United States v. Traum , 60 M.J. 226 ( 2004 )

UNITED STATES, Appellee
v.
Stephanie R. TRAUM, Senior Airman
U.S. Air Force, Appellant
No. 02-0885
Crim. App. No. 34225
United States Court of Appeals for the Armed Forces
Argued October 21, 2003
Decided August 24, 2004
BAKER, J., delivered the opinion of the Court in which CRAWFORD,
C.J., joined. GIERKE, J., filed an opinion concurring in part
and in the result which EFFRON, J., joined. ERDMANN, J., filed
a separate opinion concurring in part and in the result.
Counsel
For Appellant: Lieutenant Colonel Craig S. Cook (argued);
Colonel Beverly B. Knott, Major Terry L. McElyea, and Captain
Kyle R. Jacobson (on brief); Captain Antony B. Kolenc.
For Appellee: Captain C. Taylor Smith (argued); Colonel LeEllen
Coacher and Major John D. Douglas (on brief); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Lance B. Sigmon,
Major Shannon J. Kennedy, and Major Jennifer R. Rider.
Military Judge: B. T. Brown
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Traum, No. 02-0885/AF
Judge BAKER delivered the opinion of the Court.
On September 17, 1999, contrary to her plea, Appellant was
convicted by general court-martial of the premeditated murder of
her infant daughter in violation of Article 118, Uniform Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. § 918 (2000).
The sentence, adjudged by a panel of officer and enlisted
members, provided for a dishonorable discharge, confinement for
life, forfeiture of all pay and allowances, a reprimand, and
reduction to the lowest enlisted grade. Except for the
reprimand, the convening authority approved the sentence as
adjudged. The Air Force Court of Criminal Appeals affirmed the
approved findings and sentence in an unpublished opinion.
United States v. Traum, No. ACM 34225, slip op. (A.F. Ct. Crim.
App. June 28, 2002). We granted review to determine whether
Appellant’s confession to Air Force Office of Special
Investigations (AFOSI) investigators should have been
suppressed, and whether the military judge allowed the
Government’s expert witness to present inadmissible profile
evidence against Appellant.1 For the reasons that follow, we
affirm.
1
The granted issues are:
I. WHETHER APPELLANT’S STATEMENTS TO SPECIAL AGENT
KRAUS SHOULD HAVE BEEN SUPPRESSED BECAUSE:
2
United States v. Traum, No. 02-0885/AF
I
The Confession of January 13
On the morning of December 21, 1998, base emergency medical
personnel received a phone call from Appellant indicating that
her eighteen-month old daughter Caitlyn was not breathing.
During the call, Appellant suggested that the child might be
having a seizure. Minutes later, medical personnel arrived at
Appellant’s quarters and began to treat the unresponsive child.
The child was transported by ambulance to the hospital where
efforts to revive her continued. Despite the efforts of
A. THE REQUEST BY AGENTS OF THE AFOSI THAT
APPELLANT SUBMIT TO A POLYGRAPH
EXAMINATION CONVERTED THEIR DISCUSSION
INTO OFFICIAL QUESTIONING DURING WHICH
APPELLANT COULD INVOKE HER RIGHT TO REMAIN
SILENT; AND
B. APPELLANT’S STATEMENT THAT SHE DID NOT
WISH TO DISCUSS THE EVENTS OF THE NIGHT
HER DAUGHTER DIED WAS AN INVOCATION OF HER
RIGHT TO REMAIN SILENT, THUS REQUIRING
THAT THE AFOSI AGENTS SCRUPULOUSLY HONOR
HER REQUEST TO REMAIN SILENT.
II. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR BY ALLOWING THE PROSECUTION EXPERT WITNESS, DR.
COOPER, TO TESTIFY AS TO INADMISSIBLE STATISTICAL
PROFILE EVIDENCE AND TO VOICE A MEDICAL OPINION OF
HOMICIDE LARGELY BASED UPON APPELLANT’S CONDUCT.
III. WHETHER THIS COURT SHOULD ORDER NEW POST-TRIAL
PROCESSING WHERE THE STAFF JUDGE ADVOCATE’S
RECOMMENDATION INCORRECTLY ADVISED THE CONVENING
AUTHORITY ON THE MAXIMUM AUTHORIZED PUNISHMENT.
This third issue is resolved against Appellant in summary
fashion at the end of this opinion.
3
United States v. Traum, No. 02-0885/AF
hospital personnel, Caitlyn was pronounced dead shortly after
arriving at the emergency room. Appellant was home alone with
the child at the time the emergency call was made.
In the weeks following the child’s death, AFOSI
investigators focused on Appellant as a homicide suspect. On
January 12, 1999, Appellant called AFOSI to inquire about the
status of the investigation of her daughter’s death. The agents
expressed a desire to discuss the investigation with Appellant
at their office and she agreed to meet with them the following
morning.
When Appellant arrived at the AFOSI office on the morning
of January 13, she met with Special Agents (SA) Engelman and
Gage and requested an update on the investigation. Appellant
also informed them that she needed a copy of her daughter’s
autopsy report and death certificate in order to process her
humanitarian reassignment. After further “idle chit chat,” SA
Engelman asked Appellant if she would be willing to take a
polygraph. At first, Appellant neither declined nor accepted the
invitation to take the polygraph. SA Engelman explained to
Appellant that a possible benefit of taking the examination
might be to rule her out as a suspect.
