

   
   
   
   U.S. v. Griffin



UNITED STATES, Appellee
v.
Roy A. GRIFFIN, Staff Sergeant
U.S. Air Force, Appellant
 
No. 98-0056
Crim. App. No. 32229
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued October 5, 1998
Decided May 12, 1999
 
GIERKE, J., delivered the opinion of
the Court, in which
COX, C.J., CRAWFORD, J., and EVERETT,
Senior Judge, joined.
SULLIVAN, J., filed an opinion concurring
in the result.
 
Counsel
For Appellant:
Captain Tishlyn E. Taylor (argued); Colonel Douglas H. Kohrt (on brief).
For Appellee: Captain
Steven D. Dubriske (argued); Lieutenant Colonel Michael J. Breslin (on
brief); Colonel Brenda J. Hollis and Lieutenant Colonel Anthony P. Dattilo.
Military Judge:
Michael B. McShane
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted appellant, contrary to his pleas, of two specifications of making
a false official statement; taking indecent liberties; and
communicating a threat, in violation of Articles 107 and 134, Uniform Code
of Military Justice, 10 USC §§ 907 and 934, respectively. The
adjudged and approved sentence provides for a bad-conduct discharge, confinement
for 10 months, and reduction to the lowest enlisted grade. The convening
authority waived the automatic forfeitures for 6 months from the date of
his action. The Court of Criminal Appeals affirmed the findings and sentence
in an unpublished opinion.1
This Court granted review of the following
issues:

I

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
BY DENYING THE ADMISSION OF THE DEFENSE EXPERT TESTIMONY, AND, IN DOING
SO, PREVENTED APPELLANT FROM PUTTING ON A DEFENSE.

II

WHETHER THE APPLICATION OF ARTICLES 57(a)
AND 58b, UCMJ, VIOLATES THE EX POST FACTO CLAUSE OF THE CONSTITUTION
WITH RESPECT TO APPELLANT.

For the reasons set out below, we resolve Issue
I by holding that the military judge did not abuse his discretion. We resolved
Issue II in appellants favor in United States v. Gorski, 47 MJ
370 (1997).

Factual Background
The court below summarized the events preceding
appellants court-martial as follows:

In February of 1991, Wanda Griffin, wife
of the appellant, heard their two-year-old daughter, F., and her husband
laughing in the bathroom of their home. Wanda went in to investigate and
discovered her husband and F in the bathtub together. Wanda saw F playing
with appellants penis which was erect. Wanda grabbed F out of the bathtub,
and Wanda and F then moved out of the home into a shelter. Appellant told
his wife that if she took F he would kill her. The conduct in the bathtub
ultimately led to an [Air Force Office of Special Investigations] investigation,
in the course of which the accused made a statement denying that his daughter
touched his genitalia. Subsequently, appellant's commander advised him
that the allegations had been unsubstantiated and the case was closed.
Sometime later the wife and daughter moved back to reside with appellant.
Several years later, in 1994, appellant received
permanent change of station orders from Whiteman Air Force Base to Minot
Air Force Base. He was advised that upon changing stations security clearances
are normally updated. In August of 1995, in the course of an investigation
for his update, appellant was interviewed by Mr. Schmitt, an investigator
for the Defense Investigative Service (DIS) . . . . After making a statement
denying any misconduct took place in February 1991 when he was bathing
his daughter, appellant agreed to take a polygraph.
At 0900 hours on 19 September 1995 appellant
met with the polygrapher, Special Agent Snyder, also from DIS, who advised
appellant of his rights as required by [Department of Defense] directive
and appellant declined counsel. By 1045 hours of the same day appellant
had signed a statement admitting that his previous statements were not
completely correct and that his daughter had touched his erect penis in
the bathroom on the occasion witnessed by his wife.

