United States v. Ike Kozminski, Margarethe Kozminski, and John Kozminski

KRUPANSKY, Circuit Judge,

concurring.

I concur in Judge Merritt’s well-reasoned opinion and the decision of the majority to reverse the judgment of the trial court and its order to remand this case for further action not inconsistent with the judgment of the majority of the en banc court.

I write separately merely to observe that Dr. Stock, speaking through the record, takes exception to the following hypotheses *1199 upon which the logic of the dissent seeks to evolve its reasoning:

1. that his expert opinion testimony advancing the novel concept of involuntary conversion and its relationship to involuntary servitude was not anchored in the scientifically accepted theory of captivity syndrome;

2. that his novel concept was not a scientific explanatory theory of first impression but one that had gained general acceptance within the particular scientific field to which it belonged;

3. that the transcript of the record does not contest his novel concept as scientific theories that had gained general acceptance within the particular scientific field to which they belonged.

Dr. Stock insisted throughout his testimony, as demonstrated by the record, that the scientifically recognized and accepted theories of “captivity syndrome” and “post-traumatic stress disorder” were seminal to his concept of “involuntary conversion” as it related to involuntary servitude. The entire thrust of the government’s evidence was structured upon the keystone of his efforts to correlate his conclusions with “captivity syndrome” and “post-traumatic stress disorder.” His inability to accomplish this calculated result within the mandates of existing legal precedent gives rise to this order of reversal and remand to the trial court.

It should be initially noted that the defendants were convicted of a conspiracy to violate the rights of Fulmer and Molitoris to be free from involuntary servitude in violation of 18 U.S.C. § 241 and of actually holding Fulmer and Molitoris to involuntary servitude and preventing them from leaving the farm where they worked in violation of 18 U.S.C. § 1584 . Both charges mandated proof of intent to commit the offenses.

It was not the government’s theory in presenting this case that either Fulmer or Molitoris were restrained from leaving the farm and the defendants’ employment by either physical force or threats of physical force. Rather, it was the thrust of the government’s proof that both Fulmer and Molitoris, as a result of an “involuntary conversion” became “psychological hostages” and lost their “will” to leave the farm and the service of the defendants.

Dr. Stock’s testimony was the only evidence that addressed the very essence of the government’s charges, and was, therefore, the sine qua non of the jury’s verdict, without which the conviction could not stand.

An appropriate point of departure for my chronology is a definition of and purpose for the rule that identifies the standard to be applied in considering the admissibility of scientific evidence in the form of expert testimony.

The rule is simply stated in United States v. Brown, 557 F.2d 541, 556 (6th Cir.1977), and echoed in its progeny within and without this circuit in the following language:

A necessary predicate to the admission of scientific evidence is that the principle upon which it is based “must be sufficiently established to have gained general acceptance in a particular field to which it belongs,” Frye v. United States, 54 App.D.C. 46 , 293 F. 1013, 1014 (1923). In United States v. Franks, 511 F.2d 25 , 33 n. 12 (6th Cir.1975), we equated general acceptance in the scientific community with a showing that the scientific principles and procedures on which the expert testimony is based are reliable and sufficiently accurate.

The purpose for the rule is equally simple. It evolved to avoid the potential prejudicial impact of “the aura of special reliability and trustworthiness” which attaches to expert testimony admitted without proper foundation which may confuse or mislead the trier of fact and thus defeat a defendant’s right to a fair trial.

Perhaps the purpose behind the rule is best articulated in Brown, 557 F.2d at 556 , where this court admonished:

A courtroom is not a research laboratory. The fate of a defendant in a criminal prosecution should not hang on his ability to successfully rebut scientific evi *1200 dence which bears an “aura of special reliability and trustworthiness,” although in reality the witness is testifying on the basis of an unproved hypothesis in an isolated experiment which has yet to gain acceptance in its field. See e.g., United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.1973); Frye v. United States, 293 F. at 1014 .

The permissible limits of expert testimony have been traditionally delegated to the sound discretion of the trial court. The scope of this discretion has been broadly construed, and the trial court’s exercise of its discretion is to be sustained “unless it is manifestly erroneous.” Brown, 557 F.2d at 556 ; United States v. Green, 548 F.2d 1261, 1268 (6th Cir.1977). See also United States v. August, 745 F.2d 400, 407 (6th Cir.1984). However, such discretion must be exercised, on an ad hoc basis, by balancing the probative value of the evidence against its prejudicial effect upon the defendant’s right to a fair trial. See Fed.R. Evid.403.

I fully recognize and endorse the proposition that absolute certainty of result or unanimity of scientific opinion is not required for admissibility so long as the conflicting testimony concerning the conclusions drawn by the experts are based on generally accepted and reliable scientific principles.

Having reviewed the rule that is decisive to the admissibility of a scientific explanatory theory and the purpose for its existence, it is obvious that expert testimony is not permissible in every case where the witness purports to base his testimony on ostensibly scientific principles. See, e.g., Frye v. United States, 293 F. 1013 (D.C.Cir.1923); United States v. Franks, 511 F.2d 25 , 33 n. 12 (6th Cir.), cert. denied, 422 U.S. 1042 , 95 S.Ct. 2656 , 45 L.Ed.2d 693 (1975); United States v. Green, 548 F.2d 1261 (6th Cir.1977); United States v. Brown, 557 F.2d 541 (6th Cir.1977); United States v. Brady, 595 F.2d 359 (6th Cir.), cert. denied, 444 U.S. 862 , 100 S.Ct. 129 , 62 L.Ed.2d 84 (1979); United States v. Amaral, 488 F.2d 1148 (9th Cir.1973).

