UNITED STATES, Appellee
v.
Thomas C. FLESHER, Specialist
U.S. Army, Appellant
No. 13-0602
Crim. App. No. 20110449
United States Court of Appeals for the Armed Forces
Argued February 24, 2014
Decided July 8, 2014
OHLSON, J., delivered the opinion of the Court, in which ERDMANN
and STUCKY, JJ., joined. BAKER, C.J., and RYAN, J., each filed
separate dissenting opinions.
Counsel
For Appellant: Captain Robert N. Michaels (argued); Lieutenant
Colonel Jonathan F. Potter and Major Amy E. Nieman (on brief);
Captain J. Fred Ingram.
For Appellee: Captain Daniel H. Karna (argued); Colonel John P.
Carrell, Lieutenant Colonel James L. Varley, and Major Robert A.
Rodrigues (on brief).
Military Judge: Gregory A. Gross
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Flesher, No. 13-0602/AR
Judge OHLSON delivered the opinion of the Court.
We granted review in this case to determine whether the
military judge abused his discretion when he allowed a putative
expert witness to testify at trial. Under the unusual set of
circumstances present in this case, we conclude that the
military judge did abuse his discretion by admitting this
testimony, and that this error likely had a substantial
influence on the panel members’ findings.
In the summer of 2010, Appellant was a specialist in the
U.S. Army and lived in on-base housing at Dugway Proving Ground
in Utah. A family with two teenage children -- a sixteen-year-
old girl (S.A.) and her younger brother -- lived across the
street. The Government alleged at trial that on June 29, 2010,
Appellant invited these two teenagers to his home and plied them
with alcohol. They became intoxicated and eventually returned
to their own home and went to bed. After midnight, Appellant
went to the teenagers’ house and crawled in the bedroom window
of the sleeping S.A. without her knowledge or permission. She
awoke to find Appellant removing her pants. Appellant then
pressed his body against S.A., covered her mouth with his own,
and held down her wrists as he proceeded to engage in
nonconsensual sexual intercourse with her. S.A. later stated
that although she struggled with Appellant she did not fight
back more fiercely or call out for help because she was drunk,
2
United States v. Flesher, No. 13-0602/AR
confused, scared, and embarrassed. Appellant ultimately left
the home without anyone other than S.A. knowing of his presence.
S.A. telephoned a friend about thirty minutes after the
incident, however, and the next morning this friend and the
friend’s mother notified local law enforcement.
In contrast to the Government’s version of events,
Appellant testified that S.A. had invited him to come to her
bedroom on the night in question and that the sex was
consensual. In seeking to corroborate the consensual nature of
the encounter, defense counsel established through the combined
testimony of several witnesses that S.A.’s brother was sleeping
in an adjoining room -- with the door between these two rooms
ajar -- and yet S.A. did not alert her brother to Appellant’s
presence. During closing arguments, defense counsel also
pointed out that even after Appellant had left the premises,
S.A. did not immediately notify her parents or the police about
the alleged sexual assault. Appellant also testified that S.A.
had a motive for falsely accusing him of sexual assault, noting
that he had told her of his disapproval of her drug use, and she
may have been afraid that he would report this illegal activity
to her parents.
At his court-martial, Appellant was charged with aggravated
sexual assault, burglary, and two specifications of furnishing
alcohol to a minor, in violation of Articles 120, 129, and 134,
3
United States v. Flesher, No. 13-0602/AR
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 929,
934 (2006). Appellant pleaded guilty to the latter two
specifications involving the alcohol, but not guilty to the
other two charges. A general court-martial with enlisted
members eventually found Appellant not guilty of the burglary
charge but guilty of the sexual assault charge. The panel
sentenced Appellant to confinement for seven years, forfeiture
of all pay and allowances, reduction to the grade of E-1, and a
dishonorable discharge. The convening authority approved the
sentence as adjudged. Upon review, the United States Army Court
of Criminal Appeals (CCA) affirmed the findings of guilty and
the sentence. United States v. Flesher, No. ARMY 20110449, slip
op. at 1 (A. Ct. Crim. App. May 30, 2013).
In the course of the trial, the military judge permitted
the Government to call a Sexual Assault Response Coordinator
(SARC) as an expert witness. The Government represented to the
military judge that the purpose for calling the SARC was to
elicit testimony that, based on her work with thousands of
sexual assault victims, it is common for sexual assault victims
not to fight back against their attacker, not to scream or call
for help, and not to first report the sexual assault to the
police rather than to a friend or family member. However, the
military judge did not handle in a textbook manner the issues of
whether the SARC was truly an expert, the subject and scope of
4
United States v. Flesher, No. 13-0602/AR
her testimony, whether her testimony in this case was relevant
and reliable, and whether its probative value outweighed its
potential prejudicial effect. Further, when the SARC’s
testimony blatantly exceeded the scope of that which had been
approved by the military judge, the trial counsel took no action
to rein her in and the military judge provided no curative
instruction to the panel.
It is the testimony of this putative expert that is the
crux of the matter before us. Specifically, on Appellant’s
petition we 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.
As explained in greater detail below, we find that the
military judge did abuse his discretion in handling this matter,
and that this error was prejudicial to Appellant. Accordingly,
we affirm in part and reverse in part.
BACKGROUND
On May 19, 2011, two weeks prior to the beginning of
Appellant’s court-martial, the Government provided defense
counsel with a witness list. This list included Ms. Sarah Falk,
a former SARC at Fort Carson, Colorado. However, the Government
did not identify Ms. Falk other than to note her current place
5
United States v. Flesher, No. 13-0602/AR
of employment. Defense counsel contacted Ms. Falk and
interviewed her. Defense counsel then contacted trial counsel
to ask if he intended to call Ms. Falk as an expert witness.
Based on these conversations, defense counsel moved for a
continuance, noting the recent notification of the Government’s
intent to call an expert witness and arguing that the defense
needed more time to prepare for Ms. Falk’s expected testimony.
The Government opposed the defense’s motion via e-mail to the
military judge, stating that Ms. Falk would not interview the
victim or testify about the “psychology of trauma,” but instead
would testify about the “common behaviors and responses” of
sexual assault victims. The defense filed a reply brief the
next day. In this reply, the defense specifically asked for a
hearing pursuant to Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993), because Ms. Falk’s testimony appeared to “lack
any scientific methodology.” 1
1
In Daubert, the United States Supreme Court held that a trial
judge has a special obligation to “ensure that any and all
scientific testimony . . . is not only relevant, but reliable.”
509 U.S. at 589. This “gatekeeping” requirement, as it is
called, is intended to “make certain that an expert, whether
basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert
in the relevant field.” Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 152 (1999).
6
United States v. Flesher, No. 13-0602/AR
Two days later the military judge sent an e-mail to counsel
on both sides. In the e-mail the military judge addressed the
defense’s request for a continuance:
Re: the Defense motion for a continuance -- As I
understand the issue, Ms. Falk is going to testify
she has seen lots of alleged sexual assault victims.
Some act this way, some act that way, and the way
some alleged victims act might not be consistent
with how one would think they would act. Is this
correct, Gov’t? If so, Defense, I would guess that
Ms. Falk will agree on cross that there is no usual
way alleged victims react. Each alleged victim is
different. I would also think you could get any
[Sexual Assault Nurse Examiner] (for example)
between now and next week to come in and testify to
that. It doesn’t take any preparation. If I am
correct in all of this, why do you need a delay?
This e-mail from the military judge did not address the question
of the admissibility of Ms. Falk’s testimony; it merely assumed
it. The military judge also failed to explicitly rule one way
or another on the Motion for Continuance.
Defense counsel responded via e-mail and reiterated the
defense’s contention that Ms. Falk’s testimony was “not proper
expert testimony.” Defense counsel again requested “a Daubert
hearing regarding [Ms. Falk’s] methodology before she be allowed
to testify as an expert on the behaviors of the alleged rape
victims.” He also requested discovery from Ms. Falk.
The next day the military judge sent another e-mail. In
response to the defense’s request for a hearing and discovery he
wrote:
7
United States v. Flesher, No. 13-0602/AR
Regarding Ms. Falk: Defense, you can interview her
for that information. I will consider any motions
or arguments you present, but it is unlikely we will
have a Daubert hearing. The Gov’t confirmed my
understanding of her testimony. She is simply going
to say she has seen the different way alleged
victims react.
