# Petition for Writ of Certiorari — Heyward v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0681%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 1019

## Text

Supreme Court, U.
FILED

\\ D4 C27 OCT 24 19%

GEFICE OF IHE CLERK
No.

In the Supreme Court of the United States
OCTOBER TERM, 1994

JANIET L. HEYWARD, STAFF SERGEANT,
UNITED STATES AIR FORCE, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI

JAY LINDSEY COHEN
Colonel, United States Air Force
Chief, Appellate Defense Division
Counsel of Record

MARK JEFFREY SIMMS
Captain, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY
Appellate Defense Division
172 Luke Avenue, Suite 208
Bolling AFB, DC 20332-5113

October 1994

QUESTIONS PRESENTED

Whether the Military Judge’s denial of a continuance re-
quested by petitioner to secure an exculpatory polygraph
test violated petitioner’s rights under the United States
Constitution Sixth Amendment Compulsory Process
Clause and the United States Constitution Fifth Amend-
ment Due Process Clause.

Whether Military Rule of Evidence 707’s ban on the ad-
mission of polygraph results is a denial of petitioner’s
United States Constitution Sixth Amendment right to
compulsory process and petitioner’s United States Con-
stitution Fifth Amendment Right to Due Process of Law.

TABLE OF CONTENTS

OP TINGS SRORAPO 6cn0s bvndanenbenwessenstreess
FREON COGS és odin vcs e ease penaeueueess aes
CONSTITUTIONAL PROVISIONS INVOLVED ....
STA TEMES OF Clee CFR bab vcerccnewesssssss
REASON FOR GRANTING THE WRIT ...........
CONCUARIIII 6 64409-9- hee wheats eek

APPENDIX A (27 July 1994 Order of the United States
Court of Riiiary A 665 5s ckoe eset ss
APPENDIX B (18 October 1993 Decision of the United
States Air Force Court of Military Review) .........
APPENDIX C (22 June 1993 Order of the United States
Court of Neary ROD onc 005 habia doteen cds

APPENDIX D (23 September 1992 Decision of the
United States Air Force Court of Military Review) .. .

lla

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES: Page
Barefoot v. Estelle, 463 U.S. 880 (1983) ......... 10
California v. Trombetta, 467 U.S. 479 (1984) ..... 8
Chambers v. Mississippi, 410 U.S. 284 (1973) .... 8
Hawkins v. United States, 358 U.S. 74 (1958) .... 13
In Re Oliver, 333 U.S. 257 (1948) ............... 8
Rock v. Arkansas, 483 U.S. 44 (1987) ........... 9, 10
Taylor v. Illinois, 484 U.S. 408 (1988) ...... ihe 8
Ungar v. Sarafite, 376 U.S. 575 (1964) .......... 6
United States v. Valenzuela-Bernal, 458 U.S. 858
SRI Coed ie Pa t a 8
: Washington v. Texas, 388 U.S. 14 (1967) ........ 8,9

FEDERAL CASE:
| United States v. Piccinonna, 885 F.2d 1529 (11th
. es yo ed ve be 8% 9, 13

MILITARY CASES:

j United States v. Andrews, 36 M.J. 922 (A.F.
ea wap anh oe een ae 5, 6,7
| United States v. Browers, 20 M.J. 356 (C.M.A.
| ee 41 goa) ake ths 6
/ United States v. Fortner, 37 M.J. 349 (C.M.A.
ee oe ne he eed es Mice eos whee 7
United States v. Fergason, 6 M.J. 844 (N.M.
ates Ba gt wea 4 tay ss i 6
United States v. Gipson, 24 M.J. 246 (C.M.A.
Ie ee ae as os aaa is es a 11, 12

United States v. Heyward, ACM S28688 (f. rev.),
unpub. (A.F.C.M.R. 18 October 1993), affd,
as Swe ee 2 eee MO Se ia
United States v. Heyward, ACM 828688, unpub.
(A.F.C.M.R. 13 September 1982), set aside and
remanded, 38 M.J. 226(C.M.A. 1993) ........ a
United States v. Kevs, 29 M.J. 920 (A.C.ML.R.
ga ee GOH Fe ree 6

i

CASES — Continucd: Page
United States v. Muaresca, 28 M.J. 328 (C.M.A.
_, St Aree ena Dar er yr a, cme trary Gy ges ey ay 6

United States v. McKinnie, 29 M.J. 825 (A.C.M.R.
1989), uffd on other grounds, 32 M.J. 141

eR NE eR Fe a atin Se a 12
United States v. Menoken, 14M.J. 10 (1982) ..... 5
United States v. Peel, 29M.J. 235 (C.M.A. 1989) .. 10
United States v. Sullivan, 26 M.J. 442 (C.M.A.

RRR Serra Se 9 ee hag Oy rl ee 5
United States v. West, 27 M.J. 223 (C.M.A. 1988) . 12
United States v. Williams, 39 M.J. 555 (A.C.M.R.

