The CAAF has issued an opinion in United States v. Knapp.  This case explores the boundary of what law enforcement agents can testify to and not become a human lie detector.

 Here, an agent from the Air Force Office of Special Investigations (AFOSI) testified that, using his specialized training, he was able to determine that Appellant was being deceptive when he provided an innocent account of the events in question. We granted review to decide whether this testimony improperly usurped the members’ role in determining witness credibility and, if so, whether it prejudiced Appellant. We hold that the agent’s testimony was impermissible “human lie detector” testimony and, that under the circumstances of this case, it materially prejudiced Appellant’s defense.

The Knapp defense did not object so the court applied a plain error analysis.

Judge Stuckey reminded all that:

  “[T]his [C]ourt has been resolute in rejecting the admissibility of so-called human lie detector testimony, which we have described as: ‘an opinion as to whether the person was truthful in making a specific statement regarding a fact at issue in the case.’” [Unied States v.] Brooks, 64 M.J. [325] at 328 [C.A.A.F. 2007](quoting United States v. Kasper, 58 M.J. 314, 315 (C.A.A.F. 2003)). “If a witness offers human lie detector testimony, the military judge must issue prompt cautionary instructions to ensure that the members do not make improper use of such testimony.” Kasper, 58 M.J. at 315.

*  Interestingly both Kasper (OSI) and Brooks (expert) are AF cases.  In each there was impermissible credibility testimony, without objection and without a limiting instruction.

Judge Stuckey writing for the Knapp majority tells us that the appellate courts will allow for the following types of testimony.

  •  it would have been permissible for SA Peachey to describe Appellant’s physical reaction to the interrogation questions.
  • It would have been permissible for SA Peachey to explain that this reaction caused him to continue questioning Appellant.

I’m not sure the above examples aren’t just euphemisms or implications of lying by the witness having the same effect of telling the members that the accused lied to him.

Finally, “[W]e conclude that the military judge’s failure to appropriately instruct the members to disregard this testimony was prejudicial error.”  Slip op. at 12.

Chief Judge Baker in dissent agreed with the majority that there was error.  But he disagreed the error was prejudicial.

For  those familiar with Lewis Carroll’s, The Hunting of the Snark, to paraphrase.  Perhaps now you’ll know that what we tell you three times is true.

Time! – ring the bell man.

9 Responses to “A question too far”

  1. AF JAG says:

    So how do you spell CAAF paternalism?  It appears it is with a silent “Knapp.”
     
    Judge Baker said it best in dissent:  in what universe was there prejudice in this case where:  (1) Appellant ultimately confessed; (2) overwhelming forensic and witness testimony corroborating Appellant’s confession including:  DNA confirming intercourse; witness testimony confirming the victim was so drunk she could not walk on her own (refuting Appellant’s claims at trial of her clear headed consent); (3) THE DEFENSE INTRODUCED THE ENTIRE INTERROGATION (including the “human lie detector” portions); (4) Appellant testified at trial so members could fully evaluate his credibility (or lack thereof) under oath; and (5) the government did not even rely upon the “human lie detector testimony” in their closing argument.
     
    Any argument that the members would not have heeded the instructions of the miltiary judge that “they alone” determine the credibility of the members (notwithstanding any pruported “human lie detector testimony”) indulges a presumption that decades of CAAF precedent do not allow:  namely, that the members would or did disregard the clear instructions by the military judge.
     
    “SA Peachey offered evidence that would have been intuitive to any member of a military panel. Peachey was a special agent withinterrogation training who thought Appellant was deceptive when questioned; presumably the Government would not have chargedAppellant with the offense in question otherwise.”  That about sums it up:  when the members had a chance to evaluate Appellant’s credibility, in court, themselves, AND Appellant voluntarily doubled down on the “human lie detector” testimony, presenting it himself to the members, it is pretty difficult to see any discernable prejudice in this case.
     
    So preach it Chief Judge Baker (joined by Judge Ryan), its just a shame that not enough of your colleagues were listening.

  2. Dude says:

    There are few rules that a minimally competent prosecutor must follow without caveat.  One of those rules is not inviting witnesses to testify that they have some expertise in human lie detecting and that, using their gift of omniscience, they have already resolved the accused’s guilt.  The prosecution may as well have asked the agent to read the members’ palms while he was at it.  We should shed no tears for a government that so gleefully shoots itself in the foot.  In any case, tears are unwarranted in this case because this reversal is no great loss for the government – it merely has to try the case again.  This time around maybe the prosecution will treat the courtroom like a place for truth finding and the application of law to reliable fact, rather than treating it as a stage for circus sideshows.

