CAAF decided the Army case of United States v. Lopez, 76 M.J. 151, No. 16-0487/AR (CAAFlog case page) (link to slip op.), on Monday March 20, 2017. The court finds error and prejudice in the testimony of a witness that gave her opinion of the appellant’s guilt of the offense of indecent liberties with a child, and it reverses that conviction. But it finds the similar testimony of a second witness, whose testimony supported a conviction of rape, to be harmless.

Judge Stucky writes for the court, joined by all but Judge Sparks who concurs in part but dissents from the court’s reversal of the indecent liberties conviction.

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 of indecent liberties with a child by 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. CAAF then granted review, specifying the following issue:

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.

Human lie detector testimony occurs when a witness gives “an opinion as to whether the [other] 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). In this case, Judge Stucky’s opinion considers whether human lie detector testimony was improperly admitted in two parts: the first reviewing the testimony of NM (CL’s daughter) to which there was no defense objection at trial, and the second reviewing the testimony of CL to which the defense counsel did object.

Considering the testimony of NM (that was admitted as proof that Lopez raped CL), Judge Stucky explains that:

Appellant argues that NM’s statement “I gathered that [Appellant] had probably raped her” was erroneously admitted because it was human lie detector testimony, impermissible lay witness opinion, and an opinion regarding the ultimate issue of guilt or innocence. However, we need not reach these questions. Appellant never objected to this testimony, and when “an appellant has forfeited a right by failing to raise it at trial, we review for plain error.” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). Appellant thus “has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights.” . . . Here, Appellant cannot establish material prejudice.

Slip op. at 4 (citations omitted). This conclusion is based on the relative strength of the evidence that Lopez raped CL, including:

(a) CL’s direct testimony to the event,

(b) physical evidence, including marks of struggle on CL’s right shoulder, back, and inner thigh, and Appellant’s DNA inside of CL,

(c) Appellant’s two stepchildren testifying to “sad noises” and “get off me” coming from the bedroom,

(d) CL’s immediate reporting of the assault to a chaplain, a victim advocate, and a medical examiner, and

(e) CL’s searches for “spousal rape” on the Internet the next day. All of this evidence was properly admitted for the panel’s consideration.

Slip op. at 4-5 (paragraphing added). And while it seems that the 4th and 5th of these – CL’s hearsay complaints and her post-incident internet activity – may well have been objectionable, Judge Stucky’s opinion does not consider these possible objections. Rather, he observes that the defense case “was relatively weak, as defense counsel conceded that sex had occurred, but argued that CL had fabricated the rape allegation and that the evidence supporting it did not stack up.” Slip op. at 5. Accordingly, CAAF finds any error to be harmless and affirms the rape conviction.

Considering the testimony of CL (that was admitted as proof that Lopez took indecent liberties with JM), Judge Stucky begins by reviewing the defense objection. Specifically, CL’s direct examination included the following exchange:

[CL]: …[I]t 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?

[CL]: 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: Objection.

MJ: Basis?

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: And to you after ten years of marriage, what did that mean?

[CL]: 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 had said things like that to you before?

[CL]: 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.

Slip op. at 6 (quoting record) (marks and omission in original). Judge Stucky concludes that this exchange involved human lie detector testimony because:

By explaining her truth-seeking aim in interpreting Appellant’s apology as an admission, CL in effect testified that JM was “telling the truth here,” and that Appellant was truthful in “loosely admitting guilt” but not in denying JM’s allegations. Her opinion bolstered JM’s credibility, and questioned Appellant’s claims of innocence. This violates the core prohibition on human lie detector testimony.

Slip op. at 7. He further concludes that this prejudiced Lopez because:

If CL’s inadmissible interpretation is removed, the Government’s case wholly consisted of (1) JM’s testimony and (2) the admissible portion of CL’s testimony, which recounted Appellant denying JM’s claims and apologizing “if [he] did anything wrong.” Although the defense case merely cast doubt on JM’s account, it is the explosive nature of the error itself that ultimately decides the question. In the panel’s mind, CL’s inadmissible testimony may well have transformed Appellant’s noncommittal apology into a material admission and a validation of JM’s story, as interpreted by JM’s mother, Appellant’s wife of ten years. Given the highly persuasive effect that this type of lie detector testimony would likely have on a panel, we cannot conclude that the error was harmless.

Slip op. at 8-9. Accordingly, the conviction of indecent liberties is reversed.

Judge Sparks agrees that CL’s testimony was improper, but he dissents from the finding of prejudice. He finds that CL’s improper testimony “lacked any real quality, that the Government’s case was strong enough, and the defense case was less so,” and he concludes that “given the strength of the Government’s case and what little CL’s testimony added, CL’s improperly admitted testimony could not have prejudiced Appellant’s case.” Diss. op. at 1.

In addition to reversing Lopez’s conviction of indecent liberties, CAAF also sets aside the sentence and remands the case with a rehearing authorized.

Case Links:
ACCA opinion (summary disposition)
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: Some prejudice (and some harmlessness) from human lie detector testimony in United States v. Lopez, No. 16-0487/AR”

  1. RetJag1066 says:

    Zack
    Not meaning to post on this matter something that belongs in the scholarship section but there is a book titled “To raise and Discipline an Army:  Major General Enoch Crowder, the Judge Advocate General’s Office and the Realignment of Civil and Military Relations in WW1” by the Illinoi Press that just came out.  Kastenberg, the former AF judge who found that the former TJAG committed misconduct wrote it.  He is a professor now

  2. Bill Cassara says:

    So after finding that TJAG committed misconduct his career ended huh? Who’da thunk it?

  3. RetJag1066 says:

    No issues with what Bill says above here, other than the guy retired and nit thrown out, but shouldn’t this be posted in scholarship? 

  4. Isaac Kennen says:

    RetJag1066,
    Thanks for the tip!  I’ll give Professor Kastenburg’s book a read.