms. Falk was not qualified to address the issue of why sexual assault victims may or may not behave in a certain way, and the military judge specifically ruled that Ms. Falk could not testify on this point. And yet, Ms. Falk clearly did testify about why sexual assault victims may act in a certain manner, and the trial counsel did not rein her in and the military judge did not issue a curative instruction.

Slip op. at 28. It’s unclear why the trial counsel made such a broad concession under the circumstances of this case.

On the third factor (basis), Judge Ohlson explains that an expert’s opinion may be based upon personal knowledge, and “[t]here is no dispute that Ms. Falk’s testimony was based on her personal experience as a SARC.” Slip op. at 30.

On the fourth factor (relevance), Judge Ohlson’s analysis is short and contains a few surprises:

During an Article 39(a), UCMJ, session, trial counsel made the somewhat startling argument to the military judge that Ms. Falk’s testimony was relevant because absent Ms. Falk’s testimony, “[o]ur case in chief is defici[en]t.” However, the military judge did not probe into why the Government’s case-in-chief would be deficient and thus whether Ms. Falk’s testimony was truly relevant.

As noted supra, we previously have held that testimony on the counterintuitive behaviors of rape victims is relevant. However, in the instant case, the military judge steadfastly refused to treat Ms. Falk’s testimony as testimony on counterintuitive behaviors. Instead, at each turn when the military judge acquiesced to the Government’s request to have Ms. Falk testify, he chipped away at the scope and the nature of her testimony. By so doing, he also chipped away at the relevance of Ms. Falk’s testimony, and he did so without stating on the record his reasoning. This state of affairs complicates our review of the matter.

Slip op. at 30-31. I can’t see how the Government’s case would have been deficient without this testimony. Weaker perhaps, but the prosecution still had the girl’s testimony that the sexual encounter was non-consensual. As with the concession discussed above, it’s unclear why the trial counsel made such a dramatic pronouncement.

On the fifth factor (reliability), Judge Ohlson highlights the fact that the witness’s testimony was based on her own experience and that while experience alone may be enough to qualify as an expert, it is not necessarily so:

“[E]xperience in a field may offer another path to expert status.” United States v. Frazier, 387 F.3d 1244, 1260–61 (11th Cir. 2004). Even so, “the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is sufficient foundation rendering reliable any conceivable opinion the expert may express.” Id. at 1261 (emphasis added).

Slip op. at 32. Judge Ohlson does not find that Ms. Falk’s experience was inadequate to support expert status, but he does fault the military judge for his failure to state “why he concluded that Ms. Falk’s testimony was reliable.” Slip op. at 32.

On the sixth and final factor (probative value), Judge Ohlson appears to find the most serious error. He explains that “[t]here is virtually no evidence in the record that the military judge weighed the probative value of Ms. Falk’s pending testimony against its potential prejudicial effect.” Slip op. at 33. And he find the potential for prejudice to be greatest where Ms. Falk’s testimony bolstered the girl’s:

This was a classic “he said–she said” case, with the two primary witnesses giving diametrically opposed testimony on the critical issue of whether the sexual intercourse was consensual. “[I]n cases of often a ‘one-on-one’ situation, anything bolstering the credibility of one party inherently attacks the credibility of the other . . . .” United States v. August, 21 M.J. 363, 365 n.4 (C.M.A. 1986). Therefore, the danger of bolstering in this case was significant. More importantly, actual bolstering occurred in this case because after S.A. already had clearly and directly testified to the panel members why she did not struggle more with her assailant, Ms. Falk provided additional testimony on the same point of why victims do not struggle more with their attackers. This bolstering was of particular concern because even the Government conceded that Ms. Falk did not have a legitimate basis to testify on this point, and the military judge had explicitly placed such testimony by Ms. Falk off-limits.

Slip op. at 35. A footnote clarifies that this analysis is focused on pre-impeachment bolstering, and that the majority does not “need to address whether Ms. Falk’s testimony would have been appropriate if the defense had specifically attacked S.A.’s version of events as improbable victim behavior.” Slip op. at 34 n.12.

A summary draws these factors together in a way that firmly establishes this as an error by the military judge and not a problem with the testimony of Ms. Falk per se:

Thus, although limited testimony from a witness with qualifications similar to those of Ms. Falk may be appropriate in certain circumstance, we conclude that the military judge did not place sufficient evidence on the record to demonstrate that he acted within the bounds of his discretion when he authorized Ms. Falk to testify as an expert witness in the instant case. Therefore, we find that he erred. Finding error, we must test for prejudice.

