United States v. Burris

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.

Before
J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
Appellate Military Judges

UNITED STATES OF AMERICA

v.

D. W. B. 1
SERGEANT MAJOR (E-9), U.S. MARINE CORPS

NMCCA 201400359
Review Pursuant to Article 62(b), Uniform Code of Military Justice,
10 U.S.C. § 862(b)

Military Judge: Col M.B. Richardson, USMC.
Convening Authority: Commanding General, 1st Marine
Division (Rein), Camp Pendleton, CA.
For Appellant: LT Ann E. Dingle, JAGC, USN; LT James M.
Belforti, JAGC, USN.
For Appellee: LT Jessica L. Ford, JAGC, USN.

26 February 2015

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PUBLISHED OPINION OF THE COURT
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BRUBAKER, Judge:

This case is before us on an interlocutory appeal by the
United States under Article 62, Uniform Code of Military
Justice, 10 U.S.C. § 862, and RULE FOR COURTS-MARTIAL 908, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.). The appellee is currently
charged with sodomy with a child under the age of 12 and two
specifications of indecent acts with a child in violation of
Articles 125 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 925 and 934.

1
The name of the appellee has been withheld from this opinion to protect the
privacy interests of the alleged victim, whose identity would otherwise be
apparent.
 In this appeal, we grapple with a complex and controversial
topic: the admissibility of a witness’s testimony regarding
memories recovered through a psychotherapeutic approach known as
Eye Movement Desensitization and Reprocessing (EMDR). In a
pretrial motion, the appellee sought to exclude the testimony of
KB, the alleged victim in this case, asserting her memories of
abuse surfaced only after undergoing EMDR in a manner that
tainted KB’s memories and rendered them unreliable. The
military judge, after receiving briefs from both parties and
conducting a “Daubert-type” 2 hearing, granted the motion and
ordered KB’s testimony suppressed. The Government filed a
timely written notice of appeal. It asserts the military judge
abused his discretion by applying a scientific standard to lay
testimony.

After carefully considering the superbly litigated record,
the military judge’s findings of fact and conclusions of law,
and the submissions of the parties, we find the military judge
did not abuse his discretion in concluding that KB’s testimony
was the product of a tainted and highly suggestive psychological
process, and therefore inadmissible.

Jurisdiction

Both parties agree that we have jurisdiction to act on this
interlocutory appeal. Article 62(a), UCMJ, provides that in a
court-martial in which a punitive discharge may be adjudged, the
United States may, so long as it files timely notice, appeal an
order or ruling by a military judge which “excludes evidence
that is substantial proof of a fact material in the proceeding.”
Those criteria are plainly met here.

Background

KB is the biological daughter of the appellee and LB, the
appellee’s wife until their divorce in 2002. KB was two years
old when her parents divorced. LB and the appellee thereafter
shared custody of KB.

When KB was around seven years old, she began experiencing
stomach and anxiety problems. Around 2011, medical doctors, who
had been unable to find a physical cause, recommended
psychological treatment. KB cycled through at least two other
psychologists —— without any allegations of abuse surfacing ——

2
Appellate Exhibit XXXVI at 1 (referencing Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993)).
2
before starting treatment with Dr. Bhattacharya around November
2012. At that time, KB was about 12 years old. LB researched
and found Dr. Bhattacharya in part because of her specialization
in dealing with children who see spirits and ghosts, something
KB had been experiencing. 3

Dr. Bhattacharya incorporated spiritual aspects into her
practice, including psychic abilities, ghosts, crystal therapy,
and resources and treatment for “Indigo 4/Crystal/Star
people/Rainbow population.” 5 She herself, she advertised, was
“an Indigo who evolved to Crystal phase” and was “clairvoyant,
clairsentient, clairaudient, and claircognizant.” 6 Dr.
Bhattacharya asserted the ability to distinguish between
patients who were seeing visions as a result of psychosis versus
“true angels/clairvoyan[ts]/clairaudients.” 7 She asserted KB was
an indigo child and encouraged her to trust in what she saw,
felt, and heard, and to explore her psychic gift.

Dr. Bhattacharya and KB expressed they had “shared flashes” 8
where they saw the same vision at the same time. During one
session, KB had a vision of ghosts of her grandfather and
others; Dr. Bhattacharya indicated she too saw the same three
ghosts and described one. Later, KB brought in a family
photograph and Dr. Bhattacharya pointed to the one she had seen
in the vision. KB indicated that was her grandfather’s best
friend.

From very early in KB’s life, LB suspected the appellee was
sexually abusing their daughter. According both to LB’s
testimony and KB’s forensic interview, 9 LB frequently asked KB

3
KB described it as hearing voices and seeing “shadows.” Record at 280.
4
According to exhibits offered in the record, the term “indigo person” refers
to the color of a person’s electromagnetic field. Those classified as indigo
are said to be, among other characteristics, “[i]ntuitive or psychic,
possibly with a history of seeing angels or deceased people.” AE XVII at 99.
5
Id. at 95.
6
Id. at 97.
7
Record at 99-100.
8
Id. at 107.
9
KB contradicted her forensic interview during her testimony at the hearing,
indicating her mother had never informed her of or asked questions about any
suspicions of abuse. As the military judge found, however, this appears to
be contrary to all other evidence on this point.
3
after visitation with her father whether anything “weird” 10 or
“awkward” 11 had happened while with her father. In fact, KB
indicated this would happen every time she got back from
visiting the appellee. KB thought it was “really weird” 12 that
her mother was asking her that; KB “kept asking [LB] why she was
asking me that.” 13 LB would reply that the appellee had been
investigated for doing “things” 14 to other people but did not
provide more detail. KB indicated, however, that about “a year
ago or so” 15 (from the forensic interview of 16 September 2013),
she learned from her mother more specifically that the appellee
had been investigated for “doing things” 16 to the children of
another ex-wife, adding, “That’s always been in the back of my
mind, like I never really thought about it.” 17

LB also shared her suspicions with Dr. Bhattacharya. In
December 2012, she told Dr. Bhattacharya about the prior
investigation and provided her a copy of a Naval Criminal
Investigative Service (NCIS) investigation into the
allegations. 18 She also related specific stories to Dr.
Bhattacharya indicating she suspected the appellee had sexually
abused KB from the time KB was a toddler in diapers.

