As a defense counsel, I’m always looking for ways in which the prosecutor has opened the door to relevant evidence, but which for some reasons has been excluded or can’t be offered. MRE 412 comes to mind, as happened to me at trial in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).
But, BUT, as a defense counsel, I’m equally conscious of how I can do something to open the door. I might have successfully litigated a motion in limine to exclude evidence. But now I have the key and have to be careful I don’t give it to the prosecution to use.
There are other ways the defense can open the door to otherwise inadmissible evidence. United States v. Martin just decided by NMCCA is a case in point. Although the appellate court ultimately found the proescutions questions plainly wrong, the damage was done and they court found no prejudice.
From legal precedent, we discern several, nonexclusive factors relevant to an assessment of whether “human lie detector” testimony was prejudicial: (1) the role of the Government counsel in initiating or furthering objectionable testimony (Kasper, 58 M.J. at 314); (2) the role of the defense counsel, particularly if it appears the defense initiated the testimony for strategic reasons (United States v. Schlamer, 52 M.J. 80 (C.A.A.F. 1999)); (3) the defense’s failure to object or request cautionary instructions (United States v. Halford, 50 M.J. 402 (C.A.A.F. 1999)); (4) whether the witness has been asked for specific conclusions or their opinion about the truth or falsity of another’s statements or allegations, or about whether a crime occurred (United States v. Anderson, 51 M.J. 145 (C.A.A.F. 1999); United States v. Birdsall, 47 M.J. 404 (C.A.A.F. 1998); United States v. Marrie, 43 M.J. 35 (C.A.A.F. 1995)); (5) whether the testimony in question is on a central or peripheral matter (Kasper, 58 M.J. at 314; United States v. Robbins, 52 M.J. 455 (C.A.A.F. 2000); Birdsall, 47 M.J. at 404); (6) whether the trial was before members or by military judge alone (Robbins, 52 M.J. at 455; United States v. Raya, 45 M.J. 251 (C.A.A.F. 1996)); and (7) the remedial action, if any, taken by the military judge. United States v. Eggen, 51 M.J. 159 (C.A.A.F. 1999). See United States v. Jones, 60 M.J. 964, 969 (A.F.Ct.Crim.App. 2005). While the trial was before members and while Cpl AI was asked specifically whether he believed his wife was lying – the central issue in this case – we are not convinced that the error had an unfair prejudicial impact on the member’s deliberations.