Ban on Use of Polygraph Evidence Does Not Amount to Abridgement of Military Defendant's Right to Present a Defense

98-358 A

April 13, 1998

CRS Report for Congress

Received through the CRS Web

Ban on Use of Polygraph Evidence Does Not

Amount to Abridgement of Military

Defendant’s Right to Present a Defense

Paul S. Wallace, Jr.

Specialist in American Public Law

American Law Division

Summary

Military Rule of Evidence 707 excludes polygraph evidence in military trials. The

Supreme Court on March 31,1998, upheld the ban, holding that it did not violate the

Sixth Amendment rights of defendants. The Court also said that the military ban on the

use of such evidence “...does not unconstitutionally abridge the right to present a

defense.”

Background

In March of 1992, the appellant in United States v. Scheffer1, began working as an

informant for the Air Force Office of Special Investigations (OSI). On April 7, 1992, at

the request of OSI, the appellant voluntarily provided a urine sample. Periodic urinalyses

are normal procedure for volunteer informants.

On April 10th, OSI asked appellant to submit to a polygraph examination. The OSI

polygraph examiner asked the appellant three questions: (1) had he ever used drugs while

in the Air Force; (2) had he ever lied in any of the drug information he gave to OSI; and

(3) had he told anyone other than his parents that he was assisting OSI? The appellant

answered “No” to each question. The polygraph examiner concluded that “no deception”

was indicated.

The appellant’s urinalysis tested positive for methamphetamine. At the informant's

trial, the appellant asked the military judge for an opportunity to lay a foundation for the

favorable polygraph evidence. The military judge denied the request stating among other

things that “the polygraph is not a process that has sufficient scientific acceptability to

1

66 U.S.L.W. 4235 (U.S. April 7, 1998).

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be relevant.” The appellant asserted that Military Rules of Evidence, Rule 707 violated

his Sixth Amendment2 right to present a defense because it compelled the military judge

to exclude relevant, material, and favorable evidence offered by him. He argued that he

was constitutionally entitled to be given an opportunity to rebut the attack on his

credibility as a witness by laying a foundation for favorable polygraph evidence. The

Government alleged that Rule 707 does not impermissibly infringe on the Sixth

Amendment; it argued that the Rule merely codifies all the evidentiary prohibitions

against polygraph evidence and that, even without Rule 707, polygraph evidence would

never be admissible. The United States Court of Appeals for the Armed Forces set aside

the decision of the United States Air Force Court of Criminal Appeals which ruled in

favor of the Government. The Court of Appeals for the Armed Forces ruled that the

appellant should be provided an opportunity to lay a foundation for admission of the

polygraph evidence.

The United States Supreme Court granted certiorari in United States v. Sheffer3, on

May 19, 1997. One of the two issues4 presented on appeal to the Court was whether

Military Rules of Evidence, Rule 707 violates the Sixth Amendment if it interferes with

the accused’s right to present testimony that is relevant and material to his defense?

Prior to the Court's decision, the scientific community was extremely polarized

regarding the reliability of polygraph techniques. It would appear that the Sheffer

decision will not contribute to the reputation of the reliability of these techniques

inasmuch as the Court noted that its accuracy rate has been described as being a "...`little

better than could be obtained by the toss of a coin,' that is, 50 percent."5

Comments Regarding the Ban on Use of Polygraph

Evidence Based Upon Selected Cases

It appears as if a substantial number of the federal circuits do not have a per se

prohibition against polygraph evidence. Instead, they rely on the trial judge to apply a

Daubert analysis.6 The Ninth Circuit Court of Appeals rendered its decision on remand

2

The Sixth Amendment grants an accused “the right to call `witnesses in his favor’.” Rock

v. Arkansas, 483 U.S. 44, 52 (1987); Washington v. Texas, 388 U.S. 14, 23 (1967) (an accused

right to present testimony that is relevant and material may not be denied arbitrarily).

3

117 S. Ct. 1817 (1997).

4

The other issue--not addressed by the Court-- is: whether the President complied with

Article 36(a), UCMJ, 10 USC § 836(a) when he promulgated Military Rules of Evidence, Rule

707?

