*1 UNITED STATES SCHEFFER No. 96-1133. Argued 3, 1997 31, 1998 November March Decided *2 and delivered the Thomas, J., judgment of the Court announced II-A, II-D, I, in which respect Parts and Court with opinion Ginsburg, Kennedy, SouteR, J., O’Connoe, Scalia, Rehnquist, and C. and to Parts II-B Breyer, JJ., opinion and an with joined, respect and Rehnquist, Souter, JJ., joined. J., II-C, C. and Scalia and in which Kennedy, concurring and J., concurring part an opinion filed Breyer, JJ., joined, post, O’Connor, Ginsburg, and in which judgment, post, p. 320. J., Stevens, dissenting opinion, filed a p. 318. argued the cause for Deputy Dreeben General Solicitor Acting were So- on briefs him the United With States. Acting General Wax- Dellinger, Solicitor licitor General Keeney, David C. Attorney Acting General Assistant man, J. Breslin. Gershowitz, Michael and Frederick, M. Joel respondent. argued With the cause for Kim L. Sheffield L. Michael McIn Hubbard, L. were Carol her the brief Craig tyre, Wink, W Mullen.* and Robin S. for the State Con curiae were filed of amici urging reversal * Briefs Connecticut, Bailey, Attorney of M. by John Chief State’s
necticut et al. Rossi, Attorneys Attorney, State’s and Judith Senior Assistant Pryor Bill of Ala as follows: jurisdictions respective General their Arkansas, Daniel Bryant Winston Alaska, Botelho M. bama, Bruce E. Baker Delaware, Thurbert Brady Jane California, E. M. lamgren judgment announced the of the Court Justice Thomas opinion respect to and delivered the of the Court with Parts opinion respect I, II-A, II-D, to Parts with II-B and II-C, which The Chief Scalia, Justice Justice, join. and Justice Souter presents question Military case This whether Rule of Evidence makes which evidence inadmissible abridges unconstitutionally proceedings, in court-martial right military present of accused members of the a de- fense. hold it We does not.
I *3 respondent In March 1992, Scheffer, Edward an airman California, stationed March Air Force Base in volunteered drug investigations to work on as an informant for the Air (OSI). Investigations Special super- Force of Office His OSI during visors him that, advised from time time the course to they his of work, undercover would ask him to submit to drug testing early April, and In examinations. of Georgia, Jeffrey A Modisett of Kansas, Carla J. Stovall of Indiana, Richard Louisiana, Ieyoub P. Maine, Joseph Andrew Ketterer J. Cur- of of ran, Jr., Maryland, Massachusetts, Scott Mike of Harshbarger Moore of of Mazurek, Montana, Mississippi, Joseph P. Nebraska, Stenberg Don of of Del Philip Frankie Sue Nevada, Papa McLaughlin T. of of New Hamp- Dennis C. shire, Vacco New Michael York, Carolina, of Easley F. of North Betty Montgomery D. of D. Ohio, Oklahoma, of Drew Edmondson Michael Fisher of B. Pennsylvania, Island, Jeffrey Molony Pine Charles Rhode of Condon Richard 0. Gre- Carolina, Cullen Christine Virginia, South goire Robert A Butterworth of and William U. Washington, Florida, Hill Kent for Wyoming; Legal by the Criminal Justice Foundation S. Scheidegger and Charles L. Hobson. curiae urging amici
Briefs of filed affirmance were for the American Vaughan; Gordon L. Polygraph by Army Association for the United States II; John T. by Defense Appellate Division Phelps for the Committee of Peterson; F. Charles Concerned Social Asso- by Scientists for the National Barbara ciation Charles W. Daniels Lawyers of Criminal by Defense Bergman; E. and for the De- Navy-Marine Corps Appellate United States by Syed N. Ahmad. fense Division agents supervising respondent requested
one of the OSI Shortly he to a urine providing submit test. after the urine sample, before the but results were re- known, test spondent agreed to take test administered opinion examiner. examiner, OSI test deception” respondent using “indicated no when denied drugs joining the Air since Force.1 respondent April unaccountably appear
On failed for work not be found He and could on the was absent base. May patrolman until without when an state leave Iowa following stop him for arrested him routine traffic and held agents respond- return to the base. OSI later learned presence methamphetamine. urinalysis revealed the ent’s by general charges Respondent was tried court-martial methamphetamine, appointed using failing go to his wrongfully absenting duty, from the for place himself base uttering respect days, matter, with to an and, unrelated own trial on his funds checks. He testified at 17 insufficient theory ingestion” upon and de- relying an “innocent behalf, working knowingly drugs while nying had used he attempted prosecution cross-examination, the On OSI. trial between his impeach respondent with inconsistencies made OSI. earlier statements he had sought polygraph evidence Respondent introduce *4 knowingly use that he not support did of his relying on judge’ motion, military the drugs. denied The provides, relevant Military of which Evidence Rule part:
“(a) any re- provision law, the Notwithstanding of other opinion poly- polygraph examination, the sults of any take, an offer to graph to examiner, or reference (1) you’ve “Since relevant questions: three OSI asked 1 The examiner (2) Force], drugs?”; you “Have any you illegal have used been in [Air the (3) OSI?”; and “Be you’ve given the information drug lied about OSI?” Re anyone you’re assisting you have told your parents, sides 12. question. App. “no” to each spondent answered taking take, polygraph failure of a examination, shall not be admitted into evidence.” military judge determined that Rule was constitu- may, through “the tional because President the Rules Evi- credibility that dence, determine is not area in which a help, process fact finder needs the and not acceptability has sufficient scientific to be relevant.”2 App. might give further 28. He reasoned that the factfinder weight testimony, undue examiner’s and arguments that collateral about such evidence could consume expense.” “an inordinate amount of time and Ibid. Respondent was convicted on all counts and was sentenced discharge, to a 80 months, bad-conduct confinement for total pay all forfeiture of the allowances, reduction to low- grade. Ap- est enlisted The Air Force Court Criminal respects, peals explaining in all affirmed material that Rule arbitrarily ability present limit the 707 “does accused’s (en (1995) banc). reliable evidence.” 41 M. J. By Appeals vote, 3-to-2 the United States Court the Armed Forces reversed. 44 M. J. Without any particular language pointing Amendment, Sixth Appeals per poly- “[a] held se Court of exclusion graph by an evidence offered to rebut an attack on accused credibility right his his . . . Sixth Amendment violates Judge present Id., Crawford, a defense.” at 445.3 dissent- of Military Article 36 of Uniform Code Justice authorizes Presi dent, Forces, Const., as Commander Chief of the Armed see U. S. Art. §2, “Pretrial, trial, II, rules courts: promulgate military of evidence for including post-trial procedures, proof,... may prescribed modes of he shall, he regulations which so far as considers by practi President cable, generally recog law and rules apply principles States courts.” nized the trial criminal cases district United 836(a). § 10 U. S. C. Court, respondent Compulsory cites Sixth Amendment’s In this his specific provision supporting Process Clause as constitutional briefly “combined effect” of the Fifth claim. He also contends *5 a upon right “‘meaningful op- Sixth Amendments him to confers 308
