Jurisprudential Myopia:

Polygraphs in the Courtroom

Colonel J. Jeremiah Mahoney\*

Captain Christopher C. vanNatta\*\*

# I. INTRODUCTION

The authors believe the polygraph is a valuable investigative tool
that--like profile evidence and psychics--should be kept out of the
courtroom. Much has been written about the validity of the polygraph
theory, and about the technological advancements in the application of
that theory.[^1] It is not our purpose to refute or support the
scientific basis of polygraph opinion testimony. We accept, *arguendo*,
the validity of the theory, and the potential validity of its
application in a given case. What gives us pause for concern is the
larger jurisprudential question not yet addressed by the appellate
courts. That is: Shall the jury be displaced in its role as the judge of
credibility?

Until the promulgation of the Military Rules of Evidence, the opinion of
a polygrapher was inadmissible in military courts.[^2] In 1987, the
highest military court set aside a conviction because the accused was
not permitted to attempt to lay the foundation for the admissibility of
his successful polygraph test. In its decision, the Court of Military
Appeals stated:

> A few courts have experimented with the notion that an accused has an
> independent, constitutional right to present favorable polygraph
> evidence. We do not subscribe to this theory of admissibility because
> there can be no right to present evidence--however much it purports to
> exonerate an accused--unless it is shown to be relevant and helpful.
> When evidence meets these criteria, no additional justification for
> admissibility is necessary."[^3]

To be relevant,[^4] the evidence must, perforce, be valid. In the case
of polygraph, that means the underlying theory must be shown to be
scientifically valid. If it is, then the application of the theory to
the case at hand must also be valid. If valid, both in theory and
application, then the polygraph evidence would be relevant under Rule of
Evidence \[hereinafter Rule\] 401,[^5] and eligible for admission under
Rule 402. Additionally, however, it must also be determined that any
relevant evidence is "helpful." For scientific evidence--involving the
opinion testimony of an expert--that means that it must "assist" the
factfinder under Rule 702.[^6]

Superficially, the "helpfulness" requirement for scientific evidence
appears redundant with the underlying relevance requirement that any
evidence have a "tendency" to make the existence of any fact that is of
consequence to the determination of an issue more or less probable than
it would be without the evidence. Thus, unfortunately, some appellate
courts appear to assume the "tendency" of any relevant evidence to make
the existence of a fact more or less likely means the evidence is
"helpful" and that it will "assist" the factfinder.

This logical leap is inconsequential for most types of scientific
evidence, where the factfinders have no special knowledge or skill. But,
as this article will show, it is exactly the opposite for the
polygraph--or any other device that purports to perform the very same
function as the factfinder. In such cases, the "tendency" of relevant
evidence to "help" needs to be weighed against the innate ability of the
factfinder to perform the identical task. The polygrapher purports to
determine the credibility of a witness' statements concerning the facts
of the case. Polygraph evidence cannot "assist" the factfinder unless
its tendency in determining deception is more reliable than the
factfinder's own ability to determine which in-court testimony to
believe.

This article examines the specific problem created by the in-court use
of polygraph evidence and offers a solution that will avoid the need to
revisit the issue every time there is some new development in the field
of polygraphy. We begin with a brief discussion of the science behind
the polygraph to provide a background for consideration of the larger
jurisprudential question. The article then moves to an evaluation of
some of the more important military cases concerning polygraph evidence,
and a brief discussion of the constitutional implications of excluding
polygraph evidence from the courtroom. We then explore the requirements
for expert testimony under Rule 702 to determine whether polygraph
evidence really assists the factfinder. The last part of the article
focuses upon the relationship between the expert opinion of a
polygrapher and other expert opinions concerning credibility and the
difficulty experienced by courts trying to reconcile polygraph evidence
and Rule 608.[^7] Finally, the authors propose an amendment to both the
Federal Rules of Evidence \[hereinafter F.R.E.\] and Military Rules of
Evidence \[hereinafter M.R.E.\] that will bring jurisprudence back into
focus.

**II. The Science of the Polygraph**

A polygraph examination is a type of psychological testing. Although
there is no universal agreement on precisely what theory is involved in
use of the polygraph, the most commonly accepted theory is that the
person being examined fears detection of deception. It is this fear that
produces autonomic (\"involuntary\") physiological responses, captured
by the polygraph instrument, which the polygraph operator can identify
as attempts at deception.[^8] The polygraph instrument itself does not
detect deception. Rather, the instrument measures and records
physiological responses to questions asked by the polygrapher. By
comparing the responses to several different questions asked of the
subject, the polygrapher will detect a pattern of arousal that serves as
the basis for inferring the subject's deception or lack thereof.[^9] The
conclusion in this regard is the opinion of the polygraph operator.

For purposes of polygraph testing the most important reactions include a
change in the rate and pattern of breathing, blood pressure, rate and
volume of blood flow, and moisture on the skin. By contrast, truthful
answers, even to stressful questions, do not generate the same
reactions. The polygraph instrument generally used today consists of a
central unit that collects information from components which measure
three physiological functions in the body. The cardiograph or blood
pressure cuff monitors changes in blood pressure and heart rate; a
device called the pneumograph monitors respiratory activity in both the
abdominal and thoracic area of the body; and a galvanograph measures
palmar sweating--often called galvanic skin response or skin
conductivity. Any changes in the physiological measurements are
transmitted to a computerized or electronic analog central unit that
records the physiological changes electronically or on chart paper.[^10]

In order to generate the sought after reactions, the polygrapher asks
carefully structured questions of the subject concerning the facts of
the alleged incident. The questions, which the polygrapher and the
subject discuss beforehand, are posed while the subject is attached to
the instrument. There are many different questioning techniques used to
test the subject, but the most common is the control question test.[^11]
The control question test involves a comparison of arousal to "control"
questions with arousal to "relevant" questions. A relevant question is
one that concerns the facts of the alleged incident and is accusatory in
nature. The "control" question is a general question that has little to
do with the alleged event but that is designed to generate a lie
reaction.[^12] A deceptive subject is supposed to show greater arousal
to the relevant question than to the control question because of a
greater psychological response to the relevant question. A nondeceptive
subject would show more arousal to the control question. In the end, the
goal of a properly conducted polygraph examination is an opinion the
accused is or is not being deceptive in response to questions material
to a determination of "guilty" or "not guilty." The polygrapher's
opinion in this regard becomes an expert opinion about the truthfulness
of the accused concerning the events that led to the court-martial.[^13]

The validity or reliability of the polygraph is a matter of intense
debate. Proponents of polygraph testing claim accuracy rates anywhere
from 70% to 95% based on several recent studies.[^14] Although some of
the studies involved comparisons to jury determinations, many of the
studies concerned mock crimes and cash awards to any subject who could
defeat the polygraph.[^15] There are no studies comparing the accuracy
of polygraphs to that of juries.[^16] Nor are there any studies
comparing the polygraph results to ground truth.[^17] Practically, such
studies are not possible. Opponents of courtroom use of polygraph
testing have two major concerns. First, they dispute the validity of the
studies, claiming accuracy rates only slightly better than chance.[^18]
The second criticism is accurately summed up in one federal circuit
court decision:

> There is no 'lie detector.' The polygraph machine is not a 'lie
> detector,' nor does the operator who interprets the graph detect
> 'lies.' The machine records physical responses which may or may not be
> connected with an emotional reactionand that reaction may or may not
> be related to guilt or innocence. Many, many physiological factors
> make it possible for an individual to "beat" the polygraph without
> detection by the machine or its operator.[^19]

The critics claim that since there is no unique lie response, it is a
mere leap of faith for the polygrapher to render an opinion that the
person is or is not being deceptive.[^20]

## III. The Legal Evolution of the Polygraph

### A. A Military Case History

Polygraph or "lie detection" evidence first saw the light of the
courtroom over seventy years ago in *Frye v. United States*.[^21] Mr.
Frye was on trial for robbery and murder. The defense counsel attempted
to show the possibility of Frye's innocence by introducing evidence at
trial that Frye had passed a polygraph exam about the murder. The
polygraph instrument, used by Dr. William Marston, which consisted of
little more than a blood pressure cuff, was very crude in comparison to
the equipment used today. The evidence, which included the results of a
systolic blood pressure deception test and Dr. Marston's expert
testimony, was not admitted and Frye was convicted of the murder.
Ironically, that polygraph case served as a vehicle for the D.C. Court
of Appeals to establish what became the universal standard for the
admissibility of scientific evidence and expert witness testimony in the
United States. Under what came to be known as the *Frye* standard,
scientific evidence was admissible only if the theory upon which it was
based enjoyed "general acceptance" in the scientific community.[^22] In
the decades since that decision, polygraph evidence has never been able
to achieve this standard.[^23]

However, in the early 1980s, courts in every jurisdiction experienced a
resurgence in attempts to use polygraph results as exculpatory evidence.
Fueled by what were touted as recent technological improvements in
polygraphy, defense counsel in many jurisdictions began offering
"exculpatory" polygraph results[^24] as evidence supporting their
client's credibility or as evidence of lack of guilt. In its first major
post-resurgence case, *United States v. Gipson*,[^25] the Court of
Military Appeals, applying M.R.E. 702 and rejecting the *Frye* standard,
held that the defense should be permitted to attempt to lay a foundation
for the admission of such evidence.[^26] With noteworthy prescience, the
court ruled that M.R.E. 702 superseded *Frye* and, therefore, *Frye*
would no longer be viewed as establishing an independent test for
admissibility of scientific evidence.[^27] The court also ruled trial
judges had the responsibility to exercise their judgment to determine,
based on the facts before them, whether scientific evidence should be
admitted.[^28] In other words, the military judge was to act as the
gatekeeper for the admission of scientific evidence.

On the specific issue of polygraph evidence, the court declined to
support an independent constitutional basis for the admission of the
evidence, relying instead upon a standard of relevance and
helpfulness.[^29] With regard to how polygraph evidence could be used,
the court felt the expert could, at best, opine whether the examinee was
being truthful or deceptive in making a specific assertion when the
polygraph exam was administered.[^30] Moreover, the evidence would not
be permitted absent testimony in court from the accused consistent with
the testimony of the polygrapher.[^31] Despite repeated refusal to
permit such opinions in the past, the court stated it was for the
factfinder to decide whether to use the polygrapher's opinion to gauge
the truthfulness of the accused's consistent in-court testimony.[^32]
The court pushed the point further when it commented that the
"\[polygrapher's\] opinion about the truthfulness of a statement made
during a polygraph exam could even support a direct inference as to the
guilt or innocence."[^33]

The *Gipson* opinion also involved a lengthy discussion concerning the
application of the Federal and Military Rules of Evidence, and
specifically M.R.E. 702. Addressing the helpfulness prong of the
analysis under M.R.E. 702, the court relied on a three part balancing
test that focused largely on the reliability and complexity of the
evidence.[^34] There was virtually no discussion concerning the
factfinder's responsibility to determine credibility, or whether this
evidence invaded that function. Similarly, the applicability of M.R.E.
608 was rejected with minimal discussion. The one limitation imposed by
the court was the accused's testimony as a precondition to
admissibility. The court was concerned the absence of the accused's
consistent testimony would leave the court members with only the
polygrapher's conclusion about the believability of the accused's
hearsay statement. This, the court feared, would usurp the role of the
factfinder.[^35]

In response to *Gipson*,[^36] and out of concern for the highly
prejudicial nature of polygraph evidence,[^37] the President of the
United States, pursuant to his rule making authority,[^38] enacted
M.R.E. 707. That rule prohibits not only the admission, but also the
mere mention, of polygraph evidence of any sort at a court-martial.[^39]
The drafters of M.R.E. 707 felt that polygraph evidence would be, among
other things, too confusing, of limited reliability, and impermissibly
invasive of the province of the court-martial panel. There was also
concern that court members would view this evidence as infallible,
unimpeachable, and conclusive of trial issues.[^40] M.R.E. 707 withstood
its first constitutional challenge in *United States v. Williams,*[^41]
where the court sidestepped the issue of the constitutional viability of
M.R.E. 707 by finding that the accused's failure to testify nullified
any right to present polygraph evidence.[^42] The ruling did not
necessarily contradict or overrule the *Gipson* opinion, but the court
stated that *Gipson* no longer controlled the admissibility of polygraph
evidence.[^43] The court did not take the opportunity to answer any of
the evidentiary questions left over from *Gipson*, such as which rules
concerning credibility evidence governed polygraph evidence. Nor did the
majority engage in any analysis under M.R.E. 702. For the first time,
however, one member of the court questioned the applicability of M.R.E.
608 as a bar to this evidence.[^44] Expressing his concern the evidence
would infringe on the jury's role to determine credibility, Chief Judge
Sullivan recognized a parallel between polygraph opinion testimony and
the testimony of child abuse experts that the victim was telling the
truth in her pretrial complaints.[^45] For him, the logic of excluding
such opinion testimony from a child abuse expert extended to opinion
testimony regarding polygraph results. Although M.R.E. 707 promised an
end to the use of scientific evidence of questionable value on an issue
within the province of the factfinder, its effect would be short
lived.[^46]

In 1993, in response to years of criticism of *Frye*, the Supreme Court
finally rejected the "general acceptance" test as the means of assessing
the admissibility of expert scientific testimony. In *Daubert v. Merrill
Dow Pharmaceutical, Inc.*,[^47] the Court found that F.R.E. 702
superseded the *Frye* test and was the only standard trial judges could
use to determine the admissibility of expert scientific testimony.[^48]
The Court reasoned that the *Frye* standard was too narrow and F.R.E.
702's more liberal thrust better accommodated today's rapidly evolving
scientific evidence. The Court, however, did not abandon *Frye*
altogether. Rather, the *Frye* standard became one of several factors
the Court proposed for use in evaluating the reliability of scientific
evidence. A non-exhaustive list of factors set forth by the Court was
specifically designed to aid trial judges in their evaluations.[^49] The
Court's primary concern in *Daubert* was with the evidentiary
reliability or "trustworthiness" of the scientific or technical
knowledge underlying the expert testimony.[^50] A separate inquiry,
briefly addressed in *Daubert*, concerned whether the theory or science
would actually be helpful to or assist the factfinder. [^51] For the
Court, the resolution of that question was tied to relevance.[^52]

On the heels of *Daubert*, the Court of Appeals for the Armed Forces
(formerly the United States Court of Military Appeals) revisited the
issue of the admissibility of polygraph evidence. In *United States v.
Scheffer*,[^53] the majority removed the *per se* exclusion of polygraph
evidence by ruling M.R.E. 707 unconstitutional. The court stated that
preventing the defense from attempting to lay a foundation for the
admissibility of polygraph evidence under M.R.E. 702 and *Daubert*,
violated an accused's Sixth Amendment right to offer witnesses on his
behalf and his fundamental right to present a defense.[^54] In its
analysis concerning the admissibility of scientific evidence, the
majority failed to articulate any consideration of the issue of
assistance to the factfinder.[^55] Despite Judge Sullivan's dissenting
opinion, there was also no discussion at all regarding the evidentiary
issues presented by polygraph evidence under M.R.E. 608, though the
majority did attempt to explain away the parallel between polygraph
expert testimony and child abuse expert testimony. The gist of the
majority's rationale seems to be if polygraph opinion evidence can meet
the standard for admissibility as scientific evidence, there is no
reason to treat it differently than any other type of scientific
evidence. What this court and many others failed to consider is that the
in-court purpose served by this kind of scientific evidence is
*fundamentally* different than that served by any other type of
scientific evidence. For this reason, even if polygraph evidence could
meet the standards for legal reliability and scientific validity, sound
jurisprudence demands this evidence be treated differently.

