Expert Testimony
Expert Testifying about False Allegations of Child Sexual Abuse - An expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; however, an expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused. It was error to admit expert testimony from which the court members could infer that there was a 1 in 200 chance that the allegations of child victims of sexual assault were false. United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010)
Daubert Factors
The five factors include:
404 (b)
Reynolds Test - Normally modus operandi is only relevant to identity. Prior similar acts should not be admitted until issue that evidence relates to is clearly in controversy.
1. Does the evidence reasonably support a finding that the accused committed the prior acts?
2. What fact of consequence is made more or less probable?
3. Is the probative value substantially outweighed by the danger of unfair prejudice.
Talismanic Incantation - A “shotgun” application of rule governing admissibility of other crimes evidence is abhorred and the court will not accept the “talismanic incantation” of the words motive, intent, plan or design, modus operandi, etc., with nothing more; trial counsel should be prepared to articulate on the record the particular purpose or purposes for which the evidence is admissible and why that evidence is important relative to other evidence the government has available on that issue. Military Rules of Evid., Rule 404(b). Peterson, 20 M.J. 806.
Old acts - Uncharged acts from 20 years before not admissible to show common plan. McDonald, 59 M.J. 426.
Modus Operandi - Modus operandi evidence, a basis of logical relevancy under military rule governing the admission of other acts evidence, is usually only relevant to prove identity. Military Rules of Evid., Rule 404(b). The Court of Appeals of the Armed Forces tests the logical relevancy of prior acts evidence for modus operandi under military rule governing other acts evidence by employing a six factor analysis and looks to (1) the relationship between victims and appellant, (2) the ages of the victims, (3) the nature of the acts, (4) the situs of the acts, (5) the circumstances of the acts, and (6) the time span. Military Rules of Evid., Rule 404(b). Dairo, 75 M.J. 867.
Motive Evidence - Motive evidence shows the doing of an act by a particular person by evidencing an emotional need in that person which could have incited or stimulated that person to do that act in satisfaction of that emotion. Whitner, 51 M.J. 457.
Evidence of motive is relevant to show doing of act by person as outlet for that emotion, but prior acts of misconduct must be the type which reasonably could be viewed as the expression and effect of the existing internal emotion, and this same motive must be shown to have existed in accused at time of subsequently charged acts. Watkins, 21 M.J. 224.
Doctrine of Chances - To avail oneself of the doctrine of chances to support admission of “other acts,” the proponent of the evidence must show that the “other acts” are sufficiently similar to the charged acts; otherwise, there is too great a risk that minor similarities will be used to bootstrap prior acts into courts-martial, with all the attendant risks that members will infer the accused is a bad person or convict on the basis of the prior act. Military Rules of Evid., Rule 404(b). Tyndale, 56 M.J. 209.
412
Cross-examination regarding extramarital affairs relevant and material. US v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011)
Evidence of a prior accusation of sexual assault is only admissible if the prior accusation is shown to be false; this is true whether the defense seeks to introduce the evidence as an exception to MRE 412, or to show the alleged victim’s modus operandi, motive, or character evidence for lack of truthfulness. United States v. Erickson, 76 M.J. 231 (C.A.A.F. 2017)
Accused was entitled to cross-examine the victim, his wife, about her relationship with another man and about her phone call to that man immediately after the underlying rape incident, where appellant wanted to establish that the relationship with the man was a motive for the victim to fabricate the rape allegation. Cross-examination of this man may have established a motive for the victim to fabricate her allegation of rape, and the military judge erred in excluding this cross-examination. United States v. Roberts, 69 M.J. 23 (C.A.A.F. 2010)
Counterintuitive Behaviors
Expert testimony cannot be used solely to bolster the credibility of the government’s fact-witnesses by mirroring their version of events; and a military judge must distinguish between an expert witness whose testimony about behaviors of sexual assault victims that are subject to widely held misconceptions will be helpful to the trier of fact, and an expert witness whose testimony will simply mirror the specific facts of the case and serve only to bolster the credibility of a crucial fact witness. United States v. Flesher, 73 M.J. 303 (C.A.A.F. 2014)
Hearsay Objections and Responses
Rule 801. Definition
(c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Prior Consistent Statements
Under Mil. R. Evid. 801(d), a prior consistent statement of a witness is not hearsay if “ ‘offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.’ ” United States v. Allison, 49 M.J. 54, 57 (C.A.A.F. 1998)(quoting Mil. R. Evid. 801(d)(1)(B)). “Under the rule prior consistent statements are substantive evidence.” Tome v. United States, 513 U.S. 150, 161 (1995).
