2016 (October Term)
United States v. Lopez, 76 M.J. 151 (human lie detector testimony is an opinion as to whether a person was truthful in making a specific statement regarding a fact at issue in the case; such testimony is inadmissible at a court-martial because it is a fundamental premise of our criminal trial system that the factfinder is the lie detector and determines the weight and credibility of witness testimony).
(even without an express statement to the effect that a victim is truthful or lying, testimony from a witness may still be excluded as the functional equivalent of human lie detector testimony where the substance of the testimony leads the court members to infer that the witness believes the victim is truthful or deceitful with respect to an issue at trial).
(in prosecution of appellant for allegedly committing indecent liberties with a child by introducing his stepson to pornography, the military judge abused his discretion in admitting testimony from appellant’s wife that amounted to human lie detector testimony, where she recounted that during a conversation between her son and husband about the alleged offense, appellant had stated that if he had done anything wrong, he was sorry, a statement that his wife interpreted as being a loose admission of guilt, and where she in effect testified that her son was telling the truth and her husband was not).
(lay opinion testimony is only admissible if (1) the opinion is rationally based on the witness’s perception, and (2) the opinion is helpful either to an understanding of the testimony of the witness on the stand or to the determination of a fact in issue; when facially coherent communications are at issue, no lay interpretation will be helpful or admissible, unless the proponent establishes a foundation that calls into question the apparent coherence of the conversation so that it no longer seems clear, coherent, or legitimate).
(in prosecution of appellant for allegedly committing indecent liberties with a child by introducing his stepson to pornography, the erroneous admission of what was in effect human lie detector testimony by appellant’s wife was materially prejudicial where the error may well have transformed appellant’s noncommittal apology into a material admission of guilt and a validation of the stepson’s story, as interpreted by the wife).
2015 (September Term)
United States v. Martin, 75 M.J. 321 (human lie detector evidence is elicited when a witness provides an opinion as to whether a person was truthful in making a specific statement regarding a fact at issue in the case; there is no litmus test for determining whether a witness has offered human lie detector evidence).
(if a witness does not expressly state that he believes a person is truthful, a court examines the testimony to determine if it is the functional equivalent of human lie detector testimony; testimony is the functional equivalent of human lie detector testimony when it invades the unique province of the court members to determine the credibility of witnesses, and the substance of the testimony leads the members to infer that the witness believes the victim is truthful or deceitful with respect to an issue at trial).
(human lie detector evidence is inadmissible at a court-martial because it is a fundamental premise of our criminal trial system that the panel is the lie detector and determines the weight and credibility of witness testimony).
(in this case, both trial defense counsel and trial counsel elicited testimony from the victim’s husband about whether he believed his wife’s account of an alleged sexual encounter with appellant; however, the husband’s testimony on direct examination by the trial counsel did not rise to the level of actual human like detector testimony, nor did it constitute the functional equivalent of human lie detector testimony; although trial counsel did elicit human lie detector testimony on redirect examination, it was the trial defense counsel who invited the error when, in the course of conducting cross-examination, he was the first party to elicit human lie detector testimony from the witness on the same evidentiary point; and where trial defense counsel first elicits human lie detector evidence on cross-examination, the invited error doctrine precludes appellant from complaining about the government’s elicitation of this type of evidence on redirect).
2014 (September Term)
United States v. Norman, 74 M.J. 144 (MRE 701 governs the admissibility of opinion testimony by a lay witness; under MRE 701 if the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences that are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and (c) not based in scientific, technical, or other specialized knowledge within the scope of Rule 702).
(MRE 701 establishes a two-part test for admissibility of lay opinion: (1) the opinion must be rationally based on the witness’s perception; and (2) the opinion must be helpful to the determination of a fact in issue; it is generally held that opinion testimony is not helpful where it does no more than instruct the factfinder as to what result it should reach).
(in this case, the military judge abused his discretion in admitting under MRE 701 the testimony of a Marine MP who responded to appellant’s 911 call and testified that in his opinion, any Marine parent who endangers the life of a child by culpable negligence would bring discredit upon the Marine Corps; the MP’s lay opinion testimony essentially restated the terminal element; he offered no reasoning or particular facts as to his understanding of the concept of service discrediting conduct or how he understood this concept as applied to appellant’s actions; it was not clear why the testimony of a Marine MP, without more, would be helpful regarding a question of parenting practice, and whether such practice was service discrediting; although the MP’s testimony regarding his perceptions of the Marine Corps may have established a rational basis for his opinion, the testimony did not establish sufficient details to aid the factfinder in evaluating the service discrediting element; the witness met the first requirement in MRE 701 – he had a rational basis for his perceptions, but failed to meet the second requirement – his testimony was not helpful to the determination of a fact in issue for the factfinder).
