*1 STATES, Appellee, UNITED KASPER,
Michelle L. Airman First
Class, Force, U.S. Air
Appellant.
No. 02-0318.
Crim.App. No. 34351. Appeals
U.S. Court of Armed Forces.
Argued Dec. 2002.
Decided June 2003.
EFFRON, J., opinion delivered the Court, ERDMANN, in which BAKER and JJ., GIERKE, joined. J., separate filed opinion concurring in the result. CRAW- FORD, C.J., separate dissenting filed a opin- ion. Appellant:
For Major Andrew S. (argued); Major Terry Williams L. McElyea (on brief); Captain K Martwick Jennifer Captain James M. Winner. Appellee: Major For R. Rider Jennifer (argued); Colonel LeEllen Coacher and (on Sigmon Lieutenant Colonel Lance B. brief); Anthony and Colonel P. Dattilo. Judge EFFRON delivered the the Court. general composed
At a court-martial members, Appellant officer and enlisted convicted, contrary pleas, wrongful to her 3, 4-methylenedioxymethamphetamine use of 112a, (ecstasy), in violation of Article Uni- [hereinafter form Code Justice (2000). UCMJ], 912a She was discharge, to a sentenced bad-conduct con- forfeitures, days, finement total grade. reduction the lowest enlisted convening results, authority approved these Appeals and the Court of Criminal affirmed unpublished opinion. *2 315 occurred. See United to whether the abuse petition, granted review On (C.M.A. Harrison, 330, 332 v. 31 M.J. following States issues: 1990). THE MILITARY I. WHETHER ERRED THE SUB-
JUDGE TO reasons cases noted several Our OF AP- STANTIAL PREJUDICE testimony. restricting human lie detector HE ALLOWED PELLANT WHEN First, of truthfulness “exceeds determination AGENT LOZANIA TO SPECIAL scope expertise, for the of a witness’ A “HUMAN LIE DE- TESTIFY AS knowledge ... expert specialized FAILED lacks AND THEN TO TECTOR” victim [is] if a child-sexual-abuse ANY IN- determine PROVIDE CURATIVE Birdsall, telling THE MEM- v. TO the truth.” United States STRUCTIONS (C.A.A.F.1998)(citing BERS. 47 M.J. 410 United (C.M.A. Arruza, 234, 237 v. 26 States M.J. THE MILITARY II. WHETHER Petersen, 1988); 24 M.J. United States v. ERRED THE SUB- JUDGE TO (C.M.A.1987)(internal quotations 284 PREJUDICE OF AP- STANTIAL omitted)). Second, opinion such an violates WHEN, DE- PELLANT OVER OBJECTION, character M.R.E. the limits on evidence FENSE HE 608(a) as opinion it offers an AGREED TO GIVE THE “FRIED- because IF, specific DUR- a occa MANN INSTRUCTIONS” declarant’s truthfulness on sion, ING knowledge APPELLANT’S UNSWORN wit rather than STATEMENT, THAT SHE SAID reputation for ness as to the declarant’s Arruza, HER AD- COMMANDER COULD community. in the See truthfulness MINISTRATIVELY DISCHARGE Cameron, 237; v. 21 26 M.J. at United States HER OR MADE ANY SENTENCE (C.M.A.1985). Third, opin M.J. such 62 COMPARISONS. a testimony places “stamp ion of truthfulness Arruza, story,” 26 below, on a witness’ M.J. at 237 forth For the reasons set we conclude Azure, per- (quoting States 801 F.2d he United v. erred when (8th Cir.1986)), prosecution “usurps in a mitted the to introduce “human 336 manner testimony pro- jury’s weigh life lie detector” and failed evi exclusive function Birdsall, cautionary credibility.” vide Because this instructions. dence and determine findings aside, requires prohibition error to be set applies 47 The M.J. at 410. not not we need address the second issue. expert testimony, but also conclu by as a sions to truthfulness offered nonex
I. BACKGROUND Robbins, pert. M.J. See United States v. 52 (C.A.A.F.2000). A. LIE If a witness offers “HUMAN DETECTOR” testimony, military TESTIMONY human lie detector judge cautionary prompt instruc must Under Rule Evidence tions to the members ensure do M.R.E.], party may a [hereinafter introduce improper make use of such See opinion regarding general evidence char Robbins, Whitney, 55 M.J. 415-16. person of a The acter for truthfulness. au Cf. (finding prejudice atM.J. because thority evidence, opinion to introduce such trial was rather than mem however, lie does not extend to “human de bers). is, an as to tector” —that person making was truthful whether specific regarding fact at issue in statement B. AT APPELLANT’S TESTIMONY Whitney, case. See United States TRIAL (C.A.A.F.2001); Whitted, present The case concerns the testi 11 F.3d 785-86 Cir. (SA) 1993). mony Agent Special Maureen Loza In child sexual abuse Special Investigations nía of subject on the the Office example, expert an child (OSI) interrogation an testify permitted abuse is illegal during investigation drug truth use. alleged telling victim is not an into is or