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United States v. Scheffer No. 95-0521/AF
For Appellant: Captain Michael L. McIntyre (argued); Colonel Jav L. Cohen and
Captain Del Grissom (on brief); Lieutenant Colonel Joseph
L. .Heimann.
ForAppellee: Major Jane M.E Peterson (argued); Colonel leffery T. Infelise (on
brief).
Military Judge: H. Martin Jayne
United States v. Scheffer No. 95-0521/AF
Opinion of the Court
GIERKE, Judge:
A general court-martial composed of officer members at March Air Force
Base, California, convicted appellant, contrary to his pleas, of uttering bad
checks, wrongfully using methamphetamine, failing to go to his appointed place
of duty, and absenting himself from his unit (13 days), in violation of Articles
123a, l12a, and 86, Uniform Code of Military Justice, 10 USC §§ 923a, 912a, and
886, respectively. The adjudged and approved sentence provides for a bad-
conduct discharge, confinement for 30 months, total forfeitures, and reduction to
the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings
and sentence but awarded one day of credit against his sentence to forfeitures
(confinement had expired) for lack of timely pretrial confinement review, relying
on County of Riverside v. McLaughlin 500 U.S. 44(1991); United States v.
Rexroat 38 MJ 292 (CMA 1993). See 41 MJ 683,693 (1995).
We granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED IN DENYI NG
APPELLANT'S MOTION TO PRESENT EVIDENCE OP A FAVORABLE
POLYGRAPH RESULT CONCERNING HIS DENIAL OF USE OF DRUGS
WHILE IN THE AIR FORCE.
United States v. Scheffer No. 95-0521/AF
In March of 1992, appellant began working as an informant for the Air
Force Office of Special Investigations (OSI). During late March and early April,
appellant told OSI that two civilians, Davis and Fink, were dealing in significant
quantities of drugs. Oh April 7, 1992, at the request of OSI, appellant voluntarily
provided a urine sample. Periodic urinalyses are normal procedure for
controlled informants.
On April 10, OSI asked appellant to submit to a polygraph examination.
The OSI polygraph examiner asked 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? Appellant answered "No" to each question. The
polygraph examiner concluded that "no deception" was
indicated.
Appellant's urinalysis tested positive for methamphetamine. The report
was dated May 20, although local OSI agents may have learned of the results as
early as May 14.
At trial appellant asked the military judge for an opportunity to lay a
foundation for the favorable polygraph evidence. The military judge denied the
request without receiving any evidence, ruling that "the President may, through
the Rules of Evidence, determine that credibility is not an area
in which a
United States v. Scheffer No. 95-0521/AF
factfinder needs help, and the polygraph is not a process that has sufficient
scientific acceptability to be relevant." He further ruled that under Mil.R.Evid.
403, Manual for Courts-Martial, United States (1995 ed.),
[t]he factfinder might give it too much weight, and that there is an
inordinate amount of time and expense, especially in the cases where
there may be conflicting tests, which doesn't appear to be the case here.
The main conclusion of the issue; that is, the question of what the result of
the polygraph was, as opposed to the question of whether or not the
accused used drugs.
During the trial on the merits, appellant testified that he visited Davis on
April 6, left Davis' house around midnight, and began driving toward March Air
Force Base. The next thing he remembered was waking up the next morning in
his car in a remote area, not knowing how he got there. He denied "knowingly"
ingesting drugs at any time between March 5, when he began working for OSI,
and April 7, the date he provided the urine sample that tested positive for
methamphetamine.
Trial counsel cross-examined appellant about inconsistencies between his
trial testimony and earlier statements to the OSI, and his lack of a "sudden rush
of energy" and other symptoms of ingesting methamphetamine. Trial counsel's
closing argument urged the court members to look at appellant's
credibility.
Trial counsel argued, "He lies. He is a liar. He lies at
every opportunity he gets
United States v. Scheffer No. 95-0521/AF
and he has no credibility. Don't believe him. He knowingly used
methamphetamine, and he is guilty of Charge II."
Appellant asserts that Mil.R.Evid 707 violates his Sixth Amendment right
to present a defense because it compelled the military judge to exclude relevant,
material, and favorable evidence offered by appellant. He argues 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 asserts that the Rule does not impermissibly infringe on the
Sixth Amendment. It argues that Mil.R.Evid. 707 merely codifies all the
evidentiary prohibitions against polygraph evidence and that, even without
Mil.R.Evid. 707, polygraph evidence would never be admissible. We agree with
appellant.
