Amicus Curiae Brief — United States v. Scheffer

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No. 96-1133 !

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

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 OF THE UNITED STATES ARMY

DEFENSE APPELLATE DIVISION,

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

JOHN T. PHELPS II* STEPHEN P. BELL, JR.

Colonel, U.S. Army Captain, U.S. Army

Chief, Defense Appellate Division Defense Appellate Attorney

MICHAEL E. HATCH T. MICHAEL GUIFFRE

Major, U.S. Army Captain, U.S. Army

Defense Appellate Attorney Defense Appellate Attorney

* Counsel of Record PAUL FIORINO

Captain, U.S. Army

U.S. Army Legal Services Agency Defense Appellate Attorney

5611 Columbia Pike ARDEN B. LEVY

Falls Church, VA 22041 Captain, U.S. Army

(703) 681-3572 Defense Appellate Attorney

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 military defendants’ right to present a defense.

(i)

TABLE OF CONTENTS

Page

DEED cocccccctcccccceccésescocccececccesecs l

PORE co cccccccccccccecccceceseseceecesoscoees 2

Argument:

1. Daubert v. Merrell Dow Pharmaceuticals, Inc., compels

criminal courts to consider admission of polygraph

GED cccccccecccccccccctecccccesesccescccccccccccces 4

A. Asubstantial number of jurisdictions admit polygraph

expertise without regard for the defendant's Sixth Amendment ~

right to present a defense ..... 6... 6666 e eee eee eees 5

1. Several federal circuits currently accept

DORNITEIED cc ccccccscccccccccccccccccccccccccece 6

2. New Mexico’s comprehensive scheme for

admission of polygraph evidenee is a model for

all jurisdictions to emulate... 2... 6.66 eee ees 8

3. Stipulated polygraph results are admissible

| PPPPPPPTTTTITITITITITITI TET TTT 9

DO GT EGER ccc ccc ccccccccccccccccccccccces 14

II. Military Rule of Evidence 707 works to unconstitutionally

deprive a military accused the opportunity to present a defense .... 22

A. Due process applies to the military justice system ......... 22

B. Daubert’s focus on civil trial evidence standards

fails to accord and account for constitutionally-

based protections inherent in criminal cases .............. 23

(iii)

C. The Court of Appeals for the Armed Forces decision

in the case sub judice was properly decided on

SEED Sk cdoviscducdcceccoscceseses

due-process Daubert factor ..............2ceeeeeeeees:

(iv)

Cases:

TABLE OF AUTHORITIES

American Elevator Co. v. Briscoe, 572 P.2d 534

SM hacképcenndueéabenbedhbndestsdédecesceocceecese 12

Arcoren v. United States, 929 F.2d 1235 (8th Cir. 1991) .......... 5

Armstrong v. City of Wichita, 907 P.2d 923

Ge GE, BESED ccnvccccccntee bec ccccscccccoccccees 12

Birdsong v. State, 649 P.2d 786 (Okla. Crim. App. 1982) ......... 19

Boeche v. State, 37 N.W.2d 593 (Neb. 1949)... 0.0.0.6 eee eee 18

Britton v. Farmers Ins. Group, 721 P.2d 303 (Mont. 1986) ....... 4

Brown v. Darcy, 783 F.2d 1389 (9th Cir. 1986) ...............0. 6

Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852

SE EE SedRSRUASRUAAabEhEEeebeddetecscoeeséoccese 18

Carr v. State, 655 So.2d 824 (Miss. 1995)... . 2... ee eee ee 17

Castleberry v. State, 522 P.2d 257 (Okla.

Se DUET Mu shaGebedeebedadabenseddocecoceccccenss 19

Chambers v. Mississippi, 410 U.S. 284 (1973) ........... 3, 9, 15, 24

Chandler v. State, 744 S.W.2d 341 (Tex. Ct. App. 1988) ......... 21

Chester v. State, 473 S.E.2d 759 (Ga. 1996) .... 6... oe cee ne ll

City of Bismarck v. Berger, 465 N.W.2d 480

SE cncdcanbanbeddeadeocnsccecesccececess 13

City of Fargo v. McLaughlin, 512 N.W.2d 700

Sn Rebnedbadedeacdbussceecssdececccoscacesccees 13

Colbert v. Commonwealth, 306 S.W.2d 825 (Ky. 1957) .......... 15

(v)

Cases — Continued:

Commonwealth v. A Juvenile (No. 1),

FED ee BP, COP cc csc cctécccsctcccccvcccceces 16-18

Commonwealth v. Blasioli, 685 A.2d 151

Se ED We edandeddccccccccesesccsocéccscccses 19

Commonwealth v. Brockington, 455 A.2d 627 (Pa. 1983) ........ 19

Commonwealth v. Butler, 621 A.2d 630

SD SUED necdnncgecucecccscccaccccseseccccunss 19

Commonwealth v. Lanigan, 641 N.E.2d 1342

SD MEE suuncknndéddoddsnsededdeésestesesssndseceeses 17

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

SL GH Sc bsctsdcrevecsccceusssdcssccccccocccees 4, 16-17

Commonwealth v. Pfender, 421 A.2d 791

A ED Vacccccckvccccacensssscsscccccescccet 19

Commonwealth v. Stewart, 663 N.E.2d 255 (Mass. 1996) ........ 16

Commonwealth v. Viteilo, 381 N.E.2d 582 (Mass. 1978) ....... 16-17

Conner v. State, 632 So.2d 1239 (Miss. 1993) ...........6.644. 17

Contee v. United States, 667 A.2d 103 (D.C. 1995) ............. 15

Conti v. Commissioner, 39 F.3d 658 (6th Cir. 1994) ............. 8

Corbett v. State, 584 P.2d 704 (Nev. 1978) .. 0.0.6.6 ce cee eee eee 12

Cullin v. State, 565 P.2d 445 (Wyo. 1977) «0.6 ccc cece 13

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

PPD Ktenddesacedncsscncsqnsscsessqoeess passim

Davis v. State, 520 So.2d 572 (Fla. 1988) .... 2... 6.6 e eens 11

Delap v. State, 440 So.2d 1242 (Fla. 1983) .. 2.6.6... ll

Domingues v. State, 917 P.2d 1364 (Nev. 1996) ................ 12

(vi)

Cases — Continued:

Ex parte Clements, 447 So.2d 695 (Ala. 1984) ....... 0.666. 6. 9

Ex parte Perry, 586 So.2d 242 (Ala. 1991) .... 0.6... cece eee y)

Famber v. State, 213 S.E.2d 525 (Ga. Ct. App. 1975) ............ 1]

Flanagan v. State, 625 So.2d 827 (Fla. 1993) ..........6 6.60065 11

Foraker v. State, 394 A.2d 208 (Del. 1978) .... 0.06. 1]

Forehand v. State, 477 S.E.2d 560 (Ga. 1996) ...... 0.6.6.6 0065 1]

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ........... passim

Fulton v. State, 541 P.2d 871 (Okla. Crim. App. 1975)

PG weccdeeccetdccccccccccccesesesssccescccccccs i9

Golston v. State, 762 S.W.2d 398 (Ark. Ct. App. 1988) .......... 10

Hawkins v. State, 77 So.2d 263 (Miss. 1955) ............00000. 17

Healy v. Healy, 397 N.W.2d 71 (N.D. 1986) ............00000. 13

Hinton v. State, 548 So.2d 547 (Ala. Crim. App. 1988),

aff'd sub nom Ex parte Hinton, 548 So.2d 562

Ss SU CE weenucdhcddaterteccecesseceesccccceccceseds )

Houston v. Lockhart, 982 F.2d 1246 (8th Cir. 1993) ............. 10

Houston v. State, No. CR 87-85, 1988 WL 14162

ee Pree 10

In re Odell, 672 A.2d 457 (R.1. 1996) (per curiam) .............. 20

Johnson v. State, 495 A.2d 1 (Md. 1985) .. 0... cee eee 16

Jones v. State, 862 S.W.2d 242 (Ark. 1993) . 2... 66.6 cece eens 10

Jones v. State, 527 P.2d 169 (Okla. Crim. App. 1974) ........... 19

(vii)

Cases — Continued:

Kaminski v. State, 63 So.2d 339 (Fla. 1952) «2... 6.06 e eee e eens 11

Kelley v. State, 418 A.2d 217 (Md. 1980) ... 2.0.66. c cece eee ees 16

Le Fe v. State, 8 N.W.2d 288 (Wis. 1943) ..........0500005 21-22

Lee v. Commonwealth, 105 §.E.2d 152 (Va. 1952) ............ 4,21

Lester v. State, 692 So.2d 755 (Miss. 1997) . 2.2.0... 0000ceeeees 17

Lindsey v. People, 892 P.2d 281 (Colo. 1995) . 2... 6c eens 14

Marable v. State, 313 S.W.2d 451 (Tenn. 1958) ............655: 20

Mattox v. State Dep't of Revenue, 875 P.2d 763

CRD BSED coc cocddccedctcceceerecssobccccccocccceeces 14

McDonald v. State, 328 N.E.2d 436 (Ind. Ct. App. 1975) ......... 12

McGrew v. State, 673 N.E.2d 787 (Ind. Ct. App. 1996) .......... 12

Melvin v. State, 606 A.2d 69 (Del. 1992)... 6... ccc eee 11

Middendorf v. Henry, 425 U.S. 25 (1976) «0.0.66 occ eee ees 22

Misskelley v. State, 915 S.W.2d 702 (Ark. 1996) ..........6005: 10

Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995) ......... 15

Morton v. Commonwealth, 817 S.W.2d 218 (Ky. 1991) .......... 15

Nethery v. State, 692 S.W.2d 686 (Tex. Crim. App. 1985)

CED ou.05tckdeckdtdaGeesesabanecerntbassteonancaseces 21

Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky. 1997) ......... 23

Odum v. Commonwealth, 301 S.E.2d 145 (Va. 1983) ............ 21

Oxendine v. Merrell Dow Pharm., Inc., Civ. No. 82-1245,

1996 WL 680992 (D.C. Super. Oct. 24, 1996) (mem. op.) ........ 15

Parker v. Levy, 417 U.S. 733 (1974) ......ccsccccccceccceees 22

(viii)

Cases — Continued:

Paxton v. State, 867 P.2d 1309 (Okla. Crim. App. 1993). ......... 19

People v. Aontae D., 30 Cal. Rptr. 2d 176

GE GR BORD ccc ccccccccescesceccccscscecsccccccce ll

People v. Anderson, 637 P.2d 354 (Colo. 1981) (en banc) ........ 14

People v. Angelo, 666 N.E.2d 1333 (N.Y. 1996) .......... pues 18

People v. Barbara, 255 N.W.2d 171 (Mich. 1977) ............+. 17

People v. Baynes, 430 N.E.2d 1070 (Ill. 1981) .... 6.2... 66 ee ee. 15

People v. Becker, 2 N.W.2d 503 (Mich. 1942) ..........000005. 17

People v. Davis, 72 N.W.2d 269 (Mich. 1955) .........66.00055 17

People v. Ferguson, 405 N.E.2d 21 (Ill. App. Ct. 1980) .......... 15

People v. Gard, 632 N.E.2d 1026 (Ill. 1994) .... 6.6666 eee ee ees 15

People v. Houser, 193 P.2d 937 (Cal. Dist. Ct. App. 1948)........ 10

People v. Jones, 343 P.2d 577 (Cal. 1959)... cece eee ees 10

People v. Leahy, 882 P.2d 321 (Cal. 1994) (in banc)............. 11

People v. Leone, 255 N.E.2d 696 (N.Y. 1969) .... 6.66 e eee e ees 18

People v. Lowitzki, 674 N.E.2d 859 (Ill. App. Ct. 1996) .......... 15

People v. Lyons, 907 P.2d 708 (Colo. Ct. App. 1995) ............ 14

People v. McMillan, 539 N.W.2d 553

GE GRR TEUED sccccccsccscccccvcedsccscccecscccces 17

People v. Melock, 599 N.E.2d 941 (Ill. 1992) .. 2.6... eee ees 15

People v. Shedrick, 489 N.E.2d 1290 (N.Y. 1985) ........66005+ 18

People v. Victory, 631 N.Y.S.2d 805

ih a 0. PPTTTTTTITITTTTTT TTT TTT 18

Cases — Continued:

People v. Wesley, 633 N.E.2d 451 (N.Y. 1994) . 2... 6.6. c eee 18

People v. Zazzetta, 189 N.E.2d 260 (Ill. 1963) .... 2.6... e eens 15

Perkins v. State, 902 S.W.2d 88

(Tam. Ci. Age. TORS) on cc cccccccccccccccccccccccececes 14, 21, 23

Peterson v. State, 247 S.W.2d 110

(Tex. Crim. App. 1951) ........cccccccccccccccccccess 4, 20-21

Phillips v. Jackson, 615 P.2d 1228 (Utah 1980) ...........60055 13

Polk v. State, 612 So.2d 381 (Miss. 1992) ... 0... 066 cece eee eee 17

Pulakis v. State, 476 P.2d 474 (Alaska 1970) ............500055 14

Riccio v. Dilworth, 115 A.2d 865 (Pa. Super. Ct. 1955) .......... 19

Rock v. Arkansas, 483 U.S. 44 (1987) .............5- 3, 24, 25, 28

Rosen v. United States, 245 U.S. 467 (1918) .. 2... 66. eee eee 28

Rostker v. Goldberg, 453 U.S. 57 (1967) ...... eee eee eee ee 23

Sabag v. Continental South Dakota, 374 N.W.2d 349

CR TED cc csscvccaccssctscvcesseccenccscccncccccceese 20

Scantillanes v. State, 765 P.2d 1147 (Nev. 1988) ........ 6.66645. 12

Schmunk v. State, 714 P.2d 724 (Wyo. 1986) .............5505+ 14

Smith v. State, 277 S.E.2d 678 (Ga. 1981) .. 2... eee cece 11

Smith v. United States, 389 A.2d 1356 (D.C. 1978) ...... seen 15

Spencer v. Commonwealth, 393 S.E.2d 609

Peeeeerrr rrr rrr Terr rr TT Titi TTT TTT Titi TTT ie 21

Springfield v. State, 860 P.2d 435 (Wyo. 1993) ...... 6.6... eens 14

State v. Alberico, 861 P.2d 192 (N.M. 1994) ...........5.5000es 8

(x)

Cases — Continued:

