Amicus Curiae Brief — United States v. Scheffer

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Supreme Court, U.S.

(a) FILED

ey,

In THE

Supreme Coot of the United States

OCTOBER TERM, 1997

UNITED STATES OF AMERICA,

Petitioner,

Vv.

EDWARD G. SCHEFFER,

Respondent,

On Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

BRIEF FOR AMICUS CURIAE

AMERICAN POLYGRAPH ASSOCIATION

IN SUPPORT OF RESPONDENT

GORDON L. VAUGHAN

VAUGHAN & DEMURO

111 South Tejon, Suite 410

Colorado Springs, CO 80903

(719) 578-5500

Counsel for Amicus Curiae

American Polygraph

Association

TE SST TT II Ee a I LT TE

‘WILSON - Epzs PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

SA GF RRO ese tnesntcenscencecceeesssemannenssveesens

INTEREST OF AMICUS CURIAE cscs

SUMMARY OF ARGUMENT ........0002 nee

ARGUMENT AND AUTHORITY ..........00000000000......

II.

III.

IV.

THE PER SE EXCLUSION OF POLYGRAPH

EVIDENCE BY MILITARY RULE OF EVI-

DENCE 707 VIOLATES RESPONDENT’S

SIXTH AMENDMENT RIGHT TO PRESENT

TE I . cctsttincctcnnsitsmiatpiinimntntniiiinennn

THERE IS INCREASING JUDICIAL SUP-

PORT FOR REMOVAL OF EVIDENTIARY

BARRIERS TO POLYGRAPH EVIDENCE...

THE WEIGHT OF SCIENTIFIC RESEARCH

SUPPORTS THE USE AND RELIABILTY

A. The Polygraph Instrument and Testing

I aichadestssetsiuesicepilaniietinistniiiiinasantapivtiaititnedhede

B. Scientific Study of the Polygraph ................

C. Education and Training of Polygraph Ex-

iii is cncessitiiinnaiiaiiipniieiiaeatidiicteaie Met aii.

THE ADMISSION OF POLYGRAPH EVI-

DENCE DOES NOT OVERWHELM OR IM-

PERMISSIBLY INTRUDE ON FUNCTIONS

PERFORMED BY THE TRIER OF FACT....

THE ADMISSION OF POLYGRAPH EVI-

DENCE DOES NOT CREATE UNNECES-

SARY COLLATERAL LITIGATION ...............

SPE casesecscsncesnsensevstttensiimnsnsitionmpiaiiianideiinpinuaniaeen

Page

TABLE OF AUTHORITIES

Cases _ Page

Chambers v. Mississippi, 410 U.S. 284 (1973)........ 1, 4-5

Crane v. Kentucky, 476 U.S. 683 (1986) 000... 6

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

EL 2-3, 7,9

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

TE » £8

Liles v. Saffle, 945 F.2d 333 (10th Cir. 1991) ......... 28

Montana v. Egelhoff, U.S. ——, 116 S. Ct.

SE EI 6

Rock v. Arkansas, 483 U.S. 44 (1987) ...... _.....1, 8-6, 22, 29

United States ex rel. S.E.C. v. Billingsley, 766 F.2d

a weostnonseonne " 28

United States v. Cacy, 43 M.J. 214 (1995) ............ 27

United States v. Cordoba, 104 F.3d 225 (9th Cir.

a enutunenosonbasaces 7-8

United States v. Crumby, 895 F. Supp. 1354 (D.

So eneneas 8

United States v. Denny-Shaffer, 2 F.3d 999 (10th

AES SE 28

United States v. Galbreth, 908 F. Supp. 877

EEE EC eee 8-10, 12

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

ns cesstsemesieibons 26-27, 29

United States v. Kwong, 69 F.2d 663 (2d Cir.

1995), —— U.S. ——., cert. denied, 116 S. Ct.

CE tsmeanees 7

United States v. Piccinonna, 885 F.2d 1529 (11th

a cissnasecnousuiactact 7, 26

United States v. Posado, 57 F.3d 428 (5th Cir.

ES a 7-8

United States v. Scheffer, 44 M.J. 442 (C.M.A.

i sbussntaneseie 3, 5, 27-29

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

a cpsvnssebtnenens 7

United States v. Valenzuela-Bernal, 458 U. S, 858

a ncossesmenannes 4

United States v. Williams, 95 F.3d 723 (8th Cir.

TS Se 7

Washington v. Texas, 388 U.S. 14 (1967) ............... 4

iti

TABLE OF AUTHORITIES—Continued

Constitutions, statutes, regulations, and rules Page

Fed. R. Evid. :

RE ARE ienetalanties 7,8

Military R. Evid. :

Rule 702 . 3

Rule 707 | CY cane 4,6

N.M. Stat. Ann. § 11-707 _.. 25, 30

Miscellaneous

S. Abrams, The Complete Polygraph Handbook

a SE a RE Se

S. Abrams & M. Davidson, Counter-Countermeas-

ures in Polygraph Testing, 17 Polygraph 16

(1988) ...... SE Oe - ee Sa .. 21-22

S. Abrams, The Validity of the Polygraph Tech-

nique with Children, 3 J. Police Sci. & Admin.

I lit 22-23

American Polygraph Association Manual for Poly-

graph School Accreditation (1997) . 25

N. Ansley, A Review of the Scientific Literature

on the Validity, Reliability and Utility of Poly-

graph Techniques (Ft. Meade, Md.: National

Security Agency (1983)) 15

N. Ansley, The Validity and Reliability of Poly-

graph Decisions in Real Cases, 19 Polygraph 169

a _ 18-19

L. Arellano, The Polygraph Examination of Span-

ish Speaking Subjects, 19 Polygraph 155

ARIES a a ee ee OL we Ae 18

G. Barland & D. Raskin, An Evaluation of Field

Techniques in Detection of Deception, 12 Psycho-

ET SE a a 20

G. Barland, A Validation end Reliability Study of

Counterintelligence Screening Test, Security

Support Battalion, 902d Military Intelligence

Group, Fort George G. Meade, Maryland (1981). 20

TABLE OF AUTHORITIES—Continued

Page

L. Binder & L. Parkratz, Neuropsychological Evi-

dence of a Factitious Memory Complaint, 9

J. Clinical & Experimental Neuropsychology 167

RES aan: se Ore re i 22

J. Buckley & L. Senese, The Influence of Race and

Gender on Blind Polygraph Chart Analyses, 20

EERE ERR To 22

S. Carlson et al., The Effect of Lie Detector Evi-

dence on Jury Deliberations: An Empirical

Study, 5 J. Pol. Sci. & Admin. 148 (1977)........ 27

R. Edwards, A Survey: Reliability of Polygraph

Examinations Conducted by Virginia Polygraph

Examiners, 10 Polygraph 229 (1981) .............. 18

E. Elaad & E. Schahar, Polygraph Field Validity,

14 Polygraph 217 (1985) .............0..000 18

1 D. Faigman et al., Modern Scientific Evidence:

The Law and Science of Expert Testimony

EEE CE ee ee eee eee 19-22, 26

1 D. Faust et al., Brain Damage Claims: Coping

with Neuropsychological Evidence (1991)... 28

M. Floch, Limitations of the Lie Detector, 40 J.

Crim. Law & Criminology 651 (1950) .............. 22

R. Gatchel et al., The Effect of Propranolol on

Polygraphic Detection of Deception, University

of Texas Health Sciences Center (1983) (unpub-

I i 20

1 P. Giannelli & E. Imwinkelried, Scientific Evi-

kf ee 10, 12-13, 24-25

A. Ginton et al., A Method for Evaluating the Use

of the Polygraph in a Real-Life Situation, 67 J.

Applied Psychol. 131 (1982) 0000000 .. 21

H. Gough, The F Minus K Dissimulation Index for

the MMPI, 14 J. Consulting Psych. 408 (1950) .. 28

D. Hammond, The Responding of Normals, Alco-

holics, and Psychopaths in a Laboratory Lie-

Detection Experiment, California School of Pro-

fessional Psychology (1980) (unpublished doc-

toral dissertation)

TABLE OF AUTHORITIES—Continuea

C. Honts, Canadian Police Research Centre Field

Validity Study of the Canadian Police College

Polygraph Technique (1994) ...........................

C. Honts & R. Hodes, The Effects of Multiple

Physical Countermeasures on the Detection of

Deception, 19 Psychophysiology 564 (1982)

RE Re a ee Ss aS SEE a a

C. Honts & R. Hodes, The Effects of Simple Physi-

cal Countermeasures on the Physiological Detec-

tion of Deception, 19 Psychophysiology 564

C. Honts & D. Raskin, A Field Study of the Valid-

ity of the Directed Lie Control Question, 16 J.