(under MRE 704, a witness may offer an opinion on an ultimate issue).
2013 (September Term)
United States v. Knapp, 73 M.J. 33 (so-called human lie detector testimony, which is an opinion as to whether a person was truthful in making a specific statement regarding a fact at issue in the case, is inadmissible).
(where an AFSOI agent testified that, using his specialized training, he was able to determine from specific nonverbal clues that appellant was being deceptive when he provided an innocent account of the events in question, this testimony was impermissible human lie detector testimony and improperly usurped the members’ role in determining witness credibility).
2010 (September Term)
United States v. Eslinger, 70 M.J. 193 (the Military Rules of Evidence are applicable to sentencing and provide procedural safeguards to ensure the reliability of evidence admitted during sentencing; thus, a lay witness must always have a proper foundation to offer an opinion).
(MRE 701(a) requires that lay witness opinions or inferences be limited to those that are rationally based on the perception of the witness; in similar fashion, MRE 602 provides that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter).
(lay opinions must be derived from direct observation and judgment).
United
States v. White, 69 M.J. 236 (in a
prosecution for signing a false official
document relating to the accused’s response about her criminal history
on an AF
Form 1540, Application for Clinical Privileges/Medical Staff
Appointment, the
military judge did not abuse his discretion in excluding as irrelevant
the lay
opinions of three witnesses as to the meaning of the criminal history
question,
specifically that these witnesses interpreted that question to refer
only to
convictions which occurred during the applicant’s practice history; in
order to
be relevant, the lay opinions must have some nexus to the accused’s
state of
mind when she completed the AF Form 1540; however, none of the
witnesses
discussed their interpretations of the criminal history question with
the
accused before she completed the form; without evidence that would have
established a nexus, their opinions were merely their own and had no
relation
to the accused’s state of mind or her intent when she completed the AF
1540).
United
States v. Mullins, 69 M.J. 113 (in a trial
involving the sexual assault of a
child, an expert may testify as to what symptoms are found among
children who
have suffered sexual abuse and whether the child-witness has exhibited
these
symptoms; however, an expert may not testify regarding the credibility
or
believability of a victim, or opine as to the guilt or innocence of an
accused).
2007
United States v. Roberson, 65 M.J. 43 (MRE 701 provides
that a lay witness may express an opinion based upon personal
observation where that opinion is relevant to a fact in issue and not
based upon specialized, scientific knowledge).
(so long as the opinion is
based upon personal observation and is relevant, a lay witness may
testify about another’s emotional state).
(military judge abused his
discretion in excluding the opinion of a witness concerning the
emotional effect that the co-actor’s statement that he was coming to
get his money from the accused by any means had upon the accused; the
evidence was admissible under MRE 701, as the opinion of the witness
was based on personal observation and was relevant to the accused’s
defense of duress based on his claim that his co-actor threatened him
with bodily harm if he did not participate in the crimes of larceny and
forgery, because it supported a conclusion that the accused was in fear
of his co-actor).
(the opinion testimony of a
witness that the accused’s co-actor was an aggressive-type person
likely to strong-arm people, offered in conjunction with his testimony
that the accused’s co-actor told him that the accused owed him money
and that he was willing to get his money by any necessary means, was
relevant as an opinion from which the factfinder could reasonably
conclude that the accused perceived his co-actor as a threat; this
relevance was not tied to his co-actor acting in accordance with that
characteristic, which would be prohibited under MRE 404(b); rather, it
went to the reasonableness of any fear the accused may have had in
connection to the duress defense, which was based on his claim that his
co-actor threatened him with bodily harm if he did not participate in
the crimes of larceny and forgery).
(human lie detector testimony
in which a witness offers an opinion as to whether a person was
truthful in making a specific statement regarding a fact at issue in a
case is inadmissible; neither a lay nor an expert witness has the
foundation or expertise to opine that an individual is or is not
telling the truth).
(three reasons support the
prohibition against experts testifying as human lie detectors; first,
determination of truthfulness exceeds the scope of a witness’s
expertise, for the expert lacks specialized knowledge to determine if a
child-sexual-abuse victim is telling the truth and therefore cannot
assist the trier of fact as required under MRE 702 before expert
testimony is permissible; second, such testimony violates the
limitations of MRE 608; and third, human lie detector testimony
encroaches into the exclusive province of the court members to
determine the credibility of witnesses).
2004
United
States v. Byrd, 60 MJ 4 (this case concerns whether
MRE 701
allows a lay witness to interpret what appellant meant when he wrote
certain
passages in letters to the witness; we agree with the well-established
federal
civilian rule that this kind of lay opinion testimony is, with certain
limited
exceptions, impermissible).