Unpub. op. at 2-3.
Appellants two denials of misconduct were
the basis for two charges of making false official statements (Charge I
and its specifications). His conduct with his daughter in the bathtub in
February of 1991 was the basis of two charges: committing indecent acts
with his daughter (specification 1 of Charge II); and taking indecent liberties
with his daughter (specification 2 of Charge II). His alleged threat to
kill his wife if she took his daughter away was the basis of a charge of
communicating a threat (specification 3 of Charge II).
At his court-martial, appellant made a timely
motion to suppress his statement to Special Agent (SA) Snyder on the grounds
that it was coerced and false. In response, the Government produced the
testimony of SA Snyder. He testified that he interviewed appellant, using
"a rapport based interview technique that calls for the assumption that
the person tells the truth to the person that he likes or respects." The
entire interview, from initial rights advisement until execution of the
signed written statement, took about an hour and 45 minutes. SA
Snyder described the interview technique as follows:

When he first comes in  it begins when I
greet them I identify myself, show them the badge and credentials, shake
hands, and then start talking to them at that time about their background,
where theyre from, what they like, what they dont like, in an attempt
to develop rapport from the very beginning.

SA Snyder testified that he did not remember if
he told appellant anything about himself, although it was possible. Only
he and appellant were in the interview room. SA Snyder testified that he
was not sure if he had both of appellants previous statements. He thought
that he only knew about the statement that appellant made to SA
Schmitt denying the allegations.
SA Snyder testified that he looks for nonverbal
cues during an interview, such as lack of eye contact. If he sees clusters
of nonverbal cues that indicate that the subject is not being truthful,
he tries "to get them to talk and open up more."
SA Snyder testified that he tells the subjects
that the adjudicator, and not he, makes the decision whether to grant a
security clearance. He testified that he works for the Department of Defense,
not the military services, and that the subject is advised in the Privacy
Act statement that the results of the interview can be disclosed to the
military department concerned.
SA Snyder testified that, at the end of his
interview of appellant, he and appellant discussed the cryptic notes he
had taken, and he asked appellant if he would provide a handwritten statement.
SA Snyder reviewed his notes and told appellant what they reflected that
he had said. After telling appellant "[t]he areas that we needed to cover,"
he asked appellant "if there was anything else that he wanted to"
include in the statement, and appellant added some words "on his own."
When the interview ended, appellant did not
"appear to be scared" of SA Snyder. SA Snyder did not remember appellant
getting upset at any time during the interview. SA Snyder testified that
he made no threats or promises during the interview.
Appellant described the interview differently.
He testified that the interview began "very calm, very caring." SA Snyder
asked him if he had allowed his daughter to touch his genitals, and appellant
calmly answered, "no." SA Snyder asked another similar question and appellant
again responded, "no." Appellant testified that SA Snyder then said, "Im
getting the impression youre not being completely truthful." SA Snyder
asked, "have you ever said with your daughter on your lap, she is making
me horny?" Appellant testified that he was caught off guard and was disgusted,
causing him to hesitate. SA Snyder shook his finger at appellant and said,
"You hesitated; that means youre not being honest." Appellant testified
that SA Snyder pointed to the polygraph machine and said, "I cant in good
conscience hook you up to that thing unless I know youre being honest
and I feel you can pass it."
Appellant testified that when he "started getting
flustered and anxious," SA Snyder pointed to a chair in the corner and
said, "See that chair over there. Im not charging you with anything. If
I was charging you with anything I would have you sit in that chair and
I would be reading you your rights." Appellant also testified that SA Snyder
told him that if he did not answer honestly, "the judiciaries" would take
away his security clearance, and that appellant would be kicked out of
the Air Force because he needed a security clearance to do his job.
Appellant testified that when he became so
flustered that he started stuttering, SA Snyder "would back off and calm
down." SA Snyder began talking about appellants father, a retired Marine,
rebuilding the rapport with appellant, calming him down, and getting him
relaxed.
Appellant testified that SA Snyder told him
that, if he was not honest, the Air Force would label him a "pedophore."
Appellant reacted with fear and anger, and again SA Snyder calmed him down.
Finally, SA Snyder told appellant, "We dont need to go on any further
with this interview. There is no way youre going to pass that test. Im
not even going to try to administer it to you." SA Snyder also said, "Before
you leave I need to get a statement from you." Appellant responded that
he wanted to speak to an attorney before making a written statement. According
to appellant, SA Snyder responded that he "cannot and will not forbid [him]
to see an attorney," but that if he did not have a statement in an hour
or two he would "make a statement for you." Appellant then agreed to provide
a written statement. Appellant testified that SA Snyder told him, "Now
write down what I tell you to." SA Snyder dictated the entire statement,
one or two sentences at a time, and then told appellant to initial the
beginning and the end and sign at the end of the statement.
In support of his contention that his confession
was false and coerced, appellant proffered the testimony of Dr. Rex Frank,
a psychologist. The Government filed a motion in limine,
asking the military judge to exclude Dr. Franks testimony on the ground
that he was not qualified to offer an opinion on the issue, that his testimony
was not relevant, and that his conclusions were not reliable.
After a lengthy Article 39(a), UCMJ,
10 USC § 839(a), session, the military judge excluded Dr. Franks
testimony. Thereafter, appellant requested trial by military judge alone.
The military judges ruling is the basis of Issue I.
Dr. Frank is a licensed psychologist, with
a doctorate in counseling psychology. He has prior military service as
an Air Force psychologist, with experience in security and personal reliability
(PRP) investigations.
In 1993 he began studying the areas of false
confessions and coercion in interrogations. He examined about 20 years
worth of research materials, including a study of 350 cases, conducted
in 1987, where suspects had confessed but had later been determined to
be innocent based on other evidence. Of those 350 cases, the study concluded
that 49 involved coerced confessions. He testified that there was
a problem with the study because "they did not differentiate between the
issue of coercion and the issue of torture in the police interviews that
resulted in a confession." He also testified that research on false confessions
is "relatively new," dating back to the 1980s.
Dr. Frank testified that the thrust of the
research into confessions looks at three issues: (1) the nature of the
person providing a confession; (2) the nature of the allegations against
the person; and (3) the nature of the interaction between the individual
and his personality structure and the circumstances of the interview. The
third issue is the primary focus of the research.
Dr. Frank testified that there are three components
that affect vulnerability to making coerced confessions:
(1) intelligence, with persons of lower intelligence
being more vulnerable;
(2) "a tendency towards compliance, or that
is the tendency to give in to authorities demands"; and
(3) suggestibility, "the tendency for a person
to change his answers" in response to "challenges by an interviewer."
Dr. Frank administered a battery of psychological
tests on appellant, reviewed his personnel records, interviewed him for
a total of about 6 hours, interviewed SA Snyder, interviewed another person
who had been interrogated by SA Snyder, and listened to an interview of
appellants spouse. Dr. Frank concluded that appellant is intelligent,
not suggestible, but is a "highly compliant individual." Dr. Frank also
testified that military persons "are more compliant in general than people
on the outside or they dont stay here."
Dr. Frank determined that appellants psychological
test scores on the trait of compliance was "within a couple tenths of a
point [of] the average score" for "false confessors." In Dr. Franks opinion,
appellants confession is "consistent with a coerced compliant type of
confession." Dr. Frank defines a "coerced compliant confession" as "a form
of false confession in which the individual comes to confess to things
that he or she did not do and full well knows during the interview-interrogation-and-confession
process that they are confessing to something that they did not do."
Dr. Frank testified that psychologists have
no scientific means of determining whether a confession is true or false.
Thus, he testified that he could not "pass judgment on the truthfulness
or lack of truthfulness of the words that [appellant] put on the paper."
He testified that psychologists can only "understand some of the characteristics
that make a person vulnerable to provide information which is erroneous."
He explained that the issue of coercion is separate "from the veracity
of the content of the confession."
Although Dr. Frank based his opinion in part
on his interviews of appellant regarding appellants perceptions of the
interview by SA Snyder, he testified that he had no way of knowing the
degree of contamination of his interview by prior interviews by others.
He testified that he had several reservations about his conclusions, because
the "normative standards" were based on British prisoners, not American
military personnel. He admitted that it is extremely difficult to
determine when an interview "becomes coercive."
In response to questions from the military
judge, Dr. Frank pointed to two examples of words in appellants statement
that were inconsistent with appellants speaking style and vocabulary.
The first was "pedaphore" instead of "pedophile." The second was "judicators"
instead of "adjudicators."
In support of its motion in limine,
the prosecution called Lieutenant Colonel (LtCol) Nancy Slicner, a licensed
psychologist with a doctorate in psychology, serving as Chief, Behavioral
Science Unit, Air Force Office of Special Investigations, Washington, D.C.
LtCol Slicner testified that one of the problems with research in the area
of false confessions is inability to control the variables: the interviewer,
the interview environment, and the psychology and personality of the person
being interviewed. Because of these variables, it is difficult to develop
a research protocol to conduct a "controlled study." She testified that
there are no studies that show a "statistically significant correlation
between . . . a specific personality trait and the likelihood of somebody
falsely confessing." In response to a question from the military judge,
LtCol Slicner testified that the subject area "has not reached scientific
acceptability."
The military judge granted the prosecutions
motion in limine to exclude the testimony of Dr. Frank. He
had noted in an earlier ruling that "the accuseds version of events while
in the presence of Special Agent Snyder is significantly different than
that related by Special Agent Snyder." The military judge then made the
following findings of fact regarding the circumstances of the interview:

To the extent that the versions differ, I
find Special Agent Snyders testimony to be far more credible and believable
than the testimony of the accused. Specifically, I find that the evidence
shows that the accused was properly advised of his Article 31 rights, that
he waived his rights, and that he provided the information in Prosecution
Exhibit 1 for Identification. I find the accuseds statements that he asked
for an attorney and Special Agent Snyder proceeded with the interview anyway
to be not credible and not believable.

The military judge later explained his
ruling as to Dr. Frank as follows:

After carefully considering all of
the evidence, I conclude that Dr. Frank knows a lot about the subject,
but that this is not a proper subject matter for expert testimony in that
this information will be more confusing to the members than helpful to
them. The evidence he has does not have the necessary reliability to be
of help to the trier of fact. Finally, under [Mil.R.Evid.] 403, I conclude
that any probative value of this evidence is substantially outweighed by
the danger of confusion of the members and also by consideration of waste
of time.

After the military judge so ruled, appellant withdrew
his request for enlisted members and requested trial by military judge
alone. The military judge asked appellant, "Does the fact that I have presided
over this trial for two days and listened to all the evidence that came
before me cause you any concern at this point about me sitting as the trier
of fact in this case?" Appellant responded, "No, sir, it does not." The
military judge then granted the request for a bench trial.

Discussion
Appellant contends that the military judge
abused his discretion by denying him the right to present expert scientific
testimony. He argues that he has a constitutionally protected right to
present legally and logically relevant evidence at trial, citing United
States v. Woolheater, 40 MJ 170, 173 (CMA 1994). He argues that the
expert testimony was a significant factor in the defense case because his
only realistic hope of acquittal was to convince the military judge that
his confession was either coerced or false.
The Government asserts that the military judge
conducted a proper analysis under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 592-97 (1993) and United States v. Houser,
36 MJ 392, 397-400 (CMA), cert. denied, 510 U.S. 864 (1993).
Accordingly, the Government argues that the military judge did not abuse
his discretion by excluding Dr. Franks testimony because it was unreliable,
had minimal probative value, and would have been confusing and a waste
of time.
Mil. R. Evid. 304(e), Manual for Courts-Martial,
United States (1998 ed.)2
places the burden on the prosecution to establish admissibility of a confession,
if the defense has made an appropriate motion or objection. Mil. R. Evid.
304(e)(1) requires a military judge to "find by a preponderance of the
evidence that a" confession "was made voluntarily before it may be received
into evidence."
Dr. Franks testimony was offered as expert
testimony under Mil. R. Evid. 702, which provides as follows:

If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form
of an opinion or otherwise.

