Last week CAAF granted review in the Air Force case of United States v. Knapp II, No. 13-0512, (CCA opinion here) that involves the awesome powers of the “human lie detector,” with the following issue:
Whether the military judge (1) plainly erred by initially allowing “human lie detector” testimony, (2) abused his discretion by allowing further admission of “human lie detector” testimony, over defense objection, and (3) erred by not providing a curative instruction on the “human lie detector” testimony.
Appellant was convicted by a general court-martial composed of officer and enlisted members of aggravated sexual assault in violation of Article 120 (2006) for engaging in sexual intercourse with a female Airman while she was substantially incapacitated by alcohol. He was sentenced to confinement for 3 years, total forfeitures, reduction to E-1, a reprimand, and a dishonorable discharge.
Before trial, Appellant was interrogated by the Air Force Office of Special Investigations (AFOSI). Appellant initially stated that he had consensual sexual intercourse with the female Airman. But as the interrogation progressed over the course of a few hours, Appellant eventually admitted that the victim was unconscious when he began having sex with her. At trial, the Defense tried to show that this later admission was false, caused by AFOSI’s interrogation techniques. But an AFOSI investigator – “Agent P” – testified at trial about many “nonverbal cues” given by Appellant during the earlier, exculpatory part of his interrogation, and explained, “That is indicating to me that there is some form of deception going on.” Knapp, ACM 37718, slip op. at 7 (A.F.Ct.Crim.App. Mar. 20, 2013) (unpublished). Eventually the Defense specifically objected to “human lie detector” testimony from the agent, but the judge overruled the objection and then gave no specific instructions about such testimony.
The AFCCA found error, noting:
What the trial counsel elicited, however, was that these actions by the appellant constitute “nonverbal discrepancies” or “cues” which AFOSI agents are “trained” to recognize. Although the agent was not specifically asked to provide his opinion about the truth or falsity of the appellant’s statements, we find that his overall testimony indicated he could tell the appellant was lying based on the appellant’s physical reactions, and we thus find error.
Knapp, ACM 37718, slip op. at 11. But the CCA affirmed anyway, finding no prejudice due to the “inconsistencies and contradictions” in Appellant’s statements during the interrogation and the general instruction given to the members that they were responsible for evaluating the credibility of the witnesses. The CCA also cited the Defense’s “‘false coerced confession’ strategy” in its conclusion about there being no prejudice. Id., slip op. at 12.
The facts of this case are remarkably similar to another Air Force case involving testimony from an AFOSI agent about indicators of truthfulness that was decided by CAAF a decade ago: United States v. Kasper, 58 M.J. 314 (C.A.A.F. 2003) (opinion). In Kasper, CAAF found prejudicial error and reversed in an opinion authored by then-Judge Effron and joined by then-Judge Baker and Judge Erdmann. As CAAF still has a vacancy, we’ll watch to see if Senior Judge Effron is asked to participate in this case, giving Chief Judge Baker, Senior Judge Effron, and Judge Erdmann another opportunity to discuss the propriety of a law enforcement officer testifying about “training” to recognize untruthfulness through “nonverbal discrepancies” or “cues.”