United States v. Banks

36 M.J. 150, 1992 CMA LEXIS 836, 1992 WL 358876

• Court: United States Court of Military Appeals
• Decided: September 30, 1992
• Docket: No. 66,365; CM 8901184
• Status: Published

Opinions

Opinion of the Court

WISS, Judge:

Appellant was tried by a general court-martial composed of officer and enlisted members at Fort Campbell, Kentucky, during March of 1989. Contrary to his pleas, he was found guilty of rape and sodomy, in violation of Articles 120 and 125, Uniform Code of Military Justice, 10 USC §§ 920 and 925, respectively. He was sentenced to a dishonorable discharge, confinement for 9 years, forfeiture of $500.00 pay per month for 108 months, and reduction to pay grade E-l. On July 6, 1989, the convening authority approved the sentence as adjudged. The Court of Military Review affirmed without opinion on January 17, 1991.

This Court granted review on the following issue:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY REFUSING TO ALLOW THE DEFENSE TO REBUT PROSECUTION EVIDENCE, THEREBY DENYING APPELLANT A FAIR TRIAL.

We hold that the military judge erroneously admitted government evidence and excluded critical defense evidence in several particulars: First, he admitted the prosecution psychologist’s expert opinion of a family “profile” of child sexual abuse; second, he excluded the defense psychologist’s expert discussion of reference authority regarding normal prepubertal vagina size; finally, he excluded a social worker’s videotaped interview of the alleged victim. We conclude that the cumulative effect of these errors denied appellant a fair trial.

I

BACKGROUND

Appellant was charged with sodomizing and raping his 7-year-old stepdaughter, B. Initially B revealed “secrets” to her child friend. This initiated a chain of events that resulted in charges against appellant.

The trial pitted B against appellant in a credibility battle. B testified against her stepfather by drawing pictures and by primarily nonverbal responses (nodding her head to answer “yes” and shaking her head to answer “no”) to leading questions. The substance of her testimony was that appellant “put his penis in” her “private parts” and in her mouth. The prosecution’s case included six expert witnesses to prove its case and to bolster B’s credibility. On the other hand, appellant testified and denied these acts. The defense presented the testimony of one expert to rebut the prosecution’s ease and to attack B’s credibility.

At the beginning of this case, defense counsel petitioned the court, pursuant to Mil.R.Evid. 615, Manual for Courts-Martial, United States, 1984, to designate Dr. Ralph Charles Underwager, a civilian psychologist and the sole defense expert witness, as a person whose presence was “essential to the defense’[s] presentation” and to permit him “to sit at the defense table during the presentation of the entire government case.” Counsel argued, “Since the Government is going to have ... five [expert] witnesses, the defense would like to have Dr. Underwager available to help the defense counsel prepare cross-examination of these witnesses to challenge their foundations, to challenge their professional expertise.” Defense counsel informed the court that, additionally, the defense would offer Dr. Underwager as an expert witness. The following summarizes defense counsel’s comments regarding Dr. Under-wager’s expected testimony in three critical areas:

(1) Interview techniques, adult pressure, and coercion on the alleged victim that compromised her credibility.

Dr. Underwager had “reviewed the videotape of an interview of the alleged victim conducted by a government witness, Mrs. Sarah Tucker.” He would “testify that the videotape demonstrates a significant level of adult pressure and coercion on the victim sufficient to raise the issue of personal or independent knowledge of the victim. Non-verbal behaviors by the adult also show that pressure was placed on the child.” Dr. Underwager would opine “that the use of dolls as an interview technique ... is inappropriate,” and “the use of drawings relied upon by different government witnesses ... is not supported by any scientific evidence.”

(2) Professional literature and studies concerning the size of a vagina of a 7-year-old that contradicted the prosecution’s case.

Dr. Underwager would “bring to the court’s attention ... literature in the field concerning the physical observations and what is normal, what’s the base rate, for the size of a vagina of a 7 year old.” He also would “bring to the court’s attention ... recent studies that say that the physical observations of a doctor are within the scope — are within normal parameters for nonabused children.”

(3) Sexual abuse accommodation syndrome in rebuttal to the prosecution’s case.

Dr. Underwager would

rebut the expected testimony of government witnesses and we are unsure of what the court’s ruling is going to be concerning testimony of the sexual abuse/accommodation syndrome. We believe that the Government will endeav- or to use that syndrome and we’re prepared to have Dr. Underwager testify that the Frye [v. U.S., 293 F. 1013 (D.C.Cir.1923) ] standards have not been ever met, that this has not been validated and is not generally reliable.

Defense counsel proffered that the government expert witnesses would

testify that the victim acted or somehow her behavior corresponded to that of most victims and therefore she would be believed inferentially because her behavior was consistent with that demonstrated by many victims. Dr. Underwager is prepared to testify that this so-called syndrome, this method of diagnosing child behavior, is just bunk____

Trial counsel responded by informing the court that the Government did not intend to play the videotape of Ms. Tucker’s interview of B and that none of the government witnesses would testify about the interview. Additionally, trial counsel objected to two aspects of Dr. Underwager’s expected testimony: (1) Trial counsel argued that Dr. Underwager’s testimony about the interview techniques “amount[ed] to ... a human polygraph” and was inadmissible under Mil.R.Evid. 403 and 703. (2) Trial counsel asserted that “Dr. Underwager is not a medical doctor, has received no medical training, and ... is not an expert in the field and should not be allowed to comment on any area having to do with the medical exam or the interpretation of the medical examination of the child or the accused.”

The military judge’s initial ruling established three parameters for Dr. Underwager’s testimony: (1) The doctor would be permitted to testify concerning the impact and effect on children of the adult interview techniques and “his opinion concerning how the use of dolls may influence the child’s testimony.” (2) Dr. Underwager would be permitted to be in the courtroom only during the testimony of government social workers and psychologists. (3) The military judge refused to permit Dr. Under-wager to testify about the medical evidence and stated:

At this point I’m not inclined to allow him to testify concerning the size of seven year old vaginas. You can make an offer; you can — we’ll have a 39(a) [session under Article 39(a), UCMJ, 10 USC § 839(a) ] and see what you want to put in if you desire; but at this point I’m not going to allow that.

Also at the threshold of the trial, defense counsel moved to suppress the results of a Minnesota Multiphasic Personality Inventory (MMPI), a psychological test administered to appellant as part of a professional evaluation requested by defense counsel after the allegations of sexual abuse were made. This motion, however, later became moot when the Government abandoned its attempt to introduce the MMPI results after the judge rejected the defense’s attempt to introduce Dr. Underwager’s opinion, based on the MMPI test results, that appellant did not present the profile of a pedophile. Other facts regarding the defense’s attempt to elicit Dr. Underwager’s opinion about appellant’s psychological profile are discussed more fully below.

After the military judge addressed these and other preliminary evidentiary matters, this contested trial on the merits began. Although both sides introduced significant lay testimony, our factual discussion focuses on the expert testimony that presents the legal issues.

II

FACTS

A. The government experts

During its case on the merits, the Government presented testimony from five expert witnesses: a social worker who was an expert in child sexual abuse (Ms. Jackson); two medical doctors who were experts in pediatrics and child abuse (Drs. Richardson and Moore); a therapist who was an expert in psychotherapy and specialized in the treatment of abused children (Ms. Tucker); and a psychologist who was an expert in child psychology and clinical child psychology (Dr. Smith). Additionally, during its case in rebuttal, the Government presented the testimony of another medical doctor who was an expert in family practice.

Ms. Mary Jackson, a civilian social worker specializing in the area of child sexual abuse, testified regarding her interviews with B and appellant. Ms. Jackson stated B admitted initially telling her child friend that appellant “had sex with her”; also B confirmed that appellant “put his penis inside her” but told her not to talk “about it.” Ms. Jackson explained her interview sessions with B; her use of technical aids including written notes and pictures, anatomically correct dolls; and her interview and questioning techniques. She also testified that appellant “denied” sexually abusing B.

Two medical doctors testified about separate clinical findings based on two different physical examinations of B and about the normal prepubertal vagina size. Dr. (Captain) Leslie A. Richardson, a military pediatrician, examined B in September 1988, one week after the alleged incident, and measured B’s vaginal opening as 10 to 15 millimeters. Dr. Richardson opined that B’s vaginal opening was far greater in size than 4 to 5 millimeters, the - norm for a prepubertal girl, and that the enlarged vaginal opening was “consistent with ... sexual abuse” history reported to her. Dr. Richardson presented her testimony regarding normal vaginal opening size of a child B’s age “based on most references.” Additionally, trial counsel in questions and Dr. Richardson in answers repeatedly referred to “reference material,” “various pediatric journals for reference articles,” and “reference works” that address examination and medical findings of sexual abuse and that corroborate the doctor’s expert testimony regarding hymenal opening size.

