UNITED STATES, Appellee

                                       v.

                   Stephanie R. TRAUM, Senior Airman
                       U.S. Air Force, Appellant


                                 No. 02-0885
                           Crim. App. No. 34225


       United States Court of Appeals for the Armed Forces

                         Argued October 21, 2003

                         Decided August 24, 2004

BAKER, J., delivered the opinion of the Court in which CRAWFORD,
C.J., joined. GIERKE, J., filed an opinion concurring in part
and in the result which EFFRON, J., joined. ERDMANN, J., filed
a separate opinion concurring in part and in the result.

                                   Counsel

For Appellant: Lieutenant Colonel Craig S. Cook (argued);
   Colonel Beverly B. Knott, Major Terry L. McElyea, and Captain
   Kyle R. Jacobson (on brief); Captain Antony B. Kolenc.

For Appellee: Captain C. Taylor Smith (argued); Colonel LeEllen
   Coacher and Major John D. Douglas (on brief); Lieutenant
   Colonel Robert V. Combs, Lieutenant Colonel Lance B. Sigmon,
   Major Shannon J. Kennedy, and Major Jennifer R. Rider.


Military Judge:     B. T. Brown



     THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Traum, No. 02-0885/AF


       Judge BAKER delivered the opinion of the Court.

       On September 17, 1999, contrary to her plea, Appellant was

convicted by general court-martial of the premeditated murder of

her infant daughter in violation of Article 118, Uniform Code of

Military Justice [hereinafter UCMJ], 10 U.S.C. § 918 (2000).

The sentence, adjudged by a panel of officer and enlisted

members, provided for a dishonorable discharge, confinement for

life, forfeiture of all pay and allowances, a reprimand, and

reduction to the lowest enlisted grade.   Except for the

reprimand, the convening authority approved the sentence as

adjudged.    The Air Force Court of Criminal Appeals affirmed the

approved findings and sentence in an unpublished opinion.

United States v. Traum, No. ACM 34225, slip op. (A.F. Ct. Crim.

App. June 28, 2002).    We granted review to determine whether

Appellant’s confession to Air Force Office of Special

Investigations (AFOSI) investigators should have been

suppressed, and whether the military judge allowed the

Government’s expert witness to present inadmissible profile

evidence against Appellant.1   For the reasons that follow, we

affirm.



1
    The granted issues are:

       I.   WHETHER APPELLANT’S STATEMENTS TO SPECIAL AGENT
            KRAUS SHOULD HAVE BEEN SUPPRESSED BECAUSE:



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United States v. Traum, No. 02-0885/AF


                                   I

                    The Confession of January 13

     On the morning of December 21, 1998, base emergency medical

personnel received a phone call from Appellant indicating that

her eighteen-month old daughter Caitlyn was not breathing.

During the call, Appellant suggested that the child might be

having a seizure.   Minutes later, medical personnel arrived at

Appellant’s quarters and began to treat the unresponsive child.

The child was transported by ambulance to the hospital where

efforts to revive her continued.       Despite the efforts of


          A. THE REQUEST BY AGENTS OF THE AFOSI THAT
             APPELLANT SUBMIT TO A POLYGRAPH
             EXAMINATION CONVERTED THEIR DISCUSSION
             INTO OFFICIAL QUESTIONING DURING WHICH
             APPELLANT COULD INVOKE HER RIGHT TO REMAIN
             SILENT; AND

          B. APPELLANT’S STATEMENT THAT SHE DID NOT
             WISH TO DISCUSS THE EVENTS OF THE NIGHT
             HER DAUGHTER DIED WAS AN INVOCATION OF HER
             RIGHT TO REMAIN SILENT, THUS REQUIRING
             THAT THE AFOSI AGENTS SCRUPULOUSLY HONOR
             HER REQUEST TO REMAIN SILENT.

     II. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
     ERROR BY ALLOWING THE PROSECUTION EXPERT WITNESS, DR.
     COOPER, TO TESTIFY AS TO INADMISSIBLE STATISTICAL
     PROFILE EVIDENCE AND TO VOICE A MEDICAL OPINION OF
     HOMICIDE LARGELY BASED UPON APPELLANT’S CONDUCT.

     III. WHETHER THIS COURT SHOULD ORDER NEW POST-TRIAL
     PROCESSING WHERE THE STAFF JUDGE ADVOCATE’S
     RECOMMENDATION INCORRECTLY ADVISED THE CONVENING
     AUTHORITY ON THE MAXIMUM AUTHORIZED PUNISHMENT.

     This third issue is resolved against Appellant in summary
fashion at the end of this opinion.

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United States v. Traum, No. 02-0885/AF


hospital personnel, Caitlyn was pronounced dead shortly after

arriving at the emergency room.   Appellant was home alone with

the child at the time the emergency call was made.

     In the weeks following the child’s death, AFOSI

investigators focused on Appellant as a homicide suspect.    On

January 12, 1999, Appellant called AFOSI to inquire about the

status of the investigation of her daughter’s death.    The agents

expressed a desire to discuss the investigation with Appellant

at their office and she agreed to meet with them the following

morning.

     When Appellant arrived at the AFOSI office on the morning

of January 13, she met with Special Agents (SA) Engelman and

Gage and requested an update on the investigation.    Appellant

also informed them that she needed a copy of her daughter’s

autopsy report and death certificate in order to process her

humanitarian reassignment.   After further “idle chit chat,” SA

Engelman asked Appellant if she would be willing to take a

polygraph. At first, Appellant neither declined nor accepted the

invitation to take the polygraph.     SA Engelman explained to

Appellant that a possible benefit of taking the examination

might be to rule her out as a suspect.

