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).