The United States Court of Appeals for the Armed Forces Rules

Per Se Ban on Polygraph Tests Is Unconstitutional

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United States, Appellee


Edward 0. SCHEFFER, Airman

US. Air Force, Appellant

No. 95-0521

Crim. App. No.30304

United States Court of Appeals for the Armed Forces

Argued May 8,1996

Decided Sep. 18 1996

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


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:






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


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


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


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-

  1. The constitutionality of the state law was not before the Court and therefore,

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.


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


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


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.,


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.


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

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