This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee/Cross-Appellant
v.
Beau T. MARTIN, Sergeant
United States Marine Corps, Appellant/Cross-Appellee
Nos. 15-0754 & 16-0122
Crim. App. No. 201400315
Argued April 6, 2016—Decided June 17, 2016
Military Judges: C. J. Thielemann and E. A. Harvey
For Appellant/Cross-Appellee: Lieutenant Jacqueline M.
Leonard, JAGC, USN (argued).
For Appellee/Cross-Appellant: Major Suzanne M. Dempsey,
USMC (argued); Colonel Mark K. Jamison, USMC, Cap-
tain Matthew M. Harris, USMC, and Brian K. Keller, Esq.
(on brief).
Judge OHLSON delivered the opinion of the Court, in
which Judge RYAN and Senior Judge COX joined.
Judge STUCKY filed a separate dissenting opinion, in
which Chief Judge ERDMANN joined.
_______________
Judge OHLSON delivered the opinion of the Court.
A panel of officer and enlisted members sitting as a gen-
eral court-martial convicted Appellant/Cross-Appellee [here-
inafter Appellant], contrary to his pleas, of one specification
of wrongful sexual contact in violation of Article 120(m),
Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920(m) (2006).1
At Appellant’s court-martial, both trial defense counsel
and trial counsel elicited testimony from the victim’s hus-
band about whether he believed his wife’s account of the
1 The members acquitted Appellant of the greater offense of
aggravated sexual assault and of two specifications of wrongful
sexual contact, all of which are in violation of Article 120, UCMJ.
Appellant’s adjudged and approved sentence provided for a reduc-
tion to the pay grade of E-1 and a bad-conduct discharge.
United States v. Martin, Nos. 15-0754/MC & 16-0122/MC
Opinion of the Court
sexual encounter. Upon appellate review, the United States
Navy-Marine Corps Court of Criminal Appeals held that this
testimony constituted inadmissible “human lie detector tes-
timony,” but it affirmed Appellant’s conviction, concluding
that the admission of the testimony did not constitute plain
error because it did not materially prejudice Appellant’s
substantial rights. United States v. Martin, No. NMCCA
201400315, 2015 CCA LEXIS 250, at *9–13, 2015 WL
3793707, at *5 (N-M. Ct. Crim. App. June 18, 2015) (un-
published).
We granted review in this case on the following issue:
Whether the Court of Criminal Appeals erred in
holding that the human lie detector testimony of-
fered by the alleged victim’s husband was not
materially prejudicial.
United States v. Martin, 75 M.J. 59, 59 (C.A.A.F. 2015) (or-
der granting review). Following our grant of review, the
Judge Advocate General of the Navy certified the following
issue for review:
Did trial defense counsel invite error when he
opened the door to human lie detector testimony
during the cross-examination of the victim’s hus-
band?
United States v. Martin, 75 M.J. 109, 109 (C.A.A.F. 2015)
(certificate for review).2
We hold that under the circumstances of this case, trial
defense counsel did invite error when, in the course of con-
ducting cross-examination, he was the first party to elicit
human lie detector testimony from the same witness on the
same evidentiary point. We therefore answer the certified
issue in the affirmative and do not reach the granted issue.
I. Background
In September of 2011, CI3 and her husband, Corporal
(Cpl) AI, attended a pajama party at Appellant’s on-base
2 We heard oral argument in this case at Maxwell Air Force
Base, Montgomery, Alabama, as part of the Court’s “Project Out-
reach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1
(C.A.A.F. 2003). This practice was developed as part of a public
awareness program to demonstrate the operation of a federal
court of appeals and the military justice system.
2
United States v. Martin, Nos. 15-0754/MC & 16-0122/MC
Opinion of the Court
home. Appellant was CI’s platoon sergeant and direct super-
visor at that time. After CI became intoxicated at the party,
CI and Cpl AI went to sleep in Appellant’s guest bedroom.
Cpl AI slept on the side of the bed closest to the wall while
CI slept on the side of the bed closest to the bedroom door.
