United States v. Chapman (59 F. Supp. 3d 1194, 2014)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before Court on the Motion for Daubert Hearing and to Exclude Testimony Offered to Bolster Testimony from Another Witness, filed September 10, 2014 (Doc. 32)(“Motion”). The Court held a hearing on September 12, 2014. The primary issues are: (i) whether the testimony of Gail Starr, Plaintiff United States of America’s proffered expert, concerning self-injury and self-harm in victims of domestic abuse and concerning Non-Suicidal Self-Injury (“NSSI”) Disorder is reliable; (ii) whether Starr’s testimony concerning NSSI Disorder is relevant; (iii) whether the rest of Starr’s testimony, which concerns self-harm and self-jury in domestic abuse victim’s as a coping mechanism, is relevant; (iv) whether the danger of undue prejudice substantially outweighs the probative value of Starr’s testimony; and (v) whether Starr’s testimony would usurp the jury’s function in determining the credibility of witnesses, particularly, that of Dana Chapman, the alleged victim. Because testimony concerning NSSI Disorder is not relevant in this case, because Starr’s remaining testimony is relevant, because Starr’s testimony is reliable, because the danger of undue prejudice does not substantially outweigh the probative value of Starr’s testimony, and because Starr’s testimony will not usurp the jury’s function of determining the credibility of witnesses, the Court will grant the Motion in part and deny it in part.

FACTUAL BACKGROUND

The Amended Information alleges that Defendant. Leslie Chapman, on or about January 26, 2014, “unlawfully touch[ed] and applied] force to the person of a household member[, his wife — D. Chapman — ] with intent to injure that person” at the “Veterans Affairs Medical Center in Bernalillo County, in the District of New Mexico.” Amended Information at 1, filed April 4, 2014 (Doc. 12)(“Amended Information”). In doing the “unlawful touching],” L. Chapman allegedly caused D. Chapman “temporary disfigurement and temporary loss and impairment of the function of’ a “member of the [person’s] body.” Amended Information at 1. The Amended Information also alleges that L. Chapman prevented, obstructed, and delayed the “sending, transmitting, conveying and delivering” of a “message, communication and report by and through telephone.” Amended Information at 1-2. The Amended Information further alleges that L. Chapman knowingly possessed and carried a firearm “on the property of the Veterans Affairs Medical Center, Albuquerque, with no official purpose.” Amended Information at 1.

PROCEDURAL BACKGROUND

Trial was set to begin in this case on September 18, 2014. See Order Granting Continuance of Trial Setting and Setting a Definite Date for Trial at 2, filed June 30, 2014 (Doc. 28). Nine days before trial was to begin, the United State filed a notice of its intention to call Starr as an expert witness. See Notice of Intent to Offer Expert Testimony ¶ 1, at 1, filed September 9, 2014 (Doc. 31)(“Notice”). The next day, L. Chapman filed the Motion to exclude Starr’s testimony. Motion at 1. Two days later, the Court held a hearing on September 12, 2014 — six days before trial was set to begin. At the hearing, the Court ruled that it would grant the Motion in part and deny it in part. See Transcript of Hearing, taken September 12, 2014, at 39:11-41:4 (Court)(“Tr.”). In light of its ruling, and the close proximity to trial in which the Motion was filed, L. Chapman was “[ujnprepared for trial.” Tr. at 41:6 (Robert). Both parties agreed to a continuance, and the Court reset the trial date. See Tr. at 41:7-11 (Mott, Court); id. at 42:10-24 (Robert, Mott, Court).

1. Starr’s Proffered Testimony.

The United States represents that Starr’s testimony will focus on injuries that D. Chapman presented on her chest. See Notice ¶ 1, at 1. Starr is a certified Sexual Assault Nurse Examiner and is certified in Trauma Nurse Core Curriculum. See Notice ¶ 1, at 1. She has a Bachelor of Science in Psychology, an Associate’s Degree in Nursing, and a Master of Science-Criminal Justice Administration from Loyola University. See Notice ¶ 2, at 2. Starr is expected to testify that she has conducted “approximately 400 examinations of victims of trauma involving domestic violence and/or sexual assault.” Notice ¶ 1, at 1-2. Starr will testify that she has worked with “patients with acute traumatic experiences for the past 17 years,” and “that a number of the patients she came into contact with were in the acute care unit for adults and teens at the University of New Mexico,” where she worked as a Mental Health Technician in the Trauma/Surgical/Burn Intensive Care Unit. Notice ¶ 1, at 2. Starr will also testify that her work as a Sexual Assault Nurse Examiner and Domestic Violence Nurse Examiner “has given her a large amount of experience in recognizing and treating patients who have undergone significant trauma, which often includes self-harm.” Notice ¶ 1, at 2.

Starr’s testimony will “discuss the overall reasons why patients present self-harm injuries.” Notice ¶ 2, at 2. Starr will testify that that self-harm “is often a coping mechanism to internal distress, albeit an unhealthy coping mechanism.” Notice ¶ 2, at 2. Starr will testify that there are a variety of injuries that fall under the category “of non-suicidal self-injury.” Notice ¶ 2, at 2. Additionally, Starr will testify that self-harm has “been connected to patients with post-traumatic stress.” Notice ¶ 2, at 2.

The United States requests “that the Court exercise its ‘special gatekeeping obligation’ and determine that” Starr’s proposed testimony “is admissible, as the witness has a ‘reliable basis in knowledge and experience’ in her respective discipline.” Notice ¶ 3, at 3 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). The United States argues that “it intends to introduce photographs ... that will show abrasions positioned diagonally across the victim’s chest” and photographs “taken earlier” that “do not show the abrasions.” Notice ¶ 3, at 3. The United States contends that there may be an implication that “the victim caused the injury to herself with a malicious intent to further implicate the Defendant in the alleged conduct,” and that Starr’s testimony “is necessary to explain the prevalence of such self-injurious conduct in traumatic situations, namely domestic violence in this case, and to prevent confusion by the jury over the proper relevance of the abrasions.” Notice ¶ 3, at 3. The United States further asks the Court to treat the Notice “as a proffer on the training and background” of Starr and permit her testimony to be introduced. Notice ¶ 4, at 3.