Police Sci. & Admin. 56 (1988) .....

C. Honts, Interpreting Research on Countermeas-

ures and the Physiological Detection of Decep-

tion, 15 J. Police Sci. & Admin. 204 (1987)...

C. Honts et al., Mental and Physical Countermeas-

ures Reduce the Accuracy of Polygraph Tests,

79 J. Applied Psychol. 252 (1994)

C. Honts & M. Perry, Polygraph Admissibility:

Changes and Challenges, 16 Law & Hum. Behav.

REA CE no! a LS

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

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

Rev. 987 (1995)

S. Horowitz et al., The Directed Lie: Standardizing

Control Questions in the Physiological Detection

of Deception (in press, Psychophysiology)...

E. Imwinkelried, The Standard for Admitting Sci-

entific Evidence: A Critique from the Perspec-

tive of Juror Psychology, 100 Mil. L. Rev. 99

| SEER A ES ES ee

J. Kircher & D. Raskin, Computerized Decision-

Making in the Psysiological Detection of Decep-

tion, 18 Psychophysiology 204 (1981) ..............

J. Kircher & D. Raskin, Human Versus Computer-

ized Evaluations of Polygraph Data in a Labora-

tory Setting, 73 J. Applied Psychol. 291 (1988) .

Page

TABLE OF AUTHORITIES—Continued

A. Markwart & B. Lynch, The Effect of Polygraph

Evidence on Mock Jury Decision-Making, 7 J.

Pol. Sci. & Admin. 824 (1979) ............................

J. Matte & R. Reuss, A Field Validation Study of

the Quadri-Zone Comparison Technique, 18 Poly-

ff ee

J. Matte, Forensic Peychophysiology Using the

Polygraph: Scientifie Truth Verification—Lie

Page

| ES 11, 17, 25

P. Minor, The Relevant-Irrelevent Technique, in

The Complete Polygraph Handbook (S. Abrams

ee ene eee

J. McCall, Misconceptions and Reevaluation—Poly-

graph Admissibility After Rock and Daubert,

1996 U. Ill. L. Rev. 363 (1996) —............ 5, 11-12, 27, 30

K. Murray, Movement Recording Chairs: A Neces-

sity?, 18 Polygraph 15 (1989) .............................

D. Olsen et al, Recent Developments in Polygraph

Technology, 12 Johns Hopkins Applied Physics

Laboratory, Technical Digest 347 (1991) .........

C. Patrick & W. Iacono, Validity and Reliability of

the Control Question Polygraph Test: A Scien-

tific Investigation, 24 Psychophysiology 604

SS Se ee

C. Patrick & W. Iacono, Validity of the Control

Question Polygraph Test: The Problem of Sam-

pling Bias, 76 J. Applied Psychol. 229 (1991)...

R. Peters, A Survey of Polygraph Evidence in

Criminal Trials, 68 A.B.A. J. 162 (1982) ..........

J. Podlesny & D. Raskin, Effectiveness of Tech-

niques and Physiologieal Measures in the De-

tection of Deception, 15 Psychophysiology 344

aR Ee LED Lae ek ee ST Te oe

J. Podlesny & C. Truslow, Validity of an Expanded-

Issue (Modified General Question) Polygraph

Technique in a Simulated Distributed-Crime-

Roles Context, 78 J. — — 788

(19938) .. steeseenenniini ; alia

10-13

vii

TABLE OF AUTHORITIES—Continued

Page

R. Putnam, Field Accuracy of Polygraph in the

Law Enforcement Environment (1983) printed

in 23 Polygraph 260 (1994) 0.00 18

D. Raskin et al., Polygraph Tests: The Scientific

Status of Research on Polygraph Techniques:

The Case for Polygraph Tests, in 1 Modern

Scientific Evidence: The Law and Science of

Expert Testimony (D. Faigman et al. eds.

ne a Ce ce ee 19-22, 26

D. Raskin (Ed), Psychological Methods in Crimi-

nal Investigation and Evidence (1989) ........ 23

D. Raskin & R. Hare, Psychopathy and Detection

of Deception in a Prison Population, 15 Psycho-

physiology 126 (1978) 0.00. 20-22

D. Raskin et al., A Study of the Validity of Poly-

graph Examinations in Criminal Investigations,

National Institute of Justice (1988) ........ 19

D. Raskin et al., Validity of Control Question Poly-

graph Tests in Criminal Investigation, 25 Psy-

ehophysiology 474 (1988) 00000 18

J. Reid, A Revised Questioning Technique in Lie-

Detection Tests, 37 J. Crim. L. & Criminology

RRS REAR Sass ce ee tee A Ee ll

L. Rovner, The Accuracy of Physiological Detec-

tion of Deception for Subjects with Prior Knowl-

edge, 15 Polygraph 1 (1986) 00 22

L. Rovner et al., Effects of Information and Prac-

tice on Detection of Deception, 16 Psychophysi-

ii 20, 21

U.S. Congress, Office of Technology Assessment,

Scientific Validity of Polygraph Testing: A Re-

search Review and Evaluation, OTA-TM-H-15

RE en re He ee TT 14-16

U.S. Department of Defense, The Accuracy and

Utility of Polygraph Testing (1984) ............. 14-16

U.S. Department of Defense Polygraph Program:

Report to Congress for Fiscal Year 1986, re-

printed in 16 Polygraph 53 (1986) 24

viii

TABLE OF AUTHORITIES—Continued

U.S. Department of Defense Polygraph Program:

Annual rolygraph Report to Congress for Fiscal

. GEARED Pe SC SSE ATR or one nee ce

W. Waid et al., Meprobamate Reduces Accuracy

of Physiological Detection of Deception, 212 Sci-

IERIE SSSR Sac

D. Weinstein, Anatomy and Physiology for the

Forensic Psychophysiologist, Department of De-

fense Polygraph Institute (1994) ..... eet Oe

J. Widacki, Analiza Przestanek Diagnozowania W.

Badanich Poligraficenych (The Analysis of Diag-

nostic Premises in Polygraph Examinations),

Uniwersytetu Slaskiego, Katowice (1982)...

J. Widacki & F. Horvath, An Experimental Inves-

tigation of the Relative Validity and Utility of

the Polygraph Technique and Three Other Com-

mon Methods of Criminal Identification, 23 J.

Forensic Sei. GO6 (1078) ......................0--000.000-+.

Takehiko Yamamura & Yoichi Miyake, Psycho-

physiological Evaluation of Detection of Decep-

tion in a Riot Case Involving Arson and Murder,

2... §.. 2) .

W. Yankee, The Current Status of Research in

Forensic Psychophysiology and Its Application

in the Psychophysiological Detection of Decep-

Page

.- 20, 23

tion, 40 J. Forensic Sci 63 (1995) .............. .....17-18, 24

BRIEF FOR AMICUS CURIAE

AMERICAN POLYGRAPH ASSOCIATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The American Polygraph Association (APA) was es-

tablished in 1966 and is a professional association of over

1,800 polygraph examiners and academic researchers in

the private sector, law enforcement, and government fields.

The APA was formed by the merger of the Academy of

Scientific Interrogation, the American Academy of Poly-

graph Examiners, the National Board of Polygraph Ex-

aminers, and the International Association of Polygraph

Examiners.

The objectives of the APA are that of advancing the

use of the polygraph as a science and a profession. APA

members have a particular interest in ensuring that this

Court is informed about the modern polygraph instrument

and examination procedure, the current research on the

validity of polygraph results, and the legal issues impli-

cated by a per se exclusion of polygraph evidence.’

SUMMARY OF ARGUMENT

I. In order to maintain restrictions on a defendant's

Sixth Amendment right to call witnesses in his favor, peti-

tioner must demonstrate that such restriction is not

arbitrary or disproportionate to the purpose it is designed

to serve. Rock v. Arkansas, 483 U.S. 44 (1987), and

Chambers v. Mississippi, 410 U.S. 284 (1973). In the

context of a complete and wholesale exclusion of a class

of scientific evidence, petitioner bears the burden of

repudiating, by clear evidence, its validity. Rock at 61.

Petitioner’s attempt to establish an artificially low

standard of review for per se restrictions on a class of

scientific evidence—that the per se exclusion of polygraph

evidence is constitutional so long as it is reasonable and

' Consent letters have been filed with the clerk.

serves a legitimate interest—is based on the general prin-

ciple that a defendant’s right to present relevant evidence

in his defense is not absolute. While Amicus does not

dispute this general principle, Rock and Chambers demon-

Strate that it is not the controlling principle where a whole-

sale exclusion of a class of scientific evidence is under

review.

Il. In the wake of Daubert v. Merrell Dow Pharma-

ceuticals, Inc., 509 U.S. 579 (1993), a number of federal

Circuit courts of appeals, recognizing the advances made

in polygraph instrumentation, technique, and research,

have rejected judicially-imposed per se rules against the

admissibility of polygraphs. This trend is continuing, and

several federal district courts have, applying a Daubert

analysis, found polygraph evidence admissible.

III. The modern polygraph instrument and testing

technique has undergone a great deal of improvement and

scientific validity testing. The scientific literature indicates

that the control question polygraph technique has high

accuracy rates in the average range of 90%; an accuracy

rate considerably better than some traditionally accepted

types of evidence. Additionally, improvements in the edu-

cation and training of polygraph examiners have enhanced

the reliability of polygraphs.

IV. Research does not support petitioner's argument

that a trier of fact would be unduly swayed by polygraph

evidence. Further, polygraph evidence is not unique as an

indicator of witness credibility and does not impermissibly

intrude on the function of the jury.

V. The admission of polygraph evidence will not un-

reasonably burden the courts. States may establish reason-

able guidelines for the admission of polygraph evidence

at trial.

ARGUMENT AND AUTHORITY

I. THE PER SE EXCLUSION OF POLYGRAPH EVI-

DENCE BY MILITARY RULE OF EVIDENCE 707

VIOLATES RESPONDENTS SIXTH AMEND-

MENT RIGHT TO PRESENT A DEFENSE

In United States v. Scheffer, 44 M.J. 442 (C.M.A.

1996), it was held that where the defendant “testified,

placed his credibility in issue, and was accused by the

prosecution of being a liar,” the “per se exclusion of poly-

graph evidence offered by an accused 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.”

44 M.J. at 445. The Court of Military Appeals relied,

in part, on the framework for examining constitutional

challenegs to per se exclusions of evidence set out in Rock

v. Arkansas, 483 U.S. 44 (1987),? and the general ap-

proach of relaxing the traditional barriers to expert opin-

ion testimony discussed in Daubert v. Merrell Dow Phar-

maceuticals, Inc., 509 U.S. 579 (1993).°

In Rock, this Court reversed Arkansas’ per se exclusion

of hypnotically-refreshed testimony that had worked to

limit the testimony of the defendant. Finding defendant's

right to testify to be a fundamental right, /d. at 51-53,

this Court observed:

restrictions of a defendant’s right to testify may

not be arbitrary or disproportionate to the purposes

they are designed to serve. In applying its evidentiary

rules a State must evaluate whether the interests

served by a rule justify the limitation imposed on

the defendant’s constitutional right to testify.

Id. at 55-56. In order to demonstrate that a complete and

wholesale exclusion of a class of scientific evidence was

not arbitrary and disproportionate to the purpose it was

designed to serve, this Court placed on the state of Arkan-

—_——

2 United States v. Scheffer, 44 M.J. at 445-446.

8 Jd. at 446.

sas the burden of repudiating, by clear evidence, the

validity of all post-hypnosis recollections. As set forth by

the Court:

A State’s legitimate interest in barring unreliable evi-

dence does not extend to per se exclusions that may

be reliable in an individual case. Wholesale in-

admissibility of a defendant’s testimony is an arbi-

trary restriction on the right to testify in the absence

of clear evidence by the State repudiating the validity

of all posthypnosis recollections.

Id. at 61. As a defendant's right to present evidence in

his or her defense is a fundamental right,‘ petitioner’s

wholesale exclusion of polygraph evidence found in

Mil.R. Evid. 707 should be tested against the same stand-

ard for arbitrariness and disproportionality, as was

hypnotically-refreshed testimony in Rock, requiring a clear

demonstration from respondent of the unreliability of poly-

graph evidence in all cases.

Petitioner views Rock more narrowly, drawing a dis-

tinction between the constitutional right of a defendant

to testify on his own behalf as opposed to calling witnesses

in his favor. Petitioner’s Brief at 35. However, in reach-

ing its conclusion that “Arkansas’ per se rule excluding

all posthypnosis testimony infringes impermissibly on the

right of a defendant to testify on his own behalf,” 483

U.S. at 62, this Court did not limit its analysis to the

testimony of the defendant. In Rock, this Court relied,

in part, on its decision in Chambers v. Mississippi, 410

U.S. 284 (1973), where a state’s hearsay rule was deter-

mined to be unconstitutional on the ground that it

abridged a defendant’s right to present witnesses in his

own defense. Rock, 483 U.S. at 55. In Chambers, this

Court held Mississippi to the same burden of demonstrat-

4 This Court observed in Rock that “the Sixth Amendment, which -

grants a defendant the right to call ‘witnesses in his favor,’”

logically includes “the accused’s right to call witnesses whose testi-

mony is ‘material and favorable to his defense.’” Rock at 52

(citing Washington v. Texas, 388 U.S. 14, 17-19 (1967), and United

States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) ).

5 _

ing the unreliability of the proffered testimony of a witness

for the defense. Summarizing Chambers, this Court noted

in Rock:

In the Court’s view, the State in Chambers did not

demonstrate that the hearsay testimony in that case,

which bore “assurances of trustworthiness” including

corroboration by other evidence, would be unreliable,

and thus the defendant should have been able to

introduce the exculpatory testimony.

Rock at 55 (emphasis added).

The court in United States v. Scheffer observed that the

defendant’s testimony in Rock and the presentation of poly-

graph evidence in the present case concerning exclusion of

evidence supported the truthfulness of the defendant's testi-

mony and could “perceive no significant constitutional dif-

ference between the two” because “[i]n either case, the

Sixth Amendment right to present a defense is impli-

cated.”* 44 M.J. at 446. A similar unwillingness to con-

fine Rock to testimony of a criminal defendant was ex-

pressed in J. McCall, Misconceptions and Reevaluation—

Polygraph Admissibility After Rock and Daubert, 1996

U. Ill. L. Rev. 363 (1996) [hereinafter McCall, Miscon-

ceptions and Reevaluation]. There, the author stated that

Rock established the basic components in developing a

constitutional right to introduce exculpatory evidence in

criminal trials (McCall, Misconceptions and Reevaluation,

at 392) and concluded that “[t]he Rock opinion is most

logically read to establish a Sixth Amendment right to call

exculpatory witnesses whose testimony may be subject to

a known, but manageable, risk of inaccuracy.” Jd. at 408.

Petitioner ignores the analysis 1a Rock and Chambers

and argues that per se restrictions on evidence are con-

stitutional merely “if they are reasonable and serve legi-

5 Although not discussed in; Rock, it is reasonable to presume

that Rock would also encompass the defendant's right to call an

expert regarding the science of hypnotically-refreshed testimony.

timate interests.” Petitioner's Brief at 14. Petitioner's at-

tempt to establish an artificially low standard of review

is based primarily on the general principle that “a defend-

ant’s right to present relevant evidence in his defense is

not absolute” and must follow established evidentiary rules.

Petitioner’s Brief at 15. Amicus does not dispute this gen-

eral principle but does dispute that it is the controlling

principle when the precise issue is a per se exclusionary

rule.

On this basis, petitioner's citation to Crane v. Kentucky,

476 U.S. 683 (1986), and Montana v. Egelhoff, US.

. , 116 S. Ct. 2013 (1996), is unpersuasive. Crane

did not address a per se exclusion of a class of evidence but

addressed a trial court’s determination not to allow testi-

mony about the circumstances of a defendant’s confession.

In that context, though reversing the trial court’s decision,

this Court reaffirmed those cases granting trial courts wide

latitude in making evidentiary decisions. Egelhoff ad-

dressed a Montana statute that excluded evidence of vol-

untary intoxication when a defendant’s state of mind is at

issue. That decision was based on the power of a state

to define crimes and defenses, not on the type of per se

exclusionary rule of evidence addressed in Rock, Cham-

bers, and the present case.

Accordingly, the issue is not whether respondent’s per se

exclusion of polygraph evidence is reasonable and serves a

legitimate interest but, rather, in the circumstances of this

case, whether respondent has clearly demonstrated that

polygraph evidence is unreliable in all cases. Under either

test, however, the per se exclusion of polygraph evidence

under Mil.R.Evid. 707 violates a defendant’s Sixth Amend-

ment right to present a defense.

II. THERE IS INCREASING JUDICIAL SUPPORT

FOR REMOVAL OF EVIDENTIARY BARRIERS

TO POLYGRAPH EVIDENCE

Petitioner claims that the reasonableness of a per se ex-

Clusionary rule for polygraph evidence is supported in part

by “[w]idespread judicial support for a prohibition on

polygraph admissibility.” Petitioner’s Brief at 31. Peti-

tioner’s argument fails to acknowledge in an adequate

manner the recent decisions of federal circuit courts of

appeals, especially those after Daubert, which have re-

moved the evidentiary barriers to polygraph evidence.

