Argument Preview: Interpreting Mil. R. Evid. 707 (and its broad prohibition of polygraph evidence), in United States v. Kohlbelk
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.
CAAF granted review in two cases on Tuesday. First, a Navy case:
No. 18-0251/NA. U.S. v. Austin T. Greening. CCA 201700040. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY PROSECUTION OF APPELLANT VIOLATED THE FIFTH AMENDMENT’S DOUBLE JEOPARDY PROHIBITION.
No briefs will be filed under Rule 25.
The Navy-Marine Corps CCA opinion is available here.
The due process issue is based on the fact that the appellant was held for possible trial past the end of his enlistment, without notice, for 300 days. The CCA rejected the argument that the lack of notice severed jurisdiction, holding that:
The appellant’s argument is based upon a faulty premise. . . . even if the appellant had received notice that he was being retained on active duty involuntarily from the outset, and assuming he objected to his continued retention, he still would not have been discharged and personal jurisdiction would have continued. Moreover, the appellant cites no authority for the proposition that failing to properly notify a service member that he or she is being retained on active duty against their will amounts to a deprivation of constitutional due process that severs jurisdiction. Slip op. at 8 (internal citation omitted).
Correction. The double jeopardy issue seems to be based on a successive prosecution. In 2015 the appellant pleaded guilty to involuntary manslaughter in the Commonwealth of Virginia and was sentenced to confinement for three years (with all but six months suspended). He was then prosecuted for the same offense by the military, pleaded guilty to involuntary manslaughter and obstruction of justice at a general court-martial, and received an approved sentence of confinement for 39 months, reduction to E-1, and a dishonorable discharge.
Those facts suggest that this case involves the separate sovereigns doctrine and that this case is a Gamble trailer (noted here).
Second, an Army case:
No. 18-0267/AR. U.S. v. Jason A. Kohlbek. CCA 20160427. 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:
WHETHER THE MILITARY JUDGE ERRED BY MISCONSTRUING MIL.R.EVID. 707 AND PROHIBITING APPELLANT FROM PRESENTING EVIDENCE RELEVANT TO APPELLANT’S POST-POLYGRAPH STATEMENT.
Briefs will be filed under Rule 25.
The Army CCA opinion is available here. The CCA explained that:
Appellant argues that the military judge erred in prohibiting him from telling the court-martial that his admissions were made after being subjected to a polygraph and being told his answers were deceptive. As Mil. R. Evid. 707 clearly prohibits this information, appellant argues that the rule is unconstitutional, at least as applied to his case. Appellant argues that being deprived of this information misled the factfinder about the circumstances under which he confessed.
Slip op. at 6. The court found no error, concluding that “Appellant testified at the suppression motion that he confessed because he wanted to end the interview as soon as possible. . . . appellant’s stated explanation for confessing, (wanting to end the interrogation), did not require disclosure of the polygraph testing.” Slip op. at 7.