Dr. Bhattacharya incorporated EDMR into her therapy with
KB. EMDR is a psychotherapeutic approach developed after its
founder, Dr. Francine Shapiro, discovered in 1987 that eye
movement appeared to reduce negative emotion associated with
distressing memories. It is an eight-phase process, one of
which is “desensitization,” where the therapist engages the
subject in bilateral stimulation of the brain: the subject is
told to focus on the negative thought or trauma while
simultaneously focusing on a repetitive external stimulus. The
most common stimulus is eye movement, where the subject moves

10
AE XVII at 93, 94.
11
Id. at 94.
12
Id. at 93.
13
Id.
14
Id.
15
Id.
16
Id.
17
Id.
18
These allegations, dating back to the mid-1990s, were never prosecuted.
4
his or her eyes back and forth following the therapist’s fingers
or an electronic display, but can include other external stimuli
such as tapping or auditory tones. The clinician then
“instructs the client to let his/her mind go blank and to notice
whatever thought, feeling, image, memory, or sensation comes to
mind.” 19 In EMDR, a subject remains in an associative state ——
aware of one’s present surroundings —— distinguishing it from
hypnosis, where a subject is put into a trance-like state of
altered consciousness.

Dr. Bhattacharya held several EMDR sessions with KB,
initially focusing on other issues, such as processing KB’s
grief regarding the loss of her grandfather. Later, however,
therapy became focused on KB’s discomfort with the appellee. In
a session conducted in approximately July or August 2013, Dr.
Bhattacharya had KB focus on why she felt uncomfortable around
her father and where in her body she felt pain while KB followed
Dr. Bhattacharya’s fingers. As she did this, KB experienced a
“flash” of memory in which she recalled being sexually abused by
her father when she was approximately seven years old. KB
described being called into a room by the appellee, being on a
bed with him, him sitting on her chest and placing something
into her mouth, and experiencing pain. According to KB, Dr.
Bhattacharya told KB she saw this vision as well. At the
hearing, Dr. Bhattacharya denied this.

Shortly after the session, Dr. Bhattacharya told LB that KB
had made disclosures of sexual abuse. According to LB, she
asked KB for details, but initially KB would not talk about it.
A short time went by, during which LB and KB believe another
EMDR session occurred. According to LB, she brought the topic
up a lot with KB until, in a heated confrontation, KB finally
told LB that the appellee had sexually assaulted her and
provided further details.

KB claims she always had thoughts “in [her] head” 20 that
something happened between herself and the appellee, but it was
nothing specific and that prior to the July/August 2013 EMDR
session, she had no conscious memory of any abuse. 21

19
AE XVII at 109.
20
Record at 272.
21
Id. at 298.

5
 Two experts testified at the hearing on the motion to
suppress KB’s testimony. Ms. Gilman, a licensed marriage and
family therapist with extensive experience and training in EMDR,
testified for the Government. She explained that EMDR has been
the subject of numerous studies and is internationally
recognized and approved as a valid and successful form of
therapy, particularly for Post-Traumatic Stress Disorder (PTSD),
anxiety, and other trauma. Organizations recognizing it include
the American Psychiatric Association, the U.S. Department of
Veteran Affairs, the Department of Defense, the World Health
Organization, and many others. The EMDR International
Association, of which Ms. Gilman was the president for a year,
is a professional organization that offers training,
certification, and protocols for the proper use of EMDR.

Ms. Gilman said EMDR activates an intrinsic system,
possibly the same used during rapid eye movement sleep, to help
patients process information that previously had been
“logjam[med]” 22 due to trauma. Unprocessed fragments of
information can lead to adverse effects such as “intrusive
thoughts and images, negative beliefs and disturbing body
sensations.” 23 EMDR helps link these fragments, integrate them
in a healthy manner, and eliminate or reduce symptoms of post-
traumatic stress.

Ms. Gilman found amnesia in trauma patients common and that
EMDR can help a patient make linkages in his or her memory. The
focus of EMDR, however, is clinical, not forensic. Therefore,
while clinicians are taught to believe in the validity of
whatever may come up during EMDR —— meaning that the patient
actually is making that linkage —— substantiating evidence would
be necessary to assess the historic accuracy of a particular
memory. While she asserted the process of EMDR does not produce
false memories, it has the potential to link memories not
actually linked in reality. Further, Ms. Gilman stated that
parents and clinicians can influence and perpetuate the
interpretation of a memory.

Ms. Gilman, having reviewed Dr. Bhattacharya’s work with
KB, testified that she had concerns about the way EMDR was
applied in this case, specifically: (1) whether Dr. Bhattacharya
adequately explained the process of EMDR to KB in order to
prepare and “stabilize” her; (2) that Dr. Bhattacharya’s
previous unconventional discussion of spiritual realms and
22
Id. at 337.
23
Id. at 336.
6
entities with KB is outside established protocol for the use of
EMDR and diminishes the validity of the method; and, (3) the
risk of perceived validation 24 of KB’s recall through the
spiritual discussions and by making comments that communicate
“this is accurate” as opposed to “it’s okay, keep going.”
Finally, Ms. Gilman explained that in situations where a client
leaves an EMDR session still vulnerable to the recall of
undiscovered memories outside the therapy session, the insertion
of another influential person (such as LB) could impact the
associations formed by the client while still under the
influence of the EMDR session.

The defense called Dr. Younggren, a forensic psychologist
with expertise in the realm of memory, specifically traumatic
memory. He first addressed the malleability and potential
contaminants of memory in general and, contradicting Ms. Gilman,
expressed that amnesia is rare in trauma cases. He stated that,
while sometimes unable to retrieve details, people generally
remember core events, in other words, they have at least a “gist
memory” 25 that, for example, they were sexually assaulted.