ing, right present stressed that defendant’s to relevant evi- dence is absolute, not relevant can be evidence excluded supported by reasons, for valid and that Rule 707 a num- was justifications. granted Id., ber of valid at We cer- 449-451. (1997), tiorari, 520 S. 1227 reverse. U. and we now
II right present A to evidence is not defendant’s relevant subject rather is to restrictions.4 unlimited, but reasonable (1988); Taylor Rock v. Ar- Illinois, 400, See 484 U. S. 410 v. (1987); Mississippi, 410 kansas, 44, S. v. Chambers U. (1973). presenting A defendant’s interest 284, U. S. “ legiti- may thus other such ‘bow accommodate evidence ” process.’ supra, Rock, in the criminal trial mate interests 295); Michigan supra, accord, v. (quoting Chambers, at at 55 (1991). result, and fed- state Lucas, 500 As U. S. latitude under Constitution have broad eral rulemakers excluding criminal trials. from evidence to establish rules present right abridge an accused’s Such rules do “arbitrary” “dispropor- they or long are not as defense so they Rock, designed to serve.” purposes tionate to supra, Lucas, Moreover, we at 151. supra, 56; accord, at unconstitutionally to be exclusion evidence found the have infringed only disproportionate it has arbitrary where or supra, Rock, at weighty interest of the accused. See upon a Washington Texas, 388 S. v. U. supra, 302; 58; Chambers, 14, 22-23 Kentucky, 476 U. S. defense,’” Crane complete portunity to present (1986) omitted), encompasses turn (citations light that this to holster his right present a constitutional credibility. throughout in reference “jury” are used words “defendant” nonmilitary discussing precedents. of law and general principles “court,” the terms military specifically, ease
reference mili throughout, is the members,” or “court-martial” are used “court “accused,” “defendant.” rather than the civilian term tary term
309 legitimate Rule 707 serves several interests the crimi process. nal trial ensuring These only interests include that is reliable evidence preserving introduced at trial, the court determining credibility, members’ avoiding role litiga and primary tion purpose that is collateral to the of the trial.5 arbitrary The Rule is neither disproportionate pro nor moting implicate these ends. sufficiently Nor does it weighty interest the defendant to raise a constitutional precedents. our concern under
A unquestionably and Federal State Governments a le have gitimate ensuring pre interest that reliable evidence is in a Indeed, sented to the trier fact trial. criminal principal objective of unreliable evidence exclusion many g., evidentiary See, rules. e. 702, 802, Fed. Rules Evid. Daubert Pharmaceuticals, Inc., see also v. Merrell 901; Dow 589 579, 509 U. S. respondent the dissent notwith
The contentions simply polygraph standing, no consensus that evi there day, community dence To this the scientific re is reliable. reliability extremely polarized polygraph about the mains Faigman, Kaye, Saks, & techniques. Sanders, 1 D. D. M. J. § 14-2.0 §14-7.0 565, †, Evidence n. Modern Scientific (1997); Imwinkelried, P. & Scientific see also Giannelli E. interests, others, hy Rule among were the drafters of recognized These Rule the risk that court 707, grounds: on the justified following who evidence; the tradi misled risk by polygraph be members would adjudge the facts and of court members to ascertain responsibility tional usurped; danger confusion would guilt innocence into a of the degenerating trial court-martial issues “‘could result ” issues; machine;’ on collateral likely waste time polygraph sufficiently ‘“reliability has not been fact (USAR 1995) App. (citing 41 M. J. Ct. See Crim. established.’” Courts-Martial, States, Rules Analysis Military United Manual for ed.)). (1994 Evidence, A22-46 p. App. 1993)(hereinafter (2d § 8-2(C),pp. Gi 225-227 ed. Evidence Imwinkelried); Strong, Evidence annelli J. McCormick & McCormick). (4th 1992) (hereinafter p. Some § 206, ed. ac tests overall studies have concluded that Complete e.g., Abrams, The See, curate reliable. S. *7 (1989) Polygraph (reporting the overall 190-191 Handbook involving accuracy laboratory the common studies from rate range technique” “in the question polygraph “control polygraph tests percent”). found assess 87 Others have that accurately scientificfield significantly less truthfulness —that accuracy question “control suggest the rate of the studies obtained technique” polygraph could be is “little better than percent. lacono & coin,” is, that 50 See the toss of Polygraph Lykken, on Status of Research The Scientific Against Polygraph Tests, in 1 Mod Techniques: The Case (hereinafter § supra, 14-5.3, 629 Evidence, ern Scientific Lykken).6 & lacono disagree- consensus is reflected
This lack of scientific concerning both the among ment state and federal courts 6 Technology Office of Congress’ *8 1995). New Mexico in Tex. evi making unique polygraph dence admissible without generally stipulation prior and without restriction. See N. M. significant parties 7 in federal courts uniform quite recently, categori and state were Until test set forth evidence inadmissible under polygraph cally ruling (CADO States, 1923), F. held that scientific v. 293 1013 which United Frye acceptance expert commu gain general evidence relevant must Inc., Pharmaceuticals, In v. be Daubert Merrell Dow nity to admissible. (1993), by the Fed superseded we held that had been Frye 509 S. 579 U. could be admitted if the expert testimony and that eral Rules Evidence it both relevant and district court deemed reliable. Daubert, found neither nor state Sixth federal courts Prior to See, v. g., Risley, e. Bashor rule. categorical
Amendment obstacle (1984); (CA9), denied, 838 v. 1228, People U. S. cert. 469 730 F. 2d (1991), denied, Price, 419-420, cert. 821 P. 2d Cal. 4th foreclosed, as constitutional mat Nothing in Daubert U. S. 851 expert or scientific evi ter, exclusionary for certain types se rules per hierarchy of if altering an odd of our laws It inversion dence. would corresponding change a rule of evidence worked or interpreting meaning of Constitution. § approach,
Rule Evid. 11-707.8 their Whatever state and express federal courts continue about doubt whether such e.g., See, evidence reliable. United Messina, States v. supra, at v. supra, Posado, United at State v. 42; 434; States supra, Porter, 126-127, 698 2d, State, at 774; at A. v. Perkins supra, People supra, at 94; Gard, at 632 N. 202-204, 2d, E. supra, Odell, at 1032; re 459. approach adopting taken President in Rule excluding military polygraph in all evidence trials —is a 707— advancing proportional legitimate rational and means of barring Although the de- interest gree unreliable evidence. upon reliability depend polygraph may way variety simply factors, there is no to know identifiable particular polygraph in a examiner’s conclu- case whether because certain doubts and uncertainties accurate, sion is jurisdic- polygraph plague best exams. Individual even the differing reasonably reach conclusions tions therefore We admitted. polygraph evidence should be as whether widespread say, presented un- with then, that such cannot certainty, disproportion- arbitrarily acted the President excluding ately per promulgating a se all rule evidence.
