CAAF decided the Marine Corps of United States v. Martin, 75 M.J. 321, No. 15-0754/MC (CAAFlog case page) (link to slip op.), on Friday, June 17, 2016. With a majority of the court finding that defense counsel invited the erroneous admission of human lie detector testimony, CAAF affirms the appellant’s conviction of wrongful sexual contact and the decision of the Navy-Marine Corps CCA. However, two judges dissent with a strongly-worded opinion.

Judge Ohlson writes for the court, joined by Judge Ryan and Senior Judge Cox. Judge Stucky dissents, joined by Chief Judge Erdmann.

Sergeant Martin 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 conviction was based on Martin’s alleged sexual touching of a sleeping female subordinate (identified by the initials CRI) who was also the wife of another Marine. At trial Martin’s defense focused on attacking the credibility of the alleged victim – the chief prosecution witness – asserting that her allegation was fabricated. But the prosecution also called the alleged victim’s husband to testify, as he was sleeping next to his wife at the time of the alleged assault, and the husband testified on direct examination about how his wife’s demeanor changed after the night in question. Then, both the prosecution and the defense asked the husband to opine about the truth of his wife’s allegation against Martin, and both sides argued the husband’s opinion about the truthfulness of his wife’s allegation in closing argument.

The Navy-Marine Corps CCA found that the husband’s opinion constituted improper human lie detector testimony, which is “an opinion as to whether [a] person was truthful in making a specific statement regarding a fact at issue in the case.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (CAAFlog case page) (citation omitted). However, the CCA found that the admission of that improper testimony was harmless and affirmed the conviction. CAAF then granted review of a specified issue questioning the CCA’s harmlessness determination:

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.

The Judge Advocate General of the Navy then certified a second issue challenging the underlying finding of error on the basis that it was invited by the defense:

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?

Writing for the majority, Judge Ohlson finds that the error was invited by the defense in cross-examination after the prosecution called the husband for a proper purpose, answering the certified issue in the affirmative and avoiding the granted issue. Writing for the dissenters, however, Judge Stucky asserts that “the scales of justice were tipped by grossly improper testimony from the victim’s husband explaining why he believed that his wife was ‘telling the truth.'” Diss. op. at 1.

Judge Ohlson’s majority opinion relies on three legal principles. The first is human lie detector testimony and its functional equivalent:

Human lie detector evidence is elicited when a witness provides an opinion as to whether a person was truthful in making a specific statement regarding a fact at issue in the case. There is no litmus test for determining whether a witness has offered human lie detector evidence. If a witness does not expressly state that he believes a person is truthful, we examine the testimony to determine if it is the functional equivalent of human lie detector testimony. Testimony is the functional equivalent of human lie detector testimony when it invades the unique province of the court members to determine the credibility of witnesses, and the substance of the testimony leads the members to infer that the witness believes the victim is truthful or deceitful with respect to an issue at trial. Human lie detector evidence is inadmissible at a court-martial because it is a fundamental premise of our criminal trial system that the panel is the lie detector and determines the weight and credibility of witness testimony.

Slip op. at 5-6 (marks and citations omitted). The second is the invited error doctrine:

The invited error doctrine prevents a party from creating error and then taking advantage of a situation of his own making on appeal. As a result, invited error does not provide a basis for relief.

Slip op. at 6 (marks and citations omitted). The third is the admissibility of testimony about how a person’s behavior changes after an alleged assault:

Cpl AI [the husband] testified about how his wife’s behavior had changed since the night of the incident. We conclude that this constituted permissible lay testimony.

Slip op. at 9. The behavior testimony at issue was first elicited by the prosecution on direct examination, in this exchange:

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. You mentioned that she’s been a little different. How has your wife’s behavior been different after this assault occurred?

A. She’s … always been, like, jumpy if you startled her, like anybody would be. But I remember times, like probably the biggest time — like I remember is she was … cooking something in the kitchen. Like the stove was on, I came up behind her, I put my arms around and, like she hit … something off the stove just because she freaked out. And probably another, like, main thing I think of is if — obviously, you can’t hear very well in the shower. If I ever, like, walked into the bathroom while she was showering — she would, like, not scream but like get jumpy just because … she knows it’s me. I would assume she knows it’s me who is walking in to the room but it just freaks her out.

Slip op. at 7-8. Martin asserted at CAAF that this exchange was the first instance of human lie detector testimony, placing the blame for subsequent improper opinion on the prosecution. The subsequent improper testimony began with this exchange with defense counsel on cross-examination:

Q. [A]t no point after [she told you about the assault,] … you never went and reported it to anyone, did you?

A. I honestly … [it’s] not like I didn’t believe her, sir. But it, kind of, it didn’t make too much sense to me….

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 … it happened[,] maybe [it] didn’t happen?

A. Yes, sir.

Slip op. at 4-5 (marks in original) (emphasis added). After this, on re-direct examination, the prosecution directly asked the husband if he believed his wife’s allegation, and the Government conceded at CAAF that such a question was improper but argued that it was invited by the defense. The Government did not, however, concede any impropriety in the prosecution’s initial questioning of the husband about his wife’s behavior.

Parsing these exchanges, Judge Ohlson finds that “the Government had a proper purpose in calling [the husband] to testify—he was a fact witness who attended Appellant’s party and could provide the panel members with significant details about the events leading up to the sexual contact, and he was sleeping in the same bed right next to CI when the sexual contact occurred.” Slip op. at 7. Further, the majority finds that the husband’s direct examination testimony about how his wife’s behavior changed was admissible as lay opinion under Mil. R. Evid. 701. Slip op. at 9. Judge Ohlson does not, however, explain what such lay opinion was admissible to prove, and that creates an opening for the dissenters.

