                         UNITED STATES, Appellee

                                         v.

             Michael L. KNAPP II, Airman First Class
                    U.S. Air Force, Appellant

                                  No. 13-0512
                           Crim. App. No. 37718

       United States Court of Appeals for the Armed Forces

                        Argued November 18, 2013

                        Decided January 15, 2014

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and OHLSON, JJ., joined. BAKER, C.J., filed a separate
dissenting opinion, in which RYAN, J., joined.


                                     Counsel


For Appellant: Captain Isaac C. Kennan (argued); Captain
Nicholas D. Carter (on brief).


For Appellee: Captain Thomas J. Alford (argued); Colonel Don M.
Christensen and Gerald R. Bruce, Esq. (on brief).


Military Judge:    Michael E. Savage




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Knapp, No. 13-0512/AF


     Judge STUCKY delivered the opinion of the Court.

     It is the “exclusive province of the court members to

determine the credibility of witnesses.”     United States v.

Brooks, 64 M.J. 325, 328 n.3 (C.A.A.F. 2007).        Here, an agent

from the Air Force Office of Special Investigations (AFOSI)

testified that, using his specialized training, he was able to

determine that Appellant was being deceptive when he provided an

innocent account of the events in question.        We granted review

to decide whether this testimony improperly usurped the members’

role in determining witness credibility and, if so, whether it

prejudiced Appellant.    We hold that the agent’s testimony was

impermissible “human lie detector” testimony and, that under the

circumstances of this case, it materially prejudiced Appellant’s

defense.

                        I.   Posture of the Case

     Contrary to his pleas, a panel of members sitting as a

general court-martial convicted Appellant of aggravated sexual

assault in violation of Article 120, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 920 (2006).     He was sentenced to a

dishonorable discharge, confinement for three years, forfeiture

of all pay and allowances, reduction to the grade of E-1, and a

reprimand.   The convening authority approved, and the United

States Air Force Court of Criminal Appeals affirmed the

conviction and sentence, finding that, while admission of the

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testimony was error, no material prejudice to Appellant resulted

from the testimony.    United States v. Knapp, No. ACM 37718, 2013

CCA LEXIS 243, 2013 WL 1319505 (A.F. Ct. Crim. App. Mar. 20,

2013) (unpublished).

                           II.   Background

     Appellant was convicted of having sexual intercourse with

Airman First Class (A1C) ES early on the morning of December 17,

2009, when she was too drunk to be conscious or to consent.      On

the afternoon of December 17, Special Agent (SA) Peachey and

another AFOSI agent questioned Appellant for several hours about

the incident.   Appellant repeatedly told the AFOSI agents that

A1C ES had at first consented to a sexual encounter, but partway

through, she lost consciousness, so he immediately stopped

contact with her.   By the end of the multi-hour interview,

though, Appellant admitted that A1C ES had been unconscious and

unable to consent from the start of the encounter.   Appellant

signed and swore to a statement to this effect.

     In his opening statement, the defense counsel conceded that

Appellant had sex with A1C ES and argued that the only issue was

her consent.    He asserted that a witness would “corroborate”

that A1C ES was awake and consented to the sex.   He argued that

Appellant confessed to the AFOSI only after he had denied any

wrongdoing more than seventeen times but eventually broke due to

the prolonged interrogation.

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     SA Peachey testified at trial on direct, cross-examination,

and redirect that Appellant gave specific nonverbal cues

indicating deception during the part of questioning when he

maintained A1C ES consented to sexual activity.      First, trial

counsel asked about Appellant’s “nonverbal clues” on direct.        SA

Peachey replied that agents are “trained to pick up on nonverbal

discrepancies . . . . Early on in the interview the accused

would not make eye contact with me when we were talking about

the sexual intercourse portion.”       SA Peachey then explained:

     That is indicating to me that there is some form of
     deception going on. Prior to the intercourse, the
     accused was very detailed, very detail oriented, would
     look me in the eye, talk to me, and as soon as we got
     to the intercourse he would look away, look at the
     wall, look at the floor, not look at [the agents], and
     then immediately after the sexual intercourse
     timeframe he would kind of come back to us and be,
     once again, extremely detailed . . . [l]ater on we had
     to ask him open-ended questions to try to get the
     truth out from him.

The defense did not object to this testimony.

     During cross-examination, defense counsel asked why the

interview did not end when Appellant repeatedly said A1C ES was

awake and willing when they began to have sexual intercourse.

