Petition for Writ of Certiorari — United States v. Scheffer

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N 961138 JAN 16 1997,

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ge —

In the Supreme Cuurt of the United States

OCTOBER TERM, 1996

UNITED STATES OF AMERICA, PETITIONER

EDWARD G. SCHEFFER

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

WALTER DELLINGER

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

MICHAEL J. BRESLIN MIGUEL A. ESTRADA

Lt. Colonel, USAF Assistant to the Solicitor

Appellate Government General

Division Department of Justice

Bolling Air Force Base Washington, D.C. 20530-0001

Washington, D.C. 20332 (202) 514-2217

QUESTION PRESENTED

Whether Military Rule of Evidence 707, which

provides that evidence of a polygraph examination is

not admissible in court-martial proceedings, is an un-

constitutional abridgment of military defendants’

right to present a defense.

(I)

TABLE OF CONTENTS

Page

EEE 1

EEE . . 1

Rule and constitutional — involved eon 2

Reasons for granting the petition ......... 1 ee 11

Ee 18

Ee la

... 25a

Appendix C * 54a

EES EI = 77a

A 79a

TABLE OF AUTHORITIES

Cases:

Bashor v. Risley, 730 F.2d 1228 (9th Cir.), cert.

denied, 469 U.S. 838 (1984) 13-14

Brady v. Maryland, 373 U.S. 83 (1963) 10

Chambers v. Mississippi, 410 U.S. 284 (19733 ~

Commonwealth v. Mendes, 547 N.E.2d 35 (Mass.

EG 12

Crane v. Kentucky, 476 U.S. 683 (1986) 14. 15

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.

579 (1993) ain 13

Frye v. United States, 293 F. 1013 (D.C. 1923) a 13

Goldman v. Weinberger, 475 U.S. 503 (1986) 17

Jackson v. Garrison, 677 F.2d 371 (4th Cir.), cert.

denied, 454 U.S. 1036 (1981) 13

Loving v. United States, 116 8. Ct. 1737 (4996) 16

Middendorf v. Henry, 425 U.S. 25 (1976) 17

Montana v. Egelhoff, 116 8. Ct. 2013 1996) 8 9, 10, 15

Morton v. Commonwealth, 817 S.W.2d 218 (Ky.

EE EE * 12

Parker v. Levy, 417 U.S. 733 (19737 16

(im)

Cases—Continued : Page

Robinson v. Commonwealth, 341 S.E.2d 159 (Va.

a 12

Rock v. Arkansas, 483 U.S. 44 (1987) .......... — 8, 9, 15

Schlesinger v. Councilman, 420 U.S. 738 (1975) 16

State v. Lyon, 744 P.2d 231 (Or. 1987) 12

State v. Miller, 522 A.2d 249 (Conn. 1987) 12

State v. Okumura, 894 P.2d 80 (Haw. 1995) 12

Strickland v. Washington, 466 U.S. 668 (1984) 14

Taylor v. Illinois, 484 U.S. 400 (198)) 14

United States ex rel. Toth v. Quarles, 350 U.S. 11

— . 16, 17

United States v. Cordoba, No. 95-50492 (9th Cir.

Jan. 7, 1997) * 13

United States v. Gipeon, 24 MJ. 246 (CMA.

1987) 3,4

United States v. — 688 F.2d 42 (Sth Cir.

1982) — ; 14

United States v. . Posado, 87 ‘F.3d 428 (öth Cir.

1995) 13

United States v. Skerlin, 67 F.3d 1208 (6th Cir.

1995), cert. denied, 116 S. Ct. 795, and 116 S. Ct.

SGD CD —— 13

United States v. Williams, 43 M.J. 348 (C.A.A.F.

1995), cert. denied, 116 S. Ct. 925 (1996) 10

Washington v. Texas, 388 U.S. 14 (1967) ............. 8,14

Weiss v. United States, 510 U.S. 163 (19944 16, 17

Wood v. Bartholomew, 116 8. Ct. 7 (19995 10

Constitution, statutes and rules:

U.S. Const. :

NE w 17

ee 2

— 2, 9, 11, 14, 16, 17

Uniform Code of Military Justice, 10 U.S.C. 801

et seq.:

Art. 36 (a), 10 U.S.C. 886 (a) 4. 17

28000 2

Statutes an rules —Continued: Page

Art. 112a, 10 U.S.C. 9122 3 2

J Bs I cetetrscncnccccecencessctnescecnens 2

Fed. R. Evid. :

F italia 13

EE 8 2 13

Military Rules of Evidence:

/,, CE en ee a 10

Rule 702 4

r 2. 4. 7. 8. 9, 10, 11. 12, 15, 16

, EY RE Pr Ry eae 2

F .. 2

Miscellaneous:

Exec. Order No. 12,767, 3 C. F. R. 334 (1991

—1777 ̃ ¶ (AAA 4

C. Honts & B. Quick, The Polygraph in 1995:

Progress in Science and the Law, 71 N.D. L.

an Z 3

„ & E. Imwinkelried, Scientific Evi-

n 3. 13

— — — —

In the Supreme Court of the United States

OCTOBER TERM, 1996

No.

UNITED STATES OF AMERICA, PETITIONER

EDWARD G. SCHEFFER

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of the

United States, petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Armed Forces in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-24a) is reported at 44 M.J. 442. The opinion of

the Air Force Court of Criminal Appeals (App.,

infra, 25a-53a) is reported at 41 M.J. 683.

JURISDICTION

The judgment of the United States Court of Ap-

peals for the Armed Forces was entered on Septem-

ber 18, 1996. On December 10, 1996, Chief Justice

(1)

Rehnquist extended the time within which to file a

petition for a writ of certiorari to and including

January 16, 1997. The jurisdiction of this Court is

invoked under 28 U.S.C. 1259(3).

RULE AND

CONSTITUTIONAL PROVISIONS INVOLVED

Military Rule of Evidence 707 provides:

(a) Notwithstanding any other provision of law,

the results of a polygraph examination, the opin-

ion of a polygraph examiner, or any reference

to an offer to take, failure to take, or taking of

a polygraph examination, shall not be admitted

into evidence.

(b) Nothing in this section is intended to ex-

clude from evidence statements made during a

polygraph examination which are otherwise ad-

missible.

The Fifth and Sixth Amendments to the United

States Constitution are reprinted at App., infra,

77a-78a.

STATEMENT

Following trial by a general court-martial, re-

spondent was convicted of uttering 17 insufficient-

funds checks, using methamphetamine, failing to go

to his appointed place of duty, and wrongfully ab-

senting himself from the base for 13 days, in viola-

tion of Articles 123a, 112a, and 86 of the Uniform

Code of Military Justice (UCMJ), 10 U.S.C. 923a,

912a, and 886. He was sentenced to 30 months’ con-

finement, to forfeiture of all pay and allowances, and

to a bad conduct discharge. The Air Force Court of

Criminal Appeals affirmed, with the proviso that

* — ee

respondent should receive eredit for one day's for-

feitures. App., infra, 25a-53a. The Court of Appeals

for the Armed Forces reversed and remanded. Id.

at la-24a.

1. This case involves the constitutional validity of

a rule excluding from court-martial proceedings in

the armed forces any evidence of a polygraph exami-

nation. In broad terms, a polygraph examination is

a credibility assessment; it is based on an expert

examiner’s interpretation of physiological responses

that are controlled by the subject’s autonomous ner-

vous system. After a preliminary interview with the

subject, the examiner asks a number of questions

while measuring the subject’s relative blood pressure

(obtained from an inflated cuff on the upper arm)

and other indications of blood flow, his “galvanic skin

response” (¢.g., palmar sweating), and his respira-

tion (obtained from sensors placed on the subject’s

chest or abdomen). The questions asked in most tests

ordinarily fall into three broad categories: direct

accusatory questions concerning the matter under in-

vestigation, irrelevant or neutral questions, and more

general (so-called control“) questions concerning

whether the subject has engaged in wrongdoing. The

examiner forms an opinion with respect to the sub-

ject’s truthfulness by comparing the subject’s physio-

logical reactions to each set of questions. See gener-

ally 1 P. Giannelli & E. Imwinkelried, Scientifie Evi-

dence 219-222 (2d ed. 1993); C. Honts & B. Quick,

The Polygraph in 1995: Progress in Science and the

Law, 71 N.D.L. Rev. 987, 989-993 (1995).

In United States v. Gipson, 24 M.J. 246 (1987),

the Court of Military Appeals (now the Court of

Appeals for the Armed Forces) concluded that poly-

graph techniques had reached a sufficient degree of

reliability that evidence of a polygraph examination

should not be routinely excluded from court-martial

proceedings under Military Rule of Evidence 702.’

The court noted that “[{i]f anything is clear, it is

that the battle over polygraph reliability will continue

to rage,” but it concluded that “until the balance of

opinion shifts decisively in one direction or the other,

the latest developments * * * should be marshaled at

the trial level.” 24 M.J. at 253. Accordingly, the

court held that a serviceman who testifies at his court-

martial trial is entitled to lay a foundation showing

the scientific basis for polygraph results consistent

with his exculpatory testimony. Id. at 252-253.

On June 27, 1991, “[b]y the authority vested in

[him] as President by the Constitution of the United

States and by chapter 47 of title 10 of the United

States Code [i.e., the UCMJ],” the President re-

sponded to Gipson by promulgating Military Rule of

Evidence 707.2 See Exec. Order No. 12,767, 3 C.F.R.

334, 339-340 (1991 comp.). The drafters’ commen-

1 Military Rule of Evidence 702, like its counterpart in the

Federal Rules of Evidence, provides that “[i]f scientific, tech-

nical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the

form of an opinion or otherwise.”

Article 36 (a) of the UCMJ, 10 U.S.C. 836 (a), provides

that “[p]retrial, trial, and post-trial procedures, including

modes of proof * * * may be prescribed by the President by

regulations which shall, so far as he considers practicable,

apply the principles of law and the rules of evidence generally

recognized in the trial of criminal cases in the United States

district courts.”

ee ee

tary that accompanied the rule explained its adoption

by reference to several policies:

There is a real danger that court members will

be misled by polygraph evidence that “is likely

to be shrouded with an aura of near-infallibility.”

United States v. Alexander, 526 F.2d 161, 168-

169 (8th Cir. 1975). * * * There is also a

danger of confusion of the issues, especially when

conflicting polygraph evidence diverts the [court-

martial] members’ attention from a determina-

tion of guilt or innocence to a judgment of the

validity and limitations of the polygraphs. * * *

Polygraph evidence also can result in a sub-

stantial waste of time when the collateral issues

regarding the reliability of the particular test

and qualifications of the specific polygraph ex-

aminer must be litigated in every case. Poly-

graph evidence places a burden on the adminis-

tration of justice that outweighs the probative

value of the evidence.

App., infra, 82a-83a. Those considerations, the

drafters stated, warrant “a bright-line rule that poly-

graph evidence is not admissible by any party to a

court-martial.” Jd. at 83a.

. 2. On March 27, 1992, respondent, an airman sta-

tioned at March Air Force Base, California, opened

a checking account with the Security Pacific Bank

with a $277 deposit. He made no arrangements for

his pay to be deposited into the account, and he with-

drew $200 on the same day the account was opened.

On March 31, 1992, respondent telephoned the bank

and stated that he had lost his ATM card and the

temporary checks that the bank had issued for the

account. He was apparently told that the account

would be closed for security reasons. After that tele-

phone call, between April 1 and May 3, respondent

wrote 17 checks on the account, totalling approxi-

mately $3,300 in checks drawn on insufficient funds.

See App., infra, 25a; 3 Trial Rec. 237-245, 249.

In late March 1992, as he was beginning the Secu-

rity Pacific scheme, respondent volunteered to assist

the Air Force Office of Special Investigations (OSI)

with drug investigations, and informed OSI that he

had information on two civilians who were dealing

in significant quantities of drugs. App., infra, 2a,

26a. On April 7, 1992, one of the OSI agents super-

vising respondent requested that respondent submit

to a urine test. Respondent agreed, but he stated that

he could not provide a urine specimen then, because

he urinated only once a day. He submitted to a

urinalysis on the following day. On May 14, 1992,

OSI agents learned that respondent’s urine had tested

positive for methamphetamine. Id. at 26a-27a.

On April 10, 1992, two days after providing a urine

sample, respondent agreed to take a polygraph admin-

istered by an OSI examiner. According to the exam-

iner, respondent’s polygraph charts “indicated no de-

ception” when respondent denied that he had used

drugs since joining the Air Force. App., infra, 2a-3a,

26a-27a. Later that month, on April 30, 1992, re-

spondent unaccountably failed to appear for work

and could not be found on the base. Respondent was

not heard from again until May 13, 1992, when an

Iowa State Patrolman telephoned the base with news

that respondent had been arrested in that State fol-

lowing a routine traffic stop; upon learning that

respondent was AWOL, the patrolman held re-

spondent for return to the base. See 3 Trial Rec.

258-259, 265-267.

— —ͤ

At his trial, respondent advised the court that he

intended to testify in his defense, and that he wished

to rely on “the results of the exculpatory polygraph”

to corroborate “an innocent ingestion defense” to the

drug charges. 2 Trial Rec. 42, 43-44. Respondent

argued that Rule 707 ‘is unconstitutional if it pro-

hibits an accused from introducing relevant and help-

ful exculpatory evidence,” and he argued that he

should be permitted to lay a foundation “to show

that in this particular case * * * the polygraph

results are relevant and helpful.” 2 Trial Rec. 44.

The military judge noted that [for evidence to

be helpful, the testimony of the polygrapher would

have to be in an area in which the factfinder him-

self needs help in making a decision.” 2 Trial Rec.

46. In his view,

the President may, through the Rules of Evi-

dence, determine that credibility is not an area

in which a fact finder needs help, and the poly-

graph is not a process that has sufficient scientific

acceptability to be relevant.

Ibid. The military judge also noted that “[t]he fact

finder might give * * * too much weight” to polygraph

testimony, and that arguments about such testimony

could take “an inordinate amount of time and ex-

pense. * * * Given those concerns, I don’t believe

that the constitution prohibits the President from

appropriately ruling that polygraph evidence will not

be admitted in a court-martial.” Jbid. Respondent

later testified that he did not recall “knowingly”

ingesting methamphetamine. He was convicted. App.,

infra, 3a-4a.

3. The Air Force Court of Criminal Appeals, sit-

ting en banc, rejected respondent’s contention that

the exclusion of the polygraph evidence deprived him

of a fair trial. App., infra, 25a-53a. After reviewing

this Court’s decisions in Washington v. Texas, 388

U.S. 14 (1967), Chambers v. Mississippi, 410 U.S.

284 (1973), and Rock v. Arkansas, 483 U.S. 44

(1987), see App., infra, 32a-35a, the court concluded

that the Constitution forbids evidentiary rules that

“arbitrarily limit the accused’s ability to present

reliable evidence,” “arbitrarily limit admission [of

evidence] by the defense to a greater degree than

by the prosecution,” or “arbitrarily infringe on the

right of the accused to testify on his own behalf.

Id. at 40a.

The court noted that Rule 707 is “equally applica-

ble to both the prosecution and the defense” and does

“not infringe on the right of the accused to testify

on his own behalf.” App., infra, 43a. It also observed

that Rule 707 could not be viewed as an “arbitrary”

limitation on reliable evidence, because “[t]he Presi-

dent’s decision to prohibit polygraph evidence is not

based on whim or impulse, but rather on sound

reasoning.” App., infra, 40a. The court explained

that there remain “valid concerns” about polygraph

examinations and that:

The President is rightly concerned that courts-

martial could degenerate into a battle of poly-

graph examinations and experts that would im-

pose a burden on the administration of military

justice that would outweigh the value of the

evidence.

Id. at 41a. The court concluded “[w]hile it might be

arbitrary for the President to promulgate a rule”

barring evidence that is widely accepted by courts as

reliable, “such as fingerprint evidence” (id. at 43a),

the President acted within his authority in barring

polygraph evidence, which routinely is ruled inad-

missible by the civilian courts (id. at 42a-43a).

Judge Pearson, joined by Judge Schreier, dissented

in part. App., infra, 49a-58a. He believed that

properly conducted polygraph examinations may

provide vital“ evidence in a case in which the de-

fendant’s credibility “becomes the whole ball game.”

Id. at 51a.

4. By a three to two vote, the United States Court

of Appeals for the Armed Forces reversed. The court

agreed with respondent’s claim that Rule 707 “vio-

lates his Sixth Amendment right to present a defense

because it compelled the military judge to exclude

relevant, material, and favorable evidence offered by”

respondent. App., infra, 4a. Assuming that the

President properly promulgated Rule 707 pursuant

to the UCMJ, see App., infra, 7a, the court concluded

that, under Rock v. Arkansas, supra, the President’s

“legitimate interest in barring unreliable evidence

does not extend to per se exclusions [of evidence] that

may be reliable in an individual case.” App., infra,

8a (quoting Rock, 483 U.S. at 61). The court ac-

knowledged that Rock “concerned exclusion of a de-

fendant’s testimony and this case concerns exclusion

of evidence supporting the truthfulness of a defend-

ant’s testimony,” but it could “perceive no significant

constitutional difference between the two.” App.,

infra, ga.

Finally, the court noted that in Montana v. Egel-

hoff, 116 S. Ct. 2013 (1996), this Court upheld a

state “statute excluding evidence of voluntary intoxi-

cation when a defendant’s state of mind is at issue.”

App., infra, 13a. The court observed, however, that

Egelhoff was a “fragmented” decision that is best

read as “founded on the power of the state to define

crimes and defenses.” Id. at 14a. The court also

found Egelhoff inapposite because Rule 707 does not

address a fact to be proved, but instead “bars other-

wise admissible and relevant evidence based on the

mode of proof by categorically including polygraph

evidence. While the plurality in Egelhoff questions

whether the distinction between the fact to be proved

and the method of proving it makes a difference, 116

S. Ct. at 2017 n.1, only four justices joined in that

observation.” App., mfra, 15a.