(MRE
701
establishes a two-part test for admissibility of lay
opinion: (1) the
opinion must be rationally based on the witness’s perception; and (2)
the
opinion must be helpful to the determination of a fact in issue).
(the
general
rule in federal civilian courts is that lay witnesses are normally not
permitted to testify about their subjective interpretations or
conclusions as
to what has been said; such lay interpretations are admissible only if
rationally based on perception of a witness and helpful either to an
understanding of the testimony of the witness on the stand or to the
determination of a fact in issue; for example, a lay witness may be
permitted
to interpret coded or code-like conversations; in order to allow lay
opinion
testimony interpreting a facially coherent conversation, the government
would
have to establish a foundation that called into question the apparent
coherence
of the conversation so that it no longer seemed clear, coherent, or
legitimate).
(this
Court
agrees with the general prohibition of lay opinion testimony
interpreting
facially coherent communications; where terms are capable of being
understood
by the layman, and where the jury is capable of interpreting the
language or
slang involved, lay witness opinion testimony is improper, as is the
lay
witness’s conclusion or interpretation of the conversation).
(for
a lay
opinion interpreting another person’s meaning to be admissible, the
proponent
must establish that the witness has some special basis for determining
the
speaker’s true meaning; once that foundation is laid, the witness may
clarify
conversations that are abbreviated, composed of unfinished sentences
and
punctuated with ambiguous references to events that were clear only to
the
conversation participants, or which include code or code-like language;
when
such permissible testimony is presented, the accuracy of those
perceptions is a
question for the members).
(a
witness’s
opinions concerning appellant’s meaning in passages in his letters that
were
facially coherent were inadmissible; a witness’s opinions concerning
appellant’s meaning when he wrote certain ambiguous statements were
also
inadmissible because they were unaccompanied by any particularized
demonstration that the witness had a basis for determining appellant’s
true
meaning; it was not enough to show that the witness was familiar with
appellant’s handwriting and had corresponded with him in the past; as
the
proponent of this testimony, the Government was required to demonstrate
that
the witness had some basis for knowing appellant’s intended meaning for
the
particular phrases that the witness purported to interpret; a witness’s
testimony providing background information concerning references in the
letters
to other events was admissible; and a witness’s testimony concerning
appellant’s remarks in earlier conversations was admissible as an
account of
admissions by a party opponent under MRE 801(d)(2)).
2003
United
States v. Kasper, 58 MJ 314 (the military judge
erred when
he permitted the prosecution to introduce "human life lie detector"
testimony and failed to provide cautionary instructions).
(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).
(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).
(the prohibition against human lie detector testimony applies not
only to
expert testimony, but also to conclusions as to truthfulness offered by
a
nonexpert).
(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).
(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).
2001
United
States v. Goldwire, 55 MJ 139 (to render opinion
or reputation
type testimony, it must be shown that the witness was a member of the
community
long enough to have become familiar with an individual’s reputation in
the
community, or that the witness knew the individual long enough to have
formed
an opinion as to his character).
(the unique nature of the military community does not justify a
finding that
a single lie would constitute an adequate basis for opinion testimony
regarding
a witness’s character for truthfulness).
(a first sergeant had an adequate foundation for an opinion on
appellant’s
truthfulness where: (1) the first sergeant was acquainted with the
appellant
through his role as first sergeant; (2) the first sergeant addressed
appellant’s involvement with underage drinking; (3) the first sergeant
saw
appellant numerous times; (4) the first sergeant was personally
involved with
appellant on at least two occasions, including disciplinary actions
against
appellant; and (5) as first sergeant, he investigated the incidents
involving
appellant).
United
States v. Catrett, 55 MJ 400 (the military judge
is
charged with deciding whether a party has established a sufficient
foundation
for admission of opinion evidence concerning a person’s character; the
military
judge has considerable discretion in this regard).
United
States v. Dimberio, 56 MJ 20 (defense proffer
showed that
although expert had not known a given individual long enough to form a
traditional opinion as to her character and had not heard about her
reputation
in the community, the expert could express an expert opinion about the
individual’s mental condition based upon his examination of the
individual).
2000
United
States v. Littlewood, 53 MJ 349 (lay opinion
testimony is
admissible at court-martial and is not objectionable simply because it
embraces
an ultimate issue to be decided by the trier of fact. See
MREs
701, 702, and 704).
(to be admissible, opinion testimony by law witnesses must, inter
alia,
be helpful within the meaning of MRE 701; such opinion testimony is not
helpful
where it does no more than instruct the factfinder as to what result it
should
reach).