Dr. Younggren reaffirmed EMDR’s known effectiveness in the
treatment of PTSD, but challenged Ms. Gilman’s assertion that
EMDR does not produce false memories. He explained that any
therapy could produce false memories, and that these memories
can be “valid” in the emotional sense that the patient believes
them to be true, but not “valid” in the sense the memory is
factually accurate. In support of that notion, Dr. Younggren
cited the official position of the American Psychological
Association that people can develop complex memories for
experiences that never actually happened. Dr. Younggren stated
EMDR is more likely to retrieve details peripheral to a gist
memory (such as physical characteristics of an assailant) than a
gist memory itself (such as that a person was sexually
assaulted). He stated he was unable to find any scientific
literature supporting the notion that EMDR is effective in
accurately retrieving gist memories of traumatic events.

Dr. Younggren also provided his opinion on the treatment
applied in this case. While conceding that EMDR did not make
KB’s testimony per se inaccurate, he was highly critical of Dr.

24
Ms. Gilman described “perceived validation” as a client’s misinterpretation
of a clinician’s movements or words as approval of what the client has
reported due to an unduly familiar relationship or previous shared experience
with that clinician.
25
Record at 404.
7
Bhattacharya’s practices: “The EMDR might’ve been done exactly
properly, but there’s so much role conflict and loss of
objectivity and unprofessional conduct in this [case] that I’m
stunned.” 26 He expressed that integrating psychic abilities and
spiritual aspects into psychotherapy, whether one believes in
those phenomena or not, is outside mainstream psychology and is
“a confusion of roles that we have strict prohibitions
against.” 27 Dr. Younggren explained that the potential issues of
suggestibility and validation of KB’s own memories by Dr.
Bhattacharya may have led to the contamination of those
memories. He emphasized that therapists gathering information
from children must adhere to a certain protocol or risk damage
through the manner of their questioning. Dr. Younggren
expounded on this protocol, saying that clinicians should not
ask suggestive or leading questions, must be neutral and not
integrate supplementary information so that the child can
provide his or her own narrative, and should avoid repeating
questions because doing so risks a child’s perception that their
first answer was incorrect.

Analysis

We review a military judge’s decision to admit or exclude
evidence for an abuse of discretion. United States v. Sanchez,
65 M.J. 145, 148 (C.A.A.F. 2007). We will not set aside a
discretionary determination unless we have “a definite and firm
conviction that the court below committed a clear error of
judgment in the conclusion it reached upon a weighing of the
relevant factors.” United States v. Houser, 36 M.J. 392, 397
(C.M.A. 1993) (citation omitted). When ruling on admissibility
of scientific evidence, “[t]his standard ‘applies as much to the
trial court's decisions about how to determine reliability as to
its ultimate conclusion.’” Sanchez, 65 M.J. at 149 (quoting
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). A
military judge abuses his discretion when: (1) the findings of
fact upon which he predicates his ruling are not supported by
the evidence of record; (2) he fails to properly follow the
appropriate legal framework; or (3) his application of the
correct legal principles is clearly erroneous. United States v.
Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010).

26
Id. at 412.
27
Id.
8
 I. Legal Framework

MILITARY RULE OF EVIDENCE 104, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), requires a military judge to decide preliminary
questions about whether evidence is admissible. The parties,
while not disputing this, disagree on the appropriate legal
framework the military judge should have applied in deciding the
preliminary question of admissibility of KB’s testimony.

The Government argues the military judge misapplied a legal
framework germane to expert witnesses, grounded in MIL. R. EVID.
702, Daubert, and Houser, to analyze admissibility of “factual
testimony of a lay witness,” 28 which, it asserts, is governed
only by rules of relevance, unfair prejudice, and competence
under MIL. R. EVID. 401, 403, and 601. It argues, in short, that
whether and by what method a witness’s memory may have been
recovered or refreshed goes strictly to the weight of the
testimony, not admissibility.

This is a logical argument and generally true. Witnesses
with personal knowledge of the matter at issue are presumed
competent to testify. MIL. R. EVID. 601-02. This rule is
intended to be expansive and “to provide court members with the
greatest amount of arguably reliable evidence possible, with the
expectation that court members can decide the appropriate weight
to be given imperfect witnesses.” SALTZBURG, SCHINASI AND SCHLUETER,
MILITARY RULES OF EVIDENCE MANUAL, § 601.02[3] (7th ed., Matthew Bender
& Co. 2011).

MIL. R.EVID. 702 insists on reliability as a condition for
admissibility, but on its face applies to opinion evidence by
expert witnesses. The leading Supreme Court and U.S. Court of
Appeals for the Armed Forces cases addressing scientific
evidence —— Daubert and Houser —— interpret and apply MIL. R.
EVID. 702 and its close Federal analogue; hence, while both
require a reliability determination before admitting scientific
evidence and provide factors for a trial judge to consider, they
too on their face apply to expert witnesses. Daubert, 509 U.S.
at 592-94; Houser, 36 M.J. at 397.

To further bolster its argument, the Government cites
United States v. Geiss, 30 M.J. 678 (A.F.C.M.R. 1990). There,
the Air Force Court of Military Review addressed whether the
military judge erred by denying a defense motion to suppress a
sexual assault victim’s testimony because it was unreliable and

28
Appellant’s Brief of 28 Oct 2014 at 10-11.
9
tainted by suggestive Government practices. Affirming, the
court held that “evidence of suggestive questioning or coercive
pretrial interviews goes to the credibility of a witness rather
than to the admissibility of testimony.” Id. at 681.

The appellee counters that Geiss did not involve testimony
based on memory recovered through a scientific process —— a
critical distinction from the case at bar. He asserts KB’s
memories of abuse were the direct result of EMDR and that the
accuracy of her recollection cannot be separated from the
underlying method by which the previously-repressed memories
were recovered. He states that “[b]ecause the genesis of [KB’s]
memories was the result of a psychological process, it was
proper for the military judge to require a hearing into the
reliability of the underlying procedure that led to their
recall.” 29 This is aptly stated and we agree.

