# Petition for Writ of Certiorari — Garcia v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 865

## Text

Supreme Court, &.3,

(1) FILED

S6 SO Jul 16 190g

OFFiv. Ut € CLERK

IN THE

Supreme Court of the United States ;
OCTOBER TERM, 1995

MASTER SERGEANT FERNANDO GARCIA,
PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES

PETITION FOR WRIT OF CERTIORARI

Jay Lindsey Cohen

Colonel, United States Air Force
Chief, Appellate Defense Division
Counsel of Record

Ormond R. Fodrea

Major, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner

Air Force Legal Services Agency
Appellate Defense Division

112 Luke Avenue, Suite 343
Bolling AFB, DC 20332-8000
202-767-1562

July 1996

QUESTION PRESENTED

Whether the United States Court of Appeals for the
Armed Forces erred when it found that the trial judge’s
abuse of discretion in excluding defense expert psychi-
atric testimony, offered to support a defense of mistaken
identity in a case where an arguably suggestive 13 year
old child was the victim and only witness to the
attempted kidnapping and accompanying offenses, was
harmless beyond a reasonable doubt.

TABLE OF CONTENTS
Page
Opinions Below. + v-5.0ki scavccessencdnbces eceien 1
FUT ERIONN oo 5 cin Hs Ka Rd aS DES ek te bas 2
Constitutional Provisions Involved .............. 2
Statement of the Cane 00530. ee cia aks 2
Reason for Granting the Writ................44. ii

The trial judge’s abuse of discretion in exclud-
ing crucial portions of the defense expert’s
testimony prevented the petitioner from fully
presenting his mistaken identity defense thus
violating his basic Constitutional right to pre-
sent material and favorable evidence.

Comelasit iii Fc ev nnd vie pee ee Eee 8

Appendix A (Opinion of the United States Court of

Appeals for the Armed Forces) ................. la

Appendix B (Opinion of the United States Air Force

Court of Criminal Appeals)............c.ceeee0- lb
TABLE OF AUTHORITIES

Constitutional Provisions:

Due Process Clause, Fifth Amendment to the
United States Constitution................... 2

Supreme Court Cases:

Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646
(1968): 3.43 sens scene eeweeas eee eee 5

ii

United States v. Agurs, 427 U.S. 97, 112-113, 96 S.
Ct. 2392, 2401-2402, 49 L.Ed.2d>342 (1971)...
United States v. Valenzuela-Bernal, 458 U.S.
858, 873, 102 S.Ct. 3440, 3449, 73 L.Ed.2d
I 6 ik he ee i a sek ew so
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct.
1920, 1923, 18 L.Ed.2d 1019 (1967) ..........

Federal Statutes:

ili

5

IN THE
Supreme Court of the United States
OcTOBER TERM, 1995

No.

MASTER SERGEANT FERNANDO GARCIA,
Petitioner

Vv.

UNITED STATES OF AMERICA,
Respondent

PETITION FOR A WRIT OF CERTIORARI
To THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES

PETITION FOR WRIT OF CERTIORARI

The petitioner, Master Sergeant Fernando Garcia,
respectfully prays that a writ of certiorari issue to
review the order and judgment of the United States
Court of Appeals for the Armed Forces entered in his
case on 17 April 1996.

OPINIONS BELOW

The order and judgment of the United States Court of
Appeals for the Armed Forces, reported at _M.J._
(1996), is located at Appendix A. The opinion of the
United States Air Force Court of Military Review,
reported at 40 M.J. 533, is located at Appendix B.

1

2

JURISDICTION

The final order of the United States Court of Appeals
for the Armed Forces was entered on 17 April 1996. The
jurisdiction of this Court is invoked under 28 U.S.C.
§1259(3)(West Supp. 1995) and 10 U.S.C. §867(a)(West
Supp. 1994).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of
the United States provides in relevant part
that: No person shall .. . be deprived of life, lib-
erty, or property, without due process of law...

STATEMENT OF THE CASE

The petitioner was convicted of attempted kidnap-
ping, assault and battery of a minor, indecent liberties
with a minor, and communicating indecent language to a
minor in violation of 10 U.S.C. §§880, 928 & 934. He was
sentenced on 2 September 1992 to a dishonorable dis-
charge, confinement for two years and a reduction in
rank to the lowest enlisted grade (E-1).

The allegations arose out of an incident that occurred
in Wichita Falls, Texas on 6 March 1992. Linnia Trujillo,
13, was walking home from school when she was passed
by a small blue car. R 54. The driver, an adult male, blew
her a kiss. R 55. The car parked in an alley ahead of her
and when Linnia passed by, the driver asked her if she
needed a ride. She declined and kept walking. R 57. As
she passed the car, she looked inside and saw that the
driver had his penis in his hand. R 59. He told Linnia
“You know you want it. You’ll enjoy it.” He got out of
the car, grabbed Linnia by the neck and tried to force

al |

Dupe

3

her into the car saying “Now I’m going to have to play
rough.” She broke free and ran home. R 61.

She told her parents what had happened and her
father drove off in search of the small blue car she
described—what her father suggested to her must be a
Volkswagen “Bug.” R 61-63. While waiting for the police
in the front yard with her mother, Linnia saw what she
said was the same vehicle drive by her house. It was a
blue Volkswagen Bug. She hid behind her mother and
was unable to get a look at the driver. R 65.

When she was shown a photo lineup that included the
petitioner later that day, she was not able to pick him
out. At a physical lineup three months later, she picked
out both the petitioner and another man but apparently
was not positive. The two men she picked out were both
depicted in the photo array. One was petitioner. R 66,
345.

When initially asked to describe her assailant, she
said he was a short white male, possibly tanned, with
bushy, collar length dark hair. R 71-72. The appellant is
hispanic and, like all military members, always keeps his
hair cut short. Linnia wears glasses but did not have
them on at the time of the assault. R 92. Between a
quarter and half hour passed between the assault and
the time that the blue VW Bug drove by. It was during
this interval, a period during which she was extremely
frightened and upset, that Linnia’s parents were press-
ing her for details about her assailant. R 92-96. It was
just at this time that both parents, separately, saw the
petitioner driving through the neighborhood in his blue
VW Bug. R 115, 132.

The defense theory of the case was mistaken identifi-
cation based upon Linnia’s vulnerability and suggesta-
bility when confronted by authority figures. In other

4

words, that her testimony at trial identifying the appel-
lant and his car were the product of parents and police
attempting to get information from her that she did not
have.

At trial, the petitioner called Curtis Wills, PhD, a
licensed psychologist with board certifications in foren-
sic psychology and educational counseling, as an expert
on eye witness identification. R 461-462. He was offered
to testify about the stages of memory, the effect of
stress on these stages, the accuracy of recollection of
startling events, the effects of questioning by authority
figures, the phenomenon of insertion into the memory
by post-event questioning, the reliability of lineup pro-
cedures and the relation between the accuracy and con-
fidence of memory. R 461-475.

The trial judge limited Dr Wills testimony to the
effect of stress and questioning on memory. R 487. She
also greatly restricted defense counsel’s latitude in
exploring even the allowed areas, sue sponte cut off
defense counsel prematurely and even refused defense
counsel the opportunity to redirect the expert. R 492-
499. This prevented the defense from being able to
introduce the expert evidence to support much of the
defense theory of the case as outlined earlier by counsel.
R 461-475.

