Opinion Analysis: The Mil. R. Evid. 707 prohibition of evidence of “any reference to . . . taking of a polygraph” isn’t actually so broad, in United States v. Kohlbek
CAAF decided the Army case of United States v. Kohlbek, __ M.J. __, No. 18-0267/AR (CAAFlog case page) (link to slip op.), on Monday, February 25, 2019. Reviewing the seemingly-blanket prohibition in Mil. R. Evid. 707 against admitting evidence of polygraph examinations, CAAF concludes that the prohibition is not so broad. In this case, however, the military judge’s ruling prohibiting the defense from introducing evidence that a confession was preceded by a polygraph is harmless error because of the strength of the other evidence of guilt.
Judge Ryan writes for a unanimous court.
CAAF granted review of one issue:
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 relate to an encounter with a girl identified by the initials AH. AH was a friend of Kohlbek’s step-daughter and she spent a night at Kohlbek’s home. While she was there, Kohlbek got drunk, entered the room where AH was sleeping, and sexually touched AH. AH immediately reported the incident and military police apprehended Kohlbek.
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 was too drunk to form 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. After the polygraph, investigators told Kohlbek (quite predictably) that he failed the polygraph and they continued to interrogate him, eventually leading Kohlbek to say:
Fine. I did it. I will write whatever you want. I’ll write a sworn statement to it. Just get me out of here.
Slip op. at 4 (quoting CCA opinion). Kohlbek’s confession followed. Kohlbek’s defense counsel tried to undermine the truthfulness of the confession by showing that it was given after a polygraph and under duress. But the military judge prohibited the defense from doing so based on the prohibition in Mil. R. Evid. 707(a) that states:
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.
Kohlbek challenged that ruling on appeal, asserting that the rule is not so broad that it prohibits any mention of a polygraph whatsoever and also that if it is so broad then it unconstitutionally infringes on the right to present a defense. In yesterday’s opinion CAAF agrees that the rule is not so broad (and deliberately avoids the constitutional question).
Judge Ryan explains that the language of the rule – specifically the prohibition of “any reference to . . . taking of a polygraph” – can be interpreted in multiple ways. One way is the broad way the military judge and the Army CCA interpreted it: “as a blanket per se prohibition on introducing any evidence that references a polygraph examination in any way.” Slip op. at 6. Another way is narrowly: “as an exclusion of evidence referencing taking a polygraph that implicates the reliability of the results of a polygraph.” Slip op. at 6. CAAF chooses the narrow interpretation for three reasons.
The first reason is ordinary principles of statutory interpretation. CAAF employs “principles of statutory construction” when analyzing the Military Rules of Evidence, slip op. at 6, and Judge Ryan points to three such principles for the interpretation of Mil. R. Evid. 707: the need to consider “the context of the entire rule,” slip op. at 7, “the ‘constitutional doubt’ canon,” slip op. at 8, and “the ‘presumption of validity’ canon,” slip op. at 8. The context of the rule is its “core concern that polygraph examinations are scientifically unreliable.” Slip op. at 7. But Kohlbek didn’t want to introduce evidence of the result of the polygraph; he merely wanted to show that it was an environmental factor that contributed to a false confession. That, explains Judge Ryan, does not implicate the core concern of the rule:
Evidence of the facts and circumstances of a polygraph examination procedure offered to explain the reason or motivation for a confession are in no way tied to the reliability of the test itself. We thus adopt the more narrow interpretation of “reference to . . . [the] taking of a polygraph examination,” which permits military judges to exercise their discretion in deciding whether to admit evidence regarding the facts and circumstances surrounding a polygraph examination to explain the reason or motivation for a confession.
Slip op. at 7-8 (marks in original). Such an interpretation satisfies the other two canons because a broader prohibition on any reference to a polygraph “would raise a potentially serious constitutional question” about the ability to present a defense, and also “would likely exceed the scope of President’s [rulemaking] authority under Article 36.” Slip op. at 8.
The second reason CAAF reads Mil. R. Evid. 707 narrowly is based on the Supreme Court’s opinion in United States v. Scheffer, 523 U.S. 303, 312 (1998), that approved the rule “because certain doubts and uncertainties plague even the best polygraph exams.” Because those doubts and uncertainties were not implicated by Kohlbek’s intended reference to the fact (not result) of the polygraph, they do not justify a broad prohibition on the admission of such evidence:
[Scheffer] involved a defendant’s ability to introduce evidence of the results of a polygraph examination or evidence that assumes the reliability of such results, turned on the unreliability of the test itself under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). See Scheffer, 523 U.S. at 305–06. It neither answers nor controls the altogether different question whether M.R.E. 707 prohibits any mention of the fact or circumstances surrounding a polygraph for any purpose. The scientific reliability of Appellant’s polygraph test is irrelevant to his purpose in introducing the evidence in question—explaining the context in which his confession was made. The reasons justifying a per se ban on the introduction of the results of polygraph examinations, Scheffer, 523 U.S. at 309–11, are not present here.
Slip op. at 9.
Finally, CAAF considers the President’s rulemaking authority. In Article 36, Congress delegated to the President the power to make rules for courts-martial, but it expressed a preference that such rules be consistent with the rules applicable in the civil courts:
Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts. . .
Article 36(a). Observing that “there is no counterpart to M.R.E. 707 in either the Federal Rules of Evidence (Fed. R. Evid.) or the Federal Rules of Criminal Procedure,” nor is it “the practice in U.S. district courts—generally or otherwise—to flatly prohibit evidence about the facts and circumstances about a polygraph examination,” Judge Ryan explains that had the President intended the rule to apply as a per se ban on any reference to a polygraph for any reason, then “the President would not have applied ‘the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.'” Slip op. at 10 (quoting Article 36(a). Since no unique military concern justifies such a unique military rule, CAAF rejects the broad interpretation in favor of the narrow one.
A narrow interpretation of Mil. R. Evid. 707 means that the military judge’s ruling preventing Kohlbek from introducing evidence about the polygraph was error. Put differently:
Given our interpretation of M.R.E. 707, the military judge operated under an erroneous view of the law.
Slip op. at 11 (marks and citation omitted). But an error does not result in automatic reversal because Article 59(a) requires that the error materially prejudice the substantial right of the accused. CAAF ordinarily applies four factors to determine whether an erroneous evidentiary ruling – like the military judge’s application of Mil. R. Evid. 707 in this case – causes such prejudice:
In conducting the prejudice analysis, this Court weighs: (1) the strength of the Government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question.
Slip op. at 11 (marks and citations omitted). Considering those factors, CAAF finds the error harmless primarily because “[Kohlbek’s case rested on his assertion that he was too intoxicated to form the specific intent necessary to have committed the charged [sexual] offenses,” and other evidence – independent of his confession – proved that intent. Slip op. at 12-13. Judge Ryan also notes that even if the court were to consider this a constitutional error and apply the heightened standard of whether the error was harmless beyond a reasonable doubt, the court would still affirm the convictions. Slip op. at 13 n.7.
Accordingly, while CAAF rejects the military judge and Army CCA’s interpretation of Mil. R. Evid. 707, it affirms Kohlbek’s findings and sentence.
• ACCA decision
• Appellant’s brief
• Appellee’s (Army App. Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis