United States v. Harry (20 F. Supp. 3d 1196, 2014)

UNSEALED MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

You can’t hide your lyin’ eyes

And your smile is a thin disguise

I thought by now you’d realize

There ain’t no way to hide your lyin’ eyes

The Eagles, Lyin’ Eyes (1975 Cass County Music & Red Cloud Music).

THIS MATTER comes before the Court on: (i) Defendant Myron Harry’s Motion in Limine to Exclude Testimony of Sane Nurse and Supporting Memorandum, filed January 24, 2013 (Doc. 108)(“SANE MIL”); and (ii) the United States’ Motion to Exclude Expert Testimony of Samuel Roll, filed March 26, 2013 (Doc. 129)(“Roll MIL”). The Court held hearings on March 29, 2013, and April 10, 2013. The primary issues are: (i) whether the Court should exclude the testimony of Julie Ky-sar, R.N., a Sexual Assault Nurse Examiner (“SANE nurse”) in Farmington, New Mexico, because it is irrelevant, unfairly prejudicial, will include opinion testimony that lacks a reliable basis in scientific or medical knowledge, or will include hearsay that is not within an exception; and (ii) whether the Court should exclude Dr. Samuel Roll from testifying at trial because his proffered expert opinion lacks a reliable basis in psychological knowledge or is irrelevant. The Court will deny the SANE MIL and grant the Roll MIL. The Court concludes that Kysar’s factual testimony is relevant to the charges against Harry, any hearsay within her testimony falls within rule 803(4)’s exception to hearsay for statements made to a medical provider, and Kysar has a basis in reliable medical knowledge to provide her opinion regarding Jane Doe’s injuries, an opinion that is relevant to the jury’s determination whether Doe and Harry engaged in consensual intercourse. The Court will not allow Dr. Roll to testify, because he has not provided the Court with an article, resource, or other basis of knowledge in the field of psychology that supports his proffered testimony.

FACTUAL BACKGROUND

The United States accuses Harry of sexually assaulting Doe during a party the night of May 5-6, 2010, in Shiprock, New Mexico. See Indictment at 1, filed June 24, 2010 (Doe. 14). The Court previously made findings of fact for Harry’s Motion to Suppress Evidence Based on Spoliation or Incompleteness, filed June 26, 2012 (Doc. 75). See Memorandum Opinion and Order at 2-16, filed February 19, 2018 (Doc. 114). The Court incorporates those findings of fact by reference herein.

The morning after the incident, Doe asserted that Harry sexually assaulted her at the party. See SANE MIL at 1. Doe visited Kysar for an examination. SANE MIL at 1. During the SANE examination, Kysar noted that Doe’s demeanor was tearful, calm/cooperative, and she made poor eye contact. See Sexual Assault Exam at 1, 3, filed March 26, 2013 (Doc. 128-5).

Harry initially denied having sexual contact with Doe. DNA evidence revealed Harry’s DNA on vaginal swabs taken from Doe. See Response to Motion in Limine to Exclude Expert Testimony ¶ 1, at 1, filed January 31, 2013 (Doc. 112)(“SANE Response”).

PROCEDURAL BACKGROUND

On June 24, 2010, a grand jury indicted Harry for having knowingly engaged in a sexual act with Doe, who was physically incapable of declining participation and could not communicate her unwillingness to engage in the sexual act, in violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(A). See Indictment at 1. Trial in this matter is set for May 6, 2013, at 9:00 a.m. See Agreed Order to Vacate and Reset Trial and Extend the Time for the Filing of Pre-Trial Motions at 4, filed February 28, 2013 (Doc. 12). On September 28, 2012, Plaintiff United States of America informed the parties that it intends to call Kysar, a “certified Sexual Assault Nurse Examiner with the Sexual Assault Services of Northwest New Mexico” to testify regarding the conclusions in Doe’s SANE examination report. Sealed Notice of Intention to Offer Expert Testimony ¶ 3, at 2, filed September 28, 2012 (Doc. 95)(“SANE Notice”). The United States asserts that Kysar’s testimony will be mostly factual, and not “expert” in nature, but notifies the Court that it has, “out of an abundance of caution,” listed her as a potential expert witness, because “she may include her expert opinions or specialized knowledge regarding this matter and derived from her education, training, and professional experience as a sexual assault nurse examiner.” SANE Notice ¶ 3, at 2. On January 24, 2013, the United States notified the Court and Harry that it intends to call Kysar as an expert at trial. See Sealed First Amended Notice of Intention to Offer Expert Testimony ¶ 3, at 2, filed March 26, 2013 (Doc. 128)(“Second SANE Notice”). The United States intends to call Kysar to testify regarding the “contents of her report and examination of Jane Doe,” the medical questions she asked Doe, and Doe’s responses to Kysar’s questions. Second SANE Notice ¶ 3, at 2. Additionally, the United States intends for Kysar to testify regarding the SANE examination, the tools and instruments Ky-sar used during the examination, “what the examination entailed,” and which areas of Doe’s body Kysar examined. Second SANE Notice ¶ 3, at 2. The United States intends for Kysar to testify that she took swabs from Doe’s genitalia and anus for serology and DNA examination, and that Kysar identified injuries and tearing on Doe’s genitalia. The United States states that Kysar “may testify that she cannot conclude that the injuries and tearing are indicative of non-consensual or consensual intercourse,” Second SANE Notice ¶ 3, at 2-3. The United States states that Kysar may testify that Doe’s injuries are “consistent with injury by blunt force trauma, which could have been caused by a penis during attempted penetration of the vagina.” Second SANE Notice ¶ 3, at 3. The United States maintains that Kysar’s testimony will be “largely factual but does contain some opinion testimony.” Second SANE Notice ¶ 3, at 3.

Harry intends to call Dr. Roll, a “psychologist of forty (40) years’ experience ... an associate psychology professor at University of New Mexico, widely-published and recognized as a speaker,” as an expert at trial. Second Amendment to Rule 702, 703, 705 Notice of Intent to Call Expert Witness at 1, filed March 15, 2013 (Doc. 122)(“Roll Notice”). Harry states that he may call Dr. Roll to testify

that no known treatise or empirical findings support the existence of any constellation of psychological symptoms or behavior that are observable or measurable which might indicate to a greater or lesser certainty that a person who claims to be a victim of non-consensual intercourse has or has not been such a victim.

Roll Notice at l.'Harry further informs the parties that Dr. Roll will “address to what extent and whether any of the subjective observations by a SANE nurse have empirical support or scientific basis, known in any reliable, verified research, that may be reproduced or verified through scientific or empirical means.” Third Amendment to Rule 702, 703, 705 Notice of Intent to Call Expert Witness at 1, filed March 25, 2013 (Doc. 127)(“Seeond Roll Notice”).