Both the Air Force Court of Criminal Appeals and the ©
Court of Appeals for the Armed Forces agreed that this
exclusion by the trial judge was abuse ef discretion but
that it did not rise to the level of Constitutional error.

THE TRIAL JUDGE’S ABUSE OF DISCRE-
TION IN EXCLUDING CRUCIAL POR-
TIONS OF THE DEFENSE EXPERT’S
TESTIMONY PREVENTED THE PETI-
TIONER FROM FULLY PRESENTING HIS

5

MISTAKEN IDENTITY DEFENSE THUS
VIOLATING HIS BASIC CONSTITU-
TIONAL RIGHT TO PRESENT MATERIAL
AND FAVORABLE EVIDENCE

The right to offer the testimony of witnesses .. .
is in plain terms the right to present the defen-
dant’s version of the facts as well as the prose-
cution’s to the jury so it may decide where the
truth lies. Just as an accused has the righ. to
confront the prosecution’s witnesses for the
purpose of challenging their testimony, he has
the right to present his own witnesses to estab-

- lish a defense. This right is a fundamental ele-
ment of due process of law.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920,
1923, 18 L.Ed.2d 1019 (1967). See also Taylor v. Illinois,
484 U.S. 400, 108 S.Ct. 646 (1988). This deprivation of
defense desired testimony rises to the level of a Due
Process violation if petitioner can make “some showing
that the evidence lost would be both material and favor-
able to the defense.” United States v. Valenzuela-
Bernal, 458 U.S. 858, 873, 102 S.Ct. 3440, 3449, 73
L.Ed.2d 1193 (1982).

The proper standard of materiality must reflect
our overriding concern with the justice of the
finding of guilt. Such a finding is permissible
only if supported by evidence establishing guilt
beyond a reasonable doubt. It necessarily fol-
lows that if the omitted evidence creates a rea-
sonable doubt that did not otherwise exist, con-
stitutional error has been committed. This
means the omission must be evaluated in the
context of the entire record. If there is no rea-
sonable doubt about guilt whether or not the

6

additional evidence is considered, there is no
justification for a new trial. On the other hand,
if the verdict is already of questionable valid-
ity, additional evidence of relatively minor
importance might be sufficient to create a rea-
sonable doubt.

United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct.
2392, 2401-2402, 49 L.Ed.2d. 342 (1971).

The government has never contested that the evi-
dence in dispute was favorable to the defense. The cru-
cial question in the petitioner’s case is that excluded evi-
dence’s materiality. In other words, whether the addi-
tional evidence could have created a reasonable doubt as
to the petitioner’s guiit.

The evidence showed that the appellant owned a blue
VW Bug and that he drove through the victim’s neigh-
borhood within a half hour after the incident. The criti-
cal issue in the petitioner’s case was the 13 year old vic-
tim’s identification of the petitioner as the man who
committed the assault. Without it, all the government
could prove was that the petitioner had a car similar in
description to that of the assailant and that he drove
through the area not long after the assault.

The victim’s identification of her assailant was shaky
at best. When first questioned immediately after the
assault by her parents and then the police, important
authority figures to a traumatized 13 year old, her
description could have fit virtually any medium sized
hispanic or caucasion male. The notable detail was that
the assailant had dark, curly shoulder length hair—
clearly someone other than the petitioner, who, by law
had to maintain a short military hair cut. Nor was the
victim able to identify the petitioner as her assailant in a
photo-lineup. It was only months later that she tenta-

7

tively identified the petitioner and another in a physical
lineup—both of whom had photos in the photo lineup.
By the time of trial, however, she testified that the peti-
tioner was her assailant and that she was positive it was
his car she saw parked in the alley. Clearly, this crucial
improvement in recall was the product of a desire to
provide the information that her parents, police, Air
Force investigators, military prosecutors—all were
pressing her for during the preparation of the peti-
tioner’s prosecution. Thus, the petitioner’s ability to
fully show the pressures a traumatized 13 year old feels
to provide what all of the surrounding authority figures
so,earnestly seek from her, time after time, in their
efforts to bring the man who wrorged her to justice—
are critical to his case. That is exactly the area that the
military judge precluded the defense from fully explor-
ing with the psychological expert. That evidence was
not only material to the defense but was at the heart of
the whole defense case—it was critical.

8

CONCLUSION

As both the Air Force Court of Criminal Appeals and
the Court of Appeals for the Armed Forces found, the
trial judge abused her discretion in restricting the
defense expert’s testimony. The courts below erred,
however, when they found that this error did not
exclude evidence that was material to the defense.
Preventing the defense expert from informing the court
about the effects on a 13 year old traumatized child
given the circumstances she faced following the assault
and leading up to the trial destroyed the petitioner’s
chance to fully present his defense. This rises to the
level of Constitutional error.

Respectfully submitted,

Jay Lindsey Cohen
Colonel, United States Air Force
Chief, Appellate Defense Division
Counsel of Record

Ormond R. Fodrea
Major, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner

Air Force Legal Services Agency
Appellate Defense Division
172 Luke Avenue, Suite 208
Bolling AFB, DC 20332-5113
202-767-1562

June 1996

APPENDICES

la

APPENDIX A

UNITED STATES, APPELLEE
Vv.

FERNANDO GARCIA, MASTER SERGEANT
U.S. AIR FoRCE, APPELLANT

No. 94-0953
CMR No. 30327

United States Court of Appeals for the Armed Forces
Argued October 3, 1995
Decided April 17, 1996

Counsel

For Appellant: Robert G. Estrada (argued); Colonel
Jay L. Cohen and Captain Richard D. Desmond (on
brief); Felicia Godwin.

For Appellee: Captain Deborah M. Carr (argued);
Colonel Jeffery T. Infelise (on brief); Lieutenant Colonel
Michael J. Breslin.

Military Judge: Mary M. Boone

Opinion of the Court
SULLIVAN, Judge:

Appellant was tried by a general court-martial com-
posed of officer and enlisted members! at Dyess Air

1See Part I, United States v. McElroy, 40 MJ 368, 370-71 (CMA
1994).

2a

Force Base, Texas, during August and September 1992.
Despite his pleas of not guilty, he stands guilty before
this Court of attempting to kidnap a 13-year-old female
and taking indecent liberties with her, in violation of
Articles 80 and 134, Uniform Code of Military Justice,
10 USC §§ 880 and 934, respectively. He was sentenced
to a bad-conduct discharge, 2 years’ confinement, total
forfeitures, and reduction to Airman Basic. On
December 23, 1992, the convening authority approved
this sentence. The Court of Military Review? affirmed
on April 29, 1994. 40 MJ 533.

On April 11, 1995, we granted review on the following
Issue raised by appellate defense counsel and an issue
modified by this Court:

I

WHETHER THE AIR FORCE COURT OF
MILITARY REVIEW ERRED IN APPLY-
ING AN INCORRECT STANDARD OF
REVIEW AND IN FAILING TO APPLY
THE CORRECT STANDARD OF CHAP-
MAN v. CALIFORNIA: WHETHER AP-
PELLANT WAS PREJUDICED BEYOND A
REASONABLE DOUBT BY AN ERROR OF
CONSTITUTIONAL MAGNITUDE.