Io on a we ue wks 10, 13

CONSTITUTIONAL PROVISIONS:

Sh a A Se Z, 5. BBs Bas Bs 34
th ee Me & ) eer Zz, 5, 6, &, izZ, 33, 34

UNITED STATES STATUTES:

10 U.S.C.A. Section 867a (West Supp. 1994) ..... 2

28 U.S.C.A. Section 1259(3) (West 1993) ........ 2
UNIFORM. CODE OF MILITARY JUSTICE:

Article 40, 10 U.S.C. Section 840 (1988) ......... 5

Article 67(a)(2), 10 U.S.C.A. Section 867(a)(2)

DO et a Se ee er es a 13

Article 112a, 10 U.S.C. Section 912a (1988) ...... 2
MILITARY RULES OF EVIDENCE:

Military Rule of Evidence 401 .............2005- 12

Military Rule of Evidence 402 ...... 0.6.00. sees 12

Miltary Rule of Evidence 403 ............-..-%:. 12

Military Rule of Evidence 702 ...... 2.26 .ee eves 9, 12

Military Rule of Evidence 707 ............... 6 45.93. i

Military Rule of Evidence 707(a) ......... 5, 8, 10, 13, 14

ee

OTHER AUTHORITY:
Exec. Order No. 12,767, 56 Fed. Reg. 30,284
(1991)

Halbleib, United States v. Piccinonna: The Eleventh
Circuit Adds Another Approach to Polygraph
Evidence in the Federal System, 80 Kentucky
L.J. 225 (1992)

Raa eaektanwr eat f = ae ee a es en oe Ss oe eee se a ee

McCormack, McCormack on Evidence (3d ed.
1984)

Page

10)

In the Supreme Court of the United States
OCTOBER TERM, 1994

No.

JANIET L. HEYWARD, STAFF SERGEANT,
UNITED STATES AIR FORCE, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Janiet L. Heyward, respectfully prays
that a writ of certiorari issue to review the order of the
United States Court of Military Appeals entered in her
case on 27 July 1994.

OPINIONS BELOW

The 27 July 1994 order of the United States Court of
Military Appeals, United States v. Heyward, M.J.
____ (C.M.A. 1994) is reprinted at Appendix A. The un-
published decision of the United States Air Force Court of
Military Review, United States v. Heyward, ACM S28688
(f. rev.), unpub. (A.F.C.M.R. 18 October 1993), affd,
____ M.J. ____ (C.M.A. 1994) is reprinted at Appendix B.
The 22 June 1993 order of the United States Court of Mili-
tary Appeals, 38 M.J. 226 (C.M.A. 1993), is reprinted at
Appendix C. The 23 September 1992 unpublished decision
of the United States Air Force Court of Military Review,
United States v. Heyward, ACM S28688, unpub. (A.F.
C.M.R. 1992), set aside and remanded, 38 M.J. 226
(C.M.A. 1993), is reprinted at Appendix D.

(1)

ty

JURISDICTION

The order of the United States Court of Military Ap-
peals was entered on 20 July 1994. The jurisdiction of this
Court is invoked under 28 U.S.C.A. Section 1259(3) (West
1993) and 10 U.S.C.A. Section 867a (West Supp. 1994).

CONSTEFUTIONAL PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of the United
States provides, in pertinent part, “[n]o person shall...
be deprived of life, liberty, or property, without due proc-
ess Of law... .” The Sixth Amendment of the Constitu-
tion of the United States provides, in pertinent part, “[i]n
all criminal prosecutions, the accused shall enjoy the right
. . . to have compulsory process for obtaining witnesses in
his favor... .”

STATEMENT OF THE CASE
Petitioner was charged with wrongful use of marijuana
at or near Bexar County, Texas on divers occasions from
on or about | December 1989 to on or about 23 January
1993, in violation of Article 112a of the Uniform Code of
Military Justice, 10 U.S.C. Section 912a (1988).' She was
convicted? by a special court-martial composed of a mili-

' Petitioner was also charged with dereliction of duties as a non-
commissioned officer from on or about | December 1989 to on or
about 23 January 1992, by willfully allowing herself to inhale mari-
juana smoke in her proximity in such amount that her urine sample
would test positive. See DD Form 458. The Military Judge found her
not guilty of this charge and specification pursuant to defense motion.
See R. 87.

? Pursuant to defense motion, the Military Judge struck “on divers
occasions” trom the specification and amended the charged time
“trom on or about 1 December 1989” to “from on or about 23
December 1991”. See R. 87-89.

3

tary judge sitting alone and sentenced to a bad conduct
discharge and reduction to the lowest enlisted grade. The
convening authority approved the sentence as adjudged.
The United States Air Force Court of Military Review af-
firmed the findings and sentence in an unpublished deci-
sion dated 23 September 1992. See United States v.
Heyward, ACM 828688, unpub. (A.F.C.M.R. 23 Septem-
ber 1992), set aside and remanded, 38 M.J. 226 (C.M.A.
1993) and Appendix D. Petitioner petitioned the United
States Court of Military Appeals for a grant of review of
the decision of the United States Air Force Court of
Military Review. By order dated 22 June 1993, the United
States Court of Military Appeals set aside the decision of
the United States Air Force Court of Military Review and
remanded the case to the United States Air Force Court of
Military Review for consideration of issues similar to the
issues raised before this Court. See 38 M.J. 226 (C.M.A.
1993) and Appendix C. On 18 October 1993 the United
States Air Force Court of Military Review again affirmed
the findings and sentence in an unpublished opinion. See
United States v. Heyward, ACM 828688 (f. rev.), unpub.
(A.F.C.M.R. 18 October 1993), affd, <
(C.M.A. 1994), hereinafter cited as Heyward III) and Ap-
pendix B. Petitioner petitioned the United States Court of
Military Appeals for review of the decision of the United
States Air Force Court of Military Review. In an order
dated 27 July 1994, the United States Court of Military
Appeals granted petitioner’s petition for review and sum-
marily affirmed the decision of the United States Air
Force Court of Military Review. See ss M.J. ____
(C.M.A. 1994) and Appendix A.

