Amicus Curiae Brief — United States v. Scheffer

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Ban FILED

\ / AUG 1 1997

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No. 96-113

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In the er

SUPREME COURT OF THE UNITED STATES

October Term, 1997

UNITED STATES OF AMERICA, Petitioner,

V.

EDWARD G. SCHEFFER, Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

BRIEF AMICUS CURIAE OF UNITED STATES

NAVY-MARINE CORPS APPELLATE DEFENSE DIVISION

IN SUPPORT OF RESPONDENT

SYED N. AHMAD

Lieutenant

Judge Advocate General's Corps

U.S. Naval Reserve

Counsel of Record

U.S. Navy-Marine Corps

Appellate Defense Division

Washington Navy Yard, Bldg. 111

901 M St SE

Washington, D.C. 20374

202-433-4161

—_———_—-

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 unconstitutional

abridgment of Airman Scheffer's right to present reliable and

relevant evidence in his defense?

ae

~

TABLE OF CONTENTS

Page

Interest of the Amicus Curiae....... 2.2... 00050545. l

Summary of the Argument ........ 2... ....0055. 2

DEE ths stweteneeetbeeeccedceececces 3

1. The Court of Appeals for the Armed Forces

properly used its expertise in military justice ..... 3

A. Congress created the Court of Appeals for

the Armed Forces to be a specialized court

that would provide proper review of

GE Se eeecesevccecccecs 3

B. The Court of Appeals for the Armed Forces

does not have to defer to the President in

matters of military justice. ........... 7

Cc. Congress intended the Court of Appeals for

the Armed Forces’ decisions to have greater

weight than the President's in issues of

constitutional law that are intertwined

with issues of military justice. ......... 9

D. The Court of Appeals for the Armed Forces’

decision was reasonable, despite the

President's per se exclusion of

exculpatory evidence ............... 13

l. The lower court carefully considered

DT odeQcecesteoes cs 13

2. The lower court ensured that the

evidence is relevant and reliable ... 14

3. The lower court considered the

President's interests in excluding the

Sh eakSGh oetecee dees 15

Il. A per se exclusion of polygraph evidence

violates the Sixth amendment. .............. 16

A. Legitimate government interests must justify

the per se exclusion of exculpatory

ale b's bk eas wd bees 66 6 es 6 < 16

B. The drafter's interests do not justify

this per se exclusion of evidence. ....... 18

1. Court-martial members are better

qualified than ordinary jurors, and

as a result, will not be misled by

polygraph evidence ........... 19

2. There is no danger from a confusion

of the issues or waste of time,

because, if necessary, the military

judge already possesses the ability

to exclude the evidence. ........ 21

3. The scientific reliability of the

polygraph should be addressed by

——] | eee 22

Geis ogg kt ceesdiaee eeeebenee eo enes 24

TABLE OF AUTHORITIES

Cases:

Burns v. Wilson, 346 U.S. 137 (1953) ...... 6.65.56 7

California v. Trombetta, 467 U.S. 479 (1984) ......... 16

Chambers v. Mississippi, 410 U.S. 284 (1973) ......... 17

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) 17

Crane v. Kentucky, 476 U.S. 683, 690 (1986) .... 10, 16, 17

Daubert v. Merrell Dow Pharmaceuticals, Inc.

509 U.S. 579 (1993) ....... ewe a ase ee o8 20

Davis v. United States, 512 U.S. 452 (1994) .......... 10

Edmond v., United States, 117 S. Ct. 1573 (1997) ...... 10

Gilligan v. Morgan, 413 U.S. 1 (1973) ... 2... 6-0 ees 8

Goldman v. Weinberger, 475 U.S. 503 (1986) ........ 7,8

Loving v. United States, 116 S. Ct. 1737 (1996). ....... 10

Michigan v. Lucas, 500 U.S. 145 (1991) ........-4-; 18

Middendorf v. Henry, 425 U.S. 25 (1976) ......... 11, 12

M.L.B. v. S.L.J., 117 S. Ct. 555 (1996)... . 2... eee 17

Montana v. Eglehoff, 116 S. Ct. 2013 (1996) ...... 10, 17

Noyd v. Bond, 395 U.S. 683 (1969) ...........4.. 6, 10

Pernell v. Southall Realty, 416 U.S. 363 (1974) ......... 9

iv

Rock v. Arkansas, 483 U.S. 44 (1987) .............. 18

Rostker v. Goldberg, 453 U.S. 57 (1981) .......... 7, 12

Ryder v. United States, 515 U.S. 177 (1995) .......... 10

Solorio v. United States, 483 U.S. 435, 447 (1987) .... 7,10

United States v. Cacy, 43 M.J. 214 (1995) ........... 14

United States v. Carter, 22 M.J. 771 (A.C.M.R. 1986) ... 19

United States v. Gipson, 24 M.J. 246 (C.M.A. 1987) . 13, 15

United States v. Hardy, 46 M.J. 67 (1997) ........... 20

United States v. Nimmer, 43 M.J. 252 (1995) ......... 21

United States v. Rodriguez, 37 M.J. 448 (C.M.A. 1993) .. 13

United States v. Suarez, 35 M.J. 374 (C.M.A. 1992)... .. 14

United States v. Williams, 43 M.J. 348 (1995) ......... 11

United States v. Youngberg, 43 M.J. 379 (1995) ....... 22

Washington v. Texas, 388 U.S. 14 (1967) ............ 16

Weiss v. United States, 510 U.S. 163 (1994) .......... 10

Constitution:

a o- & See 8 eee x

ee I, WE wc ccctceebocevetece 10, 16

Statutes and Rules:

American Articles of War 1776, § XIV .............. 3

American Articles (of 1786) ..................... 4

American Articles of War of 1806 ................. 4

American Articles of War of 1874 ................. 4

Article 25, Uniform Code of Military Justice. ......... 19

Articles for the Government of the Navy, ch. CCIV,

art. 19, 12 Stat. 600 (1862)..................... 5

Articles of War, ch. 227, 41 Stat. 787, 797-799 (1920) .... 4

Military Rule of Evidence 403 ................. 2, 21

Military Rule of Evidence 702 .................... 2

Military Rule of Evidence 707 .................... 8

Rules and Regulations for the Government of the Navy, ch.

XXXII, § 1, art. XLI, 2 Stat. 45,51 (1800)........... 5

Revised Statutes 1873-1875, Title XV, ch. 10, § 1624 ..... 5

Selective Service Act of 1948, ch. 625, § 226, 62 Stat. 604

CET Weeb SucdceNhebeweserdkeencencesucéene x 5

Vv

Legal Periodicals:

B. Boskey and E. Gressman, The Supreme Court's New

Certiorari Jurisdiction over Military Appeals,

102 F.R.D. 329, 332-33 (1984) ... 2... ee eee eee 9

E. Warren, The Bill of Rights and the Military,

37 N.Y.U.L. Rev. 181, 187 (1962) .............54-. 8

Westen, Confrontation and Compulsory Process: A Unified

Theory of Evidence for Criminal Cases,

91 Harv. L. Rev. 567, 628 (1978) ............555. 17

Yankee, The Current Status of Research in Forensic

Psychophysiology and Its Application in the

Psychophysiological Detection of Deception,

40 J. Forensic Sci. 63, 63 (1995),

cited in | P. Giannelli & E. Immwinkelried,

Scientific Evidence § 8-2(C) (1996 supp.) ........-- 22

Miscellaneous:

95 Cong. Rec. 5718 (1949)... 0... eee eee ees 6

Analysis to Military Rule of Evidence 704, Manual for Courts-

- |, Jf | 20

Analysis of Military Rule of Evidence 707 at A22-48

Manual for Courts-Martial (1995 edition) ........... 18

Department of Defense Polygraph Program,

Annual Polygraph Report to Congress, Fiscal Year 1995 . 23

H. Rep. No. 491, 81st Cong., Ist Sess. (1949) ......... 5

H. Rep. 98-459, 98th Cong., Ist Sess. 17 (1983) ........ 9

W. Winthrop, Military Law and Precedents

GPG ccccccccceces ee sesecescoes 3, 12

vi

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1997

No. 96-1133

UNITED STATES OF AMERICA, Petitioner,

v.

EDWARD G. SCHEFFER, Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

BRIEF AMICUS CURIAE OF UNITED STATES

NAVY-MARINE CORPS APPELLATE DEFENSE DIVISION

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICUS CURIAE

The United States Navy-Marine Corps Appellate

Defense Division represents convicted Navy and Marine

Corps servicemembers during the appellate review of their

courts-martial. Moreover, Amicus acts as a. de facto

advocate for the Navy trial defense bar.

The Court of Appeals for the Armed Forces' decision

in this case is binding on all courts-martial in the Navy and

the Marine Corps. As a result, the Court's affirmance or

reversal of the lower court's decision will directly impact the

ability of Navy and Marine Corps servicemembers -- our

(1)

2

current and future clients -- to defend themselves at courts-

martial.'

SUMMARY OF THE ARGUMENT

The Court of Appeals for the Armed Forces is a

specialized court that is well-equipped to address matters in

military justice. It was created to protect the rights of

servicemembers, while at the same ensuring military

discipline. Unlike other federal courts, the lower court does

not need to show deference to the decisions of the President

in matters of military justice. It can evaluate the decisions

of the President, as this Court evaluates a decision of a state

court in constitutional law, because of its congressional

mandate and its specialized knowledge. .

In order to resolve the constitutional issue in this

case, a court must undertake an analysis of the military's

interests, as well as the constitutional principles. Since there

is no court better than the lower court to analyze the

military's interests in matters of military justice, the Court

should show deference to the lower court's decision. The

lower court's decision is reasonable in that it permits

polygraph evidence only when the evidence is reliable and

relevant, the necessary requirements for admissible evidence.

Moreover, the court considered the President's interests, in

reaching its decision. .

Additionally, even under a de novo review, the *»wer

court's decision is correct. The Compulsory Process Clause

requires that legitimate government interests must justify the

per se exclusion of exculpatory evidence. In this case, the

President's interests do not justify this per se exclusion. All

of the President's interests can be served by an application

of the other military rules of evidence he has promulgated:

' As required by Rule 37 of the Court's rules, Amicus has filed

both parties’ consent to the filing of this brief with the Clerk.

3

Military Rules of Evidence 403 and 702. The military judge

can, On a case-by-case basis, achieve the President's

interests, while at the same time, permit an accused to

defend himself at a court-martial with reliable and relevant

evidence in his case.

ARGUMENT

I. THE COURT OF- APPEALS FOR THE

ARMED FORCES PROPERLY USED ITS

EXPERTISE IN MILITARY JUSTICE.

A. Congress created the Court of Appeals for

the Armed Forces to be a specialized court

that would provide proper review of courts-

martial.

Military courts-martial historically have had limited

review. The court-martial itself gives a recommendation to

the person who convened it. W. Winthrop, Military Law

and Precedents 447 (1920 edition). The convening authority

then must approve the sentence, or in other words, must

officially accept and concur in the court-martial proceedings.

Id. at 448. This has always been the first level of review.

However, the ability to execute the sentence, i.e. to actually

impose the sentence, has at times required further review.

Congress required that no sentence of a general court-

martial could be executed until a report had been made to the

general or commander-in-chief of the U.S. forces, or to

Congress. American Articles of War 1776, § XIV, art. 8.”

In 1786, for the first time, Congress required that certain

courts-martial be reviewed by it: specifically, no sentence

imposed on a general officer, or, in time of peace, no

? All of the following statutes in this paragraph are reprinted in

Winthrop, Military Law.

4

sentence of death or dismissal’, could be executed until

submitted to Congress. American Articles (of 1786), art. 2.

Otherwise, the officer who convened the court-martial could

execute the sentence. In 1806, Congress removed itself

completely from this review and transferred its former role

to the President. American Articles of War of 1806, art. 65.

By 1874, the President maintained the same right to review

a sentence before it could be executed. American Articles

of War of 1874, art. 105, 106, 108. However, any death

sentence or dismissal during time of war was now required

to be submitted to the commanding general in the field, or

commander of the department, before the sentence could be

executed, instead of simply to the officer who convened the

court-martial. Articles of War of 1874, art. 105, 107.

This system remained in effect until 1920. Then, the

first military “appellate court" was created for the Army.

Articles of War, ch. 227, 41 Stat. 787, 797-799 (1920). It

was a board of review that consisted of three judge advocate

officers. The board reviewed those cases in which the

President was previously required to review before the

sentence could be executed, as well as those cases from a

general court-martial where the accused had been sentenced

to death, dismissal, dishonorable discharge, or confinement

in the penitentiary. Jd. The board could, with the

agreement of the Judge Advocate General, set aside the

actions of the court-martial, and require a rehearing. If the

Judge Advocate General disagreed with the board as to the

proper resolution of the case, the matter was forwarded to

the President for final decision. Jd. If the board affirmed

the findings and sentence, and the Judge Advocate General

agreed, the sentence could then be executed. Jd.

In 1948, the Judicial Council, consisting of three

general officers, was created within the Army Judge

Advocate General's office. This council was to act as

> A dismissal is the dishonorable discharge of an officer.

5

another level of review before a sentence could be executed.

However, even under this statute, it appeared that if the

Judge Advocate General disagreed with the decision of the

Judicial Council, the President would make the final

decision. Selective Service Act of 1948, ch. 625, § 226, 62

Stat. 604 (1948).

In the Navy, in 1800, general courts-martial could be

executed by the authority convening them, unless the

sentence was to death or dismissal. In the case of a sentence

to death from a trial in the United States, or a sentence to a

dismissal, presidential action was required; in the case of a

sentence of death adjudged outside the United States, action

by the commander of the fleet or squadron was required.

Rules and Regulations for the Government of the Navy, ch.

XXXIII, § 1, art. XLI, 2 Stat. 45, 51 (1800). Later,

Congress required all death sentences to be executed by the

President, but otherwise maintained the same level of

review. Articles for the Government of the Navy, ch.

CCIV, art. 19, 12 Stat. 600, 605 (1862). This would be the

only review authorized in the Navy until the enactment of

the Uniform Code of Military Justice. Revised Statutes

1873-1875, Title XV, ch. 10, § 1624, art. 53; H. Rep. No.

491, 81st Cong., Ist Sess. (1949), reprinted in Index and

Legislative History, Uniform Code of Military Justice at 64-

76 (1950) (articles governing Navy before the Code).

There are two very important facts that are apparent

from this history of court-martial review: first, there was

never a review by an independent "court"; second, the

review that did exist was always controlled by military

officers or the President as the Commander-in-Chief.

Congress noted the defects, and attempted to correct

them by enacting Article 67 of the Uniform Code of Military

Justice. In introducing the Uniform Code of Military Justice

to the House of Representatives, Congressman Brooks noted:

6

Article 67 contains the most revolutionary

changes which have been incorporated into

our military law. Under existing law all

appellate review is conducted solely within

the military departments. This has resulted in

widespread criticism by the general public,

who, with or without cause, look with

suspicion upon all things military and

particularly matters involving military justice.

Every Member of Congress, both present and

past, is well aware of the validity of this

statement.

95 Cong. Rec. 5718 (1949).

Article 67 created the Court of Military Appeals (now

the Court of Appeals for the Armed Forces), which would

consist of three (now five) civilian judges who would serve

for fifteen years and could be removed only for cause. The

court would be of limited jurisdiction reviewing only certain

courts-martial. Congress had created a specialized court

under its Article I authority to review courts-martial --

something which, in the prior history of military justice, had

never existed. Congress "chose to confide this power to a

specialized Court of Military Appeals, so that disinterested

civilian judges could gain over time a fully developed

understanding of the distinctive problems and legal traditions

of the Armed Forces." Noyd v. Bond, 395 U.S. 683, 694

(1969).

Moreover, Congress had created a civilian judicial

body whose decisions were binding and not subject to further

review. Congress had removed the authority of final

decision in courts-martial from the President and his

subordinates, and instead placed it in an independent civilian

court. For the first time, Congress had placed a civilian

body (other than itself) above the decisions of the President

in military justice matters. Presumably, Congress did so

7

because it was confident that the court would protect the

balance between the servicemembers’ rights and the

military's need for discipline better than its predecessors (the

President and the military) had for the previous 175 years.

B. The Court of Appeals for the Armed Forces

does not have to defer to the President in

matters of military justice.

The Court routinely shows deference to the actions of

Congress in matters of military justice. Burns v. Wilson,

346 U.S. 137, 140 (1953) (plurality) (Congress entrusted

with task of balancing rights of servicemembers and demands

of discipline and duty); Solorio v. United States, 483 U.S.

435, 447 (1987) ("Congress has primary responsibility for

the delicate task of balancing the rights of servicemen against

the needs of the military"). It has extended this preferential

scope of review to those acting in military matters under the

authority delegated by Congress. See Goldman v.

Weinberger, 475 U.S. 503, 508 (1986) (limited review of

decisions of Air Force officials in matters of military

uniform regulations). In this case, the Government

complains that the lower court failed to show deference to

the decision of the President in barring the use of polygraph

evidence at courts-martial. Brief for the United States 39-

43. Amicus asserts that the Court of Appeals for the Armed

Forces does not have to show this deference to the President.

The Court reduces its scrutiny of Congress in matters

of the military because the Constitution gives Congress

"broad constitutional power to raise and regulate armies and

navies." Rostker v. Goldberg, 453 U.S. 57, 65 (1981)

(citation omitted). Moreover, there is a practical reason as

well. "[Cjourts are ill equipped to determine the impact

upon discipline that any particular intrusion upon military

authority might have. Many of the problems of the military

society are, in a sense, alien to the problems with which the

8

judiciary is trained to deal." E. Warren, The Bill of Rights

and the Military, 37 N.Y.U.L. Rev. 181, 187 (1962), cited

in part in Goldman, 475 U.S. at 507. See Gilligan v.

Morgan, 413 U.S. 1, 10 (1973) (it is difficult to conceive of

an area of governmental activity in which the courts have

less competence).

However, the Court of Appeals for the Armed Forces

does not need to show special consideration to the military

(even though this Court might) for two reasons. First, the

lower court has been entrusted with the supervision of

military justice by Congress under its constitutional authority

to make rules for the regulations of the armed forces. Thus,

the lower court was acting under the same authority of

Congress as the President was, when he promulgated

Military Rule of Evidence 707.* In fact, the history of

appellate review makes clear that the lower court was

created because the previous system was deficient. Congress

entrusted military justice decisions to the lower court. As a

result, there is no intrusion on Congress' constitutional

powers in military matters when the lower court shows no

deference to the decisions of the President.

Not only is there no constitutional bar to the lower

. The President exercised his statutory authority to

promulgate the rule of evidence. "The Congress shall have the power *

* * To make Rules for the Government and Regulation of the land and

naval Forces.” U.S. Const. art. I, § 8, cl. 14. Congress exercised this

authority by promulgating, among other rules, Article 36, Uniform Code

of Military Justice, which permits trial procedures to be prescribed by the

President. Whether the President has inherent authority to promulgate

rules of evidence is not at issue in this case. See Loving v. United

States, 116 S. Ct. 1737, 1751 (1996) (Court did not address whether

President had inherent authority to prescribe aggravating factors, when

Congress had delegated this authority to him). Once Congress enacts a

statute addressing his authority to issue rules, it has preempted any

inherent rights the President may have. As a result, the President's

resulting actions derive from congressional authority. /d.

>

9

court's stricter review, but also, the review conforms to

congressional intent. The lower court, unlike every other

federal court, was created as a specialized court in areas of

military justice. In its forty-seven years of existence,

dealing with thousands of courts-martial, year after year, it

has gained a wealth of knowledge and expertise in areas of

military justice. The Court of Appeals for the Armed Forces

is "well-equipped" to address military matters on a parallel

level with the President, unlike this and other federal courts.

As a result, the lower court does not need to show special

consideration to the President.

C. Congress intended the Court of Appeals for.

the Armed Forces' decisions to have greater

weight than the President's in issues of

constitutional law that are intertwined with

issues of military justice.

The question as to the type of review that this Court

should conduct in this case is complex. Normally, in areas

of non-constitutional military justice, it is expected that the

lower court would "remain the primary source of judicial

authority under the Uniform Code of Military Justice." H.

Rep. 98-459, 98th Cong., Ist Sess. 17 (1983), reprinted in

1983 U.S.C.C.A.N. 2177, 2182. It would be expected that

the Court would not overrule the lower court on purely

military justice matters "save in exceptional situations where

egregious error has been committed." Pernell v. Southall

Realty, 416 U.S. 363, 369 (1974) (citations omitted) (Court

discusses scope of review for highest District of Columbia

court, an article I court with direct review by the Supreme

Court). See B. Boskey and E. Gressman, The Supreme

Court's New Certiorari Jurisdiction over Military Appeals,

102 F.R.D. 329, 332-33 (1984) (in reviewing military

justice, Court may follow model it established for District of

Columbia Court of Appeals).

10

Naturally, however, when the Court reviews a lower

court's decision on a constitutional issue, it reviews the

decision de novo, because no court is more qualified to

address constitutional issues than it. In fact, the Court has

done so in every military case that has been directly

reviewed by it. In Solorio, 483 U.S. 435, the Court

revisited its own decision, and thus had no need to rely on

a decision of the lower court. In Davis v. United States, 512

U.S. 452 (1994), and Loving v. United States, 116 S. Ct.

1737 (1996), there was no argument by the Government that

a different rule applied in the military, and as a result, the

Court was able to treat the issues as if they had arisen in a

non-military context. Finally, Weiss v. United States, 510

U.S. 163 (1994), Ryder v. United States, 515 U.S. 177

(1995), and Edmond v. United States, 117 S. Ct. 1573

(1997), all involved the issue of the Appointments Clause, a

provision that applies equally to the military. It is clear that

"the expertise of military courts [had not] extended to the

consideration of constitutional claims" in the above cases,

Noyd, 395 U.S. at 696 n.8, and as a result, the Court

reviewed the military court's decisions as it would have

reviewed other court's decisions.

This case, however, is different. Amicus asserts the

issue in this case is a "hybrid" constitutional issue. On the

one hand, the issue is a constitutional one because the lower

court based its decision on the Compulsory Process Clause

of the Sixth Amendment. In resolving this type of issue, the

Court has examined the interests of the State and whether

those interests justify the exclusion. Crane v. Kentucky, 476

U.S. 683, 690 (1986); Montana v. Eglehoff, 116 S. Ct.

2013, 2029 (1996) (O'Connor, J. dissenting). On the other

hand, in order for this Court to determine whether the

President's interests justify the exclusion, it must examine

the interests and his justification for the rule in a military

context. This is a task which the Court is ill-equipped to

perform -- it does not have the knowledge to know if the

ll

President is correct because of the intricacies of military

discipline and courts-martial. However, this is a task well-

suited for the Court of Appeals for the Armed Forces, and

no court would have more expertise in this area.

When addressing whether due process required

counsel at a summary court-martial, after the Court of

Military Appeals had found such a requirement, the Court

noted that “[djealing with areas of law peculiar to the

military branches, the Court of Military Appeals’ judgments

are normally entitled to great deference." Middendorf v.

Henry, 425 U.S. 25, 43 (1976). This was so, even though

the issue was a constitutional one. As the Court implicitly

recognized, the constitutional issue in Middendorf was

interwoven with the military's interests, and as a result, the

lower court's decision was important. The Court could not

determine whether a summary court-martial required counsel

without first determining what effects supplying counsel

would have on the military interests. In that case, however,

the Court did not rely on the Court of Military Appeals'

decision, because only two judges (at the time the court was

composed of three judges) addressed the claim of military

necessity and their responses conflicted. Jd. at 44. In this

case, however, the majority of three judges rejected the

claim of military necessity. Moreover, Judge Sullivan,

dissented below because he believed that the evidence was

not relevant -- and not because military necessity required

the exclusion of it. United States v. Williams, 43 M.J. 348,

356-57 (1995) (Sullivan, C.J., concurring). Thus, this case

involves an appropriate constitutional issue in which the

Court should show deference to the lower court's judgment.

Practically, the question then becomes how does the

Court show special consideration both to the decision of the

President in promulgating this rule under his delegated

authority from Congress, and to the lower court in striking

down the rule under its delegated authority as the supervisor

of military justice. This is the problem that was avoided in

12

Middendorf, but is present in this case.

Amicus proposes that this Court rely on the lower

court's judgment instead of the President's because this

would comply with congressional intent. As noted above,

historically, the President was responsible for military

justice, with no review other than through him. Winthrop,

Military Law 53 (historically the only appeal was through the

President or other superior executive authority). Congress,

in creating the lower court, superseded the President's and

military's ability to review courts-martial. This was a

conscious congressional decision to take power from one

group -- the President and his military officers* -- and give

it to a new group -- the Court of Appeals for the Armed

Forces. The lower court was to protect an accused's rights

and ensure a fair court-martial process. In a case such as

this, where the lower court has made an effort to protect a

military servicemember's right to defend himself, the lower

court's view should carry more weight with the Court than

the President's.

Finally, this reliance on the lower court's decision

does not eviscerate Congress’ intent in making the lower

court's decisions subject to direct review by the Court. The

Court does not “abdicate [its] ultimate responsibility to

decide the constitutional question" by doing so, but instead

recognizes that Congress itself requires such deference to the

lower court's actions. Rostker, 453 U.S. at 67.

* Congress did leave some further mitigating power in the other

officers. Article 73, U.C_.M.J. Judge Advocate General may grant new

trial under some circumstances); Article 74, U.C.M_J. (service Secretary

may suspend or remit unexecuted portions of sentence). Obviously, the

President maintains his constitutional authority to pardon.

13

D. The Court of Appeals for the Armed

Forces' decision was reasonable, despite the

President's per se exclusion of exculpatory

evidence.

Even under this scope of review, the Court must

examine whether the decision of the lower court was

reasonable. It was. The court realized that all of the

President's concerns in excluding this evidence would be met

by military judges and military court-martial members. Its

knowledge and confidence in the court-martial parties should

be affirmed.

l. The lower court carefully considered this

decision.

The lower court had considered the admissibility of

polygraph evidence for almost ten years before it issued the

decision in this case. In United States v. Gipson, 24 M.J.

246 (C.M.A. 1987), the court first announced that polygraph

evidence might be admissible at courts-martial, if a proper

foundation for the evidence could be laid. In 1991, in

response to the Gipson decision, the President promulgated

Military Rule of Evidence 707. Two years later, the court

noted the possible constitutional defects in the rule. United

States v. Rodriguez, 37 M.J. 448, 451-52 n.2 (C.M.A. 1993)

(opinion of Wiss, J.). Two years after that, it overruled the

Army appellate court's decision holding the President's rule

unconstitutional, because the polygraph evidence was not

relevant when the accused did not testify. United States v.

Williams, 43 M.J. 348 (1995). Finally, in this case, the

court struck down the rule, if the evidence would be

admissible under the standards for other scientific evidence.

The lower court showed no haste in striking the President's

rule, but instead, did so only after a careful consideration of

the issue.

14

2. The lower court ensured that the evidence is

relevant and reliable.

Second, the court permits this evidence only if it is

relevant and reliable in this case -- the basic principles of

admissibility for all evidence. An accused must testify, and

his credibility must be attacked, before exculpatory

polygraph evidence may be admitted. The polygraph

examiner can only testify that the accused's prior responses

to certain questions showed no deception. The relevancy of

this evidence is consistent with other types of evidence that

are routinely admitted against an accused. United States v.

Cacy, 43 M.J. 214, 218 (1995) (no error to permit expert to

testify that victim's accusation did not appear rehearsed);

United States v. Suarez, 35 M.J. 374, 376 (C.M.A. 1992)

(expert permitted to testify that counter-intuitive conduct not

necessarily inconsistent with truthful accusation).

Additionally, the lower court permits the evidence

only if it meets the standards of admissibility for other types

of scientific evidence. This ensures a consistent response to

this and other scientific evidence in military courts-martial.

The lower court has not lessened the standard of reliability

for polygraph evidence, but instead allows an accused to

establish that his evidence is in fact reliable. If the evidence

is not reliable, it will not be admitted. This is a reasonable

response to this issue, balancing an accused's right to present

a defense and the President's interests in only permitting

reliable evidence before courts-martial.

3. The lower court considered the President's

interests in excluding the evidence.

Finally, the court did not blindly ignore the

President's interests in this case. Judge Gierke (with Chief

Judge Cox and former Chief Judge Everett concurring)

acknowledged the President's interests, but also noted that

15

the argument was speculative at this point, and that the

military did not appear to suffer any consequences after the

Gipson decision (after which, polygraph evidence was no

longer per se inadmissible for four years). Finally, and most

important, speaking as the court that was created to ensure

the rights of servicemembers, it stated that “our measure

should be the scales of justice, not the cash register." The

Court of Appeals for the Armed Forces’ decision was a

proper and reasonable one. In striking the provision, the

court accomplished what Congress intended for it to do --

use its specialized knowledge to supervise military justice.

As a result, its decision should be affirmed.

16

ll. APERSEEXCLUSION OF POLYGRAPH

EVIDENCE VIOLATES THE SIXTH

AMENDMENT.°

If this Court reviews this constitutional issue under

the same standard of review it would had the case arose

from a state or federal court, Amicus asserts nonetheless that

the President's rule is unconstitutional.

A. Legitimate government interests must

justify the per se exclusion of exculpatory

evidence.

"(T]he Constitution guarantees criminal defendants a

meaningful opportunity to present a complete defense.

Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting

California v. Trombetta, 467 U.S. 479, 485 (1984)). This

guarantee is protected, in part, by the Compulsory Process

Clause of the Sixth Amendment. The clause provides [the

right to offer testimony of witnesses, and to compel their

attendance, if necessary," in order to "present the

defendant's version of the facts as well as the prosecution's

to the jury so it may decide where the truth lies."

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

On several occasions, the Court has ruled on whether

a State's per se exclusion of evidence violates this right to

present a defense. While the Court has never announced a

single test to determine whether the exclusion violates the

Compulsory Process Clause, Amicus asserts that one can be

6 While the Court has never held that the Sixth Amendment

applies to the military, Davis, 512 U.S. at 457 n.*, neither the

Government nor the dissenters below challenged its application. See

United States v. Williams, 43 M.J. 348, 356 (1995) (Sullivan, C.J.,

concurring) (Sixth Amendment applies to the military; however

polygraph evidence not relevant).

17

distilled from its decisions’:

Legitimate government interests must justify

the per se exclusion of exculpatory evidence.

Crane, 476 U.S. at 690. If the interests do not, then the

exclusion is unconstitutional.

The reviewing court must make a _ "close

examination" of the issue. Montana v. Eglehoff, 116 S. Ct.

2013, 2029 (1996) (O'Connor, J. dissenting) (quoting

Chambers v. Mississippi, 410 U.S. 284, 295 (1973)').

While this term in the context of the Sixth Amendment has

never been precisely defined, the same term has been used

to describe the level of scrutiny for a race-based

classification or an intrusion into the family relationship by

the legislature. City of Richmond v. J.A. Croson Co., 488

U.S. 469, 495 (1989) (plurality opinion); M.L.B. v. S.L.J.,

117 S. Ct. 555, 564 (1996). Thus, the Court must not

” Some of the cases were decided on the basis of the Due Process

Clause instead of the Compulsory Clause. Amicus contends that the

provisions provide the identical protection in this area of law. See

Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987) (Court concluded that

compulsory process provided no greater protection than due process, and

avoided deciding whether the protections differ).

* Chambers addressed both the Confrontation Clause and

Compulsory Process Clause. While the quoted language from Ch-mbers

arose from the discussion of the Confrontation Clause, the Court later

closely examined the State's interests in addressing the Compulsory

Process Clause issue as well. See also Westen, Confrontation and

Compulsory Process: A Unified Theory of Evidence for Criminal Cases,

91 Harv. L. Rev. 567, 628 (1978) ("whatever the balance is struck

between the interests of the defendant and the interest of the state, the

outcome should be identical whether the accused's sixth amendment claim

arises in the context of his right to be confronted with the witnesses

against him or his right to obtain witnesses in his favor").

18

determine whether the President's decision was reasonable’,

but instead whether it was necessary to serve his interests.

There must be a legitimate government interest in

excluding the evidence.” Michigan v. Lucas, 500 U.S. 145,

149 (1991); Rock v. Arkansas, 483 U.S. 44, 55 (1987);

Chambers, 410 U.S. at 295. See also Eglehoff, 116 S. Ct.

at 2029 (O'Connor, dissenting) (State does not have

legitimate interest in promulgating rule of evidence in order

to alleviate its burden of proof). Finally, this interest must

justify the exclusion of the evidence. Lucas, 500 U.S. at

151: Crane, 476 U.S. at 691 (State offered no rational

justification for exclusion of evidence concerning

circumstances surrounding the taking of a confession).

B. The drafter's interests do not justify this

per se exclusion of evidence.

The drafters of Military Rule of Evidence 707 offer

several interests as a basis for the exclusion of polygraph

evidence: First, the court members will be misled by

polygraph evidence and accept the evidence as

unimpeachable or conclusive. Analysis of Military Rule of

Evidence 707 at A22-48, Manual for Courts-Martial (1995

edition). Second, there will be a danger of confusion of the

issues, where the members will focus more on determining

the validity of the test rather than the guilt or innocence of

an accused. Jd. Third, polygraph evidence will result in a

waste of time because the reliability of the test and the

qualifications of an expert must be litigated in each case. Jd.

Fourth, the reliability of the test has not been sufficiently

established. Jd. While these interests may be valid, they do

* Despite the Government's argyment to the contrary, the standard

of review to be applied is strict. Brief for the United States at 35 ("rule

rationally serves valid interests") (emphasis added).

19 .

not justify the per se rule."

1. Court-martial members are better qualified

than ordinary jurors, and, as a result, will not

be misled by polygraph evidence.

In the military, the convening authority (the officer

who creates, and sends specific charges to, a court-martial)

selects the members for a court-martial. The convening

authority is required to select those servicemembers who

"are best qualified for the duty by reason of age, education,

training, experience, length of service, and judicial

temperament." Article 25, Uniform Code of Military

Justice.'' This requirement "ensures that the ‘asserted

vagaries of juries’ found in other criminal justice systems are

minimized in the military." United States v. Carter, 22 M.J.

771, 776 (A.C.M.R. 1986) (limiting instruction in regard to

rape trauma syndrome evidence prevented members from

‘© The President has given no indication that he was concerned

with polygraph evidence intruding on the member's function of assessing

credibility, Analysis to Rule 707, notwithstanding the Government's

assertion. Brief for the United States at 17, 27-29. In fact, the President

permits several types of evidence to assist in a member's credibility

determination: Military Rule of Evidence 608(a) (character for

truthfulness admissible in order to attack or support credibility); Rule

608(c) (evidence of bias, prejudice, or motive to misrepresent

admissible); Rule 609 (prior felony convictions or convictions involving

dishonesty admissible). In the one area of credibility in which he has

issued a per se rule, Rule 610 (exclusion of religious belief), the drafter's

analysis acknowledges that this exclusion may be overcome when critical

to the defense. Analysis of the Military Rule of Evidence 610, Manual

for Courts-Martial (1995 edition).

i When the convening authority selects officer members, as was

done in this case, virtually every member will also have a college degree

and many will have a postgraduate degree. Moreover, typically, several

of the members will have several years of military service.

20

being overly impressed with expert) (quoting Schick v. Reed,

419 U.S. 256, 260 (1974)), aff'd, 26 M.J. 428 (1988).

The military rules of evidence themselves

acknowledge this superior ability of court-martial members

to receive evidence. In contrast to the federal system, there

is no military counterpart to Federal Rule of Evidence

704(b)'*. Court-martial members may hear direct and

explicit expert testimony on whether the elements have been

met or an offense has occurred. This is because, according

to the drafters, the qualifications of the court-martial

members reduce the risk that they will be unduly influenced

by this evidence, as opposed to civilian jurors. Analysis to

Military Rule of Evidence 704, Manual for Courts-Martial

(1995 edition).

