CAAFlog » September 2013 Term » United States v. Flesher

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.

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Links to audio of today’s arguments:

CAAF will hear oral argument in the Army case of United States v. Flesher, No. 13-0602/AR (CAAFlog case page), on Monday, February 24, 2014. The case presents a Daubert challenge to the Government’s presentation of a so-called counter-intuitive victim behavior expert, with the following granted 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.

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 (2006) and one specification of burglary with intent to commit rape. A panel of members with enlisted representation convicted 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 Appellant and a teenage girl (either 16 or 17 years old; the briefs are somewhat unclear), in her bedroom at her parent’s house, after she had consumed alcohol at Appellant’s home with Appellant and her 15 year old brother, and while that brother slept on a couch approximately 20 feet from the girl’s open bedroom door. Appellant climbed into the girl’s bedroom window after she returned home from his house. Both the girl and Appellant testified at trial about what happened next. Appellant asserted a consensual encounter while the girl asserted the opposite.

All agreed that the girl didn’t fight back against Appellant, and she didn’t scream or otherwise call out to her brother who she knew was sleeping nearby.

Trial began on schedule on June 1, 2011. But just 13 days earlier, on May 19, “the government submitted its witness list, which included Ms. Falk, who was identified only by her place of employment, the “Evans Army Community Hospital” on Fort Carson, Colorado. The government witness list did not disclose that the government intended to call her as an expert witness.” App. Br. at 3. But expert witness she was. Government counsel eventually advised the military judge that:

The witness at issue is a former SARC [sexual assault response coordinator] with sexual assault-victim advocacy experience. She is not a psychologist and has not reviewed, nor will she review, any material from this case. She will be testifying to the common behaviors and responses she has experienced with sexual assault victims. She will not testify to the psychology of trauma.

Gov’t Br. at 3. Government counsel also told the judge that “the topics [of the expert’s intended testimony] included ‘scream, nonstranger, and not reporting to law enforcement. ” Gov’t Br. at 7. In response, the Defense requested a specific expert of its own, and a Daubert hearing to challenge the admissibility of the Government expert’s testimony, both of which were denied with little analysis and no formal ruling (though the Defense was granted a substitute expert who was a sexual assault nurse examiner (SANE)). A Defense objection on relevance grounds and a Defense request for a continuance were also denied.

At trial, the substance of the Government expert’s testimony was relatively short. After explaining her credentials (she held a bachelor’s degree in law and society, she was pursuing a graduate certificate in public policy, she had extensive training in “victim services,” and “she had personally worked with ‘thousands’ of victims.” App. Br. at 13.), Ms Falk was recognized by the military judge, over Defense objection, “as an expert in sexual assault–as a sexual assault response coordinator.” App. Br. at 13. Ms Falk then testified on direct examination by Government counsel primarily as follows:

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