The Tenth Circuit Court of Appeals ruled on September 9, 2026, regarding the case of United States v. Crow, No. 24-1377. The court addressed the issue of whether a defendant has the right to pretrial notice of the government’s rebuttal evidence when the witness responds to evidence not disclosed by the defendant. The ruling affects defendants in similar cases, clarifying the obligations of the government regarding expert witness disclosures.
Mitchel Crow faced charges of sexually abusing a minor at a military base, violating 18 U.S.C. § 2243(a). Crow admitted to having sexual relations with a girl living with him but claimed he was asleep during the encounters. The government argued he was awake. This led to a battle of expert witnesses, with Crow's expert, Dr. Clete Kushida, testifying about sexsomnia, a disorder that can cause individuals to engage in sexual acts while asleep. The government countered with expert testimony from Dr. Michel A. Cramer Bornemann.
The case began in the District Court for Colorado, where Crow was found guilty after a jury trial. The trial featured conflicting expert testimonies regarding Crow’s mental state during the incidents. Crow’s defense relied on Dr. Kushida’s opinion that his actions were consistent with sexsomnia, while the government’s expert challenged this assertion, claiming the actions were too complex to be attributed to the disorder.
During the trial, Dr. Bornemann provided new opinions that were not disclosed to the defense prior to his testimony. Crow's defense argued that the government violated disclosure requirements by allowing Dr. Bornemann to testify about these new opinions without sufficient notice. Crow sought to have his convictions overturned based on this argument.
The Tenth Circuit reviewed the case and determined that the government did not violate any disclosure requirements. The court explained that the relevant rules, specifically Federal Rule of Criminal Procedure 16, required disclosure of rebuttal testimony only if the defense had disclosed its expert’s opinions in a timely manner. The court noted that Crow had not disclosed Dr. Kushida's new opinions about malingering, which were presented during the trial.
The court stated, "Mr. Crow has not shown a violation of the government’s duty of pretrial disclosure. The failure to make that showing requires us to affirm the convictions involving sexual encounters in the girl’s bedroom."
The ruling emphasized that the government’s obligation to disclose rebuttal testimony is contingent upon the defense’s prior disclosure of its expert testimony. Since Crow’s expert had not disclosed opinions that would trigger this obligation, the court found no error in the district court’s decision to allow Dr. Bornemann’s testimony.
This ruling clarifies the obligations of the prosecution in criminal cases regarding expert witness disclosures. It underscores that defendants must disclose their expert opinions to trigger the government's duty to disclose rebuttal evidence. The outcome of this case may influence how similar cases are handled in the future, particularly regarding the timing and requirements for expert witness disclosures.
Looking ahead, the ruling in United States v. Crow does not appear to have immediate implications for other pending cases, as it specifically addresses the application of disclosure rules in the context of expert testimony. However, the decision may set a precedent for how courts interpret the disclosure obligations of the government and the defense in future criminal trials.
Details were not available in the court filing regarding whether Crow plans to appeal this decision or if there are related cases pending. The court's ruling stands as a significant interpretation of the rules governing expert testimony in criminal proceedings.