In Frye v. United States, 293 P. 1013 (D.C. Cir. 1923), polygraph evidence
was held to be inadmissible because it was unreliable. In United States v. Gipson
24 MJ 246,253(1987), our Court held that an accused is "entitled to attempt to
lay" the foundation for admission of favorable polygraph evidence. In arriving
at that holding our Court acknowledged that Mil.R.Evid. 702 "may be broader
and may supersede Frye v. United States" supra. 24
MJ at 251. The impact of
our Gipson decision was short-lived, however, because on
June 27,1991, the
United States v. Scheffer No. 95-0521/AF
President promulgated Mil.R.Evid. 707 in Executive Order No. 12767, § 2,56 Fed.
Reg. 30296.
Mil.R.Evid. 707 provides: "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." Unlike most military rules of
evidence, Mil.R.Evid. 707 has no counterpart in the Federal Rules of Evidence. It
is similar to Cal. Evid. Code 351.1 (West 1988 Supp.). See People v. Kegler 197
Cal. App. 3d 72,84,242 Cal. App. 897,905 (1987). Mil.R.Evid. 707 "is not
intended to accept or reject United States v. Gipson 24 MJ 246 (CMA 1987,
concerning the standard for admissibility of other scientific evidence under
Mil.R.Evid. 702 or the continued vitality of Frye v. United States 293 F.1013
(D.C. Cir. 1923)." Drafters' Analysis of Mil.R.Evid. 707, Manual, supra (1995 ed.)
at A22-48.
Presidential authority to promulgate rules of evidence is founded on
Article 36(a), UCMJ, 10 USC § 836(a). That Article provides that such rules
"shall, so far as [The President] considers practicable, apply the principles of law
and the rules of evidence generally recognized in the trial of criminal cases in the
United States district courts, but which may not be contrary to or inconsistent
with this chapter."
United States v. Scheffer No. 95-0521/AF
Appellant's case presents two questions. The first is a statutory question:
did the President comply with Article 36 when he promulgated Mil.R.Evid. 707.
The second is a constitutional question: does Mil.R.Evid. 707 violate the Sixth
Amendment. We review these questions of law de novo. United States v. Ayala
43 MJ 296, 298 (1995).
The statutory question was neither briefed nor argued. It may well be that
the per se prohibition in Mil.R.Evid. 707 is "at odds with the `liberal thrust' of the
Federal Rules and their `general approach of relaxing the traditional barriers to
"opinion" testimony."' Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S.
579, 588, 113 S.Ct. 2786, 2794 (1993). We note that the majority 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 and apply Fed. R. Evid.
401-03. United States v. Pulido 69 F.3d 192,205 (7th Cir. 1995) (no per se rule
against admissibility of polygraph evidence); see United States v. Posado 37 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 Inadmissible per se) Anderson v. United
States 788 F.2d 517, 519
n. 1 (8th Cir. 1986) (polygraph evidence admissible by stipulation); see also
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
United States v. Scheffer No. 95-0521/AF
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. A & S Council Oil Co., supra (polygraph evidence not
admissible); 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).
The Federal rules are virtually identical to Mil.R.Evid. 401-03. Whether
the President determined that prevailing federal practice is not "practicable" for
courts-martial cannot be determined from the record before us. Assuming
without deciding that the President acted in accordance with Article 36 and
determined that the prevailing federal rule is not "practicable" for courts-martial,
we turn to the constitutional question.
Our Court entertained a direct attack on the constitutionality of
Mil.R.Evid. 707 in United States v. Williams 43 MI 348(1995). We held,
however, "that the accused had no right to introduce the polygraph evidence
without taking the stand and testifying consistently, or without offering some
other plausible evidentiary basis." 43 MI at 355. See also
United States v.
United States v. Scheffer No. 95-0521/AF
Abeyta. 25 MJ 97,98 (CMA 1987) (polygraph evidence not relevant unless
accused testifies). In Williams we observed: "Thus, in the appropriate case, the
question will be whether the proffered polygraph evidence is sufficiently reliable
and necessary that its automatic exclusi6n violates the accused's constitutional
trial rights." 43 MJ at 353.