In 1923, the Court of Appeals for the D.C. Circuit held
that testimony to the results of a precursor to the modern
polygraph machine was inadmissible, enunciating what for decades
was to be the “dominant standard” 30 for assessing admissibility
of scientific evidence: “[W]hile courts will go a long way in
admitting expert testimony deduced from a well-recognized
scientific principle or discovery, the thing from which the
deduction is made must be sufficiently established to have
gained general acceptance in the particular field in which it
belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
1923).

Seventy years later, the Supreme Court held the Frye
“general acceptance” test was superseded by the intervening
FEDERAL RULE OF EVIDENCE 702. 31 Daubert, 509 U.S. at 587-88.
Interpreting the Rule, the Court abolished the “general
acceptance” test as no longer “an absolute prerequisite to
admissibility.” Id. at 588. The court nonetheless emphasized
that displacement of the Frye test by the FEDERAL RULES OF EVIDENCE
“does not mean, however, that the Rules themselves place no
limits on the admissibility of purportedly scientific evidence.
Nor is the trial judge disabled from screening such evidence.
29
Appellee’s Answer of 13 Nov 2014 at 9.
30
Daubert, 509 U.S. at 585.
31
FEDERAL RULE OF EVIDENCE 702 provided: “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.”
10
To the contrary, under the Rules the trial judge must ensure
that any and all scientific testimony or evidence admitted is
not only relevant, but reliable.” Id. at 589 (emphasis added)
(footnote omitted).

A key question, then, is whether a lay witness’s testimony
to memories recovered through EMDR constitutes “scientific
evidence” and is therefore subject to a pre-admissibility
reliability determination. In addressing this, we wade into
what the military judge aptly called “a fierce debate.” 32

As a relatively new procedure, no military cases and very
few civilian cases address EMDR at all, let alone the issue
presented here. There is, nevertheless, a significant body of
law addressing the admissibility of memories recovered through
other psychological processes —— most prevalently hypnosis,
which has a far longer history.

There are, concededly, important distinctions between
hypnosis and EMDR. Hypnosis involves placing a subject in an
altered state of consciousness while EMDR is designed to keep
the subject in an associative state, or a state of full
consciousness. Also, hypnosis is frequently used as a
deliberate tool to aid subjects with their memory, whereas while
EMDR may lead to memory recovery as a side effect, its main
purpose is to assist subjects in processing an already-
remembered trauma.

Still, there are shared concerns with both hypnosis and
EMDR: (1) An increase in suggestibility, that is, suggestions or
impressions from a therapist or an outside authority figure may
pollute the process and affect a patient’s memory; (2)
Validation: a therapist’s verbal or non-verbal responses may
lead a patient to believe the therapist has affirmed the factual
accuracy of a thought or memory; and, (3) Memory hardening where
a patient cements a memory in his or her mind as factual truth
after believing it has been validated through a psychological
process.

More importantly, differences between EMDR and other
psychological processes weigh more toward a court’s analysis of
an outcome —— whether and to what degree a distinct process is
reliable —— than the threshold question of whether reliability
of a psychological process is even relevant to admissibility.
We thus find cases addressing hypnosis and other processes

32
AE XXXVI at 9.
11
highly probative to this threshold question and begin by
examining them.

Courts addressing the admissibility of testimony regarding
memories recovered or enhanced through psychological processes
fall into three broad categories: (1) those finding testimony
regarding memories enhanced or recovered through a particular
psychological process per se inadmissible; (2) those finding
such testimony admissible subject to a case-by-case in limine
determination of reliability; and (3) those finding such
testimony per se admissible, i.e., that the fact that a witness
may have recovered memories in whole or in part through a
scientific process goes only to credibility and weight, not
admissibility.

Per Se Inadmissibility

Many jurisdictions hold that hypnosis as a general matter
fails a Daubert (or, in older cases, Frye) reliability analysis,
and accordingly, witnesses are per se barred from testifying to
memories recovered during or after hypnosis. For example, the
Supreme Court of Alaska (addressing a strikingly similar
contention to that made by the Government here) stated:

The state argues that the Frye test is only
applicable to expert testimony regarding the
reliability of information obtained through a
scientific technique and is not meant to apply to the
testimony of a previously hypnotized witness. In our
view, the state's reading of Frye is unduly narrow.
The principles and policies supporting the Frye test
apply equally to hypnotically adduced lay testimony.
Further, Frye is applicable because lay testimony that
is dependent upon hypnosis cannot be logically
dissociated from the underlying scientific technique.

Contreras v. State, 718 P.2d 129, 134 (Alaska 1986). Further,
the court noted, “Nearly every court that has considered the
contention that Frye does not apply to hypnosis has rejected
it.” Id. at 134 (citations omitted). Then, applying Frye, the
court held that hypnosis is not sufficiently reliable, rejected
a case-by-case approach, and held that testimony related to
post-hypnosis memory was inadmissible per se. Id. at 137-38.
That same court later overturned Contreras, but only to the
extent that it replaced the Frye standard with the newer Daubert
standard while leaving the per se exclusion intact. State v.
Coon, 974 P.2d 386 (Alaska 1999).

12
 The Illinois Supreme Court, in adopting the per se
inadmissibility rule, cited Alaska’s decision favorably: “The
Contreras court . . . appropriately recognized that hypnosis is
a technique which elicits scientific evidence and cannot
properly be distinguished from other forms of scientific
evidence simply because the subject provides the testimony
rather than the ‘scientist.’” People v. Zayas, 131 Ill. 2d 284,
294 (Ill. 1989).