     When asked again whether she was willing to take the

examination, Appellant replied that “she did not want to talk

about the details of the night of 20/21 December 1998.”    SA


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United States v. Traum, No. 02-0885/AF


Engelman subsequently explained to Appellant that it might not

be necessary to go into all of the details of that night, but it

might be necessary to go into some of the details.   The agent

further explained that if Appellant still had concerns with

talking about the details of that night, she could raise them

with the polygrapher, SA Kraus.   Appellant acknowledged that she

understood this information.

     Following this discussion, Appellant accompanied SA Kraus

into a room to be interviewed and polygraphed.    Prior to asking

any questions, SA Kraus administered Appellant’s Article 31

rights and advisement.   He also informed Appellant that she was

not required to take the examination.    Appellant waived these

rights and agreed to be polygraphed and interviewed.   There is

no indication that at any time after the rights advisement,

Appellant expressed her earlier concerns about discussing the

details of the night of December 20 or the morning of December

21 to SA Kraus or anyone else.

     After the polygraph examination, SA Kraus interviewed

Appellant.   During this interview, Appellant disclosed that she

had killed Caitlyn by pushing the child’s head into the couch

and suffocating her.   Appellant reduced this confession to

writing and signed it.   This written statement recounts that

Appellant “gently pressed Cait’s head into the couch” ostensibly

to save Caitlyn from her father’s abusive ways.   Appellant


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United States v. Traum, No. 02-0885/AF


included in her statement that she decided to take the child’s

life “around midnight on the 20 or 21st Dec. 98.”   When asked

why she smothered the child as opposed to killing her in some

other way, Appellant’s written response was, “I didn’t want her

to hurt.”   At the time of the AFOSI interview, Appellant was a

married, 25 year old E-4 with 6 1/2 years of service.

     Prior to the trial on the merits, Appellant moved to

suppress her confession to SA Kraus.   In her motion, Appellant

initially contended that because she was a suspect on the

morning of January 13, her Article 31 rights should have been

read prior to the agents engaging in any conversation with her.

For the purposes of this appeal, Appellant has narrowed her

claim to an assertion that SA Engelman’s question regarding

taking a polygraph was designed to elicit an incriminating

response.   Therefore, according to Appellant, SA Engelman was

required to warn her of her Article 31 rights before asking this

question.   Appellant also contends, as she did at trial, that

her response to SA Engelman’s question that “she did not want to

talk about the details of the night of 20/21 December 1998” was

an invocation of her Fifth Amendment right to remain silent.

Further, Appellant asserts that her invocation was unequivocal

and not honored, therefore, any statement taken after

Appellant’s response to SA Engelman’s question regarding the

examination was tainted and should have been suppressed.


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United States v. Traum, No. 02-0885/AF


      A.   The Requirement to Warn under Article 31

      Appellant asserts that the agent’s request for her to take

a polygraph was either interrogation or a request for a

statement within the meaning of Article 31.

      No person subject to the UCMJ may “interrogate, or request

any statement” from a person suspected of an offense without

first warning that person in accordance with Article 31(b).

Article 31(b), UCMJ, 10 U.S.C. § 831 (2000).    “’Interrogation’

includes any formal or informal questioning in which an

incriminating response either is sought or is a reasonable

consequence of such questioning.”     Military Rule of Evidence

305(b)(2)[hereinafter M.R.E.]; Rhode Island v. Innis, 

, 301 (1980).   M.R.E. 305(b)(2) was broadly fashioned “to

thwart ‘attempts to circumvent warnings requirements through

subtle conversations.’”   United States v. Ruiz, 

, 141

(C.A.A.F. 2000)(quoting S. Saltzberg et al., Military Rules of

Evidence Manual 225 (4th ed. 1997)).     However, interrogation

involves more than merely putting questions to an individual.

a request to take a polygraph may arise

in a variety of circumstances related to interrogation.    See

Wyrick v. Fields, 

(1982); United States v.




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United States v. Traum, No. 02-0885/AF


Applewhite, 

(C.M.A. 1987).2   In each instance, the

question will be whether an incriminating response is sought or

is the reasonable consequence of the comment or remark.   Of

course, a rights advisement prior to such a question would

remove the necessity for such analysis.   Based on the context in

which SA Engelman asked Appellant whether she would take a

polygraph, we conclude that an incriminating response was not a

reasonable consequence of SA Engelman’s inquiry.   In our view,

the “reasonable consequence” of SA Engelman’s question in the

context presented was either yes or no.   Similarly, we agree

with the conclusion reached by the Court of Criminal Appeals


2
   Each of these cases can be distinguished from the present
case. Both involved the custodial interrogation of individuals
who had previously invoked their right to counsel. In Wyrick,
the Supreme Court reasoned that by requesting to take a
polygraph the defendant had “intiate[d] dialogue with the
authorities” such that interrogation could resume. Wyrick v.
Fields, 

, 48 (1982). In Applewhite, the focus was on
whether a previous invocation of the right to counsel had been
honored or whether it had been undermined. There, the accused
requested counsel, but investigators asked the accused to take a
polygraph. Several days later he appeared prepared to do so.
Prior to the examination he was confronted with new as well as
previous allegations of wrongdoing. Whatever dicta may have
been used in resolving the issue in that case, there was no
holding that the mere request to take the polygraph was intended
to elicit an incriminating response. Rather, in the words of
Judge Cox, “After appellant invoked his right to counsel, the
investigator sought to circumvent the exercise of that right by
requesting appellant to take a polygraph examination.” United
States v. Applewhite, 

, 199 (C.M.A. 1987).
Interrogation of Applewhite occurred when he returned several
days later to actually take the examination. 

this case was neither in custody nor
had she invoked her right to counsel.