5

Sheffer, 66 U.S.L.W. at 4237.

6

See Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993), on remand 43

F.3d 1311 (9th Cir. 1995), cert. denied 116 S. Ct. 189 (1995).

While a definitive checklist or test to determine scientific reliability was not provided in

Daubert, the following four factors were presented as having been considered: (1) is the

technique testable? “Scientific methodology today is based on generating hypotheses and testing

them to see if they can be falsified; indeed, this methodology is what distinguishes science from

(continued...)

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in Daubert v. Merrell Dow Pharmaceuticals, Inc.7, interpreting the Supreme Court’s

ruling in Daubert. The court first noted in performing their “gatekeeping role,” judges:

must satisfy themselves that scientific evidence meets a certain standard of

reliability before it is admitted. This means that the expert’s bald assurance of

validity is not enough. Rather the party presenting the expert must show that

the expert’s findings are based on sound science, and this will require some

objective, independent validation of the expert’s methodology8

The Ninth Circuit Court of Appeals also considered three significant factors for

determining whether the expert’s testimony is admissible. The first factor “is whether the

experts are proposing to testify about matters growing naturally and directly out of

research they have conducted independent of the litigation, or whether they have

developed their opinions expressly for purposes of testifying.”9 Second, if the expert is

not testifying based upon research independent of the litigation, the party proffering it

must come forward with other objective, verifiable evidence that the testimony is based

on `scientifically valid principles.’”10 One way of showing this, as suggested by the

Court, “is by proof that the research and analysis supporting the proffered conclusion have

6

(...continued)

other fields of human inquiry.” 509 U.S. at 593 ; (2) has the theory or technique been subjected

to peer review and publication? “The fact of publication (or lack thereof) in a peer-reviewed

journal ... will be relevant, though not dispositive, consideration in assessing the scientific

validity of a particular technique or methodology on which an opinion is premised.” Id. at 594;

(3) in the case of scientific techniques, what is the known or potential error rate, and are there

standards controlling the technique’s operation? Id. (4) “Finally, `general acceptance’ can yet

have a bearing on the inquiry. ... Widespread acceptance can be an important factor in ruling

particular evidence admissible,” and a technique that is known but not widely recognized “may

properly be viewed with skepticism.” Id. See also United States v. Pulido, 69 F.3d 192, 205 (7th

Cir. 1995) (no per se rule against admissibility of polygraph evidence); United States v. Posado,

57 F.3d 428, 436 (5th Cir. 1995) (reversing per se exclusion of polygraph evidence); United

States v. Piccinonna, 885 F.2d 1529, 1535 (11th Cir. 1989) (holding that polygraph evidence not

admissible per se); Anderson v. United States, 788 F.2d 517, 519 n. 1 (8th Cir. 1986) (polygraph

evidence admissible by stipulation); United States v. A. & S. Council Oil Co., 947 F.2d 1128,

1134 n. 4 (4th Cir. 1991) (holding that polygraph evidence not admissible in 4th Circuit but

recognizing that “[c]ircuits that have not yet permitted evidence of polygraph results for any

purpose are now the decided minority”); but see United States v. Scarborough, 43 F.3d 1021,

1026 (6th Cir. 1994) (polygraph results “inherently unreliable”); United States v. Soundingsides,

820 F.2d 1232, 1241 (10th Cir. 1987) (polygraph evidence “not admissible to show” that witness

“is truthful”); United States v. Skeens, 494 F.2d 1050, 1053 (D.C. Cir. 1974) (adhering to Frye

and holding polygraph evidence inadmissible); Dowd v. Calabrese, 585 F. Supp. 430 (D.D.C.

1984) (polygraph results not sufficiently reliable to be admissible).

7

43 F.3d 1311 (9th Cir. 1995) (decision enhanced the role of judges as evidentiary

“gatekeepers”, trusting them and jurors to determine the admissibility of scientific evidence).

8

Id. at 1316.

9

Id.

10

Id. at 1318.