B legitimate equally 707 serves a second It is clear Rule Preserving governmental core the court members’ interest: particular because the Government —and argues that Respondent the Gov testing, uses routinely Department Defense — *9 of poly use polygraphs must reliable. Governmental ernment consider screening, tests, however, and personnel the field primarily graph but intelligence investigations, criminal as a tool in and a lesser extent Barland, 17; Brief for United States n. not as evidence at trials. See Elsewhere, Test 76 Polygraph in The in the USA and Polygraph The Test (A. 1988). tech limited, of polygraph out of court uses Gale ed. Such from, conse carry and less severe niques obviously in character differ They trial. than, as evidence in a criminal quences polygraphs the use evidence, they and do reliability as trial polygraphs do not establish the 707’s reliability supporting categori a valid Rule invalidate concern cal ban. making credibility
function of determinations in criminal premise trials. A fundamental system of our criminal trial jury is that “the is the lie detector.” United v. Bar States (CA9 1973) added), (emphasis nard, 2dF. cert. (1974). Determining denied, weight 416 U. S. and credibility testimony, long of witness therefore, has been “part every belongs [that] held jury, to be the case presumed by who to be fittéd for it their natural in telligence practical knowledge and their of men and the ways of Aetna Ward, men.” Ins. Co.v. 140 S. 76, 88 U. Life (1891).
By very its nature, diminish the jury’s making credibility role in determinations. The com- variety physiologi- mon form of test measures a responses questions by cal to a set of asked the examiner, interprets physiological anxiety who then these correlates of opinion jury an whether the offers about wit- deceptive as in this the accused—was often, case, ness— answering questions very about the matters issue §206.9 expert other trial. 1 McCormick wit- See Unlike testify jurors’ outside nesses about factual matters who analysis knowledge, fingerprints, as the or ballistics, such polygraph expert supply scene, at a crime found can DNA jury only opinion, own, with another in addition to its telling the witness about whether was the truth. Jurisdic- may legitimately promulgating tions, evidence, rules of juries give about risk that will excessive concerned interprets exami- physiological responses The examiner various nee, pressure, respiration, asking while including perspiration, blood accusatory in three direct questions, commonly categories: series of matter under irrelevant neutral questions concerning investigation, general wrongdoing more “control” questions, questions concerning general. subject’s The subject opinion examiner forms each physiological set by comparing ques truthfulness reactions 219-222; & Quick, Giannelli & Honts generally tions. See Imwinkelried Law, in 1995: 71 N. L. L. Progress in Science and the Rev. Polygraph 987, 990-992 *10 weight opinions polygrapher, they aof clothed as expertise respond- in scientific offering, and at times inas a case, ent’s conclusion about the ultimate issue in the trial. jurisdictions legitimately Such determine the aura infallibility attending polygraph jurors evidence can lead duty credibility guilt. to abandon them to assess Those jurisdictions may also take judge into account the fact a ruling poly- determine, cannot when on a motion to admit graph particular polygraph expert evidence, whether likely unduly. jury reasons, influence For these prerogative promul- President is within his constitutional gate per simply se rule that excludes all such evidence.
C avoiding legitimate by Rule 707 is A third interest served guilt litigation or innocence of other than the over issues litigation prolongs criminal trials collateral accused. Such jury its central function and threatens to distract from Allowing proffers determining innocence. guilt inevitably assessments would entail questions were the test and as whether control such issues particular polygraph was appropriate, examiner whether interpreted physiological properly re- qualified and had sponses, factors such countermeasures whether other by results. employed distorted the exam the examinee had every required each and would Such assessments for the principle no constitutional offends case.10 It thus poly- excluding per se rule all to conclude that President litigation appropriate. over the graph Because evidence is very admissibility nature col- polygraph evidence is its presence place could outside the litigation some of this take Although jury a foundation must be laid for the very at the least jury, of the validity and the polygrapher and skill qualifications assess exam, could occur these issues. significant cross-examination *11 per a prohibiting lateral, se rule its admission is not an arbi- trary disproportionate avoiding or means of it.11
D precedents The upon three our Ap- which the Court peals principally Washington Rock relied, Arkansas, v. v. Texas, Mississippi, and Chambers v. do support right to very introduce even in evidence, narrow cir- cumstances. exclusions of evidence we declared significantly unconstitutional in those eases undermined fun- damental elements of the defendant’s defense. Such is not the ease here. killing defendant,
In Rock, the accused of to which she only eyewitness, allegedly was was able remember the only killing having memory of the hypnoti facts after her cally Arkansas, S., refreshed. See Rock v. at U. 46. hypnotically Because Arkansas excluded all refreshed testi testify mony, the defendant was unable to about certain rele including killing facts, vant whether the been had accidental. holding id., at In See 47-49. the exclusion of this evi “right present a defense,” dence violated defendant’s deprived jury testimony we that the rule noted only at the scene had witness who was firsthand knowledge id., Moreover, See at 57. facts. rule infringed testifying upon the interest in in her defendant’s particularly sig defense—an that we deemed own interest target nificant, as who is the crimi- it the defendant "merely that it had Although remove[d] the Court stated Appeals per se rule against admissibility” the obstacle exculpatory polygraph where the proffer in cases accused wishes (1996), credibility, respondent 44 M. rebut an attack on his J. litiga require that the Constitution would collateral implicitly argues thus cases, principled justification whereby we cannot see a only tion such narrowly the Constitution could be so contained. right derived from prosecution. id., nal at For reason, See 52. we stated ought present “to defendant allowed his own version events in his own words.” Ibid. Washington, prevented
In the statutes involved co- coparticipants testifying defendants a crime from precluded thus one another and from introduc- defendant ing accomplice accomplice’s his that the had fact Washington Texas, committed the S., crime. See 388 U. reversing Washington’s we held conviction, 16-17. *12 that the Sixth Amendment was violated because “the State [the defendant] arbitrarily right put the denied on the mentally physically capable and witness who was stand personally testifying Id., that he had to events observed.” at 23.12 process we found due violation in the Chambers,
In Mississippi’s application “voucher common-law combined impeaching party his wit- prevented a from own rule,” which testimony hearsay the that excluded and its rule ness, See persons that witness had confessed. to whom three spe- Mississippi, S., at Chambers 410 U. 302. Chambers holding to and circumstances” cifically the “facts confined its ruling did case; we thus stressed that the presented in that traditionally respect ac- any “signal diminution not implementa- establishment corded the States procedures.” Id., trial rules and their own criminal tion of stand for the therefore does not at 302-303. Chambers opportunity denied a fair is proposition the defendant or federal rule excludes state whenever to defend himself favorable evidence. require Washington, do not that Rule
Rock, and Chambers evidentiary rules at unlike invalidated, because, 707 be any signifi- implicate 707 does not cases, Rule in those issue no addition, legiti advance noted that the State of Texas could we issue, evidentiary and those rules of the rules at support mate interests S., at 22- See 388 U. only prosecution. burdened the defense from neither these defects. 23. Rule 707 suffers cant interest accused. court Here, members heard all the relevant details of the offense from charged accused, did not perspective Rule preclude him from Rather, factual evidence.13 introducing re- was barred from expert spondent merely introducing opinion to bolster his Moreover, own con- credibility. trast to the rule issue in 707 did not Rock, Rule prohibit from behalf; his own he exer- respondent testifying freely cised his choice of the his version facts convey court-martial members. We therefore cannot conclude that defense was respondent’s the exclu- significantly impaired sion of evidence. Rule 707 thus constitutional under our precedents.
