                       UNITED STATES, Appellee

                                    v.

                  Stacey S. BROOKS, Staff Sergeant
                      U.S. Air Force, Appellant

                              No. 06-0060

                         Crim. App. No. 35420

       United States Court of Appeals for the Armed Forces

                       Argued November 15, 2006

                       Decided January 30, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined.


STUCKY and RYAN, JJ., did not participate.


                                 Counsel

For Appellant: Captain Vicki A. Belleau (argued); Lieutenant
Colonel Mark R. Strickland and Major Sandra K. Whittington (on
brief).

For Appellee: Major Kimani R. Eason (argued); Colonel Gerald R.
Bruce, Lieutenant Colonel Robert V. Combs, Lieutenant Colonel
Gary F. Spencer, and Major Nurit Anderson (on brief).

Military Judge:   David F. Brash


       This opinion is subject to revision before final publication.
United States v. Brooks, No. 06-0060/AF

       Judge ERDMANN delivered the opinion of the court.

       Staff Sergeant Stacey S. Brooks was convicted at a general

court-martial of two specifications of indecent liberties with a

female under the age of sixteen, in violation of Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).

He was sentenced to a dishonorable discharge, eighteen months

confinement, forfeiture of all pay and allowances, and reduction

to the grade of E-1.    The convening authority reduced the

confinement to fourteen months and approved the balance of the

sentence.    The United States Air Force Court of Criminal Appeals

affirmed the findings and sentence as approved by the convening

authority.    United States v. Brooks, No. ACM 35420, 2005 CCA

LEXIS 277, 2005 WL 2129856 (A.F. Ct. Crim. App. 2005).      We

granted review of five issues and specified another for review.1


1
    On August 10, 2006, we granted review of the following issues:

             I.   WHETHER THE MILITARY JUDGE ERRED TO THE
                  SUBSTANTIAL PREJUDICE OF APPELLANT WHEN
                  HE ALLOWED THE ADMISSION OF REPEATED
                  INSTANCES OF HUMAN LIE DETECTOR
                  TESTIMONY AND THEN FAILED TO PROVIDE
                  PROMPT, CURATIVE INSTRUCTIONS TO THE
                  MEMBERS.
             II. WHETHER THE MILITARY JUDGE ERRED TO THE
                  SUBSTANTIAL PREJUDICE OF APPELLANT WHEN
                  HE ALLOWED DR. [A] TO GIVE IMPROPER
                  PROFILE EVIDENCE THAT CHILDREN RARELY
                  MAKE FALSE CLAIMS OF SEXUAL ABUSE.
             III. WHETHER THE MILITARY JUDGE ERRED TO THE
                  SUBSTANTIAL PREJUDICE OF APPELLANT WHEN
                  HE DID NOT INSTRUCT THE COURT MEMBERS
                  TO DISREGARD ARGUMENT THAT TRIAL
                  COUNSEL WAS CONVINCED BEYOND A

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United States v. Brooks, No. 06-0060/AF

     An expert may testify about matters within his or her area

of expertise where “scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue.”    Military Rule of

Evidence (M.R.E.) 702.   But “an expert may not testify regarding

the credibility or believability of a victim, or ‘opine as to

the guilt or innocence of an accused.’”    United States v. Cacy,

43 M.J. 214, 217 (C.A.A.F. 1995) (quoting United States v.

Suarez, 35 M.J. 374, 376 (C.M.A. 1992)); see United States v.