Several “inherent safeguards” are contained in Mil. R. Evid. 801(d)(1)(B), which must be satisfied before prior statements will be admitted. United States v. Hood, 48 M.J. 928, 933 (Army Ct. Crim. App. 1998) (citing McCaskey, 30 M.J. at 191). “The rule's predicate safeguards are that the declarant must testify at trial and be subject to cross-examination; the statement must be consistent with the declarant's in-court testimony; and, the statement must be offered to actually rebut an attack of recent fabrication or improper motive or influence.” Id.
Adoptive Admissions
The foundational requirements for admitting adoptive admissions are a showing that (1) the party against whom it is offered was present during the making of the statement; (2) he understood its content; and (3) his actions or words or both unequivocally acknowledged the statement in adopting it as his own. United States v. Datz, 61 M.J. 37 (C.A.A.F. 2005)
Excited Utterance
1. The statement must be spontaneous, excited or impulsive rather than the product of reflection and deliberation;
2. The event prompting the utterance must be startling; and,
3. The declarant must be under the stress of excitement caused by the event); and relevant to the third prong of this inquiry is the physical and mental condition of the declarant.
Under certain circumstances, a nonverbal hearsay statement such as a head nod might qualify as an excited utterance. The victim’s nodding of her head in response to a question from a law enforcement officer asking her whether her husband beat her was not admissible in evidence as excited utterance exception to the hearsay rule where the military judge did not adequately consider the victim’s mental capacity at the time in question. Given the extent of the victim’s injuries — including a subdural hematoma, a traumatic brain injury, seventy percent loss of vision, and the loss of smell — and the fact that her blood alcohol level was nearly three times the legal limit permitted for driving, whether the victim was mentally capable of understanding the question posed to her when she nodded her head is critical to deciding whether her nonverbal statement was admissible as an excited utterance. United States v. Bowen, 76 M.J. 83 (C.A.A.F. 2016)
Statements Made for Medical Diagnosis
1. Statements must be made for the purposes of medical diagnosis or treatment; and,
2. The patient must make the statements with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought.
The exception has been broadened to include persons outside the medical profession, who perform health care functions and receive statements for the purpose of medical diagnosis.
In cases involving statements by young children, where the medical purpose behind a visit might well be apparent to an adult, an appellate court has looked to see if the military judge has found indicia that the child herself was cognizant of the medical purpose of the visit. When statements made by a patient to a psychiatrist are offered under medical exception to the hearsay rule, the military judge must determine that the statements were elicited under circumstances which made it apparent to the patient that the psychiatrist desired truthful information and that only by speaking truthfully would he receive the desired benefits from the psychiatric consultation; where the mental health diagnosis and treatment is offered in the context of marital counseling, declarants may well have mixed motives as well as ulterior motives behind their words; so too, the reliability of the statements at issue may be clouded by emotional distress. United States v. Cucuzzella, 66 M.J. 57 (C.A.A.F. 2008)
Recorded Recollection
Rule 803. Hearsay exceptions; availability of declarant immaterial
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself by received as an exhibit unless offered by an adverse party.
Foundation and Procedure
Attempt to refresh memory.
Establish that the memory of the witness cannot be refreshed.
Establish that this witness made a record when the matter was fresh in the memory of this witness.
Establish that the record made accurately reflects the knowledge of the witness at the time of the making.
Have the witness read the recorded recollection into evidence.
Note: The record could be marked as a prosecution or defense exhibit for identification, or as an appellate exhibit. It should not be admitted unless offered by the adverse party. Attach it to the record of trial. It should not go to the deliberation room unless offered by the adverse party.
Former Testimony
804 (b)
(1) Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. A record of testimony given before courts-martial, courts of inquiry, military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required by Article 32 is admissible under this subdivision if such a record is a verbatim record.
The foundational requirements are:
The first hearing was a fair one;
The witness testified under oath at the first hearing;
The opponent was a party in the first hearing;
The opponent had an opportunity to develop the witness’ testimony;
The opponent had a motive to develop the witness’ testimony at the first hearing; and,
The witness is unavailable; and,
There is a verbatim transcript of the first hearing.
Despite wording of Mil. R. Evid. 804(b)(1), admissibility of Article 32 testimony under former testimony exception depends on opponent’s opportunity to cross-exam, not whether cross-examination actually occurred or the intent of the cross-examiner. United States v. Connor, 27 M.J. 378 (C.M.A. 1989); United States v. Hubbard, 28 M.J. 27 (C.M.A.), cert. denied, 493 U.S. 847 (1989).United States v. Austin, 35 M.J. 271 (C.M.A. 1992).