When asked again whether she was willing to take the
examination, Appellant replied that “she did not want to talk
about the details of the night of 20/21 December 1998.” SA
4
United States v. Traum, No. 02-0885/AF
Engelman subsequently explained to Appellant that it might not
be necessary to go into all of the details of that night, but it
might be necessary to go into some of the details. The agent
further explained that if Appellant still had concerns with
talking about the details of that night, she could raise them
with the polygrapher, SA Kraus. Appellant acknowledged that she
understood this information.
Following this discussion, Appellant accompanied SA Kraus
into a room to be interviewed and polygraphed. Prior to asking
any questions, SA Kraus administered Appellant’s Article 31
rights and advisement. He also informed Appellant that she was
not required to take the examination. Appellant waived these
rights and agreed to be polygraphed and interviewed. There is
no indication that at any time after the rights advisement,
Appellant expressed her earlier concerns about discussing the
details of the night of December 20 or the morning of December
21 to SA Kraus or anyone else.
After the polygraph examination, SA Kraus interviewed
Appellant. During this interview, Appellant disclosed that she
had killed Caitlyn by pushing the child’s head into the couch
and suffocating her. Appellant reduced this confession to
writing and signed it. This written statement recounts that
Appellant “gently pressed Cait’s head into the couch” ostensibly
to save Caitlyn from her father’s abusive ways. Appellant
5
United States v. Traum, No. 02-0885/AF
included in her statement that she decided to take the child’s
life “around midnight on the 20 or 21st Dec. 98.” When asked
why she smothered the child as opposed to killing her in some
other way, Appellant’s written response was, “I didn’t want her
to hurt.” At the time of the AFOSI interview, Appellant was a
married, 25 year old E-4 with 6 1/2 years of service.
Prior to the trial on the merits, Appellant moved to
suppress her confession to SA Kraus. In her motion, Appellant
initially contended that because she was a suspect on the
morning of January 13, her Article 31 rights should have been
read prior to the agents engaging in any conversation with her.
For the purposes of this appeal, Appellant has narrowed her
claim to an assertion that SA Engelman’s question regarding
taking a polygraph was designed to elicit an incriminating
response. Therefore, according to Appellant, SA Engelman was
required to warn her of her Article 31 rights before asking this
question. Appellant also contends, as she did at trial, that
her response to SA Engelman’s question that “she did not want to
talk about the details of the night of 20/21 December 1998” was
an invocation of her Fifth Amendment right to remain silent.
Further, Appellant asserts that her invocation was unequivocal
and not honored, therefore, any statement taken after
Appellant’s response to SA Engelman’s question regarding the
examination was tainted and should have been suppressed.
6
United States v. Traum, No. 02-0885/AF
A. The Requirement to Warn under Article 31
Appellant asserts that the agent’s request for her to take
a polygraph was either interrogation or a request for a
statement within the meaning of Article 31.
No person subject to the UCMJ may “interrogate, or request
any statement” from a person suspected of an offense without
first warning that person in accordance with Article 31(b).
Article 31(b), UCMJ, 10 U.S.C. § 831 (2000). “’Interrogation’
includes any formal or informal questioning in which an
incriminating response either is sought or is a reasonable
consequence of such questioning.” Military Rule of Evidence
305(b)(2)[hereinafter M.R.E.]; Rhode Island v. Innis, 446 U.S.
291, 301 (1980). M.R.E. 305(b)(2) was broadly fashioned “to
thwart ‘attempts to circumvent warnings requirements through
subtle conversations.’” United States v. Ruiz, 54 M.J. 138, 141
(C.A.A.F. 2000)(quoting S. Saltzberg et al., Military Rules of
Evidence Manual 225 (4th ed. 1997)). However, interrogation
involves more than merely putting questions to an individual.
Id.We recognize that a request to take a polygraph may arise
in a variety of circumstances related to interrogation. See
Wyrick v. Fields, 459 U.S. 42 (1982); United States v.
7
United States v. Traum, No. 02-0885/AF
Applewhite, 23 M.J. 196 (C.M.A. 1987).2 In each instance, the
question will be whether an incriminating response is sought or
is the reasonable consequence of the comment or remark. Of
course, a rights advisement prior to such a question would
remove the necessity for such analysis. Based on the context in
which SA Engelman asked Appellant whether she would take a
polygraph, we conclude that an incriminating response was not a
reasonable consequence of SA Engelman’s inquiry. In our view,
the “reasonable consequence” of SA Engelman’s question in the
context presented was either yes or no. Similarly, we agree
with the conclusion reached by the Court of Criminal Appeals
2
Each of these cases can be distinguished from the present
case. Both involved the custodial interrogation of individuals
who had previously invoked their right to counsel. In Wyrick,
the Supreme Court reasoned that by requesting to take a
polygraph the defendant had “intiate[d] dialogue with the
authorities” such that interrogation could resume. Wyrick v.
Fields, 459 U.S. 42, 48 (1982). In Applewhite, the focus was on
whether a previous invocation of the right to counsel had been
honored or whether it had been undermined. There, the accused
requested counsel, but investigators asked the accused to take a
polygraph. Several days later he appeared prepared to do so.
Prior to the examination he was confronted with new as well as
previous allegations of wrongdoing. Whatever dicta may have
been used in resolving the issue in that case, there was no
holding that the mere request to take the polygraph was intended
to elicit an incriminating response. Rather, in the words of
Judge Cox, “After appellant invoked his right to counsel, the
investigator sought to circumvent the exercise of that right by
requesting appellant to take a polygraph examination.” United
States v. Applewhite, 23 M.J. 196, 199 (C.M.A. 1987).