interrogation topic from trial coun- first broached trial counsel. sel, testimony provided opin- During statement veracity ion as to the denial: indicated that the evidence would show that telling decided she truth. “We wasn’t and Tra- SA Lozania *3 She wasn’t honest with us and we Reese, policeman, security vis an Air Force decided that we to build needed some themes Appellant initially drugs, using denied and help hap- her and to talk about what had confessed. Defense counsel’s pened.” sought statement to raise doubt that Lozania, According questioning SA confessed, actually suggesting had in- Appellant began cry. resumed and Even- agents perceived mistakenly stead that tually, Appellant responded affirmatively to a upon statements based erroneous ecstasy toas whether she had used preconceptions: up finger, in Florida. She held one which SA ... alleged [Y]ou will see confes- oral interpreted Lozania statement that she Kasper. Presumably, sion Airman two used ecstasy had while in once Jacksonville. agents testify they thought OSI will that Trial counsel then asked: “At the she time they say that Kasper heard Airman that you ecstasy put that used told she had and ecstasy. she used You will hear that also up finger cry, her and started to was there agents kept push- those pushing OSI and anything way about what said or the she she
ing Kasper pushing, and after Airman de- you behaved that believe at time made that denied, they nied and denied and and be- falsely confessing you?” that SA they lieved her heard confess to one-time responded: use ecstasy. they When that Lozania “No.” started interrogation they of Airman ... cross-examination, defense On counsel already had in their minds suspected her sought reliability undermine of SA ecstasy having they’d already used interpretation by empha- of events preconceived they had a notion sizing Appellant’s during repeated denials thought she had done. stages interrogation. the initial De- Defense counsel added that the members special fense counsel agent’s contrasted “[will see ... not] believable evidence that skeptical Appellant treatment of with their ecstasy,” Airman using admitted] apparent acceptance Airman Wells’ state- by asking, and concluded is the “[w]here ment. defense counsel’s supporting proof really that there was a con- question proceeded as to whether had testimony, fession?” At the outset of her assumption Appellant guilty, that SA trial counsel asked Lozania to describe body Lozania stated assess that “we training experience her and effort to in.an things language and if other the individual per- establish SA Lozania’s as a credentials being truthful or not.” When defense coun- well-qualified interrogations. son to conduct they sel asked whether had confronted Air- questions Trial counsel then asked a series of Wells, attempted respond man SA Lozania charges concerning against Appellant. by providing her view of credibil- SA Lozania testified OSI ity. interrupted Defense re- counsel with a investigation drug use, Wells, into Airman original quest question, that she answer Appellant’s boyfriend, stated that he had directed her so. to do ecstasy used visiting while Defense counsel then noted that Jacksonville, friends in Florida. Lozania developed regard- evidence SA Lozania had Reese, agent, Mr. another then interro- Appellant prior ing gated Appellant. initially they When con- Wells, statement of Airman asked Appellant, drugs fronted she denied regarded whether she Airman credi- Wells as visiting while Florida with Airman Wells. responded: SA Lozania “He indi- ble. Lozania, According they to SA then took a cated he was truthful” and that gather break to allow “to her thoughts” agents and the two left the room. sufficient. your Q. you inter- examination, continued
During counsel And when redirect your Kasper, you indicated view of Airman why she SA Lozanía believed asked truth, there, get the were goal with a was to responded She statement. Wells’ ever where a sub- your experience, Airman Wells times conclusion—that physiological individual, ject physical interview cleared all indicators “gave verbal you longer truthfulness,” believed adding turned out that her conclusion re- experience. offense were training guilty were flected OSI suspected question by asking, of? began counsel “Now, Kasper, what how ver- Yes, A. sir. Before witness re- [.]” bal indicators — Q. obviously, were times when And there objected and re- sponded, defense you them incriminates *4 proceeding presence quested a outside the they may firmly more that believe even 39(a), Article the members under U.S.C. you’re the that have offense committed 839(a) (2000). 