United States v. Brooks , 2007 CAAF LEXIS 71 ( 2007 )

UNITED STATES, Appellee
v.
Stacey S. BROOKS, Staff Sergeant
U.S. Air Force, Appellant
No. 06-0060
Crim. App. No. 35420
United States Court of Appeals for the Armed Forces
Argued November 15, 2006
Decided January 30, 2007
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Captain Vicki A. Belleau (argued); Lieutenant
Colonel Mark R. Strickland and Major Sandra K. Whittington (on
brief).
For Appellee: Major Kimani R. Eason (argued); Colonel Gerald R.
Bruce, Lieutenant Colonel Robert V. Combs, Lieutenant Colonel
Gary F. Spencer, and Major Nurit Anderson (on brief).
Military Judge: David F. Brash
This opinion is subject to revision before final publication.
United States v. Brooks, No. 06-0060/AF
Judge ERDMANN delivered the opinion of the court.
Staff Sergeant Stacey S. Brooks was convinced at a general
court-martial of two specifications of indecent liberties with a
female under the age of sixteen, in violation of Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).
He was sentenced to a dishonorable discharge, eighteen months
confinement, forfeiture of all pay and allowances, and reduction
to the grade of E-1. The convening authority reduced the
confinement to fourteen months and approved the balance of the
sentence. The United States Air Force Court of Criminal Appeals
affirmed the findings and sentence as approved by the convening
authority. United States v. Brooks, No. ACM 35420, 2005 CCA
LEXIS 277, 2005 WL 2129856 (A.F. Ct. Crim. App. 2005). We
granted review of five issues and specified another for review.1
1
On August 10, 2006, we granted review of the following issues:
I. WHETHER THE MILITARY JUDGE ERRED TO THE
SUBSTANTIAL PREJUDICE OF APPELLANT WHEN
HE ALLOWED THE ADMISSION OF REPEATED
INSTANCES OF HUMAN LIE DETECTOR
TESTIMONY AND THEN FAILED TO PROVIDE
PROMPT, CURATIVE INSTRUCTIONS TO THE
MEMBERS.
II. WHETHER THE MILITARY JUDGE ERRED TO THE
SUBSTANTIAL PREJUDICE OF APPELLANT WHEN
HE ALLOWED DR. [A] TO GIVE IMPROPER
PROFILE EVIDENCE THAT CHILDREN RARELY
MAKE FALSE CLAIMS OF SEXUAL ABUSE.
III. WHETHER THE MILITARY JUDGE ERRED TO THE
SUBSTANTIAL PREJUDICE OF APPELLANT WHEN
HE DID NOT INSTRUCT THE COURT MEMBERS
TO DISREGARD ARGUMENT THAT TRIAL
COUNSEL WAS CONVINCED BEYOND A
2
United States v. Brooks, No. 06-0060/AF
An expert may testify about matters within his or her area
of expertise where “scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue.” Military Rule of
Evidence (M.R.E.) 702. But “an expert may not testify regarding
the credibility or believability of a victim, or ‘opine as to
the guilt or innocence of an accused.’” United States v. Cacy,
43 M.J. 214, 217 (C.A.A.F. 1995) (quoting United States v.
Suarez, 35 M.J. 374, 376 (C.M.A. 1992)); see United States v.
Foster, 64 M.J. ___ (7) (C.A.A.F. 2007). Brooks claims that the
Government’s expert on child sexual abuse, Dr. Marvin W. Acklin
REASONABLE DOUBT THAT THE CHILD VICTIM
WAS TELLING THE TRUTH.
IV. WHETHER THE CHARGES AND SPECIFICATIONS
MUST BE DISMISSED BECAUSE THE STAFF
JUDGE ADVOCATE EXCLUDED “ALL OFFICERS
WHO WOULD LIKELY BE CHALLENGED IF
SELECTED AS MEMBERS” FROM THE POOL OF
POTENTIAL COURT MEMBERS, AND THE
CONVENING AUTHORITY, IN TURN, EXCLUDED
THEM FROM THE COURT-MARTIAL SELECTION
PROCESS.
V. WHETHER THE SERIES OF ERRORS
CUMULATIVELY AND MATERIALLY PREJUDICED
APPELLANT’S SUBSTANTIAL RIGHT TO A FAIR
AND IMPARTIAL TRIAL THEREBY
NECESSITATING REVERSAL OF HIS
CONVICTIONS.
We also specified the following issue for review:
VI. WHETHER THE CONVENING AUTHORITY
ERRONEOUSLY APPLIED ARTICLE 58b(b),
UCMJ.