Interrogation of Applewhite occurred when he returned several
days later to actually take the examination. Id.Significantly, Appellant in this case was neither in custody nor
had she invoked her right to counsel.
8
United States v. Traum, No. 02-0885/AF
that “[n]o incriminating response from the appellant was sought
. . . .” Traum, No. ACM 34225, slip op. at 4. The polygraph
and its operator were located in an adjacent room. SA
Engelman’s objective was to encourage Appellant to take the
polygraph not to ask questions that might serve as an
investigative substitute for what the agents hoped to garner
from the administration of the polygraph exam. Thus, we
conclude that an incriminating response was neither sought nor
was it a reasonable consequence of SA Engelman’s inquiry.
B. Right to remain silent
We next determine whether Appellant’s response to SA
Engelman’s question was an invocation of her right to silence,
and if so, whether that right was “scrupulously honored.” See
Miranda v. Arizona, 384 U.S. 436, 479 (1966). While SA
Engelman’s question was not interrogation as measured under
Article 31, Appellant could nonetheless invoke her Fifth
Amendment right to silence in response to the question. The
right to remain silent “protects against any disclosures that
the witness reasonably believes could be used in a criminal
prosecution or could lead to other evidence that might be so
used.” Kastigar v. United States, 406 U.S. 441, 444-45 (1972).
"[A]pplication of the privilege is not limited to persons in
custody or charged with a crime; it may also be asserted by a
suspect who is questioned during the investigation of a crime."
9
United States v. Traum, No. 02-0885/AF
United States v. Alameda, 57 M.J. 190, 199 (C.A.A.F. 2002). See
also Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000); United
States v. Brunson, 952 F.2d 1196, 1201 (10th Cir. 1991), cert.
denied, 503 U.S. 997 (1992); Coppola v. Powell, 878 F.2d 1562,
1568 (1st Cir. 1989), cert. denied, 493 U.S. 969 (1989); United
States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir.
1987).
This Court has established that “[i]f the individual
indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation
must cease[.]” United States v. Sager, 36 M.J. 137, 145 (C.M.A.
1992)(quoting Miranda, 384 U.S. at 473). This important
principle is incorporated in the Manual for Courts-Martial as
well. “If a person chooses to exercise the privilege against
self-incrimination . . . questioning must cease immediately.”
M.R.E. 305(f)(1). Although no particular words or actions are
required to exercise one’s Fifth Amendment right to silence, we
have held that its invocation must be unequivocal before all
questioning must stop. Sager, 36 M.J. at 145; see United States
v. Schake, 30 M.J. 314, 319 (C.M.A. 1990); see also Campaneria
v. Reid, 891 F.2d 1014, 1021 (2d Cir. 1989), cert denied, 499
U.S. 949 (1991).
Appellant’s response that “she did not want to talk about
the details of the night of 20/21 December 1998” did not
10
United States v. Traum, No. 02-0885/AF
foreclose the possibility that she was willing to take the
polygraph and discuss other aspects of the investigation, such
as the child’s medical history or the manner in which Appellant
cared for her child. Thus, Appellant’s words did not
unequivocally invoke her right to remain silent.
SA Engelman, who was not assigned to administer the
polygraph, informed Appellant that she might not have to talk
about all the details of that night, but that she was free to
raise her concerns with the individual administering the
examination. The military judge found Appellant understood this
advice. Later at the interview with SA Kraus, Appellant had the
opportunity to do as SA Engelman had advised. Instead,
Appellant voluntarily decided to take the examination. This
decision was made after being informed of, and waiving, her
right to counsel and her right to remain silent, as well as
after being informed of her right to refuse the polygraph
examination. Based on these facts, the military judge concluded
that Appellant made an informed decision to waive her rights
before making any admissions to SA Kraus and that her statement
was voluntary. We agree. Therefore, the military judge did not
abuse his discretion in admitting Appellant’s confession.
II
Expert Testimony at Trial
A. Background
11
United States v. Traum, No. 02-0885/AF
The Government’s case on the merits was comprised of
Appellant’s confession, testimony from the emergency first
responders, the medical examiner, a forensic pediatrician, and
several witnesses who described Appellant’s inappropriate grief
response.
Unsuccessful in its efforts to suppress the confession, the
defense proceeded at trial on the theory that Appellant’s
statement of January 13 was the false product of the agents’
efforts to induce Appellant into making a statement. The
defense also suggested during its opening statement that the
child may have died as a result of a seizure; a possibility the
defense maintained could not be eliminated beyond a reasonable
doubt by the Government. Finally, the defense attacked the
credibility and competence of the Government’s medical examiner.
This issue focuses upon the testimony of the Government’s
forensic pediatrician Dr. Cooper. Dr. Cooper was called by the
Government to discuss child abuse in general and in the words of
trial counsel, to help the members understand how “parents can
kill their children.” The defense moved in limine to preclude
the witness from offering what it felt was inadmissible profile
evidence and evidence of parental behavior that should otherwise
be the subject of eyewitness rather than expert witness
testimony.
12
United States v. Traum, No. 02-0885/AF
1. The Article 39(a) session
At a session pursuant to Article 39(a), UCMJ, 10 U.S.C. §
839(a) (2000), Dr. Cooper presented her qualifications and
experience to the military judge.3 She then testified about
child abuse and maltreatment as it pertained to inflicted
injuries on children. During this session, trial counsel asked
Dr. Cooper how one arrives at a diagnosis of fatal child abuse.
The doctor responded in part:
The most important aspects are the history as
given by the family or whoever was in sole custody of
the child. This is just critically important and
there is no form of medicine, typically, that proceeds
without a history. . . . And what is really critical
in that history is consistency of the history. If a
physically custodial person who presents with a child
to an emergency room environment gives a history that,
over that night or over the subsequent days to weeks,
changes, you have to be very concerned regarding the
fact that this may be an inflicted injury.
. . . .
The second thing we look at is the behavior of
the parents or whoever are the custodial people. The
behavior of the person taking care of the child is
very telling with respect to whether or not they are
exhibiting concern for the well-being of the child. .
. . The behavior and demeanor of the parent or the
custodial care provider at the time the child presents
3
Dr. Cooper previously served as the assistant chief of
pediatric service at Schofield Barracks, the chief of pediatrics
at Womack Army Medical Center, Deputy Commander for clinical
services, pediatric representative on the Family Advocacy Case
Management Team, instructor at the Army Medical Education
Department, and member of the Department of Defense Child
Fatality Review Committee. At the time of trial, she was the
primary forensic pediatrician for Cumberland County.
13
United States v. Traum, No. 02-0885/AF
to the hospital is an important fact and one which is
to be documented in the medical record.
Finally, the physical examination, which may
reflect exactly what happened at the time when you are
in the emergency room environment, but may actually,
ultimately, require the evaluation and determination
of a medical examiner. In certain types of child
maltreatment deaths, the physical examination or the
findings on the autopsy may not be one hundred percent
clear as to what has happened to the child. This is
particularly the case in suffocation or asphyxiation
type deaths . . . .
Dr. Cooper went on to explain that this tripartite methodology -
history, parental/custodial behavior, and examination - was
relied on by “numerous specialists in the field.” She then
named some of these “specialists,” including several forensic
pediatricians whom Dr. Cooper described as “well-known”
authorities in their field as well as certain law enforcement
professionals.
Trial counsel then shifted the focus of Dr. Cooper’s
testimony to the area of single episodes of child abuse versus
multiple episodes. Relying on a work by a Dr. James A.
Monteleone entitled Child Maltreatment (2d ed. 1998), which Dr.
Cooper considered an authoritative reference, she testified that
“[i]n eighty percent of fatal child abuse cases, that fatal
event is the first time that that child has ever been abused.”
Next, relying on a report by the Advisory Board on Child Abuse
14
United States v. Traum, No. 02-0885/AF
and Neglect,4 Dr. Cooper testified that according to the report
“the people most likely to kill children are their biological
parents – overwhelmingly so.” Citing to professional literature
in her field, Dr. Cooper further testified that there are two
different categories of predisposing factors to child abuse and
neglect - one category pertaining to the child and one
pertaining to the adult. Regarding the category relevant to the
child, Dr. Cooper stated that “the leading cause of trauma
death, now, in the United States, for children under the age of
four, is child maltreatment.” She then discussed the adult
category that included such factors as the presence of substance
abuse, the presence of biological parents as opposed to step-
parents and babysitters, and whether the child was in a military
family setting.
Finally, following Dr. Cooper’s testimony pertaining to the
methodology that considers history, behavior, and physical
examination, trial counsel sought Dr. Cooper’s ultimate opinion
as to Caitlyn Traum’s cause of death. Before doing so, however,
trial counsel asked Dr. Cooper what evidence and documents she
reviewed in forming her opinion. She stated that she reviewed
Caitlyn’s medical records, Caitlyn’s sister’s medical records,
4
The U.S. Advisory Board on Child Abuse and Neglect was
established under Pub. L. No. 100-294, section 103, of the Child
Abuse Prevention and Treatment Act, amendments of 1988. The
report referenced by Dr. Cooper is entitled, A Nation’s Shame:
Fatal Child Abuse and Neglect in the United States (1995).
15
United States v. Traum, No. 02-0885/AF
and the investigation reports that included Appellant’s
confession, the emergency medical responses, Family Advocacy
records, and the autopsy reports. She then opined, “I feel that
her cause of death is homicide or an inflicted fatal child
abuse.” Dr. Cooper added that she believed the child died as a
result of inadequate oxygen consistent with asphyxiation and
that Caitlyn “was asphyxiated through a suffocation method.”
Her reasoning was as follows:
The reason that I believe that is, first of all, the
child died in a manner that cannot be explained by
Sudden Infant Death Syndrome or any other obvious
medical cause. . . . The second reason that I believe
this is the case is because the history given by the
custodial person-in this case, her mother-varied from
the time she talked to the EMS personnel to the time
that she talked to the individuals at the hospital, a
very key element.
. . . .
. . . She gave a different history as to what had
happened to the child. Whenever you see a change in
history as to what has happened, that is a very
critically important element when you’re trying to
decide if this is an accidental versus inflicted injury.
And then the third reason that I believe this is because
this child had trauma to her upper lip. Now, I
understand that this patient underwent significant
resuscitation efforts, but I have most certainly seen
and evaluated suffocation victims-death cases-where
children were suffocated to death, who had similar
injuries to the inner aspect of their upper lip.
Following the testimony presented at the Article 39(a)
session, defense counsel challenged Dr. Cooper’s tripartite
methodology. The defense focused on Dr. Cooper’s use of the
16
United States v. Traum, No. 02-0885/AF
victim’s history as well as her use of the behavior of the
custodial parent. Defense counsel also argued that Dr. Cooper’s
consideration of Appellant’s inconsistent history regarding
Caitlyn’s condition amounted to an expert’s assessment of
Appellant’s credibility and was therefore impermissible.