Numerous other jurisdictions, applying similar rationale,
have adopted a per se rule of inadmissibility (although
sometimes with exceptions such as for criminal defendants or for
pre- or post-therapy memories that can be shown to be
independent of the process). See State v. Lopez, 181 Ariz. 8,
10 (Ariz. 1994); Partin v. State, 885 S.W.2d 21, 23 (Ark. 1994);
People v. Alcala, 842 P.2d 1192, 1208 (Cal. 1992); State v.
Atwood, 479 A.2d 258, 264 (Conn. Super. Ct. 1984); State v.
Davis, 490 A.2d 601, 605 (Del. Super. Ct. 1985); Stokes v.
State, 548 So.2d 188, 196 (Fla. 1989); State v. Moreno, 709 P.2d
103, 105 (Haw. 1985); Daniels v. State, 528 N.E. 2d 775, 777
(Ind. 1988), vacated on other grounds by Daniels v. Indiana, 491
U.S. 902 (1989); State v. Haislip, 701 P.2d 909, 926 (Kan.
1985); State v. Culpepper, 434 So.2d 76, 83 (La. Ct. App. 1982);
State v. Collins, 464 A.2d 1028, 1044 (Md. 1983); People v.
Reese, 385 N.W.2d 722, 724 (Mich. Ct. App. 1986); State v.
Patterson, 331 N.W.2d 500, 504 (Neb. 1983); State v. Moore, 902
A.2d 1212, 1227 (N.J. 2006); State v. Baker, 451 S.E.2d 574,
590-91 (N.C. 1994); State v. Munson, 886 P.2d 999, 1003 (Okla.
Crim. App. 1994); Commonwealth v. Mehmeti, 500 A.2d 832, 834
(Pa. Super. Ct. 1985); State v. Tuttle, 780 P.2d 1203, 1211
(Utah 1989); Hall v. Commonwealth, 403 S.E.2d 362, 370 (Va. Ct.
App. 1991).

Here, however, is where the differences between hypnosis
and EMDR are relevant: these courts arrive at their sweeping
conclusion that post-hypnotic testimony is per se inadmissible
due to their particular concerns with hypnosis. Such concerns
may not be so heightened with respect to the reliability of
EMDR. 33

33
See, e.g. Stalcup v. State, 311 P.3d 104, 111 (Wyo. 2013) (finding a lower
court erred by ruling that expert testimony about EMDR failed Daubert’s
reliability prong: “To the contrary, the testimony showed that EMDR therapy
has been tested through actual use in the field and is accepted as an
effective, efficient and reliable technique for treating trauma.”).
13
Case-by-Case Reliability Determination

Many other jurisdictions eschew a per se rule but require a
trial judge, upon appropriate motion, to conduct a hearing to
determine the reliability of memories enhanced or recovered
through a psychological process before admitting them. Notably,
one of our sister service courts falls into this camp. United
States v. Harrington, 18 M.J. 797, 802-03 (A.C.M.R. 1984). See
also Mersch v. City of Dallas, 207 F.3d 732, 735 (5th Cir.
2000); Boykin v. Leapley, 28 F.3d 788, 794 (8th Cir. 1994);
Beachum v. Tansy, 903 F.2d 1321, 1326 (10th Cir. 1990); Chamblee
v. State, 527 So.2d 173, 177 (Ala. Crim. App. 1988); People v.
Romero, 745 P.2d 1003, 1016 (Colo. 1987); State v. Joblin, 689
P.2d 767, 770-71 (Idaho 1984); State v. Seager, 341 N.W.2d 420,
431 (Iowa 1983); Roark v. Commonwealth, 90 S.W.3d 24, 36 (Ky.
2002); Rodriguez v. State, 345 N.W.2d 781, 786 (Minn. Ct. App.
1984); Alexander v. State, 610 So.2d 320, 326-27 (Miss. 1992);
State v. Hungerford, 142 N.H. 110, 133 (N.H. 1997); State v.
Varela, 817 P.2d 731, 733-34 (N.M. Ct. App. 1991); People v.
Lozado, 620 N.Y.S.2d 32, 33 (N.Y. App. Div. 1994); State v.
Johnston, 529 N.E.2d 898, 905 (Ohio 1988); State v. Medrano, 127
S.W.3d 781, 783 (Tex. Crim. App. 2004); State v. Adams, 418
N.W.2d 618, 624 (S.D. 1988); State v. Yapp, 726 P.2d 1003, 1006
(Wash. Ct. App. 1986); State v. Beard, 461 S.E.2d 486, 503
(W.Va. 1995); State v. Armstrong, 329 N.W.2d 386, 394 (Wis.
1983), reh’g granted on other grounds, 700 N.W.2d 98 (Wis.
2005).

These courts, however, differ on the standards for making
that determination.

Procedural Safeguards

Some assess reliability by requiring procedural safeguards.
The Army’s Harrington case provides an example. It held that
“hypnotically-refreshed testimony satisfies the Frye standard
and is admissible in a criminal trial if the use of hypnosis in
that case was reasonably likely to result in recall comparable
in accuracy to normal human memory.” Harrington, 18 M.J. at 802
(citation omitted). Following the influential New Jersey
Supreme Court case of State v. Hurd, 432 A.2d 86 (N.J. 1981), 34
the Army court went on to place the burden on the proponent of
the evidence to demonstrate by clear and convincing evidence

34
Later overturned in favor of a per se rule of inadmissibility. Moore, 902
A.2d at 1227.
14
that the hypnotic procedure complied with the following
procedures:

(1) the interview should be conducted by an
independent psychiatrist or psychologist experienced
in the use of hypnosis;

(2) the psychiatrist or psychologist should not be
regularly employed by the prosecution or defense;

(3) any information concerning the case which is
revealed to the hypnotist by either party must be
recorded in some manner, preferably by videotape;

(4) a detailed statement from the witness should be
obtained prior to the hypnotic session;

(5) all contact between the hypnotist and the subject must
be recorded; and

(6) only the hypnotist and the subject should be present
during any phase of the hypnotic session.

Harrington, 18 M.J. at 802-03.

