                                  IN THE CASE OF


                           UNITED STATES, Appellee

                                           v.

                Michelle L. KASPER, Airman First Class
                       U.S. Air Force, Appellant

                                    No. 02-0318
                             Crim. App. No. 34351

       United States Court of Appeals for the Armed Forces

                          Argued December 11, 2002

                            Decided June 24, 2003

     EFFRON, J., delivered the opinion of the Court, in which
BAKER and ERDMANN, JJ., joined. GIERKE, J., filed a separate
opinion concurring in the result. CRAWFORD, C.J., filed a
separate dissenting opinion.


                                       Counsel

For Appellant: Major Andrew S. Williams (argued); Major Terry
    L. McElyea and Captain Jennifer K. Martwick (on brief); and
    Captain James M. Winner.

For Appellee: Major Jennifer R. Rider (argued); Colonel LeEllen
    Coacher and Lieutenant Colonel Lance B. Sigmon (on brief);
    and Colonel Anthony P. Dattilo.


Military Judge:      James L. Flanary



        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Kasper, No. 02-0318/AF



   Judge EFFRON delivered the opinion of the Court.

   At a general court-martial composed of officer and enlisted

members, Appellant was convicted, contrary to her pleas, of

wrongful use of 3, 4-methylenedioxymethamphetamine (ecstasy), in

violation of Article 112a, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. § 912a (2000).   She was sentenced

to a bad-conduct discharge, confinement for 90 days, total

forfeitures, and reduction to the lowest enlisted grade.    The

convening authority approved these results, and the Court of

Criminal Appeals affirmed in an unpublished opinion.

     On Appellant’s petition, we granted review of the following

issues:

          I.    WHETHER THE MILITARY JUDGE ERRED TO THE
                SUBSTANTIAL PREJUDICE OF APPELLANT WHEN
                HE ALLOWED SPECIAL AGENT LOZANIA TO
                TESTIFY AS A “HUMAN LIE DETECTOR” AND
                THEN FAILED TO PROVIDE ANY CURATIVE
                INSTRUCTIONS TO THE MEMBERS.

          II.   WHETHER THE MILITARY JUDGE ERRED TO THE
                SUBSTANTIAL PREJUDICE OF APPELLANT
                WHEN, OVER DEFENSE OBJECTION, HE AGREED
                TO GIVE THE “FRIEDMANN INSTRUCTIONS”
                IF, DURING APPELLANT’S UNSWORN
                STATEMENT, SHE SAID THAT HER COMMANDER
                COULD ADMINISTRATIVELY DISCHARGE HER OR
                MADE ANY SENTENCE COMPARISONS.

For the reasons set forth below, we conclude that the military

judge erred when he permitted the prosecution to introduce

“human life lie detector” testimony and failed to provide



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United States v. Kasper, No. 02-0318/AF


cautionary instructions.    Because this error requires the

findings to be set aside, we need not address the second issue.



                            I. BACKGROUND

                A. “HUMAN LIE DETECTOR” TESTIMONY

     Under Military Rule of Evidence 608 [hereinafter M.R.E.], 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.      See United States v.

Whitney, 55 M.J. 413, 415 (C.A.A.F. 2001); United States v.

Whitted, 11 F.3d 782, 785-86 (8th Cir. 1993).      In a child sexual

abuse case, for example, an expert on the subject of child abuse

is not permitted to testify that the alleged victim is or is not

telling the truth as to whether the abuse occurred.      See United

States v. Harrison, 31 M.J. 330, 332 (C.M.A. 1990).

     Our cases have noted several reasons for restricting human

lie detector testimony.    First, determination of truthfulness

“exceeds the scope of a witness’ expertise, for the expert lacks

specialized knowledge . . . to determine if a child-sexual-abuse

victim [is] telling the truth.”    United States v. Birdsall, 47

M.J. 404, 410 (C.A.A.F. 1998)(citing United States v. Arruza, 26


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United States v. Kasper, No. 02-0318/AF


M.J. 234, 237 (C.M.A. 1988); United States v. Petersen, 24 M.J.