Petitioner provided a urine sample in a random urinalysis
on 23 January 1992 which tested positive for the metabo-
lites of marijuana. Heyward III at 2. Petitioner was inter-
viewed by AFOSI (Air Force Office of Special Investiga-
tions) agents, denied using marijuana, and agreed to take a

4

polygraph examination. /d. On 21 February 1992 petitioner
took the polygraph examination. /d. After finishing two
series of questions, the polygrapher expressed the opinion
that petitioner was not lying when she denied “purposely”
using marijuana while in the United States Air Force. /d.
Charges were preferred against petitioner on 30 March 1992
and referred to a special court-martial on 1 April 1992. /d.
An initial trial date of 17 April 1992 was set. /d. On 16
April 1992, the United States requested a delay in the pro-
ceedings until 29 April 1992. /d. The delay request was
granted. /d.

Petitioner requested the director of the DoD Polygraph
Institute to review the results of her examination. /d. On
23 April 1992 trial defense counsel was notified by AFOSI
that petitioner’s polygraph results had been invalidated by
the DoD Polygraph Institute and HQ AFOSI because of
“ “an improper comparison of a test question to a control
question.’ ” Jd. An AFOSI polygrapher offered to retest
petitioner at 0800 on 24 April 1992. /d. Petitioner’s trial
defense counsel declined the offer because of a scheduling
conflict with a hearing in another case. On 27 April 1992
trial defense counsel requested a delay in the trial from 29
April 1992 to 6 May 1992 so that another polygraph ex-
amination could be performed. /d. Trial defense counsel
acknowledged Military Rule of Evidence 707 (which ex-
cludes results of a polygraph examination and related mat-
ters from admission) but asserted that the rule was un-
constitutional. /d. The United States opposed the request
based on the inadmissibility of polygraph evidence. /d.
The Military Judge denied the defense delay request. /d.

Petitioner renewed her request for a continuance at
trial. Jd. Trial defense counsel made an offer of proof in
which she which she explained her intent to contest the
constitutionality of M.R.E. 707 and explained why she
needed a continuance. /d. Trial defense counsel explained
that she refused the AFOSI offer of the 24 April 1992
polygraph because she had a pretrial confinement hearing

5

scheduled at another installation and because she was un-
sure whether she would have adequate opportunity to fully
discuss the issue with her client. /d. at 2-3. The Military
Judge denied the request for a continuance on the basis of
M.R.E. 707. See R. 21. At trial petitioner took the stand
and denied knowingly using marijuana. See R. 122.

REASON FOR GRANTING THE WRIT

CONSIDERATION OF THIS CASE WILL GIVE
THIS HONORABLE COURT THE OPPORTUNI-
TY TO ADDRESS THE CONSTITUTIONALITY
OF MILITARY RULE OF EVIDENCE 707(a),
WHICH PER SE EXCLUDES POLYGRAPH
RESULTS FROM COURTS-MARTIAL AND
VIOLATES PETITIONER’S RIGHTS UNDER
THE FIFTH AND SIXTH AMENDMENTS OF
THE UNITED STATES CONSTITUTION, AND
WHICH THREATENS THE FIFTH AND SIXTH
AMENDMENT RIGHTS OF THE MILLiONS OF
SERVICEMEMBERS IN THE UNITED STATES
ARMED FORCES.

A Military Judge may grant a continuance for a
reasonable cause to any party for such time, and as often as
may appear just. Article 40, U.C.M.J., 10 U.S.C. Section
840 (1988); United States v. Andrews, 36 M.J. 922, 924
(A.F.C.M.R. 1993). A purpose of the continuance to is
allow counsel for both sides to prepare for trial. Andrews,
36 M.J. at 924. The Military Judge is responsible for pre-
judice that may result to an accused and should err on the
side of granting a delay on a showing of good cause. /d. at
926. The standard of review for a Military Judge’s decision
to deny a continuance is abuse of discretion. United States
v. Sullivan, 26 M.J. 442, 443 (C.M.A. 1988); United
States v. Menoken, 14 M.J. 10, 11 (1982). “A military
judge’s decision to grant or deny a continuance is a matter
of discretion, based upon facts and circumstances then

6

and there existing.” United States v. Maresca 28 M.J. 328,
333 (C.M.A. 1989). See United States v. Browers, 20 M.J.
356, 360 (C.M.A. 1985). Whenever an accused’s request for
a continuance is based on a substantial right, mere ad-
ministrative inconvenience to the prosecution is not a suffi-
cient ground for denying the request. See Andrews, 36 M.J.
at 926; United States v. Keys, 29 M.J. 920 (A.C.M.R.
1989). See also United States v. Fergason, 6 M.J. 844
(N.M.C.M.R. 1979) (request for continuance so accused
could be represented by individual military counsel). “[A]
myopic insistence upon expeditiousness in the face of a
justifiable request for delay can render the right to defend
with counsel an empty formality.” Ungar v. Sarafite, 376
U.S. 575, 589 (1964) (citations omitted).