CI testified at trial that she awoke to Appellant kneeling by
the bed, placing his hand beneath her underwear, and in-
serting his fingers in her vagina. When CI rolled over to try
to wake her husband, Cpl AI told her to stop and to let him
sleep. Appellant left the bedroom as CI tried to wake her
husband.
At trial, the Government called CI’s husband to testify.
On direct examination, trial counsel asked Cpl AI about the
night of the party, to include the following questions:
Q. Now, after you fell asleep that night, do you
have any recollection of touching your wife in a
sexual manner?
A. No, sir.
Q. In your mind, is there any chance that you
could’ve digitally penetrated or put your fingers
inside your wife’s vagina?
A. No, sir.
Q. Why do you say that?
A. It’s never happened before. I have never wok-
en up and just done something like that with my
wife….
Q. And you said it has never happened before
that. Has anything like that ever happened since
that?
A. No, sir.
….
Q. When you originally talked to NCIS you told
NCIS that you thought it possibly could have
been you who had touched your wife?
A. Yes, sir.
3 At the time of the events relevant to this appeal, CI was a
private first class in the Marine Corps. However, she had separat-
ed from the Marine Corps by the time of Appellant’s trial. There-
fore, this opinion will refer to her as CI.
3
United States v. Martin, Nos. 15-0754/MC & 16-0122/MC
Opinion of the Court
Q. Why did you say that?
A. I’m the kind of person that if it’s even remote-
ly an option I think about it like that. I guess
I’m, like, a by-the-numbers-type of person. So, I
mean, my wife could have thought about, you
know, maybe it could have been another night.
But just the way she has been since then, then I
know it wasn’t me. She wouldn’t be acting the
way she does nowadays, like, if it would have
been me. Even if it was something that she
wasn’t expecting from me she wouldn’t be acting
that way.
On cross-examination, trial defense counsel inquired into
Cpl AI’s doubts about CI’s account of the touching:
Q. When she initially told you, she didn’t give
anything in detail, did she?
A. No, sir.
Q. And you initially thought that maybe she im-
agined it?
A. I just -- I was kind of in disbelief.
Q. You thought maybe she dreamed it?
A. Something like that, sir, yes.
Q. The story didn’t really make too much sense
to you?
A. I just figured that if something like that would
have happened then …. where was I in this? …
[I]f something like that were to happen to me,
sir, I would -- I would have stopped it or done
something, like, instantly, sir.
….
Q. [A]t no point after [she told you about the as-
sault,] … you never went and reported it to any-
one, did you?
A. I honestly … [it’s] not like I didn’t believe her,
sir. But it, kind of, it didn’t make too much sense
to me….
Q. Okay. So you weren’t entirely convinced that
this happened then?
A. No, sir.
Q. And you told NCIS that?
4
United States v. Martin, Nos. 15-0754/MC & 16-0122/MC
Opinion of the Court
A. Yes, sir.
Q. You thought that, hey, maybe … it hap-
pened[,] maybe [it] didn’t happen?
A. Yes, sir.
Trial counsel did not object to this questioning. Instead, on
redirect, trial counsel had this exchange with Cpl AI:
Q. Now, you just told the defense counsel that
you had your doubts?
A. Yes, sir.
Q. You do believe your wife, though, correct?
A. I do, sir.
Q. And she’s telling the truth?
A. She is, sir.
Q. And why do you think that?
A. The way … that it’s affected her, the way that
she’s changed, the way that it’s affected our mar-
riage -- the way that it’s negatively impacted us
just as a family -- we have two kids, we have
three dogs, and she’s just depressed. And I un-
derstand that a mother is, obviously, is stressed
out from all that, especially with me deploying
again. But even on good days, she’ll just snap
sometimes. And just the way that it’s affected
her, something as big as it had on her wouldn’t
have happened over a small situation, sir.
Trial defense counsel did not object to this testimony. At no
point during cross-examination or redirect did the military
judge intervene to stop this human lie detector testimony or
provide the members with a curative instruction.