Finally, the defense asserted that Dr. Cooper’s reliance on
Appellant’s alleged inappropriate grief response was
inadmissible character evidence because it portrayed Appellant
as a bad parent. While defense counsel suggested that the
doctor’s opinion was based on only one aspect of Appellant’s
conduct, her grieving reaction, Dr. Cooper steadfastly insisted
that this factor was merely one of a number of factors
considered in the “whole assessment when you look at the
history, behavior, physical examination and autopsy finding.”
After taking Dr. Cooper’s testimony at the Article 39(a)
session, the military judge heard argument from both sides as to
their view of the permissible parameters of Dr. Cooper’s
testimony before the members. The military judge then ruled
that he would allow Dr. Cooper’s testimony regarding child abuse
in general, her testimony regarding single episode versus
multiple episodes of child abuse, her statement that biological
parents are the most likely to fatally abuse their children, and
the factors relevant to history, behavior, and physical
examinations relied upon by experts in diagnosing fatal child
17
United States v. Traum, No. 02-0885/AF
abuse. The military judge reasoned that this testimony would be
allowed because “it is counterintuitive for a parent to kill
their eighteen month old child, based on the facts that have
come out so far.”
The military judge also ruled that the expert would not be
allowed to testify regarding the so-called adult category of
predisposing factors of child abuse. The judge prohibited such
testimony because he felt it got into profile evidence and ran
“awfully close to the types of things that the courts have found
to be error.” He also ruled that the witness would not be
allowed to testify about a typical grieving parent’s reaction as
contrasted against that of a non-grieving parent. The judge
reached this decision because “the [M.R.E.] 403 [prejudice]
aspect here outweighs the probative value for the members.”
Finally, the judge determined that Dr. Cooper would not be
permitted to render her opinion that the cause of death was
inflicted fatal child abuse. However, he did rule that the
witness could give her opinion that the cause of death was non-
accidental asphyxiation. After further discussion, defense
counsel indicated that he understood the military judge’s
ruling, but indicated his objection to the testimony still
stood. Thereafter, the military judge concluded the Article
39(a) session.
18
United States v. Traum, No. 02-0885/AF
2. Dr. Cooper’s testimony before the members
During the trial before the members, trial counsel elicited
testimony from Dr. Cooper consistent with the rulings by the
military judge. In particular, she testified, “Overwhelmingly,
the most likely person to kill a child is going to be his or her
own biological parent.” Dr. Cooper also testified that “[i]f a
child is less than four years of age, the most common cause of
trauma death is going to be child maltreatment.” The third
statement given before the members was, “Eighty percent of
children who die, die from a one-time event.” After further
testimony relevant to various seizure disorders, sudden infant
death syndrome, means by which children accidentally suffocate,
and other aspects of fatal child abuse, Dr. Cooper concluded her
testimony with the following statement: ”It is my medical
opinion that the cause of death for Caitlyn Traum was
asphyxiation of a non-accidental nature.” There was no cross-
examination from the defense.
B. Discussion
Appellant challenges Dr. Cooper’s testimony on two grounds.
First, Appellant asserts that three of Dr. Cooper’s opinions
that were presented to the members constituted profile evidence.
In particular, the defense focused on these statements:
19
United States v. Traum, No. 02-0885/AF
“[i]f a child is less than four years of age, the most
common cause of trauma death is going to be child
maltreatment”;
“Eighty percent of children who die, die from a one-time
event”; and
“Overwhelmingly, the most likely person to kill a child is
going to be his or her own biological parent.”
Second, Appellant maintains that the military judge erred
in admitting Dr. Cooper’s testimony because it was based on Dr.
Cooper’s review of Appellant’s behavior in the emergency room.
We review Appellant’s arguments in turn to determine whether the
military judge abused his discretion in allowing all or part of
Dr. Cooper’s testimony. See United States v. Houser, 36 M.J.
392, 397 (C.M.A. 1993).
1. Profile Evidence
Before expert testimony may be admitted, the following
factors must be established by the proponent of such testimony:
(A) the qualifications of the expert, Mil.R.Evid.
702;[5] (B) the subject matter of the expert testimony,
Mil.R.Evid. 702; (C) the basis for the expert
testimony, Mil.R.Evid. 703; (D) the legal relevance of
the evidence, Mil.R.Evid. 401 and 402; (E) the
reliability of the evidence, United States v. Gipson,
24 M.J. 246 (CMA 1987), and Mil.R.Evid. 401; and (F)
whether the ‘probative value’ of the testimony
outweighs other considerations, Mil.R.Evid. 403.
5
At trial, the military judge accepted Dr. Cooper as an expert
in the field of forensic pediatrics without objection from
defense counsel. Thus, Dr. Cooper’s qualifications are not in
issue on appeal.
20
United States v. Traum, No. 02-0885/AF
Houser, 36 M.J. at 397.
Expert testimony is admissible when “scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue[.]”
M.R.E. 702. “The test is not whether the jury could reach some
conclusion in the absence of the expert evidence, but whether
the jury is qualified without such testimony ‘to determine
intelligently and to the best possible degree the particular
issue without enlightenment from those having a specialized
understanding of the subject[.]’” Houser, 36 M.J. at 398.