283, 284 (C.M.A. 1987)(internal quotations omitted)).    Second,

such an opinion violates the limits on character evidence in

M.R.E. 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.   See Arruza, 26 M.J. at 237; United States v.

Cameron, 21 M.J. 59, 62 (C.M.A. 1985).    Third, such opinion

testimony places a “stamp of truthfulness on a witness’ story,”

Arruza, 26 M.J. at 237 (quoting United States v. Azure, 801 F.2d

336 (8th Cir. 1986)), in a manner that “usurps the jury’s

exclusive function to weigh evidence and determine credibility.”

Birdsall, 47 M.J. at 410.   The prohibition applies not only to

expert testimony, but also to conclusions as to truthfulness

offered by a nonexpert.   See United States v. Robbins, 52 M.J.

455, 458 (C.A.A.F. 2000).   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.   See Whitney, 55 M.J. at 415-16.

Cf. Robbins, 52 M.J. at 458 (finding no prejudice because trial

was by military judge rather than members).




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United States v. Kasper, No. 02-0318/AF


                  B. TESTIMONY AT APPELLANT’S TRIAL

      The present case concerns the testimony of Special Agent

(SA) Maureen Lozania of the Office of Special Investigations

(OSI) about an interrogation of Appellant during an

investigation into illegal drug use.

     The topic of SA Lozania’s interrogation of Appellant was

first broached by trial counsel.       During his opening statement

trial counsel indicated that the evidence would show that during

interrogation by SA Lozania and Travis Reese, an Air Force

security policeman, Appellant initially denied using drugs, and

then confessed.   Defense counsel’s opening statement sought to

raise doubt that Appellant had actually confessed, suggesting

instead that the agents mistakenly perceived Appellant’s

statements based upon erroneous preconceptions:

          [Y]ou will see . . . an alleged oral
          confession by Airman Kasper. Presumably,
          two OSI agents will testify that they
          thought that they heard Airman Kasper say
          that she used ecstasy. You will also hear
          that those OSI agents kept pushing and
          pushing and pushing, after Airman Kasper
          denied and denied and denied, and they
          believed they heard her confess to a one-
          time use of ecstasy. When they started that
          interrogation of Airman Kasper, . . . they
          had in their minds already suspected her of
          having used ecstasy . . . they’d already had
          a preconceived notion of what they thought
          she had done.

     Defense counsel added that the members “[will not] see . .

. believable evidence that Airman Kasper admit[ted] using


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United States v. Kasper, No. 02-0318/AF


ecstasy,” and concluded by asking, “[w]here is the supporting

proof that there really was a confession?”   At the outset of her

testimony, trial counsel asked SA Lozania to describe her

training and experience in an effort to establish SA Lozania’s

credentials as a person well-qualified to conduct

interrogations.   Trial counsel then asked a series of questions

concerning the charges against Appellant.    SA Lozania testified

that during the OSI investigation into drug use, Airman Wells,

Appellant’s boyfriend, stated that he had used ecstasy with

Appellant while visiting friends in Jacksonville, Florida.    SA

Lozania and another agent, Mr. Reese, then interrogated

Appellant.    When they initially confronted Appellant, she denied

using drugs while visiting Florida with Airman Wells.    According

to SA Lozania, they then took a break to allow Appellant “to

gather her thoughts” and the two agents left the room.

     In response to a question from trial counsel, SA Lozania’s

testimony provided an opinion as to the veracity of Appellant’s

denial:   "We decided she wasn’t telling the truth.   She wasn’t

being honest with us and we decided that we needed to build some

themes and help her to talk about what had happened."