II. Applicable Legal Principles
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.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014)
(citation omitted) (internal quotation marks omitted). “There
is no litmus test for determining whether a witness has of-
fered ‘human lie detector’ evidence.” United States v. Jones,
60 M.J. 964, 969 (A.F. Ct. Crim. App. 2005). If a witness
does not expressly state that he believes a person is truthful,
5
United States v. Martin, Nos. 15-0754/MC & 16-0122/MC
Opinion of the Court
we examine the testimony to determine if it is the “function-
al equivalent of” human lie detector testimony. See United
States v. Brooks, 64 M.J. 325, 329 (C.A.A.F. 2007). Testimo-
ny is the functional equivalent of human lie detector testi-
mony 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. See United States v. Mullins, 69
M.J. 113, 116 (C.A.A.F. 2010); Brooks, 64 M.J. at 329. Hu-
man lie detector evidence is inadmissible at a court-martial,
see Knapp, 73 M.J. at 36, because it is a “fundamental prem-
ise of our criminal trial system [that] ‘the [panel] is the lie
detector’” and “[d]etermin[es] the weight and credibility of
witness testimony,” United States v. Scheffer, 523 U.S. 303,
313 (1998) (quoting United States v. Barnard, 490 F.2d 907,
912 (9th Cir. 1973)).
Although it is inadmissible, we will not find reversible
error from the introduction of human lie detector evidence at
trial when the accused invites its admission. See United
States v. Schlamer, 52 M.J. 80, 86 (C.A.A.F. 1999); United
States v. Eggen, 51 M.J. 159, 161–62 (C.A.A.F. 1999); United
States v. Raya, 45 M.J. 251, 254 (C.A.A.F. 1996). The invited
error doctrine prevents a party from “creat[ing] error and
then tak[ing] advantage of a situation of his own making [on
appeal].” Eggen, 51 M.J. at 162 (internal quotation marks
omitted) (quoting Raya, 45 M.J. at 254). As a result,
“[i]nvited error does not provide a basis for relief.” Raya,
45 M.J. at 254; United States v. Crigler, 10 C.M.A. 263, 265,
27 C.M.R. 337, 339 (1959); United States v. Beer, 6 C.M.A.
180, 185, 19 C.M.R. 306, 311 (1955). The question of wheth-
er trial defense counsel invited an error at trial is a question
of law, which we review de novo. See United States v. Paul,
73 M.J. 274, 277 (C.A.A.F. 2014) (“This Court reviews ques-
tions of law de novo.”).
III. Discussion
We conclude that Cpl AI’s testimony on direct examina-
tion did not rise to the level of actual human lie detector tes-
timony, nor did it constitute the functional equivalent of
human lie detector testimony. We further conclude that al-
though trial counsel did elicit human lie detector testimony
6
United States v. Martin, Nos. 15-0754/MC & 16-0122/MC
Opinion of the Court
on redirect examination, trial defense counsel invited the
error by cross-examining Cpl AI about his doubts regarding
CI’s account.
Appellant raises two arguments to try to convince us
otherwise. First, Appellant suggests that the real reason tri-
al counsel decided to call Cpl AI as a witness was to intro-
duce human lie detector testimony, and thus the Govern-
ment’s improper conduct was the root cause of any error that
followed.
We disagree. The Government had a proper purpose in
calling Cpl AI to testify—he was a fact witness who attended
Appellant’s party and could provide the panel members with
significant details about the events leading up to the sexual
contact, and he was sleeping in the same bed right next to
CI when the sexual contact occurred. Had Cpl AI not testi-
fied, the members would have understandably speculated
about his absence at trial. Further, based on Cpl AI’s initial
statement to NCIS about the incident, the Government had
a legitimate reason to inoculate itself against defense asser-
tions that Cpl AI, not Appellant, was responsible for touch-
ing CI. Additionally, it appears that Appellant did not seek
to block Cpl AI’s testimony at trial for good reason—trial de-
fense counsel wanted to use Cpl AI’s own doubts about CI’s
story to try to create reasonable doubt in the minds of the
panel members. Accordingly, we find an insufficient basis to
conclude that the Government’s decision to call Cpl AI as a
witness was for the improper motive of introducing human
lie detector testimony, and we find no basis to conclude that
this step by the Government somehow invited trial defense
counsel to do so.