Judges Sullivan and Crawford filed separate dis-

sents. App., infra, 16a-24a. Judge Sullivan s dissent

was based on his concurring opinion in United States

v. Williams, 43 M.J. 348 (1995), cert. denied, 116

S. Ct. 925 (1996), a case in which the court of appeals

had declined to address the constitutional validity of

Rule 707, because the accused did not testify. App.

infra, 67a-68a. Writing separately in Willams,

Judge Sullivan concluded that polygraph evidence is

inadmissible under Military Rule of Evidence 608,

which restricts what evidence may be offered in sup-

port of a witness’s “character for * * * truthfulness.

App., infra, 75a. Judge Sullivan believed, moreover,

that such evidence “infringes on the jury’s role in

The court also noted that in Wood v. Bartholomew, 116

S. Ct. 7 (1995) (per curiam), this Court summarily reversed

the Ninth Circuit’s determination that a state prosecutor

violated his duties under Brady v. Maryland, 373 U.S. 83

(1963), by failing to disclose the results of certain polygraph

examinations. App., infra, 12a-13a. The court observed that

Bartholomew involved “prosecution witnesses, not the ac-

cused,” and it added that while this Court “noted that poly-

graph evidence was inadmissible under [state] law, * * °

[t]he constitutionality of the state law was not before the

Court and * * was not addressed.” Id. at 12a-13a.

determining credibility,” because [ol ur adversary

system is built on the premise that the jury reviews

the testimony and determines which version of events

it believes.” Jd. at 75a-76a (internal quotation marks

omitted). In his view, Rule 707 “properly” addresses

those concerns. App., infra, 76a.

Judge Crawford argued that a defendant’s right

to present relevant evidence “is ‘not [an] absolute,“

and must yield to policy considerations such as those

that supported the President’s decision to adopt Rule

707. App., infra, 17a, 21a. He also took issue with

the court’s characterization of Egelhoff, noting that

the four-Justice plurality and the four dissenting

Justices agreed “that relevant, reliable evidence may

be excluded if there is a valid policy reason for doing

so.” Id. at 21a. Finally, Judge Crawford argued

that the court’s ruling would have a seriously adverse

impact on the military’s “worldwide system of jus-

tice.” Ibid.

REASONS FOR GRANTING THE PETITION

The court of appeals held that Military Rule of

Evidence 707’s categorical preclusion of polygraph

evidence from courts-martial violates the Sixth

Amendment right of a testifying defendant to present

a defense. That holding conflicts with judgments of

state and federal courts, which have consistently up-

held the constitutionality of rules precluding poly-

graph evidence from criminal trials. It also mis-

applies this Court’s Sixth Amendment decisions,

which recognize that categories of evidence may be

excluded from criminal trials where (as here) the

exclusion is neither arbitrary nor disproportionate to

legitimate interests. Finally, the holding threatens

to burden military justice with case-by-case litigation

about polygraph evidence, a result that is at odds

with the assigned function of the military to attend

to the Nation’s defense and the purpose of Rule 707

to avoid those costs. Accordingly, this Court’s review

is warranted.

1. The rule invalidated by the Court of Appeals

for the Armed Forces has counterparts in the evi-

dentiary rules of numerois States, which categori-

cally prohibit the introduction of polygraph evidence

in criminal cases. See, e.g., State v. Okumura, 894

P.2d 80, 94 (Haw. 1995) (“well-established precedent

in this jurisdiction” is that “polygraph results are

not admissible at trial whether offered by the prose-

cution or the defense”); Morton v. Commonwealth,

817 S.W.2d 218, 222 (Ky. 1991) (“ample basis for

this Court to reiterate the inadmissibility of poly-

graph results and flatly declare that under no cir-

cumstances should polygraph results be admitted into

evidence“); Commonwealth v. Mendes, 547 N.E.2d

35, 41 (Mass. 1989) (“supported by the overwhelm-

ing authority throughout the country, we announce

that polygraphic evidence * is inadmissible in

criminal trials in this Commonwealth either for sub-

stantive purposes or for corroboration or impeach-

ment of testimony”); State v. Lyon, 744 P.2d 231,

232-233 (Or. 1987) (“the available authority is al-

most unanimous in holding that polygraph results

may not be introduced into evidence upon the motion

of either party“); State v. Miller, 522 A.2d 249, 260

(Conn. 1987) (adhering to “traditional rule * * *

that polygraph results are per se inadmissible when

offered by either party, either as to substantive evi-

dence or as related to the credibility of the witness“);

see also Robinson v. Commonwealth, 341 S.E.2d 159,

167 (Va. 1986).

The rule excluding polygraph evidence has tradi-

tionally had broad support in the federal courts of

appeals as well. See P. Giannelli & E. Imwinkelreid,

Scientific Evidence 232-235 (2d ed. 1993) (noting

that a majority of federal courts, like their state

counterparts, “follow[s] the traditional rule, holding

polygraph evidence inadmissible per se”) (collecting

authorities). Several courts of appeals have retreated

from that categorical position since this Court’s deci-

sion in Daubert v. Merrell Dow Pharmaceuticals, 509

U.S. 579 (1993), which held that, under Federal Rule

of Evidence 702, expert testimony may not be ex-

cluded solely because it is based on a scientific theory

that has not yet achieved “general acceptance,” as

was formerly required under Frye v. United States

293 F. 1013 (D.C. 1923). See, e.g., United States v.

Cordoba, No. 95-50492 (9th Cir. Jan. 7, 1997), slip

op. 102-103; United States v. Posado, 57 F.3d 428

(5th Cir. 1995); compare United States v. Sherlin,

67 F.3d 1208, 1216-1217 (6th Cir. 1995) (polygraph

evidence generally inadmissible under Fed. R. Evid.

403), cert. denied, 116 S. Ct. 795, and 116 S. Ct.

1548 (1996). No court, however, has suggested that

such a “case by case” approach to polygraph evidence

is ae by the Constitution.

0 contrary, the courts of appeals consisten

have rejected the proposition that » rule that cate

gorically excludes polygraph evidence violates the

constitutional rights of criminal defendants. See

Jackson v. Garrison, 677 F.2d 371, 373 (4th Cir.)

(state court, in declining to admit favorable result of

test administered by law-enforcement agent, “did not

negate the fundamental fairness of [his] trial or

violate a specific constitutional right”), cert. denied,

454 U.S. 1036 (1981); Bashor v. Risley, 730 F.2d

1228, 1238 (9th Cir.) (because jury could determine

witness’s credibility from his demeanor, lelxclu-

sion of the polygraph evidence did not result in an

unfair trial“), cert. denied, 469 U.S. 838 (1984) ;

United States v. Gordon, 688 F. 2d 42, 44-45 (8th Cir.

1982) (rejecting “argument that refusal to admit

[polygyaph] test results amounts to a denial of due

process”). In ruling that the Constitution forbids a

categorical rule barring polygraph evidence—and by

thus requiring a case-by-case analysis of such

evidence whenever offered by a testifying defendant—

the Court of Appeals for the Armed Forces has de-

parted from the uniform course of lower court

decisions.

2. The court of appeals’ analysis finds no support

in this Court’s Sixth Amendment jurisprudence. By

protecting the defendant’s right to confront the wit-

nesses against him, to present the testimony of his

own witnesses, and to enjoy the assistance of counsel,

the Sixth Amendment spells out “the basic elements

of a fair trial.” Strickland v. Washington, 466 U.S.

668, 684-685 (1984); Crane v. Kentucky, 476 U.S.

683, 690 (1986). Those Sixth Amendment rights

guarantee that the defendant in a criminal case has

a fair opportunity to present his version of the facts

so that the factfinder “may decide where the truth

lies.” Washington v. Texas, 388 U.S. 14, 19 (1967).

As this Court has recognized, however, a defendant

“does not have an unfettered right to offer testimony

that is incompetent, privileged, or otherwise inadmis-

sible under standard rules of evidence.” Taylor v.

Illinois, 484 U.S. 400, 410 (1988); Washington v.

Texas, 388 U.S. at 23. Accordingly, testimony may

be excluded “through the application of evidentiary

rules that themselves serve the interests of fairness

and reliability—even if the defendant would prefer

to see that evidence admitted.” Crane v. Kentucky,

476 U.S. at 690. Indeed, as Judge Crawford noted

below (App., infra, 21a), eight Justices expressly

reaffirmed that principle last Term in Montana v.

Egelhoff, 116 S. Ct. 2013 (1996); the Court divided

only on the question whether the interest asserted

by Montana met that test. See id. at 2022 (plurality

opinion of Scalia, J.); id. at 2028-2029 (O’Connor,

J., dissenting) (arguing that Montana improperly

barred intoxication evidence for the sole purpose of

increasing convictions, whereas “[t]he purpose of

the familiar evidentiary rules is * * * to vindicate

some other goal or value. g., to ensure the relia-

bility and competency of evidence“); see also id. at

2032 (Souter, J., dissenting) (“A State may typically

exclude even relevant and exculpatory evidence if it

presents a valid justification for doing so“).

This Court has stated that evidentiary restrictions

on the presentation of defense evidence are constitu-

tionally suspect only when they are arbitrary or dis-

proportionate to the legitimate interests they are

designed to serve. See, e.g., Rock v. Arkansas, 483

U.S. 44, 55-56 (1987). That cannot be said of Rule

707. That rule addresses polygraph evidence that

purports to gauge the credibility of witnesses; yet

since time immemorial our system has entrusted

credibility determinations to the judgment of juries,

which assess credibility in reliance on their common-

sense evaluations of demeanor, bias, and the plausi-

bility of the narrative. It is entirely legitimate for

an evidentiary system to preserve for the factfinder

its unique province of assessing credibility based on

first-hand observation of the testifying witness.

At the same time, a scientific technique whose

reliability and helpfulness are widely questioned by

scientists and courts alike may surely be made the

subject of a categorical exclusionary rule. An eviden-

tiary system that excludes such evidence need not take

sides in a scientific debate; it need only recognize,

as the President did in promulgating Rule 707, that

the technique’s lack of broad acceptance will result in

time-consuming collateral litigation designed to en-

sure that the factfinder is not confused or unduly

swayed by the purported scientific basis that supports

it. In such circumstances, exclusion of evidence based

on that technique furthers the truth-finding function

of the trial; it does not violate the Sixth Amendment.

3. The constitutional principle embraced by the

court of appeals not only conflicts with a longstanding

rule of evidence followed by state and federal civilian

courts—and still followed by many courts today—but

the costs imposed by that novel principle are par-

ticularly unwarranted and onerous in the military

context.

As this Court has recognized, “the military in im-

portant respects remains a ‘specialized society sep-

arate from civilian society, Weiss v. United States,

510 U.S. 163, 174 (1994) (quoting Parker v. Levy,

417 U.S. 733, 743 (1974) ); see also Loving v. United

States, 116 S. Ct. 1737, 1751 (1996), whose essential

function is “to fight or be ready to fight wars should

the occasion arise.” United States ex rel. Toth v.

Quarles, 350 U.S. 11, 17 (1955) ; see also Schlesinger

v. Councilman, 420 U.S. 738, 757 (1975). Military

trials are necessary “to maintain discipline,” but they

are “merely incidental to an army’s primary fighting

function.” Quarles, 350 U.S. at 17. “To the extent

that those responsible for performance of this primary

function are diverted from it by the necessity of try-

ing cases, the basic fighting purpose of armies is not

served.” Jbid. Thus, the introduction of procedural

complexities into military trials is “a particular bur-

den to the Armed Forces because virtually all the par-

ticipants, including the defendant and his counsel,

are members of the military whose time may be better

spent than in possibly protracted disputes over the

imposition of discipline.” Middendorf v. Henry, 425

U.S. 25, 45-46 (1976).

The court of appeals’ opinion does not reflect con-

sideration of those factors, which have long informed

this Court’s assessment of rules designed for military

trials. Nor does that decision reflect the great defer-

ence properly due to the judgments of the political

branches in this area. See, e.g., Weiss, 510 U.S. at

177; Goldman v. Weinberger, 475 U.S. 503, 508

(1986). Invoking his powers under the Constitution,

see U.S. Const., Art. II, §2, Cl. 1, and an express

congressional delegation authorizing him to prescribe

rules of evidence for courts-martial, see 10 U.S.C.

836(a), the President concluded that polygraph evi-

dence is unnecessary for reliable credibility assess-

ments, that its admission could confuse court-

members, and that case-by-case litigation about its

admissibility would waste the time of servicemembers

whose “primary * * * function” (Quarles, 350 U.S. at

17) is elsewhere. The court of appeals’ conclusion

that the President’s judgment contravenes the Sixth

Amendment warrants this Court’s review.

The petition for a writ of certiorari should be

granted.

CONCLUSION

Respectfully submitted.

MICHAEL J. BRESLIN

Lt. Colonel, USAF

JANUARY 1997

WALTER DELLINGER

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

MIGUEL A. ESTRADA

Assistant to the Solicitor

General

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

No. 95-0521

Crim. App. No. 30304

UNITED STATES, APPELLEE

EDWARD G. SCHEFFER, Airman

U.S. Air Force, APPELLANT

Argued May 8, 1996

Decided Sep. 18, 1996

OPINION OF THE COURT

GIERKE, Judge:

A general court-martial composed of officer mem-

bers at March Air Force Base, California, convicted

appellant, contrary to his pleas, of uttering bad

checks, wrongfully using methamphetamine, failing

to go to his appointed place of duty, and absenting

himself from his unit (13 days), in violation of Ar-

ticles 123a, 112a, and 86, Uniform Code of Military

(la)

Justice, 10 USC §§ 923a, 912a, and 886, respectively.

The adjudged and approved sentence provides for a

bad-conduct discharge, confinement for 30 months,

total forfeitures, and reduction to the lowest enlisted

grade. The Court of Criminal Appeals affirmed the

findings and sentence but awarded one day of credit

against his sentence to forfeitures (confinement had

expired) for lack of timely pretrial confinement re-

view, relying on County of Riverside v. McLaughlin,

500 U.S. 44 (1991); United States v. Rexroat, 38

MJ 292 (CMA 1993). See 41 MJ 683, 693 (1995).

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED

IN DENYING APPELLANT’S MOTION TO

PRESENT EVIDENCE OF A FAVORABLE

POLYGRAPH RESULT CONCERNING HIS

DENIAL OF USE OF DRUGS WHILE IN

THE AIR FORCE.

In March of 1992, appellant began working as an

informant for the Air Force Office of Special Investi-

gations (OSI). During late March and early April,

appellant told OSI that two civilians, Davis and Fink,

were dealing in significant quantities of drugs. On

April 7, 1992, at the request of OSI, appellant volun-

tarily provided a urine sample. Periodic urinalyses

are normal procedure for controlled informants.

On April 10, OSI asked appellant to submit to a

polygraph examination. The OSI polygraph examiner

asked appellant three questions: (1) Had he ever

used drugs while in the Air Force; (2) Had he ever

lied in any of the drug information he gave to OSI;

and (3) Had he told anyone other than his parents

that he was assisting OSI? Appellant answered “No”

to each question. The polygraph examiner concluded

that “no deception” was indicated.

Appellant’s urinalysis tested positive for meth-

amphetamine. The report was dated May 20, al-

though local OSI agents may have learned of the

results as early as May 14.

At trial appellant asked the military judge for an

opportunity to lay a foundation for the favorable

polygraph evidence. The military judge denied the

request without receiving any evidence, ruling that

“the President may, through the Rules of Evidence,

determine that credibility is not an area in which a

factfinder needs help, and the polygraph is not a

process that has sufficient scientific acceptability to be

relevant.” He further ruled that under Mil.R.Evid.

2 Manual for Courts-Martial, United States (1995

[t]he factfinder might give it too much weight,

and that there is an inordinate amount of time

and expense, especially in the cases where there

may be conflicting tests, which doesn’t appear to

be the case here. The main confusion of the is-

sue; that is, the question of what the result of

the polygraph was, as opposed to the question of

whether or not the accused used drugs.

During the trial on the merits, appellant testified

that he visited Davis on April 6, left Davis’ house

around midnight, and began driving toward March

Air Force Base. The next thing he remembered was

waking up the next morning in his car in a remote

area, not knowing how he got there. He denied

“knowingly” ingesting drugs at any time between

March 5, when he began working for OSI, and April

7, the date he provided the urine sample that tested

positive for methamphetamine.

Trial counsel cross-examined appellant about incon-

sistencies between his trial testimony and earlier

statements to the OSI, and his lack of a “sudden

rush of energy” and other symptoms of ingesting

methamphetamine. Trial counsel’s closing argument

urged the court members to look at appellant’s credi-

bility. Trial counsel argued, “He lies. He is a liar.

He lies at every opportunity he gets and he has no

credibility. Don’t believe him. He knowingly used

methamphetamine, and he is guilty of Charge II.”

Appellant asserts that Mil.R.Evid. 707 violates his

Sixth Amendment right to present a defense because

it compelled the military judge to exclude relevant,

material, and favorable evidence_offered by appellant.

He argues that he was constitutionally entitled to be

given an opportunity to rebut the attack on his

credibility as a witness by laying a foundation for

favorable polygraph evidence. The Government as-

serts that the Rule does not impermissibly infringe

on the Sixth Amendment. It argues that Mil.R.Evid.

707 merely codifies all the evidentiary prohibitions

against polygraph evidence and that, even without

Mil.R.Evid. 707, polygraph evidence would never be

admissible. We agree with appellant.

In Frye v. United States, 293 F. 1013 (D.C. Cir.

1923), polygraph evidence was held to be inadmissible

because it was unreliable. In United States v. Gipson

24 MJ 246, 253 (1987), our Court held that an ac-

cused is “entitled to attempt to lay” the foundation

for admission of favorable polygraph evidence. In

arriving at that holding, our Court acknowledged

that Mil.R.Evid. 702 may be broader and may super-

sede Frye v. United States,” supra. 24 MJ at 252.

The impact of our Gipson decision was short-lived,

however, because on June 27, 1991, the President pr’ -

mulgated Mil.R.Evid. 707 in Executive Order No.

12767, § 2, 56 Fed. Reg. 30296.

Mil.R.Evid. 707 provides: “Notwithstanding any

other provision of law, the results of a polygraph

examination, the opinion of a polygraph examiner, or

any reference to an offer to take, failure to take, or

taking of a polygraph examination, shall not be ad-

mitted into evidence.” Unlike most military rules of

evidence, Mil.R.Evid. 707 has no counterpart in the

Federal Rules of Evidence. It is similar to Cal.Evid.