(cid:127)I' reasons, For the Rule Evidence foregoing Military does not right unconstitutionally abridge present defense. Court reversed. judgment Appeals
It is so ordered. *13 suggests, post, The dissent at results polygraph constitute The raw polygraph “factual evidence.” results of exam—the subject’s data, and perspiration factual but pulse, respiration, may be these rates — trial, were, are not at and even they they introduced if would not be crime at the alleged Rather, “facts” about the hand. evidence introduced is of the expert opinion testimony the about whether the polygrapher sub or was truthful about ject deceptive answering alleged the questions rule crime. A se therefore per excluding polygraph results does not just respondent an as it did not prevent here—from prevent accused— itself, factual evidence or about the crime such testimony as introducing reasons, see ibid. For testimony, poly- alibi witness same expert the of grapher’s interpretation polygraph results is not evidence “‘the ac ” conduct,’ Wigmore post, cused’swhole see at to which Dean referred. all, It at is evidence the “‘accused’s ... conduct’” much less “con the actual duct” crime It of a concerning merely opinion issue. knowledge surrounding witness with no about of the alleged facts crime, concerning whether the defendant or spoke truthfully deceptively on another occasion. Kennedy, Jus- O’Connor, whom Justice Justice with Breyer Ginsburg, join, concurring in
tice and Justice part concurring judgment. and opinion join II-D of of the Court. I, II-A,
I and Parts this my been decide it should have sufficient view opinion principal does, that various case to as observe, differing jurisdictions "may reasonably reach courts and polygraph evidence should as whether conclusions good-faith continuing, dis- Ante, at 312. admitted.” subject poly- agreement among experts courts on the and against per se invalidating a graph reliability our counsels has or fact an accused results exclusion If we examination. taken or refdsed take holding respondent’s position, course, accept our were to military federal courts, as well as would state bind agree polygraphs, I ongoing debate about courts. Given arbitrary disproportionate or so exclusion is not the rule of that it is unconstitutional. per wise, though, rule se
I that the exclusion doubt, might present compelling ease case more and some later does. than one for introduction Though given to the trial court discretion the considerable excluding is not constitu admitting scientific Dow Pharmaceuti see Daubert v. Merrell mandate, tional (1993), is some tension Inc., 579, there cals, 509 U. S. holding today. And, Justice between that rule our inconsistency between points out, is much Stevens there polygraphs vital use make extensive Government’s argument here, it makes security determinations inaccuracy stressing these tests. opinion principal respect, moreover, it seems the
With all holding its additional it overreaches when rests *14 credibility jury's making ground in role determina- I am hears evidence. tions it is diminished when agreement Stevens’ observa- in with Justice substantial argument the role tion demeans and mistakes that the jurors competence of deciding question guilt the factual or Post, innocence. at analysis 336-387. the last says principal opinion jury it is unwise to allow the to hear “a conclusion about the ultimate issue in the Ante, trial.” thought argument I had long 314. this tired had since given repose been categorical its deserved as a rule of exclu- 704(a) Rule sion. the Federal Rules of Evidence states: (b), “Except provided in subdivision in the form opinion objec- inference otherwise admissible is not it tionable because embraces an ultimate issue to be decided Advisory the trier of fact.” The Committee’s Notes state: against “The eases often older contained strictures al express lowing opinions upon witnesses ultimate is particular aspect against opinions. sues, as of the rule unduly application, rule was difficult of restrictive, The only generally deprive served the trier of fact of Wigmore §§ 1920, 1921; useful information. McCor § usually assigned The rule, mick basis for the 12. province 'usurping the prevent the witness from aptly 'empty jury,’ is characterized as rhetoric.’ 7 Wigmore p. Advisory § 1920, Committee’s *15 opinion
state an or inference as to whether the defend- ant did or did not have the mental state or condition constituting charged an element of the crime or of a de- fense thereto. ultimate Such issues are matters for the 704(b). trier of alone.” Evid. fact Fed. Rule drafting Military for the committee Rules of Evidence statutory quali- It renounced even this remnant. “The said: military fications for court members reduce the risk that mil- itary unduly pres- by court members will be influenced opinion psychiatric entation from ultimate Analy- experts.” Courts-Martial, States, United Manual Military App. p. Evidence, A22-48 sis of the Rules ed.). (1995 protect Any supposed need to the role by specific even further ac- finder fact is diminished military likely knowledgment courts are not members opinions experts give weight to or otherwise excessive testimony. their Neither be misled or confused military courts, then, it convinc- system federal nor ing say should be excluded test results jury’s usurping lingering concern about because of some responsibility ultimate issues. to decide Stevens,
Justice dissenting. Appeals Forces for the Armed The United Court States in June violated the Constitution the President held that Military Rules promulgated he Rule when court, I I of that would been a member Had of Evidence. requiring the question first without not have decided question whether parties argue antecedent brief and 86(a) of Mili- of the Uniform Code Article 707 violates Rule 836(a). § presently advised, I am tary As Justice, 10 S. C. U. should the statute and persuaded does violate that the Rule agree I with the Court reason. also for that be held invalid This Court’s Appeals Rule unconstitutional. that the of contrary of the undervaluation im- holding rests on a serious right present a portance de- constitutional of the citizen’s charge appraisal fense ato criminal and an unrealistic of the importance governmental undergird interests that discussing Rule. Before issue, constitutional I shall *16 briefly statutory on the question. comment
I Rule 707 is a blanket rule of exclusion.1 No matter how probative reliable and how polygraph the of a results test may categorically any Rule 707 op- be, the denies defendant persuade portunity to the court that the evidence should be any purpose. parties stipu- received for if Indeed, even the in late advance the results of a lie detector test requires admitted, the Rule exclusion. against principal charge respondent
The in this case knowingly methamphetamine. he had was that used His principal ingestion”; defense was even “innocent if the uri- nalysis correctly April 7, conducted 1992, test indicated ingest the to have substance, that he did he claims been un- fact. The results of lie detector aware of that test con- days later, if constitute accurate, three factual evi- ducted physical his time was condition at that consistent dence theory of his defense and with the- with the inconsistent ory prosecution. were also relevant be- results credibility testimony. they his tended to confirm the cause polygraph if of the even the results test Under Rule urinalysis, reliable than the results were more stronger evidence is admissible and weaker inadmissible. reasoning in a case now decided discredited