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United States v. Traum, No. 02-0885/AF


that “[n]o incriminating response from the appellant was sought

. . . .”   Traum, No. ACM 34225, slip op. at 4.   The polygraph

and its operator were located in an adjacent room.    SA

Engelman’s objective was to encourage Appellant to take the

polygraph not to ask questions that might serve as an

investigative substitute for what the agents hoped to garner

from the administration of the polygraph exam.    Thus, we

conclude that an incriminating response was neither sought nor

was it a reasonable consequence of SA Engelman’s inquiry.

     B. Right to remain silent

     We next determine whether Appellant’s response to SA

Engelman’s question was an invocation of her right to silence,

and if so, whether that right was “scrupulously honored.”     See

Miranda v. Arizona, 

, 479 (1966).     While SA

Engelman’s question was not interrogation as measured under

Article 31, Appellant could nonetheless invoke her Fifth

Amendment right to silence in response to the question.      The

right to remain silent “protects against any disclosures that

the witness reasonably believes could be used in a criminal

prosecution or could lead to other evidence that might be so

used.”   Kastigar v. United States, 

, 444-45 (1972).

"[A]pplication of the privilege is not limited to persons in

custody or charged with a crime; it may also be asserted by a

suspect who is questioned during the investigation of a crime."


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United States v. Traum, No. 02-0885/AF


United States v. Alameda, 

, 199 (C.A.A.F. 2002).       See

also Combs v. Coyle, 

, 283 (6th Cir. 2000); United

States v. Brunson, 

, 1201 (10th Cir. 1991), cert.

denied, 

(1992); Coppola v. Powell, 

,

1568 (1st Cir. 1989), cert. denied, 

(1989); United

States ex rel. Savory v. Lane, 

, 1017 (7th Cir.

1987).

        This Court has established that “[i]f the individual

indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the interrogation

must cease[.]”    United States v. Sager, 

, 145 (C.M.A.

1992)(quoting 

).     This important

principle is incorporated in the Manual for Courts-Martial as

well.    “If a person chooses to exercise the privilege against

self-incrimination . . . questioning must cease immediately.”

M.R.E. 305(f)(1).    Although no particular words or actions are

required to exercise one’s Fifth Amendment right to silence, we

have held that its invocation must be unequivocal before all

questioning must stop.    

; see United States

v. Schake, 

, 319 (C.M.A. 1990); see also Campaneria

v. Reid, 

, 1021 (2d Cir. 1989), cert denied, 

(1991).

        Appellant’s response that “she did not want to talk about

the details of the night of 20/21 December 1998” did not


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United States v. Traum, No. 02-0885/AF


foreclose the possibility that she was willing to take the

polygraph and discuss other aspects of the investigation, such

as the child’s medical history or the manner in which Appellant

cared for her child.   Thus, Appellant’s words did not

unequivocally invoke her right to remain silent.

     SA Engelman, who was not assigned to administer the

polygraph, informed Appellant that she might not have to talk

about all the details of that night, but that she was free to

raise her concerns with the individual administering the

examination.   The military judge found Appellant understood this

advice.   Later at the interview with SA Kraus, Appellant had the

opportunity to do as SA Engelman had advised.   Instead,

Appellant voluntarily decided to take the examination.     This

decision was made after being informed of, and waiving, her

right to counsel and her right to remain silent, as well as

after being informed of her right to refuse the polygraph

examination.   Based on these facts, the military judge concluded

that Appellant made an informed decision to waive her rights

before making any admissions to SA Kraus and that her statement

was voluntary.   We agree.   Therefore, the military judge did not

abuse his discretion in admitting Appellant’s confession.

                                 II

                       Expert Testimony at Trial

     A. Background


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United States v. Traum, No. 02-0885/AF



     The Government’s case on the merits was comprised of

Appellant’s confession, testimony from the emergency first

responders, the medical examiner, a forensic pediatrician, and

several witnesses who described Appellant’s inappropriate grief

response.

     Unsuccessful in its efforts to suppress the confession, the

defense proceeded at trial on the theory that Appellant’s

statement of January 13 was the false product of the agents’

efforts to induce Appellant into making a statement.   The

defense also suggested during its opening statement that the

child may have died as a result of a seizure; a possibility the

defense maintained could not be eliminated beyond a reasonable

doubt by the Government.   Finally, the defense attacked the

credibility and competence of the Government’s medical examiner.

     This issue focuses upon the testimony of the Government’s

forensic pediatrician Dr. Cooper.    Dr. Cooper was called by the

Government to discuss child abuse in general and in the words of

trial counsel, to help the members understand how “parents can

kill their children.”   The defense moved in limine to preclude

the witness from offering what it felt was inadmissible profile

evidence and evidence of parental behavior that should otherwise

be the subject of eyewitness rather than expert witness

testimony.



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United States v. Traum, No. 02-0885/AF


          1. The Article 39(a) session

     At a session pursuant to Article 39(a), UCMJ, 10 U.S.C. §

839(a) (2000), Dr. Cooper presented her qualifications and

experience to the military judge.3   She then testified about

child abuse and maltreatment as it pertained to inflicted

injuries on children.   During this session, trial counsel asked

Dr. Cooper how one arrives at a diagnosis of fatal child abuse.