Second, Appellant argues that the following exchange be-
tween trial counsel and Cpl AI on direct examination opened
the door to the defense’s introduction of human lie detector
testimony on cross-examination:
Q. When you originally talked to NCIS you told
NCIS that you thought it possibly could have
been you who had touched your wife?
A. Yes, sir.
Q. Why did you say that?
A. I’m the kind of person that if it’s even remote-
ly an option I think about it like that. I guess
7
United States v. Martin, Nos. 15-0754/MC & 16-0122/MC
Opinion of the Court
I’m, like, a by-the-numbers-type of person. So, I
mean, my wife could have thought about, you
know, maybe it could have been another night.
But just the way she has been since then, then I
know it wasn’t me. She wouldn’t be acting the
way she does nowadays, like, if it would have
been me. Even if it was something that she
wasn’t expecting from me she wouldn’t be acting
that way.
Q. And you, kind of, already alluded to this but is
this something that is typical in your relation-
ship with your wife?
A. Is what typical, sir?
Q. You know, in the middle of the night touching
or penetrating your wife’s vagina in this way?
A. No, sir. If anything it would be rolling over. I
might put my hand on my wife’s chest, on her
legs -- on the side of her legs. Like, cuddling, I
guess, is the best way to describe it, sir. But
nothing of extreme sexual. [sic]
Q. You mentioned that she’s been a little differ-
ent. How has your wife’s behavior been different
after this assault occurred?
A. She’s … always been, like, jumpy if you star-
tled her, like anybody would be. But I remember
times, like probably the biggest time -- like I re-
member is she was … cooking something in the
kitchen. Like the stove was on, I came up behind
her, I put my arms around and, like she hit …
something off the stove just because she freaked
out. And probably another, like, main thing I
think of is if -- obviously, you can’t hear very well
in the shower. If I ever, like, walked into the
bathroom while she was showering -- she would,
like, not scream but like get jumpy just because
… she knows it’s me. I would assume she knows
it’s me who is walking in to the room but it just
freaks her out.
According to Appellant, this testimony “provide[d] the mem-
bers an explanation of why [Cpl AI] initially doubted his
wife, but grew to believe in the truth of her allegation.” Ap-
pellant’s Reply/Cross Appellee’s Answer at 6, United States
v. Martin, Nos. 15-0754 & 16-0122 (C.A.A.F. Jan. 20, 2016).
8
United States v. Martin, Nos. 15-0754/MC & 16-0122/MC
Opinion of the Court
We disagree. As even Appellant conceded at oral argu-
ment, Cpl AI did not expressly state during direct examina-
tion that he believed his wife. See Knapp, 73 M.J. at 36.
That does not end our inquiry, however. As noted above,
even if a witness does not expressly state whether he be-
lieves a witness, we examine the witness’s testimony to de-
termine if it constitutes the “functional equivalent” of hu-
man lie detector testimony.
In applying the functional equivalency standard to the
instant case, we note that the relevant portions of Cpl AI’s
testimony on direct examination can be separated into two
categories. First, Cpl AI testified that although he initially
had questioned whether he might have digitally penetrated
his wife on the night of the incident, he ultimately had con-
cluded that he had not done so. This testimony focused on
Cpl AI’s own conduct, not on the truthfulness of his wife.
Second, Cpl AI testified about how his wife’s behavior
had changed since the night of the incident. We conclude
that this constituted permissible lay testimony. It was based
on Cpl AI’s personal knowledge and perceptions of his wife’s
conduct after the alleged assault. This testimony was not
based on specialized or scientific knowledge; Cpl AI merely
provided his personal observations of CI’s behavior. There-
fore, we conclude that Cpl AI’s testimony on direct was not
the functional equivalent of human lie detector evidence be-
cause it did not provide a sufficient inference that he be-
lieved CI was being truthful.4 See Mullins, 69 M.J. at 116.
