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

> Court of Appeals for the Sixth Circuit · April 16, 1987 · 821 F.2d 1186

URL: https://www.frixlaw.com/law-library/cases/9476353

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Ike KOZMINSKI, Margarethe Kozminski, and John Kozminski, Defendants-Appellants
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 16, 1987
- **Citations:** 821 F.2d 1186; 22 Fed. R. Serv. 1444; 1987 U.S. App. LEXIS 5070
- **Precedential status:** Published
- **Opinion:** Dissent by Keith
- **Judges:** Lively, Engel, Keith, Merritt, Kennedy, Martin, Jones, Krupansky, Wellford, Milburn, Guy, Nelson
- **Cited by:** 27 later opinions in the Frix Law Library

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## Opinion text

*1212 KEITH, Circuit Judge,
dissenting.
I concur in Judge Guy’s well-reasoned dissenting opinion. However, I write separately to highlight some of my concerns about this case. I feel that the majority opinion unduly restricts the scope of 18 U.S.C. § 1584 . Judge Guy correctly states that fraud and deceit are not the only ways to subjugate the will of another. Also, limiting the class of victims to minors, immigrants and mental incompetents is underinclusive and without merit.
I am especially disturbed with the majority’s treatment of the expert testimony issue. I think that the majority’s reliance of the factors in United States v. Green, 548 F.2d 1261 (6th Cir.1977), is misplaced. The Green analysis should be limited to determining the admissibility of scientific evidence. In this case, the testimony of Dr. Stock was based on his clinical findings, not on an esoteric theory.
Based on the above, I think the Court is committing an egregious error in the position that it has taken.
RALPH B. GUY, Jr., Circuit Judge, dissenting, joined by LIVELY, Chief Judge, and BOYCE F. MARTIN and NATHANIEL R. JONES, Circuit Judges.
I respectfully dissent from the majority’s conclusions in both part II and part III of the opinion.
I.
It is clear that 18 U.S.C. § 1584 is lacking in definitional precision when it makes criminal the holding of one in “involuntary servitude.” Whether this is the genius of this section or a deficiency to be cured by judicial legislation is not so clear. The majority apparently concludes it is a deficiency and proceeds to cure it by substituting an arbitrary definition that raises more questions than it answers. In discussing this specific section, Judge Dimock, who concurred in Shackney, prophetically wrote:
To have an arbitrary classification which will resolve with equal facility all of the cases that would arise under the statute is indeed a tempting prospect. It is much harder to have to work under a statute which will raise difficult questions in the borderline cases inevitable whenever the application of a statute depends upon an appraisal of the state of the human mind.
333 F.2d at 488.
The problem with the definition offered by the majority is that it not only unduly focuses on the means of accomplishing involuntary servitude, but also, at least as to its third prong, would define and limit the classes of persons to whom it applies. I see no necessity for the former and no justification for the latter.
Whenever one attempts to define by setting out the means of accomplishment the risk of underinclusion is considerable. What is needed is a definition of “involuntary servitude” not a listing of examples of how it may be accomplished. I would offer as an acceptable definition, at least for “involuntary,” that suggested in the concurring opinion in Shackney: “Where the subjugation of the will of the servant is so complete as to render him incapable of making a rational choice, the servitude is involuntary____” Id. at 488. It goes without saying that since this is a criminal statute, the master would, of course, have had to intend this result. 1
The “fraud and deceit” prong of the majority's test apparently is the creation of the majority as is the limiting of the classes to whom it is to apply. Prongs (1) and (2) of the proposed test-physical force and legal coercion — are the slavery and peonage tests. “Fraud and deceit,” however, are not terms of art in the arena of involuntary servitude cases and would seem to cover an almost limitless range of conduct. Since I write in support of a more flexible definition than that offered by the majority, it is not the breadth of the proposed definition that is troubling. I simply see no *1213 need to specifically reference “fraud and deceit” to the exclusion of other means. I would agree that fraud and deceit, in addition to physical force and legal coercion, are ways of subjugating the will of another — but they are certainly not the only ways, nor are they necessarily the most egregious.
