CAAF will hear oral argument in the Marine Corps case of United States v. Martin, 15-0754/MC (CAAFlog case page), on Wednesday, April 6, 2016, at 9 a.m., at the Wood Auditorium at the Air Command and Staff College, Maxwell AFB, Alabama. The case presents two issues involving improper human lie detector testimony; the first specified by the court and the second certified by the Judge Advocate General of the Navy:

Specified issue: Whether the Court of Criminal Appeals erred in holding that the human lie detector testimony offered by the alleged victim’s husband was not materially prejudicial.

Certified issue: Did trial defense counsel invite error when he opened the door to human lie detector testimony during the cross-examination of the victim’s husband?

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer and enlisted members, of one specification of wrongful sexual contact in violation of Article 120(m) (2006). The members sentenced him to reduction to E-1 and a bad-conduct discharge.

The appellant’s conviction arose from an alleged incident involving a female subordinate (identified as “CRI”) who was also the wife of another Marine. While CRI and her husband slept in a bed at a house party, the appellant allegedly entered the room and penetrated CRI’s vagina with his fingers. CRI awoke to this violation, “felt Appellant’s fingers inside her vagina,” and saw the appellant “kneeling on the floor next to the bed.” Gov’t Br. at 3. She didn’t move for “approximately three to five minutes,” and then rolled away from the appellant and unsuccessfully attempted to wake her husband. Gov’t Br. at 4. She then went to the bathroom and cried, and then returned to the bed and fell back asleep. Gov’t Br. at 4. CRI told her military mentor and her husband about the alleged incident within approximately one week of its occurrence, but no report to law enforcement was made until the mentor made a report approximately one year later. Gov’t Br. at 4-5. An investigation followed that report and the appellant was charged.

The appellant’s trial strategy was to attack CRI’s credibility and assert that her allegation was fabricated. This strategy was supported by the fact that CRI’s husband initially disbelieved her allegation, with the husband going so far as to initially believe that he was the one who touched her (if anyone had touched her). The husband testified at trial and was asked by both sides to opine about the truth of his wife’s allegation. He testified about his initial disbelief but that his opinion changed based on his wife’s conduct. Neither side objected to this improper human lie detector testimony, and the NMCCA found that it was plain error for the military judge to admit it. However, the CCA found no prejudice from this error based on four factors: (1) other testimony that CRI was an untruthful person; (2) the likely negligible impact of a husband’s testimony that he believes his wife; (3) the defense role in the error and failure to request a curative instruction, and; (4) the (standard form) instructions ultimately provided to the members. United States v. Martin, No. 201400315, slip op. at 9 (N-M. Ct. Crim. App. Jun. 18, 2015).

CAAF then granted review of the specified issue (questioning the CCA’s finding of harmlessness). The JAG subsequently certified the invited error issue; a certification that I discussed here as strange because the CCA’s opinion specifically noted the defense’s role in the husband’s improper commentary on the truthfulness of his wife’s allegation against the appellant.

The briefs suggest that next week’s oral argument will be lively. While the appellant largely focuses on the centrality of CRI’s credibility to the prosecution’s case, the Government disputes that the trial counsel elicited human lie detector testimony from the husband on direct examination. Instead, the Government makes the incredible assertion that the husband’s direct testimony about her wife’s conduct after the alleged assault was merely the husband’s admissible lay opinion that he could not have touched his wife on the night in question.

On direct examination the prosecution elicited the following testimony from CRI’s husband:

Q: When you originally talked to NCIS you told NCIS that you thought it possibly could have been you who had touched your wife?
A: Yes, sir.

Q: Why did you say that?
A: I’m the kind of person that if it’s even remotely an option I think about it like that. I guess I’m, like, a by-the-numbers-type of person. So, I mean, my wife could have thought about, you know, maybe it could have been another night. But just the way she has been since then, then I know it wasn’t me. She wouldn’t be acting the way she does nowadays, like, if it would have been me. Even if it was something that she wasn’t expecting from me she wouldn’t be acting that way.

