CAAF will hear oral argument in the Army case of United States v. Kohlbek, No. 18-0267/AR (CAAFlog case page), on Tuesday, November 6, 2018, after the oral argument in King. A single granted issue questions whether the general prohibition in Mil. R. Evid. 707 against evidence of polygraph examinations applies to a defense request to introduce into evidence the fact that a confession was preceded by a polygraph:

Whether the military judge erred by misconstruing Mil.R.Evid. 707 and prohibiting Appellant from presenting evidence relevant to Appellant’s post-polygraph statement.

Specialist (E-4) Kohlbek was tried by a general court-martial composed of a military judge alone. He pleaded guilty to three specifications of assault consummated by a battery upon a child under sixteen years old, in violation of Article 128, as lesser included offenses of sexual abuse of a child in violation of Article 120b. The prosecution then proceeded to trial on the greater offenses, resulting in Kohlbek’s conviction of four specifications of sexual abuse of a child. The military judge sentenced Kohlbek to confinement for 15 months, reduction to E-3, and a bad-conduct discharge.

Kohlbek’s convictions related to an encounter with a girl identified by the initials AH. AH was a friend of Kohlbek’s step-daughter and spent a night at Kohlbek’s home. While she was there, Kohlbek over-consumed alcoholic beverages while celebrating his recent graduation from the Army’s Warrior Leader Course. Then, while AH slept, Kohlbek entered the room and sexually touched her. She immediately reported the incident and military police apprehended Kohlbek. A breathlyzer administered later the next morning showed Kohlbek’s blood alcohol concentration as .165 and .163.

Kohlbek did not deny wrongdoing (rather, he pleaded guilty to assaulting the girl), but he did claim no memory of the incident. In turn, Kohlbek’s defense counsel asserted that Kohlbek’s degree of intoxication prevented him from forming the specific intent required for the charged sexual offense. But the defense had a problem: Kohlbek confessed.

Specifically, Kohlbek agreed to be questioned by military investigators and he agreed to take a polygraph examination. A polygraph machine measures physiological responses (like blood pressure, heart rate, and breathing) during questioning, under the theory that such things have something to do with the truthfulness of the responses to the questions. Kohlbak submitted to a polygraph and was (quite predictably) told that he failed. Then, during post-polygraph questioning by law enforcement, Kohlbek said:

Fine. I did it. I will write whatever you want. I’ll write a sworn statement to it. Just let me get out of here.” (JA 86).

Gov’t Div. Br. at 5. His confession followed.

The defense moved to suppress the confession on the basis that it was involuntary because of the coercive nature of the polygraph and the surrounding circumstances. The military judge denied the motion. The defense then:

sought approval to present polygraph evidence to the factfinder to explain why appellant would have given a false confession. (JA 447). The motion in limine asserted appellant’s Sixth Amendment right to present a defense could not be limited by Mil. R. Evid. 707. (JA 447). Defense counsel argued appellant should be allowed to discuss the use of a polygraph, that appellant was told that he failed the polygraph, and that the interrogation was a means or method for a confession. (JA 443).

Gov’t Div. Br. at 7. The military judge denied that too, applying Mil. R. Evid. 707 which contains this broad and strongly-worded prohibition:

Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.

Mil. R. Evid. 707(a). In addition to its strong language, Mil. R. Evid. 707 has a strong pedigree that traces all the way to the Supreme Court.

In United States v. Scheffer, 523 U.S. 303, 312 (1998), the Court approved the rule, concluding that “because certain doubts and uncertainties plague even the best polygraph exams,” the President did not act “arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence.” Scheffer was tried by court-martial for (among other things) wrongful use of methamphetamine. He asserted the defense of innocent ingestion. In support of that defense, Scheffer wanted to introduce the results of a favorable polygraph (where he denied using drugs and was not accused of lying; though at the time of the polygraph he was an informant who had not yet tested positive for the drugs). The military judge prohibited that. CAAF reversed, concluding that Mil. R. Evid. 707 unconstitutionally abridged Scheffer’s right to present a defense. Then, upon petition by the Solicitor General, the Supreme Court reversed CAAF.