I am also puzzled as to why the “fraud and deceit” exception, if there is to be one, should be limited in its application to minors, immigrants, and mental incompetents. Where it is necessary to resort to The Kestatement (Second) on Contracts to interpret a criminal involuntary servitude statute, I become concerned that revision, not interpretation, is underway. Furthermore, the inclusion of “immigrants”' as a special class cannot be supported by reference to the Padrone statute as the majority suggests. As the appendix to the majority opinion itself indicates, the antecedent statutes reference “any person inveigled or forcibly kidnapped in any other country, with intent to hold such person so inveigled or kidnapped in confinement or to any involuntary service____” This is hardly the definition of an immigrant.
I would offer as the final evidence in support of the proposition that the majority’s new definition causes more problems than it cures the fact that, when it is applied to the instant case, the result is a remand for a retrial on the fraud and deceit theory even after the majority rules out Dr. Stock’s testimony. Although I would affirm the original conviction, I nonetheless find it strange and unsettling to send a criminal case of this nature back for a retrial on a theory never advocated by the government or defended against by the defendants in the first trial.
This is not an easy definitional question and it is one on which reasonable minds and federal circuits might differ. I write in dissent, however, primarily because I believe the majority has rewritten rather than interpreted 18 U.S.C. § 1584 .
II.
I have even greater concern for the ramifications of part III of the majority’s decision than I do part II. This concern is predicated, at least in part, by the frequency with which courts deal with these problems. Involuntary servitude cases are few and far between, whereas cases in which experts testify are a daily occurrence.
Due to what the record tells us about the condition of the victims of this alleged crime and how traumatic the trial was for them, I doubt very much that there will ever be a retrial pursuant to our remand. Even if there is, I do not consider it a matter of global significance whether Dr. Stock is allowed to testify or not. 2 However, I am concerned about the rationale used for the exclusion of this evidence being used in other cases. As I will develop further, infra, I submit that our decision in United States v. Green, 548 F.2d 1261 (6th Cir.1977), on which the majority wholly relies, should be clarified if not overruled by this en banc court — not extended.
A.
The majority cites United States v. Green, 548 F.2d 1261 (6th Cir.1977), as setting forth the standards to be applied in determining the admissibility of expert testimony. Green, convicted of conspiracy to manufacture a controlled substance, Dimethyltryptomine, challenged expert testimony admitted at trial. First, he challenged the testimony of a chemist from the Food and Drug Administration who testified, among other things, as to the threat posed by the drug, its effects upon the body, the procedure by which it may have been classified as a controlled substance, and its relationship to LSD. Second, Green challenged the testimony of a DEA agent who testified as to the number of dosage units which were theoretically manufacturable from the chemicals found, the anticipated purity of the final product, the street price of a dosage unit, and the details of other illegal drug transactions that had no relation to the defendant. Id. at 1264-65 .
*1214 Significantly, the Green court first noted that Fed.R.Evid. 702 set forth the test for admissibility of expert testimony. 548 F.2d at 1268 . Nevertheless, the court found Rule 702 deficient when applied to criminal cases, in that it failed to include among the factors to be balanced by the trial court the potential prejudicial impact of the expert testimony upon the substantial rights of the accused. Id. Consequently, relying on United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973), the court adopted “for use in criminal appeals the four criteria proposed in Amaral for review of trial court decisions concerning expert testimony: ‘1. qualified expert; 2. proper subject; 3. conformity to a generally accepted explanatory theory; and 4. probative value compared to prejudicial effect.’ ” Id. 3
To the extent that the Green court suggested that its test must be applied to all expert testimony in criminal cases, such holding is clearly inconsistent with common practice. To the contrary, many types of expert testimony are regularly received in criminal cases without resort to standards such as those set forth in Green. Green describes the type of test courts generally employ when analyzing the admissibility of scientific evidence. To my mind, there is a difference between the type of scientific testimony to which such a test is normally applied, and the expert testimony of a clinical psychologist like Dr. Stock.