In contrast, “[g]enerally, use of any characteristic
‘profile’ as evidence of guilt or innocence in criminal trials
is improper.” United States v. Banks, 36 M.J. 150, 161 (C.M.A.
1992). See Brunson v. State, 79 S.W.3d 304, 313 (Ark.
2002)(rejecting testimony that the defendant met eight of ten
risk factors for batterers likely to kill); Commonwealth v. Day,
569 N.E.2d 397, 400 (Mass. 1991)(child battering profile
inadmissible); State v. Clements, 770 P.2d 447, 454 (Kan.
1989)(finding evidence of psychology and treatability of a child
sexual offender inadmissible); United States v. Garcia, 25 M.J.
159 (C.M.A. 1987)(summary disposition)(rejecting testimony that
appellant’s psychological profile was consistent with a person
who sexually abused children); United States v. August, 21 M.J.
363 (C.M.A. 1986)(rejecting a profile of the “usual” sexual
21
United States v. Traum, No. 02-0885/AF
child abuser); Sanders v. State, 303 S.E.2d 13 (Ga. 1983)(state
cannot introduce evidence of battering parent syndrome); State
v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981)(evidence placing the
defendant within the profile of a battering parent
inadmissible). Profile evidence is 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. United
States v. Rynning, 47 M.J. 420, 422 (C.A.A.F. 1998).
The question in this case is whether Dr. Cooper’s opinions
constituted impermissible profile evidence or whether they were
admissible opinions of specialized knowledge under M.R.E. 702.6
Child abuse is an area where specialized knowledge regarding
pediatric forensics and child abuse may indeed be helpful to
members. Children incur all sorts of injuries as they move
through infancy to the toddler years and beyond. Thus, a panel
might well benefit from an understanding of the methodology
doctors use to determine the cause of an infant’s injury. In
the case of fatal child abuse, the value of such specialized
knowledge is equally apparent. Such information helps members
6
Appellant did not raise a challenge under Daubert regarding the
reliability of Dr. Cooper’s methodology or her conclusion of
“non-accidental asphyxiation.” See Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993). Therefore, we do not
address what impact, if any, a Daubert challenge would have had
on the scope and content of Dr. Cooper’s testimony.
22
United States v. Traum, No. 02-0885/AF
discern the critical elements of testimony and place that
testimony within an analytic framework. This information may
also help disabuse members of preconceptions that might cloud
their ability to focus on the evidence presented as opposed to
preconceptions about the nature of the offense at issue. In
light of this predicate, we believe Dr. Cooper’s first two
statements fall within the rubric of specialized knowledge that
is useful to the members in understanding the evidence and
determining a fact in question. This testimony was given in the
context of her general description of fatal child abuse.
Further, these particular statements relate to the
characteristics of the child victim in this case rather than
Appellant. Comparable evidence has been admitted in cases
involving rape trauma syndrome. See United States v. Reynolds,
29 M.J. 105, 111 (C.M.A. 1989). Similarly, evidence of battered
child syndrome is often admitted to show that a particular
injury “is not accidental or is not consistent with the
explanation offered therefore but is instead the result of
physical abuse by a person of mature strength.” United States
v. White, 23 M.J. 84, 87 (C.M.A. 1986).
As we explained in Banks, the ban on profile evidence
exists because this process treads too closely to offering
character evidence of an accused in order to prove that the
accused acted in conformity with that evidence on a certain
23
United States v. Traum, No. 02-0885/AF
occasion and committed the criminal activity in question. This,
of course, is prohibited under M.R.E. 404(a)(1). See Banks, 36
M.J. at 161. These two statements by Dr. Cooper do not
implicate that concern because they relate to the
characteristics of the child victim in this case rather than
Appellant.
What we condemned in Banks was the Government’s
construction of a syllogism “(major premise, minor premise, and
conclusion)” used in persuading the members that the appellant
was a child abuser. 36 M.J. at 162 n.11. In that case, the
Government, through its expert witness, presented the major
premise that families with a profile of three particular
identified risk factors presented an increased risk of child
sexual abuse. The Government then established through further
testimony the minor premise that Banks and his family fit this
profile. Finally, the prosecution argued for the conclusion
that since the minor premise established the major premise, the
members could not help but decide that Banks was a child abuser.
We discern no such tactic in the record of this case.
Testimony setting up a child battering profile must be
distinguished from testimony focusing on the characteristics of
a battered child. See Day, 569 N.E.2d at 400. See also Myrna
S. Raeder, The Better Way: The Role of Batterers’ Profiles and
Expert “Social Framework” Background in Cases Implicating
24
United States v. Traum, No. 02-0885/AF
Domestic Violence, 68 U. Colo. L. Rev. 147, 160
(1997)(discussing the distinction between battered wife syndrome
and evidence of a batterer profile). The former is irrelevant
because it is not necessarily true that an accused is a batterer
just because the individual fits a certain profile. However,
the latter is often helpful in determining a fact in issue.
This is especially true when deciding, as in the instant case,
whether the child died from a seizure as posited by the defense
or whether she was suffocated as alleged by the Government. We
conclude Dr. Cooper’s testimony was the latter.
Dr. Cooper’s third statement, “Overwhelmingly, the most
likely person to kill a child is going to be his or her own
biological parent,” is more troubling. Following Dr. Cooper’s
testimony and counsel’s respective arguments at the Article
39(a) session, the military judge contextually culled out the
testimony he considered profile in nature. Consequently, the
military judge attempted to limit Dr. Cooper’s testimony to
child characteristics of abuse like the history of diagnosing
child abuse, fatal versus nonfatal child abuse, and single
episode versus multiple episodes of abuse. The judge barred Dr.
Cooper from testifying regarding adult characteristics of child
abusers, like substance abuse, living in a military environment,
and the parent of an unplanned pregnancy.
25
United States v. Traum, No. 02-0885/AF
Nevertheless, Dr. Cooper’s statement regarding biological
parents clearly reached both the characteristics of the victim
as well as the characteristics of the typical offender. It is
not enough to say that the Government did not expressly place
the accused within the statistic presented, for the accused
manifestly fit the statistical pattern presented without the
Government connecting the dots. Moreover, while Dr. Cooper’s
testimony did not come in the form of numeric probability,
members might have been left with the impression that if the
testimony indicated Appellant’s daughter died as a result of
child abuse, the probability Appellant committed the offense was
“overwhelming,” regardless of what specific evidence was
presented. In essence, the statement placed a statistical
probability on the likelihood that Appellant committed the
offense. Thus, we conclude that it was impermissible profile
evidence.
However, any error in admitting this statement was
harmless. First, the evidence was introduced after Appellant’s
confession had been admitted and presented to the members.
Second, the critical question in this case was whether the
victim died by accidental or intentional asphyxiation, not the
identity of the perpetrator. Appellant did not contest being
alone with the victim at the time of the child’s injury.
26
United States v. Traum, No. 02-0885/AF
2. Basis for the Expert’s Opinion
Appellant also argues that Dr. Cooper should not have been
allowed to give her ultimate opinion on the cause of Caitlyn’s
death because it was not based solely upon medical evidence, but
also rested upon her subjective evaluation of Appellant’s
grieving conduct. In particular, during the Article 39(a)
session, Dr. Cooper testified that when forming her opinions she
considered the fact that Appellant gave differing accounts
regarding Caitlyn’s condition to the 911 operator, the
paramedics when they arrived at her quarters, and to the
hospital personnel when the child arrived at the emergency room.
Dr. Cooper also considered certain statements Appellant
allegedly made to witnesses at the hospital as suggestive of an
uncharacteristic and inappropriate grief response. For example,
Appellant was alleged to have stated to one witness who was
trying to console her at the hospital, “I’m just glad I saved
the toy receipts.” Traum, No. ACM 34225 Slip op. at 2. When
this witness commented that the dead child had been a beautiful
girl, Appellant stated, “She really was mean. She was mean to
her sister and really active.” Id. at 3. At root, Appellant
argues these remarks were observations lay persons could observe
and testify to without medical knowledge. Therefore, Dr.
Cooper’s testimony was not based on specialized medical
27
United States v. Traum, No. 02-0885/AF
knowledge, but ordinary lay observations already offered to the
members by non-expert witnesses.
An expert’s opinion may be based upon other sources such as
“personal knowledge, assumed facts, documents supplied by other
experts,” or the testimony of witnesses at trial. Houser, 36
M.J. at 399; M.R.E. 703. Dr. Cooper’s testimony indicates that
her opinions were not based solely on Appellant’s grieving
reaction, but on a tripartite methodology generally accepted as
authoritative in the forensic pediatric field. This methodology
focuses on the history of events leading to a child’s condition,
the behavior of the custodial caretaker, and the physical
examination reports including those from the autopsy. Further,
the record supports a conclusion that this methodology is relied
on by experts in the field of forensic pediatrics. M.R.E. 703
allows experts to rest their opinions on precisely this basis.
Therefore, it is clear Dr. Cooper’s testimony was rooted in more
than lay observations regarding Appellant’s conduct. Moreover,
it was the eyewitnesses and not Dr. Cooper who testified to the
members about Appellant’s reactions in the emergency room.
3. Probative Value
However relevant and reliable an expert’s testimony might
be, such evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the members[.]” M.R.E.
28
United States v. Traum, No. 02-0885/AF
403. The record indicates that the military judge was acutely
aware of the dangers of profile evidence. It is worth noting
the military judge’s comment at the time he made his ruling with
regard to admission of Dr. Cooper’s testimony. The judge
clearly considered the expert’s testimony balanced against “the
facts that have come out so far.” When Dr. Cooper testified
during the trial, the members had already received Appellant’s
confession, the testimony of the medical examiner, and the
testimony of various witnesses concerning statements Appellant
made indicating either a lack of grief or at best, an
inappropriate grief response. Further, the military judge
culled out what he thought was impermissible profiling of
Appellant and allowed opinions that were based on the
professional literature of the field of expertise and on a
methodology accepted by experts in that field. Finally, it is
clear the military judge understood the constraint of M.R.E. 403
when he was determining what would or would not be allowed.
Based on this record, we cannot say the military judge abused
his discretion in weighing the probative value of the expert
testimony against any prejudicial effect it might have
presented.
29
United States v. Traum, No. 02-0885/AF
III
Life Without Possibility of Parole
Finally, Appellant takes issue with the advice given to the
convening authority by the staff judge advocate. The advice
given stated that the “maximum imposable sentence for the
offense of [premeditated murder] of which SrA Traum was
convicted is life imprisonment, without eligibility for parole.”
SJAR, para. 6 (emphasis added). Article 56a, UCMJ, 10 U.S.C. §
856a (2000), was enacted on November 18, 1997. Appellant was
sentenced on September 17, 1999. In light of our recent
decision in United States v. Ronghi, 60 M.J. 83 (C.A.A.F. 2004),
life without eligibility for parole was an authorized punishment
at the time of Appellant’s trial.