Judge Stucky’s dissent decries “grossly improper testimony from the victim’s husband,” and accuses the majority of failing to “realistically assess the relevant testimony.” Diss. op. at 1. Addressing the husband’s testimony about his wife’s behavorial changes – that the majority found was admissible lay opinion – Judge Stucky attacks the majority’s conclusion as:

fail[ing] to recognize that all of this testimony went to explain why Cpl AI believed his wife’s story. The majority does not acknowledge that the introduction to this testimony was Cpl AI explaining his original doubts, followed by an extensive explanation for why he now concurred in his wife’s account.

According to the majority:

Testimony is the functional equivalent of human lie detector testimony when it invades the unique province of the court members to determine the credibility of witnesses, and the substance of the testimony leads the members to infer that the witness believes [another witness] is truthful or deceitful with respect to an issue at trial.

Id. at __ (6) (citing United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010); United States v. Brooks, 64 M.J. 325, 329 (C.A.A.F. 2007)). By that very test, Cpl AI’s direct examination testimony was inadmissible. Although Cpl AI did not make an explicit statement concerning his wife’s credibility during direct examination, by explaining that his initial concerns with the truthfulness of his wife’s account had been alleviated, Cpl AI implied that his wife was, in fact, “truthful in making a specific statement regarding a fact at issue in the case.” Knapp, 73 M.J. at 36 (citation omitted) (internal quotation marks omitted).

Diss. op. at 2-3. Judge Stucky’s dissent concludes with this powerful summation:

As Sgt Martin’s fate hung on the testimony of an intoxicated victim and a witness with a track record of untruthfulness, Cpl AI’s stamp of approval became, of necessity, a cornerstone of the Government’s case. His detailed, emotional testimony explained how his home life convinced him that CRI was telling the truth. This testimony could not but affect the panel’s evaluation of CRI’s credibility, and thus the Government’s case. Appellant has demonstrated “a reasonable probability that the error affected the outcome of the trial.” Marcus, 560 U.S. at 262.

Diss. op. at 6.

Yet because the majority finds that the testimony elicited by the prosecution on direct examination was not improper human lie detector testimony, the majority concludes that it was the defense that “first elicited human lie detector evidence on cross-examination, [and therefore] the invited error doctrine precludes Appellant from complaining about the Government’s elicitation of this type of evidence on redirect.” Slip op. at 10-11.

In my argument preview of this case, I asserted that the husband’s direct examination testimony about his wife’s changed behavior was inadmissible because it lacked probative value. A debate followed in the comments section that CAAF’s decision in this case does little to resolve. While the majority finds that the husband’s observations were lay opinion (and they certainly were), the dissenters use strong language to highlight that the opinion actually conveyed was that the witness believed that his wife’s allegation was true (making him a human lie detector). However, I also noted in my preview that the defense’s eager (but improper) use of the husband’s opinion gave CAAF a strong reason to affirm the conviction, and that is exactly what the majority does.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: A deeply divided court finds invited error in the admission of human lie detector testimony in United States v. Martin, 15-0754/MC”

  1. Charlie Gittins says:

    The JAG did not certify this issue in the appellate court below.  How is it they get to go direct to CAAF with an issue not raised or first considered in the NMCCA?  If an appellant raised an issue first at CAAF that had not been considered in the NMCCA, the court would normally either remand to NCMCCA for consideration of that error in the first instance or consider it waived. 

  2. Zachary D Spilman says:

    I’m not aware of any rule that prohibits either side from raising an issue for the first time at CAAF, Charlie Gittins. The law of the case doctrine applies when a party doesn’t raise an issue. Moreover, there’s no certification at a CCA.

    It’s also not at all clear that the Government didn’t assert the invited error doctrine at the CCA (in it’s response to the appellant’s assignment of errors), as the CCA’s opinion considered the doctrine in a footnote:

    We are aware that the inadmissible opinion testimony originated with the defense during cross-examination. We are also aware of the “invited response” or “invited reply” doctrine, which permits the prosecution to offer comment or testimony as a fair response to claims made by the defense. See United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). See also United States v. Lewis, 69 M.J. 379, 384 (C.A.A.F. 2011) (“limitation on comments cannot be used by the defense as both a shield and a sword.”) (citations omitted). However, this doctrine does not obviate the error.

    United States v. Martin, No. 201400315, slip op. at 8 n.10 (N.M. Ct. Crim. App. Jun. 18, 2015) (link to slip op.).

    Finally, it’s not that unusual for CAAF to pierce the intermediate level of review and consider the trial-stage issue directly. See, e.g., United States v. Baker, 70 M.J. 283, 288 (C.A.A.F. 2011); United States v. Keefauver, 74 M.J. 230, __, slip op. at 8 (C.A.A.F. 2015) (CAAFlog case page).

  3. Wahoowa says:

    There’s also the standard principle of appellate law that an appellee may argue for affirmance based on any rationale at all, regardless of whether it was the lower court’s stated rationale. E.g., LeTulle v. Schofield, 308 U.S. 415, 421 (1940).
    Also, I seem to recall some old CMA case that said something along the line that while specifying certain issues in a TJAG certification can be helpful, it is also somewhat superfluous because, under the UCMJ, it is the certification of a case that is important and the CMA/CAAF is free to ignore the certified “issue” entirely, or come up with it’s own issues in reviewing the case.

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

    Testifying, “I didn’t believe her initially but now I do” is human lie detector testimony, which normally wouldn’t be admissible, but for defense opening the door and arguing, “her own hubby doesn’t believe her, so neither should you.”  But testifying about her changed demeanor and behavior, based on hubby’s own observations and knowledge of what is “normal” for her, that is perfectly fine.  Changes in behavior and demeanor can be substantive evidence that the alleged sexual assault actually happened.  If the Government wants to present a stronger case, maybe it should present expert testimony on this issue.