The doctor responded in part:

          The most important aspects are the history as
     given by the family or whoever was in sole custody of
     the child. This is just critically important and
     there is no form of medicine, typically, that proceeds
     without a history. . . . And what is really critical
     in that history is consistency of the history. If a
     physically custodial person who presents with a child
     to an emergency room environment gives a history that,
     over that night or over the subsequent days to weeks,
     changes, you have to be very concerned regarding the
     fact that this may be an inflicted injury.


. . . .

          The second thing we look at is the behavior of
     the parents or whoever are the custodial people. The
     behavior of the person taking care of the child is
     very telling with respect to whether or not they are
     exhibiting concern for the well-being of the child. .
     . . The behavior and demeanor of the parent or the
     custodial care provider at the time the child presents

3
  Dr. Cooper previously served as the assistant chief of
pediatric service at Schofield Barracks, the chief of pediatrics
at Womack Army Medical Center, Deputy Commander for clinical
services, pediatric representative on the Family Advocacy Case
Management Team, instructor at the Army Medical Education
Department, and member of the Department of Defense Child
Fatality Review Committee. At the time of trial, she was the
primary forensic pediatrician for Cumberland County.

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United States v. Traum, No. 02-0885/AF


     to the hospital is an important fact and one which is
     to be documented in the medical record.



          Finally, the physical examination, which may
     reflect exactly what happened at the time when you are
     in the emergency room environment, but may actually,
     ultimately, require the evaluation and determination
     of a medical examiner. In certain types of child
     maltreatment deaths, the physical examination or the
     findings on the autopsy may not be one hundred percent
     clear as to what has happened to the child. This is
     particularly the case in suffocation or asphyxiation
     type deaths . . . .

Dr. Cooper went on to explain that this tripartite methodology -

history, parental/custodial behavior, and examination - was

relied on by “numerous specialists in the field.”   She then

named some of these “specialists,” including several forensic

pediatricians whom Dr. Cooper described as “well-known”

authorities in their field as well as certain law enforcement

professionals.

     Trial counsel then shifted the focus of Dr. Cooper’s

testimony to the area of single episodes of child abuse versus

multiple episodes.   Relying on a work by a Dr. James A.

Monteleone entitled Child Maltreatment (2d ed. 1998), which Dr.

Cooper considered an authoritative reference, she testified that

“[i]n eighty percent of fatal child abuse cases, that fatal

event is the first time that that child has ever been abused.”

Next, relying on a report by the Advisory Board on Child Abuse




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United States v. Traum, No. 02-0885/AF


and Neglect,4 Dr. Cooper testified that according to the report

“the people most likely to kill children are their biological

parents – overwhelmingly so.”   Citing to professional literature

in her field, Dr. Cooper further testified that there are two

different categories of predisposing factors to child abuse and

neglect - one category pertaining to the child and one

pertaining to the adult.   Regarding the category relevant to the

child, Dr. Cooper stated that “the leading cause of trauma

death, now, in the United States, for children under the age of

four, is child maltreatment.”   She then discussed the adult

category that included such factors as the presence of substance

abuse, the presence of biological parents as opposed to step-

parents and babysitters, and whether the child was in a military

family setting.

     Finally, following Dr. Cooper’s testimony pertaining to the

methodology that considers history, behavior, and physical

examination, trial counsel sought Dr. Cooper’s ultimate opinion

as to Caitlyn Traum’s cause of death.    Before doing so, however,

trial counsel asked Dr. Cooper what evidence and documents she

reviewed in forming her opinion.     She stated that she reviewed

Caitlyn’s medical records, Caitlyn’s sister’s medical records,

4
  The U.S. Advisory Board on Child Abuse and Neglect was
established under Pub. L. No. 100-294, section 103, of the Child
Abuse Prevention and Treatment Act, amendments of 1988. The
report referenced by Dr. Cooper is entitled, A Nation’s Shame:
Fatal Child Abuse and Neglect in the United States (1995).

                                15
United States v. Traum, No. 02-0885/AF


and the investigation reports that included Appellant’s

confession, the emergency medical responses, Family Advocacy

records, and the autopsy reports.    She then opined, “I feel that

her cause of death is homicide or an inflicted fatal child

abuse.”   Dr. Cooper added that she believed the child died as a

result of inadequate oxygen consistent with asphyxiation and

that Caitlyn “was asphyxiated through a suffocation method.”

Her reasoning was as follows:

     The reason that I believe that is, first of all, the
     child died in a manner that cannot be explained by
     Sudden Infant Death Syndrome or any other obvious
     medical cause. . . . The second reason that I believe
     this is the case is because the history given by the
     custodial person-in this case, her mother-varied from
     the time she talked to the EMS personnel to the time
     that she talked to the individuals at the hospital, a
     very key element.

     . . . .


     . . . She gave a different history as to what had
     happened to the child. Whenever you see a change in
     history as to what has happened, that is a very
     critically important element when you’re trying to
     decide if this is an accidental versus inflicted injury.
     And then the third reason that I believe this is because
     this child had trauma to her upper lip. Now, I
     understand that this patient underwent significant
     resuscitation efforts, but I have most certainly seen
     and evaluated suffocation victims-death cases-where
     children were suffocated to death, who had similar
     injuries to the inner aspect of their upper lip.

