                       UNITED STATES, Appellee

                                    v.

                    Thomas C. FLESHER, Specialist
                         U.S. Army, Appellant

                              No. 13-0602

                       Crim. App. No. 20110449

       United States Court of Appeals for the Armed Forces

                       Argued February 24, 2014

                         Decided July 8, 2014

OHLSON, J., delivered the opinion of the Court, in which ERDMANN
and STUCKY, JJ., joined. BAKER, C.J., and RYAN, J., each filed
separate dissenting opinions.

                                 Counsel

For Appellant: Captain Robert N. Michaels (argued); Lieutenant
Colonel Jonathan F. Potter and Major Amy E. Nieman (on brief);
Captain J. Fred Ingram.

For Appellee: Captain Daniel H. Karna (argued); Colonel John P.
Carrell, Lieutenant Colonel James L. Varley, and Major Robert A.
Rodrigues (on brief).

Military Judge:   Gregory A. Gross


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Flesher, No. 13-0602/AR


     Judge OHLSON delivered the opinion of the Court.

     We granted review in this case to determine whether the

military judge abused his discretion when he allowed a putative

expert witness to testify at trial.    Under the unusual set of

circumstances present in this case, we conclude that the

military judge did abuse his discretion by admitting this

testimony, and that this error likely had a substantial

influence on the panel members’ findings.

     In the summer of 2010, Appellant was a specialist in the

U.S. Army and lived in on-base housing at Dugway Proving Ground

in Utah.    A family with two teenage children -- a sixteen-year-

old girl (S.A.) and her younger brother -- lived across the

street.    The Government alleged at trial that on June 29, 2010,

Appellant invited these two teenagers to his home and plied them

with alcohol.   They became intoxicated and eventually returned

to their own home and went to bed.    After midnight, Appellant

went to the teenagers’ house and crawled in the bedroom window

of the sleeping S.A. without her knowledge or permission.    She

awoke to find Appellant removing her pants.    Appellant then

pressed his body against S.A., covered her mouth with his own,

and held down her wrists as he proceeded to engage in

nonconsensual sexual intercourse with her.    S.A. later stated

that although she struggled with Appellant she did not fight

back more fiercely or call out for help because she was drunk,

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United States v. Flesher, No. 13-0602/AR


confused, scared, and embarrassed.   Appellant ultimately left

the home without anyone other than S.A. knowing of his presence.

S.A. telephoned a friend about thirty minutes after the

incident, however, and the next morning this friend and the

friend’s mother notified local law enforcement.

     In contrast to the Government’s version of events,

Appellant testified that S.A. had invited him to come to her

bedroom on the night in question and that the sex was

consensual.   In seeking to corroborate the consensual nature of

the encounter, defense counsel established through the combined

testimony of several witnesses that S.A.’s brother was sleeping

in an adjoining room -- with the door between these two rooms

ajar -- and yet S.A. did not alert her brother to Appellant’s

presence.   During closing arguments, defense counsel also

pointed out that even after Appellant had left the premises,

S.A. did not immediately notify her parents or the police about

the alleged sexual assault.   Appellant also testified that S.A.

had a motive for falsely accusing him of sexual assault, noting

that he had told her of his disapproval of her drug use, and she

may have been afraid that he would report this illegal activity

to her parents.

     At his court-martial, Appellant was charged with aggravated

sexual assault, burglary, and two specifications of furnishing

alcohol to a minor, in violation of Articles 120, 129, and 134,

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United States v. Flesher, No. 13-0602/AR


Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 929,

934 (2006).   Appellant pleaded guilty to the latter two

specifications involving the alcohol, but not guilty to the

other two charges.   A general court-martial with enlisted

members eventually found Appellant not guilty of the burglary

charge but guilty of the sexual assault charge.    The panel

sentenced Appellant to confinement for seven years, forfeiture

of all pay and allowances, reduction to the grade of E-1, and a

dishonorable discharge.   The convening authority approved the

sentence as adjudged.   Upon review, the United States Army Court

of Criminal Appeals (CCA) affirmed the findings of guilty and

the sentence.   United States v. Flesher, No. ARMY 20110449, slip

op. at 1 (A. Ct. Crim. App. May 30, 2013).

     In the course of the trial, the military judge permitted

the Government to call a Sexual Assault Response Coordinator

(SARC) as an expert witness.   The Government represented to the

military judge that the purpose for calling the SARC was to

elicit testimony that, based on her work with thousands of

sexual assault victims, it is common for sexual assault victims

not to fight back against their attacker, not to scream or call

for help, and not to first report the sexual assault to the

police rather than to a friend or family member.    However, the

military judge did not handle in a textbook manner the issues of

whether the SARC was truly an expert, the subject and scope of

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United States v. Flesher, No. 13-0602/AR


her testimony, whether her testimony in this case was relevant

and reliable, and whether its probative value outweighed its

potential prejudicial effect.   Further, when the SARC’s

testimony blatantly exceeded the scope of that which had been

approved by the military judge, the trial counsel took no action

to rein her in and the military judge provided no curative

instruction to the panel.

     It is the testimony of this putative expert that is the

crux of the matter before us.   Specifically, on Appellant’s

petition we granted review of the following issue:

     Whether the military judge abused his discretion
     when he admitted the testimony of a putative
     expert witness in violation of the Military Rules
     of Evidence and case law on bolstering, expert
     qualifications, relevance, and the appropriate
     content and scope of expert testimony.

     As explained in greater detail below, we find that the

military judge did abuse his discretion in handling this matter,

and that this error was prejudicial to Appellant.    Accordingly,

we affirm in part and reverse in part.

                            BACKGROUND

     On May 19, 2011, two weeks prior to the beginning of

Appellant’s court-martial, the Government provided defense

counsel with a witness list.    This list included Ms. Sarah Falk,

a former SARC at Fort Carson, Colorado.    However, the Government

did not identify Ms. Falk other than to note her current place


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United States v. Flesher, No. 13-0602/AR


of employment.   Defense counsel contacted Ms. Falk and

interviewed her.   Defense counsel then contacted trial counsel

to ask if he intended to call Ms. Falk as an expert witness.

Based on these conversations, defense counsel moved for a

continuance, noting the recent notification of the Government’s

intent to call an expert witness and arguing that the defense

needed more time to prepare for Ms. Falk’s expected testimony.

The Government opposed the defense’s motion via e-mail to the

military judge, stating that Ms. Falk would not interview the

victim or testify about the “psychology of trauma,” but instead

would testify about the “common behaviors and responses” of

sexual assault victims.   The defense filed a reply brief the

next day.   In this reply, the defense specifically asked for a

hearing pursuant to Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579 (1993), because Ms. Falk’s testimony appeared to “lack

any scientific methodology.” 1




1
  In Daubert, the United States Supreme Court held that a trial
judge has a special obligation to “ensure that any and all
scientific testimony . . . is not only relevant, but reliable.”
509 U.S. at 589. This “gatekeeping” requirement, as it is
called, is intended to “make certain that an expert, whether
basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert
in the relevant field.” Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 152 (1999).
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United States v. Flesher, No. 13-0602/AR


      Two days later the military judge sent an e-mail to counsel

on both sides.   In the e-mail the military judge addressed the

defense’s request for a continuance:

      Re: the Defense motion for a continuance -- As I
      understand the issue, Ms. Falk is going to testify
      she has seen lots of alleged sexual assault victims.
      Some act this way, some act that way, and the way
      some alleged victims act might not be consistent
      with how one would think they would act. Is this
      correct, Gov’t? If so, Defense, I would guess that
      Ms. Falk will agree on cross that there is no usual
      way alleged victims react. Each alleged victim is
      different. I would also think you could get any
      [Sexual Assault Nurse Examiner] (for example)
      between now and next week to come in and testify to
      that. It doesn’t take any preparation. If I am
      correct in all of this, why do you need a delay?

This e-mail from the military judge did not address the question

of the admissibility of Ms. Falk’s testimony; it merely assumed

it.   The military judge also failed to explicitly rule one way

or another on the Motion for Continuance.

      Defense counsel responded via e-mail and reiterated the

defense’s contention that Ms. Falk’s testimony was “not proper

expert testimony.”   Defense counsel again requested “a Daubert

hearing regarding [Ms. Falk’s] methodology before she be allowed

to testify as an expert on the behaviors of the alleged rape

victims.”   He also requested discovery from Ms. Falk.

      The next day the military judge sent another e-mail.   In

response to the defense’s request for a hearing and discovery he

wrote:


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United States v. Flesher, No. 13-0602/AR


     Regarding Ms. Falk: Defense, you can interview her
     for that information. I will consider any motions
     or arguments you present, but it is unlikely we will
     have a Daubert hearing. The Gov’t confirmed my
     understanding of her testimony. She is simply going
     to say she has seen the different way alleged
     victims react.

     In response to the military judge’s e-mail, on May 28,

defense counsel filed a Motion to Compel Expert or to Exclude

Expert Testimony.   In this motion the defense argued that Ms.

Falk’s testimony should be excluded pursuant to Military Rules

of Evidence (M.R.E.) 402 and 403 because it was not relevant and

presented a substantial risk of unfair prejudice that outweighed

its probative value.   In the alternative, if Ms. Falk’s

testimony was allowed, the defense asked the court to appoint

Dr. Thomas Grieger, a putative expert in counterintuitive

behaviors, as an expert for the defense.   There is no indication

in the record that the military judge took any formal action on

the defense’s motion to compel Dr. Grieger or exclude Ms. Falk

until the morning of trial.