In response to the military judge’s e-mail, on May 28,
defense counsel filed a Motion to Compel Expert or to Exclude
Expert Testimony. In this motion the defense argued that Ms.
Falk’s testimony should be excluded pursuant to Military Rules
of Evidence (M.R.E.) 402 and 403 because it was not relevant and
presented a substantial risk of unfair prejudice that outweighed
its probative value. In the alternative, if Ms. Falk’s
testimony was allowed, the defense asked the court to appoint
Dr. Thomas Grieger, a putative expert in counterintuitive
behaviors, as an expert for the defense. There is no indication
in the record that the military judge took any formal action on
the defense’s motion to compel Dr. Grieger or exclude Ms. Falk
until the morning of trial.
The case proceeded to trial on the original trial date of
June 1. The military judge began the court-martial with an
Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012), session. During
this session, the military judge put on the record a summary of
the e-mails that had been exchanged between the parties as well
as the in-chambers conference that had been held that morning
pursuant to M.R.E. 802. The military judge explained that he
8
United States v. Flesher, No. 13-0602/AR
did not grant the defense’s motion for a continuance because he
believed that Ms. Falk’s testimony would be very limited:
[M]y understanding was that they were going to ask
several things. “Have you observed alleged
victims? How many in the past?” And, “Some act
this way; some act that way.” And, “No two victims
are the same.” When I sent back the email saying,
“Is that correct, Counsel?” they confirmed that is
correct. And what I indicated to the defense at
that time was, based on that, I was not inclined to
grant a continuance . . . .
The military judge further explained that the defense’s
motion to compel the production of Dr. Grieger was without merit
because the Government had provided, in lieu of Dr. Grieger, a
Sexual Assault Nurse Examiner (SANE) who could provide the same
testimony. 2 When the military judge finished summarizing the
past proceedings, both counsel stated that they had no
objections to this summary.
At this point, defense counsel requested “the chance to
voir dire the expert witness from the [G]overnment before she is
brought in front of the panel.” This request set off another
round of discussions about whether or not the defense’s
requested expert, Dr. Grieger, was necessary in light of the
2
A SANE is a nurse who has been trained to provide care to
victims of sexual assault. A SANE performs a medical
examination following the report of an assault, and identifies
and documents injuries. A SANE also collects and preserves
physical evidence that may be necessary for any judicial
proceedings. See The Free Dictionary, http://medical-
dictionary.thefreedictionary.com/sexual+assault+nurse+examiner
(last visited June 26, 2014).
9
United States v. Flesher, No. 13-0602/AR
limited nature of Ms. Falk’s expected testimony. The defense
argued that regardless of the terminology used, Ms. Falk would
be providing testimony on the counterintuitive behaviors of
sexual assault victims. The defense’s position was that such
testimony is complex, scientific testimony that requires
specialized expertise not possessed by the assigned SANE. The
Government responded that Ms. Falk would not be providing
specialized scientific testimony about the operation of a
victim’s brain, but rather would testify based on her
professional experience as a SARC as follows: “I deal with
victims and this is what I see from the whatever many victims
I’ve viewed.” The Government further asserted that its expert
witness would testify only “regarding scream, non-stranger, and
not reporting to law enforcement.” The following colloquy then
ensued:
MJ: And my understanding, Government, you are not
going to ask your expert about why say, for
example, she didn’t scream? My understanding was
you were just going to ask her: How many have
you done? I have seen a hundred. Is it unusual
for an alleged victim not to scream? No that is
not unusual.
ATC: Correct --
MJ: Not to say this is why they don’t scream.
ATC: Exactly, Your Honor. Just to provide that basis,
somebody who deals with --
MJ: Sure. Okay.
10
United States v. Flesher, No. 13-0602/AR
DC: Your honor, the defense would argue if that’s the
extent of it, that it would also be irrelevant .
. . . What we are interested in is what happened
in this case.
ATC: And, Your Honor, if in any[]way the defense case
comes up and she didn’t scream for her mother or
she didn’t call 911 immediately, you know,
without that testimony we are kind of lost. Our
case in chief is defici[en]t without that
testimony coming in.
MJ: And, Defense, based on my experience all these
experts will say some scream, some don’t, some
delay reporting, some report immediately, and I
would think that the government’s expert would
admit all that on cross-examination. Say, yeah,
some people scream, some don’t, some delay
reporting, and some don’t.
. . . .
. . . But again, Government, your expert is not
going to testify about this is why she wouldn’t
have screamed, or this is why some victims don’t
scream.
ATC: No, Your Honor.
MJ: She is not going to say any of that.
ATC: That is well beyond her expertise. I mean she
could conjecture but it, obviously, wouldn’t be
the same.
MJ: Right.
After some additional discussion, the military judge ruled
on the motion to compel. Relying upon what he had “seen in the
past” and the limits on Ms. Falk’s expected testimony, the
military judge concluded that the SANE assigned to the defense
could provide the same assistance as Dr. Grieger. The defense’s
11
United States v. Flesher, No. 13-0602/AR
motion for its own expert was, therefore, denied. The questions
raised pretrial about the admissibility of Ms. Falk’s expert
testimony were not addressed at this point except with respect
to the military judge’s statements concerning the narrow
boundaries that he would impose on her testimony. The military
judge made no explicit ruling on the motion to exclude Ms. Falk.
At the close of the Article 39(a), UCMJ, session, trial
testimony began with S.A. and her brother. Defense counsel
elicited testimony from both witnesses that S.A.’s brother had a
habit of sleeping on the couch outside her room and that on the
evening in question he was sleeping there with the door
partially open. Next, the members were excused and another
Article 39(a), UCMJ, session was called during which the parties
conducted voir dire of Ms. Falk. In response to questions from
defense counsel, Ms. Falk provided the court with the following
information: she had a “sociology based” bachelor’s degree that
did not involve clinical counseling; she had not conducted any
clinical counseling for sexual assault victims, but instead had
“advocated for” what she estimated to be a “couple thousand”
such individuals; “[m]ore than a third” of these cases had
resulted in a court-martial or a civilian trial; “at least a
fourth” of those cases had ended in a conviction; she was
“confident” that “the majority” of the individuals who stated
that they had been sexually assaulted were “telling the truth”;
12
United States v. Flesher, No. 13-0602/AR
and her role as a SARC was not to investigate allegations of
sexual assault but instead to “walk [victims] through the
process and ensure they know what their options and resources
are.”
The military judge then urged trial counsel to “ask the
witness the three things I believe you said you were going to
have her testify about.” Trial counsel reeled off the following
list:
The questions I do intend to ask this witness [are]
based on all the victims she has seen; how often
does a victim scream or not scream; how often is the
most she has seen; and how many fight back or don’t
fight; how many involve a stranger versus a non-
stranger, someone they met at some point in some
way; and then how many she’s seen where the first
report or the first outcry is to law enforcement as
opposed to anyone else other than law enforcement.
However, the military judge did not require trial counsel to
actually pose any of these specific questions to Ms. Falk, and
she provided no answers to them during this Article 39(a), UCMJ,
session. The military judge simply asked, “Any other questions
based on that?” After a few additional background questions by
counsel for both parties, Ms. Falk was excused.
Without hearing Ms. Falk’s expected testimony in her own
words or any arguments about the admissibility of Ms. Falk’s
testimony pursuant to the Military Rules of Evidence (M.R.E.) --
13
United States v. Flesher, No. 13-0602/AR
or pursuant to the holdings in Daubert or Houser 3 -- and without
giving any explanation of his reasoning, the military judge then
made his ruling:
Government, I am going to let you ask three things.
The ones about whether or not that most victims put
up a fight or not; scream or not; and who their
first report is made to, law enforcement or not law
enforcement. But I am not going to let you ask
about whether or not most cases it is a stranger or
not.
Defense counsel objected on the grounds of relevance. The
military judge “noted” the objection, but did not sustain or
overrule the objection.
When the members returned, the court heard testimony from
S.A.’s stepfather, and then Ms. Falk took the stand. Trial
counsel reviewed her educational and professional experience,
which included a bachelor’s degree in law and society, her work
towards a graduate certificate in public policy, and both her
civilian and military training in “victim services.” Ms. Falk
testified that she worked previously as the SARC at Fort Carson.