Finally, the court stated that strict compliance with every
safeguard was neither a guarantee nor a prerequisite for
admissibility. Instead, “[i]f adequate compliance is shown, the
military judge must go one step further. He must determine
whether the hypnotically-refreshed testimony carries sufficient
indicia of reliability by examining the testimony in light of
its internal consistency and the facts already known about the
alleged incident.” Id. at 803.

Totality of the Circumstances

Other courts conduct their case-by-case admissibility
determinations using a totality of the circumstances test. The
Supreme Court of New Hampshire adopted this approach in State v.
Hungerford, 142 N.H. 110 (N.H. 1997), a case relied upon by the
military judge in this case and cited by the appellee. There,
in two consolidated cases, the court considered the
admissibility of memories recovered, notably, through
psychotherapeutic techniques other than hypnosis (including
“visualization” and “inner child therapy”). Hungerford, 142
N.H. at 115. It too found cases addressing hypnosis helpful in
its analysis and held “that, when challenged, testimony that

15
relies on memories which previously have been partially or fully
repressed must satisfy a pretrial reliability determination.”
Id. at 120. It reasoned that previously repressed memories
cannot be separated from a psychotherapeutic process used to
recover them and that the phenomenon of recovering memories
through such a process is outside the understanding of the
ordinary juror. Hence, “[t]he trial court’s gatekeeping power
on questions of the admissibility of scientific evidence is the
most appropriate procedural tool for evaluating this sort of
evidence.” Id. at 119. It adopted a “case-by-case approach,
tempered with skepticism,” id. at 122, and delineated factors
for trial courts to consider in assessing the reliability of
recovered memories, id. at 125-26.

Borawick v. Shay, 68 F.3d 597 (2d Cir. 1995) provides
another example. There, the U.S. Court of Appeals for the
Second Circuit addressed the admissibility of testimony to
hypnotically-derived memory. While a civil case, the Borawick
court freely cited criminal cases and we likewise find the
distinction of no moment to our analysis; evidence derived from
a psychological process in either a civil or criminal context
implicates the same underlying constitutional and evidentiary
concerns (if not more acutely so in a criminal case). Borawick,
indeed, has important similarities to the case at bar as it
addresses: (1) a process used in the course of psychotherapy, as
opposed to the many cases addressing a process used expressly as
an investigative aid; and (2) a situation where the hypnosis was
not “specifically directed to the witness's recollections of
known events,” but rather “where repressed memories of past
traumas previously unknown simply emerge following hypnosis.”
Id. at 606. Despite this, the court found a case-by-case
reliability determination was required, explaining that while it
acknowledged the strength of the arguments that these
distinctions lessened concerns about suggestibility and
ultimately reliability, “the fact remains that the literature
has not yet conclusively demonstrated that hypnosis is a
consistently effective means to retrieve repressed memories of
traumatic, past experiences accurately.” Id. at 606-07.

The Second Circuit found the district court was therefore
correct to assess reliability on a case-by-case basis, but
rejected a procedural safeguards test as being “too rigid and
restrictive.” Id. at 607. It instead adopted the totality of
the circumstances approach, offering lower courts a non-
exclusive list of factors to consider. The court placed the
burden of persuasion on the proponent of the evidence and
provided the following guidance: “After consideration of all of
16
the relevant circumstances, the trial court should weigh the
factors in favor and against the reliability of the hypnosis
procedure in the exercise of its discretion whether to admit the
post-hypnotic testimony.” Id. at 608.

Other courts adopting a totality of circumstances approach
include: Mersch, 207 F.3d at 732; Bundy v. Dugger, 850 F.2d
1402, 1415 (11th Cir. 1988); McQueen v. Garrison, 814 F.2d 951
(4th Cir. 1987); Beck v. Norris, 801 F.2d 242, 244 (6th Cir.
1986); Sprynczynatyk v. General Motors Corp., 771 F.2d 1112,
1122-23 (8th Cir. 1985); Roark v. Commonwealth, 90 S.W.3d 24
(Ky. 2002); State v. Johnston, 529 N.E.2d 898 (Ohio, 1988);
Medrano, 127 S.W.3d at 783; State v. Armstrong, 329 N.W.2d 386
(Wis. 1983), reh’g granted on other grounds, 700 N.W.2d 98 (Wis.
2005).

Per Se Admissibility

We are then left with a relatively small number of
jurisdictions that adopt what amounts to the Government’s
position —— that whether and in what manner a previously
irretrievable memory is recovered is a matter of weight, not
admissibility. See United States v. Awkard, 597 F.2d 667, 669
(9th Cir. 1979); State v. Brown, 337 N.W.2d 138 (N.D. 1983);
State v. Jorgensen, 492 P.2d 312 (Or. Ct. App. 1971); State v.
Glebock, 616 S.W.2d 897, 904-05 (Tenn. Crim. App. 1981);
Haselhuhn v. State, 727 P.2d 280, 284 (Wyo. 1986).

Yet even among those jurisdictions, at least one —— the
U.S. 9th Circuit —— has what amounts to an escape clause to this
doctrine. In Awkard, in enunciating its rule that the fact of
hypnosis is a matter of credibility, not admissibility, it
nevertheless noted:

We have suggested procedures to be followed during
hypnosis to ensure that posthypnosis statements are
truly the subject’s own recollections. . . .
Objections to the subject testimony on the ground that
such procedures were not followed should be heard by
the district judge before trial, or out of the
presence of the jury on voir dire of the witness. If
the trial court overrules the objection and permits
the subject to testify, the adverse party may, if it
wishes, expose the details of the hypnosis to the
jury.

17
Awkard, 597 F.2d at 669, n.2 (emphasis added) (citation
omitted).

This certainly puts an asterisk on what on its face would
appear to be a rule of per se admissibility. As the highlighted
text emphasizes, a trial judge in the 9th Circuit thus retains
discretion, under the right circumstances, to hear and to grant
a motion to exclude a witness’s testimony based on suggestive
procedures used during hypnosis.