II (modified)

WHETHER THE AIR FORCE COURT OF
MILITARY REVIEW WAS ERRONEOUS
IN RULING THE MILITARY JUDGE
ERRED IN EXCLUDING EXPERT EYE-
WITNESS TESTIMONY; AND IF THE
EXCLUSION WAS ERROR, WAS THE

2See 41 MJ 213, 229 n.* (1994).

3a

COURT OF MILITARY REVIEW ERRO-
NEOUS IN HOLDING IT HARMLESS.

On further consideration, this Court on May 17, 1995,
vacated the order dated April 11, 1995. On June 14,
1995, this Court again granted review of the two Issues
previously granted and specified an issue as follows:

WHETHER THIS COURT MAY CON-
SIDER, ON A PETITION FOR GRANT OF
REVIEW, THE CORRECTNESS OF THE
PORTION OF THE DECISION BY THE
COURT OF MILITARY REVIEW FAVOR-

, ABLE TO THE ACCUSED WHEN NO CER-
TIFICATE FOR REVIEW HAS BEEN
FILED RAISING THAT ISSUE.

We hold that any error committed by the military judge
in excluding the proferred defense evidence was, in light
of the entire record of trial, harmless beyond a reason-
able doubt. See United States v. Wilson, 20 MJ 31, 32
(CMA 1985) (harmless-beyond-a-reasonable-doubt
standard applied in abundance of caution).?

The following facts are set forth by the Court of
Military Review in its opinion:

On March 6, 1992, in Wichita Falls, Texas, a
man in a small car accosted LMJ, who was
walking home from school. After exposing him-
self and making indecent comments to her, he
jumped from the car and tried to force her into
it. Fortunately, she broke free and ran a short
distance to her home where she reported the
attack to her parents.

3In view of our resolution of this case, it is not necessary to answer
the specified issue.

4a

LMJ and her father, AJ, immediately went
looking for the attacker in the family car. LMJ
told AJ that the man drove a small blue car
with tinted windows and the word “BUG”
written in white across the windshield. She
added that the car was like the one they used
to own, which AJ recalled was a Volkswagen
“bug.” They were unsuccessful in their quick
search and returned home. Leaving LMJ to
await the police, AJ resumed the search. About
a block from his home, he saw a Volkswagen
that fit the description with a license plate
number that he recorded as “355 ONE.” He
saw the male driver but lost the trail when the
driver made a quick U-turn.

Back at home, LMJ and her mother, CSJ,
stood in the front yard waiting for the police
when LMJ saw a small blue Volkswagen with
tinted windows and the word “BUG” written in
white across the windshield drive by. LMJ told
CSJ, “Oh my gosh, Mom, he’s coming.” CSJ
saw the driver and wrote the license plate
number down as “355 ONE.” The male driver
waved and smiled as he drove by.

LMJ described her attacker for the police as
a short white male, possibly tanned, with
bushy, collar-length dark hair. Appellant is
Hispanic, wore a mustache at the time, and,
like most male military members, did not have
bushy hair. However, the police investigation
focused on appellant because he drove a small
blue Volkswagen “bug” with tinted windows,
the word “BUG” written in white across the
windshield, and license number “355 ONE.”

ES aN SRE MTN SE BIC TS I RE ONE RET ne A

5a

LMJ could not pick her attacker out of a
photo array which included appellant’s picture.
However, she picked both appellant and )
another male out of a subsequent physical |
lineup even though appellant had shaved his |
mustache after the photo array. LMJ’s parents |
also failed to pick appellant out of the photo |
array, but they recognized appellant at the |
lineup. However, the lineup deviated from |
standard investigative procedure because the |
investigators did not use the same individuals
from the photo array—only appellant and one

, other person LMJ picked from the lineup were
also pictured in the photo array.

At trial LMJ could not identify appellant as
her attacker. Her parents, on the other hand,
were certain appellant was the driver of the
Volkswagen they saw in the neighborhood. —

Appellant admitted he drove in LMJ’s neigh-
borhood on March 6th but denied committing
the offenses or trying to elude AJ. Appellant
also could not recall driving by LMJ’s house.

40 MJ at 534-35.

Sergeant Garcia’s defense at trial was one of mistaken
identity. To support this defense, he offered the testi-
mony of Dr. Curtis Wills, a board-certified forensic psy-
chologist and consultant to several law enforcement /
agencies, who was an expert in eyewitness identifica-
tion. In a session under Article 39(a), UCMJ, 10 USC §
839(a), conducted without members, the defense prof-
fered Dr. Wills’ testimony. Appellant in his final brief
notes the intended scope of direct examination, which he
proffered at the Article 39(a) session, as follows:

6a

The appellant proffered testimony from Dr.
Wills regarding the stages of memory, R. 465,
the effect of stress on these stages, R. 466, the
accuracy of recollection of startling events, R.
468, the effect of questioning by authority fig-
ures, R. 471, the phenomenon of insertion into
the memory by post-event questioning, R. 469,
the reliability of lineup procedures, R. 473, and
the correlation between the accuracy and confi-
dence of a memory, R. 475.

Final Brief at 8.

At trial Dr. Wills testified that stress has a negative
impact on the accuracy of eyewitness identification.
Moreover, the military judge allowed him to testify that
suggestive questioning can impact eyewitness identifi-
cation and that questioning by authority figures such as
parents can affect one’s responses. Relying on
Mil.R.Evid. 403 and 702, Manual for Courts-Martial,
United States, 1984, the judge did not allow the expert
to testify about the “inverse” relationship between con-
fidence and accuracy in identification and the theory of
memory transference and transposition. See Appendix.
Later, defense counsel made a motion for the judge to
recuse herself because of her rulings on defense evi-
dence. That motion was denied.

The Court of Military Review found the military
judge erred in excluding defense evidence in this case.
It then determined that appellant suffered no prejudice
from these erroneous rulings. Judge Pearson said:

PREJUDICE

Even though we determine the military judge
abused her discretion in excluding relevant

;
: ‘
ee

7a

portions of the expert’s testimony and restrict-
ing the rest, we do not grant relief unless we
find prejudice. Article 59(a), UCMJ, 10 USC §
859(a) (1988); Combs, 35 MJ at 827; United
States v. Sawyer, 32 MJ 917 (AFCMR 1991); see
United States v. Weeks, 20 MJ 22 (CMA 1985).
We do not find it here. |

In assessing prejudice from excluded expert
testimony, we believe the two most important
questions to answer are: (1) Was appellant able
to adequately present the issue to the mem-
bers in some other suitable form? and (2) Was
the Government’s case strong and conclusive
when weighed against the defense theory of
the case? See Weeks, 20 MJ at 25.

We start our review at defense counsel’s voir
dire. Defense counsel expertly questioned the
members extensively about identification evi-
dence, tailoring questions to the facts of the
case. For example, the members agreed “that
if somebody is stressed or frightened, their
memory and their perceptions may not be very
strong.” While voir dire questions and answers
aren’t evidence in the case, the questions and
answers show the members were amenable to
the defense theory of the case. In presenting
that theory, Dr. Wills did testify in general
terms about most of the areas in issue except
the suggestiveness of the lineup which counsel
fully explored through cross-examination of
the investigator who conducted it. In closing
argument, defense counsel honed the issue of
the reliability of the eyewitness’ identifications
for the members, including how LMJ and her
parents had improved on their identifications

a

Fe ON I ee ee a eS ee a

2 eh ae SL Ree SO Sy a ee ye i es eens erm ae on Bees te to,

8a

over time. Consequently, we conclude appellant
was able to adequately present the issue in
spite of the military judge’s ruling.

