United States v. Buenaventura

CRAWFORD, Judge

(dissenting):

I dissent because the majority opinion undermines the rape shield law in the United States and departs from the requirement that the defense establish the legal relevance, logical relevance, and reliability of its evidence.

As the majority notes, the defense at numerous sessions sought to introduce evidence of a second abuser based on various theories including: substitution, transference, cross-modal memory, recency, and integration. An additional theory offered was that the victim suffered from post-traumatie stress disorder, an “injury” within the meaning of Mil. R.Evid. 412(b)(2)(A), Manual for Courts-Martial, United States (1994 ed.).

Relevance and Reliability

In a unanimous opinion of this Court, we summarized the “analytical model” for evaluating “admissibility of expert testimony”— United States v. Combs, 39 MJ 288, 290 n. 1 (CMA 1994): Under this approach, the evi*81dence must be logically relevant, legally relevant, and reliable. See United States v. Houser, 36 MJ 392, 399 (CMA 1993). As noted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595, 113 S.Ct. 2786, 2797-98, 125 L.Ed.2d 469 (1993), the litmus test is the evidence’s “relevance and reliability.” See also Montana v. Egelhoff, — U.S. -, -, -, 116 S.Ct. 2013, 2017, 2024, 135 L.Ed.2d 361 (1996). This requires the proponent to establish the validity of the underlying theory of unconscious transference to appellant of the facts relating to any episodes with the grandfather.

No evidence was offered by the defense as to the validity of the underlying theory of transference, cross-modal memory, integration, etc. Thus, the judge properly exercised his role as the “gatekeep[er]” in excluding the evidence. Daubert, 509 U.S. at 597, 113 S.Ct. at 2798-99. There is no Sixth Amendment right to introduce evidence unless it is legally relevant, logically relevant, and reliable. Montana v. Egelhoff, supra; Davis v. Alaska, 415 U.S. 308, 320, 94 S.Ct. 1105,1112, 39 L.Ed.2d 347 (1974); Chambers v. Mississippi 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). The judge should not remain passive when the parties have neglected to establish the requisite relevance and reliability. United States v. Ferdinand, 29 MJ 164, 167 (CMA 1989) (“judge is not merely a passive observer”); United States v. Graves, 23 USCMA 434, 437, 50 CMR 393, 396 (1975) (“The trial judge is more than a mere referee....”); United States v. Wilson, 7 USCMA 713, 716, 23 CMR 177, 180 (1957); ABA Standards, The Function of the Trial Judge, Introduction at 3 (Approved Draft 1972) (“the judge is not ... a mere functionary”).

Rape Shield Rule

The majority’s theory that post-traumatic stress disorder is an “injury” within the meaning of Mil.R.Evid. 412(b)(2)(A) runs contrary to Congressional intent. See United States v. Shaw, 824 F.2d 601, 607 (8th Cir.1987); J. Weinstein & M. Berger, Weinstein’s Evidence ¶412[01] at 412-16 to 17 (1992). The case cited by the majority, United States v. Begay, 937 F.2d 515 (10th Cir. 1991), is contrary to the position advanced. In Begay, the prosecution “relied heavily” on the testimony of the expert that there was physical injury to the victim. 937 F.2d at 520 and 521 n. 8.