. . .

Q: And you would had [sic] previously lived together before this assault, correct?
A: Yes, sir.

Q: So you would have basis to judge how her behavior was before and how her behavior was after?
A: Yes, sir.

Q: And so there was — and please clarify, you know, but there was a marked change in her behavior right at the point of the sexual assault?
A: Yes, sir.

Q: Did she sleep the same after the assault?
A: Um, kind of the same . . . if you were to ever try and wake her up—like, if I were to try and just shake her to wake her up she would literally . . . like, hyperventilate—I guess she would . . . like, jump out of bed and, like figure out who—who it was, who was, like trying to wake her up. Which—I mean, I kind of didn’t really think too much into that because if someone were like trying to shake me to wake me up and I wasn’t sure who it was I would—I would kind of freak but it just—it seemed weird to me, sir, is the best way I can say it. She, kind of, would just jump out of bed and, kind of, just be, like, scared.

Q: And she did not act like that before the sexual assault?
A: No, sir.

App. Reply. Br. at 10-11 (all but the last two questions and responses) (omission and marks in original); Gov’t Reply Br. at 4-5 (last two questions and responses).

Then, on cross-examination, the defense elicited the following:

Q: And you initially thought that maybe she imagined it?
A: I just—I was kind of in disbelief.

Q: You thought maybe she dreamed it?
A: Something like that, sir, yes.

Q: The story didn’t really make too much sense to you?
A: I just figured that if something like that would have happened, then, like—I know I was thinking, like, where was I in this? Like, what, you know, I figured it was something that—at least in my case if something like that were to happen to me, sir, I would—I would have stopped it or done something, like, instantly, sir.

Q: And, initially when you talked to NCIS you, kind of, told them you didn’t really remember too much?
A: Yes, sir.

Q: And you first thought that was, hey, maybe it was you who did it?
A: Yes, sir.

Q: You questioned her yourself about it too, didn’t you?
A: Yes, sir.

Q: And at no point after that did you ever—hey this is what happened and then you never went and reported it to anyone, did you?
A: I honestly . . . its [sic] not like I didn’t believe her, sir. But it, kind of, didn’t make too much sense to me. I always think of things as the way I would handle them, which I know in a marriage is kind of bad, sir. But that is just the way I rationalize stuff is how would I handle it. Where I know she handles things a lot different than I do.

Q: Okay. So you weren’t entirely convinced that this happened then?
A: No, sir.

Q: And you told NCIS that?
A: Yes, sir.

Q: You thought that, hey, maybe—maybe it happened maybe didn’t happen?
A: Yes, sir.

Gov’t Reply Br. at 5-6 (marks in original).

Finally, on re-direct, the prosecution elicited:

Q. Now, you just told the defense counsel that you had your doubts?
A. Yes, sir.

Q. You do believe your wife, though, correct?
A. I do, sir.

Q. And she’s telling the truth?
A. She is, sir.

Q. And why do you think that?
A. The way—the way that it’s affected her, the way that she’s changed, the way that it’s affected our marriage—the way that it’s negatively impacted us just as a family—we have two kids, we have three dogs, and she’s just depressed. And I understand that a mother is, obviously, is stressed out from all that, especially with me deploying again. But even on good days, she’ll just snap sometimes. And just the way that it’s affected her, something as big as it had on her wouldn’t have happened over a small situation, sir.

Gov’t Reply Br. at 7.

The appellant argues that these exchanges show that the prosecution was the first to introduce improper human lie detector testimony. Asserting that the invited error doctrine does not apply in this case because the Government is responsible for the error, the appellant argues that the husband’s “descriptive ‘before and after’ account of how [CRI]’s demeanor had changed since the alleged incident and how [the husband] came to believe her,” impermissibly bolstered CRI’s testimony.  App. Reply Br. at 11.