     According to SA Lozania, the questioning resumed and

Appellant began to cry.   Eventually, Appellant responded

affirmatively to a question as to whether she had used ecstasy

in Florida.   She held up one finger, which SA Lozania


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United States v. Kasper, No. 02-0318/AF


interpreted as a statement that she had used ecstasy once while

in Jacksonville.   Trial counsel then asked:   "At the time she

told you that she had used ecstasy and put up her finger and

started to cry, was there anything about what she said or the

way she behaved that made you believe at that time that she was

falsely confessing to you?"    SA Lozania responded: “No.”

     On cross-examination, defense counsel sought to undermine

the reliability of SA Lozania’s interpretation of events by

emphasizing Appellant’s repeated denials during the initial

stages of the interrogation.    Defense counsel contrasted the

special agent’s skeptical treatment of Appellant with their

apparent acceptance of Airman Wells’ statement.    In response to

defense counsel’s question as to whether she had proceeded on

the assumption that Appellant was guilty, SA Lozania stated that

“we assess through body language and other things if the

individual is being truthful or not.”    When defense counsel

asked whether they had confronted Airman Wells, SA Lozania

attempted to respond by providing her view of Appellant’s

credibility.   Defense counsel interrupted with a request that

she answer the original question, and the military judge

directed her to do so.   Defense counsel then noted that the only

evidence SA Lozania had developed regarding Appellant prior to

the interrogation was the statement of Airman Wells, and asked

whether she regarded Airman Wells as credible.    SA Lozania


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United States v. Kasper, No. 02-0318/AF


responded: “He had indicated that he was being truthful” and

that that was sufficient.

     During redirect examination, trial counsel asked SA Lozania

why she believed Airman Wells’ statement.   She responded with a

physiological conclusion -- that Airman Wells “gave all verbal

and physical indicators of truthfulness,” adding that her

conclusion reflected her OSI training and experience.     Trial

counsel began a question by asking, “Now, how about Airman

Kasper, what verbal indicators - [.]”   Before the witness

responded, defense counsel objected and requested a proceeding

outside the presence of the members under Article 39(a), 10

U.S.C. § 839(a) (2000).   In the Article 39(a) session,    defense

counsel objected that trial counsel’s question would have

required SA Lozania to provide impermissible human lie detector

testimony.   Trial counsel countered that the question did not

ask SA Lozania to serve as a human lie detector, and was

designed simply to address an issue raised by the defense on

cross-examination – why SA Lozania and Mr. Reese had not

confronted Airman Wells before continuing their interrogation of

Appellant.   The military judge ruled that the question as

originally asked was impermissible.   Over defense objection,

however, he permitted the prosecution to rephrase the question

to SA Lozania as follows: “At the time that you interviewed

Airman Kasper and she initially denied using [drugs], why is it


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United States v. Kasper, No. 02-0318/AF


that you did not go and interview Airman Wells and confront

him?”   When the trial counsel resumed his redirect examination

before the members, the following exchange ensued:

           TC: Agent Lozania, [the defense counsel] was
           questioning during your interview with
           Airman Kasper why you did not end the
           interview and go confront Airman Wells.
           First, my question is, is that a common
           interviewing technique, that you would stop
           and interview after an initial denial of
           guilt?

           WIT: No, sir.

           Q. And why is that?

           A. If the person shows any indicators of
           being untruthful, then we just continue with
           the interview.

           Q. And that was the case in Airman Kasper’s
           interview?

           A. Yes, sir.

           Q. And when you continued your interview of
           Airman Kasper, you indicated your goal was
           to get the truth, were there, in your
           experience, ever times where a subject
           interview cleared the individual, turned out
           that you no longer believed they were guilty
           of the offense they were suspected of?

           A. Yes, sir.

           Q. And obviously, there were times when the
           interview incriminates them and you believe
           even more firmly that they may have
           committed the offense that you’re
           investigating, is that correct?

