U.S. v. Kohlbek, 78 M.J. 326

First Principles: Constitutional Matters: Right to Present a Defense

1. a rule permitting a per se ban on unreliable evidence in the military justice system is neither an arbitrary nor a disproportionate restriction on an accused’s Sixth Amendment right to present evidence in his defense

Military Justice Personnel: Military Judge: Discretion

1. military judges may exercise their discretion in deciding whether to admit evidence regarding the facts and circumstances surrounding a polygraph examination to explain the reason or motivation for a confession
2. a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect
3. in this case, the military judge abused his discretion in failing to admit evidence regarding the facts and circumstances surrounding a polygraph examination to explain the reason or motivation for the accused’s confession where the military judge operated under an erroneous view of MRE 707

Core Criminal Law Subjects: Evidence: Generally

1. a rule permitting a per se ban on unreliable evidence in the military justice system is neither an arbitrary nor a disproportionate restriction on an accused’s Sixth Amendment right to present evidence in his defense

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Generally

1. the prohibition in MRE 707 on any reference to the taking of a polygraph examination does not encompass evidence regarding the facts and circumstances of a polygraph examination procedure offered to explain the reason or motivation for a confession

Core Criminal Law Subjects: Evidence: Polygraph

1. MRE 707 provides that notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence; interpreting MRE 707 in line with ordinary rules of statutory construction and the rules of evidence generally recognized in the trial of criminal cases in the US district courts, the prohibition on any reference to the taking of a polygraph examination does not encompass evidence regarding the facts and circumstances of a polygraph examination procedure offered to explain the reason or motivation for a confession
2. the prohibition on any reference to the taking of a polygraph examination must be understood in the context of the entire rule; MRE 707 lists three categories of polygraph examination information that may not be admitted into evidence: (1) the results; (2) the polygraph examiner’s opinion; and (3) any reference to an offer to take, failure to take, or taking of a polygraph examination; the prohibition on evidence of the results of a polygraph examination is the clear target of this rule, and the remaining prohibitions are calibrated to exclude evidence that would permit panel members to infer, or otherwise draw conclusions about, the results of a polygraph examination; all these prohibitions are tied to the core concern that polygraph examinations are scientifically unreliable; evidence of the facts and circumstances of a polygraph examination procedure offered to explain the reason or motivation for a confession are in no way tied to the reliability of the test itself; thus, military judges may exercise their discretion in deciding whether to admit evidence regarding the facts and circumstances surrounding a polygraph examination to explain the reason or motivation for a confession

Trial Stages: Appeals: Harmless / Prejudicial Error

1. an appellate court reviews the prejudicial effect of an erroneous evidentiary ruling de novo
2. Article 59(a), UCMJ, provides that the finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused
3. for nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings
4. in conducting a prejudice analysis, an appellate court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
5. if excluding evidence was a constitutional error, the test for prejudice would be whether the error was harmless beyond a reasonable doubt
6. in this case, the military judge’s error in excluding evidence about the circumstances of the polygraph examination did not have a substantial influence on the findings where the government’s case was strong, with the victim providing detailed testimony and material evidence of appellant’s actions; the victim’s nearly contemporaneous reports of the incident to other individuals provided ample evidence that appellant acted with specific intent to gratify his sexual desires despite appellant’s assertion that he was too intoxicated to form the necessary specific intent; even assuming the trier of fact believed that the facts and circumstances of appellant’s polygraph examination explained the reasons for his confession, it would only call into question the reliability of his confession; it would not negate or otherwise disprove the remaining evidence supporting appellant’s specific intent; even under the higher beyond a reasonable doubt standard, there was no prejudice

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

1. for purposes of construing the MREs, it is a well established rule that an appellate court uses principles of statutory construction
2. an appellate court reviews questions of statutory construction de novo
3. where the language of an MRE is susceptible to only a single interpretation, an appellate court applies the rule as written; but where the language is susceptible to more than one interpretation, an appellate court can and may consider whether one interpretation or the other creates potential constitutional or other issues
4. whether a rule promulgated by the President is consistent with his authority under Article 36, UCMJ, is a question of statutory construction, which an appellate court reviews de novo
5. an appellate court reviews a military judge’s decision to exclude evidence is reviewed for an abuse of discretion; and a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect
6. an appellate court reviews the prejudicial effect of an erroneous evidentiary ruling de novo
7. Article 59(a), UCMJ, provides that the finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused
8. for nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
9. if excluding evidence was a constitutional error, the test for prejudice would be whether the error was harmless beyond a reasonable doubt

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. under the constitutional canon of statutory construction, statutes should be interpreted in a way that avoids placing their constitutionality in doubt
2. under the presumption of validity canon of statutory construction, an interpretation of a statute or rule that renders it valid is preferable to an interpretation that would invalidate the rule
3. under Article 36(a), UCMJ, the President may, so far as he considers practicable, prescribe regulations for courts-martial that apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with the UCMJ