Slip op. at 35-36.

Judge Ohlson’s prejudice analysis is brief, but it begins with an important emphasis:

Importantly, it is the Government that bears the burden of demonstrating that the admission of erroneous evidence is harmless. United States v. Berry, 61 M.J. 91, 97–98 (C.A.A.F. 2005).

Slip op. at 36. This is a burden (where the error was preserved by an objection at trial) that I often emphasize in my argument previews. And harmless in this context means that the error did not have “a substantial influence on the findings.” Slip op. at 37 (citations omitted). Judge Ohlson concludes that the error was not harmless because of the he-said/she-said nature of the case and the likelihood that “Ms. Falk’s testimony could have been of considerable significance in the minds of the panel members because it seemed to corroborate and ratify S.A.’s version of events.” Slip op. at 37.

As a result, the majority reverses the aggravated sexual assault conviction and the sentence, authorizing a rehearing on both. The two convictions for furnishing alcohol to a minor are affirmed.

The question of prejudice is where the majority and the dissenters split the most. Chief Judge Baker (with whom Judge Ryan agrees) finds that the testimony of Ms. Falk, tested by cross examination and balanced by the testimony of a Defense expert witness, provided the members with “the proper context in which to evaluate the victim’s credibility.” Baker, C.J. diss. op. at 13. Moreover, Chief Judge Baker explains that:

[T]he evidence against Appellant was strong. His failure even to acknowledge that he and the victim were intoxicated that night even though the victim had had at least three mixed drinks could have suggested to a reasonable trier of fact that he was being less than truthful. Appellant’s claim that he was concerned for the victim’s well-being while providing the sixteen-year-old with alcohol and cigarettes also apparently impacted his credibility. Finally, Appellant never explained why, if the victim and he had planned to have sexual intercourse, they did not do so in his home, alone, instead of in the victim’s home where three other people, including her stepfather and mother, were sleeping. These facts, rather than Ms. Falk’s brief testimony, were the reasons the members concluded that Appellant was guilty of sexual assault.

Baker, C.J. diss. op. at 13.

However, Chief Judge Baker’s prejudice analysis is almost an afterthought, as he concludes “that the military judge did not abuse his discretion in admitting the expert’s testimony. Baker, C.J. diss. op. at 2. But Judge Ryan’s conclusion on this point is markedly different. She finds that “contrary to the majority’s conclusion, the military judge abandoned his role as a gatekeeper in the first instance.” Ryan, J. diss. op. at 1. She explains:

The problem in this case is that the military judge made no attempt to apply the framework of Daubert, Kumho, United States v. Houser, 36 M.J. 392, 397 (C.M.A. 1993), M.R.E. 702, or any other authority addressing expert testimony. The military judge identified no guiding principles, provided no factual findings or legal analysis on the record, and cited no relevant law to support his decision to allow Ms. Falk to testify.

Ryan, J. diss. op. at 3. And she seems to exceed the majority with an ultimate conclusion that Ms. Falk should not have been allowed to testify as an expert based on the content of her testimony (and not just the judge’s procedural failures):

[I]t should have been plain, for the reasons identified by the majority, that Ms. Falk would not provide the kind of counterintuitive behavior testimony we have endorsed in other cases, but instead only inherently biased, hearsay-based testimony on an area of expertise defined only by the witness’s job title, i.e., “sexual assault response coordinator.” For, in essence, the sole basis for Ms. Falk’s testimony was that she had encountered thousands of putative victims — and believed them.

Ryan, J. diss. op. at 4-5 (citations omitted) (emphasis added).

I think it likely that the Government presented the testimony of Ms. Falk as a substitute for a more robust, better-qualified counterintuitive expert because one was not available to the prosecution at the time. It might even be that this was a test case for the use of experienced SARCs in this role during trials by court-martial. But whatever the reason, only Judge Ryan’s dissent comes close to saying that the content of Ms. Falk’s testimony was plainly inadmissible. With Judge Ohlson’s majority opinion as a template for future litigation (and trial-stage rulings by military judges), CAAF may soon return to the question of the appropriateness of expert testimony based on personal anecdotal experience with suspected victims of sexual assault.

Case Links:
• ACCA opinion (summary affirmation)
• Blog post: A new grant at CAAF
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

21 Responses to “Opinion Analysis: United States v. Flesher, No. 13-0602/AR”

  1. Dew_Process says:

    Does this mean that I’m not qualified to offer “expert” testimony based upon my personal “experience with suspected victims of sexual assault” who are lying?
     