Dr. William R. Moore, a civilian pediatrician who examined B in January 1989' at the request of defense counsel, measured B’s vaginal opening as 6 to 8 millimeters. Although he conceded that his examination “showed information that would make you suspect” child abuse, he opined that there was “minimal to no evidence of sexual abuse based on this exam alone.” He read directly from his report statements that “[a] hymenal opening greater than 4 millimeters correlates well with sexual abuse in prepubertal girls” and to the effect that his examination was inconclusive because he did not have a patient history and B would not talk.

Ms. Sarah Tucker, a civilian therapist with a Sex Abuse Treatment Team at the Harriette Cohn Mental Health Center, Clarksville, Tennessee, testified about several matters. She repeated B’s allegations of sexual abuse by her father, including his putting “his hands in her panties” and “his penis on her____” Ms. Tucker opined without objection that B was truthful. Ms. Tucker explained how she conducted her eleven interview and therapy sessions with B and her use of technical aids including written notes and pictures, a book entitled The Secret,¹ anatomically correct dolls, child group therapy, and a videotaped interview.

Ms. Tucker stated that the videotaped interview was conducted at the prosecution’s request and was intended to “be used in lieu of [B’s] live testimony at an Article 32,” UCMJ, 10 USC § 832, session, as Ms. Tucker believed that B “couldn’t handle” the proceeding because of “her strong feelings for her father and her mother.” This was not “a normal” interview, and it “was handled differently” because it was videotaped. Specifically, Ms. Tucker used anatomically correct dolls in an attempt to have B show what had happened.

Dr. Robert Lee Smith, a civilian clinical and counseling psychologist and expert in child psychology and clinical child psychology, testified about several matters. First, without mentioning the term “sexual abuse accommodation syndrome,” he testified about this syndrome to explain the “ ‘profiles’ of families exhibiting” the “dysfunction” of “child sexual abuse” and the behavior of a sexually abused child. Although trial counsel had explicitly informed the judge that this testimony would present “ ‘profiles’ of families exhibiting ... child sexual abuse,” neither Dr. Smith nor trial counsel used the word “profile” in the presence of the members.

In presenting this “profile” evidence, Dr. Smith opined that there are “risk factors in homes” which “increase the risk for a child to be the victim of a sex abuse.” He identified the following three significant “risk factors”: (1) “[Tjhere is only one biological parent in the family”; (2) “there is a stepfather in the family”; and (3) there is “marital dysfunction” in the family. Dr. Smith explained that dysfunction “is a disturbance within the ways family members interact with each other” and that “sexual dysfunction between the husband and wife” “certainly can be a risk factor.”

Second, Dr. Smith testified about “ways to validate these allegations of sexual abuse.” He identified physical evidence such as “trauma to the ... vagina” and an “unusual dilatation [presumably meaning dilation] of ... the vaginal canal ..., that would tend to enhance the credibility of the female victim.” He did not testify as to what constitutes an unusual dilation, however. Also he discussed child fabrication and stated that it is “very rare” and “very infrequent” for a child under the age of 9 “to render a false allegation.”

Defense counsel repeatedly objected to Dr. Smith’s testimony concerning what amounted to “sexual abuse accommodation syndrome.” Defense counsel made this objection during the Government’s case-in-chief and during the direct testimony of appellant’s wife. The record reflects that the following occurred:

[TC]Q: Have you ever been in a violent confrontation with the accused?

[Wife]A: Yes, I have.

DC: Objection, same — same [Defense counsel earlier objected on the basis that the question solicited misconduct not charged.]

MJ: Counsel, what’s the relevance at this point?

TC: Your Honor, the Government feels that it’s relevant to the family situation. And the Government intends to put on evidence concerning the child abuse accommodation syndrome as it’s known. And the situation in the family, the stress in relationships between family members is critical; and is relevant in the Government’s opinion.

DC: Could we have a side-bar, sir?

MJ: Well, what’s the problem that you can’t address it from there?

DC: This terminology “child abuse accommodation syndrome” or whatever it is has been moved [sic] on by this court in the past. And we would prefer not to even let this whole area be brought up.

(Emphasis added.)

The military judge then excluded the members, and an Article 39(a) session followed. Here trial counsel stated that he did “not intend to bring any uncharged acts of misconduct to go to the character of the accused.” Instead, trial counsel averred that he was attempting

to show ... a degree of emotional stress that embodies a number of different acts in the family. One of which was violent tendencies between the accused and his wife that may or may not have been observed by the child. It might contribute to the child feeling a certain amount of stress that might ultimately cause her to act as she’s acted in this case____ ed to the facts that she will attest to in court today. And that this — we also have an expert to show that this is not uncommon in cases involving dysfunction within the family. It’s the Government’s intention to show that there was dysfunction in this family in many different areas; sexual as well as violence in the family, as well as a break down of the appropriate relationship between parent and child. And the Government feels that there is expert opinions in this area that will show that this is appropriate— or is customary in profiles of families exhibiting this type of dysfunction; namely, child sexual abuse. So it’s a family problem and that, therefore, the Government feels the situation within the family is relevant to this hearing.

The Government expects that evidence will be presented by the Government itself that shows [B] has not always attest-

The military judge then inquired, “[T]his child abuse accommodation syndrome____ What are you talking about? The evidence — What evidence are you going to try to bring up to show what?” Trial counsel responded:

Your Honor, it is intended that this witness, as well as other witnesses, will testify to the fact there was dysfunction in this family in a number of different areas. Sexually, there was dysfunction between the wife and the husband, the accused. That there might well have been [family problems].

The military judge had trial counsel confirm that this evidence would relate to “family problems,” and “[n]ot specifically with the accused, but just family problems.” The military judge then ruled that he would

allow the witnesses to testify about evidence of any violent confrontation without specific [instances] being drawn out. And I will instruct the members accordingly at the appropriate time as to what evid — what use can be used. That is for its tendency if any to show the family situation as to explain why the incidents may occur. If that becomes relevant.

At this point defense counsel again objected “[w]ith regards, sir, to the use of the phraseology ‘sexual abuse accommodation syndrome’ which the defense will object to any of that.” However, the military judge and trial counsel then had the following exchange:

MJ: My understanding is that that’s— correct me if I’m wrong — from trial counsel’s offer, what it’s going to show is that psychological studies have shown ... that in families that have areas of dysfunction, these areas of dysfunction — What that they — that sexual child abuse has been known to occur; is that it?

TC: Sir, that there are — there is evidence that can be deducted [sic] from looking at the family that would tend to indicate that certain behavior by a child is expected. While it might seem surprising to people that are not familiar with this area of the law and psychology—

MJ: So this — this syndrome is going to apply only to the child’s behavior?

TC: Well, sir, I think it applies broader than that. To the behavior of—

MJ: Well, this is what I want to hear. What are you going to try to introduce it to? And that's what I want to understand. ’Cause what you’re talking about — Also, [what] I’m looking at is are we bringing up character evidence of the accused which is inadmissible. In other words are you going to bring up that the accused has a profile of a sexual offender because he does a, b, c, and d; in which case then that is inadmissible. Because you can’t bring up a character trait to prove that the individual acted in conformity with that.

TC: Well, sir, while the Government doesn’t intend to do that at this point. The Government intend[s] to put on character traits within the Banks family to show that this is consistent with a profile of a family experiencing this type of—

MJ: Okay. When you’re saying “character traits within the Banks family” ... i.e. dysfunctions ... between husband and wife, ... between children, children assuming parental roles. Things of that nature rather than specifically saying that because the accused does a, and the accused does b, therefore he’s a sex offender.

TC: It is not the Government’s intention at this point to use the child abuse accommodation theory in your example, sir.

MJ: Okay. I will allow the testimony but I’m not going to allow specific instances of conduct by the accused. I will allow trends or instances without being specific as to the nature on direct examination.

DC: Are you going to use that — permit the use of that phrase [child abuse accommodation theory], either now or social workers later on?

MJ: If social workers want to testify concerning the phrase, yes; I’ll allow the phrase. So if the doggone phrase of rape trauma syndrome has been recognized as an acc — as an admissible phrase and acceptable in the area.