Yet the Government asserts that the husband’s testimony on direct examination was proper lay opinion testimony:

Appellant’s argument that he was not responsible for the admission of human lie detector testimony—and that he did not invite any error—is based on the faulty premise that the United States first elicited testimony about the credibility of CRI’s allegations. (Appellant’s Br. at 10.) But, the United States did not present evidence on direct that Cpl AI “doubted his wife’s credibility.” (Appellant’s Br. at 10.) To the contrary, Cpl AI testified that, based on his perception of CRI’s marked change in behavior, his opinion was that he could not have touched his wife—testimony falling squarely under Mil. R. Evid. 701. (J.A. 51.)

Gov’t Reply Br. at 10.

I think the Government’s position on this issue is nonsense. The husband’s shifting opinion about whether he touched his wife is direct commentary on the truth of her allegation that she saw the appellant kneeling next to her while she felt his fingers inside her vagina. Had the husband believed her allegation (made a week after the alleged assault) that the appellant was the perpetrator then the husband wouldn’t have speculated to criminal investigators (a year later) that he was really the person who touched her, nor would he have needed to change his opinion about his own actions. The Government’s argument to the contrary is poorly reasoned, at best.

Furthermore, I believe that the direct examination testimony of the husband about the change in his wife’s demeanor was also inadmissible. The fact that a person’s behavior changes after an alleged incident is equally probative of their acting talent as it is of the likelihood that the allegation is true. The husband could have testified in sentencing about the personality changes that occurred as a result of the appellant’s actions, but those changes had no relevance on the findings (other than to provide a basis for his improper opinion that his wife’s allegation was true).

Yet the defense’s eager use of the husband’s opinion about the truth of his wife’s claim was equally improper and is a strong basis for CAAF to agree with the CCA’s conclusion that the husband’s improper testimony was harmless. The defense’s eagerness to use the husband’s opinion in this case stands in stark contrast to the testimony at issue in United States v. Knapp, 73 M.J. 33 (C.A.A.F. Jan. 15, 2014) (CAAFlog case page), where a criminal investigator directly opined about the truth of the appellant’s pretrial statements (and the defense objected). As the Government notes in its brief, “A party may not complain on appeal of errors that he himself invited or provoked the lower court to commit.” Gov’t Br. at 31 (quoting United States v. Wells, 519 U.S. 482, 488 (1997)) (marks omitted).

Case Links:
• NMCCA opinion
• Appellant’s brief (granted issue)
• Appellee’s (Government) brief (certified issue)
• Appellant’s reply brief (granted issue)
Appellee’s (Government) reply brief (certified issue)
• Blog post: Argument preview

31 Responses to “Argument Preview: United States v. Martin, 15-0754/MC”

  1. stewie says:

    I haven’t processed this enough to have an opinion on it yet as I’m running late, but ZS are you seriously arguing that demeanor testimony isn’t relevant/admissible?
    Just because something has two possible reasons doesn’t make it admissible. Changes in demeanor after an alleged incident certainly COULD be relevant to the incident actually happening…or it could be relevant to acting. It would depend on the type of changes, the bias in the person observing the changes, how well they knew the person, a whole host of things, but to categorically say never relevant? Do you have case law to back up that argument? Because logically I don’t remotely agree.

  2. Zachary D Spilman says:

    You’re making my argument for me, stewie. The “type of changes, the bias in the person observing the changes, how well they knew the person, a whole host of things…” are all reasons why what you call demeanor evidence is just a backdoor way to admit human lie detector evidence. It also makes such evidence far more confusing and prejudicial than probative.

    At best it’s extrinsic evidence of a specific instance of the witness’s conduct offered to support the truthfulness of the witness’s in-court testimony. See Mil. R. Evid. 608(b).

  3. TC says:

    Zack, it’s not being used to support the truthfulness of the victim’s testimony, it’s being used to prove the charge.  I assume you’d agree that evidence that a sexual assault victim was found the night of the alleged assault huddled crying in a corner is clearly relevant and admissible?  While arguably less relevant, evidence would be relevant that a victim cried herself to sleep every night for the next 3 months, when she’d never done so before the alleged offense.  Sure, there could be other reasons she did that, including faking it to support her false claim, but that goes to the weight, not the admissibility.