2. The Motion, Reply, and Response.

L. Chapman objects to Starr’s testimony. See Motion at 1. L. Chapman argues that the “only conceivable purpose for [Starr’s] testimony would be to bolster the anticipated testimony of the alleged victim that she scratched herself for reasons other than to inculpate Mr. Chapman.” Motion ¶ 4, at 2. L. Chapman objects to the testimony on four grounds: (i) that the “proposed expert testimony would not be helpful to the jury”; (ii) that the “very questionable probative value of the proposed testimony would be substantially outweighed by the danger or [sic] unfair prejudice”; (iii) that the “proposed testimony would usurp the jury’s function in determining the credibility of witnesses”; and (iv) that “the proposed expert testimony is not adequately based on relevant empirical research.” Motion ¶ 5, at 2. L. Chapman argues that, before expert testimony can be presented, it must meet the three requirements of rule 702 of the Federal Rules of Evidence: (i) “the testimony is based upon sufficient facts or data”; (ii) “the testimony is the product of reliable principles and methods”; and (iii) “the witness has applied the principles and methods reliably to the facts of the case.” Motion ¶ 6, at 3. L. Chapman contends that the D. Chapman will likely testify that her purpose in scratching herself after the incident was for some other reason than to inculpate L. Chapman and that Starr’s testimony will likely be that someone in D. Chapman’s situation might scratch them-self because of the psychological impact of abuse. See Motion ¶ 7, at 3. L. Chapman further argues that Starr has experience with treating women who have been “the victims of substantial abuse, sexual and physical,” and that D. Chapman does not fall within the category of women who have endured substantial physical and sexual abuse, because there “is no history of physical abuse.” Motion ¶ 7, at 3. L. Chapman contends that, in this instance, he did not- strike or touch D. Chapman except in an “effort to avoid further injury at the hands of the alleged victim.” Motion ¶ 7, 3-4. L. Chapman argues that because D. Chapman falls outside the category of women with whom Starr has dealt, Starr’s “testimony would not be helpful to the jury in this case.” Motion ¶ 7, at 4.

L. Chapman also argues that the probative value of Starr’s testimony is “substantially outweighed by the danger of unfair prejudice,” because Starr’s testimony will only bolster D. Chapman’s anticipated testimony and the “outcome of the trial in this ease will hinge in substantial part on the credibility of the alleged victim.” Motion ¶ 8, at 4 (citing Fed.R.Evid. 403). L. Chapman contends that “bolstering the testimony of the alleged victim ... is not a proper purpose for the admission of expert testimony.” Motion ¶ 9, at 4. L. Chapman argues that the “ ‘credibility of witnesses is generally not an appropriate subject for expert testimony,’” and that such “testimony is often excluded because it usurps a critical function of the jury and because it is not helpful to the jury.” Motion ¶ 9, at 5 (quoting United States v. Toledo, 985 F.2d 1462, 1470 (10th Cir.1993)). L. Chapman also contends that Starr’s expertise is “in the area of sexual abuse and assault,” which may be relevant and helpful to the jury in another case, but not in this case. Motion ¶ 10, at 5-6. L. Chapman argues that the “application of inapposite expertise is no better than junk science where the case doesn’t fit the expertise,” which “is the situation here.” Motion ¶ 10, at 6. L. Chapman contends that, in “the absence of recognized, peer-reviewed and generally accepted research addressing a fact situation relevant to the one presented in this case, the proposed expert testimony would lack the necessary empirical grounding to pass this Court’s gatekeeping function.” Motion ¶ 11, at 6.

The United States responds by arguing that Starr’s proffered testimony “complies with Rule 702, which is the rule that principally governs the admissibility in federal courts.” United States’ Response to Defendant’s Motion for Daubert Hearing and to Exclude Testimony Offered to Bolster Testimony from Another Witness (Dkt. 32) at 3, filed September 12, 2014 (Doe. 38)(“Response”). The United States directs the Court to rule 702, and argues that the sufficiency of an expert’s knowledge, skill, experience, training, and education is “a quantitative, not qualitative analysis.” Response at 4 (citing Fed. R. of Evid. 702). The United States argues that the methodology used by “Starr is a widely recognized reliable methodology, applied reliably to the facts of this case.” Response at 5. The United States argues that Starr’s resume shows that she has “a specialized understanding based on training, education and practical experience acquired over time in cases relevant to domestic violence situations.” Response at 6. The United States argues that the jury will need to determine whether D. Chapman was indeed the victim and will consider if D. Chapman acted in a manner that is consistent with that of a victim, and that, if D. Chapman did act in a manner that a victim of abuse would, it is “more likely that she may have been a victim.” Response at 6. Because the scratches “are a key part of the overall story” and the jury will form an opinion about the scratches, the United States argues that it would be helpful to the jury to form “that opinion with the assistance of expert testimony to give proper meaning and weight to the photographs” of the scratches, which “is relevant evidence.” Response at 6. The United States maintains that the “threshold for relevance ... is not a high one.” Response at 6.

As to reliability, the United States argues that NSSI is not an issue of first impression nor “is it opinion evidence that is ‘connected to existing data only by the ipse dixit of the expert.’ ” Response at 6 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 581, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). The United States argues that the “existence of NSSI is sufficiently established that this Court can and should take judicial notice of that malady under Federal Rule of Evidence 201.” Response at 6. The United States contends that judicial notice “is limited to the fact that NSSI is a recognized malady and is included in [the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) IV] as a symptom and the updated DSM V as a disorder.” Response at 6-7. The United States tendered snippets of articles “as a small sampling of the evidence that NSSI is well recognized, with numerous published articles in peer reviewed journals.” Response at 7. The United States argues that as “long as an expert ‘meets the threshold established by Rule 702 as explained in Daubert, [] the expert may testify and the jury decides how much weight to give that testimony.’ ” Response at 7 (quoting Primiano v. Cook, 598 F.3d 558, 565 (9th Cir.2010)).