This case was originally set for trial on 17 April 1992.
On 16 April 1992, the United States submitted a delay re-
quest so that a circuit trial counsel could represent the
United States. See Allied Papers, Request for Delay-
United States v. Heyward, dated 16 April 1992. The
Military Judge granted a twelve day delay. Jd. On 27 April
1992, two days before trial, the defense requested a seven
day delay so that a second polygraph could be performed
on petitioner. See Allied Papers, Request for Delay- U.S.
v. Heyward, dated 27 April 1992. Trial Counsel’s indorse-
ment opposed the delay, and the Military Judge denied the
request. See id. Trial defense counsel renewed her request
for delay at trial and fleshed out the full reasons for the re-
quest. See R. 9-10. The Military Judge denied the motion,
but set forth findings of fact for appeal. See R. 14-22.

Petitioner’s request for delay was based on substantial
rights —her rights under the Fifth and Sixth Amendments
of the United States Constitution to present evidence on
her behalf. There was no evidence before the court that the
delay was requested for an improper purpose. The fact
that petitioner had passed an earlier polygraph, in the
opinion of the polygrapher, indicates that the possiblity of
obtaining an exculpatory polygraph was more than mere

speculation. The trial court made no findings that a delay
was not feasible in light of the court schedule, the
schedules of the parties, or any other reason. And the
court had granted the United States an earlier, twelve day
delay which had been requested one day prior to the
original trial date,

Comparison between the instant case and United States
v. Andrews, 36 M.J. 922 (A.F.C.M.R. 1993) in instruc-
tive. In Andrews the accused asked for a delay of ten to
fourteen days which delay was denied after a delay pre-
viously granted to the United States. “The prosecution op-
posed the delay but offered no reasons other than ad-
ministrative inconvenience and its general disagreement
that a delay was needed.” Andrews, 36 M.J. at 926. The
United States Air Force Court of Military Review held
that the Military Judge abused his discretion in denying
the defense request for a continuance and set aside the
findings and sentence. See id. at 926-927.

In affirming petitioner’s conviction, the United States
Air Force Court of Military Review implicitly found that
trial defense counsel’s decision not to allow petitioner to
take the polygraph examination in her absence was
unreasonable. See Heyward III at 2-3. Trial defense
counsel had a prior commitment for a pretrial confine-
ment hearing. See R. 16. Trial defense counsel’s decision
not to allow her client to attend the polygraph alone was a
reasonable decision. In United States v. Fortner, 37 M.J.
349 (C.M.A. 1993), counsel allowed his client to take an
unaccompanied polygraph after receiving verbal and writ-
ten assurances that no post-polygraph conversations
would take place. On cross-examination of Fortner the
trial counsel questioned Fortner about a comment made
by the polygrapher to Fortner after the examination. /d. at
350. The United States Court of Military Appeals failed to
find prejudice or plain error. See id. at 351.

The Military Judge’s denial of petitioner’s request for a
reasonable continuance denied petitioner’s rights under the
Fifth and Sixth Amendments of the United States Constitu-
tion and was an abuse of the Military Judge’s discretion.

“Notwithstanding any other provision of law, the results
of a polygraph examination, the opinion of a polygraph
examiner, or any reference to an offer to take, failure to
take, or taking of a polygraph examination, shall not be
admitted into evidence.” M.R.E. (Military Rule of
Evidence) 707(a). “No person shall be . . . deprived of life
liberty, Or property, without due process of law... .”
U.S. Const. amend. V. “In all criminal prosecutions, the
accused shall enjoy the right. . . to have compulsory pro-
cess for obtaining witnesses in his favor ....” U.S.
Const. amend. VI. “The righi to offer the testimony of
witnesses, and to compel their attendance, if necessary, is
in plain terms the right to present a defense, the right to
present the defendant’s version of the facts.” Washington
v. Texas, 388 U.S. 14, 19 (1967). The accused has the right
to call witnesses whose testimony is material and favorable
to his defense. United States v. Valenzuela-Bernal, 458
U.S. 858 (1982).

In sum, the foregoing provisions require that an accused
be given a “meaningful opportunity to present a complete
defense.” California v. Trombetta, 467 U.S. 479, 485
(1984). The accused must be given 2 fundamentally fair
trial in which he is given “an opportunity to be heard in his
defense —a right to his day in court.” Jn Re Oliver, 333
U.S. 237. 202 (1948). “Few rights are more fundamental
than that of an accused to present witnesses in his own
defense.” Taylor v. Illinois, 484 U.S. 400, 408 (1988);
Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

The Court has looked with disfavor on per se exclu-
sionary rules when the effect of such rules is to deny an ac-
cused the right to present relevant, probative evidence in

9

his defense. “The Framers of the Constitution did not in-
tend to commit the futile act of giving to a defendant the
right to secure the attendance of witnesses whose test-
imony he has no right to use.” Washington v. Texas, 388
U.S. 14, 23 (1967) (reversing the conviction of the accused
who had been precluded from offering the testimony of a
coactor under Texas statutes barring the testimony of co-
participants in the same crime if the coactor is called as a
witness by the accused). Restrictions on the defendant’s
right to testify may not be arbitrary or disproportionate to
the purposes they are designed to serve. Rock v. Arkansas,
483 U.S. 44, 55-56 (1987). In applying evidentiary rules,
the sovereign must determine whether the interests ad-
vanced by the rules justify the limitations placed on
defendants’ rights. See id. at 56. “A State’s legitimate in-
terest in barring unreliable evidence does not extend to per
se exclusions that may be reliable in an individual case.”
Id. at 61 (emphasis in original).