3
In United States v. Houser, 36 M.J. 392 (C.M.A. 1993), we set
out six factors derived from the M.R.E. that must be established
for expert testimony to be admissible. The 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. Id. at 397. We view
Daubert, which was decided two months after Houser, as
“providing more detailed guidance on the fourth and fifth Houser
prongs pertaining to relevance and reliability.” United States
v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999).
14
United States v. Flesher, No. 13-0602/AR
As Ms. Falk explained it, a SARC’s job is to “make contact with
the victim upon receipt of a report of sexual assault. You walk
them through the medical, legal and investigative processes.”
Ms. Falk testified that she had personally worked with
“thousands” of victims of sexual assault. The Government then
asked to have Ms. Falk recognized as an expert in “sexual
assault victim responses.” The defense renewed its objection
“as previously stated” to Ms. Falk’s admission as an expert.
The military judge then said:
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.
The remainder of Ms. Falk’s testimony on direct examination
was very limited. The expert testimony at the center of this
appeal consists primarily of three short questions and answers:
Q: . . . In your experience in dealing with victims,
how often have you had a sexual assault victim who
has fought back against their attacker?
A: Almost never. And it’s generally with an unknown
subject, with somebody that that person isn’t
familiar with; it’s a stranger.
Q: In your experience in dealing with victims, how
often have you had a sexual assault victim who at
the time of the assault screamed or called for
help?
15
United States v. Flesher, No. 13-0602/AR
A: Again, almost never. And, you know, they report
afterwards that generally there is the fear of
escalating the violence or fear that they are going
to be harmed even worse than they already are if
they yell or scream for help or upset the
individual.
Q: Okay. In your experience, how often does a victim
report first to law enforcement? The first person
they call is law enforcement.
A: I can’t think of a specific case where they do
report specifically to law enforcement. It’s just
not something common. They generally are going to
go to a friend or a family member.
DISCUSSION
I. Standard of Review
We review de novo the question of whether the military
judge properly performed the required gatekeeping function of
M.R.E. 702. Griffin, 50 M.J. at 284. That is, we must
determine de novo whether the military judge “properly followed
the Daubert framework.” Id. However, we review for abuse of
discretion the decision by the military judge to permit Ms. Falk
to testify as an expert witness, the limitations he placed on
the scope of her permitted testimony, and his enforcement of
those limitations. United States v. Billings, 61 M.J. 163, 166–
67 (C.A.A.F. 2005).
A military judge abuses his discretion when his
findings of fact are clearly erroneous, the court’s
decision is influenced by an erroneous view of the
law, or the military judge’s decision on the issue at
16
United States v. Flesher, No. 13-0602/AR
hand is outside the range of choices reasonably
arising from the applicable facts and the law.
United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008). “An
‘abuse of discretion’ exists where ‘reasons or rulings of the’
military judge are ‘clearly untenable and . . . deprive a party
of a substantial right such as to amount to a denial of
justice’; it ‘does not imply an improper motive, willful purpose
or intentional wrong.’” United States v. Travers, 25 M.J. 61,
62 (C.M.A. 1987) (alteration in original) (quoting Guggenmos v.
Guggenmos, 359 N.W.2d 87, 90 (Neb. 1984)).
II. The Record of Trial
We begin by noting that the military judge did not approach
his evidentiary rulings in a methodical manner. Rule for
Courts-Martial (R.C.M.) 801(a)(4) says that the military judge
“shall . . . rule on all interlocutory questions and all
questions of law raised during the court-martial.” R.C.M.
801(f) further states that “[a]ll sessions involving rulings
. . . made . . . by the military judge . . . shall be made a
part of the record.” R.C.M. 905(d), which governs motions,
states that “[a] motion made before pleas are entered shall be
determined before pleas are entered unless . . . the military
judge for good cause orders that determination be deferred until
trial of the general issue or after findings.” R.C.M. 905(d)
further states, “[w]here factual issues are involved in
17
United States v. Flesher, No. 13-0602/AR
determining a motion, the military judge shall state the
essential findings on the record.”
We have previously held that objections made at trial may
not be “evaded or ignored.” United States v. DeYoung, 29 M.J.
78, 80 (C.M.A. 1989). It is the duty of the military judge to
“affirmatively” rule. Id.; see also United States v. Mullens,
29 M.J. 398, 399 (C.M.A. 1990) (“We again hold that the military
judge is required by Article 51(b) . . . and R.C.M. 801(a)(4)
. . . to rule on these objections.”). Further, we have
previously explained why it is necessary for the military judge
to make a clear record. “We do not expect record dissertations
but, rather, a clear signal that the military judge applied the
right law. While not required, where the military judge places
on the record his analysis and application of the law to the
facts, deference is clearly warranted.” United States v.
Downing, 56 M.J. 419, 422 (C.A.A.F. 2002); see also United
States v. Winckelmann, 73 M.J. 11, 16 (C.A.A.F. 2013) (“The
Court of Criminal Appeals did not detail its analysis in this
case; nor was it obligated to do so. Going forward, however, a
reasoned analysis will be given greater deference than
otherwise.”).
However, the reverse is also true. If the military judge
fails to place his findings and analysis on the record, less
18
United States v. Flesher, No. 13-0602/AR
deference will be accorded. As the United States Army Court of
Criminal Appeals has recognized:
When the standard of review is abuse of discretion,
and we do not have the benefit of the military judge’s
analysis of the facts before him, we cannot grant the
great deference we generally accord to a trial judge’s
factual findings because we have no factual findings
to review. Nor do we have the benefit of the military
judge’s legal reasoning in determining whether he
abused his discretion . . . .
United States v. Benton, 54 M.J. 717, 725 (A. Ct. Crim. App.
2001) (citations omitted).
The predecessor to the United States Air Force Court of
Criminal Appeals has similarly explained the difficulties faced
by an appellate court when the military judge fails to comply
with R.C.M. 905(d). “Without a proper statement of essential
findings, it is very difficult for an appellate court to
determine the facts relied upon, whether the appropriate legal
standards were applied or misapplied, and whether the decision
amounts to an abuse of discretion or legal error.” United
States v. Reinecke, 30 M.J. 1010, 1015 (A.F.C.M.R. 1990), rev’d
on other grounds by United States v. Strozier, 31 M.J. 283
(C.M.A. 1990); see also United States v. Doucet, 43 M.J. 656,
659 (N-M. Ct. Crim. App. 1995) (“When factual issues are
involved in ruling on a motion, a trial judge has a mandatory
19
United States v. Flesher, No. 13-0602/AR
sua sponte duty to state the ‘essential findings’ on the record
which support his or her ruling.” (citations omitted)). 4
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-
4
While this Court has not had occasion to discuss the importance
of a complete and detailed record in the context of a Daubert
analysis, this issue has arisen in the federal courts of
appeals. As the United States Court of Appeals for the Tenth
Circuit explained, “For purposes of appellate review, a natural
requirement of [the gatekeeping] function is the creation of ‘a
sufficiently developed record in order to allow a determination
of whether the district court properly applied the relevant
law.’” Goebel v. Denver & Rio Grande Western R.R. Co., 215 F.3d
1083, 1088 (10th Cir. 2000) (citations omitted).
20
United States v. Flesher, No. 13-0602/AR
making process and, accordingly, we give his decisions in this
case less deference than we otherwise would.
To be clear, we do not hold that a military judge is always
required to conduct a formal Daubert hearing or to precisely
address each of the factors spelled out in Houser when deciding
whether and how a proffered expert should testify. United
States v. Sanchez, 65 M.J. 145, 149 (C.A.A.F. 2007) (quoting
Daubert, 509 U.S. at 594). “The inquiry is ‘a flexible one.’”
Id. Further, in regard to our de novo review of the process in
the instant case, because the military judge did permit voir
dire and placed substantial limitation on the expert testimony,
we ultimately conclude that the military judge did perform an
adequate, if not exemplary, preliminary gatekeeping inquiry.