### B. The Constitutional Issue

The Sixth Amendment to the Constitution[^56] guarantees an accused the
right to present a defense.[^57] This includes the right, under the
Compulsory Process Clause,[^58] to call witnesses in his favor[^59] and
the right to present relevant and material evidence favorable to the
defense.[^60] Those rights, however, are not unlimited.[^61] Indeed, as
the Court of Appeals for the Armed Forces stated, "the constitutional
rights of the accused are designed to assure a fair trial, not to
subvert the adversary process."[^62] The rights of the accused must
yield to other legitimate evidentiary and procedural rules in the
criminal trial process designed to assure fairness and reliability in
the judgment of guilt or innocence.[^63] Any restrictions of the
accused's rights in this regard cannot be arbitrary or disproportionate
to their intended purpose.[^64] To the extent some restriction or any
other evidentiary or procedural rule advances legitimate concerns, the
appropriate exercise of these rules would never be called
arbitrary.[^65] The question then is whether the exclusion of polygraph
evidence, in order to assure fairness and reliability in the trial
process, is an arbitrary or disproportionate denial of the accused's
right to present witnesses in his favor and his fundamental right to
present a defense.

The Supreme Court will take the opportunity to address the
constitutionality of M.R.E. 707 in *Scheffer*. The issue will be whether
a *per se* ban on the admissibility of the polygraph violates the
accused's constitutional right to call witnesses in his favor and the
right to present a defense.[^66] To the extent the rule prevents an
accused from presenting evidence in the form of an expert opinion that
he is telling the truth about what happened, M.R.E. 707 should not be
ruled unconstitutional. The exclusion of polygraph evidence is
appropriate because the substance of the testimony---an opinion the
accused is telling the truth---has not been proven helpful to the
factfinder. Precluding the use of polygraph for this reason is neither
arbitrary nor disproportionate to the purpose it was designed to serve.
But, M.R.E. 707 focuses on a particular mechanism rather than the evil
to be avoided. A more appropriate approach, and one more likely to
survive constitutional scrutiny, is a narrowly tailored rule designed to
prevent opinions that a particular witness is telling the truth about
what happened. To better understand the jurisprudential implications of
this issue, a discussion of the nature of expert opinion evidence
follows.

## IV. expert testimony and the polygraph

## A. Rule of Evidence 702

M.R.E. 702 permits the introduction of scientific, technical, or other
specialized knowledge if it will assist the trier of fact to understand
the evidence or determine a fact in issue. The rule in its entirety
reads:

> **Rule 702. Testimony by Experts**
>
> If scientific, technical, or other specialized knowledge will assist
> the trier of fact to understand the evidence or to determine a fact in
> issue, a witness qualified as an expert by knowledge, skill,
> experience, training, or education, may testify thereto in the form of
> opinion or otherwise.[^67]

The determination of whether evidence qualifies for admission under
M.R.E. 702 rests solely with the military judge and, in that sense, he
or she is the "gatekeeper."[^68] The military judge is required to
evaluate the evidence under M.R.E. 104(a).[^69] If the evidence
qualifies for admission, then to the extent the witness is properly
qualified, she may provide testimony and state her opinion concerning
the matter at issue. An expert witness may even give her opinion as to
an ultimate issue to be decided by the trier of fact.[^70] The expert
witness is supposed to describe the general principles and procedures
relied on by people in her particular field, and then make inferences
and draw conclusions the jury would be unable to draw themselves. The
purpose of expert testimony is to provide the factfinders with
information and insight they do not possess because it is outside their
common experience. [^71]

The use of expert testimony under M.R.E. 702 has two primary policy
goals. First, the use of such testimony promotes the search for the
truth by helping the factfinder understand certain evidence and
determine the facts in dispute.[^72] Second, the rule preserves the
factfinder's traditional role to assess the credibility of witnesses and
determine guilt.[^73] To achieve these goals, expert testimony must
meet, among others, two important requirements before it can be
admitted. The testimony must relate to specialized knowledge in that the
subject matter must be based on something more than subjective belief or
unsupported speculation,[^74] and the testimony must assist the
factfinder to understand the evidence.

*1.* *Expert Testimony Must "Assist" the Factfinder*

The requirement for scientific evidence to assist the factfinder is
generally considered the most important aspect of the Rule 702.[^75] In
its note accompanying F.R.E. 702, the Advisory Committee acknowledged
the decision whether to permit expert testimony should focus on whether
the evidence will assist the factfinder.[^76] According to the Advisory
Committee,

> There is no more certain test for determining when experts may be used
> than the common sense inquiry whether the untrained layman would be
> qualified to determine intelligently and to the best possible degree
> the particular issue without enlightenment from those having a
> specialized understanding of the subject involved in the dispute.[^77]

The federal courts are in agreement.[^78] The drafters of the military
rule also recognized the importance of the helpfulness of expert
testimony and commented "\[t\]he Rule's sole explicit test is whether
the evidence in question 'will assist the trier of fact to understand
the evidence or determine a fact in issue.'"[^79] The military's highest
court took this position in *United States v. Snipes*,[^80] in which it
upheld the military judge's decision to admit evidence concerning the
behavior of sexually abused children. The court read all of the expert
testimony rules as expanding the admissibility of expert testimony, but
cautioned that the "essential limiting parameter" was whether the
testimony would assist the factfinder.[^81] If the judge's role in
passing on the admissibility of scientific evidence is that of
"gatekeeper," then the term "assist" is the gate. The term "assist" can
be characterized as the gate because the requirement that the scientific
evidence assist the factfinder actually pervades the entire rule and
ultimately controls whether the testimony is admitted.

Despite the importance of the "assist" requirement, issues concerning
validity and reliability garner infinitely more attention. Of course,
unreliable or invalid scientific evidence will not assist the court
members. Consequently, the trial judge's primary focus in passing on
admissibility is almost always on the "reliability" of the proffered
scientific evidence. The unstated assumption is that, if reliable, the
evidence will be helpful to the factfinder. In the vast majority of
cases, this is a safe assumption because the subject of an expert's
opinion is usually one with which the factfinder is unfamiliar and needs
help to understand. However, with regard to polygraph evidence or any
other science that purports to detect deception, simply assuming the
evidence will assist the factfinder is a mistake.

Whether reliable scientific evidence will actually assist the factfinder
depends upon the facts of the case, the type of scientific evidence
involved, and the purpose the evidence will serve. In the context of the
*Daubert* opinion, which was focused on the reliability of new, "fast
track" sciences, the Supreme Court's requirement as to the helpfulness
of the evidence was whether it is relevant.[^82] The Court's helpfulness
standard requires a valid scientific connection to the pertinent inquiry
as a prerequisite for admission.[^83] The lower federal and military
courts ordinarily employ this standard when evaluating helpfulness.[^84]
However, relevance is not the sole consideration. If it were, then the
"assist" requirement for expert testimony would be redundant with the
requirements for relevancy, which is that the evidence have some
tendency to make the existence of a fact more or less probable.[^85] Any
evidence more probable than a coin-toss fulfills this requirement. To
"assist," expert testimony must also add something to the factfinder's
considerations the factfinder itself could not supply.[^86]

The degree to which the evidence must add to the factfinder's
understanding has changed over the years. Initially, at common law,
expert testimony was admissible only if the subject matter was beyond
the common knowledge and experience of lay people.[^87] The "assist"
requirement under Rule 702 is perceived to be less demanding and the
drafters of the federal rule seem to have intended that to be the
case.[^88] The more liberal or "modern" position is that, if the
expert's opinion adds to the factfinder's understanding in any way, it
should be admitted.[^89] Both the federal courts and the military courts
adopted this view of the "assist" requirement.[^90]

Expert testimony in the form of scientific or technical evidence is
routinely admitted to explain some fact or some theory the jury will
need to understand in order to determine guilt. For example, forensic
toxicology in a urinalysis case and DNA testing in a murder case are
admitted because the areas of scientific knowledge are beyond the common
understanding of the jury. The evidence is required to help them
determine, for example, what substance was in the urine or whose blood
was found at the scene of the crime. These are purely factual issues the
jury cannot ascertain on its own but must determine in order to decide
whether the accused is "guilty" or "not guilty."

Expert testimony is also commonly used in cases to explain facts or
circumstances contrary to normal human experience.[^91] Such evidence
includes what are often referred to as the "soft sciences," such as
psychology. This evidence is helpful to the factfinders because it
compensates for their own misunderstandings, misconceptions, and
erroneous assumptions about human behavior. In this sense, it assists
the factfinder to understand the evidence by providing information
outside of the normal human experience. This, for example, is the basis
for the admission of testimony about the Child Sexual Abuse
Accommodation Syndrome.[^92] Evidence that children who have been
sexually abused sometimes fail to report the abuse; act relatively
normally; and sometimes recant their allegations is admitted because
this behavior is counter-intuitive. This background information merely
explains that it is possible for a child to be abused and yet show no
outward manifestations.[^93] For this type of evidence to be of
assistance, it must come from individuals who are more aware of how
children behave when abused.[^94]

Courts even allow testimony, in the form of lay opinions, on matters
within the common experience of the factfinder but only if it will
assist them with a particular factual issue. For example, lay witnesses
are often qualified to testify as to their opinion of the speed of a car
or that someone appeared drunk or sleepy. While these subjects are
within the common experience of most people, the evidence is admitted
because the members of the jury were not present at the scene of the
event and a mere recitation of the facts observed by the witness would
be insufficient to permit the jury to draw any conclusion. In that
sense, the opinion assists them in understanding a fact in issue beyond
what the witness' factual description would provide. Put another way,
the person who actually saw the car can make a better assessment about
the speed of the car than the factfinder can from a mere recitation of
the observed facts. However, the usefulness of such testimony only goes
so far. For example, on the issue of competency to testify, the court
would not allow a layman, or expert for that matter, to testify that he
was sitting in the courtroom while a witness testified, and that it
appeared the witness was too tired or sleepy to accurately state what
happened. This testimony is inadmissible because jury members normally
draw their own conclusions from such observations in their daily lives.

*2.* *Expert Testimony Does Not Always "Assist"*

Expert testimony is considered unhelpful and inadmissible under Rule 702
if the factfinder has no need for the opinion.[^95] Courts have
consistently found that expert testimony on matters within the common
knowledge or experience of the factfinder is superfluous,[^96]
troubling,[^97] unhelpful, [^98] and of no assistance to the
factfinder.[^99] Exclusion is warranted because the factfinder is
already able, "to the best possible degree",[^100] to determine whatever
fact the expert testimony is offered to prove. For example, in *Beech
Aircraft v. United States*,[^101] an expert in linguistics and an expert
in electronic sound enhancement were not allowed to give their opinions
as to what was actually being said on a garbled audiotape. The court
disallowed what it felt was unhelpful testimony because it was within
the ability and experience of the factfinder to make the determination
for itself.[^102] The court arrived at this conclusion by focusing not
on the scientific process alone, but on the purpose the evidence would
serve. Similarly, in *Scott v. Sears, Roebuck & Co.*,[^103] the court
upheld the exclusion of expert testimony concerning the unsafe condition
of a sidewalk outside a Sears store. The court stated, "\[F.R.E.\] 702
makes inadmissible expert testimony as to a matter which obviously is
within the common knowledge of jurors because such testimony, almost by
definition, can be of no assistance."[^104]

The evidence in these cases was relevant, but the testimony did not
assist the jury. There was no indication the sound and linguistics
experts or the safety expert were any better at determining the facts
than the jury exercising its own common sense and ability. In other
words, the factfinder was, to the best possible degree, able to
determine the issue itself.[^105]

The determination concerning credibility is one important area in which
the courts have already decided the factfinder does not require
assistance. Notwithstanding the Supreme Court's statement that
helpfulness is tied to relevance, opinions concerning witness
believability have long been considered unhelpful. Former Chief Judge
Everett of the Court of Military Appeals offered extensive commentary on
this point. He stated that "\[i\]n evaluating someone's credibility,
'scientific, technical, or other specialized knowledge' is of limited
assistance to the trier of fact."[^106] To permit such testimony also
runs afoul of the policy behind M.R.E. 702, which is to preserve the
factfinder's role in determining credibility and, ultimately, guilt.
Perhaps in recognition of this policy concern, Chief Judge Everett went
on to state that "to allow an 'expert' to offer his opinion on the
resolution of a credibility dispute goes too far . . . . The court
members must decide whether a witness is telling the truth."[^107]
Finally, the Chief Judge, writing a majority opinion, stated, "opinion
testimony on whether or not to believe a particular witness' testimony
simply is not deemed helpful to the factfinder, for the factfinders are
perfectly capable of observing and assessing a witness' credibility.
*This is especially so where the testimony of the accused is
involved*."[^108] Many courts have acknowledged that credibility is an
issue that must and should only be resolved by the factfinder.[^109] So
well grounded is this rule that one Court of Military Review noted that
"'\[i\]t is hornbook law that the credibility of a witness and the
weight to be given his testimony rests exclusively with the
jury.'"[^110] The jury system, which is non-existent in most of the rest
of the world, came to us as a common law alternative to trial by fire,
trial by water, and trial by ordeal. We assume, and rightfully so, it to
be more reliable than its predecessors. It is in this jury system that
the citizens of the United States have placed their confidence, and
years of experience suggest that, whether or not it's perfect, it works
better than the existing alternatives.