DC: We’d like to attack it on a Frye basis that it’s not commonly accepted. MJ: Well, then [when] the Government tries to quote “present the evidence” of this syndrome, they’ll lay the foundation at that point. What I’m saying is that it’s not per se inadmissible.

B. The defense expert

A major dimension of the defense case to rebut the Government’s expert-witness presentation was the testimony of one defense expert, Dr. Ralph Charles Underwager, a clinical psychologist. At the beginning of its case-in-chief, defense counsel requested permission of the court to show the members the videotape of Ms. Tucker’s interview of B. Trial counsel objected based on Mil.R.Evid. 403 that the videotape was “confusing to the panel”; “cumulative on the issue of a prior inconsistent statement and tend[ed] to give unfair weight to that inconsistent statement and [was] clearly ... irrelevant.” To support his position, defense counsel stated:

The purpose is to have Dr. Underwager review the tape and be able to point out to the court members just what types of actions by Mrs. Tucker are consistent with the defensef’s] theory that the victim has been given certain cues, has learned a certain behavior; that in fact she has had her story bolstered, not bolstered but solidified by the type of questioning and interrogation conducted by the Government and by the private social workers and psychologists____ We believe it’s important for the court to — for the members to see exactly what type of investigative techniques were employed by Mrs. Tucker. Mrs. Tucker said that she asked open ended questions, non-suggestive, non-threatening environment, and we’d like the court members to see the tape____ [L]et the members see for themselves what type of interview technique Mrs. Tucker used. Certainly it would be more graphic and better than to have Dr. Underwager just give his impression to the panel. We’d point out that his conclusions do not make it clear to the members.

(Emphasis added.).

The military judge denied the defense motion and refused to permit the members to view the videotape, stating:

It’s denied on the basis, number one, when the testimony of Mrs. Tucker was taken she testified that the video tape session was not the normal session, that she purposely had done this session with the intent of using this as [B's] testimony before the Article 32 investigation if they did not feel the child could go through such an investigation; therefore, it was not a normal session in an attempt to try and make the child talk rather than the norma] counseling session. I think to watch that would be misleading and would mislead the court and give them the wrong idea____

Accordingly, the videotape was not shown to the members but was appended to the record as an appellate exhibit.

Unsuccessful in its attempt to utilize the videotape, the defense opened its case by presenting Dr. Underwager “as an expert in the following areas: clinical psychology, therapy, child development, child sexual abuse, and as a scientist.” After cross-examining this witness as to his qualifications for seven pages in the record, trial counsel did not object to the court’s recognizing Dr. Underwager as an expert in any of these areas, and, accordingly, Dr. Under-wager testified as an expert.

First he repudiated Dr. Smith’s earlier testimony regarding “sexual abuse syndrome.” Dr. Underwager expressly rejected Dr. Smith’s testimony as to “risk factors” of “family dysfunction” and child sexual abuse. He testified that there are no “risk factors” but only “incidence figures” of child sexual abuse. Conceding “that there is relatively high incidence of sexual abuse when there’s a stepfather in the home,” he did “not translate” this incidence “into a risk factor.” He explicitly denied that there is any correlation between “marital dysfunction” and child abuse. In effect, Dr. Underwager rebutted the prosecution’s “profile” of child sexual abuse. Additionally, in detailed testimony, he challenged other aspects of the sexual abuse syndrome.

Second, the defense attempted to elicit Dr. Underwager’s “opinion” and “interpretation” of appellant’s test scores on the MMPI. Dr. Underwager was prepared to testify that appellant’s “responses were in the normal range and not indicative of the traditional profile of a pedophilia — pedophile.” At this point trial counsel informed the military judge that the Government had abandoned its earlier intention to introduce the MMPI and now objected to this evidence based on Dr. Underwager's lack of “information concerning the” circumstances surrounding administration of the test.

The military judge sustained trial counsel’s objection based on Mil.R.Evid. 403, stating:

Basically what we’re talking about here then is a general character trend — a character trait not a specific trait. The court finds under 404, it would not be admissible, but even if there were some relative admissibility relevance, I find that it would be much more confusing rather than helpful and I will not allow it..

Thereafter, both defense and trial counsel made offers of proof relative to Dr. Under-wager’s opinion testimony based on the MMPI.²

A third major thrust of the defense expert evidence was an attempt to have Dr. Underwager testify about “studies in the area of the normal vaginal sizes.” When trial counsel objected to Dr. Underwager’s testimony, the defense proffered that it was to rebut the Government’s case and Dr. Smith’s testimony concerning “physical evidence” of child abuse. The military judge stated he would permit the defense “to address the issues. I’ll allow the medical testimony, but I’m not going to allow Doctor Underwager to testify about it.” Thereafter, defense counsel again was permitted to make an offer of proof regarding the proffered opinion testimony.³

Fourth, before the members Dr. Under-wager testified about the impact of interview techniques and therapy treatment on B’s credibility. Initially, he addressed his “basic concern” about the “amount and the nature of adult social influence.” This included “verbal behavior, very leading questions, suggestive questions, reinforcement when the child gives a desired response or ignoring a child; doing nothing when the child gives an undesired response.”

Addressing the videotaped interview, Dr. Underwager opined that “Miss Tucker does put very significant pressure on the child; coercive pressure to respond as desired.” As the doctor attempted to address Ms. Tucker’s response to B’s denials of sexual abuse, the military judge instructed him to “limit your response to what you saw with the effects on the child and the attempts by the individual without giving specific examples.” Dr. Underwager opined that Ms. Tucker’s use of the book The Secret has “a very powerful modeling effect” to induce a child that “has not been abused” to admit a secret of child abuse.⁴ He also opined that Ms. Tucker’s use of dolls in the video “is a very powerful modeling effect.” His evaluation and criticism of the videotaped interview further included comments about B’s physical appearance and word selection.

C. The government expert in rebuttal Dr. (Major) Blane Crandall, a military staff physician with a background in obstetrics and gynecology, family practice, and child sexual abuse examination, testified in rebuttal as a government expert witness in family practice. At the request of the legal office, Dr. Crandall examined B on February 2, 1989. The doctor measured her vaginal opening at 9 millimeters, which he opined was greater than the 4 to 5 millimeters “normally expect[ed]” in a girl B’s age. On cross-examination, Dr. Crandall conceded that he was not familiar with “current literature” written by specific authors. In response to questions by the judge, Dr. Crandall opined that he was “ninety to ninety-five percent” certain that “there was vaginal penetration” of B, but he could not state the cause.

Ill

DISCUSSION

At the outset, two preliminary observations are appropriate. First, it has been recognized that child sexual abuse cases are among the most difficult to prosecute and to defend. This is evident to advocates and to courts facing issues arising from the competing societal interest in protecting young children from the trauma of testifying against an abusive parent or adult and an accused’s Sixth Amendment right to confront and to cross-examine witnesses.⁵ Use of expert testimony in these child sexual abuse cases is another “legal thicket,” for the expert testimony is extremely complex and often novel.⁶ In many respects, child abuse litigation is a new frontier with a plethora of cases in all jurisdictions addressing provocative issues. See generally McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or.L.Rev. 19 (1987).

Second, the single granted issue in this case invites review of several of the military judge’s rulings regarding expert testimony. It is critical at the threshold of this analysis to appreciate that the precise issue here is whether any of the following evidence was admissible: the prosecution psychologist’s expert opinion of a family situation presenting the “profile” of child sexual abuse; the defense psychologist’s expert opinion that the accused did not present the profile of a pedophile; the defense psychologist’s expert discussion of the “literature in the field” and “studies” regarding normal prepubertal vagina size; and the social worker’s video interview of B to permit the members to evaluate alleged government manipulation of her.

What is not at issue is whether any of the following evidence was admissible: evidence of sexual abuse accommodation syndrome; test results of the MMPI; the defense psychologist’s expert opinion regarding normal prepubertal vagina size; and B’s statements during the social worker’s videotaped interview as substantive evidence to prove the truth of B’s recantation and contradictions. These evidentiary matters were not raised at trial or on appeal before this Court. They are waived, and we need not address them. Mil.R.Evid. 103. In identifying and eliminating these issues, we better focus on the four narrow and specific evidentiary matters presented, and we address them seriatim.

A. Admission of the Prosecution’s Profile Evidence

Appellant contends the military judge erred by excluding the defense psychologist’s expert opinion that the accused did not present the profile of a pedophile. This issue arises only because the military judge first admitted the prosecution psychologist’s expert opinion of a family situation presenting the “profile” of child sexual abuse. Appellant argues the defense evidence is proper rebuttal. Recognizing this relationship between the government and defense evidence (admission of the prosecution evidence is the predicate for the claimed admission of the defense rebuttal), we are required first to evaluate admissibility of the prosecution’s profile evidence.

