United States v. Fields

Opinion of the Court

COOK, Judge:

Appellant was convicted by a general court-martial of extortion and assault consummated by a battery in violation of Articles 127 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 927 and 928, respectively. We granted review to determine whether the military judge improperly re*28stricted defense counsel’s examination of a defense witness.

The Government’s primary witness was the victim, Private Kapsalis, who testified the appellant struck him and, shortly thereafter, uttered a threat, in an attempt to obtain money from him. On cross-examination, Private Kapsalis acknowledged he had worked as an informant for the CID, had been a member of a drug rehabilitation program, and had previously sold and purchased drugs. Additionally, he responded in the affirmative when asked if the CID had requested his assistance in an attempt to “get” the appellant.

In a further effort to impeach ’Private Kapsalis, the defense called one witness pri- or to findings. Specifically, this witness noted he had a bachelor’s and master’s degree in psychology, with a specialized degree in counseling.1 He further related he was employed by the Department of the Army in the Alcohol and Drug Control Program. In this capacity he had previously had personal contacts with Private Kapsalis, mostly from group therapy sessions. After obtaining a response from the witness indicating Private Kapsalis lacked credibility, the trial defense counsel attempted to question the witness as to Private Kapsalis’ “emotional problem” and its effect on his veracity. The military judge then indicated counsel’s questions must be confined to Private Kapsalis’ reputation for truth and veracity and whether the witness would believe Private Kapsalis under oath. Subsequently, the witness testified he would not believe Private Kapsalis under oath, but he did not testify as to his emotional problem.

On appeal the appellant submits the witness was a qualified expert who should have been permitted to testify as to any underlying “emotional problem” of the Government’s witness and its effect on his truth and veracity. We disagree.

A witness’ credibility may be impeached by showing he has a bad reputation for truth and veracity, and a person who testifies as to such character may be asked if he would believe the witness under oath. Paragraphs 138f(l) and 153h(2)(a), Manual for Courts-Martial, United States, 1969 (Rev.). Normally, however, a witness’ character for truth and veracity may not be shown by specific incidents.2 In the present case the defense witness was permitted to testify he would not believe the Government witness under oath, and, thus, there has been compliance with the aforementioned Manual provisions.

In United States v. Hodges, 14 U.S.C.M.A. 23, 33 C.M.R. 235 (1963), a Government psychiatrist testified as to the psychiatric classification of a prosecution witness and the capacity of such a person to tell the truth. Because the defense had previously presented similar evidence, the Court did not decide the limits, if any, of expert testimony related to the issue of credibility. There continues to be a split of authority in various jurisdictions as to whether and under what circumstances such evidence is admissible. See United States v. Silva, 37 C.M.R. 803 (A.F.B.R.1966); Annot., 20 A.L. R.3d 684 (1968). See generally Fed.R.Ev. 701-702. Furthermore, while some courts have precluded psychologists from testifying on the issue of sanity, others have reached an opposite conclusion. See An-not., 78 A.L.R.2d 919 (1961).3 However even where such testimony has not been automatically excluded, the question of admissibility has not been resolved on the witness’ title as psychologist. Rather, an inquiry has been made to ascertain the witness’ experience and his degree of competency as to the matter in issue, and this determination is within the discretion of the trial judge. See United States v. Riggle*29man, 411 F.2d 1190 (4th Cir. 1969); Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637 (1962). In United States v. Hagelberger, 3 U.S.C.M.A. 259, 12 C.M.R. 15 (1953), the Court held that review of a trial judge’s determination as to whether a witness may testify as an expert is limited to whether the ruling constitutes an abuse of discretion.

We deem it unnecessary in the present case, as in United States v. Hodges, supra, to decide the limits, if any, of expert testimony related to the issue of credibility because the record clearly supports the trial judge’s exclusion of the testimony. As previously noted the defense witness testified he had a master’s degree in psychology with a specialized degree in counseling. His experience was limited to his employment in a drug rehabilitation program. There is no evidence that he was capable, either by training or experience, of recognizing or diagnosing a specific mental defect, disease, derangement or character trait and its effect on the ability of a person to tell the truth. Appellant’s attempt to elicit testimony as to Private Kapsalis’ “emotional problem” necessarily required the witness to identify and classify such character trait and its effect on Kapsalis’ veracity. Here, there was no demonstration on the record that the witness was qualified to make the requested classification and to further testify as to the characteristics of the perceived character trait. Thus, the defense inquiry was directed toward a mental classification or opinion requiring some degree of expertise which could not have been attained by the mere observation of the behavior of Private Kapsalis. While the Court was divided in United States v. Wilson, 1 M.J. 325 (1976), as to the degree of expertise attained by a witness from his observations of the routine employed by a pawn shop in maintaining its records, the present case involved more than an opinion derived from visual observation, but required a further opinion as to a character trait which necessarily included a professional mental classification. Since the required expertise was not demonstrated in the record, the inquiry was improper.

Indeed, the present case is not unlike United States v. Adkins, 5 U.S.C.M.A. 492, 18 C.M.R. 116 (1955), where the Court held that testimony as to an intelligence agent’s opinion of the veracity of homosexuals was improper. While expressing some reservations as to whether anyone could qualify as an expert in view of the state of the knowledge on the matter, the Court held that the inquiry was directed toward an area requiring expertise and the witness had not been qualified as an expert. See paragraph 138e, MCM. In the present case, the inquiry was also directed toward an area requiring expertise without qualifying the witness as an expert. Under the circumstances, we conclude that the military judge did not abuse his discretion in rejecting the witness as an expert.

Finally, even if there had been an abuse of discretion in the present ease, such an error must be tested for prejudice. United States v. Wright, 17 U.S.C.M.A. 183, 37 C.M.R. 447 (1967). In view of the damaging evidence elicited from Private Kapsalis on cross-examination as to his involvement in illicit drugs and an attempt to “get” the appellant, the exclusion of testimony from a psychologist relating to Private Kapsalis’ “emotional problem” was not prejudicial to appellant where the psychologist was permitted to testify he would not believe Private Kapsalis under oath. The additional evidence as to an “emotional problem” would have been insignificant under such circumstances.

The decision of the United States Army Court of Military Review is affirmed.

Judge PERRY concurs.

. Although the record reflects this witness stated he was a psychiatrist, this appears to be a typographical error as his qualifications related solely to the field of psychology.

. United States v. Turner, 5 U.S.C.M.A. 445, 18 C.M.R. 69 (1955); United States v. Haimson, 5 U.S.C.M.A. 208, 17 C.M.R. 208 (1954). See United States v. Griggs, 13 U.S.C.M.A. 57, 32 C.M.R. 57 (1962). But see Fed.R.Ev. 608(b).

. We note the present case does not involve the sanity of the Government witness but merely an “emotional problem.”