The United States also argues that Starr’s testimony is more probative than prejudicial, because it “will assist the jury to decide whether it is more or less likely that” the victim “scratched herself by accident, in revenge, as a coping mechanism, or for other reasons.” Response at 7. The United States contends that, if D. Chapman were indeed a victim, “then the scratches need to be explained lest a jury mistakenly assume that the only reason for such .an act was fabrication to inculpate her husband in the incident.” Response at 7 (emphasis in the original). The United States contends that Starr’s testimony will “discuss how the incident and the scratches might be related, and it is essential to assist the jury in the decision it will have to make about who was the aggressor.” Response at 7 (emphasis in the original). The United States addresses L. Chapman’s argument that Starr’s testimony is “simply offered to bolster the testimony of the alleged victim” by contending that Starr’s testimony “will give the trier of fact, the jury, as much information as possible as to why the alleged victim might have self-harmed,” and that L. Chapman “will have the- opportunity to cross-examine not only the alleged victim as to her motivation for scratching herself, but also” Starr, “as to her opinions and bases for those opinions.” Response at 8.

The United States contends that Starr “cannot and will not testify that D. [Chapman] suffered from NSSI before, during, or after the incident,” and that Starr “cannot rule out that D. [Chapman] did not maliciously create the scratches with the intent to inculpate [L.] Chapman.” Response at 9. The United States asserts that Starr’s “testimony will be limited to pre-elude inappropriate opinions beyond the scope of what can be reasonably concluded with the available evidence.” Response at 9. The United States argues that L. Chapman “has not presented a sufficient basis for the Court to exclude” Starr’s testimony. Response at 9.

The United States attached Starr’s Curriculum Vitae to the Response. Starr’s Curriculum Vitae states that she works as a registered intensive care unit nurse at the University Hospital in the Trauma/Surgical/Burn Intensive Care Unit. See Gail Starr, RN, BS, MSCJA, Curriculum Vitae at 1, filed September 12, 2014 (Doc. 38-l)(“Starr CV”). She also serves as a Sexual Assault Nurse Examiner (“SANE”) by providing medical assessment and treatment, collecting forensic evidence, and documenting findings and sexual assault history. See Starr CV at 1. Starr additionally mentors and leads the nurses for the SANE unit as a clinical coordinator. See Starr CV at 1. From January, 2001, to August, 2007, Starr worked as a staff nurse and charge nurse at the University Hospital, providing direct patient care and supervising staff. See Starr CV at 1. From 1998 to 2004, Starr worked as a Mental Health Technician at the University Hospital. See Starr CV at 1. As a Mental Health Technician, Starr worked “in the acute care unit for adults and teenagers, provided direct patient care including: active listening, ensuring patient safety, body checks, crisis intervention, vital signs, and verbal de-escalation.” Starr CV at 1.

The United States also attached a number of articles concerning self-harm and NSSI Disorder to the Response. The United States attached a Google Scholar search of articles dealing with self-injury. See Self-Injury Google Scholar Search (Sept. 10, 2014), filed September 12, 2014 (Doc. 88-2)(“Seholar Search”). The United States attached an article titled “Self-Injury” from the University of Massachusetts Medical School’s website, which describes the risks and signs of self-injury and provides ways to help people who engage in self-injury. Self-Injury, U. Mass. Med. Sch., http://www.umassmed. edu/eap/Resources/Emotional-and-Mental-Health/Self-Injury/, filed September 12, 2014 (Doc. 38-3)(“U. Mass.”). The United States attached an article from the Mayo Clinic titled “Self-injury/Cutting.” Self-injury/Cutting, Mayo Clinic, (Dec. 6, 2012) http://www.mayoclinic.org/diseases-conditions/self-injury/basics/definition/con 20025897, http://www.mayoclinic.org/ diseases-conditions/self-injury/basics/ symptoms/con20025897, filed September 12, 2014 (Doc. 38^)(“Mayo Clinic”). This article defines self-injury by stating:

Self-injury, also called self-harm, is the act of deliberately harming your own body, such as cutting or burning yourself. It’s typically not meant as a suicide attempt. Rather, self-injury is an unhealthy way to cope with emotional pain, intense anger and frustration.

While self-injury may bring a momentary sense of calm and a release of tension, it’s usually followed by guilt and shame and the return of painful emotions. And with self-injury comes the possibility of more serious and even fatal self-aggressive actions.

Because self-injury is often done impulsively, it can be considered an impulse-control behavior problem. Self-injury may be linked to a variety of mental disorders, such as depression, eating disorders and borderline personality disorder.

Mayo Clinic at 1. The Mayo Clinic article also lists symptoms of self-injury and different forms of self-injury. See Mayo Clinic at 2. The United States also attached to the Response an article from the Emergency Medicine Journal titled “The Association Between Domestic Violence and Self Harm in Emergency Medicine Patients,” which discusses a study comparing the “rates of self harm among victims of domestic assault” and other emergency department patients. A. Boyle, P. Jones, & S. Lloyd, The Association Between Domestic Violence and Self Harm, in Emergency Medicine Patients, Abstract, Emergency Medicine Journal (March 14, 2006), http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC2564159/, filed September 12, 2014 (Doc. 38-5)(“Emergency Medicine”). The study concludes that domestic assault “victims have much greater risks of self harm than other” emergency department patients and that multiple “episodes of violence are associated with inereas[ed] episodes of self harm.” Emergency Medicine at 4. The United States also attached to the Response an article from about.com titled “Non-Suieidal Self-Injury Disorder.” See Nowr-Suicidal Self-Injury Disorder, about.com (Sept. 3, 2013), http:// ptsd.about.com/od/glossary/g/Non-Suicidal-Self-Injury-Disorder.htm, filed September 12, 2014 (Doc. 38-6)(“NSSI Disorder”). This article defines NSSI Disorder as “the deliberate and direct destruction or alteration of body tissue without conscious suicidal intent, but resulting in injury severe enough for tissue damage to occur.” NSSI Disorder at 1. NSSI Disorder behaviors include, among other things, severe scratching. See NSSI Disorder at 1. The article notes that the mental health professionals have proposed that NSSI Disorder be included in the DSM V. See NSSI Disorder at 1. The article states that an N.SSI Disorder diagnosis requires that a person (i) “intentionally cause damage to his or her body on five or more days” in the last year; (ii) the injury is associated with negative emotions, emotional pain, urges to engage in self-injury, or occurs after the person engaged in a behavior that he or she has difficulty resisting; (iii) self-injury results “in heightened distress or problems in various areas of the person’s life”; and (iv) the “self-injury does not occur when a person is experiencing psychotic symptoms, delirium, or intoxication.” NSSI Disorder at 2.