As for the quality of the Government’s case, we
find the evidence establishing appellant’s guilt
overwhelming. See Moore, 786 F.2d at 1313;
Smith, 736 F.2d at 1107-1108. In this regard,
we will not recount appellant’s testimony other
than to say he was his own worst enemy on the
witness stand. Appellant also made several
incriminating admissions to a Wichita Falls
detective during a telephone conversation and
to an Office of Special Investigations special
agent during an interview. He_told the detec-
tive, “nobody drives his Volkswagen but him,”
and appeared to. know facts about the incident
only the perpetrator would know. He admitted
to the agent that he “might have stopped and
talked to a girl” in LMJ’s neighborhood on the
date of the offenses, and he “stopped for
extended periods of time near [her] school.”

40 MJ at 538-39.

Appellant’s basic contention on this appeal is that the
Court of Military Review applied the wrong test for
determining whether error by the military judge in
excluding certain defense evidence was prejudicial. He
asserts that the appellate court below found an error of
constitutional magnitude in this case, i.e., a violation of
his due process right to present a defense under the
Fifth Amendment. He then argues that the court below
erred in applying the decision of this Court in United
States v. Weeks, 20 MJ at 25, to determine prejudice
arising from such a constitutional error. Finaliy, he con-

9a

tends that even if the fouuw-factow. test.6. Wrebieo*roi “idu-

ing prejudice is appropriate in constitutional error
cases, the Court of Military Review did not properly
apply all four factors of that test in his case.

We initially note that the Court of Military Review
did not hold that constitutional error occurred in this
case. See United States v. Lane, 474 U.S. 438, 446 n. 8 &
9 (1986). Instead, it held that the military judge vialated
several rules of evidence by restricting Doctor Wills’
expert testimony (i.e., Mil.R.Evid. 403 and 702-04). 40
MJ at 537-38. Then, it assessed the impact of the judge’s
errors in light of other evidence in this case and found
no prejudice. Jd. at 538-39. This is standard nonconstitu-
tional evidentiary analysis. Mil.R.Evid. 103(a); United
States v. Wimberly, 60 F.3d 281, 286 (7th Cir. 1995), cert.
denied, 116 S.Ct. 744 (1996); United States v. Hanson,
994 F.2d 403, 407 (7th Cir. 1993); United States v. Hogan,
886 F.2d 1497, 1512 (7th Cir. 1989); United States v.
Peak, 856 F.2d 825, 834-35 (7th Cir.), cert. denied, 488
U.S. 969 (1988). Accordingly, we reject appellant’s initial
assumption that the Court of Military Review found
constitutional error in this case.

We further hold that appellant was not denied his con-
stitutional right to present his defense by the military
judge’s evidentiary rulings limiting Dr. Wills’ testimony.
Appellant does not challenge the legitimacy of
Mil.R.Evid. 403 or 702, or the discretion they confer
upon a military judge to admit or exclude evidence. See
Rock v. Arkansas, 483 U.S. 44 (1987); Chambers v.
Mississippi, 410 U.S. 284 (1973); Washington v. Texas,
388 U.S. 14 (1967). Instead, he simply notes that the
Court of Military Review found that the military judge
abused her discretion in applying those rules to the
excluded portions of Dr. Wills’ testimony. See United
States v. Blum, 62 F.3d 63, 68 (2d Cir. 1995); United

NA Bi da ta Nee

ee ee ee Pe, ee

10a

States v. Stevens, 935 F.2d 1380, 1400-01 (8d Cir. 1991);
see also United States v. Abel, 469 U.S. 45, 55 (1984). It
is well established, however, that not every error in the
exclusion of defense evidence constitutes constitutional
error. See United Staies v. Cruz-Jiminez, 977 F.2d 95,
100 (3d Cir. 1992); Rosario v. Kuhlman, 839 F.2d 918,
924 (2d Cir. 1988); Flanders v. Meachum, 824 F.Supp.
290, 299 n.8 (D. Conn. 1993), rev’d on other grounds, 13
F.3d 600 (2d Cir. 1994). To establish constitutional error,
exclusion of material or vital defense evidence must
usually be shown.’ See Taylor v. Illinois, 484 U.S. 400,
409 (1988); United States v. Valenzuela-Bernal, 458 U.S.
858, 868-65 (1982); United States v. Robaina, 39 F.3d
858, 862 (8th Cir. 1994).

For several reasons, we conclude that the defense
was not denied material evidence in this case.

First, we note that Dr. Wills was allowed to testify in
support of the defense theory of misidentification. He
provided testimony to the members about the effect of
stress on memory and its suggestibility as induced by
questioning of authority figures such as parents.

Second, appellant’s cross-examination of a police offi-
cer revealed admittedly suggestive circumstances sur-
rounding the photograph spread and the subsequent in-
person lineup, both involving appellant. It sufficiently
allowed him to present a tainted-identification argument
to the members. Dr. Wills’ testimony on the theory of
transference and transposition was more theoretical and
general in nature, so it added little to the police officer’s
more practical concessions.

4Our case law indicates that exclusion of certain types of evidence,
i.e., defense character evidence (United States v. Gagan, 43 MJ 200,
203 (1995); United States v. Brown, 41 MJ 1, 4 (CMA 1994)) or vic-
tim-bias evidence (United States v. Bins, 43 MJ 79, 86 (1995)) can
usually be considered constitutional error.

lla

Third, the confidence-accuracy relationship testimony
of Doctor Wills did not have great value in this case. See
United States v. Holmes, 44 F.3d 1150, 1157 (2d Cir.
1995). The victim could not identify appellant as her
assailant from the photo spread, at the subsequent line-
up, or at trial. 40 MJ at 535. Moreover, her identification
of his car as the assailant’s car and his race as Spanish
could hardly be described as confident. She admitted
that her identification of her assailant’s car as a
Volkswagon came from her father. Moreover, her testi-
mony that she had previously said her assailant was
“like a Mexican” was contradicted by the arresting
police officer. Cf. United States v. Stephens, 935 F.2d at
1400 (witness identification at trial was exceedingly con-
fident). In these circumstances, we hold that there was
no reasonable likelihood that the excluded testimony of
Doctor Wills would change the result in this case. See
generally Kyles v. Whitney, 115 S.Ct. 1555, 1566 (1995)
(Material means “‘reasonable probability’ of a different
result.”); see also People v. Sanders, 905 P.2d 420, 443
(Cal. 1995).