     Following the testimony presented at the Article 39(a)

session, defense counsel challenged Dr. Cooper’s tripartite

methodology.   The defense focused on Dr. Cooper’s use of the


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United States v. Traum, No. 02-0885/AF


victim’s history as well as her use of the behavior of the

custodial parent.   Defense counsel also argued that Dr. Cooper’s

consideration of Appellant’s inconsistent history regarding

Caitlyn’s condition amounted to an expert’s assessment of

Appellant’s credibility and was therefore impermissible.

Finally, the defense asserted that Dr. Cooper’s reliance on

Appellant’s alleged inappropriate grief response was

inadmissible character evidence because it portrayed Appellant

as a bad parent.    While defense counsel suggested that the

doctor’s opinion was based on only one aspect of Appellant’s

conduct, her grieving reaction, Dr. Cooper steadfastly insisted

that this factor was merely one of a number of factors

considered in the “whole assessment when you look at the

history, behavior, physical examination and autopsy finding.”

     After taking Dr. Cooper’s testimony at the Article 39(a)

session, the military judge heard argument from both sides as to

their view of the permissible parameters of Dr. Cooper’s

testimony before the members.   The military judge then ruled

that he would allow Dr. Cooper’s testimony regarding child abuse

in general, her testimony regarding single episode versus

multiple episodes of child abuse, her statement that biological

parents are the most likely to fatally abuse their children, and

the factors relevant to history, behavior, and physical

examinations relied upon by experts in diagnosing fatal child


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United States v. Traum, No. 02-0885/AF


abuse.   The military judge reasoned that this testimony would be

allowed because “it is counterintuitive for a parent to kill

their eighteen month old child, based on the facts that have

come out so far.”

     The military judge also ruled that the expert would not be

allowed to testify regarding the so-called adult category of

predisposing factors of child abuse.   The judge prohibited such

testimony because he felt it got into profile evidence and ran

“awfully close to the types of things that the courts have found

to be error.”    He also ruled that the witness would not be

allowed to testify about a typical grieving parent’s reaction as

contrasted against that of a non-grieving parent.   The judge

reached this decision because “the [M.R.E.] 403 [prejudice]

aspect here outweighs the probative value for the members.”

     Finally, the judge determined that Dr. Cooper would not be

permitted to render her opinion that the cause of death was

inflicted fatal child abuse.   However, he did rule that the

witness could give her opinion that the cause of death was non-

accidental asphyxiation.   After further discussion, defense

counsel indicated that he understood the military judge’s

ruling, but indicated his objection to the testimony still

stood.   Thereafter, the military judge concluded the Article

39(a) session.




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United States v. Traum, No. 02-0885/AF


           2. Dr. Cooper’s testimony before the members

     During the trial before the members, trial counsel elicited

testimony from Dr. Cooper consistent with the rulings by the

military judge.   In particular, she testified, “Overwhelmingly,

the most likely person to kill a child is going to be his or her

own biological parent.”   Dr. Cooper also testified that “[i]f a

child is less than four years of age, the most common cause of

trauma death is going to be child maltreatment.”   The third

statement given before the members was, “Eighty percent of

children who die, die from a one-time event.”   After further

testimony relevant to various seizure disorders, sudden infant

death syndrome, means by which children accidentally suffocate,

and other aspects of fatal child abuse, Dr. Cooper concluded her

testimony with the following statement:   ”It is my medical

opinion that the cause of death for Caitlyn Traum was

asphyxiation of a non-accidental nature.”   There was no cross-

examination from the defense.

     B.   Discussion


     Appellant challenges Dr. Cooper’s testimony on two grounds.

First, Appellant asserts that three of Dr. Cooper’s opinions

that were presented to the members constituted profile evidence.

In particular, the defense focused on these statements:




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United States v. Traum, No. 02-0885/AF


     “[i]f a child is less than four years of age, the most
     common cause of trauma death is going to be child
     maltreatment”;

     “Eighty percent of children who die, die from a one-time
     event”; and

     “Overwhelmingly, the most likely person to kill a child is
     going to be his or her own biological parent.”


     Second, Appellant maintains that the military judge erred

in admitting Dr. Cooper’s testimony because it was based on Dr.

Cooper’s review of Appellant’s behavior in the emergency room.

We review Appellant’s arguments in turn to determine whether the

military judge abused his discretion in allowing all or part of

Dr. Cooper’s testimony.   See United States v. Houser, 

, 397 (C.M.A. 1993).

          1. Profile Evidence

     Before expert testimony may be admitted, the following

factors must be established by the proponent of such testimony:

     (A) the qualifications of the expert, Mil.R.Evid.
     702;[5] (B) the subject matter of the expert testimony,
     Mil.R.Evid. 702; (C) the basis for the expert
     testimony, Mil.R.Evid. 703; (D) the legal relevance of
     the evidence, Mil.R.Evid. 401 and 402; (E) the
     reliability of the evidence, United States v. Gipson,
     

(CMA 1987), and Mil.R.Evid. 401; and (F)
     whether the ‘probative value’ of the testimony
     outweighs other considerations, Mil.R.Evid. 403.



5
  At trial, the military judge accepted Dr. Cooper as an expert
in the field of forensic pediatrics without objection from
defense counsel. Thus, Dr. Cooper’s qualifications are not in
issue on appeal.

                                20
United States v. Traum, No. 02-0885/AF

.

Expert testimony is admissible when “scientific, technical, or

other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue[.]”

M.R.E. 702.   “The test is not whether the jury could reach some

conclusion in the absence of the expert evidence, but whether

the jury is qualified without such testimony ‘to determine

intelligently and to the best possible degree the particular

issue without enlightenment from those having a specialized

understanding of the subject[.]’”    

.