Liberal standards for admissibility of expert testimony have been codified. Mil. R.Evid. 702-05.⁷ Trial courts have seen, therefore, a veritable explosion in use of expert testimony. Our Court is concerned with the so-called “battle of the experts,” which is a waste of time, unnecessary, or confusing.⁸ MiLR.Evid. 403 is the appropriate tool for a military judge to use to handle this problem.⁹

MiLR.Evid. 702-705 and 403 operate to establish a simple four-part test for admissibility of expert testimony: (1) Was the witness “qualified to testify as an expert”? (2) Was the testimony “within the limits of [the expert’s] expertise”? (3) Was the “expert opinion based on a sufficient factual basis to make it relevant”?, and (4) “Does the danger of unfair prejudice created by the testimony outweigh its probative value?” United States v. Stinson, 34 MJ 233, 238 (CMA 1992); United States v. Neeley, 25 MJ 105, 107 (CMA 1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988).

We assume — without deciding — that the first three factors are met with regard to the prosecution psychologist Dr. Smith’s expert opinion of a family situation presenting the “profile” of child sexual abuse. However, we conclude that the military judge erred in permitting expert opinion on the issue of appellant’s guilt or innocence, for “the danger of unfair prejudice” greatly “outweighed” “its probative value.” MiLR.Evid. 403.

We are not concerned here with scientific evidence that federal and state courts have admitted into evidence, such as blood tests, ballistics analysis, or fingerprint analysis. See generally E. Imwinkelried, P. Giannelli, F. Gilligan, & F. Lederer, Courtroom Criminal Evidence § 605 at 119 (1987). The prosecution in this case offered a characteristic “profile” to present appellant’s family situation as ripe for “child sexual abuse.” In effect, this profile purported to present the characteristics of a family that included a child sexual abuser.

Generally, use of any characteristic “profile” as evidence of guilt or innocence in criminal trials is improper. This Court previously has held that it was error for the Government to permit a counselor in the Navy’s Family Advocacy Program to testify about a “profile of the ‘usual’ sexual child abuser.” United States v. August, 21 MJ 363, 364 (CMA 1986). We have reaffirmed this holding and stated that it is error to admit testimony that an appellant’s psychological profile was consistent with that of a person who sexually abused children. United States v. Garcia, 25 MJ 159 (CMA 1987). The holding of these cases is rooted in MiLR.Evid. 404(a)(1) that precludes the prosecution from introducing character evidence of an accused who has not put his character at issue. We agree with Judge Cox’s analysis in August that explicitly rejected use of a profile “to show that it was more likely than not that appellant sexually abused the victim.” 21 MJ at 364.

Our holding in August is consistent with the case law in both federal and state courts that has severely criticized attempts to introduce “profile” evidence to establish either guilt or innocence.¹⁰ Our system of justice is a trial on the facts, not a litmus-paper test for conformity with any set of characteristics, factors, or circumstances. In rejecting the use of another type of criminal profile (drug-courier profile) as evidence of guilt in criminal cases, the Eleventh Circuit has perceptively pointed out:

Drug courier profiles are inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers____ Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officials in investigating criminal activity. Drug courier profile evidence is nothing more than the opinion of those officers conducting the investigation____ [W]e denounce the use of this type of evidence as substantive evidence of a defendant’s innocence or guilt.

United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (1983). We find this reasoning persuasive in evaluating admissibility of the Government’s “profile” offered in the present case, and we also “denounce the use of this type of evidence as substantive evidence” of appellant’s guilt, just as we did in August.

This is not to say that “profile” evidence is never admissible. On the contrary, “profile” evidence is admissible — but only in narrow and limited circumstances. First, it is admissible as purely background material to explain sanity issues. See United States v. Neeley, 25 MJ 105 (CMA 1987). Second, it is admissible as an investigative tool to establish reasonable suspicion. See United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Third, it may be admitted in rebuttal when a party “opens the door” by introducing potentially misleading testimony. United States v. Wilson, 930 F.2d 616 (8th Cir. 1991); United States v. Beltran-Rios, 878 F.2d 1208 (9th Cir.1989).

Applying these principles to the present facts, we conclude that the military judge erred in permitting trial counsel, over the objection of defense counsel, to present expert opinion regarding a profile of child sexual abuse. Here, as in August, an expert presented a “profile” of criminal conduct to prove appellant’s guilt.¹¹ The prosecution established that appellant and his family fit the profile because appellant was a stepfather who did not have a “good” marital sexual relationship. Trial counsel then used Dr. Smith to opine that this sexual dysfunction would be a significant factor “increas[ing] the risk” of child sexual abuse in the family.

Throughout this case, the prosecutor orchestrated this “profile” evidence to persuade the members that appellant fit the profile and was a child molester. In his opening statement, trial counsel stated:

There was some amount of trouble in the home, in the family, the marriage. There were problems between Mrs. Banks and the accused. There was sexual dysfunction as the sociologists and psychologists like to say.

In closing argument on the merits, trial counsel again revisited this matter:

Sexual dysfunction in the family? The evidence has been presented, and you heard Mary Fran Jackson talk about that, that both — that when she received a history from the family members there was a history of long-term dysfunction sexually between Sergeant Banks and Patricia [appellant’s wife]. Consistent with what you would expect to find in families where the dad is abusing the child.

But we’re not trying to prove our case that way. We’re not trying to say that because all the facts are there that therefore B was raped by her dad. We’re not saying that; not at all____

Trial counsel’s statement that “we’re not trying to prove our case that way” is disingenuous. The last paragraph of this argument is a futile and transparent attempt to purge the taint of what he had just done. His argument that the “history of long-term [marital] dysfunction sexually” was “[cjonsistent with what you would expect to find in families where the dad is abusing the child ” is an implicit reference to the sexual abuse “profile” Dr. Smith had presented.

Trial counsel’s argument belies any assertion that this profile was offered for any other purpose than to prove appellant’s guilt. In fact, trial counsel never argued the profile or risk-factors evidence for any other purpose, such as to support the credibility of the alleged victim or to explain her admitted unusual behavior. The prosecution’s strategy of presenting a “profile” and pursuing this deductive scheme of reasoning and argument to prove that appellant is a child sexual abuser was impermissible. See United States v. August and United States v. Garcia, both supra, see 36 MJ at 161-162.

The military judge fully understood that profile evidence is inadmissible. However, he mistakenly admitted this profile evidence because he erroneously assumed that the proffered profile involved only family traits in general and not traits of the accused. Inadmissible profile evidence does not merely address a profile where the factors relate only to a “character trait” of the accused. The factors in the profile may be any information or data so as to place appellant in an alleged “group” of persons who have committed offenses in the past.

The argument usually follows that a defendant who shares common characteristics of the group is likely to have acted the same with respect to the crime charged. For example in August, two elements of the profile were not “character traits” of the accused — a person’s pay grade (E-6) and time in service (“about fifteen years or more in”). Nonetheless, we concluded that presentation of the “profile” was impermissible. Therefore, in the present case, the military judge reasoned incorrectly that exclusion of profile evidence concerned only a profile based on “character traits of the accused.” ¹²

In evaluating the significance of this error, we acknowledge that the military judge permitted Dr. Underwager to challenge the expert testimony of Dr. Smith regarding this “profile” evidence. However, we do not consider that this rebuttal evidence fully purged the taint of the inadmissible “profile” evidence.

Also we have considered the “generality” of this “profile” in that the risk factors were broadly defined. United States v. August, supra at 365 (Everett, C.J., concurring). In essence, the Government’s “profile” of a family ripe for child sexual abuse was one where there is no normal sexual relationship between the parents and where there is a stepfather in the family.

Concededly, these two factors, outside of the context of this trial, appear to be of dubious value to prove the offenses of rape and sodomy. However, we do not evaluate the impact of this profile evidence in a vacuum. Instead, we evaluate prejudice regarding the profile in this case in light of the Government’s earlier-quoted reliance on the “profile” to prove its case.