Code 351.1 (West 1988 Supp.). See People v. Kegler,

197 Cal. App. 3d 72, 84, 242 Cal. App. 897, 905

(1987). Mil.R.Evid. 707 “is not intended to accept or

reject United States v. Gipson, 24 MJ 246 (CMA

1987), concerning the standard for admissibility of

other scientific evidence under Mil.R.Evid. 702 or the

continued vitality of Frye v. United States, 293 F.

1013 (D.C. Cir. 1923).” Drafters’ Analysis of Mil.

R.Evid. 707, Manual, supra (1995 ed.) at A22-48.

Presidential authority to promulgate rules of evi-

dence is founded on Article 36(a), UCMJ, 10 USC

§ 836(a). That Article provides that such rules

“shall, so far as [The President] considers practi-

cable, apply the principles of law and the rules of

evidence generally recognized in the trial of criminal

cases in the United States district courts, but which

may not be contrary to or inconsistent with this

chapter.”

Appellant’s case presents two questions. The first

is a statutory question: did the President comply

with Article 36 when he promulgated Mil.R.Evid. 707.

The second is a constitutional question: does Mil.R.

Evid. 707 violate the Sixth Amendment. We review

—

these questions of law de novo. United States v.

Ayala, 43 MJ 296, 298 (1995).

The statutory question was neither briefed nor ar-

gued. It may well be that the per se prohibition in

Mil.R.Evid. 707 is “at odds with the ‘liberal thrust’

of the Federal Rules and their ‘general approach of

relaxing the traditional barriers to “opinion” testi-

mony.’” Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 2794 (1993).

We note that the majority of the federal circuits do

not have a per se prohibition against polygraph evi-

dence. Instead, they rely on the trial judge to apply

a Daubert analysis and apply Fed. R. Evid. 401-03.

United States v. Pulido, 69 F.3d 192, 205 (7th Cir.

1995) (no per se rule against admissibility of poly-

graph evidence); see United States v. Posado, 57

F.3d 428, 436 (5th Cir. 1995) (reversing per se ex-

clusion of polygraph evidence) ; United States v. Pic-

cinonna, 885 F.2d 1529, 1535 (11th Cir. 1989) (hold-

ing that polygraph evidence not inadmissible per se) ;

Anderson v. United States, 788 F.2d 517, 519 n. 1

(8th Cir. 1986) (polygraph evidence admissible by

stipulation) ; see also United States v. A & S Council

Oil Co., 947 F.2d 1128, 1134 n. 4 (4th Cir. 1991)

(holding that polygraph evidence not admissible in

4th Circuit but recognizing that ([e] ireuits that have

not yet permitted evidence of polygraph results for

any purpose are now the decided minority”). But see

United States v. Scarborough, 43 F.3d 1021, 1026

(6th Cir. 1994) (polygraph results “inherently un-

reliable“); United States v. A & S Council Oil Co.,

supra (polygraph evidence not admissible); United

States v. Soundingsides, 820 F.2d 1232, 1241 (10th

Cir. 1987) (polygraph evidence “not admissible to

show” that witness “is truthful’); United States v.

Skeens, 494 F.2d 1050, 1053 (D.C. Cir. 1974) (ad-

hering to Frye and holding polygraph evidence inad-

missible); Dowd v. Calabrese, 585 F.Supp. 430 (D.

D.C. 1984) (polygraph results not sufficiently reliable

to be admissible).

The Federal rules are virtually identical to Mil.R.

Evid. 401-03. Whether the President determined that

prevailing federal practice is not “practicable” for

courts-martial cannot be determined from the record

before us. Assuming without deciding that the Presi-

dent acted in accordance with Article 36 and deter-

mined that the prevailing federal rule is not “prac-

ticable” for courts-martial, we turn to the constitu-

tional question.

Our Court entertained a direct attack on the con-

stitutionality of Mil.R.Evid. 707 in United States v.

Williams, 43 MJ 348 (1995). We held, however, “that

the accused had no right to introduce the polygraph

evidence without taking the stand and testifying con-

sistently, or without offering some other plausible evi-

dentiary basis.” 43 MJ at 355. See also United States

v. Abeyta, 25 MJ 97, 98 (CMA 1987) (polygraph

evidence not relevant unless accused testifies). In

Williams we observed: “Thus, in the appropriate

case, the question will be whether the proffered poly-

graph evidence is sufficiently reliable and necessary

that its automatic exclusion violates the accused’s con-

stitutional trial rights.” 43 MJ at 353.

Unlike Williams, this appellant testified, placed his

credibility in issue, and was accused by the prosecu-

tion of being a liar. Thus the constitutional issue is

squarely presented. We hold that Mil.R.Evid. 707,

as applied to this case, is unconstitutional. A per

se exclusion of polygraph evidence, offered by an ac-

cused to rebut an attack on his credibility, without

giving him an opportunity to lay a foundation under

Mil.R.Evid. 702 and Daubert, violates his Sixth

Amendment right to present a defense. We limit our

holding to exculpatory evidence arising from a poly-

graph examination of an accused, offered to rebut an

attack on his credibility. We leave for another day

other constitutional questions such as those involving

government-offered polygraph evidence or evidence of

a polygraph examination of a witness other than an

accused.

The Sixth Amendment grants an accused “the right

to call ‘witnesess in his favor.’” Rock v. Arkansas,

483 U.S. 44, 52 (1987). An accused’s right to pre-

sent testimony that is relevant and material may not

be denied arbitrarily. Washington v. Texas, 388 U.S.

14, 23 (1967); see United States v. Woolheater, 40

MJ 170, 173 (CMA 1994).

The right to present evidence, however, is not un-

limited, but “may, in appropriate cases, bow to ac-

commodate other legitimate interests in the criminal

trial process.” Chambers v. Mississippi, 410 U.S. 284,

295 (1973). See, e.g., Washington v. Texas, 388 U.S.

at 23 n. 21 (right to present testimony may be lim-

ited by testimonial privileges or rules relating to men-

tal ability to testify). When restrictions are placed

on an accused’s right to present evidence, they “may

not be arbitrary or disproportionate to the purposes

they are designed to serve.” Rock v. Arkansas, 483

U.S. at 56. Applying the foregoing principles, the

Supreme Court held in Rock that a per se rule exclud-

ing the defendant’s hypnotically refreshed testimony

infringed his right to present a defense. The Su-

preme Court held that a “legitimate interest in bar-

ring unreliable evidence does not extend to per se

exclusions that may be reliable in an individual case.”

483 U.S. at 61. While Rock concerned exclusion of a

defendant’s testimony and this case concerns exclu-

sion of evidence supporting the truthfulness of a de-

fendant’s testimony, we perceive no significant con-

stitutional difference between the two. In either case,

the Sixth Amendment right to present a defense is

implicated.

Mil.R.Evid. 702 permits expert testimony when

“scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence

or to determine a fact in issue.” Expert testimony

is subject to the relevance requirements of Mil.R.Evid.

401 and 402 and the balancing requirements of Mil.

R.Evid. 403. In Daubert v. Merrell Dow Pharmaceu-

ticals, Inc., 509 U.S. at 597, 113 S.Ct. at 2798, the

Supreme Court made the trial judge a gatekeeper,

trusted with responsibility to decide if novel scientific

evidence was sufficiently relevant and reliable to war-

rant admission.

An expert witness may not testify that a declarant

was telling the truth, but may testify to the absence

of indicia of deception. Thus, in United States v.

Cacy, 43 MJ 214, 218 (1995), we held that it was

not error to permit an expert to testify that a victim’s

accusation did not appear to be feigned or rehearsed.

Similarly, in United States v. Suarez, 35 MJ 374,

376 (CMA 1992), we held that it was not error for

an expert to opine that counter-intuitive conduct, such

as recanting an accusation, inconsistent statements,

or failing to report abuse is not necessarily inconsist-

ent with a truthful accusation. See also United States

v. Houser, 36 MJ 392, 398-400 (CMA 1993). Finally,

we have permitted experts to opine whether a com-

plainant “can differentiate between fantasy and

fact.” United States v. Palmer, 33 MJ 7, 12 (CMA

10a

1991); United States v. Tolppa, 25 MJ 352, 354-55

(CMA 1987), citing United States v. Azure, 801 F.2d

336, 340 (8th Cir. 1986). Under the same rationale

as these cases, a properly qualified expert, relying on

a properly administered polygraph examination, may

be able to opine that an accused’s physiological re-

sponses to certain questions did not indicate deception.

Polygraph examinations were relatively crude when

Frye was decided. See Daubert v. Merrell Dow Phar-

maceuticals, Inc., 509 U.S. at 585, 113 S.Ct. at 2793.

The Eleventh Circuit has recognized that, “[s]ince

the Frye decision, tremendous advances have been

made in polygraph instrumentation and technique.”

United States v. Piccinonna, 885 F.2d 1529, 1532

(11th Cir. 1989); see also United States v. Galbreth,

908 F. Supp. 877 (D. N.M. 1995); United States v.

Crumby, 895 F. Supp. 1354 (D. Ariz. 1995). The

effect of Mil.R. Evid. 707 is to freeze the law regard-

ing polygraph examinations without regard for scien-

tific advances. We believe that the truth- seeking func-

tion is best served by keeping the door open to scien-

tifie advances. See United States v. Youngberg, 43

MJ 379 (1995) (holding DNA evidence admissible) ;

United States v. Nimmer, 43 MJ 252, 260 (1995)

(remanding for hearing on reliability of hair analysis

evidence). With respect to appellant’s case, we like

the Fifth Circuit, cannot determine “whether roly-

graph technique can be said to have made sufficient

technological advance in the seventy years since Frye

to constitute the type of ‘scientific, technical, or other

specialized knowledge’ envisioned by Rule 702 and

Daubert.” United States v. Posado, 57 F.3d at 433.

We will never know, unless we give appellant an op-

portunity to lay the foundation.

lla

Like the Court in Posado, “We do not now hold

that polygraph examinations are scientifically valid

or that they will always assist the trier of fact, in this

or any other individual case. We merely remove the

obstacle of the per se rule against admissibility.” 57

F.3d at 434. Foundation evidence for proffered poly-

graph evidence must establish that the underlying

theory—that a deceptive answer will produce a meas-

urable physiological response—is scientifically valid.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. at 592-93. Furthermore, we would expect evi-

dence that the theory can be applied to appellant’s

case. Id. The foundation must include evidence that

the examiner is qualified, that the equipment worked

properly and was properly used, and that the exam-

iner used valid questioning techniques.

As required by Daubert, the military judge must

be a gatekeeper and weigh probative value against

prejudicial impact in accordance with Mil. R. Evid.

403. We find the Piccinonna guidance apt:

[T]he trial court may exclude polygraph expert

testimony because 1) the polygraph examiner’s

qualifications are unacceptable; 2) the test pro-

cedure was unfairly prejudicial or the test was

poorly administered; or 3) the questions were ir-

relevant or improper. The trial judge has wide

discretion in this area, and rulings on admissi-

bility will not be reversed unless a clear abuse of

discretion is shown.

885 F.2d at 1537; see also United States v. Pettigrew,

77 F.3d 1500, 1514 (5th Cir. 1996) (judge’s ruling

on admissibility of polygraph evidence reviewed for

abuse of discretion ).

This was not a private, ex parte examination under

unknown conditions. See United States v. Sherlin, 67

F.3d 1208, 1217 (6th Cir. 1995) (“unilaterally” ob-

tained and “privately commissioned” polygraph ex-

cluded). To the contrary, appellant proffers a govern-

ment-intiated examination by an OSI examiner. Ac-

cordingly, there would appear to be no need to condi-

tion admissibility on having appellant examined by a

polygraph examiner chosen by the prosecution. See

United States v. Piccinonna, 885 F.2d at 1536.

Finally, the issues raised by the dissenting opinion

warrant comment. Both Wood v. Bartholomew, 116

S.Ct. 7 (1995), and State v. Ellison, 676 P.2d 531,

535 (Wash. App. 1984), involve polygraph examina-

tions of prosecution witnesses, not the accused. Our

holding, as was that in Rock, is limited to an accused’s

right to lay the foundation for a polygraph examina-

tion of himself. We need not and do not address ad-

missibility of polygraph examinations of government

witnesses or the question whether such polygraph evi-

dence would be constitutionally required to be dis-

closed under Brady v. Maryland, 373 U.S. 83 (1963).

But cf. United States v. Simmons, 38 MJ 376 (CMA

1993) (trial counsel failed to discover and disclose

contradictory statements of rape prosecutrix made to

government polygrapher).

Furthermore, Bartholomew involves an issue differ-

ent from the one in the case before us. It is summary

disposition of a habeas corpus case, where the Su-

preme Court concluded that the Ninth Circuit mis-

applied the Court’s Brady jurisprudence. 116 S.Ct.

at 8. The Supreme Court noted that polygraph evi-

dence was inadmissible under Washington state law,

but premised its holding on the speculative nature of

l3a

the additional evidence that might have been discov-

ered, cdunsel’s concession “that disclosure would not

have affected the scope of his cross-examination,” and

the “overwhelming” evidence of guilt. 116 S.Ct. at

10-11. The constitutionality of the state law was not

before the Court and therefore, consistent with the

Court’s practice, it was not addressed, See United

Public Workers of America v. Mitchell, 330 U.S. 75,

90 n. 22 (1947) (“It has long been this Court’s con-

sidered practice not to decide abstract, hypothetical or

contingent questions, . . or to decide any constitu-

tional question in advance of the necessity for its deci-

sion, . . or to formulate a rule of constitutional law

broader than is required by the precise facts to which

it is to be applied, . . or to decide any constitutional

question except with reference to the particular facts

to which it is to be applied.’ ”’)

Montana v. Egelhoff, 116 S.Ct. 2013 (1996), also

involves a constitutional issue different from the one

before us. Egelhoff involves legislative action rede-

fining an element of an offense, not executive rule-

making about modes of proof. The President, unlike

the Montana legislature, lacks authority to create and

define offenses. See Art. 36(a), UCMJ, 10 USC

§ 836 (a); United States v. Hemingway, 36 MJ 349,

351 (CMA 1993); United States v. Smith, 13

USCMA 105, 119, 32 CMR 105, 119 (1962).

In Egelhoff, the Supreme Court upheld a statute

excluding evidence of voluntary intoxication when a

defendant’s state of mind is at issue. The statute in

question, Mont. Code Ann. § 45-2-203, provided that

voluntary intoxication may not be taken into consid-

eration in determining the existence of a mental state

which is an element of [a criminal] offense.” 116 S.

l4a

Ct. at 2016. The Supreme Court’s decision is frag-

mented, with four justices speaking in the plurality

opinion, joined by Justice Ginsburg who concurred in

the judgment separately; and four other Justices dis-

sented in three separate opinions.

We read the holding in Egelhoff as founded on the

power of the state to define crimes and defenses. The

Montana statute was based on a legislative decision

to resurrect “the common-law rule prohibiting consid-

eration of voluntary intoxication” in determining

whether the defendant had the requisite mens rea.

116 8. Ct. at 2020. In short, Montana decided to pre-

clude voluntary intoxication from being asserted as a

defense. The plurality explained:

“The doctrines of actus reus, mens rea, insanity,

mistake, justification, and duress have historic-

ally provided the tools for a constantly shifting

adjustment of the tension between the evolving

aims of the criminal law and changing religious,

moral, philosophical, and medical views of the na-

-ture of man. This process of adjustment has al-

ways been thought to be the province of the

States.” Powell v. Texas, 392 U.S. 514, 535-536

(1968) (plurality opinion). The people of Mon-

tana have decided to resurrect the rule of an

earlier era, disallowing consideration of volun-

tary intoxication when a defendant’s state of

mind is at issue. Nothing in the Due Process

Clause prevents them from doing so, and the

judgment of the Supreme Court of Montana to

the contrary must be reversed.

116 S. Ct. at 2023.24.

15a

The Montana rule excludes evidence based on the

fact to be proven (voluntary intoxication) rather than

on the mode of proof. Abolishing a defense is within

the authority of a state legislature. On the other hand,

Mil.R.Evid. 707 bars otherwise admissible and rele-

vant evidence based on the mode of proof by categor-

ically excluding polygraph evidence. While the plur-

ality opinion in Egelhoff questions whether the dis-

tinction between the fact to be proved and the method

of proving it makes a difference, 116 S. Ct. at 2017

n. 1, only four Justices joined in that observation.

Justice Ginsburg points out in her separate concur-

rence in Egelhoff that the statute does not appear

among Montana’s evidentiary rules, but in the chapter

pertaining to substantive crimes. She opines that the

Montana law is “a measure redefining mens rea,” and

as such is well within the power of a state to define

crimes. 116 S. Ct. at 2024-25. The four Justices in

the plurality opinion state that they are “in complete

agreement” with Justice Ginsburg’s analysis. They

explain that they “address [the statute] as an evi-

dentiary statute simply because that is how the Su-

preme Court of Montana chose to analyze it.” 116

8. Ct. at 2020-21 n. 4. Justice Ginsburg, along with

the four dissenters, recognized that “a rule designed

to keep out ‘relevant, exculpatory evidence’ . . . of-

fends due process.” 116 S. Ct. at 2024, 2029.

Finally, we must comment on the dissenter’s “flood-

gate” arguments that our opinion will generate an

unreasonable burden on the services. 44 MJ at 451

[App., infra, 21a-22a]. Apart from the speculative

nature of such an argument, we think that it is just

as likely that polygraph evidence will prevent need-

less litigation by avoiding some meritless prosecutions

16a

as well as smoking out bogus claims of innocent in-

gestion. Furthermore, we are unaware of any such

flood of polygraph cases after our decision in United

States v. Gipson, supra. Finally, our measure should

be the scales of justice, not the cash register.

Decision

The decision of the United States Air Force Court

of Criminal Appeals is set aside. The record of trial

is returned to the Judge Advocate General of the Air

Force for submission to an appropriate convening au-

thority for a hearing before a military judge. Appel-

lant will be provided an opportunity to lay a founda-

tion for admission of the proffered polygraph evi-

dence. If the military judge decides that the poly-

graph evidence is admissible, he will set aside the find-

ings of guilty and the sentence, and a rehearing may

be ordered. If the military judge decides that the

polygraph evidence is not admissible, he will make

findings of fact and conclusions of law. The record

will be sent directly to the Court of Criminal Appeals

for expeditious review. Thereafter, Article 67,

UCMJ, 10 USC § 867 (1989), will apply.