We further hold that the appellate court below did not
err in affirming appellant’s case on the basis of the four-
pronged test for prejudice articulated in United States
v. Weeks, supra. That decision does not expressly state
whether its trial-impact factors are appropriate for
determining prejudice in cases involving errors of con-
stitutional magnitude or just nonconstitutional errors.
Cf. United States v. Vandelinder, 20 MJ 41, 47 (CMA
1985); United States v. Wilson, 20 MJ 31, 832 (CMA 1985)
(harmless-beyond-a-reasonable-doubt standard applied
in abundance of caution). In any event, evidentiary
error is normally tested to see if it resulted in actual
prejudice, 7.e., substantial and injurious effect or influ-

12a

ence in determining the jury’s verdict.® Likewise, a
determination of reversible constitutional error with
respect to an accused’s right to present a defense
requires at some point consideration of the entire record
of trial. See Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986). Cf. Kyles v. Whitely, supra.® Accordingly, the
factors in Weeks, as considered and supplemented by
the Court of Military Review, were an appropriate and
necessary basis upon which to decide appellant’s case.
See United States v. Gagan, 43 MJ 200, 203 (1995); ef.
United States v. Levy-Cordero, 67 F.3d 1002, 1013-15
(1st Cir. 1995).

Finally, we hold that the Court of Military Review
fully and fairly applied the Weeks test in appellant’s
case. In United States v. Weeks, supra, then-Judge Cox
clearly articulated the factors to be considered in deter-
mining prejudice or harm from an erroneous ruling by
the judge excluding defense evidence. He said:

5An evidentiary error has not been considered harmless under this
standard if it excluded the only or primary evidence in support of or
in opposition to a claim or defense. See United States v. Cardascia,
951 F.2d 474, 489 (2d Cir. 1991); United States v. Peak, 856 F.2d 825,
834 (7th Cir.), cert. denied, 488 U.S. 969 (1988); United States v.
Kohan, 806 F.2d 18, 22 (2d Cir. 1986). For the reasons stated by the
Court of Military Review, 40 MJ 533, 538-39 (1994), we reject appel-
lant’s argument that error in the military judge’s evidentiary rul-
ings so prejudiced him in this case.

6Appellant suggests that a violation of his constitutional right to
present a defense should be determined without regard to “out-
come determinative” prejudice. See Delaware v. Van Arsdall, 475
U.S. 673, 680 (1986); Davis v. Alaska, 415 U.S. 308, 318 (1974). Even
if this approach is correct, this constitutional error would still be
tested for harmless error employing Weeks-like factors before a
conviction is reversed. United States v. Gagan, 43 MJ 200 (CMA
1995); see also Delaware v. Van Arsdall, supra at 684; United
States v. Owens, 789 F.2d 750, 761-62 (9th Cir. 1986), rev’d on other
arounds, 484 U.S. 554 (1988); United States v. Cerro, 775 F.2d 908,
915-16 (7th Cir. 1985).

13a

We now adopt the following four-pronged
analysis to test for prejudice:

First: Is the Government’s case against the
accused strong and conclusive? United States
v. Lewis, 482 F.2d 632, 644 (D.C. Cir. 1973).

Second: Is the defense’s theory of the case
feeble or implausible? United States v. Lewis,
supra at 646.

Third: What is the materiality of the prof-
fered testimony’...

Fourth: What is the quality of the proffered
defense evidence and is there any substitute
for it in the record of trial?

20 MJ at 25 (footnote omitted). The opinion of the court
below contains a finding on each of these factors adverse
to appellant, although perhaps, out of order and in con-
junctive fashion. Moreover, even assuming constitu-
tional error occurred in this case, we are convinced that
the findings of the court below clearly demonstrate such
error was harmless beyond a reasonable doubt. See
United States v. Wilson, supra.

The decision of the United States Air Force Court of
Military Review is affirmed.

Chief Judge COX, Judges CRAWFORD and
GIERKE, and Senior Judge DARDEN concur.

l4a

APPENDIX

The military judge did not admit all of this evidence
from Doctor Wills. While the members were deliberat-
ing on sentence, she stated her reasoning in limiting his
testimony, as follows:

I wanted to put on the record the reasons and
some of the findings that I made factually from
my rulings regarding his testimony.

First I’d note, of course, that Military Rule of
Evidence 702 provides that if scientific, techni-
cal, or specialized knowledge will assist the
trier of fact to understand the evidence or
determine a fact in issue, then you can allow
expert testimony. Of course, there’s several
questions. First, is the testimony helpful to the
members. And then always you have the issue
of is the testimony relevant. And I looked at
both of those. J determined that the expert tes-
timony regarding the effects of stress and the
general principles of how perceptions are
acquired, stored, and retrieved were relevant
regarding eyewitness identification in this
case. However, I felt the relevance was very
limited in that I would restrict the testimony
beyond those areas and that I would restrict it
in those areas in a very limited manner to
avoid some factors in balancing using Military
Rule of Evidence 403. And I’m going to go over
those factors.

So initially I did determine that on a limited
basis it was relevant, balancing it with the con-
ditions that are talked about in Rule 403, the
dangers of unfair prejudice, confusion of the
issues, misleading of the members, or by con-

15a

siderations of undue delay, waste of time, or
needless presentation of cumulative evidence.
Clearly determining the credibility or believ-
ability of each witness is within the sole
province of the court members. The ability of
each witness to observe and recall what they
observed is amply presented by examination or
cross-examination of the witnesses. This is
true regarding all of the witnesses that we’ve
heard in this case and in particular regarding
my exclusion of Dr. Wills’ testimony regarding
the photo and physical lineups and his testi-
‘mony regarding suggestibility there. I find that
counsel for both the Government and defense
had the opportunity to thoroughly examine and
cross-examine the testimony of the police offi-
cers who presented the photo lineup to the var-
ious witnesses and how she picked those and
how she presented that and, as well, the testi-
mony of the OSI agent who conducted the per-
sonal lineups in this case. And that testimony
included how he selected the members to be
included, what steps he took to avoid possible
suggestibility, and, on cross-examination, the
counsel went into what the Air Force regula-
tion provides regarding such and the questions
regarding its suggestibility and why one
shouldn’t necessarily do a photo lineup as well
as in-person lineup. So all those areas were
covered by the cross-examination and exami-
nation of the special agent.

Now although Dr. Wills read and he testified in
the 39(a) session, I would not allow him to tes-
tify in the hearing in front of the members—
read the OSI report and police reports, those

Pa i i la dh cic

Pd Babee Menarini Rodos hats aig be ie

16a

reports don’t fully detail the dynamics of what
occurred during those presentations. The mem-
bers had the photo lineup and they had it, of
course, during their findings deliberations as
well, which is Prosecution Exhibit 6. And they
had the photos from the physical lineup. Those
are Prosecution Exhibits 7 and 8. They had
those as evidence to observe for themselves
any suggestibility, as well as they were able to
observe the witnesses who talked about what
occurred during those lineups. As factfinders,
that is clearly their duty to determine any sug-
gestibility regarding those. Dr. Wills’ testi-
mony in this area would therefore not only be
cumulative, but confusing and misleading,
therefore not admissible, since it is their duty
as factfinders to look at the credibility of the
witnesses and determine their credibility. And
they could themselves observe the suggestibil-
ity of any photos or the lineups. Therefore that
was in their province as factfinders and Dr.
Wills’ testimony would therefore invade their
province.

