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.

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
Blog post: Government seeks reconsideration

3 Responses to “Government seeks reconsideration from CAAF in United States v. Knapp, No. 13-5012/AF, 73 M.J. 33”

  1. Christopher Mathews says:

    <i>the Government must still contend with the fact that a confession is the least reliable form of proof</i>
    I would love to see some quantifiable evidence of this assertion. 
    I’ve heard variously that the least reliable form of evidence is immunized testimony; eyewitness identification; statements by alleged co-conspirators; and testimony by government agents.  I’ve been forced to conclude that the “least reliable” form of evidence is simply whatever the defense team thinks is most hurtful to their case.  But it’s possible I’m just being cynical.

  2. AF JAG says:

    I’m with you @Christopher Matthews–“the least reliable form of proof”–are you kidding?  When corroborated, a confession is one of the strongest forms of proof known to the law.  Indeed, what else is a guilty plea but in effect a confession before the military judge, and in EVERY Care inquiry the judge dutifully informs the accused that a plea of guilty (i.e. A CONFESSION) “is the strongest form of proof known to the law.
    In this case, the confession was FULLY corroborated by both DNA evidence and other witnesses at trial who affirmed the substantial incapacitation of the victim.  Accordingly, Appellant’s initial attempts to deny these facts, followed by his ultimate confession to them, was NOT an example of a “false confession”, but rather, the rather more commonplace phenomenon of a “false exculpatory statement.”
    Of course “false confessions” and “coerced confessions” are possible, but is anyone seriously contending that they occur in sufficient enough numbers that a confession has now been rendered “the least reliable form of proof?”  I’d respectfully request some citations for that outrageous assertion.

  3. Zachary D Spilman says:

    As I wrote in my argument preview in this case:

    Earlier this year I drew some commentary in my opinion analysis of United States v. Mottwhen 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.

    I don’t agree that a corroborated confession is more reliable than an uncorroborated confession, though I do agree that it is more admissible. 

    AF JAG says:
    …in EVERY Care inquiry the judge dutifully informs the accused that a plea of guilty (i.e. A CONFESSION) “is the strongest form of proof known to the law….

    A knowing, intelligent, and voluntary plea of guilty, made with the assistance of counsel, is wholly and undoubtedly very different from a confession.