Residual Hearsay
According to Mil. R. Evid. 807, a hearsay statement may be admissible even if it is not subject to a specific exception in Mil. R. Evid. 803 or 804. To determine whether a hearsay statement qualifies for admission under the residual hearsay rule, Mil. R. Evid. 807 sets out four requirements:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
UnitedStates v. Kelly, 45 M.J. 275, 280 (C.A.A.F. 1996).
“‘The necessity prong ‘essentially creates a 'best evidence' requirement.’" Id. (quoting Larez v. City of Los Angeles, 946 F.2d 630, 644 (9th Cir. 1991)). The necessity requirement, “balances the probativeness of available evidence, and requires the proponent of the evidence to show he could not obtain more probative evidence despite ‘reasonable efforts.’” United States v. Czachorowski, 66 M.J. 432, 434 (C.A.A.F. 2008) In addition to these three factors, to be admissible as residual hearsay, the statement must have circumstantial guarantees of trustworthiness. United States v. Donaldson, 58 M.J. 477, 488 (C.A.A.F. 2003) (citing United States v. Giambra, 33 M.J. 331, 334 (C.M.A. 1991).
When looking to circumstantial guarantees of trustworthiness, courts may look to: “(1) the mental state of the declarant; (2) the spontaneity of the statement; (3) the use of suggestive questioning; and (4) whether the statement can be corroborated.” Id. Additional factors include “the declarant's age or the circumstances under which the statement was made.” Id. In child sex abuse cases, “A declarant's young age is a positive factor supporting admissibility and assuring trustworthiness as it lessens the degree of skepticism with which [a court] might view his or her motives." United States v. Vasquez, 73 M.J. 683 at 690 (quoting United States v. Lingle, 27 M.J. 704, 708 (A.F.C.M.R. 1988). Ultimately, a military judge’s determination regarding circumstantial guarantees of trust worthiness are reviewed for clear error. United States v. Donaldson, 58 M.J. at 488.
Expert Testifying about False Allegations of Child Sexual Abuse - An expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; however, an expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused. It was error to admit expert testimony from which the court members could infer that there was a 1 in 200 chance that the allegations of child victims of sexual assault were false. United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010)
Daubert Factors
The five factors include:
- whether a method can or has been tested;
- the known or potential rate of error;
- whether the methods have been subjected to peer review;
- whether there are standards controlling the technique's operation; and.
- the general acceptance of the method within the relevant community.
404 (b)
Reynolds Test - Normally modus operandi is only relevant to identity. Prior similar acts should not be admitted until issue that evidence relates to is clearly in controversy.
1. Does the evidence reasonably support a finding that the accused committed the prior acts?
2. What fact of consequence is made more or less probable?
3. Is the probative value substantially outweighed by the danger of unfair prejudice.
Talismanic Incantation - A “shotgun” application of rule governing admissibility of other crimes evidence is abhorred and the court will not accept the “talismanic incantation” of the words motive, intent, plan or design, modus operandi, etc., with nothing more; trial counsel should be prepared to articulate on the record the particular purpose or purposes for which the evidence is admissible and why that evidence is important relative to other evidence the government has available on that issue. Military Rules of Evid., Rule 404(b). Peterson, 20 M.J. 806.
Old acts - Uncharged acts from 20 years before not admissible to show common plan. McDonald, 59 M.J. 426.
Modus Operandi - Modus operandi evidence, a basis of logical relevancy under military rule governing the admission of other acts evidence, is usually only relevant to prove identity. Military Rules of Evid., Rule 404(b). The Court of Appeals of the Armed Forces tests the logical relevancy of prior acts evidence for modus operandi under military rule governing other acts evidence by employing a six factor analysis and looks to (1) the relationship between victims and appellant, (2) the ages of the victims, (3) the nature of the acts, (4) the situs of the acts, (5) the circumstances of the acts, and (6) the time span. Military Rules of Evid., Rule 404(b). Dairo, 75 M.J. 867.
Motive Evidence - Motive evidence shows the doing of an act by a particular person by evidencing an emotional need in that person which could have incited or stimulated that person to do that act in satisfaction of that emotion. Whitner, 51 M.J. 457.