Under Frye App. ago, years States, 54 D. C. 293 v. United states, part: Rule relevant any law, provision polygraph other the results “Notwithstanding examiner, examination, opinion reference take, take, examination, or taking failure to of a shall offer 707(a). not be admitted into evidence.” Mil. Rule Evid. (1923), F. 1013 that anomalous result would have also been nonmilitary reached cases tried the federal courts. years, Frye’s only repudiated recent however, we have not general approach to evidence, scientific but the federal courts engaged process rejecting have been also once- popular categor- all lie view that detector evidence should be ically opinions concluding, inadmissible.2 Well reasoned consistently with Court’s decisions in v. Daubert Merrell (1993), Inc., U. Pharmaceuticals, Dow S. (1997), Joiner, Co. 522 U. that the General Electric S. 136 wisely judges allow district to exercise broad federal rules admissibility evaluating the when scientific evi- discretion correctly opinions rules that the dence.3 Those observe *17 generally recognized in the of civil and crimi- trial evidence courts do not contain blanket nal cases in the federal admissibility prohibition polygraph against evidence. 2 testing gained has years polygraph in recent is no question “There tool. as a useful and reliable scientific increasingly widespread acceptance have the field which that have been achieved Because of the advances examination, a lack of with coupled to use of greater polygraph led evidence, agree we swayed by unduly polygraph are juries evidence poly per disallowing found that a se rule which have courts with those Thus, . . we believe best . longer no warranted. evidence is graph relevant to admit all balances the need is one which in this area approach evidence that the admission against danger and reliable evidence v. Picci unfairly United States prejudicial.” will purpose for given 1989). (CA11 1529, hold that do not now nonna, “[W]e 885 F. 2d 1535 always they or that will scientifically valid are polygraph examinations merely fact, individual case. We any other in this the trier assist admissibility, which was against se rule per remove obstacle ability of the polygraph the technical about antiquated concepts based on Supreme by the that have been overruled expressly precepts and legal (CA5 1995). 428, Posado, 57 F. 3d States Court.” United is in excluding unstipulated . .. polygraph “The se rule per by Dau- inquiry3 assigned judge to the trial with the ^flexible consistent Frye, because which was overruled evident particularly bert. This Daubert, evidence.” United admissibility polygraph involved 1997). (CA9 Cordoba, 104 F. States v. 3d In accord with the modern trend of decisions on this ad missibility issue, in 1987the Military Appeals Court of held that an attempt lay” accused was “entitled the founda tion for polygraph admission favorable evidence. United Gipson, States v. 24 M. J. The President responded Gipson by adopting Rule governing 707. The statute promulgate authorized him evidentiary rules “which practicable, shall, so far as he considers apply the principles of generally law the rules of evidence rec ognized in the trial of criminal eases the United States 886(a).4 § district courts.” S. if Thus, U. C. there are military special military concerns warrant rule for tri gives ample the statute authority promulgate bunals, him special rules that take such concerns into account. counterpart
Rule 707 has no in either the Federal Rules of Evidence or the Federal Rules of Criminal Procedure. plays Moreover, to the extent that use of the lie detector special military prac- role military establishment, admissibility to a rule of tices more favorable than use of less structured lie detectors in the civilian sector of society. military carefully regu- is so That because the our the administration tests to ensure lates reliable military “very stringent maintains results. The standards Poly- and has its examiners”5 established own 4“Pretrial, *18 modes of for procedures, including and trial, post-trial proof, courts-martial, in commis arising triable chapter military under this cases tribunals, for courts military procedures inquiry, other and of sions and shall, far he by regulations which so as President may prescribed by of the rules of evidence principles law and apply practicable, considers the United States the trial of criminal eases recognized generally courts, or with this contrary which not be to inconsistent but district 836(a). § U. C. chapter.” S. Congress: to According Report of Defense’s Department poly for very stringent of Defense maintains standards “The Department of Defense Institute’s basic Department Polygraph examiners. The graph its only known base curriculum program program is polygraph abstract, applied and knowl- psychophysiology, conceptual, forensic graph “generally Institute, which the best considered to be facility training polygraph for examiners the United military States.”6 The has thou- administered hundreds of routinely of a sands such tests and uses their results wide for variety of officialdecisions.7 a
edge degree-level study. master’s of requirements meet for Department polygraph positions Candidates selected Defense following requirements: must meet the minimum Be a “1. United States citizen. 25 years age.
“2. Be at least graduate four-year equivalent Be a of an have college “3. accredited aca- experience ability graduate-level that demonstrates master demic courses. Have as an with a Federal or years experience investigator
"4. two other law enforcement agency.... as temperament, Be of moral character and sound emotional
“5. high investigation. by background confirmed Department Defense-approved polygraph course Complete “6. instruction. being Be after administered position suitable adjudged “7. realizes, designed to that the candidate examination ensure
polygraph and. to, examinations. personal of such impact sensitive training receive their basic polygraph federal examiners polygraph “All After completing at Institute. Polygraph of Defense Department internship must consist- training, personnel DoD serve polygraph basic on-the-job-training and least six conduct of a minimum of months ing supervision polygraph under the of a certified examinations polygraph Defense being Department examiner before certified addition, com- required examiners DoD examiner. years.” Department every two continuing hours of education plete 80 Fis- Polygraph Report Congress, Polygraph Program, Annual Defense 14-15; Yankee, The Current Status of Research also cal see pp. Year Psychophysiologi- Application and Its Psychophysiology in Forensic 40 J. Forensic Sciences 63 Deception, cal Detection of Challenges, Changes Polygraph Admissibility: & Perry, 6 Honts (1992) (hereinafter & Honts 357, 359, n. 1 Human Behavior Law and Perry). over of Defense conducted the Department 7 Between 1981 arising issues counterintelli examinations resolve 400,000 polygraph Defense investigations. Department and criminal gence, security, Congress, Fiscal Year Report to Program, Polygraph Annual Polygraph *19 adoption stated reasons for the rely of Rule 707 do not military special They merely concern. invoke three (1) the interests: interest in excluding unreliable evidence; (2) protecting the interest being the trier of fact from mis- assumption led an unwarranted that evi- (3) infallibility”; dence “an aura of has near the interest avoiding admissibility collateral par- debates about the ticular test results. pose
It seems clear those less interests serious con- military cerns in the than in the Disputes civilian context. equipment, qualifications about the of the examiners, testing procedures respect should seldom arise with by military. surely the tests conducted Moreover, there military personnel perform to assume is no reason who factfinding competent ordinary function than ju- are less reliability particular results, rors assess or their relevance to issues.8 there is no identifiable mili- Thus, justifies promulgation tary of a concern President’s military special rule that is more the accused burdensome evidentiary applicable military than trials rules trial of civilians. fairly therefore, seems clear that Rule 707 does not
It, ground, comply I this the statute. do not rest on how- with my briefing might persuade change me to ever, because only the has decided constitu- views, and because Court question. tional
II person acknowledges barely that a opinion The Court’s right present a crime has a constitutional accused of id., 1; id., 1; 1; id., Fiscal Year 1995, Fiscal 1996, p. Fiscal Year 1997, p. p. A; id., id., 1992, 1993, App. Fiscal Year 1; Year App. Fiscal p. Year 1981-1991). A; id., information App. (reporting Year A-1 Fiscal officers, as was true court-martial When the members as well significant degree have at least a case, they college typically g., e. United States also, 825(d)(2); § See 10 U. S. see military service. C. (A. 1986). Carter, 771, 776 M. 22 M. J. C. R. *20 necessary point particular “any is not to to defense. It lan- guage support Amendment,” ante, 307, in the Sixth to firmly right is, that the is established. It how- conclusion right importance appropriate on the ever, to comment that discussing the three interests that the Government before justify upon relies to Rule 707. provides “the shall that accused
