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.

Case Links:
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

15 Responses to “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”

  1. stewie says:

    Good ruling. It was always a bit intellectually lazy to forbid any and all mentions of a polygraph, particularly in a case such as this where the polygraph could be argued to have had an impact on the accused post-poly statements.

  2. TC says:

    The judge’s real error came in the sentence. Guilty of sexual abuse of a child?  Reduction from E-4 to E-3.  That makes sense.

  3. Zachary D Spilman says:

    Reduction to E-1 is automatic in the Army in any case where the sentence includes either a punitive discharge or confinement in excess of 6 months. See Article 58a; Ch. 5-29e, AR 27-10 (11 May 2016) (moved to Ch. 5-37 in 2019 interim update).

    The sentence in this case included both.

  4. TC says:

    I’m familiar with automatic reduction.  That doesn’t explain why the judge felt reduction to E-3 was an appropriate punishment for child sexual abuse.

  5. Isaac Kennen says:

    One might also have thought that someone who forcibly fondles a 14 year old who was in their care would be sentenced to more than a mere 15 months of confinement.

  6. Kettle Black says:

    Not sure how it would play with the automatic reduction, but I expect the judge was attempting to preserve the level of income the family would receive if the automatic forfeitures were waived.  In my experience, convening authorities will typically approve the waiver but will sometimes deny simultaneous requests for relief on reduction in grade.  This means the spouse/kids suffer a potentially substantial reduction in income, which sort of goes against the whole point of waiving the forfeitures.  The MJ might have been trying to avoid that scenario by only reducing one grade.  Given the punitive discharge, the rank doesn’t really matter otherwise. 

  7. Vulture says:

    As you wrote on the 15th of January Zach, CAAF has two cases discussing mens rea under consideration.  Specifically regarding 120(b).  It doesn’t bode well for the Accused that the CAAF is accepting ‘expert testimony’ as to specific intent in support of a conviction.  Black’s defines specific intent to listed crimes at the common law.  Ballentine’s describes it to a state of mind.  
    CAAF is getting into trouble assessing sobriety from the appellate bench.  They are mistaking that drunkenness doesn’t excuse illegality for forfeiture of questions of law.  
    I’m uncomfortable with the implications of the discussion above.  If the step-daughter testified as the only other person that could corroborate AH then received further financial stability, albeit indirectly, this ruling is not sufficient.  The government case isn’t overwhelming. 
    Without knowing more, I’d say the Defense Counsel made some ballsey choices.  But if CAAF is going to make a 13 page ruling based this much on civilian law: either bring back the old Article 32 or civilianize sexual offense prosecution.

  8. stewie says:

    We accept expert testimony as to the approximate level of the alleged victim’s intoxication and the implications therein, why in the heck wouldn’t we also accept the same as to the accused??
    We have a rough idea of when the average person starts getting so intoxicated that they cannot consent (or exhibit specific intent). It’s by no means perfect, and defense no doubt had access to an expert who could counter where possible the gov expert’s assertions. But you say no expert at all should be able to testify? What if the accused testified to the number of drinks? What if his BAC was tested? What if we have a rough idea of his BAC at the time of the offense? What if we have other testimony of his state of intoxication around the time of the offense?
    Why in the world would expert testimony not be proper in any of those circumstances?

  9. Vulture says:

    Got it, and how is that testimony working out in terms of evenness?  Not very well is it?  An Accused can be ‘black out drunk’ and be able to form specific intent.  But an alleged victim can be ‘throw up drunk’ and can’t.  I’ll admit, that’s not an argument I want to get into.  Why, because I don’t want to do what the CAAF is doing.  Which is exactly what you are doing stewie.  Evaluating level of toxicity/sobriety/drunkeness.
    Witnesses don’t testify to the law.  I’ve seen government eke it out of witness in various constructions – what constitutes an order, what is or is not a warrant.  The proper course then is for DC to object.  Without seeing the ROT, I’d guess that the TC, on cross, asked the expert witness if someone can form intent when black out drunk.  Maybe the DC didn’t object or cover the matter on redirect.  Can’t tell. OTOH DC could have asked the expert if Kolhbek’s black out overcame that capability to form intent.  Can’t tell that either.
    My point here, and in comparison to the upcoming cases, is that what constitutes intent is sufficiently a question of law to sustain that objection.  At the very least, it is a mixed question of fact and law.  That’s kinda why I called the definition suggesting mens rea.  Do many witnesses use such a term?  Nope.  So Judge Ryan had to go out of her way to make an intent driven testimonial connection.
    Here’s the deal, and it’s certainly not a viewpoint widely shared: alcoholism is more subject to the corrective action of leadership than criminality.  By leadership, I mean O-6 and O-8 types, ones applying policies of scale.  Those moving into, or occupying, these command billets didn’t impress me much as O-4’s/O-6’s.  They were more like big frat boys, at a frat party, in their frat house.  Providing the leadership to keep young servicemen from substance abuse would give them an aneurysm. 
    But if CAAF had the same prohibition on writing an opinion without the word “drinking” that exists with the word “polygraph” none of us would have ever met.  CAAF would have nothing to say, because every other sexual offense opinion includes alcohol in some way. Commands need be on the hook for the alcohol problem.
    CAAF needs to stop using it as a panache.  It’s too far removed from their sphere of influence.  In the same vein, Congress has to also get their head out of the Me-Too movement when it comes to the MJ system.  It serves a different purpose than they would give it.  What they do have to focus on, is providing some competent senior leadership.  The next war is  likely to be a whole lot harder on young men and women.
    Or you can tell me that Tank threw a brick.  Don’t care.