Nevertheless, we find that the analytical structure developed in
the Houser and Daubert cases is quite helpful -- both at the
trial and at the appellate level -- in determining the
appropriateness of admitting expert testimony. Therefore, we
use that structure below in deciding the issue before us.
Moreover, we note that when a military judge does not hold a
Daubert hearing and does not address the Houser factors in some
manner, we will generally show less deference to that military
judge’s decisions.
21
United States v. Flesher, No. 13-0602/AR
III. Analysis
A. Military Rule of Evidence 702
As a threshold matter, when deciding whether Ms. Falk would
be allowed to testify, the military judge was obligated to
determine whether her testimony would be helpful to the panel.
M.R.E. 702 states that an expert witness may provide testimony
if it “will assist the trier of fact to understand the evidence
or determine a fact in issue.” Thus, an expert may testify if
his or her testimony is “helpful.” Billings, 61 M.J. at 166.
“A suggested ‘test’ for deciding ‘when experts may be used’ is
‘whether the untrained layman would be qualified to determine
intelligently and to the best possible degree the particular
issue without enlightenment from those having a specialized
understanding of the subject . . . .’” United States v. Meeks,
35 M.J. 64, 68 (C.M.A. 1992) (alteration in original) (quoting
Fed. R. Evid. 702 advisory committee’s note).
In the past we have made it clear that expert testimony
about the sometimes counterintuitive behaviors of sexual assault
or sexual abuse victims is allowed because it “assists jurors in
disabusing themselves of widely held misconceptions.” Houser,
36 M.J. at 398; see also United States v. Halford, 50 M.J. 402,
404 (C.A.A.F. 1999) (rape trauma syndrome evidence allowed to
explain common behavioral characteristics in “cases of non-
consensual sexual encounters”); United States v. Peel, 29 M.J.
22
United States v. Flesher, No. 13-0602/AR
235, 241 (C.M.A. 1989), cert. denied, 493 U.S. 1025 (1990)
(allowing expert to testify that “it was not inconsistent
behavior for a rape victim not to immediate[ly] report the
offense” or to “act[] as if the rape had never happened”);
United States v. Reynolds, 29 M.J. 105, 108 (C.M.A. 1989)
(allowing clinical psychologist to testify in order to “counter
any adverse inferences which might be drawn from the fact that
the victim did not immediately report the offense”); United
States v. Carter, 26 M.J. 428, 429 (C.M.A. 1988) (holding that
rape trauma syndrome evidence meets the requirements of M.R.E.
702); cf. United States v. Rynning, 47 M.J. 420, 422 (C.A.A.F.
1998) (recognizing that expert testimony explaining the
“behavioral characteristics or behavioral patterns of an alleged
sexual abuse victim,” is helpful “‘especially where that
behavior would seem to be counterintuitive’” (citation
omitted)).
We again affirm 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. However, it is questionable whether Ms. Falk’s
testimony was truly helpful under the particular circumstances
present in the instant case.
23
United States v. Flesher, No. 13-0602/AR
To begin with, Ms. Falk was not an expert in rape trauma
syndrome. Indeed, trial counsel conceded that point, and the
military judge explicitly sought to limit Ms. Falk’s testimony
to such unexceptional observations as “some [people] scream,
some don’t, some delay reporting, and some don’t.”
Additionally, the military judge admitted that this limited set
of observations was “almost common knowledge.” Further, S.A.
herself testified explicitly and clearly about why she reacted
the way she did both during and after the incident with
Appellant. Each of these points thus diminishes the
“helpfulness” of Ms. Falk’s testimony. However, we ultimately
conclude that the limited type of testimony that Ms. Falk was
supposed to provide, even when it is elicited from a person with
Ms. Falk’s qualifications, may be appropriate in certain
circumstances. We thus proceed to the question of whether the
record before us makes it clear that this particular case
presented such circumstances.
24
United States v. Flesher, No. 13-0602/AR
B. The Houser Factors 5
1. Qualifications of the Expert
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.
Perhaps the military judge thought he did not need to explore
this issue in depth because the M.R.E. are quite broad in
defining an expert as someone who is qualified based on that
individual’s “knowledge, skill, experience, training, or
education.” M.R.E. 702. The military judge also may have
believed that Ms. Falk’s qualifications were sufficiently
established because he intended to greatly circumscribe the
nature and breadth of Ms. Falk’s testimony. Furthermore, the
military judge’s prior experience with sexual assault experts
may have led him to believe he understood the quality of Ms.
Falk’s credentials and the nature and scope of her pending
testimony. However, we note that the admission of a putative
5
The Houser factors were based in large part on M.R.E. 702 and
703. These rules were substantively amended in 2004 to conform
with the federal rules, which had been amended to reflect the
Supreme Court’s decisions in Daubert, 509 U.S. at 579, and Kumho
Tire, 526 U.S. at 137. See Manual for Courts-Martial, United
States, Analysis of the Military Rules of Evidence app. 22 at
A22-52 (2012 ed.) [hereinafter Drafters’ Analysis]. We have
said that Daubert provides “more detailed guidance on the fourth
and fifth Houser prongs pertaining to relevance and
reliability.” Griffin, 50 M.J. at 284; see also supra note 3.
In the absence of briefing on this issue from either party, we
leave for another day the question of how, if at all, the Houser
factors were affected by the 2004 amendments.
25
United States v. Flesher, No. 13-0602/AR
expert’s testimony may be of utmost significance in any criminal
trial. Daubert, 509 U.S. at 595 (“Expert evidence can be both
powerful and quite misleading.”) (citation and internal
quotation marks omitted). Thus, a trial judge must first assure
himself or herself that a proffered expert is truly an expert.
See United States v. Cauley, 45 M.J. 353, 357 (C.A.A.F. 1996)
(holding that it was not error to refuse to allow a police
detective to testify on the common behaviors of rape victims);
Carter, 26 M.J. at 430 (holding that it was error to allow a
United States Army Criminal Investigation Command (CID) agent to
offer expert testimony on the common behaviors of rape victims).
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
26
United States v. Flesher, No. 13-0602/AR
“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. 6
6
See, e.g., United States v. Pagel, 45 M.J. 64, 65 (C.A.A.F.
1996) (doctor/clinical child psychologist admitted as expert in
diagnosis and treatment of child sexual abuse); United States v.
Marrie, 43 M.J. 35, 41 (C.A.A.F. 1995) (doctor/licensed
psychologist admitted as expert to testify regarding “typical
patterns of disclosure by victims of sexual child abuse; the
potential for false allegations; the possibility of influence on
victims by outside coaching; and falsities that may occur when
there are custody disputes”); Houser, 36 M.J. at 393
(doctor/counseling psychologist/associate professor admitted as
expert to testify regarding rape trauma syndrome); United States
v. Suarez, 35 M.J. 374, 375-76 (C.M.A. 1992) (doctor/clinical
psychologist admitted as an expert on child sexual abuse);
United States v. Carter, 26 M.J. 428, 429 (C.M.A. 1988) (medical
doctor/division psychiatrist admitted as expert to testify
regarding rape trauma syndrome).
27
United States v. Flesher, No. 13-0602/AR
2. Subject Matter of Expert Testimony
As stated above, in appropriate circumstances a military
judge may allow an expert witness to testify regarding how
victims may or may not behave following a sexual assault.
Further, an appropriately qualified expert witness also may be
able to testify why a sexual assault victim may or may not react
in a particular manner. But in 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. 7 And yet, Ms. Falk clearly
did testify about why sexual assault victims may act in a
certain manner, 8 and the trial counsel did not rein her in and
the military judge did not issue a curative instruction.
7
MJ: But again, Government, your expert is not going to testify
about this is why she wouldn’t have screamed, or this is
why some victims don’t scream.
ATC: No, Your Honor.
MJ: She is not going to say any of that.
ATC: That is well beyond her expertise.
8
Q: In your experience in dealing with victims, how often have
you had a sexual assault victim who at the time of the
assault screamed or called for help?
A: Again, almost never. And, you know, they report afterwards
that generally there is the fear of escalating the violence
or fear that they are going to be harmed even worse than
28
United States v. Flesher, No. 13-0602/AR
We have previously held that an expert witness may not
offer opinions that “exceed[] the scope of the witness’s
expertise.” United States v. Birdsall, 47 M.J. 404, 410
(C.A.A.F. 1998). As one federal court explained, an expert
witness “must ‘stay within the reasonable confines of his [or
her] subject area.’” Trilink Saw Chain v. Blount, Inc., 583 F.