L. Chapman replies by arguing that, after the incident, “the alleged victim made a statement ... indicating that Mr. Chapman had scratched her chest and neck.” Mr. Chapman’s Reply to Government’s Response to Motion for Daubert Hearing and to Exclude Testimony Offered to Bolster Testimony from Another Witness at 1, filed September 12, 2014 (Doc. 41)(“Re-ply”). L. Chapman argues that the “alleged victim wrote a statement in which she repeated that accusation.” Reply at 1. L. Chapman also asserts that, several hours after the incident, “the alleged victim posed for photographs taken by” a police officer showing the scratches and holding a ruler up to the scratches, so that images of the scratches could be preserved to later be used as evidence against L. Chapman. Reply at 1-2. L. Chapman argues that Starr’s “opinion as to why the alleged victim made those scratches is unnecessary.” Reply at 2. He contends that D. Chapman “has made it clear that the injuries were inflicted” by L. Chapman in an attempt to support and enhance “her claim that he committed a battery upon her.” Reply at 2. L. Chapman argues that the Starr’s testimony would contradict “the statements of the alleged victim,” would “add nothing of assistance to the jury,” and would likely only “confuse the jury.” Reply at 2.

3. The September 12, 2014, Hearing.

The Court held a hearing on September 12, 2014. At the hearing, L. Chapman argued that through discovery he learned that some of the scratches on D. Chapman, which were attributed to L. Chapman, were inflicted after the alleged battery occurred. See Tr. at 2:5-10 (Robert). L. Chapman asserted that he hired an expert to examine the photographs taken after the incident to verify that the scratches were inflicted after the alleged assault, and L. Chapman asserted that the United States later told him that D. Chapman had inflicted the scratches on herself. See Tr. at 2:16-3:2 (Robert). L. Chapman argued that, after D. Chapman told police that L. Chapman inflicted the scratches and after she admitted that she inflicted the scratches on herself, the United States now wishes to bring in an expert witness to testify that women, who are subjected to domestic abuse, sometimes suffer from NSSI in an attempt to explain why D. Chapman scratched herself. See Tr. at 3:25-4:20 (Robert, Court). L. Chapman argued that the United States is trying to use Starr’s testimony to undermine the narrative that D. Chapman has created by blaming L. Chapman for the scratches that she inflicted on herself. See Tr. at 6:21-7:13 (Robert). L. Chapman contended that Starr’s testimony would confuse the jury, because it contradicts the narrative that D. Chapman has already asserted. See Tr. at 7:22-8:1 (Robert). L. Chapman stated that he believes that Starr has not examined D. Chapman. See Tr. at 4:21-23 (Robert). L. Chapman argued that NSSI is fairly new, and that he is not familiar with the literature about the circumstances in which NSSI manifests itself and what trauma and length of trauma must occur to cause NSSI. See Tr. 4:24-5:4 (Robert). L. Chapman argued that he would need to hire his own expert to testify about NSSI and that he would not be able to find an expert before trial starts in less than a week. See Tr. at 5:5-13 (Robert).

L. Chapman further contended that it is unclear whether the characteristics of NSSI even apply to D. Chapman. See Tr. at 8:6-10 (Robert). L. Chapman contended that there is not a history of abuse between D. Chapman and L. Chapman, and that, because NSSI is a post-traumatic stress response to systematic abuse, NSSI does not apply in this case. See Tr. at 5:14-24 (Robert). L. Chapman argued that, because there is no evidence of a history of abuse, Starr’s testimony is not relevant to the case. See Tr. at 5:25-6:6 (Robert). L. Chapman argued that, even if NSSI is a legitimate diagnosis, there is an issue whether it is applicable to the facts in this case, and the Court cannot determine whether the testimony is applicable without first hearing Starr’s testimony. See Tr. at 12:24-13:5 (Robert). L. Chapman argued that, if Starr were to testify about NSSI and not that D. Chapman suffers from it, then Starr’s testimony would be irrelevant, just as having an expert testify to schizophrenia would be irrelevant to the case. See Tr. at 13:6-20 (Robert, Court). L. Chapman argued that Starr’s testimony would only be relevant if D. Chapman met the diagnostic criteria for NSSI. See Tr. at 15:18-24 (Robert, Court).

L. Chapman maintained that the Court should exclude Starr’s testimony under rule 403 of the Federal Rules of Evidence, because the probative value of Starr’s testimony is essentially nonexistent while the possibility of prejudice is substantial. See Tr. at 8:16-9:6 (Robert). L. Chapman argued that Starr will essentially present a different narrative of the events than the one that D. Chapman has given. See Tr. at 9:18-21 (Robert). L. Chapman noted that Starr may be qualified to testify, but that he does not know enough about NSSI to determine whether her testimony is relevant to this case. See Tr. at 10:24-11:9 (Robert, Court).

The United States responded by arguing that L. Chapman’s objections do not concern Daubert v. Merrell Dow Pharmaceuticals, Inc. or rule 702 of the Federal Rules of Evidence. See Tr. at 16:22-24 (Mott). The United States contended that Starr’s testimony will assist the jury, because of Starr’s seventeen years of experience dealing with patients who engage in self-harm. See Tr. at 17:8-14 (Mott). The United States conceded that Starr had not examined D. Chapman, and that Starr has only observed pictures of D. Chapman and of the scratches. See Tr. at 17:15-25 (Mott, Court). The United States asserted that Starr’s testimony will essentially be that, in her line of work, it is common to find a person who engages in self-harm after suffering a traumatic incident. See Tr. at 18:24-19:6 (Mott). The United States argued that most people outside of the medical profession are not familiar with NSSI, but that Starr is familiar because of her qualifications and training. See Tr. at 19:15-21 (Mott). The United States contended that there is a wide range of NSSI, from Munchausen Syndrome to lesser harm done by victims of domestic and sexual violence. See Tr. at 19:21-20:14 (Mott). The United States, asserted that Starr will testify that, when' a victim’s normal coping mechanisms are unavailable, then the victim may engage in self-harm. See Tr. at 20:8-17 (Mott). The United States argued that Starr will testify that this self-harm is consistent with what happened in this case. See Tr. at 20:17-19 (Mott). The United States noted that D. Chapman will not testify that she engages in self-harm, but instead will testify that she scratched herself, that she does not know why she scratched herself, and that she was traumatized and scared at the time that she scratched herself. See Tr. at 20:20-21:18 (Mott, Court). The United States also noted that the D. Chapman’s normal coping mechanism is to call her Mends or her mother and that, after the incident, D. Chapman did not have a telephone. See Tr. at 21:19-22 (Mott). The United States noted that there has not been a history of physical violence between L. Chapman and D. Chapman, but that the relationship was emotionally and verbally abusive, and that L. Chapman was a controlling person. See Tr. at 22:12-23:5 (Mott, Court). The United States argued that L. Chapman is going to try to impute a reason behind why D. Chapman scratched herself and that the United States has the right to present evidence that there may be another explanation to why she scratched herself. See Tr. at 22:4-8 (Mott).