Cpl AI’s testimony on direct examination was therefore ad-
missible under Military Rule of Evidence 701. Cf. United
States v. Roberson, 65 M.J. 43, 47 (C.A.A.F. 2007) (holding
that witness’s opinion of a person’s reaction to hearing a
statement was admissible lay testimony based on personal
observation). As a consequence, we further conclude that by
eliciting this testimony on direct examination, the Govern-
ment did not open the door for the defense to elicit human
4 We recognize that the members might have inferred from
Cpl AI’s testimony that he believed CI. However, this is not a dis-
positive factor in our analysis of this case. In any court-martial
members might understandably assume that a husband who is
testifying at trial on behalf of the prosecution believes his wife is
telling the truth about an alleged sexual assault.
9
United States v. Martin, Nos. 15-0754/MC & 16-0122/MC
Opinion of the Court
lie detector testimony on cross-examination. Cf. United
States v. Savala, 70 M.J. 70, 71 (C.A.A.F. 2011) (noting that
cross-examination may inquire into otherwise inadmissible
evidence if the prosecution opens the door on direct exami-
nation).
However, as even the Government concedes, its redirect
questioning of Cpl AI clearly elicited human lie detector tes-
timony by asking Cpl AI whether he believed his wife and
whether he thought she was telling the truth. See Knapp, 73
M.J. at 36. We therefore must determine whether trial de-
fense counsel invited this error through his cross-
examination of Cpl AI.
We conclude that trial defense counsel’s cross-
examination of Cpl AI invited the admission of the Govern-
ment’s human lie detector evidence. On cross-examination,
the defense prodded and probed Cpl AI at considerable
length about Cpl AI’s initial doubts about his wife’s version
of events. Specifically, trial defense counsel asked Cpl AI
this series of questions:
Q. And you initially thought that maybe she im-
agined it?
Q. You thought maybe she dreamed it?
Q. The story didn’t really make too much sense
to you?
Q. So you weren’t entirely convinced that this
happened then?
Q. You thought that, hey, maybe -- it happened[,]
maybe [it] didn’t happen?
Accordingly, it should not have come as a surprise to tri-
al defense counsel that when, in the middle of this series of
questions, he asked Cpl AI, “[Y]ou never went and reported
[the assault] to anyone, did you,” that Cpl AI responded by
expressing his view that his wife was being truthful: “[It’s]
not like I didn’t believe her, sir.” Under these circumstances,
we conclude both that Cpl AI’s response constituted human
lie detector testimony, and that the questions by trial de-
fense counsel foreseeably elicited that testimony. See Knapp,
73 M.J. at 36.
Because trial defense counsel first elicited human lie de-
tector evidence on cross-examination, the invited error doc-
10
United States v. Martin, Nos. 15-0754/MC & 16-0122/MC
Opinion of the Court
trine precludes Appellant from complaining about the Gov-
ernment’s elicitation of this type of evidence on redirect. See
United States v. Baker, 432 F.3d 1189, 1216 (11th Cir. 2005)
(“[A] defendant can ‘invite’ non-responsive testimony when
he insists on pursuing a line of questioning after it becomes
apparent that further cross-examination will elicit potential-
ly damaging testimony, and fails to object to the non-
responsive answer when it is given.”), abrogated on other
grounds by Davis v. Washington, 547 U.S. 813, 821 (2006).
Trial counsel was merely eliciting the same type of human
lie detector testimony from the same witness on the same
evidentiary point. This is not prohibited. See Eggen, 51 M.J.
at 162 (“[T]he actions by the defense counsel opened the door
for [the redirect] examination by the prosecutor. Any error
was induced or ‘invited’ by the defense.”). Otherwise, pre-
venting the Government from walking through the door al-
ready opened by the defense would have left the members
with a skewed view of the evidence. See United States v.