64 M.J. 76-77 (C.A.A.F. 2006).
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United States v. Brooks, No. 06-0060/AF
Jr., provided inadmissible “profile” evidence when he testified
about the percentage of false claims of sexual abuse made by
children. Although Brooks failed to object to the testimony
about which he now complains, we conclude that the military
judge plainly erred by allowing testimony that was the
functional equivalent of vouching for the credibility or
truthfulness of the victim. Finding plain error, we reverse.
In light of our disposition of this issue, we need not address
the remaining issues.
Background
The charges against Brooks arose from his alleged improper
sexual activities with a five-year-old child who Brooks and his
wife would occasionally baby-sit. As part of its case-in-chief,
the prosecution presented the testimony of Dr. Acklin, who was
recognized as an expert in the field of clinical psychology.
Dr. Acklin testified generally about the cognitive skills of
children and the ability of a child to distinguish between what
is true and what is not true. Included in this testimony was
the subject of suggestibility, which Dr. Acklin defined as “the
influence that a person would exercise on the accuracy of a
child’s recall.”
With respect to the victim in this case, Dr. Acklin
performed a mental evaluation and concluded that she was a
normal little girl who could distinguish between the truth and
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United States v. Brooks, No. 06-0060/AF
lies. During cross-examination, Dr. Acklin stated that he did
not re-interview the victim about the events supporting the
charges because, in part, he was concerned about suggestibility.
Defense counsel inquired into the ability of a child to create
stories or fabricate, as well as further inquiring into how
repeated interviews could result in information or belief
becoming fixed in the mind of the child.
On re-direct examination trial counsel asked questions
about the motivations a child may have to lie. Defense counsel
objected, challenging Dr. Acklin’s expertise to state an opinion
in that area. The objection was overruled and Dr. Acklin then
testified about false sexual abuse allegations arising from
misinterpretation by the listener and the significant degree of
sophistication that would be required for a child to wholly
fabricate a sexual abuse allegation. The testimony continued:
[TC]: In your experience, in your professional
medical experience, how frequency, how frequently,
excuse me, do you see cases of false allegations?
[Dr. Acklin]: I believe I testified at the Article 32
Hearing that it’s about a five percent level. That’s
considered to be about, interestingly enough, the
level of false allegations one encounters in the
business and in research. It ranges anywhere from
five to twenty percent, depending on the sample that
you look at, but it’s generally considered to be,
what’s called a low base-rate phenomenon, which is. . .
not that infrequent.
Once you take away misinterpretation, then it
even drops even further, because then we’re talking
about the pure fabricated sex abuse allegation. And,
the general sense of that in the divorce business,
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United States v. Brooks, No. 06-0060/AF
where they tend to occur at the greatest frequency, is
it’s two to five percent.
There was neither an objection nor cautionary instruction given
with respect to this testimony.
In addition to standard instructions on determining
credibility and expert witnesses, the military judge instructed:
Only you, the members of the court determine the
credibility of the witnesses and what the fact[s] of
this case are. No expert witness or other witness can
testify that the alleged victim’s account of what
occurred is true or credible, that the expert believes
the alleged victim, or that a sexual encounter
occurred. To the extent that you believed that Dr.
Acklin testified or implied that he believes the
alleged victim, that a crime occurred, or that the
alleged victim is credible, you may not consider this
as evidence that a crime occurred or that the alleged
victim is credible.
Discussion
Brooks asserts that expert testimony concerning the
percentage of children who make false claims of sexual abuse was
improper because it was “profile” evidence and because it
suggested the victim was credible. The Government responds that
there was no improper “profile” evidence. Rather, the
statistical evidence about children lying about incidents of
sexual abuse was permissible in response to claims that the
victim had fabricated the allegations of abuse by Brooks.
Alternatively, the Government asserts that any error in
admitting this evidence did not substantially affect the outcome
of the case.
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United States v. Brooks, No. 06-0060/AF
Where relevant, M.R.E. 608 permits a witness with an
adequate foundation to render an opinion or reveal the
reputation of another witness for truthfulness. But this court
has been resolute in rejecting the admissibility of so-called
human lie detector testimony,2 which we have described as: “an
opinion as to whether the person was truthful in making a
specific statement regarding a fact at issue in the case.”
United States v. Kasper, 58 M.J. 314, 315 (C.A.A.F. 2003).
Neither a lay nor an expert witness has the foundation or
expertise to opine that an individual is or is not telling the
truth. Id.; United States v. Birdsall, 47 M.J. 404, 410
(C.A.A.F. 1998); see also Foster, 64 M.J. at ___ (7).3
2
See, e.g., United States v. Kasper, 58 M.J. 314, 315 (C.A.A.F.
2003) (“[A]n expert on the subject of child abuse is not
permitted to testify that the alleged victim is or is not
telling the truth as to whether the abuse occurred.”); United
States v. Birdsall, 47 M.J. 404, 410 (C.A.A.F. 1998) (“[T]he
expert in child abuse may not act as a human lie detector for
the court-martial.”); United States v. Cacy, 43 M.J. 214, 218
(C.A.A.F. 1995) (“We do not allow an expert to opine that a
victim is telling the truth . . . .”); United States v.
