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

United States v. Brooks, No. 06-0060/AFwhere they tend to occur at the greatest frequency, isit’s two to five percent.There was neither an objection nor cautionary instruction givenwith respect to this testimony.In addition to standard instructions on determiningcredibility and expert witnesses, the military judge instructed:Only you, the members of the court determine thecredibility of the witnesses and what the fact[s] ofthis case are. No expert witness or other witness cantestify that the alleged victim’s account of whatoccurred is true or credible, that the expert believesthe alleged victim, or that a sexual encounteroccurred. To the extent that you believed that Dr.Acklin testified or implied that he believes thealleged victim, that a crime occurred, or that thealleged victim is credible, you may not consider thisas evidence that a crime occurred or that the allegedvictim is credible.DiscussionBrooks asserts that expert testimony concerning thepercentage of children who make false claims of sexual abuse wasimproper because it was “profile” evidence and because itsuggested the victim was credible. The Government responds thatthere was no improper “profile” evidence. Rather, thestatistical evidence about children lying about incidents ofsexual abuse was permissible in response to claims that thevictim had fabricated the allegations of abuse by Brooks.Alternatively, the Government asserts that any error inadmitting this evidence did not substantially affect the outcomeof the case.6