Sunday, November 23, 2003

Exclusion of expert testimony on child molesters affirmed

This post from Blog 702 discusses the unpublished opinion by the Fourth Circuit in U.S. v. Fitzgerald, a per curiam opinion for the panel of Judges Michael, Traxler, and King, which "upheld the exclusion of testimony from an FBI forensic psychologist, to the effect that child molesters commonly begin with innocuous behavior designed to gain the child's trust and later escalate to borderline behavior designed to test the child's receptivity," in a case "where a Junior ROTC instructor allegedly made sexual advances toward teenage girls in the JROTC program."

The opinion also deals with the admisssibility under Rule 413 of evidence about prior acts of sexual misconduct. "Evidence offered under Rule 413 must satisfy three elements: (1) the defendant must be accused of an offense of sexual assault as
defined by Rule 413(d); (2) the evidence must pertain to the defendant’s commission of another sexual assault offense; (3) and the evidence must be relevant," the Court explained, and "[i]n applying the second element of Rule 413, the court must determine whether a reasonable jury could conclude that the defendant committed a prior sexual assault offense."

Judge Traxler wrote a concurring opinion, saying basically that under the abuse of discretion standard, he was bound to agree with the exclusion of the government's expert, but "[i]f there had been a firmer foundation for this testimony, my vote would have been different."

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