Chief Judge COX and Senior Judge EVERETT

concur.

SULLIVAN, Judge (dissenting) :

I dissent for the reasons stated in my separate

opinion in United States v. Williams, 43 MJ 348,

356-57 (1995) (Sullivan, C.J., concurring in the

result).

17a

CRAWFORD, Judge (dissenting) :

We have held that “[t]he defendant has the right

to present legally and logically relevant evidence at

trial.” United States v. Woolheater, 40 MJ 170, 173

(CMA 1994). But as all the Judges of this Court

agreed in Woolheater, this is “not [an] absolute”

right, id.; see also Montana v. Egelhoff, 116 S. Ct.

2013, 2017, 2026 (1996); and may yield to valid

“policy. considerations,” 40 MJ at 173; id.; United

States v. Bins, 43 MJ 79, 83 (1995) (citing Wool-

heater, 43 MJ at 84); United States v. Schaible, 11

USCMA 107, 111, 28 CMR 331, 335 (1960).

None of the cases cited by the majority hold that

there is a constitutional right to admit an exculpa-

tory polygraph examination. Assuming polygraphs

are relevant and reliable, there is ample justification

for Mil.R.Evid. 707, Manual for Courts-Martial,

United States (1995 ed.). This justification satisfies

the provisions of Article 36(a), Uniform Code of

Military Justice, 10 USC § 836(a), that the rules of

procedure and evidence “generally recognized” in

federal trials be applied to courts-martial “so far as

he [The President] considers practicable.”

Through dicta and implicit holdings the Supreme

Court has signaled that there is no constitutional

right to introduce polygraph evidence. Exclusion of

exculpatory evidence does not contravene fundamental

“principle[s] of justice . . rooted in the traditions

and conscience of our” society. Patterson v. New

York, 432 U.S. 197, 202 (1977).

In McMorris v. Israel, 643 F.2d 458 (1981), the

Court of Appeals for the Seventh Circuit stated that

“polygraph evidence [may be] materially exculpa-

tory within the meaning of the Constitution.” 643

18a

F.2d at 462. In dissenting to the denial of certiorari

in that case, then-Justice Rehnquist characterized

McMorris as a “dubious constitutional holding.”

Israel v. McMorris, 455 U.S. 967, 970 (1982).

In Wood v. Bartholomew, 116 S. Ct. 7 (1995), the

Court summarily denied habeas corpus for the prose-

cution’s failure to disclose information pursuant to

Brady v. Maryland, 373 U.S. 83 (1963). The basis

for the defense allegation was that the prosecution

failed to reveal polygraph examinations and state-

ments by the defendant’s brother and his girlfriend,

the two key prosecution witnesses at trial.“ These

polygraphs and their statements would have under-

mined the witnesses’ testimony at trial and supported

the defense theory.

The defendant’s brother testified at trial that,

while he and his brother sat in the car in the laundro-

mat parking lot, the defendant said “that he intended

to rob the laundromat and ‘leave no witnesses.’” The

prosecution offered evidence that both the brother and

girlfriend left a short while later and went to the

girlfriend’s house. The girlfriend also testified that

when the defendant arrived at her house, he told her

that he “put two bullets in the kid’s head.“ She also

heard the defendant say that he intended to leave no

witnesses.” 116 S.Ct. at 8-9.

At trial the defendant testified that he forced the

attendant to lie down on the floor.“ While removing

the cash, he “accidentally fired” a bullet into the vic-

tim’s head. The defendant “denied telling“ his brother

1 This Court in the past has looked at Brady v. Maryland,

873 U.S. 83 (1963), and its military counterpart as to its

impact on prosecution witnesses as in Wood v. Bartholomew,

116 S.Ct. 7 (1995), and reversed a conviction. United States

v. Simmons, 38 MJ 376, 380-82 (CMA 1993).

19a

and the girlfriend “that he intended to leave no wit-

nesses. Moreover, he said that his brother assisted“

him. 116 S.Ct. at 9.

Under Washington State law, polygraph evidence

is inadmissible. State v. Ellison, 676 P.2d 531, 535

(Wash. App. 1984). Even so, prior to trial, the

prosecution requested that the two key witnesses take

a polygraph examination. The polygrapher noted

that the girlfriend’s answers to the “questions were

inconclusive.” The polygrapher asked the defendant’s

brother whether (1) he had “assisted” in the robbery,

and (2) whether at any time he was with his brother

in the laundromat. The examiner said that his nega-

tive responses showed “deception.” The prosecution

did not disclose these examinations to defense counsel.

116 S.Ct. at 9. In denying relief because of failure

to disclose the polygraph examinations, the Supreme

Court noted that, during the habeas corpus hearing,

“counsel obtained no contradictions or admissions”

from the defendant’s brother. 116 S. Ct. at 11.

Clearly, if polygraph examinations were admissible,

polygraph results would have impeached the wit-

nesses. Thus, the results on appeal would have been

different.

The implicit holding in Wood has been reinforced

in Montana v. Egelhoff, 116 S.Ct. 2013 (1996). In

Egelhoff the Supreme Court held that a state may

exclude evidence of voluntary intoxication as it re-

lates to the mens rea element of a criminal offense.

When interpreting Supreme Court decisions, it is

instructive and helpful to look beyond the specific

holding to the debate of broader principles of juris-

prudence.

In Egelhoff, eight Justices agreed that there may

be valid policy reasons to exclude relevant, reliable

20a

evidence, 116 S. Ct. at 2017, 2026. While the eight

Justices debated the “Chambers principle,” id. at

2022, Justice Ginsburg, concurring in the judgment,

looked [bleneath the labels” in concluding that a

state legislature’s redefinition of mens rea “encoun-

ters no constitutional shoal.” Id. at 2024.

Justice Scalia, speaking for four other Justices,

described Chambers as a “highly case-specific error

correction” case as well as a “fact-intensive case.”

He concluded that there is no violation of a defend-

ant’s right to defense whenever ‘critical evidence’

favorable to him is excluded”; on the other hand, “er-

roneous evidentiary rulings can, in combination, rise

to the level of a due process violation.” Id. at 2022.

The plurality then emphasized that Fed.R.Evid. 403

and 802 result in exclusion of relevant, reliable evi-

dence. Id. at 2017.

Justice O’Connor, dissenting and joined by three

other Justices, agreed the “defendant does not enjoy

an absolute right to present evidence relevant to his

defense.” Id. at 2026. Her dissent rejected the plu-

rality argument that because evidence of voluntary

intoxication was excluded at common law, it should

be excluded in this case. Id. at 2029-31. Justice

O’Connor asserted that to exclude the evidence would

prohibit a defendant from having a “fair opportunity

to put forward his defense.” Jd. at 2031. She empha-

sized that this concept was “universally applicable.”

Id. at 2030. In any event, she concluded that the

state had not set forth “sufficient justification,” id.

at 2027, to exclude involuntary intoxication to negate

the mental element of a defense. She agreed with

Justice Ginsburg that a state could redefine an of-

fense to render “voluntary intoxication irrelevant,“

21a

but concluded that the State of Montana did not

evidence such an intent. Id. at 2031. Justice O' Con-

nor also rejected the plurality characterization of

Chambers. Id. at 2026-27.

Justice Souter agreed that the plurality opinion

convincingly demonstrates that the common law

. . « rejected the notion that voluntary intoxication

might be exculpatory, or was at best in a state of

flux... .” Id. at 2032 (citation omitted). Thus, a

state may “exclude even relevant and exculpatory evi-

dence if it presents a valid justification for doing so.”

Id. at 2032.

However, in separate opinions, Justices Breyer and

Souter stated that the State of Montana had not pro-

vided for exclusion of voluntary intoxication from the

mens rea element of an offense. In summary, in

Egelhoff eight Justices of the Court recognized that

relevant, reliable evidence may be excluded if there

is a valid policy reason for doing so.

Mil.R.Evid. 707 was “based on several policy

grounds.” The policy grounds set forth in the Analy-

sis are not exclusive. These grounds include the risk

of being treated with “near infallibility”; “danger of

confusion of the issues”; and waste of time on col-

lateral matters. Drafters’ Analysis, Manual, supra

(1995 ed.) at A22-48.

An additional policy concern is the impact in terms

of practical consequences. Unfortunately, the major-

ity overlooks the practical consequences of its decision

on a worldwide system of justice. Our Court sees the

cases that are at the end of a long funnel. There are

approximately 4,000 general courts-martial per year.

Annual Report, 39 MJ CXLVII, CLIX, CLXXIV.

CLXXVII (1992-93). However, across the services,

there are approximately 100,000 criminal actions per

22a

year. Statistically more than 20 percent of these in-

volve drug cases like the present case. The majority

fails to recognize that a concomitant right of present-

ing polygraph evidence is the right to demand a poly-

graph examination during the investigative stage.

This may well impose a practical impossibility on the

services. Additionally, if an individual were accused

of a minor crime for which she was to be given a

captain’s mast, she could claim a right to a polygraph

examination.“ Thus, the practical policy consequences

set forth in the analysis established a valid govern-

mental interest in precluding admissibility of poly-

graph examinations. This rule is not inconsistent

with the rule in the Federal courts.

Professors Giannelli and Imwinkelried state, “A

majority of jurisdictions follow the traditional rule,

holding polygraph evidence inadmissible per se.” P.

Giannelli & E. Imwinkelried, Scientific Evidence § 8-3

(A) at 232 (2d ed. 1993 and 1995) (citing many

cases). Further, “[a] substantial minority of courts

admit polygraph evidence upon stipulation of the par-

ties.” Id. § 8-3(B) at 236. But [a] few courts rec-

ognize a trial court’s discretion to admit polygraph

evidence even in the absence of a stipulation.” Id.

§ 8-3(C) at 240.

While the Federal courts are split as to admissibil-

ity of polygraphs, some, like United States v. Posado,

57 F.3d 428 (5th Cir. 1995), have admitted poly-

2 See, e.g., United States v. Basa, 11 MJ 545 (ACMR 1981)

(refusal to accept Article 15 resulted in a general court-

martial and 8 years’ confinement. There have been other

instances where Article 15a have resulted in more serious

dispositions. See, e.g., United States v. Brock, No. 96-0673,

pet. granted (July 12, 1996) ; United States v. Zamberlan, 44

MJ 69 (1996).

23a

graph evidence at supression hearings or pursuant to

a stipulation. United States v. Piccinonna, 885 F.2d

1529, 1536 (11th Cir. 1989). This is not unlike ad-

mitting hearsay at suppression hearings. In any

event, the Federal courts have not faced the issue of

a rule precluding admissibility of polygraph evidence

in a worldwide system of justice. California, which

does have a rule similar to the military and applies

the Kelly-Frye (so named after People v. Kelly, 549

P.2d 1240 (Cal. 1976), and Frye v. United States, 293

F. 1013 (D.C. Cir. 1923)) test, has held that there

is no constitutional right to introduce exculpatory

polygraph examinations. See, e. g., People v. Kegler,

197 Cal. App. 3d 72, 84-90, 242 Cal. Rptr. 897, 905-

09 (1987).

Since Mil.R.Evid. 707 is based on valid policy

grounds, it satisfies the Constitution and the require-

ment in Article 36(a) that the rules of procedure

and rules of evidence conform to those in Federal

trials “so far as he [The President] considers prac-

ticable.” If one carried the view of the majority to

its logical conclusion, it calls into yuestion various

procedural and evidentiary rules. See, e.g., Mil.R.

Evid. 502-12 and 803 (6); RCM 305(h)(2)(B). Un-

fortunately this path reminds me of earlier forays by

this Court. See, e.g., United States v. Larneard, 3

MJ 76, 80, 83 (1977) ; United States v. Heard, 3 MJ

14, 20 n.12 (1977) ; United States v. Hawkins, 2 MJ

23 (1976); United States v. Washington, 1 MJ 473,

475 n.6 (1976). But see United States v. Newcomb,

5 MJ 4,7 (CMA 1978) (Cook, J., concurring).

To the extent the majority suggests that Egelhoff

is distinguishable because it involves a legislative act

rather than rulemaking by an executive, I have two

responses. First, just as the Supreme Court treats

24a

Federal Rules of Criminal Procedure the same as

statutes, so should we. See, e.g., Bank of Nova Scotia

v. United States, 487 U.S. 250, 255 (1988). Second,

in Loving v. United States, 116 S. Ct. 1737, 1748

(1996), the Supreme Court recognized that the Presi-

dent as Commander-in-Chief has been delegated ‘“‘wide

discretion and authority.” The Court upheld the dele-

gation of authority to the President to promulgate

aggravating factors in a death penalty case. Loving

left open the question the extent of The President’s

authority under Article 36 alone. Id. at 1749.

For the aforementioned reasons, I dissent.

25a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

ACM 30304

5 January 1995

UNITED STATES

AIRMAN EDWARD G. SCHEFFER, FR554-85-0300

United States Air Force

EN BANC

DIXCN, SNYDER, RAICHLE, HEIMBURG,

YOUNG, PEARSON, SCHREIER, GAMBOA,

and BECKER

OPINION OF THE COURT

YOUNG, Judge:

Contrary to his pleas, appellant was convicted of

making and uttering 17 checks, totaling over $3,300

without sufficient funds in his account, wrongfully

using methamphetamine, failing to go to his appointed

place of duty, and a 13-day unauthorized absence.

Articles 123a, 112a, and 86, UCMJ, 10 U.S.C.

$§ 923a, 912a, 886 (1988). Court members sentenced

26a

him to a bad-conduct discharge, confinement for 30

months, total forfeitures, and reduction to E-1. Ap-

pellant assigns three errors: (1) the military judge

erred by refusing to admit into evidence the results

of appellant’s exculpatory polygraph examination;

(2) the charges should have been dismissed for lack

of a speedy triai; and (3) appellant is entitled to 5

days credit because his pretrial confinement was not

reviewed by a neutral and detached magistrate within

48 hours of incarceration. We order appellant be

given credit for 1 day of illegal pretrial confinement.

We find no error which affects the findings or

sentence.

I. Admissibility of Polygraph Results

A. Facts

Appellant, apparently on his own initiative, agreed

to assist the Air Force Office of Special Investigations

(AFOSI) with drug investigations. His AFOSI han-

dlers advised appellant that from time to time they

would ask him to provide urine specimens to be

tested for drugs and to submit to polygraph exam-

inations. On 7 April 1992, AFOSI Special Agent

Shilaikis asked appellant if he would consent to a

urinalysis. Appellant agreed, but declined to provide

a u ine sample until the following day. He claimed

he only urinated one time a day, and he had already

done so. He asked for, and received, permission to

continue his undercover work that evening. The fol-

lowing day, he provided a urine specimen. On 10

April 1992, appellant took an AFOSI polygraph.

During the examination, appellant answered no“ to

the following relevant questions:

27a

(1) Since you’ve been in the AF, have you used

any illegal drugs?

(2) Have you lied about any of the drug infor-

mation you’ve given OSI?

(3) Besides your parents, have you told anyone

you ve assisting OSI?

The examiner opined that appellant’s polygraph

charts “indicated no deception to the above questions.“

On approximately 14 May 1992, the AFOSI agents

learned appellant’s urine specimen had tested positive

for methamphetamine.

B. The Issue

At trial, appellant moved to admit the results of the

polygraph despite the proscription of Mil. R. Evid.

707; the prosecution objected. The military judge

ruled that the Constitution did not prohibit the Presi-

dent from promulgating a rule excluding polygraph

evidence from admission in trials by courts-martial,

and he denied appellant’s request to lay a foundation

for its admission. Appellant testified on his own be-

half and denied knowingly using methamphetamine.

Mil. R. Evid. 707 provides: '

(a) Notwithstanding any other provision of law,

the results of a polygraph examination, the opin-

ion of a polygraph examiner, or any reference to

an offer to take, failure to take, or taking of a

polygraph examination, shall not be admitted into

evidence.

(b) Nothing in this section is intended to ex-

clude from evidence statements made during a

polygraph examination which are otherwise ad-

missible.

28a

According to the drafters’ analysis, Mil. R. Evid. 707

is based on the following policy grounds: (1) the

“danger court members will be misled by polygraph

evidence that ‘is likely to be shrouded with an aura

of near infallibility’” (quoting United States v. Alex-

ander, 526 F.2d 161, 168-69 (8th Cir. 1975)); (2)

“to the extent that the members accept polygraph evi-

dence as unimpeachable or conclusive, despite caution-

ary instructions from the military judge, the mem-

bers’ ‘traditional responsibility to collectively ascer-

tain the facts and adjudge guilt or innocence is pre-

empted’” (Id.); (3) the danger of confusion of the

issues which “could result in the court-martial degen-

erating into a trial of the polygraph machine”; (4)

presentation of polygraph evidence “can result in a

substantial waste of time when collateral issues re-

garding the reliability of the particular test and quali-

fications of the specific polygraph examiner must be

litigated in every case“; (5) “[tjhe reliability of

polygraph evidence has not been sufficiently estab-

lished and its use at trial impinges upon the integrity

of the judicial system.” Manual for Courts-Martial,

United States, 1984, App. 22 at A22-46 (1994 ed.);

see United States v. Helton, 10 M.J. 820 n.10

(A.F.C.M.R. 1981) (concise description of the com-

plex combination of theory, precise measurement tech-

niques, and subjective interpretation required to sup-

port validity of polygraph).

C. Presidential Authority to Promulgate Mil. R.

Evid. 707(a)

The Constitution vests in Congress the power to

make rules “for the Government and Regulation of

the land and naval forces.” U.S. Const. art. I, § 8,

29a

cl. 14. The Constitution also gives Congress the power

to make all laws necessary to execute this power. U.S.

Const. art. I, § 8, cl. 18. Congress executed this power

by enacting the Uniform Code of Military Justice

(UCMJ). In the UCMJ, Congress delegated to the

President the authority to prescribe the modes of

proof before trials by courts-martial, “in regulations,

which shall, so far as he considers practicable, apply

the principles of law and the rules of evidence gen-

erally recognized in the trial of criminal cases in the

United States district courts, but which may not be

contrary to or inconsistent with [the UCMJ].” Ar-

ticle 36(a), UCMJ, 10 U.S.C. §836(a) (1994).