     In contrast, “[g]enerally, use of any characteristic

‘profile’ as evidence of guilt or innocence in criminal trials

is improper.”   United States v. Banks, 

, 161 (C.M.A.

1992).   See Brunson v. State, 

, 313 (Ark.

2002)(rejecting testimony that the defendant met eight of ten

risk factors for batterers likely to kill); Commonwealth v. Day,

, 400 (Mass. 1991)(child battering profile

inadmissible); State v. Clements, 

, 454 (Kan.

1989)(finding evidence of psychology and treatability of a child

sexual offender inadmissible); United States v. Garcia, 

(C.M.A. 1987)(summary disposition)(rejecting testimony that

appellant’s psychological profile was consistent with a person

who sexually abused children); United States v. August, 

(C.M.A. 1986)(rejecting a profile of the “usual” sexual


                                21
United States v. Traum, No. 02-0885/AF


child abuser); Sanders v. State, 

(Ga. 1983)(state

cannot introduce evidence of battering parent syndrome); State

v. Loebach, 

, 64 (Minn. 1981)(evidence placing the

defendant within the profile of a battering parent

inadmissible).   Profile evidence is evidence that presents a

“characteristic profile” of an offender, such as a pedophile or

child abuser, and then places the accused’s personal

characteristics within that profile as proof of guilt.   United

States v. Rynning, 

, 422 (C.A.A.F. 1998).

     The question in this case is whether Dr. Cooper’s opinions

constituted impermissible profile evidence or whether they were

admissible opinions of specialized knowledge under M.R.E. 702.6

Child abuse is an area where specialized knowledge regarding

pediatric forensics and child abuse may indeed be helpful to

members.   Children incur all sorts of injuries as they move

through infancy to the toddler years and beyond.   Thus, a panel

might well benefit from an understanding of the methodology

doctors use to determine the cause of an infant’s injury.   In

the case of fatal child abuse, the value of such specialized

knowledge is equally apparent.   Such information helps members


6
  Appellant did not raise a challenge under Daubert regarding the
reliability of Dr. Cooper’s methodology or her conclusion of
“non-accidental asphyxiation.” See Daubert v. Merrell Dow
Pharms., Inc., 

(1993). Therefore, we do not
address what impact, if any, a Daubert challenge would have had
on the scope and content of Dr. Cooper’s testimony.

                                 22
United States v. Traum, No. 02-0885/AF


discern the critical elements of testimony and place that

testimony within an analytic framework.   This information may

also help disabuse members of preconceptions that might cloud

their ability to focus on the evidence presented as opposed to

preconceptions about the nature of the offense at issue.    In

light of this predicate, we believe Dr. Cooper’s first two

statements fall within the rubric of specialized knowledge that

is useful to the members in understanding the evidence and

determining a fact in question.    This testimony was given in the

context of her general description of fatal child abuse.

Further, these particular statements relate to the

characteristics of the child victim in this case rather than

Appellant.   Comparable evidence has been admitted in cases

involving rape trauma syndrome.    See United States v. Reynolds,

, 111 (C.M.A. 1989).    Similarly, evidence of battered

child syndrome is often admitted to show that a particular

injury “is not accidental or is not consistent with the

explanation offered therefore but is instead the result of

physical abuse by a person of mature strength.”   United States

v. White, 

, 87 (C.M.A. 1986).

     As we explained in Banks, the ban on profile evidence

exists because this process treads too closely to offering

character evidence of an accused in order to prove that the

accused acted in conformity with that evidence on a certain


                                  23
United States v. Traum, No. 02-0885/AF


occasion and committed the criminal activity in question.    This,

of course, is prohibited under M.R.E. 404(a)(1).    See 

.    These two statements by Dr. Cooper do not

implicate that concern because they relate to the

characteristics of the child victim in this case rather than

Appellant.

     What we condemned in Banks was the Government’s

construction of a syllogism “(major premise, minor premise, and

conclusion)” used in persuading the members that the appellant

was a child 

n.11.   In that case, the

Government, through its expert witness, presented the major

premise that families with a profile of three particular

identified risk factors presented an increased risk of child

sexual abuse.    The Government then established through further

testimony the minor premise that Banks and his family fit this

profile.   Finally, the prosecution argued for the conclusion

that since the minor premise established the major premise, the

members could not help but decide that Banks was a child abuser.

We discern no such tactic in the record of this case.

     Testimony setting up a child battering profile must be

distinguished from testimony focusing on the characteristics of

a battered child.   See 

.    See also Myrna

S. Raeder, The Better Way: The Role of Batterers’ Profiles and

Expert “Social Framework” Background in Cases Implicating


                                 24
United States v. Traum, No. 02-0885/AF


Domestic Violence, 68 U. Colo. L. Rev. 147, 160

(1997)(discussing the distinction between battered wife syndrome

and evidence of a batterer profile).   The former is irrelevant

because it is not necessarily true that an accused is a batterer

just because the individual fits a certain profile.   However,

the latter is often helpful in determining a fact in issue.

This is especially true when deciding, as in the instant case,

whether the child died from a seizure as posited by the defense

or whether she was suffocated as alleged by the Government.    We

conclude Dr. Cooper’s testimony was the latter.

     Dr. Cooper’s third statement, “Overwhelmingly, the most

likely person to kill a child is going to be his or her own

biological parent,” is more troubling.   Following Dr. Cooper’s

testimony and counsel’s respective arguments at the Article

39(a) session, the military judge contextually culled out the

testimony he considered profile in nature.   Consequently, the

military judge attempted to limit Dr. Cooper’s testimony to

child characteristics of abuse like the history of diagnosing

child abuse, fatal versus nonfatal child abuse, and single

episode versus multiple episodes of abuse.   The judge barred Dr.

