A federal appeals court upheld the convictions of Mitchel Crow in a sexual abuse case involving a minor at a military base, ruling that prosecutors were not required to provide advance notice of certain rebuttal testimony from a government expert witness.
Crow argued he was asleep during the sexual encounters because of sexsomnia, a sleep disorder that can involve sexual behavior while unconscious. His expert witness, Dr. Clete Kushida, testified that the alleged victim’s descriptions were consistent with sexsomnia. During trial, however, Kushida also introduced new opinions suggesting Crow was not malingering, or faking symptoms.
The government’s expert, Dr. Michel A. Cramer Bornemann, responded to those new claims during rebuttal testimony. Crow argued on appeal that prosecutors violated Federal Rule of Criminal Procedure 16 by failing to disclose Bornemann’s rebuttal opinions before trial.
The 10th U.S. Circuit Court of Appeals rejected that argument, concluding the government had no duty to disclose rebuttal opinions addressing testimony the defense itself had not disclosed before trial. The court said Kushida’s original report addressed only whether Crow’s behavior was consistent with sexsomnia and did not mention malingering or Crow’s truthfulness.
Because the defense introduced those opinions for the first time at trial, the court found prosecutors were not obligated to provide pretrial notice of how their expert would respond.
The court also declined to consider Crow’s separate argument that the trial judge acted unfairly by limiting time to interview the rebuttal expert because that claim was raised too late in the appeal process.
The ruling leaves intact Crow’s convictions related to sexual encounters in the victim’s bedroom.