Unlike Williams, this appellant testified, placed his credibility in issue,
and was accused by the prosecution of being a liar. Thus the constitutional issue
is squarely presented. We hold that Mil.R.Evid. 707, as applied to this case, is
unconstitutional. A per se exclusion of polygraph evidence, offered by an
accused to rebut an attack on his credibility, without giving him an opportunity
to lay a foundation under Mil.R.Evid. 702 and Daubert, violates his Sixth
Amendment right to present a defense. We limit our holding to exculpatory
evidence arising from a polygraph examination of an accused, offered to rebut an
attack on his credibility. We leave for another day other constitutional questions
such as those involving government-offered polygraph evidence or evidence of a
polygraph examination of a witness other than an accused.
The Sixth Amendment grants an accused "the right to call `witnesses in
his favor."' Rock v. Arkansas 483 U.S. 44,52(1987). An accused's right to
present testimony that is relevant and material may not be denied
arbitrarily.
United States v. Scheffer No. 95-0521/AF
Washington v. Texas 388 U.S. 14,23 (1967); see United States v. Woolheater 40
MJ l7O,173(CMAl994).
The right to present evidence, however, is not unlimited, but "may, in
appropriate cases, bow to accommodate other legitimate interests in the criminal
trial process" Chambers v. Mississippi, 410 U.S. 284,295(1973). See, e.g.,
Washington v. Texas, 388 U.S. at 23 n. 21 (right to present testimony may be
limited by testimonial privilege or rules relating to mental ability to testify).
when restrictions are placed on an accused's right to present evidence, they
"may not be arbitrary or disproportionate to the purposes they are designed to
serve." Rock v Arkansas, 483 U.S. at 56. Applying the foregoing principles, the
Supreme Court held in Rock that a per se rule excluding the defendant's
hypnotically refreshed testimony infringed his right to present a defense. The
Supreme Court held that a "legitimate interest in barring unreliable evidence
does not extend to per se exclusions that may be reliable in an individual case."
483 U.S. at 61. while Rock concerned exclusion of a defendant's
testimony and
this case concerns exclusion of evidence supporting the truthfulness of a
defendant's testimony, we perceive no significant constitutional difference
between the two. In either case, the Sixth Amendment right to present a defense
is implicated.
United States v. Scheffer No. 95-0521/AF
Mil.R.Evid. 702 permits expert testimony when "scientific, technical, or
other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue." Expert testimony is subject to the
relevance requirements of Mil.R.Evid. 401 and 402 and the balancing
requirements of Mil.R.Evid. 403. In Daubert v. Merrell Dow Pharmaceuticals,
Inc. 509 U.S. at 597,113 S.Ct. at 2798, the Supreme Court made the trial judge a
gatekeeper, trusted with responsibility to decide if novel scientific evidence was
sufficiently relevant and reliable to warrant admission.
An expert witness may not testify that a declarant was telling the truth,
but may testify to the absence of indicia of deception. Thus, in United States v.
Cacy 43 MJ 214,218 (1995), we held that it was not error to permit an expert to
testify that a victim's accusation did not appear to be feigned or rehearsed.
Similarly, in United States v. Suarez 35 MJ 374,376 (CMA 1992), we held that it
was not error for an expert to opine that counter-intuitive conduct, such as
recanting an accusation, inconsistent statements, or failing to report abuse is not
necessarily inconsistent with a truthful accusation. See also United States v.
Houser 36 MJ 392,398400 (CMA 1993). Finally, we have permitted
experts to
opine whether a complainant "can differentiate between fantasy and fact."
United States v. Palmer 33 MJ 7,12 (CMA 1991); United States v. Tolppa, 25 MJ
352,354-55 (CMA 1987), citing United States v, Azure, 801 F.2d 336,340 (8th Cir.
1986). Under the same rationale as these cases, a properly qualified
expert,
United States v. Scheffer No. 95-0521/AF
relying on a properly administered polygraph examination, may be able to opine
that an accused's physiological responses to certain questions did not indicate
deception.
Polygraph examinations were relatively crude when Frye was decided.
See Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. at 585, 113 S.CL at
2793. The Eleventh Circuit has recognized that, "[s]ince the Frye decision,
tremendous advances have been made in polygraph instrumentation and
technique." United States v. Piccinonna 885 F.2d 1529, 1532 (11th Cir. 1989); see
also United States v. Galbreth 908 F Supp. 877 (D. N.M. 1995); United States v.