Decision
The military judge did not abuse his discretion in
admitting the expert testimony or Appellant’s confession, nor,
was there error in the post-trial processing of Appellant’s
case. The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
30
United States v. Traum, No. 02-0885/AF
GIERKE, Judge, with whom EFFRON, Judge, joins (concurring
in part and in the result):
I agree with the majority on all issues except I(A),
concerning the necessity to provide rights warnings before a law
enforcement agent may ask a suspect to take a polygraph
examination.
Regardless of whether, as a general matter, such a request
is reasonably likely to elicit an incriminating response, in
this case it did not do so. Rather, all of Appellant’s
incriminating statements were made only after Special Agent
Kraus had informed Appellant of her rights pursuant to Article
31, Uniform Code of Military Justice, 10 U.S.C. § 831 (2000),
Miranda v. Arizona, 384 U.S. 436 (1966), and United States v.
Tempia, 16 C.M.A. 629, 37 C.M.R. 249 (1967), and after Appellant
waived those rights.
Voluntariness is the touchstone for determining a
subsequent statement’s admissibility even where the suspect has
let the cat out of the bag in a previous unwarned but voluntary
statement. See United States v. Lichtenhan, 40 M.J. 466 (C.M.A.
1994). In this case, Appellant made no incriminating statements
before Special Agent Kraus gave her a complete rights warning
and obtained a waiver of those rights. Because Special Agent
Engelman’s request resulted in no taint, it did not affect the
Appellant’s admissions to Special Agent Kraus. There is,
United States v. Traum, No. 02-0885/AF
therefore, no need to resolve issue I(A). I reserve judgment on
that legal issue.
2
United States v. Traum, 02-0885/AF
ERDMANN, J. (concurring in part and in the result):
I agree with the majority on all issues other than the
nature of the three statements made by Dr. Cooper. In the
context of this case, these statements are improper
profiling evidence in that they characterized Senior Airman
Traum as a person who would both abuse and kill her natural
child.
I recognize the distinction made by the majority
between testimony relating to the characteristics of a
child victim and the characteristics of an accused.
However, testimony that in isolation would not constitute
“profiling” evidence may well become “profiling” when heard
in the context of a particular case. This is such a case.
Before the members, Dr. Cooper first stated that
“eighty percent of children who die, die from a one[-]time
event.” Because there was no evidence of prior abuse and
unrefuted evidence that Traum had been alone with her baby
prior to the death, this statement had the effect of
rendering it 80% likely that Traum was the cause of the
“one[-]time event” that resulted in her baby’s death.
Dr. Cooper’s next statement was that “[i]f a child is
less than four years of age, the most common cause of
trauma death is going to be child maltreatment.” The
prosecution had already established that the baby was under
1
United States v. Traum, 02-0885/AF
four, showed evidence of physical trauma and was alone with
Traum during the time any trauma could have been inflicted.
In conjunction with the earlier evidence, this statement
identified the death as resulting from trauma and
identified Traum as the only person who could have
inflicted the trauma. These two conclusions were virtually
inseparable and the second is clearly beyond the realm of
permissible expert testimony.
As noted by the majority, Dr. Cooper’s final statement
is certainly the most troublesome: “Overwhelmingly, the
most likely person to kill a child is going to be his or
her own biological parent.” Contextualized, Dr. Cooper’s
statement meant that Traum, as the biological parent, was
overwhelmingly the most likely person to have killed her
child. An expert may not testify that the accused
committed the crime being tried, and Dr. Cooper should not
have been permitted to do through presentation of
“information or data” that which she could not have done
through direct testimony. See United States v. Diaz, 59
M.J. 79, 92 (C.A.A.F. 2003)(noting “fundamental rule of law
that experts may not testify as to guilt or innocence”).
In United States v. Banks, 36 M.J. 150, 161 (C.M.A.
1992), this Court condemned “use of any characteristic
‘profile’ as evidence of guilt or innocence in criminal
2
United States v. Traum, 02-0885/AF
trials.” We defined the nature of such improper profile
evidence to go beyond character evidence per se:
Inadmissible profile evidence does not
merely address a profile where the
factors relate only to a “character
trait” of the accused. The factors in
the profile may be any information or
data so as to place appellant in an
alleged “group” of persons who have
committed offenses in the past.
Id. at 163. While all three of Dr. Cooper’s statements
constitute “profiling” evidence, taken together they
certainly could cause the members to classify Traum as a
child abuser and killer. Consistent with our holding in
Banks, these statements carry the danger of prejudice
“greatly” outweighing any probative value the information
may have. Id. at 161. Evidence such as this turns the
trial of criminal charges away from one of facts to “a
litmus-paper test for conformity with any set of
characteristics, factors, or circumstances.” Id.Finally, in this case the military judge admitted the
three statements because it was “counterintuitive” that a
parent would be involved in the death of his or her child.
This ruling reveals that the military judge admitted the
evidence not to show that the child’s death was a crime,
but to show specifically that the parent was the
perpetrator. The very purpose for which the statements
3
United States v. Traum, 02-0885/AF
were admitted was to identify Traum as one of a very
limited group who would kill her child based on
probabilities and inferences rather than upon the facts of
the case.
Nevertheless, for the same reasons that the majority
found the error with respect to the admission of Dr.
Cooper’s third statement to be harmless, I find that the
error relating to the admission of all three statements to
be harmless. Therefore, I join in affirming the decision
of the court below.
4