     The case proceeded to trial on the original trial date of

June 1.   The military judge began the court-martial with an

Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012), session.    During

this session, the military judge put on the record a summary of

the e-mails that had been exchanged between the parties as well

as the in-chambers conference that had been held that morning

pursuant to M.R.E. 802.   The military judge explained that he

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United States v. Flesher, No. 13-0602/AR


did not grant the defense’s motion for a continuance because he

believed that Ms. Falk’s testimony would be very limited:

     [M]y understanding was that they were going to ask
     several things. “Have you observed alleged
     victims? How many in the past?” And, “Some act
     this way; some act that way.” And, “No two victims
     are the same.” When I sent back the email saying,
     “Is that correct, Counsel?” they confirmed that is
     correct. And what I indicated to the defense at
     that time was, based on that, I was not inclined to
     grant a continuance . . . .

     The military judge further explained that the defense’s

motion to compel the production of Dr. Grieger was without merit

because the Government had provided, in lieu of Dr. Grieger, a

Sexual Assault Nurse Examiner (SANE) who could provide the same

testimony. 2   When the military judge finished summarizing the

past proceedings, both counsel stated that they had no

objections to this summary.

     At this point, defense counsel requested “the chance to

voir dire the expert witness from the [G]overnment before she is

brought in front of the panel.”    This request set off another

round of discussions about whether or not the defense’s

requested expert, Dr. Grieger, was necessary in light of the


2
  A SANE is a nurse who has been trained to provide care to
victims of sexual assault. A SANE performs a medical
examination following the report of an assault, and identifies
and documents injuries. A SANE also collects and preserves
physical evidence that may be necessary for any judicial
proceedings. See The Free Dictionary, http://medical-
dictionary.thefreedictionary.com/sexual+assault+nurse+examiner
(last visited June 26, 2014).
                                  9
United States v. Flesher, No. 13-0602/AR


limited nature of Ms. Falk’s expected testimony.    The defense

argued that regardless of the terminology used, Ms. Falk would

be providing testimony on the counterintuitive behaviors of

sexual assault victims.    The defense’s position was that such

testimony is complex, scientific testimony that requires

specialized expertise not possessed by the assigned SANE.    The

Government responded that Ms. Falk would not be providing

specialized scientific testimony about the operation of a

victim’s brain, but rather would testify based on her

professional experience as a SARC as follows:    “I deal with

victims and this is what I see from the whatever many victims

I’ve viewed.”   The Government further asserted that its expert

witness would testify only “regarding scream, non-stranger, and

not reporting to law enforcement.”    The following colloquy then

ensued:

     MJ:   And my understanding, Government, you are not
           going to ask your expert about why say, for
           example, she didn’t scream? My understanding was
           you were just going to ask her: How many have
           you done? I have seen a hundred. Is it unusual
           for an alleged victim not to scream? No that is
           not unusual.

     ATC: Correct --

     MJ:   Not to say this is why they don’t scream.

     ATC: Exactly, Your Honor. Just to provide that basis,
          somebody who deals with --

     MJ:   Sure.   Okay.


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United States v. Flesher, No. 13-0602/AR


     DC:   Your honor, the defense would argue if that’s the
           extent of it, that it would also be irrelevant .
           . . . What we are interested in is what happened
           in this case.

     ATC: And, Your Honor, if in any[]way the defense case
          comes up and she didn’t scream for her mother or
          she didn’t call 911 immediately, you know,
          without that testimony we are kind of lost. Our
          case in chief is defici[en]t without that
          testimony coming in.

     MJ:   And, Defense, based on my experience all these
           experts will say some scream, some don’t, some
           delay reporting, some report immediately, and I
           would think that the government’s expert would
           admit all that on cross-examination. Say, yeah,
           some people scream, some don’t, some delay
           reporting, and some don’t.

           . . . .

           . . . But again, Government, your expert is not
           going to testify about this is why she wouldn’t
           have screamed, or this is why some victims don’t
           scream.

     ATC: No, Your Honor.

     MJ:   She is not going to say any of that.

     ATC: That is well beyond her expertise. I mean she
          could conjecture but it, obviously, wouldn’t be
          the same.

     MJ:   Right.

     After some additional discussion, the military judge ruled

on the motion to compel.    Relying upon what he had “seen in the

past” and the limits on Ms. Falk’s expected testimony, the

military judge concluded that the SANE assigned to the defense

could provide the same assistance as Dr. Grieger.   The defense’s


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United States v. Flesher, No. 13-0602/AR


motion for its own expert was, therefore, denied.    The questions

raised pretrial about the admissibility of Ms. Falk’s expert

testimony were not addressed at this point except with respect

to the military judge’s statements concerning the narrow

boundaries that he would impose on her testimony.    The military

judge made no explicit ruling on the motion to exclude Ms. Falk.

     At the close of the Article 39(a), UCMJ, session, trial

testimony began with S.A. and her brother.    Defense counsel

elicited testimony from both witnesses that S.A.’s brother had a

habit of sleeping on the couch outside her room and that on the

evening in question he was sleeping there with the door

partially open.   Next, the members were excused and another

Article 39(a), UCMJ, session was called during which the parties

conducted voir dire of Ms. Falk.     In response to questions from

defense counsel, Ms. Falk provided the court with the following

information:   she had a “sociology based” bachelor’s degree that

did not involve clinical counseling; she had not conducted any

clinical counseling for sexual assault victims, but instead had

“advocated for” what she estimated to be a “couple thousand”

such individuals; “[m]ore than a third” of these cases had

resulted in a court-martial or a civilian trial; “at least a

fourth” of those cases had ended in a conviction; she was

“confident” that “the majority” of the individuals who stated

that they had been sexually assaulted were “telling the truth”;

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United States v. Flesher, No. 13-0602/AR


and her role as a SARC was not to investigate allegations of

sexual assault but instead to “walk [victims] through the

process and ensure they know what their options and resources

are.”

     The military judge then urged trial counsel to “ask the

witness the three things I believe you said you were going to

have her testify about.”   Trial counsel reeled off the following

list:

     The questions I do intend to ask this witness [are]
     based on all the victims she has seen; how often
     does a victim scream or not scream; how often is the
     most she has seen; and how many fight back or don’t
     fight; how many involve a stranger versus a non-
     stranger, someone they met at some point in some
     way; and then how many she’s seen where the first
     report or the first outcry is to law enforcement as
     opposed to anyone else other than law enforcement.

However, the military judge did not require trial counsel to

actually pose any of these specific questions to Ms. Falk, and

she provided no answers to them during this Article 39(a), UCMJ,

session.   The military judge simply asked, “Any other questions

based on that?”   After a few additional background questions by

counsel for both parties, Ms. Falk was excused.

     Without hearing Ms. Falk’s expected testimony in her own

words or any arguments about the admissibility of Ms. Falk’s

testimony pursuant to the Military Rules of Evidence (M.R.E.) --




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United States v. Flesher, No. 13-0602/AR


or pursuant to the holdings in Daubert or Houser 3 -- and without

giving any explanation of his reasoning, the military judge then

made his ruling:

     Government, I am going to let you ask three things.
     The ones about whether or not that most victims put
     up a fight or not; scream or not; and who their
     first report is made to, law enforcement or not law
     enforcement. But I am not going to let you ask
     about whether or not most cases it is a stranger or
     not.

Defense counsel objected on the grounds of relevance.    The

military judge “noted” the objection, but did not sustain or

overrule the objection.

     When the members returned, the court heard testimony from

S.A.’s stepfather, and then Ms. Falk took the stand.    Trial

counsel reviewed her educational and professional experience,

which included a bachelor’s degree in law and society, her work

towards a graduate certificate in public policy, and both her

civilian and military training in “victim services.”    Ms. Falk

testified that she worked previously as the SARC at Fort Carson.


3
  In United States v. Houser, 36 M.J. 392 (C.M.A. 1993), we set
out six factors derived from the M.R.E. that must be established
for expert testimony to be admissible. The Houser factors are:
(1) the qualifications of the expert, (2) the subject matter of
the expert testimony, (3) the basis for the expert testimony,
(4) the legal relevance of the evidence, (5) the reliability of
the evidence, and (6) whether the probative value of the
testimony outweighs other considerations. Id. at 397. We view
Daubert, which was decided two months after Houser, as
“providing more detailed guidance on the fourth and fifth Houser
prongs pertaining to relevance and reliability.” United States
v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999).
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United States v. Flesher, No. 13-0602/AR


As Ms. Falk explained it, a SARC’s job is to “make contact with

the victim upon receipt of a report of sexual assault.    You walk

them through the medical, legal and investigative processes.”

Ms. Falk testified that she had personally worked with

“thousands” of victims of sexual assault.    The Government then

asked to have Ms. Falk recognized as an expert in “sexual

assault victim responses.”    The defense renewed its objection

“as previously stated” to Ms. Falk’s admission as an expert.

The military judge then said:

     MJ:    Ms. Falk will be recognized as an expert in
            sexual assault -- as a sexual assault response
            coordinator.

     ATC: Thank you, Your Honor.

     MJ:    Not in sexual assault victim responses or however
            you put it.

     The remainder of Ms. Falk’s testimony on direct examination

was very limited.    The expert testimony at the center of this

appeal consists primarily of three short questions and answers:

     Q:    . . . In your experience in dealing with victims,
           how often have you had a sexual assault victim who
           has fought back against their attacker?

     A:    Almost never. And it’s generally with an unknown
           subject, with somebody that that person isn’t
           familiar with; it’s a stranger.

     Q:    In your experience in dealing with victims, how
           often have you had a sexual assault victim who at
           the time of the assault screamed or called for
           help?


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United States v. Flesher, No. 13-0602/AR


     A:   Again, almost never. And, you know, they report
          afterwards that generally there is the fear of
          escalating the violence or fear that they are going
          to be harmed even worse than they already are if
          they yell or scream for help or upset the
          individual.

     Q:   Okay. In your experience, how often does a victim
          report first to law enforcement? The first person
          they call is law enforcement.

     A:   I can’t think of a specific case where they do
          report specifically to law enforcement. It’s just
          not something common. They generally are going to
          go to a friend or a family member.

                             DISCUSSION

     I.    Standard of Review

     We review de novo the question of whether the military

judge properly performed the required gatekeeping function of

M.R.E. 702.   Griffin, 50 M.J. at 284.    That is, we must

determine de novo whether the military judge “properly followed

the Daubert framework.”   Id.   However, we review for abuse of

discretion the decision by the military judge to permit Ms. Falk

to testify as an expert witness, the limitations he placed on

the scope of her permitted testimony, and his enforcement of

those limitations.    United States v. Billings, 61 M.J. 163, 166–

67 (C.A.A.F. 2005).

     A military judge abuses his discretion when his
     findings of fact are clearly erroneous, the court’s
     decision is influenced by an erroneous view of the
     law, or the military judge’s decision on the issue at


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United States v. Flesher, No. 13-0602/AR


         hand is outside the range of choices reasonably
         arising from the applicable facts and the law.

United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008).                   “An

‘abuse of discretion’ exists where ‘reasons or rulings of the’

military judge are ‘clearly untenable and . . . deprive a party

of   a    substantial   right   such    as   to   amount   to   a   denial    of

justice’; it ‘does not imply an improper motive, willful purpose

or intentional wrong.’”         United States v. Travers, 25 M.J. 61,

62 (C.M.A. 1987) (alteration in original) (quoting Guggenmos v.

Guggenmos, 359 N.W.2d 87, 90 (Neb. 1984)).

         II.   The Record of Trial

         We begin by noting that the military judge did not approach

his evidentiary rulings in a methodical manner.             Rule for

Courts-Martial (R.C.M.) 801(a)(4) says that the military judge

“shall . . . rule on all interlocutory questions and all

questions of law raised during the court-martial.”              R.C.M.

801(f) further states that “[a]ll sessions involving rulings

. . . made . . . by the military judge . . . shall be made a

part of the record.”       R.C.M. 905(d), which governs motions,

states that “[a] motion made before pleas are entered shall be

determined before pleas are entered unless . . . the military

judge for good cause orders that determination be deferred until

trial of the general issue or after findings.”             R.C.M. 905(d)

further states, “[w]here factual issues are involved in


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United States v. Flesher, No. 13-0602/AR


determining a motion, the military judge shall state the

essential findings on the record.”

     We have previously held that objections made at trial may

not be “evaded or ignored.”     United States v. DeYoung, 29 M.J.

78, 80 (C.M.A. 1989).     It is the duty of the military judge to

“affirmatively” rule.     Id.; see also United States v. Mullens,

29 M.J. 398, 399 (C.M.A. 1990) (“We again hold that the military

judge is required by Article 51(b) . . . and R.C.M. 801(a)(4)

. . . to rule on these objections.”).    Further, we have

previously explained why it is necessary for the military judge

to make a clear record.    “We do not expect record dissertations

but, rather, a clear signal that the military judge applied the

right law.   While not required, where the military judge places

on the record his analysis and application of the law to the

facts, deference is clearly warranted.”    United States v.

Downing, 56 M.J. 419, 422 (C.A.A.F. 2002); see also United

States v. Winckelmann, 73 M.J. 11, 16 (C.A.A.F. 2013) (“The

Court of Criminal Appeals did not detail its analysis in this

case; nor was it obligated to do so.     Going forward, however, a

reasoned analysis will be given greater deference than

otherwise.”).

     However, the reverse is also true.     If the military judge

fails to place his findings and analysis on the record, less



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United States v. Flesher, No. 13-0602/AR


deference will be accorded.   As the United States Army Court of

Criminal Appeals has recognized:

     When the standard of review is abuse of discretion,
     and we do not have the benefit of the military judge’s
     analysis of the facts before him, we cannot grant the
     great deference we generally accord to a trial judge’s
     factual findings because we have no factual findings
     to review. Nor do we have the benefit of the military
     judge’s legal reasoning in determining whether he
     abused his discretion . . . .

United States v. Benton, 54 M.J. 717, 725 (A. Ct. Crim. App.

2001) (citations omitted).

     The predecessor to the United States Air Force Court of

Criminal Appeals has similarly explained the difficulties faced

by an appellate court when the military judge fails to comply

with R.C.M. 905(d).   “Without a proper statement of essential

findings, it is very difficult for an appellate court to

determine the facts relied upon, whether the appropriate legal

standards were applied or misapplied, and whether the decision

amounts to an abuse of discretion or legal error.”   United

States v. Reinecke, 30 M.J. 1010, 1015 (A.F.C.M.R. 1990), rev’d

on other grounds by United States v. Strozier, 31 M.J. 283

(C.M.A. 1990); see also United States v. Doucet, 43 M.J. 656,

659 (N-M. Ct. Crim. App. 1995) (“When factual issues are

involved in ruling on a motion, a trial judge has a mandatory




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United States v. Flesher, No. 13-0602/AR


sua sponte duty to state the ‘essential findings’ on the record

which support his or her ruling.” (citations omitted)). 4

     Here, the military judge delayed ruling on the defense’s

request for a continuance and the defense’s motion to compel Dr.

Grieger until the morning of trial, denied the motion to compel

based on his experience in other cases rather than strictly on

the facts of this particular case, did not affirmatively address

the defense’s request for a Daubert hearing, did not address the

Houser factors, did not explicitly deny on the record the

defense’s motion to exclude the testimony of Ms. Falk, did not

provide any findings of fact, and did not apply the law to the

facts to support his decision to admit Ms. Falk’s expert

testimony.   Of these concerns, the most important is the fact

that the military judge did not conduct even a rudimentary

Daubert hearing -- despite the fact that the defense

specifically and repeatedly requested one -- or even briefly

address the various Houser factors.   As a result, we are left

with a limited understanding of the military judge’s decision-


4
  While this Court has not had occasion to discuss the importance
of a complete and detailed record in the context of a Daubert
analysis, this issue has arisen in the federal courts of
appeals. As the United States Court of Appeals for the Tenth
Circuit explained, “For purposes of appellate review, a natural
requirement of [the gatekeeping] function is the creation of ‘a
sufficiently developed record in order to allow a determination
of whether the district court properly applied the relevant
law.’” Goebel v. Denver & Rio Grande Western R.R. Co., 215 F.3d
1083, 1088 (10th Cir. 2000) (citations omitted).
                                20
United States v. Flesher, No. 13-0602/AR


making process and, accordingly, we give his decisions in this

case less deference than we otherwise would.

      To be clear, we do not hold that a military judge is always

required to conduct a formal Daubert hearing or to precisely

address each of the factors spelled out in Houser when deciding

whether and how a proffered expert should testify.   United

States v. Sanchez, 65 M.J. 145, 149 (C.A.A.F. 2007) (quoting

Daubert, 509 U.S. at 594).   “The inquiry is ‘a flexible one.’”

Id.   Further, in regard to our de novo review of the process in

the instant case, because the military judge did permit voir

dire and placed substantial limitation on the expert testimony,

we ultimately conclude that the military judge did perform an

adequate, if not exemplary, preliminary gatekeeping inquiry.

Nevertheless, we find that the analytical structure developed in

the Houser and Daubert cases is quite helpful -- both at the

trial and at the appellate level -- in determining the

appropriateness of admitting expert testimony.   Therefore, we

use that structure below in deciding the issue before us.

Moreover, we note that when a military judge does not hold a

Daubert hearing and does not address the Houser factors in some

manner, we will generally show less deference to that military

judge’s decisions.




                                21
United States v. Flesher, No. 13-0602/AR


     III. Analysis

     A.   Military Rule of Evidence 702

     As a threshold matter, when deciding whether Ms. Falk would

be allowed to testify, the military judge was obligated to

determine whether her testimony would be helpful to the panel.

M.R.E. 702 states that an expert witness may provide testimony

if it “will assist the trier of fact to understand the evidence

or determine a fact in issue.”   Thus, an expert may testify if

his or her testimony is “helpful.”    Billings, 61 M.J. at 166.

“A suggested ‘test’ for deciding ‘when experts may be used’ is

‘whether the untrained layman would be qualified to determine

intelligently and to the best possible degree the particular

issue without enlightenment from those having a specialized

understanding of the subject . . . .’”    United States v. Meeks,

35 M.J. 64, 68 (C.M.A. 1992) (alteration in original) (quoting

Fed. R. Evid. 702 advisory committee’s note).

     In the past we have made it clear that expert testimony

about the sometimes counterintuitive behaviors of sexual assault

or sexual abuse victims is allowed because it “assists jurors in

disabusing themselves of widely held misconceptions.”   Houser,

36 M.J. at 398; see also United States v. Halford, 50 M.J. 402,

404 (C.A.A.F. 1999) (rape trauma syndrome evidence allowed to

explain common behavioral characteristics in “cases of non-

consensual sexual encounters”); United States v. Peel, 29 M.J.