We conclude that the psychological “profile” evidence should never have been introduced and presented to the members for their consideration. We do not take issue with trial counsel’s attempt to establish or to argue relevant adjudicative facts — for example to prove appellant’s alleged marital sexual dysfunction to establish a motive for these offenses. We find error, however, in trial counsel’s use of expert opinion to proffer to the members a characteristic “profile” of child sexual abuse and then reliance on this “profile” to bolster the Government’s case to establish appellant’s guilt. This error is compounded by the military judge's instructing the members to consider “the factors which increase the probability of sexual abuse in the family.” ¹³

B. Exclusion of the Defense Expert Opinion Regarding Pedophile Profile Evidence

Our reasoning regarding inadmissibility of the government “profile” evidence is equally applicable to our review of the military judge’s excluding Dr. Underwager’s expert opinion. We can, therefore, quickly resolve this issue.

To rebut the prosecution’s expert evidence that the accused’s family situation presented the “profile[]” of “child sexual abuse,” the defense offered Dr. Underwager’s opinion, based on the results of the MMPI, that appellant did not present the profile of a pedophile. We have considered the possibility that the evidence may have been admissible in rebuttal once the Government introduced “profile[J” evidence and thereby had “opened the door” to this line of inquiry. Federal courts have permitted the Government to use “criminal profile testimony” to rebut potentially misleading testimony.¹⁴ If a party attempts to prove its case by “profile” evidence, the military judge has the discretion to permit the opposing party to respond with evidence when the opponent “opens the door.” ¹⁵ However, here this evidence was not admissible in rebuttal, for defense counsel failed to establish that Dr. Under-wager’s expert opinion rested on a reliable basis.

Mil.R.Evid. 703 states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert, at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

(Emphasis added.) The Editorial Comment in Military Rules of Evidence Manual, supra at 738, advises that reliability of information with experts in the particular field is the test for determining a proper basis for expert opinion testimony. We will, therefore, examine appellant’s offer of proof to determine if he demonstrated a reliable basis for Dr. Underwager’s novel expert opinion.¹⁶

In United States v. Gipson, 24 MJ 246 (CMA 1987), addressing the reliability of scientific evidence, this Court permitted the proponent of scientific evidence to rely on both legal precedent where similar evidence had been admitted and scientific acceptance to establish the reliability of evidence. Evaluating the proffered opinion in light of these principles, we conclude that there was not a sufficient offer of proof to establish the reliability of the defense-proffered evidence.

Both federal and state courts have almost unanimously rejected opinion evidence of the type tendered by appellant.¹⁷ Even more significant, there was no showing here that expert opinion regarding these matters was generally accepted by psychiatrists, psychologists, or others in the medical community. On the contrary, the record presents a conflict of expert opinion on whether the MMPI in and of itself was determinative to show pedophile traits.¹⁸ Notwithstanding Dr. Underwager’s presentation of the MMPI test in general as “the most valid and reliable assessment device available,” there is credible expert opinion that the MMPI is not a reliable tool to predict pedophilia in particular.¹⁹

We are also especially concerned about the accuracy of the MMPI to identify a child molester. There is nothing here to demonstrate how often the test correctly identifies what it purports to evaluate or the margin of error in the results. See United States v. Gipson, supra. Equally important, Dr. Underwager made no explanation of the significance of his findings. He did not explain how closely appellant’s responses matched a profile on which he based his expert opinion — whether appellant fit squarely in a standard category or whether the psychological evaluation was more tentative. Moreover, Dr. Underwager provided no information about the administration of this test, although the record presents a dispute concerning the unexplained circumstances surrounding administration of the examination.

In sum, defense counsel failed to elicit a satisfactory explanation from Dr. Under-wager or to introduce legal precedent, scientific evidence, or technical literature as part of the offer of proof that this MMPI profile evidence was reliable as the basis of Dr. Underwager’s proffered opinion. Our holding on the inadmissibility of the defense profile evidence is a narrow one— here defense counsel failed to establish a reliable factual basis for the proffered expert opinion of Dr. Underwager to identify a pedophile based on a post-allegation MMPI. See Mil.R.Evid. 703; United States v. Stinson, 34 MJ 233 (CMA 1992). Therefore, the military judge was within his discretion to exclude it, as its probative value was outweighed by the danger of confusing the issues, misleading the court members, or wasting time. Mil.R.Evid. 403. See State v. Miller, 709 P.2d 350 (Utah 1985).

C. and D. Exclusion of the defense psychologist’s discussion of the “literature in the field” and “studies” regarding normal prepubertal vagina size, and exclusion of the social worker’s videotaped interview of the alleged victim

Here again we recognize the explicit codal provisions mandating the broad discretion of the military judge in controlling expert testimony. Mil.R.Evid. 702-05. Notwithstanding these provisions, we conclude here that the military judge erred in excluding critical defense evidence. Our ruling is predicated on the conclusion that this excluded evidence was proper rebuttal evidence.

We have stated in a whole series of cases: “It is well settled that the function of rebuttal evidence is to explain, repel, counteract or disprove the evidence introduced by the opposing party.” United States v. Hallum, 31 MJ 254, 255 (CMA 1990); United States v. Cleveland, 29 MJ 361, 363 (CMA 1990); United States v. Wirth, 18 MJ 214, 218 (CMA 1984); United States v. Strong, 17 MJ 263, 266 (CMA 1984), all quoting or citing United States v. Shaw, 9 USCMA 267, 271, 26 CMR 47, 51 (1958) (Ferguson, J., dissenting). The scope of rebuttal is defined by evidence introduced by the other party. See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); United States v. Baldwin, 17 USCMA 72, 37 CMR 336 (1967); United States v. Sellers, 12 USC-MA 262, 30 CMR 262 (1961).

The record unequivocally establishes Dr. Underwager as an expert witness. The defense presented Dr. Underwager “as an expert in the following areas: clinical psychology, therapy, child development, child sexual abuse, and as a scientist.”²⁰ After cross-examining Dr. Underwager as to his qualifications for seven pages in the record, the trial counsel did not object to the court’s recognizing Dr. Underwager in any of these areas.

The military judge precluded Dr. Under-wager from testifying as to the “literature in the field” and “studies” regarding normal prepubertal vagina size.²¹ The defense offered this expert testimony to rebut the prosecution’s expert evidence that “references,” “reference material,” “various pediatric journals for reference articles,” and “reference works” corroborate the prosecution witnesses’ testimony regarding normal prepubertal vagina size. The government pediatrician, Dr. Richardson, in the prosecution’s case-in-chief and in responses during cross-examination had based her opinion about normal prepubertal vagina size exactly on this sort of information.

Considering that the military judge exercised his discretion to permit the basis to support the expert testimony of Dr. Richardson, the defense was entitled to use Dr. Underwager to challenge this information. This ruling of the military judge continued to work to the disadvantage of the defense during trial counsel’s cross-examination of Dr. Underwager. In one line of cross-examination, trial counsel questioned Dr. Underwager about physical evidence of penetration corroborating sexual abuse, but Dr. Underwager was unable to develop his challenge to the scientific reliability of data concerning “normal genitalia.”

Dr. Underwager’s testimony regarding this material was not to establish a specific measurement for a normal prepubertal vagina, but to attack the methodology and scientific basis for this reference material. Moreover, the testimony of Dr. Smith, the government psychologist, about “ways to validate ... allegations of sexual abuse” identified physical evidence such as “trauma to the ... vagina” and an unusual dilation “of ... the vaginal canal ... that would tend to enhance the credibility of the female victim.” Although Dr. Smith did not testify what constitutes an unusual dilation, his reference to this subject matter establishes it within the knowledge of experts in child sexual abuse and therefore a proper matter for Dr. Underwager’s testimony. Considering Dr. Richardson’s reliance on “references” and Dr. Underwager’s knowledge regarding this subject matter, Dr. Underwager’s discussion of literature was proper defense rebuttal.

Normal prepubertal vagina size was a critical issue in this case. The Government used two medical experts in its case-in-chief and one medical expert in rebuttal to testify about this specific matter. The defense challenged the medical authority and methodology to support the conclusions of the government experts.²² The relevance of the defense-proffered evidence is unquestionable, so the defense had a right to attack the scientific bases for these expert opinions. See generally Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985).