1. The SANE MIL.

Harry asserts that a SANE examination is “not for law enforcement purposes,” and, rather, state law requires that individuals alleging that they have been sexually assaulted receive a SANE examination. SANE MIL at 2. Harry asserts that his counsel interviewed Kysar and that Kysar informed Harry’s counsel: “I’m not able to differentiate between nonconsensual and consensual injury caused by nonconsensual or consensual sex. I’m not able to differentiate those.” SANE MIL at 2. Harry contends that neither his identity nor Doe’s capacity to consent are at issue, and, therefore, Kysar need not testify regarding her findings on those matters. Harry asserts that Kysar will have no expert opinion or specialized knowledge to offer to this matter, and that her testimony may be irrelevant and touch on impermissible character evidence. See SANE MIL at 2. Harry asserts that Kysar found “no admissible evidence of injury, representation of no injury, no evidence of forceable [sic] penetration,” and that he will not contest that a rape kit was used to obtain samples from Doe which the United States then tested. SANE MIL at 4. Harry contends that Kysar cannot offer an opinion whether her findings indicate consensual or non-consensual intercourse occurred. Harry contends, therefore, that Kysar’s testimony lacks any probative value under rule 403. He asserts that “[t]o even permit the SANE nurse to take the stand as a fact witness would be reversible error for several reasons,” including that her testimony would serve no medical purpose and only bolster the testimony of the United States’ other witnesses. SANE MIL at 5. Harry argues that Kysar’s testimony does not fall within any exception for medical testimony. See SANE MIL at 5. Harry requests that the Court, therefore, preclude Kysar from testifying. See SANE MIL at 6.

The United States requests the Court to admit both Kysar’s factual and expert testimony “regarding the victim’s statements provided to Ms. Kysar during the victim’s sexual assault exam.” SANE Response at 1. The United States asserts that the SANE MIL is without merit. See SANE Response ¶ 3, at 2. The United States first asserts that rule 803(4) of the Federal Rules of Evidence’s exception to the hearsay prohibition allows the Court to admit the SANE nurse’s testimony regarding Doe’s statements, because her statements were “ ‘made for the purposes of medical diagnosis or treatment.’ ” SANE Response ¶ 4, at 2-3 (quoting Fed.R.Evid. 803(4)). The United States contends that, in United States v. Tome, 61 F.3d 1446 (10th Cir.1995), the United States Court of Appeals for the Tenth Circuit held that “statements made in preparation for an examination in response to questions designed to build rapport, and statements that noted the extent of touching without identification of the perpetrator made during a secondary examination to determine whether abuse had occurred were all admissible under Fed.R.Evid. 803(4).” SANE Response ¶ 5, at 3.

The United States asserts that rule 803(4) covers Doe’s statements, because the SANE examination was conducted for Doe’s “health and well-being.” SANE Response ¶ 6, at 3 (citing United States v. Joe, 8 F.3d 1488, 1493 (10th Cir.1993)). The United States asserts that the SANE examination was conducted for medical purposes and not to further a criminal investigation. See SANE Response ¶ 6, at 4.

The United States also asserts that, contrary to Harry’s contention, “it is common practice for treating practitioners to take the stand as fact witnesses.” SANE Response ¶ 7, at 4. The United States points out that, in United States v. Chaco, 801 F.Supp.2d 1200, 1203 (D.N.M.2011) (Browning, J.), the Court determined that statements made during a SANE examination “fall within rule 803(4)’s hearsay exceptions.” SANE Response ¶ 7, at 4 (citing United States v. Frost, 684 F.3d 963, 976 (10th Cir.2012)).

The United States “concedes that the SANE nurse is not able to differentiate between nonconsensual and consensual injury caused by nonconsensual or consensual sex.” SANE Response ¶ 8, at 5. The United States asserts, however, that the SANE examination revealed vaginal tearing and other injuries. See SANE Response ¶ 8, at 5. The United States asserts that the Tenth Circuit has allowed a doctor to testify about the results of a physical examination, and “whether or not the results were consistent with the victim’s allegations of sexual abuse.” SANE Response ¶ 8, at 5 (citing United States v. Charley, 189 F.3d 1251, 1264 (10th Cir.1999)). The United States states that it intends to call Kysar “to testify to her opinion as to whether or not Jane Doe’s injuries are consistent with the method of injury.” SANE Response ¶ 8, at 5. The United States last asserts that excluding Kysar would be an “extreme remedy ... that is not supported in case law or the Federal Rules of Evidence.” SANE Response ¶ 9, at 6.

Harry responds that United States v. Tome’s broad admission of testimony from alleged sexual assault victims is applicable in cases of child sexual assault and, thus, not applicable here. See Reply to Response to Motion in Limine to Exclude Expert Testimony at 1, filed February 19, 2013 (Doc. 115)(“SANE Reply”). Harry contends that “there exists no recognized galaxy of behaviors or demeanors or appearances that are observable and can distinguish between consensual or nonconsen-sual sexual relations,” and, thus, Kysar cannot testify regarding her perception of Doe after the incident. See SANE Reply at 1-2. Harry contends that Kysar’s testimony is not relevant to any issue in the case and that its prejudicial effect far outweighs its probative value. See SANE Reply at 2. Harry contends that Kysar cannot testify whether Doe and Harry engaged in consensual or nonconsensual intercourse, because Kysar admits that she cannot differentiate between the two. See SANE Reply at 2-3. Harry asserts that Doe’s alleged injuries are consistent with consensual intercourse. See SANE Reply at 3.

Harry also asserts that the testimony of Kysar, as a lay witness, has no probative value. He argues that Kysar’s testimony might confuse or divide the jury, or cause the jury to make its decision on improper beliefs which the evidence does not support. See SANE Reply at 3. Harry contends that Kysar’s testimony may only be relevant if Harry denied that Doe had a SANE examination, which he does not deny. See SANE Reply at 3-4.

2. The Roll MIL.

The United States moves the Court to exclude testimony from Harry’s witness, Dr. Roll. See Roll MIL at 1. The United States asserts that it has not received an expert report from Dr. Roll. See Roll MIL at 2. The United States asserts that neither it nor the Court can evaluate Dr. Roll’s expert testimony without a report. See Roll MIL at 3. The United States asserts that, based on the limited information in the Roll Notice and Second Roll Notice, Dr. Roll’s testimony is “irrelevant and improper under rule 702 and Daubert and the Court should exclude Roll from testifying.” Roll MIL at 4. The United States contends that the Roll Notice and Second Roll Notice are “wholly inadequate to meet Rule 702’s requirements.” Roll. MIL at 4. The United States further asserts that Dr. Roll’s testimony would infringe on the “jury’s province to determine the facts and to assess credibility.” Roll MIL at 4. The United States contends that, in United States v. Adams, 271 F.3d 1236 (10th Cir.2001), the Tenth Circuit held that the “ ‘credibility of witnesses is generally not an appropriate subject for expert testimony,’ ” although the United States notes that the Tenth Circuit did not proscribe a “ ‘blanket exclusion’ of evidence regarding the circumstances of a confession.” Roll MIL at 5 (quoting 271 F.3d at 1244-45). The United States asserts that the Tenth Circuit in United States v. Adams explained that expert testimony that only vouches for witness credibility encroaches on the jury’s “ ‘vital and exclusive function to make credibility determinations,’” and can exceed the scope of an expert’s specialized knowledge, causing a jury to reach a verdict on an improper basis. Roll MIL at 5 (quoting 271 F.3d at 1245). The United States contends that Harry seeks to use Dr. Roll for a similar purpose and that such testimony would violate the Tenth Circuit’s rulings. See Roll MIL at 6. The United States contends that, if the Court does not preclude Dr. Roll from testifying under United States v. Adams, the Court should preclude Dr. Roll from testifying, because the prejudicial effect of Dr. Roll’s testimony will outweigh its probative value. See Roll MIL at 6-7.

