United States v. Knapp , 73 M.J. 33 ( 2014 )

UNITED STATES, Appellee
v.
Michael L. KNAPP II, Airman First Class
U.S. Air Force, Appellant
No. 13-0512
Crim. App. No. 37718
United States Court of Appeals for the Armed Forces
Argued November 18, 2013
Decided January 15, 2014
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and OHLSON, JJ., joined. BAKER, C.J., filed a separate
dissenting opinion, in which RYAN, J., joined.
Counsel
For Appellant: Captain Isaac C. Kennan (argued); Captain
Nicholas D. Carter (on brief).
For Appellee: Captain Thomas J. Alford (argued); Colonel Don M.
Christensen and Gerald R. Bruce, Esq. (on brief).
Military Judge: Michael E. Savage
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Knapp, No. 13-0512/AF
Judge STUCKY delivered the opinion of the Court.
It is the “exclusive province of the court members to
determine the credibility of witnesses.” United States v.
Brooks, 64 M.J. 325, 328 n.3 (C.A.A.F. 2007). 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.
I. Posture of the Case
Contrary to his pleas, a panel of members sitting as a
general court-martial convicted Appellant of aggravated sexual
assault in violation of Article 120, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920 (2006). He was sentenced to a
dishonorable discharge, confinement for three years, forfeiture
of all pay and allowances, reduction to the grade of E-1, and a
reprimand. The convening authority approved, and the United
States Air Force Court of Criminal Appeals affirmed the
conviction and sentence, finding that, while admission of the
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testimony was error, no material prejudice to Appellant resulted
from the testimony. United States v. Knapp, No. ACM 37718, 2013
CCA LEXIS 243, 2013 WL 1319505 (A.F. Ct. Crim. App. Mar. 20,
2013) (unpublished).
II. Background
Appellant was convicted of having sexual intercourse with
Airman First Class (A1C) ES early on the morning of December 17,
2009, when she was too drunk to be conscious or to consent. On
the afternoon of December 17, Special Agent (SA) Peachey and
another AFOSI agent questioned Appellant for several hours about
the incident. Appellant repeatedly told the AFOSI agents that
A1C ES had at first consented to a sexual encounter, but partway
through, she lost consciousness, so he immediately stopped
contact with her. By the end of the multi-hour interview,
though, Appellant admitted that A1C ES had been unconscious and
unable to consent from the start of the encounter. Appellant
signed and swore to a statement to this effect.
In his opening statement, the defense counsel conceded that
Appellant had sex with A1C ES and argued that the only issue was
her consent. He asserted that a witness would “corroborate”
that A1C ES was awake and consented to the sex. He argued that
Appellant confessed to the AFOSI only after he had denied any
wrongdoing more than seventeen times but eventually broke due to
the prolonged interrogation.
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SA Peachey testified at trial on direct, cross-examination,
and redirect that Appellant gave specific nonverbal cues
indicating deception during the part of questioning when he
maintained A1C ES consented to sexual activity. First, trial
counsel asked about Appellant’s “nonverbal clues” on direct. SA
Peachey replied that agents are “trained to pick up on nonverbal
discrepancies . . . . Early on in the interview the accused
would not make eye contact with me when we were talking about
the sexual intercourse portion.” SA Peachey then explained:
That is indicating to me that there is some form of
deception going on. Prior to the intercourse, the
accused was very detailed, very detail oriented, would
look me in the eye, talk to me, and as soon as we got
to the intercourse he would look away, look at the
wall, look at the floor, not look at [the agents], and
then immediately after the sexual intercourse
timeframe he would kind of come back to us and be,
once again, extremely detailed . . . [l]ater on we had
to ask him open-ended questions to try to get the
truth out from him.
The defense did not object to this testimony.
During cross-examination, defense counsel asked why the
interview did not end when Appellant repeatedly said A1C ES was
awake and willing when they began to have sexual intercourse.
SA Peachey replied, “Like I had stated earlier, sir, I’m trained
on picking up nonverbal cues during interviews . . . and the
accused was giving off several nonverbal cues which made us
believe that we needed to dig a little deeper.” Defense counsel
then asked, “And one of the nonverbal cues is he would not look
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at you when it came to him talking about the sex, correct?” SA
Peachey answered, “Correct.” Again, defense counsel did not
object.
