A reader was kind enough to forward a Government petition for reconsideration (which I’ve posted here) in the Air Force case of United States v. Knapp, No. 13-5012/AF, 73 M.J. 33 (link to slip op.) (CAAFlog case page) that CAAF decided on Wednesday, January 15, 2014. In Knapp, CAAF unanimously agreed with the Air Force CCA that the admission of improper “human lie detector” evidence against Appellant was obvious error, but it narrowly found 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.
The Government’s petition relies heavily on the fact that Appellant forfeited this error at trial by what I characterized in my argument preview as “the Civilian Defense Counsel’s rather limp objection” to the testimony at issue. Because of that forfeiture, the error was tested under the plain error standard, where Appellant had the burden to show material prejudice to a substantial right. But the Government argues:
By setting aside the findings and sentence in this case, this Court appeared to subject the questioned testimony to a heightened prejudice standard: That of harmlessness beyond a reasonable doubt. While the Government asserts that the evidence of Appellant’s guilt is sufficient to overcome even that stringent standard, it most certainly is sufficient to demonstrate a lack of prejudice under the plain error standard from Article 59(a), UCMJ.
Gov’t Pet. for Recon. at 4. Neither Judge Stucky’s majority opinion, nor Chief Judge Baker’s dissent, in Knapp used the word “harmless.” The Government petition continues:
Here, as mentioned before, there were two other direct witnesses, a confession, physical evidence in the form of DNA, and testimony and a confession from Appellant himself. If this evidence is insufficient to overcome Appellant’s prejudice argument, the Government vigorously ponders would could ever qualify.
Gov’t Pet. for Recon. at 5. Besides citing the existence of a confession twice in one sentence, the Government must still contend with the fact that a confession is the least reliable form of proof, and the practical reality that the improper “human lie detector” testimony undoubtedly bolstered Appellant’s out-of-court confession while undercutting his in-court denial. Appellant’s merits brief to CAAF focused on this practical reality, arguing:
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.
I think the Government faces very long odds with this petition. Of the three judges who found prejudice, Judge Stucky was the author of the majority opinion, and Judge Ohlson was participating in his first published opinion of the court, and so both are unlikely to suddenly change their minds. That leaves only Judge Erdmann as the Government’s hope for a dramatic reversal.
• 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
• Blog post: Government seeks reconsideration