3. The March 29,2013 Hearing.

The Court held a hearing on the SANE MIL on March 29, 2013. See Transcript of Hearing (taken March 29, 2013)(“Mar. 29 Tr.”). The Court informed the parties that it had previously discussed similar issues regarding SANE nurse testimony in United States v. Chaco. See Mar. 29 Tr. at 13:5-11 (Court). The Court stated that the issues in this case cannot be easily distinguished from those in United States v. Chaco, in which the Court admitted a victim’s statements through a physician. See Mar. 29 Tr. at 13:12-25 (Court). The Court noted that it made a similar ruling in United States v. Jim, No. CR 10-2653 JB, 2012 WL 2053683 (D.N.M. Jan. 7, 2012) (Browning, J.). See Mar. 29 Tr. at 14:3-12 (Court). The Court stated, therefore, that, “unless there’s something unusual about the SANE nurse then probably the statements that are ... made by the victim to the SANE nurse about the identity and her condition are going to probably come in.” Mar. 29 Tr. at 14:12-17 (Court). The Court stated that it will not allow Kysar to speculate regarding whether vaginal tears are consistent with sexual assault. See Mar. 29 Tr. at 14:18-22 (Court).

Harry moved into evidence the SANE nurse report from May 6, 2011 — Defense Exhibit A — the interview transcript of a December 28, 2012 interview of Kysar— Defense Exhibit B — and Dr. Hariton’s report, dated March 14, 2012 — Defense Exhibit C. See Mar. 29 Tr. at 15:15-23 (Sa-more); id. at 71:8-72:11 (Samore, Court, Nayback). Harry first asserted that his case is distinguishable from United States v. Chaco, because the victim in this case is not a child. See Mar. 29 Tr. at 15:24-16:2 (Samore). The Court countered that the Tenth Circuit finds the identity of the assailant relevant in any sexual assault case, regardless of the victim’s age. See Mar. 29 Tr. at 16:3-18 (Court)(citing United States v. Joe).

The Court inquired of Harry what the problem is with Kysar testifying as a fact, and not an expert, witness. See Mar. 29 Tr. at 17:6-7 (Court). Harry contended that Kysar is “not a treating physician,” and that a SANE nurse’s primary purpose is to give sympathy and support, unlike the treatment Doe would receive in an emergency room. Mar. 29 Tr. at 17:12-20 (Samore). The Court contrasted a SANE nurse with a Federal Bureau of Investigation (“FBI”) agents and investigators, who are often called as witnesses, notwithstanding that FBI agents are “not neutral, they’re going to try to turn every case into a criminal case.” Mar. 29 Tr. at 18:10-17 (Court). Harry countered that statements from medical providers are relevant to prove an assailant’s identity, which is not at issue in this case. See Mar. 29 Tr. at 19:1-5 (Samore). Harry contended that Kysar admitted in her interview that she cannot differentiate, based on her findings, between consensual and nonconsensual intercourse. See Mar. 29 Tr. at 19:8-17 (SamoreXciting Defense Exhibit A at 39). The Court asked Harry how Kysar’s testimony could be problematic if she states that she cannot so differentiate when she testifies, and Harry asserted that the United States wants to introduce more evidence, besides Kysar’s physical findings, through Kysar’s testimony. See Mar. 29 Tr. at 19:23-20:1 (Samore). Harry asserted that the United States wants to introduce evidence of Doe’s demeanor through Kysar, and Harry asserted that Dr. Roll will testify that “there is not one word of empirical support for putting on a witness from the SANE office” to demonstrate that “demeanor makes ... it more or less likely that the person was a victim of sexual assault.” Mar. 29 Tr. at 20:1-12 (Samore). The Court countered that the SANE nurse cannot testify that, based on Doe’s demeanor, she believes it was sexual assault, and the Court stated that Kysar therefore appears to be only a fact witness, and not an expert witness. See Mar. 29 Tr. at 20:13-19 (Court, Samore). The Court noted that a treating physician is not usually considered an expert when the physician comments on an examination which the physician administered. See Mar. 29 Tr. at 21:1-5 (Court). Harry countered that Kysar’s testimony is not relevant, even as a fact witness, because “the prosecution can’t make a threshold showing of authority, not just with presumptions ... to say the demeanor has one ... millimeter, milligram of sup-port_” Mar. 29 Tr. at 21:6-11 (Samore). The Court inquired how a “woman’s demeanor after having consensual sex or having a sexual assault [could] not be relevant^]” Mar. 29 Tr. at 21:12-14 (Court). Harry countered that whether demeanor is relevant varies with each woman, and the Court noted that he may make that argument to the jury. See Mar. 29 Tr. at 21:15-18 (Samore, Court). The Court noted that, if a woman “ran out of the room ... naked and screaming I’ve [been] raped ... I think that would be factually] relevant.” Mar. 29 Tr. at 22:3-7 (Court). The Court stated that it would allow the jury’to decide “whether they thought somebody had been raped or ... sexually assaulted.” Mar. 29 Tr. at 22:9-11 (Court).

Harry noted that Kysar appears to be a “decent lady,” and he does not believe that she will “stretch and ... project [her] opinions.” Mar. 29 Tr. at 22:20-22 (Sa-more). The Court noted that its concern with SANE nurses is that they often become advocates for victims. See Mar. 29 Tr. at 22:23-25 (Court). Harry stated that Kysar admits that “she is an advocate for this lady.” Mar. 29 Tr. at 23:3-4 (Sa-more). Harry asserted, nonetheless, that Kysar’s testimony that Doe’s injuries are consistent with the account she provided to the United States cannot be relevant, unless Harry argues that Doe is changing her story, which he does not plan to argue. See Mar. 29 Tr. at 23:15-21 (Samore). The Court stated that it would not allow Kysar to testify that “based upon her demeanor ... she was sexually assaulted and this was not consensual,” but expressed that the jury can use common sense to determine what weight to give Kysar’s description of Doe’s demeanor. Mar. 29 Tr. at 24:13-23 (Court). Harry asserted that jurors bring “their prejudice” to a rape case, and he asserted that he is trying to “keep the prejudice out.” Mar. 29 Tr. at 25:2-11 (Samore). The Court stated that a SANE nurse is not allowed to “assess” Doe’s demeanor, and, rather, Kysar can only describe Doe’s demeanor. Mar. 29 Tr. at 25:15-21 (Court). Harry asserted that Dr. Roll’s testimony will discuss whether Doe’s demeanor has relevance to the charges against Harry. See Mar. 29 Tr. at 25:22-26:4 (Samore). Harry asserted, further, that Kysar’s testimony describing Doe’s account of the events is not relevant, because it is repetitive and only serves to bolster the United States’ case. See Mar. 29 Tr. at 26:5-10 (Samore). The Court responded that repeating Doe’s story is not necessarily irrelevant, because, that Doe repeats the same story multiple time to different individuals tends to show that the story is more reliable. See Mar. 29 Tr. at 26:11-18 (Court). Harry responded that he would not think repeating the same story gives any more weight to a victim’s story. See Mar. 29 Tr. at 26:19-20 (Samore). Harry asserted, rather, that repeating the same story multiple times would tend to show that a victim is lying, and not that a victim is telling the truth. See Mar. 29 Tr. at 27:22-23 (Samore). Harry stated that he wants to call Dr. Roll to testify regarding the relevance of Ky-sar’s testimony. See Mar. 29 Tr. at 27:13-18 (Samore).

