CAAFlog » September 2013 Term » United States v. Knapp

In this January post, I discussed the Government’s petition for reconsideration of the Air Force case of United States v. Knapp, No. 13-5012/AF, 73 M.J. 33 (link to slip op.) (CAAFlog case page). CAAF unanimously agreed with the Air Force CCA that the admission of improper “human lie detector” evidence against Appellant was obvious error, but CAAF split 3-2 to find that the error was prejudicial to Appellant, reverse the decision of the Air Force CCA on this point, and set aside aside the findings of guilty while authorizing a rehearing.

Last week, CAAF denied the Government petition for reconsideration.

A reader was kind enough to forward a Government petition for reconsideration (which I’ve posted here) in the Air Force case of United States v. Knapp, No. 13-5012/AF, 73 M.J. 33 (link to slip op.) (CAAFlog case page) that CAAF decided on Wednesday, January 15, 2014. In Knapp, CAAF unanimously agreed with the Air Force CCA that the admission of improper “human lie detector” evidence against Appellant was obvious error, but it narrowly found that this error was prejudicial to Appellant, reversing the decision of the Air Force CCA and setting aside the findings of guilty while authorizing a rehearing.

The Government’s petition relies heavily on the fact that Appellant forfeited this error at trial by what I characterized in my argument preview as “the Civilian Defense Counsel’s rather limp objection” to the testimony at issue. Because of that forfeiture, the error was tested under the plain error standard, where Appellant had the burden to show material prejudice to a substantial right. But the Government argues:

By setting aside the findings and sentence in this case, this Court appeared to subject the questioned testimony to a heightened prejudice standard: That of harmlessness beyond a reasonable doubt. While the Government asserts that the evidence of Appellant’s guilt is sufficient to overcome even that stringent standard, it most certainly is sufficient to demonstrate a lack of prejudice under the plain error standard from Article 59(a), UCMJ.

Gov’t Pet. for Recon. at 4. Neither Judge Stucky’s majority opinion, nor Chief Judge Baker’s dissent, in Knapp used the word “harmless.” The Government petition continues:

Here, as mentioned before, there were two other direct witnesses, a confession, physical evidence in the form of DNA, and testimony and a confession from Appellant himself. If this evidence is insufficient to overcome Appellant’s prejudice argument, the Government vigorously ponders would could ever qualify.

Gov’t Pet. for Recon. at 5. Besides citing the existence of a confession twice in one sentence, the Government must still contend with the fact that a confession is the least reliable form of proof, and the practical reality that the improper “human lie detector” testimony undoubtedly bolstered Appellant’s out-of-court confession while undercutting his in-court denial. Appellant’s merits brief to CAAF focused on this practical reality, arguing:

By failing to sua sponte give the members a curative instruction during the government’s case-in-chief, immediately upon the hearing of the offensive testimony, the military judge left the Appellant to take the stand in his own defense with a panel of members who had already been told not to believe him by an OSI special agent, who had testified to receiving some sort of “training” rendering him able to discern truth from fiction merely because they blush when talking about sex.

App. Br. at 18.

I think the Government faces very long odds with this petition. Of the three judges who found prejudice, Judge Stucky was the author of the majority opinion, and Judge Ohlson was participating in his first published opinion of the court, and so both are unlikely to suddenly change their minds. That leaves only Judge Erdmann as the Government’s hope for a dramatic reversal.

Case Links:
• AFCCA’s opinion
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: The “human lie detector” returns to CAAF
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: A question too far
• Blog post: Opinion analysis
Blog post: Government seeks reconsideration

CAAF decided the Air Force case of United States v. Knapp, No. 13-5012/AF, 73 M.J. 33 (CAAFlog case page)  (link to slip op.), on Wednesday, January 15, 2014. The court unanimously agrees with the Air Force CCA that the admission of improper “human lie detector” evidence against Appellant was obvious error, but CAAF narrowly finds that this error was prejudicial to Appellant, reversing the decision of the Air Force CCA and setting aside the findings of guilty while authorizing a rehearing.

Judge Stucky writes for the court, joined by Judges Erdmann and Ohlson. Chief Judge Baker files a separate opinion that is joined by Judge Ryan. The separate opinion is captioned as a dissenting opinion, but the dissenters concur with the majority in part.