## B. The Jury vs. The Polygraph

The reason evidence concerning the outcome of a polygraph exam and the
resulting opinion should be categorically excluded from trials is that
this type of evidence is fundamentally different than any other type of
expert testimony. The polygraphor any other scientific endeavor that
purports to find truth or detect deception[^111]concerns a topic
distinctly different from every other scientific, technical or
specialized subject matter. The opinion of a polygrapher goes to the
very heart of the factfinder's deliberative role; the assessment of
credibility and believability. Since determining credibility is well
within the understanding of jurors, courts cannot simply assume
polygraph evidence will assist the factfinder or that the subject matter
is appropriate for their consideration. Nor should they ignore
established evidentiary rules in an effort to make the road a "tad
wider"[^112] merely because it is the accused who wishes to introduce
the evidence.[^113] Such approaches would ignore the unique nature of
this subject and jeopardize the fairness of the trial process.[^114]

As with any scientific evidence, the evaluation of polygraph evidence
involves a two-part analysis of the reliability and helpfulness of the
evidence.[^115] With practically every form of scientific evidence,
theory, or technology, courts assume the scientific evidence, if
relevant, will actually assist the factfinder. Courts generally permit
scientific testimony without distinctly or consciously performing an
analysis of whether or not it will assist the factfinder.[^116] In most
cases, such an approach is warranted because the information being
presented is well beyond the common understanding of most jurors. The
historical problem with expert testimony concerning polygraph results is
that courts routinely engage in only half of the two-part analysis.
After focusing on the science and evaluating reliability, they tend to
assume, without analysis, the evidence will assist the jury.[^117] An
example of this "one-step" approach can be found in the case of *United
States v. Posado*.[^118] Using relevance as the standard by which
helpfulness is judged, the Fifth Circuit Court of Appeals noted that
scientific evidence is helpful to the factfinder if it possesses
validity when applied to the pertinent factual inquiry.[^119] In the
context of polygraph evidence, that meant that if polygraphy was a
reliable measure of truthfulness, then it would be relevant.[^120]
Consistent with its finding in this regard, the court focused almost all
of its attention on the validity of the polygraph and very clearly
assumed the polygraph evidence would be helpful. There was no discussion
at all as to the effect of this evidence on the jury, the jury's sole
responsibility to decide credibility, or whether the jury even needs
help in this regard. This "one-step" approach is jurisprudentially
unsound for the very basic reason that it overlooks a patent distinction
that separates polygraph evidence from any other scientific evidence to
which it may be compared. Determining believability is well within the
understanding of the jurors and, more importantly, it is the key task
with which they have been entrusted and with which they do not need
help.[^121] When the evidence concerns matters within the everyday
knowledge and experience of a juror, helpfulness cannot be
presumed.[^122]

The opinion offered by a polygrapher goes directly to the credibility of
the accused as to the key factual issues in the trial. The obvious
purpose of the polygraph operator's testimony is to vouch for the
credibility of an out-of-court exculpatory statement by the accused.
That is precisely the substance of the polygrapher's testimony. In
*Scheffer*, the Court of Appeals for the Armed Forces noted the
polygrapher would only opine that the subject showed no indications of
deception.[^123] But, to claim a polygrapher is testifying only as to a
lack of indicia of deception is to engage in semantics. From the
standpoint of the jury's function to find facts, there is no meaningful
difference between saying a person is being truthful about an event and
a person is not being deceptive about an event.[^124] Indeed, in
*Gipson* the court acknowledged that polygraph evidence related to the
credibility of a statement made by the declarant, and that the opinion
concerns whether the "examinee was being truthful or deceptive in making
a particular assertion."[^125] For that matter, the polygrapher was at
one time viewed by the court as "something of a credibility
medium."[^126] Ultimately, there can be little doubt that the opinion
rendered by a polygrapher relates specifically to the credibility of the
accused.

It is this fact that ultimately distinguishes this type of testimony
from other types of expert testimony. To be sure, the scientific aspects
of polygraphy are not significantly different from the scientific
aspects of DNA testing, urine drug testing, or any other purely
scientific processexcept that, with the possible exception of
handwriting analysis, polygraph testing embodies more subjectivity than
most.[^127] It is the substance of the opinion and the manner in which
the opinion will be used in court that is the problem with polygraph
evidence. It is not used to determine a fact in issue, but rather to
determine the believability of the accused's out-of-court statement
about the events which led to the trial. The Ninth Circuit Court of
Appeals stated the problem well in *Brown v. Darcy*:

> The introduction of polygraph evidence also infringes on the jury's
> role to determine credibility. Our adversary system is built on the
> premise that the jury reviews the testimony and determines which
> version of the events it believes. Allowing a polygraph expert to
> analyze responses to a series of questions and then testify that one
> side is telling the truth interferes with that function. Polygraph
> evidence is different from other scientific evidence such as
> ballistics, fingerprints, or voice analysis, because it is an opinion
> regarding the ultimate issue before the jury, not just one issue in
> dispute.[^128]

Since the polygrapher will comment on the same facts the accused is
required to testify to in court, the polygrapher's opinion will
doubtless be used to evaluate the accused's in-court testimony, as well.
Most judges will probably acknowledge, based on long observation, that
juries are good at detecting deception. Juries do not like to believe
anyone would lie to them in court, but when confronted by irreconcilable
versions of the same events, they are better at collectively determining
truth, mistake, and deception than a single factfinder such as a judge
or a polygraph operator. The polygraph, unlike other scientific
evidence, is uniquely situated to supplant that collective
determination.[^129]

Simply put, we cannot say that polygraph evidence will assist the
factfinder unless we first determine the polygraph is more reliable than
the collective assessment of the factfinder in evaluating credibility.
The genesis of this approach as applied to polygraph evidence in
courts-martial was the case of *United States v. Helton*.[^130] The
court stated "\[u\]ntil it can be demonstrated that the opinion
testimony resulting from polygraph testing is generally more reliable
than the . . . fact-finder in determining truthfulness, it cannot be
determined that such evidence will aid the court in performance of its
function."[^131] Therefore, such evidence cannot be admitted.[^132]

Although the *Helton* case was decided almost twenty years ago, this
rationale is no less applicable today than it was when the case was
first tried.[^133] Since that time there have been a number of studies
designed to test the validity of the polygraph.[^134] In most cases,
experimenters use mock crime scenarios coupled with monetary awards to
test the reliability of the polygraph.[^135] Some experimenters claim to
have been able to achieve rates of accuracy as high as 95%. Yet, even if
we take at face value a figure of 95% validity for the well conducted
polygraph, and discount entirely the extraneous factors that might
diminish that figure, we cannot assume this is better than the
factfinder at determining credibility and separating truth, mistaken
belief, rationalized belief, and deception. To date, there has never
been a single study or evaluation that indicated the polygrapher or the
polygraph instrument was better than the jury in determining
credibility.[^136]

If the expert offering the evidence, or if the theory and methodology
upon which the expert's opinion is based, cannot be shown to be better
at determining an issue or fact than the factfinder, then the scientific
evidence, by definition, cannot assist the factfinder. With every form
of admissible scientific testimony, there is the tacit acknowledgment
that the experts, who are said to have "specialized knowledge," are
better at doing the thing about which they are testifying than the
factfinder.[^137] Expert testimony is presumed to be helpful to the
factfinder[^138] for that very reason. This is what enables experts to
add to the factfinder's understanding, explain a complex process, or
give the factfinder information they do not possess.[^139] One area in
which experts have never been shown to be better than juries is the
assessment of credibility. Experts do not possess specialized knowledge
in this area.[^140] It may be that a polygrapher has specialized
knowledge about the polygraph instrument and the science of polygraphy,
but the result rendered by that scientific process has never been proven
better than the result rendered by the collective process employed by
the factfinder.[^141] That is why courts have never allowed an expert to
render an opinion that a particular witness is telling the truth.

## C. Expert Opinions Concerning Credibility

*1.* *Victims and Witnesses*

The courts most often address this issue in the context of opinions
concerning the believability of victims or other witnesses. No court has
ever permitted an expert to opine that the victim is believable or that
she is telling the truth about what happened. Generally, there are three
reasons courts exclude this testimony. First, there is a substantial
possibility the use of polygraph evidence would mislead and confuse the
jury enough to outweigh the probative value of the testimony.[^142] The
basis for the exclusion of the evidence for this reason is Rule
403.[^143] Second, this testimony goes beyond what is permitted by Rule
608.[^144] Third, such testimony is not necessary because it is not
helpful to the factfinder, which can make its own determination of
credibility.[^145]

The prejudicial effect of this evidence is thought to be so great the
military's highest court found that even inferences were not permitted.
In *United States v. Cacy*,[^146] the Court of Appeals for the Armed
Forces held that expert testimony about the treatment given to a child
victim of sexual abuse was improper because it amounted to an opinion
the child was to be believed. The court stated,

> '\[to\] allow an "expert" to offer his opinion on the resolution of a
> credibility dispute goes too far, and it makes no difference whether
> the opinion is express or *follows* *inferentially* . . . . The court
> members must decide whether a witness is telling the truth. Expert
> insights into human nature are permissible, but lie detector evidence
> -- *whether human or mechanical* -- is not.'[^147]

With the boundaries established, the court noted that an expert's
opinion a child victim did not appear coached or rehearsed was
permissible.[^148] The rationale to support the admissibility of this
evidence as opposed to opinions on believability was that the former
amounted to evidence of human behavior.[^149] However, evidence
concerning the treatment of the victim was not permitted because, even
though the factfinder certainly would not know much about treatment, the
inference the victim was telling the truth went too far. Similarly, in
*United States v. Marrie*,[^150] the court excluded evidence from an
expert in child abuse that it was extremely rare for little boys to make
false reports of sexual abuse.[^151] Of this testimony the court stated,
"the *inference* is very clear, and it is prohibited by our cases which
have clearly held testimony regarding credibility to be
inadmissible."[^152]

The federal courts have also expressed their reluctance to permit an
expert witness to opine as to the credibility or believability of a
witness. In *United States v. Binder*,[^153] the court stated that
expert testimony should not be admitted if it concerns an improper
subject. Noting that such a subject would be one that invades the
province of the jury, the court went on to say that credibility was a
matter to be decided by the jury.[^154] Hence, the court disallowed
expert testimony that particular witnesses were truthful. In *United
States v. Azure*,[^155] the Eighth Circuit Court of Appeals started its
analysis by noting that under the Federal Rules of Evidence, opinion
testimony is limited to character and that all other opinions concerning
credibility were for the factfinder to form.[^156] According to the
court, the expert's testimony that the victim was believable and that
she had no reason to lie went well beyond an opinion of character and
was more appropriately described as an opinion on the specific
believability of the witness. As such, the opinion was not admissible as
expert testimony under Rule 702 or as an opinion concerning the witness'
character for truthfulness under Rule 608.[^157]

*2.* *The Accused*

This rationale has also been applied to cases involving opinions of the
specific believability of the accused. In fact, there is authority to
suggest that when it comes to determining the believability of the
accused's testimony, the factfinder is in the best position to make the
most accurate judgment. In *United States v. Wagner*,[^158] the Air
Force Court of Military Review did not allow an investigator to testify
the accused was truthful when he confessed to the crime. Of note was the
court's recognition that the testimony might have been admissible if it
had been offered to assist the members in the area of criminal
investigation.[^159] This was an area in which the investigator had
greater knowledge and experience than the factfinder. Since the evidence
was offered to assist the members in making a determination about
credibility, the court disallowed the expert testimony because it was
unhelpful.[^160] Then, as if to make sure the point was clear, the court
commented that the court members' superior ability to divine credibility
was particularly applicable to the testimony of the accused.[^161] The
Court of Military Appeals reiterated this point in *Cameron* when it
described the jury's role in evaluating credibility. Recognizing the
significance of the Air Force court's comment in *Wagner* the court
stated, "opinion testimony on whether or not to believe a particular
witness' testimony simply is not deemed helpful to the factfinder, for
the factfinders are perfectly capable of observing and assessing a
witness' credibility. This is especially true where the testimony of the
accused is involved."[^162]

In another case that concerned the accused's credibility, *United States
v. Hill-Dunning*,[^163] the Court of Military Appeals disallowed an
expert's opinion the accused was being truthful because it was not
relevant or helpful testimony.[^164] The court, with an eye toward the
policy goals of M.R.E. 702, indicated the rules of evidence were
designed to provide for expert testimony the factfinder could use to
evaluate the evidence.[^165] Under this rationale, the court would
permit testimony if the expert's opinion was predicated upon the
assumption the accused was truthful, but the expert was not permitted to
actually state an opinion in that regard.[^166] As to the specific issue
of the accused's credibility, the court stated the "question of the
\[accused's\] credibility is left with the finders of fact where it
appropriately belongs."[^167]

The evaluation of the courts' collective approach to opinion evidence
concerning the specific believability of victims, witnesses, and even
the accused begs one inescapable question. Why have not the highest
military court and a number of federal district and appellate courts
applied this reasoning to polygraph evidence? After all, polygraph
evidence is exactly the same type of opinion evidence concerning
specific believability offered by expert witnesses that the courts have
consistently excluded for years. The courts have not really attempted to
answer the question or draw a distinction between the two types of
opinion evidence. In addition, it has never been shown that polygraph
operators are any better than other expert witnesses, be it a child
abuse expert or a police investigator, at evaluating the credibility of
a person. Nor have the courts provided any reason or justification that
would warrant permitting expert testimony as to the specific
believability of a witness from the defense while at the same time
denying it to the prosecution, which was an approach suggested by the
military's highest court in *Gipson* and, later, in *Scheffer*.

There may be at least two important reasons courts have ignored the
inescapable parallel between the two kinds of evidence. First, too many
courts are willing to assume the polygrapher's expert testimony will be
helpful to the factfinder. They engage in only half the analysis and
fail to consider whether this evidence really can help the factfinder at
all. Second, there is a clear bias in favor of expert testimony that can
be "backed-up" with tangible scientific data as opposed to intangible
opinions from experts dealing in the "soft sciences" or non-scientific
disciplines such as police interrogations. Such a bias is evident from
the continued focus by the vast majority of courts on the *process* of
the evidence rather than the *purpose* of the evidence. Unfortunately,
it is the purpose of the evidence which ought to, and in the case of all
other scientific evidence does, control admissibility.