The Sixth Amendment compulsory process obtaining enjoy to right... have right Because this “is an essential his favor.” witnesses in adversary repeatedly system we have itself,” of the attribute rights more that of few “are fundamental than stated that present in Ac- to his own defense.”9 an accused witnesses provision Joseph Story, in the cording was included to rule to a notorious common-law Rights in Bill reaction and fel- categorically excluding evidence in treason defense Washington holding Texas, 388 U. S. ony v. in cases.10 Our (1967), applicable right States, rested this right present plain premises terms the to that it “is on the proc- element of due it a fundamental “is defense” and present than that of an accused to more fundamental “Few rights S. defense, see, g., v. 410 U. Mississippi, e. Chambers in his witnesses own (1973). Indeed, anis essential attribute of the adver 284, 302 right compel presence . to a witness’ system right . . itself. The sary it did integrity adversary process if of the protect not courtroom could trier testimony heard by the witness’ right to have not embrace the in the Sixth testimony grounded thus fact. The offer right Illinois, 484 U. 408-409 S. Taylor Amendment....” v. Commentaries on the Constitution of Story, in his famous “Joseph included States, right compulsoryprocess was observed that the United the notorious common-lawrule that Rights Bill of reaction wit was allowed introduce felony the accused cases treason of wit prohibition absolute Although at all. nesses in his defense England by abolished in statute before had been for the defense nesses specifically necessary pro felt it the Framers Constitution provided the means in criminal cases should be vide that defendants evidence, prosecu well as so own obtaining witnesses that their Texas, v. U. tion’s, Washington S. jury.” evaluated might omitted). (1967)(footnotes 14, 19-20 history ess of law.”11 Consistent with the provisión, the Court in that ease held that a state rule of evidence that categories” testimony excluded “whole on the basis of presumption unreliability was unconstitutional.12 rule of inadmissibility blanket invalid held in Wash- ington alleged covered the accomplices. Texas Both before after that recognized decision,the Court has *21 potential injustice produced by the rules that exclude entire categories potentially relevant of that evidence is unreliable. parties At commonlaw interested such as defendants,13 their competent their were spouses,14 eo-eonspirators15 witnesses, “The to offer the of right testimony and to compel their attendance, necessary, in plain defense, if to right present terms the the the right to defendant’s version of the facts as well as present the jury so truth prosecution’s it decide where the lies. Just as right the to prosecution’s an accused has confront the witnesses for the their to right present of he has purpose challenging testimony, the his own right defense. a fundamental of witnesses establish This element Id., at law.” 19. process due of 12 is to see how the is any by “It difficult Constitution less violated arbi categories whole of witnesses from trary prevent rules that defense testi priori presume unworthy of a that fying categories the basis them of belief disqualifying alleged accomplice testifying rule an from on behalf
“The rationally of cannot even be on the that it ground the defendant defended who likely to commit group persons particularly per- sets apart Id., 22. jury.” familiar old law knowledge carefully “It is the common excluded record, parties from the stand and those who were inter witness the result; rule extended to both civil and criminal cases. ested in the and this States, was the reason for the rule.” Benson United perjury Fear of (1892). 146 U. S. rule, accepted at an date early controlling “The common-law as country, incompetent was that husband and wife were witnesses against each other.... th[e] basic exclusion recognized underlying
“The Court reason [of one on behalf of had been the practice spouse’s other] with a the outcome of a personal witnesses ease. disqualifying interest interest, however, disqualifications long because had Widespread since only grounds “Nor witnesses. were those named of ex- clusion from the witness stand; crime, conviction want religious and other were In- belief, matters held sufficient. theory deed, the of the commonlaw was to admit to wit- only presumably appreciating honest, ness stand those by sanctity party result, oath, unaffected as temptations free from of interest. The courts jurors.” intelligence of were afraid to trust the Benson v. States, course, 146 U. And, United S. regime by Frye States, under the established v. United scien- stringent it tific was inadmissible unless met a years, respect “general acceptance” test. with Over category category, have after strict rules exclusion been judges replaced rules that broaden discretion trial prop- potentially allow admit unreliable evidence weight. erly juries its While to evaluate instructed ju- rulemaking and noneonstitutional has included both trend has been consistent direction of trend dicial decisions, *22 holdings as well. it in constitutional been manifested and has decision followed Commenting trend that had the on the in 1918 that the Benson, Court in observed in the elapsed Ben- “years the since decision which have legislative disposition of bod- Case, of courts and son the continued, from witnesses has ies to remove disabilities going before, had it been forward that decision shows as of that the the conviction our time of under dominance the in in with country England in accordance this been abolished both it and left testify witnesses to interested permitted trend which modern were Certainly, since defendants credibility. the to their for assess jury behalf, longer no own there was in their testify allowed to uniformly With spouses from as witnesses. their prevent using to them good reason gone the testimony spouses barring favorable of the reason original too.” Hawkins go should aspect of the old rule that this Court concluded (1958). States, 74, v. United U. S. 75-76 358 15 Texas, S., at Washington v. 388 U. 20-21. See
329 likely hearing by truth is more be the testi- arrived mony competent understanding persons all of who may knowledge facts in seem have involved the leaving weight credit such the ease, by jury by court, or rather than determined rejecting incompetent, with result witnesses as widely, principle that this has come to be almost univer- accepted sally, country in and Great Britain.” States, 467, United 245 471. Rosen v. U. S.
See States, 371, 377-378 also Funk v. United 290 U. S. involving disqualification spousal testi It was in a case mony impedes “Any rule Justice Stewart stated: impedes discovery truth a court of law well doing justice.” States, 74, 81 Hawkins United 358 U. v. S. (1958)(concurring opinion). seriously evidentiary impede rules so the dis
State covery doing justice,” they truth, “as well as the preclude “meaningful present complete opportunity guaranteed by defense” that is the Constitution, Crane v. (1986)(internal quotation Kentucky, 683, 690 476 U. marks S. omitted).16 Mississippi, 410 In Chambers v. U. S. directly rooted "whether the Due Process Clause the Fourteenth Amendment, Chambers (1973)], v. Mississippi, U. [410 S. Amendment, Process or Sixth Compulsory Confrontation clauses of the Texas, Alaska, v. Washington Davis (1967); v. 388 U. S. 415 U. S. (1974), guarantees Constitution ‘a meaningful criminal defendants Trombetta, opportunity present complete defense.’ California (1984)]; cf. Strickland v. Washington, [479, 485 668, 684-685 U. S. 466 U. S. (1984) (‘The through Constitution Process guarantees a fair trial Due *23 Clauses, it defines basic largely through but elements of a fair trial Amendment’). several of break no ground Sixth new provisions We in is an op that fairness observing component procedural essential Oliver, 257, 273 (1948); In re Grannis v. to be heard. portunity 333 U. S. (1914). Ordean, 385, empty S. would 234 U. 394 That be an opportunity one if were to reliable evidence permitted competent, the State exclude
330
(1973), rights we that concluded “where constitutional di rectly implicated, affecting guilt the ascertainment of are may applied hearsay mechanistically not be rule to defeat the today, justice.”17 ends of As the Court notes restrictions right present to ante, evidence,” “defendant’s relevant at comply Arkansas, with the Rock v. 308, must admonition in (1987), they “may arbitrary be 44, U. S. designed they disproportionate purposes are to Applying that blanket rule serve.” admonition to Arkansas’ prohibiting hypnotically the admission of refreshed testi mony, legitimate that a “State’s interest bar we concluded per ring se evidence does not extend to exclusions unreliable may Id., in an at That be individual case.” 61. reliable directly relevant to this constitutional law is statement of case. credibility evidence is central of a confession when such
bearing on the
innocence.
valid state
claim of
the absence
to the defendant’s
de
deprives
kind of
exculpatory
of this
evidence
justification, exclusion
to
case encounter
right
prosecutor’s
have the
fendant of the basic
United States
v.
testing.’
adversarial
meaningful
'survive the crucible
Texas,
(1984).
Cronic,
Washington
supra,
v.
See also
466 U. S.
S.,
Kentucky,
690-691.
v.
476 U.
at
at 22-23.” Crane
more
present
an accused to
than that of
fundamental
rights
“Few
are
Texas,
(1972);
g.,E. Webb v.
There place reliability studies that tests 85% to poly- 90%.20 critics of the While graph accuracy argue that lower, is much even the studies place cited polygraph accuracy critics at 70%.21 Moreover, extent that polygraph errs, studies have repeatedly likely shown that the more to find people guilty innocent exculpatory Thus, than vice versa.22 polygraphs likely the one in this case—are to be more —like inculpatory reliable than ones. category
Of within course, the broad of lie detector evi- *26 may validity be dence, there a wide both variation in and particular the relevance23 test results. about Questions integrity, independence, questions, the examiner’s choice of training attempts provoke in the detection of deliberate physiological misleading responses may justify exclusion of 20 Honts, Raskin, Kireher, & The on Poly Scientific Status Research Tests, in 1 The Case for Modern Scientific graph Techniques: Polygraph 1997) (here (D. Saks, D. M. Sanders eds. Faigman, Kaye, Evidence 572 & J. place (compiling eight laboratory that accu Faigman) inafter studies mean id., 90%); studies, at at 575 four field racy (compiling scored approximately examiners, accuracy 90.5%); Raskin, that mean at by independent place Honts, Kireher, Lykken, in Response A to Professors Iacono and Faig- & examiners, studies, by original six man 627 field scored (compiling 97.5%); Abrams, at accuracy Complete The Hand Polygraph mean place (1989) that, laboratory excluding 13 incon (compiling book 190-191 studies 87%). results, mean accuracy at place clusive 21 on The Scientific Status Research Polygraph & Lykken, Iacono Tests, Against Faigman (compiling 608 Polygraph The Case Techniques: 70%). at place accuracy mean three studies that Tests, & Faig- E. Lykken, Against Polygraph The Case g., Iacono Kireher, Honts, & Raskin, 608-609; A Professors Iacono Response man Abrams, Honts & 621; 362; Complete The Lykken, Perry in Faigman and Handbook, 187-188,191. Polygraph 23See, inquiry careful the relevance e.g., Judge Gonzalez’s attention to decision in Picd- Appeals on remand from the Court of proceedings 1990). (SD Fla. F. noima. Supp. specific questions properly But evidence. such ad- adversary proceedings; they justi- dressed in fall far short of fying type expert testimony. a exclusion of blanket legal requirement expert testimony
There is no must satisfy degree particular reliability a to be admissible. Expert dangerous- about a defendant’s “future eligibility penalty, his ness” to determine for the death even wrong routinely of the time,” if “most admitted. Barefoot Estelle, U. Studies indicate S. 898-901 handwriting analysis, fingerprint and even identifica- trustworthy less tions, than eyewit- highly And, course, dubious certain eases.24 even anal compared handwriting One study accuracy fingerprinting, tests, study eyewitness The consisted identification. ysis, polygraph Fingerprints into 20 of 4. handwrit groups 80 volunteers divided all participants. taken from of the ing samples were four, randomly the role of person assigned one group In each was envelope take an was perpetrator instructed “perpetrator.” (who identify need knew that he would later building doorkeeper “crime,” After the receipt, pick up package. perpetrator), sign given polygraph examination. participants all were with fingerprints expert (comparing original The fingerprinting original (comparing envelope), handwriting expert those (analyzing the polygrapher and the signed receipt), samples with *27 addition, tests) two identify the of group. each sought perpetrator of "crime,” pick picture the doorkeeper the was asked days the after a four of set of pictures. the out perpetrator compares the demonstrate that study polygraph The results of “inconclusive”results evidence. types Excluding of with other favorably cases 100%of the cor- test, resolved fingerprinting expert from each the the handwrit- correctly, resolved 95% the cases the rectly, polygrapher the re- correctly, eyewitness eases and 94% the expert resolved ing when “inconclusive” correctly. Interestingly, only of the eases solved 64% any included, than accurate polygraph the test was more results were correctly, cases 90% the The resolved polygrapher methods: the other eyewitness, for the expert, for the 35% handwriting with compared 85% Horvath, & An Experi- expert. WIdaeki fingerprinting and 20% for the Utility the Polygraph Validity of the Relative Investigation and mental Identification, Criminal Other CommonMethods of Technique and Three Perry& 865. (1978); also Honts 596-600 see Sciences J. Forensic is, ness and should and tested in be, admitted the crucible of cross-examination. reliance Court’s po tential aas rule of unreliability a justification categorical reveals that it is about the inadmissibility “overly pessimistic the and of the adversary system gener capabilities jury cross-examination, ally. "Vigorous presentation contrary and careful instruction evidence, on the burden proof the traditional means of but attacking shaky appropriate Daubert, at 596.25 S., admissible evidence.” 509 U. 25The that argues danger Government there a that widespread people is will learn polygraph, to “fool” the this undermines possibility of reliability. claim For to the example, points the Government availabil ity of a book Beat called the Box: The the Outwitting Insider’s Guide 53; Lie Detector. Tr. of Oral n. Arg. Brief for United States 10. Beat Box, however, actually se against ban on per polygraph cuts evi dence. to the book preface As states: [the
“Dr. Kalashnikov If polygraph professional. you go up author] is a him, him, your like at against probably you game. someone he’ll catch That’s he knows his by because work and does it the book. people profes-
“What don’t realize is a lot of not most that there are so sional out very you may examiners there. It’s possible tested who by someone is more the number of tests concerned about he (and bonus) will run week is this his Christmas he about the precision than of each test. individual
“Remember, adage system that you is can’t beat the but you can operator. beat This book gleefully dedicated idea of Kalashnikov, V. sporting chance.” The Insider’s Guide to Beat Box: id., (1983) (“[W]hile Outwitting (preface); system Lie Detector examiner”). unbeatable, you but surely all can beat the Thus, supports Beat the Box notion are reli- actually polygraphs able when conducted the one in highly trained examiner —like case.