           A. Correct.




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United States v. Kasper, No. 02-0318/AF


     After counsel for both parties completed the questioning of

SA Lozania, the military judge told the members that they could

submit to him any questions that they might have for the

witness.   A member submitted the following question: “[W]hat

were the indicators you observed to make you believe [Appellant]

was lying (your observations only – before discussing with

Reese).”   The military judge convened an Article 39(a) session

to consider the propriety of the question.   Trial counsel argued

that the question was permissible if rephrased to ask SA Lozania

what specific physical indicators she observed, without

referencing her belief that Appellant was lying.   Defense

counsel responded:

           [T]he question’s already been asked, “What
           observations did you make.” As far as
           Airman Wells, the questions and the answers
           came out too quickly. Obviously, on Airman
           Kasper, that’s when we jumped in with an
           objection. They’re trying to make her into
           a human lie detector, and obviously, that’s
           their determination, not ours.

The military judge ruled that the question could not be asked.

When the members were recalled, the military judge advised them

as follows:

           [A]s written that question also would not be
           an appropriate question. In effect, you’re
           asking the witness to become a human lie
           detector and the witness cannot testify as a
           human lie detector from the stand . . . .
           The determination of what happened, that’s
           solely a matter within the discretion of the
           panel members after you have heard all the


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United States v. Kasper, No. 02-0318/AF


           evidence that is admissible and after you’ve
           gotten closing instructions[.]

     During the defense case, Appellant testified that while she

and Airman Wells were in Jacksonville, he purchased ecstasy

pills during a gathering at his friend’s home and then placed

one of the pills in her hand.   Appellant stated that she

accepted the pill because she did not want the other persons

present, who were also buying ecstasy pills, to think that she

was an undercover law enforcement agent.    However, approximately

fifteen minutes later, Appellant went to the restroom and “threw

[the pill] down the toilet” without alerting anyone to her

actions.   Regarding her alleged confession to SA Lozania and Mr.

Reese, Appellant testified that she repeatedly denied ever using

ecstasy.   She further stated that she held up her finger to

indicate that she had been to Jacksonville on only one occasion,

not that she had used ecstasy while there.

At the conclusion of the presentation of the evidence on the

merits, the military judge provided the members with the

standard instruction that it was their duty to determine the

believability of the witnesses.    The military judge also

instructed the members that Appellant’s character for honesty

and truthfulness "may be sufficient to cause a reasonable doubt

as to her guilt.   On the other hand, evidence of the accused’s

good character for honesty and truthfulness may be outweighed by



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United States v. Kasper, No. 02-0318/AF


other evidence tending to show the accused’s guilt...and I’ll

just stop it there."   The military judge omitted from this

instruction the standard reference to “character for

dishonesty.”



                          III. DISCUSSION

     We review a military judge’s decision to admit evidence for

an abuse of discretion.   United States v. Johnson, 46 M.J. 8, 10

(C.A.A.F. 1997).   The issue of whether the members were properly

instructed is a question of law, which we review de novo.

United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002).

     The Court of Criminal Appeals offered the following reasons

for affirming the conviction in response to Appellant’s claim of

error:

               Appellant . . . claims that the trial
          judge committed plain error when he failed
          to stop [SA Lozania’s] “human lie detector”
          testimony. We find no such error. To
          establish plain error, the appellant must
          demonstrate that the trial judge committed
          error; the error was plain, that is clear or
          obvious; and the error materially prejudiced
          a substantial right of the appellant.
          United States v. Powell, 49 M.J. 460, 464
          (1998); see Article 59(a), UCMJ, 10 U.S.C.
          § 859(a).

               [SA Lozania] testified about interview
          techniques used in questioning the appellant
          and Amn Wells once she became convinced they
          (the appellant and Amn Wells) were not
          telling the truth. She first mentioned
          these techniques on direct examination and


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United States v. Kasper, No. 02-0318/AF


          trial defense counsel did not object. That
          failure to object forfeited appellate review
          of that part of [SA Lozania’s] testimony
          absent plain error. See Powell, 49 M.J.
          460. We find no plain error.