  3. Cap'n Crunch says:

    AFJAG:  Really?  What is notable to me is the following concerning the “confession”: “By the end of the multi-hour interview, though, Appellant admitted …”  So, it goes on for multiple hours.  Do we think that maybe these agents might have coerced a false confession?  In fact, I think the defense argued the accused “confessed to the AFOSI only after he had denied any wrongdoing more than seventeen times but eventually broke due to the prolonged interrogation.”  http://www.innocenceproject.org/understand/False-Confessions.php  (“In about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty.”)  Then we get the non-verbal, lie detector evidence.   Now to the crux of the prejudice:  “At trial, Appellant testified, consistent with his original statements to the AFOSI, that, although A1C ES was intoxicated, she initiated the sexual contact and engaged in consensual sexual intercourse. …the only evidence contradicting Appellant’s testimony was A1C ES’s testimony, that she had been too inebriated to remember the night or to have consented to sexual contact, and Appellant’s confession, which he maintains he made only when he broke down after eight or nine hours of interrogation,” and then our lovely human lie detector testimony.
    He said, she said case, (and the she said was a “I don’t remember”), and a confession after a very prolonged interrogation.  Seems like a pretty close case to me.  I recognize the dissent’s points, but… to some extent they do not demonstrate, at the time of the event, that the alleged victim was actually inebriated. 
    This sort of gets to a broader point I like to make.  All too often, the government plays fast and loose with the law, or the rules, to get the win.  A good prosecutor protects his record, and his case, by preventing errors at trial that keep the tough cases from getting reversed on appeal.
    Look at it this way… a retrial is authorized.  And, I’ll bet this one, in today’s sexual-assault sensitive environment, is retried.  Lets see if the government prevails without the improper evidence.  My answer is “probably” but I cannot be sure, and for that reason, CAAF calls the prejudice issue correctly.

  4. Phil Cave says:

    AFJAG,
    I might agree with you if this were the first and an odd event.
    However, as Kasper and Brooks show this appears to be a consistent problem within the AF – DC’s don’t object, TC’s go too far, MJ’s don’t instruct, and AFCCA finds no problem?  The same problem repeated.  I can’t say that’s how the majority resolved to find prejudicial error in this case, but if it was, I’m OK with that.  That’s not paternalism, that’s enforcing the rules, with a two-by-four PRN (pro re nata).  To me, a persistent problem like this indicates training errors. 
    Another consistent error along the same theme of prosecutors, and defense counsel at times, getting witnesses to testify about the credibility of other witnesses in AF courts is a Jenkins problem.
    United States v. Jenkins, 54 M.J. 12 (C.A.A.F. 2000)(Court consistently held that a witness may not opine that another witness is lying or telling the truth.  The Court of Appeals for the Armed Forces has adopted the rule followed in the federal circuits that have decided the issue that “prosecutorial cross-examination which compels a defendant to state that law enforcement officers lied in their testimony is improper.”  And see United States v. Marrie, 43 M.J. 35 (C.A.A.F. 1995); United States v. Armstrong, 53 M.J. 76 (C.A.A.F. 2000); United States v. Toro, 37 M.J. 313 (C.M.A. 1993).
    So, there’s a nice little PME module for you.  And here’s how some of the federal circuits deal with the issue (courtesy of one of my favorite blogs – federalevidencereview).
      See, the following summary of the federal circuit approach noted in United States v. Schmitz, 634 F.3d 1247 (11th Cir. 2011).  [ http://federalevidence.com/node/1112 ]
    In reaching this conclusion, the circuit specifically noted the following circuits as having “examined the propriety of questions posed to a criminal defendant about the credibility of government witnesses” and that “have found that such questions are improper:
    First Circuit: United States v. Sullivan, 85 F.3d 743, 749-50 (1st Cir. 1996) (“counsel should not ask one witness to comment on the veracity of the testimony of another witness”)
    Second Circuit: United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987) (“[T]he prosecutor asked Richter in a series of questions to testify that Lazzara was either mistaken or lying. This was improper cross-examination. Determinations of credibility are for the jury.”)
    Third Circuit: United States v. Harris, 471 F.3d 507, 511 (3d Cir. 2006) (“Today, we follow our sister circuits and hold that asking one witness whether another is lying is inappropriate. Such questions invade the province of the jury and force a witness to testify as to something he cannot know, i.e., whether another is intentionally seeking to mislead the tribunal. In addition, as Harris’ counsel explained during oral argument, such questions force defendants into choosing to either undermine their own testimony or essentially accuse another witness of being a liar.”)
    Fifth Circuit: United States v. Williams, 343 F.3d 423, 437 (5th Cir. 2003) (“The government concedes that the prosecutor acted improperly by asking Williams about the other witnesses’ veracity.”)/li>
    Seventh Circuit: United States v. Thomas, 453 F.3d 838, 846 (7th Cir. 2006) (“Because the evaluation of witness credibility is the province of the jury, it is improper to ask one witness to comment on the veracity of the testimony of another witness.”) (quotation marks and citation omitted)
    Ninth Circuit: United States v. Sanchez, 176 F.3d 1214, 1219-20 (9th Cir. 1999) (“the prosecutor’s questions compelled Sanchez to give his opinion regarding the credibility of a deputy marshal, which was error”)
    D.C. Circuit: United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995) (“It is therefore error for a prosecutor to induce a witness to testify that another witness, and in particular a government agent, has lied on the stand.”)
    Tenth Circuit: But see United States v. Williamson, 53 F.3d 1500, 1523 (10th Cir. 1995) (noting the reasoning in Richter was unpersuasive).

