Wow! NMCCA holds application of Mil. R. Evid. 707 unconstitutional

You probably recall United States v. Scheffer, 523 U.S. 303 (1998), the Supreme Court decision that upheld the constitutionality of Military Rule of Evidence 707. In a bold published decision authored by Judge Couch, NMCCA has distinguished Scheffer by finding that the particular application of Rule 707 in this case implicates the Scheffer concurring Justices' view that "some later case might present a more compelling case for introduction of the testimony than this one does." United States v. Wheeler, __ M.J. ___, No. NMCCA 200602348, slip op. at 7 (N-M. Ct. Crim. App. May 15, 2008) (quoting Scheffer, 523 U.S. at 318 (Kennedy, J., concurring)).

Petty Officer Wheeler was charged with engaging in that stereotypical Navy offense: conspiracy to steal money from soda machines aboard USS BELLEAU WOOD -- the classic pop pilfer. (Apparently Sailors on BELLEAU WOOD are quite thirsty; the amount of the alleged larceny was $10,000.) During a 10-hour interrogation by NCIS, Petty Officer Wheeler was polygraphed four times. Wheeler was told that the first three polygraph results were inconclusive and that the fourth showed he was being "deceptive." An NCIS agent then confronted Wheeler and accused him of lying.

At trial, Wheeler testified that the agent "led him to believe that he would be convicted based upon the evidence of the failed polygraph." Id., slip op. at 3. The agent who interrogated him denied telling Wheeler that he could be convicted based on the false polygraph. Wheeler ultimately admitted to "personally receiving between $5,000.00 and $6,000.00 of the stolen money," though at Wheeler's trial, "SH1 Jones testified that he alone was responsible for the theft of the money from the soda machines, and that he did not conspire with" Wheeler. Id., slip op. at 3 n.3.

The defense moved to suppress Wheeler's confession. When that motion was denied, "the defense moved in limine to permit the introduction of evidence related to his polygraph examinations." Id., slip op. at 4. This motion "focused on the circumstances surrounding the polygraph examinations and not on the specific results." Id. The defense expressly argued that the evidence concerning the polygraphs would "show what may have motivated a false confession." Id. "The military judge ruled that the polygraph evidence sought by the appellant was inadmissible under MIL. R. EVID. 707 and United States v. Scheffer, 523 U.S. 303 (1998), and denied the defense motion in limine . . . ." Id., slip op. at 5.

NMCCA reversed, ruling that "the military judge erred in denying the appellant's motion in limine because MIL. R. EVID. 707 is unconstitutional as applied to the narrow circumstances presented in this case." Id., slip op. at 6.

The court observed that in Scheffer, Justices Kennedy, O'Connor, Ginsburg, and Breyer "expressed 'doubt . . . that the rule of per se exclusion is wise,' and observed that 'some later case might present a more compelling case for introduction of the testimony than this one does.'" Id., slip op. at 7 (ellipsis in original) (quoting Scheffer, 523 U.S. at 318 (Kennedy, J., concurring)). NMCCA concluded that this is such a case.

The court observed that "a confession of the accused is strong evidence, and the accused should be afforded ample opportunity to confront it." Id., slip op. at 7 (citing Crane v. Kentucky, 476 U.S. 683, 689-90 (1986)). NMCCA reasoned that "[t]he military judge's application of Rule 707 clearly prevented the appellant from presenting factual matters -- the numerous polygraph examinations and the polygraph examiner's characterizations of the results -- which are extremely relevant in explaining the res gestae of his subsequent confession." Id., slip op. at 8. NMCCA concluded that "the military judge's application of the rule 'infringed upon a weighty interest of the accused': his ability to testify in his own defense." Id. NMCCA also noted that the Air Force Court has "recognized an exception to Rule 707's general exclusion when polygraph evidence is sought to be admitted by the prosecution to rebut an appellant's challenge to 'the voluntariness of his admissions to the investigators.'" Id. at 9 (quoting United States v. Kawai, 63 M.J. 591, 596 (A.F.Ct.Crim.App. 2006)).

Discussing the issue's context in this case, NMCCA explained:

The Government obtained the appellant's confession after employing a series of polygraph examinations as an investigatory tool. Under these circumstances, the appellant's understanding and perception of those polygraph examinations are important factual matters related to his confession. Even though the appellant was unsuccessful in suppressing his confession, he still had the right 'to present relevant evidence with respect to the voluntariness of the statement' during the trial on the merits. MIL. R. EVID. 304(e)(2). See Major Scott E. Reid, Military Rule of Evidence 707 and the Art of Post-Polygraph Interrogation: A Proposed Amendment to the Blanket Exclusionary Rule, 2001 Army Law 1, 5 (2001). Therefore, we hold that the appellant was denied this right when the military judge prohibited him from presenting factual evidence, relevant to his statement's voluntariness and credibility, in the form of his own testimony regarding the polygraph examinations.

Id., slip op. at 9-10.

NMCCA set aside the findings and sentence and authorized a rehearing.

I'd place the odds of a JAG certification about the same as the odds of Big Brown winning tomorrow's Preakness.