Mindful of the rule, its purpose, and the parameters of its application, my observations merely attempt to present an analysis of the scientific conclusions and concepts applied by Dr. Stock to the facts of this case.

Factually, it is conceded that both Fulmer and Molitoris were mentally retarded, however, not to the degree inferred in the dissenting opinion. The record reflects that both individuals had an acute awareness of their past activities, their existing environment, working conditions, and their general responsibilities and duties. They were well-oriented as evidenced by their abilities to attend, understand, and enjoy baseball games; to understand and follow the various serial presentations of “soap operas” and other television programs which they viewed on a daily basis in their trailer on a television set furnished by the defendants; and to visit and converse with neighbors from time to time and return to the defendants’ farm. Their personal appearance, hygiene, and living conditions within the house trailer furnished by the defendants were of their own choice. Bunks, running water, soap, and showers were always available to them in the bunkhouse. The defendants imposed no regimen upon the lifestyles adopted by the two men. As a matter of fact, although the Kozminskis resided in the vicinity of the farm where Fulmer and Molitoris lived and worked, they seldom visited the farm more frequently than once a week. Fulmer often complained that John Kozminski’s single visit was too isolated to provide Kozminski with an insight into the problems inherent to operation of the farm.

The lifestyles of both Fulmer and Molitoris prior to coming to the defendants’ farm reflected an unfortunate history of aimless dereliction without significant family relationships. Prior to working as a farm hand for the defendants, Molitoris, who was 60 years of age, was a street person who got his food where he found it, “had slept in cardboard boxes in the winter” and in an old ice box, and “drank homemade wine.” Fulmer, age 59 years, had lived in a foster home from age 5 to 11 years and was thereafter institutionalized, *1201 where he was taught to work as a farm hand. Upon release from the institution, he drifted from farm to farm performing the same simple, menial chores he performed for the defendants.

Of greatest significance in addressing the opinion testimony of Dr. Stock within the context of this case are the concessions of the parties that (a) neither Fulmer nor Molitoris were ever physically confined or restrained; (b) they were at all times physically free to leave the farm at will; (c) they knew they were free to leave the farm; (d) they did in fact individually and together leave the farm on numerous occasions; (e) they returned of their own accord or were picked up by the defendants as a result of telephone calls from third parties; 1 (f) they associated freely with each other, with other farm hands working the farm, and with neighbors on occasion; (g) they remained at or returned to the defendants’ farm, in the words of Fulmer, “because he had no place to go.”

Dr. Stock tailored his purported scientific opinions to the above related facts and concluded that, as a result of the living conditions to which Molitoris and Fulmer were intentionally exposed by the defendants, the two men experienced, in Dr. Stock’s coined terminology, an “involuntary conversion,” became “psychological hostages,” and thus were held to involuntary servitude by the defendants’ willful acts as charged in the indictment.

In determining the admissibility of Dr. Stock’s expert testimony within the pronouncements of existing precedent as discussed herein, I am directed to the guidelines enunciated in United States v. Amaral, 488 F.2d 1148 (9th Cir.1973), and subsequently adopted by this circuit in Green, 548 F.2d at 1268 , and applied in Brown, 557 F.2d at 566 , and United States v. Smith, 736 F.2d 1103, 1105 (6th Cir.), cert. denied, 499 U.S. 868 , 105 S.Ct. 213 , 83 L.Ed.2d 143 (1984):

Four factors must appear in the record to uphold the admission of expert testimony: 1. qualified expert; 2. proper subject; 3. conformity to a generally accepted explanatory theory; and 4. probative value compared to prejudicial effect.

Brown, 557 F.2d at 556 .

The third element enumerated in Amaral provides that such expert testimony must be in “conformity to a generally accepted explanatory theory.” Implicit in the language is the predicate that the theory be firmly anchored in sound, reliable, and sufficiently accurate scientific principles, and sufficiently established to the point of having achieved general acceptance within the particular field to which it belongs. Stated differently, the scientific explanatory theory must have (a) received at least some exposure within the scientific peerage to which it belongs; (b) received peer evaluation to determine its scientific validity and reliability; and (c) achieved general acceptance within the scientific community to which it belongs.

Apart from the comments of his scientific peers, Dr. Stock’s own admissions render his conclusions inadmissible under existing legal standards. At the outset, Dr. Stock’s progression from “involuntary conversion” through “psychological hostage” to the ultimate result of “involuntary servitude” must be distinguished from his testimonial discussion of “captivity syndrome” and “post-traumatic stress disorder.” The distinction is critical to an analysis of his testimony since “captivity syndrome” and “post-traumatic stress disorder” are mutually exclusive and have independent origins, as will be more fully hereinafter discussed.

The “captivity syndrome,” as a characterized condition, had its genesis as a predictable scientific phenomenon in 1924 when Ivan Pavlov, a Russian physicist, first perceived the relationship between prolonged physical and equivalent mental stress and control of behavior patterns. The subject again received considerable notoriety as a result of a proliferation of prisoner of war and concentration camps that existed during World War II.

*1202 The practice, characterized in early scientific literature as the Triple-D Syndrome (debility, dependency, and dread), was refined into a highly sophisticated and effective ordeal by the Chinese during the Korean conflict. In published research, Dr. Robert Lifton, a noted psychiatrist, synthesized the concepts of “captivity syndrome” from his exhaustive studies and clinical evaluations of returning Americans held captive by the Chinese during the Korean war.