  4. TC says:

    I should add that the TC did a terrible job of phrasing the question here, and the way it was phrased was objectionable.  Instead of asking “why do you believe your wife?” the question just should have been “what changes to your wife’s demeanor have you observed since the alleged offense?”  But evidence demonstrating a change to a victim’s demeanor is generally admissible, assuming the question is properly phrased.

  5. Zachary D Spilman says:

    I assume you’d agree that evidence that a sexual assault victim was found the night of the alleged assault huddled crying in a corner is clearly relevant and admissible?  

    As foundation for an excited utterance, sure. As independent evidence of an assault, no.

    Evidence would be relevant that a victim cried herself to sleep every night for the next 3 months, when she’d never done so before the alleged offense.  

    Relevant to prove what, exactly?

    And before you highlight that the absence of a fresh complaint is often offered as a defense, note that the absence of a fresh complaint is merely the opposite of the excited utterance rule (a fresh complaint is less likely to be fabricated, so the theory goes).

    I will, however, agree that defense counsel routinely fail to object in situations like this.

  6. Zachary D Spilman says:

    See also:

  7. Lone Wolf says:

    Zach, great scene. I see what you did there.

  8. The Silver Fox says:

    Knapp should have been a government win on prejudice.  J. Baker’s dissent was dead on.  

  9. stewie says:

    No, ZS, I’m really not making your argument for you. It has nothing to do with human lie detector testimony. As TC says, it’s used as evidence that the assault happened, not as evidence that the alleged victim is telling the truth. The AV theoretically doesn’t have to testify for demeanor and observed acts to be admissible.  And it works both ways I might add, as the defense can also introduce demeanor evidence and observed acts.
    The reason why we don’t allow human lie detector testimony is the same reason we don’t allow anyone to vouch for a witness, we leave it to the panel to determine credibility, not other witnesses/people. How the AV acts before and after is valid evidence that can be used by both sides.  Most people are not great actors, and most people can’t consistently fake not being themselves, and thus they either act in ways consistent OR inconsistent with being assaulted, and that evidence fairly goes to the panel in determining whether they are telling the truth or not, particularly in cases without physical evidence or witnesses.
    But I’ll ask again, can you point me to case law that supports your position?

  10. Zachary D Spilman says:

    I point you to the rules of evidence, stewie, and I note that as the proponent you bear the burden.

  11. stewie says:

    What rule blocks demeanor evidence?  What rule blocks evidence of acts? If you are pointing to 401, that’s the last refuge of “I don’t have any other objection save 403.” This is beyond common place at trial. Your view is one I’ve never seen supported once.

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

    It’s scientific fact that there is a physiological reaction to trauma, to include a difference in behavior.  Stewie is correct, the difference in behavior can be considered as evidence that a sexual assault occurred, it’s not evidence of whether the AV is telling the truth.  The issue is how much weight should it be given, and can there be an alternate explanation for the change in behavior?  Such as she’s hyper-vigilant because her hubby is deploying?  Is she hyper-vigilant because she’s upset her hubby didn’t believe her?  Etc., etc.
    Hubby shouldn’t have said a word.  He shouldn’t have given a statement, he shouldn’t have testified.  This is where a lawyer educated on privilege could have stepped in. 

  13. Jolly Roger says:

    What privilege do you think would allow the husband to decline to testify about whether the wife was sleeping OK after the date of the charged offense?

  14. stewie says:

    two types of spousal privilege, confidential communications, held by either party, and spousal privilege, held by the testifying/witness spouse.  So the husband could have refused to testify at all concerning his spouse, or could have volunteered his observations, his choice. I suspect the government and hubby wanted him to testify, because both thought he was helping his wife.  So I’m not sure how DC could have stopped it, and TC obviously didn’t want to stop it.