State v. Allen, 560 N.W.2d 829 (Neb. 1997) .... 2.0.2.0 6 600005. 18

State v. Antone, 615 P.2d 101 (Haw. 1980) ...............00005 15

State v. Baca, 902 P.2d 65 (N.M. 1995) ............0000eeee 8-9, 27

State v. Bashor, 614 P.2d 470 (Mont. 1980) ................--. 18

State v. Baskerville, 374 A.2d 441 (N.J. 1977) .........6..00055 12

State v. Beard, 461 S.E.2d 486 (W. Va. 1995) .............0008. 21

State v. Bible, 858 P.2d 1152 (Ariz. 1994) .............0..0005. 10

State v. Biddle, 599 §.W.2d 182 (Mo. 1980) (en i csctsenewes 18

State v. Blake, 478 S.E.2d 550 (W. Va. 1996) .............0005. 21

State v. Brown, 687 P.2d 751 (Or. 1984) ............2 ccc ee eeee 19

State v. Burch, 939 S.W.2d 525 (Mo. Ct. App. 1997) ............ 18

State v. Campbell, 904 S.W.2d 608

SE ee 20

State v. Carter, 524 N.W.2d 763 (Neb. 1994) .............0005. 18

State v. Casale, 110 A.2d 588 (Me. 1954) .............6.200085 16

State v. Case, 553 N.W.2d 173 (Neb. Ct. App. 1996) ............ 18

State v. Catanese, 368 So.2d 975 (La. 1979)... 2... 6. ee eee 15-16

State v. Cavaliere, 663 A.2d 96 (N.H. 1995) .... 2.0... 6.2 c eee. 18

State v. Chambers, 239 S.E.2d 324 (Ga. 1977) ............0005. 11

State v. Chang, 374 P.2d 5 (Haw. 1962)... 2.2... cece eae 15

State v. Clemons, 929 P.2d 749 (Kan. 1996) .............0.005. 12

Siate v. Collins, 612 P.2d 775 (Utah 1980) ..............00005. 13

(xi)

Cases — Continued:

State v. Copeland, 300 S.E.2d 63 (S.C. 1982) ...... 6... 6c eee ee 20

State v. Crosby, 927 P.2d 638 (Utah 1996) ......... 0.0 ceeees 13

State v. Dean, 307 N.W.2d 628 (Wis. 1981) ..... 6.60000 ee cues 2, 21

State v. Dery, 545 A.2d 1014 (R.1. 1988)... 0.6 20

State v. Dishon, 687 A.2d 1074

SR ID ncn cckiued ccceccceccsccesess 13

State v. Dorsey, 539 P.2d 204 (N.M. 1975) ..... 066. c cece ee eees 2,8

State v. Driver, 183 A.2d. 655 (N.J. 1962) .........0ecce ee eeeee 13

State v. Fain, 774 P.2d 252 (Idaho 1989) .............60 000 eee 11

State v. Fields, 434 S.W.2d 507 (Mo. 1968) ..........0..50000 17

State v. Foret, 628 So.2d 1116 (La. 1993) ............ 560000 15-16

State v. Frazier, 252 S.E.2d 39 (W. Va. 1979) .... 2.2.6... cece eee 21

State v. Gagne, 343 A.2d 186 (Me. 1975) ..........6ceceeeeeee 16

State v. Ghan, 558 S.W.2d 304 (Mo. Ct. App. 1977) ..........5. 17

State v. Gleason, 844 P.2d 691 (Idaho 1992) ..............0008 11

State v. Green, 531 P.2d 245 (Or. 1975) .......... cc ceeecceeees 19

State v. Gregory, 910 P.2d 505 (Wash. 1996) ................4. 13

State v. Grier, FD Ee SOO els BEEED cccccccccccccccccese 19

State v. Grube, 883 P.2d 1069 (Idaho 1994) .............600055 11

State v. Hamlin, 499 A.2d 45 (Vt. 1985) «2.6.6 eee eens 21

State v. Hawkins, 604 A.2d 489 (Md. 1992) ... 0... 6. eee eee 16

State v. Hesson, 675 N.E.2d 532 (Ohio Ct. App. 1996) .......... 13

(xii)

Cases — Continued:

State v. Hofer, 512 N.W.2d 482 (S.D. 1994) 2.2.0... 0... cece nee 20

State v. Hollywood, 358 P.2d 437 (Mont. 1960) ................ 18

State v. Houser, 450 N.W.2d 697 (Neb. 1990) .............2.44. 18

State v. Irick, 762 S.W.2d 121 (Tenn. 1988) .................4- 20

State v. Jenkins, 523 P.2d 1232 (Utah 1974) ..............0045. 13

State v. Jones, 466 S.E.2d 696 (N.C. 1996) ..... 0... eee eee 2, 19

State v. Jones, 922 P.2d 806 (Wash. 1996) ...............00045. 13

State v. Juarez, 570 A.2d 1118 (R.I. 1990) ...............0005. 20

State v. Kelly, 478 A.2d 364 (N.J. 1984) .... 0.0.06. c cece eee 13

State v. Klawitter, 518 N.W.2d 577 (Minn. 1994) ............... 17

State v. Kniep, 622 N.E.2d 1138 (Ohio Ct. App. 1993) ........... 13

State v. Kolander, 52 N.W.2d 458 (Minn. 1952) ............ ... 17

State v. LaForest, 207 A.2d 429 (N.H. 1965) ...............4.. 18

State v. Land, 681 S.W.2d 589 (Tenn. Crim. App. 1984) ......... 20

State v. Lassley, 545 P.2d 383 (Kan. 1976) .................05. 12

State v. Litzau, 377 N.W.2d 53 (Minn. Ct. App. 1985) ........... 17

State v. Losee, 354 N.W.2d 239 (lowa 1984) ..............2055. 12

State v. Lyon, 744 P.2d 231 (Or. 1987) ............ccc cece eeeee 19

State v. Lyons, 924 P.2d 802 (Or. 1995) ............. cece ee eeee 19

State v. McClean, 587 P.2d 20 (Mont. 1978) ................4-- 18

State v. McDavitt, 297 A.2d 849 (N.J. 1972) . 2... 06. 12

State v. McNamara, 104 N.W.2d 568 (lowa 1960) .............. 12

(xiii)

Cases — Continued:

State v. Meadows, 295 S.E.2d 394 (N.C. 1982)... 0.06. 19

State v. Milano, 256 S.E.2d 154 (N.C. 1979)... 0... cece eee es 19

State v. Montalbo, 828 P.2d 1274 (Haw. 1992) ..........0600065 15

State v. Moore, 885 P-2d 457 (Mont. 1994) ............c0e0eee. 18

State v. Morgan, 485 S.E.2d 112 (S.C. 1997) 2.2... 0.0 c cece eens 20

State v. Mower, 314 A.2d 840 (Me. 1974) ...... 6.66 cece eee eee 16

State v. Muetze, 368 N.W.2d 575 (S.D. 1985) ... 0.6.6. 20

State v. Newnam, 409 N.W.2d 79 (N.D. 1987) ...........600055 13

State v. Ober, 493 A.2d 493 (N.H. 1985) . 0.0... 66 ccc eee ences 18

State v. Olmstead, 261 N.W.2d 880 (N.D. 1978) .... 0... eee 13

State v. Opsahl, 513 N.W.2d 249 (Minn. 1994) ..............04. 17

State v. Pennington, 393 S.E.2d 847 (N.C. 1990) ...........065. 19

State v. Pierce, 597 N.E.2d 107 (Ohio 1992) ...........6600 000s 13

State v. Porter, No. SC 15363, 1997 WL 26502

GE. He SUPE Radin cvdendeneddesesesccscccnccces 14, 23

State v. Preston, 581 A.2d 404 (Me. 1990) ............ 000000. 16

State v. Pusch, 46 N.W.2d 508 (N.D. 1950) 2.2.2.2... cece eens 13

State v. Quattrocchi, 681 A.2d 879 (R.I. 1996) .............004. 20

State v. Rimmasch, 775 P.2d 388 (Utah 1989) ....... 0.060000 ee 13

State v. Roach, 576 P.2d 1082 (Kan. 1978) ...........0000eeeee 12

State v. Rolfe, 686 A.2d 949 (Vt. 1996) 2.0... cece eens 21

(xiv)

Cases — Continued:

State v. Ross, 497 P.2d 1343 (Wash. 1972) .........00ce cece ees 13

State v. Rowley, 386 P.2d 126 (Utah 1963) ..........00ce0ee00: 13

State v. Ruthardt, 680 A.2d 349

Ge PUIG, TEs oc ccnvccnsecccccoccccosscvcscccusees 11

State v. Sanders, 872 P.2d 870 (N.M. 1994) ........ccc0seeueee 8.9

State v. Schimpf, 782 S.W.2d 186

CORR, GEE. FI, BERD ccc cccccccccccccdcesscvcssasoccess 20

State v. Sheppard, 310 S.E.2d 173 (W. Va. 1983) .........00000: 21

State v. Souel, 372 N.E.2d 1318 (Ohio 1978) ........... aaa 13

State v. Spencer, 459 S.E.2d 812 (N.C. Ct. App. 1995) .........: 19

State v. Staat, 811 P.2d 1261 (Mont. 1991) .......... 200000000 18

State v. Stanislawski, 216 N.W.2d 8 (Wis. 1974) ..........00200: 21

State v. Stewart, 364 A.2d 621 (N.H. 1976) ........0.c0se0eeee 18

State v. Tinajero, 935 P.2d 928 (Ariz. Ct. App. 1997) ..........-. 10

State v. Trafton, 425 A.2d 1320 (Me. 1981)...........00eeeee0 16

State v. Valdez, 371 P.2d 894 (Ariz. 1962)

ee SETA REE A ei Pope Ol 2, 10, 12-13

State v. Walstad, 351 N.W.2d 469 (Wis. 1984) ..........0.0000: 22

State v. Watson, 248 N.W.2d 398 (S.D. 1976) ........00c00e000. 20

State v. Wright, 471 S.E.2d 700 (S.C. 1996) .........00c0ce00e. 20

State v. Wyatt, 482 S.E.2d 147 (W. Va. 1996) .......6.0.0eceee 23

Taylor v. Commonwealth, 348 S.E.2d 36

Ci aT Sih Uratnck dl Nedaviniidivebaditans 21

(xv)

Cases — Continued:

Taylor v. State, 889 P.2d 319 (Okla. Crim. App. 1995) ........... 19

Thompson v. State, 399 A.2d 194 (Del. 1979)... 6.6 ccc ees ll

Thorson v. State, 653 So.2d 876 (Miss. 1994)... 6... ccc cen 17

Troyer v. State, 614 P.2d 313 (Alaska 1980) .... 2.666666 cece ees 14

Tyler v. United States, 193 F.2d 24 (D.C. Cir. 1951) .. 0... 6.6666. 6

Underwood v. Colonial Penn. Ins. Co., 888 F.2d 588

RT eT ERT TUTTE TUTTE CLL TEE TEE 6

United States v. Alexander, 526 F.2d4161

Cs h ere eheeCeSveoevocecsscocccees 2, 6, 15, 18, 25

United States v. Antone, 981 F.2d 1059 (9th Cir. 1992) .......... 5

United States v. Bortnovsky, 879 F.2d 30 (2d Cir. 1989) .......... 6

United States v. Bowen, 857 F.2d 1337 (9th Cir. 1988) ........... 6

United States v. Brevard, 739 F.2d 180 (4th Cir. 1984) ........... 6

United States v. Cordoba, 104 F.3d 225 (9th Cir. 1996) .......... 8

United States v. Downing, 753 F.2d 1224 (3d Cir. 1985) ......... 5

United States v. Fife, 573 F.2d 369 (6th Cir. 1976) ... 2.6... 6666. 6

United States v. Frogge, 476 F.2d 969 (Sth Cir. 1973) ........... 6

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

superseded by Mil. R. Evid. 707 «2... 6.666 occ nes 5-6, 23, 25

United States v. Hall, 805 F.2d 1410 (10th Cir. 1986)... ......... 6

United States v. Harper, 22 M.J. 157 (C.M.A. 1986) ............ 22

United States v. Houser, 36 M.J. 392 (C.M.A. 1993) .......... 4-5, 22

(xvi)

Cases — Continued:

United States v. Johnson, 816 F.2d 918 (3d Cir. 1987) ........... 6

United States v. Kampiles, 609 F.2d 1233 (7th Cir. 1979) ......... 6

United States v. Kwong, 69 F.3d 663 (2d Cir. 1995) ............. 8

United States v. Lynn, 856 F.2d 430 (1st Cir. 1988) ............. 6

United States v. Miller, 874 F.2d 1255 (9th Cir. 1989) ........... 6

United States v. Nimmer, 43 M.J. 252 (C.A.A.F. 1995) .......... 22

United States v. Pettigrew, 77 F.3d 1500 (Sth Cir. 1996) ........ 7, 28

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

(11th Cir. 1989) (en banc) ......... cece ececccceccceeee. 2, 6-7, 28

United States v. Posado, 57 F.3d 428

Dich n ceed Mi ebeeabtesesdebétscdsecccececs 7, 23, 26

United States v: Pulido, 69 F.3d 192 (7th Cit. 1995) .........0... 8

United States v. Rouse, 111 F.3d 561 (8th Cir. 1997) ............ 23

United States v. Scheffer, 44 M.J. 442

ish, cigiacesseneknnweecesecenaesaneess 25-28

United States v. Schneider, 111 F.3d 197 (ist Cir. 1997) ......... 23

United States v. Sherlin, 67 F.3d 1208 (6th Cir. 1995) ........... 8

United States v. Skeens, 494 F.2d 1050 (D.C. Cir. 1974) ......... 6

United States v. Soundingsides, 820-F.2d 1232

PET Sendneudacddseaduseedesedecenessocccneses 6

United States v. Tsinnijinnie, 91 F.3d 1285 (9th Cir. 1996) ........ 4

United States v. Williams, 39 M.J. 555 (A.C.M.R. 1994),

VE, BERD PIPER FEUED cccccccveccccccccccccces 25-26

(avii)

Cases — Continued:

United States v. Yeo, 739 F.2d 385 (8th Cir. 1984) ..............

United States v. Youngberg, 43 M.J. 379 (C.A.A.F. 1995) ........

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

GREED ccndccecetcccccsaccecsccccescacecccesccucceseses |

Washington v. Texas, 388 U.S. 14 (1967) .............. 3, 24, 25, 28

Weiss v. United States, 510 U.S. 163 (1994) .............600005

White v. leyoub, 25 F.3d 245 (Sth Cir. 1994)... 2.02.6... eee ee

Williams v. Hedican, 561 N.W.2d 817 (lowa 1997) .............

Wilt v. Burbacker, 443 S.E.2d 196 (W. Va. 1993) ..............

Wingfield v. State, 796 S.W.2d 574 (Ark. 1990) .............55.

Witherspoon v. Superior Court, 183 Cal. Rptr. 615

(Cal. Dist. Ct. App. 1982) ........c0cceecceeeceeeeeeeeeee: 10-11

Wolfel v. Holbrook, 823 F.2d 970 (6th Cir. 1987) ............55.

Workman v. Commonwealth, 580 S.W.2d 206 (Ky. 1979) ........

Zupp v. State, 283 N.E.2d 540 (Ind. 1972) ... 2... 6. - eee eee ees

U.S. Const.:

Art. 1, § 8, cl. 14 .........4.. nd dededesavecsvcecececccencds

Constitution, statutes, regulation and rules — Continued:

Uniform Code of Military Justice art. 25(d)2),

10 U.S.C. § 825(d(2) (1982) ........ tein deesnaunans 24

Manual for Courts-Martial, United States, 1984,

app. 22, Military Rules of Evidence analysis .................. 25

Fed. R. Evid.:

SE atdctodvcdsianecsdentededeideicndecuceds 7, 19, 26

PE bbdunbubedédcnnduccbccdbanedocwsestbecdseades passim

DET Abbdunccddndedcdaduscuiddesdunnncniebsousddscns 6

Pt hipivesecdidideedusedenduddwddiudsdbadeddsendens 7

PM AaAtacnsdiedeendSbercwbdecécceschbcacbessuar passim

Military R. Evid.