Obvious from the foregoing brief summary, the Triple-D Syndrome, currently characterized as “captivity syndrome,” had received wide exposure within the scientific community to which it belongs, had been evaluated by the peerage of that scientific community, and had received acceptance within that group, thereby satisfying the third criterion of Amaral . Equally well recognized within the peer group of psychiatrists and psychologists was the diagnosis of “post-traumatic stress disorder.” This diagnosis had, perhaps, received even greater exposure and acceptance than “captivity syndrome.”

It is interesting to note at this juncture that an examination of Dr. Stock’s testimony discloses that whenever he resorted to supporting an opinion or conclusion by published research or peer endorsement, he referred, with experienced subtlety, not to his theory of progression from “involuntary conversion” through “psychological hostage” to “involuntary servitude,” but rather to the conditions of “captivity syndrome” and “post-traumatic stress disorder,” both of which philosophies had received recognition and acceptance within the scientific community to which they belong.

Dr. Stock’s damaging, if not fatal, admissions condemned his opinion testimony as a hypothecation that had not “attained general acceptance in the scientific community.” Brown at 556 . He readily conceded that he was not aware of any literature, let alone published research, that addressed his theory; that the Diagnostic and Statistical Manual of Mental Disorders (Third Edition), the recognized official authority of the American Psychiatric Association, carried no listing for “involuntary conversion” or “psychological hostage”; that his theory had never received peer recognition; and that he could not correlate his concepts to Dr. Lifton’s “captivity syndrome.” The coup de grace was, however, delivered by his own statements that his instant testimony represented the first case wherein he advanced his hypothecations of “involuntary conversion” and its relationship to “involuntary servitude.” 2 It is no wonder that his peers were initially unaware of his theory, and after having been apprised of his logic, characterized it as exceeding “sound professional practice, confused the situation” and “ridiculous” and an “invention of Stock.” Accordingly, the record disclosures make it evident that if, as Dr. Stock testified, his instant testimony was the first public presentation of his theory, it necessarily followed that it never received peer evaluation or validation, let alone recognition as an explanatory theory that had attained general acceptance within the scientific community to which it belonged within the mandates of existing precedent. See Green, Brown, Brady, Franks.

It is perhaps appropriate at this point to interpose my approval of the pronounce *1203 ments in United States v. Stifel, 433 F.2d 431, 438 (6th Cir.1970), cert. denied, 401 U.S. 994 , 91 S.Ct. 1232 , 28 L.Ed.2d 531 (1971), that “neither newness nor lack of absolute certainty in a test suffices to render it inadmissible in court. Every new development must have its first day in court.” The expression in Stifel , however, must be tempered with the longstanding teachings of Green, Brown, Brady, and Franks . Certainly, the application of Stifel would not apply to a theory of first impression as testified to by Dr. Stock.

In Brown , this court recognized the hazards of exposing the trier of facts to ostensibly scientific techniques which defied effective response under circumstances where the scientific theory had no demonstrable standard against which it could be evaluated, tested, or duplicated:

There are good reasons why not every ostensibly scientific technique should be recognized as the basis for expert testimony. Because of its apparent objectivity, an opinion that claims a scientific basis is apt to carry undue weight with the trier of fact. In addition, it is difficult to rebut such an opinion except by other experts or by cross-examination based on a thorough acquaintance with the underlying principles. In order to prevent deception or mistake and to allow the possibility of effective response, there must be a demonstrable, objective procedure for reaching the opinion and qualified persons who can either duplicate the result or criticize the means by which it was reached, drawing their own conclusions from the underlying facts.

Brown, 557 F.2d at 556 , quoting United States v. Baller, 519 F.2d 463, 466 (4th Cir.), cert. denied, 423 U.S. 1019 , 96 S.Ct. 456 , 46 L.Ed.2d 391 (1975).

The scope and magnitude of the confusion and prejudice generated by Dr. Stock’s testimony cannot be fully appreciated without an analysis of his reasoning. Dr. Stock postulated “in this particular case, the basis for the post-traumatic stress disorder as defined in the literature is the captivity syndrome. The captivity syndrome is the underlying event that causes the post-traumatic stress disorder, what occurs to people in captivity.” (emphasis added). Dr. Stock thereupon developed his logic in the following manner on direct examination:

Q. Well, isn’t it true that you contemplate ... telling the jurors, if allowed to do so, that the so-called traumatic event occured?

******

A. No. What I am contemplating telling the jurors, if the allegations are true, that it is my opinion, based on information that I had available to me and my knowledge as an expert witness, that these individuals did indeed suffer the captivity syndrome. They suffered from captivity syndrome.

On cross-examination he proceeded:

Q. Despite the fact there is not literature on that subject at all through the second day of February of 1984 that you are aware of or have read?

A. No. There is a lot of literature about the captivity syndrome.

Q. In relation to individuals who supposedly are kept under the conditions which existed here?

A. Yes. In the sense it may not have been called involuntary servitude, but the conditions are analogous to other such happenings.

Q. What were the analogous conditions?

A. Well, Mr. Stringer went through the 11 points [Dr. Lifton’s defined eleven essential elements underlying “captivity syndrome”]. If you would like, I’d be glad to go through it again.

Q. But those were all basically, were they not, where somebody was kidnaped or concentration camps or a prisoner of war camp?

A. That is right.

(emphasis added).

On further direct examination he elaborated:

Q. But you have examined these men and have an opinion as to whether or not they suffer a post-traumatic stress syndrome that would be consistent *1204 with a captivity syndrome prior to the time you examined them; is that correct?

A. Yes. Based on my understanding of the scientific literature and my clinical experience in the area.

Q. In fact, they did suffer from the captivity syndrome and now, post-traumatic stress syndrome, that would have affected their psychological ability to leave or end the — to leave the environment that was causing this syndrome; is that correct?