                                 22
United States v. Flesher, No. 13-0602/AR


235, 241 (C.M.A. 1989), cert. denied, 493 U.S. 1025 (1990)

(allowing expert to testify that “it was not inconsistent

behavior for a rape victim not to immediate[ly] report the

offense” or to “act[] as if the rape had never happened”);

United States v. Reynolds, 29 M.J. 105, 108 (C.M.A. 1989)

(allowing clinical psychologist to testify in order to “counter

any adverse inferences which might be drawn from the fact that

the victim did not immediately report the offense”); United

States v. Carter, 26 M.J. 428, 429 (C.M.A. 1988) (holding that

rape trauma syndrome evidence meets the requirements of M.R.E.

702); cf. United States v. Rynning, 47 M.J. 420, 422 (C.A.A.F.

1998) (recognizing that expert testimony explaining the

“behavioral characteristics or behavioral patterns of an alleged

sexual abuse victim,” is helpful “‘especially where that

behavior would seem to be counterintuitive’” (citation

omitted)).

     We again affirm the appropriateness of allowing expert

testimony on rape trauma syndrome where it helps the trier of

fact understand common behaviors of sexual assault victims that

might otherwise seem counterintuitive or consistent with

consent.   However, it is questionable whether Ms. Falk’s

testimony was truly helpful under the particular circumstances

present in the instant case.



                                23
United States v. Flesher, No. 13-0602/AR


     To begin with, Ms. Falk was not an expert in rape trauma

syndrome.    Indeed, trial counsel conceded that point, and the

military judge explicitly sought to limit Ms. Falk’s testimony

to such unexceptional observations as “some [people] scream,

some don’t, some delay reporting, and some don’t.”

Additionally, the military judge admitted that this limited set

of observations was “almost common knowledge.”    Further, S.A.

herself testified explicitly and clearly about why she reacted

the way she did both during and after the incident with

Appellant.    Each of these points thus diminishes the

“helpfulness” of Ms. Falk’s testimony.    However, we ultimately

conclude that the limited type of testimony that Ms. Falk was

supposed to provide, even when it is elicited from a person with

Ms. Falk’s qualifications, may be appropriate in certain

circumstances.    We thus proceed to the question of whether the

record before us makes it clear that this particular case

presented such circumstances.




                                 24
United States v. Flesher, No. 13-0602/AR


     B.   The Houser Factors 5

     1. Qualifications of the Expert

     The military judge placed little focus on the foundational

question of whether Ms. Falk truly was an “expert witness.”

There are several possible explanations for this inattention.

Perhaps the military judge thought he did not need to explore

this issue in depth because the M.R.E. are quite broad in

defining an expert as someone who is qualified based on that

individual’s “knowledge, skill, experience, training, or

education.”   M.R.E. 702.   The military judge also may have

believed that Ms. Falk’s qualifications were sufficiently

established because he intended to greatly circumscribe the

nature and breadth of Ms. Falk’s testimony.    Furthermore, the

military judge’s prior experience with sexual assault experts

may have led him to believe he understood the quality of Ms.

Falk’s credentials and the nature and scope of her pending

testimony.    However, we note that the admission of a putative

5
  The Houser factors were based in large part on M.R.E. 702 and
703. These rules were substantively amended in 2004 to conform
with the federal rules, which had been amended to reflect the
Supreme Court’s decisions in Daubert, 509 U.S. at 579, and Kumho
Tire, 526 U.S. at 137. See Manual for Courts-Martial, United
States, Analysis of the Military Rules of Evidence app. 22 at
A22-52 (2012 ed.) [hereinafter Drafters’ Analysis]. We have
said that Daubert provides “more detailed guidance on the fourth
and fifth Houser prongs pertaining to relevance and
reliability.” Griffin, 50 M.J. at 284; see also supra note 3.
In the absence of briefing on this issue from either party, we
leave for another day the question of how, if at all, the Houser
factors were affected by the 2004 amendments.
                                 25
United States v. Flesher, No. 13-0602/AR


expert’s testimony may be of utmost significance in any criminal

trial.     Daubert, 509 U.S. at 595 (“Expert evidence can be both

powerful and quite misleading.”) (citation and internal

quotation marks omitted).    Thus, a trial judge must first assure

himself or herself that a proffered expert is truly an expert.

See United States v. Cauley, 45 M.J. 353, 357 (C.A.A.F. 1996)

(holding that it was not error to refuse to allow a police

detective to testify on the common behaviors of rape victims);

Carter, 26 M.J. at 430 (holding that it was error to allow a

United States Army Criminal Investigation Command (CID) agent to

offer expert testimony on the common behaviors of rape victims).

     We further note that the record reflects significant

confusion between the military judge and the trial counsel about

the exact nature of Ms. Falk’s proffered expertise.    After the

Government asked to have Ms. Falk recognized as an expert in

“sexual assault victim responses” the following colloquy ensued:

     MJ:    Ms. Falk will be recognized as an expert in
            sexual assault -- as a sexual assault response
            coordinator.

     ATC: Thank you, Your Honor.

     MJ:    Not in sexual assault victim responses or however you
            put it.

This exchange raises several questions.    We first question how

an individual can be characterized as an expert based simply on

his or her job title.    We next question whether there was ever a


                                  26
United States v. Flesher, No. 13-0602/AR


“meeting of the minds” between the military judge and the trial

counsel about what Ms. Falk was an expert on, and thus we

ultimately question whether there was ever a careful

determination on the military judge’s part about the

qualifications of Ms. Falk to serve as an expert witness in this

particular case and under these particular circumstances.

Finally, we note that the qualitative differences between this

witness’s practical victim advocacy experience and the

qualifications of witnesses in other cases where we have

approved of testimony on counterintuitive behavior make it more

difficult for us to summarily accept, without more specific

factual findings and legal analysis of the issue on the record,

the implied conclusion of the military judge that this witness

was qualified to testify as she did. 6




6
  See, e.g., United States v. Pagel, 45 M.J. 64, 65 (C.A.A.F.
1996) (doctor/clinical child psychologist admitted as expert in
diagnosis and treatment of child sexual abuse); United States v.
Marrie, 43 M.J. 35, 41 (C.A.A.F. 1995) (doctor/licensed
psychologist admitted as expert to testify regarding “typical
patterns of disclosure by victims of sexual child abuse; the
potential for false allegations; the possibility of influence on
victims by outside coaching; and falsities that may occur when
there are custody disputes”); Houser, 36 M.J. at 393
(doctor/counseling psychologist/associate professor admitted as
expert to testify regarding rape trauma syndrome); United States
v. Suarez, 35 M.J. 374, 375-76 (C.M.A. 1992) (doctor/clinical
psychologist admitted as an expert on child sexual abuse);
United States v. Carter, 26 M.J. 428, 429 (C.M.A. 1988) (medical
doctor/division psychiatrist admitted as expert to testify
regarding rape trauma syndrome).
                                27
United States v. Flesher, No. 13-0602/AR


          2. Subject Matter of Expert Testimony

          As stated above, in appropriate circumstances a military

judge may allow an expert witness to testify regarding how

victims may or may not behave following a sexual assault.

Further, an appropriately qualified expert witness also may be

able to testify why a sexual assault victim may or may not react

in a particular manner.       But in the instant case, the trial

counsel conceded that Ms. Falk was not qualified to address the

issue of why sexual assault victims may or may not behave in a

certain way, and the military judge specifically ruled that Ms.

Falk could not testify on this point. 7     And yet, Ms. Falk clearly

did testify about why sexual assault victims may act in a

certain manner, 8 and the trial counsel did not rein her in and

the military judge did not issue a curative instruction.



7
    MJ:    But again, Government, your expert is not going to testify
           about this is why she wouldn’t have screamed, or this is
           why some victims don’t scream.

    ATC: No, Your Honor.

    MJ:    She is not going to say any of that.

    ATC: That is well beyond her expertise.
8
    Q: In your experience in dealing with victims, how often have
       you had a sexual assault victim who at the time of the
       assault screamed or called for help?

    A: Again, almost never. And, you know, they report afterwards
       that generally there is the fear of escalating the violence
       or fear that they are going to be harmed even worse than
                                    28
United States v. Flesher, No. 13-0602/AR


     We have previously held that an expert witness may not

offer opinions that “exceed[] the scope of the witness’s

expertise.”   United States v. Birdsall, 47 M.J. 404, 410

(C.A.A.F. 1998).    As one federal court explained, an expert

witness “must ‘stay within the reasonable confines of his [or

her] subject area.’”    Trilink Saw Chain v. Blount, Inc., 583 F.

Supp. 2d 1293, 1304 (N.D. Ga. 2008) (quoting Lappe v. Am. Honda

Motor. Co., 857 F. Supp. 222, 227 (N.D.N.Y. 1994)).    Other

federal courts have reached the same conclusion.    See, e.g.,

United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005)

(chemistry consultant not qualified as expert in controlled

substances); Wheeling Pittsburgh Steel Corp. v. Beelman River

Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001) (hydrologist

specializing in flood risk management not qualified to testify

as expert on safe warehousing practices); Redman v. John D.

Brush & Co., 111 F.3d 1174, 1179 (4th Cir. 1997) (metallurgic

engineer not qualified to testify as expert in design of safes).

