U.S. v. Kasper, 58 M.J. 314

Core Criminal Law Subjects: Evidence: Instructions on

1. 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
2. regardless of whether there was a defense objection to the human lie detector evidence presented during the prosecution’s direct examination of the agent, the military judge was responsible for making sure such testimony was not admitted, and that the members were provided with appropriate cautionary instructions; the importance of prompt action by the military judge in the present case is underscored by the central role of the human lie detector testimony
3. even if CAAF were to ignore the prosecution’s affirmative use of human lie detector testimony and view the subsequent defense as opening the door to rebuttal, the military judge should have recognized that the repeated introduction of opinion testimony about the truthfulness of witnesses on the ultimate issue in the case required him to provide the members with detailed instructions; the brief comments by the military judge explaining to the members why he found a particular question to be inappropriate did not constitute an adequate substitute for proper guidance; the comments by the military judge told the members why they would not be provided with certain information, but it failed to guide them with specificity as to how they should and should not consider the human lie detector evidence that had been placed before them; under the circumstances of this case, the failure to provide such guidance constituted prejudicial plain error
4. although as a general matter instructions on limited use are provided upon request under MRE 105, the rule does not preclude a military judge from offering such instructions on his or her own motion, and failure to do so in an appropriate case will constitute plain error

Core Criminal Law Subjects: Evidence: Opinion Testimony

1. the military judge erred when he permitted the prosecution to introduce "human life lie detector" testimony and failed to provide cautionary instructions
2. under MRE 608, a party may introduce opinion evidence regarding the general character of a person for truthfulness; the authority to introduce such opinion evidence, however, does not extend to "human lie detector" testimony – that is, an opinion as to whether the person was truthful in making a specific statement regarding a fact at issue in the case
3. there are several reasons for restricting human lie detector testimony; first, determination of truthfulness exceeds the scope of a witness’s expertise; second, such an opinion violates the limits on character evidence in MRE 608(a) because it offers an opinion as to the declarant’s truthfulness on a specific occasion, rather than the knowledge of the witness as to the declarant’s reputation for truthfulness in the community; and third, such opinion testimony places a stamp of truthfulness on a witness’s story in a manner that usurps the jury’s exclusive function to weigh evidence and determine credibility
4. the prohibition against human lie detector testimony applies not only to expert testimony, but also to conclusions as to truthfulness offered by a nonexpert
5. the picture painted by the trial counsel at the outset of the prosecution’s case through a special agent’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; moreover, the human lie detector evidence was presented as a physiological conclusion
6. the prosecution introduced human lie detector testimony on the ultimate issue in the case – whether appellant was truthful as to the charge; in these circumstances, the error in permitting such evidence to be introduced was clear and it materially prejudiced the substantial right of appellant to have the members decide the ultimate issue decided without the members viewing appellant’s credibility through the filter of human lie detector testimony

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the issue of whether the members were properly instructed is a question of law, which CAAF reviews de novo
2. CAAF reviews a military judge’s decision to admit evidence for an abuse of discretion