By Charles W. Daniels

505-842-9960

Freedman, Boyd, Daniels, Hollander, Goldberg, & Cline, P.A.

Albubuquerque, New Mexico

Those who hoped the Scheffer opinion would provide some definitive answers to the issues surrounding polygraph use in court will find little resolution in the decision. It takes a careful analysis to determine just what the court said and did not say, and the opinion is bound to be misinterpreted and misused . . .

An airman charged with using drugs was administered both a urinalysis and polygraph by the Air Force. The urinalysis expert said that traces of methamphetamine were found in his urine and the polygraph expert said that the airman did not show signs of deception when he denied knowingly ingesting the drugs. As a result of a recent executive order flatly prohibiting the use of polygraph evidence in courts, the court martial was not allowed to hear about the polygraph evidence, while the urinalysis was admitted. The airman appealed his resulting conviction, and the court of appeals for the armed forces held that a rule imposing a per se exclusion of polygraph evidence violated the Sixth Amendment right to present a defense. The government took the case to the United States Supreme Court, which reversed the court of appeals and reinstated the conviction. US v. Scheffer, 1998 US LEXIS 2303.

What the Court Held.

The only clear holding from the court is that a jurisdiction which chooses to keep polygraphs out of evidence is not precluded by the United States Constitution from making that choice, at least at the present time. That conclusion is shared by the four justices supporting the Thomas opinion (Thomas Rhenquist, Scallia and Souter) and the four justices supporting the Kennedy opinion (Kennedy, Connor, Ginsburg, and Breyer). Even this conclusion is not written in stone for the indefinite furture. Only the Thomas group seems to be firm in their position on the Sixth Amendment issue to avoid binding all court systems in the country to a constitutional ruling that have no power to exclude polygraph evidence, joining only on the ground that the rule of exclusion is not so arbitrary or disproportionate that it is unconstitutional. The Kennedy group went on to say, however, that they did not agree that the per se exclusion is wise and that a later case might cause them to re-examine their position. The Kennedy group also noted that the tension between the Scheffer result and the Daubert doctrine, as well as the inconsistency between the government oppositionist position to the defense use of polygraphs while it makes widespread use of polygraph in going about its own business.

Stevens was clear in his position that the courts should be open to admission of polygraph results and that the Constitution would prohibit any jurisdiction from imposing a per se exclusion. The majority of the court (Stevens, Kennedy, Connor, Ginsburg and Breyer) amker clear their positions on the following issues. The majority did not say that polygraph evidence should be inadmissible. In fact, a majority of the court thought that a per se rule of exclusion to be either unconstitutional or unwise (Kennedy, Connor, Ginsburg and Breyer).

The majority of the court did not say that polygraph evidence is unreliable. In fact, none of the opinions of the nice justices reached that conclusion. The Thomas group and the Kennedy group agreed that in light of the continuing good faith disagreement among experts and courts on the subject, it is possible to reasonably reach differing conclusions as to whether polygraph evidence should be admitted as a matter of constitutional law.

The majority of the court did not say that polygraph evidence invades the province of the jury. The government used this familiar argument, but failed to convince the majority of the court. While the Thomas group accepted the argument, the remaining five judges explicitly rejected it.

The court did not say that consideration of polygraph takes too much time in litigation and consideration of collateral issues. Again, this argument had the support of the Thomas group, but not the remaining five justices.

Implications for the Future.

Despite the fact that advocates on all sides of the polygraph issues will find support in their arguments in either the ultimate holding or particular language in the various opinions, there are a few propositions that are fairly clear from the opinion.

The Thomas group of four can be expected to be hostile to the use of polygraph evidence. The other five justices may be more receptive. The courts remain free to consider the admissibility of polygraph evidence and to promulgate rules allowing its admission.

In a future case, a majority of the court may well hold that admission of polygraph evidence is constitutionally required. The current widespread use of polygraph evidence by both government and the private sector is unlikely to be affected by the Scheffer opinions.