The stage was set in the circuit courts in a pre-Daubert

decision, United States v. Piccinonna, 885 F.2d 1529 (11th

Cir. 1989). There, a criminal conviction was vacated and

the case was remanded to reconsider the admissibility of

the defendant’s polygraph test results. The court of ap-

peals, observing “tremendous advances” in polygraph in-

strumentation and technique and the progress in the

science of polygraphy, reasoned that even under a strict

adherence to the traditional standard in Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923), “it is no longer

accurate to state categorically that polygraph testing lacks

general acceptance for use in all circumstances.” United

States v. Piccinonna, 885 F.2d at 1532.

This Court’s decision in Daubert led a number of cir-

cuit courts of appeals to join the Eleventh Circuit decision

in Piccinonna and withdraw the per se rule of inadmis-

sibility of polygraph evidence. Other leading circuit court

of appeals decisions reflecting this change include United

States v. Kwong, 69 F.3d 663, 668-69 (2d Cir. 1995),

US. , cert. denied, 116 S. Ct. 1343 (1996)

(“assuming that polygraph results are admissible under

Rule 702,” but not reaching that holding because the

record was insufficiently developed and the results were

properly excluded under Rule 403), United States v.

Posado, 57 F.3d 428, 432 (Sth Cir. 1995) (after Daubert,

a per se rule is “no longer viable”); United States v.

Sherlin, 67 F.3d 1208, 1216 (6th Cir. 1995) (the decision

to exclude polygraph evidence is “within the sound dis-

cretion of the trial court,” but was properly excluded here

under Rule 403); United States v. Williams, 95 F.3d 723

(8th Cir. 1996) (discussing the offer of polygraph evidence

under a Daubert analysis, but holding that the district court

did not abuse its discretion in excluding the evidence under

Rule 403); and United States v. Cordoba, 104 F.3d 225,

228 (9th Cir. 1997) (“we hold that Daubert effectively

overruled . . . [the] per se rule under Rule 702 against ad-

mission of unstipulated polygraph evidence” ).

The rationale for the elimination of judicially-imposed

per se exclusions of polygraph evidence may have been best

explained by the Fifth Circuit Court of Appeals in Posado:

Current research indicates that, when given under

controlled conditions, the polygraph technique accu-

rately predicts truth or deception between seventy

and ninety percent of the time. Remaining contro-

versy about test accuracy is almost unanimously at-

tributed to variations in the integrity of the testing

environment and the qualifications of the examiner.

Such variation also exists in many of the disciplines

and for much of the scientific evidence we routinely

find admissible under Rule 702.

57 F.3d at 434 (footnotes omitted). Therefore, contrary

to petitioner’s suggestion, there is widespread and in-

creasing support for removing the barriers to polygraph

evidence.

Petitioner concedes that “several courts of appeals have

retreated from the categorical exclusion of polygraph evi-

dence,” but that no court of appeals has concluded that

polygraph testing is scientifically valid or that the results of

a polygraph test were reliable enough to be admitted into

evidence. Petitioner’s Brief at 33-34. Petitioner fails to

note that it is only recently that the circuit courts of ap-

peals, in the wake of Daubert, have begun issuing opinions

withdrawing judicially-imposed per se rules against poly-

graph admissibility. In fact, district court decisions are

now emerging wherein the trial court judges have per-

formed a Daubert analysis and determined that polygraph

evidence is admissible in certain circumstances and for cer-

tain purposes. See, e.g., United States v. Galbreth, 908 F.

Supp. 877 (D.N.M. 1995); United States v. Crumby, 895

F. Supp. 1354 (D. Ariz. 1995). These carefully consid-

ered opinions indicate that district courts are able to per-

form the “gatekeeper” role which this Court stated in

Daubert it expected them to perform.

Ill. THE WEIGHT OF SCIENTIFIC RESEARCH SUP-

PORTS THE USE AND RELIABILITY OF POLY-

GRAPHS

A. The Polygraph Instrument and Testing Technique

The polygraph instrument and testing technique used for

modern physiological assessment of deception bears little

similarity to the instrument and technique assessed by the

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

1923).° As described in United States v. Galbreth, 908

F. Supp. 877, 883 (D.N.M. 1995):

The machine scrutinized in Frye was a standard

blood pressure type device comprised of a micro-

phone and a cuff that measured the subject’s blood

pressure. The examiner asked the subject a series

of questions during which time the examiner periodi-

cally took the subject’s blood pressure.

These blood pressure recordings were not continuous

and no apparent formal analysis was conducted. C. Honts

& B. Quick, The Polygraph in 1995: Progress in Science

and the Law, 71 N.D. L. Rev. 987, n.3 (1995) [herein-

after Honts & Quick, The Polygraph in 1995).

The modern polygraph instrument “record[{s] measures

from at least three physiological systems that are controlled

by the autonomic nervous system.” /d. at 989-90. As

summarized in Galbreth, 908 F. Supp. at 883:

It measures respiration at two points on the body;

on the upper chest, the thoracic respiration, and on

the abdomen, the abdominal respiration. Movements

of the body associated with breathing are recorded

such that the rate and depth of inspiration and ex-

piration can be measured. The polygraph machine

also measures skin conductance or galvanic skin

response. Electrodes attached to the subject's finger-

*See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579, 587 (1993) (“[t]he Frye test has its origin in a short and

citation-free 1923 decision concerning the admissibility of evidence

derived from a systolic blood pressure deception test, a crude

precursor to the polygraph machine”).

tip or of the hand indicate changes in the

sweat activity in those areas. In addition, the

polygraph measures increases in blood pressure and

changes in the heart rate. This measurement, known

as the cardiovascular measurement, is obtained by

placing a standard blood pressure cuff on the sub-

ject’s upper arm. Finally, the polygraph may also

measure, by means of a plethysmograph, blood sup-

ply changes in the skin which occur as blood vessels

in the skin of the finger constrict due to stimulation.

See also D. Olsen et al., Recent Developments in Polygraph

Technology, 12 Johns Hopkins Applied Physics Labora-

tory, Technical Digest 347, 348 (1991) [hereinafter

Olsen et al., Recent Developments|; D. Weinstein, An-

atomy and Physiology for the Forensic Psychophysiologist,

Department of Defense Polygraph Institute (1994). There

is little controversy in the scientific literature regarding the

accuracy of these recordings of physiological responses.

1 P. Giannelli & E. Imwinkelried, Scientific Evidence 217

(2d ed. 1993) [hereinafter Giannelli & Imwinkelried, Sci-

entific Evidence 2d).

Stated briefly, the scientific theory underlying modern

polygraph assessment of deception is that due either to

“cognitive processing or emotional stress,” there are re-

cordable and measurable physiological reactions to decep-

tive responses, such as a response to a question involving

the matter under investigation which the subject is unable

to inhibit. Olsen et al., Recent Developments, at 347. As

described in United States v. Galbreth, 908 F. Supp. at

884:

the underlying scientific theory upon which the

modern polygraph technique is based is derived from

the notion that if a person is threatened or concerned

about a stimulus or question, such as a question

addressing the matter under investigation, that this

concern will express itself in terms of measurable

reactions which the subject is unable

physiological

to inhibit and which can be recorded on a polygraph

instrument.

Until approximately 1950, most polygraph testing used

the relevant/irrelevant (R/1) question format. McCall,

Misconceptions and Reevaluation, at 378. Generally, the

R/I test compares the relative physiological reactivity of

irrelevant questions (questions not related to the matter

under investigation) and relevant questions (questions per-

taining to the matter under investigation). /d. at 410

n.333. Since its development in 1947,’ the control ques-

tion (CQ) format has been the most widely used poly-

graph technique.“ Rather than comparing the relative

physiological reactivity of relevant and irrelevant ques-

tions, the CQ technique compares relative physiologi-

cal reactivity of deceptive responses to troubling but in-

consequential questions (control questions) and relevant

questions. The CQ test is summarized as follows:

In the CQ test, the subject is asked to answer a

number of “control” (meaning stressful, but logically

distinct from the incident that is the subject of the

examination) questions that are intended to provoke

anxiety and a false denial. Thus, if the person being

examined is suspected of committing a theft on Jan-

uary 10, 1996, a valid control question would be.

“During the five year period from January 1, 1991,

to December 31, 1995, do you remember stealing

anything?” The assumption is that the subject will

answer in the negative but suffer some doubts and

experience anxiety (and show a strong physiological

reaction) in considering the question. Relevant ques-

tions relating to the incident under investigation

(“Did you steal the wallet of your coworker on Jan-

uary 10, 1996?”) are interspersed among the control

TJ. Reid, A Revised Questioning Technique in Lie-Detection

Tests, 37 J. Crim. L. & Criminology (1947). The CQ format is,

today, a family of related techniques, all derived from Reid's origi-

nal procedure. J. Matte, Forensic Psychophysiology Using the Poly-

graph: Scientific Truth Verification—Lie Detection 250 (1996)

{hereinafter Matte, Forensic Psychophysiology).

* The R/I continues to be a popular technique in employee screen-

ing situations. P. Minor, The Relevant-Irrelevant Technique, in

The Complete Polygraph Handbook 143 (S. Abrams ed. 1989).

questions. An innocent subject will show significantly

less physiological reaction when truthfully denying

the relevant questions than when denying the control

questions.

Id. at 411 n.339. Irrelevant questions are interspersed as

buffers. Olsen et al., Recent Developments, at 348.

A standard polygraph examination consists of a pre-test

interview, polygraph testing, and analysis of the poly-

graph data. The pre-test interview serves a variety of

functions, including: to “acquaint the subject with the

effectiveness of the technique,” thus allaying the appre-

hensions of the truthful subject and stimulating the decep-

tive subject’s concern about the prospect of detection; to

“assess the suitability of the subject for testing” and to

develop information for formulation of polygraph test

questions. Giannelli & Imwinkelried, Scientific Evidence

2d at 219 (footnotes omitted). The court in Galbreth

describes additional functions of the pre-test interview as:

introduction of the control question in such a way as to

elicit a deceptive response; advance review of questions to

avoid surprise; to prevent the need of the subject to an-

alyze the meaning of a question; and to ensure the under-

standing of any terms used in the questions. Galbreth,

908 F. Supp. at 884-885.”

The examination is ordinarily conducted in a testing

room, devoid of external distractions. S. Abrams, The

* Petitioner acknowledges that “(t)here is no doubt that the -

polygraph can accurately measure certain physiological responses to

accusatory questioning and that a correlation appears to exist be-

tween a fear of detection and a © bject’s physiological response.”

Petitioner's Brief at 21 n.7. Petitioner_questions whether these

physiological responses might be -onfused with “responses caused

by other emotions.” /d. As set forth in the text, the pre-test inter-

view is designed to minimize physiological responses due to these

other emotions or extrinsic factors. This, along with a properly

constructed testing room, the repetition of the test in two or more

charts, and the post-test interview further serve to minimize

extrinsic factors affecting the test. The success of minimizing these

factors is demonstrated in the high accuracy rates reported for

polygraph testing in the scientific literature.

Complete Polygraph Handbook 37 (1989). During the

actual examination, a series of tests,” asking the same

questions but in a different order, are given. This is to

ensure that there is consistent physiological response to

the same questions, thus reducing the potential that out-

side stimuli influence test results. /d. at 71. Physiological

responses are recorded on a moving chart. During the test-

ing, the examiner makes appropriate markings on the chart

to indicate where each question is asked and answered and

whether there are interfering factors which occurred that

may have affected a subject's response to a particular ques-

tion. Id. at 37.

Test interpretation is made by comparing the relative

reactivity to control and relevant questions. A numerical

scoring system is ordinarily employed which literally calls

for measuring and comparing the rise and duration of phys-

iological response. /d. at 74. nce, judgments about the

difference between responsesjto the relevant and control

questions are minimized. In the last ten years, algorithms

have been developed which allow computer-assisted chart

interpretation. Olsen et al., Recent Developments, at 349.

Quality control, in the form of “blind” chart interpre-

tation by a non-examining polygrapher, without knowledge

of the original examiner's conclusions, is often employed by

private examiners and typically employed by federal

agency examiners to ensure agreement in interpretation.

See Giannelli & Imwinkelried, Scientific Evidence 2d, at

223. A polygraph test may be interpreted as no deception

indicated (NDI), deception indicated (DI), or incon-

clusive (IC).

Typically, following a polygraph examination, a post-

test interview is conducted in which the results of the poly-

graph are conveyed to the subject and the subject is inter-

viewed to determine, in part, if there was any external

1 Typically, two to five charts (test repetitions) are obtained.

Olsen et al., Recent Developments, at 347; Giannelli & Imwinkelried,

Scientific Evidence 2d, at 221.

stimuli that may have influenced the test. S. Abrams, The

Complete Polygraph Handbook 85 (1989).

B. Scientific Study of the Polygraph

In 1983 and 1984, two federally-sponsored reviews of

the then available scientific literature regarding polygraph

were issued. The first was issued by the Office of Tech-

nology Assessment of the U.S. Congress. U.S. Congress,

Office of Technology Assessment, Scientific Validity of

Polygraph Testing: A Research Review and Evaluation,

OTA-TM-H-15 (1983) [hereinafter OTA Report]. The

second was issued by the U.S. Deparment of Defense. USS.

Department of Defense, The Accuracy and Utility of

Polygraph Testing 2 (1984) [hereinafter DoD Report).

Each of these reviews is considered herein along with sev-

eral subsequent reviews of some of the more recent sci-

entific literature.

In February 1983 the Committee of Government Oper-

ations, U.S. House of Representatives, in rosponse to a

Presidential National Security Decision Directive (NSDD-

84) which authorized increased use of polygraph examina-

tion for security screening of federal employees and civilian

contractors with access to highly classified information,

formally requested the Office of Technology Assessment of

the U.S. Congress to conduct a review of the scientific

literature on the validity of polygraph testing.

The OTA determined that there were ten field studies ”

and fourteen analog studies on the validity of the CQ

11“Field studies investigate actual polygraph examinations and

constitute the most direct evidence for polygraph test validity.”

OTA Report at 47 (endnote omitted). The primary problem in

field studies is establishing ground truth, i.e., objectively determining

the actual truth-tellers so they may be compared with the test

outcomes.

12 Analog, or laboratory, studies are investigations in which field

methods of polygraph examinations are used in simulated situations.

OTA Report at 61. Analog studies are typically conducted by hav-

ing a portion of the subjects commit a mock crime and instructing

which met their scientific criteria.) OTA Report at 97.

Summarizing their review, the OTA found that those studies

employing the CQ in specific incident criminal investigations

found average accuracy rates in field studies of 86.3% cor-

rect detection of guilty subjects and 76% correct detection

of innocent subjects. /d. In analog studies, the accuracy

was 63.7% correct detection of guilty subjects and 57.9%

correct detection of innocent subjects. /d. However, these

average accuracy results were skewed down as the OTA

chose to identify inconclusive findings as errors on the basis

that “an inconclusive is an error in the sense that a guilty

or innocent person has not been correctly identified.” Jd.

The OTA acknowledged that exclusion of inconclusives

would raise the overall accuracy rate. Jd. The OTA

did acknowledge, though critical of its study selection, a

then recent “important review” which found an average

field study validity of 97.2% and analog study validity of

93.2%. Id. at 41, citing N. Ansley, A Review of the

Scientific Literature on the Validity, Reliability and Utility

of Polygraph Techniques (Ft. Meade, Md.: National Se-

curity Agency (1983)) (found at 125 n.7).

The OTA determined that personnel security screening

involved “a different type of polygraph test than specific-

incident investigations” and observed that “very little

screening research has been conducted” and, for that reason

them to lie about it during the polygraph test. Analog studies are

sometimes criticized for their lack of realism. Honts & Quick, The

Polygraph in 1995, at 994. This problem is reduced by offering

incentives associated with the outcome of the test. /d. at 994 n.48.

‘8 While inconclusives may impact the utility of the polygraph,

they do not impact accuracy inasmuch as an inconclusive decision

would not reflect a bad judgment but, rather, reflects insufficient

information to make a decision. As explained in the DoD Report

at 61:

Even the most accurate test has diminishing utility as the

inconclusive rate increases. Fingerprints, for example, have

limited utility in investigations despite their extremely high

accuracy because only occasionally can identifiable prints be

recovered.

found that the scientific basis for the use of polygraph for

personnel screening was not established. OTA Report at

99-100. The OTA did determine that

[t]he preponderance of research evidence does indi-

cate that, when the control question technique 1s

used in specific-incident criminal investigations, the

polygraph detects deception at a rate better than

chance, but with error rates that could be considered

significant.

Id. at 97. The OTA urged further research and set out

priorities for such research. /d. at 101-102.

In 1984, at the request of the Deputy Under Secretary

of Defense, the Department Of\ Defense issued a report

which surveyed the then existin® scientific literature re-

garding polygraph testing. DoD Report at 2. Observ-

ing that there has been more scientific research conducted

* on polygraph testing “in the last six years than in the pre-

vious 60 years,” the authors of the DoD Report included a

larger group of studies in its review than did the authors

of the OTA Report. Id. at 58. Field studies reviewed

demonstrated 90 to 100 percent accurate classification of

guilty subjects and 85 to 100 percent accurate classifica-

tion of innocent subjects after exclusion of inconclusive re-

sults. Jd. at 37-38. Analog studies were found to

correctly classify from 75% to 100% of the guilty

subjects and from 57% to 100% of the innocent

subjects. The mean correct classification rate weighed

for number of subjects in the study is 90% for

guilty subjects and 80% for innocent subjects.

Id. at 62. In its overview, the DoD observed that while

there were some limitations on the scientific research, “the

research produces results significantly above chance.” Id.

at 3.

- Since the OTA Report and DoD Report, there have been

significant technological advances in polygraph instrumen-

tation and an increase in research in the field of phy-

siological detection of deception and better education and

training of examiners:

The period between 1986 and the present has been

one of unparalleled advances in the psychophysiologi-

cal detection of deception testing procedures and

processes. .. . More sensitive sensors; more efficient

transducers; improved means of digitizing and record-

ing physiological data; digitizing analog data at in-

creasingly high sample rates; and algorithms to eval-

uate physiological data in an unlimited fashion, all

represent technical innovations that will enhance the

advancement of the new and evolving science of

forensic psychophysiology.

W. Yankee, The Current Status of Research in Forensic

Psychophysiology and Its Application in the Psychophysi-

ological Detection of Deception, 40 J. Forensic Sci. 63,

63 (1995) [hereinafter Yankee, The Current Status}.

Under the Defense Authorization Act of 1986, the Sec-

retary of Defense was directed to carry out research in the

field of physiological detection of deception. Addition-

ally, in 1986, Department of Defense Directive 5210.78

established the Department of Defense Polygraph Institute

(DoDPI) as a higher education and research facility.

Yankee, The Current Status, at 63.

DoDPI’s role in polygraph research was described in

Matte, Forensic Psychophysiology, at 102:

While not all published research relating to PV ex-

aminations during the past fifteen years was con-

ducted by DoDPI, its role as a leading research

entity certainly gave impetus to other research facili-

ties and individuals . . . to engage in research regard-

ing PV examination test formats, physiological data

collection processes, physiological data analysis, diag-

nostic procedures and the recognition and identifica-

tion of countermeasures.

Summaries of DoDPI’s research are contained in its annual

reports to Congress."

In its Annual Report to Congress for Fiscal Year 1990,

DoDPI summarized a report prepared by the National

Security Agency which reviewed polygraph field studies

conducted since 1980. That report, subsequently published

in Polygraph,” considered ten field studies." The ten

studies reviewed considered a total of 2,042 examiner

decisions, and the results, although excluding inconclu-

sives, assumed that every disagreement was a polygraph

error. Average accuracy was 98%. Ansley, The Validity

and Reliability, at 177. Table 1 of the report sets forth,

in part, the following results:

14 In Yankee, The Current Status, the author cites a number of

studies either conducted, administered, or contracted by DoDPI.

15 N. Ansley, The Validity and Reliability of Polygraph Decisions

in Real Cases, 19 Polygraph 169 (1990) {hereinafter Ansley, The

Validity and Reliability).

16, Arellano, The Polygraph Examination of Spanish Speaking

Subjects, 19 Polygraph 155 (1990); R. Edwards, A Survey: Re-

liability of Polygraph Examinations Conducted by Virginia Poly-

graph Examiners, 10 Polygraph 229 (1981) ; E. Elaad & E. Schahar,

Polygraph Field Validity, 14 Polygraph 217 (1985); J. Matte & R.

Reuss, A Field Validation Study of the Quadri-Zone Comparison

Technique, 18 Polygraph 187 (1989) ; K. Murray, Movement Record-

ing Chairs: A Necessity?, 18 Polygraph 15 (1989); C. Patrick &

W. Iacono, Validity and Reliability of the Control Question Poly-

graph Test: A Scientific Investigation, 24 Psychophysiology 604

(1987); R. Putnam, Field Accuracy of Polygraph in the Law

Enforcement Environment (1983), printed in 23 Polygraph

260 (1994); D. Raskin et al., Validity of Control Question Poly-

graph Tests in Criminal Investigation, 25 Psychophysiology 474

(1988) ; J. Widacki, Analiza Przestanek Diagnozowania W. Badanich

Poligraficzenych (The Analysis of Diagnostic Premises in Polygraph

Examinations), Uniwersytetu Slaskiego, Katowice (text in Polish)

(1987); R. Putnam, Field Accuracy of Polygraph in the Law

Evaluation of Detection of Deception ina Riot Case Involving Arson

and Murder, 9 Polygraph 170 (1980).

oe ET

TABLE 1

Validity of Examiners’ Decisions

(inconclusives excluded )

Total

“* -Authore/Dates O/C Correct /

Arellano (1990) eee 100 %

Edwards (1981) 959 943 98%

Elaad/Schahar (1985) 174 168 97%

Matte/Reuss (1989) 114 114 100%

Murray (1989) 171 168 98%

Patrick/Iacono (1987) 81 78 96%

Putnam (1983) 285 281 99%

Raskin et al. (1988) 85 81 95%

Widacki (1982)* 38 35 92%

Yamamura/ Miyake (1980) 95 85 89%

TOTALS 2042 1993 98%

*Only the totals reported.

Ansley, The Validity and Reliability, at 171.

In a review of four CQ field studies, determined by the

authors to meet the criteria for meaningful field studies, the

average accuracy of field decisions for the CQ was

90.5%." D. Raskin et al.; Polygraph Tests: The Scientific

Status of Research on Polygraph Techniques: The Case

for Polygraph Tests, § 14-2.2.1 at 575, in 1 Modern Scien-

tific Evidence: The Law and Science of Expert Testimony

(D. Faigman et al. eds., 1997) [hereinafter Raskin et al.,

17 Those field studies were cited by Raskin et al. as follows:

C. Honts, Canadian Police Research Centre Field Validity Study

of the Canadian Police College Polygraph Technique (1994);

Cc. Honts & D. Raskin, A Field Study of the Validity of the Directed

Lie Control Question, 16 J. Police Sci. & Admin. 56 (1988); C.

Patrick & W. Iacono, Validity of the Control Question Polygraph

Test: The Problem of Sampling Bias, 76 J. Applied Psychol. 229

(1991) ; Raskin et al., A Study of the Validity of Polygraph Ex-

aminations in Criminal Investigations, National Institute of Justice

(1988). Raskin et al., Polygraph Tests: The Scientific Status, at

575 n.38.

Polygraph Tests: The Scientific Status}. The accuracy

rose to 95.5% when one study, for which the authors had

some criticism, was excluded. /d.

Reviewing eleven analog studies, S. Abrams, The Com-

plete Polygraph Handbook 190-191 (1989), found that,

excluding inconclusives, overall accuracy of the CQ was

“in the range of 87 percent.” ** The author observed that

“(t]he findings for the CQT in the laboratory, for all of its

weaknesses, indicate both high validity and reliability.”

Id. at 191.

18 Those studies were cited by Abrams as follows: D. Raskin &

R. Hare, Psychopathy and Detection of Deception in Prison Popula-

tion, 15 Psychophysiology 126 (1978); D. Hammond, The Respond-

ing of Normals, Alcoholics, and Psychopaths in a Laboratory Lie-

Detection Experiment, California School of Professional Psychology

(1980) (unpublished doctoral dissertation); J. Widacki & F.

Horvath, An Experimental Investigation of the Relative Validity

and Utility of the Polygraph Technique and Three Other Common

Methods of Criminal Identification, 23 J. Forensic Sci. 596 (1978) ;

L. Rovner et al., Effects of Information and Practice on Detection

of Deception, paper presented at Society for Psychophysiological

Research (Madison, Wisconsin, 1979), printed in 16 Psychophysiol-

ory 197 (1979); C. Honts & R. Hodes, The Effects of Simple Physi-

cal Countermeasures on the Physiological Detection of Deception,

19 Psychophysiology 564 (1982) (abstract); C. Honts & R. Hodes,

The Effects of Multiple Physical Countermeasures on the Detection

of Deception, 19 Psychophysiology 564 (1982) (abstract); R.

Gatchel et al., The Effect of Propranolol on Polygraphic Detection

of Deception, University of Texas Health Sciences Center (1983)

(unpublished manuscript) ; G. Barland & D. Raskin, An Evaluation

of Field Techniques in Detection of Deception, 12 Psychophysiology

$21 (1975); J. Podlesny & D. Raskin, Effectiveness of Techniques

and Physiological Measures in the Detection of Deception, 15

Psychophysiology 344 (1978) ; J. Kircher & D. Raskin, Computerized

Decision-Making in Physiological Detection of Deception, 18

Psychophysiology 204 (1981); G. Barland, A Validation and Re-

liability Study of Counterintelligence Screening Test, Security Sup-

port Battalion, 902d Military Intelligence Group, Fort George G.