SA Peachey replied, “Like I had stated earlier, sir, I’m trained

on picking up nonverbal cues during interviews . . . and the

accused was giving off several nonverbal cues which made us

believe that we needed to dig a little deeper.”      Defense counsel

then asked, “And one of the nonverbal cues is he would not look

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at you when it came to him talking about the sex, correct?”      SA

Peachey answered, “Correct.”   Again, defense counsel did not

object.

     On redirect, trial counsel asked about nonverbal cues SA

Peachey saw on Appellant’s face.       In response, SA Peachey

testified that “large red sun blotches” would appear on

Appellant’s face when he spoke about the “actual incident.”      At

this point, defense counsel objected on human lie detector

grounds.   After getting the trial counsel to agree not to “draw

an inference from those responses,” the military judge overruled

the objection.

     During the Government’s case-in-chief, trial counsel played

a ten-minute clip of Appellant’s questioning and confession from

the night of December 17, 2009.    During the defense case,

defense counsel played a one-hundred-minute recording of the

interrogation, including this clip.

     Trial counsel did not mention the nonverbal cues during

closing argument.   Before deliberations, the military judge gave

general instructions on the members’ duty to determine witness

credibility, false exculpatory statements, and coerced

confessions.   The general credibility instruction given was:

     The credibility of witnesses. You have the duty to
     determine the believability of the witnesses. In
     performing this duty you must consider each witness’
     intelligence, ability to observe and accurately
     remember, sincerity and conduct in court, friendships

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     and prejudices. Consider also the extent to which
     each witness is either supported or contradicted by
     other evidence; the relationship each witness may have
     with either side; and how each witness might be
     affected by the verdict. In weighing discrepancies
     between witnesses, you should consider whether they
     resulted from an innocent mistake or a deliberate lie.
     Taking all these matters into account, you should then
     consider the probability of each witness’ testimony
     and the inclination of the witness to tell the truth.
     The believability of each witness’ testimony should be
     your guide in evaluating the testimony, not the number
     of witnesses called. These rules apply equally to the
     testimony given by the accused.

The military judge did not give a “human lie detector”

instruction or otherwise specifically address SA Peachey’s

testimony.

                          III.   Discussion

     “[T]his [C]ourt has been resolute in rejecting the

admissibility of so-called human lie detector testimony, which

we have described as:   ‘an opinion as to whether the person was

truthful in making a specific statement regarding a fact at

issue in the case.’”    Brooks, 64 M.J. at 328 (quoting United

States v. Kasper, 58 M.J. 314, 315 (C.A.A.F. 2003)).     “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.”   Kasper, 58

M.J. at 315.

     “Where an appellant has not preserved an objection to

evidence by making a timely objection, that error will be


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forfeited in the absence of plain error.”      Brooks, 64 M.J. at

328 (citing Military Rule of Evidence 103(d)); accord United

States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010).     “A timely

and specific objection is required so that the court is notified

of a possible error, and so has an opportunity to correct the

error and obviate the need for appeal.”    1 Stephen A. Saltzburg

et al., Federal Rules of Evidence Manual § 103.02[1] (10th ed.

2011).    To be timely, an objection must normally be made before

the answer is given, although some federal courts have permitted

objections or motions to strike immediately after the answer.

Id. at § 103.02[8] n.41 (citing, as an example, United States v.

Spriggs, 102 F.3d 1245 (D.C. Cir. 1996)).

     Appellant failed to timely object to SA Peachey’s human lie

detector testimony on either direct or cross-examination.

Therefore, we review for plain error.    Under this Court’s plain

error jurisprudence, Appellant has the burden of establishing

(1) error that is (2) clear or obvious and (3) results in

material prejudice to his substantial rights.     Brooks, 64 M.J.

at 328.

                         A.   There is error

     The authority to introduce character evidence under

Military Rule of Evidence 608(a) does not extend to human lie

detector testimony.   Kasper, 58 M.J. at 315.     SA Peachy

testified that he had been specifically trained to detect

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nonverbal clues that a suspect was being deceptive and that,

using this training, he determined that Appellant’s claims that

the sexual intercourse with A1C ES was consensual were

deceptive.    These facts echo those of Kasper, in which another

AFOSI agent testified that, “‘we assess through body language

and other things if the individual is being truthful or not.’”

Id. at 316.    There we appropriately concluded:

     The picture painted by the trial counsel at the outset
     of the prosecution’s case through SA Lozania’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.

Id. at 319.

     The Government argues that SA Peachey had a lawful reason

to testify; specifically, to rebut Appellant’s opening statement

that the confession was the result of a prolonged interrogation

that had broken Appellant’s will to resist by explaining why he

continued the interview despite Appellant’s initial exculpatory

statements.   The Government can certainly rebut a defense

counsel’s argument, but it cannot do so by usurping the role of

the jury in determining witness credibility.   See id. at 315.

