Note: For the next few days I’m going to try to catch up on some significant CCA opinions that I’ve collected over the past few months.

In an unpublished opinion in United States v. Gardner, No. 20120193 (A. Ct. Crim. App. Aug. 28, 2014) (link to slip op.), pet. for rev. filed, 73 M.J. 480, No. 15-0043/AR (C.A.A.F. Sep. 18, 2014), the Army CCA reviewed the appellant’s convictions of three specifications of aggravated sexual assault upon a substantially incapacitated person, in violation of Article 120 (2006), based upon the following facts:

Appellant took advantage of his drunk, sleepy, and sick sister-in-law, JF, by twice penetrating her vagina on separate and distinct occasions during the course of one night, and, as part of the initial assault, inserting his fingers into her vagina. He did this, he admitted, to take revenge upon his wife, JF’s sister, who he suspected of cheating on him. This admission was accompanied by other damning and self-incriminating statements made by appellant, to include: that JF never consented to any sexual activity with him; that she was passed out; that she was out of it; that he raped her; and that after he had done so he whispered in her ear “I just raped you.”

JF’s testimony corroborated appellant’s admissions to CID. She was drunk, sick from the alcohol consumed, tired, and in and out of sleep throughout the night and during appellant’s assaults upon her. She remembered appellant waking her up, penetrating her with his fingers and his penis, but testified that she was unable to move or respond or utter any words at all. She was at a loss as to why she was so paralyzed.

Slip op. at 2. In the face of these damning facts, the appellant offered the following opinion of a forensic toxicologist expert witness:

that in his opinion a person who could remember what happened to him and perceive an assault committed upon him could not have been completely incapacitated by alcohol; that one paralyzed by alcohol would neither be conscious nor have memories of any events that occurred during the paralysis.

Slip op. at 3. But the military judge prohibited the testimony at trial, concluding that it “contradicts the statutory definition of substantial incapacitation,” that it “would be equivalent to ‘human lie detector’ testimony,” and that it was “insufficiently reliable to admit under Daubert.” Slip op. at 3. The CCA finds that this ruling was error, but that it was harmless.

Judge Krauss writes for the three-judge panel, and he considers each of the military judge’s three reasons for prohibiting the testimony in turn. First, he finds that the testimony would not contradict the statutory definition of incapacitation because the expert carefully avoided any contradiction:

Neither defense counsel nor the expert ever intended or offered a definition for substantial incapacitation. Rather they simply wanted to introduce the concept that one who is completely paralyzed by alcohol is most likely in a passed out state. This would be total, not substantial, incapacitation. The defense expert made quite plain his lack of qualification to opine on whether anyone was mentally impaired in the fashion contemplated by Article 120 and declined to employ the word “incapacitation” in favor of technical terms that fell within the realm of his expertise and knowledge. His testimony reveals a conscientious and honest dedication to avoid any interference with the law as the judge would instruct.

Slip op. at 3. Judge Krauss also notes that “an accused might be convicted of aggravated sexual assault for committing a sexual act upon an unconscious, totally incapacitated person, as well as a substantially incapacitated person…” Slip op. at 4.

Next, considering the judge’s ruling that the expert’s testimony would be equivalent to human lie detector testimony (an issue recently considered by CAAF in United States v. Knapp, 73 M.J. 33 (C.A.A.F. Jan. 15, 2014) (CAAFlog case page)), Judge Krauss explains:

The defense theory of the case was that absent alcohol as the cause of JF’s paralysis there existed reasonable doubt about her credibility and whether she was substantially incapacitated to physically communicate an unwillingness to engage in the sexual activity. Expert testimony that a person who is not in an alcohol induced passed out state would not be paralyzed is relevant as it tends to at least raise doubts about JF’s testimony that she was paralyzed. Because this evidence does not amount to “an opinion as to whether the person was truthful in making a specific statement regarding a fact at issue in the case,” and was relevant, the evidence should not have been excluded as improper human lie detector testimony.

Slip op. at 4.

Third, on the issue of reliability, Judge Krauss explains that “there was nothing about the proffered testimony that warranted exclusion as unreliable scientific or technical evidence.” Slip op. at 5.

But the CCA finds no prejudice:

Despite the relevance and reliability of the proffered testimony, however, it was, and is, a bit of a red herring. It is important to repeat that one need not be totally incapacitated to be the victim of an aggravated sexual assault under Article 120, UCMJ. In addition, one need not be substantially incapacitated by alcohol or any singular thing or condition to be a victim of an aggravated sexual assault. One might be substantially incapacitated by any number of things or combination of things including alcohol, sleep, fear, panic, and any number of mental or physical infirmities by whatever cause. The crime itself merely requires proof that the victim was substantially incapacitated or substantially incapable of appraising the nature of the sexual act, declining participation in the act, or communicating unwillingness to engage in the act. See MCM, pt. IV, ¶ 45.a(c) (emphasis added). It is fully within the competence of court-martial members to resolve whether an alleged victim was substantially incapacitated as a matter of fact with the instructions provided by the judge in this case which included: “‘substantially incapacitated’ means that level of mental impairment due to consumption of alcohol, drugs, or similar substance; while asleep or unconscious; or for other reasons . . . .” (Emphasis added). See generally MCM, pt. IV, ¶ 45.a(c)(2).

Slip op. at 5 (first emphasis added). This analysis implies an enormously broad interpretation of of the term “substantially incapacitated” – a term that was not defined in the 2006 version of Article 120. While the examples given by Judge Krauss such as “fear” and “panic” are not inconsistent with the statutory definition of consent (see Article 120(t)(14) (2006)), he also suggests that substantial incapacitation can arise from the practically limitless “mental or physical infirmities by whatever cause.” Slip op. at 5. Such a vague definition of “substantial incapacitation” seems very problematic to me.

However, the CCA’s finding of harmless in the exclusion of the expert’s testimony seems to be well-founded:

Appellant was able to present and argue essentially the same points on doubts about the level of JF’s incapacity despite limits on the expert’s testimony. More importantly, as described above, there was never any issue in the case as to whether JF was completely incapacitated by alcohol and the evidence that she was substantially incapacitated by a number of factors was abundantly available for the panel members to reasonably conclude that she was in that condition when the appellant assaulted her. When one considers the damning statements made by appellant himself, the evidence of his guilt is overwhelming.

Slip op. at 6 (emphasis added).

One Response to “The Army CCA considers expert testimony and the meaning of “substantially incapacitated””

  1. Paco says:

    FYI- Knapp was eventually acquitted at a retrial where the “human lie detector” testimony was excluded.