When asked if a person can have NSSI and only engage in one episode of self-harm, the United States noted that a diagnosis of NSSI is usually made after a history of self-harm, but that normal process does riot mean that self-harm cannot occur as a single incident. See Tr. at 23:11-24:21 (Mott, Court). The Court continued to question to United States whether the literature or other experts agree that a person will engage in self-harm only once and after a single traumatic incident, and the United States maintained that a person can engage in self-injury one time after one traumatic event and then stop. See Tr. at 23:11-25:15 (Mott, Court). The United States argued that it is possible for a person to engage in self-harm only once and then stop, and that Starr will testify that she has treated patients who have engaged in self-harm only once after a traumatic situation. See Tr. at 24:7-25:4 (Mott, Court). The United States argued that Starr’s testimony is relevant, because it would help give the jury a better understanding why someone would harm them-self. See Tr. at 25:18-24 (Mott). The United States, argued that the testimony is also more probative than prejudicial and that L. Chapman will have will have an opportunity to cross-examine both Starr and D. Chapman. See Tr. at 26:5-11 (Mott). The United States. also argued that D. Chapman did not • mention the scratches in the police report, and that, in her written statement, D. Chapman only mentioned scratches on her arm and not her chest. See Tr. at 26:11-19 (Mott). The United States, however, later realized that it misspoke and that D. Chapman mentioned the scratches on her chest in the police report. See Tr. at 37:24-38:2 (Mott). The United States Contended that Starr’s testimony is not prejudicial merely because it harms L. Chapman’s case. See Tr. at 27:11-14 (Mott). The United States suggested that the Court grant a short continuance to allow L. Chapman to hire his own expert on the issue. See Tr. at 27:18-22 (Mott).

The Court directed the United States to an article that the United States attached to the Response, which states that a person must have caused damage to his or her body on five or more days in the last year to be diagnosed with NSSI Disorder. See Tr. at 32:21-33:1 (Court). The United States responded by arguing that there is a spectrum of self-harm that can occur, which does not necessarily concern NSSI. See Tr. at 33:2-34:19 (Mott). The Court asked the United States about what Starr will testify if she cannot testify about NSSI Disorder, because NSSI Disorder requires evidence of multiple occurrences of self-harm. See Tr. at 34:25-35:3 (Court). The United States asserted that Starr will testify about self-harm, and that she sees victims of trauma engage in self-injury and self-harm. See Tr. at 35:4-14 (Mott). The United States argued that Starr will testify that she sees people engage in self-harm, who have not been diagnosed with NSSI Disorder. See Tr. at 35:14-18 (Mott, Court). The United States contended that Starr will testify that, in her experiences, she has observed people engage in self-harm only once after a traumatic situation, and that Starr has observed this phenomenon “quite often.” Tr. at 36:16-19 (Mott). The United States noted that a person engaging in self-harm just once, or even two or three times, does not “necessarily fit the diagnosis of NSSI,” but argued that it is still self-harm, which “falls under the umbrella ... of NSSI but not to the level of diagnosis.” Tr. at 37:15-21 (Mott). The United States addressed L. Chapman’s argument that the jury will have to determine whether Starr’s testimony is relevant or reliable by arguing that the jury’s function is to decide credibility and to determine whether information is relevant, and that L. Chapman’s argument goes to “the weight of the evidence and not the admissibility.” Tr. at 38:2-16 (Mott).

L. Chapman replied by arguing that, in D. Chapman’s statement, she accused L. Chapman of scratching her neck and chest. See Tr. at 28:2-6 (Robert). L. Chapman argued that there has to be a reasonable medical probability that NSSI applies to D. Chapman for Starr’s testimony to be admissible. See Tr. at 28:12-16 (Robert). L. Chapman contended that Starr’s testimony requires pure speculation, because the jury must make the diagnosis whether D. Chapman suffers from NSSI. See Tr. at 29:11-22 (Robert, Court). L. Chapman argued that permitting Starr to testify about NSSI and then allowing the jury to make the diagnosis based on what they observe at trial is so speculative that it is outside the bounds of what evidence should be allowed at trial. See Tr. 29:22-30:8 (Robert). L. Chapman contended that expert witnesses normally testify about a specific conclusion that is based on their examination of the evidence and their expertise in the subject, while Starr’s testimony will be telling the jury about a body of knowledge and telling the jury that NSSI exists, and then leaving the jury to draw its own conclusion. See Tr. at 30:12-25 (Robert).

L. Chapman asserted that he is not questioning the existence of NSSI as a legitimate syndrome, but is arguing that it is not reliable to this specific case. See Tr. at 31:1-13 (Robert). L. Chapman argued that there is danger in allowing the jury to speculate about the applicability of NSSI in this case when there is no evidence, and Starr is not presenting opinions, that create a factual connection to the case. See Tr. at 31:17-32:2 (Robert). L. Chapman contended that, without this connection, the probative value of the evidence decreases and the unfair prejudice increases. See Tr. 32:2-5 (Robert). L. Chapman also addressed the United States’ argument that the jury should determine the relevance of evidence by arguing that the Court should determine relevance and not the jury. See Tr. at 38:20-23 (Robert).