A vast majority of jurisdictions thus fall into either the
per se exclusion or the case-by-case reliability camp —— either
way finding that a judicial determination of reliability of a
psychological process through which memories are derived is a
precondition to admissibility.

The U.S. Supreme Court has not yet had occasion to speak
directly on the matter presented, but in Rock v. Arkansas, 483
U.S. 44 (1987), it addressed the constitutionality of Arkansas’s
per se rule of inadmissibility of hypnotically-refreshed
testimony as applied to a criminal defendant who wished to
provide such testimony in her own defense. This is of course
distinguishable from the question at bar: whether a defendant’s
rights are violated when the Government presents testimony to
memories recovered or enhanced by a psychological process that
has not been shown to be reliable. It nevertheless provides the
Supreme Court’s analysis of the broader question of
admissibility of hypnotically-recovered memories and thus merits
close attention.

The Government reads Rock as supporting its proposition
that the proper mechanism for testing the reliability of KB’s
memories is not an admissibility determination, but reliance
upon the “more traditional means” 35 of cross-examination, defense
experts, and cautionary instructions. We read Rock quite
differently. The Court’s issue is not with reliability as a
precondition for admissibility, but with a per se rule
precluding a defendant from testifying to her post-hypnotic
memories without any opportunity to demonstrate reliability.
The Arkansas rule did not allow a case-by-case reliability
determination, but instead prohibited such testimony “without
regard to the reasons for it, the circumstances under which it
took place, or any independent verification of the information
it produced.” Rock, 483 U.S. at 56. This left “a trial judge
no discretion to admit this testimony, even if the judge is

35
Rock, 483 U.S. at 60.
18
persuaded of its reliability by testimony at a pretrial
hearing.” Id. at 56, n.12 (emphasis added) (citation omitted).

The Court acknowledged that hypnosis “may lead to the
introduction of inaccurate memories,” id. at 59, but noted that
“[t]he inaccuracies the process introduces can be reduced,
although perhaps not eliminated, by the use of procedural
safeguards[,]” id. at 60. “Such guidelines,” it continued, “do
not guarantee the accuracy of the testimony, because they cannot
control the subject's own motivations or any tendency to
confabulate, but they do provide a means of controlling overt
suggestions.” Id. at 60-61. It is here (to put the
Government’s reference to “traditional means” into context) that
the Court states, “[t]he more traditional means of assessing
accuracy of testimony also remain applicable in the case of a
previously hypnotized defendant,” id. at 61 (emphasis added),
such as corroborating evidence, cross-examination, expert
testimony, and jury instructions.

The court’s conclusion is most telling:

A State’s legitimate interest in barring unreliable
evidence does not extend to per se exclusions that may
be reliable in an individual case. Wholesale
inadmissibility of a defendant's testimony is an
arbitrary restriction on the right to testify in the
absence of clear evidence by the State repudiating the
validity of all posthypnosis recollections. The State
would be well within its powers if it established
guidelines to aid trial courts in the evaluation of
posthypnosis testimony and it may be able to show that
testimony in a particular case is so unreliable that
exclusion is justified. But it has not shown that
hypnotically enhanced testimony is always so
untrustworthy and so immune to the traditional means
of evaluating credibility that it should disable a
defendant from presenting her version of the events
for which she is on trial.

Id. at 61 (emphasis added).

Significantly, the four-justice dissent noted “the
inherently unreliable nature” 36 of hypnotically-induced testimony
and that they would have affirmed the Arkansas Supreme Court’s

36
Id. at 62 (Rehnquist, C.J., dissenting).

19
determination that such testimony was always inadmissible. All
nine justices thus acknowledge the relevance of reliability to a
determination of admissibility of hypnotically-derived testimony
and differ only on whether per se inadmissibility as applied to
a criminal defendant was too blunt an instrument to pass
constitutional muster. Far from supporting the Government’s
position, Rock provides compelling support for the proposition
that when it comes to admissibility of memories recovered from a
psychological process, reliability matters. 37

Adopting a Totality of Circumstances Approach

Having carefully considered the matter, we hold that memory
recovered by means of a formal psychological process is the
product of a scientific process and therefore subject to a
baseline reliability determination as a precondition to
admissibility. We are mindful that Daubert, Houser, and MIL. R.
EVID. 702 apply expressly to expert witness testimony and that no
specific rule of evidence dictates this. Nevertheless, law and
logic persuade us that the Government may not avoid a military
judge’s scrutiny of a psychological process by which a memory is
recovered by having a lay witness testify to the result of that
process. Undergirding constitutional principles reaching back
to Frye and extant today apply with equal force to lay testimony
obtained through, and potentially polluted by, a scientific
process. These principles include an accused’s right to a
fundamentally fair trial under the Due Process Clause of the 5th
Amendment and, under certain circumstances, his 6th Amendment
right of confrontation. 38

In determining whether there is adequate reliability to
warrant admissibility, we adopt the totality of the
circumstances approach, largely tracking the 2nd Circuit’s
approach in Borawick. Therefore, testimony dependent upon

37
The majority could have simplified its analysis considerably had it
believed that a witness’s prior hypnosis is strictly a matter of weight, not
admissibility. It did not fashion a rule of per se admissibility that the
Government seeks here even for a criminal defendant.
38
See, e.g., McQueen, 814 F.2d at 958, n.15 (citing both 5th and 6th
Amendment concerns; “where a witness’ recall concerning all or most of the
details of a crime has been hypnotically enhanced, possibly injected into the
trial is a question of whether the defendant’s due process rights were
violated because the use of hypnotically enhanced testimony may have resulted
in a fundamentally unfair trial.”); Wicker v. McCotter, 783 F.2d 487, 493
(5th Cir. 1986)(“Under some circumstances, hypnosis may render a witness so
positive, so certain, that effective cross-examination is impossible.”
(Footnote omitted)).
20
memory that has been enhanced or recovered through EMDR is
admissible when, based on a totality of the circumstances, it is
reasonably likely that the memories are at least as reliable as
ordinary human memory. Once properly raised, the proponent of
the evidence bears the burden of persuasion by a preponderance
of the evidence. In weighing the circumstances, the military
judge should consider the following non-exclusive factors:

(1) The qualifications and experience of the person
administering the procedure;

(2) The purpose of the procedure, whether used as a
criminal investigative aid, intended to recover
memories, or a by-product of a therapeutic procedure.
There is a greater danger of suggestibility in the
former two, while there is a lesser danger in the
last;

(3) The circumstances surrounding application of the
psychological procedure and the recovery of memories,
including whether the subject received any
suggestions, implicit or explicit, from the expert or
others and whether the expert knowingly or unknowingly
affirmed in the subject’s mind the factual accuracy of
the recovered memories;

(4) The presence or absence and quality of a permanent
record of the EMDR sessions to assist the court in
ascertaining whether suggestive procedures were used and
the results of the procedure;

(5) Expert evidence offered by the parties as to the
reliability of the procedures used in the case; and,

(6) Whether independent corroborating evidence exists to
support the reliability of the recovered memories.

This test is intended to be flexible. It is the military
judge’s bottom-line duty, as gatekeeper, to ensure that such
evidence is sufficiently reliable to pass constitutional muster.

II. Application to Present Case

The military judge, applying the undergirding principles of
Daubert, conducted a hearing to assess the reliability of KB’s
EMDR-derived testimony based on a totality of the circumstances.
This, as we have held, was the correct legal framework. We

21
move, then, to the military judge’s application of that
framework to the facts of this case —— at this point according
him greater deference and only reversing if his predicate
findings of fact are not supported by the evidence or his
application of the correct legal principles is clearly
erroneous. Ellis, 68 M.J. at 344.

The military judge’s findings of fact upon which he
predicated his ruling are supported by the record. To assess
his conclusions, we apply the military judge’s findings of fact
to the factors we have laid out:

(1) Dr. Bhattacharya is reasonably qualified and
experienced in the therapeutic use of EMDR. She
conceded, however, that her background and focus were
not forensic: she had no training in forensic
psychology and no familiarity with standards or
procedures that would be applied in a forensic
setting.

(2) The purpose of the procedure in this case was
therapeutic, not investigative, which as we have
stated typically militates toward less danger of
suggestibility. Yet here, the purpose of EMDR was not
to assist a subject in processing some previously-
known traumatic event, a purpose to which EMDR is well
suited. Instead, it was to try to determine why KB
experienced general discomfort with the appellee when
she had no present existing memory of any abuse by
him. Given that the therapist was aware that the
appellee had allegedly sexually abused KB as a young
child as well as other children, the purpose of
conducting EMDR on KB to determine the source of her
discomfort with her father becomes of greater concern
and the danger of suggestibility increases.

(3) The conditions under which Dr. Bhattacharya conducted
her psychotherapy were severely suggestive. The military
judge summed it up neatly:

In the case at bar we have the following:

- a troubled teenager who has long been the subject of
repeated suggestive questioning by her mother about
suspected abuse;

22
 - who had consistently denied such suggestions of
abuse to both her mother and her step-mother for
years, and who oddly now fails to recall any such
questioning altogether;

- who had no conscious memory or recall of any sexual
abuse prior to the EMDR;

- who sought out a psychologist because of her
advertised ability to treat those experiencing
problems with the paranormal;

- who experienced shared flashes of seeing ghosts with
her psychologist;

- who for the very first time recalled a 6 to 8 year
old memory of sexual abuse when she was herself
between 6 to 8 years of age while undergoing EMDR, and
in which she believes her psychologist “shared” her
memory; and,

- who left treatment that day only to be repeatedly
interrogated by her mother until she finally told her
mother enough to get her to stop asking questions;

- who was actively looking for a means of not having
to spend any further time with her father —— an end
result that she successfully achieved with this
allegation; 39 coupled with

- A psychologist who eventually —— after lengthy
cross-examination —— admitted that she was aware of
the mother’s suspicions of sexual abuse, and even had
a copy of the NCIS investigation prior to the EMDR
treatment; and,

- The testimony of two expert witnesses —— Ms. Gilman
(for the government) and Dr. Younggren (for the
defense) who both testified that there were major

39
The relevance of this finding of fact is not whether there may have been a
motive to fabricate. The analysis at this stage is only whether her memory
is at least as reliable as ordinary memory, which is always subject to such
considerations; an alleged motive to fabricate would indeed be a matter for a
fact-finder to assess. Still, an indication that a subject may have had a
predisposition to believing an allegation may feed into the larger analysis
of a subject’s vulnerability to suggestiveness.

23
 violations of proper EMDR and psychotherapy treatment
in this case that called into serious doubt the
accuracy of any resulting memory. 40

(4) There were no video or voice recordings and only
sketchy, incomplete notes available to the court as
permanent records of Dr. Bhattacharya’s EMDR sessions
to assist in determining whether, and to what extent,
suggestive procedures were used.

(5) Both experts, Government and defense, raised
significant concerns with the therapist’s application
of psychotherapy in this case, calling the reliability
of resulting recovered memories into serious question.

(6) There is scant corroborating evidence to support
the reliability of the recovered memories. We agree
with the military judge that KB’s ability to recall
details of the appellee’s house or vehicle at the time
of the alleged abuse does not indicate the accuracy of
the memory of abuse. Further, the 20-year-old
allegations of abuse of two other children lacks the
factual similarity necessary to constitute sufficient
corroborating evidence as an indicator of accuracy.

Given the totality of the circumstances, the military judge
did not abuse his discretion in finding the evidence unreliable
and therefore granting the motion to suppress KB’s testimony.

Conclusion

The Government’s appeal is DENIED. The military judge’s
ruling is affirmed and the record of trial is returned to the
Judge Advocate General for remand to the convening authority and
delivery to the military judge for further proceedings.

Senior Judge MCFARLANE and Judge HOLIFIELD concur.

For the Court

R.H. TROIDL
Clerk of Court

40
AE XXXVI at 11.
24