Army Court of Criminal Appeals

In re United States v. Johnson, we concluded that the charging decision and the theory of guilt proffered at trial was not a Government bait-and-switch. But at the same time, it is reasonable--if not required--for trial defense counsel to litigate an alcohol-involved case as if it were charged under Article 120(b)(3)(A). Is not the prosecution's evidence the same for either charge and the defenses similar?

​So we come to United States v. Kornickey where the charge was under Article 120(b)(2)(A), "sexual assault by bodily harm without consent." And the defense rightly proceeded as if litigating an Article 120(b)(3)(A) charge. Clearly, alcohol was involved, and the evidence gave rise to concerns about the effect of alcohol on the victim's conduct and memory. The defense made many unsuccessful efforts throughout the trial to get expert assistance and witnesses. However, the military judge erred in quite a few ways, which resulted in the conviction being set aside.

Appellant presented evidence at the motion hearing that an expert consultant could, from a review of the case, calculate an approximate BAC for victim which would indicate she was at a level of intoxication consistent with experiencing some form of blackout and the negative impact that could have on the accuracy of victim's memory perception. It was an undisputed fact at the motion hearing, conceded by the government, that victim told CID SAs that she "blacked out" in her interview conducted approximately ten months after the alleged sexual assault.

The combination of victim's statement and the defense evidence presented by the experts demonstrated: (1) an expert was necessary to assess the victim's BAC range and her description of the sexual assault in light of the science of the impact of alcohol on the formation and accurate recall of memory; (2) each expert would use the evidence to assist the defense to prepare an alternate theory of the case than the government; and (3) the inability of the defense counsel to calculate a BAC or interpret scientific evidence explaining the impact of alcohol on the formation and recall of memory. The military judge abused her discretion in denying the defense with expert consultants to prepare their case.

[In fn. 3] We pause to note victim's intoxication and potential memory loss were corroborated at trial by the SANE[.]

The defense also moved to compel expert testimony. Yet the MJ ultimately "ruled the requested expert testimony ​was "irrelevant" in light of the victim's manifestation of non-consent."

In response, the government argued: (1) the charged offense of sexual assault by bodily harm without consent occurred when victim told appellant to stop and he did not, (2) victim remembered everything correctly, and (3) any expert assistance or testimony regarding victim's intoxication was not relevant as the government's charging theory was not based on her incapacitation and the alleged offense occurred while she was awake. During the same argument, the government, however, conceded to the military judge that victim's act of "blacking out [was] relevant .... [and t]he factfinder can hear all of that, but we ask that you not elevate this to an inaccessible scientific level without any nexus to a charged offense."

How would you decide so far?

The military judge denied appellant's motion for reconsideration but conceded "alcohol and its effects will likely play prominently in the presentation of evidence and in the weight the evidence is given by the factfinder." The military judge determined expert assistance was unnecessary to address the effects of alcohol because "lay panel members may draw upon their experience, understanding, and knowledge of the ways of the world to come to a conclusion as to whether [victim's] memory may have been affected by the use of alcohol, and if so, whether that alcohol use creates reasonable doubt in relation to the evidence presented." The military judge reasoned an expert could not contradict victim's testimony because "[a]n expert cannot provide any evidence of a factual nature concerning the events of the evening. Only the witnesses who were present can do that. The impeachment evidence the defense seeks can be obtained through cross-examination of [victim] and the other witnesses who were present."
​
[Much later]

The military judge's ruling suggesting an expert could not contradict the victim because they were not present is inconsistent with Military Rule of Evidence [Mil. R. Evid.] 703 which permits experts to base their testimony on facts of which the expert has been made aware. The experts were free to draw from the statements of witnesses in reaching their opinion and could testify to victim's BAC range based on the evidence of the alcohol she consumed that night.

But then came voir dire.

After group voir dire of the first wave of panel members, appellant again moved the court for reconsideration ​consultants, citing that seven of eight panel members responded they did not believe a person could potentially consent to sexual activity while experiencing a blackout.

Reconsideration denied.

Immediately after individual voir dire of the second wave of panel members, appellant yet again renewed his motion to compel expert consultants, citing that five of the previous eight potential panel members during individual voir dire appeared to misunderstand what a blackout was. The military judge stated that without the victim's testimony it was, at that point, uncertain whether she was, in fact, experiencing a blackout or just using the term colloquially.

In their response the government had argued--shifted to--

The government reiterated their prior argument that the appellant did not need an expert because the government case included no scientific evidence and their lay witness victim was going to testify she woke up to being sexually assaulted and told the appellant to stop.

Did they not then implicate the sleeping theory of prosecution?

During the government's direct examination, victim did not testify that she was experiencing a state of blackout, as she previously told CID Special Agents [SAs], but instead she testified she fell asleep watching a movie on her couch after drinking alcohol. She agreed she had previously told CID SAs that she was experiencing a blackout but remained adamant that actually meant she had fallen asleep. Defense counsel attempted to cross-examine her on her lack of memory for the period of time leading up to the sexual assault on the night of the offense, aswell as her understanding of the impact of alcohol on her memory.