  15. Zachary D Spilman says:

    It’s scientific fact that there is a physiological reaction to trauma, to include a difference in behavior.  Stewie is correct, the difference in behavior can be considered as evidence that a sexual assault occurred, it’s not evidence of whether the AV is telling the truth.

    Well now we’re really into trial-within-a-trial land, as we’ll need to establish the applicability of this to the facts of the case. And then other things (like the alleged victim’s mental health history, and maybe even sexual history) suddenly become important.

    But let’s take the facts of Martin: The appellant was charged with (essentially) groping a sleeping subordinate. To prove the alleged offense the subordinate testified that she awoke to the feeling of the act and clearly saw the appellant. That’s a prima facie case.

    In response the appellant challenged the alleged victim’s credibility, asserting that the allegation (and her sworn testimony) were false. There are well-established ways to do this, including by showing inconsistencies, motive to fabricate, character for untruthfulness, etc. 

    That the subordinate experienced what a layperson considers to be personality changes after the alleged assault does not prove that the appellant is guilty. The personality changes are not, as TC wrote above, evidence to prove the charge. To say that a person is guilty of sexual assault because the alleged victim had trouble sleeping months later is absurd.

    However, I’ll concede that in Martin personality changes are relevant to rebut the defense claim that the whole thing is a fabrication (because it’s not cold and calculated). But it’s equally strong proof of fabrication (as an elaborate ruse). That gives any personality changes a low probative value. The danger of unfair prejudice, however, is very real (but depends on how the prosecution uses the changes). See Mil. R. Evid. 403. 

    Martin is a good example of how this type of low-relevance evidence is easily misused. As quoted in the post above, the husband testified (on direct examination) that:

    She wouldn’t be acting the way she does nowadays, like, if it would have been me. 

    Now (best I can tell) the defense did not claim that the alleged victim merely mistook the appellant for her husband, so evidence that it wasn’t the husband isn’t relevant. Instead, the husband’s testimony about personality changes is just the foundation for his opinion that his wife’s allegation is true. That makes him a human lie detector. 

    I really can’t explain why this type of evidence is commonplace in the cases you try, stewie. I’ve always objected. But your anecdotes and my anecdotes are all very abstract. What matters is the facts of a specific objection and the analysis in the subsequent ruling. Unfortunately for the appellant in Martin, both sides eagerly used the husband as a human lie detector with (apparently) not a peep from the military judge. 

  16. Jolly Roger says:

    I disagree, and this was my point of asking.  Spousal incapacity grants a privilege to refuse to testify *against* his or her spouse.  Not *about* his or her spouse.  Here the husband testified against the accused about his spouse.  He could not have refused to answer questions about his wife’s demeanor, sleep habits etc., because he was not testifying against her, he was a prosecution witness called to testify against the accused.  The confidential communication privilege could come into play regarding what she told him, although there’s more than a small chance she waived it already by talking to the cops and telling them what she told her husband.  This is a pet peeve of mine because I think people read the privilege rules like this too broadly, particularly SVCs (in my experience).

  17. stewie says:

    Eh, I dunno…some states apply it to civil and criminal trials. But I’m not sure I agree it only applies when one spouse is an accused.  Regardless, assuming it did apply, the privilege is held by the testifying spouse, and in this case, he wanted to testify, so it didn’t matter if it did or didn’t apply theoretically.
    The victim’s mental health history IS important theoretically, and the sexual history COULD be important. So not sure what you are saying here. There is no trial within a trial. There is plenty of scientific evidence here, but this is just plain logic and common sense: you look at changes in behavior patterns as evidence for or against an alleged traumatic event happening.  When it’s a he said/she said, with no witnesses, what else would you look at, your gut as to who is telling the truth on the stand? And why is that more reliable evidence?  We all know it isn’t particularly reliable.
    If we look to this case, absolutely properly founded, credible testimony that she had a noticeable, and sustained personality change after an assumedly traumatic event is some evidence that the traumatic event itself happened.  Now, the husband can testify to that, and the defense can reveal his obvious bias to say that…he wants to believe his wife was an unwilling participant, and the panel can decide.
    Now, the quoted language in this case you cite is problematic not because it’s an observation but because it goes BEYOND mere observation.
    It’s not just commonplace in the cases I try, it’s commonplace period. It’s not just anecdotes…I’ve never seen a case about this, never seen a trial with this objection, and I can’t imagine most judges sustaining such an objection without there being some pretty unique reasons.  I would expect no judge would sustain an objection to the husband stating his observations, I would hope an objection to the question you listed would be made and sustained because it isn’t an observation…it’s something else (lie detector testimony).