A female Airman accused Appellant of sexually assaulting her while she was incapacitated by alcohol. Appellant was interrogated by the Air Force Office of Special Investigations (AFOSI), and 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 female 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 testified at trial about many “nonverbal cues” given by Appellant during the earlier, exculpatory part of his interrogation. 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 to the members about such testimony.

The Air Force CCA found error, concluding that the agent’s “overall testimony indicated he could tell the appellant was lying based on the appellant’s physical reactions,” which is improper. Knapp, ACM 37718, slip op. at 11. But the CCA affirmed the conviction finding that any prejudice was outweighed by inconsistencies and contradictions in Appellant’s statements during the interrogation, and by the general instruction given to the members that they were responsible for evaluating the credibility of the witnesses. CAAF then granted review to determine if the admission of the testimony was error, with a three-part 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.

Judge Stucky begins his majority opinion by noting two important themes in the case. First is the requirement that the military judge give “a prompt cautionary instructions to ensure that the members do not make improper use of [human lie detector] testimony.” Slip op. at 6. Second is that, “A timely and specific objection [from the Defense] is required so that the court is notified of a possible error, and so has an opportunity to correct the error and obviate the need for appeal.” Slip op. at 7. The entire court is in agreement on both of these themes. The Appellant forfeited the error by failing to make a timely objection, but the military judge could have cured it by giving an appropriate instruction.

Read more »

The CAAF has issued an opinion in United States v. Knapp.  This case explores the boundary of what law enforcement agents can testify to and not become a human lie detector.

 Here, an agent from the Air Force Office of Special Investigations (AFOSI) testified that, using his specialized training, he was able to determine that Appellant was being deceptive when he provided an innocent account of the events in question. We granted review to decide whether this testimony improperly usurped the members’ role in determining witness credibility and, if so, whether it prejudiced Appellant. We hold that the agent’s testimony was impermissible “human lie detector” testimony and, that under the circumstances of this case, it materially prejudiced Appellant’s defense.

The Knapp defense did not object so the court applied a plain error analysis.

Judge Stuckey reminded all that:

  “[T]his [C]ourt has been resolute in rejecting the admissibility of so-called human lie detector testimony, which we have described as: ‘an opinion as to whether the person was truthful in making a specific statement regarding a fact at issue in the case.’” [Unied States v.] Brooks, 64 M.J. [325] at 328 [C.A.A.F. 2007](quoting United States v. Kasper, 58 M.J. 314, 315 (C.A.A.F. 2003)). “If a witness offers human lie detector testimony, the military judge must issue prompt cautionary instructions to ensure that the members do not make improper use of such testimony.” Kasper, 58 M.J. at 315.

*  Interestingly both Kasper (OSI) and Brooks (expert) are AF cases.  In each there was impermissible credibility testimony, without objection and without a limiting instruction.

Judge Stuckey writing for the Knapp majority tells us that the appellate courts will allow for the following types of testimony.

  •  it would have been permissible for SA Peachey to describe Appellant’s physical reaction to the interrogation questions.
  • It would have been permissible for SA Peachey to explain that this reaction caused him to continue questioning Appellant.

I’m not sure the above examples aren’t just euphemisms or implications of lying by the witness having the same effect of telling the members that the accused lied to him.

Finally, “[W]e conclude that the military judge’s failure to appropriately instruct the members to disregard this testimony was prejudicial error.”  Slip op. at 12.

Chief Judge Baker in dissent agreed with the majority that there was error.  But he disagreed the error was prejudicial.

For  those familiar with Lewis Carroll’s, The Hunting of the Snark, to paraphrase.  Perhaps now you’ll know that what we tell you three times is true.

Time! – ring the bell man.

Audio of today’s oral arguments in United States v. Hines, No. 13-5010/AR (CAAFlog case page) and United States v. Knapp, No. 13-5012/AF (CAAFlog case page) is available at the following links:

Hines argument audio

Knapp argument audio

CAAF will hear oral argument in United States v. Knapp, No. 13-5012/AF (CAAFlog case page) on Monday, November 18, 2013. The case involves the awesome powers of the “human lie detector” and whether a law enforcement officer may testify about “training” to recognize untruthfulness through “nonverbal discrepancies” or “cues” during an interrogation.

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 female 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 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.” United States v. 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 to the members 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 finding no prejudice. Id., slip op. at 12.

CAAF then grated review of a three-part 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.

Read more »

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.”