     Under these circumstances, it would have been permissible

for SA Peachey to describe Appellant’s physical reaction to the

interrogation questions.   See Salinas v. Texas, 133 S. Ct. 2174,


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2178 (2013) (plurality opinion) (permitting prosecutor to use an

accused’s physical reaction to questioning as evidence of guilt

when the accused failed to invoke his right to remain silent).

It also would have been permissible for SA Peachey to explain

that this reaction caused him to continue questioning Appellant.

But SA Peachey went too far by declaring that he had been

trained to divine a suspect’s credibility from his physical

reactions to the questioning.     This testimony, suggesting that

SA Peachey’s evaluation of Appellant’s denial of wrongdoing was

based on his expertise in determining credibility, impermissibly

“‘usurp[ed] the [members’] exclusive function to weigh evidence

and determine credibility.’”     Kasper, 58 M.J. at 315 (quoting

United States v. Birdsall, 47 M.J. 404, 410 (C.A.A.F. 1998)).

                B.   The error was clear or obvious

     In determining whether the error was clear or obvious, we

look to law at the time of the appeal.     Mullins, 69 M.J. at 116;

see also Henderson v. United States, 133 S. Ct. 1121, 1127

(2013).   Our condemnation of human lie detector testimony easily

predates Appellant’s trial.     See, e.g., United States v.

Petersen, 24 M.J. 283, 284–85 (C.M.A. 1987).     This error was

clear or obvious.    See id.

                     C.   The error is prejudicial

     An obvious error materially prejudices the substantial

rights of the accused when it has “an unfair prejudicial impact

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on the [court members’] deliberations.”   United States v.

Powell, 49 M.J. 460, 463 (C.A.A.F. 1998) (quoting United States

v. Fisher, 21 M.J. 327, 328 (1986)) (internal quotation marks

omitted).

     At trial, Appellant testified, consistent with his original

statements to the AFOSI, that, although A1C ES was intoxicated,

she initiated the sexual contact and engaged in consensual

sexual intercourse.   He explained that he stopped as soon as he

realized she was unconscious.   Having conceded that he had

engaged in sexual intercourse with A1C ES, the sole question

before the members was whether he was truthful when he said that

she initiated the sex and consented to the sexual intercourse.

But that testimony had already been discredited by an AFOSI

agent who professed to have expertise in divining the truth from

the demeanor of the suspect.    The only evidence contradicting

Appellant’s testimony was A1C ES’s testimony, that she had been

too inebriated to remember the night or to have consented to

sexual contact, and Appellant’s confession, which he maintains

he made only when he broke down after eight or nine hours of

interrogation.

     The Government’s argument that Appellant was not prejudiced

because defense counsel played at trial a one-hundred-minute

tape of the questioning of Appellant is unavailing.   Playing the

tape certainly allowed members to see the nonverbal behaviors to

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which SA Peachey testified.   But rather than draw their own

conclusions in assessing Appellant’s statements to the AFOSI,

the court members were left with the purported expertise of SA

Peachey, describing Appellant’s physical reactions as evidence

of deception.   Cf. Brooks, 64 M.J. at 330 (holding that, because

of the limited corroborating evidence and a lack of a specific

instruction by the military judge, “[a]ny impermissible evidence

reflecting that the victim was truthful may have had particular

impact upon the pivotal credibility issue and ultimately the

question of guilt”).

     Before permitting counsel to argue on findings, the

military judge instructed the members on the substantive issues

they had to decide.    The military judge did provide the general

credibility instruction, but he never instructed the members

that they could not consider SA Peachey’s human lie detector

testimony in determining Appellant’s credibility or in

determining his guilt.   “[T]he military judge was responsible

for making sure such testimony was not admitted, and that the

members were provided with appropriate cautionary instructions.”

Kasper, 58 M.J. at 319; cf. Mullins, 69 M.J. at 115, 118

(holding the appellant failed to demonstrate prejudice when

military judge gave a specific instruction advising the members

that “no witness is a human lie detector”).   The military judge

failed to do so in this case.

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United States v. Knapp, No. 13-0512/AF


     Here, as in Kasper, the human lie detector “testimony was

not offered on a peripheral matter or even as a building block

of circumstantial evidence,” but “on the ultimate issue in the

case -- whether Appellant was truthful as to the charge.”   58

M.J. at 319.   Under these circumstances, we conclude that the

military judge’s failure to appropriately instruct the members

to disregard this testimony was prejudicial error.