Dr. Wills’ expert testimony that there is an
inverse correlation between the certainty of an
eyewitness identification and its accuracy
would also create a substantial danger of
undue prejudice and confusion and have lim-
ited probative value. In examining—when you
examine the credibility of witness instruction
regarding eyewitness identification, it clearly
instructs the members in part—and I’m going
to read part of that—whether the witness had
an adequate opportunity to observe the
offender at the time of the offense will be

17a

affected by such matters as how long or short a
time was available, how far or close the witness
was, how good were lighting conditions,
whether the witness had an occasion to see or
know the person in the past. Such a thesis by
Dr. Wills of this inverse correlation would only
add confusion and be misleading to this instruc-
tion. The instruction clearly tells the members
what facts or evidence they should consider in
determining the credibility or believability of
eyewitness identification and his testimony
would not take into consideration these
- instructions and matters. I would also note—
and I have examined the cases that the
Government cited so I won’t recite them. I did
examine U.S. v. Hicks [,7 MJ 561], which is the
only military justice case I could find and I
believe that is all counsel could find as well.
And in there it noted—and that was a decision
and a case that excluded all of the expert testi-
mony. And it talks about Rules 702 and 403 and
the balancing that the judge did in that case. It
talked about the testimony of the expert would
invade the province of the jury and would cre-
ate a substantial danger of undue prejudice and
confusion because of its aura of special reliabil-
ity and trustworthiness and it would have lim-
ited probative value, directed as it is to the
expert’s thesis rather than the actual eyewit-
ness accounts. And in this case I would concur
and my reasoning would be the same regard-
ing that testimony as to his thesis of this
inverse correlation. The limited evidence that I
am allowing or did allow, since I’m adding and
expanding and explaining my findings, but at
the time I was going to allow Dr. Wills to tes-

18a

tify regarding eyewitness identification to suf-
ficiently educate the members in the possible
pitfalls of eyewitness identification and the
effects that such stress has on such identifica-
tion. And by limiting it, they get that general
background information, they’re educated, and
then they get to evaluate the evidence—the
eyewitness evidence or testimony, the testi-
mony of the officers, as well, who were present
during any lineups, photo or otherwise. And
they can examine all of those witnesses to
determine their credibility, suggestibility, and
the believability in this case. Additionally, I
would note that the Government was not noti-
fied of this expert witness until the first day of
trial, and he was not available for them to
interview until the next morning—early on
Thursday morning. And I also considered that
and that in terms of proceeding with the case
that we’d started with members and the diffi-
culty it might be for the Government to obtain
their own expert. I considered all of that.
However, that was not a major consideration,
although I believe I’ve clearly outlined the fac-
tual basis for it. I did consider that. And, again,
I noted that I had reviewed the cases. And
that’s the basis upon which I made my decision.

(Emphasis added.)

lb
APPENDIX B

UNITED STATES AIR FORCE COURT OF
MILITARY REVIEW

UNITED STATES
v.

Master Sergeant FERNANDO GARCIA,
F'R457-92-4510
UNITED STATES AIR FORCE

ACM 30327

29 APRIL 1994
ce © Rie

Sentence adjudged 2 September 1992 by GCM
convened at Dyess Air Force Base, Texas.
Military Judge: Mary M. Boone.

Approved sentence: Bad-conduct discharge,
confinement for 2 years, forfeiture of all pay
and allowances, and reduction to E-1.

Appellate Counsel for Appellant: Robert G.
Estrada, Esq. (argued), Colonel Terry J.
Woodhouse, Colonel Jay L. Cohen, Lieutenant
Colonel Frank J. Spinner, Captain Ursula P.
Moul, and Felicia Godwin, Esq.

Appellate Counsel for the United States: Major
Barnard N. Madsen (argued), Colonel Jeffery
T. Infelise, Lieutenant Colonel Thomas E.
Schlegel, and Captain Richard D. Desmond.

2b

Before

HEIMBURG, PEARSON, and SCHREIER
Appellate Military Judges

OPINION OF THE COURT

PEARSON, Judge:

The key issue in this case is whether an accused in a
court-martial may present expert testimony to attack
the reliability of an eyewitness identification. We hold
such testimony is admissible when the accuracy of an
eyewitness identification is a critical issue in the case
and the expert will testify on specific psychological fac-
tors which could have affected the accuracy of the iden-
tification. We determine the military judge abused her
discretion in excluding the expert testimony here, but
affirm the conviction because appellant was not preju-
diced by the error.

FACTS

A general court-martial sitting with officer and
enlisted members convicted Master Sergeant Garcia of
attempting to kidnap a 13-year-old female, LMJ, and
taking indecent liberties with her by communicating
indecent language and exposing his penis. The members
sentenced Sergeant Garcia to a bad-conduct discharge, 2
years confinement, forfeiture of all pay and allowances,
and reduction to E-1, which the convening authority
approved as adjudged.

On March 6, 1992, in Wichita Falls, Kansas, a man in a
small car accosted LMJ, who was walking home from

3b

school. After exposing himself and making indecent
comments to her, he jumped from the car and tried to
force her into it. Fortunately, she broke free and ran a
short distance to her home where she reported the
attack to her parents.

LMJ and her father, AJ, immediately went looking for
the attacker in the family car. LMJ told AJ that the man
drove a small blue car with tinted windows and the
word “BUG” written in white across the windshield.
She added that the car was like the one they used to
own, which AJ recalled was a Volkswagen “bug.” They
were unsuccessful in their quick search and returned
home. Leaving LMJ to await the police, AJ resumed the
search. About a block from his home, he saw a
Volkswagen that fit the description with a license plate
number that he recorded as “355 ONE.” He saw the
male driver but lost the trail when the driver made a
quick U-turn.

Back at home, LMJ and her mother, CSJ, stood in the
front yard waiting for the police when LMJ saw a small
blue Volkswagen with tinted windows and the word
“BUG” written in white across the windshield drive by.
LMJ told CSJ, “Oh my gosh, Mom, he’s coming.” CSJ
saw the driver and wrote the license plate number down
as “355 ONE.” The male driver waved and smiled as he
drove by.

LMJ described her attacker for the police as a short
white male, possibly tanned, with bushy, collar-length
dark hair. Appellant is Hispanic, wore a mustache at the
time, and, like most male military members, did not
have bushy hair. However, the police investigation
focused on appellant because he drove a small blue
Volkswagen “bug” with tinted windows, the word
“BUG” written in white across the windshield, and

4b

license number “355 DNE.”

LMJ could not pick her attacker out of a photo array
which included appellant’s picture. However, she picked
both appellant and another male out of a subsequent
physical lineup even though appellant had shaved his
mustache after the photo array. LMJ’s parents also
failed to pick appellant out of the photo array, but they
recognized appellant at the lineup. However, the lineup
deviated from standard investigative procedure because
the investigators did not use the same individuals from
the photo array—only appellant and the one other per-

son LMJ picked from the lineup were also pictured in

the photo array.

At trial, LMJ could not identify appellant as her
attacker. Her parents, on the other hand, were certa:n
appellant was the driver of the Volkswagen they saw in
the neighborhood.

Appellant admitted he drove in LMJ’s neighborhood
on March 6th but denied committing the offenses or try-

ing to elude AJ. Appellant also could not recall driving
by LMJ’s house.