In view of the above circumstances, we conclude that the military judge erred as a matter of law when he refused to admit the proffered defense evidence solely on the basis that Doctor Underwager was not a medical doctor. See generally United States v. Crosby, 713 F.2d 1066, 1077 (5th Cir.), cert. denied, 464 U.S. 1001, 104 S.Ct. 506, 78 L.Ed.2d 696 (1983). The defense did not call this witness as a medical expert who would testify as to the physical condition of B’s vagina and the probable cause thereof. See People v. Byrd, 206 Ill.App.3d 996, 151 Ill.Dec. 905, 910, 565 N.E.2d 176, 181 (1990); State v. Stanley, 310 N.C. 353, 312 S.E.2d 482, 488-89 (1984); State v. Starnes, 308 N.C. 720, 304 S.E.2d 226, 233-34 (1983). Instead, he was called for the limited purpose of evidencing to the members the past and current state of the studies relied on by medical doctors and other professionals in the detection of child abuse. As the government expert had relied on “reference” authority to bolster her expert opinion testimony, Dr. Underwager’s contradiction and discussion of this authority was certainly proper. See 3A Wigmore, Evidence § 992(2) at 927 (Chadbourn rev. 1970).

We further note that Mil.R.Evid. 702 does not provide that only persons with medical degrees can provide expert testimony on the physical condition of the human body and its causes. The standard provided in Mil.R.Evid. 702 is that a witness providing expert testimony be “qualified ... by knowledge, skill, experience, training, or education” and that the proffered testimony “will assist the trier of fact.” See United States v. Jones, 26 MJ 197, 200 (CMA 1988); United States v. Jackson, 22 MJ 604, 607 (ACMR 1986). In this regard, the defense witness, Doctor Underwager, was qualified as an expert in clinical psychology, therapy, child development, child sexual abuse and as a scientist without objection by the prosecution. 36 MJ at 158. Also, the defense established in its proffer that Doctor Underwager, pertinent to his expertise noted above, had a specialized knowledge of the studies of “vaginal openings” which far exceeded those of the testifying medical doctors. Accordingly, resort to this source of specialized knowledge was not barred by any inflexible, medical-doctor rule.

Our concern about the defense’s opportunity to rebut the prosecution’s case also pertains to the military judge’s excluding the social worker’s videotaped interview of the alleged victim. To rebut the prosecution evidence that corroborated B’s credibility, the defense offered this videotape to support its position that manipulation of the child and improper interview techniques tainted B’s testimony. The defense attempted to admit the videotape to contradict Ms. Tucker’s testimony “that she asked open ended questions, non-suggestive, non-threatening environment.” The defense sought

to have Dr. Underwager review the tape and be able to point out to the court members just what types of actions by Mrs. Tucker are consistent with the defense's] theory that the victim has been given certain cues, has learned a certain behavior; that in fact she has had her story bolstered, not bolstered but solidified by the type of questioning and interrogation conducted by the Government and by the private social workers and psychologists.

We faced a similar situation in United States v. Jones, 26 MJ 197 (CMA 1988). There, “[t]he central issue ... was the identity of the person who had perpetrated the assault.” We held that, upon a defense request, a videotape of the victim’s conversation with an expert witness was admissible to allow “the members to consider the degree to which the identification of appellant had been suggested to the victim.” 26 MJ at 200. We concluded that “the military judge erred in denying defense counsel the opportunity to test the witness’ testimony by playing the tape for the members.” Id. at 200-01.

While in Jones the defense sought to have the members rely on their own viewing of the videotape to evaluate the witness’ testimony, in the present case the defense attempted to have an expert, Dr. Underwager, testify using the videotape to explain improper influence on the victim. Although this defense use of the videotape is different from that in Jones, the difference is not significant.

Moreover, this is not a situation where appellant attempted to use the videotape to smuggle his own testimony before the members without subjecting himself to the crucible of cross-examination. Cf. United States v. Stark, 24 MJ 381 (CMA 1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 750, 98 L.Ed.2d 763 (1988). Here it was essential for the members to see the interview process in order for them to be able to understand and to evaluate the defense theory of the case. Additionally, the defense expert should have been permitted to use the videotape in his testimony to establish his points. See also United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir.), cert. denied, 471 U.S. 1139, 105 S.Ct. 2684, 86 L.Ed.2d 701 (1985); United States v. Tornabene, 687 F.2d 312 (9th Cir.1982).²³

We recognize that Dr. Underwager was permitted to testify about the videotape. However, the military judge instructed Dr. Underwager to “limit” his “response to what you saw with the effects on the child and the attempts by the individual without giving specific examples.” This ruling further diminished the defense opportunity to use the videotape to challenge the prosecution’s case. How could the expert support his conclusions “without giving specific examples”? See United States v. Jones, supra.

The fundamental defense position at trial was that B “learned a certain behavior ... [and was] encouraged, consciously or unconsciously, to develop a tale____” The defense argued that Ms. Tucker or Ms. Jackson gave B “a cue or some type of instruction,” “encouragement,” and “tried to reinforce” B who “was nothing more really than a puppet.” Trial counsel countered that “[t]here was no suggestibility involved.” As the alleged manipulation of B was such a hotly contested issue, we conclude that Dr. Underwager’s testimony was not an adequate substitute for viewing the videotape. Ironically, trial counsel made a poignant appeal to the members to remember “what we all saw” in the “form of non-verbal communication” in his argument to bolster the prosecution’s case. This cogent argument for the power of “non-verbal communication” supports our finding of error in the exclusion of the defense videotape evidence.

Finally, the military judge’s assertion that the videotaped interview was not representative of the victim’s pretrial interviews did not justify its exclusion at appellant’s court-martial. This interview, although filmed by the Army Criminal Investigation Command for purposes of an Article 32 investigation, was nonetheless conducted by a state social worker. She testified that things were done “differently” in the sense that dolls were used, but she did not testify that this interview technique or any others employed were suggestive or leading. Moreover, regardless of the representative character of this interview, it contained the victim’s previous recantation of her accusations against her father and constituted an integral step leading to the alleged victim’s testimony at trial. Thus, the videotape was offered to contradict or to complete Ms. Tucker’s testimony about the videotaped interview.

A final matter that we have considered in evaluating the military judge’s exclusion of the videotape was the judge’s admitting, over defense objection, as a prosecution exhibit, the 24-page book, The Secret. This book repeated the Government’s case. Written as a “powerful tool” for the clinical setting, it was also powerful evidence to support the prosecution theory. The military judge’s admitting The Secret as a prosecution exhibit is irreconcilable with his excluding the videotape. If the members were to consider evidence that could have influenced the testimony of the child, the judge should not have limited it to consideration of the book, “The Secret.” The court members should have been permitted to observe how Ms. Tucker used the book in the videotaped interview.

We have viewed this videotape and conclude that it was admissible, as in Jones, to afford the defense the opportunity to test the witness’ testimony. On the video B provides the following arguably exculpatory evidence: (1) She denied that her father “touched her private parts”; (2) she stated that she does not remember what she said about a “touching”; (3) after demonstrating with dolls the act of sexual relations, she denied that anything like this had happened to B; and (4) she denied having a conversation about a “secret.” Considering B’s denials and recantations on the videotape, we do not view this as evidence that only substantiates her allegations.

However, we concede that, when seen on the videotape, even these statements could be construed as inculpating appellant. But the legal question before us is not which of these theories is more worthy of belief but, rather, whether appellant had a fair trial when evidence in support of his theory was improperly excluded. Our concern is that the members have the opportunity to evaluate the evidence supporting the contentions of the contending experts and parties. We conclude here, as in Jones, that the ruling of the military judge denied the defense the opportunity to test the Government’s case.

IV

PREJUDICE

This leaves us with the question of prejudice. Not every exclusion of material evidence is per se reversible error. United States v. Weeks, 20 MJ 22, 25 (CMA 1985). Each case must be evaluated by comparing the whole record to the evidence excluded. In Weeks we adopted a test for determining specific prejudice when considering evidentiary questions. This test weighs the relative strength of the Government’s case against “the defense’s theory of the case”; “the materiality” of the evidence; and “the quality” of the excluded evidence.

This was a contested case where appellant consistently denied the allegations. There were no independent witnesses to the alleged offenses. B was impeached with her contradictory and inconsistent statements, and the defense presented evidence that B was “not always” honest. Finally, there was an issue of another man’s possibly molesting B.

This case presented the classic “battle of the experts,” with the Government using six experts to corroborate B’s testimony and the defense using one expert to rebut the Government’s case and to attack B’s story. Significantly the prosecution’s expert evidence included testimony about three critical matters: (1) characteristic “profile” evidence to establish appellant’s guilt; (2) prepubertal vaginal opening size supported by “references” to establish the authority of this opinion; and (3) B’s credibility and testimony free from pressure and improper influence.