As Professor McCormick has noted, concerns about
reliability “are not sufficient to warrant a rigid exclu-
sionary rule. A great deal of lay testimony routinely ad-
mitted is at least as unreliable and inaccurate, and other
forms of scientific evidence involve risks of instrumental
or judgmental error.” McCormick, McCormick on
Evidence Section 206 at 629 (3d. ed. 1984), quoted in
United States v. Piccinonna, 885 F.2d 1529, 1533 (11th
Cir. 1989). “If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise.” Military Rule of Evidence 702. Any individual
who has knowledge in a field which exceeds the knowledge
of the typical court member might be qualified as an ex-

10)

pert. See United States v. Peel, 29 M.J. 235, 241 (C.M.A.
1989). Other testimony of certainly no greater reliability
than polygraph results are uniformly admitted into
evidence at courts-martial, e.g., psychiatric testimony.
This Court has noted the poor predictive powers of
psychiatric testimony. See Barefoot v. Estelle, 463 U.S.
880, 927-28 (1983) (Marshall, J., dissenting) (“[p]sychi-
atric predictions of future dangerousness are not accurate;
wrong two times out of three, their probative value, and
therefore any possible contribution they might make to the
ascertainment of truth, is virtually nonexistent.”) (em-
phasis in original). This Court held that a state may not
per se exclude hypnotically refreshed testimony (see Rock
v. Arkansas, 483 U.S. 44 (1987)), which is likely less
reliable testimony than polygraph testimony. See
Halbleib, United States v. Piccinonna: The Eleventh Cir-
cuit Adds Another Approach to Polygraph Evidence in
the Federal System, 80 Kentucky L.J. 225, 251 (1992).

The effect of Military Rule of Evidence 707(a) on an ac-
cused’s rights to present evidence on his behalf was con-
sidered by the United States Army Court of Military
Review in United States v. Williams, 39 M.J. 555
(A.C.M.R. 1994). The court noted:

This rule effectively removes any discretion from a
military judge to weigh the legal and logical relevance
of polygraph evidence. [footnote omitted] It denies a
proponent an opportunity to even attempt to lay a
foundation for admitting polygraph evidence, regard-
less Of whether it is reliable, relevant, helpful, and
even if its probative value outweighs any extraneous
factors.

Id. at 557. The court noted that the rule “represents a
dramatic shift from prior military precedent.” Jd. (The ex-
clusion of M.R.E. 707(a) was incorporated into military

lf

law with Change 5 to the Manual for Courts-Martial,
United States, 1984.°)

In a case which preceded Change 5 to the Manual for
Courts-Martial, United States v. Gipson, 24 M.J. 246
(C.M.A. 1987), the United States Court of Military Ap-
peals addressed the admissiblity of polygraph evidence.
The accused moved at trial for the admission of an ex-
culpatory polygraph which he secured at his own expense.
Id. at 247. The United States moved for admission of the
testimony of a Naval Investigative Service polygrapher
who examined the accused and concluded he was deceptive
in answering relevant questions. Jd. The Military Judge
ruled that neither party would be aliowed to attempt to lay
a foundation or admit polygraph evidence. /d.

The Court of Military Appeals noted:

In our assessment, the state of the polygraph techni-
que is such that, depending on the competence of the
examiner, the suitability of the examinee, the nature
of the particular testing process employed, and such
other factors as may arise, the results of a particular
examination may be as good as or better than a good
deal of expert and lay evidence that is routinely and
uncritically received in criminal trials... . [W]e do
not suggest that all polygraph evidence is admissible
or that this particular evidence should have been ad-
mitted. [footnote omitted] Appellant still bears the
burden of establishing the foundational predicates
outlined above. Our holding here is only that ap-
pellant was entitled to attempt to lay that foundation.

Gipson, 24 M.J. at 253.

* Change 5 is dated 15 November 1991. M.R.E. 707 is applicable
only to cases in which arraignment was completed on or after 6 July
1991. Change 5 incorporates Executive Order No. 12767, dated 27
June 1991, published at 56 Federal Register 30284.

12
The United States Court of Military Appeals reiterated
its Gipson ruling in United States v. West, 27 M.J. 223,
225 (C.M.A. 1988), stating “polygraph results must be
evaluated under the entire spectrum of evidentiary rules.”
“(T]he question [is] whether the evidence is relevant under
Mil.R.Evid. 401 and 402, whether the evidence is helpful
to the factfinder within the meaning of Mil.R.Evid. 702,
and whether its probative value outweighs collateral
dangers in accordance with Mil.R.Evid. 403.” United
States v. McKinnie, 29 M.J. 825, 827 {(A.C.M.R. 1989),
aff'd on other grounds, 32 M.J. 141 (C.M.A. 1991).4
The United States Army Court of Military Review held
that the total ban on polygraph evidence violated the Fifth
and Sixth Amendments of the United States’ Constitution.

As the Gipson court noted, however, there is no right
to present evidence — however much it purports to ex-
onerate the accused — unless it is shown to be relevant
and helpful. But the question of whether these find-
ings were reliable, relevant, or helpful was, by virtue
of Mil.R.Evid. 707, never addressed. The rule simply
removes judicial discretion from this critical step in
the evidentiary process. We hold under the facts of
this case that appellant’s Fifth Amendment right to a
fair trial by court-martial, combined with his Sixth
Amendment right to produce favorable witnesses on
his behalf, affords him the opportunity to be heard
on these foundational matters, and allows for the
possibility of admitting polygraph evidence, notwith-
standing the explicit prohibition of Mil.R.Evid. 707.