Supp. 2d 1293, 1304 (N.D. Ga. 2008) (quoting Lappe v. Am. Honda
Motor. Co., 857 F. Supp. 222, 227 (N.D.N.Y. 1994)). Other
federal courts have reached the same conclusion. See, e.g.,
United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005)
(chemistry consultant not qualified as expert in controlled
substances); Wheeling Pittsburgh Steel Corp. v. Beelman River
Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001) (hydrologist
specializing in flood risk management not qualified to testify
as expert on safe warehousing practices); Redman v. John D.
Brush & Co., 111 F.3d 1174, 1179 (4th Cir. 1997) (metallurgic
engineer not qualified to testify as expert in design of safes).
In this case, under these circumstances, it was error to permit
Ms. Falk to testify as she did because her testimony went beyond
the scope of her expertise as it was agreed to by the parties in
advance of trial.
they already are if they yell or scream for help or upset
the individual.
29
United States v. Flesher, No. 13-0602/AR
3. Basis for Expert Testimony
The third Houser factor addresses the facts and data that
an expert is allowed to rely on when forming his or her opinion.
Under M.R.E. 703, “an expert’s opinion may be based upon
personal knowledge, assumed facts, documents supplied by other
experts, or even listening to the testimony at trial.” Houser,
36 M.J. at 399 (citing United States v. Johnson, 35 M.J. 17, 18
(C.M.A. 1992)). There is no dispute that Ms. Falk’s testimony
was based on her personal experience as a SARC. However, we
discuss below whether the reliability of Ms. Falk’s expert
opinions, which were based solely on Ms. Falk’s personal
experience with alleged victims, was properly considered by the
military judge.
4. Relevance
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
30
United States v. Flesher, No. 13-0602/AR
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.
5. Reliability
The Government, as the proponent of Ms. Falk’s expert
testimony, had the burden of demonstrating the reliability of
Ms. Falk’s testimony. Billings, 61 M.J. at 166. To show that
an expert’s opinion is “‘connected to existing data’” by more
than the “‘ipse dixit of the expert,’” the Government may rely
on the four Daubert reliability factors or on “alternative
indicia of reliability.” Id. at 168 (quoting General Elec. Co.
v. Joiner, 522 U.S. 136, 146 (1997)). 9 And yet, there is little
information in the record to indicate that the Government
9
The four reliability factors set out in Daubert are: (1)
whether a theory or technique can be or has been tested; (2)
whether the theory or technique has been subjected to peer
review and publication; (3) the known or potential rate of error
in using a particular scientific technique and the standards
controlling the technique’s operation; and (4) whether the
theory or technique has been generally accepted in the
particular scientific field. 509 U.S. at 593–94.
31
United States v. Flesher, No. 13-0602/AR
squarely addressed these points specifically, or the issue of
Ms. Falk’s reliability more generally.
The Government did proffer that Ms. Falk would base her
testimony on her personal interactions with individuals who were
sexually assaulted, and M.R.E. 702 permits an expert to be
qualified by reason of experience rather than skill, training,
or education. In other words, “experience 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). As the Advisory
Committee’s notes on Fed. R. Evid. 702 explain:
If the witness is relying solely or primarily on
experience, then the witness must explain how that
experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion and how
that experience is reliably applied to the facts.
Fed. R. Evid. 702 advisory committee’s note (on 2000
amendments). 10 In other words, the military judge should have
stated on the record why he concluded that Ms. Falk’s testimony
was reliable. 11 And yet, the military judge did not do so.
10
M.R.E. 702 was amended in 2004 to parallel a 2000 amendment to
Fed. R. Evid. 702. Drafters’ Analysis app. 22 at A22-52.
11
We note that Ms. Falk’s opinion was based on her interaction
with individuals who stated that they had been sexually
32
United States v. Flesher, No. 13-0602/AR
6. Probative Value
Finally, there 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.
Indeed, the probative value of Ms. Falk’s testimony appears to
have been quite limited. To begin with, it is an established
principle “that expert testimony cannot be used solely to
bolster the credibility of the government’s fact-witnesses by
mirroring their version of events.” United States v. Cruz, 981
F.2d 659, 664 (2d Cir. 1992). A military judge must distinguish
between an expert witness whose testimony about behaviors of
sexual assault victims that are subject to “widely held
misconceptions” will be helpful to the trier of fact, Houser, 36
M.J. at 398, and an expert witness whose testimony will simply
mirror the specific facts of the case and serve only to bolster
the credibility of a crucial fact witness. See United States v.
Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991) (“If the testimony
is instead directed solely to ‘lay matters which a jury is
capable of understanding and deciding without the expert’s
help,’ the testimony is properly excludable.” (internal citation
omitted)); see also Cauley, 45 M.J. at 358 (recognizing that
“[e]xpert testimony on credibility is not admissible at courts-
assaulted, although Ms. Falk had no means of determining what
percentage of those individuals was being truthful.
33
United States v. Flesher, No. 13-0602/AR
martial”); United States v. King, 35 M.J. 337, 342 (C.M.A. 1992)
(“[W]e do not allow witness opinion regarding the truthfulness
of another person.”). 12
In the instant case, S.A. gave a direct and credible
explanation for why she did not scream or struggle more or
immediately notify her parents of the sexual assault. Thus, Ms.
Falk’s purported expert testimony was not helpful because the
panel members could understand what had happened based on S.A.’s
own explanation. Therefore, once the military judge had placed
strict limitations on Ms. Falk’s testimony -- which thereby
rendered the observations of the expert witness “almost common
knowledge” -- its probative value had been severely eroded.
On the other hand, the prejudicial effect of Ms. Falk’s
testimony was quite likely substantial in this case. 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
12
Bolstering, as we have used the term here, “occurs before
impeachment, that is when the proponent seeks to enhance the
credibility of the witness before the witness is attacked.”
United States v. Toro, 37 M.J. 313, 315 (C.M.A. 1993). We do
not, in this case, 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.
See, e.g., Cruz, 981 F.2d at 664 (“Nor do we hold that expert
testimony may not be used on some occasions to explain even non-
esoteric matters, when the defense seeks to discredit the
government’s version of events as improbable criminal
behavior.”).
34
United States v. Flesher, No. 13-0602/AR
this sort where there is 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. 13
Summary
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
13
We note that defense counsel did not make a specific objection
when Ms. Falk’s testimony exceeded the parameters issued by the
military judge. However, we also note that defense counsel had
made repeated blanket objections to Ms. Falk’s testimony right
from the outset of this court-martial. Further, we note that
the military judge was under a continuing obligation to ensure
that the testimony was limited to the parameters he had set out
previously. Wheeling Pittsburgh Steel Corp., 254 F.3d at 715.
35
United States v. Flesher, No. 13-0602/AR
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.
C. Prejudice
Under Article 59(a), UCMJ, a “finding or sentence of a
court-martial may not be held incorrect on the ground of an
error of law unless the error materially prejudices the
substantial rights of the accused.” 10 U.S.C. § 859(a) (2012);
United States v. Yammine, 69 M.J. 70, 78 (C.A.A.F. 2010). “The
test for nonconstitutional evidentiary error is whether the
error had a substantial influence on the findings.” United
States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001) (citing
Kotteakos v. United States, 328 U.S. 750, 765 (1946); United
States v. Pollard, 38 M.J. 41, 52 (C.M.A. 1993)). 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).
To determine whether the Government has carried its burden,
we weigh four factors: (1) the strength of the Government’s
case; (2) the strength of the defense’s case; (3) the
materiality of the evidence in question; and (4) the quality of
the evidence in question. Id. at 98.
36
United States v. Flesher, No. 13-0602/AR
Although these are four distinct factors, all of them
revolve around one single point: namely, the central question
at trial was whether S.A. consented to the sexual intercourse or
whether Appellant forced himself on her or took advantage of her
drunken state. The Government evidence on this issue consisted
of S.A.’s clear testimony that she was drunk, that she did not
invite Appellant to her room, that she did not consent to have
sex with him, and that she repeatedly told him “no.” In
juxtaposition, the defense put Appellant on the stand where he
testified that the alleged assault was an invited, consensual
sexual encounter. The result was a “he said–she said” case,
where the outcome largely depended on whether the panel found
S.A. or Appellant more credible.