The military judge erred by admitting improper prosecution evidence regarding profile while excluding essential defense evidence regarding each of these matters. The military judge erroneously admitted the prosecution’s characteristic profile evidence, and trial counsel’s impermissible exploitation of this inadmissible evidence permeated this trial. Also the military judge erroneously excluded defense evidence that challenged the “reference” authority for normal prepubertal vagina size and the videotape that arguably supports the defense position of improper manipulation of B. These latter two rulings erroneously limited the defense’s opportunity to challenge two significant thrusts of the prosecution’s case.

We hold, therefore, that this case “falls ... within the ambit of the doctrine of cumulative error — under which a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding.” United States v. Walters, 4 USCMA 617, 635, 16 CMR 191, 209 (1954). This Court will not lightly find reversible error in any case; however, we have been constrained on occasion to reverse a conviction because of the effect of cumulative errors found in the record of trial. E.g., United States v. Donohew, 18 USCMA 149, 39 CMR 149 (1969); United States v. Yerger, 1 USCMA 288, 3 CMR 22 (1952).²⁴

As we stated in Yerger, “[W]e ‘cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, ... ’ ” 1 USGMA at 290, 3 CMR at 24, quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). Because this case presents the situation where the cumulative errors denied appellant a fair trial, we are required to reverse the decision below. See Art. 59(a), UCMJ, 10 USC § 859(a).

V

DECISION

The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

Chief Judge SULLIVAN and Judge GIERKE concur. Judge COX dissents and may file an opinion at a later date. See 36 MJ at 171. Judge CRAWFORD dissents and will file an opinion at a later date. See 36 MJ at 178.

1 . Dr. Diana McCoy, a clinical psychologist, wrote The Secret to serve as a tool for clinicians working with victims of sexual abuse. This 24-page book presents the story of a young girl's trauma from child sexual abuse. The foreword of the book states:

The Secret is a powerful tool to help children who have been sexually abused to identify and resolve their feelings____ The five year old who hears Jana’s story will be able to identify with her feelings of confusion and responsibility and fear____

The prosecution did not offer this book into evidence during Miss Tucker's testimony. However, after the defense expert, Dr. Underwager, criticized use of this book, the military judge, over defense objection, admitted The Secret into evidence.

2 . Defense counsel questioned Dr. Underwager to establish the following: (1) Dr. Underwager reviewed the MMPI previously administered to appellant. (2) This test is "by far the most valid and reliable assessment device available, and ... 40 years of research demonstrate that. It’s much better than clinical judgment. It’s very solid information.” (3) There is ... significant research ... going back to 1954, on the MMPI responses [behavior patterns] of known pedophiles and known incest perpetrators.” By comparing the MMPI responses of any person to the MMPI responses of known child molesters, a psychologist can say whether a person "demonstrates the behavior patterns of’ a pedophile. "This doesn’t prove whether or not a person ... did it, but it certainly has an impact on the issue of the probability." Moreover, if a person does not demonstrate the behavior pattern of a pedophile, “the probability is much less" that the person is a pedophile. (4) Appellant’s MMPI results were "within normal image profile ... it’s not the kind of MMPI profile produced by known child molesters.”

Trial counsel made the following offer of proof to rebut Dr. Underwager’s testimony: (1) If Dr. Underwager were to testify, the Government would present Dr. Minetos, the psychologist who administered the test. Dr. Minetos "would express ... concern over the performance of the accused on that test,” but opine that appellant’s performance on the MMPI “would not be determinative on the issue of whether or not he abused his child.” (2) Additionally, Dr. Smith would state that using "this MMPI [to] diagnosfe] the accused would be indeterminate and ... inappropriate.” Based solely on the MMPI, he could not render an opinion on whether appellant abused his child.

3 . Defense counsel questioned Dr. Underwager to establish the following: (1) Dr. Underwager was "familiar with ... studies that have been conducted within the last five years concerning ... normal vagina sizes ... [of] prepubertal females.” These studies "include: Emens; 1986, Pecorny; 1987, and the ‘American Journal of Childhood Diseases,' John McCann; 1988____” (2) Pecorny observed "that the size of a vaginal orifice or the hymenal opening cannot be used by itself for any determination or any conclusion that penetration has occurred. The variability is simply too great.” (3) There is no support for “the statement in Hoffman's pediatrics text in 1954, that [a] hymenal opening of 4 millimeters was normal." (4) Dr. Underwager challenged the examination methods used in the McCann study and the Cantwell study group. (5) In response to the question, "[W]ould a finding of 9 millimeters or between 10 and 15 millimeters [of the introital opening (the external size of the vaginal orifice) ] be significant based upon [his] reading of those studies?[,]” Dr. Underwager answered in the negative but did not state what that significance would be.

4 . As already noted, the judge admitted the book, The Secret, into evidence over defense objection. See n. 1, supra.

5 . See, e.g., White v. Illinois, -U.S., -, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992); Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Idaho v. Wright, 497 U.S. 805, 110 , 111 L.Ed.2d 638 (1990); United States v. Romey, 32 MJ 180 (CMA 1990), cert. denied, — U.S.--, 112 S.Ct. 337, 116 L.Ed.2d 277 (1991); United States v. Ferdinand, 29 MJ 164 (CMA 1989), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990); Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523 (1988).

6 . See United States v. King, 35 MJ 337 (CMA 1992); United States v. Stinson, 34 MJ 233 (CMA 1992); United States v. Rhea, 33 MJ 413 (CMA 1991); United States v. Stark, 30 MJ 328 (CMA 1990).

7 . For example, Mil.R.Evid. 702 allows expert testimony whenever it "will assist the trier of fact.” See, e.g., United States v. Stinson and United States v. Stark, both supra; United States v. Hammond, 17 MJ 218 (CMA 1984). Mil. R.Evid. 703 "expands the bases upon which expert opinion may rest.” S. Saltzburg, L. Schinasi, & D. Schlueter [hereafter Saltzburg], Military Rules of Evidence Manual 738 (3d ed. 1991) (Editorial Comment); United States v. Hammond, supra. Also barriers to expert opinion, such as the ultimate-issue rule, have been abolished. Mil.R.Evid. 704; United States v. Hill-Dunning, 26 MJ 260 (CMA), cert. denied, 488 U.S. 967, 109 S.Ct. 494, 102 L.Ed.2d 531 (1988). Finally, in limited circumstances "the underlying facts or data” may be disclosed. Mil.R.Evid. 705; United States v. Jones, 26 MJ 197, 200 (CMA 1988).

8 . See, e.g., United States v. Partyka, 30 MJ 242 (CMA 1990); United States v. Neeley, 25 MJ 105 (CMA 1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988); United States v. Petersen, 24 MJ 283 (1987); United States v. Cameron, 21 MJ 59 (CMA 1985).

9 . United States v. Partyka and United States v. Neeley, both supra; Saltzburg, supra at 439 (Editorial Comment).

10 . United States v. Beltran-Rios, 878 F.2d 1208 (9th Cir.1989); United States v. Gillespie, 852 F.2d 475 (9th Cir.1988); United States v. Khan, 787 F.2d 28 (2d Cir.1986); United States v. Hernandez-Cuartas, 717 F.2d 552 (11th Cir.1983); United States v. Taylor, 716 F.2d 701 (9th Cir. 1983); State v. Percy, 146 Vt. 475, 507 A.2d 955 (1986); Sloan v. State, 70 Md.App. 630, 522 A.2d 1364 (1987).

11 . The government tactic was to use a simple syllogism (major premise, minor premise, and conclusion) to persuade the members that appellant was a child abuser. See generally Imwinkelried, The "Bases" of Expert Testimony: The Syllogistic Structure of Scientific Testimony, 67 N.C.L.Rev. 1 (1988). Through the expert testimony of Dr. Smith, the Government presented the major premise — families with the "profile” of the three identified risk factors present an increased risk of child sexual abuse. Through lay and expert testimony, the prosecution established the minor premise — appellant and his family fit the profile because appellant was a stepfather who did not have a "good" marital sexual relationship. This led to the conclusion that appellant was a child abuser — a conclusion argued by trial counsel based on the major and minor premises.

12 . We note that one of the “risk factors" (“there is a stepfather in the family”) in the presented profile did relate to this accused. While this risk factor is a family characteristic, it also is a characteristic of appellant — his position as stepfather.

13 . If the Government had offered the evidence for any of the narrow reasons set out earlier— some purpose other than to prove appellant's guilt as he fit the “profile” — a proper limiting instruction would have been necessary. No such instruction was given here. On the contrary, from opening statement through findings instructions, trial counsel exploited this impermissible “profile” evidence. The general rule excluding "profile" pertains in the present case, and none of the recognized exceptions to this rule justifies admission of this "profile” evidence.

