CAAF decided the Air Force case of United States v. Knapp, No. 13-5012/AF, 73 M.J. 33 (CAAFlog case page)  (link to slip op.), on Wednesday, January 15, 2014. The court unanimously agrees with the Air Force CCA that the admission of improper “human lie detector” evidence against Appellant was obvious error, but CAAF narrowly finds that this error was prejudicial to Appellant, reversing the decision of the Air Force CCA and setting aside the findings of guilty while authorizing a rehearing.

Judge Stucky writes for the court, joined by Judges Erdmann and Ohlson. Chief Judge Baker files a separate opinion that is joined by Judge Ryan. The separate opinion is captioned as a dissenting opinion, but the dissenters concur with the majority in part.

A female Airman accused Appellant of sexually assaulting her while she was incapacitated by alcohol. Appellant was interrogated by the Air Force Office of Special Investigations (AFOSI), and 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. 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 Air Force CCA found error, concluding that the agent’s “overall testimony indicated he could tell the appellant was lying based on the appellant’s physical reactions,” which is improper. Knapp, ACM 37718, slip op. at 11. But the CCA affirmed the conviction finding that any prejudice was outweighed by inconsistencies and contradictions in Appellant’s statements during the interrogation, and by the general instruction given to the members that they were responsible for evaluating the credibility of the witnesses. CAAF then granted review to determine if the admission of the testimony was error, with 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.

Judge Stucky begins his majority opinion by noting two important themes in the case. First is the requirement that the military judge give “a prompt cautionary instructions to ensure that the members do not make improper use of [human lie detector] testimony.” Slip op. at 6. Second is that, “A timely and specific objection [from the Defense] is required so that the court is notified of a possible error, and so has an opportunity to correct the error and obviate the need for appeal.” Slip op. at 7. The entire court is in agreement on both of these themes. The Appellant forfeited the error by failing to make a timely objection, but the military judge could have cured it by giving an appropriate instruction.

Judge Stucky begins by re-stating CAAF’s three-part test for the plain-error analysis of a forfeited error: “Appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights.” Slip op. at 7 (citation omitted). Here, the error is plain because “Our condemnation of human lie detector testimony easily predates Appellant’s trial.” Slip op. at 9 (citation omitted). While Judge Stucky considers the various ways the agent could have testified about Appellant’s demeanor during the interrogation, he explains that the agent:

went too far by declaring that he had been trained to divine a suspect’s credibility from his physical reactions to the questioning. This testimony, suggesting that [the agent’s] evaluation of Appellant’s denial of wrongdoing was based on his expertise in determining credibility, impermissibly usurped the members’ exclusive function to weigh evidence and determine credibility.

Slip op. at 9 (marks and citations omitted). Judge Stucky cites repeatedly to CAAF’s prior rejection of such “human lie detector” in United States v. Kasper, 58 M.J. 314 (C.A.A.F. 2003) (discussed in my argument preview of this case).

But while the question of prejudice is what splits the court, the blame is unanimously placed on the military judge. As Judge Stucky writes for the majority:

The military judge did provide the general credibility instruction, but he never instructed the members that they could not consider [the agent’s] human lie detector testimony . . . The military judge was responsible for making sure such testimony was not admitted, and that the members were provided with appropriate cautionary instructions. The military judge failed to do so in this case.

Slip op. at 11 (marks and citations omitted). And Chief Judge Baker chimes in for the dissent:

For sure, a curative instruction addressed specifically to human lie detector evidence would have resolved this matter.

Diss. op. at 1. For the majority, “the military judge’s failure to appropriately instruct the members to disregard this testimony was prejudicial error.” Slip op. at 12. But Chief Judge Baker takes a broader view, explaining that “unless we are going to treat the introduction of any human lie detector evidence as per se prejudicial or structural in nature, which we have not before done, I do not see how the introduction of this evidence in this case materially prejudiced a substantial right of the accused. Indeed, the argument that Appellant was not prejudiced is overwhelming.” Diss. op. at 2.

Instead, the Chief Judge considers specific facts from the case. There are five:

First, Appellant confessed.

Second, the evidence corroborating Appellant’s confession was overwhelming and it was generated before [the agent] entered the picture. . . .

Third, defense counsel introduced to the members the entirety of the interrogation video to which [the agent’s] testimony was addressed. . . .

Fourth, Appellant testified. The members could judge Appellant’s demeanor and credibility for themselves.

Fifth, trial counsel did not rely on SA Peachey’s testimony in closing argument.

Diss. op. at 2-3. He finds that in the face of these facts, Appellant’s “argument and the majority opinion give [the agent’s] words a Solomonic status they do not deserve.” Diss. op. at 3. But Chief Judge Baker and Judge Ryan give the same undeserved credence to the confession that is, as I noted in my argument preview, the least reliable form of proof known to the law (as a challenged confession is presumed inadmissible and every confession requires corroboration). The dissenters then embrace a true fallacy in the penultimate sentence of the dissent:

Peachey was a special agent with interrogation training who thought Appellant was deceptive when questioned; presumably the Government would not have charged Appellant with the offense in question otherwise.

Diss. op. at 4 (emphasis added). Adopting the belief that Appellant’s denial was deceptive simply because Appellant was charged with the offense would dramatically undercut the presumption of innocence. The dissenters see this as “intuitive to any member of a military panel,” (diss. op. at 4) itself an unsettling commentary on a panel’s willingness to slavishly side with authority in the face of conflict. One might wonder if this isn’t exactly what this panel did, and if an actual jury would have thought differently.

The dissent imagines that even without the improper testimony, the panel would have retired to the deliberation room and considered that the agent must have thought Appellant deceptive because Appellant was an accused at a court-martial. This would have been pure conjecture on the part of the members, and contrary to the military judge’s certain instruction that they must decide the case only on the properly-admitted evidence before them. Moreover, the dissent imagines this while disclaiming Appellant’s concern that the members “would not have heeded the military judge’s admonition to judge credibility for themselves. . .” Diss. op. at 3.

The dissenters likely believe that Appellant would still have been convicted in the absence of the improper testimony or in the presence of a proper instruction. But the dissent does not just state this simple conclusion, or even declare the error harmless under the facts. Rather, the dissent relies on the members’ ability to detect that Appellant was lying, falling into the same trap as the military judge who failed to give an appropriate instruction.

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
Oral argument audio
CAAF opinion
Blog post: A question too far
Blog post: Opinion analysis

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