# Amicus Curiae Brief — United States v. Scheffer

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0048%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 303

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0048%3A15. Public record. Not legal advice.