CAAF decided the Marine Corps of United States v. Martin, __ M.J. __, No. 15-0754/MC (CAAFlog case page) (link to slip op.), on Friday, June 17, 2016. With a majority of the court finding that defense counsel invited the erroneous admission of human lie detector testimony, CAAF affirms the appellant’s conviction of wrongful sexual contact and the decision of the Navy-Marine Corps CCA. However, two judges dissent with a strongly-worded opinion.
Judge Ohlson writes for the court, joined by Judge Ryan and Senior Judge Cox. Judge Stucky dissents, joined by Chief Judge Erdmann.
Sergeant Martin was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer and enlisted members, of one specification of wrongful sexual contact in violation of Article 120(m) (2006). The members sentenced him to reduction to E-1 and a bad-conduct discharge.
The conviction was based on Martin’s alleged sexual touching of a sleeping female subordinate (identified by the initials CRI) who was also the wife of another Marine. At trial Martin’s defense focused on attacking the credibility of the alleged victim – the chief prosecution witness – asserting that her allegation was fabricated. But the prosecution also called the alleged victim’s husband to testify, as he was sleeping next to his wife at the time of the alleged assault, and the husband testified on direct examination about how his wife’s demeanor changed after the night in question. Then, both the prosecution and the defense asked the husband to opine about the truth of his wife’s allegation against Martin, and both sides argued the husband’s opinion about the truthfulness of his wife’s allegation in closing argument.
The Navy-Marine Corps CCA found that the husband’s opinion constituted improper human lie detector testimony, which is “an opinion as to whether [a] person was truthful in making a specific statement regarding a fact at issue in the case.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (CAAFlog case page) (citation omitted). However, the CCA found that the admission of that improper testimony was harmless and affirmed the conviction. CAAF then granted review of a specified issue questioning the CCA’s harmlessness determination:
Specified issue: Whether the Court of Criminal Appeals erred in holding that the human lie detector testimony offered by the alleged victim’s husband was not materially prejudicial.
The Judge Advocate General of the Navy then certified a second issue challenging the underlying finding of error on the basis that it was invited by the defense:
Certified issue: Did trial defense counsel invite error when he opened the door to human lie detector testimony during the cross-examination of the victim’s husband?
Writing for the majority, Judge Ohlson finds that the error was invited by the defense in cross-examination after the prosecution called the husband for a proper purpose, answering the certified issue in the affirmative and avoiding the granted issue. Writing for the dissenters, however, Judge Stucky asserts that “the scales of justice were tipped by grossly improper testimony from the victim’s husband explaining why he believed that his wife was ‘telling the truth.'” Diss. op. at 1.
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