SP MEGRndeentsdvanveddddsenudKdudcddsandbieddees 23, 25

NE edhebdhnnedcsteceeesbedscdeckinvabcduseheuses 3, 26

DY Sbedestensibsrencbichdintinacennassice 3, 5, 22, 25-27

SP Mn huesédnctadccensavenecésensacectbéessese 9

STEED Saveenudddnnccdécccdbcevedece ccseessabscees 14

PD EE ch cesDoccbndnccdandescececsecectconscessées 10

Ark. Code Ann. § 12-12-701 (Michie 1987) .................005. 10

EE OEE “On cenesesriednnndédcuesscocescesseseccees 10

PT. odivdccdadhdadessébbceucécchancescsee 11

SE htncdddicésvedddavumaddesudadnedaatdes 11

nich tuvecdindtibibevesdshuchevaleaseccudus 14

Constitution, statutes, regulation and rules — Continued:

Eo. as icvewnenuadcetaiadevvusedadyedes 1

Fla, Stat, ch. GR. FED (IEE) .........ceccecceccsccscoscescesees 11

Ga. Code Ann. § 24-967 (1995) .........c.ccecescescescsseees 11

Haw. Rev. Stat. § 626.1, Rule 702 (1995) .........0cceeceeseees 15

I ESE er Bice 1

ee ca caetiaee 12

Sie TED i <ccnnnsscecvucnsnccnnvenestbacees 12

Kan. Stat. Ann. § 60-456 (1994) .............cceceeceececeeeees 12

a pT a ccde dennmadweiinka 15

ce CTT EE eS eT 16

FRAP LEAH NO 16

2a RE ie] oe 16

I ics cncussecersanaestccesexeoncesetis 17

I no ccncubbeveussiel 17

Miss. Code Ann. § 73-29-47 (1995) ........0.cccceeceeeeceeeees 17

ss sevaplleweenestas 17

Mo. Ann. Stat. § 490-050 (1996) .........cccecececececeeeueees 18

Mont. Code Ann. 26-10-702 (1995) .........0cccececeuceueeuess 18

Neb. Rev St. § 27-702(1995) ..........csccececeeececeuceuceee 18

Nev. Rev. St. Ann. § 50. 2851996) ...........0.ccsceeceecesees 12

ee EE ce OE LPR Ree 18

Constitution, statutes, regulation and rules — Continued:

N.M. Stat. Ann. § 11-702 (Michie 1993) ................000e0eee

N.M. Stat. Ann. § 11-707 (Michie 1993) ..................0005. 2, 8-9

N.C. Gen. Stat. § 8C-1, Rule 702 (1997) ............ 0.00 ccc eeees

PRUE SEdRhecvccesdbsvcccusccccccescecocsesceeus

Ohio R. Evid. 702 .............0cececeeee i ee ae

Okla. Stat. Ann. tit. 12, § 2702 (West 1993) ...............000005.

PTET ECLET ECCT TTT TT ETT Te

TEE adudsussdenvecedcanedcneeecccctésocgescecees

Se nn canccanecacseqcecécencnccscevescoenecsees

S.D. Codified Laws Ann. § 19-15-2 (1995) . 2.0.0... cece cee cues

pF EPPO TTT TTT POT TT OTT TTT TTT TTT TTT TTT Tee

SEE BEEN cdnuecceeshccdsntestesdescececdneeses

ET Gabiccaccsdeceossidéusasescosseceusnesseds

ME aetdecssecepsetepeseaccescscacepcesceeeceset

Va. Code Ann. § 8.01-401.1 (1992) 2.0.0... ccc ccc eee eee ees

etecctcncsdsccdesescececeeccccecoscesse

SIRE Sibdvatansdbewancccesececcaesecttesvecsess

Wis. Stat. Amn. § 907.02 (West 1993) ...... 2c ccccccccccccvccees

Si ddiobvcemivketaesteseusessendasnaaesevesees

Miscellaneous: j

Kevin M. Carroll, The New Maryland Rules of

Evidence: Survey, Analysis and Critique, 54 Md. L.

en nocevessevens

Miscellaneous — Continued

W. Iacono & D. Lykken, “The Scientific Status of |Research on Polygraph

Techniques: The Case Against Polygraph Tests,” 1 Modern Scientific

Evidence (D. Faigman et al. eds., 1997) .... 06.66 c cece cee eee eens 4

E. Imwinkelried, The Standard For Admitting Scientific Evidence: A

Critique From The Perspective of Juror Psychology, 100 Mil. L.

PO TE BRP EEE voc dcccccscctsvsccccctvscesveccceccedoons 24

D. Lykken, The Lie Detector and the Law, 8 Crim.

By BP IED soc cc cdvbnesossccdbosecccedcccescoccnccocens 4

M. Maxwell et al., Recent Developments Concerning

the Constitutionality of Military Rule of Evidence 707,

The Army Lawyer (DA Pam 27-50-265) 13 (Dec. 1994) ........... 24

James R. McCall, Misconceptions and Reevaluation — Polygraph

Admissibility After Rock and Daubert, 1996 U. Ill. L.

PL SD 44 cn ccdu tne dssadededeuee eeheventessnseevest 9, 28

John H. Wigmore, A Treatise on the Anglo-American System of Evidence

in Trials at Common Law § 875 (2d ed. 1923) ......... 6000 eeeee 28

(xxii)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

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 OF THE UNITED STATES ARMY

DEFENSE APPELLATE DIVISION,

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE!

The United States Army Defense Appellate Division is an agency of the

United States Army Judge Advocate General’s Corps. The Defense Appellate

Division represents individual soldiers on appeal before the United States

Army Court of Criminal Appeals, the United States Court of Appeals for the

Armed Forces, and the United States Supreme Court.

The Defense Appellate Division represents all soldiers who receive either a

punitive discharge or at least one year of confinement as a result of an Army

court-martial. In 1996, the Division filed approximately 780 appellate plead-

ings with the Army Court of Criminal Appeals and nearly 400 pleadings with

the Court of Appeals for the Armed Forces.

The Military Rules of Evidence, which are at issue in the case sub judice,

apply to all Army courts-martial. Furthermore, Army judge advocates fre-

' Bach party has given its consent, in writing, to the filing of this brief amicus curiae.

Letters indicating such consent have been filed with the Clerk of the Court.

1

quently encounter polygraph issues in their practice. The Air Force Defense

Appellate Division, representing the respondent, requested an amicus brief

regarding the current status of polygraph admissibility among the many juris-

dictions potentially affected by this decision. Given the authors’ professional

knowledge of the subject matter and the impact of this Court’s decision on sol-

diers facing courts-martial, this amicus curiae brief represents the competent

and informed viewpoint of a party with a legitimate interest in the, outcome of

this case.

SUMMARY OF ARGUMENT

The “general acceptance” test was the first measure by which polygraphs

and scientific evidence were evaluated prior to admission in a trial. Frye v.

United States, 293 F. 1013 (D.C. Cir. 1923). In the wake of Frye, the vast

majority of jurisdictions held polygraph evidence inadmissible per se. In

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), this Court

rejected the Frye test and provided a non-exclusive list of factors as part of a

less-stringent test designed to ensure that the factfinder is presented with scien-

tific knowledge which will assist it to understand or determine a fact in issue.

The federal and state jurisdictions, with the exception of the military appellate

courts, have failed to fully consider the Sixth Amendment implications of per

se exclusions of defense proffered polygraphs.

In the post-Daubert period, several federal circuits have recognized that

polygraph evidence has advanced in reliability as the technology evolved and

will admit stipulated results into evidence. E.g., United States v. Piccinonna,

885 F.2d 1529 (11th Cir. 1989) (en banc). The majority of state and federal

courts continue to exclude polygraphs regardless of whether Daubert or Frye

is applied to the admissibility question. See generally State v. Dean, 307

N.W.2d 628 (Wis. 1981); State v. Jones, 446 S.E.2d 696 (N:C. 1996); United

States v. Alexander, 526 F.2d 161 (8th Cir. 1975). The jurisdictions which

admit polygraph expertise require a stipulation, see State v. Valdez, 371 P.2d

894 (Ariz. 1962) (in banc) and Piccinonna, with the exception of New Mexico,

which has admitted polygraphs through a combination of case law and judicial

promulgation of rules of evidence. See State v. Dorsey, 539 P.2d 204 (N.M.

1975) (held that polygraphs are admissible if the operator is qualified, the test-

ing were reliable, and the test of the particular subject was valid),

N.M. Stat. Ann. § 11-707 (Michie 1993).

Although the military is a “specialized society separate from civilian soci-

ety,” the burden is on the Government to justify the denial of constitutional

protections. See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 22

(1955). Polygraph evidence is not beyond the comprehension of military

———

courts given the admission of other types of far more problematic scientific

evidence. The Government has failed to demonstrate that servicemembers are

not entitled to present a defense, specifically exculpatory polygraphs.

This Court has yet to consider the impact that the Sixth Amendment will

have on Federal Rule of Evidence 702? given the limited scope of Daubert’s

civil law focus. The Court has applied the Sixth Amendment where

to protect due process rights. See Washington v. Texas, 388 U.S. 14 (1967)

(state statute concerning incompetency of codefendants invalid); Chambers v.

Mississippi, 410 U.S. 284 (1973) (state hearsay rule compromises an accused's

right to call witnesses); Rock v. Arkansas, 483 U.S. 44 (1987) (per se exclusion

of evidence unconstitutional despite state’s legitimate interest in barring unreli-

able evidence). Military Rule of Evidence 707 excludes polygraphs per se and

therefore violates Airman Scheffer’s due process rights given the rule’s cate-

gorical exclusion.

This Court is at a critical juncture, one where scientific expertise collides

head-on with the Sixth Amendment. The Court should recognize the accused's

right to lay a foundation for the presentment of exculpatory polygraph evi-

dence at trial. To that end, the amicus offer a proposed preliminary due

process Daubert factor for trial judges to apply in criminal cases:

The defense will be granted the opportunity to lay a founda-

tion for the presentment of science-based expert evidence

under a Daubert/Rule 403 analysis where the proffered evi-

dence is relevant to a constitutional right of the accused.

Admission of such proffered expertise is presumed in cases

affecting a valid constitutional right and where the defense

demonstrates the reliability of the technique.

The proposed due process factor would operate to allow the respondent an

opportunity to lay a foundation toward the admission of exculpatory poly-

graphs, a scientifically-based technique. Admission of the results in the case

sub judice would be presumed given the reliability of this polygraph, per-

formed at the behest of a Government law enforcement agency. In conclusion,

Airman Scheffer’s Sixth Amendment right to present a defense cannot be evis-

cerated by a mechanical per se exclusionary rule of evidence, and the trial

ee ee

2 Federal Rule of Evidence 702 and Military Rule of Evidence 702 are identical.

[Hereinafter, both rules will be referred to collectively as Rule 702.]

ARGUMENT

1. DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC.,

COMPELS CRIMINAL COURTS TO CONSIDER ADMISSION

OF POLYGRAPH EVIDENCE

Polygraph expertise, the pariah of scientific evi Jence, has long bee> the

bane of criminal courts since 1923, when the “geixeral acceptance” test was

adopted as a significant admissibility hurdle for proponents of scientific evi-

dence. Frye, 293 F. 1013 (D.C. Cir. 1923). Under the anachronistic assump-

tion of the polygraph’s failure to be generally accepted in the scientific com-

munity, most jurisdictions have treated this evidence with outright contempt.’

Since Frye, many courts and commentators have ignored significant advances

in the field, preferring to liken polygraph expertise to the chance associated

with a coin flip.*

The rules regarding expert evidence radically changed with this Court’s

opinion in Daubert, when this Court rejected the Frye test in favor of a less

stringent test to ensure that the factfinder is presented with scientific knowl-

edge which will assist it to understand or determine a fact in issue.° The fed-

eral courts could no longer refiexively disregard polygraph evidence because it

was not generally accepted in the scientific community. Yet, the roadblocks for

polygraph evidence remain entrenched despite the plethora of other judicially

acceptable expert fields.° Scientific acceptance aside, the federal and state

3 Peterson v. State, 247 S.W.2d 110 (Tex. Crim. App. 1951); Lee v Commonwealth, 10S

S.E.2d 152 (Va. 1952); see also section I, infra. 7

+ See generally Commonwealth v. Mendes, 574 N.E.2d 35, 39 (Mass. 1989) (citing D.

Lykken, The Lie Detector and the Law, 8 Crim. Def. 19, 26 (1981)); see also Britton v.

Farmers Ins. Group, 721 P.2d 303, 314 (Mont. 1986) (judge denied polygraph evidence

after expert, Dr. Lykken, testified that “polygraph results have ‘zero probative value and

that allowing polygraph evidence in the courtroom would be on a par to allowing testimony

of astrologers and fortune tellers”); and W. lacono & D. Lykken, “The Scientific Status of

Research on Polygraph Techniques: The Case Against Polygraph Tests,” 1 Modern

Scientific Evidence (D. Faigman et al. eds., 1997). -

5 “Many factors will bear on the inquiry and we do not presume to sei out a definitive

checklist or test” to include: whether the theory or technique can be tested, whether it has

been subjected to peer review and publication, the known or potential rate of error, and

whether it has been generally accepted within the relevant scientific community. Daubert,

509 U.S. at 593-94.

© Other expert evidence of controversial scientific reliability has been accepted by the

courts. See, ¢.g., United States v. Tsinnijinnie, 91 F.3d 1285 (9th Cir. 1996) (no abuse of

discretion for admission of psychological evidence of child abuse); White v. leyoub, 25

F.3d 245 (Sth Cir. 1994) (upholding the admission of post-hypnotic identification by vic-

tim); United States v. Houser, 36 MJ. 392, 399 (C.M.A. 1993) (permitting testimony

jurisdictions, with the exception of the military appellate courts, have failed to

consider the Sixth Amendment implications in per se exclusions of defense

proffered polygraphs.

In 1987, the United States Court of Military Appeals (now the United States

Court of Appeals for the Armed Forces [hereinafter Armed Forces court]) rec-

ognized the scientific validity of polygraphy in United States v. Gipson, 24

M.J. 246 (C.M.A. 1987), superseded by Mil. R. Evid. 707. This landmark

decision included language noting the “state of polygraph techniques is such

that . . . results of a particular examination may be as good or better than a

good deal of expert and lay evidence that is routinely and uncritically received

in criminal trials.” Jd. at 253. As the facts demonstrated, Gipson, like most

polygraph cases, involved disagreement between prosecution and defense

experts as to the results but not to the underlying scientific foundation.’ The

insightful Gipson court concluded, well in advance of Daubert, that the Frye

standard of expert admissibility had been “superseded and ‘should be rejected

as an independent controlling standard of admissibility.” Jd. at 251 (quoting

United States v. Downing, 753 F.2d 1224, 1233-37 (3d Cir. 1985)). The oft-

repeated argument that polygraphy is not generally accepted within the scien-

tific community fell on deaf ears at the Armed Forces court given the advances

in the field since the 1923 Frye decision.