The United States objected to testimony from Mr. Roll. See Mar. 29 Tr. at 27:22 (Nayback). Regarding Kysar’s testimony, the United States stated that she will not assess Doe’s demeanor or asses Doe’s credibility based upon her demeanor. See Mar. 29 Tr. at 28:9-11 (Nayback). The United States agreed that Kysar may not testify that Doe’s demeanor indicates that she was sexually assaulted. See Mar. 29 Tr. at 28:12-19 (Court, Nayback). The Court asked whether Kysar would testify that, in most cases, “consensual sex and sexual assault are going to have the same sort of physical characteristics [in the] overwhelming number of cases?” Mar. 29 Tr. at 28:20-23 (Court). The United States agreed. See Mar. 29 Tr. at 28:24 (Nayback). The United States stated that it agrees with the Court’s restrictions on Kysar’s testimony, that it noticed Kysar as an expert only “out of an [abundance of] caution,” and that Kysar is “a fact witness.” Mar. 29 Tr. at 29:2-6 (Court, Nay-back).

The United States stated that Kysar “might opine ... based on training and experience ... that [Doe’s] injuries [are] consistent” with Doe’s account of the events. Mar. 29 Tr. at 29:18-21 (Nay-back). The United States explained that, according to Doe, Harry came into the bedroom where Doe was sleeping, pulled her panties down, and had sexual relations with her, and that Kysar might opine that the vaginal tears found on Doe are consistent with that version of the incident. See Mar. 29 Tr. at 29:23-30:2 (Nayback). The United States stated that the extent of Kysar’s expert testimony would be that Doe’s vaginal tearing indicates that she was “in no way eooperating[,] she’s not tilting her pelvic area and so she would expect to find the tearing where it was.” Mar. 29 Tr. at 30:2-6 (Nayback). The Court inquired whether Kysar will concede that consensual intercourse and noneon-sensual intercourse can cause the same vaginal tears, and the United States responded that it understands that SANE nurses can “never differentiate really.” Mar. 29 Tr. at 30:11-14 (Court, Nayback). The United States noted that Kysar will inform the jury that aggressive consensual intercourse can cause severe tearing, while a rape victim may have very minimal tearing. See Mar. 29 Tr. at 30:14-19 (Court, Nayback). The United States stated that Kysar’s testimony is relevant, because Harry initially denied touching Doe, and took issue with Harry’s contention that SANE nurses provide sympathy to victims, and argued that Kysar’s testimony is relevant regarding Doe’s vaginal tearing and her account of events. Mar. 29 Tr. at 30:21-25 (Nayback). The United States contended that identity is an issue, because Harry denied touching Doe, but a DNA test found his fluids inside of her. See Mar. 29 Tr. at 31:1-10 (Nayback).

The United States suggested that Dr. Roll not testify at the March 29, 2013 hearing, because Dr. Roll had not yet filed an expert report, and, therefore, the United States had no basis for questioning Dr. Roll. See Mar. 29 Tr. at 31:19-32:8 (Nay-back). The Court responded that it could hear the United States’ objections to Dr. Roll’s expert testimony at a later hearing, but that, at the March 29, 2013, hearing, Harry’s purpose for Dr. Roll’s testimony is to bolster the SANE MIL. See Mar. 29 Tr. at 32:9-17 (Court). The Court stated that it would allow Harry to examine Dr. Roll, but may let the United States cross-examine Dr. Roll after he has produced an expert report. See Mar. 29 Tr. at 33:23-34:2 (Court). The Court inquired of Harry whether he is using Dr. Roll at the March 29, 2013 hearing for the limited purpose of bolstering his SANE MIL, and Harry responded that bolstering the SANE MIL is his purpose for Dr. Roll’s testimony. See Mar. 29 Tr. at 34:3-12 (Court, Harry). Harry stated that, if the Court allows Ky-sar to testify about demeanor, he would want Dr. Roll to testify that demeanor does not indicate anything. See Mar. 29 Tr. at 34:3-6 (Court, Samore).

Harry then called Dr. Roll to testify. See Mar. 29 Tr. at 39:27-21 (Court, Sa-more, Witness). The United States waived an inquiry regarding Dr. Roll’s qualification as an expert in the field of psychology, because Dr. Roll has previously testified before the Court as an expert. See Mar. 29 Tr. at 40:2-9 (Samore, Roll, Court, Nayback). Harry asked Dr. Roll whether there is “any constellation or observable behaviors of people who claim to be a victim of sexual abuse that is recognizable or ... makes it more likely or less likely that they’re telling the truth?” Mar. 29 Tr. at 40:16-21 (Samore). Dr. Roll replied: “There is not.” Mar. 29 Tr. at 40:22 (Roll). Dr. Roll explained that “it is the absence of what is in the record” that supports his opinion. Mar. 29 Tr. at 40:23-41:1 (Samore, Roll). Dr. Roll stated that he has “followed the research on sexual abuse [and] asexual assaults since at least 40 years ago ... and none of them .... indicate] that [a] constellation of physical presentation can either confirm or inform the hypothesis that abuse was consensual or not.” Mar. 29 Tr. at 41:1-8 (Roll). Dr. Roll stated that he had not reviewed particular documents before testifying at the March 29, 2013, hearing, and, rather, the history of his work and review of journals of normal psychology and personality assessment over the years informs his opinion. See Mar. 29 Tr. at 41:13-18 (Roll). Dr. Roll stated that, in his thirty-three years of teaching psychology, he has not found a psychology textbook which states that a person’s demeanor or a constellation of features is reliable, and he stated that a person’s demeanor and features are “highly unreliable.” Mar. 29 Tr. at 41:19-24 (Roll). Dr. Roll stated that whether a person is calm or tearful is not indicative whether that person was sexually abused or assaulted. See Mar. 29 Tr. at 42:1-7 (Roll).