A. Yes. It seems to me the bottom-line question is if people have an opportunity to escape when they are being held in any situation, why don’t they? Captivity syndrome explains that.

THE COURT: Would you tell me how would you define the captivity syndrome?

THE WITNESS: The captivity syndrome, Your Honor, are psychological, are environmental manipulations that occur to make people’s normal thinking, feeling and reactions.

(emphasis added).

Simply stated, Dr. Stock posited that Molitoris and Fulmer developed “captivity syndrome” as a result of the living conditions and treatment intentionally imposed upon them by the defendants which induced “post-traumatic stress disorder” that destroyed their will to voluntarily leave the farm and employ of the defendants, even though they were free to do so, thereby transforming them into “psychological hostages” bound to “involuntary servitude” for the defendants. 3 Dr. Stock further hypothecated that the “captivity syndrome,” as discussed by Dr. Lifton in his published research of American prisoners held captive by the Chinese during the Korean war, and the “brainwashing” which induced “ideological conversion,” 4 were analogous to the techniques employed by the defendants in their continuing efforts to intentionally control Molitoris and Fulmer.

Even the most casual review, however, will disclose that the eleven criteria identified by Dr. Lifton as essential to the “brainwashing” implemented by the Chinese to achieve the thought control necessary to accomplish the “ideological conversion” characterized as “captivity syndrome” are patently incomparable with the living conditions and treatment to which Molitoris and Fulmer were exposed.

Initially, it should be noted that the “brainwashing” techniques employed by the Chinese as studied by Dr. Lifton were scientifically conceived, scientifically implemented, and scientifically monitored around the clock. The techniques were professionally structured into a planned, systematic, progressive program calculated to totally pervert and/or destroy an individual and to change his behavior and his beliefs. Essential to effective metamorphosis of the prisoner was an environment of physical captivity, a realization of the futility of escape or rescue, and the use of force or the ever-present threat of force and even death.

Only with an insight into the sophisticated techniques utilized by the Chinese in systematically phasing a captive through the stages described by Dr. Lifton’s writings as essential to inducing “captivity syndrome” does the attempted correlation of Dr. Lifton’s criteria to the living conditions and treatment to which Molitoris and Ful *1205 mer were exposed become incomprehensible. 5 The “brainwashing” discussed by Dr. Lifton involved total sensory deprivation. The prolonged confinement of the prisoner entailed total isolation in a room of limited space without access to any reference point and without hope of escape or rescue; time and all concept of time were eliminated; the prisoner was permitted to see no one but his guard; the prisoner slept only as permitted; he was permitted to hear only what he was intended to hear; he was spoken to only by his captors; he was physically humiliated; he had no toilet facilities; he was permitted no privacy when performing normal bodily functions; he was under around the clock surveillance by his guard; and the prisoner was constantly placed in fear of his life. The insidious procedure constituted a total assault on the individual personality calculated to force him to recant all of his personal and ideological values and accept the values and beliefs of his captors.

In light of this comparative analysis, any attempt to equate the “brainwashing” practiced by the Chinese to induce Dr. Lifton’s “captivity syndrome” with Dr. Stock’s “involuntary conversion” and “psychological hostage” was, in the language of Dr. Emanuel Tanay, 6 “ridiculous” and an “invention of Stock.” Dr. Robert Walsh, 7 characterized Dr. Stock’s analogy as exceeding “sound professional practice and confused the issue.”

On voir dire, Dr. Stock under cross-examination conceded:

Q. Now, sir, is there literature dealing with the subject matter of involuntary servitude as being equatable to involuntary conversion, that you are aware of:

A. Not that I am aware of.

Q. You know of none, right?

*1206 A. That’s correct.

Both Doctors Tanay and Walsh confirmed that the terms “involuntary conversion” or “psychological hostage” could not be found in any psychiatric or psychological textbook or in any psychiatric or psychological literature.

Even Dr. Stock, in a colloquy with the court, stated:

THE COURT: ... but is captivity syndrome and involuntary conversion the same thing?

THE WITNESS: ... well, I guess it’s not exactly the same thing. If we look at a circle, the captivity syndrome is another circle.

The interrelationship of a “post-traumatic stress disorder” diagnosis with Dr. Stock’s formulations is more difficult to comprehend. It would appear that under Dr. Stock’s reasoning, “in this particular case ... the post-traumatic stress disorder ... is the captivity syndrome.” Dr. Stock had previously equated the cause of “captivity syndrome” with the living conditions experienced by Molitoris and Fulmer at the defendants’ farm.

There is no controversy between the parties as to a definition of post-traumatic stress disorder. It is well-identified by Dr. Walsh:

It generally requires the individual to have been exposed to a very severe stressor, and the book is very clear in giving examples of this. Survivors of the Nazi death camps is one example. The victim of a very, very brutal rape or sexual assault could definitely be P.T.S., post-traumatic syndrome. A victim of a national disaster such as a severe earthquake, tornado or a severe auto accident where they were incapacitated and possibly remained in the wreckage for a long time and in a state of semiconsciousness, this sort of thing is required initially.

Exposure to the stressor which has a delayed response on a person. In the case of the Vietnam veterans, he may have returned back to the United States and to the perception of those around them, assimilated relatively normally and then all of a sudden something happens. Quite often they re-experience the trauma or the stressor.

In the case of the Vietnam veteran it may be the backfiring of an automobile, it may be just a police- helicopter or a regular helicopter just in earshot, throwing him back, psychologically back into that condition in the jungles of Vietnam.

He He * * He #

These generally are considered to be a diminished capacity to respond in his or her environment. The reoccurrence of the stimulus event or something remotely resembling it, like the whirring of a helicopter or the backfiring of a car, produces a very, very clear dramatic effect on the individual.