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been subjected to normal scientific scrutiny through peer review and publication.”11 A

third factor, where there is no evidence that the expert’s proffered testimony grows out

of research conducted independent of litigation, or that the expert’s research has been

subjected to peer review, is testimony of other experts.12 The Court explained that for

other expert testimony to be sufficient:

[T]he experts must explain precisely how they went about reaching their

conclusions and point to some objective source—a learned treatise, the policy

statement of a professional association, a published article in a reputable

scientific journal or the like—to show that they have followed the scientific

method, as it is practiced by (at least) a recognized minority of scientists in their

field.13

The Eleventh Circuit has recognized that “[s]ince the Frye14 decision, tremendous

advances have been made in polygraph instrumentation and technique.”15 However, the

court said that the effect of the Military Rule Of Evidence, Rule 707 “is to freeze the law

regarding polygraph examinations without regard for scientific advances.”16 Thus, the

effect of the rule would appear to limit the use of opinion or reputation evidence to

establish the credibility of the appellant and “we believe that the truth-seeking function

is best served by keeping the door open to scientific advances.”17 With respect to the

appellant’s case, the court said:

we... cannot determine `whether polygraph technique can be said to have made

sufficient technological advance in the seventy years since Frye to constitute

the type of scientific, technical or other specialized knowledge envisioned by

... Daubert18.

While the Court of Appeals in Sheffer did not decide whether polygraph

examinations are scientifically valid nor did they decide that they will always assist the

trier of fact in this or any other case; it merely sought to remove the obstacle of the per

se rule against its admissibility.

11

Id.

12

Id.

13

Id.

14

United States v. Frye, 293 Fed. 1013 (D.C. Cir. 1923) (polygraph evidence was held to

be inadmissible because it was unreliable; the 1993 Daubert decision modified the 1923 Frye

test).

15

United States v. Piccinonna, 885 F.2d at 1532; see also United States v. Crumby, 895 F.

Supp. 1354 (D. Ariz. 1995).

16

Scheffer, 44 M.J. 442, 446 (1996).

17

Id.

18

Id.

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The Supreme Court, ruling 8-1, in the Scheffer case said “... there is simply no

consensus that polygraph evidence is reliable.”19 Without rejecting unqualifiedly the

argument that the defendants may have a constitutional right to have polygraph evidence

admitted at trial, the Court apparently is willing to allow many state and federal courts to

continue banning such evidence.20 The Court noted that various courts “... may

reasonably reach differing conclusions as to whether polygraph evidence should be

admitted.”21 The justices may have been influenced by the fact that “[t]o this day, the

scientific community remains extremely polarized about the reliability of polygraph

techniques.”22 While holding that the military rule does not violate the Constitution,23

the Supreme Court noted that most state courts ban polygraph evidence. It was also

noted that some federal courts have recently dropped the ban on such evidence thereby

leaving the decision to the trial judges.24 Although Rule 707 applies to the military courts,

it is very likely that the decision will have an impact on those civilian courts which have

abandoned the per se rule excluding polygraph evidence. 25

19

66 U.S.L W. at 4237.

20

Id.

21

Id. at 4238.

22

Id. at 4237.

23

Deciding that the Sixth Amendment right of the accused to call witnesses in his favor had

not been violated, the Court's reasoning appears to have been based upon the conclusion that the

results of the polygraph exam did not constitute factual evidence regarding the crime at hand.

"Rather the evidence introduced is the expert opinion testimony of the polygrapher about whether

the subject was truthful or deceptive in answering questions about the alleged crime. A per se

rule excluding polygraph results therefore does not prevent an accused--just as it did not prevent

respondent here--from introducing factual evidence or testimony about the crime itself, such as

alibi witness testimony .... For the same reasons, an expert polygrapher's interpretation of

polygraph results is not evidence of `the accused's whole conduct' .... It is not evidence of the

`accused's ... conduct' at all, much less `conduct' concerning the actual crime at issue. It is merely

the opinion of a witness with no knowledge about any of the facts surrounding the alleged crime,

concerning whether the defendant spoke truthfully or deceptively on another occasion." 66

U.S.L.W. at 4239, n. 13.

24

25

Id. at 4237.

See, e.g., United States v. Cordoba, 104 F.3d 225, 228 (9th Cir. 1997); United States v.

Posado, 57 F.3d 428, 434 (5th Cir. 1995).

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