+ M.R.E. 401 defines relevant evidence. M.R.E. 402 states that rele-
vant evidence is generally admissible and that irrelevant evidence is in-
admissible. M.R.E. 403 states that relevant evidence may be excluded
on grounds of prejudice, confusion, or waste of time. M.R.E. 702 in-
volves expert testimony.

13

Williams, 39 M.J. at 558.°

The Eleventh Circuit Court of Appeals has held that
polygraph evidence is not per se inadmissible. See United
States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989). The
court noted:

The advent of new and development technologies
calls for flexibility within the legal system so that the
ultimate ends of justice may be served. It is unwise to
hold fast to a familiar rule when the basis for the rule
ceases to be persuasive. We believe that the science of
polygraphy has progressed to a level of acceptance
sufficient to allow the use of polygraph evidence in
limited circumstances where the danger of unfair pre-
judice is minimized.
Id. at 1537.

As Justice Stewart observed, “[a]ny rule that impedes
the discovery of truth in a court of law impedes as well the
doing of justice.” Hawkins v. United States, 358 U.S. 74,
81 (1958) (Stewart, J., concurring). Military Rule of
Evidence 707(a) is an arbitrary exclusionary rule which is
overly broad in deterring the evil it was created to deter
(unreliable evidence) and is an unconstitutional limitation
on petitioner’s Fifth and Sixth Amendment rights.

CONCLUSION

Petitioner had a Fifth and Sixth Amendment right to at-
tempt to introduce exculpatory polygraph evidence. Peti-
tioner demonstrated a bona fide need for a continuance to
get an exculpatory polygraph and demonstrated a substan-
tial possibility in fact of producing an exculpatory poly-

> The Judge Advocate General of the Army has certified the
Williams case to the United States Court of Military Appeals.
USCMA Dkt. No. 94-5006/AR. See Article 67(a)(2), U.C.M.J., 10
U.S.C. Section 867(a)(2)(1988).

14

graph, based on the result of the AFOSI administered poly-
graph. Petitioner’s reasonable request for a continuance
was unreasonably and unjustifiably denied. The Military
Judge abused his discretion in denying petitioner’s request
for a continuance. Military Rule of Evidence 707(a) is an
arbitrary exclusionary rule which deprived petitioner of her
United States Constitution Fifth and Sixth Amendment
rights to present evidence on her behalf, and which poten-
tially threatens the United States Constitution Fifth and
Sixth Amendments rights of millions of servicemembers
serving in the United States Armed Forces.

Respectfully submitted,

JAY LINDSEY COHEN
Colonel, United States Air Force
Chief, Appellate Defense Division
Counsel of Record

MARK JEFFREY SIMMS
Captain, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY
Appellate Deferse Division
172 Luke Avenue, Suite 208
Bolling AFB, DC 20332-5113

October 1994

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 93-0089/AF
CMR Dkt. No. S28688

UNITED STATES, APPELLEE
V.

JANIET L. HEYWARD (267-33-8790), APPELLANT

ORDER

On consideration of the petition for grant of review of
the decision of the United States Air Force Court of
Military Review, it is by the Court this 27th day of July,
1994,

ORDERED:

That said petition is hereby granted; and

That the decision of the United States Air Force Court
of Military Review is affirmed.

For the Court,

/s/ John A. Cutts, III
Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force
Appellate Defense Counsel (PARKS)
Appellate Government Counsel (PETERSON)

(la)

2a

APPENDIX B

UNITED STATES AIR FORCE
COURT OF MILITARY REVIEW

ACM S28688 (f rev)
UNITED STATES
-

STAFF SERGEANT JANIET L. HEYWARD FR267-33-8790
UNITED STATES AIR FORCE

18 October 1993

Sentence adjudged 30 April 1992 by SPCM convened
at Kelly Air Force Base, Texas. Military Judge: Wade
B. Morrison (sitting alone).

Approved sentence: Bad-conduct discharge and
reduction to E-1.

Appellate Counsel for the Appellant: Colonel Terry
J. Woodhouse, Lieutenant Colonel Jay L. Cohen,
and Captain Robert A. Parks.

Appellate Counsel for the United States: Colonel Jef-
fery T. Infelise, Lieutenant Colonel Thomas E.
Schlegel, and Captain Jane M.E. Peterson.

Before

JOHNSON, HEIMBURG, and YOUNG
Appellate Military Judges

ins iain

3a

OPINION OF THE COURT UPON FURTHER REVIEW

Pk OE A

YOUNG, Judge:

On 29 and 30 April 1992, a military judge, sitting as a
special court-martial, convicted appellant of wrongfully
using marijuana and sentenced her to a bad-conduct dis-
charge and reduction to E-1. The case was sent to this
court without assignment of error and, on 23 September
1992, we affirmed the findings and sentence. For the first
time, before the Court of Military Appeals, appellant
raised two issues: 1) Whether the total ban on the admis-
sion of polygraph evidence (Mil. R. Evid. 707) violated ap-
pellant’s right to due process; and 2) whether the military
judge’s decision to deny appellant’s request for continu-
ance based solely upon Mil. R. Evid. 707 deprived appel-
lant of exculpatory evidence which could have been effec-
tively used outside the trial forum. On 22 June 1993, the
Court of Military Appeals set aside our prior decision and
ordered this Court to reconsider the case in light of the two
issues raised by appellant. Upon further consideration, we
affirm.