Under this scenario, 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. Therefore, we do not find that the Government has met
its burden of demonstrating that Ms. Falk’s improperly admitted
testimony “did not have a substantial influence on the . . .
findings.” Gunkle, 55 M.J. at 30.
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed in part and reversed in part. The part of
the decision regarding Charge III and its Specifications is
37
United States v. Flesher, No. 13-0602/AR
affirmed. The part of the decision affirming the finding of
guilty to the offense of aggravated sexual assault and the
sentence is reversed, and the finding of guilty to that offense
and the sentence are set aside. The record of trial is returned
to the Judge Advocate General of the Army. A rehearing on the
charge of aggravated sexual assault and the sentence is
authorized.
38
United States v. Flesher, No. 13-0602/AR
BAKER, Chief Judge (dissenting):
The military judge serves as the gatekeeper in assessing
expert opinion evidence in accordance with Military Rule of
Evidence (M.R.E.) 702. United States v. Houser, 36 M.J. 392
(C.M.A. 1993); see also United States v. Billings, 61 M.J. 163,
167 (C.A.A.F. 2005). 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.
However, the majority appears to adopt a new and expansive test
for admission of testimony by a Sexual Assault Response
Coordinator (SARC) in sexual assault cases. Heretofore, Houser
served as the threshold for admission of evidence under M.R.E.
702. The majority’s new approach seems to treat even the
ordinary process of admitting specialized knowledge in the form
of SARC testimony as if it were novel scientific evidence for
which a Daubert hearing is required. 1 I would stick with the
Houser test.
The majority states, as the Court did in Houser, that it is
appropriate to “allow[] expert testimony on rape trauma syndrome
1
The majority states that “we do not hold that a military judge
is always required to conduct a formal Daubert hearing,” United
States v. Flesher, __ M.J. __, __ (21) (C.A.A.F. 2014), but at
the same time “we must determine de novo whether the military
judge properly followed the Daubert framework.” Id. at __ (16)
(internal quotation marks and citation omitted). The majority
further asserts that “the most important [concern] is the fact
that the military judge did not conduct even a rudimentary
Daubert hearing.” Id. at __ (20).
United States v. Flesher, No. 13-0602/AR
where it helps the trier of fact understand common behaviors of
sexual assault victims that might otherwise seem
counterintuitive.” Flesher, __ M.J. at __ (23). In Houser, the
Court concluded: “Certain behavioral patterns such as failure
to resist or delay in reporting a rape could be confusing to the
factfinders because these may be counter-intuitive.” 36 M.J. at
399. Accordingly, the evidence in this case was relevant. The
SARC here also had specialized knowledge, to wit, the
observational experience of having interviewed in her
professional capacity thousands of alleged and confirmed victims
of sexual assault. Nonetheless, this case presents a fairly
close call because the record is succinct and sometimes hurried
on how the military judge applied the Houser factors. However,
because this Court, like Article III courts, applies a liberal
standard of admission, I conclude for the reasons below that the
military judge did not abuse his discretion in admitting the
expert’s testimony. Therefore, I respectfully dissent.
A. Standard of Review
A military judge’s decision permitting expert testimony is
reviewed for an abuse of discretion. United States v. Billings,
61 M.J. 163, 166 (C.A.A.F. 2005). “[W]hen judicial action is
taken in a discretionary matter, such action cannot be set aside
by a reviewing court unless it has a definite and firm
conviction that the court below committed a clear error of
2
United States v. Flesher, No. 13-0602/AR
judgment . . . .” Houser, 36 M.J. at 397 (internal quotation
marks and citations omitted). Where the military judge’s
analysis is clear and on the record it receives greater
deference. United States v. Bush, 47 M.J. 305, 311 (C.A.A.F.
1997). In the absence of analysis on the record, an appellate
court will necessarily review the admission of evidence de novo.
See, e.g., Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 728,
760 (7th Cir. 2010); Naeem v. McKesson Drug Co., 444 F.3d 593,
607-08 (7th Cir. 2006). 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).
B. M.R.E. 702
M.R.E. 702 2 codifies the gatekeeping function of the
military judge in admitting testimony by expert witnesses. The
rule contemplates that expert testimony may include “scientific,
technical, or other specialized knowledge.” It follows that the
threshold for admission is not necessarily the same for every
2
M.R.E. 702 provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or
otherwise if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
3
United States v. Flesher, No. 13-0602/AR
proffer of expert testimony. Indeed, a witness may be
“qualified as an expert by knowledge, skill, experience,
training, or education.” M.R.E. 702. A novel scientific
method, therefore, would require a different foundation than
that of specialized knowledge deriving from observational
experience. Thus, while “expert witness” may conjure up an
image of a Ph.D. trained in nuclear engineering or an M.D.
trained in human genetics, the rule allows any person with
“specialized knowledge” based on “experience” to serve as an
expert as long as his or her testimony meets relevancy and
reliability requirements. Id.
This Court also applies a “liberal” standard for admission
of expert testimony. United States v. Diaz, 59 M.J. 79, 89
(C.A.A.F. 2003) (citation omitted); see also United States v.
Peel, 29 M.J. 235, 241 (C.M.A. 1989) (“[A]dmissibility of expert
testimony has been broadened. Indeed, anyone who has
substantive knowledge in a particular field which exceeds that
of the average court member arguably is an expert within that
field; and the type of qualification within that field that the
witness possesses goes to the weight to be given the testimony
and not to its admissibility.”). M.R.E. 702 tracks with the
federal rule, under which expert testimony is liberally
admissible. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 588 (1993) (noting the “liberal thrust” of the Federal
4
United States v. Flesher, No. 13-0602/AR
Rules of Evidence governing expert testimony and their “general
approach of relaxing the traditional barriers to opinion
testimony” (internal quotation marks and citations omitted));
see also Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (“The
witness’[s] qualifications to render an expert opinion are also
liberally judged by Rule 702.”); Canino v. HRP, Inc., 105 F.
Supp. 2d 21, 28 (N.D.N.Y. 2000) (“[T]he Court’s role as
gatekeeper is tempered by the liberal thrust of the Federal
Rules of Evidence. . . . Accordingly, doubts about the
usefulness of an expert’s testimony, should be resolved in favor
of admissibility.” (citations and internal quotations marks
omitted)); Lappe v. Am. Honda Motor Co., 857 F. Supp. 222, 227
(N.D.N.Y. 1994), aff’d, 101 F. 3d 682 (2d Cir. 1996)
(“Liberality and flexibility in evaluating qualifications should
be the rule; the proposed expert should not be required to
satisfy an overly narrow test of his own qualifications.”).
Indeed, some Article III courts appear to view this liberal
admissibility standard as relatively low. See, e.g., Hammond v.
Int’l Harvester Co., 691 F.2d 646, 653 (3d Cir. 1982)
(automotive and mechanical equipment salesman qualified to
testify as an expert in a products liability action involving a
tractor even though he did not have a degree in engineering or
physics and had no formal education); United States v. Johnson,
575 F.2d 1347, 1360 (5th Cir. 1978) (former actor qualified to
5
United States v. Flesher, No. 13-0602/AR
testify as an expert on the origin of marijuana even though “his
qualifications came entirely from ‘the experience of being
around a great deal [of marijuana] and smoking it’”).
C. Application of the Standard
In this case, the Government offered testimony by Ms. Falk,
the SARC, in the form of her specialized knowledge on the common
behaviors of sexual assault victims. This knowledge derived
from Ms. Falk’s experience as a SARC and as an advocate for
“thousands” of victims of sexual assault. Because the military
judge applied M.R.E. 702 to the admission of this expert opinion
evidence, albeit in a preemptive manner, this Court reviews his
ruling for an abuse of discretion with some deference.