39(a) session, § In the Article investigating, that is correct? objected defense counsel that trial counsel’s A. Correct. required question Lozanía to would completed parties After for both impermissible counsel human lie detector provide Lozanía, military the questioning of SA testimony. that the Trial counsel countered judge the members that could sub- serve told question did not ask SA Lozanía to any questions might that detector, mit to him designed simply he human was submitted have for the witness. A member defense on to address an issue raised why following question: “[W]hat were the Mr. cross-examination — you you observed to make believe Wells indicators Reese not confronted Airman be- lying (your Appel- [Appellant] was observations continuing their fore Reese).” discussing The military judge ques- with lant. The ruled that the —before 39(a) military originally judge convened an Article ses- impermissible. tion as asked was question. however, propriety of the objection, permit- he sion consider defense Over argued question that the prosecution rephrase question ted the permissible rephrased if to ask SA Lozanía time to SA Lozanía as follows: “At the that specific physical indicators she ob- you and she ini- what interviewed served, [drugs], you referencing her belief that tially why denied it that without is Appellant lying. re- go Defense counsel and interview Airman Wells and did sponded: confront him?” When trial counsel re- before sumed redirect examination asked, already question’s been [T]he
members, following exchange ensued: you make.” far “What did As observations Wells, questions as Airman Lozanía, Agent [the counsel] TC: Obviously, quickly. came out too answers questioning during your jumped we on Airman that’s when Kasper why you with Airman did not end objection. They’re trying in with an go the interview and confront Airman detector, make into a human lie First, is, my question Wells. is that a determination, obviously, that’s their you interviewing technique, common ours. stop and an initial would interview after guilt?
denial question judge ruled that asked. the members could not be When No, WIT: sir. recalled, were advised Q. why And is that? them as follows: person any If the shows indicators of A. also would not [A]s written untruthful, just then continue effect, appropriate question. be an interview. you’re asking the witness to become Q. And that was case in Kas- human and the witness cannot lie detector per’s interview? testify human from the as a lie detector Yes, stand---- The determination A. sir.
happened,
solely
Appeals
that’s
a matter within the
The Court of
Criminal
offered
panel
you following
discretion of the
after
affirming
reasons for
the conviction
have heard
all
evidence that
admissi-
claim of error:
you’ve gotten closing
ble and after
instrue-
judge
that the
claims
trial
tions[J
plain
committed
error when he failed to
stop [SA
“human lie detector”
Lozania’s]
During
testi-
We find
such error. To
fied that
while she
Airman Wells were
error,
plain
appellant
establish
must
Jacksonville,
purchased
pills
ecstasy
he
dur-
demonstrate that the
committed
ing gathering
at his
friend’s home
error;
plain,
the error
or
is clear
placed
pills in
one of the
her hand.
obvious;
materially preju-
and the error
accepted
pill
stated
because
appellant.
diced
substantial
present,
persons
did not want
other
Powell,
United States v.
buying ecstasy
who
pills,
were also
to think
(1998);
59(a), UCMJ,
see Article
that she was an undercover law enforcement
859(a).
agent. However, approximately
min-
fifteen
[SA Lozania] testified about interview
later,
utes
Appellant went to
restroom
techniques
questioning
used in
appel-
pill]
and “threw [the
down the
without
toilet”
lant and Amn Wells once she became con-
alerting anyone to her
Regarding
actions.
*5
(the
appellant
vinced
and Amn
alleged
her
confession to SA Lozania and Mr.
Wells)
telling
were not
the truth. She
Reese, Appellant
repeated-
testified that she
techniques
mentioned
first
these
on direct
ly
using ecstasy.
denied ever
She further
examination and trial defense counsel did
up
finger
stated that
held
to
she
her
indicate
object.
object
not
That failure to
forfeit-
only
that she had
to
been
Jacksonville on
one
appellate
part
ed
of that
[SA
review
of
occasion,
ecstasy
had used
while
testimony
plain
Lozania’s]
absent
error.
there.