Banks, 36 M.J. 150, 162 (C.M.A. 1992) (noting that evidence
“may be admitted in rebuttal when a party ‘opens the door’
by introducing potentially misleading testimony”) (citation
omitted); see also United States v. Segines, 17 F.3d 847, 856
(6th Cir. 1994) (allowing evidence on the same issue “to re-
but any false impression that might have resulted from the
earlier admission”) (citation omitted) (internal quotation
marks omitted). Thus, the defense “open[ed] the door to
prosecution rebuttal.” Schlamer, 52 M.J. at 86. Appellant
cannot now complain on appeal about the admission of the
human lie detector evidence.5
IV. Decision
We answer the certified issue in the affirmative and
therefore do not reach the granted issue. Accordingly, the
decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.
5 Moreover, trial defense counsel never objected to the Gov-
ernment’s elicitation of human lie detector testimony. Appellant
certainly cannot show that the military judge’s acquiescence to the
introduction of this counterbalancing human lie detector testimo-
ny was plainly erroneous. See Schlamer, 52 M.J. at 86; Eggen, 51
M.J. at 162.
11
United States v. Martin, No. 15-0754/MC, No. 16-0122/MC
Judge STUCKY, with whom Chief Judge ERDMANN
joins, dissenting.
At Sergeant (Sgt) Martin’s trial, the scales of justice were
tipped by grossly improper testimony from the victim’s hus-
band explaining why he believed that his wife was “telling
the truth.” Despite the fact that this impermissible evidence
was first introduced by the Government on direct examina-
tion, the majority concludes that the defense invited the er-
ror on cross-examination. United States v. Martin, __ M.J.
__, __ (6-7) (C.A.A.F. 2016). This conclusion fails to realisti-
cally assess the relevant testimony, and I therefore respect-
fully dissent.
I. Invited Error
It is “the jury’s exclusive function to weigh evidence and
determine credibility.” United States v. Kasper, 58 M.J. 314,
315 (C.A.A.F. 2003) (citation omitted) (internal quotation
marks omitted). Thus “an opinion as to whether [a] person
was truthful in making a specific statement regarding a fact
at issue in the case,” also known as human lie detector tes-
timony, is always inadmissible. United States v. Knapp, 73
M.J. 33, 36 (C.A.A.F. 2014) (citation omitted) (internal quo-
tation marks omitted). In direct contravention of this well-
established rule, the Government introduced testimony from
Corporal (Cpl) AI, the alleged victim’s husband, explaining
that he believed his wife’s story.
The majority concludes that during cross-examination,
the defense invited this obvious human lie detector testimo-
ny by prompting Cpl AI to discuss how his wife’s account
originally “didn’t make too much sense.” However, Cpl AI’s
cross-examination testimony merely emphasized and re-
peated the doubts about his wife’s account that he originally
expressed during the Government’s direct examination. Be-
fore the defense ever broached the subject, the Government
asked Cpl AI:
Q. When you originally talked to NCIS you told
NCIS that you thought it possibly could have been
you who had touched your wife?
A. Yes, sir.
United States v. Martin, No. 15-0754/MC, No. 16-0122/MC
Judge STUCKY, dissenting
Q. Why did you say that?
A. I’m the kind of person that if it’s even remotely
an option I think about it like that. I guess I’m,
like, a by-the-numbers-type of person. So, I mean,
my wife could have thought about, you know, may-
be it could have been another night. But just the
way she has been since then, then I know it wasn’t
me. She wouldn’t be acting the way she does nowa-
days, like, if it would have been me. Even if it was
something that she wasn’t expecting from me she
wouldn’t be acting that way.
In this exchange, the Government intentionally brought
up Cpl’s AI’s doubt regarding his wife’s story.1 The majority
emphasizes that the main thrust of Cpl AI’s testimony—
about his “own [potential] conduct” and “how his wife’s be-
havior had changed”—was admissible evidence which “did
not provide a sufficient inference that he believed CI was
being truthful.” Martin, __ M.J. at __ (9). This conclusion
fails to recognize that all of this testimony went to explain
why Cpl AI believed his wife’s story. The majority does not
acknowledge that the introduction to this testimony was Cpl
AI explaining his original doubts, followed by an extensive
explanation for why he now concurred in his wife’s account.