I. Facts

On 23 January 1992, as part of a random urinalysis in-
spection, appellant provided a urine sample which tested
positive for the presence of metabolites of marijuana. Ap-
| pellant was interviewed by agents of the Air Force Office
of Special Investigations (AFOSI), denied using mari-

juana, and consented to a polygraph. On 21 February

1992, appellant took an AFOSI polygraph exam. After

completing two series of questions, the polygrapher
opined that appellant was not deceptive when she denied
ever “purposely” using marijuana while in the Air Force.
Nevertheless, charges were preferred against appellant on
30 March 1992 and referred to a special court-martial on |
- April 1992. An initial trial date of 17 April was set. Pur-

4a

suant to a 16 April government request, the military judge
granted a delay until 29 April when circuit trial counsel
would be available. To assist in challenging the constitu-
tionality of Mil. R. Evid. 707, and with a view to obtaining
a defense witness, appellant apparently requested the
director of the DoD Polygraph Institute to review her
exam results. On 23 April 1992, appellant’s counsel was
notified by AFOSI that the polygraph results had been in-
validated by the DoD Polygraph Institute and HQ AFOSI
because of “an improper comparison of a test question to
a control question.” The AFOSI polygrapher offered to
retest appellant at the only time available prior to 4
May —0800 on 24 April. Appellant’s counsel declined the
offer. On 27 April, 4 days after notification of the in-
validity of the polygraph exam and 2 days before trial, ap-
pellant’s counsel requested a delay in the trial from 29
April until 6 May so that another polygraph exam could be
performed. In the request, appellant’s counsel acknowl-
edged Mil. R. Evid. 707, but specifically noted her belief
that the rule was unconstitutional. The trial counsel op-
posed the request based on the inadmissibility of poly-
graph evidence. The military judge denied the request.
At trial, appellant renewed her request for a continu-
ance until 4 May so she could take another polygraph
exam. Appellant produced no evidence on the issue, but
made what can be described as an offer of proof in which
her counsel explained her intent to contest the constitu-
tionality of Mil. R. Evid. 707 and why that was not possi-
ble without a continuance. The military judge asked
defense counsel why she rejected the AFOSI offer of a test
on 24 April at 0800. The defense counsel said she had a
pretrial confinement hearing scheduled across town at
|_ackland Air Force Base for that time, and she was unsure
if she would be able to meet and fully discuss the issue with
her client. Appellant’s counsel failed to show she made any

Sa
efforts to reschedule the pretrial confinement hearing,
although she received an unspecified “representation” that
the magistrate was only available on that date. Other than
a vague reference to her preference not to send her client
alone to the polygraph examination, appellant’s counsel
provided no good rationale, under the circumstances, for
not permitting AFOSI to conduct the test without counsel
present and without the possibility of a post-test interview.
The military judge denied this request for a continuance.

Il. Denial of Request for Continuance

A military judge may grant a continuance to any party,
for reasonable cause, for such time as may appear to be
just. Article 40, UCMJ, Granting a continuance is within
the discretion of the military judge, and a denial of such
request will be reversed only for an abuse of discretion.
United States v. Sharp, __ M.J. __ (C.M.A. 1993); United
States v. Menoken, 14M.J. 10, 11 (C.M.A. 1982). To find
the military judge abused his discretion requires more than
a difference of opinion on the ruling. In order to reverse
for an abuse of discretion, we must find the military
judge’s decision was arbitrary, fanciful, clearly
unreasonable, or clearly erroneous. United States v.
Travers, 25 M.J. 61, 62 (C.M.A. 1987). Here, appellant
was given the opportunity to take another Government
polygraph exam before trial. Although the situation may
not have been ideal for the defense, appellant failed to
show adequate cause for rejecting the offer. Under these
circumstances, we find the military judge’s decision was
not arbitrary, fanciful, clearly unreasonable, or clearly er-
roneous. He did not abuse his discretion.

Ili. Mil. R. Evid. 707

Mil. R. Evid. 707 prohibits the admission into evidence
of the results of a polygraph examination and the opinion

6a

of a polygrapher. Appellant claims this rule is an un-
constitutional denial of her Sixth Amendment right to
compulsory process, her Fifth Amendment right to due
process of law, and her right to exculpatory evidence
which could have been used outside the trial forum.

Appellate courts historically have been reluctant to
decide issues which, while interesting and important, are
not ripe for judicial review. United States v. Jones, 26
M.J. 632 (A.F.C.M.R.1988), vacated, 28 M.J. 94
(C.M.A. 1989); United States v. Landes, 17 M.J. 1092,
1093 (A.F.C.M.R. 1984). On the record before us, the
constitutionality of Mil. R. Evid. 707 is not ripe for
review.

Appellant offered no exculpatory polygraph for admis-
sion into evidence; she merely asked for a continuance so
she could obtain one. Whether any resulting polygraph
would have been exculpatory is entirely speculative. The
military judge made no findings or rulings upon the ad-
mission of a particular polygraph result. Thus, there is no
record upon which this court can decide the issue. As
noted above, the Government offered appellant the op-
portunity to take a second polygraph. Appellant failed to
take advantage of that offer, knowing that she would be
unable to get another examination before trial, and ap-
parently, without making any effort to rearrange her
schedule to meet that of the AFOSI polygrapher. Since the
appellant did not, and from the record apparently still
does not, have an exculpatory polygraph examination to
present for admission, we believe the issue is not ripe for
rCVicw.