He He * * * *

Again, this is the diagnostic criteria from the manual. The first thing that is required is the existence of a recognizable stressor that would evoke significant symptoms of distress in almost everyone.

And again this is the type of stressor I’ve mentioned before, very severe, very life-threatening. Generally the individual is in a situation where at least at some point during it they don’t know if they are going to survive. They are really faced with the imminent possibility of death and no control from their perceptual standpoint over it.

Re-experiencing of the trauma as evidenced by at least one of the following: One, recurrent and intrusive recollections of the event. These are very vivid memories or re-experiencing of it, really. As I mentioned before, the veteran walking down the street, for example, that he hears the whirring of a helicopter in the air. Automatically, psychologically and mentally, at that point he is back in Nam. He may start acting very erratically. He may become very dangerous.

# * * * * H»

[T]here is a numbing of responsiveness to or reduced involvement with the external world beginning sometime after the trauma is shown by at least one of the following: One, markedly diminished in *1207 terest in one or more significant activities. Generally you have to know what the person’s interests were before. They often withdraw. They may have had a hobby. They may have been good in some particular vocation. They are no longer interested in this, they don’t do it. It’s a very obvious sign to people around them, spouse, siblings, this sort of thing.

Two, feelings of detachment or estrangement from others. They don’t feel part of society anymore, they feel different. They’ve had this experience. They don’t feel close to other people. They feel alienated in a very real sense. You couldn’t understand what they experience. You weren’t through it, this sort of thing, so there is a tendency to pull away.

Three, constricted effect, which typically means that their emotional responsivity no longer runs the full range that we may experience from euphoria to extreme depression. It’s in a much more limited range. It may very well be primarily depressive, and often is, in content. It may be planned. They are not spontaneous, I guess, is the best word. Spontaneous or full in the range of emotional responsivity that we would be.

I find no dispute among the parties that the essential stressor to a diagnosis of post-traumatic stress disorder is an immediate, obvious, severe, life-threatening incident over which the stressee/victim has no perceptual control. Typical examples cited in the literature are victims of the Nazi death camps; victims of an exceptionally brutal rape or sexual assault or other violent criminal act; victims of a severe natural disaster such as a violent earthquake, tornado, flood or fire, or other catastrophe; airplane or automobile disasters; bombing; and torture. None of such occurrences are disclosed by the facts depicting the living conditions to which Molitoris and Fulmer were exposed.

With this as background, I am constrained to re-examine Dr. Stock’s opinion 8 in an effort to give some fabric to his testimony.

His examination reflects the following dialogue:

Q. But you have examined these men and have an opinion as to whether or not they suffered a post-traumatic stress syndrome that would be consistent with a captivity syndrome prior to the time you examined them; is that correct?

A. Yes. Based on my understanding of the scientific literature and my clinical experience in the area.

Q. In fact, they did suffer from that captivity syndrome and, now, post-traumatic stress syndrome, that would have affected their psychological ability to leave or end the — to leave the environment that was causing this syndrome; is that correct?

A. Yes. It seems to me the bottom-line question is if people have an opportunity to escape when they are being held in any situation, why don’t they? Captivity syndrome explains that.

He proceeded to develop his logic by stating in response to the court:

THE COURT: What do you describe as the condition that you would define as . the captivity syndrome?

THE WITNESS: The condition is the breaking down of free will, of conscious and volitional choice.

THE COURT: And its relevance in this case is what, as you understand it?

THE WITNESS: Explaining why if these people had opportunities to walk way [sic], why they did not.

Upon further examination by the court, Dr. Stock responded:

*1208 Q. There is no place in your report ... that post-traumatic disorder, either chronic or delayed, exists in this case, is that correct?

A. That’s correct.

Upon further examination he conceded that the collapse of the captives’ will, as described by Dr. Lifton, was not a criterion for a diagnosis of post-traumatic stress disorder:

Q. Where under post-traumatic stress disorder does it say the breaking down of will is part of the criteria, that is what you told the Court?

A. I would include that under the death camps, concentration camps, prisoner of war.

Q. I’m asking you, is that listed in the entena?

A. The breaking down, specifically, no, it’s not.

(emphasis added).

Dr. Stock, in a purely conclusory manner, thereafter summarized his rationale, after going full circle, by restating his scientifically unsupported thesis that, although the “captivity syndrome” was anchored in forcible physical confinement and was not equatable to the living conditions experienced by Molitoris and Fulmer, and the facts of those living conditions would not support the diagnosis of “post-traumatic stress disorder,” it was nevertheless his opinion that both Molitoris and Fulmer were “psychological hostages” who had no will to leave the defendants’ farm and were therefore bound to “involuntary servitude”:

Q. Doctor, the basis of your opinion, ... you have assumed all of the facts as true, is that correct, that have been related to you?

A. Yes. It’s my feelings if they were, if they were true, then, this is what occurred.

Q. And you have literally in your eleven points [Dr. Lifton’s defined eleven elements essential to rendering “captivity syndrome”], if you just take number one, concluded, which is a conclusion, that captivity exists?

A. Yes, in the psychological sense.

(emphasis added).

It is true, as the dissent appears to opine, that “captivity syndrome” is well documented in psychological literature; however, recognition of “captivity syndrome” as a generally accepted theory within the particular field to which it belongs is not at issue in this appeal. At issue is the correlation/equation or lack thereof between “captivity syndrome” and “psychologically induced involuntary servitude.” It is this lack of correlation/equation between the two inconsistent theories that has been the thrust of defendants’ argument before the trial court and here on appeal. It is the absence of any peer recognition, validation, or acceptance of a correlation between the two theories in literature, research, or otherwise that supports the defendants’ assignments of error.