According to the majority:
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 wit-
ness believes [another witness] is truthful or deceit-
ful with respect to an issue at trial.
Id. at __ (6) (citing United States v. Mullins, 69 M.J. 113,
116 (C.A.A.F. 2010); United States v. Brooks, 64 M.J. 325,
329 (C.A.A.F. 2007)). By that very test, Cpl AI’s direct exam-
ination testimony was inadmissible. Although Cpl AI did not
1 Being aware that Cpl AI had expressed these doubts to
NCIS, the Government seemingly wanted to “pull the sting” by
addressing and explaining away the issue before the defense could
exploit it. The Government was then able to bolster CRI’s assault
narrative by asking Cpl AI to explain why his own original mus-
ings—that he himself had groped his wife—could not be true.
2
United States v. Martin, No. 15-0754/MC, No. 16-0122/MC
Judge STUCKY, dissenting
make an explicit statement concerning his wife’s credibility
during direct examination, by explaining that his initial con-
cerns with the truthfulness of his wife’s account had been
alleviated, Cpl AI implied that his wife was, in fact, “truth-
ful in making a specific statement regarding a fact at issue
in the case.” Knapp, 73 M.J. at 36 (citation omitted) (inter-
nal quotation marks omitted).
While trial counsel may have hoped that Cpl AI would
limit himself to explaining his own views, Cpl AI contrasted
his own initial understanding of events with his wife’s: “So, I
mean, my wife could have thought about, you know, maybe
it could have been another night.” By going on to explain in
detail why he could not have been the one “who had touched
[his] wife,” Cpl AI was offering an implicit opinion that his
wife’s story was credible. The substance of this testimony
invaded the court members’ exclusive role in determining
witness credibility, and effectively presented Cpl AI to the
panel as a human lie detector on direct examination.
The majority attempts to dispense with this analysis by
concluding that even if the members inferred from Cpl AI’s
direct testimony that he believed his wife, it is not disposi-
tive of the invited error analysis. Martin, __ M.J. at __ (9
n.4). In reaching this conclusion, the majority explains,
without support, “In any court-martial members might un-
derstandably assume that a husband who is testifying at
trial on behalf of the prosecution believes his wife is telling
the truth about an alleged sexual assault.” Id. Such an as-
sertion overstates the natural assumptions, if any, that ac-
company a husband’s agreement to testify on behalf of the
government, and fails to acknowledge that any “assump-
tions” a panel might make based on a husband’s mere deci-
sion to testify for the prosecution should not alter the legal
analysis. Regardless of the panel’s preconceptions, when a
witness mentions another person’s statement regarding a
fact at issue in the case, and implicitly opines upon the
truthfulness of that statement, that testimony “invade[s] the
province of the court members to determine the credibility of
witnesses.” Mullins, 69 M.J. at 116.
On cross-examination, the defense merely emphasized
Cpl AI’s previously expressed doubt over and over, asking
3
United States v. Martin, No. 15-0754/MC, No. 16-0122/MC
Judge STUCKY, dissenting
Cpl AI, “you initially thought that maybe she imagined it?”
and “[y]ou thought maybe she dreamed it?,” etc. In forcing
Cpl AI to repeat and discuss his doubts, the defense simply
followed where the Government had led.
The doctrine of invited error is intended to hold parties
responsible for their own actions. United States v. Raya, 45
M.J. 251, 254 (C.A.A.F. 1996). If anything, it was the Gov-
ernment that first invited error in Sgt Martin’s case, and
then completed it with blatant human lie detector testimony
on redirect.