    Somehow, methinks not.
     
    However, in the general context of Daubert issues and more particularly, who has the burden of proof, this is an important case which helps (assuming MJ’s actually read cases now and then) provide a roadmap when litigating Daubert issues.  But, more fundamentally imo is the predicate question, can such evidence / testimony ever satisfy the Daubert standard?  See, e.g., http://www.law.cornell.edu/wex/daubert_standard
    The proverbial “the Emperor has no clothes” concept seems to be the willingness to ignore the fact that such testimony is nothing more than “human lie detector” testimony, a/k/a “Bullsh*t!”

  2. Tom Grieger says:

    Reviewing my e-mails from the time I recalled another major issue in the case was one of notice in calling an expert.  Trial counsel argued that notice of expert testimony was required only when the convening authority was paying to fund an expert and so notice other than a name on a witness list was not required. Trial counsel also fought continuance because trial counsel had orders to PCS the next month.   Delay in notice provided no time for defense to prepare motions for their own expert.  
    Similar issues of what constitutes and “expert” have emerged in recent cases in which law enforcement agents have been presented as “experts”.  Another matter to consider is the scientific validity of anecdotal clinical experiences.  If an expert only testifies from clinical experience and not from scientifically gathered and reviewed data how valid is it and how can their testimony ever be challenged effectively by defense.  Clinical data obtained from one person’s practice are not systematically collected or verified, are not systematically analyzed, and are not validated against any standard.  Cross examination of such data is like challenging the validity of applying a narrative of deployment experiences from one Staff Sergeant to the deployment experiences of all other Staff Sergeants.  Having the words spoken by someone with an advanced degree does not make anecdotal experience “scientific”.  

  3. Joseph Wilkinson says:

    But the witness did not examine the victim and her testimony was based on her own anecdotal experience with suspected victims of sexual assault.
    It’s perfectly simple.  Based on similar evidence, of all the Soldiers who pop hot for marijuana, 89.2% just went to this party and had these brownies, and the Soldier just didn’t know what kind of brownies they were.  10.3% breathed in secondhand smoke (in a car, at a concert, whatever).  Only one half of one percent smoked weed to get high.   They told me so.  New career as an expert?

  4. DCGoneGalt says:

    The admission of this testimony from a SARC is shocking and kudos to Judge Ryan for taking the extra step in finding more than just procedural error by the trial judge.  If the government or defense wish to admit this “rape trauma applies/does not apply” testimony then they should have to actually use a qualified expert who is proferred to opposing counsel in advance of trial rather than just springing a SARC “rape trauma” witness who is actually acting as an in-court victim social advocate by offering expert testimony rather than as an expert and solely based of personal experience that is perhaps colored by the material that dominates SARC briefings that is not subject to expert peer review (or even what seems to be review by a sentient adult). 
     
    FWIW, the admission of this testimony through a SARC is not out of the ordinary as I have been amazed at what OSI agents qualified as experts in both during government direct and on defense cross, it seems there is no end to what a week-long TDY can make you an “expert” on.

  5. DCGoneGalt says:

    If anyone has not read this opinion I would seriously recommend it.  It is great to avoid allowing opposing counsel to cut corners with experts who are not qualified and/or allowing experts to veer out of their area of qualification.  I think it also drives home the need for defense counsel to object, object, and OBJECT while clearly covering the reasons for their objection on the record when the MJ is wrong and then request a mistrial when needed.
     
    Upon a closer read, Judge Ryan’s dissenting opinion is really quite interesting.  She found that the military judge abandoned the required “thou shalt not pass” role as to keeping the “expert” in expert witness but ultimately found that there was no prejudice to the error.  The SARC answered that, in her experience, victims almost never fought back with an unknown subject, call for help, or make an initial report to law enforcement.  It is easy to see in this case how that could cause prejudice but the answers as they were couched were something that the defense could have rebutted with testimony from their SANE.  While IMO the SANE was clearly not qualified to speak to these matters, and in effect set up a “battle of non-experts”, it is hard to see how the MJ would have ruled otherwise given that the SARC was qualified and the MJ found the SANE to be adequate expert assistance for the defense.  
     