  5. Brian lc says:

    There are certainly times when an interrogater can be asked about whether he thought the accused was deceptive, but they usually require the defense to open the door, and should be quickly followed with an instruction by the judge.

    If, for example, the defense crosses the agent on the length of the investigation (its length, and asking the same question over and over), the government then can offer evidence to explain why the agent did those things (I thought he was lying to me) and rebut the inference that the agent was unreasonable or badgered the accused. That evidence is not offered for the truth (that the accused was lying), but rather to explain why the agent did what he did (continued questioning). A proper limiting instruction, and all should be well.

    It gets harder when the government offers WHY the agent thought he was lying (e.g. I’m trained, I can detect subtle muscle movements in the eye that indicate deceptiveness). This evidence does explain the reasonableness of the agent’s actions (somewhat), but also has the serious danger of panel walking away thinking he’s a lie detector . The more specific about why he though he was lying, the greater the danger. (i.e. ripe for a 403 test). If the defense’s is really going after the agents abilities, methods or character, perhaps it could come in, but like all 403 tests…it depends). And…a stronger limiting instruction, again, emphasizing that no one can testify whether another’s statement is credible. (Luckilly for all, the BB has such an instruction that really pushes the point, but I recall it being located in the “expert witness” instruction).

    Because such tests are so fact dependant, it is hard to second-guess either side’s arguements without the record of trial.

  6. Former JAG says:

    The lead defense counsel in this case was a civilian

  7. Phil Cave says:

    FJAG, thanks for that distressing piece of information.  With that in mind, I think I will stick with my comment.

  8. AF JAG says:

    Just FYSA–the defense’s theory at trial was “false/coerced confession” the whole way.  The talked about it in their opening statement, and they played Appellant’s entire OSI interview, during their case in chief, because that was their whole point:  he was coerced into making a false confession because his interogators continued their interrogation after his initial denials.
     
    Its against this backdrop that TC asked his “one question too far” about why the investigator continued his questions after Appellant’s initial denials.  While it came out sounding like “human lie detector” testimony, the purpose was to anticipate and refute a claim of coerced confession.  Certainly, trial counsel’s “one question too many” was not the best way to address the defene theory and was in error.  Nonetheless, we are still left with a case where CAAF found prejudice where Appellant recieved exactly what he and his trial defense counsel wanted at trial:  a full litigation and exposure of Appellant’s interrogation in its entirety.  They wanted it, they got it, they lost, but now on appeal, its the government who pays the consequences.

  9. Dude says:

    AF JAG:  Your argument would permit the government to have agents testify that they have received lie detector training that allowed them to confirm the accused’s deception any time an accused contends that their confession was involuntary.  A defense theory of coerced confession doesn’t give the government free reign to introduce mysticism and voodoo dressed up like expert opinion.  The prosecution invited this decision.  The government can’t be truly surprised that CAAF didn’t bless such silliness.