IV. The Remand

This case originally arrived at this Court for statutory

review on 17 July 1992. In accordance with Rule 15(c) of

:

ele bale

Ta

the Rules of Practice and Procedure, Courts of Military
Review (22 M.J. CXX VII, CX XXII (1985)), appellant had
30 days in which to file any assignments of error and briefs
with this Court. On 11 August 1992, appellant’s appellate
counsel requested an enlargement of time until 18
September 1992 to provide “sufficient opportunity to com-
pletely review and research the issues raised by this record
of trial.” We granted that request. On 18 August 1992, ap-
pellate defense counsel submitted the record of trial to this
court without assignment of error. After our decision ap-
proving the findings and sentence, appellate defense
counsel raised before the Court of Military Appeals the
two issues which are the subject of this remand. There is
no explanation in the record as to why, if appellate defense
counsel thought these errors had merit, they failed to sub-
mit them to this Court during our initial review of the
case. The brief was not due for another month, and ap-
pellate counsel are well aware of our very liberal policy in
granting additional enlargements of time.

By remanding to this Court, the Court of Military Ap-
peals elected to relieve appellant of the consequences of
her failure to comply with the rules of procedure estab-
lished by The Judge Advocates General under Article
66(f), UCMJ, which require the timely filing of issues
before this Court. We believe this practice is ill advised
when, as in this case, there is no evidence that we failed to
fulfill our statutory duties under Article 66(c), UCMJ, and
appellant has failed to show good cause. When the Court
of Military Appeals permits appellants to raise issues for
the first time before them without requiring a showing of
good cause, and returns the case for us to repeat our
review of the case, it impeaches confidence in this Court’s
performance of its statutory duties and provides incentive
to appellate counsel to submit issues piecemeal. This does

8a

an injustice to this appellant, whose case has been delayed
over a year, and to other appellants whose cases, properly
before us, are delayed while we give priority to the re-
mand. The Court of Military Appeals should require ap-
pellants to show good cause before permitting issues to be
raised for the first time at that Court.

The findings and sentence are correct in law and fact;
and no error prejudicial to the substantial rights of ap-
pellant was committed. Articles 59(a), 66(c), UCMJ. Ac-
cordingly, the findings and approved sentence are

AFFIRMED.

Senior Judge JOHNSON and Judge HEIMBURG concur.

[Seal Omitted]

/s/ Naomi D. Williams
Naomi! D. WILLIAMS
Technical Sergeant, USAF
Chief Court Administrator, AFCMR

9a

APPENDIX C

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 93-0089/AF
CMR Dkt. No. 828688

UNITED STATES, APPELLEE
v.

JANIET L. HEYWARD (267-33-8790), APPELLANT

ORDER

On consideration of the petition for grant of review of
the decision of the United States Air Force Court of
Military Review, we note that appellate defense counsel, in
his Supplement to Petition for Grant of Review dated
February 1, 1993, has for the first time on appeal raised
the issue whether Mil. R. Evid. 707, Manual for Courts-
Martial, United States, 1984, which excludes polygraph
evidence, violates an accused’s rights to due process of law
under the Fifth Amendment; and whether the military
judge’s decision to deny appellant’s continuance based
solely upon Mil. R. Evid. 707 deprived her of exculpatory
evidence which could have been effectively used outside
the trial forum. In view of the fact that these issues raised
by appellate defense counsel were not before the Court of
Military Review in its initial consideration of this case, it is
by the Court this 22nd day of June, 1993,

ORDERED:

10a

That the decision of the United States Air Force Court
of Military Review is set aside. The record of trial is
returned to the Judge Advocate General of the Air Force
for remand to that court for consideration of the issues
raised for the first time before us. Following these pro-
ceedings, Article 67(a), Uniform Code of Military Justice,
10 USC § 867(a) (1989), will apply.

For the Court,

/s/ John A. Cutts, III
Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force
Appellate Defense Counsel (PARKS)
Appellate Government Counsel (McDADE)

lla

APPENDIX D

UNITED STATES AIR FORCE
COURT OF MILITARY REVIEW

ACM 828688

UNITED STATES

Ve

STAFF SERGEANT JANIET L. HEYWARD FR267-33-8790
UNITED STATES AIR FORCE

23 September 1992

Sentence adjudged 30 April 1992 by SPCM convened
at Kelly Air Force Base, Texas. Military Judge: Wade
B. Morrison (sitting alone).

Approved sentence: Bad-conduct discharge and
reduction to E-1.

Appellate Counsel for the Appellant: Major Mary C.
Yastishock, Major John V. Sullivan, and Captain
Marc A. Fox.

Appellate Counsel for the United States: Lieutenant
Colonel Brenda J. Hollis.

Before

O’HAIR, SNYDER, and GRUNICK
Appellate Military Judges

PER CURIAM:

The approved findings of guilty and the sentence are
correct in law and fact and, on the basis of the entire
record, are

AFFIRMED.

[Seal Omitted]

/s/ Nancy Howell
NANCY HOWELI
Document Examiner
Court of Military Review

US GOVERNMENT PRINTING OFFICE. 1994 — 382.750/87052

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0681%3A1. Public record. Not legal advice.