Crumby, 895 P. Supp. 1354 (D. Ariz. 1995). The effect of Mil.R. Evid. 707 is to
freeze the law regarding polygraph examinations without regard for scientific
advances. We believe that the truth-seeking function is best served by keeping
the door open to scientific advances. See United States v. Youngberg, 43 MJ 379
(1995) (holding DNA evidence admissible); United States v. Nimmer, 43 MJ 252,
260(1993) (remanding for hearing on reliability of hair analysis evidence). With
respect to appellant's case, we, like the Fifth Circuit, 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 Rule 702 and Daubert." United
States v. Posado, 57 F.3d at 433. We will never know, unless we give appellant
an opportunity to lay the foundation.
United States v. Scheffer No. 95-0521/AF
Like the Court in Posado, "We do not now hold that polygraph
examinations are scientifically valid or that they will always assist the trier of
fact, in this or any other individual case We merely remove the obstacle of the
per se rule against admissibility." 57 F.3d at 434. Foundation evidence for
proffered polygraph evidence must establish that the underlying theory - that a
deceptive answer will produce a measurable physiological response - is
scientifically valid. Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. at
592-93. Furthermore, we would expect evidence that the theory can be applied
to appellant's case. Id. The foundation must include evidence that the examiner
is qualified, that the equipment worked properly and was properly used, and
that the examiner used valid questioning techniques.
As required by Daubert the military judge must be a gatekeeper and
weigh probative value against prejudicial impact in accordance with Mil. R.
Evid. 403. We find the Piccinonna guidance apt:
[T]he trial court may exclude polygraph expert testimony because 1) the
polygraph examiner's qualifications are unacceptable; 2) the test
procedure was unfairly prejudicial or the test was poorly administered; or
3) the questions were irrelevant or Improper. The trial judge has wide
discretion in this area, and rulings on admissibility will not be reversed
unless a clear abuse of discretion is shown.
United States v. Scheffer No. 95-0521/AF
885 F.2d at 15377: Sep also United States v. Pettigrew. 77 F.-3d 1500. 1514 (5th Cir.
1996) (judge's ruling on admissibility of polygraph evidence reviewed for abuse
of discretion).
This was not a private, ex parte examination under unknown conditions.
See United States v. Sherlin 67 F.3d 1208, 1217 (6th Cir. 1995) ("unilaterally"
obtained and "privately commissioned" polygraph excluded). To me contrary,
appellant proffers a government-initiated examination by an OSI examiner.
Accordingly, there would appear to be no need to condition admissibility on
having appellant examined by a polygraph examiner chosen by the prosecution.
See United Sates v. Piccinonna, 885 F.2d at 1536.
Finally, the issues raised by the dissenting opinion warrant comment.
Both Wood v. Bartholomew 116 S.Ct. 7(1995), and State v. Ellison, 676 F.d 531,
535 (Wash. App. 1984), involve polygraph examinations of prosecution
witnesses, not the accused. Our holding as was that in Rock is limited to an
accused's right to lay the foundation for a polygraph examination of himself. We
need not and do not address admissibility of polygraph examinations of
government witnesses or the question whether such polygraph evidence would
be constitutionally required to be disclosed under Brady v. Maryland 373 U.S. 83
(1963). But cf. United States v. Simmons 38 MJ 376 (CMA
1993) (trial counsel
United States v. Scheffer No. 95-0521/AF
failed to discover and disclose contradictory statements of rape prosecutrix made
to government polygrapher).
Furthermore, Bartholomew involves an issue different from the one in the
case before us. it is summary disposition of a habeas corpus case, where the
Supreme Court concluded that the Ninth Circuit misapplied the Court's Brady
jurisprudence. 116 S.Ct. at 8. The Supreme Court noted that polygraph evidence
was inadmissible under Washington state law, but premised its holding on the
speculative nature of the additional evidence that might have been discovered,
counsel's concession "that disclosure would not have affected the scope of his
cross-examination," and the "overwhelming" evidence of guilt. 116 S.Ct. at 10-
consistent with the Court's practice, it was not addressed. See United Public
Workers of America v. Mitchell, 330 U.S. 75,90 n. 22(1947) ("It has long been this
Court' considered practice not to decide abstract, hypothetical or contingent
questions, ... or to decide any constitutional question in advance of the necessity
for its decision,... or to formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied,... or to decide any
constitutional question except with reference to the particular facts to which it is
to be applied.'")
United States v. Scheffer No. 95-0521/AF
Montana v. Egelhoff, 116 S.Ct. 2013 (1996), also involves a constitutional
issue different from the one before us. Egelhoff involves legislative action
redefining an element of an offense, not executive rule-making about modes of
proof. The President unlike the Montana legislature, lacks authority to create
and define offenses. See Art. 36(a), UCMJ, 10 USC § 836(a); United States v.