In this case, under these circumstances, it was error to permit

Ms. Falk to testify as she did because her testimony went beyond

the scope of her expertise as it was agreed to by the parties in

advance of trial.




     they already are if they yell or scream for help or upset
     the individual.
                                 29
United States v. Flesher, No. 13-0602/AR


     3. Basis for Expert Testimony

     The third Houser factor addresses the facts and data that

an expert is allowed to rely on when forming his or her opinion.

Under M.R.E. 703, “an expert’s opinion may be based upon

personal knowledge, assumed facts, documents supplied by other

experts, or even listening to the testimony at trial.”    Houser,

36 M.J. at 399 (citing United States v. Johnson, 35 M.J. 17, 18

(C.M.A. 1992)).   There is no dispute that Ms. Falk’s testimony

was based on her personal experience as a SARC.    However, we

discuss below whether the reliability of Ms. Falk’s expert

opinions, which were based solely on Ms. Falk’s personal

experience with alleged victims, was properly considered by the

military judge.

     4. Relevance

     During an Article 39(a), UCMJ, session, trial counsel made

the somewhat startling argument to the military judge that Ms.

Falk’s testimony was relevant because absent Ms. Falk’s

testimony, “[o]ur case in chief is defici[en]t.”    However, the

military judge did not probe into why the Government’s case-in-

chief would be deficient and thus whether Ms. Falk’s testimony

was truly relevant.

     As noted supra, we previously have held that testimony on

the counterintuitive behaviors of rape victims is relevant.

However, in the instant case, the military judge steadfastly

                                30
United States v. Flesher, No. 13-0602/AR


refused to treat Ms. Falk’s testimony as testimony on

counterintuitive behaviors.    Instead, at each turn when the

military judge acquiesced to the Government’s request to have

Ms. Falk testify, he chipped away at the scope and the nature of

her testimony.   By so doing, he also chipped away at the

relevance of Ms. Falk’s testimony, and he did so without stating

on the record his reasoning.    This state of affairs complicates

our review of the matter.

     5. Reliability

     The Government, as the proponent of Ms. Falk’s expert

testimony, had the burden of demonstrating the reliability of

Ms. Falk’s testimony.   Billings, 61 M.J. at 166.   To show that

an expert’s opinion is “‘connected to existing data’” by more

than the “‘ipse dixit of the expert,’” the Government may rely

on the four Daubert reliability factors or on “alternative

indicia of reliability.”    Id. at 168 (quoting General Elec. Co.

v. Joiner, 522 U.S. 136, 146 (1997)). 9   And yet, there is little

information in the record to indicate that the Government




9
  The four reliability factors set out in Daubert are: (1)
whether a theory or technique can be or has been tested; (2)
whether the theory or technique has been subjected to peer
review and publication; (3) the known or potential rate of error
in using a particular scientific technique and the standards
controlling the technique’s operation; and (4) whether the
theory or technique has been generally accepted in the
particular scientific field. 509 U.S. at 593–94.
                                 31
United States v. Flesher, No. 13-0602/AR


squarely addressed these points specifically, or the issue of

Ms. Falk’s reliability more generally.

     The Government did proffer that Ms. Falk would base her

testimony on her personal interactions with individuals who were

sexually assaulted, and M.R.E. 702 permits an expert to be

qualified by reason of experience rather than skill, training,

or education.      In other words, “experience in a field may offer

another path to expert status.”     United States v. Frazier, 387

F.3d 1244, 1260–61 (11th Cir. 2004).     Even so, “the unremarkable

observation that an expert may be qualified by experience does

not mean that experience, standing alone, is sufficient

foundation rendering reliable any conceivable opinion the expert

may express.”      Id. at 1261 (emphasis added).   As the Advisory

Committee’s notes on Fed. R. Evid. 702 explain:

     If the witness is relying solely or primarily on
     experience, then the witness must explain how that
     experience leads to the conclusion reached, why that
     experience is a sufficient basis for the opinion and how
     that experience is reliably applied to the facts.

Fed. R. Evid. 702 advisory committee’s note (on 2000

amendments). 10    In other words, the military judge should have

stated on the record why he concluded that Ms. Falk’s testimony

was reliable. 11    And yet, the military judge did not do so.


10
   M.R.E. 702 was amended in 2004 to parallel a    2000 amendment to
Fed. R. Evid. 702. Drafters’ Analysis app. 22      at A22-52.
11
   We note that Ms. Falk’s opinion was based on    her interaction
with individuals who stated that they had been     sexually
                                   32
United States v. Flesher, No. 13-0602/AR


     6. Probative Value

     Finally, there is virtually no evidence in the record that

the military judge weighed the probative value of Ms. Falk’s

pending testimony against its potential prejudicial effect.

Indeed, the probative value of Ms. Falk’s testimony appears to

have been quite limited.   To begin with, it is an established

principle “that expert testimony cannot be used solely to

bolster the credibility of the government’s fact-witnesses by

mirroring their version of events.”   United States v. Cruz, 981

F.2d 659, 664 (2d Cir. 1992).   A military judge must distinguish

between an expert witness whose testimony about behaviors of

sexual assault victims that are subject to “widely held

misconceptions” will be helpful to the trier of fact, Houser, 36

M.J. at 398, and an expert witness whose testimony will simply

mirror the specific facts of the case and serve only to bolster

the credibility of a crucial fact witness.   See United States v.

Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991) (“If the testimony

is instead directed solely to ‘lay matters which a jury is

capable of understanding and deciding without the expert’s

help,’ the testimony is properly excludable.” (internal citation

omitted)); see also Cauley, 45 M.J. at 358 (recognizing that

“[e]xpert testimony on credibility is not admissible at courts-



assaulted, although Ms. Falk had no means of determining what
percentage of those individuals was being truthful.
                                33
United States v. Flesher, No. 13-0602/AR


martial”); United States v. King, 35 M.J. 337, 342 (C.M.A. 1992)

(“[W]e do not allow witness opinion regarding the truthfulness

of another person.”). 12

     In the instant case, S.A. gave a direct and credible

explanation for why she did not scream or struggle more or

immediately notify her parents of the sexual assault.   Thus, Ms.

Falk’s purported expert testimony was not helpful because the

panel members could understand what had happened based on S.A.’s

own explanation.   Therefore, once the military judge had placed

strict limitations on Ms. Falk’s testimony -- which thereby

rendered the observations of the expert witness “almost common

knowledge” -- its probative value had been severely eroded.

     On the other hand, the prejudicial effect of Ms. Falk’s

testimony was quite likely substantial in this case.    This was a

classic “he said–she said” case, with the two primary witnesses

giving diametrically opposed testimony on the critical issue of

whether the sexual intercourse was consensual.   “[I]n cases of


12
  Bolstering, as we have used the term here, “occurs before
impeachment, that is when the proponent seeks to enhance the
credibility of the witness before the witness is attacked.”
United States v. Toro, 37 M.J. 313, 315 (C.M.A. 1993). We do
not, in this case, need to address whether Ms. Falk’s testimony
would have been appropriate if the defense had specifically
attacked S.A.’s version of events as improbable victim behavior.
See, e.g., Cruz, 981 F.2d at 664 (“Nor do we hold that expert
testimony may not be used on some occasions to explain even non-
esoteric matters, when the defense seeks to discredit the
government’s version of events as improbable criminal
behavior.”).
                                34
United States v. Flesher, No. 13-0602/AR


this sort where there is often a ‘one-on-one’ situation,

anything bolstering the credibility of one party inherently

attacks the credibility of the other . . . .”      United States v.

August, 21 M.J. 363, 365 n.4 (C.M.A. 1986).   Therefore, the

danger of bolstering in this case was significant.     More

importantly, actual bolstering occurred in this case because

after S.A. already had clearly and directly testified to the

panel members why she did not struggle more with her assailant,

Ms. Falk provided additional testimony on the same point of why

victims do not struggle more with their attackers.     This

bolstering was of particular concern because even the Government

conceded that Ms. Falk did not have a legitimate basis to

testify on this point, and the military judge had explicitly

placed such testimony by Ms. Falk off-limits. 13

     Summary

     Thus, although limited testimony from a witness with

qualifications similar to those of Ms. Falk may be appropriate

in certain circumstance, we conclude that the military judge did

not place sufficient evidence on the record to demonstrate that


13
  We note that defense counsel did not make a specific objection
when Ms. Falk’s testimony exceeded the parameters issued by the
military judge. However, we also note that defense counsel had
made repeated blanket objections to Ms. Falk’s testimony right
from the outset of this court-martial. Further, we note that
the military judge was under a continuing obligation to ensure
that the testimony was limited to the parameters he had set out
previously. Wheeling Pittsburgh Steel Corp., 254 F.3d at 715.
                                35
United States v. Flesher, No. 13-0602/AR


he acted within the bounds of his discretion when he authorized

Ms. Falk to testify as an expert witness in the instant case.

Therefore, we find that he erred.     Finding error, we must test

for prejudice.

     C.   Prejudice

     Under Article 59(a), UCMJ, a “finding or sentence of a

court-martial may not be held incorrect on the ground of an

error of law unless the error materially prejudices the

substantial rights of the accused.”    10 U.S.C. § 859(a) (2012);

United States v. Yammine, 69 M.J. 70, 78 (C.A.A.F. 2010).       “The

test for nonconstitutional evidentiary error is whether the

error had a substantial influence on the findings.”    United

States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001) (citing

Kotteakos v. United States, 328 U.S. 750, 765 (1946); United

States v. Pollard, 38 M.J. 41, 52 (C.M.A. 1993)).     Importantly,

it is the Government that bears the burden of demonstrating that

the admission of erroneous evidence is harmless.    United States

v. Berry, 61 M.J. 91, 97–98 (C.A.A.F. 2005).

