United States District Court, D. Colorado
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendant's Motion to
Exclude Expert Testimony and for Daubert Hearing
[Docket No. 59].
requests that the Court prohibit Karen Blackwell from
testifying on the process of “grooming” and
delayed disclosure as they relate to child sex abuse. Docket
No. 59 at 1. Ms. Blackwell is a Child/Adolescent Forensic
Interviewer with the Federal Bureau of Investigation. Docket
No. 62-1 at 1. Defendant proffers three reasons for
exclusion. First, defendant argues that the government's
Federal Rule of Criminal Procedure 16(a)(1)(G) disclosure was
insufficient. Docket No. 59 at 2. Second, defendant claims
that, under Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
Ms. Blackwell's testimony is both unreliable and
irrelevant. Id. at 4-8. Third, defendant contends
that, under Federal Rule of Evidence 403, the probative value
of Ms. Blackwell's testimony is substantially outweighed
by prejudice and confusion.
requires a written summary of proposed expert testimony that
“must describe the witness's opinions, the bases
and reasons for those opinions, and the witness's
qualifications.” Fed. R. Crim. P. 16(a)(1)(G). The
government sent a letter to defendant dated September 13,
2019 that summarized Ms. Blackwell's opinions and which
attached her curriculum vitae. Docket No. 59-1. Defendant
concedes that the notice provides an adequate summary of Ms.
Blackwell's opinions and qualifications, Docket No. 59 at
2-3, but argues that, without “studies and
literature” that show on what Ms. Blackwell has based
her opinions, the summary is deficient as to the “bases
and reasons” for those opinions. Id. at 3.
Court finds no deficiency in the government's Rule 16
disclosure. The government did not cite any articles or
literature that form the bases of Ms. Blackwell's
opinions, but the government's disclosure is reasonably
interpreted to mean that Ms. Blackwell's opinion, as
informed by the literature, is primarily based on “the
thousands of forensic interviews that she has personally
conducted.” Docket No. 59-1 at 1. The Court finds that
the failure to cite literature or studies does not render the
disclosure insufficient under Rule 16. See United States
v. Lipscomb, 539 F.3d 32, 38 (1st Cir. 2008)
(“[Because] those conclusions were based on the
officers' experience . . . [and] the defense had full
notice of the actual opinions to which the
detectives intended to testify, we are unpersuaded by the
defendant's criticism of the lack of detail regarding the
bases for those opinions.”).
argues that, even if the disclosure is sufficient under Rule
16, Ms. Blackwell's testimony fails to meet the
requirements of Rule 702. Docket No. 59 at 4. Rule 702 states
that “[a] witness who is qualified as an expert by
knowledge, skill, experience, training, or education may
testify in the form of an opinion . . . if . . . the
expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.” When
assessing evidence in light of Rule 702, courts must find
that the evidence is relevant and reliable. Daubert,
509 U.S. at 589. While a defendant may request a
Daubert hearing, the district court is not required
to hold one. See Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 152 (1999); United States v. Mathews,
928 F.3d 968, 979 (10th Cir. 2019) (citing United States
v. Nichols, 169 F.3d 1255, 1262 (10th Cir. 1999)).
contends that Ms. Blackwell's testimony about grooming
and delayed disclosure is irrelevant because (1) there is no
evidence that defendant groomed the alleged victim before the
alleged sexual assault and (2) jurors already understand
delayed disclosure by sexual assault victims, so any
testimony on that subject is unhelpful to the jury. Docket
No. 59 at 5-6.
government has not identified grooming behavior before the
alleged assault in this case. However, the government intends
to introduce evidence that defendant used grooming of the
alleged victim to delay or prevent disclosure of the
incident. Docket No. 62 at 8. Therefore, while generalized
testimony from Ms. Blackwell about pre-assault grooming
behavior appears irrelevant, post-assault behavior is not.
relevant, defendant argues that Ms. Blackwell's proposed
grooming testimony is unreliable. Docket No. 59 at 7. To
support this contention, defendant relies on a study where
the authors review grooming literature and conclude that
grooming does not have a consistent definition and grooming
behavior cannot be identified with any reliability.