Article 36 (a) is unquestionably a valid Congressional

delegation. See United States v. Smith, 13 U.S. C. M. A.

105, 32 C. M. R. 105, 118-19 (1962); accord United

States v. Weiss, 36 M. J. 224, 238 (C. M. A. 1992)

(Crawford, J., concurring in the result), affd,.

U.S. ——, 114 S. Ct. 752, 127 L. Ed. 2d 1 (1994).

Pursuant to Article 36 (a), UCMJ, the President

promulgated Mil. R. Evid. 707, and the Manual for

Courts-Martial in which it is found. See Exec. Order

No. 12,767, 56 Fed. Reg. 30,284 (1991). Thus, the

question we must resolve is rather narrow in scope.

It is not whether polygraph examinations should be

admissible in trials by courts-martial, but whether

the President may constitutionally prohibit their

admission.

[One of the first principles of constitutional

adjudication [is the] basic presumption of the con-

stitutional validity of a duly enacted state or federal

law.” Lemon v. Kurtzman, 411 U.S. 192, 208, 93

S. Ct. 1463, 36 L. Ed. 2d 151 (1973) (quoting San

Antonio School District v. Rodriguez, 411 U.S. 1, 60,

30a

93 S. Ct. 1278, 1311, 36 L. Ed. 16 (1973) (Stewart,

J., concurring) ). We must accord Mil. R. Evid. 707,

and all other provisions of the Manual for Courts-

Martial, the force of law, unless it conflicts with the

UCMJ. Noyd v. Bond, 395 U.S. 683, 692, 89 S. Ct.

1876, 1882, 23 L. Ed. 2d 631 (1969); Smith, 32

C.M.R. at 119. Accordingly, we will not declare Mil.

R. Evid. 707(a) unconstitutional in the absence of a

clear showing that the President exceeded the dis-

cretionary powers conferred upon him by Article

36(a). United States v. White, 3 U.S.C.M.A. 666,

14 C.M.R. 84, 88 (1954).

D. The Rights to Due Process and Compulsory

Process

Military members are afforded the protections by

the United States Constitution, except for those which

are expressly or by necessary implication inappli-

cable. United States v. Stombaugh, 40 M. J. 208,

211-12 (C.M.A. 1994). Both the right to due process

under the Fifth Amendment and the right to com-

pulsory process under the Sixth Amendment apply to

service members at courts-martial. Stombaugh, 40

M.J. at 212; United States v. Graf, 35 M.J. 450, 454

(C. M. A. 1992), cert. den.. —— U.S. ——, 114 S. Ct.

917, 127 L. Ed. 206 (1994).

The Supreme Court has held that evidence is con-

stitutionally required if it is relevant, material, and

favorable to the defense. United States v. Valen-

zuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 73

L. Ed. 2d 1193 (1982). The Court of Military Ap-

peals has “unequivocally” adopted this holding for

military cases. United States v. Williams, 37 M.J.

352, 361 (C.M.A. 1993) (citing United States v.

Dorsey, 16 M.J. 1 (C. M. A. 1983) ).

3la

The Military Rules of Evidence have combined the

common law concepts of relevance and materiality

into one rule of relevancy. See S. Saltzburg, L.

Schinasi, & D. Schlueter, Military Rules of Evidence

Manual 422 (3d ed. 1991).

“Relevant evidence means evidence having any

tendency to make the existence of any fact that

is of consequence to the determination of the ac-

tion more probable or less probable than it would

be without the evidence.” Mil. R. Evid. 401.

But, in analyzing relevance, we still must con-

front two questions: (1) Does the evidence have

any tendency to make the existence of any fact

more or less probable?; and (2) Is that fact of

consequence to a determination of appellant’s

guilt?

What favorable to the defense“ means has been

the subject of varying opinions; however, the Su-

preme Court specifically rejected the “conceivable

benefit” test. “If we require only a showing that a

witness could provide some ‘conceivable benefit’ to the

defense, then ‘the number of situations which will

satisfy this test is limited only by the imaginations

of judges or defense counsel.’” Williams, 37 M.J.

at 361 (Gierke, J., concurring) (quoting Valenzuela-

Bernal, 458 U.S. at 866-67, 102 S. Ct. at 3446). It

appears the Supreme Court requires that the evidence

be vital to the defense” when evaluated in the con-

text of the entire record.” Valenzuela-Bernal, 458

U.S. at 867-68, 102 S. Ct. 3446-47.

“Of course, the right to present relevant testimony

is not without limitation. The right ‘may, in appro-

priate cases, bow to accommodate other legitimate

interests in the criminal trial process.“ Rock v.

32a

Arkansas, 483 U.S. 44, 55, 107 S. Ct. 2704, 2711, 97

L. Ed. 2d 37 (1987) (quoting Chambers v. Missis-

sippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L.

Ed. 2d 297 (1973)). Procedural and evidentiary

rules to control the presentation of evidence which

are “designed to assure both fairness and reliability

in the ascertainment of guilt and innocence” are per-

missible. Chambers, 410 U.S. at 302, 93 S. Ct. at

1049; see Washington v. Texas, 388 U.S. 14, 23 n.21,

87 S. Ct. 1920, 1925 n.21, 18 L. Ed. 2d 1019 (1967).

But, when the rule denies or significantly diminishes

appellant’s right to present evidence or to confront

and cross-examine the witnesses against him, the com-

peting interests must be closely examined. Chambers,

410 U.S. at 295, 93 S. Ct. at 1046 (citing Berger v.

California, 393 U.S. 314, 315, 89 S. Ct. 540, 541,

21 L. Ed. 508 (1969)). As Rock, Chambers, and

Washington are the most relevant Supreme Court

cases to this inquiry, we will examine them in some

detail.

E. The Case Law

Washington was convicted of murdering his former

paramour’s new boyfriend. Washington testified that

a man named Fuller actually did the shooting and

that he had tried to stop Fuller. Fuller, who had

already been convicted of the murder, would have

corroborated Washington’s testimony, but his testi-

mony was barred under Texas law. Two Texas stat-

utes provided that persons charged or convicted as co-

participants in the same crime could not testify for

one another. The Supreme Court held that Washing-

ton was “denied his right to have compulsory process

for obtaining witnesses in his favor because the State

33a

arbitrarily denied him the right to put on the stand

a witness who was physically and mentally capable

of testifying to events that he had personally ob-

served, and whose testimony would have been rele-

vant and material to the defense.” Washington, 388

U.S. at 23, 87 S. Ct. at 1925. The exclusion of this

testimony was clearly arbitrary because it applied

only to the defense, did not apply if the accomplice

had been acquitted at his own trial, and “leaves [the

accomplice] free to testify when he has a great in-

centive to perjury, and bars his testimony in situa-

tions where he has a lesser motive to lie.” Jd.

Chambers was convicted of murdering a policeman,

Officer Liberty. McDonald, who was at the scene of

the shooting, provided Chambers’ attorneys with a

signed, sworn confession to shooting the policeman

with his own pistol which he subsequently discarded.

McDonald also admitted to telling a friend that he

had done the shooting. McDonald later repudiated

his confession. At trial, a friend of McDonald testi-

fied that he saw McDonald shoot the victim. A cousin

of the victim testified that right after the shooting

he saw McDonald with a pistol in his hand. When the

State chose not to call McDonald, Chambers did. Mc-

Donald admitted confession to the murder and his

written confession was introduced. On cross-examin-

ation by the State, McDonald stated that he had

recanted, he did not commit the murder, and he had

only confessed because of promises that he would not

go to jail and would share in a sizable tort recovery.

The judge denied Chamber’s motion to examine Mc-

Donald as an adverse witness because the State’s

voucher“ rule prevented a party from impeaching

its own witness.

—

34a

Chambers called three of McDonald’s friends to

testify. Hardin testified that on the night of the

murder, McDonald admitted killing the victim, The

judge sustained the State’s objection that the testi-

mony was hearsay and told the jury to disregard it

because the State did not recognize declarations

against penal interests as an exception to the hearsay

rule. Turner testified, contrary to McDonald, that he

was not with McDonald at the time of the shooting.

The judge sustained the prosecution’s hearsay objec-

tion to Turner’s testimony that McDonald had ad-

mitted shooting the victim and had later asked Tur- ~

ner not to implicate him in the murder. Carter had

been McDonald’s friend for about 25 years. The day

after the murder, McDonald told Carter he had killed

Officer Liberty and disposed of the weapon, The

judge refused to permit Carter to testify before the

jury. Thus, as a result of the “party witness” or

“voucher” rule and the State’s hearsay rule, Cham-

bers was “unable either to cross-examine McDonald

or to present witnesses in his own behalf who would

have discredited McDonald’s repudiation and demon-

strated his complicity.” Chambers, 410 U.S. at 294,

93 S. Ct. at 1045. The Supreme Court held that

Chambers was denied a fair trial in violation of the

Due Process Clause of the Fourteenth Amendment

because (1) the application of the “voucher” rule

deprived him of the opportunity to contradict testi-

mony that was clearly adverse, and (2) the trial

judge erred by excluding reliable, corroborated, hear-

say evidence critical to Chambers’ defense. The Court

made clear that such rules of evidence were not per

se unconstitutional. They are unconstitutional only

to the extent their application denies an accused a

fair trial.

| 35a

Rock shot her husband to death. When police

arrived on the scene, Rock told them her husband had

choked her and thrown her against the wall, she had

picked up the pistol, appellant hit her again, and

she shot him. Because she could not remember the

exact details of the shooting, Rock’s attorney sug-

gested she submit to hypnosis in order to refresh her

memory. During the two hypnosis sessions, Rock did

not relate any new information; however, after the

hypnosis, she remembered that her finger was not

on the trigger, and the gun had discharged when her

husband grabbed her arm during the scuffle. As a

result, the pistol was examined by an expert who

opined that the gun was defective and prone to fire

when hit or dropped. The Arkansas rules of evidence

barred all testimony that had been hypnotically re-

freshed. Upon motion by the prosecution, the judge

limited Rock’s testimony to the sketchy notes the

hypnosis expert had made of her pre-hypnosis descrip-

tion of the shooting. The Supreme Court held that

a per se rule which resulted in excluding the testi-

mony of a hypnotically refreshed accused impermis-

sibly infringed the right of an accused to testify on

her own behalf. Rock, 483 U.S. at 62, 107 S. Ct. at

2714. The Court declined to express an opinion as to

the constitutionality of a rule that would prohibit the

hypnotically refreshed testimony of witnesses other

than criminal defendants. Rock, 483 U.S. at 58 n.15,

107 S. Ct. at 2712 n.15.

In the early years of the UCMJ, the per se exclu-

sion of polygraph evidence was established by case

law. See United States v. Massey, 5 U.S.C.M.A. 514,

18 C.M.R. 138, 144 (1955); United States v. Pryor,

2 C. M. R. 365, 370-71 (A.B.R. 1951). No doubt based

on this early case law, the President prohibited the

36a

admission into evidence of conclusions based upon

polygraph tests in the Manual for Courts-Martial,

United States, 1969 (Rev.), J 142e. See Department

of the Army Pamphlet 27-2, Analysis of Contents,

Manual for Courts-Martial, United States 1969, Re-

vised Edition, at 27-14 (1970). On 12 March 1980,

the President substituted the Military Rules of Evi-

dence for the evidentiary rules formerly contained in

Chapter XXVII of the Manual for Courts-Martial.

Exec. Order 12198, 45 Fed. Reg. 16,945 and 16,993

(1980). The new rules, based on the Federal Rules

of Evidence, did not prohibit polygraph evidence and

provided a new way of looking at expert evidence. See

United States v. Gipson, 24 M.J. 246, 250-52 (C. M. A.

1987) ; accord Daubert v. Merrell Dow Pharmaceuti-

cals, Inc., —— U.S. ——, 113 S. Ct. 2786, 125 L. Ed.

2d 469 (1993). Gone was the test of Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923), which required

the proponent of scientific evidence to establish, as a

foundation, that the evidence was of a type generally

accepted in the scientific community. In its place, the

President promulgated Mil. R. Evid. 401, 402, 403,

and 702. See United States v. Rodriguez, 37 M.J.

448 (C.M.A. 1993); Gipson, 24 M.J. at 251. To be

admissible, the scientific evidence must be relevant

(Mil. R. Evid. 401 and 402) ; its probative value must

not be “substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or mislead-

ing the members, or by considerations of undue delay,

waste of time, or needless presentation of cumulative

evidence” (Mil. R. Evid. 403); and must “assist the

trier of fact to understand the evidence or to deter-

mine a fact in issue” (Mil. R. Evid. 702). Of course,

in evaluating whether the evidence is probative and

37a

helpful to the fact finder, the military judge should

consider the degree of acceptance in the scientific

community. Gipson, 24 M.J. at 252.

In Gipson, the Court of Military Appeals divided

scientific evidence into three classes: (1) evidence for

which “the principles underlying the expertise are so

judicially recognized that it is unnecessary to reestab-

lish those principles in each and every case, such as

fingerprint, ballistics, or x-ray exidence; (2) evidence

for which the principles can neither be accepted nor

rejected out of hand; and (3) evidence based on prac-

tices and techniques that “have been so universally

discredited that a trial judge may safely decline even

to consider them, as a matter of law.” Gipson, 24

M.J. at 249. The Court assigned the polygraph to the

middle class and specified several reasons which pre-

cluded assigning it to the top class of scientific evi-

dence: (1) criticism of the scientific principles on

which the polygraph and the polygrapher’s opinion

is based; (2) the importance of the precision of the

questions, the way the examiner intended them, and

the examinee understood them; (3) the examinee’s

state of mind; and (4) other conditions such as

whether the examinee was taking medications, illegal

— or attempting ＋ 1 to control the

physical responses to be reco by the polygra

Gipson, 24 M.J. at 248-49; see 1 P. Giannells 2 1

Imwinkelried, Scientific Evidence, § 83 (A) (2d ed.

1993) (the authors’ formulation of the issues: “the

lack of empirical validation, the numerous uncontroll-

able factors involved in the examination, the subjec-

tive nature of the deception determination, and the

absence of adequate standards for assessing the quali-

fications of examiners.“); Helton.

38a

Despite the Court’s concern, it held that polygraph

evidence was not per se inadmissible and an accused

is entitled to attempt to lay foundational predicates

for its admission. Of course, admissibility would de-

pend on the competence of the examiner, the suitabil-

ity of the examinee, the nature of the particular

process employed, and other factors. Gipson, 24 M.J.

at 252-53. By adopting Mil. R. Evid. 707, the Presi-

dent overruled Gipson as it applied to polygraph evi-

dence.

The President promulgated Mil. R. Evid. 707 on

June 27, 1991, to apply to all cases in which arraign-

ment had been completed on or after 6 July 1991.

Exec. Order 12,767, 56 Fed. Reg. 30,284 (1991).

The Army Court of Military Review is the only ap-

pellate court to have directly addressed the constitu-

tionality of this rule. See United States v. Williams,

39 M.J. 555 (A.C.M.R. 1994). In Williams, the ac-

cused admitted misappropriating three of eighteen

unauthorized disbursements from the Chaplain’s Fund

and “passed” a polygraph exam which focused on

other unauthorized disbursements. Williams claimed

that the trial court’s decision not to admit the poly-

graph evidence “impacted greatly” on his decision not

to testify before findings. But see Gipson, 24 M.J.

at 253 (Court of Appeals “would not condone [the

admission of] such opinion testimony absent the ex-

aminee’s consistent testimony”). Nevertheless, the

Army Court examined the reasons the drafters gave

for the rule. The Court found several of those reasons

to be “in the nature of matter that are routinely re-

solved by trial judges under Mil. R. Evid. 403,” and

the final reason (concerns about reliability) to be “in

its worst light, disingenuous, and at best incongruous

39a

with the substantial investment the Department of

Defense has made, and continues to make in poly-

graph examinations—not to mention the observation

in Gipson that [t] he greater weight of authority in-

dicates that [the polygraph] can be a helpful scien-

tific tool.“ Williams, 39 M.J. at 555 (quoting Gip-

son, 24 M.J. at 249). Based on its reading of Wash-

ington, Chambers, and Rock, the Court went on to

hold, “under the facts presented,“ the appellant's

Fifth Amendment right to a fair trial by court-

martial, combined with his Sixth Amendment

right to produce favorable witnesses on his be-

half, affords him the opportunity to be heard of

these foundational matters, and allows for the

possibility of admitting polygraph evidence, not-

withstanding the explicit prohibition of Mil. R.

Evid. 707.

Williams, 39 M.J. at 555. Although the Army Court

appears to have restricted its opinion to the facts

of the case, we are unable to discern what circum-

stances would trigger a different result.

F. Analysis

We believe the case law suggests a framework for

examining constitutional challenges to rules of evi-

dence which prohibit an accused from presenting evi-

dence :

(1) The testimony must be relevant under Mil.

R. Evid. 401 and 402 and vital to the defense

when evaluated in the context of the entire rec-

ord. If the evidence is either irrelevant or not

vital to the defense, there is no constitutional

right to present it.

| gh @

40a

(2) The rule of evidence may not arbitrarily

limit the accused’s ability to present reliable evi-

dence.

(3) If the rule permits the admission of the evi-

dence for some purpose, but not for others, it

may not arbitrarily limit admission by the de-

fense to a greater degree than by the prosecution.

(4) The rule of evidence must not arbitrarily

infringe on the right of the accused to testify on

his own behalf.

Applying these principles, we hold that the Presi-

dent’s prohibition of the admission of polygraph evi-

dence in Mil. R. Evid. 707(a) was a constitutionally

permissible exercise of his Article 36(a), UCMJ, au-

thority to prescribe modes of proof for trials by

courts-martial.

(1) The Court of Military Appeals has held that

polygraph evidence may be relevant to the credibility

of a witness. We will assume appellant’s credibility

was relevant and vital to his defense. See Rodriguez,

37 M.J. at 452; Gipson. However, we do not be-

lieve presentation of polygraph evidence was vital

to the court member’s assessment of appellant’s cred-

ibility.

(2) Mil. R. Evid. 707 does not arbitrarily limit the

accused’s ability to present reliable evidence.

