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.
ACCA opinion (summary affirmation)
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