Nonetheless, some research can be trained to has indicated that people e. & g., Honts, Raskin, See, use “countermeasures” fool polygraph. Kircher, Physical Accuracy Mental Countermeasures Reduce Tests, 79 J. This Polygraph possibility, Applied Psychology se ban. however, First, justify does indicates that indi- per research *28 viduals can specific must receive fool training they before (i e., & Raskin, Honts, Hodes, alone is not enough). information Effects Jury
The Role of jury It credibility the function make determi- my judgment In nations. tends to establish guilt either or consciousness of inno- consciousness jury making cence be of assistance to the such deter- opinion Wigmore: minations. That also was the of Dean in; “Let the whole accused’s conduct come and whether guilt it for tells consciousness of consciousness it let take for what it is remember- innocence, worth, us open varying ing explanations that in either case it emphasized. deprive is not to be us an in- Let falsely person, of the inference which accused, nocent a consciousness of innocence common sense draws from Wigmore, Evi- manifestations.” and its natural J. (J. 1979). § p. rev. ed. 293, dence 232 Chadbourn “juries give some will is, some risk that course, There weight opinions polygrapher, clothed as of a excessive my they expertise,” ante, at 313-314. are scientific likely juries judgment, however, more will be is much it concerning judge guided the trial instructions strong credibility expert lay The as well witnesses. juries instructions, the court’s presumption will follow (1987), ap- 200, U. S. g., see, Marsh, e. Richardson v. exculpatory inculpatory Com- plies evidence. as well as Deception, Detection of Physiological on Physical Countermeasures Raskin, Honts, Kir (1985); see also Psychology Applied 70 J. on & Physiolog cher, Hodes, Countermeasures Spontaneous Effects 91, 93 16 J. Science and Administration Deception, Police ical Detection ineffective). (1988) Second, as counter (spontaneous countermeasures will de discovered, that polygraphers it is fair to assume measures g., See, & e. Abrams David countermeasures. detect these velop ways son, Testing, Polygraph in Polygraph Counter-Countermeasures Tests, (1988); Kircher, Raskin, Honts, Case for Polygraph & 17-19 course, trial, jurors Of would be instructed Faigman 577-578. appro its give possibility of countermeasures and could possibility priate weight. *29 suggests
mon sense testimony that the of disinterested third parties jury’s credibility that is relevant the determination impair jury’s will assist rather than the deliberations. As potential with the on the unreliability reliance type of this average evidence, the reliance on jury a fear that the weight testimony not able to the assess of this reflects a dis- tressing average lack of confidencein intelligence of the American.26 Litigation
Collateral potential proceedings burden of The collateral to deter- qualifications manifestly mine the examiner’s is a insufficient justification categorical expert testimony. for exclusion of proceedings predicate are a Such routine for the admission testimony, may always expert give searching rise to testimony If to a de- cross-examination. that is critical fair gufit termination or excluded for that innocence could be meaningful present right opportunity to a reason, would be an illusion. defense party incongruous examiner, for the
It is selected testing procedures, questions equipment, the complain the examinee’sbur- asked of the defendant about properly proving that the test conducted. den of was While proceed- there a need for collateral well substantial admissibility ings party objecting has a when the basis questioning aspect quite it examination, of the seems some challenge position obvious that Government is no 26Indeed, “blindly” accept jurors poly research indicates do evidence, they along weigh but instead graph Poly Admissibility & Heslegrave, with other Cavoukian evidence. Findings, Court: 4 Law and Empirical Evidence in Some Human graph (hereinafter Cavoukian & Hesle- (1980) 127-128, Behavior Perry study & found that expert also Honts 366-367. One grave); see eliminated polygraph “completely about the limits & evidence” jury. Heslegrave effect of the on the Cavoukian added). (emphasis 128-129 competence procedures developed that it has upon hundreds of relied thousands of cases. the concern
In all about the burden of collateral events particular integrity examination, debates about *30 particular provides support competence of a no examiner, requires categorical even rule that exclusion when the for a pursuant stipulation when to a even there test taken potential resolving collateral stipulation has all issues. been a very been case there would have no need Indeed, in this respondent ques- any proceedings did not because collateral expert qualifications him, examined tion the who argue position surely is in to that one no the Government carefully developed successfully completed train- its who has avoiding ing unqualified. bur- program27 is The interest support pre- rule proceedings might densome collateral any met before scribing that must be standards minimum support surely the blun- it not admissible,28but does test is derbuss at issue.29
IV support unquestionably concerns would The Government’s eases, and particular evidence the exclusion designed support a narrower rule may to well sufficient be my judgment, specific however, respond In concerns. supra. 5,n. See § 11-707. M. Rule Evid. See N. may be evidence exculpatory polygraph if suggested It has been to intro defendant, allowed prosecutor should also by adduced by not be dictated That conclusion would test results. inculpatory duce summon right to Sixth the defendant’s Amendment holding that vindicates above, exculpatory Moreover, indicate as noted studies witnesses. supra. n. See than ones. inculpatory reliable are more polygraphs surely developments future event, legal about possible concern of the Court by holding presented the narrow issue implicated were, if I can see it Armed ease. Even Forces for the Appeals of a test taken the results fundamentally permitting about unfair nothing conscious prove into evidence being admitted stipulation pursuant of innocence. as consciousness ness of well guilt plainly support categori- those concerns insufficient prohibits cal rule that admission probative in all no matter how cases, reliable or the evidence Accordingly, respectfully be. I dissent. notes in 1983 The United States reliability of polygraphs Assessment all available studies evaluated “'[ojverall, suggests concluded the cumulative research test detects de investigations, polygraph that when used in criminal chance, be considered error rates could ception but with better than ” S. Office Congress, 21 U. significant.’ (quoting for United States Brief Assessment, Testing: A Validity Polygraph Scientific Technology (OTA- 5 Technical Memorandum Research Review Evaluation —A 1983)). TM-H-15, however, current research Respondent, Nov. contends time. percent shows reliable more than 90 polygraph testing 22, Matte, Psychophysiol and n. 19 J. Forensic Respondent (citing Brief for (1996)). about if the basic debate ogy Polygraph 121-129 Even Using however, resolved, there the reliability polygraph technology itself were countermeasures, or deliber efficacy would still be over the controversy provoke employ can ately adopted strategies that a examinee polygraph and thus “fool” responses readings that will obscure accurate physiological See, Lykken lacono & e.g., and the examiner. machine polygraph §14-3.0. 311 and the admissibility reliability evidence.7 polygraph Al Federal some Courts though have abandoned the Appeals se rule per excluding evidence, its admis leaving sion or exclusion discretion district courts under Daubert, e. see, United g., Posado, States v. 57 428, 434 F. 3d (CA5 United v. 1995); States 104 Cordoba, F. 3d 225, 228 (CA9 at least one 1997), Federal has Circuit reaf recently ban, firmed se its see United Sanchez, States v. 118 per F. 3d (CA4 1997), 197 192, and another noted that it has recently “not whether decided has reached a sufficient polygraphy Messina, state of to be admissible.” United States v. reliability (CA2 1997). 3d 36, 42 F. Most States maintain per 131 se rules See, evidence. e. v. excluding State g., Porter, 57, 92-95, 739, Conn. A. 2d 758-759 (1997); Gard, 158 191, v. Ill. 2d 632 N. 2d 202-204, 1026, E. People (RI 1996) Odell, In re A. 2d (1994); (per (Ct. curiam); State, Perkins S. W. 2d 94-95 App.
Notes
17.” Notes p. Rule Evid. 888. C., on Fed. U. S. convincing by opinion principal its con- The made less tradicting the well rationale of Rule 704 and considered Advisory support Committee its recited reasons the adoption. theory especially attempt to revive this outmoded system; justice military inapt for the the context of the exception issue ultimate abolition one narrow surviving of Evidence has been Federal Rules rule still military. adopted for the corresponding rule omitted from Evi- exception Federal Rules of issue The ultimate is as follows: dence testifying respect expert witness to the mental with “No in a criminal ease condition of defendant state or