Every servicemember from his or her initial training

is taught to follow and obey orders. This obedience to

orders also applies to following a military judge's

instructions. United States v. Hardy, 46 M.J. 67, 74 (1997)

(military personnel are trained to obey the law, including the

military judge's instructions, and accept their responsibility

to follow those instructions, regardless of their personal

beliefs). As a result, there is no justification for this per se

exclusion of evidence in order to ensure that court-martial

members will not be misled. "Vigorous cross-examination,

presentation of contrary evidence, and careful instruction on

the burden of proof are the traditional and appropriate means

of attacking shaky but admissible evidence." Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596

(1993) (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

This is especially true for court-martial members.

2 "No expert witness testifying with respect to the mental state or

condition of a defendant in a criminal case may state an opinion or

inference as to whether the defendant did or did not have the mental state

or condition constituting an element of the crime charged or of a defense

thereto. Such ultimate issues are matters for the trier of fact alone.”

21

2. There is no danger from a confusion of the

issues or waste of time, because, if necessary,

the military judge already possesses the ability

to exclude the evidence.

The drafters were concerned with two polygraph

experts testifying against each other about two separately

conducted polygraph exams with different results at a court-

martial. Additionally, the drafters were concerned with the

possibility that it would be time-consuming to determine the

reliability of the test and examiner in each case. Even if

these are legitimate concerns,” this rule is unnecessary.

The military judge may exclude relevant evidence when its

probative value is substantially outweighed by the danger of

confusion of issues or by the considerations of time.

Military Rule of Evidence 403. This authority protects the

court-martial from “degenerating into a trial of the polygraph

machine" and from a waste of time, as feared by the

drafters. As a result, the concerns do not justify this rule.

Moreover, in this case, this fear was unwarranted.

The polygraph examination was done by the Air Force

Office of Special Intelligence [AFOSI]. The prosecution

would not need to have another examination done, because

their agents, AFOSI, had already completed it. This trial

would have consisted of only one polygraph examiner with

one set of results, under direct and cross-examination. In

this case, there would have been no danger of confusion or

a waste of time, and as a result, there is no reason to

prohibit Airman Scheffer from presenting his defense in this

case.

‘3 Amicus does not know of a case in which the Government was

prohibited from admitting scientific evidence because it would take too

long, or because the defense would then offer its own expert on the

scientific evidence.

22

3. The scientific reliability of the polygraph

should be addressed by the trial judge.

As noted by the Government, there is a debate over

the scientific reliability of polygraph examinations. Brief for

the United States at 18-25. There is a valid governmental

interest in excluding unreliable evidence; however, a per se

exclusion is unnecessary to satisfy this interest for three

reasons. See Rock, 483 U.S. at 61 (a government's

"legitimate interest in barring unreliable evidence does not

extend to per se exclusions that may be reliable in an

individual case").

First, Military Rule of Evidence 702 permits

scientific evidence to be admitted only if it meets a standard

of reliability. United States v. Nimmer, 43 M.J. 252 (1995)

(in addressing the admissibility of hair analysis to determine

drug use, court follows Daubert and its requirement of

reliability). The military judge is very capable of addressing

the reliability of the evidence and making a decision as to its

admissibility without the use of the President's per se rule of

exclusion. Naturally, if he is qualified to rule on the

admissibility of other, novel scientific evidence, he clearly

is able to rule on evidence upon which there is a large body

of law and science. See United States v. Youngberg, 43

M.J. 379 (1995) (judge properly admitted DNA evidence

even though it was an issue of first impression for the court).

Second, this evidence was taken, in essence, under

the authority of the President. The President approves of the

polygraph program. The investigative agent who conducted

this examination ultimately works for the President, and in

conducting the examination he did so under procedures

authorized by the Secretary of Defense -- a member of the

President's cabinet. Military Rule of Evidence 707 itself, in

subsection (b) -- which states that the rule does not bar

otherwise admissible statements made during the polygraph

examination -- implicitly expects polygraphs to be continued

23

to be used and to provide helpful information to the

government. If the President were truly concerned with the

reliability of these examinations, he would not allow its use

as extensively as he does. His concerns of reliability are

disingenuous and should not hinder Airman Scheffer's right

to defend himself.

Finally, this type of evidence, as is true for most

types of scientific evidence, is in a constant state of

improvement. In 1995, the Director of the Defense

Polygraph Institute noted: "The period between 1986 and the

present has been one of unparalleled advances in the

psychophysiological detection of deception testing procedures

and processes. " Yankee, The Current Status of Research in

Forensic Psychophysiology and Its Application in the

Psychophysiological Detection of Deception, 40 J. Forensic

Sci. 63, 63 (1995), cited in 1 P. Giannelli & E.

Immwinkelried, Scientific Evidence § 8-2(C) (1996 supp.).

Moreover, the President's own officers acknowledge that it

can assist in the defense of servicemembers. The 1995

Department of Defense Report to Congress indicated that

[t]he polygraph examination process was [] valuable in

helping to establish the innocence of persons charged with

serious infractions." Department of Defense Polygraph

Program, Annual Polygraph Report to Congress, Fiscal Year

1995 The President's rule forecloses the ability for later

admission of the evidence despite the advances that may

occur. This per se exclusion -- when it has not been shown

that all polygraph evidence is unreliable -- is too broad to

justify the governmental interests in this case.

24

CONCLUSION

The decision of the court of appeals should be

affirmed.

Respectfully submitted.

SYED N. AHMAD

Lieutenant

Judge Advocate General's Corps

U.S. Naval Reserve

Counsel of Record

August 1997