                           V.   Judgment

     The judgment of the United States Air Force Court of

Criminal Appeals is reversed.   The findings of guilty and the

sentence are set aside.   A rehearing is authorized.




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     BAKER, Chief Judge, with whom RYAN, Judge, joins

(dissenting):

     I concur with the majority’s judgment that the testimony of

Special Agent (SA) Peachey regarding nonverbal cues and

deception constituted “human lie detector” evidence.    I also

agree that the admission of this evidence was obvious error,

although certainly it is more obvious when spliced together on

appeal than in the context of an ongoing trial.   Civilian

defense counsel expressly referred to the redirect examination

testimony as “human lie detector” evidence.   Moreover, SA

Peachey’s statement that he could discern deception by observing

a person’s physiological and behavioral reaction to questions is

the very essence of what it would mean to serve as a human

polygraph.

     Nonetheless, I disagree with the majority on prejudice.

For sure, a curative instruction addressed specifically to human

lie detector evidence would have resolved this matter.    However,

unless we are going to treat the introduction of any human lie

detector evidence as per se prejudicial or structural in nature,

which we have not before done, I do not see how the introduction

of this evidence in this case materially prejudiced a

substantial right of the accused.   Indeed, the argument that

Appellant was not prejudiced is overwhelming.   The
United States v. Knapp, No. 13-0512/AF


undermentioned facts distinguish this case from Kasper.     United

States v. Kasper, 58 M.J. 314 (C.A.A.F. 2003).

     First, Appellant confessed.

     Second, the evidence corroborating Appellant’s confession

was overwhelming and it was generated before SA Peachey entered

the picture.   Specifically, physical evidence in the form of

Appellant’s DNA confirmed sexual intercourse between the

Appellant and the victim.   Appellant testified that he had

removed the condom from the garbage can in the victim’s room,

thereby removing physical evidence of the encounter.   MS, who

went drinking with the victim and Appellant, testified that the

victim was “pretty drunk,” “really drunk,” and even “could [not]

walk on her own.”   The victim could not recall what occurred,

and Appellant chose not to refresh her recollection.   Indeed, he

made no reference to the events of the night before when driving

with the victim after leaving her room the next day.   The nurse

who performed the sexual assault examination testified that

Appellant denied having sex with the victim at all,

demonstrating to the members that Appellant from the very outset

was less than consistent in his explanation of the events.

     Third, defense counsel introduced to the members the

entirety of the interrogation video to which SA Peachey’s

testimony was addressed.    The video included multiple occasions

where SA Peachey and his partner suggested they did not believe

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United States v. Knapp, No. 13-0512/AF


Appellant was truthful:   “You know how I know that’s not true?”;

“You’re dancing on the line of me saying that you were a

complete jerk and you ran me around the table for hours”; “Why

would you want to try and destroy the evidence? . . . Because

she didn’t know the whole time, did she?”; “[W]e can get the

whole entire story and all the details when we come back”; and

“So, no more playing these little games, dancing around the

flagpole trying to pull one over on the OSI agents.    Okay?   When

we come back in here one hundred percent truth --.”    The members

could judge Appellant’s credibility and reaction to the

interrogation for themselves.

     Fourth, Appellant testified.    The members could judge

Appellant’s demeanor and credibility for themselves.

     Fifth, trial counsel did not rely on SA Peachey’s testimony

in closing argument.

     Appellant’s rebuttal to all this is that the members were

already tainted in their perception of Appellant’s credibility

by SA Peachey’s testimony.   As such, they would not have heeded

the military judge’s admonition to judge credibility for

themselves even when given the opportunity to do so by listening

to Appellant’s testimony and viewing the video the defense

introduced documenting the testimonial events in question.

     This argument and the majority opinion give SA Peachey’s

words a Solomonic status they do not deserve.   SA Peachey’s

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United States v. Knapp, No. 13-0512/AF


testimony was not presented with numerical certainty removing

any doubt including reasonable doubt, as was the case in Brooks,

where we found the expert witness’s remarks “suggested . . .

there was better than a ninety-eight percent probability that

the victim was telling the truth.”   United States v. Brooks, 64

M.J. 325, 329 (C.A.A.F. 2007).   Or in Mullins, where the expert

testimony “involve[d] a statistical statement” that there was “a

1 in 200 chance the victim [was] lying.”   United States v.

Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010).   Rather, SA Peachey

offered evidence that would have been intuitive to any member of

a military panel.   Peachey was a special agent with

interrogation training who thought Appellant was deceptive when

questioned; presumably the Government would not have charged

Appellant with the offense in question otherwise.

     For these reasons, I respectfully dissent on the question

of prejudice and would affirm the Court of Criminal Appeals and

this case.




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