United States v. Savage

30 M.J. 863, 1990 CMR LEXIS 270, 1990 WL 48795
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMarch 30, 1990
DocketNMCM 88 4629
StatusPublished
Cited by3 cases

This text of 30 M.J. 863 (United States v. Savage) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Savage, 30 M.J. 863, 1990 CMR LEXIS 270, 1990 WL 48795 (usnmcmilrev 1990).

Opinion

RUBENS, Judge:

Contrary to his pleas, a general court-martial composed of officer and enlisted members convicted appellant of rape in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920. The members acquitted appellant of sexual harassment of a female servicemember under Article 93, UCMJ, 10 U.S.C. § 893, and sentenced him to confinement for eleven years, forfeiture of all pay and allowances, reduction to E-l, and a dishonorable discharge. The convening authority approved the findings and the sentence but suspended confinement in excess of five years for the period of the confinement plus one additional year. We have examined the record of trial, the two assignments of error and the Government’s response, and heard oral argument. The two assignments of error are: first, the evidence failed to prove beyond a reasonable doubt that appellant raped Mrs. Carol R; and second, the military judge erred in admitting the expert opinion testimony of Dr. Connie Best.

Proof Beyond a Reasonable Doubt

We are convinced beyond a reasonable doubt that appellant is guilty of the rape. Article 66(c), UCMJ, 10 U.S.C. § 866(c); see also United States v. Van Steenwyk, 21 M.J. 795, 812 (N.M.C.M.R.1985) (“In evaluating the evidence, [it] must be considered as a whole but it need not be free of inconsistency or conflict.”)

Expert Opinion Testimony

Dr. Best, a clinical psychologist, testified for the Government over strenuous objection that the victim, Mrs. R, suffered from Post Traumatic Stress Disorder (PTSD). Appellant argues that this evidence was improperly admitted because the issues to which this type of evidence is relevant were not raised. Appellant contends that PTSD evidence is admissible only for the limited purposes of rebutting a defense of consent or rebutting a defense which otherwise suggests that the victim’s behavior was inconsistent with that expected of a rape victim (i.e., absence of fresh complaint and victim’s unnatural calmness in recounting the incident). Appellant cites United States v. Carter, 26 M.J. 428 (C.M.A.1988) and United States v. Cox, 23 M.J. 808 (N.M.C.M.R.1986), for authority that PTSD is admissible only for. these limited purposes.

We begin our analysis by noting that the diagnostic evaluation of PTSD, [865]*865which in rape eases is often referred to as Rape Trauma Syndrome (RTS),1 was not developed by mental health professionals to determine if a rape occurred. Unlike fingerprints, blood tests, and ballistic tests, which were developed to assist in the investigation and detection of crime, this diagnostic evaluation was designed as a therapeutic tool to assist rape counselors in identifying, predicting, and treating emotional problems experienced by patients. People v. Hampton, 746 P.2d 947 (Colo.1987) (Erickson, J., dissenting) (majority holding that RTS was admissible to corroborate victim’s testimony, where testimony was not used to establish that crime had been committed, and defense counsel indicated that victim’s delay in reporting assault would be subject of serious attack). Therefore, we must ensure that PTSD diagnostic evaluation evidence is limited to the purposes that are consistent with its scientific principles.

In United States v. Snipes, 18 M.J. 172 (C.M.A.1984), Senior Judge Cook examined the expert opinion rules contained in the 700 series of the Military Rules of Evidence. When rules 701 through 705 are read in combination, he concluded that

[it] is inescapable that they are intended to broaden the admissibility of expert testimony, and that the essential limiting parameter is whether the testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.”

Snipes, at 178. Accordingly, once the proponent of the expert testimony has satisfied the threshold requirements that the expert witness is qualified to testify to matters that will assist the trier of fact, the expert testimony is admissible unless the expert expresses an opinion on a prohibited matter. Chief Judge Everett stated the problem succinctly:

I am concerned about the hazard that an expert witness’ testimony may be allowed to outrun the scope of his expertise. Experts may testify that a victim’s behavior — however unusual it might at first appear — actually is typical of those persons who have undergone a trauma like that which the victim claims to have endured. On the other hand, I have grave reservations about the admissibility of an expert’s opinion that the victim’s behavior after the alleged trauma demonstrates that [her] account of the trauma must be true. Certainly, I would not permit an expert to testify — as did one government witness in this case — that he believes the witness’ account of the trauma allegedly experienced.

Snipes, at 180 (Everett, C.J., concurring) (emphasis added).

We conclude from this authority that PTSD evidence is not limited to the specific, enumerated purposes alleged by appellant. Rather, an expert on PTSD may testify as to the psychological or emotional trauma that an alleged rape victim exhibits and whether the exhibited trauma is consistent with the history given by the victim just as a medical doctor may testify that certain physical trauma are consistent with the history given by an alleged rape victim. Thus, the cases cited by appellant are not an exhaustive list of the permissible uses of PTSD testimony but rather are illustrative of circumstances in which PTSD testimony has been admitted. Accordingly, once the requirements of Mil.R.Evid. 403 and 701 through 704 have been satisfied, the emphasis shifts to ensuring that the expert witness’ testimony does not outrun his expertise and that he does not offer an opinion which strays into the prohibited uses of PTSD testimony.

The prohibited uses of PTSD testimony are generally grouped into two areas: first, [866]*866testimony by the expert that the alleged victim of the rape is telling the truth concerning the rape; and second, testimony that the expert believes that the rape actually occurred. United States v. Cox, 23 M.J. 808 (N.M.C.M.R.1986); State v. Taylor, 663 S.W.2d 235 (Mo.1984);2 People v. Bledsoe, 36 Cal.3d 236, 681 P.2d 291, 203 Cal.Rptr. 450 (1984). See generally McCord, The Admissibility of Expert Testimony Regarding Rape Trauma Syndrome In Rape Prosecutions, 26 B.C.L. Rev. 1143 (1985). Courts have consistently held that opinions by experts that delve into these prohibited uses of PTSD testimony improperly invade the province of the members and, furthermore, only tend to confuse the members because the information adds nothing to the resolution of the issues in controversy. Snipes, at 179.

In this case, the military judge3 carefully instructed Dr. Best on the prohibited areas of PTSD testimony before she testified:

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30 M.J. 863, 1990 CMR LEXIS 270, 1990 WL 48795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-savage-usnmcmilrev-1990.