Powell,
plain
See
after
defense counsel
III. DISCUSSION
techniques
on
cross-examina-
thereby opened
tion and
the door
military judge’s
We review a
decision
Therefore,
prosecution’s rebuttal.
the trial
admit evidence for an abuse
discretion.
judge did not
abuse
discretion
allow-
Johnson,
United
ing
rebuttal
[SA Lozania’s]
(C.A.A.F.1997). The issue of
whether
Ayala,
We First, testimony. See of human lie detector proach suggested by the court below. filter 410; Powell, Birdsall, at testimony 49 M.J. opinion 47 M.J. at impermissible use relies on initiated the extent that dissent truthfulness was 464. To involving may be At the evidence that prosecution, not the defense. cases case-in-chief, after prosecution’s challenge outset of to rebut a defense used confession, qualifications as an estabhshing Lozania’s at SA of a 58 M.J. voluntariness experienced interrogator, trial counsel elicit- inapposite here cases are because those opinions ed Lozanía on challenged two from SA of the con the existence ecstasy, regarding use fession, truthfulness lant’s not voluntariness. issue in the case. central this Although the erroneous admission testified on direct examination that testimony on direct examination is sufficient using
was not
truthful
she denied
reversal,
require
also
concerned
are
ecstasy;
and that wh'en
confessed
military judge
the manner in which the
with
ecstasy,
nothing
indi-
there was
testimony
subsequent
addressed
that the
was false.
cate
confession
credibility. Even if we were
about witness
painted by
picture
the trial counsel
ignore
prosecution’s
affirmative use
prosecution’s
outset of
case
testimony
view the
human he detector
was clear: á trained
subsequent
the door to
defense as
investigator,
interrogated many
who had
sus-
rebuttal,
should have rec
pects,
concluding
applied
expertise
repeated
introduction of
ognized
suspect
lying when
denied
that this
opinion testimony
the truthfulness
drug
telling
and was
the truth when she
use
ultimate
in the case
witnesses
admitted to one-time
Such “human lie
use.
provide
him to
required
*6
testimony
detector”
is inadmissible. See
instructions. SA Lozania’s testimo
detailed
Moreover, in
Whitney,
ment’s direct and redireet-examination *7 (SA) Special Agent Maureen Lozanía was IV. CONCLUSION proper allegation rebuttal of the defense’s The decision of the United Air States confession, prominent a coerced both Appeals Court of Force Criminal is reversed. opening statement cross-examination finding guilty and sentence are set Additionally, opin- of SA Lozanía. the lead aside. The record of is trial returned to the ion prevailing stands in contrast to stark Judge Advocate of the Air General Force. A practice weight legal authority. and rehearing 67(e), may be ordered. Art. reasons, respectfully For these I dissent. UCMJ, 867(e) (2000). THE OPENING AND STATEMENT GIERKE, result): Judge (concurring in the DIRECT-EXAMINATION OF view, my In of much admission SA LOZANIA (SA) Special Agent Maureen Lozania’s testi- statement, opening In out- its trial counsel mony credibility on the issue was harmless sequence lined the of events that occurred error because it amounted to a statement of interrogation, establish that investigators obvious: criminal will con- interrogation in a resulted confession. asking questions they they tinue until think counsel noted: a truthful complete statement from in, suspect. However, agree major- They bring I talk a few her to her for ity just sort regarding rapport, minutes to of build beyond Uni- per- required went do so
321 Justice, preconceived had a notion ready her Military advise form Code thought had done. again, as rights. 31 She of her Article suspects, advised she has with all added.) epit- language vivid (Emphasis This silent, right to right she has the to remain counsel’s the tone the defense omizes lawyer, investiga- is under request a short, opening opening statement. a violation of the Uniform Code tion for suggested nature coercive statement Justice, Kasper tells invalidated, and Airman in effect [sic], my agents “I understand nonexistent, OSI confession. rendered willing rights. my rights. I’m I waive in its creating a of coercion By theme you.” Agent questions talk to statement, opened Kasper initially Kasper. Airman Airman the issue. Government rebuttal on door for ecstasy. Agent [sic] the use of denies Franklin, 311, States v. 35 See United Reese, point, ques- over after a takes Chavez, (C.M.A.1992); v. United States 317 tioning. He to her about various talks (10th Cir.2000); 946, United F.3d 952 229 including put trying to things, (9th 1109, Croft, 1120 v. 124 F.3d States typical investiga- respect a case of OSI Moore, Cir.1997); v. 98 F.3d United States tions/interrogations, the fact could be