               We note that it is a basic principle of
          criminal practice that “human lie detector”
          evidence is not admissible in a trial.
          United States v. Whitney, 55 M.J. 413, 415
          (2001). However, except for [SA Lozania’s]
          testimony to which the appellant did not
          object, the appellant opened the door to
          such testimony when cross-examining [SA
          Lozania]. It is apparent from the record of
          trial that one of the appellant’s trial
          tactics was to attempt to impeach the
          credibility of witnesses against the
          appellant by challenging the AFOSI interview
          techniques. Trial counsel elicited the
          challenged testimony from [SA Lozania] only
          after the trial defense counsel challenged
          the interview techniques on cross-
          examination and thereby opened the door to
          the prosecution’s rebuttal. Therefore, the
          trial judge did not abuse his discretion in
          allowing [SA Lozania’s] rebuttal testimony.
          Ayala, 43 M.J. at 298.

United States v. Kasper, No. ACM 34351, slip op. at 3 (A.F. Ct.

Crim. App. Dec. 28, 2001).

     We have several concerns with the approach suggested by the

court below.   First, the impermissible use of opinion testimony

as to Appellant’s truthfulness was initiated by the prosecution,

not the defense.   At the outset of the prosecution’s case-in-

chief, after establishing SA Lozania’s qualifications as an

experienced interrogator, trial counsel elicited two opinions

from SA Lozania on Appellant’s truthfulness regarding use of



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United States v. Kasper, No. 02-0318/AF


ecstasy, the central issue in the case.   SA Lozania testified on

direct examination that Appellant was not being truthful when

she denied using ecstasy; and that when Appellant confessed to

using ecstasy, there was nothing to indicate that the confession

was false.

     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.   See Whitney, 55 M.J. at 415.   Moreover, in

this case, the human lie detector evidence was presented as a

physiological conclusion.   SA Lozania twice stated that

Appellant “gave all the physical indicators” of being

untruthful.   Regardless of whether there was a defense objection

during the prosecution’s direct examination of SA Lozania, the

military judge was responsible for making sure such testimony

was not admitted, and that the members were provided with

appropriate cautionary instructions.   See id. at 415-16.

     The importance of prompt action by the military judge in

the present case is underscored by the central role of the human

lie detector testimony.   The testimony was not offered on a

peripheral matter or even as a building block of circumstantial


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United States v. Kasper, No. 02-0318/AF


evidence.   The prosecution introduced human lie detector

testimony on the ultimate issue in the case – whether Appellant

was truthful as to the charge of wrongful use of ecstasy.    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.

See Birdsall, 47 M.J. at 410; Powell, 49 M.J. at 464.   To the

extent that the dissent relies on cases involving the evidence

that may be used to rebut a defense challenge to the

voluntariness of a confession, __ M.J. at (4), those cases are

inapposite here because the defense challenged the existence of

the confession, not voluntariness.

     Although the erroneous admission of this testimony on

direct examination is sufficient to require reversal, we also

are concerned with the manner in which the military judge

addressed subsequent opinion testimony about witness

credibility.   Even if we were to ignore the prosecution’s

affirmative use of human lie detector testimony and view the

subsequent defense as opening the door to rebuttal, the military

judge should have recognized that the repeated introduction of

opinion testimony about the truthfulness of witnesses on the

ultimate issue in the case required him to provide the members


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United States v. Kasper, No. 02-0318/AF


with detailed instructions.    SA Lozania’s testimony, that

Appellant was giving “indicators of being untruthful,”

reasonably could have been perceived by the members as an expert

opinion on Appellant’s credibility during the interrogation.

The question posed from the panel member following SA Lozania’s

testimony should have demonstrated to the military judge that at

least one of the members had focused in on Appellant’s physical

“indicators” of deceit, as described by SA Lozania, as a

critical piece of evidence.    Under those circumstances, detailed

guidance was essential to ensure that the members clearly

understood both the limited purpose for which the evidence might

have been considered and the prohibition against using such

evidence to weigh the credibility of Appellant and Airman Wells.