     To determine whether the Government has carried its burden,

we weigh four factors:   (1) the strength of the Government’s

case; (2) the strength of the defense’s case; (3) the

materiality of the evidence in question; and (4) the quality of

the evidence in question.   Id. at 98.



                                36
United States v. Flesher, No. 13-0602/AR


     Although these are four distinct factors, all of them

revolve around one single point:     namely, the central question

at trial was whether S.A. consented to the sexual intercourse or

whether Appellant forced himself on her or took advantage of her

drunken state.   The Government evidence on this issue consisted

of S.A.’s clear testimony that she was drunk, that she did not

invite Appellant to her room, that she did not consent to have

sex with him, and that she repeatedly told him “no.”    In

juxtaposition, the defense put Appellant on the stand where he

testified that the alleged assault was an invited, consensual

sexual encounter.   The result was a “he said–she said” case,

where the outcome largely depended on whether the panel found

S.A. or Appellant more credible.

     Under this scenario, Ms. Falk’s testimony could have been

of considerable significance in the minds of the panel members

because it seemed to corroborate and ratify S.A.’s version of

events.   Therefore, we do not find that the Government has met

its burden of demonstrating that Ms. Falk’s improperly admitted

testimony “did not have a substantial influence on the . . .

findings.”   Gunkle, 55 M.J. at 30.

                             DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed in part and reversed in part.    The part of

the decision regarding Charge III and its Specifications is

                                37
United States v. Flesher, No. 13-0602/AR


affirmed.   The part of the decision affirming the finding of

guilty to the offense of aggravated sexual assault and the

sentence is reversed, and the finding of guilty to that offense

and the sentence are set aside.    The record of trial is returned

to the Judge Advocate General of the Army.   A rehearing on the

charge of aggravated sexual assault and the sentence is

authorized.




                                  38
United States v. Flesher, No. 13-0602/AR


       BAKER, Chief Judge (dissenting):

       The military judge serves as the gatekeeper in assessing

expert opinion evidence in accordance with Military Rule of

Evidence (M.R.E.) 702.    United States v. Houser, 36 M.J. 392

(C.M.A. 1993); see also United States v. Billings, 61 M.J. 163,

167 (C.A.A.F. 2005).     The threshold for admissibility of expert

testimony is whether the testimony is relevant, reliable, and

will assist the trier of fact.    Houser, 36 M.J. at 399-400.

However, the majority appears to adopt a new and expansive test

for admission of testimony by a Sexual Assault Response

Coordinator (SARC) in sexual assault cases.     Heretofore, Houser

served as the threshold for admission of evidence under M.R.E.

702.    The majority’s new approach seems to treat even the

ordinary process of admitting specialized knowledge in the form

of SARC testimony as if it were novel scientific evidence for

which a Daubert hearing is required. 1    I would stick with the

Houser test.

       The majority states, as the Court did in Houser, that it is

appropriate to “allow[] expert testimony on rape trauma syndrome

1
  The majority states that “we do not hold that a military judge
is always required to conduct a formal Daubert hearing,” United
States v. Flesher, __ M.J. __, __ (21) (C.A.A.F. 2014), but at
the same time “we must determine de novo whether the military
judge properly followed the Daubert framework.” Id. at __ (16)
(internal quotation marks and citation omitted). The majority
further asserts that “the most important [concern] is the fact
that the military judge did not conduct even a rudimentary
Daubert hearing.” Id. at __ (20).
United States v. Flesher, No. 13-0602/AR


where it helps the trier of fact understand common behaviors of

sexual assault victims that might otherwise seem

counterintuitive.”    Flesher, __ M.J. at __ (23).    In Houser, the

Court concluded:     “Certain behavioral patterns such as failure

to resist or delay in reporting a rape could be confusing to the

factfinders because these may be counter-intuitive.”      36 M.J. at

399.    Accordingly, the evidence in this case was relevant.    The

SARC here also had specialized knowledge, to wit, the

observational experience of having interviewed in her

professional capacity thousands of alleged and confirmed victims

of sexual assault.    Nonetheless, this case presents a fairly

close call because the record is succinct and sometimes hurried

on how the military judge applied the Houser factors.       However,

because this Court, like Article III courts, applies a liberal

standard of admission, I conclude for the reasons below that the

military judge did not abuse his discretion in admitting the

expert’s testimony.    Therefore, I respectfully dissent.

       A. Standard of Review

       A military judge’s decision permitting expert testimony is

reviewed for an abuse of discretion.     United States v. Billings,

61 M.J. 163, 166 (C.A.A.F. 2005).      “[W]hen judicial action is

taken in a discretionary matter, such action cannot be set aside

by a reviewing court unless it has a definite and firm

conviction that the court below committed a clear error of

                                   2
United States v. Flesher, No. 13-0602/AR


judgment . . . .”     Houser, 36 M.J. at 397 (internal quotation

marks and citations omitted).      Where the military judge’s

analysis is clear and on the record it receives greater

deference.   United States v. Bush, 47 M.J. 305, 311 (C.A.A.F.

1997).   In the absence of analysis on the record, an appellate

court will necessarily review the admission of evidence de novo.

See, e.g.,   Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 728,

760 (7th Cir. 2010); Naeem v. McKesson Drug Co., 444 F.3d 593,

607-08 (7th Cir. 2006).     We do not grant relief where expert

testimony is erroneously admitted unless the error was

prejudicial.   Article 59(a), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 859(a) (2012).

      B. M.R.E. 702

      M.R.E. 702 2 codifies the gatekeeping function of the

military judge in admitting testimony by expert witnesses.      The

rule contemplates that expert testimony may include “scientific,

technical, or other specialized knowledge.”     It follows that the

threshold for admission is not necessarily the same for every

2
    M.R.E. 702 provides:

      If scientific, technical, or other specialized knowledge
      will assist the trier of fact to understand the evidence or
      to determine a fact in issue, a witness qualified as an
      expert by knowledge, skill, experience, training, or
      education may testify thereto in the form of an opinion or
      otherwise if (1) the testimony is based upon sufficient
      facts or data, (2) the testimony is the product of reliable
      principles and methods, and (3) the witness has applied the
      principles and methods reliably to the facts of the case.
                                   3
United States v. Flesher, No. 13-0602/AR


proffer of expert testimony.    Indeed, a witness may be

“qualified as an expert by knowledge, skill, experience,

training, or education.”    M.R.E. 702.      A novel scientific

method, therefore, would require a different foundation than

that of specialized knowledge deriving from observational

experience.   Thus, while “expert witness” may conjure up an

image of a Ph.D. trained in nuclear engineering or an M.D.

trained in human genetics, the rule allows any person with

“specialized knowledge” based on “experience” to serve as an

expert as long as his or her testimony meets relevancy and

reliability requirements.    Id.

     This Court also applies a “liberal” standard for admission

of expert testimony.   United States v. Diaz, 59 M.J. 79, 89

(C.A.A.F. 2003) (citation omitted); see also United States v.

Peel, 29 M.J. 235, 241 (C.M.A. 1989) (“[A]dmissibility of expert

testimony has been broadened.      Indeed, anyone who has

substantive knowledge in a particular field which exceeds that

of the average court member arguably is an expert within that

field; and the type of qualification within that field that the

witness possesses goes to the weight to be given the testimony

and not to its admissibility.”).        M.R.E. 702 tracks with the

federal rule, under which expert testimony is liberally

admissible.   See Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 588 (1993) (noting the “liberal thrust” of the Federal

                                    4
United States v. Flesher, No. 13-0602/AR


Rules of Evidence governing expert testimony and their “general

approach of relaxing the traditional barriers to opinion

testimony” (internal quotation marks and citations omitted));

see also Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (“The

witness’[s] qualifications to render an expert opinion are also

liberally judged by Rule 702.”); Canino v. HRP, Inc., 105 F.

Supp. 2d 21, 28 (N.D.N.Y. 2000) (“[T]he Court’s role as

gatekeeper is tempered by the liberal thrust of the Federal

Rules of Evidence. . . . Accordingly, doubts about the

usefulness of an expert’s testimony, should be resolved in favor

of admissibility.” (citations and internal quotations marks

omitted)); Lappe v. Am. Honda Motor Co., 857 F. Supp. 222, 227

(N.D.N.Y. 1994), aff’d, 101 F. 3d 682 (2d Cir. 1996)

(“Liberality and flexibility in evaluating qualifications should

be the rule; the proposed expert should not be required to

satisfy an overly narrow test of his own qualifications.”).

Indeed, some Article III courts appear to view this liberal

admissibility standard as relatively low.   See, e.g., Hammond v.

Int’l Harvester Co., 691 F.2d 646, 653 (3d Cir. 1982)

(automotive and mechanical equipment salesman qualified to

testify as an expert in a products liability action involving a

tractor even though he did not have a degree in engineering or

physics and had no formal education); United States v. Johnson,

575 F.2d 1347, 1360 (5th Cir. 1978) (former actor qualified to

                                5
United States v. Flesher, No. 13-0602/AR


testify as an expert on the origin of marijuana even though “his

qualifications came entirely from ‘the experience of being

around a great deal [of marijuana] and smoking it’”).