A. A substantial number of jurisdictions admit polygraph exper-

tise without regard for the defendant’s Sixth Amendment right

to present a defense

While the majority of jurisdictions have held polygraphs inadmissible,

many state and federal courts have applied a stipulation requirement in admit-

ting such evidence. The jurisdictions utilizing stipulations often apply other

requirements such as written agreements, judicial discretion, and special jury

instructions. Those courts which agree to stipulated results cannot now logi-

cally complain about any alleged unduly prejudicial impact on the jury’s delib-

regarding the “typical” symptoms of rape trauma syndrome by expert who had not exam-

ined the victim in the case); United States v. Antone, 981 F.2d 1059 (9th Cir. 1992) (permit-

ting child sexual-abuse expert testimony); Arcoren v. United States, 929 F.2d 1235, 1239-41

(Om Cie. 1991) (permitting evidence of battered woman syndrome).

Both the defense and prosecution, which had offered to stipulate to the defense polygra-

pher’s expertise, conducted polygraphs on the accused resulting in different conclusions.

Gipson, 24 M.J. at 247.

j

erations.® At the forefront of the polygraph issue stands New Mexico with a

comprehensive statutory scheme regarding admission. No federal or state case

law expressly recognizes the Sixth Amendment rights at stake in the case at

bar.

1. Several federal circuits currently accept polygraphs

Prior to the Supreme Court’s decision in Daubert, the federal circuits gener-

ally adhered to the traditional approach of per se inadmissibility of polygraph

evidence. E.g., United States v. Bortnovsky, 879 F.2d 30, 35 (2d Cir. 1989).°

Despite general hostility toward polygraph evidence, however, some federal

courts did allow the introduction of such evidence when it was admitted to

prove a fact other than truthfulness. E.g., United States v. Kampiles, 609 F.2d

1233, 1244-45 (7th Cir. 1979) (admissible to rebut assertion of coerced confes-

sion).'° In the 1980's, some federal circuits also recognized that polygraph

results could be accepted into evidence when the parties stipulated to admissi-

bility. E.g., Piccinonna, 885 F.2d 1529."

* Petitioner asserts that polygraph evidence intrudes on the functions performed by the trier

of fact because it is “shrouded with an aura of near infallibility, akin to the ancient oracle of

Delphi.” See Petitioner’s Brief at 26 (quoting United States v. Alexander, 526 F.2d 161, 168

(8th Cir. 1975)). However, “[o}ne fear we [in the military justice system] do not have is

that factfinders will be overwhelmed by polygraph testimony. The concern commonly

expressed in that regard is that factfinders will place undue reliance on the myth of scientific

infallibility, thereby deferring their historic function to the experts. A number of recent

Studies refute that contention, and their authors conclude that juries generally are capable of

evaluating polygraph evidence and giving it due weight.” Gipson, 24 MJ. at 253, n.11.

* See also United States v. Soundingsides, 820 F.2d 1232, 1241 (10th Cir. 1987); United

States v. Brevard, 739 F.2d 180, 182 (4th Cir. 1984); United States v. Fife, 573 F.2d 369 (6th

Cir. 1976); United States v. Skeens, 494 F.2d 1050 (D.C. Cir. 1974); United States v.

Frogge, 476 F.2a 969, 970 (Sth Cir. 1973).

"© See also Underwood v. Colonial Penn. Ins. Co., 888 F.2d 588 (8th Cir. 1989) (admissible

to show motive, plan, scheme or design under Rule of Evidence 404(b)); United States v.

Miller, 874 F.2d 1255, 1261 (9th Cir. 1989); United States v. Lynn, 856 F.2d 430, 432-33

(ist Cir. 1988) (terms of accomplice-witness’ plea agreement, including requirement of

polygraph test, admissible to show motive to fabricate); United States v. Bowen, 857 F.2d

1337, 1341 (9th Cir. 1988); United States v. Johnson, 816 F.2d 918, 923 (3d Cir. 1987)

(admissible to rebut assertion of coerced confession); United States v. Hall, 805 F.2d 1410,

1416 (10th Cir. 1986) (admissible to explain why police did not conduct more

investigation); United States v. Yeo, 739 F.2d 385, 388 (8th Cir. 1984); Tyler v. United

States, 193 F.2d 24 (D.C. Cir. 1951) (admissible to rebut assertion of coerced confession).

"! See also Wolfel v. Holbrook, 823 F.2d 970, 972 (6th Cir. 1987); Brown v. Darcy, 783 F.2d

1389, 1396 n.13 (9th Cir. 1986); Alexander, 526 F.2d at 166.

o

Noting tremendous advances in polygraph instrumentation and technique,

the Eleventh Circuit became the first in the federal system to prescribe an

approach to allow the admission of polygraph testimony. In Piccinonna, the

Eleventh Circuit outlined two instances where polygraph evidence may be

admitted at trial. Jd. at 1536. First, polygraph evidence is admissible when

both parties stipulate in advance as to the circumstances of the test and the

scope of its admissibility. Jd. Second, polygraph evidence may be admitted to

impeach or corroborate the testimony of a witness at trial. /d. If the second

approach is used, the offering party must provide adequate notice to the oppos-

ing party, as well as reasonable opportunity to have its own polygraph expert

administer a test covering substantially the same questions. /d. In addition, the

admissibility of corroboration or impeachment testimony is governed by the

Federal Rules of Evidence. For example, evidence that a witness passed a

polygraph examination, used to corroborate that witness’ in-court testimony,

would not be admissible under Rule 608 unless and until the credibility of that

witness has been attacked. Jd. Even if these conditions are met, trial courts

retain the discretion to exclude polygraph evidence on other grounds under the

Federal Rules of Evidence, such as Rules 401 and 403. /d.

The first federal court of appeals to reconsider the admissibility of poly-

graph evidence in light of Daubert was the Fifth Circuit, in United States v.

Posado, 57 F.3d 428 (Sth Cir. 1995). In Posado, the trial court refused to con-

sider the admissibility of polygraph results offered by the defendants to prove

that they were truthful when they denied consenting to a police search of their

luggage. Jd. at 431. The Fifth Circuit determined that a per se rule against

polygraph evidence was incompatible with Daubert. Id. at 434. The Court

proposed no other rule in its place, but rather authorized district courts to con-

duct reliability assessments of polygraph evidence. Id. at 432-34. Posado did

emphasize, however, that Federal Rule 403 would play “an enhanced role” in

connection with the admission of any novel scientific evidence, including poly-

graph results. /d. at 435-36 (noting that procedures followed by defendants

reduced the possibility of unfair prejudice and increased reliability).'?

_ Like the Fifth Circuit, other federal courts also have recognized that while

'2 After Posado, the Fifth Circuit again examined a district court’s exclusion of polygraph

evidence in United States v. Pettigrew, 77 F.3d 1500 (Sth Cir. 1996). The Court held that

the district court did not need to evaluate the scientific validity of the evidence under

Daubert because the evidence could be excluded on other grounds. /d. at 1515 (defendant’s

offer failed to show evidence would assist the trier of fact to understand the evidence or

determine a fact in issue).

Daubert invalidated the Frye test, it did not preclude other rules from exclud-

ing polygraph evidence. United States v. Cordoba, 104 F.3d 225, 228 (9th Cir.

1996) (recognizing that trial judge should evaluate admission under Rule 403);

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

under Rule 403 because test questions were inherently ambiguous); United

States v. Sherlin, 67 F.3d 1208, 1216-17 (6th Cir. 1995) (evidence excluded

under Rule 403 where opposing party unaware of test until after its comple-

tion); United States v. Pulido, 69 F.3d 192, 205 (7th Cir. 1995) (evidence

~ excluded because polygraph results were peripheral to the “core issues” of the

case and proponent was otherwise able to successfully impeach witness); Conti

v. Commissioner, 39 F.3d 658, 662 (6th Cir. 1994) (evidence excluded under

Rule 403 because evidence was “unilaterally obtained”).

_ 2, New Mexico’s comprehensive scheme for admission of poly-

graph evidence is a model for all jurisdictions to emulate

_ With its opinion in State v. Dorsey, 539 P.2d 204 (N.M. 1975), the Supreme

Court of New Mexico initiated the only sustained period of general admission

of polygraph results in any United States jurisdiction. In Dorsey, the New

Mexico Supreme Court held that polygraph results are admissible if (1) the

operator is qualified, (2) the testing procedures were reliable, and (3) the test of

the particular subject was valid. /d. at 205. 4

In 1983, the Supreme Court of New Mexico promulgated New Mexico

Rule of Evidence 11-707, establishing a comprehensive scheme for admitting

polygraph evidence.'? N.M. Stat. Ann. § 11-707 (Michie 1993)."* In State v.

Sanders, 872 P.2d 870 (N.M. 1994), the New Mexico Supreme Court held that

'3 New Mexico adopted Federal Rule of Evidence 702. N.M. Stat. Ann. § 11-702 (Michie

1993). New Mexico utilizes Daubert in determining admissibility of non-polygraph scien-

tific evidence. State v. Alberico, 861 P.2d 192 (N.M. 1994).

'* Currently, Rule 11-707 governs admissibility. State . Baca, 92 P.2d 65, 70 (N.M.

1995). Rule 11-707 permits admission of polygraph evidence as. to the truthfulness of any

person called as a witness, provided that certain reliability requirements are met. N.M. Stat.

Ann. § 11-707(c). The examination must be conducted by a qualified examiner who has at

least five years experience administering or interpreting examinations or equivalent acade-

mic training, as well as at least twenty hours of continuing education during the twelve

months prior to the examination offered in evidence. N.M. Stat. Ann. § 11-707(b). The

examination must include at least two relevant questions, at least three charts and be quanti-

tatively scored. N.M. Stat. Ann. § 11-707(c). The pretest interview and actual testing must

be recorded on an audio or video recording device. N.M. Stat. Ann. § 11-707(e). Finally,

the party intending to offer the evidence generally must provide thirty-day's written notice

to the other party, including copies of the examiner's report, each chart, the audio or video

recording of the pretest interview #nd actual testing, and a list of any prior examinations

taken by the subject. N.M. Siat. Ann. § 11-77(d).

—~

the trial court did not violate a defendant's right of confrontation by refusing to

admit polygraph evidence of unproven reliability, where the defendant did not

comply with the procedural requirements of Rule 11-707. The Court stated

that “[a] defendant's right to present evidence on his own behalf is subject to

his compliance with ‘established rules of procedure and evidence designed to

assure both fairness and reliability in the ascertainment of guilt and inno-

cence.’” Jd. at 877-78 (citing Chambers v. Mississippi, 410 U.S. at 302).

Although Rule 11-707 establish detailed requirements to promote poly-

graph validity, the court refused to follow a mechanical application of the rule

and allowed the introduction of exculpatory polygraph evidence in State v.

Baca, 902 P.2d 65 (N.M. 1995). Despite the defendant's failure to follow the

notice requirements of Rule 11-707, the court held that justice and fairness dic-

tated admission where the State administered the exam, knew of the results,

naa to call the test administrator as a witness.

at 70.

New Mexico's comprehensive approach regarding admissibility of poly-

graph evidence is fair to all parties and ensures to the greatest extent possible

the reliability of such evidence. Given New Mexico's broad admissibility of

polygraph evidence, its courts have not had occasion to consider the constitu-

tional ramifications of excluding such evidence. New Mexico’s approach

should be emulated by all jurisdictions. '*

3. Stipulated polygraph results are admissible in many states

Alabama: The Supreme Court of Alabama permits the admission of poly-

graph evidence upon stipulation of the parties, subject to certain conditions

which relate to the accused’s knowledge of his rights thereunder and the trial

court's discretion relating to the conduct of the test itself. Ex parte Clements,

447 So.2d 695 (Ala. 1984); see also Hinton v. State, 548 So.2d 547 (Ala. Crim.

App. 1988), aff'd sub nom Ex parte Hinton, 548 So.2d 562 (Ala. 1989).

Alabama has not reexamined this issue since Daubert was decided. '®

Arizona: The State of Arizona led the way in establishing explicit guide-

lines for party agreements concerning admissibility of polygraph evidence.

'S See James R. McCall, Misconceptions and Reevaluation — Polygraph Admissibility

After Rock and Daubert, 1996 U. Ul. L. Rev. 363, 388 (“The New Mexico Supreme Court's

comprehensive treatment of the important issues in polygraph admissibility in Rule 11-707

should become a model! solution for courts to review in reconsidering the admissibility of

such tests. In the treatment of technical aspects of polygraph examination protocol, the rule

goes far beyond the case law or statutes of any other jurisdiction in pr viding usable stan-

dards.”); see also amicus’ proposed additional Daubert factor, infra at section ILD.

"© Alabama has adopted federal Rule 702, Al. R. Evid. 202, and applies Frye. See Ex

parte Perry, 586 So.2d 242 (Ala. 1991).

10

The Arizona Supreme Court held that polygraph evidence is admissible upon

stipulation in criminal cases, when introduced to corroborate other evidence of

a defendant's participation in the crime charged or to corroborate or impeach

the testimony of a defendant. State v. Valdez, 371 P.2d 894 (Ariz. 1962) (in

banc). Valdez articulated certain qualifications for admissibility:

(1) any stipulation must be in writing;

(2) notwithstanding any stipulation, admissibility is subject to the trial

judge’s discretion;

(3) the opposing party retains the right to cross-examine the expert; and

(4) the trial judge should provide a detailed instruction to the jury concern-

ing the weight of the evidence and the purpose for which it is admitted. /d. at

900-01.

In State v. Tinajero, 935 P.2d 928, 931 (Ariz. Ct. App. 1997), the court reit-

erated that “[e]vidence regarding polygraph examination is inadmissible absent

a stipulation by the parties.”'”

Arkansas: Arkansas is a polygraph stipulation state. Misskelley v. State,

915 S.W.2d 702, 715 (Ark. 1996); Houston v. State, No. CR 87-85, 1988 WL

14162 (Ark. Feb. 22, 1988) (per curiam); Golston v. State, 762 S.W.2d 398

(Ark. Ct. App. 1988).'* Arkansas enacted a statute in 1975 stating that “[t}he

results of any such examination as provided in this subchapter shall be inad-

missible in all courts in this state.” Ark. Code Ann. § 12-12-701 (Michie

1987). However, “the Arkansas Supreme Court has not interpreted this statute

literally; rather, such test results are only admissible if both parties enter into a

written stipulation agreeing on their admissibility.” Houston v. Lockhart, 982

F.2d 1246, 1251 (8th Cir. 1993); see also Wingfield v. State, 796 S.W.2d 574

(Ark. 1990) (polygraph stipulation must be in writing).

California: California curently holds that evidence of a polygraph exam is

admissible only upon stipulation by the parties. Polygraph evidence was inad-

missible until 1982. People v. Jones, 343 P.2d 577 (Cal. 1959); People v.

Houser, 193 P.2d 937 (Cal. Dist. Ct. App. 1948). In 1982, a California Court

of Appeal criticized prior cases which did not question the validity of the inad-

missibility determinations. Witherspoon v. Superior Court, 183 Cal. Rptr. 615

(Cal. Dist. Ct. App. 1982) (authorizing evidentiary hearings on reliability of

polygraphs). The court noted that the term “unreliable” as applied to poly-

graphs is “an almost ‘knee jerk’ response, continued some sixty years since the

original Frye decision, . . . [with judges] subjectively favor[ing] one side of a

'” Arizona's rule of evidence for the testimony of experts follows Federal Rule 702. Ariz.

R. Evid. 702. Despite Daubert, Arizona continues to apply Frye to admissibility of scien-

tific evidence. State v. Bible, 858 P_2d 1152 (Ariz. 1994).

'* Arkansas adopted the Federal Rules of Evidence and follows Daubert. Ark. R. Evid.

702; Jones v. State, 862 S.W.2d 242 (Ark. 1993).

1]

dispute ....” Jd. at 618. In 1983, the California legislature passed a statute

which declared that polygraph evidence would be inadmissible without stipula-

tions. Cal. Evid. Code § 351.1; see also People v. Aontae D., 30 Cal. Rptr. 2d

176 (Cal. Ct. App. 1994) (upholding constitutionality of statute).'®

Delaware: Absent a stipulation, polygraph examinations are held inadmis-

sible in Delaware. Thompson v. State, 399 A.2d 194 (Del. 1979); see also

Melvin v. State, 606 A.2d 69, 71 (Del. 1992) (admissible “when the

tion and the defendant both stipulate to the admissibility”); Foraker v. State,

394 A.2d 208 (Del. 1978).”°

Florida: In Florida, polygraph results were completely inadmissible to

prove the guilt or innocence of a defendant. Kaminski v. State, 63 So.2d 339

(Fla. 1952). The current rule is that polygraph results are admissible upon the

agreement or stipulation of the parties. Davis v. State, 520 So.2d 572 (Fla.

1988); Delap v. State, 440 So.2d 1242 (Fla. 1983).?!

Georgia: The first Georgia case to explicitly hold polygraph evidence

admissible upon stipulation was State v. Chambers, 239 S.E.2d 324 (Ga.

1977). Accord Forehand v. State, 477 S.E.2d 560 (Ga. 1996). This ruling

overturned Georgia's per se inadmissibility policy. Famber v. State, 213

S.E.2d 525 (Ga. Ct. App. 1975).

Idaho: The general rule in Idaho is that a polygraph examination is not

admissible into evidence absent stipulation by both parties, even if exculpatory.

State v. Fain, 774 P.2d 252 (Idaho 1989); accord State v. Grube, 883 P.2d 1069

(Idaho 1994). When parties do stipulate to admissibility, the trial court retains

discretion to exclude evidence if it finds that an examiner was not qualified or

774 P.2d at 257.4

Indiana: An expert may testify regarding polygraph examination results,

'* California has not adopted federal Rule 702 and rejected Daubert, a: applied to its evi-

State v. Ruthardt, 680 A.2d 349 (Del. Super. Ct. 1996).

2! The Florida statute regarding evidence is virtually identical to Federal Rule 702. Fla.

Stat. ch. 90.702 (1994). The Florida Supreme Court rejected Daubert’s flexible standard of

admissibility in favor of the stringent general acceptance Frye test for scientific evidence.

Flanagan v. State, 625 So.2d 827 (Fla. 1993).

2 The Georgia Code appears to reflect the intent of federal Rule 702, and under state case

law, supports a Daubert standard for admitting scientific evidence. Ga. Code Ann. § 24-9-

67 (1995); Chester v. State, 473 S.E.2d 759 (Ga. 1996) (Hunstein, J., concurring specially)

(citing Smith v. State, 277 S.E.2d 678 (Ga. 1981)).

Idaho follows the Federal Rules of Evidence. Idaho R. Evid. 702. Idaho has not

addressed Daubert but follows a similar standard. State v. Gleason, 844 P.2d 691 (Idaho

1992).

12

provided the parties stipulate to admissibility. McDonald v. State, 328 N.E.2d

436 (Ind. Ct. App. 1975). This represents a modification of the general inad-

missibility rule articulated in Zupp v. State, 283 N.E.2d 540 (Ind. 1972).*4

lowa: State v. McNamara, 104 N.W.2d 568 (lowa 1960), is the leading

case in lowa on the admissibility of polygraph evidence when there is an

agreement between the parties. See also State v. Losee, 354 N.W.2d 239, 242

(lowa 1984) (exculpatory polygraph excluded due to absence of stipulation).

The Supreme Court of lowa has not expressed if Daubert applies to all scien-

tific evidence but has followed the standard in the cases to date. Williams v.

Hedican, 561 N.W.2d 817, 827 (lowa 1997) (examined a civil case under

Danbere analysis because neither party objected to using that standard at

trial).

Kansas: The Kansas Supreme Court held that polygraph results are inad-

missible without a stipulation in State v. Lassley, 545 P.2d 383 (Kan. 1976).

Accord State v. Clemons, 929 P.2d 749 (Kan. 1996). The requirements for

admission are, first, a prior stipulation of the parties, and second, the trial

judge’s satisfaction that the examiner was qualified and that the test was con-

ducted under proper conditions. Lassley, 545 P.2d at 385.7° Further proce-

dural requirements were established by the Kansas Supreme Court in State v.

Roach, 576 P.2d 1082 (Kan. 1978) (e.g., written stipulation required; may

cross-examine expert).

Nevada: In the absence of a stipulation, polygraph evidence is inadmissi-

ble in Nevada. Corbett v. State, 584 P.2d 704 (Nev. 1978) (relying on State v.

Valdez, 371 P.2d 894 (Ariz. 1962) (in banc)); accord Domingues v. State, 917

P.2d 1364 (Nev. 1996); American Elevator Co. v. Briscoe, 572 P.2d 534 (Nev.

1977) (absent stipulation, polygraph inadmissible to impeach or to corroborate

witness’ testimony).?7

New Jersey: New Jersey courts will admit polygraph evidence pursuant to

a carefully drafted stipulation. State v. Baskerville, 374 A.2d 441 (NJ. 1977),~

State v. McDavitt, 297 A.2d 849 (NJ. 1972). At one time, polygraphs were

** Although not viewed as binding, Indiana recognizes the Daubert standard as “he!pful” in

applying Indiana Rule of Evidence 702. Ind. R. Evid. 702. McGrew v. State, 673 N.E.2d

787, 797 (ind. Ct. App. 1996).

> jowa follows the Federal Rules of Evidence. lowa R. Evid. 702.

» Kansas has a rule of evidence which is similar, though not identical, to federal Rule 702.

Kan. Stat. Ann. § 60-456 (1994). Kans as still holds that the Frye standard governs admissi-

bility of expert scientific evidence. Armstrong v. City of Wichita, 907 P.2d 923 (Kan. Ct.

1996).

on FOE EA ge

Nev. Rev. St. Ann. § 50. 285 (1996). Rather than adopt Frye, Nevada enacted statutes that

set standards similar to Daubert. Scantillanes v. State, 765 P.2d 1147 (Nev. 1988).

13

inadmissible in criminal cases. State v. Driver, 183 A.2d. 655 (N.J. 1962).28

North Dakota: While the state Supreme Court generally holds polygraph

evidence inadmissible, State v. Pusch, 46 N.W.2d 508 (N.D. 1950); State v.

Newnam, 409 N.W.2d 79 (N.D. 1987), lower courts have suggested polygraphs

may be admissible at trial by stipulation of the parties. City of Bismarck v.

Berger, 465 N.W.2d 480, 481 (N.D. Ct. App. 1991). Additionally, in ruling on

a motion for new trial, the trial court must consider stipulated polygraph test

results. State v. Olmstead, 261 N.W.2d 880 (N.D. 1978); Healy v. Healy, 397

N.W.2d 71, 74 n.1 (N.D. 1986).?°

Ohio: Ohio permits polygraph results based on the same restrictions estab-

lished in State v. Valdez, 371 P.2d 894 (Ariz. 1962) (in banc). Accord State v.

Souel, 372 N.E.2d 1318 (Ohio 1978); State v. Hesson, 675 N.E.2d 532, 541

(Ohio Ct. App. 1996). Some Ohio cases also have held polygraph results to be

admissible where they were offered for a other than to establish truth-

fulness. State v. Kniep, 622 N.E.2d 1138, 1142 (Ohio Ct. App. 1993).

Utah: Utah will admit polygraphs by stipulation. State v. Jenkins, 523 P.2d

1232 (Utah 1974); State v. Rowley, 386 P.2d 126 (Utah 1963). A later case,

State v. Collins, 612 P.2d 775 (Utah 1980), held that even if there is a stipula-

tion, admissibility must be premised upon proof of the examiner’s qualifica-

tions and the validity of the examination.>*!

Washington: The state of Washington accepts polygraph evidence when

the parties stipulate, in writing, to its admission. State v. Ross, 497 P.2d 1343,

1347-48 (Wash. 1972); accord State v. Gregory, 910 P.2d S05 (Wash. 1996).22

Wyoming: In Cullin v. State, 565 P.2d 445, 455 (Wyo. 1977), the

= New Jersey has not adopted the Federal Rules of Evidence, and the State generally fol-

lows the Frye standard. State v. Kelly, 478 A.2d 364 (NJ. 1984); State v. Dishon, 687 A.2d

1074 (N.J. Super. Ct. App. Div. 1997).

* North Dakota has adopted Fed. R. Evid. 702. N.D. R. Evid. 702. In City of Fargo v.

McLaughlin, 512 N.W.2d 700 (N.D. 1994), the Supreme Court of North Dakota acknow!-

edged the Daubert decision, but ultimately applied Frye.

* Ohio follows the Federal Rules of Evidence. Ohio R. Evid. 702. A test for admissibility

of scientific evidence is similar to Daubert. State v. Pierce, 5¥7 N.E.2d 107 (Ohio 1992).

*! Utah's rule of evidence is identical to the Fed. R. Evid. 702. Utah R. Evid. 702. The

Utah Supreme Court initially abandoned its exclusive reliance on Frye in favor of an

“inherent reliability” test in Phillips v. Jackson, 615 P.2d 1228 (Utah 1980). See also State

¥ Rimmasch, 775 P.2d 388 (Utah 1989). This test “provides a more detailed and rigorous

outline for trial courts to follow” than the Daubert standard. State v. Crosby, 927 P.2d 638,

oe, (Hush 1996) (record failed to demonstrate that » polygraph lacking stipulation was reli

»

%2 Washington follows federal Rule 702. Wash. R. Rev. ER 702. In State v. Jones, 922

P.2d 806, 808 (Wash. 1996), the Washington Supreme Court followed the Frye standard of

general acceptance for scientific evidence.

14

Wyoming Supreme Court recognized the admissibility of stipulated polygraph

tests, but allowed for judicial discretion prior to their introduction. See also

Schmunk v. State, 714 P.2d 724, 731 (Wyo. 1986) (“In the absence of a stipula-

tion for admission, a conviction must be reversed when the results of a poly-

graph are revealed to the jury”).*°

B. Polygraph evidence is inadmissible per se in the majority of

States

Very few states falling within the “inadmissible” category have addressed

the constitutional ramifications of a per se rule precluding an otherwise reliable

polygraph proffered by the defense. See, e.g., Perkins v. State, 902 S.W.2d

(Tex. Ct. App. 1995); State v. Porter, No. SC 15363, 1997 WL 26502 (Conn.

May 20, 1997).

Alaska: Polygraph tests have not yet been judicially accepted by Alaska

appellate courts for use in criminal trials. Troyer v. State, 614 P.2d 313 (Alaska

1980); Pulakis v. State, 476 P.2d 474 (Alaska 1970).*4

Colorado: Colorado employed the Frye test in 1981 and ruled that poly-

graphs were inadmissible. People v. Anderson, 637 P.2d 354, 358 (Colo. 1981)

(en banc). Recently, in People v. Lyons, 907 P.2d 708 (Colo. Ct. App. 1995),

the Colorado Court of Appeals rejected the argument that Daubert necessitated

a change in polygraph admissibility. “Daubert concerned only the interpreta-

tion of the federal rules of evidence and was not decided on constitutional

. Hence, it is not binding on Colorado courts .... [While (Colo. R.

Evid.] 702 applies to certain types of novel scientific evidence, the Frye test

still applies to polygraph evidence.” Id. at 712 (citing Lindsey ». People, 892

P.2d 281 (Colo. 1995)) (other citations omitted).

Connecticut: The Supreme Court of Connecticut recently applied Daubert

in rejecting the admissibility of polygraph tests. Porter, 1997 WL 26502, at

*6 . “We see no reason to abandon our well established rule of exclusion, and

we conclude that polygraph evidence should remain per se inadmissible in all

trial court proceedings in which the rules of evidence apply, and for all trial

purposes, in Connecticut courts.” Id. at *18.*°

District of Columbia: The District of Columbia is a per se inadmissible

33 Wyoming adopted federal Rule 702, and it applies Daubert. Wyo. R. Evid. 702;

Springfield v State, 860 P24 435 (Wyo. 1993),

Alaska

federal Rule 702. Ak. R. Evid. 702. Alaska continues to follow Frye.

Mattox v. State Dep't of Revenue, 875 P.2d 763 (Alaska 1994).

35 Colorado Rule of Evidence 702 is identical to federal Rule 702 regarding scientific evi-

dence admissibility. Colo. R. Evid. 702. |

% Connecticut does not follow the Federal Rules. /d. at *33 (Berdon, J., concurring).

15

state. This policy was first established in Smith v. United States, 389 A.2d

1356, 1359 (D.C. 1978). Accord Contee v. United States, 667 A.2d 103, 104

n.4 (D.C. 1995.9”

Hawaii: The current state of the law in Hawaii is that polygraph evidence

is per se inadmissible. State v. Antone, 615 P.2d 101, 109 (Haw. 1980); State v.

Chang, 374 P.2d 5, 11 (Haw. 1962).°8

Illinois: Illinois is currently a per se inadmissible state with regards to

polygraph evidence. Initially, stipulated polygraph evidence was acceptable.

People v. Zazzetta, 189 N.E.2d 260, 263 (Ill. 1963) (rejecting, without stipula-

tions, the results of polygraph examinations); People v. Ferguson, 405 N.E.2d

21, 25 (Ill. App. Ct. 1980). The stipulation approach was rejected in People v.

Baynes, 430 N.E.2d 1070 (Ill. 1981) (citing Alexander, 526 F.2d at 168). Most

recently, this rule of inadmissibility was reaffirmed by the Illinois Supreme

Court in People v. Gard, 632 N.E.2d 1026, 1032 (Ill. 1994); cf. People v.

Melock, 599 N.E.2d 941 (Il. 1992) (polygraph admissible where relevant to an

issue other than truthfulness).*?

Kentucky: In 1991, Kentucky held that polygraph evidence is inadmissi-

ble. Morton v. Commonwealth, 817 S.W.2d 218, 222 (Ky. 1991) (“under no

circumstances should polygraph results be admitted into evidence”). The

Kentucky Supreme Court specifically overruled Workman v. Commonwealth,

580 S.W.2d 206 (Ky. 1979) and Colbert v. Commonwealth, 306 S.W.2d 825

(Ky. 1957), both of which had stated that polygraph results could be admissible

if there were stipulations. Morton, 817 S.W.2d at 222.”

Louisiana: Polygraphs are inadmissible despite greater discretion given to

trial judges for consideration of scientific evidence. State v. Catanese, 368

So.2d 975, 981 n.19 (La. ety ch ann eae tan mar Se

evidence in the present case are more compelling than the evidentiary rules

relied upon in [Chambers v. Mississippi).”); see also State v. Foret, 628 So.2d

1116, 1123 (La. 1993). The Catanese court held that polygraph evidence could

37 “Although there has been some suggestion that the District of Columbia abandon Frye in

favor of Federal Rule of Evidence 702, the District of Columbia remains, to this point, a

Frye jurisdiction.” Oxendine v. Merrell Dow Pharm., Inc., Civ. No. 82-1245, 1996 WL

680992, at *34 (D.C. Super. Oct. 24, 1996) (mem. op.).

% Hawaii's evidence statute is almost identical to the Federal Rules of Evidence. See Haw.

Rev. Stat. § 626.1, Rule 702 (1995). While not addressing Daubert, Hawaii uses a similar

tule. State v. Montalbo, 828 P.2d 1274 (Haw. 1992).

® Illinois does not follow the Federal Rules of Evidence; it rejected Daubert and continues

to follow Frye. People v. Lowitzki, 674 N.E.2d 859 (Ill. App. Ct. 1996).

“ Kentucky's Rule 702 is identical to federal Rule 702, but it was enacted in 1992 after the

Morton decision. Ky. R. Evid. 702. ee ee

Kentucky adopted the Daubert standard of review for admissibility of scientific evidence.

Mitchell v. Commonwealth, 908 S.W.2d 100, 101 (Ky. 1995).

16

be admissible in the future, but that “there has not yet been enough judicial

experience with polygraph evidence in Louisiana to provide an adequate basis

for judicial rule making on this scale.” 368 So.2d at 982.4! In an interesting

juxtaposition with its ruling on trial admissibility, the Catanese court holds that

polygraph evidence is admissible “within judicial discretion” in certain post-

trial proceedings. /d.

Maine: The Supreme Judicial Court of Maine has consistently held that

“the results of polygraph tests and a party’s willingness or unwillingness to

take such a test are inadmissible.” State v. Gagne, 343 A.2d 186, 192 (Me.

1975) (citing State v. Casale, 110 A.2d 588 (Me. 1954)); see also State v.

Trafton, 425 A.2d 1320 (Me. 1981); State v. Mower, 314 A.2d 840, 841 (Me.

1974)).** ~-

Maryland: The Court of Appeals of Maryland is firmly rooted in its oppo-

sition to admitting polygraph tests for any purpose. State v. Hawkins, 604 A.2d

489, 492 (Md. 1992); see also Johnson v. State, 495 A.2d 1, 14 (Md. 1985).

The case law, however, does suggest that polygraphs may be admissible if reli-

ability of the testing improves. Kelley v. State, 418 A.2d 217, 219 (Md.

1980).

Massachusetts: Massachusetts currently excludes polygraph evidence as

inadmissible per se. Commonwealth v. Stewart, 663 N.E.2d 255 (Mass. 1996).

However, Massachusetts is generally regarded as the first state to permit lim-

ited admissibility of polygraph evidence. In Commonwealth v. A Juvenile (No.

1), 313 N.E.2d 120, 126-27 (Mass. 1974), the court held that polygraph evi-

dence was admissible upon compliance with detailed procedural requirements,

to include stipulation by the parties and “close scrutiny” of the examiner's

qualifications. Commonwealth v. Vitello, 381 N.E.2d 582, 596-97 (Mass.

1978), recognized that polygraph evidence is admissible to impeach or corrob-

orate the defendant's testimony, but excluded polygraph evidence during the

case in chief because the defendant did not testify. The court specifically

declined to consider the admissibility of polygraphs where the defendant's

truthfulness is an ultimate issue. /d. at 596 n.23.

The exceptions of A Juvenile and Vitello were overruled in Commonwealth

v. Mendes, 547 N.E.2d 35 (Mass. 1989). “[OJur hope that polygraphy would

mature to the point of general scientific acceptance has not materialized.

4! Louisiana adopted federal Rule 702 in 1989 and subsequently adopted Daubert’s analy-

sis for assessing reliability. La. C.E., art. 702; State v. Foret, 628 So. 2d 1116 (La. 1993).

42 Maine follows federal Rule 702. Me. R. Evid. 702. While using a similar standard,

Maine has not specifically addressed Daubert. State v. Preston, 581 A.2d 404 (Me. 1990).

43 The Maryland rule of scientific evidence specifically incorporates Daubert. Md. Rule S-

702. “Maryland Rule 5-702’s three-pronged test demands a more detailed preliminary

inquiry than Federal Rule of Evidence 702.” Kevin M. Carroll, The New Maryland Rules

of Evidence: Survey, Analysis and Critique, 54 Md. L. Rev. 1085, 1087 (1995).

17

Further hope or expectation in that regard is no longer warranted. Thus, what-

ever justification there may have been for our single departure from the Frye

rule in A Juvenile and Vitello, that justification no longer exists. . . . We

announce that polygraphic evidence, with or without pretest stipulation, is

inadmissible in criminal trials in [Massachusetts] either for substantive pur-

—_ by for corroboration or impeachment of testimony.” Mendes, 547 N.E.2d

at 41.

Michigan: Michigan holds polygraph evidence to be inadmissible. People

v. Davis, 72 N.W.2d 269 (Mich. 1955); People v. Becker, 2 N.W.2d 503 (Mich.

1942). However, polygraph evidence may be considered by a judge in ruling

m for new trial. People v. Barbara, 255 N.W.2d 171, 181-94 (Mich.

Minnesota: Minnesota rejects polygraphs as inadmissible per se. State v.

Opsahl, 513 N.W.2d 249, 253 (Minn. 1994); State v. Kolander, 52 N.W.2d

458, 465 (Minn. 1952). The Minnesota Court of Appeals addressed, and

rejected, the argument that the polygraph results should be admissible based on

stipulations in State v. Litzau, 377 N.W.2d 53 (Minn. Ct. App. 1985).

Mississippi: Mississippi's inadmissible per se position can be traced back

to Hawkins v. State, 77 So.2d 263 (Miss. 1955). See also Carr v. State, 655

So.2d 824 (Miss. 1995); Thorson v. State, 653 So.2d 876 (Miss. 1994).

Mississippi has held, however, that “evidence of an offer to take a polygraph is

only admissible to support the credibility of a witness whose veracity has pre-

viously been attacked.” Lester v. State, 692 So.2d 755, 787 (Miss. 1997) (cit-

ing Conner v. State, 632 So.2d 1239, 1258 (Miss. 1993)).4”

Missouri: Originally, Missouri courts admitted polygraphs results upon

stipulation. State v. Fields, 434 S.W.2d 507 (Mo. 1968); see also State v.

Ghan, 558 S.W.2d 304 (Mo. Ct. App. 1977). The Missouri Supreme Court

corrected the “erroneous” interpretation that Fields authorized inadmissible

“ Although Massachusetts has not adopted federal Rule 702, it applies a Daubert analysis

to determine the admissibility of scientific evidence. Commonwealth v. Lanigan, 641

N.E.2d 1342 (Mass. 1994).

*° Michigan adopted federal Rule 702 in 1978. Mich. R. Evid. 702. However, it has yet to

= a Frye in favor of Daubert. People v. McMillan, 539 N.W.2d 553 (Mich. Ct. App.

*” Minnesota adopted federal Rule 702 in 1977. Minn. R. Evid. 702. The Minnesota

Supreme Court has expressed no opinion regarding whether or not Daubert supersedes

Frye for purposes of interpreting the Minnesota Rules of Evidence. See State v. Klawitter,

518 N.W.2d 577, 578 n.1 (Minn. 1994).

*” Mississippi has a polygraph licensing statute: “Nothing in this chapter shall be con-

strued as permitting the results of truth examinations or polygraph examinations to be intro-

duced or admitted as evidence in a court of law.” Miss. Code Ann. § 73-29-47 (1995).

Mississippi follows federal Rule 702 and applies the Frye test. Miss. R. Evid. 702; Polk v.

State, 612 So.2d 381 (Miss. 1992).

18

polygraph evidence to be admitted upon stipulation in State v. Biddle, 599

S.W.2d 182, 191 (Mo. 1980) (en banc). Biddle controls Missouri's current pol-

icy on polygraph evidence. State v. Burch, 939 S.W.2d 525, 528 (Mo. Ct. App.

1997) (polygraph evidence inadmissible in criminal trials).**

Montana: Montana strongly opposes the admission of polygraph examina-

tions. State v. Staat, 811 P.2d 1261, 1262 (Mont. 1991); State v. Hollywood,

358 P.2d 437 (Mont. 1960). “[C]ourts continue to doubt the ‘lie detector’s’

reliability.” State v. McClean, 587 P.2d 20, 22-23 (Mont. 1978) (citing

Alexander, 526 F.2d at 165). In State v. Bashor, 614 P.2d 470, 480 (Mont.

1980), Montana specifically rejected New Mexico’s approach to polygraph

evidence.*”

Nebraska: Nebraska uniformly disfavors polygraph evidence. State v.

Allen, 560 N.W.2d 829, 842 (Neb. 1997); State v. Houser, 450 N.W.2d 697,

702 (Neb. 1990); Boeche v. State, 37 N.W.2d 593, 597 (Neb. 1949).5°

New Hampshire: New Hampshire follows the general rule that polygraph

evidence is not admissible. State v. Ober, 493 A.2d 493 (N.H. 1985); State v.

LaForest, 207 A.2d 429 (N.H. 1965). However, New Hampshire has not ruled

whether stipulated polygraph tests are admissible. See LaForest, 207 A.2d at

431; and State v. Stewart, 364 A.2d 621, 623-24 (N.H. 1976) (declining to rule

on the issue, but noting that the Massachusetts case of Commonwealth v. A

Juvenile (No. 1), 313 N.E.2d 120 (Mass. 1974), held that stipulated polygraphs

are admissible).°!

New York: New York views polygraph evidence as unreliable and inad-

missible. People v. Angelo, 666 N.E.2d 1333 (N.Y. 1996); People v. Shedrick,

489 N.E.2d 1290 (N.Y. 1985); People v. Leone, 255 N.E.2d 696 (N.Y. 1969).°?

** Missouri follows federal Rule 702. Mo. Ann. Stat. § 490-050 (1996). The State

acknowledged Daubert, but continues to follow Frye. Callahan v. Cardinal Glennon

Hosp., 863 S.W.2d 852 (Mo. 1993).

*° Montana’s rule concerning scientific evidence admissibility is the same as federal Rule

702. Mont. Code Ann. 26-10-702 (1995). Montana has adopted Daubert. State v. Moore,

885 P.2d 457 (Mont. 1994). os

%” Nebraska adopted federal Rule 702, but continues to follow Frye to measure scientific

evidence. Neb. Rev St. § 27-702 (1995); see State v. Case, 553 N.W.2d 173, 184 (Neb. Ct.

App. 1996); State v. Carter, 524 N.W.2d 763 (Neb. 1994).

*! New Hampshire has language identical to federal Rule 702. N.H. R. Evid. 702.

However, New Hampshire has not yet addressed whether Daubert applies to its evidentiary

tule. See State v. Cavaliere, 663 A.2d 96, 97 (N.H. 1995) (holding that because the parties

stipulated to use of Daubert instead of Frye, the issue need not be addressed).

*2 New York has not adopted the Federal Rules of Evidence. The New York standard for

admitting scientific evidence is the Frye standard. People v. Wesley, 633 N.E.2d 451, 454

n.2 (N.Y. 1994); People v. Victory, 631 N.Y.S.2d 805, 811 n.12 (N.Y. Crim. Ct. 1995)

(“New York which does not model its evidence ‘rules’ on the Federal Code still follows the

Frye standard.”).

19

North Carolina: At one time, North Carolina allowed for admission of

polygraph evidence where the parties stipulated to admissibility. State v.

Meadows, 295 S.E.2d 394 (N.C. 1982); State v. Milano, 256 S.E.2d 154, 163

(N.C. 1979) (polygraph stipulation must be in writing). However, North

Carolina changed its stance on polygraphs and ruled instead that they are inad-

missible per se. State v. Grier, 300 S.E.2d 351 (N.C. 1983); see also State v.

Jones, 466 S.E.2d 696 (N.C. 1996). Although not specifically endorsing

Daubert, North Carolina case law applies a similar test. State v. Spencer, 459

S.E.2d 812 (N.C. Ct. App. 1995).*°

Oklahoma: Prior to 1975, parties could stipulate to the admissibility of

polygraph evidence in Oklahoma. See Castleberry v. State, 522 P.2d 257

(Okla. Crim. App. 1974); Jones v. State, 527 P.2d 169 (Okla. Crim. App.

1974). This option was foreclosed in Fulton v. State, 541 P.2d 871 (Okla.

Crim. App. 1975) (per curiam). Accord Birdsong v. State, 649 P.2d 786, 788

(Okla. Crim. App. 1982). Now, “it is well settled that the results of a poly-

graph test are not admissible for any purpose.” Paxton v. State, 867 P.2d 1309,

1323 (Okla. Crim. App. 1993).*4

Oregon: Oregon generally holds polygraph evidence to be inadmissible.

Initially, Oregon allowed the introduction of such evidence in limited circum-

stances. State v. Green, 531 P.2d 245 (Or. 1975) (admissible to rebut an asser-

tion of coerced confession); State v. Brown, 687 P.2d 751 (Or. 1984) (admissi-

ble upon stipulation). However, the Oregon Supreme Court overruled Green

and Brown in State v. Lyon, 744 P.2d 231 (Or. 1987), holding that polygraph

test results are inadmissible, even where the parties stipulate to introduction.

Pennsylvania: In 1955, Pennsylvania refused to admit polygraph evidence

and has maintained its position to this day. Riccio v. Dilworth, 115 A.2d 865

(Pa. Super. Ct. 1955); see also Commonwealth v. Butler, 621 A.2d 630, 632

(Pa. Super. Ct. 1993); Commonwealth v. Brockington, 455 A.2d 627 (Pa.

1983). The inadmissibility rule holds even if there is a stipulation.

Commonwealth v. Pfender, 421 A.2d 791 (Pa. Super. Ct. 1980).°°

53 North Carolina adopted federal Rule 702 in 1983, see N.C. Gen. Stat. § 8C-1, Rule 702

(1997), and had rejected Frye prior to the Daubert decision. See State v. Pennington, 393

S.E.2d 847 (N.C. 1990).

‘4 Oklahoma adopted federal Rule 702 in 1978. Okla. Stat. Ann. tit. 12, § 2702 (West

1993). Daubert was adopted in Taylor v. State, 889 P.2d 319 (Okla. Crim. App. 1995).

5S Oregon follows Fed. R. Evid. 702. Or. Rev. St. § 40.410 (1988). Oregon chose not to

follow a strict adherence to Frye or Daubert, preferring to administer a traditional Rule

401/403 balancing test. State v. Lyons, 924 P.2d 802 (Or. 1995).