ADMISSIBILITY OF EXPERT TESTIMONY
The P 1 Testi
Appellant’s theory at trial was mistaken identity. He
tendered Dr. Curtis Wills, a board certified forensic psy-
chologist and consultant to several law enforcement
agencies, as an expert in eyewitness identification to
attack the witnesses’ identifications of himself and his
car. Dr. Wills proposed to testify regarding (1) the nega-

tive effect of startling events and stress on memory, (2)
the suggestiveness of post-event questioning by author-

5b

ity figures such as parents and police, (3) the suggestive-
ness of lineups following photo arrays where the individ-
uals presented to the witness change, and (4) the
inverse correlation between a witness’ growing confi-
dence in an identification and its actual accuracy.

The Military Judge's Rul

In a hearing conducted out of the presence of the
court members pursuant to Article 39, UCMJ, 10 U.S.C.
§ 839 (1988), Dr. Wills proffered his testimony. Over
strenuous prosecution objection, the military judge
accepted Dr. Wills as an expert in “forensic psychology
and eyewitness identification.” The military judge found
Dr. Wills’ concepts were “probably somewhat accepted.”
However, relying on United States v. Hicks, 7 M.J. 561
(A.C.M.R.), pet. denied, 7 M.J. 249 (1979), the military
judge determined that expert testimony on eyewitness
identification was not generally admissible in military
trials. Consequently, the judge severely restricted Dr.
Wills’ testimony before the members.

The military judge allowed Dr. Wills to testify to the
members in general terms about the negative effect that
startling events, stress, and post-event questioning
have on the accuracy of a witness’ memory. She did not
let him testify about the suggestibility of the lineup, tai-
lor his testimony to the specifics of the case, or render
an opinion on how the various psychological factors
affected the accuracy of LMJ’s, AJ’s, and CSJ’s identifi-
cations. Moreover, she swa sponte cut off direct exami-
nation at times, curtly refused to allow defense counsel
to redirect after cross-examination, and didn’t give the
members an opportunity to ask questions.

6b

In restricting Dr. Wills’ testimony, the military judge
stated the evidence’s probative value under Military
Rule of Evidence (Rule) 403 was substantially out-
weighed by the danger of unfair prejudice, confusion of
the issues, misleading of the members, undue delay,
waste of time, and needless presentation of cumulative
evidence.

EDS Sere engages Identificati

Hicks is the only published military case dealing with
expert testimony attacking eyewitness identifications.
In Hicks, the appellant argued the military judge erred
in denying his motion to produce a psychologist at gov-
ernment expense who would testify about the unrelia-
bility of eyewitness identifications made under stress
and the suggestiveness of a lineup. The Army Court of
Military Review affirmed the conviction, holding the
military judge did not abuse his discretion in denying
the motion. In ruling, the Court adopted the four-prong
test from the “leading Federal case” of United States v.
Amaral, 488 F.2d 1148 (9th Cir. 1973). For expert testi-
mony to be admissible, the proponent must establish: (1)
a qualified expert, (2) a proper subject, (3) conformity to
a generally accepted explanatory theory, and (4) proba-
tive value compared to prejudicial effect. Hicks, 7 M.J.
at 563.

While upholding the military judge’s ruling, the Hicks
court did not fully explain how the expert testimony
failed any prong of the test. In any event, the third
prong of the Hicks/Amaral test for expert testimony,
conformity to a generally accepted explanatory theory
aa outlined in Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923), is no longer valid in military criminal trials,

7b

United States v. Gipson, 24 M.J. 246 (C.M.A. 1987)
(applying Mill R. Evid. 702), or federal trials. Daubert v.
Merrell Dow Pharmaceuticals, Inc., _ U.S. _, 118 S. Ct.
2786, 125 L. Ed. 2d (1993) (applying Fed. R. Evid. 702);
United States v. Almador-Galvan, 9 F.3d 1414, 1418 (9th
Cir. 1993) (applying Daubert in rejecting Amaral test).
Instead, general acceptance is merely a factor to be con-
sidered in weighing whether expert testimony is both
relevant and reliable enough for admission. Daubert, 113
S. Ct. at 2795; Gipson, 24 M.J. at 251.

Before Daubert, the federal circuits split on whether
to admit expert testimony offered by the defense to
attack the reliability of an eyewitness identification. The
circuits that excluded it determined the testimony (1)
did not meet the Frye standard of general acceptance,
(2) invaded the province of the jury to determine credi-
bility of witnesses, (3) was not helpful because jurors
could use their common sense and experience to deter-
mine reliability of eyewitness testimony, (4) was only
offered in general terms without tying the expert opin-
ion to the facts of the case, or (5) would confuse the jury
as eyewitness identification was not a central issue in
the case. For a discussion of the various circuit posi-
tions, see United States v. Hudson, 884 F.2d 1016 (7th
Cir. 1989) (excluding), cert. denied, 496 U.S. 939 (1990)
and United States v. Moore, 786 F.2d 1308 (5th Cir. 1986)
(admitting), reh’g denied, 791 F.2d 928 (5th Cir. 1986) (en
banc).

In our view, the modern trend is to admit expert tes-
timony on the impact psychological factors such as
stress, suggestibility, feedback, and confidence have on
the reliability of an eyewitness identification when the
identification is a critical issue in the case. Moreover, in
military trials, judges should “view liberally the ques-
tion of whether the expert’s testimony may assist the

8b

trier of fact.” United States v. Combs, 35 M.J. 820, 826
(A.F.C.M.R. 1992) (citations omitted). And, “[iJf any-
thing, in marginal cases, due process might make the
road a tad wider on the defense’s side than on the
Government’s.” Gipson 24 M.J. at 252; see Chambers v.
Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d
297 (1973).

We do not find the defense proffered expert psycho-
logical testimony on the unreliability of the eyewitness
identifications in this case any more, or less, mystical
than already sanctioned Government expert testimony
on rape trauma syndrome, e.g., United States v. Carter,
26 M.J. 428 (C.M.A. 1988), and child abuse accommoda-
tion syndrome, e.g., United States v. Suarez, 35 M.J. 374
(C.M.A. 1992). We find that each of the areas Dr. Wills
proposed to testify about, particularly the impact of
stress on accuracy and the relationship between a wit-
ness’ confidence in an identification and its accuracy,
went beyond what an average court member might
know as a matter of common knowledge. Some of his
principles were counter-intuitive and flew in the face of
common beliefs. See United States v. Downing, 753 F.2d
1224, 1230-1232 (3d Cir. 1985) (quoted in Daubert, 113 S.
Ct. at 2797; and Gipson, 24 M.J. at 251); Moore, 786 F.2d
at 1312-13; United States v. Smith, 736 F.2d 1103, 1106
(6th Cir. 1984) (observation in first lineup may “uncon-
sciously transfer” to second lineup and result in incor-
rect identification), cert. denied, 469 U.S. 868 (1984).