(a) A rule is arbitrary if it is “determined by

chance, whim, or impulse, and not by necessity, rea-

son, or principle.” The American Heritage Diction-

ary of the English Language 94 (3d ed. 1992). The

President’s decision to prohibit polygraph evidence is

not based on whim or impulse, but rather on sound

reasoning. The Court of Military Appeals noted still

4la

valid concerns about the soundness of the underlying

principles of the technique and the reliability of any

particular polygraph evidence. Gipson, 24 M.J. at

248-49. That is why the Court assigned polygraph

results to the middle class of scientific evidence. The

President is rightly concerned that courts-martial

could degenerate into a battle of polygraph examina-

tions and experts that would impose a burden on the

administration of military justice that would out-

weigh the probative value of the evidence. See Hel-

ton, 10 M.J. at 824 n.15 (citing United States v.

Urquidez, 356 F. Supp. 1363 (C.D. Cal. 1973) (ex-

perience of Distriet Judge in hearing 3 days of foun-

dational evidence) ).

(b) We are unwilling to follow the Army Court

of Military Review’s holding in Williams. The fact

that military judges are often called upon to re-

solve issues similar to some of the concerns expressed

by the drafters of Mil. R. Evid. 707, or that the De-

partment of Defense uses the polygraph as an inves-

tigative tool, does not bar the President from deter-

mining that the probative value of polygraph evi-

dence is substantially outweighed by other more com-

pelling factors. The Gipson decision made sense in

the absence of a rule prohibiting the admission of

polygraph evidence. The Court of Military Appeals

established the method for resolving the admission

of all manner of scientific evidence, not just poly-

graph evidence—let the military judge hold an evi-

dentiary hearing and render a decision. But, we be-

lieve the drafters’ concerns for admitting evidence

are significant enough for the President, exercising

his Article 36(a), UCMJ, authority, to formulate a

rule of evidence excluding it from courts-martial.

42a

polygraph results was Frye v. United States, 293 F.

1013 (D.C. Cir. 1923).” Gipson, 24 M.J. at 250.

Over the years since Frye, the admissibility of poly-

graph evidence has been continually litigated in the

federal courts, both on direct appeal and in habeas

corpus actions. Nevertheless, we have been unable

to locate any federal case, before or after the prom-

ulgation of the Federal Rules of Evidence, which sug-

gests that the federal rule, or any similar state rule,

unconstitutionally interferes with an accused’s rights

to due process or to present a defense.

(d) Furthermore, Mil. R. Evid. 707 applies a rule

of evidence generally recognized by the federal courts.

While not a part of the Federal Rules of Evidence,

most of the federal circuit courts of appeal still hold

that polygraph evidence cannot be introduced into evi-

dence to establish the truth of statements made dur-

ing the polygraph examination. See United States

v. Bounds, 985 F.2d 188, 192 n.2 (5th Cir. 1993);

United States v. A & S Council Oil Co., 947 F.2d

1128 (4th Cir. 1991); United States v. Lynn, 856

F.2d 430 (Ist Cir. 1988); United States v. Bowen,

857 F.2d 1337 (9th Ar. 1988); United States v. Hall,

805 F.2d 1410, 1416 (10th Cir. 1986) ; United States

v. Cardarella, 570 F.2d 264 (8th Cir. 1978); see also

United States v. Rea, 958 F.2d 1206, 1224 (2d Cir. -

1992) (Court had “intimated in past” that results

not admissible, so trial judge did not abuse his dis-

cretion in ruling that polygraph was not sufficiently

reliable to warrant admission); United States v. Pic-

cinonna, 885 F.2d 1529 (11th Cir. 1989) (trial judge

has discretion to admit polygraph evidence when both

parties stipulate in advance as to circumstances of

the test and the scope of admissibility and, subject to

43a

three preliminary conditions, to impeach or corrob-

orate the testimony of a witness at trial. The three

conditions are: adequate notice to opposing party,

opposing party given reasonable opportunity to have

subject tested by own expert using substantially the

same questions, and whether used to impeach or cor-

roborate, admissibility is governed by the Federal

Rules of Evidence, including Fed. R. Evid. 608.

“Even where the above three conditions are met, ad-

mission of polygraph evidence for impeachment or

corroboration purposes is left entirely to the discre-

tion of the trial judge.” 885 F.2d at 1536).

(e) While it might be arbitrary for the President

to promulgate a rule which prohibits the admission

of evidence which is assigned to the top scientific class,

such as fingerprint evidence, we do not believe it is

arbitrary to prohibit those techniques which fall into

the middle or bottom classes, which by definition are

less reliable. See Gipson, 24 M.J. at 249.

(3) The Mil. R. Evid. 707(a) prohibition on the

admission of evidence is comprehensive and equally

applicable to both the prosecution and the defense.

(4) Mil. R. Evid. 707(a) did not infringe on the

right of the accused to testify on his own behalf.

We believe Mil. R. Evid. 707 is a permissible rule

“designed to assure both fairness and reliability in the

ascertainment of guilt and innocence.” Chambers, 410

U.S. at 302, 93 S. Ct. at 1049. We, therefore, reject

the Army Court’s reasoning in Williams and hold that

Mil. R. Evid. 707 did not unconstitutionally infringe

on appellant’s rights to due process and to present a

defense. Accordingly, the military judge did not err

in preventing appellant from laying a foundation for

the admission of polygraph evidence.

44a

II. County of Riverside v. McLaughlin Credit

On 13 May 1992, near Centerville, lowa, an lowa

State Police officer apprehended appellant for speed-

ing and driving on a suspended license. Appellant

told the officer he was on leave from March Air Force

Base. The officer called the squadron and discovered

that appellant was absent without leave. The squad-

ron first sergeant asked the officer to detain appellant

until military personnel could escort him back to the

base. On 15 May, a military escort accompanied ap-

pellant back to March Air Force Base, where appel-

lant’s commander ordered him into pretrial confine-

ment at 0030, 16 May. On 18 May, the commander

completed a written memorandum, in accordance with

R.C.M. 305(h)(2), concluding there was probable

cause to believe appellant committed several named

offenses under the UCMJ, and determining that con-

tinued pretrial confinement was necessary. On 20

May, the area defense counsel asked for a delay until

28 May in the pretrial confinement hearing to be con-

ducted by a military magistrate. On 28 May, the mili-

tary magistrate conducted the hearing and ordered

appellant’s confinement continued.

A person arrested without a warrant must “be

given a prompt judicial determination of probable

cause as a prerequisite to pretrial detention.” United

States v. Rexroat, 38 M.J. 292, 294 (C.M.A. 1993)

(citing Gerstein v. Pugh, 420 U.S, 103, 95 S. Ct. 854,

43 L. Ed. 2d 54 (1975) ), cert. denied. U.S. -—,

114 S. Ct. 1296, 127 L. Ed. 2d 648 (1994). “[P]rob-

able cause determinations made after 48 hours of ar-

rest are presumptively untimely,” and “ ‘the burden

shifts to the government to demonstrate the existence

45a

of a bona fide emergency or other extraordinary cir-

cumstance.’” Rexroat, 38 M.J. at 294 (quoting

County of Riverside v. McLaughlin, 500 U.S. 44, 111

S. Ct. 1661, 1670, 114 L. Ed. 2d 49 (1991)). “If

military exigencies prevent completion of probable-

cause review within 48 hours, the fact of these exigen-

cies may be used to rebut the presumption.” Rexroat,

38 M.J. at 295-96. If the commander’s probable cause

determination, made under either R.C.M. 305(d) or

(h), is made within 48 hours, and the commander is

neutral and detached, then Gerstein and McLaughlin

are satisfied. Rexroat, 38 M.J. at 298.

We first must decide when the McLaughlin 48 hours

started to run—upon appellant’s apprehension in

Iowa or some later time. The Court of Military Ap-

peals has ruled that the 48 hours starts at the time

the commander actually orders the service member

into pretrial confinement, not the time he was taken

into custody. Rexroat, 38 M.J. at 295. When the

accused’s official custody is not at the direction of mili-

tary authority and the military makes reasonably

diligent efforts to secure physical custody over him

and order him into pretrial confinement, we believe it

does not make sense to start the clock until the com-

mander actually orders him into pretrial confinement.

Thus, we consider the 48-hour clock to have started

at 0030, 16 May 1992. Even if the clock started when

military authority requested appellant be detained in

Iowa, we believe the military exigencies of getting

him back to March Air Force Base overcame the

McLaughlin presumption that the probable cause de-

termination was untimely. Rerroat, 38 M.J. at

295-96.

46a

Next, we must determine if appellant’s commander

was “neutral and detached,” such that either his init-

ial confinement order or decision to continue confine-

ment satisfies Gerstein and McLaughlin. Although

the commander later preferred charges against appel-

lant, there is no evidence of record to suggest he was

“directly or particularly involved in the command’s

law enforcement function.” United States v. McLeod,

39 M.J. 278 (C.M.A. 1994) (quoting United States v.

Lynch, 13 M.J. 394, 397 (C.M.A. 1982)); see United

States v. Lopez, 35 M.J. 35, 41 (C.M.A. 1992). There-

fore, we hold the commander was neutral and de-

tached.

Finally, we must determine whether the commander

had probable cause to place appellant into pretrial

confinement. The prosecution did not present any evi-

dence to show what information the commander had

before him when he ordered appellant into pretrial

confinement. Therefore, we are unable to conclude

that, at the time he ordered appellant into pretrial

confinement, the commander had probable cause to

believe that appellant had committed an offense under

the UC M, and that pretrial confinement was required

by the circumstances, See R.C.M. 304 (e); Courtney

v. Williams, 1 M.J. 267 (C.M.A. 1976). However, we

find the commander’s memorandum of his decision to

retain appellant in confinement, dated 18 May, amply

complies with Gerstein and R.C.M. 305 (h) (2) (B).

The prosecution failed to present evidence from which

we could conclude that this memorandum, or the deci-

sion on which it was based, was accomplished within

48 hours (by 0030, 18 May). Although R.C.M.

305(k) does not specifically speak to the McLaughlin

rule, we believe it is appropriate to apply its remedies

47a

to McLaughlin violations. Therefore, we hold that

appellant is entitled to 1 extra day of pretrial confine-

ment credit against his sentence. Since appellant has

already served his confinement, we order the credit

be converted to 1 day of total forfeitures. See R.C.M.

305 (Kk).

III. Speedy Trial

Appellant insists that the military judge should

have dismissed the charges against him with prejudice

because the prosecution failed to bring him to trial

within 90 days of the initiation of his pretrial con-

finement. Appellant’s attack is broad in scope. He

claims that neither the special court martial conven-

ing authority nor the Article 32 investigating officer

were authorized to grant delays for speedy trial ac-

counting: the special court-martial convening author-

ity because the case was referred to a genera! court-

martial; the investigating officer because no convening

authority had authorized him to grant delays. Nor-

mally, we review the military judge’s rulings on

speedy trial for an abuse of discretion and reasonable-

ness. United States v. Longhofer, 29 M.J. 22, 28

(C.M.A. 1989). Of course, we may find the facts our-

selves, if we so desire. Article 66(c), UCMJ, 10

U.S.C. §866(c) (1994).

“The accused shall be brought to trial within 120

days after the earlier of (1) Preferral of charges;

(2) The imposition of restraint under R.C.M. 304(a)

(2)-(4); or, (3) Entry on active duty under R.C.M.

204.” R.C.M. 707(a); see United States v. Kossman,

38 M.J. 258 (C.M.A. 1993) (overruling United States

v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R 166 (1971)

and United States v. Driver, 23 U.S.C.M.A. 243, 49

48a

C. M. R. 376 (1974) presumption of speedy trial viola-

tion when pretrial confinement exceeds 90 days). “All

periods of time covered by stays issued by appellate

courts and all other pretrial delays approved by a

military judge or the convening authority shall be

excluded when determining whether the period in sub-

section (a) of this rule has run.” R.C.M. 707(c). Re-

gardless of the 120-day rule, the prosecution must

take immediate steps to bring a confined aceused to

trial. Article 10, UCMJ, 10 U.S.C. 8 810 (1988);

Kossman, 38 M.J. at 262 (“reasonable diligence” sug-

gested as appropriate standard to evaluate Article 10

mandate).

Appellant was initially apprehended on 13 May

1992 by the Iowa police for violation of Iowa law.

However, since the record is unclear as to whether

appellant remained in custody in Iowa because of the

civilian charges or to await escorts to return him to

military control, we consider his pretrial confinement,

for speedy trial purposes, to have begun on 13 May

1992. See United States v. Keaton, 18 U.S. C. M. A.

500, 40 C.M.R. 212 (1969) (date of confinement for

speedy trial purposes is date incarcerated for military

offense). Appellant was arraigned 154 days later—

14 October 1992. At the defense request, the military

judge granted a 34-day delay from 10 September to

14 October 1992. Thus, appellant was brought to trial

on the 120th day under R.C.M. 707. We need not

reach appellant’s assertions that neither the special

court-martial convening authority nor the investigat-

ing officer had the authority to grant delays in this

gence under Article 10, UCMJ.

49a

IV. CONCLUSION

The findings and sentence are correct in law and

fact, and except for the McLaughlin credit for which

appellant will be compensated 1 day of pay and

allowances, no error prejudicial to the substantial

rights of appellant occurred. Accordingly, the find-

ings and sentence are

AFFIRMED.

Chief Judge DIXON, Senior Judges SNYDER,

RAICHLE, and HEIMBURG, and Judges GAMBOA

and BECKER concur.

Judge PEARSON, joined by Judge SCHREIER,

(concurring in part and dissenting in part)

Speaking for the majority in United States v. Gip-

son, Judge Cox summarized his view on the reliability

of polygraph evidence:

In our assessment, the state of the polygraph

technique is such that, depending on the com-

petence of the examiner, the suitability of the

examinee, the nature of the particular testing

process employed, and such other factors as may

arise, the results of a particular examination

may be as good as or better than a good deal of

expert and lay evidence that is routinely and un-

critically received in criminal trials. Further, it

is not clear that such evidence invariably will be

so collateral, confusing, time-consuming, prej-

udicial, ete., as to require exclusion.

Gipson, 24 M.J. 246, 253 (1987).

If Judge Cox is right, and we think he is, this

appellant was denied his constitutional right to lay

50a

the foundation for relevant, material, and favorable

exculpatory evidence vital for his defense. See, eg.,

Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038,

35 L. Ed. 2d 297 (1973) (accused’s right to present

evidence); Gipson, 24 M.J. at 254 app. (listing of

articles and treatises on reliability of polygraphs) ;

McMorris v. Israel, 643 F.2d 458, 461-462 (7th Cir.

1981) ([Wie note that even the most ardent de-

tractors from the validity of polygraph evidence con-

cede a degree of reliability of 70% or higher for

properly administered examinations.”), cert. denied,

455 U.S. 967 (1982). See also Dawbert v. Merrell

Dow Pharmaceuticgls, Inc., —— U.S. „113 8.

Ct. 2786, 125 L. 2d 469 (1993) (standard for

admitting expert testimony under Fed. R. Evid.

702); United States v. Garcia, 40 M. J. 533

(AF. C. M. R. 1994) (standard for admitting expert

testimony under Mil. R. Evid. 702); United States

v. — 35 M. J. 820 (A. F.C. M. R. 1992) (same),

aff'd, 39 M. J. 288 (1994).

Litigated urinalysis cases often present the classic

man versus machine contest. There are no eye wit-

nesses to the urinalysis based drug charge, nor any

witnesses who testify the accused was somehow im-

paired, nor any other coroborating evidence of drug

use. Likewise, there is no evidence to show where or

how the accused allegedly used the drug, or a precise

time of use. Instead, machines—operated by humans

—produce results—interpreted by humans— which the

prosecution uses to procure a conviction. In this re-

gard, the prosecutor calls an expert witness to explain

that the machine results show the accused’s urine

specimen contained a metabolite of a chemical com-

pound which is found in the drug charged. Conse-

Sla

quently, the prosecution’s case rests entirely on scien-

tific evidence offered under Military Rule of Evidence

702.

Do urinalysis machines, or their operators, make

“mistakes” which go undetected through normal qual-

ity control? We need only look at Pentium computer

chips that can’t divide, nuclear reactors that go hay-

wire, and space shuttles that don’t launch to answer

that question.

So what if you are wrongfully accused of drug use

based on an erroneous urinalysis result? You have no

eyewitnesses to shake on cross-examination, or to help

you. You have no alibi witnesses unless you are in

direct observation of someone for 24 hours a day, 7

days a week, since it only takes a moment alone to

snort cocaine or consume most other drugs. Because

of the nebulous nature of the prosecution’s evidence,

you basically have only your word. But why should a

judge or jury believe you, as opposed to the prosecu-

tion’s “scientific” evidence, if you chose to testify?

Credibility ! N

In a urinalysis case, the accused’s credibility be-

comes the whole ball game if the accused denies use

since urinalysis machines can’t be cross-examined. If

the court convicts, it chooses not to believe the accused,

the only real witness to the offense. Thus, evidence

reflecting favorably on the credibility of the accused’s

denial is relevant, material, and vital to the defense

in a urinalysis case where the accused takes the stand,

which brings us to polygraphs.

½.. ee

which produce results—interpreted by humans.

Felygragh ovidenss seflects on the qrodiiliity of an

accused’s denial of having used the drug charged.

52a

Gipson, 24 M.J. at 253; McMorris, 643 F.2d at 461-2.

Is it admissible on an accused’s behalf—we think so in

spite of the absolute prohibition in Military Rule of

Evidence 707. See United States v. Williams, 39 M.J.

555 (A. C. M. R. 1994).

We agree the President may promulgate rules of

evidence for trials by court-martial. However, the

President may not promulgate a rule which infringes

on an accused’s constitutional right to present rele-

vant, material, and favorable evidence. See, e.g., Ellis

v. Jacob, 26 MJ. 90 (C.M.A. 1988) (striking down

President's rule in R. C. M. 916(k)(2) precluding ac-

cused from presenting evidence of partial mental re-

sponsibility to negate state of mind element of an

offense); United States v. Hollimon, 16 M.J. 164

(C.M.A. 1983) (recognizing constitutional limit on

President's bar in Mil. R. Evid. 412 (a) on admission

of reputation or opinion evidence of nonconsensual

sexual offense victim’s past sexual behavior).