Hemingway, 36 MJ 349, 351 (CMA 1993); United States v. Smith, 13 USCMA 105,
119,32 CMR 105,119(1962).
In Egelhoff the Supreme Court upheld a statute excluding evidence of
voluntary intoxication when a defendant's state of mind is at issue. The statute
in question, Mont. Code Ann. §45-2-203, provided that voluntary intoxication
"may not be taken into consideration in determining the existence of a mental
state which is an element of (a criminal offense." 116 S. Ct. at 2016. The
Supreme Court's decision is fragmented, with four justices speaking in the
plurality opinion, joined by Justice Ginsburg who concurred in the judgment
separately; and four other Justices dissented in three separate
opinions.
We read the holding in Egelhoff as founded on the power of the state to
define crimes and defenses. The Montana statute was based on a legislative
decision to resurrect the common-law rule prohibiting consideration of
voluntary intoxication" in determining whether the defendant
had the requisite
United States v. Scheffer No. 95-0521/AF
mens rea. 1165. Ct. at 2020. In short, Montana decided to preclude voluntary
intoxication from being asserted as a defense. The plurality explained:
"The doctrines of actus reus, mens rea, insanity, rnistake, justification, and
duress have historically provided the tools for a constantly shifting
adjustment of the tension between the evolving aims of the criminal law
and changing religious, moral, philosophical, and medical views of the
nature of man. This process of adjustment has always been thought to be
the province of the States." Powell v. Texas, 392 U.S. 514, 535-336 (1968)
(plurality opinion). The people of Montana have decided to resurrect the
rule of an earlier era, disallowing consideration of voluntary intoxication
when a defendant's state of mind is at issue. Nothing in the Due Process
Clause prevents them from doing so, and the judgment of the Supreme
Court of Montana to the contrary must be reversed.
116 S. Ct. at 2023-24
The Montana rule excludes evidence based on the fact to be proven
(voluntary intoxication) rather than on the mode of proof Abolishing a defense
is within the authority of a state legislature. On the other hand, Mil.R.Evid. 707
bars otherwise admissible and relevant evidence based on the mode of proof by
categorically excluding polygraph evidence. While the plurality opinion in
Egelhoff questions whether the distinction between the fact to be proved and the
method of proving it makes a difference, 116 S. Ct. at 2017 n. 1, only four Justices
joined in that observation.
Justice Ginsburg points out in her separate concurrence in Egelhoff that
the statute does not appear among Montana's evidentiary rules,
but in the
United States v. Scheffer No. 95-0521/AF
chapter pertaining to substantive crimes. She opines that the Montana law is "a
measure redefining mens rea, "and as such is well within the power of a state to
define crimes. 116 S. Ct. at 202425. The four Justices in the plurality opinion
state that they are "in complete agreement" with Justice Ginsburg's analysis.
They explain that they "address [[the statute] as an evidentiary statute simply
because that is how the Supreme Court of Montana chose to analyze it." 116 S.
Ct. at 2020-21 n. 4. justice Ginsburg, along with the four dissenters, recognized
that "a rule designed to keep out `relevant, exculpatory evidence'... offends due
process." 116 S. Ct. at 2024, 2029.
Finally, we must comrnent on the dissenter's "floodgate" argument that
our opinion will generate an unreasonable burden on the services. ___ MI at (6
7). Apart from the speculative nature of such an argument, we think that it is
just as likely that polygraph evidence will prevent needless litigation by avoiding
some meritless prosecutions as well as smoking out bogus claims of innocent
ingestion. Furtherrnore, we are unaware of any such flood of polygraph cases
after our decision in United States v. Gipson, supra. Finally, our measure should
be the scales of justice, not the cash register.
19
United States v. Scheffer No. 95-0521/AF
The decision of the United States Air Force Court of Criminal Appeals is
set aside. The record of trial is returned to the Judge Advocate General of the Air
Force for submission to an appropriate convening authority for a hearing before
a military judge. Appellant will be provided an opportunity to lay a foundation
for admission of the proffered polygraph evidence. If the military judge decides
that the polygraph evidence is admissible, he will set aside the findings of guilty
and the sentence, and a rehearing may be ordered. If the military judge decides
that the polygraph evidence is not admissible, he will make findings of fact and
conclusions of law. The record will be sent directly to the Court of Criminal
Appeals for expeditious review. Thereafter, Article 67, UCMJ, 10 USC § 867
(1989),will apply.
