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.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Davis, No. 16-0306/AR (CAAFlog case page): Oral argument audio.

United States v. Lopez, No. 16-0487/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Lopez, No. 16-0487/AR (CAAFlog case page), on Tuesday, January 10, 2017, after the argument in Davis. The court specified a single issue for review that questions whether it was error for certain witnesses to testify about their opinion of the appellant’s guilt:

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.

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 indecent liberties with a child for 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.

The case is something of a sequel to last term’s decision in United States v. Martin, 75 M.J. 321 (C.A.A.F. Jun. 17, 2016) (CAAFlog case page) – one of our honorable mentions for the Top Ten Military Justice Stories of 2016 – in which a deeply-divided CAAF narrowly concluded that the defense counsel invited the erroneous admission of human lie detector testimony. In Lopez, however, invited error is unlikely (the defense objected to the questionable testimony of CL).

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Yesterday CAAF granted review of an issue involving two lay opinions. Notably, the issue was specified by the court:

No. 16-0487/AR. U.S. v. Mario I. Lopez. CCA 20140943.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

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.

Briefs will be filed under Rule 25.

I can’t find an opinion on the Army CCA’s website and so assume that the CCA summarily affirmed.