Consequently, we recognize a constitutional] escape

clause to Military Rule of Evidence 707, similar to

that found expresly in Rule 412(b) which excludes

evidence of a nonconsensual sexual offense victim’s

past sexual behavior Polygraph evidence is not admis-

sible unless it is “constitutionally required to be ad-

mitted,” that is, unless it is relevant, material, and

favorable to the defense. Cf. United States v. Wil-

liams, 37 M.J. 352 (C.M.A. 1993) (constitutionally

required evidence under Mil, R. Evid. 412). In this

regard, military judges should “view liberally the

question of whether the expert’s testimony may assist

the trier of fact.” Combs, 35 M.J. at 826. And, “[i]f

anything, in marginal cases, due process might make

53a

the road a tad wider on the defense’s side than on the

Government’s.” Gipson, 24 M.J. at 252.

Here, the military judge did not afford appellant

the opportunity to show his polygraph evidence met

the constitutionally required criteria for admission.

Consequently, we would return the record of trial to

The Judge Advocate General for remand to the con-

vening authority for a hearing on the admissibility

of the proffered polygraph evidence in accordance with

the procedures outlined in United States v. Williams,

39 M.J. at 559.

[AIR FORCE SEAL]

OFFICIAL

/s/ Alvin J. Stribling

ALVIN J. STRIBLING

Technical Sergeant, USAF

Chief Court Administrator

54a

APPENDIX C

U.S. COURT OF APPEALS

FOR THE ARMED FORCES

No. 94-5006

CMR No. 9202646

UNITED STATES, APPELLANT

JAMES L. WILLIAMS, Specialist U.S. Army,

APPELLEE

Argued March 30, 1995

OPINION OF THE COURT

COX, Judge:

1. The certified issue in this ease asks whether Mil.

R.Evid. 707, Manual for Courts-Martial, United

States, 1984 (Change 5) (1991), which purports to

bar receipt at courts-marial of polygraph evidence,

violates the accused’s constitutional rights.

2. Mil.R.Evid. 707 provides:

(a) Notwithstanding any other provision of

law, the results of a polygraph examination, the

opinion of a polygraph examiner, or any refer-

55a

ence to an offer to take, failure to take, or taking

of a polygraph examination, shall not be ad-

mitted into evidence.

(b) Nothing in this section is intended to ex-

clude from evidence statements made during a

polygraph examination which are otherwise ad-

missible.’

3. In the instant case the accused sought, unsuc-

cessfully, to introduce evidence of an allegedly ex-

culpable polygraph. In the circumstances of this case,

we hold that the accused’s rights were not violated

and that the military judge did not err in excluding

the evidence.

4. The accused was charged with forging checks

between August 1991 and February 1992 (12 spec-

ifications), in violation of Article 123, Uniform Code

of Military Justice, 10 USC § 923, and a single spec-

ification of stealing the cumulative value of the nego-

tiated checks, $8,077.89—in violation of Article 121,

The drafters of the rules cite a variety of “policy grounds”

56a

UCMJ, 10 USC 5921. He pleaded not guilty to all

the forgery specifications. He also pleaded not guilty

to the larceny specification, but, by exceptions and

substitutions, he pleaded guilty to the lesser offense

of wrongful appropriation, in the amount of

$2,528.00.

5. Notwithstanding his pleas, however, a general

court-martial composed of officer and enlisted mem-

bers convicted the accused of all charges and specifi-

cations, as alleged. He was sentenced to a bad-

conduct discharge, confinement for 3 years, total for-

feitures, and reduction to El. The convening author-

ity approved the adjudged sentence.

6. The Court of Military Review, however,

ordered the record of trial to be remanded for an

additional hearing regarding admissibility of certain

polygraph evidence. 39 MJ 555, 559 (1994). There-

upon, the Judge Advocate General of the Army certi-

fied the issue set out in 7 41 for this Court’s review.

7. The Court of Military Review summarized the

facts as follows:

The [accused] was a Chaplains’ Fund Clerk

who, along with the Fund Manager, was in

charge of collecting and disbursing funds for the

chaplainey within V Corps. During the period

18 August 1991—18 February 1992, a total of

eighteen unauthorized disbursements were made

from the fund account. The [accused] admitted

to misappropriating three of these unauthorized

disbursements in 1992, which he said that he

See 41 MJ 213, 229 n.“ (1994).

57a

intended to repay. He denied stealing the re-

mainder.

In July 1992, the [accused] consented to taking

a Criminal Investigation Command (CID) ad-

ministered polygraph test. The test centered on

whether the [accused] stole from the chaplains’

fund between August and November of 1991.

In the polygraph examiner’s opinion, there was

no deception indicated when the [accused] re-

sponded no“ to questions pertaining to the tested

issue. The charts created by the polygraph in-

strumentation were then sent to the CID’s qual-

ity control center in Maryland, which opined that

the test results were inconclusive.

In August 1992, upon request by the [accused],

he was retested by the same CID polygrapher. A

more detailed pretest interview was conducted in

order to focus the [accused] so that he would not

be distracted, which could cause the test to be

inconclusive. After this test, the examiner again

opined that the [accused] was indicating no de-

ception when he said that he did not steal money

from the chaplains’ fund between August and

November 1991. Unlike the previous test, the

examiner sent these polygraph charts to Heidel-

berg for review by his immediate supervisor, who

was also an experienced CID polygrapher. The

supervisor agreed with the findings and for-

warded the charges to quality control of Mary-

land. This time, quality control opined that the

test indicated no deception, and went on to say

that the findings of the two examiners were

“strong.”

58a

The [accused] filed a motion at his court-martial

to be allowed an opportunity to lay a foundation

for the admission of the two exculpatory CID

polygraph examinations. The military judge de-

nied the inotion, finding Mil.R.Evid. 707 to be

a proper exercise of executive rule-making au-

thority under Article 36, UCMJ, 10 USC § 836,

and violative of neither the Fifth nor Sixth

Amendments of the Constitution. This ruling

“impacted greatly” on [accused’s] decision not

to testify.

39 MJ at 556-57. N

III

8. The Government's evidence at trial consisted,

in part, of the accused’s sworn, written, signed pre-

trial statement. According to that statement, the

interrogating agent asked, among other things:

Did you, without proper authority, cash checks

on the account of the Chaplains [sic] Fund, V

Corps, with the intent of keeping the funds for

yourself?

The accused responded: Ves.“

9. The accused also conceded therein that he

fraudulently made and uttered three of the checks

in issue, and he identified the uses to which he put

the proceeds. The balance of the statement describes

in some detail the mechanics of the accused’s crimes

and an acknowledgment that, on March 27, 1992, he

deposited $900 into the Fund. The accused explained

that he “sent for the money from a relative, to de-

posit the money into the Chaplains [sic] Fund ac-

— —— ee . —— —Eüäüäöäͤbñ— — — o- ane

—— ae

‘

59a

count.“ The statement contains no recitation sug-

gesting that, at the time he uttered the checks, the

accused only intended temporarily to deprive the

rightful owner of the proceeds.

10. Additional prosecution evidence, in the form

of numerous records and documents and the testi-

mony of various investigative, banking, and Chap-

lains’ Fund officials, showed in detail how the accused

manipulated the established procedures to both per-

petrate his thefts and to mask their discovery. Still

further evidence documented the flowage of the pro-

ceeds of the forged checks into the accused’s personal

bank account.

11. The defense case consisted, in part, of the

testimony of the accused’s wife, wherein she at-

tempted to explain several of the anomalous credits

to their bank account. The balance of the defense

case on the merits consisted of a series of character

witnesses.‘ Notably, the accused did not testify on

the merits.

* Presumably, the accused’s argument that this deposit con-

tradicted an intent permanently to deprive was undercut by

evidence that he had previously been tipped off that his crimes

had been detected. About a month before the accused’s de-

posit, his supervisor “became suspect [sic] that there was

some type of—something just wasn’t right with the fund.”

The supervisor promptly notified higher authorities and,

shortly thereafter, mentioned it to the accused.

* Ironically, some of these character witnesses may have

proven counterproductive for the defense. The accused’s

company commander, for example, extolled the accused for

his administrative and organizational abilities, his initiative,

his being “computer literate,” and his “unique ability to

package things.” According to the commander, “I give him

a product to do, he just works magic.” Considering the gov-

ernment evidence that the accused was able to perpetrate

60a

12. United States v. Gipson, 24 MJ 246 (CMA

1987), was a case in which we considered admissibil-

ity of polygraph evidence. Gipson proffered that he

had secured, at his own expense, a polygraph exam-

iner who had tested him and, as a result, was of the

opinion that he was telling the truth when he denied

committing various charged drug offenses. The

prosecution countered that it, too, had a witness—a

government polygrapher—who had tested Gipson and

had reached the opposite conclusion. The military

judge declined to permit either party to introduce

polygraph evidence or even to attempt to lay a foun-

dation for its admission. The judge concluded, inter

alia, that such evidence had not met the requisite level

of acceptance in the scientific community. 24 MJ at

247.

13. The issue squarely before us was whether the

judge erred in applying the “general acceptance“

test of Frye v. United States, 293 F. 1013 (D.C.Cir.

1923), or whether the relevance-helpfulness rules of

Mil.R.Evid. 401-03 and 702 governed. As had sev-

eral Federal Courts of Appeals before us (applying

the corresponding Federal Rules of Evidence), we

concluded that Frye was no longer the test to be ap-

plied to expert testimony. 24 MJ at 251. Passing no

judgment on the ultimate admissibility of polygraph

his offenses and avoid detection as long as he did due to a

series of missing computer backup disks, missing and falsified

documents, computers that had been “tampered with,” and

a rash of mysterious viruses causing the office computers to

crash, the evidence of the accused’s extraordinary intelli-

gence and skills may have merely complimented the Govern-

ment’s evidence.

—— ee

—— — . — x —ꝗ — ig etl

61a

evidence in general or on that polygraph evidence

in particular, we concluded merely that the military

judge applied the wrong test and that he erred in

denying Gipson the opportunity to attempt to lay a

foundation for admission of his polygraph evidence.

14. Later, in Daubert v. Merrell Dow Pharmaceu-

ticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d

469 (1993), the Supreme Court laid the Frye test to

rest—in favor of the Rules of Evidence test—as the

general test for receipt of expert testimony. Id. at

585, 113 S.Ct. at 2793. See also United States v.

Nimmer, 43 MJ 252 (1995) ; United States v. Young-

berg, 43 MJ 379 (1995).

15. However, the holdings of Gipson and Daubert

do not, in this respect, govern the instant case. The

Daubert opinion commenced with an analysis of Fed.

R.Evid. 402, which provides:

All relevant evidence is admissible, except as

otherwise provided by the Constitution of the

United States, by Act of Congress, by these

rules, or by other rules prescribed by the Su-

preme Court pursuant to statutory authority.

Evidence which is not relevant is not admissible.

(Emphasis added. )

16. There being no other Federal Rule of Evi-

dence which precluded the particular type of evidence

(epidemiological) offered in Daubert (509 U.S. at

584, 113 S.Ct. at 2792), the opinion proceeded to an

analysis of Fed.R.Evid. 702, which provides:

If scientific, technical, or other specialized know]-

edge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill,

62a

experience, training, or education, may testify

thereto in the form of an opinion or otherwise.

For the Daubert Court, then, resolution turned on

the questions of relevance and helpfulness, with the

focus being on the means by which the trial judge

was to determine these factors. 509 U.S. at 591-95,

113 S.Ct. at 2796-98.

17. The Gipson opinion was decided in a similar

environment, as Mil.R.Evid. 707 was not yet in ef-

fect. Thus, we had to construe Mil. R. Evid. 402,

which provides:

All relevant evidence is admissible, except as

otherwise provided by the Constitution of the

United States as applied to members of the

armed forces, the code, these rules, this Manual,

or any Act of Congress applicable to members of

the armed forces. Evidence which is not relevant

is not admissible.

(Emphasis added.) We also merely had to consider

the general rules respecting relevance and helpfulness

of expert testimony.

18. The advent of Mil.R.Evid. 707, however,

changed things for the military. Now, rather than

the Military Rules of Evidence providing a frame-

work for analysis of relevance and _ helpfulness,

‘these rules” expressly forbid receipt of the type of

evidence here in issue. Thus Daubert and Gipson,

being interpretations of very different rules, no lon-

ger control analysis of admissibility of polygraph

evidence in courts-martial.

19. So also, the recent spate of Federal cases ap-

plying Daubert to polygraph evidence are not ger-

mane to our inquiry. See United States v. Posado,

63a

57 F.3d 428, 429 (5th Cir.1995) (“the rationale un-

derlying this circuit’s per se rule against admitting

polygraph evidence did not survive Daubert v. Mer-

rell Dow Pharmaceuticals, Inc. [supra]. Therefore,

it will be necessary to reverse and remand to the dis-

trict court for determination of the admissibility of

the proffered evidence in light of the principles em-

bodied in the Federal Rules of Evidence and the Su-

preme Court’s decision in Daubert“); United States

v. Crumby, 895 F.Supp. 1354 (D.Ariz. 1995) (im-

provements in accuracy of polygraph and Daubert

permit defendant to introduce evidence that he passed

polygraph to counter attacks on his credibility); but

ef. United States v. Lech, 895 F.Supp. 582 (S.D.N.Y.

1995) (even assuming polygraph results are admis-

sible under Fed.R.Evid. 702, questions calling for

legal conclusions, but not underlying facts, would not

assist factfinder ).

20. Instead, the focus becomes whether, and under

what circumstances, the per se prohibition of poly-

graph evidence in courts-martial might violate

service-members’ constitutional rights. The Supreme

Court has, from time to time, encountered situations

in which bars to receipt of evidence have been im-

posed upon the criminally accused. In Washington

v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d

1019 (1967), for example, Washington sought, un-

successfully, to call a coparticipant, Fuller as a wit-

ness. Fuller allegedly would have testified that he,

not Washington, was the triggerman in the murder.

Texas statutes at the time of tria! precluded copar-

ticipants from testifying for one another, but not

from testifying for the State. 388 U.S. at 16-17, 87

S.Ct. at 1921-22.

64a

21. The Court concluded that Washington was

denied his right to have compulsory process for ob-

taining witnesses in his favor because the State arbi-

trarily denied him the right to put on the stand a

witness who was physically and mentally capable of

testifying to events that he had personally observed,

and whose testimony would have been relevant and

material to the defense. 388 U.S. at 23, 87 S.Ct. at

1925.

22. In Chambers v. Mississippi, 410 U.S. 284, 93

S.Ct. 1038, 35 L.Ed.2d 297 (1973), a State “party

witness” or “voucher” rule prevented Chambers from

examining, as an adverse witness, a person (Me-

Donald) who had previously confessed to committing

the crime of which Chambers stood accused. Because

the State had declined to call McDonald, Chambers

was forced to make him his own witness. While the

State, on cross-examination, was permitted to elicit

McDonald’s recantation of the confession, Chambers

was barred from cross-examining him as an adverse

witness. In addition, State hearsay rules precluded

Chambers from introducing the testimony of three

other persons to whom McDonald had also allegedly

confessed.

23. Regarding the “voucher” rule, the Court

observed :

The argument that McDonald’s testimony was

not “adverse” to, or “against,” Chambers is not

convineing. The State’s proof at trial excluded

the theory that more than one person partici-

pated in the shooting of Liberty [the deceased

police officer]. To the extent that McDonald’s

sworn confession tended to incriminate him, it

tended also to exculpate Chambers. And, in the

— —

- ee — —Uñà4ä — —jñ——

65a

circumstances of this case, Me Donald's retrac-

tion inculpated Chambers to the same extent that

it exculpated McDonald. It can hardly be dis-

puted that McDonald’s testimony was in fact

seriously adverse to Chambers. The availability

of the right to confront and to cross-examine

those who give damaging testimony against the

accused has never been held to depend on

whether the witness was initially put on the

stand by the accused or by the State. We reject

the notion that a right of such substance in the

criminal process may be governed by that tech-

nicality or by any narrow and unrealistic defini-

tion of the word against.“ The “voucher” rule,

as applied in this case, plainly interfered with

Chambers’ right to defend against the State’s

charges.

410 U.S. at 297-98, 93 S.Ct. at 1047 (footnote

omitted ).

24. Regarding the hearsay evidence, the State’s

declaration-against-interest exception to the rule

against hearsay encompased declarations against pe-

cuniary interest, but not declarations against pena!

interest. The Court noted that the statements in ques-

tion ‘were originally made. . under circumstances

that provided considerable assurance of their relia-

bility.” 410 U.S. at 300, 93 S.Ct. at 1048. In addi-

tion, “McDonald was present in the courtroom and

was under oath. He could have been cross-examined

by the State, and his demeanor and responses

weighed by the jury.” 410 U.S. at 301, 93 S.Ct. at

1049.

25. Concluding that Chambers’ due process rights

were violated, the Court commented:

66a

Few rights are more fundamental than that of

an accused to present witnesses in his own de-

fense. In the exercise of this right, the accused,

as is required of the State, must comply with

established rules of procedure and evidence de-

signed to assure both fairness and reliability in

the ascertainment of guilt and innocence. Al-

though perhaps no rule of evidence has been

more respected or more frequently applied in

jury trials than that applicable to the exclusion

of hearsay, exceptions tailored to allow the intro-

duction of evidence which in fact is likely to be

trustworthy have long existed. The testimony

rejected by the trial court here bore persuasive

assurance of trustworthiness and thus was well

within the basic rationale of the exception for

declarations against interest. That testimony

also was critical to Chambers’ defense. In these

circumstances, where constitutional rights di-

rectly affecting the ascertainment of guilt are

implicated, the hearsay rule may not be applied

mechanistically to defeat the ends of justice.

410 U.S. at 302, 93 S.Ct. at 1049 (citations omitted).

26. See also Davis v. Alaska, 415 U.S. 308, 94

S.Ct. 1105, 39 L.Ed.2d 347 (1974) (State law barring

receipt in evidence of juvenile records and probation

status of key prosecution witness violated Davis’ right

of confrontation by depriving him of opportunity to

show witness had motive falsely to implicate Davis) ;

Crane v. Kentucky, 476 U.S. 683, 687, 106 S.Ct. 2142,

2145, 90 L.Ed.2d 636 (1986) (established State rule

that trial court’s determination regarding voluntari-

ness of pretrial confessions is conclusive and may not

be relitigated at trial denied petitioner opportunity

67a

to attack accuracy of his purported confession and

deprived him “of his fundamental constitutional right

to a fair opportunity to present a defense”); Rock v.