It is also true that the defendants challenged Dr. Stock’s terminology of “involuntary conversion”; however, the challenge transcends the isolated phrase. The defendants challenged the application of the term as a catalyst for Dr. Stock’s unsupported assertions of “psychologically induced involuntary servitude” or a “psychological hostage” situation. It is the transition from a forceful physical confinement and systematic coercive environment calculated to induce “ideological conversion,” which is the essential predicate for “captivity syndrome,” to psychologically induced involuntary servitude in a environment free of forceful physical confinement or psychological coercion that gives rise to the defendants’ exceptions.

The dissent would bridge the vital gap, although Dr. Stock was unable to do so, by characterizing Dr. Stock’s use of the term involuntary conversion as merely a description to convey the recognized effects of the captivity syndrome. However characterized, Dr. Stock’s expressions to the jury, intended as ostensibly expert opinion predicated upon sufficiently established professional principles and as having gained general acceptance in the particular field to *1209 which it belonged, stand naked and ignored by his peers and find support only in this initial airing of his own personally tailored theory. 9

The dissent again misconstrues the issues on appeal when it urges that, since the defendants elected to present two experts who contradicted Dr. Stock’s analogy of the “captivity syndrome,” it was for the jury to evaluate the weight of the evidence. The weight of the evidence is not in question; the threshold issue is the admissibility of the evidence that must be initially addressed. Brown, 557 F.2d at 556 , addressed the issue thusly:

Conflicting testimony concerning the conclusions drawn by experts, so long as they are based on a generally accepted and reliable scientific principle, ordinarily go to the weight of the testimony rather than to its admissibility,

(emphasis added). The language presumes a competent expert witness and testimony which is based upon demonstrated reliable principles which have been sufficiently established to have gained general acceptance in the particular field to which they belong.

In sum, this case represents a classical example of the manner in which expert testimony, admitted without proper foundation, can confuse or mislead the trier of fact and thereby defeat a defendant’s right to a fair trial. Without doubt, Dr. Stock’s opinion conveyed apparent objectivity as is evident from the jury’s verdict. His obstensibly scientific theory carried undue weight with the trier of fact and precluded effective response beyond an ineffective general denial. Since Dr. Stock’s theory had received no exposure among his peers, qualified persons had no opportunity to either validate Dr. Stock’s results or criticize the means by which he reached his opinions. Thus, paraphrasing the admonition of Brown, 557 F.2d at 556 , the courtroom in the present case was a research laboratory. The fate of the defendants in this criminal prosecution rested on their ability to successfully rebut scientific evidence which had an “aura of special reliability and trustworthiness, ” although in reality, Dr. Stock was testifying to an unproved hypothesis in an isolated experiment which had not gained general acceptance in its field. 10

I would therefore reaffirm the sound pronouncements by this circuit in Green, Brown, and Brady and reverse the trial court on this issue.

The competency of Dr. Stock to testify as an expert witness was placed in issue by the government and the court as demonstrated by the following dialogue:

Ms. Morgan [government counsel]: Your Honor, we would offer Dr. Stock as an expert in the field of Forensic Psychiatry and offer his expert testimony to the Jury.

THE COURT: I don’t pass on qualifications, it’s up to the jury. Go ahead and interrogate him.

*1210 Initially it should be noted that Dr. Stock was offered “as an expert in the field of Forensic Psychiatry.” Dr. Stock was neither a medical doctor nor was he qualified in the specialty of psychiatry, let alone in the field of forensic psychiatry. This alone should have made his competency suspect.

The trial court obviously abdicated its mandatory duty to pass upon the competency of a witness offered as an expert. The dissent would dismiss this refusal to act by citing to defense counsel’s failure to object. The reliance is misplaced.

The salient purpose for entering an objection during trial is to alert the trial court to an issue which demands its attention and to record for appellate review the court’s disposition thereof. The record here has concisely preserved the issue for appropriate review. After the court disposed of the objection, counsel were thereafter obliged to abide by the ruling and to proceed with the trial of the action. Maness v. Meyers, 419 U.S. 449, 459 , 95 S.Ct. 584, 591 , 42 L.Ed.2d 574 (1975).

This court has construed Fed.R.Evid. 702 to permit the admission of expert testimony only when it is presented by (1) a qualified expert; (2) testifying on a proper subject; (3) in conformity to a general accepted explanatory theory; (4) the probative value of which outweighs any prejudicial effect. Green, 548 F.2d at 1268 . The appellants have also charged the trial court with error in permitting the government’s expert to testify and to express opinions contrary to the first mandate of Green. Green, 548 F.2d at 1268 , paraphrases Fed.R.Evid. 702 as follows:

To permit expert testimony to be heard by the jury, the trial court must first determine whether the specialized knowledge involved “will assist the trier of fact to understand the [other] evidence or to determine a fact in issue.” Then it must satisfy itself that the proffered witness is “qualified as an expert by knowledge, skill, experience, or education ...” Appellate review of such sensitive discriminations by lower courts may only be rationally accomplished on an ad hoc basis.

(emphasis added).

The non-delegable duty is, as a matter of law, placed squarely upon the shoulders of the trial judge. Stated differently, competency of a witness to testify is for the judge to decide while credibility of the witness is left to the jury. United States v. Barnard, 490 F.2d 907, 912 (9th Cir.1973), cert. denied, 416 U.S. 959 , 94 S.Ct. 1976 , 40 L.Ed.2d 310 (1974). Expert testimony is admissible only when the witness is in fact an expert and is accepted as such by the court. United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973). Meaningful implementation of this mandate by the trial court has historically afforded the accused the protection against the prejudicial impact of opinion evidence clothed with the weight of expertise, which gave rise to the rule, and allayed the apprehensions voiced in Amaral and Green and echoed by their progeny. Abdication of the duty by the trial judge is plain error.