     C. Application of the Standard

     In this case, the Government offered testimony by Ms. Falk,

the SARC, in the form of her specialized knowledge on the common

behaviors of sexual assault victims.   This knowledge derived

from Ms. Falk’s experience as a SARC and as an advocate for

“thousands” of victims of sexual assault.   Because the military

judge applied M.R.E. 702 to the admission of this expert opinion

evidence, albeit in a preemptive manner, this Court reviews his

ruling for an abuse of discretion with some deference.

     Relevance.   The first question is whether the proffered

evidence was relevant.   Appellant argued by implication that no

victim would respond to sexual assault (or fail to respond) as

the victim here did.   In particular, the defense suggested that

the victim’s failure to scream or call out to her brother or

other family members in her home demonstrated consent.   The

Government was therefore entitled to rebut this inference with

properly admitted evidence to prove its case.   As the majority

affirms and as this Court stated in Houser:

     Certain behavioral patterns such as failure to resist
     or delay in reporting a rape could be confusing to the
     factfinders because these may be counter-intuitive. .
     . . It is logically relevant for an expert to explain
     that certain behavior patterns occur in a certain

                                 6
United States v. Flesher, No. 13-0602/AR


     percentage of rape cases or child abuse cases. This
     is not to say that the offense occurred but, rather,
     that these events may happen to some victims. Without
     the testimony the members are left with their own
     intuition.

36 M.J. at 399.

Consequently, unless this Court is overruling Houser, the expert

testimony was relevant.

     Reliability.   Since the majority appears to concede that

Ms. Falk’s testimony did not lack relevance, the reliability of

her testimony will determine whether the military judge abused

his discretion.   Reliability, in turn, depends on whether we

continue to consider the Houser factors or adopt the majority’s

approach, which would effectively make Daubert the sole and

mandatory test.

     Ms. Falk was an experienced advocate for victims of sexual

assault who was hired by the Department of Defense to serve as a

SARC.   A SARC is “[t]he single point of contact at [a military]

installation or within a geographic area who oversees sexual

assault awareness, prevention, and response training; coordinates

medical treatment, including emergency care, for victims of sexual

assault; and tracks the services provided to a victim of sexual

assault from the initial report through final disposition and

resolution.”   Dep’t of Defense Dir. 6495.01, Sexual Assault

Prevention and Response Program (SAPR) 17 (Jan. 23, 2012).      The

credentialing process for a SARC requires a minimum of forty


                                 7
United States v. Flesher, No. 13-0602/AR


hours of training for initial certification followed by an

additional thirty-two hours of continuing education every two

years, including on sexual assault victims’ responses to trauma.

Sexual Assault Prevention and Response Office, U.S. Dep’t of

Defense, Fact Sheet:   SAPR Training, available at

http://www.sapr.mil/index.php/prevention/prevention-program-

elements/prevention-education.    Prosecution Exhibit 6 is Ms.

Falk’s curriculum vitae (CV).    At the time of the military

judge’s ruling, the record indicates that this exhibit was

before him.   The CV details Ms. Falk’s education, training, and

experience working with sexual assault victims.      Her duties

included “short-term . . . counseling” of victims of sexual

assault and assisting them through the “medical, investigative,

and legal process[es]” that follow their claims of sexual

assault.   She testified that she had worked with “[t]housands

[of victims claiming sexual assault].    A couple thousand

probably over the years.   It is generally a couple hundred per

year.”   She also stated that “[m]ore than a third” of those had

resulted in a court-martial or civilian trial and among those “a

large portion” had ended in a conviction, thereby confirming

that she had interviewed actual victims of sexual assault.

Exercising his “considerable leeway” in evaluating reliability,

the military judge considered these qualifications and allowed

voir dire of Ms. Falk on the record.    Kumho Tire Co. v.

                                  8
United States v. Flesher, No. 13-0602/AR


Carmichael, 526 U.S. 137, 152 (1999) (“[T]he trial judge must

have considerable leeway in deciding in a particular case how to

go about determining whether particular expert testimony is

reliable.”).

     It seems to me it is not an abuse of discretion to conclude

that a Department of the Army-trained SARC who has interviewed

more than one thousand sexual assault victims would have

specialized knowledge about common victim behaviors.       The

reliability of her testimony depends on knowledge and

experience, not methodology or theory.       All the more so when the

military judge limited her testimony to three questions the

answers to which were necessarily based on specialized knowledge

drawn from informed observation as opposed to specialized

scientific or technical methods.       He directed trial counsel to

ask Ms. Falk only “whether or not . . . most victims put up a

fight or not; scream or not; and who their first report is made

to, law enforcement or not law enforcement.”       Significantly, Ms.

Falk did not testify that the behavior of the victim was

consistent with that of the victims she had interviewed.

     The majority nonetheless concludes that the military judge

abused his discretion.   Their principal objection appears to be

that Ms. Falk was not an “expert in rape trauma syndrome,” but




                                   9
United States v. Flesher, No. 13-0602/AR


the military judge did not admit her testimony on that basis. 3

Flesher, __ M.J. at __ (24).   Neither is there a requirement

that she be one.   The majority also concludes the military judge

erred by not conducting a Daubert analysis.    Id. at __ (20-21).

But Ms. Falk was not offering scientific evidence.   She was

offering experiential evidence -- specialized knowledge -- based

on thousands of victim interviews.   Her testimony did not

involve the introduction of a “theory or technique” that “can be

(and has been) tested” and “subjected to peer review and

publication” or has a “known or potential rate of error.”

Daubert, 509 U.S. at 593-94.

     Daubert itself emphasized that the factors were neither

exclusive nor dispositive.   Id. at 593.   In addition, the

Advisory Committee’s note to the 2000 amendment to Federal Rule

of Evidence 702 recognized that not all Daubert factors apply to

every type of expert.   Fed. R. Evid. 702 advisory committee’s

note.   In Kumho, the Court held that the Daubert factors might

be applicable in assessing the reliability of nonscientific

expert testimony, but that determination would depend on “the

particular circumstances of the particular case at issue.”     526

3
   While I recognize, as the American Psychiatric Association
(APA) does, that sexual assault is a traumatic event that may
lead to posttraumatic stress disorder, I do not use the term
“rape trauma syndrome” because the APA has not listed it as an
illness in the Diagnostic and Statistical Manual of Mental
Disorders. Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 463-68 (text rev. 4th ed. 2000).
                                10
United States v. Flesher, No. 13-0602/AR


U.S. at 150.   Ms. Falk was the type of expert who, rather than

providing an opinion, provided testimony intended to educate the

trier of fact about certain factual issues raised in the case.

For this type of expert, the federal rule requires only that (1)

the witness have the requisite qualifications to give expert

testimony, (2) the testimony address a subject matter as to

which the witness can be of help to the trier of fact, (3) the

proposed testimony be reliable, and (4) the proposed testimony

fit the facts of the case.    See 4 Weinstein’s Federal Evidence,

§ 702.02[3] (2d ed. 2014).    Ms. Falk testified as to what the

individuals with whom she had had contact reported to her about

their emotional and physical responses to sexual assault.      Thus,

given the defense theory of the case that the victim had

consented to sexual intercourse with Appellant, in addition to

Ms. Falk’s training and experience, her testimony was helpful to

the members.

     Assists the Factfinder.    The third and final question the

Houser test asks is whether the testimony will assist the

members as factfinders.   The answer to this question largely

hinges on the analysis in Houser regarding counterintuitive

behavior.   36 M.J. at 400.   The fact is the military judge

strictly limited Ms. Falk’s testimony.    In the context of this

case, in which the defense implied the victim did not act like a

“real” victim, I do not believe the military judge erred by

                                 11
United States v. Flesher, No. 13-0602/AR


allowing the Government to offer the specialized knowledge of a

SARC who had assisted thousands of victims of sexual assault

since she could assist the factfinder in assessing defense

counsel’s argument.    And, of course, Ms. Falk’s testimony was

not offered in a vacuum.

     D.    Prejudice

     Even if the military judge erred, Appellant was not

prejudiced.    Defense counsel’s own expert witness, Christina

Thomas, a Sexual Assault Nurse Examiner and emergency department

nurse, served as an adequate counterweight to Ms. Falk.    Her

education and experience matched and arguably exceeded that of

Ms. Falk.    Ms. Thomas testified that “people respond to trauma

or stressors in all the ways of the emotional spectrum.    There

is no typical way for someone to react.”    Combined with Ms.

Falk’s testimony, Ms. Thomas’s testimony made clear to the

members that although many victims of sexual assault respond

with behaviors that are often counterintuitive to the public’s

expectations, they do not all react alike.    She conveyed to the

members that there is no single, “correct” response to sexual

assault.

     Defense counsel also cross-examined Ms. Falk and elicited

from her an acknowledgment that as a victim advocate, she was

required to believe the victim’s accusation of sexual assault.

The members were thus aware of Ms. Falk’s position and function.

                                 12
United States v. Flesher, No. 13-0602/AR


They were not left with the impression that she was capable of

evaluating the truth of a victim’s claim.    Her testimony merely

reflected her own experience and the consensus of the academic

research on sexual assault that a victim’s fear, shame, and

guilt commonly result in his or her failure to report the crime

immediately.   The members, therefore, were provided the proper

context in which to evaluate the victim’s credibility.