Although as a general matter instructions on limited use are

provided upon request under M.R.E. 105, the rule does not

preclude a military judge from offering such instructions on his

or her own motion, see United States v. Mark, 943 F.2d 444, 449

(4th Cir. 1991), and failure to do so in an appropriate case

will constitute plain error.   United States v. Garcia, 530 F.2d

650, 655 (5th Cir. 1976)(citing Upham v. United States, 328 F.2d

661 (5th Cir. 1964)(per curiam)).

     The present case does not involve a stray remark on a

secondary matter.   This case involves a central issue at trial.

The impermissible evidence was first introduced by the


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United States v. Kasper, No. 02-0318/AF


prosecution, the defense forcefully objected to subsequent

introduction of such evidence, and a question generated by the

court-martial panel illustrated the manner in which the member’s

might affirmatively use human lie detector testimony to weigh

credibility on an outcome-determinative issue.     In those

circumstances, the failure to provide appropriate guidance to

the members constituted plain error.

     The brief comments by the military judge explaining to the

members why he found a particular question to be inappropriate

did not constitute an adequate substitute for proper guidance.

The comments by the military judge told the members why they

would not be provided with certain information, but it failed to

guide them with specificity as to how they should and should not

consider the human lie detector evidence that had been placed

before them.   Under the circumstances of this case, the failure

to provide such guidance constituted prejudicial plain error.



                          IV.   CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed.   The finding of guilty and

sentence are set aside.   The record of trial is returned to the

Judge Advocate General of the Air Force.     A rehearing may be

ordered.   Art. 67(e), UCMJ, 10 U.S.C. § 867(e) (2000).




                                 17
United States v. Kasper, 02-0318/AF

    GIERKE, Judge (concurring in the result):

    In my view, the admission of much of Special Agent (SA)

Maureen Lozania’s testimony on the credibility issue was harmless

error because it amounted to a statement of the obvious: criminal

investigators will continue asking questions until they think

they have a truthful and complete statement from a suspect.

However, I agree with the majority that SA Lozania’s testimony

regarding Appellant’s credibility went beyond the permissible

limits of Military Rule of Evidence 608.   Trial counsel crossed

the line when he elicited evidence that SA Lozania was an

experienced, trained investigator; elicited her opinion that

Appellant was lying; and asked her about the verbal and physical

indicators she employed to evaluate truthfulness.   The need for a

strong curative instruction became obvious when a court member

asked what indicators SA Lozania had observed that caused her to

believe that Appellant was lying.

    I agree with the majority that the military judge’s brief

ruling on the impropriety of the member’s question and his

general boilerplate instruction on credibility of witnesses were

inadequate to ensure that the members were not unduly influenced

by SA Lozania’s “expert” opinion that Appellant was lying.    In my

view, the military judge committed plain error.   He failed to

give a strong curative instruction when the improper question was

asked, and he failed to give the members carefully tailored

guidance in his final instructions.
United States v. Kasper, No. 02-0318/AF


     CRAWFORD, Chief Judge (dissenting):

     I interpret the sequence of events at trial differently

than the majority.   In my view, the testimony elicited through

the Government’s direct and redirect-examination of Special

Agent (SA) Maureen Lozania was proper rebuttal of the defense’s

allegation of a coerced confession, prominent in both the

opening statement and the cross-examination of SA Lozania.

Additionally, the lead opinion stands in stark contrast to

prevailing trial practice and the weight of legal authority.

For these reasons, I respectfully dissent.

                    THE OPENING STATEMENT AND
                DIRECT-EXAMINATION OF SA LOZANIA

     In its opening statement, trial counsel outlined the

sequence of events that occurred during the interrogation, to

establish that the interrogation resulted in a confession.

