In a published opinion in United States v. Jackson, __ M.J. __, No. 20120159 (A. Ct. Crim. App. May 18, 2015) (link to slip op.), the Army CCA finds plain error in the testimony of a criminal investigator about the appellant’s confession to sexually assaulting his teenage step-daugher:

The testimony presented SA K-O [the investigator -zds] as taking master’s level courses with CIA agents at the National Center for Credibility Assessment. She testified about her ability to discern verbal and nonverbal signs of deception. Special Agent K-O told the panel that she would move from interview to interrogation mode when she saw sufficient signs of deception. And, when questioning appellant, she did just that after appellant did not answer well in response to shock-absorbing questions. Special Agent K-O testified she told appellant she thought he was lying when he denied the allegations. While describing appellant’s eventual confession, SA K-O stated, “he got this really like faraway look in his eyes like he was reliving it.” Finally, SA KO told the panel that she cuts off denials when a suspect exhibits behavior leading her to believe otherwise.

Cumulatively, this testimony constituted human lie detector testimony.

Slip op. at 8. Human lie detector testimony was the issue in CAAF’s decision in United States v. Knapp, 73 M.J. 33 (C.A.A.F. Jan 15, 2014) (CAAFlog case page), and it is improper. In Jackson, the defense asserted that the appellant’s confession to sexually assaulting his step-daughter was false. The Army CCA reverses the appellant’s conviction for two specifications of abusive sexual contact with a child in part because the agent’s testimony went to “a central – if not the central – issue of the case: whether appellant’s confession to touching his stepdaughter was truthful.” Slip op. at 10. The CCA notes that:

While every interrogation and confession is unique, there was nothing special or unusual regarding appellant’s confession. As SA K-O noted, criminal accused often deny, then slowly make admissions, and eventually confess. The government can easily admit such confessions without superfluous testimony from CID agents acting as human lie detectors. The government is not permitted to present human lie detector testimony in rebutting defense attempts to show such confessions are involuntary, coerced, or false.

Slip op. at 12. Then, because the convening authority did not act until 739 days after the court-martial adjourned, the CCA limits “the possible punishment at a rehearing to a punitive discharge, two years confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1,” unless new charges are added during the rehearing. Slip op. at 15-16.

Notably, the appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiracy to violate a lawful order, willful disobedience of a superior commissioned officer, and the two specifications of abusive sexual contact with a child, and he was sentenced to confinement for four years and a dishonorable discharge. While the CCA sets aside the sex offense convictions, it affirms the conspiracy and disobedience convictions.

13 Responses to “Reversing due to human lie detector evidence, the Army CCA limits a sentence on rehearing because of post-trial delay”

  1. Dew_Process says:

    For anyone who has never dealt with the National Center for Credibility Assessment [NCAA], which is physically located at Fort Jackson, SC [link HERE ], it is the Executive Branch’s “school” for reading crystal balls, mental telepathy and human lie detection.
    It is governed by DoDD 5210.48, Credibility Assessment (CA) Program, (April 24, 2015). Governs CA’s in DoD. [Link HERE ].
    The reference to “master’s level courses” is somewhat of a misnomer as the NCAA “Graduate” level courses do not culminate in any degree from NCAA.  “The Argosy University, American School of Professional Psychology, Virginia campus,” offers credits for their Masters program to NCAA graduates in “Psychophysiological Detection of Deception.” Or, “human lie detectors!” [Link HERE ].
    And for an informative article about all of this, see THIS LINK for a good McClatchy piece.

  2. stewie says:

    When I see things like the National Center for Credibility Assessment it does make me wonder if we’ve always been at war with Oceania.

  3. Tami a/k/a Princess Leia says:

    Encourages the use of tridents….

  4. Tami a/k/a Princess Leia says:

    Must be where Greg Focker’s FIL got his skills from.