Scheffer doesn’t specifically prohibit the defense from introducing the fact of the polygraph examination (as distinguished from the result) as evidence that a confession was false, but it’s a pretty serious impediment because – as a per se rule approved by the Supreme Court – Mil. R. Evid. 707 prohibits any mention of a polygraph during trial. But Kohlbek’s brief asserts that the rule was intended to have a more limited scope – as only “bar[ring] admission of polygraph test results,” App. Br. at 10 – and he points to decisions by the Air Force and Navy-Marine Corps CCAs that he says permit the defense to introduce the fact of a polygraph examination in order to challenge the voluntariness confessions in those services. Specifically, Kohlbek’s brief asserts that:

The Air Force Court of Criminal Appeals has allowed the prosecution, for over thirty years, to admit evidence that polygraph testing occurred. In United States v. Gaines, 20 M.J. 668 (1985), the court held that “when the appellant chose to challenge the voluntariness of his polygraph confession before the court members, the government then correctly perceived that it was essential for the court members to consider all relevant facts surrounding that confession.” Id. at 669.

In 2006, the Air Force Court briefly and broadly stated:

Concerning receipt of the polygraph evidence, which the appellant asserts was in violation of Mil. R. Evid. 707, it is well settled that there is an exception to the general exclusion of polygraph evidence. Where the accused challenges the voluntariness of his admissions to the investigators, military courts have permitted polygraph evidence.

United States v. Kawai, 63 M.J. 591, 596.

(App. Br. at 17-18). Additionally:

The NMCCA, in United States v. Wheeler [66 M.J. 590 (N-M. Ct. Crim. App. 2008)], distinguished between polygraph results and the fact that a polygraph had been administered. Unlike the AFCCA, the court in Wheeler did not resolve the issue by describing Mi. R. Evid. 707 as applying only to polygraph results, but instead found that its application to the fact that testing had been conducted would violate the right of the accused to present his defense: “the military judge erred in denying the appellant’s motion in limine because Mil. R. Evid. 707 is unconstitutional as applied to the narrow circumstances presented in this case.” Id. at 593.

(App. Br. at 19).

The Army Government Appellate Division’s response dismisses the Air Force CCA’s discussion of polygraph evidence in Kawai as anomalous, observing that “despite the Kawai court’s assertion that admission of polygraph evidence in this context is ‘well settled,’ not a single court—other than Wheeler—has cited it since.” Gov’t Div. Br. at 17. As for Wheeler, the Army CCA’s decision in this case distinguished Wheeler on its facts, and the Government Division’s brief echoes that analysis:

The [Wheeler] Court determined that the military judge abused his discretion because his ruling unconstitutionally applied Mil. R. Evid. 707 “to the narrow circumstances presented in [the appellant’s] case.” Id. at 593. Specifically, the court determined that the military judge’s ruling precluded the appellant’s ability “to testify himself about all relevant factual matters related to the polygraphs that led to his confession.” Id. at 595. Despite being a published case for over ten years, Wheeler has not been cited by a single military court except by the Army Court in its opinion on this case. The Army Court distinguished the facts of appellant’s case from the appellant in Wheeler and made no conclusion as to the continued soundness of Wheeler’s holding. (JA 6–8).

Gov’t Div. Br. at 16. And so the Government Division concludes that the military judge’s ruling prohibiting the defense from mentioning the fact of the polygraph examination during trial was a “straightforward application of Mil. R. Evid. 707 as a per se rule of exclusion,” and was “the most objectively reasonable application of the rule as reinforced by the Supreme Court in Scheffer.” Gov’t Div. Br. at 19-20.

That’s a straightforward argument focused on the text of the rule and the reach of the Supreme Court’s decision approving it. But it’s not the only argument the Government Division makes.