On redirect, trial counsel asked about nonverbal cues SA
Peachey saw on Appellant’s face. In response, SA Peachey
testified that “large red sun blotches” would appear on
Appellant’s face when he spoke about the “actual incident.” At
this point, defense counsel objected on human lie detector
grounds. After getting the trial counsel to agree not to “draw
an inference from those responses,” the military judge overruled
the objection.
During the Government’s case-in-chief, trial counsel played
a ten-minute clip of Appellant’s questioning and confession from
the night of December 17, 2009. During the defense case,
defense counsel played a one-hundred-minute recording of the
interrogation, including this clip.
Trial counsel did not mention the nonverbal cues during
closing argument. Before deliberations, the military judge gave
general instructions on the members’ duty to determine witness
credibility, false exculpatory statements, and coerced
confessions. The general credibility instruction given was:
The credibility of witnesses. You have the duty to
determine the believability of the witnesses. In
performing this duty you must consider each witness’
intelligence, ability to observe and accurately
remember, sincerity and conduct in court, friendships
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and prejudices. Consider also the extent to which
each witness is either supported or contradicted by
other evidence; the relationship each witness may have
with either side; and how each witness might be
affected by the verdict. In weighing discrepancies
between witnesses, you should consider whether they
resulted from an innocent mistake or a deliberate lie.
Taking all these matters into account, you should then
consider the probability of each witness’ testimony
and the inclination of the witness to tell the truth.
The believability of each witness’ testimony should be
your guide in evaluating the testimony, not the number
of witnesses called. These rules apply equally to the
testimony given by the accused.
The military judge did not give a “human lie detector”
instruction or otherwise specifically address SA Peachey’s
testimony.
III. Discussion
“[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.’” Brooks, 64 M.J. at 328 (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.
“Where an appellant has not preserved an objection to
evidence by making a timely objection, that error will be
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forfeited in the absence of plain error.” Brooks, 64 M.J. at
328 (citing Military Rule of Evidence 103(d)); accord United
States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010). “A timely
and specific objection 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.” 1 Stephen A. Saltzburg
et al., Federal Rules of Evidence Manual § 103.02[1] (10th ed.
2011). To be timely, an objection must normally be made before
the answer is given, although some federal courts have permitted
objections or motions to strike immediately after the answer.
Id. at § 103.02[8] n.41 (citing, as an example, United States v.
Spriggs, 102 F.3d 1245 (D.C. Cir. 1996)).
Appellant failed to timely object to SA Peachey’s human lie
detector testimony on either direct or cross-examination.
Therefore, we review for plain error. Under this Court’s plain
error jurisprudence, Appellant has the burden of establishing
(1) error that is (2) clear or obvious and (3) results in
material prejudice to his substantial rights. Brooks, 64 M.J.
at 328.
A. There is error
The authority to introduce character evidence under
Military Rule of Evidence 608(a) does not extend to human lie
detector testimony. Kasper, 58 M.J. at 315. SA Peachy
testified that he had been specifically trained to detect
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nonverbal clues that a suspect was being deceptive and that,
using this training, he determined that Appellant’s claims that
the sexual intercourse with A1C ES was consensual were
deceptive. These facts echo those of Kasper, in which another
AFOSI agent testified that, “‘we assess through body language
and other things if the individual is being truthful or not.’”
Id. at 316. There we appropriately concluded:
The picture painted by the trial counsel at the outset
of the prosecution’s case through SA Lozania’s
testimony was clear: a trained investigator, who had
interrogated many suspects, applied her expertise in
concluding that this suspect was lying when she denied
drug use and was telling the truth when she admitted
to one-time use. Such “human lie detector” testimony
is inadmissible.
Id. at 319.
The Government argues that SA Peachey had a lawful reason
to testify; specifically, to rebut Appellant’s opening statement
that the confession was the result of a prolonged interrogation
that had broken Appellant’s will to resist by explaining why he
continued the interview despite Appellant’s initial exculpatory
statements. The Government can certainly rebut a defense
counsel’s argument, but it cannot do so by usurping the role of
the jury in determining witness credibility. See id. at 315.