Evidence of motive is relevant to show doing of act by person as outlet for that emotion, but prior acts of misconduct must be the type which reasonably could be viewed as the expression and effect of the existing internal emotion, and this same motive must be shown to have existed in accused at time of subsequently charged acts. Watkins, 21 M.J. 224.
Doctrine of Chances - To avail oneself of the doctrine of chances to support admission of “other acts,” the proponent of the evidence must show that the “other acts” are sufficiently similar to the charged acts; otherwise, there is too great a risk that minor similarities will be used to bootstrap prior acts into courts-martial, with all the attendant risks that members will infer the accused is a bad person or convict on the basis of the prior act. Military Rules of Evid., Rule 404(b). Tyndale, 56 M.J. 209.
412
Cross-examination regarding extramarital affairs relevant and material. US v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011)
Evidence of a prior accusation of sexual assault is only admissible if the prior accusation is shown to be false; this is true whether the defense seeks to introduce the evidence as an exception to MRE 412, or to show the alleged victim’s modus operandi, motive, or character evidence for lack of truthfulness. United States v. Erickson, 76 M.J. 231 (C.A.A.F. 2017)
Accused was entitled to cross-examine the victim, his wife, about her relationship with another man and about her phone call to that man immediately after the underlying rape incident, where appellant wanted to establish that the relationship with the man was a motive for the victim to fabricate the rape allegation. Cross-examination of this man may have established a motive for the victim to fabricate her allegation of rape, and the military judge erred in excluding this cross-examination. United States v. Roberts, 69 M.J. 23 (C.A.A.F. 2010)
Counterintuitive Behaviors
Expert testimony cannot be used solely to bolster the credibility of the government’s fact-witnesses by mirroring their version of events; and a military judge must distinguish between an expert witness whose testimony about behaviors of sexual assault victims that are subject to widely held misconceptions will be helpful to the trier of fact, and an expert witness whose testimony will simply mirror the specific facts of the case and serve only to bolster the credibility of a crucial fact witness. United States v. Flesher, 73 M.J. 303 (C.A.A.F. 2014)
Hearsay Objections and Responses
Rule 801. Definition
(c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Prior Consistent Statements
Under Mil. R. Evid. 801(d), a prior consistent statement of a witness is not hearsay if “ ‘offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.’ ” United States v. Allison, 49 M.J. 54, 57 (C.A.A.F. 1998)(quoting Mil. R. Evid. 801(d)(1)(B)). “Under the rule prior consistent statements are substantive evidence.” Tome v. United States, 513 U.S. 150, 161 (1995).
Several “inherent safeguards” are contained in Mil. R. Evid. 801(d)(1)(B), which must be satisfied before prior statements will be admitted. United States v. Hood, 48 M.J. 928, 933 (Army Ct. Crim. App. 1998) (citing McCaskey, 30 M.J. at 191). “The rule's predicate safeguards are that the declarant must testify at trial and be subject to cross-examination; the statement must be consistent with the declarant's in-court testimony; and, the statement must be offered to actually rebut an attack of recent fabrication or improper motive or influence.” Id.
Adoptive Admissions
The foundational requirements for admitting adoptive admissions are a showing that (1) the party against whom it is offered was present during the making of the statement; (2) he understood its content; and (3) his actions or words or both unequivocally acknowledged the statement in adopting it as his own. United States v. Datz, 61 M.J. 37 (C.A.A.F. 2005)
Excited Utterance
1. The statement must be spontaneous, excited or impulsive rather than the product of reflection and deliberation;
2. The event prompting the utterance must be startling; and,
3. The declarant must be under the stress of excitement caused by the event); and relevant to the third prong of this inquiry is the physical and mental condition of the declarant.
Under certain circumstances, a nonverbal hearsay statement such as a head nod might qualify as an excited utterance. The victim’s nodding of her head in response to a question from a law enforcement officer asking her whether her husband beat her was not admissible in evidence as excited utterance exception to the hearsay rule where the military judge did not adequately consider the victim’s mental capacity at the time in question. Given the extent of the victim’s injuries — including a subdural hematoma, a traumatic brain injury, seventy percent loss of vision, and the loss of smell — and the fact that her blood alcohol level was nearly three times the legal limit permitted for driving, whether the victim was mentally capable of understanding the question posed to her when she nodded her head is critical to deciding whether her nonverbal statement was admissible as an excited utterance. United States v. Bowen, 76 M.J. 83 (C.A.A.F. 2016)
Statements Made for Medical Diagnosis
1. Statements must be made for the purposes of medical diagnosis or treatment; and,
2. The patient must make the statements with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought.
The exception has been broadened to include persons outside the medical profession, who perform health care functions and receive statements for the purpose of medical diagnosis.