Meade, Maryland (1981). S. Abrams, The Complete Polygraph

Handbook 246-249 (1989).

Raskin et al., Polygraph Tests: The Scientific Status, re-

viewed eight “high quality” analog studies of the CQ

which had been reported between 1978 and 1994." The

average accuracy of these CQ analog studies correctly

classified approximately 90% of the subjects. Id. at

§ 14-2.2.1 at 572.

Petitioner argues that “a highly motivated subject . . .

may employ countermeasures to obscure an accurate read-

ing of physiological responses.” Petitioner’s Brief at 24-

25. Amicus is aware of those studies which indicate some

decreased accuracy of the polygraph when subjects are

trained to employ countermeasures. See, e.g., C. Honts,

Interpreting Research on Countermeasures and the Physio-

logical Detection of Deception, 15 J. Police Sci. & Admin.

204 (1987). Although movement by the subject has

been considered to be a possible countermeasure, use

of an activity monitor placed beneath the subject’s

chair has been found to successfully detect these move-

ments. S. Abrams & M. Davidson, Counter-Counter-

1 Those analog studies were cited by Raskin et al. as follows:

A. Ginton et al., A Method for Evaluating the Use of the Polygraph

tn a Real-Life Situation, 67 J. Applied Psychol. 131 ( 1982); C.

Honts et al., Mental and Physical Countermeasures Reduce the

Accuracy of Polygraph Tests, 79 J. Applied Psychol. 252 (1994):

S. Horowitz et al., The Directed Lie: Standardizing Control Ques-

tions in the Physiological Detection of Deception (in press, Psycho-

physiology) ; J. Kircher & D. Raskin, Human Versus Computerized

Evaluations of Polygraph Data in a Laboratory Setting, 73 J.

Applied Psychol. 291 (1988) ; J. Podlesny & D. Raskin, Effectiveness

of Techniques and Physiological Measures in the Detection of Decep-

tion, 15 Psychophysiology 344 (1978): J. Podlesny & C. Truslow

Validity of an Expanded-Issue (Modified General Question) Poly.

graph Technique in a Simulated Distributed-Crime-Roles Contert

78 J. Applied Psychol. 788 (1993); D. Raskin & R. Hare, Psycho.

pathy and Detection of Deception in a Prison Population, 15

Psychophysiology 126 (1978) ; L. Rovner et al., Effects of Informa.

pe ag ee 4 or oe of Deception, 16 Psychophysiology

. n . Pol h Tests: ienti

§ 14-2.2.1 at 572 n.33. —— ie estar ssa

measures in Polygraph Testing, 17 Polygraf® bo = a

Computerized analysis of the polygraph a aoe

means of significantly reducing the na aged gh teage set

termeasures. Raskin et al., Polygraph Tests.

entific Status, § 14-2.2.1 at 577-78.

It is important to note that subjects who are Amp. ee

information on countermeasures and who apthorsh rnd

trained in their use have been shown to be — hts

nificantly affect the accuracy of the polygrt a Be.

Rovner, The Accuracy of Physiological Tr sph 1

ception for Subjects with Prior K restart Ne — A

(1986). Moreover, the ability to consci oh S tie of

outcome of a test is not unique to polysral as the

countermeasure safeguards jis an appropria e a ote

inquiry by the trial court in performing of oe -

function under Daubert and as a legitima yec

cross-examination during the adversarial Process.

Many other criticisms of polygraph 7 — —_

rebutted by empirical data. See J. ee Poly ’

The Influence of Race and Gender on ®" —

Chart Analyses, 20 Polygraph 247 (199!) : no — 7

difference in polygraph accuracy due to opel _

gender); D. Raskin & R. Hare. ng a ere

tion of Deception in a Prison Population, > ae 4

siology 126 (1978) (no significant difference in a

but see M. Floch, Lmitations of the Lie ector,

J. Crim. Law & Criminology 651 (1950); S. Abrams,

idi the Polygraph Technique with Children,

7 aunty Hy Admin. 310 (1975) (children over the

izing that, notwithstand-

ae 1 they nndtarng a rhe ;, “mati netheattons” of a subject of

— Piically-refreshed testimony may not be controlled) ; L. Binder

oe tee, Neuropsychological Evidence of a Factitious ye

complaint, 9 J. Clinical & Experimental Neuropsychology = =

(1987) (“performance on neuropsychological tests is stron

fected by the motivation of the patient”).

age of eleven have high polygraph accuracy with accuracy

rates dropping at lower ages); D. Raskin (Ed), Psycho-

logical Methods in Criminal Investigation and Evidence

253 (1989) (drugs have minimal effect on polygraph out-

come); but see W. Waid et al., Meprobamate Reduces Ac-

curacy of Physiological Detection of Deception, 212 Sci-

ence 71 (1981).

At least one study indicates that polygraph evidence is

more reliable than other evidence traditionally admitted at

trial. J. Widacki & F. Horvath, An Experimental Investi-

gation of the Relative Validity and Utility of the Poly-

graph Technique and Three Other Common Methods of

Criminal Identification, 23 J. Forensic Sci. 596 (1978).

There, eighty volunteer subjects were divided into twenty

groups of four. In each group, one was assigned to pick

up a parcel from one of two doorkeepers of a building.

Each of the twenty subjects brought an information sheet

and envelope and left them with the doormen. Each subject

signed a form in order to receive the package. The door-

men knew in advance that participants would be coming.

All eighty subjects were fingerprinted and provided hand-

writing samples. The doormen were each presented a set

of four pictures and Were required to select the person

from each group who had picked up the package. A hand-

writing expert sought to identify the handwriting of the

perpetrator from each group. A fingerprint expert sought

to identify the perpetrator by lifting fingerprints from the

envelopes and forms left with the doormen. A polygraphist

examined each set of four subjects and made a decision

as to who was the perpetrator.

Widacki & Horvath found that, excluding inconclusives,

the fingerprint expert was correct in 100% of his deci-

polygraph, 85% handwriting, 35% eyewitness, and 20%

fingerprint.

C. Education and Training of Polygraph Examiners

Considerable emphasis has been made on improving the

education and training of polygraph examiners. Initially,

using the Air Force polygraph training program as a

model,” DoDPI now offers an academic curriculum for

federal examiners that

provides a basis for a thorough understanding of the

scientific psychological, physiological, and psycho-

physiological concepts, systems, processes, and appli-

cations involved; as well as the scientific bases for

test development, standardized test administration,

research methodology, statistics and ethics.

Yankee, The Current Status, at 63. In addition to com-

pleting the DoDPI training, candidates for DoD polygraph

examiners must be “a graduate of an accredited four-

year college or have equivalent experience that demon-

strates the ability to master graduate-level academic

courses,” have two years law enforcement investigative

experience, be of high moral character as confirmed by

background investigation, and complete a minimum of

six months on-the-job internship. U.S. Department of

Defense Polygraph Program: Annual Polygraph Report

to Congress for Fiscal Year 1996, at 14. Currently, all

federal agencies receive their basic polygraph training at

DoDPI. /d. Further, all federal examiners are required

to complete eighty hours of continuing education every

two years. /d. at 15.

Numerous states now provide for licensing of poly-

graphers. See Giannelli & Imwinkelried, Scientific Evi-

**U.S. Department of Defense Polygraph Program: Report to

Congress for Fiscal Year 1986, reprinted in 16 Polygraph 53, 63

(1986) (The “Air Force program has served as a model for our

expansion and the characteristics which made it worthy of emula-

tion are now standard throughout DoD.” )

dence 2d at 219. Some of these states require continuing

education for examiners. /d. At least one state, New

Mexico, has adopted a rule of evidence requiring stringent

minimum qualifications for polygraphers who testify as ex-

perts. See N.M. Stat. Ann. § 11-707(B) (requiring a min-

imum of five years experience in administration and inter-

pretation of polygraph test and successful completion of

twenty or more hours of continuing education in the field

of polygraphy during the twelve-month period immediately

prior to the date of subject examination).

Polygraphers who are full members of the APA must have

graduated from an APA-accredited polygraph school,”

completed no less than 200 actual PV examinations in a

standardized polygraph technique, hold a current valid

license to practice forensic psychophysiology issued by

any state or federal agency requiring such license and

tains standards of practice and ethics for its members,

id., and conducts various regional and national seminars

on polygraphy for its members. Giannelli & Imwinkelried,

Scientific Evidence 2d, at 219."

IV. THE ADMISSION OF POLYGRAPH EVIDENCE

DOES NOT OVERWHELM OR IMPERMISSIBLY

INTRUDE ON FUNCTIONS PERFORMED BY THE

TRIER OF FACT

Petitioner argues that “[e]ven assuming that polygraph

testing had a high degree of reliability,” such evidence

may potentially encroach upon the proper functioning of

the trier of fact as “juries may be unduly swayed by the

polygraph expert’s opinion” and “such evidence would

nonetheless tend to infringe on the jury’s role of deter-

mining witness credibility.” Petitioner’s Brief at 26-27.

