Background
Mitchel Crow was convicted of sexually abusing a minor at a military base in violation of Section twenty-two forty-three of Title eighteen of the United States Code. The central dispute at trial concerned Crow’s state of mind, specifically whether he was asleep during the encounter. The defense presented an expert witness, Dr. Clete Kushida, who opined that Crow’s actions were consistent with sexsomnia. The government countered with an expert, Dr. Michel A. Cramer Bornemann, who testified that the complexity of the alleged acts made sexsomnia unlikely. During trial, Dr. Kushida added new opinions regarding malingering, which Dr. Bornemann then rebutted. The district court allowed this rebuttal testimony without providing the defense with prior written disclosure of Dr. Bornemann’s new opinions on malingering.
The court’s reasoning
The court applied de novo review to the interpretation of Federal Rule of Criminal Procedure sixteen. The opinion notes that while the rule was amended in two thousand and twenty-two to require disclosure of rebuttal testimony, this duty applies only when the defendant has timely disclosed the testimony the government intends to rebut. The court found that Dr. Kushida’s pretrial report did not address malingering or Crow’s truthfulness; those opinions were introduced for the first time during trial testimony. Because the defense had not disclosed the new opinion on malingering, the government had no corresponding duty to disclose its rebuttal on that specific point before trial. The court rejected the argument that the rebuttal merely addressed matters in the original report, noting the report did not opine on malingering.
What it means going forward
This decision clarifies that the government’s obligation to disclose rebuttal expert testimony is strictly tied to the scope of the defense’s pretrial disclosures. It prevents the government from being required to guess and disclose rebuttal opinions on new theories or facts that a defense expert introduces for the first time during trial.