U.S. v. Southwick, 53 M.J. 412

Core Criminal Law Subjects: Evidence: Polygraph

1. where defense did not object to evidence that informant had taken a polygraph examination as part of a background investigation prior to being used as an informant, the matter will be reviewed for plain error
2. although it was clear or obvious error to permit evidence of a polygraph examination taken by an informant, appellant did not carry his burden of establishing material prejudice where: (1) the polygraph was not presented as substantive proof; (2) there was no evidence of the subject matter of the polygraph; (3) there was no evidence of any responses given during the course of the polygraph; (4) there was no suggestion that the polygraph was used to measure the truthfulness of the informant’s reports to law enforcement regarding appellant’s misconduct; (5) the polygraph was not mentioned to bolster the informant’s testimony; and (6) it was the defense counsel who elicited the disclosure regarding the polygraph examination

Trial Stages: Pretrial: Pretrial Punishment

1. pretrial punishment is not waived by failure to raise the issue at trial unless there is an affirmative, fully developed waiver on the record
2. appellant’s tactical decision to present information about pretrial punishment to the sentencing authority and the convening authority rather than moving for appropriate relief under RCM 906 was tantamount to an affirmative waiver in this case, because appellant made an election between two available alternatives
3. where appellant made a tactical decision to present information about pretrial punishment to the sentencing authority and the convening authority rather than moving for appropriate relief under RCM 906, it was not plain error for the military judge not to grant, sua sponte, additional confinement credit for pretrial punishment

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where defense did not object to evidence that informant had taken a polygraph examination as part of a background investigation prior to being used as an informant, the matter will be reviewed for plain error
2. court will take notice of errors even though not raised at trial if the appellant demonstrates that there was error, that the error was clear or obvious, and that the error materially prejudiced appellant’s substantial rights
3. although it was clear or obvious error to permit evidence of a polygraph examination taken by an informant, appellant did not carry his burden of establishing material prejudice where: (1) the polygraph was not presented as substantive proof; (2) there was no evidence of the subject matter of the polygraph; (3) there was no evidence of any responses given during the course of the polygraph; (4) there was no suggestion that the polygraph was used to measure the truthfulness of the informant’s reports to law enforcement regarding appellant’s misconduct; (5) the polygraph was not mentioned to bolster the informant’s testimony; and (6) it was the defense counsel who elicited the disclosure regarding the polygraph examination
4. where appellant made a tactical decision to present information about pretrial punishment to the sentencing authority and the convening authority rather than moving for appropriate relief under RCM 906, it was not plain error for the military judge not to grant, sua sponte, additional confinement credit for pretrial punishment

Trial Stages: Appeals: Waiver

1. pretrial punishment is not waived by failure to raise the issue at trial unless there is an affirmative, fully developed waiver on the record
2. appellant’s tactical decision to present information about pretrial punishment to the sentencing authority and the convening authority rather than moving for appropriate relief under RCM 906 was tantamount to an affirmative waiver in this case, because appellant made an election between two available alternatives