Harry inquired whether Dr. Roll notes patients’ demeanor when he examines patients, and Dr. Roll stated that he does. See Mar. 29 Tr. at 42:14-17 (Samore, Roll). Dr. Roll stated that a person’s demeanor is relevant contextually and may indicate that a certain topic triggers a response in an individual. See Mar. 29 Tr. at 42:23-43:43:4 (Samore, Roll). Dr. Roll stated that he cannot assess, from a person’s behavior, whether they were sexually assaulted. See Mar. 29 Tr. at 43:10-17 (Roll). Dr. Roll stated that a person’s responses can “go every which way [f]or every which behavior,” and, therefore, a person’s demeanor is not a reliable method of determining whether an individual was sexually assaulted. Mar. 29 Tr. at 43:19-24 (Roll). In response to Harry’s question whether a person’s behavior can determine that person’s credibility in court, Dr. Roll responded that an individual’s behavior is “just too [unreliable from the psychological perspective” to be indicative of credibility. Mar. 29 Tr. at 43:25-44:23 (Samore, Roll). In response to Harry’s question whether Dr. Roll perceives problems with a nurse testifying about an alleged victim’s statements, Dr. Roll stated that a person’s behavior cannot indicate whether that person is telling an account truthfully. See Mar. 29 Tr. at 44:15-46:12 (Samore, Roll). Dr. Roll stated that he is testifying only that there is not a “constellation of behaviors and emotion[s] [that] can be used reliably to tell whether or not sex was consensual or] not.” Mar. 29 Tr. at 46:17-22 (Roll).

The United States stated that it prefers to cross-examine Dr. Roll at a later hearing, after Dr. Roll produces an expert report. See Mar. 29 Tr. at 47:8-14 (Court, Nayback). The Court asked Dr. Roll whether he is familiar with Malcolm Glad-well’s book Blink: The Power of Thinking Without Thinking (Back Bay Books, 2007), and Dr. Roll responded that he is familiar with the book. See Mar. 29 Tr. at 47:15-23 (Court, Roll). The Court asked Dr. Roll what his opinion is of the section in Blink where Gladwell describes psychologists’ study of individuals’ faces for the purpose of determining the individuals’ underlying emotions. See Mar. 29 Tr. at 47:24-48:3 (Court). Dr. Roll responded that, “if that were true, it would be the most startling finding in the history of psychology and ... you would be out of a job and so would I.” Mar. 29 Tr. at 48:11-15 (Roll). Dr. Roll stated that there is “no way ... that these kinds of actions even the subtle ones that you measure with a ... lie detect[or] or polygraph test can[ ] be relied on....” Mar. 29 Tr. at 48:17-23 (Roll). Regarding Gladwell’s description of the psychologists’ catalog of faces indicating emotions, Dr. Roll stated that young theatre actors are able to create “every kind of [emotion] you can imagine and [ ] are ... believable,” and that, if Gladwell’s hypothesis is correct, “it would be much more startling than any of [F]r[e]ud’s discoveries.” Mar. 29 Tr. at 49:5-16 (Court, Roll).

4. Harry’s Response to the Roll MIL.

Harry asserts that Kysar’s testimony is “unnecessary, irrelevant, entirely unsupported by empirical evidence supporting its reliability.” Response to Government’s Motion to Exclude Expert Testimony of Samuel Roll at 2, filed April 9, 2013 (Doc. 132)(“Roll Response”). Harry contends that any objections which the United States had to Dr. Roll’s testimony have been cured from the time the United States filed the Roll MIL. See Roll Response at 1.

Harry contends that Dr. Roll’s testimony is “absolutely essential to achieve a fair trial.” Roll Response at 2. Harry asserts that the United States conceded at the March 29, 2013, hearing that any testimony from Kysar “regarding a possible, positional explanation of physical findings and, secondarily, the demeanor of the Porseeu-trix has no evidentiary value ... whether the alleged relations were consensual or nonconsensual.” Roll Response at 2. Harry contends that, if Kysar is allowed to testify in support of Doe’s allegations of sexual assault, Kysar’s testimony would “suggest to an otherwise uninformed jury that it has value.” Roll Response at 3. Harry asserts that the United States is seeking to “offer unproven, entirely unreliable evidence to confuse the jury and suggest that it is something with merit to support the Government’s case.” Roll Response at 3. Harry contends that “to permit the SANE witness to testify regarding [] the Government’s admitted purposes and to deny the Defense opportunity to provide substantive response is Constitutionally prejudicial and selectively denies fair trial.” Roll Response at 3.

5. The April 10,2013 Hearing.

The Court held a hearing on April 10, 2013, .at which the United States cross-examined Dr. Roll. See Transcript of Hearing at 39:6-12 (taken April 10, 2013)(Court, ' Witness)(“Apr. 10 Tr.”). Dr. Roll stated that Harry first contacted him about the case approximately three weeks before the hearing, he has spent approximately fourteen hours preparing for his testimony, and he has reviewed the Court’s proceedings, motions, Kysar’s notes, and some psychological research. See Apr. 10 Tr. at 40:12-41:2 (Nayback, Roll). Dr. Roll stated that he has not conducted a psychological examination of, or had personal contact with, any of the witnesses. See Apr. 10 Tr. at 42:9-14 (Nayback, Roll). In response to the United States’ question how Dr. Roll’s testimony would be relevant, Dr. Roll responded that, if asked, he will testify that there are no constellation of behaviors found in scientific evidence that indicate that an individual had consensual intercourse. See Apr. 10 Tr. at 43:8-21 (Nayback, Roll). Dr. Roll asserted that there is not a certain behavior that consistently indicates a particular aspect of an individual’s past. See Apr. 10 Tr. at 46:17-47:6 (Nayback, Roll). Dr. Roll stated that regardless whether an individual is a victim of domestic violence or won the lottery, an individual’s demeanor is not indicative of their experience. See Apr. 10 Tr. at 47:12-22 (Nayback, Roll). Dr. Roll stated that an individual yelling that “they w[on] the lottery doesn’t mean they’re not telling the truth. It’s not about truth telling.” Apr. 10 Tr. at 48:2-6 (Roll). Dr. Roll stated that he will not testify that, because an individual is crying during a SANE examination, she is telling the truth, but, rather, his testimony is that “behavioral constellations are not a good guideline based on psychological [research].” Apr. 10 Tr. at 48:15-25 (Nayback, Roll). Dr. Roll stated that the literature “really doesn’t discuss this ... that demean[or] is a reliable indicator of [whether] ... [a] person’s sexual experiences are consensual or non[consensual].” Apr. 10 Tr. at 49:14-19 (Roll). The United States inquired whether Dr. Roll is, therefore, testifying to a negative, and Dr. Roll admitted that he is “somewhat testifying to the negative.” Apr. 10 Tr. at 49:19-21 (Nayback, Roll). Dr. Roll asserted that psychological reports cataloging reliable psychological indicators do not include demeanor as a reliable indicator. See Apr. 10 Tr. at 50:2-12 (Roll). Dr. Roll asserted that the general discrediting of polygraph tests in the psychological community is evidence that psychologists do not find behavior indicators to be reliable. See Apr. 10 Tr. at 51:13-21 (Roll).