The court does a thorough and useful analysis of expert consultants and witness requests. They point out how the parties and MJ consistently combined the two types of requests and thus confused the two different standards of review for consultants vice witnesses, how the MJ's ruling "which determined appellant engaged in sexual acts with victim after seeing and hearing her clear physical and verbal manifestation of non-consent appears to have accepted full-cloth victim's most favorable version of events, despite defense evidence challenging the validity of her memory and prior inconsistent statements, and ultimately had the effect of pre­determining appellant's guilt as a factual basis for denying him expert assistance." The court citied to several other MJ rulings that exhibited an "erroneous application of the law." And, how the MJ seemed ignore the voir dire answers of the prospective members. In their penultimate paragraph,

As the appellant's trial defense counsel adeptly stated, "The government's charging theory is the government's charging theory. But the defense should be allowed to present evidence regarding why that theory doesn't make sense." Instead, the military judge accepted the government's theory of the case and effectively limited the appellant to contesting his guilt only insofar as he did not deviate from the government's theory of the case.

"While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators." U. S. ex rel. Williams v. Twomey, 510 F. 2d 634, 640 (7th Cir.) cert denied sub. nom. Sielaff v. Williams, 423 U.S. 876 (1975). Here is the relevant information from United States v. Bunton.

We find that a finding of fact key to the military judge's denial of the Defense motion to compel the production of Dr. Juliet as an expert witness was clearly erroneous. Specifically, the military judge found:

It is very well known by adults in the United States that alcohol impairs one's memory. Even if someone has never consumed alcohol, the phenomenon of memory loss after excessive alcohol consumption is well represented in movies, television and social media. Such a phenomenon will not come as a shock to any of the members in this case. All of that will certainly be within the ken of the members to consider and evaluate as they decide the case.

While we take no issue with a finding that most adults in the United States have a general understanding that alcohol can impair one's memory, we sharply disagree with the military judge's additional finding of fact that it could be assumed the members who would sit in judgment of Appellant would, based on either their personal drinking experience or what they had seen in movies, on television, or on social media, have sufficient knowledge in a case such as this, where the complex phenomenon of an alcohol-induced blackout was it issue, to properly evaluate the ultimate issue. Indeed, the military judge's finding of fact that the members would possess sufficient lay knowledge so as to render expert testimony unnecessary was made in the face of a directly contrary—and unrebutted—assertion by Dr. Sierra, who said in her declaration:

In my experience of criminal trials and general courts[-]martial trials, jury members do not readily possess sufficient understanding of the science behind human memory to accurately apply their knowledge, in their deliberations. The science is not commonly known or understood correctly. The assumptions and myths which many people adopt, about memory, often appear to come from their own personal experience, which is not the same as the empirical findings of valid and reliable science and research. As a consequence of relying upon their limited knowledge and experience in the science of memory, it is entirely likely that the members would apply improper "lay persons'["] understanding during their deliberations. The members' conclusions would very likely be incorrect as a result of this faulty and/or inadequate understanding. This would appear to be prejudicial to the rights of the accused, who would likely wish to know that the members are not relying solely upon their personal experiences during deliberations, but rather, upon objective science which affords them education in areas they may not currently hold. I would be able to educate the members about this science through expert testimony.
. . . 
Additionally, in his testimony on the motion, Dr. Juliet alluded to the inadequacy of reliance on lay understanding of memory issues when he stated:

A lay person typically thinks that memory works a bit like a camera, where you see something and it's stored straight into long-term memory, kept to remember forever, but it's more of a reconstruction memory, subject to many errors and it's very complicated.

In the face of this evidence that undermined the military judge's finding of fact that members would have a sufficient basis of knowledge in this case to resolve issues concerning the effect of alcohol on memory (and particularly the concept of blackouts) based on personal experience or what they read in the news or watch for entertainment, there is no evidence in the record to support his finding of fact. We add our observation that even if a member generally has experience drinking alcohol, that by no means guarantees that he or she has experience with blackouts, either en bloc or fragmentary. For all of these reasons, we find the military judge's finding of fact on this issue was clearly erroneous.

United States v. Bunton, 82 M.J. 752, 782-83 (N-M Ct. Crim. App. 2022). Also, 

Counsel should also be mindful that witnesses may themselves have difficulty assessing with reasonable accuracy whether someone is drunk or not simply by observation. See Steve Rubenzir, Judging Intoxication. 29 Behav. Sci. Law. 116 (2011).

It appears to me that no one at trial understood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. Chief Judge Everett's concurring comments in United States v. Baran, 22 M.J. 265, 270 (1986) are directly applicable to this case:[The victim's] inability to recall what happened does not signify that at the time of intercourse she was unable to give consent. As this Court recognized long ago, alcohol may affect a person's memory and inhibitions without depriving him of volition; and proof of amnesia does not conclusively establish that someone was unconscious or lacked mental responsibility at the time of the events they have forgotten. Not only is it questionable that the Government has met its burden of establishing that the intercourse took place without the victim's consent, but also it would appear that, if she did not consent, [appellant] reasonably believed that she did, and the Government's evidence failed to disprove the mistake-of-fact defense which he asserted.

United States v. Gosney, 1999 CCA LEXIS 420 (A. Ct. Crim. App. February 25, 1999) (memorandum op.) aff’d No. 99-0515, 2000 CAAF LEXIS 692 (C.A.A.F. Jul. 6, 2000).