Arkansas, 483 U.S. 44, 58, 61-62, 107 S.Ct. 2704,

2712, 2714, 97 L.Ed.2d 37 (1987) (State’s per se rule

excluding all “hypnotically refreshed testimony” pre-

vented Rock from showing that her memories might

be reliable and potentially deprived her of the Fifth

and Sixth Amendment right to be heard in her own

defense).

27. Thus, in the appropriate case, the question

will be whether the proffered polygraph evidence is

sufficiently reliable and necessary that its automatic

exclusion violates the accused’s constitutional trial

rights. W conclude, however, that this is not such

an appropriate case, for reasons we now address.

28. The issue of admissibility of the instant poly-

graph evidence was resolved at trial on the basis of

proffers by the parties. The polygrapher did not

testify, and no documentation of the test questions

or results was presented. Nevertheless, both parties

agreed that the critical “relevant” questions at the

polygraph examination focused on whether the ac-

cused stole money from the chaplains’ fund. The

accused responded, “No,” to such questions. Thus it

was the accused’s denial of criminality that the polyg-

rapher was prepared to opine was true (i.e., that “no

deception was indicated“).

Of course a polygrapher’s opinion cannot possibly gauge

the objective truth of any statement. At best they can opine

that the subject believed the statement to be true. Thus,

just as multiple witnesses to an event may take away differ-

ent memories and interpretations of the same physical mani-

68a

29. Having failed to take the stand and submit

himself to the crucible of cross-examination, the ac-

cused argues that he should have been permitted

nevertheless to introduce this out-of-court assertion,

bolstered as it was with the expert’s opinion that it

was truthful. Of course this statement was made

expressly with a view toward trial, after the alleged

commission of the offenses; and, in light of the poly-

graphic support, it was unabashedly offered to prove

the truth of the matter asserted. In other words, the

proffered evidence was not just hearsay, but super-

enriched hearsay.”

30. Allowing a party, in effect, to testify by proxy

—without at the same time affording the opposition

an opportunity to cross-examine or the factfinder an

opportunity to observe and make its own evaluation

of the party’s credibility—would amount to nullifica-

tion of the adversary system and a throwback to a

bygone and little-missed era. See 2 McCormick on

Evidence §§ 244-46 at 90-99 (4th ed.1992). The con-

stitutional rights of an the accused are designed to

assure a fair trial, not to subvert the adversary

process.

festation, in theory they could each pass a polygraph exam-

ination asserting their differing interpretations.

The accused cannot capitalize on the vacuum arising from

the fact that he obtained the unfavorable ruling in limine and

then elected not to take the stand. In order to perfect his

claim of right on appeal, it would have been necessary for

him to testify or to establish some other valid evidentiary

basis for admission of the hearsay evidence. United States

v. Gee, 39 MJ 311 (CMA 1994); see Luce v. United States,

469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). At trial,

the accused offered no hearsay exception justifying receipt

of the evidence.

69.

31. That the expert's opinion cannot be separated

from the underlying out-of-court declaration is sel“.

evident, as the expert testimony clearly could not be

offered simply to show that the accused made some

truthful statement. Only when the opinion is con-

nected with the underlying statement, explicitly or

implicitly, can it have any arguable relevance to the

case. We take it as obvious that when a party offers

a polygrapher’s opinion that a certain assertion did

not indicate deception, the party is offering the evi-

dence to prove that the assertion was true. A rose by

any other name would smell as sweet.

32. The mere fact that the evidence was hearsay

does not, alone, condemn it. However, unlike Cham-

bers. v. Mississippi, supra (22) (involving the ac-

cused’s fundamental right to confront an adverse

witness), this evidence was not presumptively reliable

or closely akin to a recognized hearsay exception. In-

deed, none of the cases in which the Supreme Court

found evidentiary prohibitions objectionable involved

efforts by an the accused to circumvent the adversary

process by “smuggling” in his assertions, in lieu of

testifying." Had the accused testified, he might at

We recognize that, in some circumstances, it is possible

under Fed.R.Evid. 703 and Mil.R.Evid. 703. Manual, supra,

for a certain amount of hearsay evidence to be “smuggled”

in as the basis for an expert’s opinion. S. Saltzburg, L.

Schinasi & D. Schlueter, Military Rules of Evidence Manual

739 (3d ed. 1991); see S. Saltzburg, M. Martin & D. Capra,

2 Federal Rules of Evidence Manual 1134 (6th ed. 1994).

However, it is clear from the rule drafters’ notes and the re-

corded decisions that such hearsay basis is permitted because

it leads to some diagnosis or opinion other than that the

hearsay itself was true. For example, a doctor might rely

on a range of medical tests and reports, as well as statements

70a

least have argued that the truthfulness of his out-of-

court statement was not offered to prove the truth

of the matter asserted, but, instead, for the inference

that his consistent trial testimony was true.

33. In Gipson, we addressed a similar concern. As

we stated then:

Assuming a judge decides to admit the results

of a given polygraph, how can they be used at

trial? First and foremost, while polygraph evi-

dence relates to the credibility of a certain state-

ment, it does not relate to the declarant’s char-

acter. At best, the expert can opine whether the

examinee was being truthful or deceptive in mak-

ing a particular assertion at the time of the poly-

graph exam. It is then for the factfinder to

decide whether to draw an inference regarding

the truthfulness of the examinee’s trial testi-

mony. Cf. Commonwealth v. Vitello, 376 Mass.

426, 381 N.E.2d 582, 597-98 (1978). Theoreti-

cally, it is conceivable that an expert’s opinion

about the truthfulness of a statement made dur-

ing a polygraph exam could even support a direct

inference as to guilt or innocence. However, we

would not condone such opinion testimony absent

the examinee’s consistent testimony. If it were

otherwise, the conclusions of the expert concern-

ing the credibility of the declarant would be the

only evidence presented to the factfinder. In this

circumstance, we really would be concerned about

usurpation of the factfinder’s role.

of the victim or witnesses—not to show that the statements

were true—but in order to reach a medical diagnosis. Rule

703 was never intended to become the electronic oath helpers’

exception to the rule against hearsay. Cf. 2 McCormick on

Evidence §§ 244-46 at 90-99 (4th ed.1992).

ee —

71a

24 MJ at 252-53 (footnotes omitted).

34. In concluding that the accused had no right to

introduce the polygraph evidence without taking the

stand and testifying consistently, or without offering

some other plausible evidentiary basis, we recognize

that we resolve little of the underlying question of

the constitutionality of Mil.R.Evid. 707. Indeed, we

do not even resolve whether the per se exclusion of

this genre of evidence can be sufficient to implicate a

constitutional right of an accused. That is to say, is

this collateral-type evidence (an out-of-court, post-

offense assertion of innocence by an accused, offered

by the accused) of the same constitutional magnitude

as those types of evidence that the Supreme Court

has ruled constitutionally required? There are simply

so many variables in the circumstances of individual

cases that we deem it fruitless at this point to specu-

late generally in the absence of specific facts.“

The decision of the United States Army Court of

Military Review is set aside. The record of trial is

returned to the Judge Advocate General of the Army

* Opinions from 41 MJ 213 to 43 MJ 389 have all included

paragraph numbers as part of an experiment which the

Court has been conducting to determine whether their use

is feasible. We are now satisfied that putting paragraph

numbers in our opinions presents no administrative burden.

The Court was considering whether to require use in briefs

of paragraph numbers instead of West internal page num-

bers for citation of quoted or referenced material found in an

opinion. The citation would be to the first page of the opinion

and paragraph number (42 MJ 340 { 14), rather than to an

internal page number (42 MJ 340, 343 or 42 MJ at 343). The

Court has concluded that at this time it is not necessary to

implement this change in the citation format. We would be

interested in any comments on this proposal, including sug-

gestions of alternative citation formats.

72a

for remand to the Court of Criminal Appeals for

further review.

Judge GIERKE concurs.

WISS, Judge (concurring with reservation) :

35. I concur in the majority opinion except that,

as to footnote 6, I expressly keep open for myself the

question whether a non-testifying accused may pre-

serve this issue for appellate review if he makes and

loses a motion in limine to admit expert testimony

concerning polygraphic evidence and then, through

counsel—an officer of the court—forthrightly asserts

that he would have testified had his motion been

granted. See United States v. Sutton, 31 MJ 11

(CMA 1990).

CRAWFORD, Judge (concurring in part and in

the result) :

36. I agree with the majority’s excellent discussion

as to whether there is a constitutional right to intro-

duce exculpatory polygraph evidence that would be

paramount to any Military Rule of Evidence. How-

ever, since neither the Constitution nor the Uniform

Code of Military Justice compels admission of excul-

patory polygraph evidence, the majority could have

stopped at that point. United States v. Rodriguez,

37 MJ 448, 453 (CMA 1993) (Crawford, J., con-

curring in the result).

37. In any event, since the accused did not take

the witness stand, he did not preserve the certified

issue for appeal. United States v. Gee, 39 MJ 311

(CMA 1994) ; see also Luce v. United States, 469 U.S.

38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).

73a

38. However, I find curious that portion of the

opinion that says “the proffered evidence was not

just hearsay, but super-enriched hearsay.” J 29. The

majority goes on to say, [TI he expert’s opinion can-

not be separated from the underlying out-of-court

declaration,” § 31, thus implying that there would be

a hearsay objection to the expert’s opinion. But as

this Court stated in United States v. Houser, 36 MJ

392, 399, cert. denied, U.S. , 114 S.Ct. 182,

126 L.Ed.2d 141 (1993):

Under Mil.R.Evid. 703, like Fed.R.Evid. 703, an

expert’s opinion may be based upon personal

knowledge, assumed facts, documents supplied

by other experts, or even listening to the testi-

mony at trial.

39. Fed.R.Evid. 703 was enacted to allow the ex-

pert to rely upon hearsay evidence, that is, evidence

that would be relied upon to form an opinion, such as

statements from other doctors, x-rays, business re-

ports, and so forth. S. Saltzburg & M. Martin, Fed-

eral Rules of Evidence Manual 73 (5th ed.1990);

see also J. Kaplan, J. Waltz, & R. Park, Cases and

Materials on Evidence 764, 806 (7th ed.1992).

40. Therefore, it would seem to me that the ac-

cused’s statements to a polygrapher are a valid basis

for an otherwise relevant opinion. See Barefoot v.

Estelle, 463 U.S. 880, 896-903, 103 S.Ct. 3383, 3396-

3400, 77 L.Ed.2d 1090 (1983); United States v.

Prevatte, 40 MJ 396, 397 (CMA 1994) ; United States

v. Johnson, 35 MJ 17 (CMA 1992); State v. Daniels,

337 N.C. 248, 446 S.E.2d 298 (1994). However,

since I believe this case can be decided on other

grounds, the question of whether the majority’s view

on hearsay is correct can wait for another day.

74a

SULLIVAN, Chief Judge (concurring in the

result):

41. I agree with much of the majority opinion but

conclude it does not go far enough to directly answer

the certified issue, which asks:

WHETHER MILITARY RULE OF EVIDENCE

707 VIOLATES THE ACCUSED’S FIFTH

AMENDMENT RIGHT TO A FAIR TRIAL

OR HIS SIXTH AMENDMENT RIGHT TO

PRODUCE FAVORABLE WITNESSES.

42. Initially, I would hold that the Fifth and Sixth

Amendments of our Constitution do apply to the

military. As the venerable Blackstone intimated long

ago, I believe that a soldier who serves his country

does not forgo his rights as a citizen. Blackstone,

Commentaries on the Laws of England Bookfirst,

Chapter 13 at 395 (1765). Furthermore, I would

hold that due process and the right to a fair trial

require admission of relevant and reliable evidence as

long as it applies to the crime, the witnesses, and the

legal defenses to the crime. The Constitution, how-

ever, does not require admission of machine-generated

evidence that only shows whether the defendant be-

lieves that his claim of innocence is truthful. Modern

courts have consistently prevented admission of evi-

dence of truth-telling, and I would do so in this case.

43. The evidence sought to be introduced at this

trial was the polygraph result of “no deception” when

the accused was asked whether he “stole from the

Chaplain’s fund between August and November of

1991.” See 39 MJ 555, 556 (ACMR 1994). In my

view, the judge properly ruled this evidence inad-

missible.

75a

44. First, when evidence of polygraph tests results

is offered at trial to support the credibility of an

accused’s pretrial statement denying an offense, its

admission also raises serious questions under Mil.R.

Evid. 608, Manual for Courts-Martial, United States,

1984. See generally United States v. Azure, 801 F.2d

336, 341 (8th Cir.1986). That Rule states:

Rule 608. Evidence of character, conduct, and

bias of witness

(a) Opinion and reputation evidence of charac-

ter. The credibility of a witness may be attacked

or supported by evidence in the form of opinion

or reputation, but subject to these limitations:

(1) the evidence may refer only to character for

truthfulness or untruthfulness, and (2) evidence

of truthful character is admissible only after the

character of the witness for truthfulness has

been attacked by opinion or reputation evidence

or otherwise.

Applying this rule, we have barred testimony from

psychiatric and psychological experts that child-abuse

victims are telling the truth in their pretrial com-

plaints. United States v. Marrie, 43 MJ 35, 41

(1995); United States v. Suarez, 35 MJ 374, 376

(CMA 1992); United States v. Arruza, 26 MJ 234,

237 (CMA 1988), cert. denied, 489 U.S. 1011, 109

S.Ct. 1120, 103 L.Ed.2d 183 (1989). The same logic

should be extended to a mechanical oath swearer or

compurgator.

45. I would also note that admissibility of such

evidence for this purpose infringes on the jury’s role

in determining credibility. See United States v.

Alexander, 526 F.2d 161, 168-69 (8th Cir.1975). The

76a

Ninth Circuit commented on this problem in Brown

v. Darcy, 783 F.2d 1889, 1396-97 (1986), as follows:

The introduction of polygraph evidence also in-

fringes on the jury’s role in determining credi-

bility. Our adversary system is built on the

premise that the jury reviews the testimony and

determines which version of events it believes.

Allowing a polygraph expert to analyze responses

to a series of questions and then testify that one

side is telling the truth interferes with this func-

tion. See Alexander 526 F.2d at 168; see also

Dowd, 585 F.Supp. at 434. Polygraph evidence

is different from other scientific evidence such

as ballistics, fingerprints, or voice analysis, be-

cause it is an opinion regarding the ultimate

issue before the jury, not just one issue in dis-

pute. Alexander, 526 F.2d at 169. Providing

the jury with an all or nothing evaluation of

credibility and then telling the jury that this

evaluation has an eighty percent to ninety per-

cent chance of being accurate if the polygraph

was properly administered interferes with, rather

than enhances, the deliberative process.

These concerns are not addressed in Daubert vy.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113

S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Mil.R.Evid.

702. In my view, Mil.R.Evid. 707 addresses them and

properly so.

77a

APPENDIX D

Military Rule of Evidence 707 provides:

Rule 707. Polygraph Examinations

(a) Notwithstanding any other provision of law,

the results of a polygraph examination, the opin-

ion of a polygraph examiner, or any reference to

an offer to take, failure to take, or taking of a

polygraph examination, shall not be admitted

into evidence.

(b) Nothing in this section is intended to exclude

from evidence statements made during a poly-

graph examination which are otherwise admis-

sible.

The Fifth Amendment to the United States Consti-

tution provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in

the Militia, when in actual service in time of

War or public danger; nor shall any person be

subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against him-

self, nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.

78a

The Sixth Amendment to the United States Consti-

tution provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defence.

79a

APPENDIX E

DRAFTERS’ ANALYSIS OF THE

MILITARY RULES OF EVIDENCE

The Military Rules of Evidence, promulgated in 1980

as Chapter XXVII of the Manual for Courts-Martial,

United States, 1969 (Rev. ed.), were the product of

a two year effort participated in by the General

Counsel of the Department of Defense, the United

States Court of Military Appeals, the Military De-

partments, and the Department of Transportation.

The Rules were drafted by the Evidence Working

Group of the Joint Service Committee on Military

Justice, which consisted of Commander James Pin-

nell, JAGC, U.S. Navy, then Major John Bozeman,

JAGC, U.S. Army (from April 1978 until July 1978),

Major Fredric Lederer, JAGC, U.S. Army (from

August 1978), Major James Potuk, U.S. Air Force,

‘;eutenant Commander Tom Snook, U.S. Coast

Guard, and Mr. Robert Mueller and Ms. Carol Wild

Scott of the United States Court of Military Appeals.

Mr. Andrew Effron represented the Office of the Gen-

eral Counsel of the Department of Defense on the

Committee. The draft rules were reviewed and, as

modified, approved by the Joint Service Committee

on Military Justice. Aspects of the Rules were re-

viewed by the Code Committee as well. See Article

67(g). The Rules were approved by the General

Counsel of the Department of Defense and forwarded

to the White House via the Office of Management and

Budget which circulated the Rules to the Departments

of Justice and Transportation.

The original Analysis was prepared primarily by

Major Fredric Lederer, U.S. Army, of the Evidence

80a

Working Group of the Joint Service Committee on

Military Justice and was approved by the Joint Serv-

ice Committee on Military Justice and reviewed in the

Office of the General Counsel of the Department of

Defense. The Analysis presents the intent of the

drafting committee; seeks to indicate the source of

the various changes to the Manual, and generally

notes when substantial changes to military law result

from the amendments. This Analysis is not, however,

part of the Executive Order modifying the present

Manual nor does it constitute the official views of

the Department of Defense, the Department of Trans-

portation, the Military Departments, or of the United

States Court of Military Appeals.

The Analysis does not identify technical changes

made to adapt the Federal Rules of Evidence to

military use. Accordingly, the Analysis does not iden-

tify changes made to make the Rules gender neutral

or to adapt the Federal Rules to military terminology

by substituting, for example, “court members” for

“jury” and “military judge” for “court”.

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.