CAAF will hear oral argument in United States v. Knapp, No. 13-5012/AF (CAAFlog case page) on Monday, November 18, 2013. The case involves the awesome powers of the “human lie detector” and whether a law enforcement officer may testify about “training” to recognize untruthfulness through “nonverbal discrepancies” or “cues” during an interrogation.

Appellant was convicted by a general court-martial composed of officer and enlisted members of aggravated sexual assault in violation of Article 120 (2006) for engaging in sexual intercourse with a female Airman while she was substantially incapacitated by alcohol. He was sentenced to confinement for 3 years, total forfeitures, reduction to E-1, a reprimand, and a dishonorable discharge.

Before trial, Appellant was interrogated by the Air Force Office of Special Investigations (AFOSI). Appellant initially stated that he had consensual sexual intercourse with the female Airman. But as the interrogation progressed over the course of a few hours, Appellant eventually admitted that the female was unconscious when he began having sex with her. At trial, the Defense tried to show that this later admission was false, caused by AFOSI’s interrogation techniques. But an AFOSI investigator testified at trial about many “nonverbal cues” given by Appellant during the earlier, exculpatory part of his interrogation, and explained, “That is indicating to me that there is some form of deception going on.” United States v. Knapp, ACM 37718, slip op. at 7 (A.F.Ct.Crim.App. Mar. 20, 2013) (unpublished). Eventually the Defense specifically objected to “human lie detector” testimony from the agent, but the judge overruled the objection and then gave no specific instructions to the members about such testimony.

The AFCCA found error, noting:

What the trial counsel elicited, however, was that these actions by the appellant constitute “nonverbal discrepancies” or “cues” which AFOSI agents are “trained” to recognize. Although the agent was not specifically asked to provide his opinion about the truth or falsity of the appellant’s statements, we find that his overall testimony indicated he could tell the appellant was lying based on the appellant’s physical reactions, and we thus find error.

Knapp, ACM 37718, slip op. at 11. But the CCA affirmed anyway, finding no prejudice due to the “inconsistencies and contradictions” in Appellant’s statements during the interrogation and the general instruction given to the members that they were responsible for evaluating the credibility of the witnesses. The CCA also cited the Defense’s “‘false coerced confession’ strategy” in its conclusion finding no prejudice. Id., slip op. at 12.

CAAF then grated review of a three-part issue:

Whether the military judge (1) plainly erred by initially allowing “human lie detector” testimony, (2) abused his discretion by allowing further admission of “human lie detector” testimony, over defense objection, and (3) erred by not providing a curative instruction on the “human lie detector” testimony.

The law prohibiting “human lie detector” testimony is clear:

Under Military Rule of Evidence 608 [hereinafter M.R.E.], a party may introduce opinion evidence regarding the general character of a person for truthfulness. The authority to introduce such opinion evidence, however, does not extend to “human lie detector” testimony—that is, an opinion as to whether the person was truthful in making a specific statement regarding a fact at issue in the case.

United States v. Kasper, 58 M.J. 314, 315 (C.A.A.F. 2003). This prohibition is in no danger in this case, as neither the briefs for Appellant nor for the Government challenge this precedent. However, the parties disagree on whether the testimony in this case rose to the level of a “human lie detector,” and on the significance of the Defense’s somewhat unclear objection.

Appellant’s brief contains a few excerpts from the record, including this section of the Government’s direct examination of the agent:

Q [by senior trial counsel]. Now, you said [Appellant] nodded his head. Did he give other nonverbal clues during the interview?

A [by SA Peachey]. Several.

Q. What were those?

A. Early on in the interview — we are trained to pick up on nonverbal discrepancies, if you will. Early on in the interview the accused would not make eye contact with me when we were talking about the sexual intercourse portion.

Q. Why is that important to you?

A. That is indicating to me that there is some form of deception going on. Prior to the intercourse, the accused was very detailed, very detail oriented, would look me in the eye, talk to me, and as soon as we got to the intercourse he would look away, look at the wall, look at the floor, not look at myself for Agent Sessler, and then immediately after the sexual intercourse timeframe he would kind of come back to us and be, once again, extremely detailed.

App. Br. at 5-6. And the following excerpt from the defense cross examination of the agent:

A [by SA Peachey]. Like I had stated earlier, sir, I’m trained on picking up nonverbal cues during interviews…

Q [by Civilian Defense Counsel]. Okay.