Dr. Stock did not simply take two individuals, whom he had never met or spoken to, and based on a set of known facts attempt to fit them into a theory. Rather, he extensively interviewed Fulmer and Molitoris, performed a battery of psychological tests, reviewed medical histories, and acquainted himself with the circumstances under which they lived. Dr. Stock testified that his opinion was derived from his clinical evaluation of the two men, including the objective tests he administered, as well as his experience in this field and the accepted theory of involuntary conversion. As a result, Dr. Stock’s testimony is no different than the clinical assessments of psychologists and physicians regularly received by trial courts. I am unable to distinguish this type of testimony from, for example, that of a psychologist or psychiatrist testifying on the issue of a criminal defendant’s sanity. Essentially, Dr. Stock testified, after careful examination of the individuals as well as the background facts, that the victims’ wills were overborne. This is neither novel theory nor outside the general area of expertise of a psychologist or psychiatrist. It is certainly not the application of a scientific test.
The majority assumes that opinion testimony offered like that of Dr. Stock’s must be submitted to the Green test for scientific evidence. Yet, the rationale for such a test, as explained by this court in United States v. Brown, 557 F.2d 541 (6th Cir.1977), does not support such a conclusion:
“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.”
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)).
This statement indicates the two traditional concerns involved with scientific tes *1215 timony: (1) that objective scientific testimony will bear an “aura of special reliability and trustworthiness,” Brown, 557 F.2d at 556 , and (2) that a “minimal reserve of experts exist who can critically examine the validity of a scientific determination in a particular case,” United States v. Addison, 498 F.2d 741, 744 (D.C.Cir.1974). Neither of these concerns is implicated by the testimony of Dr. Stock.
Dr. Stock’s testimony on the state of mind of the victims was not predicated on a scientific technique but on the type of subjective analysis that a clinical psychologist is trained to perform. In a recent case, the California Supreme Court rejected the argument that expert psychological testimony should be subject to the same test as scientific testimony:
It is important to distinguish in this regard between expert testimony and scientific evidence. When a witness gives his personal opinion on the stand — even if he qualifies as an expert — the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings are fallible. But the opposite may be true when the evidence is produced by a machine: like many laypersons, jurors tend to ascribe an inordinately high degree of certainty to proof derived from an apparently “scientific” mechanism, instrument or procedure. Yet the aura of infallibility that often surrounds such evidence may well conceal the fact that it remains experimental and tentative.
* * # * * *
Here, by contrast, no such methods are in issue. We have never applied the Kelly-Frye rule to expert medical testimony, even when the witness is a psychiatrist and the subject matter is as esoteric as the reconstitution of a past state of mind or the prediction of future dangerousness, or even the diagnosis of an unusual form of mental illness not listed in the diagnostic manual of the American Psychiatric Association____
People v. McDonald, 37 Cal.3d 351 , 690 P.2d 709, 723-24 , 208 Cal.Rptr. 236, 250-51 (1984) (permitting expert psychological testimony on eyewitness identification). See also United States v. Metzger, 778 F.2d 1195 (6th Cir.1985) (expert opinion as to cause of explosion based in part on comparison between actual explosion and demonstration does not claim a “scientific basis,” but falls more properly within “other specialized knowledge” category of Fed.R.Evid. 702; as such, it does not carry with it any “aura” of special reliability and general acceptance in the particular field is not required).
Likewise, the second concern, relative to whether experts exist who can effectively refute the scientific evidence being admitted, is not relevant. Here, the defense produced two experts who differed with and effectively criticized Dr. Stock’s testimony. The defense was not prejudiced by being unable to locate experts to respond to Dr. Stock’s testimony. 4
Moreover, to the extent that the Brown court suggested that it is soniehow unfair to burden the defendant with the necessity of obtaining experts to rebut the prosecution’s case, or to gain a thorough acquaintance with the underlying principles of the expert’s testimony, such a suggestion was explicitly rejected by the Federal Rules of Evidence. See Notes of Advisory Committee to Fed.R.Evid. 705 (rule “assumes that the cross-examiner has the advance knowledge which is essential for effective cross-examination”).