The dissent recognizes, but seeks to avoid, the error charged by the defendants by stating in essence that, with regard to the first criterion, the defendants did not argue that Dr. Stock was not a qualified expert; they simply argued that the district court failed to find that he was a qualified expert. I cannot agree with that conclusion. The argument presented in defendants’ briefs and before this court belies that formulation. Defendants clearly contested both Dr. Stock’s competency as an expert and the trial court’s refusal to consider and pass upon that competency when the facts of his expertise demanded a court ruling. More specifically, defendants challenged Dr. Stock’s competency to extrapolate a “psychologically induced involuntary servitude” or a “psychological hostage” situation in an environment free of forceful physical confinement and/or systematic psychological coercion from a forceful physical confinement and environment coupled with insidious coercive psychological treatment calculated to induce “ideological conversion,” which is the preconceived predicate for “captivity syndrome” as discussed by Dr. Lifton. In sum, defendants *1211 objected to Dr. Stock’s competency to formulate and testify to a thesis of first psychiatric/psychological impression which has its basis in an unproved hypothesis derived for an isolated purpose and which has no acceptance in the scientific field to which it belongs.

An examination of Dr. Stock’s credentials 11 reflected academic training in the diagnosis and treatment of disturbed children and neurologically impaired children. He had extensive experience in testing and evaluating children and adolescents who were mentally retarded. He was familiar with the literature in the field of psychiatry characterized as “victimization,” which he defines as dealing with victims of rape and other violent crimes, terrorism including hostage-taking, and natural disasters. His knowledge of “captivity syndrome” resulted from reading Dr. Lifton’s book.

The defendants have not questioned Dr. Stock’s competency to administer individual intelligence tests or personality assessment tests, to conduct group testing, and to interpret and evaluate individual mental retardation levels, the extent of the examination that he conducted of Fulmer and Molitoris that was described as extensive in the dissent. Defendants have taken no exception to his opinions concerning the mental retardation levels of Molitoris or Fulmer. All of the foregoing practices and procedures were well within the area of his expertise and training. His experience and training in the area of testing, interpreting, and evaluating levels of retardation did not, however, qualify him as an expert in the unrelated field discussed in Dr. Lifton’s book. Moreover, absent any correlation in the record between “terrorism” including “hostage-taking” and Dr. Lifton’s “captivity syndrome,” Dr. Stock’s experience in the area of “terrorism” lends no weight to his qualifications to advance a theory beyond his expertise which had not received recognition, validation, or general acceptance in the field to which it belonged. 12

In light of Dr. Stock’s questionable credentials and his highly convoluted and often confusing and contradictory testimony, the trial court, at the very least, had a duty to protect the defendants’ right to a fair trial by exercising its mandatory duty to rule on Dr. Stock’s competency to appear as an expert witness. Abdication of this duty by the trial court constituted plain error. I would therefore also reverse the trial court on this issue.

Accordingly, it would appear that the record herein does not support the hypotheses upon which the dissent relies.

. On occasions when Fulmer or Molitoris were picked up as a result of telephone calls from third parties, there is no indication that they were forcefully returned to the farm.

. Q. What is your clinical experience with involuntary servitude as opposed to involuntary conversion?

A. This is actual — this is my first case of involuntary servitude.

Q. So this is the first case that you have dealt with the so-called stress, or whatever — however you want to phrase it — was not immediate and obvious?

A.- No. I think the threat in this case was immediate and obvious.

Q. That is the conclusion you reached, isn’t it?

A. That is right.

Q. But your testimony is you have never dealt with this type of situation before; isn’t that correct?

A. That’s correct.

Q. You have never testified with regard to this situation before?

A. Well, if I have never dealt with it, I never could have testified before.

Q. You have never been called upon to make a diagnosis or an evaluation in this area before; is that right?

A. Right.

. Direct examination of Dr. Stock:

Q. Do you have any explanation for their not leaving the farm where they were, the Kozminski farm?

A. Yes, on the surface, it appears that they had numerous opportunities to leave, and the question to me, interesting question, is why didn’t they.

It’s my opinion that they were psychological hostages, that even though they had the physical ability to get away from the farm, they were so tied to the farm that these [defendants] were their only caretakers, they became psychologically substituted parents for them. They could not form the requisite intent to escape____

. Although the record disclosed that the term "ideological conversion” refers to the efforts of the Chinese to influence the ideological beliefs of American captives with a view toward having them denounce the United States for propaganda purposes, the record does not reflect that the term bears any relationship to the term "involuntary conversion” as coined by Dr. Stock.

. The essential elements for inducing the “captivity syndrome” as enumerated by Dr. Robert Lifton were:

(1) prolonged captivity; (2) continuous around the clock supervision, such as by guarding; (3) an isolated environment; (4) removal of all supports; (5) an attack on personality; (6) a lack of privacy; (7) assault upon the total personality; (8) a systematic use of reward and punishment; (9) a tearing of the fabric of the personality; (10) the building up of a new personality; and (11) ritualistic behavior, which was not considered by Dr. Stock in his analysis.