Id. at 8 (citing Natalie Bennett & William
O'Donohue, The Construct of Grooming in Child Sexual
Abuse, 23 J. Child Sexual Abuse 957, 974 (2015)). This
article, however, focuses on pre-assault behavior and does
not discuss or explore post-assault grooming. The article
does not call into question the reliability of Ms.
Blackwell's testimony on post-assault grooming.
courts have allowed grooming testimony. See, e.g.,
United States v. Batton, 602 F.3d 1191, 1200-02
(10th Cir. 2010) and cases cited therein. The Court agrees
with the rationale of those cases. Moreover, Ms. Blackwell
has conducted thousands of forensic interviews and defendant
does not challenge her qualifications.
also questions the relevancy of Ms. Blackwell's proposed
testimony as it applies to victims who are not the same age
or gender as the alleged victim. Docket No. 59 at 7. The
Court agrees that generalized testimony unrelated to the age
of the alleged victim would be overbroad. Therefore, Ms.
Blackwell should limit her testimony about post-assault
grooming behavior to mid- to late teenagers. Ms. Blackwell
must also focus her testimony on post-assault grooming as
opposed to grooming behavior generally or pre-assault
behavior that may benefit a perpetrator post-assault.
addition to grooming behavior, the government disclosure
states that Ms. Blackwell will testify regarding child sexual
assault victims' delayed reporting. The government
indicates that, as with her testimony regarding grooming, Ms.
Blackwell will not testify to the facts of this case, but
rather will testify generally about victims' delayed
reporting. Defendant argues that delayed reporting is common
knowledge and, therefore, unhelpful to the jury. Id.
at 6. Defendant cites the following portion from the
government's disclosure: “Child sexual abuse
victims may often delay their disclosures, and/or give
partial disclosures. These occurrences can be due to any
number of factors. Failure to disclose and/or partial
disclosure may be a coping mechanism for the child.”
Id. Defendant admits that this opinion is “not
untrue.” Id. The issue, then, is not
reliability, but whether delayed reporting is outside the ken
of the average juror. As noted in Batton, 602 F.3d
at 1200-02, courts have allowed experts in child sexual
assault cases to discuss misconceptions that members of the
public may have about such crimes. The Court finds that
delayed reporting by minors in sexual assault causes is not
within the ken of an average juror and that expert testimony
on the subject is appropriate. See United States v.
Perrault, 2019 WL 1024284, at *4 (D.N.M. Mar. 4, 2019).
Therefore, Ms. Blackwell may testify about delayed reporting
by mid- to late teenagers.
defendant argues that Ms. Blackwell's testimony violates
Rule 403. Rule 403 provides that “[t]he court may
exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair
prejudice . . . [or] misleading the jury.” Defendant
contends that, because the issue in this case is one of
consent, Ms. Blackwell's testimony will mislead the jury
into considering the age of the alleged victim and will be
prejudicial to defendant because the issue is not child sex
abuse. The Court rejects this argument. The age of the
alleged victim will be an issue in this trial in any event.
Moreover, even if the statute makes the issue of consent
relevant, Ms. Blackwell's testimony is nevertheless
pertinent because the alleged victim was sixteen years-old at
the time of the alleged assault. The defendant's claimed
prejudice does not substantially outweigh the probative value
of Ms. Blackwell's testimony.
asks that Ms. Blackwell's testimony be limited to
rebuttal. Docket No. 59 at 9. The Court believes that, if Ms.
Blackwell testified in the government's case-in-chief,
the jury could mistakenly interpret Ms. Blackwell's
testimony as inappropriately bolstering the alleged
victim's credibility as opposed to explaining the
dynamics of grooming or delayed ...