The Green test is actually derivative of Frye v. United States, 293 F. 1013 (D.C.Cir.1923). But see infra Part C. It is therefore noteworthy that the court which first introduced the Frye standard for testing the admissibility of novel scientific evidence has stated that the standard applies to “questions of admissibility of expert testimony based on new methods of scientific *1216 measurement____” United States v. Addison, 498 F.2d at 743 (emphasis added). 5
The concerns contemplated by the Green-Frye test can be adequately addressed by Rule 403 in these circumstances. For instance, the unwarranted “aura of reliability” that may surround the evidence may be assessed by its tendency, if any, to mislead the jury. United States v. Downing, 753 F.2d 1224, 1239 (3d Cir.1985); see also McCormick, Handbook of the Law of Evidence § 203 at 608-09 (3d ed. 1984). 6 And to the extent that the Green-Frye standard works to assure the availability of more than one expert on the topic involved, that value can be preserved under the Federal Rules of Evidence as well. Courts may consider the availability of experts to evaluate the evidence in determining whether undue prejudice might result from its admission.
Since we are considering this case en banc, it would be an appropriate time to reconsider the premise in Green that expert testimony in criminal cases should be judged by a different standard than in civil cases. This result is certainly not dictated by the Federal Rules of Evidence which were relatively new at the time Green was decided. It appears to me that the fact that a jury, after consideration of all the evidence, including any expert opinions allowed into evidence, must find the defendant guilty beyond a reasonable doubt is all the differentiation that is necessary or called for.
B.
Assuming, however, that the majority is correct in going on to apply the four part test of Green , the first inquiry is whether the expert is qualified. No one here has challenged the qualifications of Dr. Stock, and in fact, he appears eminently qualified to offer an opinion on the victims’ state of mind. 7 The second element, whether the subject is a proper one for expert testimony, has been implicitly answered by this court’s definition of involuntary servitude. The first prong of the majority’s test is that “the servant believes that he or she has no viable alternative but to perform service for the master.” Consequently, the servant’s state of mind is a crucial factor in this formula. The majority has, however, undercut its adoption of this standard with its conclusion that the type of expert testimony offered here on the victims’ state of mind is inadmissible. If the proposition is accepted that something less than actual physical restraint can result in violation of the statute prohibiting involuntary servitude, particularly in the case of a victim who is mentally incompetent and may thus become an involuntary servant by virtue of the master’s deceit or fraud, then any qualified psychiatrist or psychologist should be able to testify that in a particular instance the will of the victim was overborne to the point that his service was involuntary.
The third inquiry is, of course, the crucial one here; that is, whether the testimony is in “conformity with a generally accepted explanatory theory.” 548 F.2d at 1268 . As stated above, this element has its genesis in Frye . At the same time, it has undergone a subtle but important change.
The court in Frye held:
Just when a scientific principle or discovery crosses the line between the ex *1217 perimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
293 F. at 1014 (emphasis added). “General acceptance in the particular field in which it belongs” is the criterion still widely applied today. Yet in Green , this standard has become “conformity to a generally accepted explanatory theory.” The distinction is important because in Frye the emphasis was placed upon the technique or methodology employed to reach a result, yet in Green the focus has been transferred to the theory. In other words, rather than assessing the “thing from which the deduction is made,” we have focused on the deduction itself.
When adopting the Green test, the court relied on United States v. Amaral, 488 F.2d at 1152 , where the Ninth Circuit stated: “Because of the peculiar risks of expert testimony, courts have imposed an additional test, i.e., that the testimony be in accordance with a generally accepted explanatory theory.” In support of this characterization, the Ninth Circuit cited Frye and United States v. Stifel, 433 F.2d 431 (6th Cir.1970), cert. denied, 401 U.S. 994 , 91 S.Ct. 1232 , 28 L.Ed.2d 531 (1971). Stifel correctly sets forth the language used in Frye, 433 F.2d at 438, 441 (record affords support for the proposition that neutron activation analysis has gained “general acceptance in the particular field in which it belongs”). The Ninth Circuit has never cited Amaral for “conformity to a generally accepted explanatory theory.” 8
In applying this factor, the majority concludes that Dr. Stock’s testimony is inadmissible because a foundation was not laid to establish its conformity to a generally accepted explanatory theory. In arriving at this conclusion, the court relies on the testimony of defendants’ experts who criticized Dr. Stock’s theory. In addition, the majority, after listing the elements of captivity syndrome, determines that the facts presented at trial do not support the existence of these factors. Accordingly, the court holds that captivity syndrome is inapplicable as a matter of law.
