U.S. v. Brooks - U.S. Court of Appeals for the Armed Forces

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United States v. Brooks, No. 06-0060/AFUnited States v. Hays, 62 M.J. 158, 166 (C.A.A.F. 2005); UnitedStates v. Traum, 60 M.J. 226, 234-35 (C.A.A.F. 2004); UnitedStates v. Huberty, 53 M.J. 369, 373 (C.A.A.F. 2000); UnitedStates v. Banks, 36 M.J. 150, 161 (C.M.A. 1992). That is not tosay, however, that this credibility quantification testimony isor should be admissible. To the contrary, such evidenceimplicates the very concerns underlying the prohibition againsthuman lie detector testimony.We conclude that this testimony invaded the province of thecourt members to determine the credibility of the victim andviolated the limitations of M.R.E. 608 on admissible testimonyrelating to truthfulness. In Powell v. State, 527 A.2d 276(Del. 1987), the Delaware Supreme Court addressed an expert’sstatement that “ninety-nine percent of the alleged victimsinvolved in sexual abuse treatment programs in which she wasalso involved ‘have told the truth.’” Id. at 278. Even thoughthe defense elicited this statement during voir dire of theexpert, the Delaware court deemed the admission of thisstatement “plain error.” Id. at 279.The court found that this “percentage” testimony exceededthe permissible bounds of expert testimony permitted in childsexual abuse prosecutions. Id. While the expert “‘can informthe jury of characteristics in sexually abused children anddescribe the characteristics the alleged victim exhibits,’”10
United States v. Brooks, No. 06-0060/AFBirdsall, 47 M.J. at 409 (quoting United States v. Whitted, 11F.3d 782, 785 (8th Cir. 1993)), the expert should not bepermitted to give testimony that is the functional equivalent ofsaying that the victim in a given case is truthful or should bebelieved.Dr. Acklin testified that false allegations generally occurin these types of cases about five percent of the time.However, when “misinterpretation” was taken away, Dr. Acklinstated that figure drops even further. Based on divorce caseswhere false accusations were the most frequent, Dr. Acklin saidthat the rate was two to five percent. In this case, which doesnot involve divorce, Dr. Acklin’s statement suggested that therewas better than a ninety-eight percent probability that thevictim was telling the truth. This testimony provided amathematical statement approaching certainty about thereliability of the victim’s testimony. This testimony goesdirectly to the core issue of the victim’s credibility andtruthfulness. We conclude that admitting this testimony waserror, and that the error was plain and obvious. See Kasper, 58M.J. at 319; Powell, 527 A.2d at 280.Having concluded that there was error and that the errorwas plain or obvious, we must next determine whether Brooks hassustained his burden of demonstrating that the error materiallyprejudiced his substantial rights. Brooks argues that Dr.11
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U.S. v. Brooks - U.S. Court of Appeals for the Armed Forces

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