The United States inquired whether Dr. Roll’s opinion may be tested, and Dr. Roll replied: “Of course.” Apr. 10 Tr. at 53:4-5 (Nayback, Roll). Dr. Roll asserted that the National Academy of Sciences has found that behavioral manifestations are unreliable. See Apr. 10 Tr. at 53:7-10 (Roll). The United States inquired how Dr. Roll’s testimony that there is not a connection between psychological behaviors and sexual experience may be tested, and Dr. Roll stated that his opinion may be tested with the methods described in the articles attached to his expert report. See Apr. 10 Tr. at 53:11-19 (Nayback, Roll). Dr. Roll admitted that his expert opinion has not been peer reviewed. See Apr. 10 Tr. at 53:20-24 (Nayback, Roll). Dr. Roll asserted that his opinion is accepted in the scientific community and is in accordance with relevant academic psychological standards. See Apr. 10 Tr. at 54:13-55:8 (Nayback, Roll). In response to the United States’ question, Dr. Roll stated that he “may have” noted demeanor in previous forensic evaluations, but that he does not normally note an individual’s demeanor “because some of the material that I have reviewed here indicates that is the least useful part of the evaluation and ... it’s distracting.” Apr. 10 Tr. at 55:19-24 (Nayback, Roll). The United States inquired whether Dr. Roll’s testimony is relevant if the Court instructs the jury that the jurors are the “sole judges of credibility and believability.” Apr. 10 Tr. at 56:17-19 (Nayback). Dr. Roll replied that, in his opinion, his testimony is not rendered irrelevant by such an instruction. See Apr. 10 Tr. at 56:20-21 (Roll). The United States inquired whether Dr. Roll believes that the jury can judge the value of an individual’s demeanor for assessing the individual’s past experiences, and Dr. Roll stated that the ability of a jury to judge credibility is “not my call.” Apr. 10 Tr. at 58:13-21 (Nayback, Roll). In response to the United States’ question, Dr. Roll stated that he is not being called to testify regarding the credibility of any particular witness in this case. See Apr. 10 Tr. at 60:14-18 (Nayback, Roll). Dr. Roll agreed that the credibility of witnesses is not an appropriate subject for expert testimony. See Apr. 10 Tr. at 62:21-25 (Nay-back, Roll).

On re-direct, Dr. Roll stated that not every authorized study in psychological science is published. See Apr. 10 Tr. at 65:3-9 (Samore, Roll). Dr. Roll also stated that he would not, at trial, assess the import of any witnesses’ testimony, although he recognized that his testimony may “touch on” witnesses’ credibility when testifying. Apr. 10 Tr. at 66:20-67:4 (Sa-more, Roll).

The Court noted that it will likely e&Iow Kysar to testify regarding Doe’s demean- or, without allowing her to assess Doe’s demeanor. See Apr. 10 Tr. at 67:19-68:2 (Court). The Court further stated that Dr. Roll’s testimony may be relevant to the jury, because many jurors likely believe that demeanor has a significant value. See Apr. 10 Tr. at 68:3-5 (Court); id. at 68:7-69:4 (Court). The United States contended that Dr. Roll has not provided an article that supports his opinion testimony regarding demeanor. See Apr. 10 Tr. at 69:6-11 (Nayback). The Court agreed that the absence of scientific support is a problem with admitting Dr. Roll’s testimony. See Apr. 10 Tr. at 69:12-17 (Court). The Court countered, nonetheless, that Dr. Roll’s testimony seems to be similar to that of an expert testifying that eye-witness testimony is not infallible. See Apr. 10 Tr. at 69:21-70:14 (Court). The United States responded that it has never seen nor heard of an expert who testifies regarding the fallibility of eye-witness testimony and that any such expert testimony is distinguishable from Dr. Roll’s testimony. See Apr. 10 Tr. at 70:15-24 (Court). The United States asserted that Dr. Roll’s testimony is relevant only to assess the credibility of witnesses, which is a precluded purpose for expert testimony in the Tenth Circuit. See Apr. 10 Tr. at 71:3-11 (Nayback). The United States further asserted that Dr. Roll has provided insufficient scientific basis for his expert opinion and that Dr. Roll’s testimony is not proven reliable within his scientific field. See Apr. 10 Tr. at 71:11-24 (Nayback). The United States asserted that credibility is for the jury to judge, and'that, if Dr. Roll testifies, his testimony will have no parameters. See Apr. 10 Tr. at 72:1-11 (Nayback). The Court noted that, although the jury is the sole judge of credibility, lawyers are allowed to impeach witnesses. See Apr. 10 Tr. at 72:12-17 (Court, Nayback). The Court stated that, at least with respect to relevance, the Court is allowing evidence of Doe’s demeanor to be admitted and that, if Dr. Roll testifies regarding the value of Doe’s emotional state, that testimony would be relevant. See Apr. 10 Tr. at 75:18-24 (Court). The United States asserted that Dr. Roll’s testimony would go too far because he would testify whether Doe and Harry engaged in consensual intercourse, but the Court countered that Dr. Roll never stated that his testimony would encompass whether there was consensual intercourse. See Apr. 10 Tr. at 75:15-21 (Nayback, Court). The United States asserted, therefore, that Dr. Roll’s testimony does not have a factual connection necessary to be relevant to the case, but the Court stated that it does not want Dr. Roll to testify about the credibility of particular witnesses in the case. See Apr. 10 Tr. at 75:22-76:8 (Nayback, Court). The United States asserted that Dr. Roll’s testimony would still be tied to the facts of the case and that Dr. Roll’s testimony cannot meet the standards necessary for expert testimony. See Apr. 10 Tr. at 76:20-77:13 (Nayback).

Harry asserted that he is not making demeanor an issue in this case. See Apr. 10 Tr. at 77:20-21 (Samore). Harry asserted that the United States has not produced any evidence indicating the relevance of demeanor to sexual assault victims and that Dr. Roll has brought forward five studies which demonstrate that demeanor is not relevant to assessing a person’s background. See Apr. 10 Tr. at 78:3-15 (Samore). Harry contended that, if Dr. Roll does not testify, the jury will give undue weight to Kysar’s testimony regarding Doe’s demeanor. See Apr. 10 Tr. at 79:25-80:6 (Samore). Harry asserted that the absence of Tenth Circuit case law regarding testimony such as Dr. Roll’s is evidence of a prosecutorial bias in the appellate process. See Apr. 10 Tr. at 79:10-24 (Samore). Harry asserted that the Court has an opportunity to fashion a fair remedy for his case. See Apr. 10 Tr. at 80:21-81:3 (Samore). Harry contended that the importance of demeanor is not a “hot topic” in psychology, and, rather, it is settled that it is not relevant to indicate an individual’s psychological history. Apr. 10 Tr. at 82:18-24 (Samore). Harry asserted that, if evidence of Doe’s demeanor is admitted, the Court should allow Dr. Roll to testify. See Apr. 10 Tr. at 83:9-16 (Samore).