Foster, 64 M.J. ___ (7) (C.A.A.F. 2007).     Brooks claims that the

Government’s expert on child sexual abuse, Dr. Marvin W. Acklin



                REASONABLE DOUBT THAT THE CHILD VICTIM
                WAS TELLING THE TRUTH.
          IV.   WHETHER THE CHARGES AND SPECIFICATIONS
                MUST BE DISMISSED BECAUSE THE STAFF
                JUDGE ADVOCATE EXCLUDED “ALL OFFICERS
                WHO WOULD LIKELY BE CHALLENGED IF
                SELECTED AS MEMBERS” FROM THE POOL OF
                POTENTIAL COURT MEMBERS, AND THE
                CONVENING AUTHORITY, IN TURN, EXCLUDED
                THEM FROM THE COURT-MARTIAL SELECTION
                PROCESS.
          V.    WHETHER THE SERIES OF ERRORS
                CUMULATIVELY AND MATERIALLY PREJUDICED
                APPELLANT’S SUBSTANTIAL RIGHT TO A FAIR
                AND IMPARTIAL TRIAL THEREBY
                NECESSITATING REVERSAL OF HIS
                CONVICTIONS.

We also specified the following issue for review:

          VI.   WHETHER THE CONVENING AUTHORITY
                ERRONEOUSLY APPLIED ARTICLE 58b(b),
                UCMJ.

64 M.J. 76-77 (C.A.A.F. 2006).

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United States v. Brooks, No. 06-0060/AF

Jr., provided inadmissible “profile” evidence when he testified

about the percentage of false claims of sexual abuse made by

children.   Although Brooks failed to object to the testimony

about which he now complains, we conclude that the military

judge plainly erred by allowing testimony that was the

functional equivalent of vouching for the credibility or

truthfulness of the victim.    Finding plain error, we reverse.

In light of our disposition of this issue, we need not address

the remaining issues.

                              Background

     The charges against Brooks arose from his alleged improper

sexual activities with a five-year-old child who Brooks and his

wife would occasionally baby-sit.     As part of its case-in-chief,

the prosecution presented the testimony of Dr. Acklin, who was

recognized as an expert in the field of clinical psychology.

Dr. Acklin testified generally about the cognitive skills of

children and the ability of a child to distinguish between what

is true and what is not true.    Included in this testimony was

the subject of suggestibility, which Dr. Acklin defined as “the

influence that a person would exercise on the accuracy of a

child’s recall.”

     With respect to the victim in this case, Dr. Acklin

performed a mental evaluation and concluded that she was a

normal little girl who could distinguish between the truth and



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United States v. Brooks, No. 06-0060/AF

lies.     During cross-examination, Dr. Acklin stated that he did

not re-interview the victim about the events supporting the

charges because, in part, he was concerned about suggestibility.

Defense counsel inquired into the ability of a child to create

stories or fabricate, as well as further inquiring into how

repeated interviews could result in information or belief

becoming fixed in the mind of the child.

        On re-direct examination trial counsel asked questions

about the motivations a child may have to lie.     Defense counsel

objected, challenging Dr. Acklin’s expertise to state an opinion

in that area.     The objection was overruled and Dr. Acklin then

testified about false sexual abuse allegations arising from

misinterpretation by the listener and the significant degree of

sophistication that would be required for a child to wholly

fabricate a sexual abuse allegation.     The testimony continued:

        [TC]: In your experience, in your professional
        medical experience, how frequency, how frequently,
        excuse me, do you see cases of false allegations?

        [Dr. Acklin]: I believe I testified at the Article 32
        Hearing that it’s about a five percent level. That’s
        considered to be about, interestingly enough, the
        level of false allegations one encounters in the
        business and in research. It ranges anywhere from
        five to twenty percent, depending on the sample that
        you look at, but it’s generally considered to be,
        what’s called a low base-rate phenomenon, which is. . .
        not that infrequent.

             Once you take away misinterpretation, then it
        even drops even further, because then we’re talking
        about the pure fabricated sex abuse allegation. And,
        the general sense of that in the divorce business,


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United States v. Brooks, No. 06-0060/AF

     where they tend to occur at the greatest frequency, is
     it’s two to five percent.

There was neither an objection nor cautionary instruction given

with respect to this testimony.