    Like Mr. Spilman, I see the government’s justification for the proffer of this evidence through the SARC as an attempt to avoid having to call  a forensic psychologist (because of availability or monetary reasons) given that the government position was that the SARC would not testify as an expert on the “psychology of trauma” but rather on the “common behaviors and responses” of victims.  To me, this is a distinction without a difference.  In the end, though I think the majority was right to find prejudice because TC in admitted that “our case in chief is deficient without that testimony coming in”.  If you have admissible expert testimony that makes your case, you have to call an actual expert.  The risk is too high to allow “expert” testimony by someone:  1) with a “sociology based” bacherlor’s degree in law and society with a “graduate certificate” in public policy, 2) whose degree and background did not involve clinical counseling, 3) whose work involved “advocating” for victims, and 4) who testifies that the majority of those victims were telling the truth even though the SARC role was not to investigate but to “walk” victims through the process.  In, the words of the majority,  a “he said-she said” case the risk of advocacy masquarading as expert opinion and IMO it is hard to find no prejudice under these facts.

  6. Zachary D Spilman says:

    Or at least read this opinion analysis, right DCGoneGalt? Certainly it’s more accessible than the 57 pages in the slip opinion PDF.

    On the prejudice issue, I think there’s a subtle but significant split in the way the two sides of the court analyze the issue. Judge Ohlson’s majority opinion clearly places the burden on the Government to prove that the error was harmless; to show that the error did not have “a substantial influence on the findings.” Slip op. at 36. And the Government failed to meet this burden in this case.

    But Chief Judge Baker’s dissent does not state this test or place the burden. Rather, the Chief Judge merely proclaims:

    We do not grant relief where expert testimony is erroneously admitted unless the error was prejudicial. Article 59(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 859(a) (2012).

    Baker, C.J. diss. op. at 3. Prejudicial in this context presumably means not harmless, except that the Chief Judge’s dissent doesn’t actually use the word harmless. His opinion instead insists that the members “were provided the proper context in which to evaluate the victim’s credibility” and that “the evidence against Appellant was strong,” and he finds (how I’m not sure) that certain facts other than Ms. Falk’s testimony “were the reasons the members concluded that Appellant was guilty of sexual assault.” Baker, C.J. diss. op. at 13.

  7. DCGoneGalt says:

    Mr Spilman:  The case summaries on CAAFlog have led me to read service court appellate decisions that I would normally never read otherwise.  This post had me immediately looking to the nuanced differences between the majority and the dissents.  I suppose the path the judges took for their analysis seemingly predetermined the outcome.  Digesting the entire decision is time well spent.

  8. Zachary D Spilman says:

    The case summaries on CAAFlog have led me to read service court appellate decisions that I would normally never read otherwise.

    I am seriously thrilled to read this. Increasing our coverage of the CCA’s was a big goal of mine for the past year. They’re really the emerging markets of military law. It’s sometimes hard to keep up (I have about six cases pending writeups), but I think the goal was met and your comment demonstrates that it was worth the effort.

    Digesting the entire decision is time well spent.

    I certainly won’t argue with you there.

  9. President Camacho says:

    The weakest link in MJ right now is CID. The 2nd is SARCs. Both are so polluting the system as to make a conviction that stands up on appeal difficult. To proffer a SARC as an expert is ludicrous  they are ill trained and incompetent at best

  10. Zeke says:

    For, in essence, the sole basis for Ms. Falk’s testimony was that she had encountered thousands of putative victims — and believed them.

    Amen, Judge Ryan.  This evidence should have never been admitted.  Anecdotally based opinions derived from interactions with individuals other than the people involved in the instant case have no place in a court of law.  Such opinions are irrelevant because human beings are not interchangeable.  The fact that the judge in this case allowed those acecdotal based opinions in at all is ridiculous.  That they were permitted to play dress up and don the finery of supposed expertise rather than being displayed in their true garb as mere gossipy speculation is prejudicial – if not to the due process rights of the appellant, then at least to the respectability of courts-martial proceedings generally.  Forums that decide the fate of human beings should not be permitted to devolve into these sorts of talk-show caliber circus sideshows.

  11. FormerJAGDC says:

    At DCGoneGalt.  The Defense Counsel in US v. Flesher did an excellent job of filing the Motion to Compel an Expert, arguing the motion, and laying everything out on the record, to ensure the record was protected for the appellate process that occured.  The two Defense Counsel that tried that case at Ft. Sill were the former SDC, who I think is now a Special Victim Prosecutor, MAJ Lawrence Steele, and CPT Matthew Jones (DAD Counsel), who worked closely with their DCAP (Mr. O’Brien) to build the record in this case on this issue.  They did what so many of our outstanding JAG’s (COL Ham, COL Cremin, Mr. Hodges, Mr. O’Brien) have taught us, and that was to object, and not give up on an issue, and to make sure they build a strong record to protect the issue.  CPT Rob Michaels did a great job arguing this through CAAF.  This case is an excellent teaching point for counsel on both sides of the aisle, and that is to stick to your guns and make sure you protect the record.  If our MJ’s were correct on every issue, then we would not require our appellate courts.

