Argument Preview: CAAF returns to troublesome lay opinion, in United States v. Lopez, No. 16-0487/AR
CAAF will hear oral argument in the Army case of United States v. Lopez, No. 16-0487/AR (CAAFlog case page), on Tuesday, January 10, 2017, after the argument in Davis. The court specified a single issue for review that questions whether it was error for certain witnesses to testify about their opinion of the appellant’s guilt:
Whether the military judge erred by admitting the testimony of appellant’s wife, Mrs. CL, who testified that appellant’s apology to his stepson meant that appellant was “loosely admitting guilt” to criminal conduct, and by also admitting the testimony of Ms. NM, who testified that appellant “had probably raped” his wife because Mrs. CL had recently researched “spousal rape” on the internet.
A general court-martial composed of officer members convicted Sergeant (E-5) Lopez, contrary to his pleas of not guilty, of rape of his wife and indecent liberties with a child for exposing his wife’s minor son to pornographic material, both in violation of Article 120 (2006). Lopez was sentenced to confinement for five years, total forfeitures, reduction to E-1, and a dishonorable discharge. The Army CCA summarily affirmed the findings and sentence.
The case is something of a sequel to last term’s decision in United States v. Martin, 75 M.J. 321 (C.A.A.F. Jun. 17, 2016) (CAAFlog case page) – one of our honorable mentions for the Top Ten Military Justice Stories of 2016 – in which a deeply-divided CAAF narrowly concluded that the defense counsel invited the erroneous admission of human lie detector testimony. In Lopez, however, invited error is unlikely (the defense objected to the questionable testimony of CL).
Lopez’s indecent liberties conviction was based on the allegation of JM – the teenage son of CL from a prior marriage – that Lopez had exposed him to pornography in 2008 (when JM was ten years old). This allegation was made after CL discovered a teenage JM looking at pornography. JM testified at trial that Lopez had introduced him to pornography and they had watched pornography together “maybe forty or fifty, maybe at most sixty time over the course I lived with him.” App. Br. at 5. But the prosecution also called CL to testify about a telephone conversation she had with Lopez after she discovered JM looking at pornography:
The only other testimony the government offered on Specification 3 of Charge I came from CL. After discovering that JM had been watching pornography, she confronted him and telephoned SGT Lopez. (JA 50, 131). Responding to trial counsel’s questions, CL further testified that:
I put [JM] on the phone, on speaker. We were all there, and it took several minutes of [JM] insisting, recounting events of what had happened and saying you remember you did this with me, and so finally Sergeant Lopez started calming down and acting like he was going towards admission.
Q. What does that mean to you, acting?
A. Well, in the sense where it kind of ended with him saying [JM], if I did anything wrong, then I-you know, I apologize, and I knew from living with him, instead of coming out and saying yes, I did this and I was wrong-
DC: Human lie detector testimony.
MJ: I’m going to overrule the objection based on the witness’s interactions with the accused as husband and wife.
Q. So ma’am, you said that Sergeant Lopez, the accused, said if I did anything-He was talking to [JM]?
Q. If I did anything to you, [JM], then I’m sorry. Is that what you–
Q. You testified before the objection.
Q. And to you after ten years of marriage, what did that mean?
A. That meant that he was loosely admitting guilt without coming out and saying it, because he said things like that to me before.
Q. The accused has said things like that to you before?
A. Yes, so I knew what that meant, and that was the thing I needed to know, because I really was trying to feel out who was telling the truth here. I wanted to get to the bottom of it and resolve this with my son.
App. Br. at 6-7 (quoting record).
The rape conviction involved CL’s allegation that Lopez forced himself on her one night during their marriage. CL’s daughter, NM, who was in a nearby bedroom, was called by the prosecution to testify that she heard her mother say “get off of me” that night, and that the next morning NM:
got on the computer … I saw … that she [CL] had been looking up spousal rape sites, like how to deal with it, who to go to, and so I gathered that Mario [SGT Lopez] had probably raped her by the evidence that I found that day.
Q. Do you remember anything specific about the websites you saw in the browsing history?
A. Nothing real specific, it was just how to deal with it, and that’s about it.
Q. What did you think when you saw that and you thought what may have happened?
A. I just thought about what my brother qad asked me, and just kind of put two and two together. I kind of hoped that I was, you know, over thinking it, but I didn’t think I was, because there’s no other reason for those websites to be up there.
App. Br. at 9-10 (quoting record).
Lopez’s brief asserts that this testimony by CL and NM amounted to “their personal opinions that SGT Lopez was guilty,” App. Br. at 12, and that:
the government’s questioning turned these witnesses into “thirteenth jurors” who usurped the factfinding role of the members. The convictions in this case hung on the credibility of the complaining witnesses, and the repeated admission of human lie detector testimony and pseudo-verdicts fatally compromised the court-martial.
App. Br. at 12.
The Government’s brief takes the unexpected route of analogizing this case to Martin:
NM’s testimony is similar to that of the husband of the victim in Martin. Martin, 75 M.J. 321. . . . Just as the husband [in Martin] used his common sense to put two and two together from his observations of the victim after she was assaulted by SGT Martin, here NM used the context clues that she observed to come to a conclusion. NM then used that conclusion to encourage her mother to reveal what had happened. As in Martin, the statement by NM is not impermissible human lie detector testimony or the functional equivalent.
Gov’t Br. at 13. Martin was a 3-2 decision with an unusual lineup: Senior Judge Cox was in the majority because Judge Sparks had not yet joined the court when the case was argued. Moreover, Judge Stucky’s dissent was strongly written. Martin also involved invited error; a factor absent from this case. Relying on Martin is an awfully risky strategy for the Government.
The Government’s brief also makes this puzzling assertion:
CL’ s testimony was not human lie detector testimony or the functional equivalent because CL was merely relaying an admission by SGT Lopez.
Gov’t Br. at 17. CL’s testimony included her opinion that Lopez’s statement “was loosely admitting guilt without coming out and saying it.” While Lopez’s statement to CL may have been admissible (notwithstanding its potential to confuse, mislead, or inflame the members), CL’s interpretation of the meaning of the statement is a different matter.
A reply brief from Lopez focuses on the question of prejudice:
The government nevertheless invites this Court to adopt a new standard for prejudice, a more onerous one that would require CL’s inadmissible opinions to have been “dispositive,” “the central issue,” or “a focal point of the case” in order to merit relief. (Gov. Br. at 14, 20). That suggestion misses the mark; the touchstone of this Court’s inquiry is whether CL’s testimony could have had an undue influence on the factfinder, not whether it was the only influence on the factfinder. Mullins, 69 M.J. at 117. Where an improper opinion “involves a central issue,” it is certainly poised to cause prejudice, but nothing requires the testimony itself to be the central issue. United States v. Kasper, 58 M.J. 314, 320 (C.A.A.F. 2003). In this case, CL’s testimony attacked SGT Lopez’s credibility, aided JM’s credibility, and aimed directly at the ultimate issue of guilt or innocence-it went to the heart of the trial, and this Court has good reason to believe it unduly influenced the members.
Reply. Br. at 4.
It seems highly likely that CAAF will decide this case on the question of prejudice, either by assuming that admission of the testimony was error but was harmless, or by rejecting the Government’s strained arguments that it was not error. Article 59(a) requires an error to “materially prejudice the substantial rights of the accused” in order for it to result in reversal of a court-martial decision; a standard that is functionally identical to the federal harmless error rule, Fed. R. Crim. P. 52(a). Accordingly, I anticipate oral argument will focus on exactly how the court should test this case for prejudice.