A. … and the accused was giving off several nonverbal cues which made us believe that we needed to dig a little deeper.

Q. And one of the nonverbal cues is he would not look at you when it came to him talking about the sex, correct?

A. Correct.

App. Br. at 6. And the following from the Government’s re-direct examination, including the Defense objection to this testimony:

Q [by senior trial counsel]. Okay. On cross you talked about nonverbal cues and you said that one of them was that the accused would look away. Did you notice in the nonverbal cues about his face?

A [by SA Peachey]. Yes.

Q. What was that?

A. Whenever the accused would speak about the actual incident, while he was looking away the accused would actually get large red sun blotches …

Q [by senior trial counsel]. Okay. On cross you talked about nonverbal cues and you said that one of them was that the accused would look away. Did you notice in the nonverbal cues about his face?

A [by SA Peachey]. Yes.

Q. What was that?

A. Whenever the accused would speak about the actual incident, while he was looking away the accused would actually get large red sun blotches …

CIVDC: Your Honor, I’m going to object to this. This goes to like a human lie detector. There hasn’t been a foundation laid for him to be able to say if he knows if somebody is lying or not.

MJ: Do you have a foundation?

TC: Your Honor, we’re not asking if he’s lying or not, we’re just noticing different responses. Defense asked in voir dire whether you can misread people and it’s going to that point.

MJ: Well, let me ask this, Captain, aren’t you drawing an inference from these responses? Otherwise, what’s the relevance? What’s the relevance of the observations you’re seeking?

TC: Your Honor, the relevance is it’s the response to being asked questions about the sexual intercourse, the actual crime, the content itself, and how the accused responded to that. It’d be no different than what the accused said in response to a question.

MJ: Are you going to ask the witness to draw an inference form those responses?

TC: No.

MJ: Well, I’ll overrule the objection at this point.

Q [by senior trial counsel]. Again, with the face what did you notice?

A [by SA Peachey]. The accused would get large red sun blotches, blood coming to the surface of the skin.

Q. Did that happen more than one time or just once?

A. More than once.

App. Br. at 6-7. Appellant’s brief is bolstered by the CCA’s finding of error in this testimony, and saves its hardest blows for the question of prejudice in the failure of the military judge to take corrective action:

By failing to sua sponte give the members a curative instruction during the government’s case-in-chief, immediately upon the hearing of the offensive testimony, the military judge left the Appellant to take the stand in his own defense with a panel of members who had already been told not to believe him by an OSI special agent, who had testified to receiving some sort of “training” rendering him able to discern truth from fiction merely because they blush when talking about sex.

App. Br. at 18. But the Government’s response highlights the admissibility of demeanor evidence (with a footnote referencing the Supreme Court’s recent decision in Salinas v. Texas) and the Defense theory of a false confession that invited a Government response:

trial defense counsel initially raised the issue of coercive interrogation during both voir dire and his opening statement, which was unmistakably a defense theme and strategy. Spanning three pages of the opening statement, trial defense counsel challenged the members to consider why Appellant gave two different conflicting stories, asserting that OSI “broke him. They broke him.” By raising the possibility of a coerced, involuntary confession, trial defense counsel opened the door for trial counsel to address the issue of the voluntariness of his confession. Further, the defense elected to admit the entirety of Appellant’s videotaped confession, which revealed his gestures, and contained several specific references to Appellant’s demeanor and credibility.

Gov’t Br. at 14 (citations omitted). Unfortunately for the Government, this discussion stops well short of addressing the agent’s testimony about his “training” on “nonverbal cues.”

And why keep putting the word training in quotes? Because the agent’s testimony about the significance of the nonverbal cues was, at best, lay opinion testimony admissible under M.R.E. 701. That rule states:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences that are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based in scientific, technical, or other specialized knowledge within the scope of Rule 702.

(emphasis added). By raising the issue of a false confession and introducing the video recording of the interrogation, the Defense put Appellant’s demeanor squarely in issue. But eliciting testimony from the agent about the meaning of Appellant’s blushing and looking away (described by the agent as “nonverbal discrepancies”), bolstered by whatever training the agent may have received on the subject, goes far beyond merely addressing the credibility of Appellant’s false confession claim through argument about fair inferences that may be drawn from Appellant’s conduct during the interrogation itself. Rather, this testimony elevates the agent to a role larger than mere witness to Appellant’s voluntary incriminating statements.

The Government’s brief addresses some of this as an invited error:

Under the second factor outlined in Jones, Appellant raised the issue of SA DP’s interrogation tactics as a trial strategy, opening the door to testimony regarding Appellant’s demeanor and the voluntariness of his statement. As such, he is not entitled to relief for any legal error he created.

