Case Brief: United States v. Powers, 59 F.3d

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United States v. Powers, 59 F.3d—60

U.S Court of Appeals for the Fourth Circuit

1995

Chapter	12	Title	Opinion and Testimony - Lay and Expert
Page	567	Topic	Evidence must consist of scientific knowledge and it must assist the trier of facts
Quick Notes	Appellant was convicted of repeatedly raping his daughter over the course of ten months when she was nine and ten years old. The district court did not abuse its discretion in excluding the evidence that the appellant did not have a psychological profile of a fixated pedophile or his penile plethysmograph test results. Appellant failed to show this evidence met the Daubert standard. He did not prove either its relevancy or a valid scientific connection to the pertinent inquiry of whether he committed incest. Fed. R. Evid. 702 o Expert testimony explaining scientific evidence is admissible under Fed. R. Evid. 702 if it will assist the jury "to understand the evidence or determine a fact in issue." o When determining admissibility under Rule 702, a trial judge must ensure that all scientific testimony or evidence admitted is both relevant and reliable, and that its evidentiary reliability is based upon scientific validity. Daubert v. Merrell Dow Pharmaceuticals o The Daubert Court set forth a two-part test which must be met in order for such expert testimony to be properly admitted under the FRE: 1. The expert testimony must consist of "scientific knowledge" o -- that is, the testimony must be supported by appropriate validation; and 2. The evidence or testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue." Dorsey - Factors to evaluate the scientific validity (1) Whether the theory or technique used by the expert can be, and has been, tested; (2) Whether the theory or technique has been subjected to peer review and publication; (3) The known or potential rate of error of the method used; and (4) The degree of the method's or conclusion's acceptance within the relevant scientific community. How to supply the link o If Powers had offered supporting evidence showing that those who are not fixated pedophiles are less likely to commit incest abuse (the crime with which Powers was charged), Dr. Sciara's testimony might have been relevant. Court - Offered no evidence to link non-proclivity for pedophilia with a non-proclivity for incest abuse o However, Powers offered no evidence to link a non-proclivity for pedophilia with a non-proclivity for incest abuse, even after the district court gave Powers ample opportunity to introduce evidence showing the relevance of Dr. Sciara's testimony.
Book Name	Evidence: A Contemporary Approach. Sydney Beckman, Susan Crump, Fred Galves. ISBN: 978-0-314-19105-2.

Issue

o Whether the results of a penile plethysmograph test meet the scientific validity prong of Daubert? No.

o Whether the evidence will be helpful to the trier of fact? No

Procedure
Trial	o Appellant was convicted of aggravated sexual abuse of a minor in violation of 18 U.S.C.S. § 2241(c). He challenged the judgment from the United States District Court for the Western District of North Carolina. Appellant alleged that the district court erred in admitting evidence of his prior bad acts, in excluding evidence of the victim's sexual behavior, and in excluding testimony of appellant's expert witnesses
Appellant	o The judgment of conviction for aggravated sexual abuse of a minor was affirmed. Evidence of the appellant's prior bad acts was admissible, the victim's sexual behavior was irrelevant, and the testimony of appellant's expert witnesses was properly excluded.

Facts/Cases

Discussion

Key Phrases

Rules/Laws

Pl - United States

Df - Powers

Description

o Powers appeal conviction for aggravated sexual abuse of a minor.

o Challenges district courts evidentiary rulings.

Details

o Powers raped 9 year hold daughter daily for 10 month.

o Brandi told her brother.

o The brother told his mom.

o The mom kicked the dad out and divorced his ass.

o The mother reported the rapes to the authorities.

Indictment

o Ten counts of sexual acts with person under 12.

o Pled not guilty

o Jury convicted his ass on all 10 counts.

Powers argues - erred in excluding testimony

o The district court erred in excluding testimony of two experts who would have testified that Powers did not exhibit the characteristics of a fixated pedophile.

Fed. R. Evid. 702

o Expert testimony explaining scientific evidence is admissible under Fed. R. Evid. 702 if it will assist the jury "to understand the evidence or determine a fact in issue."

o When determining admissibility under Rule 702, a trial judge must ensure that all scientific testimony or evidence admitted is both relevant and reliable, and that its evidentiary reliability is based upon scientific validity.

Daubert v. Merrell Dow Pharmaceuticals

o The Daubert Court set forth a two-part test which must be met in order for such expert testimony to be properly admitted under the FRE:

1. The expert testimony must consist of "scientific knowledge"

o -- that is, the testimony must be supported by appropriate validation; and

2. The evidence or testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue."

Whether the results of a penile plethysmograph test meet the scientific validity prong of Daubert?

