In Mullins, a forensic child interviewer for a civilian prosecutor’s office testifed at a child molestation court-martial. 

After she testified that the alleged victims’ characteristics were “consistent . . . with a child who had been sexually abused or . . . a child who may have been sexually abused,” the military judge sua sponte instructed the members that “no one who testifies in this courtroom can know if someone else is telling the truth or lying,” and that it’s up to the members to determine a witness’s credibility.

On redirect, the witness testified about the frequency of children lying about sexual abuse, saying that it was less than “1 out of 100 or 1 out of 200.” The military judge once again intervened. He asked the witness:

[D]o you have any forensic, that is, scientifically accurate way of proving whether the child is telling the truth or not? In other words . . . the only way that you typically could know that is if the child later comes forth and says “Yes, I made it up,” or . . . unless that [defendant] ultimately confesses, you would ultimately never know who was telling the truth and who wasn’t, is that correct?

The witness agreed that was correct. Neither party made an objection to the witness’s testimony.

CAAF held that the witness’s “1 out of 100 or 1 out of 200” testimony was error under United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007). CAAF also held that the error was plain and obvious.

CAAF held that the error didn’t prejudice the defense due to the military judge’s remedial measures during the witness’s testimony.

CAAF also denied relief on post-trial delay grounds. It found that even assuming unreasoanable delay, the defense hadn’t sufficiently demonstrated prejudice. The court indicated that demonstrating that unreasonable appellate delay interfered with an appellant’s ability to obtain state unemployment payments could be prejudice for appellate delay purposes, but that the record was insufficient to establish such prejudice in this case. CAAF concluded “that the record does not demonstrate that it was Appellant’s leave status that kept him from receiving the benefits and that he would not have been denied on some other grounds.” The court explained, “The record in this case does not contain . . . authoritative evidence that a person in Appellant’s circumstances would have been eligible for unemployment benefits and received them once his appeal was final.” The court concluded “that, under the totality of the circumstances, the post-trial delay was harmless beyond a reasonable doubt.”

Is it just me, or is that final sentence inconsistent with previous portions of the opinion? The court had previously said that post-trial delay’s interference with receiving unemployment insurance could be the kind of prejudice that would lead to relief. The court then basically reasoned that the defense hadn’t carried its burden to demonstrate such prejudice. I understand that the absence of established prejudice could lead the court to conclude that there was no due process violation. But that seems different than saying that the delay was harmless beyond a reasonable doubt. In the body of the opinion, the court appears to be saying that the appellant might have received state unemployment benefits faster but for the appellate delay, but the defense didn’t sufficiently prove it. To say the post-trial delay was harmless beyond a reasonable doubt, wouldn’t CAAF have to conclude that the appellant definitely wouldn’t have received such benefits? If so, I don’t understand how CAAF reached that conclusion.

11 Responses to “CAAF holds human lie detector testimony was error, but cured”

  1. Mike "No Man" Navarre says:

    I’m with CAAFlog–amazing as that may seem. As for Anon and JO’C on the prior thread, if the Court is going to retreat from Barker v. Wingo, they should announce that and not pretend the other factors actually matter, that is they could otherwise overcome the absence of prejudice. So it is 3 factors to establish a D.P. Clause violation and then the appellant must establish prejudice by a preponderance of the evidence. If that’s what they want, then say that. The problem with that formula is it ignores the constitutional dimension of the error, which causes other inconsistencies noted above.

  2. John O'Connor says:

    I didn’t realize Barker v. Wingo was a post-trial delay case. I’ve always believed it was wrong to give relief for appellate delay in the absence of prejudice. If that’s where CAAF is now, I’m good.

  3. Phil Cave says:

    Um, where was the appellate defense counsel in all of this?

    Did appellate defense counsel submit a copy of the California statutes and regulations which address (or perhaps don’t address) the issue?

    Did appellate defense counsel call and talk to the people who sent the letter to ask why, and with a reference to a statute, regulation, or interpretation of the California Unemployment Compensation Appeals Board?

    Did appellate defense counsel get an explanatory affidavit from the people in California which assisted the argument?

    Did the applicant have a right to appeal a denial of benefits and did he do that? And of course with what result? It would seem to me that denial of unemployment benefits would carry an appeal process with it.

    Similar for appellate government counsel.

    Did you proffer a copy of the controlling statute and regulations?

    Did you get an affidavit from someone in authority about how California deals with appellants on appellate leave?

    Did you cite any authority that an employee who loses their employment through their own misconduct doesn’t qualify for unemployment? In which case a DD214 wouldn’t matter? An interpretation of 22 CC Regulations: Discharge for Misconduct for example?

    Or could it be like similar situations where employees are still “employed,” but it just happened that for one reason or another they are on unpaid leave. The cop put on unpaid leave during an investigation, does he get unemployment benefits, . . . . So you aren’t really unemployed as simple as that when it comes to unemployment compensation?

  4. Anonymous says:

    To understand it, Mr. Sullivan, don’t apply logic. The simple answer = inconsistencies prevail when the goal is to affirm convictions.

  5. Anonymous says:

    Well put.

  6. Anonymous says:

    Then why have the 30 day rule to mail, or the 120 day rule until action?

    Either enforce them or get rid of them. But don’t keep them but then ignore them.

    If prejudice is all that matters, then get rid of the rules and go case-by-case.

  7. Late Bloomer says:

    I don’t get it either. What does an appellant have to do in order to prevail on a PT delay claim? What is the point of standards if they aren’t enforced?

  8. Phil Cave says:

    I think I tried to lay out what needs to be done above.

    The way I read the opinion the only thing that was done was to submit the letter of rejection. I read the opinion that way because I think the judges would have written about additional facts such as those I suggest both sides can add to the debate.

    It don’t think CAAF was saying you can’t have prejudice, you just didn’t do enough to show it in this case.

    I think appellate government could have helped the court if they’d done the factual and legal research to establish the exact rights, or non rights.

    So I don’t put this one on the court. I put this one on the appellate “advocates.”

    They wouldn’t let us get away with this if this were a trial — failure to investigate and all that?

    Now, if in fact the counsel did present the information I’ve suggested above to NMCCA and now we have this opinion, then I’d put it more on NMCCA and CAAF.

    CAAF may have gotten it wrong, but first did the counsel provide the court enough facts?

  9. FTB says:

    I understand Phil’s point about ADC doing a better job getting this information for CAAF, which is well-taken, but ADC are not mindreaders. If CAAF or a CCA wants more information, why not remand the case for a Dubay hearing to answer their inquiries? It’s done on other issues, why not in post-trial delay issues? Is there some sort of prohibition on that sort of remand? Is it just because they don’t want further delay? More likely they just don’t want the answer.

  10. Anonymous says:

    When you add up all of the cases that had delay, and then subtract out the number that have been given relief, at least in the Army, you get a number that is infinitesimally smaller.

  11. ??? says:

    Oh vey. I guess common sense goes out the window when considering the impact of appellate delay on unemployment benefits. I tried filing for unemployment once (my only time) and immediately the officer pops out and says “sir, the computer says you work for the Federal Government – it doesn’t matter if they are paying you or not”. I seem to remember JAG briefings (online) that actually highlights the fact that soldiers cannot collect unemployment while on Appellate leave (a fact they are proud of) because the person is not Discharged (a punitive discharge may kill off benefits anyway), common sense really.

    I expected this from a CCA, they are illegitimate and useless anyway, but to see this prevail at CAAF is unsettling.