Trial Practice Tip: Experts

The Army Court of Criminal Appeals has decided United States v. Livengood. He may of been living good prior to his misconduct, but now he's living good as a guest of a military confinement facility. This issue in his case relates to "confusional arousal disorder." He was convicted of molesting his biologically, teenage, mentally challenged daughter. The military judge excluded expert testimony about "a state in which a person, stimulated during sleep, is not awakened but becomes active, while having no control over their actions. The accused would be able to complete sex acts while having no general intent." Op. 2, no.2. The court found no error, but even if there was error, it was non-prejudicial. Perhaps his "Ever-Changing Explanations," in pre-trial statements helped along with other testimony (his wife was also subject to "Ever-Changing Explanations."

The military judge conducted a Houser review of the expert testimony. United States v. Houser, 36 M.J. 392 (C.M.A. 1993). (Cynics note -- this was the defense proffering the testimony, not the prosecution. Therefore the evidence was examined using Rule #1 (if it helps the defense or hurts the government it's not admissible).) Check out this article if you wonder whether the defense gets a fair shake with experts.
See, Risinger, Michael D., Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left in the Dock? 64 Albany L. Rev. 99 (2000).
Overall though the case is well worth the read as a reminder on how to challenge government "expert" testimony.