Cooper from testifying regarding adult characteristics of child

abusers, like substance abuse, living in a military environment,

and the parent of an unplanned pregnancy.




                               25
United States v. Traum, No. 02-0885/AF


     Nevertheless, Dr. Cooper’s statement regarding biological

parents clearly reached both the characteristics of the victim

as well as the characteristics of the typical offender.    It is

not enough to say that the Government did not expressly place

the accused within the statistic presented, for the accused

manifestly fit the statistical pattern presented without the

Government connecting the dots.    Moreover, while Dr. Cooper’s

testimony did not come in the form of numeric probability,

members might have been left with the impression that if the

testimony indicated Appellant’s daughter died as a result of

child abuse, the probability Appellant committed the offense was

“overwhelming,” regardless of what specific evidence was

presented.   In essence, the statement placed a statistical

probability on the likelihood that Appellant committed the

offense.    Thus, we conclude that it was impermissible profile

evidence.

     However, any error in admitting this statement was

harmless.    First, the evidence was introduced after Appellant’s

confession had been admitted and presented to the members.

Second, the critical question in this case was whether the

victim died by accidental or intentional asphyxiation, not the

identity of the perpetrator.   Appellant did not contest being

alone with the victim at the time of the child’s injury.




                                  26
United States v. Traum, No. 02-0885/AF


          2. Basis for the Expert’s Opinion

     Appellant also argues that Dr. Cooper should not have been

allowed to give her ultimate opinion on the cause of Caitlyn’s

death because it was not based solely upon medical evidence, but

also rested upon her subjective evaluation of Appellant’s

grieving conduct.    In particular, during the Article 39(a)

session, Dr. Cooper testified that when forming her opinions she

considered the fact that Appellant gave differing accounts

regarding Caitlyn’s condition to the 911 operator, the

paramedics when they arrived at her quarters, and to the

hospital personnel when the child arrived at the emergency room.

     Dr. Cooper also considered certain statements Appellant

allegedly made to witnesses at the hospital as suggestive of an

uncharacteristic and inappropriate grief response.    For example,

Appellant was alleged to have stated to one witness who was

trying to console her at the hospital, “I’m just glad I saved

the toy receipts.”   Traum, No. ACM 34225 Slip op. at 2.      When

this witness commented that the dead child had been a beautiful

girl, Appellant stated, “She really was mean.    She was mean to

her sister and really active.”   

root, Appellant

argues these remarks were observations lay persons could observe

and testify to without medical knowledge.    Therefore, Dr.

Cooper’s testimony was not based on specialized medical




                                 27
United States v. Traum, No. 02-0885/AF


knowledge, but ordinary lay observations already offered to the

members by non-expert witnesses.

     An expert’s opinion may be based upon other sources such as

“personal knowledge, assumed facts, documents supplied by other

experts,” or the testimony of witnesses at trial.    

; M.R.E. 703.   Dr. Cooper’s testimony indicates that

her opinions were not based solely on Appellant’s grieving

reaction, but on a tripartite methodology generally accepted as

authoritative in the forensic pediatric field.   This methodology

focuses on the history of events leading to a child’s condition,

the behavior of the custodial caretaker, and the physical

examination reports including those from the autopsy.    Further,

the record supports a conclusion that this methodology is relied

on by experts in the field of forensic pediatrics.   M.R.E. 703

allows experts to rest their opinions on precisely this basis.

Therefore, it is clear Dr. Cooper’s testimony was rooted in more

than lay observations regarding Appellant’s conduct.    Moreover,

it was the eyewitnesses and not Dr. Cooper who testified to the

members about Appellant’s reactions in the emergency room.

          3. Probative Value

     However relevant and reliable an expert’s testimony might

be, such evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the members[.]”   M.R.E.


                                28
United States v. Traum, No. 02-0885/AF


403.   The record indicates that the military judge was acutely

aware of the dangers of profile evidence.   It is worth noting

the military judge’s comment at the time he made his ruling with

regard to admission of Dr. Cooper’s testimony.   The judge

clearly considered the expert’s testimony balanced against “the

facts that have come out so far.”    When Dr. Cooper testified

during the trial, the members had already received Appellant’s

confession, the testimony of the medical examiner, and the

testimony of various witnesses concerning statements Appellant

made indicating either a lack of grief or at best, an

inappropriate grief response.   Further, the military judge

culled out what he thought was impermissible profiling of

Appellant and allowed opinions that were based on the

professional literature of the field of expertise and on a

methodology accepted by experts in that field.   Finally, it is

clear the military judge understood the constraint of M.R.E. 403

when he was determining what would or would not be allowed.

Based on this record, we cannot say the military judge abused

his discretion in weighing the probative value of the expert

testimony against any prejudicial effect it might have

presented.




                                29
United States v. Traum, No. 02-0885/AF


                                  III

                     Life Without Possibility of Parole

        Finally, Appellant takes issue with the advice given to the

convening authority by the staff judge advocate.      The advice

given stated that the “maximum imposable sentence for the

offense of [premeditated murder] of which SrA Traum was

convicted is life imprisonment, without eligibility for parole.”

SJAR, para. 6 (emphasis added).    Article 56a, UCMJ, 10 U.S.C. §

856a (2000), was enacted on November 18, 1997.      Appellant was

sentenced on September 17, 1999.       In light of our recent

decision in United States v. Ronghi, 

(C.A.A.F. 2004),

life without eligibility for parole was an authorized punishment

at the time of Appellant’s trial.