. Dr. Emanuel Tanay is a graduate from the University of Munich, Germany, School of Medicine. He interned at Michael Reese Hospital in Chicago, Illinois; completed his psychiatric residency at Elgin State Hospital. He attended post-graduate school at the University of Michigan. He is licensed as a medical doctor by the State Medical Board of Michigan. He has a specialty in psychiatry and a sub-specialty in forensic psychiatry. He is a diplomat of the American Board of Psychiatry and Neurology and is certified as a specialist by the American Board of Psychiatry and Neurology and also acted on its Board of Examiners. He is a diplomat of the American Board of Forensic Psychiatry. He is a director of the Detroit Receiving Hospital, Department of Psychiatry. He enjoys staff privileges at all of the major hospitals in the Detroit area, including Beaumont, Harper, Grace, St. John, Sinai, and Cottege Hospital of Grosse Pointe. He is a member of the American Psychiatry Association, a Fellow of the American College of Forensic Sciences, a member and past president of the Michigan Psychiatrists Society and a number of other professional organizations in the immediate geographic area. He has published in excess of seventy professional papers and has lectured to various law enforcement agencies as well as professional groups. He has conducted seminars involving forensic psychiatry throughout the country. He has appeared as a professional witness on behalf of the United States government in a number of criminal matters, i.e., the Jack Ruby investigation, the Garwood Vietnamese captive case, and the Theodore Bundy case. He has written professional papers — treaties on concentration camp survivors and captives of prisoner of war camps. He delivered a paper at an international symposium on the psychiatric aspects of captivity as well as captives of terrorists and hostage situations arising as a result thereof. Dr. Tanay is a friend of Dr. Lifton. He is presently a clinical professor of psychiatry at Wayne State Medical School.

. Dr. Robert R. Walsh is a board-certified clinical psychologist licensed by the State of Michigan and an employee of the State Prison of Southern Michigan since 1974, where he exercises ultimate responsibility for virtually the total mental health care of approximately 5,000 prisoners residing in the central region of the Michigan Department of Corrections. He has a bachelor’s and master’s degree from Michigan State University and a doctoral degree from the University of Wisconsin at Madison, Wisconsin in Educational Psychology. He is familiar with Dr. Lifton’s book as well as the entire spectrum of literature on the subject and is a scholar in the field.

. The essence of Dr. Stock’s diagnosis of "post-traumatic stress disorder” was, I presume, to provide substance for his conclusion that both Molitoris and Fulmer, as a result of their living conditions, were so traumatized that they lost their will to voluntarily leave the farm. His expressed conclusion appears to be contradictory in light of his concession to the court that his reports reflected no diagnosis of "post-traumatic stress disorder.” Both Drs. Tanay and Walsh also ruled out the diagnosis.

. This was the first time that he testified to his theories: "this is my first case of involuntary servitude.”

. It would appear that the dissent would overrule overwhelming legal precedent in this circuit and throughout the nation that recognizes the necessity for a strong countervailing restraint on the admission of expert testimony to protect a defendant’s right to a fair trial.

After recognizing that:

There are good reasons why not every ostensibly scientific technique should be recognized as the basis for expert testimony. Because of its apparent objectivity, an opinion that claims a scientific basis is apt to carry undue weight with the trier of fact. In addition, it is difficult to rebut such an opinion except by other experts or by cross-examination based on a thorough acquaintance with the underlying principles. In order to prevent deception or mistake and to allow the possibility of effective response, there must be a demonstrable, objective procedure for reaching the opinion and qualified persons who can either duplicate the result or criticize the means by which it was reached, drawing their own conclusions from the underlying facts.

Brown, 557 F.2d at 556 (emphasis added). The dissent disregards the admonition with the observation that the "defense produced two experts who differed with and effectively criticized Dr. Stock’s testimony.”

It is true that after the trial court erroneously admitted Dr. Stock’s highly prejudicial testimony, the defendants presented two experts to contradict Dr. Stock’s opinions; however, they had no alternative after the court permitted him to testify.

. The record disclosed that Dr. Stock's academic credentials included a Bachelor of Arts degree in psychology from the University of Florida in Emotionally Disturbed Children; a Master of Science degree in Clinical Psychology from Emporia State University and a Doctorate in Psychology from the University of Kansas in Neurologically Impaired Children. Dr. Stock was a fully licensed psychologist in the State of Michigan. He was not board certified in any ' area or specialty. He participated in an internship at the Department of Psychiatry at Rutgers Medical School. He was an Adjunct Professor of Psychology at Trenton State College and in 1977 undertook employment at the Center for Forensic Psychiatry in Ypsilanti, Michigan. He listed no hospital privileges. He has lectured at the Special Operations Research Section of the FBI Academy at Quantico, Virginia on International Terrorism and Hostage Negotiations and at the United States Secret Service Academy in Washington, D.C. on Interview Interrogation and Threat Analysis to the President. He was an instructor at the Jackson Community College Police Academy and the Criminal Justice Training Center in Ohio in the field of Hostage Taking and Hostage Negotiations. He has presented papers at the American Psychological Association in Washington, D.C. on the Technology of Terrorism and Psychological Consulation to Police Agencies. He wrote a paper for the Journal of Psychiatry on the subject of the Law on Competency to Stand Trial. Dr. Stock characterized his practice in the following terms:

In my capacity as a psychologist I work with numerous individuals, children, and adolescents who are mentally retarded and in my work at the Forensic Center I have evaluated and treated individuals who were mentally retarded.

. The record does not demonstrate any interplay or interrelationship between "hostage-taking” and Dr. Stock's “involuntary conversion” "psychological hostage” thesis. The conditions associated with “hostage-taking" were characterized as the "Stockholm Syndrome" by Dr. Stock. The record also fails to disclose any analogy between the eleven points of Dr. Lifton’s "captivity syndrome” and the criteria that induces "Stockholm Syndrome.”