While this type of analysis may be compelled by the Green formula, I have serious concerns with it. The majority frames the evidentiary inquiry as whether Dr. Stock’s theory of involuntary conversion as applied to this case is in conformity with captivity syndrome. It is unclear why Dr. Stock’s theory must completely track captivity syndrome. If the court is saying that involuntary conversion must have gained general acceptance in the particular field in which it belongs, and the field is captivity syndrome, the basis for making that conclusion has not been specified. The only field involved here is psychology or psychiatry. The only testimony as to what class of experts would be qualified to express an opinion on these issues was Dr. Stock’s testimony that forensic psychiatrists or psychologists would have such expertise (App.75).
After determining that Dr. Stock’s theory must be in conformity with captivity syndrome, the majority concludes it is not by relying on the testimony of the other experts. In other words, the court found the defense experts to be more believable and has determined the admissibility of Dr. Stock’s testimony based on a credibility finding. This weighing of testimony clearly usurps the function of the jury in deciding which expert, if any, should be believed. 9
*1218 Next, the court determines that captivity syndrome is inapplicable based on the facts of this case. Yet, during trial, there was testimony on many, if not all, of the ten elements of captivity syndrome. 10 It is my understanding that the jury determines whether or not the facts which are necessary to validate an expert’s opinion are present.
The majority interpretation raises, in turn, the question of what “conformity” to a generally accepted theory means. The court concludes that because the “captivity” here differs from the type of restraint present in the classic captivity syndrome case, Dr. Stock’s theory is not in conformity with captivity syndrome. This presents a problem because Dr. Stock testified that not all elements of captivity syndrome would have to be present and that captivity syndrome would have a reliability of a low probability of applicability to a high probability of applicability depending on the environmental restrictions, constraints, and manipulations that were conveyed. Essentially, the court has itself determined that there is a low probability of applicability because it has concluded from the facts presented at trial that the environmental restrictions here differed from that of classic captivity syndrome. It seems that “in conformity” must, at least in this case, actually be interpreted as “exactly the same.”
The court, in a criminal jury trial, is neither a fact finder nor a weigher of credibility. To evaluate the theory that a person not physically captive may undergo an involuntary conversion, a court correctly evaluates the methodology utilized to arrive at that conclusion, but not the conclusion itself, which is the province of the jury. The methodology employed by Dr. Stock was a careful, detailed, and lengthy examination of the victims and the facts surrounding their alleged captivity. It is not open to question nor is the argument made by anyone here that that is not an appropriate methodology. 11
Accordingly, the third element of the Green test, perhaps inadvertently, places courts in the position of evaluating experts’ conclusions. The court’s role is more properly limited to finding that the expert’s methodology is generally accepted. The court should not take over the jury’s function of weighing the persuasiveness of the testimony.
C.
The standard of review on appeal of the admission of testimony is abuse of discretion. In order to determine whether the trial judge abused his discretion, we must view the record as it was at the time the ruling was made. At that point in time, the only testimony before Judge Joiner was Dr. Stock’s, and he testified that his theory was generally accepted.