  10. stewie says:

    “An Accused can be ‘black out drunk’ and be able to form specific intent.  But an alleged victim can be ‘throw up drunk’ and can’t.”
    Black out drunk is not the same as throw up drunk, and you know this. The former can happen before the other. And an alleged victim can be “black out drunk” and ALSO form the necessary intent to consent. So, you know, apples to apples.
    “Witnesses don’t testify to the law.”
    Strawman number 2. Testifying about evidence upon which facts then lead to legal decisions is not “testifying to the law.”
    Giving evidence about someone’s level of intoxication can lead to legal determinations like consent or ability to form specific intent. It happens every day in state and federal trials…and yes in courts-martial.
    The rest of your post really seems like some sort of, well, to be honest, I am not sure what it is, but it isn’t a legal analysis.

  11. Vulture says:

    No stewie.  I have no idea.  I’ve never been remotely close to either kind of drunk.  Never in my life.  I’d be challenged to find someone that qualifies as an expert in any capacity that could possibly give me an insight to the legalities of constructing drunken intent.  That’s just the way it is, and I’m fine with it.  So are no shortage of lower ranking individuals that I have worked with.  It’s a small trait, but a useful one, to wit:
    A friend of mine to has a niece that joined the Marines and is in their version of AIT.  My only suggestion to my friend was they the family provide enough support, and be present enough, that she never go out drinking with the boys.  Legal analysis be damned.

  12. stewie says:

    So here’s the thing. All sorts of folks study this stuff. They get people drunk, they test them, this isn’t physics hard science, but it isn’t psychoanalysis soft science either.  They have a rough idea of the BAC levels for black out (starts at roughly around .2) or for throwing up (don’t recall but generally if you have reached throwing up, your body is actively trying to keep you from ingesting anymore alcohol) to pass out.
    Is it exact? No. Do you need some decent and accurate info about what was drunk and when for it to work? Yes. We also know about roughly when you start losing motor control, or slur your words or are unable to stand, etc.
    So, no, you wouldn’t be challenged at all. There are a myriad number of qualified experts that would lay out the studies and answers for you. This isn’t voodoo.

  13. Vulture says:

    What you didn’t say is that any of them have the legal training to marry that study to the definition intent.  I think that guy is down there at the University of Wisconsin next to the Department of Bite Marks. 
    But your logic confounds me stewie – in a Princess Bride kind of way.  So your wanting to be a military judge has risen to the intend to be a military judge level.

  14. stewie says:

    LOL perhaps I’ve given you too much deference/credit to make pretty obvious links, so let’s try this again.
    To determine capacity of intent (either specific intent to commit a crime or to consent to sexual acts) one can get to it a couple of ways:
    1. They could consider direct testimony of the actual person. The accused says, nope, I didn’t intent to satisfy my lust when I touched her there.  Or, the alleged victim says I don’t remember consenting to any of this let’s say.
    2. You, a defense attorney who is no doubt very good and very eager, wants to rebut that second bit of evidence, but all you have is fairly decent evidence as to the number of drinks she had last night. Let’s say it was 4 drinks in six hours.
    Now, you could call an expert to say that 4 drinks in 6 hours would lead to a certain likely intoxication level, and that level would be below “passed out” and likely below “blacked out” but that even if “blacked out” we know through this thing called science that humans retain the ability to make decisions, they simply lose the ability to form short-term memory.  Therefore, she was more than capable of consenting.
    But clearly you wouldn’t do that, because that would be like putting on an expert to talk about bite marks.
    The concept of consent or intent is legal, the CAPACITY to do either of those things relies on plainly non-legal facts. You got to glimpse of the truth when you grudgingly conceded it might be a mixed question of fact and law.
    In this case:
    “[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”
    The court looked at the evidence in favor of this proposition (friends who said he “smelled of alcohol” was “shambly” or didn’t seem mentally all there). The last certainly bears scrutiny, the others less so IMO. Then they looked at his actions and statements “do you want me” and the testimony of the victim. I don’t see anything that says they “decided his sobriety based solely on an expert” except that they rightfully agreed with the defense expert’s concession that being black out drunk does not mean unable to form intent.
    Of course, if we adopt your standard, all you need are alleged victims to say “I don’t remember” and since any expert testifying that being black out drunk does not necessarily mean being unable to consent is “bite mark science” then we’ve got a conviction on our hands, yes?

  15. Vulture says:

    Grudgingly?  Why me such a thing under this circumstance?  I call being grudgingly “a Tuesday.”  So many people here want to yammer about that evil Nifong from Raliegh-Durham.  I say “Why settle for an easy target?”  It’s the Conahans from Willks-Barre that get me rabid.  
    What’s in a word as to it’s legality?  The Supreme Court might answer a similar question here.  But mixed questions are determined by judges, not witnesses.  It’s not a strawman argument, and judge Ryan is the one whose deference I think is misplaced.
    Your hypothetical not withstanding, stewie, I hope you are a good judge.