Harrison, 31 M.J. 330, 332 (C.M.A. 1990) (“It is impermissible
for an expert to testify about his or her belief that a child is
telling the truth regarding an alleged incident of sexual
abuse.”); United States v. Arruza, 26 M.J. 234, 237 (C.M.A.
1988) (“[C]hild-abuse experts are not permitted to opine as to
the credibility or believability of victims or other
witnesses.”); see also United States v. Petersen, 24 M.J. 283,
284 (C.M.A. 1987) (“We are skeptical about whether any witness
could be qualified to opine as to the credibility of another.”).
3
We have identified three reasons supporting the prohibition
against experts testifying as human lie detectors. “First,
determination of truthfulness ‘exceeds the scope of a witness’
expertise, for the expert lacks specialized knowledge . . . to
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United States v. Brooks, No. 06-0060/AF
In United States v. Harrison, 31 M.J. 330, 332 (C.M.A.
1990), we articulated the permissible limits of expert testimony
in child sexual abuse cases such as the case before us now:
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. He or she may also “discuss ‘various
patterns of consistency in the stories of child sexual
abuse victims and compar[e] those patterns with
patterns in . . . [the victim’s] story.’” However, to
put “an impressively qualified expert’s stamp of
truthfulness on a witness’ story goes too far.” An
expert should not be allowed to “‘go so far as to
usurp the exclusive function of the jury to weigh the
evidence and determine credibility.’” (citations
omitted).
We review a military judge’s decision to admit expert
testimony under an abuse of discretion standard. United States
v. Shelton, 64 M.J. 32, 37 (C.A.A.F. 2006); United States v.
Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006); Kasper, 58 M.J. at
318. However, Brooks did not object to the testimony about
which he now complains. Where an appellant has not preserved an
objection to evidence by making a timely objection, that error
determine if a child-sexual-abuse victim [is] telling the
truth’” and therefore cannot “assist the trier of fact” as
required under Military Rule of Evidence (M.R.E.) 702 before
expert testimony is permissible. Kasper, 58 M.J. at 315
(quoting Birdsall, 47 M.J. at 410). Second, such testimony
violates the limitations of M.R.E. 608. Id.; Arruza, 26 M.J. at
237 (citing Petersen, 24 M.J. at 284). Third, human lie
detector testimony encroaches into the exclusive province of the
court members to determine the credibility of witnesses.
Kasper, 58 M.J. at 315; United States v. Robbins, 52 M.J. 455,
458 (C.A.A.F. 2000) (citing Birdsall, 47 M.J. at 410); Cacy, 43
M.J. at 218.
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United States v. Brooks, No. 06-0060/AF
will be forfeited in the absence of plain error. M.R.E. 103(d).
To demonstrate that relief is warranted under the plain error
doctrine, an appellant must show that: (1) there was error; (2)
the error was plain or obvious; and (3) the error was materially
prejudicial to his substantial rights. United States v.
Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005); United States v.
Washington, 63 M.J. 418, 424 (C.A.A.F. 2006); United States v.
Powell, 49 M.J. 460, 463 (C.A.A.F. 1998). Our standard of
review for determining whether there is plain error is de novo.
United States v. Gudmundson, 57 M.J. 493, 495 (C.A.A.F. 2002)
(citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).
We disagree with Brooks’ characterization of Dr. Acklin’s
testimony that quantified the percentage of child sexual abuse
victims who lied as “profile” evidence. In United States v.
Bresnahan, 62 M.J. 137 (C.A.A.F. 2005), we stated:
Profile evidence is defined as “evidence that presents
a ‘characteristic profile’ of an offender, such as a
pedophile or child abuser, and then places the
accused’s personal characteristics within that profile
as proof of guilt.” Generally, the use of any
“profile” characteristic as evidence of guilt or
innocence is improper at a criminal trial.
Id. at 146 (footnotes omitted). As we have noted in our cases
dealing with alleged profiling evidence, the focus is upon using
a profile as evidence of the accused’s guilt or innocence, and
not upon using a characteristic profile to support or attack a
witness’s or victim’s credibility or truthfulness. See id.;
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United States v. Brooks, No. 06-0060/AF
United States v. Hays, 62 M.J. 158, 166 (C.A.A.F. 2005); United
States v. Traum, 60 M.J. 226, 234-35 (C.A.A.F. 2004); United
States v. Huberty, 53 M.J. 369, 373 (C.A.A.F. 2000); United
States v. Banks, 36 M.J. 150, 161 (C.M.A. 1992). That is not to
say, however, that this credibility quantification testimony is
or should be admissible. To the contrary, such evidence
implicates the very concerns underlying the prohibition against
human lie detector testimony.
We conclude that this testimony invaded the province of the
court members to determine the credibility of the victim and
violated the limitations of M.R.E. 608 on admissible testimony
relating to truthfulness. In Powell v. State, 527 A.2d 276(Del. 1987), the Delaware Supreme Court addressed an expert’s
statement that “ninety-nine percent of the alleged victims
involved in sexual abuse treatment programs in which she was
also involved ‘have told the truth.’” Id. at 278. Even though
the defense elicited this statement during voir dire of the
expert, the Delaware court deemed the admission of this
statement “plain error.” Id. at 279.
The court found that this “percentage” testimony exceeded
the permissible bounds of expert testimony permitted in child
sexual abuse prosecutions. Id. While the expert “‘can inform
the jury of characteristics in sexually abused children and
describe the characteristics the alleged victim exhibits,’”
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United States v. Brooks, No. 06-0060/AF
Birdsall, 47 M.J. at 409 (quoting United States v. Whitted, 11
F.3d 782, 785 (8th Cir. 1993)), the expert should not be
permitted to give testimony that is the functional equivalent of
saying that the victim in a given case is truthful or should be
believed.
Dr. Acklin testified that false allegations generally occur
in these types of cases about five percent of the time.
However, when “misinterpretation” was taken away, Dr. Acklin
stated that figure drops even further. Based on divorce cases
where false accusations were the most frequent, Dr. Acklin said
that the rate was two to five percent. In this case, which does
not involve divorce, Dr. Acklin’s statement suggested that there
was better than a ninety-eight percent probability that the
victim was telling the truth. This testimony provided a
mathematical statement approaching certainty about the
reliability of the victim’s testimony. This testimony goes
directly to the core issue of the victim’s credibility and
truthfulness. We conclude that admitting this testimony was
error, and that the error was plain and obvious. See Kasper, 58
M.J. at 319; Powell, 527 A.2d at 280.
Having concluded that there was error and that the error
was plain or obvious, we must next determine whether Brooks has
sustained his burden of demonstrating that the error materially
prejudiced his substantial rights. Brooks argues that Dr.
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United States v. Brooks, No. 06-0060/AF
Acklin’s quantification of the victim’s credibility was not
outweighed by a cautionary instruction that was given in
response to a defense objection to previous credibility
testimony by Dr. Acklin. In addition, Brooks claims that the
prejudice in this case had become fixed before the military
judge gave his closing instruction on determining credibility.
The Government argues that any error had no affect on the
outcome of this case. The Government urges that the earlier
cautionary instruction and the military judge’s closing
instruction on credibility were sufficient to cause the members
to disregard any expert testimony that the victim was truthful.
We are mindful of the instruction to disregard one of Dr.
Acklin’s previous comments and the instruction on credibility
given by the military judge. Nonetheless, several factors weigh
against concluding that the members were unaffected by Dr.
Acklin’s quantification of the victim’s probable truthfulness.
This case hinged on the victim’s credibility and medical
testimony. There were no other direct witnesses, no confession,
and no physical evidence to corroborate the victim’s sometimes
inconsistent testimony. Any impermissible evidence reflecting
that the victim was truthful may have had particular impact upon
the pivotal credibility issue and ultimately the question of
guilt. The testimony “impart[ed] an undeserved scientific stamp
of approval on the credibility of the victim[] in this case.”
12
United States v. Brooks, No. 06-0060/AF
Birdsall, 47 M.J. at 410; see also Arruza, 26 M.J. at 237
(noting that to permit an expert to opine as to the truthfulness
of the victim “‘puts an impressively qualified expert’s stamp of
truthfulness on a witness’ story’” (quoting United States v.
Azure, 801 F.2d 336, 340 (8th Cir. 1986))).
In addition, because this credibility quantification
testimony invaded the province of the members, we cannot say
with any confidence that the members were not impermissibly
swayed and thus that they properly performed their duty to weigh
admissible evidence and assess credibility. Concerning similar
human lie detector testimony, we have noted that “the military
judge must issue prompt cautionary instructions to ensure that
the members do not make improper use of such testimony.”
Kasper, 58 M.J. at 315. The effect of the improper credibility
quantification testimony causes us to harbor substantial doubt
about the fairness of the proceeding.
Brooks had the “substantial right . . . to have the members
decide the ultimate issue . . . without the members viewing [the
victim’s] credibility through the filter of” an expert’s view of
the victim’s credibility. Id. at 319 (relating to human lie
detector testimony). In this case, admitting the expert
testimony quantifying the victim’s credibility was plain error.
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Decision
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The findings and sentence are set
aside. The record is returned to the Judge Advocate General of
the Air Force. A rehearing may be ordered.
14