Trial counsel noted:

     They bring her in, talk to her for a few minutes to
     just sort of build rapport, and then when required to
     do so by the Uniform Code of Military Justice, advise
     her of her Article 31 rights. She again, as with all
     suspects, is advised she has the right to remain
     silent, she has the right to request a lawyer, she is
     under investigation for a violation of the Uniform
     Code of Military Justice, and Airman Kasper tells the
     OSI agents [sic], “I understand my rights. I waive my
     rights. I’m willing to talk to you.” Agent Lozania
     questions Airman Kasper. Airman Kasper initially
     denies the use of ecstasy. Agent [sic] Reese, after a
     point, takes over the questioning. He talks to her
     about various things, including trying to put it in to
     respect a typical case of OSI investigations/
United States v. Kasper, No. 02-0318/AF


     interrogations, the fact this could be a lot worse.
     People could accuse you of a bad crime here, or using
     every day. How much are you using it? And as the
     more experienced investigator, Agent [sic] Reese gets
     Airman Kasper to admit using drugs, specifically, as
     Agent [sic] Reese and Agent Lozania will tell you,
     Airman Kasper said “I used it one time,” raises her
     finger, her index finger, and starts crying.

There was no suggestion of coercion in trial counsel’s opening

statement.    Trial counsel simply walked the members through the

interrogation process, which successfully resulted in a

confession.

     Defense counsel responded by informing the members that

they would see “[a]n alleged oral confession by Airman Kasper,”

which counsel then highlighted was one of only two items on

which the Government’s case rested.    (Emphasis added.)   Counsel

then strikingly noted:

     You will also hear that those OSI agents [sic] kept
     pushing and pushing and pushing, after Airman Kasper
     denied and denied and denied, and they believed that
     they heard her confess to a one-time use of ecstasy.
     When they started that interrogation of Airman Kasper,
     at that point, before they even asked question one,
     right out of the chute, they had in their minds
     already suspected her of having used ecstasy. They
     had already interviewed at least one other suspect in
     the case, Airman Wells. They’d already decided --
     they’d already had a preconceived notion of what they
     thought she had done.

(Emphasis added.)   This vivid language epitomizes the tone of the

defense counsel’s opening statement.    In short, the opening

statement suggested that the coercive nature of the




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United States v. Kasper, No. 02-0318/AF


interrogation invalidated, and in effect rendered nonexistent,

Appellant’s confession.

     By creating a theme of coercion in its opening statement,

the defense opened the door for Government rebuttal on the

issue.    See United States v. Franklin, 35 M.J. 311, 317 (C.M.A.

1992); United States v. Chavez, 229 F.3d 946, 952 (10th Cir.

2000); United States v. Croft, 124 F.3d 1109, 1120 (9th Cir.

1997); United States v. Moore, 98 F.3d 347, 350 (8th Cir. 1996);

United States v. Knowles, 66 F.3d 1146, 1161 (11th Cir. 1995);

United States v. Breitkreutz, 977 F.2d 214, 220 (6th Cir. 1992);

United States v. McAnderson, 914 F.2d 934, 949 (7th Cir. 1990);

see generally James W. McElhaney, Trial Notebook, “Opening the

Door” 163 (3d ed. 1994).   Moreover, by raising the possibility

of a coerced confession, the defense challenged the Government

to “prove at least by a preponderance of the evidence that the

confession was voluntary.”   Lego v. Twomey, 404 U.S. 477, 489

(1972).   Indeed, this challenge reflected the “defendant's

constitutional right . . . to object to the use of the

confession and to have a fair hearing and a reliable

determination on the issue of voluntariness[.]”   Jackson v.

Denno, 378 U.S. 368, 376-77 (1964).   See also United States v.

Ellis, 57 M.J. 325, 390-91 (C.A.A.F. 2002)(Effron, J.,

dissenting).   In so doing, the defense rendered the techniques

used to elicit the confession fair game for Government inquiry,


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United States v. Kasper, No. 02-0318/AF


as such techniques would have a “tendency to make the existence

of . . . [coercion] more probable or less probable than it would

be without the evidence.”   See Military Rule of Evidence 401.