14 . See, e.g., United States v. Beltran-Rios, 878 F.2d at 1213 (drug courier profile evidence admissible as rebuttal of defense claim defendant “was a poor man”); United States v. Khan, United States v. Hernandez-Cuartas, United States v. Taylor, all supra, see 36 MJ at 161 n.10.

15 . Our adversary system permits fighting "fire with fire” to ensure a fair trial. This includes permitting a party to introduce otherwise inadmissible but nonetheless reliable evidence if a party "opens the door” wide for rebuttal. See McCormick on Evidence § 57 at 229 (4th ed. 1992) (discussing "Fighting Fire With Fire: Inadmissible Evidence as Opening the Door”); 1 Wigmore, Evidence § 15 at 731 (Tillers rev. 1983) (discussing the doctrine of "curative admissibility”); see United States v. Shields, 20 MJ 174, 177 (CMA 1985) (Everett, C.J., concurring in the result); United States v. Haimson, 5 USC-MA 208, 224 n.2, 17 CMR 208, 224 n.2 (1954). Although we conclude here that the military judge was not required to permit the defense evidence in rebuttal, if this evidence had been admitted, we would be more reluctant to find prejudice to appellant’s case from admission of the prosecution's profile evidence.

16 . Mil.R.Evid. 103(a)(2) states:

Error may not be predicated upon a ruling which admits or excludes evidence unless the ruling materially prejudices a substantial right of a party, and

* * *

2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the military judge by offer or was apparent from the context within which questions were asked.

This Court will specifically rely on counsel’s offer of proof to "demonstrate the probative value of such evidence,” United States v. Elvine, 16 MJ 14, 16 (CMA 1983). See also United States v. Means, 24 MJ 160 (CMA 1987); United States v. Heatherly, 21 MJ 113 (CMA 1985).

17 . See, e.g., United States v. Gillespie, 852 F.2d 475 (9th Cir.1988); Pendleton v. Commonwealth, 685 S.W.2d 549, 553 (Ky.1985); State v. Hansen, 304 Or. 169, 176, 743 P.2d 157, 161 (1987); State v. Friedrich, 135 Wis.2d 1, 16-17, 398 N.W.2d 763, 770 (1987); People v. Watkins, 176 Mich.App. 428, 430, 440 N.W.2d 36, 37-38 (1989); State v. Roberts, 393 N.W.2d 385, 388 (Minn.App.1986); Williams v. State, 649 S.W.2d 693, 695-96 (Tex.App. 7 Dist.1983).

Taking a contrary view, the California Supreme Court has permitted such evidence. People v. Stoll, 49 Cal.3d 1136, 265 Cal.Rptr. 111, 127, 783 P.2d 698, 714 (1989). We note, however, that Stoll involved psychological evidence which did not include a profile, and the court's decision rested in large part on state common law and statutory law which specifically permits persons accused of lascivious acts to tender proof of sexual nondeviance. Id, at 1152-53, 265 Cal.Rptr. at 121, 783 P.2d at 707-08. See abo People v. Ruiz, 222 Cal.App.3d 1241, 1245-46, 272 Cal.Rptr. 368, 371-72 (1990) (construing Stoll narrowly, profile evidence held not admissible without showing of reliability on remand). While Ruiz admitted "psychological opinions based on personal examination and an analysis of accepted psychological tests, such as the MMPI and MCMI [Millón Clinical Multiaxial Inventory] ... as character evidence tending to show that an individual was or was not likely to have committed a particular act,” 222 Cal. App.3d at 1244, 272 Cal.Rptr. at 370, we read neither Ruiz nor Stoll to permit a psychologist to opine that the defendant did not have the psychological profile of a person suffering from pedophilia. However, we note that Ruiz was remanded to permit the defendant an opportunity to establish the reliability of this evidence.

18 . The MMPI test is frequently used for psychological personality testing in the United States. The MMPI test was developed in 1930 and has been modified a number of times. It consists of a total of 566 questions to which the subject answers "true” or “false.” Several different scores are computed arithmetically. From examining the answers to these items, a psychologist can determine four different validity scales and ten clinical scales, which include such items as depression and social introversion. D. Shuman, Psychiatric and Psychological Evidence 54-56 (1986). This testing, together with client interviews, provides the basis for psychological opinion. The argument for the reliability of the MMPI test rests entirely on the statistical correlation between given patterns of scores and known personality traits. See, e.g., D. Shuman, supra ch. 2; People v. Stoll, 265 Cal.Rptr. at 117—19, 783 P.2d at 704-06; People v. Ruiz, 222 Cal.App.3d at 1245, 272 Cal.Rptr. at 371. We recognize that the MMPI is generally accepted as helpful in aiding the psychological diagnosis. Our concern is that this record does not establish that the MMPI is "sensitive" to identify the pedophile or that appellant's MMPI is a reliable tool in evaluating him.

19 . “[T]here is no psychological test or device that reliably detects persons who have or will sexually abuse children. Thus, it is appropriate to conclude that, under the current state of scientific knowledge, there is no profile of a ‘typical’ child molester.” Myers, Bays, Becker, Berliner, Corwin, & Saywitz, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 1, 142 (1989). See abo J. Selkin, The Child Sexual Abuse Case in the Courtroom 323 (2d ed. 1991).

20 . After attending a Lutheran preparatory school and a Lutheran seminary, he obtained a Ph.D. in clinical psychology “with a medical minor” and study in "a collateral field in child development and child therapy” from the University of Minnesota. He is licensed in the State of Minnesota "as a consulting psychologist” and is "listed in the licensing procedure” as competent in “assessment diagnosis, teaching, research, [and] psychotherapy."

Dr. Underwager has written a number of books, including a recently titled book, “Accusations of Child Sexual Abuse," and another book, “The Real World of Child Abuse Interrogations." He has done research in the area of child interrogations with a report at the American Psychological Association Convention in 1986. A second area was research in “the use of the MMPI as an assessment device to get information about persons who are falsely accused and persons who are actual perpetrators of sexual abuse.” Dr. Underwager has analyzed “the kind of therapy ... provided for children," including analyzing the records of 435 children, 305 of whom were under 7 years of age, to determine what therapy is being given when there is a claim of child abuse. He has also published a paper on use of anatomically correct dolls with abused children. He has taken extra courses "in child development and child therapy under supervision." An integral part of his training was a medical minor.

21 . The defense offer of proof establishes Dr. Underwager’s knowledge of this material. We note that counsel could have strengthened his offer of proof by attaching the cited studies to the record as appellate exhibits to help educate the judge and assist on appellate review. However, this deficiency is not fatal.

22 . For example, the defense cross-examined Dr. Richardson about her knowledge of "references" that might support her testimony. Normal prepubertal vagina size was contested by both counsel during closing argument. We note that defense counsel argued to the members a part of Dr. Underwager’s testimony that was ruled inadmissible.

23 . We are troubled that the record does not reveal whether the judge personally viewed the videotape prior to ruling it inadmissible. Therefore, we cannot determine if he had an adequate foundation for denying appellant’s request to play the videotape. We gratuitously recommend that judges explicitly state on the record whether they have viewed videotapes or reviewed transcripts of them. Additionally, we encourage use of transcripts reported in Hsieh Hui Mei Chen as an aid in presenting evidence with audio dialogue and suggest that the military judge indicate if he or she has viewed or listened to the proffered evidence prior to ruling on its admissibility. Where, as in the present case, the audio is poor, a transcript could assist both the trier of fact and appellate courts.

24 . See abo United States v. Weber, 20 USCMA 82, 42 CMR 274 (1970); United States v. Scott, 19 USCMA 383, 41 CMR 383 (1970); United States v. Lowery, 19 USCMA 245, 41 CMR 245 (1970); United States v. Evans, 18 USCMA 3, 39 CMR 3 (1968); United States v. Williams, 12 USCMA 376, 30 CMR 376 (1961); United States v. Bigelow, 11 USCMA 527, 29 CMR 343 (1960); United States v. Mulvey, 10 USCMA 242, 27 CMR 316 (1959); United States v. Tucker, 9 USCMA 587, 26 CMR 367 (1958); United States v. Williams, 8 USCMA 328, 24 CMR 138 (1957); United States v. Smith, 3 USCMA 15, 11 CMR 15 (1953); United States v. Larry, 2 USCMA 415, 9 CMR 45 (1953); United States v. Perna, 1 USCMA 438, 4 CMR 30 (1952); United States v. James, 1 USCMA 379, 3 CMR 113 (1952).