  12. DCGoneGalt says:

    Zeke:  To be fair, the opinion left out this part of the transcript:
     
    MJ: Are you an expert?
    SARC: No, but the government had me staying in a Holiday Inn Express last night.
    MJ:  Good ’nuff, that’ll do.
     
     
     

  13. DCGoneGalt says:

    FormerJAGDC: My comment was not intended as a knock at DC, it was to illustrate that absent continued objection and entry of facts into the record  there may have been no fining of prejudice because the Court found these facts unique.  This case drove home how important objecting and forcing the rationale for incorrect decisions to be put in the record to prevent creative appellate rescue by the government.

  14. RKincaid3 (RK3PO) says:

    To me, Zack captured the most damning and intellectually (and judicially) dishonest analysis in the following extract:

    Curiously, Chief Judge Baker’s dissenting opinion conducts only a three-part analysis based on relevance, reliability, and whether the testimony assists the fact-finder (noting that “the third and final question the Houser test asks is whether the testimony will assist the members as factfinders.” Baker, C.J. diss. op. at 11 (emphasis added)). In doing so, the Chief Judge truncates the Houser analysis, writing:
     
    The threshold for admissibility of expert testimony is whether the testimony is relevant, reliable, and will assist the
    trier of fact. Houser, 36 M.J. at 399-400.
     
    Baker, C.J. diss. op. at 1. These three questions are certainly part of the Houser test – and these three questions do appear at pages 399-400 of the opinion – but Judge Crawford’s 1993 opinion in Houser clearly establishes a six-part test beginning two pages earlier, on page 397:
     
    We now turn to the question of admissibility of Dr. Remer’s testimony. For expert testimony to be admissible, certain
    factors must be established under the Military Rules of Evidence in Manual for Courts-Martial, United States, 1984:
    (A) the qualifications of the expert, Mil.R.Evid. 702; (B) the subject matter of the expert testimony, Mil.R.Evid. 702;
    (C) the basis for the expert testimony, Mil.R.Evid. 703; (D) the legal relevance of the evidence, Mil.R.Evid. 401 and
    402; (E) the reliability of the evidence, United States v. Gipson, 24 MJ 246 (CMA 1987) , and Mil.R.Evid. 401; and (F)
    whether the “probative value” of the testimony outweighs other considerations, Mil.R.Evid. 403. The burden is on the
    proponent to establish each of these factors.
     
    Houser, 36 M.J. at 397. The Chief Judge’s dissent doesn’t explain why he would truncate the Houser analysis in this case, asserting instead at the end of the first paragraph of his dissent: “I would stick with the Houser test.” Baker, C.J. diss. op. at 1.

    One would expect any judge–much less an experienced judge–to respect stare decisis (or at least have and articulate a darn good reason for departing from it). Simply picking and choosing parts of precedent to support a particular conclusion without regard to the justness of the procedure so randomly selected discourages confidence in both the system and the conclusion.
     
    This kind of buffet-line-picking-and-choosing from precedent to obtain a particular result–especially in a sex assault case in this toxic, political climate–has me concerned about the far reaching effect of the Congressional/poltical UCI/pressure/influence infection. Has it invaded the ranks of the civilian judiciary in addition to the ranks of the senior military personnel who need politicians to support their individual career advancement?
     
    If so, the system is much more broken than feared. And it is all the more reason for the Systems Response Panel’s dissent’s point of view to be re-examined and substantive, systemic changes to be made. And only Congress can do that. And Congress won’t budge until someone in uniform stands up for the process (and for servicemembers) instead of blindly defering to political agendas and military tradition.

  15. NavyDC says:

    I’m reminded of the old saw: “The plural of anecdote is not data.”  Unfortunately, too much of this crap is sneaking in under Kumho.

  16. stewie says:

    Well, we all love stare decisis…until we don’t because we think the prior court got it “wrong.” Then we love that the court didn’t stick with stare decisis and got it “right.”
     
    I don’t see evidence that Judge Baker is “picking and choosing” to reach a desired result. I don’t agree with his reasoning/argument, but he has always struck me as someone who is calling them like he sees him…sometimes i disagree, sometimes I don’t. The only judge i think remotely fits the pattern you describe is Stucky, who I think is the most pro-government judge by far (although not completely).

  17. Dew_Process says:

    @ Stewie – Judge Stucky, is Colonel Stucky, USAFR JAGC (ret), who was a Reserve Judge on the AF CCA before “retiring” so as to become Judge Stucky of CAAF.  If you read some of his opinions while on the CCA, you’ll see that your gut reaction is on target.

  18. k fischer says:

    In trial practice, I’ve always wondered how “effective” these counter-intuitive victim behavior experts are.  It seems that a few questions of the “expert” Ms. Falk would indicate that upon the thousands of cases she has seen, she would not be able to give an actual number of cases where the alleged victim screamed or made a fresh complaint. And, I wonder if what the panel would think of her experience testimony regarding what alleged victims tell her.  She says a vague majority of complaining witnesses scream out.  Only a third of rape victims who she has dealt with have a case that went to trial, and of those one third cases, only 25% of the 33% of cases resulted in a conviction.  So, out of the thousands of rape complaints, the majority of which stated that they did not scream while being raped, only 8% resulted in a conviction.  Throw on top of that Ms. Falk’s extra testimony that victims don’t scream out because they are afraid that the assault will be much worse, which is particularly odd considering SA had three family members in the house and a brother who was sleeping in the next room. I guess I could understand if a vic doesn’t scream out because the assailant threatens her family if she makes any noise.  But, this vic chose to be raped in silence rather than scream out for help?
     
    The problem I have is that she made a relatively fresh complaint to the friend.  And, the appellant’s testimony that she was worried he would tell on her for using drugs is bs.  Really?  Because she didn’t have the sense to use the fact that the appellant plied her with alcohol to keep him from narking on her?  Pretty dumb girl……which might explain why she was confused and didn’t scream.  And, the sentence was a little harsh, as well, so I don’t think the panel was buying what the defense was selling.  And, it kind of sounds like the defense expert Ms. Thomas testified relatively the same as Ms. Falk, so I don’t see how prejudicial Ms. Falk’s testimony was to the panel members when the Defense’s own witness testified to essentially the same thing.
     
    While there appears to be a mountain of jurisprudence discussing the relevance and admissibilty of counterintuitive victim behavior evidence, I still don’t like it.  Although most of these hack jobs will readily admit that false allegations usually solve a problem for a victim, so you can turn them into a defense witness if you can demonstrate how accusing the accused of rape solved the vics problem.  
     
     
     
     
     
     
     

  19. stewie says:

    Depends on the audience.  For me, no matter what side I was on, I found them meaningless because effectively everything “consistent” with rape trauma can also be “consistent” with lying, or not being raped, or being a living, breathing human.
     
    But if you are someone who truly thinks “you are only a victim if you act a certain way” and I think there are folks who are out there like that, then this can be helpful in dispelling that conceit. I think the problem is that this is not how they are generally used anymore.  Instead of simply trying to dispel that conceit (which is both fair, and as i said sometimes very necessary), they try to use them to buttress the alleged victim’s story.

  20. Tom Grieger says:

    In today’s climate the “counterintuitive witnesses” can be devastating.  I recently saw a defense case go down in flames when a very sincere appearing PhD came in as a “blind” expert and in a series of hypotheticals successfully bolstered the testimony of a complaining witness:
    “do victims sometimes delay reporting”  Yes
    “do victims sometimes leave out the fact that they engaged in oral sex with the accused” Yes
    “do victims commonly change their stories”  Yes
    “do victims commonly lie under oath” Yes
    I think that a very aggressive cross may help:  “which peer reviewed published study supports this pattern, that pattern, every pattern you talk about…?”  When the panel has been poisoned by the current “education” on sexual assault it is a steep uphill battle.  I suspect that busting quorum until you find a few honest and impartial panel members may be the only answer.  

  21. stewie says:

    Replace victims with liars and you’d get the same answers on cross. I don’t disagree that done correctly, a counter-intuitive expert can help the government’s case. To some degree, I think that’s ok. I do think there is bias out there that if the alleged victim doesn’t act perfectly chaste and exactly like you expect a “victim” to act then they must not be a victim. It’s ok for the government to address that bias.
     
    But I think in most situations, a good DC can mitigate the impact by reminding the panel of the limits of a CI expert, because at the end of the day, liars do all the same things too, and so you are back to simply deciding whether someone is lying or telling the truth (of course, we have scientific studies that tell us humans do that slightly better than flipping a coin).