II. Prejudice
Once the question of invited error is resolved, the preju-
dicial impact of the ultimate error is obvious.2 To show prej-
udice, Appellant must demonstrate that there is “a reasona-
ble probability that the error affected the outcome of the
trial.” United States v. Marcus, 560 U.S. 258, 262 (2010). By
every measure, and on every factor, the impact of this error
was significant.
It is helpful to begin by quoting the offending portion of
the record—a direct, detailed endorsement of the victim’s
testimony on redirect, by her husband of three years:
Q. Now, you just told the defense counsel that you
had your doubts?
A. Yes, sir.
Q. You do believe your wife though, correct?
A. I do, sir.
Q. And she’s telling the truth?
A. She is, sir.
Q. And why do you think that?
A. The way — the way that it’s affected her, the
way that she’s changed, the way that it’s affected
our marriage — the way that it’s negatively im-
2 Because the defense never objected, we review for plain er-
ror. Knapp, 73 M.J. at 36 (“Appellant has the burden of establish-
ing (1) error that is (2) clear or obvious and (3) results in material
prejudice to his substantial rights.”). As Cpl AI’s human lie detec-
tor testimony was obvious error, we proceed directly to analyzing
whether the error was harmless.
4
United States v. Martin, No. 15-0754/MC, No. 16-0122/MC
Judge STUCKY, dissenting
pacted us just as a family — we have two kids, we
have three dogs, and she’s just depressed. And I
understand that a mother is, obviously, is stressed
out from all that, especially with me deploying
again. But even on good days, she’ll just snap some-
times. And just the way that it’s affected her, some-
thing as big as it had on her wouldn’t just have
happened over a small situation, sir.
This is important testimony—erroneously admitted—on a
central issue in the case.
In cases where the Government relies heavily upon the
credibility of the victim, we have consistently found that
opinion testimony validating that victim’s testimony was
prejudicial. United States v. Birdsall, 47 M.J. 404, 410
(C.A.A.F. 1998) (“testimony was focused directly on the key
issue in this trial, i.e., the [victims’] credibility”); United
States v. Petersen, 24 M.J. 283, 284 (C.M.A. 1987) (in a case
with inconclusive physical evidence of sexual abuse, witness
testified that she found the victim’s version of events
“[g]reatly” believable).
Just as in Birdsall and Petersen, CRI’s account was the
foundation of the Government’s case, which was anything
but strong. The only other eyewitness, Mr. West, provided a
markedly different description than the one conveyed by
CRI, claiming that Sgt Martin climbed into the bed and re-
moved his shirt, while CRI said that he knelt beside the bed
and remained fully clothed. Several of Mr. West’s co-workers
testified that he was not a truthful person. The defense also
challenged CRI’s credibility on multiple grounds: her ac-
count conflicted with Mr. West’s, a coworker testified that
she was not trustworthy, and she was attempting to relate
an event that allegedly occurred as she awoke from an intox-
icated sleep.
Moreover, the military judge sat passively while all of
this transpired. She did nothing to inform the panel that
they were not allowed to consider Cpl AI’s opinion when de-
ciding whether to believe his wife. Without such an instruc-
tion, the members would almost have to be superhuman to
disregard such obviously relevant testimony, especially since
the defense argued during closing argument that “her own
husband is not convinced,” and the Government responded
5
United States v. Martin, No. 15-0754/MC, No. 16-0122/MC
Judge STUCKY, dissenting
by hammering home that “he came back and he told you,
verbatim, that he believed his wife.”
As Sgt Martin’s fate hung on the testimony of an intoxi-
cated victim and a witness with a track record of untruth-
fulness, Cpl AI’s stamp of approval became, of necessity, a
cornerstone of the Government’s case. His detailed, emo-
tional testimony explained how his home life convinced him
that CRI was telling the truth. This testimony could not but
affect the panel’s evaluation of CRI’s credibility, and thus
the Government’s case. Appellant has demonstrated “a rea-
sonable probability that the error affected the outcome of the
trial.” Marcus, 560 U.S. at 262.
The majority allows Sgt Martin’s conviction to stand, de-
spite this obvious and prejudicial error. I respectfully dis-
sent.
6