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

    Testifying that you didn’t believe your wife’s claim of sexual assault because you, as a man, would’ve handled the situation differently, is sufficient to count as testifying “against” the spouse, ergo the hubby could’ve invoked the privilege to refuse to testify.  The privilege to refuse to testify is very broad in that hubby can refuse to testify about privileged communications, unprivileged communications, and observations.  Unfortunately, counsel, and even agents, don’t think about these things, which then necessitates SVCs to know about the privilege rules and advise their clients (and their spouses) of the rules, so they can make an informed decision on exercising them.

  19. Former DC says:

    Let me ask this a different way:  Is this conduct that is tantamount to a statement?  In other words, is it hearsay?
    The classic version of that is if you ask me what time it is, and I point at the clock.  Testimony that I did so is hearsay, because my act is the same as a statement.
    Here, it would seem to me there is a potential difference.  On the one hand, if a witness is asked, “What did you see?”, they should be able to testify what body position, actions, etc. they saw another person perform.  That is not hearsay.  The trick comes when the question is asked, “What did they do when you asked what was wrong?”  At that point, the action of the other person cannot be admitted for their truth, because they are a statement.
    Here, it seems to me that we are looking at conduct that is a statement.  The alleged victim is not saying what happened, but was acting out.  The interpretation given to that by the husband is his comment on the truth of those non-verbal statements, and thus, inadmissible hearsay.

  20. stewie says:

    I think Former DC what the husband could have said are things like:  she was having trouble sleeping (tossing, turning), or she was much more jittery, or more easily startled, or even could in general say she was more prone to snap (without going into specifics).
    I agree with you that what happened here went beyond that.  Might be hearsay, might not, could be another viable angle of attack.
    I think really it should have stopped before “you do believe your wife….” Most before I’m fine with, most after is all kinds of wrong, except maybe the snapping part or her general mood.

  21. RY says:

    Good conversation.  IMHO, I agree with Stewie that the behavior/demeanor evidence is admissible.  I understand ZS’ perspective that it is a ruse.  While it certainly could be used improperly, that does not make it imadmissible.  From SAFE nurses talking about the demeanor of the patient, to law enforcement talking about an accused’s demeanor during the interview, it happens all the time because many of us believe the old adage that actions speak louder than words.  If someone is upset, let me see evidence they were upset or you should explain to me why they acted so differently.  The popular approach now is to just note SHARP/SAPR training and how everything is counterintuitive and avoid actually presenting evidence.  The problem with “counterintuitive” notions is that the reasons it is “counterintuitive” is because that behavior is 100% consistent with innocence.  If wife seemed no different to husband at all afterwards, that would be admissible because it has a tendency to make the fact that nothing non-consensual happened more likely than the opposite. Husband must be testying from personal observations though, not from what wife told him about her feelings or whatever. 
    WRT to privilege, the fact that the husband’s testimony may not be corroborative of his wife does not make it subject to privilege.  The spousal privilege is not a complete right to refuse to testify unless you’re supporting your spouse or because it could somehow be used against the spouse if some theoretical criminal or civil case is filed later on.