This rule is taken from Fed. R. Evid. 702 verbatim.
See
Drafters Analysis of Mil. R. Evid. 702, Manual, supra at A22-47.
In Houser, supra at 397, this
Court set out 6 factors that must be established by the proponent of expert
testimony:
(1) "the qualifications of the expert";
(2) "the subject matter of the expert testimony";
(3) "the basis for the expert testimony";
(4) "the legal relevance of the evidence";
(5) "the reliability of the evidence"; and
(6) probative value outweighing the other considerations
outlined in Mil. R. Evid. 403.
Two months after Houser was decided,
the Supreme Court decided Daubert, concerning "scientific" evidence
offered under Fed. R. Evid. 702. The Supreme Court focused on the issues
of reliability, 509 U.S. at 590, and relevance, id. at 591,
holding that Fed. R. Evid. 702 assigns to the trial judge the duty to act
as a gatekeeper, i.e., "the task of ensuring that an experts testimony
both rests on a reliable foundation and is relevant to the task at hand."
Id.
at 597. The Supreme Court, while disclaiming any attempt "to set out a
definitive checklist or test," listed the following 6 factors to be considered
by the trial judge in determining whether scientific evidence meets the
requirements for reliability and relevance:
(1) Whether the theory or technique "can be
(and has been) tested";
(2) Whether "the theory or technique has been
subjected to peer review and publication";
(3) The "known or potential" error rate;
(4) The "existence and maintenance of standards
controlling the techniques operation";
(5) The degree of acceptance within the "relevant
scientific community"; and
(6) Whether the "probative value" of the evidence
"is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury." 509 U.S. at 593-95.
Although Houser was decided before Daubert,
the two decisions are consistent, with Daubert providing more detailed
guidance on the fourth and fifth Houser prongs pertaining to relevance
and reliability. Daubert concerned "scientific" evidence, leaving
open the question whether the same analysis applied to "technical or other
specialized knowledge." Nevertheless, this Court applies the Houser/Daubert
analysis to "technical or other specialized knowledge." See Houser,
supra
at 393 (evaluating testimony about rape trauma syndrome);
United States
v. St. Jean, 45 MJ 435, 444 (1996) (applying Houser to "psychological
autopsy"); see also United States v. Hall, 93 F.3d 1337,
1342 (7th Cir. 1996) (applying Daubert analysis to psychological
evidence).
We review a military judges rulings under
Mil. R. Evid. 702 for abuse of discretion. See United States
v. Thomas, 49 MJ 200, 202 (1998). We review de novo the
question whether the military judge properly followed the Daubert
framework. See Hall, 93 F.3d at 1342. If the judge did
so, we will not overturn the ruling unless it is "manifestly erroneous."
See
Thomas, supra at 202, citing General Electric Co. v. Joiner,
522 U.S. 136, ___, 118 S.Ct. 512, 517 (1997).
The defense offered the testimony of Dr. Frank
to show that appellants confession was involuntary. Under Mil. R. Evid.
304(e), the burden was on the Government to show, by a preponderance of
the evidence, that appellants confession was voluntary. See United
States v. Cottrill, 45 MJ 485, 488 (1997), citing United States
v. Martinez, 38 MJ 82, 87 (CMA 1993), cert. denied in Cottrill,
520 U.S. 1213 (1997). The voluntariness of a confession is determined by
examining "the totality of all the surrounding circumstances  both the
characteristics of the accused and the details of the interrogation." Id.
Dr. Franks testimony was potentially relevant regarding "the characteristics
of the accused," i.e., that he had a compliant personality that
made him susceptible to psychological coercion. The critical question was
the reliability of the proffered testimony.
Regarding appellants claim that Dr. Franks
testimony would have shown that his confession was false, we hold that
the military judge did not abuse his discretion by excluding it. Dr. Frank
testified that he could not opine on the question whether the confession
was false. ___ MJ at (9). Even if he could, such testimony
would run afoul of this Courts decisions holding that an expert witness
may not act as a "human lie detector." United States v. Birdsall,
47 MJ 404, 410 (1998); United States v. Partyka, 30 MJ 242, 247
(CMA 1990); see United States v. Cacy, 43 MJ 214, 218 (1995);
United
States v. Harrison, 31 MJ 330, 332 (CMA 1990).
Regarding appellants claim that Dr. Franks
testimony would have shown that his confession was coerced, we also hold
that the military judge did not abuse his discretion by excluding it. Again,
appellant overstates Dr. Franks testimony. Dr. Frank did not testify that
appellants confession was coerced. At most, he could testify only that
appellants confession was "consistent with a coerced compliant type of
confession." ___ MJ at (9). Even this conclusion was based
in part on appellants description of the interview, which the military
judge found to be "not credible and not believable." ___ MJ at (11).
Dr.
Frank did not, and perhaps could not, say whether it was also consistent
with a voluntary confession.
Dr. Frank admitted that he had reservations
about the normative standards base on which he based his conclusions. ___
MJ at (10). There was no showing that the 1987 study of 49
coerced confessions among British prisoners could be reliably applied to
American military personnel. Dr. Frank also admitted that the failure of
the study to differentiate between torture and psychological coercion was
a problem. ___ MJ at (8), (10). Thus, we conclude
that the military judge did not abuse his discretion by ruling that the
evidence was not sufficiently reliable.
Furthermore, the proffered evidence shed little
light on the question whether appellant was coerced to confess. While Dr.
Frank diagnosed appellant as having a compliant personality, he also admitted
that most successful military persons are compliant. He also testified
that appellant had two traits that made him less susceptible to coercion:
high intelligence and low suggestibility. ___ MJ at (9).
Thus, Dr. Franks testimony was of little value in determining whether
appellant was coerced to confess.
Based on the foregoing, we conclude that the
military judge properly exercised his "gatekeeping" function under Mil.
R. Evid. 702 and Daubert, and that he did not abuse his discretion
by excluding Dr. Franks testimony.