The Court granted the Motion in part and denied it in part, by permitting Starr’s testimony, but prohibiting her from testifying about NSSI Disorder. See Tr. at 39:11^11:4 (Court). The Court noted the parties had made the process difficult for the Court, because Starr did not testify at the hearing and L. Chapman had not received an opportunity to retain his own expert. See Tr. 39:11-17 (Court). The Court expressed its surprise that a person, who had never engaged in self-harm before the traumatic event, would engage in self-injury once after a single traumatic event and never again, but noted that, based on the United States’ representations of Starr’s testimony — -which was all the Court had, because Starr did not testify at the hearing- — the Court would permit her. testimony. See Tr. at 40:4-19 (Court). The Court told the parties that, if L. Chapman could find his own expert — who would testify that “it would be highly extraordinarily unusual for somebody to have a traumatic event and only have one episode of self-cutting,” and that testimony was supported by literature—then the Court may not allow Starr to testify at all. Tr. at 41:12-18 (Court).

LAW REGARDING EXPERT TESTIMONY

“Since the Supreme Court of the United States decided Daubert v. Merrell Dow Pharmaceuticals, Inc., trial courts have had the responsibility to make certain that proffered experts will assist the jury in understanding the evidence and in determining the factual issues it must decide.” United States v. Gutierrez-Castro, 805 F.Supp.2d 1218, 1224 (D.N.M.2011) (Browning, J.). “The Court now must not only decide whether the expert is qualified to testify, but, under Daubert v. Merrell Dow Pharmaceuticals, Inc., whether the opinion testimony is the product of a reliable methodology.” United States v. Gutierrez-Castro, 805 F.Supp.2d at 1224. “Daubert v. Merrell Dow Pharmaceuticals, Inc. requires a court to scrutinize the proffered expert’s reasoning to determine if that reasoning is sound.” United States v. Gutierrez-Castro, 805 F.Supp.2d at 1224.

1. Rule 702.

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed.R.Evid. 702. Rule 702 thus requires the trial court to “determine whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” United States v. Muldrow, 19 F.3d 1332, 1337 (10th Cir.1994). Rule 702 uses a liberal definition of “expert.” Fed.R.Evid. 702 advisory committee’s note to 1972 proposed rules (“[W]ithin the scope of this rule are not only experts in the strictest sense of the word, e.g. physicians, physicists, and architects, but also the large group sometimes called ‘skilled’ witnesses, such as bankers or landowners testifying to land values.”). An expert is “required to possess such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth.” LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004). The proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the pertinent admissibility requirements are met. See Morales v. E.D. Etnyre & Co., 382 F.Supp.2d 1252, 1266 (D.N.M.2005) (Browning, J.) (citing Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). Once the trial court has determined that expert testimony would be helpful to the trier of fact, a witness “may qualify as an expert by knowledge, skill, experience, training, or education and ... the expert ... should not be required to satisfy an overly narrow test of his own qualifications.” Gardner v. Gen. Motors Corp., 507 F.2d 525, 528 (10th Cir.1974) (internal quotation marks omitted). Courts should, under the Federal Rules of Evidence, liberally admit expert testimony, see United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir.1995) (describing rule 702 as a “liberal standard”), and the trial court has broad discretion in deciding whether to admit or exclude expert testimony, see Werth v. Makita Electric Works, Ltd., 950 F.2d 643, 647 (10th Cir.1991) (noting the trial court’s decision will not be overturned “unless it is manifestly erroneous or an abuse of discretion”).

2. The Standard in Daubert v. Mer-rell Dow Pharm., Inc.

In its gatekeeper role, a court must assess the reasoning and methodology underlying an expert’s opinion, and determine whether it is both scientifically valid and relevant to the facts of the case, i.e., whether it is helpful to the trier of fact. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786; Witherspoon v. Navajo Ref. Co., LP, No. 03-1160 BB/LAM, 2005 WL 5988649, at *2 (D.N.M. July 18, 2005) (Black, J.) (citing Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir.2003)). The Supreme Court articulated a non-exclusive list of factors that weigh into a district court’s first-step reliability determination, including: (i) whether the method has been tested; (ii) whether the method has been published and subject to peer review; (iii) the error rate; (iv) the existence of standards and whether the witness applied them in the present case; and (v) whether the witness’ method is generally accepted as reliable in the relevant medical and scientific community. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786. The court is also to consider whether the witness’ conclusion represents an “unfounded extrapolation” from the data; whether the witness has adequately accounted for alternative explanations for the effect at issue; whether the opinion was reached for the purposes of litigation or as the result of independent studies; or whether it unduly relies on anecdotal evidence. See Witherspoon v. Navajo Ref. Co., LP, 2005 WL 5988649 at *3 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). The Tenth Circuit stated the applicable standard in Norris v. Baxter Healthcare Corp.:

Rule 702 requires the district court to “ensure that any and all scientific testimony or evidence is not only relevant, but reliable.” [Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1120 (10th Cir.2004) ] (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786). This obligation involves a two-part inquiry. Id. “[A] district court must [first] determine if the expert’s proffered testimony ... has ‘a reliable basis in the knowledge and experience of his [or her] discipline.’” Id. (quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786). In making this determination, the district court must decide “whether the reasoning or methodology underlying the testimony is scientifically valid.... ” Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). Second, the district court must further inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786....

397 F.3d 878, 883-84 (10th Cir.2005) (footnote omitted). “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786). If the expert’s proffered testimony fails on the first prong, the Court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court expanded the rules under Daubert v. Merrell Dow Pharm., Inc., to non-scientific expert testimony. See 526 U.S. at 141, 119 S.Ct. 1167 (“We conclude that Daubert’s general holding — setting forth the trial judge’s general ‘gatekeep-ing’ obligation — applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”). The Supreme Court recognized in Kumho Tire Co. v. Carmichael that the factors from Daubert v. Merrell Dow Pharm., Inc., will not apply to all cases:

Our emphasis on the word ‘may’ thus reflects Daubert’s description of the Rule 702 inquiry as a flexible one. Daubert makes clear that the factors it mentions do not constitute a definitive checklist or test. And Daubert adds that the gatekeeping inquiry must be tied to the facts of a particular case.