     Finally, the evidence against Appellant was strong.    His

failure even to acknowledge that he and the victim were

intoxicated that night even though the victim had had at least

three mixed drinks could have suggested to a reasonable trier of

fact that he was being less than truthful.    Appellant’s claim

that he was concerned for the victim’s well-being while

providing the sixteen-year-old with alcohol and cigarettes also

apparently impacted his credibility.    Finally, Appellant never

explained why, if the victim and he had planned to have sexual

intercourse, they did not do so in his home, alone, instead of

in the victim’s home where three other people, including her

stepfather and mother, were sleeping.    These facts, rather than

Ms. Falk’s brief testimony, were the reasons the members

concluded that Appellant was guilty of sexual assault.

     For the foregoing reasons, I respectfully dissent.




                                13
United States v. Flesher, No. 13-0602/AR


     RYAN, Judge (dissenting):

     Contrary to the majority’s conclusion, the military judge

abandoned his role as a gatekeeper in the first instance.

Nonetheless, I agree with Chief Judge Baker that there was no

prejudice.    I respectfully dissent.

                                  A.

     The framework for evaluating expert testimony is well

established.    “M.R.E. 702 dictates the admissibility of expert

testimony.”    United States v. Sanchez, 65 M.J. 145, 149

(C.A.A.F. 2007).    “Interpreting the analogous Fed. R. Evid. 702

in Daubert[ v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)],

the Supreme Court . . . made clear that the trial court has a

‘gatekeeping’ role.”    Id. (quoting Daubert, 509 U.S. at 589).

It is incumbent upon trial judges to “‘ensure that any and all

scientific testimony . . . is not only relevant, but reliable.’”

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting

Daubert, 509 U.S. at 589).    No less is required when evaluating

expert testimony that is not based on science.    This obligation

is necessary because expert witnesses have “testimonial latitude

unavailable to other witnesses on the ‘assumption that the

expert’s opinion will have a reliable basis in the knowledge and

experience of his discipline.’”    Id. at 148 (quoting Daubert,

509 U.S. at 592).    Thus, where expert “testimony’s factual

basis, data, principles, methods, or their application are
United States v. Flesher, No. 13-0602/AR


called sufficiently into question . . . the trial judge must

determine whether the testimony has ‘a reliable basis in the

knowledge and experience of [the relevant] discipline.’”    Id. at

149 (second alteration in original) (quoting Daubert, 509 U.S.

at 592).

     Although a military judge “must have considerable leeway”

to decide how to test an expert’s reliability and whether an

expert’s testimony is sufficiently reliable, id. at 152, a

military judge does not have the “discretion to abandon the

gatekeeping function.”   Id. at 158-59 (Scalia, J., concurring).

When a military judge properly exercises his role as a

gatekeeper, we review the military judge’s rulings regarding the

admission of expert testimony for an abuse of discretion.

United States v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999); see

also Kumho, 526 U.S. at 154.   Nevertheless, it is necessary to

“review de novo the question whether the military judge properly

followed the Daubert framework” in performing its role as a

gatekeeper.   Griffin, 50 M.J. at 284; see also United States v.

Roach, 582 F.3d 1192, 1206 (10th Cir. 2009) (“‘[W]e review de

novo the question of whether the district court applied the

proper standard and actually performed its gatekeeper role in

the first instance.   We then review the trial court’s actual

application of the standard in deciding whether to admit or



                                 2
United States v. Flesher, No. 13-0602/AR


exclude an expert’s testimony for an abuse of discretion.’”)

(alteration in original) (emphasis added) (citation omitted). 1

                                B.

     The problem in this case is that the military judge made no

attempt to apply the framework of Daubert, Kumho, United States

v. Houser, 36 M.J. 392, 397 (C.M.A. 1993), M.R.E. 702, or any

other authority addressing expert testimony.   The military judge

identified no guiding principles, provided no factual findings

or legal analysis on the record, and cited no relevant law to

support his decision to allow Ms. Falk to testify.   While it is

certainly true that the military judge “need not ‘recite the

Daubert standard as though it were some magical incantation,’”

where, as here, a party objects to potential expert testimony,

the military judge “must adequately demonstrate by specific

findings on the record that it has performed its duty as

gatekeeper.”   Goebel v. Denver & Rio Grande W. R.R. Co., 215

F.3d 1083, 1088 (10th Cir. 2000) (citation omitted).   Without

this type of record development, “it is impossible on appeal to

determine whether the [military judge] carefully and

meticulously review[ed] the proffered [expert] evidence or


1
  Several circuit courts apply a similar approach. See, e.g.,
Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 805 (7th Cir.
2013); Smith v. Jenkins, 732 F.3d 51, 64 (1st Cir. 2013); Elcock
v. Kmart Corp., 233 F.3d 734, 745 (3d Cir. 2000); Pride v. BIC
Corp., 218 F.3d 566, 578 (6th Cir. 2000).


                                 3
United States v. Flesher, No. 13-0602/AR


simply made an off-the-cuff decision to admit the expert

testimony.”   Id. (second alteration in original) (citation

omitted) (internal quotation marks omitted).

     The only on-the-record discussion of Ms. Falk’s expertise

did not focus on Ms. Falk’s qualifications and reliability;

rather, it focused on the conclusions the military judge

expected Ms. Falk to reach based on the testimony of other

experts in other cases.   For example, the military judge

observed:

     Defense, based on my experience all these experts will say
     some [victims] scream, some don’t, some delay reporting,
     some report immediately, and I would think that the
     government’s expert would admit all that on cross-
     examination. . . . [W]here I have seen this, is that the
     government more usually feels compelled to present that
     evidence so when they stand up and argue to the panel
     that’s not unusual for someone not to scream . . . . They
     feel compelled to present that evidence so that they don’t
     get the objection from the defense saying, hey, those are
     facts not in evidence.

This approach is plainly contrary to the Daubert framework,

which requires the focus “be solely on principles and

methodology, not on the conclusions that they generate.”    See

509 U.S. at 594–95.   Moreover, under the Daubert framework, the

military judge’s actual task is “to decide whether this

particular expert had sufficient specialized knowledge to assist

the jurors in deciding the particular issues in the case.”

Kumho, 526 U.S. at 156 (emphasis added) (citations omitted)

(internal quotation marks omitted).   Had he done so, it should

                                 4
United States v. Flesher, No. 13-0602/AR


have been plain, for the reasons identified by the majority,

see, e.g., United States v. Flesher, __ M.J. __, __ (25-27)

(C.A.A.F. 2014), that Ms. Falk would not provide the kind of

counterintuitive behavior testimony we have endorsed in other

cases, see, e.g., United States v. Pagel, 45 M.J. 64, 68

(C.A.A.F. 1996), but instead only inherently biased, hearsay-

based testimony on an area of expertise defined only by the

witness’s job title, i.e., “sexual assault response

coordinator.” 2   For, in essence, the sole basis for Ms. Falk’s

testimony was that she had encountered thousands of putative

victims -- and believed them.

     The majority acknowledges these and other shortcomings in

the military judge’s review of Ms. Falk’s reliability, see

Flesher, __ M.J. at __ (20, 26, 28-32, 34–35) (emphasizing the


2
  To be sure, a sexual assault response coordinator is a proper
and useful role, but this job title neither defines an area of
recognized expertise nor alone qualifies Ms. Falk as an expert.
Ms. Falk’s limited voir dire established little beyond the fact
that she is likely too closely tied to those for whom she
advocates to be either neutral or detached, let alone either
scientific or helpful as contemplated by M.R.E. 702. I do not
disagree with either the majority, Flesher, __ M.J. at __ (22-
23), or Chief Judge Baker, id. at __ (6-7, 11) (Baker, C.J.,
dissenting), that expert testimony on counterintuitive behaviors
of sexual assault victims may, in certain cases, be relevant and
helpful to the trier of fact. See Houser, 36 M.J. at 398. It
is paramount, however, that the military judge provide some
indication on the record that he applied the appropriate legal
framework in carrying out an individualized review of the
particular “expert” witness’s reliability, and area of
expertise.


                                  5
United States v. Flesher, No. 13-0602/AR


military judge’s failure to create a record or inquire into the

Houser factors), yet inexplicably concludes that “the military

judge did perform an adequate, if not exemplary, preliminary

gatekeeping inquiry.”   Id. at __ (21).   Without any indication

in the record that the military judge properly applied the

relevant law, I simply cannot agree.   The standards for

gatekeeping and admissibility are low, 3 but they are not

nonexistent -- a military judge engaging in no inquiry under the

applicable law, even though asked to, and relying entirely on

past experts who testified in other cases, is not enough.

Accordingly, I would find that the military judge erred by

abdicating his gatekeeping duty to evaluate the reliability of

Ms. Falk’s purportedly “expert” testimony.   Nevertheless, for

all the reasons stated by Chief Judge Baker, I agree that there

was no prejudice in this case.

     I respectfully dissent.




3
  The military judge’s abdication of his gatekeeping role by
failing to apply the appropriate legal standard also implicates
an abuse of discretion in admitting Ms. Falk’s testimony. See
United States v. Avitia-Guillen, 680 F.3d 1253, 1257 n.3 (10th
Cir. 2012) (“When a district court neglects its gatekeeping
function, it commits two errors. First, it commits error,
reviewable de novo, by not making a reliability determination.
Second, it abuses its discretion when it admits the expert
testimony without a reliability determination.”).


                                 6