The Court inquired whether Dr. Roll’s testimony has any relevance beyond attacking the credibility of Doe’s demeanor. See Apr. 10 Tr. at 84:1-10 (Court). Harry stated that Dr. Roll will not testify about Doe’s credibility and, rather, that Dr. Roll will testify that the juror cannot “determine the validity, the reliability of what they’re describing to you” through demeanor. Apr. 10 Tr. at 84:11-19 (Samore). The Court stated that it is concerned that Dr. Roll will testify that an individual’s emotional response is not a “reliable indication that a person’s sexual experiences were consensual or nonconsensual.” Apr. 10 Tr. at 85:5-9 (Court). The Court stated that such a testimony is close to commenting on the credibility of witnesses. See Apr. 10 Tr. at 84:11-16 (Court). Harry responded that Dr. Roll could not testify about the witnesses’ credibility in the case because Dr. Roll will not comment on a particular emotional response. See Apr. 10 Tr. at 85:17-19 (Samore). The Court asked Harry, therefore, what the relevance of Dr. Roll’s testimony would be. See Apr. 10 Tr. at 85:20-21 (Court). The Court stated that Dr. Roll must be able to provide at least two or three articles in support of his opinion that “demeanor doesn’t tell anybody about the ... emotions” of an individual. Apr. 10 Tr. at 86:2-12 (Court). Harry responded that the subject of Dr. Roll’s testimony is not Doe’s particular emotional response, but, rather, that the there is no evidence to link her emotional response to a particular sexual incident. See Apr. 10 Tr. at 86:15-24 (Samore). The Court responded that it seems as though somebody in the realm of psychology should have been able to comment heretofore on the disconnect between demeanor and emotional response if the disconnect exists to the extent Dr. Roll testifies it does. See Apr. 10 Tr. at 87:7-11 (Court). The Court stated that Dr. Roll should be able to cite to an article that indicates that Gladwell’s theories are “a bunch of garbage” if Dr. Roll’s opinion is accurate. Apr. 10 Tr. at 87:14-020 (Court). Harry asserted that ample evidence exists in the field of psychology that demeanor is not reliable evidence. See Apr. 10 Tr. at 87:21-88:15 (Samore). The Court responded that the Federal Rules of Evidence seem to allow demeanor and, therefore, recognize that demeanor is a valuable tool of assessment for the jury. See Apr. 10 Tr. at 88:16-21 (Court). The Court stated that the exception for a declarant’s mental, emotional, and physical state indicates that demeanor is admissible evidence. See Apr. 10 Tr. at 89:1-4 (Court). Harry contended that Dr. Roll’s testimony would preclude the jury from making “that erroneous unsupported inference” that Doe’s demeanor has relevance to her credibility. Apr. 10 Tr. at 89:9-17 (Samore).

The Court inquired whether Harry can characterize Dr. Roll’s testimony in any other fashion than testimony regarding an individual’s emotions or the validity of an individual’s statements. See Apr. 10 Tr. at 90:24-91:6 (Court). Harry stated that Dr. Roll will testify that an individual’s demeanor is not indicative whether that individual was sexually assaulted or had other sexual experiences, or of the validity of that individual’s statements. See Apr. 10 Tr. at 91:7-19 (Samore). Harry conceded that, when he says “validity,” he is referring to the truthfulness of an individual’s statement. Apr. 10 Tr. at 91:20-24 (Court, Samore). The Court stated that it will likely exclude Dr. Roll’s testimony if its subject matter is reliability or validity of an individual’s statements. See Apr. 10 Tr. at 92:3-9 (Court, Samore). Harry asserted that emotions are not at issue in this case, and, rather, that the United States is seeking to introduce Doe’s demeanor to support the validity of her statements. See Apr. 10 Tr. at 92:18-93:1 (Samore). Harry asserted that he has a right to respond to the United States’ evidence regarding the validity of Doe’s statements. See Apr. 10 Tr. at 93:2-15 (Sa-more).

The Court inquired whether the United States would agree to Dr. Roll’s testimony if he broadened the scope of his opinion to state that demeanor is not an indicator of psychological phenomenon, which would omit any mention of sexual experience. See Apr. 10 Tr. at 94:8-13 (Court). The United States responded that it would not likely be comfortable with Dr. Roll’s testimony even if it were so broadened. See Apr. 10 Tr. at 94:14-16 (Nayback). The United States also asserted that Dr. Roll’s testimony is not relevant to a material issue in the case, because Kysar will not assess Doe’s demeanor. See Apr. 10 Tr. at 95:12-24 (Nayback). The United States asserted that Dr. Roll’s expert report does not meet the standards necessary for him to testify as an expert. See Apr. 10 Tr. at 96:14-20 (Nayback).

The Court inquired of Harry whether he would still want Dr. Roll to testify if the Court did not allow Kysar to testify regarding Doe’s demeanor. See Apr. 10 Tr. at 97:2-6 (Court). Harry responded that he would. See Apr. 10 Tr. at 97:7 (Sa-more).

The Court stated that it is inclined to allow Kysar to testify about Doe’s demean- or, as “most .people ... do think demeanor is probably something that [factors] in determining credibility.” Apr. 10 Tr. at 98:22-25 (Court). The Court stated that it would take the Roll MIL under advisement and would consider whether Dr. Roll’s testimony may be limited so that “he provides some basic information without in any way commenting on this case.” Apr. 10 Tr. at 99:2-15 (Court). The Court also stated that Dr. Roll’s testimony may not meet the standards necessary for admission of expert testimony. See Apr. 10 Tr. at 99:15-17 (Court). The Court stated that Dr. Roll must provide the Court with “no more than ten pages of at least three articles that are highlighted that supports what he says,” and, that if he cannot, then the Court will likely exclude Dr. Roll’s testimony under Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Apr. 10 Tr. at 100:1-6 (Court). The Court stated that it is inclined to “find some ground to allow some testimony, but try to keep it as far away from him commenting on the incident in this case as much as possible.” Apr. 10 Tr. at 101:1-4 (Court). The Court noted that it excluded Dr. Roll’s testimony entirely in United States v. Sanchez, No. CR 02-2283 (Doc. 101). See Apr. 10 Tr. at 101:5-9 (Court).