     In addition to standard instructions on determining

credibility and expert witnesses, the military judge instructed:

     Only you, the members of the court determine the
     credibility of the witnesses and what the fact[s] of
     this case are. No expert witness or other witness can
     testify that the alleged victim’s account of what
     occurred is true or credible, that the expert believes
     the alleged victim, or that a sexual encounter
     occurred. To the extent that you believed that Dr.
     Acklin testified or implied that he believes the
     alleged victim, that a crime occurred, or that the
     alleged victim is credible, you may not consider this
     as evidence that a crime occurred or that the alleged
     victim is credible.

                           Discussion

     Brooks asserts that expert testimony concerning the

percentage of children who make false claims of sexual abuse was

improper because it was “profile” evidence and because it

suggested the victim was credible.    The Government responds that

there was no improper “profile” evidence.   Rather, the

statistical evidence about children lying about incidents of

sexual abuse was permissible in response to claims that the

victim had fabricated the allegations of abuse by Brooks.

Alternatively, the Government asserts that any error in

admitting this evidence did not substantially affect the outcome

of the case.



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United States v. Brooks, No. 06-0060/AF

     Where relevant, M.R.E. 608 permits a witness with an

adequate foundation to render an opinion or reveal the

reputation of another witness for truthfulness.   But this court

has been resolute in rejecting the admissibility of so-called

human lie detector testimony,2 which we have described as:   “an

opinion as to whether the person was truthful in making a

specific statement regarding a fact at issue in the case.”

United States v. Kasper, 58 M.J. 314, 315 (C.A.A.F. 2003).

Neither a lay nor an expert witness has the foundation or

expertise to opine that an individual is or is not telling the

truth.   Id.; United States v. Birdsall, 47 M.J. 404, 410

(C.A.A.F. 1998); see also Foster, 64 M.J. at ___ (7).3


2
  See, e.g., United States v. Kasper, 58 M.J. 314, 315 (C.A.A.F.
2003) (“[A]n expert on the subject of child abuse is not
permitted to testify that the alleged victim is or is not
telling the truth as to whether the abuse occurred.”); United
States v. Birdsall, 47 M.J. 404, 410 (C.A.A.F. 1998) (“[T]he
expert in child abuse may not act as a human lie detector for
the court-martial.”); United States v. Cacy, 43 M.J. 214, 218
(C.A.A.F. 1995) (“We do not allow an expert to opine that a
victim is telling the truth . . . .”); United States v.
Harrison, 31 M.J. 330, 332 (C.M.A. 1990) (“It is impermissible
for an expert to testify about his or her belief that a child is
telling the truth regarding an alleged incident of sexual
abuse.”); United States v. Arruza, 26 M.J. 234, 237 (C.M.A.
1988) (“[C]hild-abuse experts are not permitted to opine as to
the credibility or believability of victims or other
witnesses.”); see also United States v. Petersen, 24 M.J. 283,
284 (C.M.A. 1987) (“We are skeptical about whether any witness
could be qualified to opine as to the credibility of another.”).
3
  We have identified three reasons supporting the prohibition
against experts testifying as human lie detectors. “First,
determination of truthfulness ‘exceeds the scope of a witness’
expertise, for the expert lacks specialized knowledge . . . to

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United States v. Brooks, No. 06-0060/AF

       In United States v. Harrison, 31 M.J. 330, 332 (C.M.A.

1990), we articulated the permissible limits of expert testimony

in child sexual abuse cases such as the case before us now:

       An expert may testify as to what symptoms are found
       among children who have suffered sexual abuse and
       whether the child-witness has exhibited these
       symptoms. He or she may also “discuss ‘various
       patterns of consistency in the stories of child sexual
       abuse victims and compar[e] those patterns with
       patterns in . . . [the victim’s] story.’” However, to
       put “an impressively qualified expert’s stamp of
       truthfulness on a witness’ story goes too far.” An
       expert should not be allowed to “‘go so far as to
       usurp the exclusive function of the jury to weigh the
       evidence and determine credibility.’” (citations
       omitted).

       We review a military judge’s decision to admit expert

testimony under an abuse of discretion standard.   United States

v. Shelton, 64 M.J. 32, 37 (C.A.A.F. 2006); United States v.

Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006); Kasper, 58 M.J. at

318.   However, Brooks did not object to the testimony about

which he now complains.   Where an appellant has not preserved an

objection to evidence by making a timely objection, that error



determine if a child-sexual-abuse victim [is] telling the
truth’” and therefore cannot “assist the trier of fact” as
required under Military Rule of Evidence (M.R.E.) 702 before
expert testimony is permissible. Kasper, 58 M.J. at 315
(quoting Birdsall, 47 M.J. at 410). Second, such testimony
violates the limitations of M.R.E. 608. Id.; Arruza, 26 M.J. at
237 (citing Petersen, 24 M.J. at 284). Third, human lie
detector testimony encroaches into the exclusive province of the
court members to determine the credibility of witnesses.
Kasper, 58 M.J. at 315; United States v. Robbins, 52 M.J. 455,
458 (C.A.A.F. 2000) (citing Birdsall, 47 M.J. at 410); Cacy, 43
M.J. at 218.



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United States v. Brooks, No. 06-0060/AF

will be forfeited in the absence of plain error.   M.R.E. 103(d).

To demonstrate that relief is warranted under the plain error

doctrine, an appellant must show that:    (1) there was error; (2)

the error was plain or obvious; and (3) the error was materially

prejudicial to his substantial rights.    United States v.

Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005); United States v.

Washington, 63 M.J. 418, 424 (C.A.A.F. 2006); United States v.

Powell, 49 M.J. 460, 463 (C.A.A.F. 1998).    Our standard of

review for determining whether there is plain error is de novo.

United States v. Gudmundson, 57 M.J. 493, 495 (C.A.A.F. 2002)

(citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).

     We disagree with Brooks’ characterization of Dr. Acklin’s

testimony that quantified the percentage of child sexual abuse

victims who lied as “profile” evidence.   In United States v.

Bresnahan, 62 M.J. 137 (C.A.A.F. 2005), we stated:

     Profile evidence is defined as “evidence that presents
     a ‘characteristic profile’ of an offender, such as a
     pedophile or child abuser, and then places the
     accused’s personal characteristics within that profile
     as proof of guilt.” Generally, the use of any
     “profile” characteristic as evidence of guilt or
     innocence is improper at a criminal trial.

Id. at 146 (footnotes omitted).   As we have noted in our cases

dealing with alleged profiling evidence, the focus is upon using

a profile as evidence of the accused’s guilt or innocence, and

not upon using a characteristic profile to support or attack a

witness’s or victim’s credibility or truthfulness.   See id.;



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United States v. Brooks, No. 06-0060/AF

United States v. Hays, 62 M.J. 158, 166 (C.A.A.F. 2005); United

States v. Traum, 60 M.J. 226, 234-35 (C.A.A.F. 2004); United

States v. Huberty, 53 M.J. 369, 373 (C.A.A.F. 2000); United

States v. Banks, 36 M.J. 150, 161 (C.M.A. 1992).    That is not to

say, however, that this credibility quantification testimony is

or should be admissible.    To the contrary, such evidence

implicates the very concerns underlying the prohibition against

human lie detector testimony.

     We conclude that this testimony invaded the province of the

court members to determine the credibility of the victim and

violated the limitations of M.R.E. 608 on admissible testimony

relating to truthfulness.    In Powell v. State, 527 A.2d 276

(Del. 1987), the Delaware Supreme Court addressed an expert’s

statement that “ninety-nine percent of the alleged victims

involved in sexual abuse treatment programs in which she was

also involved ‘have told the truth.’”     Id. at 278.   Even though

the defense elicited this statement during voir dire of the

expert, the Delaware court deemed the admission of this

statement “plain error.”    Id. at 279.

     The court found that this “percentage” testimony exceeded

the permissible bounds of expert testimony permitted in child

sexual abuse prosecutions.   Id.    While the expert “‘can inform

the jury of characteristics in sexually abused children and

describe the characteristics the alleged victim exhibits,’”



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United States v. Brooks, No. 06-0060/AF

Birdsall, 47 M.J. at 409 (quoting United States v. Whitted, 11

F.3d 782, 785 (8th Cir. 1993)), the expert should not be

permitted to give testimony that is the functional equivalent of

saying that the victim in a given case is truthful or should be

believed.

