The Court of Appeals for the Armed Forces recently examined the question of the admissability of human lie detector testimony. Human lie detector testimony happens when a witness is asked whether another witness is telling the truth. The testimony is inadmissible on a number of different levels - (1) it is the job of the jury to determine witness credibility and (2) human's are notoriously bad at telling whether people are telling the truth. United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014).
Despite the inadmissibility of human lie detector testimony, it is still a favorite line of questioning for young trial lawyers. Wouldn't it be great if the one witness that should believe the victim thinks he or she is lying. In this line of business, however, you have to be careful what you ask for. That played out perfectly in a Marine Corps case recently - US v. Martin.
In Martin, the accused was convicted of wrongful sexual contact. He received a BCD for an alleged sexual touching of the sleeping wife of a fellow Marine. The defense theory was that the alleged victim fabricated the story. The prosecutors called the alleged victim's husband to testify that he was sleeping next to his wife at the time of the alleged assault.
The question CAAF was deciding was basically whether defense counsel invited the human lie detector testimony. Here is what happened:
On direct examination, trial counsel asked the husband about the night of the party in question. to
Q. Now, after you fell asleep that night, do you have any recollection of touching your wife in a sexual manner?
A. No, sir.
Q. In your mind, is there any chance that you could’ve digitally penetrated or put your fingers inside your wife’s vagina?
A. No, sir.
Q. Why do you say that?
A. It’s never happened before. I have never woken up and just done something like that with my wife….
Q. And you said it has never happened before that. Has anything like that ever happened since that?
A. No, sir. ….
Q. When you originally talked to NCIS you told NCIS that you thought it possibly could have been you who had touched your wife?
Editorial: This is obviously a critical statement that defense counsel picked up on in the NCIS interview.
Q. Why did you say that?
A. I’m the kind of person that if it’s even remotely an option I think about it like that. I guess I’m, like, a by-the-numbers-type of person. So, I mean, my wife could have thought about, you know, maybe it could have been another night. But just the way she has been since then, then I know it wasn’t me. She wouldn’t be acting the way she does nowadays, like, if it would have been me. Even if it was something that she wasn’t expecting from me she wouldn’t be acting that way.
Editorial: On cross-examination, the defense counsel clearly wanted to elicit the fact that the husband - at one time - thought he could have possibly committed the digital penetration on his sleeping wife. The lawyer starts off the cross-examination well enough, but goes too far in asking the human lie detector question.
Q. When she initially told you, she didn’t give anything in detail, did she?
A. No, sir.
Q. And you initially thought that maybe she imagined it?
A. I just -- I was kind of in disbelief.
Q. You thought maybe she dreamed it?
A. Something like that, sir, yes.
Q. The story didn’t really make too much sense to you?
A. I just figured that if something like that would have happened then …. where was I in this? … [I]f something like that were to happen to me, sir, I would -- I would have stopped it or done something, like, instantly, sir. ….
Q. [A]t no point after [she told you about the assault,] … you never went and reported it to anyone, did you?
A. I honestly … [it’s] not like I didn’t believe her, sir. But it, kind of, it didn’t make too much sense to me….
Q. Okay. So you weren’t entirely convinced that this happened then?
A. No, sir. Q. And you told NCIS that?
A. Yes, sir.
Q. You thought that, hey, maybe … it happened[,] maybe [it] didn’t happen?
A. Yes, sir.
Trial counsel did not object to this questioning.
Editorial: There was probably a better way to conduct this line of questioning to elicit the information that the defense counsel really wanted before the jury:
1) The husband was in the bed at the time of the assault;
2) The husband did not personally see the alleged offense even though he was in the bed;
3) The wife did not make any sounds;
4) The wife did not try and wake her husband up;
5) The husband would have expected her to wake him up if she was being assaulted while he was in the bed with her;
6) The fact that the wife said nothing and did nothing led the husband to believe that he possibly could have committed the act.
STOP at that point. You got what you wanted - reasonable doubt that maybe the husband did it.
On redirecf examination by the prosecutor, the husband was asked:
Q. Now, you just told the defense counsel that you had your doubts?
A. Yes, sir.
Q. You do believe your wife, though, correct?
A. I do, sir.
Q. And she’s telling the truth?
A. She is, sir.
Q. And why do you think that?
A. The way … that it’s affected her, the way that she’s changed, the way that it’s affected our marriage -- the way that it’s negatively impacted us just as a family -- we have two kids, we have three dogs, and she’s just depressed. And I understand that a mother is, obviously, is stressed out from all that, especially with me deploying again. But even on good days, she’ll just snap sometimes. And just the way that it’s affected her, something as big as it had on her wouldn’t have happened over a small situation, sir.
Editorial: Military defense counsel should have conducted a re-cross-examination about the impact.
This was a tough lesson for defense counsel...but it highlights a couple of important points:
1) Never call or examine a witness unless you have to elicit the information to win the case;
2) Never ask a question unless you know the old answer and the current answer. The exception to that rule is when you don't care what the answer is;
3) When you get the information you need, sit down; and,
4) If the prosecutor gets into victim impact testimony during the merits portion of the trial, either object or have a re-cross ready.