Under these circumstances, it would have been permissible
for SA Peachey to describe Appellant’s physical reaction to the
interrogation questions. See Salinas v. Texas, 133 S. Ct. 2174,
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2178 (2013) (plurality opinion) (permitting prosecutor to use an
accused’s physical reaction to questioning as evidence of guilt
when the accused failed to invoke his right to remain silent).
It also would have been permissible for SA Peachey to explain
that this reaction caused him to continue questioning Appellant.
But SA Peachey went too far by declaring that he had been
trained to divine a suspect’s credibility from his physical
reactions to the questioning. This testimony, suggesting that
SA Peachey’s evaluation of Appellant’s denial of wrongdoing was
based on his expertise in determining credibility, impermissibly
“‘usurp[ed] the [members’] exclusive function to weigh evidence
and determine credibility.’” Kasper, 58 M.J. at 315 (quoting
United States v. Birdsall, 47 M.J. 404, 410 (C.A.A.F. 1998)).
B. The error was clear or obvious
In determining whether the error was clear or obvious, we
look to law at the time of the appeal. Mullins, 69 M.J. at 116;
see also Henderson v. United States, 133 S. Ct. 1121, 1127
(2013). Our condemnation of human lie detector testimony easily
predates Appellant’s trial. See, e.g., United States v.
Petersen, 24 M.J. 283, 284–85 (C.M.A. 1987). This error was
clear or obvious. See id.
C. The error is prejudicial
An obvious error materially prejudices the substantial
rights of the accused when it has “an unfair prejudicial impact
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on the [court members’] deliberations.” United States v.
Powell, 49 M.J. 460, 463 (C.A.A.F. 1998) (quoting United States
v. Fisher, 21 M.J. 327, 328 (1986)) (internal quotation marks
omitted).
At trial, Appellant testified, consistent with his original
statements to the AFOSI, that, although A1C ES was intoxicated,
she initiated the sexual contact and engaged in consensual
sexual intercourse. He explained that he stopped as soon as he
realized she was unconscious. Having conceded that he had
engaged in sexual intercourse with A1C ES, the sole question
before the members was whether he was truthful when he said that
she initiated the sex and consented to the sexual intercourse.
But that testimony had already been discredited by an AFOSI
agent who professed to have expertise in divining the truth from
the demeanor of the suspect. The only evidence contradicting
Appellant’s testimony was A1C ES’s testimony, that she had been
too inebriated to remember the night or to have consented to
sexual contact, and Appellant’s confession, which he maintains
he made only when he broke down after eight or nine hours of
interrogation.
The Government’s argument that Appellant was not prejudiced
because defense counsel played at trial a one-hundred-minute
tape of the questioning of Appellant is unavailing. Playing the
tape certainly allowed members to see the nonverbal behaviors to
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which SA Peachey testified. But rather than draw their own
conclusions in assessing Appellant’s statements to the AFOSI,
the court members were left with the purported expertise of SA
Peachey, describing Appellant’s physical reactions as evidence
of deception. Cf. Brooks, 64 M.J. at 330 (holding that, because
of the limited corroborating evidence and a lack of a specific
instruction by the military judge, “[a]ny impermissible evidence
reflecting that the victim was truthful may have had particular
impact upon the pivotal credibility issue and ultimately the
question of guilt”).
Before permitting counsel to argue on findings, the
military judge instructed the members on the substantive issues
they had to decide. The military judge did provide the general
credibility instruction, but he never instructed the members
that they could not consider SA Peachey’s human lie detector
testimony in determining Appellant’s credibility or in
determining his guilt. “[T]he military judge was responsible
for making sure such testimony was not admitted, and that the
members were provided with appropriate cautionary instructions.”
Kasper, 58 M.J. at 319; cf. Mullins, 69 M.J. at 115, 118
(holding the appellant failed to demonstrate prejudice when
military judge gave a specific instruction advising the members
that “no witness is a human lie detector”). The military judge
failed to do so in this case.
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Here, as in Kasper, the human lie detector “testimony was
not offered on a peripheral matter or even as a building block
of circumstantial evidence,” but “on the ultimate issue in the
case -- whether Appellant was truthful as to the charge.” 58
M.J. at 319. Under these circumstances, we conclude that the
military judge’s failure to appropriately instruct the members
to disregard this testimony was prejudicial error.
V. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is reversed. The findings of guilty and the
sentence are set aside. A rehearing is authorized.