In cases involving statements by young children, where the medical purpose behind a visit might well be apparent to an adult, an appellate court has looked to see if the military judge has found indicia that the child herself was cognizant of the medical purpose of the visit. When statements made by a patient to a psychiatrist are offered under medical exception to the hearsay rule, the military judge must determine that the statements were elicited under circumstances which made it apparent to the patient that the psychiatrist desired truthful information and that only by speaking truthfully would he receive the desired benefits from the psychiatric consultation; where the mental health diagnosis and treatment is offered in the context of marital counseling, declarants may well have mixed motives as well as ulterior motives behind their words; so too, the reliability of the statements at issue may be clouded by emotional distress. United States v. Cucuzzella, 66 M.J. 57 (C.A.A.F. 2008)
Recorded Recollection
Rule 803. Hearsay exceptions; availability of declarant immaterial
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself by received as an exhibit unless offered by an adverse party.
Foundation and Procedure
Attempt to refresh memory.
Establish that the memory of the witness cannot be refreshed.
Establish that this witness made a record when the matter was fresh in the memory of this witness.
Establish that the record made accurately reflects the knowledge of the witness at the time of the making.
Have the witness read the recorded recollection into evidence.
Note: The record could be marked as a prosecution or defense exhibit for identification, or as an appellate exhibit. It should not be admitted unless offered by the adverse party. Attach it to the record of trial. It should not go to the deliberation room unless offered by the adverse party.
Former Testimony
804 (b)
(1) Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. A record of testimony given before courts-martial, courts of inquiry, military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required by Article 32 is admissible under this subdivision if such a record is a verbatim record.
The foundational requirements are:
The first hearing was a fair one;
The witness testified under oath at the first hearing;
The opponent was a party in the first hearing;
The opponent had an opportunity to develop the witness’ testimony;
The opponent had a motive to develop the witness’ testimony at the first hearing; and,
The witness is unavailable; and,
There is a verbatim transcript of the first hearing.
Despite wording of Mil. R. Evid. 804(b)(1), admissibility of Article 32 testimony under former testimony exception depends on opponent’s opportunity to cross-exam, not whether cross-examination actually occurred or the intent of the cross-examiner. United States v. Connor, 27 M.J. 378 (C.M.A. 1989); United States v. Hubbard, 28 M.J. 27 (C.M.A.), cert. denied, 493 U.S. 847 (1989).United States v. Austin, 35 M.J. 271 (C.M.A. 1992).
Residual Hearsay
According to Mil. R. Evid. 807, a hearsay statement may be admissible even if it is not subject to a specific exception in Mil. R. Evid. 803 or 804. To determine whether a hearsay statement qualifies for admission under the residual hearsay rule, Mil. R. Evid. 807 sets out four requirements:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
UnitedStates v. Kelly, 45 M.J. 275, 280 (C.A.A.F. 1996).
“‘The necessity prong ‘essentially creates a 'best evidence' requirement.’" Id. (quoting Larez v. City of Los Angeles, 946 F.2d 630, 644 (9th Cir. 1991)). The necessity requirement, “balances the probativeness of available evidence, and requires the proponent of the evidence to show he could not obtain more probative evidence despite ‘reasonable efforts.’” United States v. Czachorowski, 66 M.J. 432, 434 (C.A.A.F. 2008) In addition to these three factors, to be admissible as residual hearsay, the statement must have circumstantial guarantees of trustworthiness. United States v. Donaldson, 58 M.J. 477, 488 (C.A.A.F. 2003) (citing United States v. Giambra, 33 M.J. 331, 334 (C.M.A. 1991).
When looking to circumstantial guarantees of trustworthiness, courts may look to: “(1) the mental state of the declarant; (2) the spontaneity of the statement; (3) the use of suggestive questioning; and (4) whether the statement can be corroborated.” Id. Additional factors include “the declarant's age or the circumstances under which the statement was made.” Id. In child sex abuse cases, “A declarant's young age is a positive factor supporting admissibility and assuring trustworthiness as it lessens the degree of skepticism with which [a court] might view his or her motives." United States v. Vasquez, 73 M.J. 683 at 690 (quoting United States v. Lingle, 27 M.J. 704, 708 (A.F.C.M.R. 1988). Ultimately, a military judge’s determination regarding circumstantial guarantees of trust worthiness are reviewed for clear error. United States v. Donaldson, 58 M.J. at 488.
