CAAF will hear oral argument in the Army case of United States v. Hendrix, No. 16-0731/AR (CAAFlog case page), on Tuesday, March 14, 2017, after the argument in Reese. The court will hear oral argument on two issues challenging admission of a voice lineup (three other issues raised Ortiz issues):
I. Whether the military judge abused his discretion when he denied a defense motion to suppress related to the identification of the appellant during a voice lineup.
II. Whether the military judge abused his discretion in denying appellant’s motion to compel an expert consultant, EP, in the field of audio forensic science and voice identification.
Specialist (E-4) Hendrix was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of sexual abuse of a child in violation of Article 120b. He was sentenced to confinement for 30 months, reduction to E-1, total forfeitures, and a dishonorable discharge.
The charge involved an allegation by a ten year old girl that “a tall man came into her room, pulled down her pants and underwear, and touched her . . . [she] also remembered the man saying, ‘Is your sister asleep’ and ‘Promise me you won’t tell anybody.'” App. Br. at 5 (citing record). Hendrix was a friend of the family and was charged. An Article 32 pretrial investigation, however, found no reasonable grounds to believe that Hendrix committed the offense in part because “CID never did a voice lineup to confirm whether [the child] could identify [Hendrix’s] voice.” App. Br. at 5 (quoting record). The prosecution then decided to conduct a voice lineup. But the process they used was less than ideal.
A voice lineup is an out-of-court identification of a voice. A series of recorded samples of speech – including one from the person who is suspected of being the original speaker – are played for the witness, who tries to identify the voice they heard before. “The legal principle[s] employed for eyewitness lineups are equally applicable to cases of voice identification.” United States v. Chandler, 17 M.J. 678, 681 (ACMR 1983), pet. denied, 18 M.J. 132 (C.M.A.1984). Those principles are largely codified in Military Rule of Evidence 321, which states in part that:
A lineup or other identification process is unreliable, and therefore unlawful, if the lineup or other identification process is so suggestive as to create a substantial likelihood of misidentification.
Mil. R. Evid. 321(c)(2) (2016).
Hendrix objected to the admission of the voice lineup at trial, arguing that it was the product of a flawed process. Some of his objections were that the agent who conducted the lineup had no experience doing so and that the investigative office had no procedures for a voice lineup. App. Br. at 9. The agent also “made no effort to screen the individuals” for voices similar to Hendrix (increasing the possibility that his voice would unfairly stand out). App. Br. at 9. The defense also presented evidence that the alleged victim’s claims were that the perpetrator only whispered, however the voice lineup involved normal speaking voices. A defense expert witness – the same expert who is the subject of the other issue to be argued – also testified that the voice identification process used was unreliable.
The military judge denied the defense motion to suppress evidence of the voice lineup, and also denied a motion to compel funding for the expert, with a one-word ruling that made no findings of fact and provided no analysis. At trial the prosecution elicited testimony about the voice lineup and referenced it in opening statement and closing arguments.
Hendrix’s brief begins by highlighting the failure of the military judge to issue a comprehensive ruling on these issues:
Because the military judge did not issue findings of fact and conclusions of law (based on a clearly erroneous assertion that the government did not admit evidence of the voice lineup), his ruling should receive minimal deference from this Court. Flesher, 73 M.J. at 312.
App. Br. at 21. The brief then focuses on the facts of the voice lineup to argue that it was improper.
For the denial of expert assistance, Hendrix’s brief asserts that:
Without the assistance of an expert, the defense was left unable to adequately cross-examine SA Hughes and Ms. JNK on their participation in the voice lineup. The defense was also left without expert assistance and testimony that could have greatly—if not completely—diminished the probative value of the voice lineup in the eyes of the panel. This was the exact fear of the defense counsel during the motions hearing, when he explained “if this court denies the motion to suppress that lineup, the government has created a huge red herring that the defense just simply has to answer . . . Mr. [EP] is the best person in that position to be able to do that.” (JA 76). Essentially, in addition to denying the defense motion to suppress the voice lineup, the military judge also denied their ability to properly attack it.
App. Br. at 44.
The Army Appellate Government Division’s brief does not concede that the voice lineup was improper, however it also argues that Hendrix wasn’t prejudiced because the alleged victim identified him separately from the lineup:
Even if this court finds the lineup was inadmissible, the error is harmless. . . . Here, the government’s case was strong because multiple witnesses testified that the only three males in the house on the night of the incident were SPC PK, SPC Wiegand, and appellant. Miss JK provided sufficient detail to demonstrate that she knew it was appellant who assaulted her.
Div. Br. at 16. The Division makes a similar argument regarding expert assistance:
Assuming arguendo that the military judge abused his discretion [in denying the motion to compel expert assistance], appellant cannot establish prejudice. The defense adequately attacked the reliability of the voice identification through cross-examination. The voice lineup was not central to the government’s case and did not contribute to the conviction because Miss JK identified appellant as her assailant the day after the incident. In addition, the defense theory was that Miss JK made it all up to prevent further abuse from her father. Therefore, because appellant has failed to establish prejudice, his requested relief should be denied.
Div. Br. at 20-21.
In a reply brief Hendrix accuses the Division of hypocrisy:
Most strikingly, the government has drastically altered its position related to the materiality and quality of the voice lineup. In fact, the government now claims “the quality of the evidence” is “low” and even declares the voice lineup identification to be “immaterial.” (Gov’t Br. 17). Appellant has two responses. First, such a position remains in direct conflict with the government’s position at trial. In his written motion, the trial counsel said the voice lineup was “crucial evidence” (JA 308), and he later argued “this evidence is important, sir. It’s important that the victim identified the accused and excluded this other man very confidently several times. She nailed it, sir. She nailed the lineup and that is important evidence at trial.” (JA 66) (emphasis added).
Then, during trial, the government thought this “immaterial evidence” was important enough to incorporate into each stage of the court-martial: opening statement, case-in-chief, closing argument, and rebuttal argument. (JA 89, 118–21, 158–59, 205–17, 247, 272–73). Notably, during his opening statement, the trial counsel even told the panel members “the last important fact that you need to know is that about nine months after the molestation [JNK] still remembers it and she still remembers the voice of the person who touched her, CID ran a voice line up. [JNK] nailed it.” (JA 89) (emphasis added).
There is no difference in the quality or materiality of the voice lineup between the court-martial and this appeal. It remains the exact same evidence. However, on appeal, the government is now labeling as “immaterial” the same lineup it described as “crucial” and “important” during trial. Plain and simple, the government cannot attempt to preserve a conviction by downplaying the exact same evidence it argued was “important” when seeking a conviction.
App. Br. at 7-8 (marks and emphases in original).
Insofar as the Division relies on arguments that any error was harmless, it will be interesting to see whether CAAF views the significance of the evidence from the prosecution’s arguments at trial, the Division’s argument on appeal, or some other perspective.