V. Credibility Evidence

and the Polygrapher's Opinion

Taking into consideration the purpose of polygraph testimony, Rule 608
must be involved in any discussion of the admissibility of the
testimony. As an opinion that concerns credibility or evidence that
would effect the factfinder's view of the accused's credibility,
testimony the accused passed a polygraph would, at first blush, seem to
implicate the restrictions of Rule 608. However, as a review of past
cases demonstrates, the application of Rule 608 to polygraph evidence is
anything but settled. The current language of this rule is open to
differing interpretation,[^168] and the rule fails to address the real
issue in these cases because it is incomplete. There is a solution that
will put the debate about polygraph evidence to rest, but a more
thorough understanding of the problem with the application of Rule 608
is necessary.

Every trial is a search for the truth and, naturally, the credibility of
each witness and the accused, should he or she testify, is an issue at
every trial. Witness credibility becomes particularly important where
there is significant conflict in the evidence, very little physical
evidence, or only a few witnesses. Perforce, it is in these closely
contested cases where evidence of a polygraph will carry the most weight
with the factfinder. The rules concerning credibility become critically
important as tools to evaluate the admissibility of polygraph
evidence.[^169] "Mil. R. Evid. 608 enumerates the method of attacking or
bolstering the credibility of witnesses."[^170] M.R.E. 608 states:

> **Rule 608. Evidence of Character, Conduct, and Bias of Witness**
>
> **(a) Opinion and reputation evidence of character.** The credibility
> of a witness may be attacked or supported by evidence in the form of
> opinion or reputation, but subject to these limitations: (1) the
> evidence may refer only to character for truthfulness or
> untruthfulness, and (2) evidence of truthful character is admissible
> only after the character of the witness for truthfulness has been
> attacked by opinion or reputation evidence or otherwise.
>
> **(b) Specific instances of conduct**. Specific instances of conduct
> of a witness, for the purpose of attacking or supporting the
> credibility of the witness, other than conviction of a crime as
> provided in Mil. R. Evid. 609, may not be proved by extrinsic
> evidence. They may, however, in the discretion of the military judge,
> if probative of truthfulness or untruthfulness, be inquired into on
> cross-examination of the witness (1) concerning character of the
> witness for truthfulness or untruthfulness, or (2) concerning the
> character for truthfulness or untruthfulness of another witness as to
> which character the witness being cross-examined testified.
>
> **(c) Evidence of Bias**. Bias, prejudice, or any motive to
> misrepresent may be shown to impeach the witness either by examination
> or by evidence otherwise adduced.[^171]

Under Rule 608(a), only evidence of the accused's character for
truthfulness or untruthfulness may be presented on the issue of
credibility, and the form of proof is restricted to opinion or
reputation evidence.[^172] Rule 608(b) then appears to limit further the
evidence available to prove credibility. That subdivision prohibits
extrinsic evidence of specific instances of the past conduct of a
witness offered to attack or support the witness' credibility. It is,
however, permissible to ask about specific instances of truthfulness or
untruthfulness on cross-examination to test an opinion provided by a
character witness,[^173] but if the matter is collateral, the examiner
is stuck with the answer, and extrinsic evidence of specific instances
of conduct is not permitted.

If credibility evidence is that which encompasses the truthfulness or
untruthfulness of a witness, then it is clear testimony from a
polygrapher concerns the credibility of the accused. It is, after all,
testimony as to whether or not the accused was being deceptive.[^174]
Some attempts have been made to introduce this testimony as exculpatory
evidence.[^175] Exculpatory evidence is that which clears or tends to
clear the accused of fault or guilt or that establishes innocence.[^176]
Polygraph evidence does not tend to establish innocence. The only thing
a polygrapher can do is infer from the readings on the machine whether
or not the accused was deceptive.[^177] Thus, polygraph evidence is not
exculpatory evidence; it is credibility evidence. As evidence of
credibility, it should be subject to Rule 608.

An evaluation of the cases dealing with polygraph evidence does not,
however, provide support for the application of Rule 608 to polygraph
evidence. The vast majority of federal and military courts either ignore
the potential application of Rule 608 or find that the rule does not
exclude polygraph evidence.[^178] Only a few courts recognize the
applicability of Rule 608. One part of the problem, as noted above, is
that courts consistently fail to analyze the purpose for which the
evidence is offered. Choosing instead to focus on the scientific
process, they get bogged down in issues that relate to how the evidence
is developed rather than how it will be used. Another aspect of the
problem stems from whether Rule 608(a) is a rule of inclusion or a rule
of exclusion. If it is the former, then it simply permits evidence
concerning the character of the witness for truthfulness in the form of
opinions, but does not apply to other opinion testimony concerning
credibility. The Court of Military Appeals took this view in *Gipson*
when it stated that Rule 608(a) did not apply because polygraph
testimony did not concern character.[^179] If it is the latter, then the
Rule permits evidence of opinions in the form of character and prohibits
all other opinions of credibility that do not relate to character. The
Court of Military Appeals, in a later opinion, seemed to adopt this view
as well. In *United States v. Arruza*,[^180] the court stated that an
expert's opinion the victim was telling the truth about the allegations
was not allowed under Rule 608 because it was not evidence dealing with
character.[^181] This inconsistent approach suggests the language of the
rule requires clarification.

A. Rule of Evidence 608(a)

There are two aspects of Rule 608(a) that bear consideration when
evaluating the applicability of this rule. The first issue concerns
whether the opinion rendered by a polygrapher even qualifies as an
opinion within the meaning of the rule. The second issue deals with the
qualification of the evidence as character evidence. Traditionally,
evidence concerning the credibility of a witness had to be evaluated
under both parts of subsection (a) of Rule 608.

Rule 608(a) does not distinguish between lay opinions and expert
opinions, suggesting that both Rules 701 and 702, which govern the
admissibility of opinion testimony, must be considered.[^182] Polygraph
evidence, as opinion evidence, does not appear to satisfy either. The
polygrapher's opinion is an improper lay opinion under Rule 701 because
the opinion would be based only on a "particular assertion *at the time
of the polygraph exam*"[^183] and would relate only to "the credibility
of a certain statement."[^184] This is problematic for three reasons.
First, there would not be enough time for the polygrapher to gain
sufficient personal knowledge to form a rational opinion.[^185] Second,
the circumstances of a polygraph examination concerning an alleged crime
would not be ideal for the formation of a rational opinion.[^186]
Finally, one instance of truthful conduct does not say anything about
the accused's character for truthfulness. Thus, the polygrapher's lay
opinion could not be rationally based on his or her perception and it
would not be helpful for the factfinder.[^187] With regard to opinions
under Rule 702, the opinion testimony of an expert that any witness,
including the accused, told the truth about what happened has never been
permitted. Such opinion testimony does not assist the factfinder and, as
discussed above, polygraph evidence is no different.[^188] The
polygrapher has never been shown to be better at determining credibility
than the jury and, as a result, there is no way the polygrapher's
opinion could assist the jury. If a polygrapher's opinion does not
qualify as an opinion under either Rule 701 or Rule 702, then it appears
that laying a foundation for the admissibility of the opinion under Rule
608(a) would not be possible.[^189]

The second aspect of the use of polygraph evidence under Rule 608(a)
concerns the character of the accused. If character is defined as a
person's tendency as demonstrated to others by his habits,[^190] then
evidence the accused showed no deception on a polygraph examination is
not character evidence. Indeed, one short meeting between the
polygrapher and the accused would not by itself reveal anything about
the accused's tendencies and, therefore, it would say nothing about his
character.[^191] This reasoning played a small part in the decision in
*Gipson,* where the court stated that polygraph evidence did not relate
to the character of the subject.[^192] Likewise, a statement or opinion
relating to truthfulness or untruthfulness on a specific occasion is
also not character evidence.[^193]

The split of authority, however, concerns the application of Rule
608(a).[^194] According to the court in *Gipson*, Rule 608(a) is
inapplicable.[^195] The court determined that polygraph evidence was not
character evidence because the polygrapher's testimony related only to
the credibility of a certain statement.[^196] No further explanation or
analysis was provided as to the inapplicability of Rule 608. Nor was
there any comment as to which rule concerning credibility might apply to
this evidence, if one applies at all. Although that portion of *Gipson*
was cited in subsequent opinions,[^197] there has been no further
elaboration on the point since.[^198] In *United States v.
Piccinonna*,[^199] the Eleventh Circuit Court of Appeals simply decided,
without engaging in any analysis, that Rule 608 did not prevent the
admissibility of the polygrapher's opinion as long as the accused's
credibility was first attacked.[^200] The court apparently assumed
polygraph evidence concerned character and that the polygrapher's
testimony was an appropriate opinion in that regard. The contrary view
is that Rule 608(a) excludes the evidence because the testimony
concerning a polygraph result does not relate to the character.
Interestingly, on remand the federal district court in *United States v.
Piccinonna*[^201] held that one polygraph examination was insufficient
contact upon which to base an opinion of character for truthfulness. It
was "inconceivable" to the court that "anyone, expert or not, could form
a valid, reliable, and admissible opinion as to the 'character' of a
witness" during one single polygraph examination.[^202] In *United
States v. Thomas*,[^203] the Fifth Circuit Court of Appeals noted that
F.R.E. 608 applied where the accused attempted to use the opinion of the
polygrapher to bolster his own credibility. The court questioned the
admissibility of the polygrapher's opinion under F.R.E. 608 because it
did not relate to character.[^204]

Not unexpectedly, there are more cases concerning Rule 608(a)'s
applicability to expert opinions about the specific believability of a
witness. Although, many cases dealing with this issue hold that it is
not an appropriate opinion under Rule 702, some cases do rely on Rule
608(a) as a bar for such opinions because they are not opinions of
character. In one important Federal case, *United States v.
Azure*,[^205] the Eighth Circuit Court of Appeals found that expert
opinions concerning the specific believability of the victim's story
were not admissible under Rule 608(a)[^206] because such opinions did
not concern character. In more than one case the Court of Military
Appeals has actually contradicted its position in *Gipson* concerning
the scope of Rule 608(a). In *United States v Peterson*,[^207] the court
stated that they have categorically rejected testimony as to the
specific believability and truthfulness of a witness' version of the
events because that type of testimony fell outside the ambit of Rule
608.[^208] Writing for the majority, Judge Cox stated "\[t\]he
credibility of a witness and the *permissible evidence pertaining
thereto* is restricted by Mil. R. Evid. 608."[^209] Additionally, in
*Aruzza*, the court held that opinions from experts "as to the
credibility or believability of victims or other witnesses . . . 'goes
beyond the area of inquiry permitted by Mil. R. Evid. 608(a),' dealing
with evidence of truthful character."[^210] In that case, the court
found that the combination of Rule 608(a), Rule 403, and the rules
concerning expert opinion testimony, worked together to prohibit
opinions on the specific believability of a witness' version of the
events.[^211] These cases not only demonstrate the courts' inconsistent
approach to Rule 608(a), but they also serve to illustrate the trouble
caused by polygraph evidence when the purpose of that evidence is
overlooked.

The Court of Appeals for the Armed Forces' unwavering focus on the
science behind the polygraph and its resulting failureor
unwillingnessto see the parallel between this expert testimony and
other expert opinions regarding credibility has yielded further
inconsistent reasoning. In *Scheffer*, the Court of Appeals for the
Armed Forces attempted to distinguish the opinion of the polygrapher
from the legion of military and federal cases prohibiting opinions
concerning the specific believability of the victim. The polygrapher's
opinion was permissible, the court said, because the polygrapher was
merely testifying that the accused's answers did not *indicate*
deception, not that the accused was telling the truth.[^212] In an
effort to support their conclusion in this regard, the court cited
*United States v. Cacy*[^213] for the proposition that experts can
testify as to indicia of deception.[^214] The court also relied on its
holding in *United States v. Suarez*[^215] in which an expert was
allowed to provide testimony that counter-intuitive conduct, such as
failure to report and recantation, is not inconsistent with a truthful
accusation.[^216] Cases in which experts were permitted to testify that
a child could distinguish fact from fantasy were also cited for their
supposed precedential value.[^217] However, the court's reasoning
suffers from several serious flaws.

First and most conspicuously, there is an inescapable inference that if
the accused did not indicate deception, then he must be telling the
truth about what happened.[^218] The court's own language in cases prior
to *Scheffer* suggests that this court at one time subscribed to this
reasoning.[^219] As to the polygrapher, the court previously
acknowledged he was a "credibility medium" and, as to his opinion, the
court stated it concerned whether the accused "was being truthful or
deceptive in making a particular assertion."[^220] In addition, this
court at one time "\[took\] it as *obvious* that when a party offers a
polygrapher's opinion that a certain assertion did not indicate
deception, the party is offering the evidence to prove the assertion is
true."[^221] The court's previous comments certainly seem to be at odds
with their claim in *Scheffer* that the polygrapher merely testifies to
a lack of indicia of deception.

Second, the cases cited by the court can be readily distinguished. The
expert's opinion in *Cacy*[,]{.smallcaps} that the victim appeared
rehearsed, says nothing about the truthfulness of the victim's version
or whether the expert believed the victim. A version of an incident can
be rehearsed or coached and still be true because rehearsal says
nothing, in and of itself, about truthfulness. Deception does.[^222] The
same rationale can also be applied to the cases where courts have upheld
expert testimony concerning the child's ability to distinguish fact from
fantasy. The child's ability to make such a distinction says nothing
about whether they are actually telling the truth or not. A child might
have great difficulty distinguishing fact and fantasy and, yet, testify
very truthfully. On the other hand, the child might have no problem with
reality and might still be lying. None of the examples of expert opinion
testimony in the cases cited rise to the level of the opinion testimony
provided by the polygrapher.[^223] The evidence in those cases can be
used by the factfinders to arrive at their own decision as to the
credibility of the victim. A polygrapher's opinion, on the other hand,
tells the factfinders what result to reach. The difference between
character testimony that a witness can or does tell the truth and
testimony concluding the witness is telling the truth is fundamental.

Third, it is even more difficult to understand the court's position in
light of its decision in *United States v.* *Marrie*.[^224] In *Marrie*,
the court specifically prohibited expert testimony that little boys very
rarely falsify allegations of sexual abuse.[^225] According to the
court, the inference was so great it amounted to testimony that the
victim was telling the truth.[^226] The court, for reasons that are not
clear, did not apply this rationale when evaluating the testimony of a
polygrapher.[^227] Yet, the inference to be drawn from the polygrapher's
testimony seems indistinguishable from the inference left by the
expert's testimony in *Marrie*. If expert testimony like that discussed
in *Marrie* is not permitted, then the same type of testimony from a
polygrapher also should not be permitted, for the same reasons.

B. Rule of Evidence 608(b)

An analysis of the impact of Rule 608 on polygraph evidence would be
incomplete without considering subsection (b). There has been almost no
discussion by federal courts concerning the application of Rule 608(b)
to polygraph evidence. Yet, the language in the first sentence of Rule
608(b) applies any time extrinsic evidence[^228] is used to attack or
support the credibility of a witness. Evidence of a successful polygraph
examination would appear to fall within the definition of a specific
instance of conduct because it is an "isolated act" of the
accused.[^229] The court in *United States v. Gipson*[^230] seemingly
categorized evidence of a polygraph examination as a specific instance
of conduct by describing it as evidence relating to a "certain
statement" and a "particular assertion \[made\] *at the time of the
polygraph exam*."[^231]

As extrinsic evidence of a specific instance of conduct that relates to
credibility,[^232] polygraph evidence should be addressed by subsection
(b). On remand, the district court in *Piccinonna*, focusing on the role
served by polygraph evidence and invoking the plain language of the
rule, found that Rule 608(b) did indeed exclude the specific instance of
truthfulness from a single polygraph examination.[^233] But, another
district court found that Rule 608(b) did not exclude the evidence. In
*United States v. Crumby*,[^234] the court refused to read Rule 608(b)
to preclude a defendant from supporting his credibility with polygraph
evidence once it had been attacked.[^235] Expressly disagreeing with the
*Piccinonna* court's analysis, the court in *Crumby* held that the
evidence was admissible under the impeachment by contradiction exception
to Rule 608(b).[^236] The Court of Appeals for the Armed Forces
considered the matter but rejected the idea that Rule 608(b) even
applied to polygraph evidence.[^237] The court provided no real analysis
except to state that, because specific instances of conduct are offered
for the inferences that might be drawn about character and because
polygraph evidence did not concern character, Rule 608(b) did not
apply.[^238]

The explanation for the different approaches to the applicability of
Rule 608(b) is not clear. One reason for the varied results may be the
extensive focus on the Rule 702 issue. As noted above, most courts
concentrate on evidentiary reliability to determine if expert testimony
concerning the polygraph is relevant and helpful. To the extent the
courts find the testimony satisfies Rule 702, it is often admitted
without regard to Rule 608(b). Another reason may be the approach taken
by a majority of federal courts to avoid a literal reading of the
language of the first part of Rule 608(b). Most federal courts allow
extrinsic evidence of specific conduct to be used to prove bias,
prejudice, motive to misrepresent, and contradiction.[^239] Under the
federal rules, this approach finds some justification because there is
no rule that specifically provides for the use of extrinsic evidence of
conduct to impeach in this manner. By contrast, M.R.E. 608(c)
specifically provides for the introduction of evidence for these
purposes.[^240] Under the military rules, it would not be necessary to
adopt the approach taken by a majority of federal courts. Therefore, the
liberal reading of subsection (b) adopted by the federal courts does not
fully explain the tri-polar[^241] application of Rule 608(b) to
polygraph evidence or the lack of comment regarding its applicability.
In light of the federal courts' relative silence on the applicability of
Rule 608(b) to polygraph evidence, and the military courts'
unwillingness to even apply Rule 608(b), another approach is warranted.

C. A Proposed RuleRule of Evidence 608(d)

To properly deal with the issues addressed by polygraph or any other
form of testimony amounting to an opinion as to the specific
believability of a witness, a clarification of the evidence rules
provides the best solution. A new rule of evidence based on well-settled
case law dealing with the prohibition of opinions regarding the
credibility of a witness should explicitly codify the law. Such a rule
would appropriately resolve the issue for a number of reasons.

First, this rule would reflect the current state of the law. The
prohibition of opinions concerning the specific believability of a
witness is, for the most part, a creature of case law and judicial
interpretation of imprecise rules. There is no written rule that
strictly embodies the concept. Nor is there a single theory the courts
rely upon to justify exclusion. Some courts rely solely on Rule 702,
while others rely on a combination of Rule 702, Rule 608, and the rules
regarding relevance.[^242] Despite this varied approach, all courts
agree that these opinions are not admissible. Polygraph testimony is the
very same type of opinion as those already excluded, except that a
mechanical lie detector has replaced the human one. Yet, the courts
continue to struggle with the admissibility of an opinion that the
accused is not being deceptive concerning the very events for which he
is being tried. The proposed rule would specifically and consistently
address both sources of the improper opinion.

Second, such a rule would address the real problem raised by the use of
polygraph evidence[]{.smallcaps}that unhelpful testimony will
improperly infringe upon the function of the jury to determine the
believability of the witnesses. Even in the face of semantic attempts to
change the substance of the polygrapher's opinion, in its most basic
form, the polygrapher is being asked to render an opinion on whether or
not the accused was deceptive when discussing the incident. More to the
point, the factfinder will almost certainly see the opinion as
conclusive on the issue of the accused's credibility and possibly his
guilt. Properly considered, Rules 608 and 702 would seem to apply to the
problem, but these restrictions have not been thoroughly embraced by the
courts because they have taken their eyes off the judicial ball. The
proposed rule offers the precision necessary to maintain fairness that
is critical to the criminal justice process.

Finally, a new rule of evidence will avoid the need for a *per se* rule
regarding polygraphs. *Per se* rules are generally disfavored because of
their overly mechanical application.[^243] The new rule would focus only
on the real evil to be avoided and, in that regard, it would be narrowly
tailored to achieve its purpose. Although the rule would exclude all
improper believability opinions, in the context of our system of
justice, the prohibition is necessary and legitimate. It is necessary
because we must maintain the factfinder's function to determine
credibility, and it is legitimate because it is the logical outgrowth of
rules of evidence and procedure designed to ensure fairness. Moreover,
the risk of disproportionate application will be nonexistent because the
proposed rule would apply equally to all parties to the trial without
any possibility of favoring one side or the other.

Since the issue of polygraph evidence is one of credibility, it makes
sense that the proposed rule of evidence be added to the existing rule
on the subject, Rule 608. The proposed rule, entitled M.R.E.
608(d)[^244] would read as follows:

> **(d) Opinion as to the specific believability of a witness**
>
> Except as provided in Mil. R. Evid. 608(b), no witness shall be
> permitted to express an opinion concerning the credibility or
> believability of any statement made by any other person, in or out of
> court.

It could be argued that if the prohibition of polygraph evidence is so
clear from the rules, that a new rule is not necessary. That argument is
misplaced for several reasons. First, we should always strive for
clarity in the law. Second, uniformity in the law is also highly
desirable. The proposed rule addresses the purpose the evidence is
designed to serve rather than the process used to make the
determination. The problem is use of an opinion concerning the
believability of a witness' statement. Despite judicial misunderstanding
to the contrary, it is immaterial how the witness arrived at that
conclusion. Whether it is a psychologist whose years of experience and
knowledge served as the tool used to evaluate the victim, the
polygrapher engaged with electronic gadgets designed to detect
deception, or the voice stress analyst who concentrates on the sound
patterns of the witness, it is their ultimate conclusionthat the
witness is or is not truthfulwhich offends the law. A rule that focuses
on the proscribed outcome ensures uniformity in its approach. It serves
as notice to practitioners and expert witnesses that, if their technique
renders an opinion about believability, it will not be admissible.
Third, the proposed rule protects a fundamental aspect of our system of
jurisprudence; that the factfinder alone determines credibility. Very
often those determinations provide answers to questions bearing upon
guilt or innocence, the resolution of which is the function of the jury
or court-martial panel. In the absence of proof that the polygrapher,
psychologist, or body language expert is better than the jury at
performing this function, it would be folly to take this decision out of
the factfinder's hands. Perhaps the collective wisdom of members of the
community is not perfect at assessing believability, but that is hardly
the point. The point is that they still make that determination because
that is what the Constitution requires and nothing has been proven
better.[^245] As the court in *United States v. Alexander*[^246] stated,

> 'The most important function served by a jury is in bringing its
> accumulated experience to bear upon witnesses testifying before it, in
> order to distinguish truth from falsity. Such a process is of enormous
> complexity, and involves an almost infinite number of variable
> factors. It is the basic premise of the jury system that twelve men
> and women can harmonize those variables and decide, with the aid of
> examination and cross-examination, the truthfulness of a
> witness.'[^247]

If ever there comes a time when human or mechanical lie detectors are
shown to be better than actual juries, a rule prohibiting their use in
court will hardly be an issue. The real issue will be the development of
a new system of justice.

## D. Constitutional Validity

The proposed rule of evidence better accomplishes the objectives of Rule
707 without infringing upon the constitutional rights of the accused. As
a narrowly tailored rule, it does not arbitrarily prevent the accused
from presenting a defense or calling witnesses in his favor, but it does
avoid the pitfalls of a *per se* rule like Rule 707. The rules regarding
expert testimony and credibility place legitimate restrictions upon the
presentation of certain types of evidence. These rules, which have
enjoyed long-standing application, are designed to insure reliable,
trustworthy, and helpful information is presented to the factfinders in
their quest for the truth. Opinion testimony concerning the specific
believability of a particular witness is uniformly excluded by the dual
application of these rules and by case law because such opinions are
neither reliable nor helpful.[^248] Polygraph evidence is no different
because it too is nothing more than an opinion concerning the specific
believability of the subject. Therefore, there is no reason to treat
polygraph evidence any differently.

The accused, having no constitutional right to introduce evidence that
is not relevant or helpful,[^249] is not unfairly prejudiced by the
exclusion of polygraph opinion testimony.[^250] If, as the military's
highest court has said, expert opinions about whether the jury should
believe a witness are not relevant or helpful, then the opinion of a
polygrapher and the underlying scientific evidence can be
constitutionally excluded. There can be no arbitrary denial of the right
to present witnesses or a defense when the proffered evidence runs afoul
of established rules of evidence and procedure that serve to protect the
fairness and reliability of the trial process.[^251] The proposed rule,
which is based on established rules of evidence and on well-settled case
law, justifies the restriction placed on the accused's right to present
witnesses. Unlike Rule 707, the suggested amendment is focused only upon
the exclusion of unhelpful opinions regarding credibility. Designed to
promote fairness and reliability by preserving the jury's function to
evaluate credibility without being hindered by unhelpful evidence, the
application of the proposed rule is clearly not arbitrary or
disproportionate.

**VI. Conclusion**

The jurisprudential question concerning polygraph opinion testimony
remains largely ignored by the appellate courts. Instead of focusing
(short-sightedly) on the science involved, the appellate courts should
focus on the role being served in court by the proffered testimony. If
the role is not to explain a fact or issue, but to provide a credibility
assessment of another witness concerning the facts of the very case
before the court, then alarm bells should sound. Sadly, none have,
despite the obvious fact that polygraphy, and other deception detection
sciences, purport to perform the very same function as the jury.[^252]
At the very least, the appellate courts should require the proponent to
show that the science is better than the jury, and no proponent has yet
done that. Better yet, the appellate courts need to ask the question
posed at the beginning of this article: Shall the jury be displaced in
its role as the judge of credibility? The authors believe the time is
not yet ripe for that leap in jurisprudence, and suggest thatuntil such
time as it may be appropriate to redefine or replace the juryit is
important to exclude witness' opinions about the believability of other
people's statements.

[^1]: \**Colonel Mahoney (A.B., Notre Dame, J.D. Syracuse University) is
    the Chief Circuit Military Judge, Central Circuit, USAF Trial
    Judiciary, Randolph Air Force Base, Texas. He is a member of the
    Bars of the states of Illinois, New York, and California.*

    *\*\*Captain vanNatta (B.S., J.D., Indiana University) is an
    instructor, The Air Force Judge Advocate General School, Maxwell Air
    Force Base, Alabama. He is a member of the Minnesota State Bar.*

    ^?^ *See generally* [Scientific Validity of Polygraph Testing: A
    Research Review and EvaluationA Technical Memorandum]{.smallcaps}
    (Washington D.C.: U.S. Congress, Office of Technology Assessment,
    November 1983) \[hereinafter OTA [Study\]]{.smallcaps}; *Polygraph
    Control and Civil Liberties Protection Act: Hearings on S. 1845
    Before the Subcomm. on the Constitution of the Senate Comm. on the
    Judiciary*, 95th Cong., 1st & 2d Sess. (1977-78); James R. McCall,
    *Misconceptions and ReevaluationPolygraph Admissibility After Rock
    and Daubert*, 2 [U. Ill. L. Rev.]{.smallcaps} 363 (1996); Charles R.
    Honts & Mary V. Perry, *Polygraph Admissibility*, 16 [Law and hum.
    behav. 357 (1992);]{.smallcaps} David C. Raskin, *The Polygraph in
    1986: Scientific, Professional, and Legal Issues Surrounding
    Application and Acceptance of Polygraph Evidence*, 1 [Utah L.
    Rev]{.smallcaps}. 29, 42 (1986); Gordon H. Barland, *Standards for
    the Admissibility of Polygraph Results as Evidence,* [16 U. West
    L.A. L. Rev. 37 (1984); D.T. Lykken, A Tremor in the Blood (1981);
    F]{.smallcaps}red E. Inbau & John E. Reid, *The Lie Detector
    Technique: A Reliable and Valuable Investigative Aid*, 50 A.B.A. J.
    470 (1964).

[^2]: The Military Rules of Evidence, which closely follow the Federal
    Rules of Evidence, were implemented on 1 September 1980 as Chapter
    XXVII of the Manual for Courts-Martial 1969 (Rev.). [Manual For
    Courts-Martial]{.smallcaps}, United States, Analysis of the Military
    Rules of Evidence, Appendix 22 (1995 ed.) \[herinafter MCM\]. Among
    the evidence rules deleted in the change was Paragraph 142e, which
    had prohibited the admission in evidence of the results of a
    polygraph test. That proscription had been based upon the military
    precedent. United States v. Ledlow, 11 U.S.C.M.A. 659, 29 C.M.R. 475
    (1960); United States v. Massey, 5 U.S.C.M.A. 514, 18 C.M.R. 138
    (1955).

