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).
• 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