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BAKER, Chief Judge, with whom RYAN, Judge, joins
(dissenting):
I concur with the majority’s judgment that the testimony of
Special Agent (SA) Peachey regarding nonverbal cues and
deception constituted “human lie detector” evidence. I also
agree that the admission of this evidence was obvious error,
although certainly it is more obvious when spliced together on
appeal than in the context of an ongoing trial. Civilian
defense counsel expressly referred to the redirect examination
testimony as “human lie detector” evidence. Moreover, SA
Peachey’s statement that he could discern deception by observing
a person’s physiological and behavioral reaction to questions is
the very essence of what it would mean to serve as a human
polygraph.
Nonetheless, I disagree with the majority on prejudice.
For sure, a curative instruction addressed specifically to human
lie detector evidence would have resolved this matter. However,
unless we are going to treat the introduction of any human lie
detector evidence as per se prejudicial or structural in nature,
which we have not before done, I do not see how the introduction
of this evidence in this case materially prejudiced a
substantial right of the accused. Indeed, the argument that
Appellant was not prejudiced is overwhelming. The
United States v. Knapp, No. 13-0512/AF
undermentioned facts distinguish this case from Kasper. United
States v. Kasper, 58 M.J. 314 (C.A.A.F. 2003).
First, Appellant confessed.
Second, the evidence corroborating Appellant’s confession
was overwhelming and it was generated before SA Peachey entered
the picture. Specifically, physical evidence in the form of
Appellant’s DNA confirmed sexual intercourse between the
Appellant and the victim. Appellant testified that he had
removed the condom from the garbage can in the victim’s room,
thereby removing physical evidence of the encounter. MS, who
went drinking with the victim and Appellant, testified that the
victim was “pretty drunk,” “really drunk,” and even “could [not]
walk on her own.” The victim could not recall what occurred,
and Appellant chose not to refresh her recollection. Indeed, he
made no reference to the events of the night before when driving
with the victim after leaving her room the next day. The nurse
who performed the sexual assault examination testified that
Appellant denied having sex with the victim at all,
demonstrating to the members that Appellant from the very outset
was less than consistent in his explanation of the events.
Third, defense counsel introduced to the members the
entirety of the interrogation video to which SA Peachey’s
testimony was addressed. The video included multiple occasions
where SA Peachey and his partner suggested they did not believe
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Appellant was truthful: “You know how I know that’s not true?”;
“You’re dancing on the line of me saying that you were a
complete jerk and you ran me around the table for hours”; “Why
would you want to try and destroy the evidence? . . . Because
she didn’t know the whole time, did she?”; “[W]e can get the
whole entire story and all the details when we come back”; and
“So, no more playing these little games, dancing around the
flagpole trying to pull one over on the OSI agents. Okay? When
we come back in here one hundred percent truth --.” The members
could judge Appellant’s credibility and reaction to the
interrogation for themselves.
Fourth, Appellant testified. The members could judge
Appellant’s demeanor and credibility for themselves.
Fifth, trial counsel did not rely on SA Peachey’s testimony
in closing argument.
Appellant’s rebuttal to all this is that the members were
already tainted in their perception of Appellant’s credibility
by SA Peachey’s testimony. As such, they would not have heeded
the military judge’s admonition to judge credibility for
themselves even when given the opportunity to do so by listening
to Appellant’s testimony and viewing the video the defense
introduced documenting the testimonial events in question.
This argument and the majority opinion give SA Peachey’s
words a Solomonic status they do not deserve. SA Peachey’s
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testimony was not presented with numerical certainty removing
any doubt including reasonable doubt, as was the case in Brooks,
where we found the expert witness’s remarks “suggested . . .
there was better than a ninety-eight percent probability that
the victim was telling the truth.” United States v. Brooks, 64
M.J. 325, 329 (C.A.A.F. 2007). Or in Mullins, where the expert
testimony “involve[d] a statistical statement” that there was “a
1 in 200 chance the victim [was] lying.” United States v.
Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010). Rather, SA Peachey
offered evidence that would have been intuitive to any member of
a military panel. Peachey was a special agent with
interrogation training who thought Appellant was deceptive when
questioned; presumably the Government would not have charged
Appellant with the offense in question otherwise.
For these reasons, I respectfully dissent on the question
of prejudice and would affirm the Court of Criminal Appeals and
this case.
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