[^3]: United States v. Gipson, 24 M.J. 246, 252 (C.M.A. 1987). Following
    the *Gipson* case, the President promulgated Mil. R. Evid. 707,
    which specifically prohibited the introduction of polygraph evidence
    in courts-martial. For the text of Rule 707 see *infra*, note 39. In
    a September 1996 decision -- not published until January 1997 -- the
    United States Court of Appeals for the Armed Forces (formerly the
    Court of Military Appeals) invalidated Rule 707 as
    unconstitutionally infringing upon the accused's right to call
    witnesses and put on a defense. *See* United States v. Scheffer, 44
    M.J. 442 (C.A.A.F. 1995). Subsequently, on 19 May 1997, the United
    States Supreme Court granted *certiorari* to determine the validity
    of the prohibition.

[^4]: Relevant evidence is that evidence having any tendency to make the
    existence of any fact that is of consequence to the determination of
    the action more probable or less probable than it would be without
    the evidence. MCM, *supra* note 2, Part III, Mil. R. Evid. 401.

[^5]: The phrase "Rule of Evidence," as used above, is meant to refer to
    both the Federal and the Military Rule of Evidence. In addition,
    since this issue cuts across jurisdictional boundaries, references
    to the Federal and Military Rules of Evidence, court members and
    juries, and military judges and trial judges, will be
    interchangeable, except as otherwise noted.

[^6]: *See* *infra* note 39, for the text of Mil. R. Evid. 707.

[^7]: For the text of this rule see *infra* note 171 and accompanying
    text.

[^8]: OTA S[tudy]{.smallcaps}, *supra* note 1, at 6. A polygraph
    operator is commonly called a polygrapher.

[^9]: OTA S[tudy]{.smallcaps}, *supra* note 1, at 95. For a general
    discussion of recent developments in the science of polygraph see
    Charles R. Honts & Bruce D. Quick, *The Polygraph in 1995: Progress
    in Science and the Law*, 71 [N.D. L. Rev. 987 (1995).]{.smallcaps}

[^10]: OTA S[tudy]{.smallcaps}, *supra* note 1, at 11.

[^11]: OTA S[tudy]{.smallcaps}, *supra* note 1, at 14-23.

[^12]: For example, a relevant question in an assault case might be: Did
    you hit Mr. X with a baseball bat? A control question used for
    comparison might be: Have you ever hit anyone in anger? The control
    question is designed to make the subject respond negatively with a
    lie.

[^13]: As a practical matter, a psychophysiologist will also render an
    opinion based on an independent review of the polygraph charts. A
    psychophysiologist is one who practices an emerging subdiscipline of
    psychology called psychophysiology, which concerns the study of the
    psychological and physiological dynamics of polygraph testing. It is
    the psychophysiologist who will describe the methodology and science
    behind the polygraph. Most polygraph operators are technicians and
    are not experts in psychology, physiology, or psychophysiology.

[^14]: *See* OTA S[tudy]{.smallcaps}, *supra* note 1, at 29-43; *see
    also* Brown v. Darcy, 783 F.2d 1389, 1395 n.12 (9^th^ Cir. 1986)
    (listing numerous studies of the accuracy and validity of
    polygraph). *See* Record of Trial at 33, United States v. Goldwire,
    (ACM 32840) (Mar. 4-6, 1997) (testimony of Dr. Gordon Barland)
    \[hereinafter Goldwire\].

[^15]: Raskin, *supra* note 1, at 42.

[^16]: *See* Goldwire, *supra* note 14, at 36, 40 (testimony of Dr.
    Barland).

[^17]: Leonard Saxe et al., *The Validity of Polygraph Testing*, 40
    [American Psychologist]{.smallcaps} 355, 359 (1985); Meyers v.
    Arcudi, 947 F. Supp. 581, 587 (D.Conn. 1996). 'Ground truth' is the
    term used to describe the actual truth of what happened, as opposed
    to what someone determined was probably the truth, for example.
    *See* Goldwire, *supra* note 14, at 37 (testimony of Dr. Barland).

[^18]: *See* Saxe et al., *supra* note 17.

[^19]: United States v. Alexander, 526 F.2d 161, 165 (8^th^ Cir. 1975)
    (quoting H.R. Rep. No. 198, at 13 (1965)). *See* Goldwire, *supra*
    note 14, at 26 (testimony of Dr. Barland). While these sources may
    strike the reader as somewhat dated, the basic theory of the
    polygraph has remained unchanged for over seven decades. Today\'s
    polygraph instrument is technologically sophisticated by comparison
    to the blood pressure cuff used in the early days, or even the
    analog equipment of ten years ago. However, the dazzle and precision
    of the computerized laptop version of the polygraph instrument does
    nothing to enhance or validate the underlying theory, which remains
    substantially the same today as it was in the 1930\'s.

[^20]: Raskin, *supra* note 1, at 31. *See also* OTA
    S[tudy]{.smallcaps}, *supra* note 1, at 6, 29-43.

[^21]: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

[^22]: *Id*. at 1014.

[^23]: Notwithstanding the fact that criminal trial courts in some
    jurisdictions have admitted the results of polygraph examinations,
    the plain fact is that the polygraph has never enjoyed \"general
    acceptance\" except among its proponents. Those proponents consist
    of technicians (polygraph operators) and behaviorists
    (psychophysiologists) who rely on empirical data rather than basic
    scientific research. Many psychologists and other scientists dispute
    the validity of this theory, and there is no \"general acceptance\"
    of the polygraph theory among scientists in relevant fields of
    scientific endeavor. Indeed, there is no psychological, medical, or
    other scientific research that directly establishes the theoretical
    basis for the polygraph. *See* Goldwire, *supra* note 14, at 60-61
    (testimony of Dr. Leonard Saxe). Those studies that do support the
    theory are based upon empirical data. They rely on subjective
    indicators (such as court verdicts, confessions, or panel
    evaluations) to corroborate the polygraph results. *See* OTA
    S[tudy]{.smallcaps}, *supra* note 1, at 37-43, 47-56. *See supra*
    notes 14-15 and accompanying text.

[^24]: Use of the word "exculpatory" to describe the results of a
    polygraph examination indicating the accused was non-deceptive is
    misleading. Exculpatory evidence typically refers to independent
    substantive evidence tending to disprove guilt. *See*, *e.g.*,
    [Black's Law Dictionary]{.smallcaps} 566 (6^th^ ed. 1990). A
    polygraph only measures the accused's physiological responses to
    certain limited questions, and the polygrapher's opinion is derived
    from those physiological responses. Opinion evidence based upon what
    the accused believed or felt at the time of the examination says
    nothing about the facts of the alleged offense. The truthfulness of
    a witness\' testimony is purely subjective, and frequently unrelated
    to the ultimate and objective facts that must be determined by the
    court. *See* United States v. Alexander, 526 F.2d 161 (8th Cir.
    1965). Three brief examples are illustrative of the problem: an
    \"innocent\" accused may lie about his whereabouts merely to avoid
    having to explain his presence at the scene of a crime; an
    \"eyewitness\" may testify truthfully about his observations, even
    though he misperceived the events; and a \"guilty\" accused may have
    so rationalized his actions as to \"truthfully\" deny complicity in
    the offense.

[^25]: United States v. Gipson, 24 M.J. 246 (C.M.A. 1987).

[^26]: *Id.* at 253.

[^27]: *Id*. at 251.

[^28]: *Id*.

[^29]: *Id.* at 252 (noting there was no constitutional right to present
    evidence unless it is relevant and helpful).

[^30]: *Id.* at 253.

[^31]: Court members are asked to detect deception in the form of false
    testimony. Of course, the deception detected by a polygrapher is not
    testimony in the strict sense of the word because it concerns a
    statement made out of court. But, since the accused is required to
    testify consistent with the polygrapher, the polygrapher's opinion
    will ultimately concern the in-court testimony of the accused.

[^32]: 24 M.J. at 253. This whole notion seems to fly in the face of a
    host of rulings[,]{.smallcaps} both before and after *Gipson,* which
    expressly exclude the opinions of highly competent, very experienced
    experts as to the credibility of a witness or victim. Never before
    had an expert been permitted to opine as to the credibility of a
    witness about the specific event that gave rise to the trial. *See,
    e.g.,* United States v. Cameron, 21 M.J. 59 (C.M.A. 1985); United
    States v. Hill-Dunning, 26 M.J. 260 (C.M.A. 1988); *see also infra*
    notes 142-167 and accompanying text. The inescapable parallel
    between the opinion offered by a polygrapher as described by the
    court in *Gipson* and opinions of credibility offered by other
    experts is discussed in much greater detail later in this article.

[^33]: 24 M.J. at 253. This extraordinary statement is especially
    troubling, given the existence of Mil. R. Evid. 704. Mil. R. Evid.
    704, which is identical to its federal counterpart, permits experts
    to render opinions on ultimate issues, but it does not allow
    opinions concerning the guilt or innocence of the accused. *See*
    [Steven A. Saltzburg, et al., Military Rules of Evidence Manual
    747]{.smallcaps} (3^rd^ ed. 1996). In their Editorial
    Comment[,]{.smallcaps} Professors Saltzburg, Schinasi, and Schluter
    make it clear that this rule does not permit an expert to render an
    opinion on guilt or innocence. *Id.* at 743 (quoting drafter's
    Analysis for Mil. R. Evid. 704). If, as the Court of Military
    Appeals seems to believe, the polygrapher's opinion could support a
    direct inference as to guilt or innocence, the rationale behind Rule
    704 provides an even greater reason to exclude the polygrapher's
    opinion.

[^34]: 24 M.J. at 251. According to the court, the determination of the
    helpfulness of scientific evidence involved balancing three factors:
    (1) the soundness and reliability of the process or technique; (2)
    the possibility that admitting the evidence would overwhelm,
    mislead, or confuse the factfinder; (3) the proffered connection
    between the scientific research or test result to be presented, and
    the specific disputed facts in the case. *Id.* (citing United States
    v. Downing, 753 F.2d 1224, 1237 (3^rd^ Cir. 1985)).

[^35]: 24 M.J. at 253. The court did not elaborate on their concern in
    this regard, but the alternative would permit bolstering of the
    accused's credibility without his credibility being placed in issue
    and it would leave the factfinder with an exculpatory hearsay
    statement.

[^36]: The drafters deny there was any intent to accept or reject
    *Gipson* concerning the admissibility of scientific evidence. *See*
    [Saltzburg et al.,]{.smallcaps} *supra* note 33, at 215 (3^rd^ ed.
    Supp. 1996).

[^37]: *See id.* at 211. An additional concern might be the effect of
    widespread knowledge of the admission of polygraphs favorable to the
    accused: what message would be conveyed to the jury about the
    accused if there was no evidence she passed a polygraph?

[^38]: Article 36(a), Uniform Code of Military Justice, 10 U.S.C. §
    836(a) (1983). For a discussion of the constitutionality of Mil. R.
    Evid. 707 and the President's power to promulgate that rule of
    evidence, see First Lieutenant John A. Carr, *The Admissibility of
    Polygraph Evidence in Court-Martial Proceedings: Does the
    Constitution Mandate the Gatekeeper*, 43 [A.F. L. Rev. 1
    (1997).]{.smallcaps}

[^39]: Mil. R. Evid. 707 is similar to [Cal. Evid. Code]{.smallcaps}
    351.1 (West 1988 Supp.) and states:

    > **Rule 707. Polygraph Examinations**
    >
    > \(a\) 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 exam, shall not be admitted into evidence.
    >
    > \(b\) Nothing in this section is intended to exclude from evidence
    > statements made during a polygraph examination which are otherwise
    > admissible.

    [MCM,]{.smallcaps} *supra* note 2, Mil. R. Evid. 707. For a general
    discussion of Mil. R. Evid. 707 see Major John J. Canham, Jr.,
    *Military Rule of Evidence 707: A Bright Line That Needs To Be
    Dimmed*, 140 [Mil. L. Rev.]{.smallcaps} 65 (1993).

[^40]: [Saltzburg et al.,]{.smallcaps} *supra* note 33, at 211 (3^rd^
    ed. Supp. 1996).

[^41]: United States v. Williams, 43 M.J. 348 (C.A.A.F. 1995). In that
    case, the accused was charged with forgery of personal checks,
    larceny, and wrongful appropriation. He took two U.S. Army Criminal
    Investigation Division polygraph examinations, both of which
    ultimately indicated no deception. That information was not
    permitted before the court members, and the accused was convicted.
    *Id.* at 349-50.

[^42]: *Id.* at 354-55.

[^43]: *Id.* at 351. The court noted, perhaps with a degree of
    frustration, that the promulgation of Mil. R. Evid. 707 changed the
    function of the Military Rules of Evidence in the area of polygraph
    evidence. Rather than providing a framework for the admissibility of
    helpful and relevant evidence, the Rules simply prohibited this type
    of evidence. Noting that both *Daubert v. Merrell Dow
    Pharmaceutical, Inc.*, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d
    469 (1993), and *Gipson* concerned interpretations of rules of
    evidence other than Mil. R. Evid. 707, the court conceded these
    cases no longer controlled the issue of the admissibility of
    polygraph evidence.

[^44]: 43 M.J. at 356 (Sullivan, C.J., concurring in the result).

[^45]: *Id.* at 356-57 (Sullivan, C.J., concurring in the result).

[^46]: Any discussion concerning the validity of Mil. R. Evid. 707 as an
    exercise of the President's rule making authority is beyond the
    scope of this article. The authors recognize, however, that this
    position and these suggestions concerning the jurisprudential
    treatment of opinion testimony concerning the credibility of other's
    statements would, if adopted, have the same practical effect on the
    polygraph as Rule 707. By focusing on the evidentiary status of such
    opinion testimony, rather than isolating the polygraph as the single
    prohibited source of such evidence, the Constitutional issue would
    be more clearly framed: Does the accused\'s right to present a
    defense include a right to call any witness to offer an opinion as
    to the believability of the accused\'s out-of-court account of the
    events?

[^47]: Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 113 S.
    Ct. 2786, 125 L. Ed. 2d 469 (1993) (this case did not involve the
    polygraph, but pharmaceuticals).

[^48]: *Id.* at 2794-95.

