# Amicus Curiae Brief — United States v. Scheffer

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0048%3A16

## Record

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

## Text

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No. 96-1133 !

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 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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0048%3A16. Public record. Not legal advice.