When the government called a former sexual assault response coordinator to the stand as an expert witness, it may have thought it was strengthening its case. The testimony of Fort Carson, Colorado former SARC Sarah Falk did, indeed, help convict Specialist Thomas C. Flesher of sexual assault. But because it violated evidentiary rules, it became the basis for reversal of the conviction on appeal.
In a general court-martial, Flesher was convicted of furnishing alcohol to a minor and committing aggravated sexual assault. He had testified that the encounter with the 16-year old girl was consensual, while she had testified otherwise. Both sides acknowledged that she didn’t cry out or alert her brother, who was sleeping twenty feet away.
In making its case in military court, the prosecution called Ms. Falk, who offered her expert opinion that victims rarely fight back, scream, or call for help. Ms. Falk had not examined the victim, however, and her testimony relied on what the United States Court of Appeals for the Armed Forces later described as “her own anecdotal experience.”
The defense objected to Ms. Falk’s testimony, claiming that it appeared to “lack any scientific methodology.” They asked for a so-called Daubert-hearing, an evidentiary proceeding to determine whether an expert’s testimony should be admitted. The military judge refused to grant one and allowed her to testify, while refusing to allow testimony from a defense expert witness.
In reviewing the military judge’s handling of the expert testimony, the CAAF found violations of military rules of evidence and case law. It concluded that the judge had abused his discretion and committed reversible error in such areas as “bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony.”
Because these mistakes had influenced the court-martial panel’s findings, the CAAF set aside Flesher’s conviction for sexual assault and seven-year prison sentence, pending a rehearing. The conviction for furnishing alcohol to a minor was upheld.
Defendants in a military court-martial need vigilant counsel to raise timely objections and ensure that all evidence is presented fairly. If you or someone you know needs experienced representation in military court, please contact Elkus, Sisson & Rosenstein at (303)567-7981 for a free consultation.