this (8th Cir.1996); 347, v. States 350 United you People could of a (11th lot worse. accuse Cir.1995); Knowles, 1146, 66 1161 F.3d here, every using day. or How Breitkreutz, 214, bad crime 977 F.2d United States you using are it? And as the more (6th much Cir.1992); States v. McAn- 220 United Agent experienced investigator, Cir.1990); Reese derson, 934, [sic] F.2d see drugs, gets to admit McElhaney, Trial Note- generally James W. ed.1994). specifically, Agent (3d book, [sic] Reese “Opening the Door” Agent you, Moreover, by raising possibility Lozanía will tell Airman Kas- of a time,” per confession, challenged “I used said it one raises coerced finger, crying. pre- finger, “prove her index and starts the Government to least ponderance of that the confes- the evidence suggestion of coercion in trial There was Twomey, voluntary.” Lego v. sion was opening statement. Trial counsel counsel’s 30 L.Ed.2d U.S. S.Ct. simply walked the the in- (1972). Indeed, challenge this reflected successfully terrogation process, which re- object “defendant’s constitutional sulted in a confession. have a fair the use of confession by informing responded Defense hearing and a determination on reliable the members that would see al- “[a]n Denno, voluntariness[.]” Jackson v. leged Kasper,” oral confession 376-77, 84 S.Ct. 378 U.S. highlighted which counsel then one of (1964). also L.Ed.2d 908 See two items which the Government’s Ellis, 57 M.J. 390-91 added.) (Emphasis case rested. Counsel (C.A.A.F.2002)(Effron, J., dissenting). In so *8 strikingly then noted: techniques doing, the defense rendered the game elicit confession fair used to agents You also hear that those will OSI techniques such inquiry, Government as push- kept pushing pushing and and [sic] “tendency exis- have a to make the would ing, after Airman denied and de- probable less tence of ... more or [coercion] denied, they and and believed that nied probable it the evi- than would be without they heard her to a one-time use of confess 401. Rule of Evidence dence.” See ecstasy. interro- When started that gation point, coercion, Airman at of opened the door to address With one, question bearing prove Appel- before even asked burden chute, they voluntary, minds out had their lant’s confession was the Govern- of by ec- already suspected having properly probed techniques used used ment They already Specifi- stasy. interviewed to elicit the confession. SA Lozanía cally, about suspect one other in the trial counsel asked SA Lozanía least a during a break with co- They’d already they’d al- his conversation Wells. decided— 322
interviewer, Having already Mr. Travis SA Lozanía a Reese. rendered the issue of replied game argument that he Mr. “decided that Reese coerced confession fair [Appellant] statement, telling through truth. opening wasn’t She its the defense opened widely wasn’t honest with us and decided the door to even rebuttal more that we needed to build some themes and its extensive cross-examination help happened.” her talk about. what had Lozanía. Vasquez, See United States v. (2d building 79, Cir.2001); then asked if themes 267 F.3d 85 United States (9th 144, a Special Investiga- Segall, Cir.1987); common Office of 833 F.2d (OSI) tions interview which technique, Goudy, United States v. 792 F.2d Thus, responded Cir.1986); Barrentine, Lozanía affirmatively. United States v. portion (5th Cir.1979); examina- Government’s direct 591 F.2d Walker, Appellant alleges (3d tion of SA 421 F.2d Cir.1970). improper was, “human lie Accordingly, detector” evidence its redirect-exami- contrast, by proper nation, effort Govern- the Government asked SA Lozanía allegation ment to refute the defense’s of whether he believed Airman Wells’s state- Turner, truthful, coercion. United States v. 39 ment was asked —after Cf. (C.M.A.1994)(noting 39(a), that be- session under Article Uniform Code Justice, 839(a) (2000)— “nothing single Military cause there was than a more passing comment counsel’s if prompted indicators of untruthfulness statement,” opened agents the door to continue the interview with comment). government for a despite guilt, denial of responded
which SA Lozanía
affirmatively.
line of questioning
properly target-
This
AND
CROSS-EXAMINATION
implication
ed to refute the
of coercion be-
REDIRECT-EXAMINATION
hind
defense’s cross-examination
into
OF SA LOZANIA
agents’
stop
interrogation.
failure to
their
Reiterating the theme of
devel-
coercion
Furthermore,
questions properly
served
oped
opening statement,
in its
to meet the
“prove
Government’s burden to
regarding
then cross-examined SA Lozanía
preponderance
at least
of the evidence
validity
techniques.
of OSI interview
voluntary.”
confession was
Twom-
Specifically,
inquired
defense counsel
ey,