Relevance. The first question is whether the proffered
evidence was relevant. Appellant argued by implication that no
victim would respond to sexual assault (or fail to respond) as
the victim here did. In particular, the defense suggested that
the victim’s failure to scream or call out to her brother or
other family members in her home demonstrated consent. The
Government was therefore entitled to rebut this inference with
properly admitted evidence to prove its case. As the majority
affirms and as this Court stated in Houser:
Certain behavioral patterns such as failure to resist
or delay in reporting a rape could be confusing to the
factfinders because these may be counter-intuitive. .
. . It is logically relevant for an expert to explain
that certain behavior patterns occur in a certain
6
United States v. Flesher, No. 13-0602/AR
percentage of rape cases or child abuse cases. This
is not to say that the offense occurred but, rather,
that these events may happen to some victims. Without
the testimony the members are left with their own
intuition.
36 M.J. at 399.
Consequently, unless this Court is overruling Houser, the expert
testimony was relevant.
Reliability. Since the majority appears to concede that
Ms. Falk’s testimony did not lack relevance, the reliability of
her testimony will determine whether the military judge abused
his discretion. Reliability, in turn, depends on whether we
continue to consider the Houser factors or adopt the majority’s
approach, which would effectively make Daubert the sole and
mandatory test.
Ms. Falk was an experienced advocate for victims of sexual
assault who was hired by the Department of Defense to serve as a
SARC. A SARC is “[t]he single point of contact at [a military]
installation or within a geographic area who oversees sexual
assault awareness, prevention, and response training; coordinates
medical treatment, including emergency care, for victims of sexual
assault; and tracks the services provided to a victim of sexual
assault from the initial report through final disposition and
resolution.” Dep’t of Defense Dir. 6495.01, Sexual Assault
Prevention and Response Program (SAPR) 17 (Jan. 23, 2012). The
credentialing process for a SARC requires a minimum of forty
7
United States v. Flesher, No. 13-0602/AR
hours of training for initial certification followed by an
additional thirty-two hours of continuing education every two
years, including on sexual assault victims’ responses to trauma.
Sexual Assault Prevention and Response Office, U.S. Dep’t of
Defense, Fact Sheet: SAPR Training, available at
http://www.sapr.mil/index.php/prevention/prevention-program-
elements/prevention-education. Prosecution Exhibit 6 is Ms.
Falk’s curriculum vitae (CV). At the time of the military
judge’s ruling, the record indicates that this exhibit was
before him. The CV details Ms. Falk’s education, training, and
experience working with sexual assault victims. Her duties
included “short-term . . . counseling” of victims of sexual
assault and assisting them through the “medical, investigative,
and legal process[es]” that follow their claims of sexual
assault. She testified that she had worked with “[t]housands
[of victims claiming sexual assault]. A couple thousand
probably over the years. It is generally a couple hundred per
year.” She also stated that “[m]ore than a third” of those had
resulted in a court-martial or civilian trial and among those “a
large portion” had ended in a conviction, thereby confirming
that she had interviewed actual victims of sexual assault.
Exercising his “considerable leeway” in evaluating reliability,
the military judge considered these qualifications and allowed
voir dire of Ms. Falk on the record. Kumho Tire Co. v.
8
United States v. Flesher, No. 13-0602/AR
Carmichael, 526 U.S. 137, 152 (1999) (“[T]he trial judge must
have considerable leeway in deciding in a particular case how to
go about determining whether particular expert testimony is
reliable.”).
It seems to me it is not an abuse of discretion to conclude
that a Department of the Army-trained SARC who has interviewed
more than one thousand sexual assault victims would have
specialized knowledge about common victim behaviors. The
reliability of her testimony depends on knowledge and
experience, not methodology or theory. All the more so when the
military judge limited her testimony to three questions the
answers to which were necessarily based on specialized knowledge
drawn from informed observation as opposed to specialized
scientific or technical methods. He directed trial counsel to
ask Ms. Falk only “whether or not . . . most victims put up a
fight or not; scream or not; and who their first report is made
to, law enforcement or not law enforcement.” Significantly, Ms.
Falk did not testify that the behavior of the victim was
consistent with that of the victims she had interviewed.
The majority nonetheless concludes that the military judge
abused his discretion. Their principal objection appears to be
that Ms. Falk was not an “expert in rape trauma syndrome,” but
9
United States v. Flesher, No. 13-0602/AR
the military judge did not admit her testimony on that basis. 3
Flesher, __ M.J. at __ (24). Neither is there a requirement
that she be one. The majority also concludes the military judge
erred by not conducting a Daubert analysis. Id. at __ (20-21).
But Ms. Falk was not offering scientific evidence. She was
offering experiential evidence -- specialized knowledge -- based
on thousands of victim interviews. Her testimony did not
involve the introduction of a “theory or technique” that “can be
(and has been) tested” and “subjected to peer review and
publication” or has a “known or potential rate of error.”
Daubert, 509 U.S. at 593-94.
Daubert itself emphasized that the factors were neither
exclusive nor dispositive. Id. at 593. In addition, the
Advisory Committee’s note to the 2000 amendment to Federal Rule
of Evidence 702 recognized that not all Daubert factors apply to
every type of expert. Fed. R. Evid. 702 advisory committee’s
note. In Kumho, the Court held that the Daubert factors might
be applicable in assessing the reliability of nonscientific
expert testimony, but that determination would depend on “the
particular circumstances of the particular case at issue.” 526
3
While I recognize, as the American Psychiatric Association
(APA) does, that sexual assault is a traumatic event that may
lead to posttraumatic stress disorder, I do not use the term
“rape trauma syndrome” because the APA has not listed it as an
illness in the Diagnostic and Statistical Manual of Mental
Disorders. Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 463-68 (text rev. 4th ed. 2000).
10
United States v. Flesher, No. 13-0602/AR
U.S. at 150. Ms. Falk was the type of expert who, rather than
providing an opinion, provided testimony intended to educate the
trier of fact about certain factual issues raised in the case.
For this type of expert, the federal rule requires only that (1)
the witness have the requisite qualifications to give expert
testimony, (2) the testimony address a subject matter as to
which the witness can be of help to the trier of fact, (3) the
proposed testimony be reliable, and (4) the proposed testimony
fit the facts of the case. See 4 Weinstein’s Federal Evidence,
§ 702.02[3] (2d ed. 2014). Ms. Falk testified as to what the
individuals with whom she had had contact reported to her about
their emotional and physical responses to sexual assault. Thus,
given the defense theory of the case that the victim had
consented to sexual intercourse with Appellant, in addition to
Ms. Falk’s training and experience, her testimony was helpful to
the members.
Assists the Factfinder. The third and final question the
Houser test asks is whether the testimony will assist the
members as factfinders. The answer to this question largely
hinges on the analysis in Houser regarding counterintuitive
behavior. 36 M.J. at 400. The fact is the military judge
strictly limited Ms. Falk’s testimony. In the context of this
case, in which the defense implied the victim did not act like a
“real” victim, I do not believe the military judge erred by
11
United States v. Flesher, No. 13-0602/AR
allowing the Government to offer the specialized knowledge of a
SARC who had assisted thousands of victims of sexual assault
since she could assist the factfinder in assessing defense
counsel’s argument. And, of course, Ms. Falk’s testimony was
not offered in a vacuum.
D. Prejudice
Even if the military judge erred, Appellant was not
prejudiced. Defense counsel’s own expert witness, Christina
Thomas, a Sexual Assault Nurse Examiner and emergency department
nurse, served as an adequate counterweight to Ms. Falk. Her
education and experience matched and arguably exceeded that of
Ms. Falk. Ms. Thomas testified that “people respond to trauma
or stressors in all the ways of the emotional spectrum. There
is no typical way for someone to react.” Combined with Ms.
Falk’s testimony, Ms. Thomas’s testimony made clear to the
members that although many victims of sexual assault respond
with behaviors that are often counterintuitive to the public’s
expectations, they do not all react alike. She conveyed to the
members that there is no single, “correct” response to sexual
assault.
Defense counsel also cross-examined Ms. Falk and elicited
from her an acknowledgment that as a victim advocate, she was
required to believe the victim’s accusation of sexual assault.
The members were thus aware of Ms. Falk’s position and function.
12
United States v. Flesher, No. 13-0602/AR
They were not left with the impression that she was capable of
evaluating the truth of a victim’s claim. Her testimony merely
reflected her own experience and the consensus of the academic
research on sexual assault that a victim’s fear, shame, and
guilt commonly result in his or her failure to report the crime
immediately. The members, therefore, were provided the proper
context in which to evaluate the victim’s credibility.