  22. Jolly Roger says:

    Trammel v. US, 445 US 40 (1980), In re Martenson, 779 F.2d 471 (8th Cir 1985), and Ryan v. Commissioner, 568 F.2d 531 (7th Cir 1977) all pretty squarely support my position that the husband had no privilege to refuse to testify about observations outside of confidential communications.  Parts of US v. Hughs, 28 M.J. 391 (CMA 1989) call into question whether a spouse could decline to speak with police outside of court, even when the spouse is a criminal target, although I wouldn’t quite go that far.  That’s more reading than I have time for today already, but I remain convinced that spouses can’t just refuse to testify about their spouses if they think it would be vaguely unfavorable.  It has to be testimony against the spouse as a party to the proceeding called by the adverse party, and probably in a criminal proceeding.  It’s not a broad privilege.  The property interest in Martenson was way stronger than whatever interest the victim-witness had in seeing the accused go to jail in this case.

  23. Zeke says:

    The Silver Fox says:

    Knapp should have been a government win on prejudice.  J. Baker’s dissent was dead on.  


    Knapp was set aside by CAAF with the authorization of a rehearing because, over defense objection, at a trial before members, the military judge let the government have it’s special agent testify that he could tell Knapp was lying.  The prejudice was that Knapp testified at trial, and the members were therefore improperly allowed to assess Knapp’s in-court testimony through the eyes of a supposed government human lie detector.  CAAF found that there was a possibility of a different outcome had that error not been committed.  CAAF turned out to be right.  Knapp was retried and at the new hearing, without the government’s shenanigans, he was fully acquitted.  So, no prejudice my ass.  

  24. Nick says:

    Drop the mic Zeke! I think the full acquittal clearly shows Baker was dead wrong.

  25. Alfonso Decimo says:

    Trial defense counsel opened the door to this testimony. 

  26. Vulture says:

    Aren’t there intimacies between a husband and wife beyond verbal communication that are protected?  They live in the same house; what about their expectations of privacy that come with that? 

  27. Voice of Reason says:

    I believe what Zeke meant to say was “So, in regards to Silver Fox’s assertion that there was no prejudice, I believe that the subsequent acquittal shows that was clearly not the case.  Good day to you, kind Sir.  I said GOOD DAY!

  28. President Comacho says:

    Looks like this “victim” read about the drive by fingering in the LTG Franklin case with the LTC and thought “what a great path to get on the victim worshipping pedestal”
    How in the holy hell did this go to trial let alone result in conviction? This is what happens nowadays in panel cases.  Did this guy just have really lousy DCs?

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

    I see this as error invited by the defense.  I think invited error renders any such error per se harmless.
    The change in sleep pattern is not a “personality” change, it’s simply a change in sleep patterns, which could be caused by numerous things, including a sexual assault.  The hubby’s testimony on his observations in the change in behavior pre- and post- alleged assault is admissible under MRE 701, since lay people are allowed to testify about their observations..  It’s an issue of weight, not admissibility.  He just couldn’t testify to “as a result of that change, I concluded she was sexually assaulted.”  Testifying that he couldn’t have been the one who touched her isn’t the same as saying he believed she was sexually assaulted.
    The defense, on the other hand, milked his testimony for everything it could, laying a foundation for “if her own hubby doesn’t believe her, then neither should you.”  But that entitles the Government to come back with, “do you believe her now, and if so why?”  The cause of her change in behavior could have been multiple sources, but the panel got to consider all of that, and still decided to find Martin guilty.
    The better option would have been to limit hubby’s statements and testimony to just, “I was sleeping next to my wife.  She tried to wake me up, I’m a heavy sleeper, I thought she was trying to wake me up because I was snoring.  I went back to sleep.”  The end.  Nothing about what she told him a week later, as it was privileged.  Nothing about his opinion of whether she was telling the truth, which is human lie detector testimony, and I wouldn’t be surprised if his disbelief was a cause of her anxiety.  I’d be pretty upset if my hubby told people he didn’t believe me, probably wouldn’t be married to him anymore.  TC should have objected to the defense’s cross-exam.  There shouldn’t have been anything about the hubby saying, “if it had been me, I would have stopped it.”  TC should have kept that out, it’s testimony like this that feeds the “counterintuitive behavior” stuff.
    The victim in this case could have also objected to her hubby’s testimony about what she told him.  He could have refused to say anything to CID beyond “I don’t really know anything.  She tried to wake me up, but I don’t know why.”  He could have refused to say anything negative about her, in court and to CID, even observations, under the “spousal incapacity” privilege, since those observations would lead to him saying he didn’t believe her initially.  U.S. v. Brock, 724 F.3d 817 (7th Cir. 2013).
    The rules on privileges apply at all stages of all proceedings, including criminal investigations.  MRE 1101(b).
    JR, take a look at MREs 504 and 511(a).  Also U.S. v. Lea, 248 F.3d 632 (7th Cir. 2001).  You don’t have to be a “party” to the action to invoke spousal communications privilege.  And under Trammel, the testifying spouse can refuse to testify about anything “adverse” to the other spouse.  Would you agree that hubby telling CID and/or the court that he thought his wife was mistaken or lying is “adverse” to his wife?