Powers argues - erred in excluding the testimony of a clinical psychologist

o The district court erred in excluding the testimony of a clinical psychologist who would have testified that the results of a penile plethysmograph test did not indicate that Powers exhibited pedophilic characteristics.

o The penile plethysmograph, or arousal, test measured Powers' sexual arousal in response to pictures of nude females of various age groups.

o The district court excluded this evidence because, in its opinion, the test did not satisfy the "scientific validity" prong of Daubert.

Dorsey - Factors to evaluate the scientific validity

(1) Whether the theory or technique used by the expert can be, and has been, tested;

(2) Whether the theory or technique has been subjected to peer review and publication;

(3) The known or potential rate of error of the method used; and

(4) The degree of the method's or conclusion's acceptance within the relevant scientific community.

Discussing Factors in this case

(1) First, the Government proffered evidence that the scientific literature addressing penile plethysmography does not regard the test as a valid diagnostic tool because, although useful for treatment of sex offenders, it has no accepted standards in the scientific community.

(2) Second, the Government also introduced evidence before the judge that a vast majority of incest offenders who do not admit their guilt, such as Powers, show a normal reaction to the test.

Government argues

o Such false negatives render the test unreliable.

o Powers failed to introduce any indicia, let alone a sufficient level, of reliability to rebut the Government's evidence.

Court - district court abused its discretion concerning scientific validity of the test.

o Accordingly, in light of extensive, unanswered evidence weighing against the scientific validity of the penile plethysmograph test, we cannot say that the district court abused its discretion.

Daubert second prong - Whether the evidence will be helpful to the trier of fact?

Powers argues - abused its discretion in excluding the testimony of Dr. Sciara

o The district court abused its discretion in excluding the testimony of Dr. Anthony Sciara. Dr. Sciara would have testified that Powers did not demonstrate the psychological profile of a fixated pedophile.

District Court - failed to establish relevant or scientific validity

o The district court ruled that Powers failed to establish either the relevance or the scientific validity of psychological profiling as applied to the facts at issue.

Determining whether the evidence will be helpful to the trier of fact

o A judge must be mindful of other evidentiary rules, such as FRE 403, which permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury."

Powers argues - Dr. Sciara's psychological profile of him meets the relevancy criteria

o Dr. Sciara's psychological profile of him meets the relevancy criteria due to the direct relationship between the subject matter of the test and the crime charged.

o Counsel for Powers proffered the following evidence concerning Dr. Sciara's psychological profile.

o Based on numerous interviews with child sex abusers and other research, Dr. Sciara has created a profile of the common characteristics of incest abusers.

o According to Sciara, the largest common denominator among incest abusers is that forty percent of the time they exhibit the characteristics of fixated pedophiles. Powers' tests, however, revealed that he did not share this characteristic.

Powers argues - testimony was clearly relevant

o This testimony was clearly relevant for the purpose of demonstrating that [he] was psychologically unlikely to have committed the alleged crimes charged against him."

Court - We disagree.

Court - Powers fails to provide a link

o Fails to provide a substantial link between the expert testimony and his theory of defense.

o At most, this evidence would have shown only that Powers did not belong to a group that comprised forty percent of incest abusers.

o Powers, however, was charged with statutory rape of his daughter -- incest abuse -- not with being a fixated pedophile.

o To be relevant, this testimony must show, in a very real way, that because Powers did not share a characteristic common to a large minority of incest perpetrators, he was less likely to be an incest perpetrator himself.

Court - district court understood this flaw

o The district court clearly understood this fundamental flaw when the testimony was proffered:

How to supply the link

o If Powers had offered supporting evidence showing that those who are not fixated pedophiles are less likely to commit incest abuse (the crime with which Powers was charged), Dr. Sciara's testimony might have been relevant.

Court - Offered no evidence to link non-proclivity for pedophilia with a non-proclivity for incest abuse

o However, Powers offered no evidence to link a non-proclivity for pedophilia with a non-proclivity for incest abuse, even after the district court gave Powers ample opportunity to introduce evidence showing the relevance of Dr. Sciara's testimony.

o Accordingly, we find that the district court did not abuse its discretion in excluding this evidence because Powers failed to prove either its relevancy or "a valid scientific connection to the pertinent inquiry" of whether he committed incest.

Rules