%® Pennsylvania does not follow the Federal Rules of Evidence. Pennsylvania also refused

to adopt Daubert, continuing to follow Frye for admitting scientific evidence.

Commonwealth v. Blasioli, 685 A.2d 151, 160 n.19 (Pa. Super. Ct. 1996).

20

Rhode Island: Rhode Island has taken the position that polygraph exami-

nations are scientifically unreliable and inaccurate. State v. Dery, 545 A.2d

1014 (R.I. 1988). The Rhode Island Supreme Court was concerned that a sub-

ject might employ “countermeasures” leading to inaccurate polygraph results.

Id. at 1017; see also State v. Juarez, 570 A.2d 1118 (R.1. 1990) (holding poly-

graph evidence inadmissible). In reviewing whether Dery survives under

Daubert, the Rhode Island Supreme Court noted that “[Dery] was based not

only on the Frye standard, but also on the inaccuracy of the polygraph test . . . .

Dery is therefore consistent with the opinion of the Supreme Court in

Daubert.” In re Odell, 672 A.2d 457, 459 (R.1. 1996) (per curiam).°’

South Carolina: The state of South Carolina does not allow evidence from

polygraph examinations. State v. Copeland, 300 S.E.2d 63, 69 (S.C. 1982); see

also State v. Wright, 471 S.E.2d 700 (S.C. 1996).°8

South Dakota: After noting that a majority of states did not permit admis-

sion of polygraph evidence, the Supreme Court of South Dakota held it was

not “persuaded that [South Dakota] should abandon the traditional rule of inad-

missibility in favor of a rule that defendants and complaining witnesses may be

ordered to submit to polygraph examinations upon a defendant’s motion and

that the results of such examinations be admissible at trial.” State v. Watson,

248 N.W.2d 398, 399 (S.D. 1976); accord State v. Muetze, 368 N.W.2d 575

(S.D. 1985); see also Sabag v. Continental South Dakota, 374 N.W.2d 349

(S.D. 1985) (polygraph inadmissible in civil or criminal cases).°?

Tennessee: Tennessee rejects polygraph evidence in criminal prosecutions.

Marable v. State, 313 S.W.2d 451 (Tenn. 1958); see also State v. Campbell,

904 S.W.2d 608 (Tenn. Crim. App. 1995). Potentially exculpatory evidence is

still inadmissible. State v. /rick, 762 S.W.2d 121 (Tenn. 1988); see also State v.

Land, 681 S.W.2d 589 (Tenn. Crim. App. 1984).

Texas: Texas’ doctrine of per se inadmissibility dates back to Peterson v.

State, 247 S.W.2d 110 (Tex. Crim. App. 1951). “[T]Jhis Court has not yet

57? Rhode Island follows federal Rule 702. R.1. R. Evid. 702. Rhode Island has left open

the extent to which Daubert will be applied in its jurisdiction. State v. Quattrocchi, 681

A.2d 879, 884 n.2 (R.1. 1996).

5* South Carolina has adopted Federal Rule 702, although it never officially adopted Frye

or Daubert for its standard of admitting scientific evidence. S.C. R. Evid. 702; see State v.

Morgan, 485 S.E.2d 112, 115 (S.C. 1997).

5% South Dakota adopted federal Rule 702 in 1978, and has subsequently applied the

Daubert analysis. S.D. Codified Laws Ann. § 19-15-2 (1995); State v. Hofer, 512 N.W.2d

482, 484 (S.D. 1994).

Tennessee adopted federal Rule 702 in 1990. Tenn. R. Evid. 702. The State uses a stan-

dard of admissibility similar to Daubert. State v. Schimpf, 782 S.W.2d 186 (Tenn. Crim.

App. 1989).

21

authorized the admission of such evidence on behalf of the State, and, until this

is done, it cannot be admitted on behalf of the defendant.” /d. at 111; see also

Chandler v. State, 744 S.W.2d 341, 344 (Tex. Ct. App. 1988) (exculpatory

polygraph inadmissible). The doctrine also effectively prevents the parties

from stipulating to use of the results at trial. Nethery v. State, 692 S.W.2d 686

(Tex. Crim. App. 1985) (en banc).°!

Vermont: In State v. Hamlin, 499 A.2d 45 (Vt. 1985), the Supreme Court

of Vermont upheld the trial court’s decision to exclude polygraph evidence

because an adequate foundation had not been laid. However, the court left

open “the proper standard for disposing of such issues — the scientific reliabil-

ity of polygraph tests, the qualifications of the examiner, and the wide range of

variables produced by different subjects.” Jd. at 54.

Virginia: Polygraph evidence may not be admitted in Virginia. Lee v.

Commonwealth, 105 S.E.2d 152 (Va. 1952). “Polygraph examinations are so

thoroughly unreliable as to be of no proper evidentiary use whether they favor

the accused, implicate the accused, or are agreed to by both parties.” Taylor v,

Commonwealth, 348 S.E.2d 36, 38 (Va. Ct. App. 1986); see also Odum v.

Commonwealth, 301 S.E.2d 145 (Va. 1983) (stipulated results not

admissible).

West Virginia: The West Virginia Supreme Court of Appeals held that

“polygraph evidence is not admissible in [West Virginia].” State v. Frazier,

252 S.E.2d 39, 50 (W. Va. 1979); see also State v. Sheppard, 310 S.E.2d 173,

192 (W. Va. 1983). Recently, West Virginia has acknowledged its willingness

to admit polygraph evidence for witness impeachment purposes. State v.

Blake, 478 S.E.2d 550 (W. Va. 1996).

Wisconsin: In State v. Dean, 307 N.W.2d 628 (Wis. 1981), the Wisconsin

Supreme Court declared previously acceptable polygraph evidence to be inad-

missible. This case overruled the stipulation allowance of previous precedent

under State v. Stanislawski, 216 N.W.2d 8 (Wis. 1974). Le Fevre v. State, 8

*! Texas adopted federal Rule 702 in 1986. Tex. R. Crim. Evid. 702. While disclaiming

the Frye standard and not specifically addressing Daubert, Texas has found that the per se

inadmissible rule survives constitutional scrutiny under the state evidence statute. Perkins,

902 S.W.2d 88.

®2 Vermont also adopted federal Rule 702 in 1983. Vt. R. Evid. 702. Although not specifi-

cally stating so, Vermont appears to apply Daubert when testing scientific evidence. See

State v. Rolfe, 686 A.2d 949 (Vt. 1996) (concerning infrared spectrophotometery).

®3 Virginia adopted federal Rule 702 for civil cases only. Va. Code Ann. § 8.01-401.1

(1992). A standard similar to Daubert governs admissibility. Spencer v. Commonwealth,

393 S.E.2d 609 (Va. 1990).

“ West Virginia follows federal Rule 702. W.V. R. Evid. 702. West Virginia also follows

Daubert in analyzing scientific evidence. Wilt v. Burbacker, 443 S.E.2d 196 (W. Va. 1993).

However, the Supreme Court of Appeals held that Daubert does not necessitate a change in

the inadmissibility of polygraph evidence. State v. Beard, 461 S.E.2d 486 (W. Va. 1995).

22

N.W.2d 288 (Wis. 1943), appears to be the first reported case of stipulated use

of polygraph evidence among the states.®

Il. MILITARY RULE OF EVIDENCE 707 WORKS TO UNCONSTI-

TUTIONALLY DEPRIVE A MILITARY ACCUSED THE OPPOR-

TUNITY TO PRESENT A DEFENSE

This Honorable Court displayed great foresight in the non-exclusive listing

of Daubert admissibility factors. 509 U.S. at 593-94. Daubert must now

undergo the next logical evolution for application to criminal trials in a manner

consistent with the Constitution.

A. Due process applies to the military justice system

Although the military is a “specialized society separate from civilian soci-

ety,” the burden is on the Government to justify any departure from principal

constitutional protections. See, e.g., United States ex rel. Toth v. Quarles, 350

U.S. 11, 22 (1955) (“There are dangers lurking in military trials which were

sought to be avoided by the Bill of Rights and Article III of our Constitution.”);

Parker v. Levy, 417 U.S. 733, 743 (1974) (character of military community and

mission requires a different application of First Amendment protections where

speech may undermine effectiveness of response to command). This Court has

previously considered due process challenges to courts-martial in determining

whether a servicemember received “‘a fair trial in a fair tribunal.’” Weiss v.

United States, 510 U.S. 163, 178 (1994) (appointment of military judges does

not violate appointments clause) (citations omitted). This Courts’ opinions

concerning the Constitution’s application to the military justice system have

exhibited a theme of extending constitutional rights to servicemembers without

limitation, except where necessary due to the unique character of the military.

Petitioner suggests that some Sixth Amendment protections, including the

right to present a defense, are ‘procedural complexities’ which burden military

trials. See Petitioner’s Brief at 42 (citing Middendorf v. Henry, 425 U.S. 25

(1976)). Apparently, complex issues regarding polygraph evidence are deemed

beyond the comprehension of military courts despite the admission of other

types of scientific evidence. While the President and Congress may establish

65 Wisconsin follows the Federal Rules of Evidence. Wis. Stat. Ann. § 907.02 (West 1993).

The State applies a standard similar to Daubert. State v. Walstad, 351 N.W.2d 469 (Wis.

1984).

* Examples of complex expert evidence admissible in a court-martial include: DNA,

United States v. Youngberg, 43 MJ. 379 (C.A.A.F. 1995); chemical hair fiber analysis,

United States v. Nimmer, 43 M.J. 252 (C.A.A.F. 1995), rape trauma syndrome, United

States v. Houser, 36 M.J. 392 (C.M.A. 1993); and urinalysis, United States v. Harper, 22

M.J. 157 (C.M.A. 1986).

23

rules for courts-martial, U.S. Const. art. 1, § 8, cl. 14, it is axiomatic that nei-

ther is free to disregard the Constitution when acting in the area of military

affairs. See Rostker v. Goldberg, 453 U.S. 57, 67 (1967). “Congress remains

subject to the limitations of the Due Process Clause, . . . but the tests and limi-

tations to be applied may differ because of the military context.” /d.

Therefore, Petitioner’s burden, which has failed thus far, is to demonstrate

whether the Sixth Amendment right to present a defense does not apply to the

military.

B. Daubert’s focus on civil trial evidence standards fails to accord

and account for constitutionally-based protections inherent in

criminal cases

This Court’s pronouncement in Daubert signaled an end to the stringent

“general acceptance” test in the federal courts. Unfortunately Daubert, based

on a civil lawsuit, has been blindly applied without consideration of constitu-

tional concerns in the vast majority of criminal cases. See, e.g., United States

v. Schneider, 111 F.3d 197 (1st Cir. 1997); United States v. Rouse, 111 F.3d 561

(8th Cir. 1997); Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky. 1997); State

v. Watt, 482 S.E.2d 147 (W. Va. 1996); of. United States v. Posado, 57 F.3d

428 (Sth Cir. 1995); but see State v. Porter, No. SC 15363, 1997 WL 265202

(Conn. May 20, 1997) (no right to evidentiary hearing on polygraph under

Sixth Amendment), Perkins v. State, 902 S.W.2d 88 (Tex. Ct. App. 1995) (per

se inadmissible rule does not violate Sixth Amendment). Thus, this Honorable

Court has yet to consider the impact that the Sixth Amendment will have on

Federal Rule of Evidence 702 and the trial judge’s role as the “keeper” when

possible exculpatory evidence stands ready at the “gate.”

The highest military appellate court readily recognized the impact that due

process rights will have on the admission of polygraph evidence in United

States v. Gipson, 24 M.J. 246 (C.M.A. 1987). That court discussed the due

process impact in two respects: “First, in deciding whether defense evidence

satisfies the relevance and helpfulness standards; second, in deciding whether

the probative value of the evidence is outweighed by extraneous factors (Mil.

R. Evid. 403).” Id. at 252.°’ The implicit suggestion gleaned from Gipson is

that a trial judge should consider the nature of the purported exculpatory evi-

dence as an additional factor of the Daubert/Rule 702 expertise analysis. This

factor, incorporating Sixth Amendment due process concerns, must be afforded

more weight than other items on the non-exclusive Daubert list.

*” The court added that “[p}erhaps in these areas, judges should bend even further than nor-

mal in the direction of giving the accused the benefit of doubt...[I}f anything, in marginal

cases, due process might make the road a tad wider on the defense's side than on the

Government's.” /d.

24

The Supreme Court has applied the Sixth Amendment in a variety of con-

texts in order to protect a criminal defendant’s due process rights. In

Washington v. Texas, 388 U.S. 14 (1967), this Court invalidated a state statute

concerning competency of codefendants where it worked to prevent an

accused from obtaining testimony from a witness.** Furthermore, in

Chambers v. Mississippi, 410 U.S. 284 (1973), the Court recognized that a

state hearsay rule compromised the right to call witnesses on one’s behalf.”

Finally, a state’s legitimate interest in barring unreliable evidence does not

extend to a per se exclusion of evidence which is arguably reliable in a given

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

With the exception of New Mexico, the States fail to recognize the

supremacy of valid Sixth Amendment rights over any ‘legitimate’ concern a

particular jurisdiction might have with polygraphs." While many States have

refused to adopt Daubert as controlling on their evidence code, ” no state's

interpretation can operate contrary to express constitutional protections and

rights. The Sixth Amendment mandates admission of exculpatory polygraphs

in federal courts and, by virtue of the Fourteenth Amendment, in state trials.

** The defendant wanted to present testimony from a co-accused, contrary to a state rule

disallowing such testimony, regarding his attempts to prevent the co-accused from shooting

the deceased. Washington v. Texas, 388 US. at ‘6.

* In Chambers, a defense witness made several confessions to the murder for which the

accused faced trial, but impeachment of one’s own witness was foreclosed under state law.

410 US. at 289.

7 In Rock, a per se rule impermissibly prevented the defendant from testifying about hyp-

notically refreshed memories. 483 U.S. at 62.

7! A much-repeated fear among the anti-polygraph states is that “polygraph evidence wil!

impermissibly infringe on the province of the jury to determine credibility.” See Brief of

the State of Connecticut and 27 States as Amici Curiae in Support of Petitioner at 19-20.

See also Petitioner's Brief at 26-29. This lack of confidence, given the sophistication of the

modem venireman, is misplaced for a group often trusted with far more complicated, “near-

infallible,” evidence, such as DNA or rape trauma syndrome, and is certainly not reflective

of the experience with courts-martial panels in the military justice system. “If we can have

faith in a state trial jury, as suggested by the research to date, there is all the more reason to

have faith in the court-martial panels that you present scientific evidence to.” See M.

Maxwell et al., Recent Developments Concerning the Constitutionality of Military Rule of

Evidence 707, The Army Lawyer (DA Pam 27-S0-265) 13, 16 (Dec. 1994) (quoting E.

