U.S. v. Clark, 53 M.J. 280

Core Criminal Law Subjects: Evidence: Polygraph

1. military judge committed plain and obvious error by admitting a stipulation of fact into evidence during a providence inquiry where that stipulation noted that appellant agreed to take a polygraph test and that he failed that test. See Military Rule of Evidence 707

Core Criminal Law Subjects: Evidence: Stipulations

1. evidence that would be otherwise inadmissible under the Military Rules of Evidence may sometimes be admitted at trial through a stipulation, if the parties expressly agree, if there was no overreaching on the part of the Government in obtaining the agreement, and if the military judge finds no reason to reject the stipulation in the interest of justice

Trial Stages: Merits: Pretrial Agreements

1. insofar as a term in a pretrial agreement could be interpreted to require that polygraph evidence be placed in a stipulation of fact, the appropriate remedy would be to not enforce the impermissible terms and to strike the reference to the polygraph from the stipulation (see Military Rule of Evidence 707)

Trial Stages: Appeals: Preservation of Error / Plain Error

1. an appellate court may take notice of plain error even though not brought to the attention of the military judge, if the appellant demonstrates: (1) that there was an error; (2) that the error was plain, clear, or obvious; and (3) that the error materially prejudiced the substantial rights of the appellant
2. even though military judge committed plain and obvious error by admitting a stipulation of fact into evidence during a providence inquiry where that stipulation noted that appellant agreed to take a polygraph test and that he failed that test (Military Rule of Evidence 707), appellant was not prejudiced as a result of the erroneous admission of the polygraph evidence via the stipulation where there was no evidence that the military judge found it necessary to rely on the polygraph evidence in order to accept appellant’s guilty plea