Chief Judge COX and Senior Judge EVERETT concur.
United States v. Scheffer No. 95-0521/AF
SULLIVAN, Judge (dissenting):
I dissent for the reasons stated in my separate opinion
in United States v. Williams, 43 MJ 348, 356~57 (1995)
(Sullivan, C. J., concurring in the result).
United States v. Scheffer No. 95-0521/AF
CRAWFORD, Judge (dissenting):
We have held that "[[the defendant has the right to present
legally and logically relevant evidence at trial." United
States v. Woolheater, 40 MJ 170, 173 (CMA 1994). But as all
the Judges of this Court agreed in Woolheater, this is "not
[an] absolute" right, id.; see also Montana v. Eqelhoff, 116, S.
Ct. 2013, 2017, 2026 (1996); and may yield to valid "policy
considerations," 40 MJ at 173; id.; United States v. Bins,
43 MJ 79, 83 (1995) (citing Woolheater, 43 MJ at 84); United
States v. Schaible, 11 USCMA 107, 111, 28 CMR 331, 335
(1960).
None of the cases cited by the majority hold that there is
a constitutional right to admit an exculpatory polygraph
examination, Assuming polygraphs are relevant and reliable,
there is ample justification for Mil. R. Evid. 707, Manual for
Courts-Martial, United States (1995 ed.). This justification
satisfies the provisions of Article 36(a), uniform Code of
Military Justice, 10 USC § 836(a), that the rules of procedure
and evidence "generally recognized" in federal trials be
applied to courts-martial "so far as he [The President]
considers practicable."
Through dicta and implicit holdings the Supreme Court has
signaled that there is no constitutional right to introduce
polygraph evidence. Exclusion of exculpatory evidence does not
contravene fundamental "principle[s] of justice ... rooted in
the tradition and conscience of our" society, Patterson v.
New York, 432 U.S. 197, 202 (1977).
United States v. Scheffer No. 95-0521/AF
In McMorris v. Israel, 643 F.2d 458 (1981), the Court of
Appeals for the Seventh Circuit stated that "polygraph evidence
[may be] materially exculpatory within the meaning of the
Constitution," 643 F.2d at 462. In dissenting to the denial
of certiorari in that case, then-Justice Rehnquist
characterized McMorris as a dubious constitutional holding."
Israel v, McMorris, 455 U.S. 967, 970 (1982).
In Wood v. Bartholomew, 116 S. Ct. 7 (1995), the Court
summarily denied habeas corpus for the prosecution `s failure to
disclose information pursuant to Brady v. Maryland, 373 U.S. 83
(1963). The basis for the defense allegation was that the
prosecution failed to reveal polygraph examinations and
statements by the defendant's brother and his girlfriend, the
two key prosecution witnesses at trial.1 These polygraphs and
their statements would have undermined the witnesses' testimony
at trial and supported the defense theory.
The defendant's brother testified at trial that, while he
and his brother sat in the car in the laundromat parking lot,
the defendant said "that he intended to rob the laundromat and
`leave no witnesses.'" The prosecution offered evidence that
both the brother and girlfriend left a short while later and
went to the girlfriend's house. The girlfriend also testified
that when the defendant arrived at her house, he told her that
he "put two bullets in the kid's head." She also heard the
defendant "say that he intended to leave no witnesses." 116
S.Ct. at 8-9.
United States v. Scheffer No. 95-0521/AF
At trial the defendant testified that he forced the
attendant "to lie down on the floor." While removing the cash,
he "accidentally fired" a bullet into the victim's head. The
defendant "denied telling" his brother and the girlfriend "that
he intended to leave no witnesses. Moreover, he said that his
brother "assisted" him 116 S.Ct. at 9.
Under Washington Stats law, polygraph evidence is
inadmissible, State v. Ellison, 676 P.2d 531, 535 (Wash. App.
1981). Even so, prior to trial, the prosecution requested that
the two key witnesses take a polygraph examination. The
polygrapher noted that the girlfriend's answers to the
"questions were inconclusive." The polygrapher asked the
defendant's brother whether (I) he had "assisted" in the
robbery, and (2) whether at any time he was with his brother in
the laundromat. The examiner said that his negative responses
showed "deception." The prosecution did not disclose these
examinations to defense counsel. 116 S.Ct. at 9. In denying
relief because of failure to disclose the polygraph
examinations, the Supreme Court noted that, during the habeas
corpus hearing, "counsel obtained no contradictions or
admissions" from the defendant's brother. 116 S. Ct. at 11.