*1219 Dr. Stock testified that involuntary conversion has gained general acceptance throughout the psychiatric and psychological community (App. 51, 35), Judge Joiner found that the testimony could be helpful to the trier of fact to understand the evidence under Fed.R.Evid. 702. Moreover, Judge Joiner also recognized that the Frye standard might not be applicable to this type of testimony, but he felt that even if the court was to apply the more restrictive Frye test, the testimony was still admissible:
It’s not an answer, in the Court’s judgment, that this may be the very first time that someone has said something in court, otherwise, we would never have any testimony in court about any new idea if we prevented that, but he has demonstrated to the Court that the body of experts that seem to be relevant at this point have generally accepted the concepts and idea that he is going to talk about, and he now is in the process of simply taking those ideas, which have general acceptance among a broad, relative and important class of experts, and attempting to apply them to a particular set of facts in this case, and if there is objection to the testimony it’s argumentative objection in the sense that ultimately it may be that the testimony may not have value because the particular facts in the case do not support the underlying basis on which he is going to base his conclusions, and that is something that lawyers are most expert in bringing out on cross-examination.
It’s simply no different than a diagnosis of tuberculosis or other things of that kind, it seems to me, at that point. So I’m going to permit the testimony to be received.
(App. 55.)
Judge Joiner’s ruling properly recognized the role of the trial judge in admitting expert testimony. This' ruling was correct, especially in light of the fact that the only testimony before the court was that involuntary conversion had gained general acceptance. Even though the defendants had retained experts to testify on their behalf, none of the defendants sought to offer evidence at the time that Dr. Stock was voir dired that involuntary conversion was not generally accepted. Yet defendants possessed at that time the information they now rely on in arguing that Dr. Stock’s theory was not generally accepted. 12 I am simply unable to conclude that on this record Judge Joiner abused his discretion in admitting the testimony of Dr. Stock.
III.
I would address one other issue raised on appeal and not addressed by the majority which could be involved in any retrial of this matter. On appeal, the defendants also argued that the trial judge erred in failing to rule on Dr. Stock’s qualifications as an expert. At trial, after counsel for the government questioned Dr. Stock about his education and experience, the following colloquy occurred:
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 to. Go ahead and interrogate him.
(App. 101).
The defendants assert that it was error for the court to decline to specifically find that Dr. Stock was qualified. I must disagree.
When the attorney conducting the direct examination of an expert witness concludes that portion of the examination relating to the expert’s qualifications, it is common to so indicate to the court in language not unlike that quoted here. The person offering the expert is not seeking a ruling but, rather, signalling that the preliminaries are over and the other side may now voir dire *1220 if they desire. If the other side conducts a voir dire and then objects or just objects without a voir dire, the court must then make a ruling if it is possible to do so. Often it is not because the key question is not the expert’s general qualifications in some field, but whether the precise question on which he will be asked to opine is within his field of expertise or meets some other test such as that set forth in the majority opinion. To illustrate here, the question was not Dr. Stock’s qualifications — those were impeccable. The question was what he was going to be asked which would trigger an answer comprising an “expert opinion.” Obviously, no ruling can be made until the expert is actually asked the question. Certainly the trial judge must rule upon the qualifications of an expert if challenged and must make all evidentiary rulings required by objections to specific questions. The Federal Rules of Evidence do not require the “proffering” of an expert as such, however.
The error of the defendants’ argument is compounded by the fact that the procedure suggested exacerbates the very thing about which they express concern — an “aura of special reliability” surrounding expert testimony. If the prosecutor in a criminal case completes the background questioning of an expert witness and then turns to the court and says, “I offer this person as an expert,” the response should be just what Judge Joiner replied. It is not for the court to add to an “aura of reliability” at this juncture by declaring the witness an expert. The evidentiary matter at issue is the giving of opinion testimony. The requisite rulings will be made when an “expert” is asked to opine. Any ruling prior to that, unless in response to an objection, appears to me to be some type of advisory opinion for which there is no predicate in the Federal Rules of Evidence.
. I think that the legislative history utilized by the majority is more helpful on the question of what "servitude" means. I would concur that the servitude contemplated is of a type associated with slavery and peonage.
. It is not clear from the majority opinion whether the foundational problems that they find mandate exclusion of Dr. Stock’s testimony are correctible in a second trial.