Kumho Tire Co. v. Carmichael, 526 U.S. at 150, 119 S.Ct. 1167 (internal quotation marks omitted).

In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., the court must focus generally on “principles and methodologies, and not on the conclusions generated.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. CIV 05-0619 JB/DJS, 2006 WL 4060665, at *11 (D.N.M. Sept. 26, 2006) (Browning, J.) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 595, 113 S.Ct. 2786). “Despite this focus on methodology, ‘an expert’s conclusions are not immune from scrutiny ... and the court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, 2006 WL 4060665, at *11 (alterations omitted)(internal quotation marks omitted). The proponent of the expert’s opinion testimony bears the. burden of establishing that the expert is qualified, that the methodology he or she uses to support his or her opinions is reliable, and that his or her opinion fits the facts of the case and thus will be helpful to the jury. See Norris v. Baxter Healthcare Corp., 397 F.3d at 881. As the Tenth Circuit noted in Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193 (10th Cir.2002):

Because the district court has discretion to consider a variety of factors in assessing reliability under Daubert, and because, in light of that discretion, there is not an extensive body of appellate case law defining the criteria for assessing scientific reliability, we are limited to determining whether the district court’s application of the Daubert manifests a clear error of judgment or exceeds the bounds of permissible choice in the circumstances .... Thus, when coupled with this deferential standard of review, Daubert’s effort to safeguard the reliability of science in the courtroom may produce a counter-intuitive effect: different courts relying on the essentially the same science may reach different results.

289 F.3d at 1206. As the United States Court of Appeals for the Ninth Circuit noted in Claar v. Burlington Northern Railroad Co., 29 F.3d 499 (9th Cir.1994):

Coming to a firm conclusion first and then doing research to support it is the antithesis of this method. Certainly, scientists may form initial tentative hypotheses. However, scientists whose conviction about the ultimate conclusion of their research is so firm that they are willing to aver under oath that it is correct prior to performing the necessary validating tests could properly be viewed by the district court as lacking the objectivity that is the hallmark of the scientific method.

29 F.3d at 502-503 (citation omitted).

Once reliability is established, however, it is still within the district court’s discretion to determine whether expert testimony will be helpful to the trier of fact. In making that determination, the court should consider, among other factors, the testimony’s relevance, the jurors’ common knowledge and experience, and whether the expert’s testimony may usurp the jury’s primary role as the evaluator of evidence.

Ram v. N.M. Dept of Env’t, No. CIV 05-1083 JB/WPL, 2006 WL 4079623, at *10 (Dec. 15, 2006) (Browning, J.) (citing United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir.2006)).

An untested hypothesis does not provide a scientific basis to support an expert opinion. See Norris v. Baxter Healthcare Corp., 397 F.3d at 887 (“[A]t best, silicone-associated connective tissue disease is an untested hypothesis. At worst, the link has been tested and found to be untenable. Therefore, there is no scientific basis for any expert testimony as to its specific presence in Plaintiff.”); In re Breast Implant Litig., 11 F.Supp.2d 1217, 1228 (D.Colo.1998) (“An untested hypothesis cannot be a scientifically reliable basis for an opinion on causation.”). A court is not required “to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. The court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). See Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1209 (10th Cir.2002) (noting a lack of similarity between animal studies and human studies); Tyler v. Sterling Drug, Inc., 19 F.Supp.2d 1239, 1244 (N.D.Okla.1998) (“Test results on animals are not necessarily reliable evidence of the same reaction in humans.”). Courts have excluded experts’ opinions when the experts depart from their own established standards. See Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1213 (10th Cir.2004) (“The district court noted that [the expert’s opinion did not meet the standards of fire investigation [the expert] himself professed he adhered to.”); Magdaleno v. Burlington N. R.R. Co., 5 F.Supp.2d 899, 905 (D.Colo.1998) (“In sum, [the expert’s methodology is not consistent with the methodologies described by the authors and experts whom [the expert] identifies as key authorities in his field.”).

3. Necessity of Evaluating an Issue Under Daubert v. Merrell Dow Pharmaceuticals, Inc.

The restrictions in Daubert v. Merrell Dow Pharmaceuticals, Inc. apply to both “novel” expert testimony and “well-established propositions.” 509 U.S. at 593 n. 11, 113 S.Ct. 2786 (“Although the Frye decision itself focused exclusively on ‘novel’ scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence.”). “Of course, well-established propositions are less likely to be challenged than those that are novel, and they are more handily defended.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 593 n. 11, 113 S.Ct. 2786. “Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Federal Rule of Evidence 201.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 593 n. 11, 113 S.Ct. 2786.

“[W]hen experts employ established methods in their usual manner, a district court need not take issue under Daubert....” Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780 (10th Cir.2009). “[HJowever, where established methods are employed in new ways, a district court may require further indications of reliability.” Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780. Whether courts have accepted theories underlying an expert’s opinion is a relevant consideration in determining whether expert testimony is reliable. See Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780 (“The case law indicates that the courts are not unfamiliar with the [polymerase chain reaction] methodology, and in fact some courts have indicated their acceptance of it.”).

4. Expert Testimony Bolstering Other Witnesses’ Credibility.

“The credibility of witnesses is generally not an appropriate subject for expert testimony.” United States v. Toledo, 985 F.2d 1462, 1470 (10th Cir.1993). See United States v. Ganadonegro, 805 F.Supp.2d 1188, 1213 (D.N.M.2011) (Browning, J.) (excluding expert testimony on whether defendant’s confession was credible).

There are several reasons for the prohibition against expert testimony on other witness’ credibility. Such testimony: (1) “usurps a critical function of the jury”; (2) “is not helpful to the jury, which can make its own determination of credibility”; and (3) when provided by “impressively qualified experts on the credibility of other witnesses is prejudicial and unduly influences the jury.”