Of course, the proponent of expert testimony must
always demonstrate (1) a qualified expert, (2) a proper
subject matter, (3) a proper basis for the expert’s opin-
ion, (4) the relevance of the testimony to the particular
case, (5) the reliability of the evidence, and (6) whether
the probative value of the testimony is subatantially
outweighed by the considerations outlined in Rule 403,

9b

such as confusion of the issues. United States v. Houser,
36 M.J. 392, 397 (C.M.A. 1993), cert. denied, __U.S.__,
114 S. Ct. 182 (1993). We merely hold that expert testi-
mony offered on the reliability of an eyewitness identifi-
cation ia a proper subject matter for expert opinion and
is sufficiently reliable for admission in military criminal
trials. As to relevancy, we also hold that the proponent
of the expert testimony must show how it is relevant to
both the specific eyewitness identification at issue and a
disputed factual issue in the case. We leave it to the trial
judge to determine in any particular case whether the
proponent puts the ball between the goal posts, which
brings us to the judge’s ruling in this case.

ABUSE OF DISCRETION STANDARD

On appeal, we review a military judge’s decision to
admit or exclude expert testimony using an abuse of dis-
cretion standard. Houser, 36 M.J. at 397. Even if expert
testimony is otherwise admissible under Rule 702, the
military judge may still exclude it after performing the
balancing test of Rule 403, which we also test for an
abuse of discretion. Howser, 36 M.J. at 400; United
States v. Brooks, 22 M.J. 441 (C.M.A. 1986).

While the military judge did not have the benefit of
Daubert or Almador-Galvan, she did have Gipson,
Downing, and Rules 702, 704. In this case we find appel-
lant established: (1) Dr. Wills was an expert in the areas
in question, (2) his testimony was on a proper subject
matter, (3) he had a proper basis for his opinion, (4) his
testimony was relevant to a critical issue in the case, (5)
his testimony was sufficiently reliable for admission, and
(6) the probative value of the testimony was not sub-
stantially outweighed by other considerations outlined
in Rule 403. We determine the military judge abused

10b

her discretion in excluding the proffered expert testi-
mony as the following key factors she highlighted for
excluding the evidence are not supported in fact or law:

1. Dr. Wills’ testimony invaded the province of the
member i redibili i
Under Rule 704, an expert opinion is not inadmissible
because it embraces an ultimate issue in the case.
Consequently, invading the province of the members by
giving them information on which to make a credibility
call is not a valid basis for excluding the testimony. See
Downing, 753 F.2d at 1229. Dr. Wills was not going to
testify as a human lie detector. See United States v. Hill-
Dunning, 26 M.J. 260 (C.M A. 1988), cert. denied, 488
U.S. 967 (1988).

2. Dr. Wills only read the investigativ n th
case; he did not interview or test the victim. An expert

need not interview a victim, or any other witness,
before rendering an expert opinion about a victim; the
expert may base an opinion on an investigative report,
statements of witnesses, or even listening to trial testi-
mony. Mil. R. Evid. 703; Howser, 36 M.J. at 399.

h f i iv nabl i
expert to the Government. While there is some support

in the federal circuits for excluding expert testimony
when lack of reasonable notice prejudices the other
party, see, e.g., United States v. Dowling, 855 F.2d 114,
118 (3d Cir. 1988), aff’d on other grounds, 493 U.S. 342
(1990), the Government did not offer any prejudice for
the military judge to factor into her ruling. The military
judge apparently found prejudice swa sponte without
elaborating on how it occurred. In contrast to her ruling,
we note the prosecutor sat quietly when first alerted to
the possibility of Dr. Wills’ testimony during defense
voir dire on day one of this week long trial.

dure. In this case, where the alleged victim can’t iden-
tify her attacker at trial and the other eyewitnesses
offer identifications made during fleeting casual obser-
vations, we fail to see how the only defense evidence
directly attacking the Government’s circumstantial
identification evidence, other than the appellant’s broad
denial, could ever be a waste of time, too confusing, or
cumulative. See Mil. R. Evid. 403; Downing, 753 F.2d at
1243. As opposed to the trial judge, we see that expert
testimony has a proper purpose in attacking precon-
ceived ideas and beliefs even those ideas and beliefs
held by the court, and, at tirnes, our “whole system.”
“The ‘dangers inhering in eyewitness identification,’
particularly of a stranger encountered under stressful
conditions, have been recognized by the courts and the
object of much comment.” United States v. McLaurin,
22\M.J. 310, 312 (C.M.A. 1986) (citations omitted).
icti X i imon

Even those courts which completely excluded the
expert testimony recognized that the expert should only
present testimony tailored to the facts of the case and
not generalized testimony. See, e.g., United States v.
Fosher, 590 F.2d 381 (1st Cir. 1979).

12b

PREJUDICE

Even though we determine the military judge abused
her discretion in excluding relevant portions of the
expert’s testimony and restricting the rest, we do not
grant relief unless we find prejudice. Article 59(a),
UCMJ, 10 U.S.C. § 859(a) (1988); Combs, 35 M.J. at 827;
United States v. Sawyer, 32 M.J. 917 (A.F.C.M.R. 1991);
see United States v. Weeks, 20 M.J. 22 (C.M.A. 1985). We
do not find it here.

In assessing prejudice from excluded expert testi-
mony, we believe the two most important questions to
answer are: (1) Was appellant abie to adequately pre-
sent the issue to the members in some other suitable
form? and (2) Was the Government’s case strong and
conclusive when weighed against the defense theory of
the case? See Weeks, 20 M.J. at 25.

We start our review at defense counsel’s voir dire.
Defense counsel expertly questioned the members
extensively about identification evidence, tailoring ques-
tions to the facts of the case. For example, the members
agreed “that if somebody is stressed or frightened, their
memory and their perceptions may not be very strong.”
While voir dire questions and answers aren’t evidence in
the case, the questions and answers show the members
were amenable to the defense theory of the case. In pre-
senting that theory, Dr. Wills did testify in general
terms about most of the areas in issue except the sug-
gestiveness of the lineup which counsel fully explored
through cross-examination of the investigator who con-
ducted it. In closing argument, defense counsel honed
the issue of the reliability of the eyewitness’ identifica-
tions for the members, including how LMJ and her par-
ents had improved on their identifications over time.
Consequently, we conclude appellant was able to ade-

13b

quately present the issue in spite of the military judge’s
ruling.

As for the quality of the Government’s case, we find
the evidence establishing appellant’s guilt overwhelm-
ing. See Moore, 786 F.2d at 1313; Smith, 736 F.2d at
1107-1108. In this regard, we will not recount appellant’s
testimony other than to say he was his own worst
enemy on the witness stand. Appellant also made sev-
eral incriminating admissions to a Wichita Falls detec-
tive during a telephone conversation and to an Office of
Special Investigations special agent during an inter-
view. He told the detective, “nobody drives his
Volkswagen but him,” and appeared to know facts about
the incident only the perpetrator would know. He
admitted to the agent that he “might have stopped and
talked to a girl” in LMJ’s neighborhood on the date of
the offenses, and he “stopped for extended periods of
time near [her] school ”

REMAINING ISSUES

We resolve the remaining assigned errors adversely
to appellant, including the legal and factual sufficiency
of the evidence, United States v. Turner, 25 M.J. 24
(C.M.A. 1987), and the appropriateness of the sentence,
United States v. Healy, 26 M.J. 394 (C.M.A. 1988).

Accordingly, the findings and sentence are

AFFIRMED.
Senior Judge HEIMBURG and Judge SCHREIER concur.

14b

ALVIN J. STRIBLIN
Technical Sergeant, USAF
Chief Court Administrator, AFCMR

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1148%3A1. Public record. Not legal advice.