Clearly, if polygraph examinations were admissible, polygraph
results would have impeached the witnesses. Thus, the results
on appeal would have been different.
United States v. Scheffer No. 95-0521/AF
The implicit holding in Wood has been reinforced in Montana
v. Egelhoff, 116 S. Ct. 2013 (1996). In Egelhoff the Supreme
Court held that a state may exclude evidence of voluntary
intoxication as it relates to the mens rea element of a
criminal offense. When interpreting Supreme Court decisions,
it is instructive and helpful to look beyond the specific
holding to the debate of broader principles of jurisprudence.
In Egelhoff eight Justices agreed that there may be valid
policy reasons to exclude relevant, reliable evidence, 116
S.Ct. at 2017, 2025. While the eight Justices debated the
"Chambers principle," id. at 2022, Justice Ginsburg, concurring
in the judgment, looked "[b]eneath the labels" in concluding
that a state legislature's redefinition of mens rea "encounters
no constitutional shoal." Id. at 2024.
Justice Scalia, speaking for four other Justices, described
Chambers as a "highly case-specific error correction" case as
well as a "fact intensive case." he concluded that there is no
violation of a defendant's right of defense "whenever critical
evidence' favorable to him is excluded"; on the other hand,
"erroneous evidentiary rulings can, in combination, rise to the
level of a due process violation." Id. at 2022. The plurality
then emphasized that Fed.R.Evid. 403 and 802 result in
exclusion of relevant, reliable evidence. Id. at 2017.
Justice O'Connor, dissenting and joined by three other
Justices, agreed the "defendant does not enjoy an absolute
United States v. Scheffer No. 95-0521/AF
right to present evidence relevant to his defense." Id.
at
2026. Her dissent rejected the plurality argument that because
evidence of voluntary intoxication was excluded at common law,
it should be excluded in this case. Id. at 2029-31. Justice
O'Connor asserted that to exclude the evidence would prohibit
a
defendant from having a "fair opportunity to put forward
his
defense." Id. at 2031. She emphasized that this concept
was
"universally applicable." Id. at 2030. In any
event, she
concluded that the state had not set forth "sufficient
justification," Id. at 2027, to exclude involuntary
intoxication to negate the mental element of a defense. She
agreed with Justice Ginsburg that a state could redefine an
offense to render "voluntary intoxication irrelevant,"
but
concluded that the State of Montana did not evidence such an
intent. Id. at 2031. Justice O'Connor also rejected the
plurality's characterization of Chambers. Id. at 2026-27.
Justice Souter agreed that the "plurality opinion
convincingly demonstrates that ... the common law ... rejected
the notion that voluntary intoxication might be exculpatory, or
was at best in a state of flux. . . ." Id. At 2032
(citation
omitted). Thus, a state may "exclude even relevant and
exculpatory evidence if it presents a valid justification for
doing so." Id. at 2032.
However, in separate opinions, Justices Breyer and Souter
stated that the State of Montana had not provided for exclusion
United States v. Scheffer No. 95-0521/AF
of voluntary intoxication from the mens rea element of
an
offense. In summary, in Egelhoff eight Justices of the
Court
recognized that relevant, reliable evidence may be excluded if
there is a valid policy reason for doing so.
Mil.R.Evid. 707 was "based on several policy grounds."
The
policy grounds set forth in the Analysis are not exclusive.
These grounds include the risk of being treated with "near
infallibility"; "danger of confusion of the issues";
and a
waste of time on collateral matters. Drafters' Analysis,
Manual, supra (1995 ed.) at A22-48.
An additional policy concern is the impact in terms of
practical consequences. Unfortunately, the majority overlooks
the practical consequences of its decision on a worldwide
system of justice. Our Court sees the cases that are at the
end of a long funnel, There are approximately 4,000 general
courts-martial per year. Annual Report, 39 MJ CXLVII, CLIX,
CLXXIV, CLXXVII (1992-93). However, across the services, there
are approximately 100,000 criminal actions per year.