Gov’t Br. at 20. Still, it’s hard to understand how Appellant invited this testimony after the following exchange during the Government’s first direct examination of the agent (see above excerpt):

A. Early on in the interview — we are trained to pick up on nonverbal discrepancies, if you will. Early on in the interview the accused would not make eye contact with me when we were talking about the sexual intercourse portion.

Q. Why is that important to you?

A. That is indicating to me that there is some form of deception going on…

The Civilian Defense Counsel’s rather limp objection during the re-direct examination doesn’t help (“This goes to like a human lie detector. There hasn’t been a foundation laid for him to be able to say if he knows if somebody is lying or not.”). The agent’s characterization of the nonverbal conduct as “discrepancies,” and the superfluous (and really outright improper) discussion of the agent’s “training” on reading body language, should have drawn a much more forceful objection far earlier in his testimony.

Earlier this year I drew some commentary in my opinion analysis of United States v. Mott when I wrote that confessions “are the least reliable form of proof known to the law.” A confession is the only form of proof that is both presumed inadmissible (when challenged, the Government has the burden to show admissibility) and requires corroboration (separate from the confession itself or another confession). Unlike eyewitness identification, circumstantial evidence, or inconsistent testimony of an alleged victim dripping with bias and prejudice, an accused cannot be convicted on his confession alone.

CAAF’s treatment of this case may turn on specific facts from the examination of the agent and the dueling theories of the Government and the Defense. Alternatively, the court may set brighter-line limits on how the circumstances surrounding a confession may be used against an accused. But regardless of the outcome of this case, the facts are a reminder of the importance of making clear objections at trial.

Case Links:
AFCCA’s opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: The “human lie detector” returns to CAAF
Blog post: Argument preview

5 Responses to “Argument Preview: United States v. Knapp, No. 13-0512/AF”

  1. stewie says:

    Goodness knows I’ve made some mistakes in my time, some real doozies, but if you get all the way to being a judge, how do you not stop this the moment it happens? And even if you are sleeping/slip up in real-time, how do you not sustain the objection?
     
    This just seems like the 100 pt question in Jeopardy to me.

  2. brian lc says:

    In this case there seems to be a very valid reason for admitting the testimony in question.  If the defense is challenging the tactics of the agents, the agents get to explain their actions.  Why did the interrogation last X hours? Because the agent believed the accused was not being truthful and it needed further exploration.  The defense can’t challenge the length of the interrogation without opening the door to the government explaining why it took it so long.
    They key, to me however, is that the agent’s opinion about the accused’s truthfulness is not being admitted for its truth.  Its offered to explain why the agent took the steps he took.  And would therefore be ripe for a limiting instruction, carefully tailored.   (And, as it was not offered for its truth, evidence about the agent’s “training” would not be very relevant, as that tends only to show that the agent’s opinion was accurate.  Evidence about the speciffics of why the agent thought he was untruthful (i.e. behacioral tells which could have too much influence on a panel) could easilly fail a 403 test, depending on the scope of the CDC’s cross).

  3. Zachary D Spilman says:

    And, as it was not offered for its truth, evidence about the agent’s “training” would not be very relevant, as that tends only to show that the agent’s opinion was accurate.

    My thoughts (as I tried to reflect in the preview) exactly.

    But too often Government counsel begin an examination with a superfluous biography of the witness. When questioning a law enforcement officer, that biography invariably goes into training, certifications, schooling, etc. There is, of course, no point to this other than to improperly bolster the agent’s later testimony that he saw this, heard that, or has no idea how the accused got so many bruises. Because, you know, a trained law enforcement officer would never lie.

    Of course the Defense objects to the early bolstering, the judge overrules the objection, and the error is baked into the cake.

  4. stewie says:

    Can’t disagree more.  Talking about the length of the interrogation does not open the door to special lie detector testimony.  At BEST, it might get to the point of allowing the investigator to say that they still had more questions or maybe even I did not believe his story so I kept pressing, but not to say I saw indications of deceptions based on my training or words to that affect.
     
    The agents don’t get to explain their actions fully.  They can’t say  for example, the reason why we continued questioning this accused was because he failed a polygraph even in the face of the defense asking that question.  Some doors never get opened.

  5. Advocaat says:

    @stewie:  well said x2.  TC never should have gone down this road, and the MJ should have stopped him/her in their tracks and instructed the members accordingly.  The accused’s character for truthfulness was impeached long before he took the stand and the members likely read all sorts of nonsense into every non-verbal “cue” he gave on the stand.  Really, AFCCA, no prejudice?