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.