Statistically more than 20 percent of these involve drug cases
like the present case, The majority fails to recognize that a
concomitant right of presenting polygraph evidence is the right
to demand a polygraph examination during the investigative
stage. This may well impose a practical impossibility on the
services. Additionally, if an individual were accused of a
minor crime for which she was to be given a captain's mast, she
United States v. Scheffer No. 95-0521/AF
could claim a right to a polygraph examination.2/ Thus, the
practical policy consequences set forth in the analysis
established a valid governmental interest in precluding
admissibility of polygraph examinations. This rule is not
inconsistent with the rule in the Federal courts.
Professors Giannelli and Imwinkelried state, A majority of
jurisdictions follow the traditional rule, holding polygraph
evidence inadmissible per se." P. Giannelli & E, Imwinkelried,
Scientific Evidence § 8-3 (A) at 232 (2d ed. 1993 and 1995)
(citing many cases). Further, "(a) substantial minority of
courts admit polygraph evidence upon stipulation of the
parties." Id. § 8-3(B) at 236. But "(a few
courts recognize
a trial court's discretion to admit polygraph evidence even in
the absence of a stipulation." Id. § 8-3(C) at
240.
While the Federal courts are split as to admissibility of
polygraphs, some, like United States v. Posado, 57 F.3d
428
(5th Cir. 1995), have admitted polygraph evidence at
suppression hearings or pursuant to a stipulation. United
States v. Piccinonna, 885 F.2d 1529, 1536 (11th Cir, 1989).
This is not unlike admitting hearsay at suppression hearings.
In any event, the Federal courts have not faced the issue of a
rule precluding admissibility of polygraph evidence in a
worldwide system of justice. California, which does have a
rule similar to the military and applies the Kelly-Frye
(so
named after People v. Kelly, 549 P.2d 1240 (Cal. 1976),
and
United States v. Scheffer No. 95-0521/AF
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) test,
has
held that there is no constitutional right to introduce
exculpatory polygraph examinations. See, e.g., People v.
Kegler, 197 Cal. App. 3d 72, 84-90, 242 Cal .Rptf. 987,
905-09
(1987).
Since Mil.R.Evid 707 is based on valid po1icy grounds, it
satisfies the Constitution and the requirement in Article 36(a)
that the rules of procedure and rules of evidence conform to
those in Federal trials "so far as he (The President] considers
practicable." If one carried the view of the majority to
its
logical conclusion, it calls into question various procedural
and evidentiary rules. See e.g., Mil.R.Evid. 502-12 and
803(6); RCM 305(h)(2)(B). Unfortunately this path reminds me
of earlier forays by this Court. See e.g, United States
v.
Larneard, 3 MJ 76, 80, 83 (1977); United States v. Heard,
3 MJ
14, 20 n.12 (1977); United States v. Hawkins, 2 MJ 23 (1976);
United States v. Washington, 1 MJ 473, 475 n.6 (1976).
But see
United States v. Newcomb, 5 MJ 4, 7 (CMA, 1978) (Cook,
J.,
concurring).
To the extent the majoritv suggests that Egelhoff is
distinguishable because it involves a legislative act rather
than rulemaking by an executive, I have two responses. First,
just as the Supreme Court treats Federal Rules of Criminal
Procedure the same as statutes, so should we. See, e.g., Bank
United States v. Scheffer No. 95-0521/AF
of Nova Scotia v. United States, 487 U.S. 250, 255 (1988).
Second, in Loving v. United States, 116 5. Ct. 1737, 1748
(1996), the Supreme Court recignized that the President as
Commander-in-Chief has been delegated "wide discretion and
authority." The Court upheld the delegation of authority
to
the President to promulgate aggravating factors in a death
penalty case. Loving left open the question the extent
of The
President's authority under Article 36 alone. Id. at 1749.
For the aforementioned reasons, I dissent.
FOOTNOTES:
1/ This Court in the past has looked at Brady v. Maryland,
373 U.S. 83 (1963), and its military counterpart s to its
impact on prosecution witnesses as in Wood v. Bartholomew,
116
S.Ct. 7 and reversed a conviction. United States v.
Simmons, 38 MI 376, 380-82 (CMA 1993).
2/ See, e.g., United States v. Bass, 11 MJ 545 (ACMR 1981)
(refusal to accept Article 15 resulted in a general court-
martial and 8 years' confinement. There have been other
instances where Article 15s have resulted in more serious
dispositions. See e.g., United States v. Brock, No. 96-0673,
pet. granted (July 12, 1996); United States v. Zamberlan, 44 MJ
69 (1996).
End of Document
Document first uploaded 28 December 1996