     Dr. Acklin testified that false allegations generally occur

in these types of cases about five percent of the time.

However, when “misinterpretation” was taken away, Dr. Acklin

stated that figure drops even further.    Based on divorce cases

where false accusations were the most frequent, Dr. Acklin said

that the rate was two to five percent.    In this case, which does

not involve divorce, Dr. Acklin’s statement suggested that there

was better than a ninety-eight percent probability that the

victim was telling the truth.   This testimony provided a

mathematical statement approaching certainty about the

reliability of the victim’s testimony.    This testimony goes

directly to the core issue of the victim’s credibility and

truthfulness.   We conclude that admitting this testimony was

error, and that the error was plain and obvious.   See Kasper, 58

M.J. at 319; Powell, 527 A.2d at 280.

     Having concluded that there was error and that the error

was plain or obvious, we must next determine whether Brooks has

sustained his burden of demonstrating that the error materially

prejudiced his substantial rights.   Brooks argues that Dr.



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United States v. Brooks, No. 06-0060/AF

Acklin’s quantification of the victim’s credibility was not

outweighed by a cautionary instruction that was given in

response to a defense objection to previous credibility

testimony by Dr. Acklin.   In addition, Brooks claims that the

prejudice in this case had become fixed before the military

judge gave his closing instruction on determining credibility.

The Government argues that any error had no affect on the

outcome of this case.   The Government urges that the earlier

cautionary instruction and the military judge’s closing

instruction on credibility were sufficient to cause the members

to disregard any expert testimony that the victim was truthful.

     We are mindful of the instruction to disregard one of Dr.

Acklin’s previous comments and the instruction on credibility

given by the military judge.   Nonetheless, several factors weigh

against concluding that the members were unaffected by Dr.

Acklin’s quantification of the victim’s probable truthfulness.

This case hinged on the victim’s credibility and medical

testimony.   There were no other direct witnesses, no confession,

and no physical evidence to corroborate the victim’s sometimes

inconsistent testimony.    Any impermissible evidence reflecting

that the victim was truthful may have had particular impact upon

the pivotal credibility issue and ultimately the question of

guilt.   The testimony “impart[ed] an undeserved scientific stamp

of approval on the credibility of the victim[] in this case.”



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United States v. Brooks, No. 06-0060/AF

Birdsall, 47 M.J. at 410; see also Arruza, 26 M.J. at 237

(noting that to permit an expert to opine as to the truthfulness

of the victim “‘puts an impressively qualified expert’s stamp of

truthfulness on a witness’ story’” (quoting United States v.

Azure, 801 F.2d 336, 340 (8th Cir. 1986))).

     In addition, because this credibility quantification

testimony invaded the province of the members, we cannot say

with any confidence that the members were not impermissibly

swayed and thus that they properly performed their duty to weigh

admissible evidence and assess credibility.    Concerning similar

human lie detector testimony, we have noted that “the military

judge must issue prompt cautionary instructions to ensure that

the members do not make improper use of such testimony.”

Kasper, 58 M.J. at 315.     The effect of the improper credibility

quantification testimony causes us to harbor substantial doubt

about the fairness of the proceeding.

     Brooks had the “substantial right . . . to have the members

decide the ultimate issue . . . without the members viewing [the

victim’s] credibility through the filter of” an expert’s view of

the victim’s credibility.    Id. at 319 (relating to human lie

detector testimony).   In this case, admitting the expert

testimony quantifying the victim’s credibility was plain error.




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United States v. Brooks, No. 06-0060/AF

                             Decision

     The decision of the United States Air Force Court of

Criminal Appeals is reversed.   The findings and sentence are set

aside.   The record is returned to the Judge Advocate General of

the Air Force.   A rehearing may be ordered.




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