Decision
The decision of the United States Air Force
Court of Criminal Appeals is reversed with respect to Issue II (ex post
facto violation). In all other respects, it is affirmed. Collection
of any forfeitures, and execution of the reduction in grade prior to the
date of the convening authoritys action, are hereby declared to be without
legal effect. Any forfeitures already collected from appellant, and any
pay and allowances withheld because of the premature reduction in grade,
will be restored. The record of trial is returned to the Judge Advocate
General of the Air Force for appropriate action.
FOOTNOTES:
1The court disposed
of Issue II by citing its decision in United States v. Pedrazoli,
45 MJ 567 (1997); we reversed that decision as to forfeitures. See
48 MJ 473 (1998).
2
The 1998 edition is the same as the version applicable at trial, unless
otherwise indicated.
 
 
SULLIVAN, Judge (concurring in the result):
I disagree with the majoritys conclusion that
no error occurred in the exclusion of Doctor Franks testimony on coerced
confessions. See United States v. Hall, 93 F.3d 1337, 1345
(7th Cir. 1996), on remand, 974 F. Supp. 1198, 1205 (C.D.
Ill. 1997). However, based on the recent decision of the Supreme Court
in United States v. Scheffer, ___ U.S. ____, 118 S.Ct. 1261 (1998),
I see no constitutional error. The exclusion of this expert evidence did
not "significantly" impair presentation of appellants defense. Id.
at 1269.
Testing for prejudice under Article 59(a),
UCMJ, 10 USC § 859(a), and Mil. R. Evid. 103(a), I would find none.
There was an eyewitness in this case whose testimony overlaps appellants
confession. Any positive value to the defense which might be drawn from
the defense experts inconclusive proffer pales before this independent
evidence of guilt.
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