False Accusations of Sexual Assault in the Military & Why Are They So Common?
Trial judges decide preliminary questions concerning the relevance, propriety and necessity of expert testimony, the qualification of expert witnesses, and the admissibility of his or her testimony. See Rule 104(a).
United States v. Warner, 62 M.J. 114 (2005), the CAAF held “Article 46 is a clear statement of congressional intent against government exploitation of its opportunity to obtain an expert vastly superior to the defense’s.” Where the government provides itself with a top expert, it must provide a reasonably comparable expert to the defense.
United States v. Lee, 64 M.J. 213 (2006), commenting on Warner and Article 46, CAAF held the playing field is even more uneven when the
government benefits from scientific evidence and expert testimony and
the defense is denied a necessary expert to prepare for and respond to the
government’s expert. Arguably, Warner and Lee can be read together to
give the defense a much stronger argument for not only the need for an
expert witness (especially if the government has an expert), but the need
for a particular expert witness (or one comparable to the government’s
United States v. McAllister, 64 M.J. 248 (2007), the issue on appeal was:
Whether the appellant’s right to present his defense was violated when
he was prevented from employing and utilizing a necessary DNA expert
at his trial? The CAAF answered the question in the affirmative. Had
the military judge granted the defense request for a PCR expert, the
members would have heard testimony about the discovery of DNA from
three previously unidentified individuals. The defense could have used
this evidence to attack not only the thoroughness of the original test, but
the weight that the members should have given to the government’s
expert testimony. Additionally, the CAAF believed the new evidence
would have changed the evidentiary posture of the case. At trial, the
defense had nothing to contradict the character of the government’s DNA
evidence which excluded all known suspects other that the appellant.
The DNA evidence, according to the CAAF, was the linchpin of the
government’s case. The additional evidence from TAI was hard
evidence that someone other than the appellant, or any other known
suspect, was in physical contact with the victim at or near the time of her
death. It was error for the military judge to have denied the defense
request for an additional expert and retesting of the government’s
sample. The CAAF concluded that this evidence could have raised a
reasonable doubt as to guilt. As such, the CAAF held that the appellant
was deprived of his constitutional right to a fair hearing as required by
the Due Process Clause. The error in denying the defense request for
expert assistance was not harmless beyond a reasonable doubt. As such,
the findings of guilt with regards to the unpremeditated murder and the
sentence were set aside.
In United States v. Houser, 36 M.J. 392 (1993) the CAAF set out six factors that
a judge should use to determine the admissibility of expert testimony. Although
Houser is a pre-Daubert case, it is consistent with Daubert, and the CAAF
continues to follow it. See United States v. Griffin, 50 M.J. 278, 284 (1999) and
United States v. Billings, 61 M.J. 163 (2005). They are:
Qualified Expert. To give expert testimony, a witness must qualify as an
expert by virtue of his or her “knowledge, skill, experience, training, or
education.” See Rule 702
Proper Subject Matter. Expert testimony is appropriate if it would be
“helpful” to the trier of fact. It is essential if the trier of fact could not
otherwise be expected to understand the issues and rationally resolve
them. See Rule 702.
Proper Basis. The expert’s opinion may be based on admissible evidence
“perceived by or made known to the expert at or before the hearing” or
inadmissible hearsay if it is “of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences upon the subject.
. . .” The expert’s opinion must have an adequate factual basis and
cannot be simply a bare opinion. See Rule 702 and 703.
Relevant. Expert Testimony must be relevant. See Rule 402.
Reliable. The expert’s methodology and conclusions must be reliable.
See Rule 702.
Probative Value. The probative value of the expert’s opinion, and the
information comprising the basis of the opinion must not be substantially
outweighed by any unfair prejudice that could result from the expert’s
testimony. See Rule 403.