     With the door opened to address coercion, and bearing the

burden to prove that Appellant’s confession was voluntary, the

Government properly probed the techniques used by SA Lozania to

elicit the confession.   Specifically, trial counsel asked SA

Lozania about his conversation during a break with a co-

interviewer,   Mr. Travis Reese.   SA Lozania replied that he and

Mr. Reese “decided that [Appellant] wasn’t telling the truth.

She wasn’t being honest with us and we decided that we needed to

build some themes and help her talk about what had happened.”

Trial counsel then asked if building themes was a common Office

of Special Investigations (OSI) interview technique, to which SA

Lozania responded affirmatively.       Thus, the portion of the

Government’s direct examination of SA Lozania that Appellant

alleges was improper “human lie detector” evidence was, by

contrast, a proper effort by the Government to refute the

defense’s allegation of coercion.       Cf. United States v. Turner,

39 M.J. 259, 262 (C.M.A. 1994)(noting that because there was

“nothing more than a single passing comment during defense

counsel’s opening statement,” the door was not opened for a

government response to the comment).




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United States v. Kasper, No. 02-0318/AF




                      CROSS-EXAMINATION AND
               REDIRECT-EXAMINATION OF SA LOZANIA

     Reiterating the theme of coercion developed in its opening

statement, the defense then cross-examined SA Lozania regarding

the validity of OSI interview techniques.    Specifically, defense

counsel inquired about the “Reed Technique” used by OSI agents,

and rhetorically asked, “I mean, you’re thinking she’s guilty,

right?” and “From interrogations, the goal is to get a

confession, isn’t it, at the end of the day?”   Counsel also

challenged SA Lozania’s failure to terminate the interview

despite Appellant’s repeated denial of guilt and contrasted SA

Lozania’s disbelief of Appellant’s denial with her acceptance of

Airman Wells’s statement.   The cross-examination discrediting SA

Lozania’s interview techniques comprised approximately 14 pages

of the record of trial.

     Having already rendered the issue of a coerced confession

fair game for argument through its opening statement, the

defense opened the door to rebuttal even more widely through its

extensive cross-examination of SA Lozania.   See United States v.

Vasquez, 267 F.3d 79, 85 (2d Cir. 2001); United States v.

Segall, 833 F.2d 144, 148 (9th Cir. 1987); United States v.

Goudy, 792 F.2d 664, 673 (7th Cir. 1986); United States v.

Barrentine, 591 F.2d 1069, 1081 (5th Cir. 1979); United States



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United States v. Kasper, No. 02-0318/AF


v. Walker, 421 F.2d 1298, 1299 (3d Cir. 1970).       Accordingly, in

its redirect-examination, the Government asked SA Lozania

whether he believed Airman Wells’s statement was truthful, and

then asked -- after a session under Article 39(a), Uniform Code

of Military Justice, 10 U.S.C. § 839(a) (2000) -- if indicators

of untruthfulness prompted the agents to continue the interview

with Appellant despite Appellant’s denial of guilt, to which SA

Lozania responded affirmatively.       This line of questioning was

properly targeted to refute the implication of coercion behind

the defense’s cross-examination into the agents’ failure to stop

their interrogation.   Furthermore, the questions properly served

to meet the Government’s burden to “prove at least by a

preponderance of the evidence that the confession was

voluntary.”   Twomey, 404 U.S. at 489.

     Moreover, the lead opinion misses the main issue in the

case when it speaks of cautionary instructions as to character

for truthfulness.   The question of truthfulness, or lack of

truthfulness, was raised as a voluntariness issue rather than a

credibility issue concerning impeachment.       __ M.J. (3, 11).

     Accordingly, I would hold that the military judge did not

err in allowing SA Lozania’s testimony and declining sua sponte

to provide curative instructions.




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