. It is not readily understandable why the Green court found it necessary to adopt any special test for the admissibility of expert testimony in criminal cases. In finding that the trial court erred in admitting the testimony, the court concluded that the testimony was irrelevant and prejudicial, determinations commonly made under Fed.R.Evid. 401 and 403. Even more significant is the fact that Amaral was decided before the Federal Rules of Evidence were adopted.
. It appears clear from the record that the government knew it would have to present testimony on the victims' state of mind in a case where there was an obvious lack of physical restraint present. The defense was always aware of this and prepared accordingly.
. The Frye test has been the subject of vigorous criticism. See United States v. Downing, 753 F.2d 1224, 1235-37 (3d Cir.1985), and authorities cited therein. The courts that have moved away from Frye have adopted a reliability test. See Downing, 753 F.2d at 1238 (relying in part on this court's opinion in United States v. Franks, 511 F.2d 25 , 33 n. 12 (6th Cir.), cert. denied, 422 U.S. 1042 , 95 S.Ct. 2656 , 43 L.Ed.2d 693 (1975)); 3 J. Weinstein & M. Berger, Weinstein’s Evidence § 702[03] at 702-18 to 702-20; United States v. Williams, 583 F.2d 1194 (2d Cir.1978), ce rt. denied, 439 U.S. 1117 , 99 S.Ct. 1025 , 59 L.Ed.2d 77 (1979).
. Jury instructions are also a tool for dispelling an unwarranted aura of reliability, as jurors are usually instructed, as they were here, that they should give an expert’s opinion only such weight as they think it deserves, and should reject it if they "conclude that the reasons given in support of the opinion are not sound.” (App. 154.)
. By "qualified” I mean to suggest more than just paper credentials. Here, Dr. Stock had worked with the victims and conducted extensive testing. He was completely familiar with their long period of servitude and the circumstances surrounding it.
. In fact, the Ninth Circuit has apparently adopted a "reliability’ standard. See United States v. Gwaltney, 790 F.2d 1378, 1382 (9th Cir.1986) (proponent of scientific evidence has burden of laying a proper foundation showing the underlying scientific basis and reliability of the expert’s testimony); Brown v. Darcy, 783 F.2d 1389, 1396 (9th Cir.1986).
. As stated by the court in Ibn-Tamas v. United States, 407 A.2d 626 (D.C.App.1979):
*1218 For example, if there were conflicting experts, would the judge conclude that neither could testify? That only the more persuasive one could? That a psychiatrist could while a psychologist could not? The judge’s role is properly limited to verifying credentials, including findings that the scientific field is generally recognized and that the methodology proffered is generally accepted by the expert’s colleagues in the field. The judge is not to take over the jury’s function of weighing the persuasiveness of the testimony.
407 A.2d at 638 -39 n. 24.
. For instance, there was testimony that the victims were told repeatedly not to leave the farm and that they were retrieved if they did; that the farm was an isolated environment; that social supports were removed in that family members were discouraged from seeing the victims and that the victims were repeatedly told that no one cared about them; that their personalities were attacked by constant verbal abuse; that the victims lacked privacy; that they were punished and sometimes rewarded; and that they were physically abused.
. It is interesting to speculate on the result on this issue if Dr. Stock had not referred to captivity syndrome, but had simply testified that, based on his interviews with and testing of the victims, and his training and experience in this field, in his opinion their wills were overborne and consequently their service was involuntary. This is an entirely plausible scenario in view of Fed.R.Evid. 705, which allows experts to testify without prior disclosure of the underlying facts or data which led to their opinion. It would indeed be ironic if Dr. Stock’s testimony was not allowed because he referred to an established branch of learning, captivity syndrome, to bolster his conclusion that Fulmer and Molitoris were psychological hostages.
. In Brown, the court noted that when a defendant fails to produce rebuttal testimony when given the opportunity to do so, he runs a grave risk that an appellate court will focus on the state of the record at the time the evidence was admitted in deciding whether the trial court abused its discretion. 557 F.2d at 557 n. 17. It seems to me that defendants have taken that gamble here, and it has paid off.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476353. Public record. Not legal advice.