6. Dr. Roll’s Supporting References.

Harry provided the Court with Supporting Reference for Opinions for Samuel Roll and Background Scientific Basis, on April 16, 2013. See Doc. 136 (“Roll Report”). Dr. Roll’s first point is that the absence of references to demeanor and manifest behavior as a reliable tools of psychological assessment demonstrates the negative — that is, demonstrates that demeanor and behavior are not reliable tools of psychological assessment. See Roll Report at 1 (citing Gary B. Melton, John Petrila, Norman G. Poythress, & Christopher Slobogin, . Psychological Evaluations for the Courts: A Handbook for Mental and Health Professionals and Lawyers 43-68 (3d ed.2007)); 1 Robert R. Holt, Methods in Clinical Psychology xi, xii-iv (1978). Dr. Roll also notes that in a “famous Sherlock Holmes story, the fact that a dog did not bark helped Holmes solve the mystery.” Roll Report at 1. Dr. Roll analogizes this Sherlock Holmes to-his statement that “the following references are ones in which one would expect to list demeanor and manifest behavior as measures if they were considered reliable in psychological assessment.” Roll Report at 1 (citing Melton, Petrila, Poythress & Slobogin, supra, at 43-68; Holt, supra, at xi, xii-iv). In the Psychological Evaluations for the Courts: A Handbook for Mental and Health Professionals and Lawyers, the authors state that “a variety of tools are available for the purposes of assessing the client’s functions and impairments, diagnosing mental, disorders, and planning treatment” in a therapeutic context, including interviewing, testing, and retrieval of archival or third-party information, the “most important” of which “is the clinical interview.” Melton, Petrila, Poythress & Slobogin, supra, at 43-44. The authors relate that the same tools are useful for forensic evaluations. See Melton, Petrila, Poythress & Slobogin, supra, at 44. The authors contrast a therapeutic setting, in which a client’s perspective is of utmost importance, with a forensic setting, in which accuracy is of the utmost importance, and, therefore, places a greater emphasis on perspectives attained from multiple sources. See Petrila, Poythress & Slobogin, supra, at 44. The authors note that clinical assessment instruments which are often useful in the therapeutic context — “because they assess general psychological constructs (e.g., intelligence, depression, academic abilities, anxiety level)” — are the “least likely” to be helpful in forensic evaluations because the psychological constructs assessed are “far removed from the specific psychological issues of interests to the legal decisionmaker (e.g, competence to stand trial, best interests of the child, capacity to manage one’s personal and financial affairs).” Melton, Petrila, Poythress & Slobogin, supra, at 48. The authors note that forensically relevant instruments, which are used to assess clinical constructs, are more helpful that clinical assessment instruments, because forensically relevant instruments assess constructs “most relevant to evaluation of persons who are involved in the legal system in some way (e.g., psychopathy, response style, violence risk).” Melton, Petrila, Poythress & Slobogin, supra, at 48. The authors note that a final category of psychological assessment tools, forensic assessment instruments, which assess “psycholegal capacities, abilities, or knowledge, such a criminal defendant’s competence to stand trial” are often used to supplement or replace traditional therapeutic assessment procedures. Melton, Petrila, Poythress & Slobogin, supra, at 48. The authors later state that “most psychological tests have neither been developed nor validated specifically to inform judgments about legally relevant behavior.” Melton, Petrila, Poythress & Slobogin, supra, at 50. The authors also discuss certain situations in which hypnosis may be helpful for a forensic assessment, such as when an individual reports memory problems. See Melton, Petrila, Poythress & Slobogin, supra, at 55.

Melton, Petrila, Poythress and Slobogin also warn forensic examiners about the dangers of relying on “clinical impressions or psychological testing,” to describe an examinee’s response style. Melton, Petri-la, Poythress & Slobogin, supra, at 56. The authors note that a response style may be characterized as “honesi/candid,” “exaggerated/fabricated,” “denying/minimizing,” “irrelevant,” and a combination of these styles. Melton, Petrila, Poythress & Slobogin, supra, at 57. They warn that, unlike patients and clients in a clinical setting, individuals being psychologically examined for forensic purposes often have “much to gain from a particular finding or formulation about the case.” Melton, Petrila, Poythress & Slobogin, supra, at 56. Accordingly, the authors encourage forensic psychological examiners to develop a “low threshold for suspecting dissimulation” and a “conservative stance with respect to reaching conclusions” that an examinee has not responded candidly during an examination. Melton, Petrila, Poythress & Slobogin, supra, at 57. The authors discuss few methodologies for assessing whether an individual is overstating his or her symptoms in the hopes of securing a particular result in litigation, and the authors’ discussion of these methodologies focuses on assessing an individual’s report of her or her symptoms, and not an individual’s demeanor during an interview. See Melton, Petrila, Poythress & Slobogin, supra, at 59-60. Melton, Pe-trila, Poythress and Slobogin also explain that there is little, if any, useful research that may aid an examiner in identifying feigned denial, guardedness, and minimization. See Melton, Petrila, Poythress & Slobogin, supra, at 61-62.

Also in support of Dr. Roll’s theory that the absences of references to demeanor and behavior as reliable psychological assessment tools, Dr. Roll provides an excerpt from Methods in Clinical Psychology’s table of contents. See Roll Report at 1, 30-33. The table of contents denote relevant chapters on the topic of “Individuality and Generalization in the Psychology of Personality: A Theoretical Rationale for Personality Assessment and Research.” Holt, supra, at xiii. The headings for the following chapters relate to “The Thematic Apperception Test,” “The Rorschach,” and “Other Methods,” including “the Szondi Test,” “Self-Evaluations,” and “Analyzing Defense of Self-Esteem.” Holt, supra, at xn-iv. The materials included in the Roll Report do not define these psychological assessment tools.

Dr. Roll also provides the Court with materials that, he states, directly “reference ... the lack of reliability of behavior observation in assessment of personality.” Roll Report at 1 (citing James N. Butcher, Clinical Personality Approaches 225 (Oxford 1995); H.M. Knoff, The Personality Assessment Report and the Feedback and Planning Conference 552 (Guilford Press 1986)). The excerpt from Clinical Personality Approaches reads:

“For ‘Behavior Observations’ to play an effective role in test reports, a rationale is required that involved greater, specificity than the view that all behavior is important and that recognizes that these accounts have a legitimate and even indispensable role to play in the report.”

Roll Report at 1 (quoting Butcher, supra, at 225). The excerpt from The Personality Assessment Report and the Feedback and Planning Conference reads: “To date there is no empirically sound observational system available for completion by the practitioner during or immediately after the individual assessment session; nor are there procedures to control the potential bias when data (observed or recalled) are generalized into diagnostic hypothesis.” Roll Report at 2 (quoting Knoff, supra, at 552).

Lastly, Dr. Roll draws on the psychological community’s general discrediting of the polygraph test to support his theory that demeanor and behavior are not linked to reliability or credibility. See Roll Report at 3 (citing American Psychological Association, The Polygraph in Doubt, APA Monitor 71 (2004); W. Iacóno, Forensic “Lie Detection”: Procedures Without Scientific Basis, 1 Psychology Practice 75-86 (2001)). Dr. Roll prefaces the resources he attaches with the statement: “There is now consensus within the scientific community that the polygraph as a way of systematically collecting behavioral data is no more useful or reliable than the simple recording of the patients’ obvious demeanor and behavior.” Roll Report at 3. The American Psychological Association’s discussion of polygraph tests explains that “[psychologists have repeatedly told U.S. courts that polygraph tests ... are theoretically unsound and. not valid in assessing honesty.” American Psychological Association, supra, at 1. The American Psychological Association further states that a recent National Research Council panel “found no evidence of polygraph validity.” American Psychological Association, supra, at 1. The American Psychological Association quotes a psychologist, Dr. Leonard Saxe, a polygraph researcher at Brandéis University, as saying, “ ‘There is no unique physiological reaction to deception.’ ” American Psychological Association, supra, at 1.

The abstract from Iacono’s article states that the polygraph test “is based on an implausible set of assumptions that makes it biased against innocent individuals and easy for guilty persons to defeat using countermeasures.” Iacono, supra, at 75. Iacono contrasts the polygraph test, which he refers to as the “control question test” or “CQT,” with the “relevant/irrelevant test (RIT).” Iacono, supra, at 76-77. When administering a RIT, examiners would ask a suspect irrelevant questions “dealing with unimportant facts known to both examiner and suspect ( ... “Are you sitting down? ...),” and the examiners would conclude that a suspect’s strong response to a relevant question (the answer to which was presumably unknown to the examiner), indicates a suspect’s guilt. Ia-cono, supra, at 76. Iacono states that the RIT “has been found wanting even by proponents of polygraph because the irrelevant items do not provide an adequate control for the emotional impact of simply being presented with the accusatory relevant