Imwinkelried, The Standard For Admitting Scientific Evidence: A Critique From The

Perspective of Juror Psychology, 100 Mil. L. Rev. 99, 117 (1983)). Military juries are gen-

erally well-educated and sophisticated enough to understand complex evidence. The

Uniform Code of Military Justice [hereinafter U.C.MJ.] provides that military jurors must

be cither commissioned or warrant officers, or enlisted persons senior in rank to the

accused, selected on the basis of their “age, education, training, experience, length of ser-

vice, and judicial temperament.” U.C.M.J. art. 25(d)\(2), 10 U.S.C. § 825(d)(2) (1982).

72 See Appendix (Summary Chart of State Jurisdictions).

25

C. The Court of Appeals for the Armed Forces decision in the case

sub judice was properly decided on Sixth Amendment grounds

The decision in United States v. Scheffer, 44 M.J. 442 (C.A.A.F. 1996),

reflects the latest iteration in a series of attempts to define the constitutionality

of categorically excluding polygraph evidence under Military Rule of

Evidence 707 [hereinafter Rule 707). As military courts have struggled with

this issue, the resultant body of appellate law supports the proposition that Rule

See en ee Se ES Re Sees Eg Ge Oe Comets

itself.

As a direct result of the Gipson decision, Rule 707 was drafted in 1991 to

categorically exclude from courts-martial any evidence relating to polygraph

examinations. The basis for this rule, as laid out in the Manual for Couris-

Martial’s analysis of the Military Rules of Evidence, is the danger of polygraph

tests misleading a jury by appearing “shrouded with an aura of near infallit-

ity.” Manual for Courts-Martial, United States, 1984, app. 22, Military Rules

of Evidence analysis, at A22-48 (citing United States v. Alexander, 526 F.2d

161, 168-169 (8th Cir. 1975)). Furthermore, the drafters of the rule were also

concerned with the reliability of polygraph examinations. /d.

_ Military Rule of Evidence 707 was created contrary to a body of constitu-

late an accused's due process rights. The Scheffer opinion cites Washington v.

Fanas and Rock u Aransas on evidence of this Coutt’s vigilance in protecting

against similar Sixth Amendment abuses. Scheffer, 44 M.J. at 445.’

Furthermore, the Armed Forces court noted the ‘liberal thrust’ of the Federal

Rules of Evidence and the Daubert “gatekeeper” function wherein a judge

must still apply a Rule 403” analysis prior to admitting or excluding such evi-

dence. This gatekeeper function is the logical manifestation of a sound policy

favoring the discretion of a sitting judge, who is familiar with the Constitution,

over the collective opinion of the scientific community.

The case of United States v. Williams, 39 M.J. 555 (A.C.M.R. 1994), was

an early foray of the military courts into the Sixth Amendment implications of

Rule 707. ° In Williams, the Army Court of Military Review (now the Army

Court of Criminal Appeals [hereinafter Army court]) rejected the policy con-

” The Armed Forces court noted that “the majority of federal circuits do not have a per se

against polygraph evidence.” /d. at 444.

95 Military Rules of Evidence 403 is identical to the federal Rule 403.

The Armed Forces court later reversed the Army court on the basis that the accused had

not testified at trial and could not present exculpatory polygraph evidence without first tak-

ing the stand. United States v. Williams, 43 MJ. 349 (C_A.A.F. 1995). However, in the

case at bar, appellant did testify at trial.

26

iderati iculated in support of a per se exclusion of polygraph evidence.”

The OOo. court held that the rule violated the appellant's Fifth Amendment

right to a fair trial and Sixth Amendment right to produce favorable witnesses.

Soe. Dinu aaa

inquire whether evidence is relevant .

a ant ths berktin of conatintional authority, te Asmed Forces cout

found Rule 707 unconstitutional in the case at bar. The court held that “[a] per

se exclusion of polygraph evidence offered by an accused to rebut an attack on

his credibility, without giving him an opportunity to lay a foundation under

Mil. R. Evid. 702 and Daubert, violates his sixth Amendment right to present a

defense.” Scheffer, 44 M.J. at 445. Thus, the gravamen of the court's holding

below is rooted in the basic constitutional right to present a defense.

This Court is ideally poised, then, to affirmatively recognize an accused's

right to lay a foundation for the presentment of exculpatory polygraph evi-

dence in their defense at trials by courts-martial. Furthermore, the polygraph ts

no longer an untested, unreliable sideshow gimmick but has gained accep-

tance, especially in the Department of Defense, to such an extent that many

Government agencies have ited concems of national security on the results

of polygraph examinations. Thus, if polygraph exams can result in the grant

or denial of access to sensitive and critical areas impacting the security of mil-

lions of Americans — it follows that one American, especially a soldier, sailor,

airman, or marine, should be allowed to present similar evidence to a panel

who sits in judgment of the servicemember’s guilt or innocence.

D. This Court should adopt amicus’ proposed preliminary due-

process Daubert factor

Trial courts must be required to weigh the potential due process concerns in

criminal cases before continuing with the standard Daubert analysis concerm-

ing the admission of expert scientific evidence. The amicus therefore proposes

that this Honorable Court delineate a “new” factor for Rule 702 consideration.

The Court should prescribe this factor as a preliminary question for criminal

7 In particular, the court described as “disingenuous” the rationale to exclude polygraph

evidense based on its inherent unreliability, or “at best incongruous with the substantial

investment the Department of Defense has made, and continues to make, in polygraph

xaminations.” Williams, 39 M_J. at 558.

” Several jurisdictions, discussed supra, would eschew a categorical ban on 9 panicular

type of evidence in favor of allowing a court to conduct the customary Rule 401/403

ancing. See, ¢.g., United States v. Posado, 57 F.3d at 434.

™ See Williams, 39 MJ. at S58.

27

trial judges, as gatekeepers of novel scientific evidence, to contemplate. As

proposed:

The defense will be granted the opportunity to lay a founda-

tion for the presentment of science-based expert evidence

under a Daubert/Rule 403 analysis where the proffered evi-

dence is relevant to a constitutional right of the accused.

Admission of such proffered expertise is presumed in cases

affecting a valid constitutional right and where the defense

demonstrates the reliability of the technique. A guarantee of

reliability can be demonstrated in a variety of manners, is

dependent upon the facts of a given case, and is not limited to

the following circumstances which tend to enhance reliability

of a particular test: compliance with any statutory scheme

providing for admission; whether the test was conducted by a

qualified expert; whether the test procedures provide a trust-

worthy result; whether the examination is recorded for later

observation; whether the opposing party has the ability to

independently assess technique reliability; which party initi-

ated the use of the technique in each case; whether the oppos-

ing party has a reasonable opportunity to conduct its own

test; as well as any other conditions which tend to enhance

reliability.

In applying this proposed standard to Scheffer, it is noteworthy that a

Government law enforcement agency initiated and performed the exam in

question. Scheffer, 44 M.J. at 443.” The military judge, under the standard

Daubert analysis, should have admitted this-exculpatory polygraph given the

guarantees of reliability present in the case sub judice. The proposed due

process factor, with its presumption, would operate to admit the Government-

initiated exculpatory polygraph results.

Airman Scheffer’s Sixth Amendment right to present a defense cannot be

eviscerated by a mechanical per se exclusionary rule of evidence. The respon-

dent was subjected to an attack on his credibility which Rule 707 left him pow-

erless to defend against.” Had the military judge performed the proposed due

™ See State v. Baca, 92 P.2d 65 (N.M. 1995) (justice and fairness dictated admission

where State administered examination and knew results).

° The prosecution cross-examined Scheffer about the inconsistencies between his testi-

mony and earlier statements to law enforcement. The Government's closing argument

stressed that, “He lies. He is a liar. He lies at every opportunity he gets and he has no cred-

ibility. Don’t believe him.” Scheffer, 44 M.J. at 444.

28

process analysis in the case at bar, Airman Scheffer would have been able to

defend the attack on his credibility after he testified. An abuse of discretion

standard of review will continue to be applied to a judge’s determination on

expertise admissibility to ensure consideration of the due process factor. See

Scheffer, 44 M.J. at 447 (ruling on admissibility will not be reversed unless a

clear abuse of discretion) (citing Piccinonna, 885 F.2d at 1537; United States v.

Pettigrew, 77 F.3d 1500, 1514 (Sth Cir. 1996)).

This test also should be applied whenever a Confrontation Clause or other

constitutional right is implicated. If, for example, the accused has evidence

that a prosecution witness “failed” a relevant polygraph examination, then a

judge should perform the proposed analysis. This additional due process factor

could also be applied to cases involving novel scientinc techniques other than

the polygraph. An accused’s request to present exculpatory “astrological” evi-

dence would likely fail due to the lack of a scientific foundation or any serious

intellectual debate about the technique.

As this Court first recognized in Rosen v. United States, 245 U.S. 467, 471

(1918), “the truth is more likely to be arrived at by hearing the testimony of all

persons of competent understanding . . . leaving the credit and weight of such

testimony to be determined by the jury.” It is time for criminal courts to end

the irrational fear of polygraphy born of the obsolete and crude technology of

1923.8! The proposed due process factor will empower trial judges to recog-

nize the validity of polygraphs where it is essential to ensure a fair trial and

grant the accused a reasonable opportunity to present a defense. Above all

else, “the Sixth Amendment was designed in part ‘to make the testimony of a

defendant’s witnesses admissible on his behalf in court."” Rock v. Arkansas, -

483 U.S. at 54 (quoting Washington v. Texas, 388 U.S. at 22). Therefore, in

light of the sound policy reasons discussed above, this Honorable Court should

extend the constitutional protections heretofore recognized to servicemembers,

notwithstanding any presidential rulemaking to the contrary.

*! As John Wigmore observed in 1923 at the time Frye was decided: “‘If there is ever

devised a psychological test for the valuation of witnesses, the law will run to meet it.””

James R. McCall, Misconceptions and Reevaluation—Polygraph Admissibility After Rock

and Daubert, 1996 University of Illinois Law Review 363, 370 (quoting John H. Wigmore,

A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 875, at

237 (2d ed. 1923).

29

CONCLUSION

The decision of the Court of als for the Armed :s

as 7 Appe Forces should be

Respectfully submitted,

JOHN T. PHELPS II" STEPHEN P. BELL, JR.

Cc olonel, U.S. Army Captain, U.S. Army

Chief, Defense Appellate Division Defense Appellate Attorney

MICHAEL E. HATCH T. MICHAEL GUIFFRE

Major, U.S. Army Captain, U.S. Army

Defense Appellate Attorney Defense Appellate Attorney

PAUL FIORINO

Captain, U.S. Army

Defense Appellate Attorney

ARDEN B. LEVY

Captain, U.S. Army

Defense Appellate Attorney

AUGUST 1997

" Mr. Lloyd C. Peeples II (Cumberland School of Law, Samford Universi

~ Pe ~um , versity, Class o

1998) made a Significant contribution to the research and writing of this brief, ene oo

ng Jayanth Jayaram, U.S. Army (University of Illinois College of Law, Class of 1998),

Tiffany R. Spann (University of South Carolina School of Law, Class of 1998), and

Cadet Robert J. Hannah (U.S. Military Academy, Class of 1998),

APPENDIX.

Summary Chart of State Jurisdictions

State Uses| Uses Daubert or Frye? Polygraph

FRE Admissible

702?

Alabama Yes | Has not addressed Daubert- | Stipulation

Uses Frye

Alaska Yes | Rejects Daubert - Uses Frye | Inadmissible

Arizona Yes | Rejects Daubert - Uses Frye | Stipulation

Arkansas ‘Yes Follows Daubert Stipulation

Califomia No Rejects Daubert Stipulation

Colorado Yes | Rejects Daubert - Uses Frye | Inadmissible |

Connecticut No Follows Daubert Tnadmissible

Delaware Yes Follows Daubert Strpulation

Fonda Yes | Rejects Daubert - Uses Frye | Stipulation

Georgia Yes! | Has not addressed Daubert- | Stipulation

Uses rule similar to Daubert

Hawau Yes! | Has not addressed Daubert - | Inadmissible—

Uses rule similar to Daubert

Idaho ‘Yes Has not addressed Daubert - Stipulation

Uses rule similar to Daubert

Tilinois No | Rejects Daubert - Uses Frye | Inadmissible _

Indiana Yes Daubert not binding, Stipulation

but “helpful”

lowa Yes | _ Follows Daubert Stipulation

Kansas Yes! | Rejects Daubert - Uses Frye | Stpulation

Kentucky Yes Follows Daubert Tnadmissible |

Louisiana Yes Follows Daubert Tnadmissible _

Maine Yes | Has not addressed Daubert - | Inadmissible

Uses rule similar to Daubert

Maryland Yes Daubert incorporated Tnadmissible |

into state statute

Massachusetts No Follows Daubert Tnadmissible |

Michigan Yes | Has not addressed Daubert - | Inadmissible

Uses Frye

| State did not adopt FRE 702, but the rule for admissibility is very similar.

(1a)

State Uses | Uses Daubert or Frye? Polygraph

FRE Admissible

702?

Minnesota Yes Acknowledges Daubert- | Inadmissible—

Uses Frye |

Mississippi Yes | Has not addressed Daubert - | Inadmissible |

Uses Frye

Missoun Yes Acknowledges Daubert - | Inadmissible—

Uses Frye |

Montana Yes Follows Daubert Tnadmissible |

Yes | Rejects Daubert - Uses Frye | Inadmissible

Nevada Yes | Has not addressed Daubert - Stpulation

Uses rule similar to Daubert

New Hampshire Yes Has not addressed whether Tnadmissible —

Daubert supersedes Frye

New Jersey No Acknowledges Daubert - Stipulation

Uses Frye

New Mexico Yes Follows Daubert Admissible

New York No Rejects Daubert - Uses Frye | Inadmissible

North Carolina Yes | Uses rule similar to Daubert | Inadmissible

North Dakota Yes Acknowledges Daubert - Supulation

Uses Frye

Ohio Yes | Has not addressed Daubert - | Stipulation

Uses rule similar to Daubert

Oklahoma Yes Follows Daubert Inadmissible |

Oregon Yes | Has not addressed Daubert - | Inadmissible ~

Uses 401/403 balancing test

Pennsylvania No | Rejects Daubert - Uses Frye | Inadmissible |

Rhode Island Yes | Daubert question still open- | Inadmissible—

Uses rule similar to Daubert

Yes Never adopted Tnadmissible |

South Carolina Daubert or Frye

South Dakota Yes Follows Daubert Tnadmissible —

Tennessee Yes | Has not addressed Daubert- | Inadmissible —

Uses rule similar to Daubert

‘Texas Yes | Has not addressed Daubert - | Inadmissible |

Uses rule similar to Daubert

Utah Yes Has not addressed Daubert - Stpulation

Uses rule similar to Daubert

(2a)

State Uses| Uses Daubert or Frye? Polygraph

FRE Admissible

702?

Vermont Yes | Uses rule similar to Daubert | Inadmissible

Virginia No? | Has not addressed Daubert - | Inadmissible

' Uses rule similar to Daubert

Washington Yes | Rejects Daubert - Uses Frye | Stipulation

West Virginia Yes Follows Daubert Tnadmissible

"Wisconsin Yes | Has not addressed Daubert - | Inadmussible

‘ Uses rule similar to Daubert

Wyoming Yes Follows Daubert Stipulation

2 Virginia has not adopted FRE 702 for criminal cases.

(3a)