  30. Alfonso Decimo says:

    Princess Leia – I agree with you, but some of the better-options would require an unrealistic level of sophistication on the part of the husband, the alleged-victim, and/or the investigators. The bull-in-a-china-shop approach by the defense on cross is the best area of MJ practice we can realistically hope to improve.

  31. Jolly Roger says:

    I don’t agree, and that’s my point.  504 only allows the testifying spouse to invoke the privilege to avoid testifying “against” his or her spouse.  I agree with you that the testimony must be “adverse.”  See Martenson in my last comment, which I mis-typed and should have been 779 F.2d 461.  But “adverse” is a term of art as used in the cases.  Lots of testimony could be literally adverse and not be legally adverse.  In Martenson, the testifying spouse’s testimony was going to result in her spouse’s boat being forfeited to the US.  That’s literally adverse, but the court held it was not legally adverse.  Trammel was an easy case on adversity because it was a spouse testifying for the government against the defendant-spouse in a criminal case, and Trammel was about which spouse gets to invoke the privilege, not adversity of the testimony.  Ryan (from my last comment) explicitly holds that this is the only type of testimony that the privilege covers – testimony by one spouse about the criminal conduct of the other.  Even if you discount Ryan, if the property interest in Martenson was not strong enough to be “adverse” and trigger the privilege the vaguely negative nature of the testimony in Martin is not sufficient.  The wife is not even a party, and the only interest you could identify is something like the interest in being believed or seeing Martin go to jail.  He doesn’t get to refuse to testify because of that.  The test is not whether the wife will like what the husband testifies, the test is whether he is testifying “against” her.  He was not.
    None of the other authorities you discussed cut against that conclusion.  Brock held that the defendant had no standing to assert the privilege on his wife’s behalf, and so did not really get into adversity except to say that it must be “in a criminal case,” which supports my theory (and is the explicit holding of Ryan).  Lea is exclusively about marital communications, not spousal incapacity, and so doesn’t help (your citation went to a different case but I found it here:  Trammel, as I said, is an easy case and does not expand adversity outside of criminal cases where the spouse is a party.  MRE 511 is just about waiver.
    I agree with you that the privilege probably applies during investigations, although Hughs doesn’t make that crystal clear.  My only point in discussing Hughs was to show that the privilege is very narrow.  I also agree with you that it’s not too easy to waive the privilege, although I don’t think we can say if the privilege was waived in this case just from reading Zach’s account of the facts (which is all I’ve done).  I also agree with you that (if not waived) the martial communications privilege would have allowed the wife to prevent the husband from answering questions like “What did your wife tell you about the assault?”  I do not agree that the husband could have declined to answer questions like “Do you think your wife was mistaken or lying?” or “How did your wife behave and what did you think of that?” on the basis of spousal incapacity.  Those questions may well call for inadmissible evidence for all the reasons mentioned in the post and comments, but that’s a human lie detector problem not a spousal incapacity problem.