  5. DCGoneGalt says:

    If the subject interview was recorded then the behaviors of the subject during the interview can be judged according to the “ways of the world” even absent the “expert” testimony.  While these skills are doubtlessly invaluable for conducting an interview, I don’t see them adding much in testimony that you can’t get by showing the video.  IMO, if someone looks like they’re lying just show it and argue it.  Unless the video quality is so terrible you can’t see or hear clearly what is going on (which has too often been the case in my experience).

  6. stewie says:

    Well you couldn’t argue it much could you? You’d just show the video and point out maybe some stuff but you couldn’t say see indication that he’s not being truthful.

  7. DCGoneGalt says:

    stewie:  You can’t call someone to testify as a lie detector or offer their “I didn’t believe it” testimony.  But you surely could comment to the fact that the video shows someone didn’t make eye contact, shifted their position, shifted their story to fit the facts put out by the investigator,  etc., no?  

  8. Zachary D Spilman says:

    DCGoneGalt says:

    IMO, if someone looks like they’re lying just show it and argue it.

    What evidence is there that the person “looks like they’re lying”? What does that mean anyway?

    Improper interjection of the prosecutor’s views can also include “substantive commentary on the truth or falsity of testimony or evidence.” Washington, 263 F.Supp.2d at 431. As the Supreme Court has recognized, “Prosecutors sometimes breach their duty to refrain from overzealous conduct by commenting on the defendant’s guilt and offering unsolicited personal views on the evidence.” Young, 470 U.S. at 7, 105 S.Ct. 1038.

    United States v. Fletcher, 62 M.J. 175, 180 (C.A.A.F. 2005). Further:

    We agree with the CCA’s finding that the trial counsel’s sentencing argument was improper and see no reason to make a separate determination on this matter. By his own admission trial counsel’s statements were not derived from the evidence presented at trial. Moreover, in lieu of evidence, trial counsel appealed to members to apply their knowledge of the ” ways of the world” to sentence Appellant based on a risk of recidivism through serial molestation.

    United States v. Frey, 73 M.J. 245, 249 (C.A.A.F. 2014) (CAAFlog case page).

    DCGoneGalt says:

    But you surely could comment to the fact that the video shows someone didn’t make eye contact, shifted their position, shifted their story to fit the facts put out by the investigator,  etc., no?  

    No. Of these, the only recognized factor affecting credibility is a changing story (more commonly called a prior inconsistent statement). The mere fact that a person didn’t make eye contact or shifted in their seat is akin to “divin[ing] a suspect’s credibility from his physical reactions to the questioning.” United States v. Knapp, 73 M.J. 33, 37 (C.A.A.F. 2014) (CAAFlog case page).

  9. DCGoneGalt says:

    Well, there is the answer to that.

  10. stewie says:

    Except the panel absolutely can “divine a witness’ credibility from his physical reactions to the questioning.” The prohibition, I believe, would be that the TC cannot point that out to the panel and neither can a witness who saw it. But I do think you could show the video, and I think, maybe, you could direct the panel to look at his demeanor (watch his demeanor while he is testifying and determine whether he is credible), and then make a credibility assessment, you just couldn’t suggest the answer (look at him sweating, that’s a sign of deception).

    So you can’t go I think as far as DCGG suggests, I agree. But I think you can highlight the demeanor by reminding the panel they can consider it when determining credibility, at least in a general sense.

  11. Zachary D Spilman says:

    Seems like a good issue for voir dire:

    Counsel: When you see a person shifting in their seat during questioning by a military investigator, what’s the first thought that comes to mind?

    Member: Hemorrhoids.

  12. k fischer says:

    Counsel:  When you see a person who does not make eye contact with a military investigator, what is the first thing that comes to mind?
    Member: Maybe the Agent has a lazy eye. Rather than try to figure out which eye to look at, it is much easier to stare at the tip of their nose.

  13. DCGoneGalt says:

    I once had a client who kept fidgeting in his chair during a discharge board.  It was really distracting and I thought he may be on drugs, mayb you can guess the basis for the discharge board, so I asked him if he needed coffee to calm down.  He told me he had some sort of worms that made his butt itch.  I didn’t ask for any more details.  So maybe the members would think someone just has butt worms. Put that in a “ways of the world” argument.