The military judge’s ruling excluded evidence, and a ruling excluding evidence is ordinarily reviewed on appeal for an abuse of discretion. That is a deferential standard of review. “An abuse of discretion occurs when we determine that the military judge’s findings of fact are clearly erroneous or that he misapprehended the law.” United States v. Richards, 76 M.J. 365, 369 (C.A.A.F. 2017) (quoting United States v. Clayton, 68 M.J. 419, 423 (C.A.A.F. 2010)). Similarly, “an abuse of discretion arises if the CCA’s factual findings are clearly erroneous or if its decision is based on a misapplication of the law.” United States v. Akbar, 74 M.J. 364, 400 (C.A.A.F. 2015) (citing United States v. Taylor, 47 M.J. 322, 325 (C.A.A.F. 1997)). Accordingly, “we review findings of fact under the clearly erroneous standard and conclusions of law de novo.” United States v. Cote, 72 M.J. 41, 44 (C.A.A.F. 2013). And “if it’s a question of law, if the [lower] court got the law wrong, that is ipso facto an abuse of discretion because [a court] has no discretion to misapply the law.” Tr. of Oral Arg. at 6, McLane Co. v. EEOC, 137 S. Ct. 1159 (2017) (statement by J. Ginsburg) (link).

But the Government Division’s brief suggests something more:

This court reviews “a military judge’s decision to admit or exclude evidence for abuse of discretion.” United States v. Bess, 75 M.J. 70, 73 (C.A.A.F. 2016) (citing United States v. Carter, 74 M.J. 204, 206 (C.A.A.F. 2015)). “This standard requires more than just [this court’s] disagreement with the military judge’s decision.” Id. (citing United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015)). “Instead, an abuse of discretion occurs when [the military judge’s] findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.” Id. (quoting Stellato, 74 M.J. at 480 (alterations in original)).

Gov’t Div. Br. at 10. Put differently, the Government Division argues that Kohlbek’s convictions for sexual abuse of a child should be affirmed because “the military judge’s discussion and application of the law to appellant’s case was not outside of the range of choices reasonably arising from the applicable facts and law.” Gov’t Div. Br. at 18 (emphasis added). Not correct; merely not outside the range of choices reasonably arising. You know . . . good enough for government work.

Case Links:
ACCA decision
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

7 Responses to “Argument Preview: Interpreting Mil. R. Evid. 707 (and its broad prohibition of polygraph evidence), in United States v. Kohlbelk”

  1. Bad Company says:

    Really? I can’t get to ACCA’s web site to get the opinion…From experience having entered polygraph evidence in a false confession case, this finding should be set aside.

  2. Shawn says:

    In Heinlein’s book, Stranger in a Strange Land, Anne is trained as a Fair Witness whose testimony can be accepted as fact.  When asked, “What color is that house on the hill?” She replies, “It appears to be painted white on this side.”

  3. Zachary D Spilman says:

    CCA opinion on CAAFlog: Link.

  4. Bionic Barry Dylan says:

    So in this case, a male accused has an undisputed .163 or higher BAC – double the legal limit – and yet is still convicted of sex offenses requiring proof of specific intent. 
    I’ve lost track of the number of cases I’ve defended, read, or discussed with colleagues where a female “victim” with no evidence of BAC at all, sometimes with undisputed evidence that she was not substantially impaired, yet was found incapable of consenting.

  5. stewie says:

    .163 isn’t even high enough to reach blackout state (much less incapacitation) in most situations as that usually requires something around .2 in most people.
    So, I’m on Team Archer in perhaps questioning your assertion Barry that you’ve defended cases where a similar BAC led to a woman being found incapable of consenting.  I would feel pretty confident as a defense attorney if the BAC for my client’s accuser was that low unless I had a rogue panel (which again, always a possibility).
    P.S. Katya never loved you.

  6. Bionic Barry Dylan says:

    Stewie – I did not express myself well.  I should have said alleged to be incapable.  Not found to be incapable.  
    However, I did not say that there was evidence of an alleged victim’s BAC…I said the opposite…cases where there was no evidence of the alleged victim’s BAC and undisputed evidence that the alleged victim was not substantially impaired.

  7. Bad Company says:

    Thanks for the ACCA opinion Zach. This’ll be interesting to see the CAAF opinion; maybe there’s more in the transcript from defense about how the polygraph “result” caused a false confession? Anyone know? I’d think in a judge alone trial there’d be a little more leeway, but then again, it’s not hard to get a good curative instruction for a panel.