Finally, the 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.
For the foregoing reasons, I respectfully dissent.
13
United States v. Flesher, No. 13-0602/AR
RYAN, Judge (dissenting):
Contrary to the majority’s conclusion, the military judge
abandoned his role as a gatekeeper in the first instance.
Nonetheless, I agree with Chief Judge Baker that there was no
prejudice. I respectfully dissent.
A.
The framework for evaluating expert testimony is well
established. “M.R.E. 702 dictates the admissibility of expert
testimony.” United States v. Sanchez, 65 M.J. 145, 149
(C.A.A.F. 2007). “Interpreting the analogous Fed. R. Evid. 702
in Daubert[ v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)],
the Supreme Court . . . made clear that the trial court has a
‘gatekeeping’ role.” Id. (quoting Daubert, 509 U.S. at 589).
It is incumbent upon trial judges to “‘ensure that any and all
scientific testimony . . . is not only relevant, but reliable.’”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting
Daubert, 509 U.S. at 589). No less is required when evaluating
expert testimony that is not based on science. This obligation
is necessary because expert witnesses have “testimonial latitude
unavailable to other witnesses on the ‘assumption that the
expert’s opinion will have a reliable basis in the knowledge and
experience of his discipline.’” Id. at 148 (quoting Daubert,
509 U.S. at 592). Thus, where expert “testimony’s factual
basis, data, principles, methods, or their application are
United States v. Flesher, No. 13-0602/AR
called sufficiently into question . . . the trial judge must
determine whether the testimony has ‘a reliable basis in the
knowledge and experience of [the relevant] discipline.’” Id. at
149 (second alteration in original) (quoting Daubert, 509 U.S.
at 592).
Although a military judge “must have considerable leeway”
to decide how to test an expert’s reliability and whether an
expert’s testimony is sufficiently reliable, id. at 152, a
military judge does not have the “discretion to abandon the
gatekeeping function.” Id. at 158-59 (Scalia, J., concurring).
When a military judge properly exercises his role as a
gatekeeper, we review the military judge’s rulings regarding the
admission of expert testimony for an abuse of discretion.
United States v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999); see
also Kumho, 526 U.S. at 154. Nevertheless, it is necessary to
“review de novo the question whether the military judge properly
followed the Daubert framework” in performing its role as a
gatekeeper. Griffin, 50 M.J. at 284; see also United States v.
Roach, 582 F.3d 1192, 1206 (10th Cir. 2009) (“‘[W]e review de
novo the question of whether the district court applied the
proper standard and actually performed its gatekeeper role in
the first instance. We then review the trial court’s actual
application of the standard in deciding whether to admit or
2
United States v. Flesher, No. 13-0602/AR
exclude an expert’s testimony for an abuse of discretion.’”)
(alteration in original) (emphasis added) (citation omitted). 1
B.
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. While it is
certainly true that the military judge “need not ‘recite the
Daubert standard as though it were some magical incantation,’”
where, as here, a party objects to potential expert testimony,
the military judge “must adequately demonstrate by specific
findings on the record that it has performed its duty as
gatekeeper.” Goebel v. Denver & Rio Grande W. R.R. Co., 215
F.3d 1083, 1088 (10th Cir. 2000) (citation omitted). Without
this type of record development, “it is impossible on appeal to
determine whether the [military judge] carefully and
meticulously review[ed] the proffered [expert] evidence or
1
Several circuit courts apply a similar approach. See, e.g.,
Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 805 (7th Cir.
2013); Smith v. Jenkins, 732 F.3d 51, 64 (1st Cir. 2013); Elcock
v. Kmart Corp., 233 F.3d 734, 745 (3d Cir. 2000); Pride v. BIC
Corp., 218 F.3d 566, 578 (6th Cir. 2000).
3
United States v. Flesher, No. 13-0602/AR
simply made an off-the-cuff decision to admit the expert
testimony.” Id. (second alteration in original) (citation
omitted) (internal quotation marks omitted).
The only on-the-record discussion of Ms. Falk’s expertise
did not focus on Ms. Falk’s qualifications and reliability;
rather, it focused on the conclusions the military judge
expected Ms. Falk to reach based on the testimony of other
experts in other cases. For example, the military judge
observed:
Defense, based on my experience all these experts will say
some [victims] scream, some don’t, some delay reporting,
some report immediately, and I would think that the
government’s expert would admit all that on cross-
examination. . . . [W]here I have seen this, is that the
government more usually feels compelled to present that
evidence so when they stand up and argue to the panel
that’s not unusual for someone not to scream . . . . They
feel compelled to present that evidence so that they don’t
get the objection from the defense saying, hey, those are
facts not in evidence.
This approach is plainly contrary to the Daubert framework,
which requires the focus “be solely on principles and
methodology, not on the conclusions that they generate.” See
509 U.S. at 594–95. Moreover, under the Daubert framework, the
military judge’s actual task is “to decide whether this
particular expert had sufficient specialized knowledge to assist
the jurors in deciding the particular issues in the case.”
Kumho, 526 U.S. at 156 (emphasis added) (citations omitted)
(internal quotation marks omitted). Had he done so, it should
4
United States v. Flesher, No. 13-0602/AR
have been plain, for the reasons identified by the majority,
see, e.g., United States v. Flesher, __ M.J. __, __ (25-27)
(C.A.A.F. 2014), that Ms. Falk would not provide the kind of
counterintuitive behavior testimony we have endorsed in other
cases, see, e.g., United States v. Pagel, 45 M.J. 64, 68
(C.A.A.F. 1996), 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.” 2 For, in essence, the sole basis for Ms. Falk’s
testimony was that she had encountered thousands of putative
victims -- and believed them.
The majority acknowledges these and other shortcomings in
the military judge’s review of Ms. Falk’s reliability, see
Flesher, __ M.J. at __ (20, 26, 28-32, 34–35) (emphasizing the
2
To be sure, a sexual assault response coordinator is a proper
and useful role, but this job title neither defines an area of
recognized expertise nor alone qualifies Ms. Falk as an expert.
Ms. Falk’s limited voir dire established little beyond the fact
that she is likely too closely tied to those for whom she
advocates to be either neutral or detached, let alone either
scientific or helpful as contemplated by M.R.E. 702. I do not
disagree with either the majority, Flesher, __ M.J. at __ (22-
23), or Chief Judge Baker, id. at __ (6-7, 11) (Baker, C.J.,
dissenting), that expert testimony on counterintuitive behaviors
of sexual assault victims may, in certain cases, be relevant and
helpful to the trier of fact. See Houser, 36 M.J. at 398. It
is paramount, however, that the military judge provide some
indication on the record that he applied the appropriate legal
framework in carrying out an individualized review of the
particular “expert” witness’s reliability, and area of
expertise.
5
United States v. Flesher, No. 13-0602/AR
military judge’s failure to create a record or inquire into the
Houser factors), yet inexplicably concludes that “the military
judge did perform an adequate, if not exemplary, preliminary
gatekeeping inquiry.” Id. at __ (21). Without any indication
in the record that the military judge properly applied the
relevant law, I simply cannot agree. The standards for
gatekeeping and admissibility are low, 3 but they are not
nonexistent -- a military judge engaging in no inquiry under the
applicable law, even though asked to, and relying entirely on
past experts who testified in other cases, is not enough.
Accordingly, I would find that the military judge erred by
abdicating his gatekeeping duty to evaluate the reliability of
Ms. Falk’s purportedly “expert” testimony. Nevertheless, for
all the reasons stated by Chief Judge Baker, I agree that there
was no prejudice in this case.
I respectfully dissent.
3
The military judge’s abdication of his gatekeeping role by
failing to apply the appropriate legal standard also implicates
an abuse of discretion in admitting Ms. Falk’s testimony. See
United States v. Avitia-Guillen, 680 F.3d 1253, 1257 n.3 (10th
Cir. 2012) (“When a district court neglects its gatekeeping
function, it commits two errors. First, it commits error,
reviewable de novo, by not making a reliability determination.
Second, it abuses its discretion when it admits the expert
testimony without a reliability determination.”).
6