[^49]: The factors included (1) whether a theory or technique can be and
    has been tested, (2) whether the theory or technique has been
    subject to peer review and publication, (3) the known or potential
    rate of error of a particular technique, and (4) whether the theory
    or technique enjoys "general acceptance" in the scientific
    community. The Court made clear other factors would bear on the
    issue and that the enumerated factors were not the only ones the
    trial judges could consider. *Id.* at 2796-97.

[^50]: *Id.* at 2795 n.9.

[^51]: It is not within the scope of this article to engage in *Daubert*
    type, Rule 702 analysis because our focus on the polygraph and the
    resulting opinion is whether it will *assist* the factfinder. For a
    thorough examination and analysis of *United States v. Daubert,* see
    G. Michael Fenner, *The Daubert Handbook: The Case, Its Essential
    Dilemma, and Its Progeny*, 29 [Creighton L. Rev.]{.smallcaps} 939
    (1996).

[^52]: For further discussion on the Court's approach to the
    "helpfulness" requirement, see *infra* notes 82-84 and accompanying
    text.

[^53]: United States v. Scheffer, 44 M.J. 442 (C.A.A.F. 1996).

[^54]: *Id.* at 445. With the decision in *Scheffer*, it appears the
    admission of polygraph evidence has become a battle between, on the
    one hand, some heretofore undiscovered constitutional right of the
    accused to have witnesses come in to assess his credibility as to
    his version of the events and, on the other, the fair administration
    of justice. Assuming, for the sake of argument, we adopt the Court
    of Appeals for the Armed Force's constitutional argument, then how
    does the court rule when the accused calls a friend, relative, or
    clergyman to testify that they discussed the facts of the case with
    the accused, he denied culpability, and they believe his denial? Is
    there a constitutional right to call these witnesses? If not, why
    should the injection of science into the equation make any
    difference? Would not a friend or relative who has known the accused
    all his life be better at detecting deception than some stranger who
    is making an inference based on readings from a machine?

[^55]: The court, using the approach taken by the Federal Appeals Court
    in *United States v. Posado*, 57 F.3d 428 (5^th^ Cir. 1995), claimed
    they were not holding polygraphs would always assist the factfinder.
    That disclaimer actually highlights the misunderstanding in the
    assessment of this evidence in two ways. First, courts, like in
    *Scheffer*, only conduct half of the analysis. The other half of the
    requirement for the admission of scientific evidence is that it must
    assist the trier of fact. Despite a denial to the contrary, the
    court appears to assume, without analysis, that any valid scientific
    evidence will assist the factfinder. Second, it is not clear whether
    the courts are treating "helpfulness" as something distinct from the
    "assist" requirement or if the terms are supposed to mean the same
    thing. If the terms are intended to mean the same thing, then this
    disclaimer is meaningless. By using relevance as the benchmark for
    evaluating helpfulness, the courts have to be saying polygraphs will
    always assist the factfinder because credibility is always relevant.
    If, on the other hand, the terms hold two separate meanings, it
    clearly demonstrates both courts failed to actually engage in an
    assessment of whether the evidence would *assist* the factfinder.

[^56]: U.S. [Const.]{.smallcaps} amend. VI.

[^57]: Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37
    (1987) (citing Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525,
    45 L. Ed. 2d 562 (8th Cir. 1975)).

[^58]: U.S. [Const.]{.smallcaps} amend. VI.

[^59]: 107 S. Ct. at 2709. The appellant was denied her right to be
    heard in her own defense by the state's *per se* exclusion of
    hypnotically refreshed testimony which prevented her from showing
    her recovered memory was accurate. The Supreme Court viewed the rule
    as an arbitrary prohibition of the accused's right to testify on her
    own behalf. The arbitrary and disproportionate application made the
    rule unconstitutional despite the rule's purpose of keeping
    unreliable evidence out of trials.

[^60]: Washington v. Texas, 388 U.S. 14, 82 S. Ct. 1920, 18 L. Ed. 2d
    1019 (1967). In that case, the appellant attempted to call a
    co-participant to the stand to testify that he, not the appellant,
    was the person who actually killed the victim. At that time, state
    law prohibited co-participants from testifying for each other,
    though they could testify for the state. The state law was grounded
    in the concern for reliability of courtroom evidence. The Court
    concluded the state law *arbitrarily* denied the accused his right
    to call witnesses that would have provided testimony that was
    relevant and material to the defense. *See also* United States v.
    Valenzuela-Bernal, 458 U.S. 858, 102 S. Ct. 3440, 73 L. Ed. 2d 1193
    (1982). In *United States v. Woolheater*, 40 M.J. 170 (C.M.A. 1994),
    the Court of Military Appeals held that the accused has the right to
    present logically and legally relevant evidence.

[^61]: Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed.
    2d 297 (1973). The appellant's due process rights were violated by
    state law that prevented him from cross-examining, as a hostile
    witness, another man who had confessed to the murder for which
    appellant was being tried. *See also* 40 M.J. at 173 (finding that
    the right to present relevant and material evidence is not
    unlimited).

[^62]: United States v. Williams, 43 M.J. 348, 354 (C.A.A.F. 1995).

[^63]: 93 S. Ct. at 1049; *see also* United States v. West, 27 M.J. 223
    (C.M.A. 1988). Such rules include, among others, those that prevent
    either side from presenting evidence that is not helpful to the
    factfinder under Rule 702, irrelevant evidence under Rule 402,
    unfairly prejudicial evidence under Rule 403, and certain types of
    credibility evidence under Rule 608.

[^64]: 107 S. Ct. at 2711.

[^65]: The authors recognize that the appellant in the *Chambers* case
    was denied due process because a rule of evidence concerning hearsay
    and impeachment, called the "voucher rule," unfairly prevented the
    accused from effectively questioning a hostile witness who had
    confessed to the accused's crime and, thereby, from presenting a
    defense. The Court ruled that this result stemmed from an
    *inappropriate and arbitrary* exercise of an otherwise permissible
    rule of evidence. 93 S. Ct. at 1049. *See also,* United States v.
    Scheffer, 44 M.J. 442, 450 (C.A.A.F. 1995) (Crawford, J.,
    dissenting).

[^66]: The military's highest court already ruled there is no
    independent constitutional right to introduce polygraph evidence.
    United States v. Gipson, 24 M.J. 246, 252 (C.M.A. 1987). The Supreme
    Court, through *dicta* and implicit holdings, appears to have taken
    this position as well. 44 M.J. at 449 (Crawford, J. dissenting).

[^67]: MCM, *supra* note 2, Mil. R. Evid. 702. Mil. R. Evid. 702 was
    taken from the federal rule verbatim. [Saltzburg et
    al.,]{.smallcaps} *supra* note 33, at 727.

[^68]: Daubert v. Merrell Dow Pharmaceutical, Inc., 113 S. Ct. 2786,
    2796 (1993) ("The trial judge must determine at the outset, pursuant
    to \[Fed. R. Evid.\] 104(a), whether the expert is proposing to
    testify to \[matters that\] will assist the trier of fact to
    understand or determine a fact in issue."); *see also* 24 M.J. at
    251.

[^69]: Mil. R. Evid. 104(a) states in the relevant portion
    "\[p\]reliminary questions concerning the qualification of a person
    to be a witness . . . \[and\] the admissibility of evidence . . .
    shall be determined by the military judge." [MCM,]{.smallcaps}
    *supra* note 2, Mil. R. Evid. 104(a).

[^70]: Mil. R. Evid. 704 reads:

    > **Rule 704. Opinion on Ultimate Issue**
    >
    > Testimony in the form of an opinion or inference otherwise
    > admissible is not objectionable because it embraces an ultimate
    > issue to be decided by the trier of fact.

    [MCM,]{.smallcaps} *supra* note 2, Mil. R. Evid. 704. As an example,
    a properly qualified expert might testify: "The accused's choking of
    the victim caused her death." However, this rule is not without
    limitation. United States v. Farrar, 25 M.J. 856 (A.F.C.M.R. 1988),
    *aff'd* 28 M.J. 387 (C.M.A. 1989) (citing United States v. Wagner 20
    M.J. 758 (A.F.C.M.R. 1985)). The Rule does not permit opinions that
    invade the jury's domain. United States v. Arruza, 26 M.J. 234
    (C.M.A. 1988). Rule 704 will not be the focus of detailed discussion
    for two reasons. First, the Rule does not permit opinions about
    credibility. United States v. Hill-Dunning, 26 M.J. 260, 262 (C.M.A.
    1988) (noting that Rule 704 does not open the door to any and all
    opinions and it does not permit one witness to opine as to the
    believability of another witness). Second, under a proper analysis
    of Rule 702, polygraph evidence would be excluded and evaluation
    under Rule 704 would be unnecessary. The military rule is identical
    to the federal rule. [Saltzburg et al.,]{.smallcaps} *supra* note
    33, at 747.

[^71]: Some commentators have referred to these matters as being "beyond
    the ken" of the average jury. [Saltzburg et al.,]{.smallcaps}
    *supra* note 33, at 725. "There is no requirement under the Rule
    that an expert be absolutely necessary or that the subject matter of
    expert testimony be totally beyond the ken of the court members. The
    test is whether the expert can be helpful." *Id.*

[^72]: 29 [Charles Alan Wright]{.smallcaps} & [Victor James
    Gold]{.smallcaps}, [Federal Practice and Procedure]{.smallcaps} §
    6262, at 178 (1997).

[^73]: *Id.*; *see also* United States v. Binder, 769 F.2d 595 (9^th^
    Cir. 1985) (finding that expert testimony should not be admitted if
    it concerns an improper matter such as one that invades the province
    of the jury).

[^74]: 113 S. Ct. at 2795.

[^75]: Kopf v. Skyrm, 993 F.2d 374 (4^th^ Cir. 1993) (stating that
    helpfulness to the factfinder is the "touchstone"); United States v.
    Brown, 7 F.3d 648 (7^th^ Cir. 1993) (explaining that under Rule 702,
    the crucial inquiry is whether expert testimony will be helpful to
    the factfinder).

[^76]: 3 [Jack B. Weinstein, et al., Weinstein's Evidence]{.smallcaps},
    at 702-2 (1995).

[^77]: *[I]{.smallcaps}d.* (quoting Advisory Committee Note on Rule 702,
    which quoted Mason Ladd, *Expert Testimony*, 5 [Vand. L.
    Rev.]{.smallcaps} 414, 418 (1952)).

[^78]: United States v. Fosher, 590 F.2d 381 (1^st^ Cir. 1979) (citing
    with approval the advisory committee's note); Pelster v. Ray, 987
    F.2d 514 (8^th^ Cir. 1993) (citing with approval the advisory
    committee's note).

[^79]: [Saltzburg et al.,]{.smallcaps} *supra* note 33, at 727.

[^80]: United States v. Snipes, 18 M.J. 172 (C.M.A. 1984).

[^81]: *Id.* at 178 (citing with approval [Saltzburg et al., Military
    Rules of Evidence Manual]{.smallcaps} 324 (1981 ed.)).

[^82]: Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 113 S.
    Ct. 2786, 2795, 125 L. Ed. 2d 469 (1993).

[^83]: *Id.* at 2796. The Court, as an example, pointed out that
    knowledge of the study of phases of the moon would assist the trier
    of fact if the issue was darkness and the scientific knowledge
    concerned whether a particular evening was dark. But knowledge of
    the phases of the moon would not be useful to help the trier of fact
    determine whether a person may have been more likely to behave
    irrationally on a night with a full moon. Absent logical grounds to
    support the latter use of such evidence, the evidence simply would
    not be relevant. *See also* United States v. Galbreth, 908 F. Supp.
    877 (D.N.M. 1995) (finding the testimony concerning the polygraph
    related to an issue in dispute and that it had a valid scientific
    connection to the pertinent inquiry).

[^84]: *See, e.g.,* United States v. Posado, 57 F.3d 428, 432-33 (5^th^
    Cir. 1995). The relevance requirement is often couched in terms of
    increased reliability. United States v. Rodriguez, 37 M.J. 448, 452
    (C.M.A. 1993) (noting that the helpfulness requirement of Rule 702
    implies a quantum of reliability beyond what is required to meet a
    standard of bare relevance).

[^85]: This point is particularly important when the evidence concerns
    credibility, because credibility is always relevant. If the assist
    requirement meant nothing more than relevance, then any expert
    scientific opinion on credibility would be admissible.

[^86]: 29 [Wright & Gold]{.smallcaps}*, supra* note 70, at 184. The
    polygrapher and the court members both purport to achieve the same
    goaldetermination of truthfulnessbut they take different paths.
    The polygrapher relies upon inferences he draws from charts produced
    by the polygraph instrument. The jury relies upon their observation
    of the witness' demeanor and manner on the stand; the acuteness of
    the witness' powers of observation; the accuracy and extent of the
    witness' memory; the witness' interest in the outcome of the case;
    the witness' character for truthfulness (if raised), and any other
    circumstances that shed light on the witness' credibility; taking
    into account the juror's own experience in dealing with people.
    [Military Judges Benchbook]{.smallcaps}, Department of the Army
    Pamphlet 27-9, Chapter 2, Section IV, 30 September 1996. Informing
    the jury of the polygrapher's ultimate conclusion will not assist
    the jury unless his conclusion is more reliable than theirs.
    Informing the jury of the charts considered by the polygrapher will
    not assist them because real people do not rely on a witness' pulse,
    respiration or sweat gland output to determine credibility. In order
    for the polygraph operator's conclusion to be helpful to the
    factfinder, it must be more reliable (valid) than their conclusion
    in assessing witness credibility. If his conclusion is not more
    reliable (valid) than theirs, it cannot assist them. Consider the
    following tangible examples: (1) you have a solution of brine
    containing a certain percentage of salt, in which you wish to
    increase the salt concentration. If you add brine containing a
    lesser concentration of salt, you will dilute the salt concentration
    in your sample. Even adding brine containing exactly the same
    percentage of salt will not assist you. Only adding brine containing
    a greater concentration of salt will increase the salt concentration
    in your sample; (2) if you wish to determine your precise location
    and you have a Global Positioning System (GPS) receiver which is
    accurate to within 10 meters, why would you wish to consult, or rely
    upon, another GPS receiver which is only accurate to within 100
    meters?

[^87]: 29 [Wright & Gold]{.smallcaps}*, supra* note 70 § 6264, at 206.
    This was viewed as a more rigorous standard, not unlike the *Frye*
    test.

[^88]: 29 *[I]{.smallcaps}d.*, at 206-208; United States v. Kwong, 69
    F.3d 663, 667 (2^nd^ Cir. 1995) (Fed. R. Evid. 702 is more liberal
    than the *Frye* standard).