                               Decision

        The military judge did not abuse his discretion in

admitting the expert testimony or Appellant’s confession, nor,

was there error in the post-trial processing of Appellant’s

case.    The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                  30
United States v. Traum, No. 02-0885/AF

     GIERKE, Judge, with whom EFFRON, Judge, joins (concurring

in part and in the result):

     I agree with the majority on all issues except I(A),

concerning the necessity to provide rights warnings before a law

enforcement agent may ask a suspect to take a polygraph

examination.

     Regardless of whether, as a general matter, such a request

is reasonably likely to elicit an incriminating response, in

this case it did not do so.   Rather, all of Appellant’s

incriminating statements were made only after Special Agent

Kraus had informed Appellant of her rights pursuant to Article

31, Uniform Code of Military Justice, 10 U.S.C. § 831 (2000),

Miranda v. Arizona, 

(1966), and United States v.

Tempia, 

, 

(1967), and after Appellant

waived those rights.

     Voluntariness is the touchstone for determining a

subsequent statement’s admissibility even where the suspect has

let the cat out of the bag in a previous unwarned but voluntary

statement.   See United States v. Lichtenhan, 

(C.M.A.

1994).   In this case, Appellant made no incriminating statements

before Special Agent Kraus gave her a complete rights warning

and obtained a waiver of those rights.   Because Special Agent

Engelman’s request resulted in no taint, it did not affect the

Appellant’s admissions to Special Agent Kraus.   There is,
United States v. Traum, No. 02-0885/AF


therefore, no need to resolve issue I(A).    I reserve judgment on

that legal issue.




                                         2
United States v. Traum, 02-0885/AF


     ERDMANN, J. (concurring in part and in the result):

     I agree with the majority on all issues other than the

nature of the three statements made by Dr. Cooper.    In the

context of this case, these statements are improper

profiling evidence in that they characterized Senior Airman

Traum as a person who would both abuse and kill her natural

child.

     I recognize the distinction made by the majority

between testimony relating to the characteristics of a

child victim and the characteristics of an accused.

However, testimony that in isolation would not constitute

“profiling” evidence may well become “profiling” when heard

in the context of a particular case.   This is such a case.

     Before the members, Dr. Cooper first stated that

“eighty percent of children who die, die from a one[-]time

event.”   Because there was no evidence of prior abuse and

unrefuted evidence that Traum had been alone with her baby

prior to the death, this statement had the effect of

rendering it 80% likely that Traum was the cause of the

“one[-]time event” that resulted in her baby’s death.

     Dr. Cooper’s next statement was that “[i]f a child is

less than four years of age, the most common cause of

trauma death is going to be child maltreatment.”   The

prosecution had already established that the baby was under


                              1
United States v. Traum, 02-0885/AF


four, showed evidence of physical trauma and was alone with

Traum during the time any trauma could have been inflicted.

In conjunction with the earlier evidence, this statement

identified the death as resulting from trauma and

identified Traum as the only person who could have

inflicted the trauma.   These two conclusions were virtually

inseparable and the second is clearly beyond the realm of

permissible expert testimony.

     As noted by the majority, Dr. Cooper’s final statement

is certainly the most troublesome: “Overwhelmingly, the

most likely person to kill a child is going to be his or

her own biological parent.”   Contextualized, Dr. Cooper’s

statement meant that Traum, as the biological parent, was

overwhelmingly the most likely person to have killed her

child.   An expert may not testify that the accused

committed the crime being tried, and Dr. Cooper should not

have been permitted to do through presentation of

“information or data” that which she could not have done

through direct testimony.   See United States v. Diaz, 

, 92 (C.A.A.F. 2003)(noting “fundamental rule of law

that experts may not testify as to guilt or innocence”).

     In United States v. Banks, 

, 161 (C.M.A.

1992), this Court condemned “use of any characteristic

‘profile’ as evidence of guilt or innocence in criminal


                                2
United States v. Traum, 02-0885/AF


trials.”    We defined the nature of such improper profile

evidence to go beyond character evidence per se:

            Inadmissible profile evidence does not
            merely address a profile where the
            factors relate only to a “character
            trait” of the accused. The factors in
            the profile may be any information or
            data so as to place appellant in an
            alleged “group” of persons who have
            committed offenses in the past.

all three of Dr. Cooper’s statements

constitute “profiling” evidence, taken together they

certainly could cause the members to classify Traum as a

child abuser and killer.    Consistent with our holding in

Banks, these statements carry the danger of prejudice

“greatly” outweighing any probative value the information

may have.   

such as this turns the

trial of criminal charges away from one of facts to “a

litmus-paper test for conformity with any set of

characteristics, factors, or circumstances.”    

case the military judge admitted the

three statements because it was “counterintuitive” that a

parent would be involved in the death of his or her child.

This ruling reveals that the military judge admitted the

evidence not to show that the child’s death was a crime,

but to show specifically that the parent was the

perpetrator.   The very purpose for which the statements



                                3
United States v. Traum, 02-0885/AF


were admitted was to identify Traum as one of a very

limited group who would kill her child based on

probabilities and inferences rather than upon the facts of

the case.

     Nevertheless, for the same reasons that the majority

found the error with respect to the admission of Dr.

Cooper’s third statement to be harmless, I find that the

error relating to the admission of all three statements to

be harmless.   Therefore, I join in affirming the decision

of the court below.




                              4