United States v. Hill, 749 F.3d 1250, 1258 (10th Cir.2014) (quoting United States v. Toledo, 985 F.2d at 1470). The bar on credibility bolstering expert testimony is grounded in a number of evidentiary rules. See United States v. Charley, 189 F.3d 1251, 1267 n. 21 (10th Cir.1999) (en banc). Expert testimony that vouches for the credibility of other witnesses lacks “relevance [under rule 401] and would not ‘assist the trier of fact as required by Rule 702.’ ” United States v. Adams, 271 F.3d 1236, 1246 (10th Cir.2001) (quoting United States v. Charley, 189 F.3d at 1267). See United States v. Harry, 20 F.Supp.3d 1196, 1242-43, 2014 WL 1949993, at *38 (D.N.M.2014) (Browning, J.) (concluding that expert’s testimony was not relevant if expert testified that witness’ demeanor suggested that the witness was not subjected to a sexual assault, because the testimony impermissibly went to the witness’ credibility).

Courts have also held that testimony which vouches for the credibility of a witness violates other evidentiary rules, such as Rule 608(a)(1) or Rule 403. Some courts have held that, although Rule 608(a)(1) “permits testimony concerning a witness’s general character or reputation for truthfulness,” it “prohibits any testimony as to a witness’s truthfulness on a particular occasion.” State v. Rimmasch, 775 P.2d 388, 391 (Utah 1989) (construing Utah R. Evid. 608); see also United States v. Azure, 801 F.2d 336, 341 (8th Cir.1986); State v. Wood, 194 W.Va. 525, 460 S.E.2d 771, 778 (W.Va.1995) (construing W. Va. R. Evid. 608); People v. Koon, 713 P.2d 410, 412 (Colo.Ct.App.1985) (construing Colo. R. Evid. 608). And at least one court has held, in a sexual abuse case, that testimony that bolsters the credibility of the complaining witness violates Rule 403’s balancing test. United States v. Funds Held in the Name or for the Benefit of John Hugh Wetterer, 991 F.Supp. 112, 120-21 (E.D.N.Y.1998).

United States v. Charley, 189 F.3d at 1267 n. 21. See also United States v. Benally, 541 F.3d 990, 995 (10th Cir.2008) (affirming district court’s exclusion of vouching testimony under rule 403’s balancing test). The bar on bolstering a witness’ testimony only extends to expert testimony concerning the credibility of the witness and not to expert testimony that is consistent with another witness’ testimony. See United States v. Charley, 189 F.3d at 1264. In United States v. Charley, the Tenth Circuit held, en banc, that the district court did not err in permitting an expert witness to testify that the actions and symptoms of two girls were consistent with those of a sexual assault victim. See 189 F.3d at 1264. The expert’s testimony was consistent with the two girls’ testimony that they had been sexually assaulted. See 189 F.3d at 1258. The Tenth Circuit held, however, that the district court erred in permitting a psychiatrist to testify that he believed the girls were sexually assaulted, based on statements the girls made to the psychiatrist, because the testimony “was essentially vouching for [the girls’] truthfulness.” 189 F.3d at 1267.

In United States v. Chaco, 801 F.Supp.2d 1200 (D.N.M.2011) (Browning, J.), the Court permitted a doctor to testify that an examination of a sexual assault victim did not show any signs of sexual assault but that the majority of physical examinations on sexually assaulted prepubescent girls result in normal findings. See 801 F.Supp.2d at 1216. The Court permitted the doctor to testify that the examination, which resulted in no evidence of sexual abuse, was still consistent with the victim being sexually abused. See 801 F.Supp.2d at 1216. The Court, however, excluded testimony from the doctor that the victim had been sexually assaulted, because the doctor knew that the victim was sexually assaulted based on statements that the victim made to the doctor. See 801 F.Supp.2d at 1216. The Court reasoned that permitting the doctor to testify that the victim had been sexually assaulted would serve to impermissibly vouch for the credibility of the witness. See 801 F.Supp.2d at 1216 (citing United States v. Velarde, 214 F.3d 1204, 1211 n. 6 (10th Cir.2000)). The Court however, concluded that the doctor’s testimony that the examination results were consistent with that of a sexual assault victim was based on the doctor’s knowledge and experience, and was, thus, permissible expert testimony.’ See United States v. Chaco, 801 F.Supp.2d at 1216.

LAW REGARDING THE RELEVANCY OF EVIDENCE

“The rules of evidence contemplate the admission of relevant evidence, and the exclusion of irrelevant and potentially prejudicial evidence.” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1247 (D.N.M.2009) (Browning, J.) (citing Fed.R.Evid. 401, 402, 403). “Relevant evidence is evidence that has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” United States v. Gutierrez-Castro, No. CR 10-2072 JB, 2011 WL 3503321, at *3 (D.N.M. Aug. 6, 2011) (Browning, J.) (citing Fed.R.Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”)). “The standard for relevancy is particularly loose under rule 401, because ‘[a]ny more stringent requirement is unworkable and unrealistic.’ ” United States v. Ganadonegro, 854 F.Supp.2d 1088, 1127 (D.N.M.2012) (Browning, J.) (quoting Fed.R.Evid. 401 advisory committee’s note). Irrelevant evidence, or that evidence which does not make a fact of consequence more or less probable, however, is inadmissible. See Fed.R.Evid. 402 (“Irrelevant evidence is not admissible.”).

LAW REGARDING RULE 403

Rule 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Under rule 403, the trial court must weigh the proffered evidence’s probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir.1989). “[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403].” United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir.2006) (quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991)). The Tenth Circuit has reminded district courts that they should be “mindful” that “exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly.” United States v. Smalls, 605 F.3d 765, 787 (10th Cir.2010).

The decision to admit or exclude evidence pursuant to rule 403 is within the trial court’s discretion, see United States v. Lugo, 170 F.3d 996, 1005 (10th Cir.1999), and the trial court’s discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir.1983); United States v. Masters, 622 F.2d 83, 87-88 (4th Cir.1980). As the Supreme Court of the United States has noted:

In deference to a district court’s familiarity with the details of the case and its greater experience in evidentiary matters, courts of appeals afford broad discretion to a district court’s evidentiary rulings.... This is particularly true with respect to Rule 403 since it re-’ quires an “on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.”-

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (quoting 1 Steven Alan Childress & Martha S. Davis, Fed. Standards of Review § 4.02, at 4-16 (3d ed.1999)). See United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (“Assessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403.... ”).

Evidence may be unfairly prejudicial if it.would likely provoke an emotional response from the jury or would otherwise tend to adversely affect the jury’s attitude t