United States v. Houser

WISS, Judge

(concurring):

I fully concur in the principal opinion and write only to comment on two aspects of it.

Analogizing testimony regarding rape-trauma syndrome to testimony about child sexual abuse, see United States v. Suarez, 35 MJ 374 (CMA 1992); United States v. Nelson, 25 MJ 110 (CMA 1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982 (1988), the principal opinion concludes that evidence of rape-trauma syndrome is not necessarily limited to rebuttal * and may be introduced during the *401prosecution’s case-in-chief. That is not an issue here, since Dr. Remer’s testimony came in during the prosecution’s case-in-chief but in obvious rebuttal to implications raised during the defense’s earlier cross-examination of the prosecutrix. See n. 1, supra. However, I have no quarrel with that conclusion. Cf Estelle v. McGuire, — U.S. -,---, 112 S.Ct. 475, 483-84, 116 L.Ed.2d 385 (1991).

I do caution, though, that relevance of testimony on rape-trauma syndrome seems to be limited to issues of whether there was consent and whether a rape did, in fact, occur. See McCord, The Admissibility of Expert Testimony Regarding Rape Trauma Syndrome in Rape Prosecutions, 26 B.C.L.Rev. 1143, 1197 (1985), cited in United States v. Carter, 26 MJ 428, 429 (CMA 1988). Where one or the other or both are in dispute in the trial, it would seem unimportant when, during the trial, such expert testimony was offered. If, however, the trial revolves solely around the identity of the rapist, for example, the military judge should be especially cautious to ensure that the marginal probative value of rape-trauma-syndrome testimony under those circumstances is not “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members____” Mil.R.Evid. 403, Manual for Courts-Martial, United States, 1984. See United States v. Hebert, 35 MJ 266, 270 (CMA 1992) (Wiss, J., concurring in part and in the result); United States v. Warren, 6 USCMA 419, 423, 20 CMR 135, 139 (1955).

As to the defense argument that Dr. Remer’s testimony should be excluded because she had not personally seen or treated the prosecutrix, it seems to me that there is a good deal of logic to the suggestion offered by the Army Court of Military Review in United States v. Carter, 22 MJ 771, 773 n. 3 (1986), that reflects the contrary view as follows:

We believe the better practice would be to have the treating medical personnel testify as to the victim’s emotional, physical and mental state and have another individual, properly qualified as an expert, testify as to the various aspects of rape trauma syndrome and whether the victim’s symptoms are consistent with rape trauma syndrome.

Such an expert, appropriately distanced from the alleged victim, is in a position to offer truly objective assistance for the fact-finders, with a substantially reduced risk of a subconscious suggestion creeping into the testimony that the expert believes the victim.

By "rebuttal," the principal opinion apparently means both the prosecution’s case in rebuttal, following the defense's case-in-chief, as well as testimony during the prosecution's case-in-chief *401that follows — and rebuts — evidence elicited during cross-examination by the defense. See United States v. Peel, 29 MJ 235, 240 (CMA 1989), cert. denied, 493 U.S. 1025, 110 S.Ct. 731, 107 L.Ed.2d 750 (1990).