Although stated by petitioner as distinct arguments, both

rely on the premise that the trier of fact will be so over-

whelmed by polygraph evidence that it will relinquish its

role to the polygraph expert. The weight of judicial and

scientific authority does not support this premise.

In United States v. Piccinonna, the Eleventh Circuit

observed that there is “a lack of evidence that juries are

unduly swayed by polygraph evidence.” 885 F.2d at

1535. In United States v. Gipson, 24 M.J. 246 (C.M.A.

1987), the Court of Military Appeals, expressing its “con-

fidence im court-martial panels,” noted:

One fear we do not have is that fact finders will be

overwhelmed by polygraph testimony. ... A number

of recent studies refute that contention, and their

, authors conclude that juries generally are capable of

evaluating polygraph evidence and giving it due

weight.

to legislation and other changes in the field, “a large portion of the

least competent” examiners have left the field. See Raskin et al.,

Polygraph Tests: The Scientific Status, § 14-2.3 at 582. This has

had “a salutary effect on the level of competence and practice in

the field.” Jd. The fact that there may be unqualified polygraphers

does not require wholesale exclusion of the science from the court-

room. Rather, the court may perform its traditional “gatekeeping”

role by assessing whether a particular expert witness is sufficiently

qualified to offer opinion testimony based on that science and the

state may impose reasonable licensing standards for polygraphers.

24 M.J. at 253 n.11 (citing E. Imwinkelried, The Stand-

ard for Admitting Scientific Evidence: A C ritique from

the Perspective Of Juror Psychology, 100 Mil. L. Rev. 99,

114-15 (1983)). See also United States v. Piccinonna,

885 F.2d at 1533. Indeed, scientific evidence has become

part of the modern trial and, as such, jurors are not likely

to be overly influenced by such evidence. See Daubert, 509

U.S. at 595 (arguments for excluding evidence based on

fears of “befuddled juries . . . confounded by absurd and

irrational pseudoscientific assertions . . . [are] overly

pessimistic about the capabilities of the jury, and of the

adversary system generally” ).

Scientific literature supports the conclusion that jurors

are not unduly influenced by polygraph evidence.™

Commentators generally agree with this assessment. See,

e.g., C. Honts & M. Perry, Polygraph Admissibility:

Changes and Challenges, 16 Law & Hum. Behav. 357,

366 (1992) (“{s]tudies tend to show that juries are more

inclined not to give extraordinary weight to polygraph

evidence”); McCall, Misconceptions and Reevaluation.

at 376 (“[t}he continued use of the undue deference

rationale for the denial position also demeans the ability

of modern juries”).

Polygraph evidence is, of course, not the only type of

evidence which may be offered regarding indicators of

witness credibility. In United States v. Cacy, 43 M.J. 214,

218 (1995), the Court observed that it is usually per-

missible to allow an expert to testify as to whether “a

victim appears rehearsed or coached, or is feigning.”

Testimony has also been permitted regarding whether

“counter-intuitive conduct, such as recanting an accusa-

tion, inconsistent statements, or failing to report abuse is

% See E. Carlson et al., The Effect of Lie Detector Evidence on

Jury Deliberations: An Empirical Study, 5 J. Pol. Sci. & Admin.

148 (1977); A. Markwart & B. Lynch, The Effect of Polygraph

Evidence on Mock Jury Decision-Making, 7 J. Pol. Sci. & Admin.

324 (1979); R. Peters, A Survey of Polygraph Evidence in Crimi-

nal Trials, 68 A.B.A. J. 162, 165 (1982). |

. 28

not necessarily inconsistent with the truthful accusation.”

United States v. Scheffer, at 446.

_ Psychiatrists and other clinicians have been permitted

to provide expert opinion testimony as to whether a party

is malingering or accurately representing his competency,

injury, or disability. See, e.g., United States v. Denny-

Shaffer, 2 F.3d 999, 1023 n.8 (10th Cir. 1993). While

such opinions may be based on clinical impressions alone,”

Liles v. Saffle, 945 F.2d 333 (10th Cir. 1991), such

testimony may also be based on certain psychological

tests; in particular, internal validity scales of the Min-

nesota Multiphasic Personality Inventories (MMPI). See,

e.g., United States ex rel. S.E.C. v. Billingsley, 766 F.2d

1015, 1026 (7th Cir. 1985) (in which experts describe

the MMPI as “a test that has numerous scales, designed

to elicit malingering or an attempt to... lie”). As

set forth by Faust et al., the use of such internal validity

scales of the MMPI are supported by a “body of validat-

ing research” which supports detection of malingering.

1 D. Faust et al., Brain Damage Claims: Coping with

Neuropsychological Evidence 429 (1991). That research

demonstrates a validity rate comparable to polygraphs.”

Polygraph evidence, on the same basis as that evidence

discussed above, is not intended to take from the trier

of fact issues of guilt, innocence, or credibility. Rather,

polygraph evidence, like other relevant scientific evidence,

is intended to provide in appropriate cases evidence of

% See 1 D. Faust et al., Brain Damage Claims: Coping with

Neuropsychological Evidence 429 (1991) (“[t]here appears to be a

paucity of research which suggests that clinicians have the ability

to detect malingering’”’).

26 Research has demonstrated the F minus K index as a reason-

ably accurate discriminator. H. Gough, The F Minus K Dissimula-

tion Index for the MMPI, 14 J. Consulting Psych. 408 (1950)

(depending on the cut-off applied, correctly identified authentic

profiles between 88% to 97.5% of time while correspondingly mis-

identifying simulated profiles 12% to 28% of the time).

4 wens

whether a witness’s physiological responses to certain rele-

vant questions are or are not indicative of deception. Like

other relevant scientific evidence, polygraph evidence is

simply intended to be a part of the evidence to be assessed

through the adversarial process.

Vv. THE ADMISSION OF POLYGRAPH EVIDENCE

DOES NOT CREATE UNNECESSARY COLLAT-

ERAL LITIGATION

Both petitioner and Amici Curiae State of Connecticut

and 27 States [hereinafter Amici States] speculate that

attempts to admit results of polygraph examinations will

produce lengthy collateral litigation” in the form of evi-

dentiary hearings regarding “the validity of the test, the

testing procedures utilized, the qualifications of the ex-

aminer, the conditions under which the test was adminis-

tered, and the content of the questions asked.” Amici

States Brief at 15-16. See also Petitioner’s Brief at 29.

In addressing this argument, the court in United States

v. Scheffer observed that it was “unaware of any such

flood of polygraph cases” after its decision in United

States v. Gipson and further observed that “our measure

Should be the scales of justice, not the cash register.” 44

M.J. at 448. Additionally, petitioner and Amici States’

fear of lengthy collateral litigation ignores the states’ pre-

rogative to reduce the uncertainties of admission of poly-

graph evidence by establishing reasonable parameters and

guidelines for its admission at trial. As observed by this

Court in Rock, a state “would be well within its powers

if it established guidelines to aid trial courts in the evalua-

tion of posthypnosis testimony.” Rock at 61. Reasonable

guidelines could also be appropriately implemented as to

polygraph evidence. An example of such guidelines is

* Amici States observe that a number of states currently follow

a per se exclusion of polygraph evidence. Similarly, in Rock, a

number of states maintained a per se exclusion of hypnotically-

refreshed testimony. Rock ut 47 n.14.

found in New Mexico's rules of evidence. N.M. Stat. Ann.

$ 11-707;** see also McCall. Misconceptions and Re-

evaluation, at 385-388.

Further, trial courts routinely consider expert qualifica-

tions, testing procedure, validity, and application of many

types of scientific evidence. Polygraph evidence should be

considered by the trial courts on the same basis.

CONCLUSION

For the foregoing reasons, the judgment of the United

States Court of Appeals for the Armed Forces should

be affirmed.

Respectfully submitted,

GORDON L. VAUGHAN

VAUGHAN & DEMURO

111 South Tejon, Suite 410

Colorado Springs, CO 80903

(719) 578-5500

Counsel for Amicus Curiae

American Polygraph

Association

28 In addition to providing minimum qualifications a polygrapher

must meet to give testimony of polygraph results, the New Mexico

statute requires, in part: protocol requirements for the examina-

tion; recording of the pre-test interview, actual testing, and post-

test interview; copies of the recording along with the charts, report,

and a list of all polygraph examinations taken by the examinee to

the opposing party; and thirty days’ notice of intent to offer poly-

graph evidence ut trial.

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.