Military court decisions regarding interrogation issues

Military Court supports Reid Technique
In US v. Freeman the U.S. Air Force Court of Criminal Appeals affirmed the conviction of Freeman for "one specification of false official statement and one specification of assault with a means or force likely to cause death or grievous bodily harm." In reviewing the investigator's interrogation techniques (which he had identified as The Reid Technique) which elicited an incriminating statement from Freeman, the Court found that "We find no basis to conclude that the AFOSI overbore the appellant's will in eliciting the incriminating statement. Despite the fact that the interrogation was relatively lengthy, we conclude the circumstances do not evidence coercion within the meaning of Mil. R. Evid. 304. Additionally, none of the trickery which the agents employed appears to have been calculated to produce a false confession; rather, it is generally consistent with standard police practices." Click here for the complete decision.

10 hour interrogation of a suspect with a low intellect and lacking sleep should have been admissible
In US v. Aguilar the US Army Court of Criminal Appeals reversed a trial court judge's opinion who had ruled that "The accused was in custody and subject to questioning by CID from 0200 hours until after 1200 hours, a total of over [ten] hours. The accused was properly read his rights under Article 31 [UCMJ]. However, the length of the interview and the lack of sleep of the accused and his low intellect made for a setting which was not conducive to the taking of a knowing and voluntary statement."

The Court of Criminal Appeals concluded that "There were no findings of unfair or coercive activity by SA Starry and under the circumstances appellee's will was not overborne by fatigue and low intelligence. Applying the correct law to the correct facts, the Court concludes appellee voluntarily signed a statement he chose to make."

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Testifying about the defendant’s credibility

In US v. Knapp the U.S. Air Force Court of Criminal Appeals stated that, "The appellant contends on appeal that the prosecution improperly offered testimony from Agent P that he could tell appellant was acting in a deceitful and untruthful manner when discussing the sexual intercourse because (1) the appellant would not make eye contact, (2) large red blotches would appear on his face, and (3) his commentary became less detailed. He also argues the military judge should have provided a curative instruction to the members on their use of this testimony. When we put the challenged testimony in context and consider the seven factors found in Jones, we do not find its admission to be prejudicial error."

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Dr. Oshe’s theory regarding coercive interrogations “not based on rigorous scientific analysis”

In US v Wilson the U.S. Navy-Marine Corps Court of Appeals upheld the trial judge's decision to exclude Dr. Richard Ofhe's testimony. In their decision the Court of Appeals stated:

"In essence, the military judge found that Dr. Ofshe's theory regarding coercive interrogations was not based on rigorous scientific analysis or even subject to scientific testing but was rather Dr. Ofshe's own subjective review of a group of particularly selected cases. By way of example, at one point Dr. Ofshe testified that his theory concerning the impact of certain police interrogation techniques on the danger of false confessions was as intuitive as the fact that the sun will come up each day. Essentially he argues that we can't necessarily prove causation but we just know how it works. Id. at 5, Record at 1202. The military judge's finding that the proffered theory was not scientifically sound was wholly supported by the affidavits of Professor Cassell and LtCol Slicner. Professor Cassell, after noting that he is familiar with Dr. Ofshe's research, opines that Dr. Ofshe's theories "have not been sufficiently tested ... have an unacceptably high rate of error ... depart from accepted standards ... and have not been accepted in the relevant scientific community...." Appellate Exhibit LXVII at 2. LtCol Slicner, opining more generally on research into the causes of false confessions, observes that to her knowledge there are no "scientifically reliable studies" that associate particular personality traits or the nature of the interrogation with false confessions. She opines that one cannot "hold so many unusual and diverse variables constant in order to study the effect of one or more clearly identifying variables." Appellate Exhibit LXVIII at 2. Having determined that Dr. Ofshe's theory was not based on sufficient scientific rigor to be reliable and that it was not widely accepted within the relevant scientific community, the military judge went on to rule that the witness could testify only to his rather commonsensical opinions that "false confessions do occur" and that "some persons have, after certain techniques have been used, made false confessions." Appellate Exhibit LXXII at 5. The military judge then found, as the appellant asserts, that the opinions Dr. Ofshe could legitimately testify to were not beyond the experience of the average member and therefore of such minimal value as to be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The underlying basis for the military judge's decision, however, was that Dr. Ofshe's expert opinion testimony was not scientifically reliable. We find, therefore, that there was ample evidence supporting the inadmissibility of Dr. Ofshe's expert testimony and that the military judge did not abuse his discretion when he excluded it." Click here for the complete decision

Military Appeals Court upholds decision to deny defendant's request for assistance of expert in coercive interrogation techniques
In US v. Cannon the US Army Court of Criminal Appeals upheld the military judge's decision to deny the defendant's request for assistance of expert in coercive law enforcement interrogation techniques. From the court's opinion:
Appellant was charged with the premeditated murder of MG. After the convening authority denied defense's request for expert assistance, appellant motioned the trial court to compel the expert assistance of a forensic psychologist--a purported expert in the study of coercive interrogations. The psychologist did not testify during the motion hearing. Instead, appellant provided the curriculum vitae of the psychologist and outlined why the assistant was needed and how he would be used. In support of the motion, appellant signed an affidavit disavowing his confession. Also, prior to trial, a Rule for Courts-Martial [hereinafter R.C.M.] 706 board diagnosed appellant with "Bereavement" under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. After both written and oral submissions, the military judge denied the defense's motion to compel the "false confession" expert consultant. Appellant now argues the military judge erred in denying his motion for expert assistance.
Here,...we find that the defense has failed to meet its evidentiary burden in demonstrating need. While the defense has offered some suggestions that appellant's confession may have been false (including appellant's self-serving affidavit disavowing his confession), defense counsel ultimately admitted the request for expert assistance was needed to help them determine the voluntariness and trustworthiness of the appellant's confession. Defense counsel does not provide evidence that appellant was susceptible to coercion, of low intelligence, or had any mental disorder or condition that might make it more likely that he confess falsely. While appellant was diagnosed with bereavement at his R.C.M. 706 board, defense counsel failed to link this assessment to the notion of false confession. In fact, defense counsel specifically stated it needs expert assistance to run a series of psychological tests to determine if appellant suffered from "intellectual deficits" impacting his ability to process information or if he was open to suggestibility without offering evidence to support this hypothesis.
Trial defense counsel also failed to proffer any information or professional studies related to false confession issues to demonstrate the link to this case and failed to present testimony of the expert on the record. Further, defense counsel justified their request for an expert assistant to review whether the interrogation method applied by the investigator was suggestive or coercive. We find defense's proffer does not demonstrate necessity and amounts to the "mere possibility of assistance" from a requested expert.
We agree with the ultimate conclusion that the defense motion for expert assistance should have been denied based on what the defense proffered.
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Military Appeals Court upholds decision to exclude testimony of false confession expert –Dr. Christian Meissner

In US v. Bell the U.S. Army of Criminal Appeals upheld a lower court's decision to exclude the testimony of Dr. Christian Meissner, stating that, "The defense counsel did not provide any evidence that the appellant was unusually susceptible to coercion or had any abnormal mental or emotional problems that might make him more vulnerable to confessing falsely. The military judge found the defense could not articulate exactly what Dr. Meissner could do for the defense theory, and characterized the use of the expert as akin to a "fishing expedition." Click here for the complete decision.

Military court rules that it was error to exclude the testimony of Dr. Richard Ofshe on the issue of coercive interrogation techniques
In the case of US v. McGinnis the US Army Court of Criminal Appeals agreed with appellant's claim that "the military judge abused his discretion in denying the defense request for expert assistance "in the area of coercive law enforcement techniques which may lead to a false confession." In their decision the Court stated the following:
"Here, appellant "made a specific request for expert assistance necessary for his defense on a central issue in a closely contested case. The military judge erred in denying the defense the equal opportunity to obtain evidence and witnesses guaranteed by Article 46 of the Uniform Code of Military Justice." Lloyd, 69 M.J. at 101 (Effron, J., dissenting). While defense counsel was able to consult briefly with Dr. Ofshe, educate himself on coercive interrogation techniques and obtain CID's training slides, he was hindered from fully preparing his defense by having an expert as a member of his defense team. .....While he was able to present the concession from the same CID agents who took appellant's confession that false confessions do occur, defense counsel was prevented from obtaining expert assistance, which might have allowed him, through cross-examination or direct testimony, to present evidence to the panel on the study of coercive interrogation techniques, why they work, and how some of appellant's specific characteristics and the circumstances of this case may have made appellant particularly vulnerable to the interrogators' coercive techniques. Defense counsel was also unable to obtain from the CID agents a concession that any of their interrogation techniques could have led to unreliable admissions in this case. Instead, as a result of the military judge's error, "the defense was compelled to rely on arguments by counsel drawing inferences from lay testimony without the benefit of" expert assistance to prepare for trial and potentially, expert testimony to educate the panel regarding the study of coercive interrogations and the study of false confessions. Lloyd, 69 M.J. at 102 (Effron, J., dissenting).
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Military court limits the testimony of Dr. Christian Meissner on the defendant's "heightened suggestibility and manipulation" as a result of his interrogation
In US v. Markis the US Army Court of Criminal Appeals ruled that "any legal error attached to the military judge's limitation on Dr. Meissner's testimony does not rise to the level of a constitutional magnitude and appellant was not denied "a meaningful opportunity to present a complete defense."

In this case, the military judge informed civilian defense counsel before Dr. Meissner testified, "You can't ask him any hypotheticals, unless you run it by me ... and I better not hear any hypothetical questions about the facts in this case from that guy." The record of trial demonstrates the military judge clearly did not want the witness to opine that appellant's confessions were merely the product of his suggestibility, as this would "usurp the exclusive function of the jury to weigh the evidence and determine credibility." United States v. Brooks, 64 M.J. 325, 328 (C.A.A .F.2007). Specifically, the military judge expressed his concerns that "he is interposing his own judgment for that of the members" and "you're asking him to interpose his own judgment about whether or not the interrogation conducted by CID may have been suggestive or not. That's not for him to say. That's for the members to decide." Click here for the complete decision.

Military court upholds the decision to exclude Dr. Richard Ofshe's testimony
In the case US v. Griffee the US Army Court of Criminal Appeals upheld the trial court's decision to exclude the testimony of Dr. Ofshe. The trail court stated that, "[Defense] has failed to demonstrate how the assistance of Dr. Ofshe or any expert in the purported field of "false confessions" is necessary to challenge the voluntariness of the accused's confessions."

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