[^89]: 29 [Wright & Gold]{.smallcaps}*, supra* note 70 § 6264, at 206
    n.5. The polygraph data can't assist the members, because it is not
    the type of information considered by the members in determining
    credibility. The conclusion of the polygraph operator (and the
    underlying data) will not help the members' understanding unless the
    proponent shows it is more reliable (valid) than the member's
    determination of credibility. *See* *supra* note 83 and *infra*
    notes 101-102 and accompanying text.

[^90]: United States v. Brown, 7 F.3d 648, 651-52 (7^th^ Cir. 1993)
    (determination of helpfulness of expert testimony requires
    evaluation of the present state of knowledge the jury possesses on
    the subject in light of the facts of the case); *see also* United
    States v. Fosher, 590 F.2d 381, 383 (1^st^ Cir. 1979). The Air Force
    Court of Military Review stated that in military trials, judges
    should view liberally the requirement that expert testimony assist
    the factfinder. United States v. Garcia, 40 M.J. 533, 536
    (A.F.C.M.R. 1994). This liberalized approach to the assist
    requirement is consistent with the liberal approach to the
    admissibility of expert testimony discussed by the Supreme Court in
    *Daubert*.

[^91]: *See, e.g.,* United States v. Snipes, 18 M.J. 172, 180 (C.M.A.
    1984) (Everett, C.J., concurring) ("Experts may testify that a
    victim's behavior, however unusual it might first appear, actually
    is typical of those persons who have undergone trauma like that
    which the victim claims to have endured."); Bachman v. Leapley, 953
    F.2d 440 (8^th^ Cir. 1992) (dealing with expert testimony concerning
    the behavior of victims).

[^92]: United States v. Suarez, 35 M.J. 374 (C.M.A. 1992) (holding some
    forms of this type of testimony are admissible to explain why
    sexually abused children delay reporting the abuse and later recant
    the allegations and claim nothing occurred).

[^93]: The following instruction, given in one child sexual abuse case,
    serves to illustrate this point:

    > **Child Sex Abuse Accommodation Syndrome Testimony**
    >
    > You have heard the testimony of Ms. Linda Cordisco and Dr. Harry
    > Kropp. They were permitted to express their opinions on child
    > behavior because their knowledge, skill, training, education,
    > experience in their field may assist you in understanding the
    > evidence, or in determining a fact in issue. You are not required
    > to accept the testimony of these witnesses, nor to give it more
    > weight than the testimony of any other witness. You should,
    > however, consider the qualifications of these witnesses in
    > determining the weight you will accord their testimony.
    >
    > The testimony of these witnesses was presented for a limited
    > purpose. Neither testified about the facts in this case, and
    > neither testified about any conclusions to be drawn from those
    > facts. Their testimony was merely intended to assist you in
    > evaluating the evidence and determining the facts.
    >
    > Ms. Cordisco testified about a study based upon empirical data
    > concerning child behavior under the influence of sexual abuse. In
    > effect she was simply saying that certain factors, as described in
    > the \"accommodation syndrome,\" do not preclude the existence of
    > sexual abuse in a given case, even if, to adults, they seem
    > intuitively inconsistent with such abuse. Dr. Kropp disagreed with
    > the acceptability of the study testified to by Ms. Cordisco, but
    > did agree that several of the factors in the study were of
    > educational value for persons not extensively familiar with child
    > behavior. The presence or absence of these factors, as both
    > witnesses testified, is not a diagnostic criteria for child sex
    > abuse. On the other hand, both witnesses also testified that the
    > presence of those factors was not inconsistent with child sex
    > abuse.
    >
    > In another case, a civilian defense counsel made a good analogyit
    > is like bowling alleys on Air Force bases. Imagine a jury of
    > civilians, totally unfamiliar with Air Force bases. A witness
    > tells them of a particular event occurring at a bowling alley on a
    > particular base. The attorney, noting an incredulous reaction
    > among the jurors at the suggestion that there might be a bowling
    > alley on an Air Force base, calls another witness who testifies
    > that, in fact, there are bowling alleys present on some Air Force
    > bases. The testimony of this second witness neither confirms nor
    > refutes what the first witness said happened in the bowling alley,
    > but it does suggest the possibility that there was a bowling alley
    > on the base, and thus that the events testified to by the first
    > witnesses could have happened.

    Instruction given by Colonel J. Jeremiah Mahoney, Military Judge, in
    United States v. Hogins, Apr. 25-27, 1995, Maxwell Air Force Base,
    Alabama (on file with author).

[^94]: Unlike their daily experience in determining credibility of
    people they deal with, most jurors have little or no experience with
    (knowingly) observing the behavior of abused children. Those that do
    have such experience are generally removed from the jury panel.
    Thus, jurors tend to assume that abused children will act
    abnormally. Experts in this field tend to base their conclusions to
    the contrary on case studies of abused children, scientific
    literature, and, perhaps, their own experiences dealing with and
    treating abused children.

[^95]: *See infra* notes 96-99. There are other ways in which substance
    of the scientific evidence can fail to assist the factfinder. First
    and perhaps most obvious, expert testimony fails to assist if the
    science or technology behind the testimony is unreliable. Second,
    expert testimony concerning scientific evidence is unhelpful if the
    subject matter is unrelated to the facts of the case. Third, expert
    testimony will not assist if the testimony is unfairly prejudicial
    because it is too confusing or misleading. Polygraph testimony has
    been excluded on this ground. *See* Meyers v. Arcudi, 947 F. Supp.
    581 (D.Conn. 1996). Fourth, an expert opinion is also not considered
    helpful to the factfinder if it merely tells the factfinder what
    result to reach. *See* United States v. Whitted, 11 F.3d 782 (8^th^
    Cir. 1993) (citing Advisory Committee's Note on Fed. R. Evid. 704).
    Although Fed. R. Evid. 702 permits expert opinions and Fed. R. Evid.
    704 allows those opinions to embrace the ultimate issues, an opinion
    that tells them what result to reach goes too far because it risks
    usurping the role of the factfinder. 11 F.3d at 785.

[^96]: Pelster v. Ray, 987 F.2d 514, 526 (8^th^ Cir. 1993) (finding that
    jury did not need an expert to testify that the difference between
    the odometer reading on a certificate and the subsequent lower
    odometer reading in the car meant the odometer had been rolled back;
    the jury could see that for themselves).

[^97]: *See, e.g.,* Scott v. Sears, Roebuck & Co*.*, 789 F.2d 1052, 1055
    (4^th^ Cir. 1986) (deciding that testimony from a "human factors"
    expert that the crumbling sidewalk curb was not visible from certain
    points on the sidewalk was not helpful because the jury could see
    that for themselves).

[^98]: In *United States v. Cruz*, 981 F.2d 659 (2^nd^ Cir. 1992), the
    court found the trial court erred in admitting expert testimony that
    drug traffickers use intermediaries to conceal their identities. The
    expert testimony was not necessary because the facts would have been
    evident to the average juror. *Id*. at 663-64.

[^99]: United States v. Brown, 540 F.2d 1048, 1054 (10^th^ Cir. 1976)
    (citing 31 Am. Jur. 2d, *Expert and Opinion Evidence* § 21 \[now at
    31A Am. Jur. 2d, *Expert and Opinion Evidence* §§ 44-46 (1989)\])
    (excluding an expert on eyewitness testimony).

[^100]: 3 [Weinstein]{.smallcaps}, [et al]{.smallcaps}., *supra* note
    74, at 702-2 (quoting Fed. R. Evid. 702 Advisory Committee's Note);
    *see also* United States v. Washington, 106 F.3d 983, 1009 (7^th^
    Cir. 1997) (noting that where a jury is as capable of drawing the
    correct conclusions as an expert witness, the expert's testimony is
    not needed); United States v. Fosher, 590 F.2d 381, 383 (1^st^ Cir.
    1979).

[^101]: Beech Aircraft v. United States, 51 F.3d 834 (9^th^ Cir. 1995).

[^102]: *Id.* at 842. Although the court did not mention this, there was
    even a danger the expert testimony would have detracted from the
    jury's ability to determine the content of the tape by providing
    wrong information the jury would use in place of its collective
    judgment. *See also* United States v. Devine, 787 F.2d 1086 (7^th^
    Cir. 1986).

[^103]: Scott v. Sears, Roebuck & Co., 789 F.2d 1052 (4^th^ Cir. 1986).

[^104]: *Id.* at 1055.

[^105]: Of course, one might argue that the admission of such opinions
    at trial would be harmless because the jury would simply ignore the
    opinion. *See* 29 [Wright & Gold]{.smallcaps}*, supra* note 70 §
    6264, at 215 n.29; 789 F.2d at 1055. In the area of witness
    credibility and polygraphs, this simply is not true. In fact, one of
    the biggest criticisms of the polygraph is that the factfinder will
    give too much weight to the expert's opinion and follow the opinion
    blindly without exercising their own independent judgment on the
    matter. *See* [Saltzburg et al.,]{.smallcaps} *supra* note 33, at
    211 (3^rd^ ed. Supp. 1996).

[^106]: United States v. Snipes, 18 M.J. 172, 180 (C.M.A. 1984)
    (Everett, C.J., concurring).

[^107]: United States v Cacy, 43 M.J. 214 (C.A.A.F. 1995) (quoting
    United States v. Cameron, 21 M.J. 59, 64-65 (C.M.A. 1985)). Judge
    Cox (then Associate Judge on the Court of Appeals for the Armed
    Forces), writing for the majority, went on to state that Chief Judge
    Everett's opinion in this regard was consistent with the precedents
    of the Court of Appeals for the Armed Forces and the Federal Courts
    of Appeals. 43 M.J. at 217.

[^108]: 21 M.J. at 63 (emphasis added).

[^109]: 43 M.J. at 217 ("The court members must decide who is telling
    the truth."); United States v. Harrison, 31 M.J. 330, 332 (C.M.A.
    1990) ("exclusive function"); Bachman v. Leapley, 953 F.2d 440, 441
    ("It is the exclusive province of the jury to determine the
    believability of the witness."); 11 F.3d at 786 (it is for the jury
    to decide the credibility of the victim).

[^110]: United States v. Cox, 23 M.J. 808, 815 (N.M.C.M.R. 1986)
    (quoting United States v. Azure, 801 F.2d 336, 340 (8^th^ Cir.
    1986)). It has been said, "the jury is the lie detector in the
    courtroom." United States v. Awkard, 597 F.2d 667, 671 (9^th^ Cir.
    1979) (quoting United States v. Barnard, 490 F.2d 907, 912 (9^th^
    Cir. 1973).

[^111]: Other claimed lie detection techniques include voice stress
    analysis, truth serums, pupil dilation and body language analysis.
    Taken to its logical extreme, these experts could even sit in the
    courtroom and render their "expert" opinion about the in-court
    testimony of the witness, accused, or victim. *See infra* note 252.

[^112]: United States v. Gipson, 24 M.J. 246, 252 (C.M.A. 1987).

[^113]: If we welcome the polygraph for the accused, can we deny it for
    the victim or the eyewitness? The court conveniently leaves this
    little question for the day some trial judge--at its
    invitation--violates what remains of Mil. R. Evid. 707. *See* United
    States v. Scheffer, 44 M.J. 442, 447 (C.A.A.F. 1995).

[^114]: *See* *supra* note 37.

[^115]: Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 113
    S. Ct. 2786, 2796, 125 L. Ed. 2d 469 (1993); United States v.
    Snipes, 18 M.J. 172, 178 (C.M.A. 1984); United States v. Pettigrew,
    77 F.3d 1500, 1514 (5^th^ Cir. 1996) (explaining that the evaluation
    of evidence under rule 702 requires the court to focus on the "twin
    precepts" of the rulethe scientific validity of the method and its
    ability to assist the factfinder); United States v. Green, 548 F.2d
    1261, 1268 (6^th^ Cir. 1977) (stating the court must first determine
    whether the expert testimony will assist the factfinder to
    understand the evidence or determine an issue and the court
    determines reliability).

[^116]: In other words, expert testimony is presumed to be helpful to
    the factfinder. "Testimony from an expert is presumed to be helpful
    unless it concerns matters within the everyday knowledge and
    experience of a lay juror." Kopf v. Skyrum, 993 F.2d 374, 377 (4^th^
    Cir. 1993).

[^117]: 44 M.J. at 447; 24 M.J. at 251; United States v. Posado, 57 F.3d
    428, 432-33 (5^th^ Cir. 1995); United States v. Galbreth, 908 F.
    Supp. 877, 895 (D.N.M. 1995).

[^118]: 57 F.3d 426; *see also* 908 F. Supp. 877. The *Galbreth* case
    provides an excellent example of this point. In that case, the court
    felt the evidence would assist the factfinder because it was
    reliable and relevant. 908 F.Supp. at 895. In what is nearly a
    twenty-page decision, the court devotes a fraction of its opinion,
    barely one column, to the discussion of the assist requirement. The
    overwhelming majority of the opinion focused on the reliability of
    the evidence.

[^119]: 57 F.3d at 432-33.

[^120]: *Id.* at 433.

[^121]: United States v. Alexander, 526 F.2d 161, 168 (8^th^ Cir. 1975)
    (commenting the collective evaluation of credibility and guilt is
    the hallmark of our jury system, which was created because of
    "public reluctance to entrust plenary power over the life and
    liberty of the citizens" to the government).

[^122]: 993 F.2d at 377.

[^123]: 44 M.J. at 446.

[^124]: Of course, a person may be truthful but mistaken. It is
    certainly worth noting, however, that at one time the court thought
    it was "*obvious* that when a party offers a polygrapher's opinion
    that a certain assertion did not indicate deception, *the party is
    offering evidence to prove the assertion is true*." United States v.
    Williams, 43 M.J. 348, 354 (C.A.A.F. 1995) (emphasis added).

[^125]: 24 M.J. at 252-53.

[^126]: *Id.* at 253 n.9.

[^127]: Some polygraph proponents claim that the opinion of the examiner
    is based solely on the charts, and that properly obtained, the
    charts should yield the same conclusion by any other qualified
    operator. Some, in fact, propose computerized evaluation of the
    charts to enhance the consistency of interpretation. The whole
    theory of polygraphy counts on different reactions to different
    questions. On the other hand, other proponents of the polygraph
    readily admit that part of the examiner's evaluation of the charts
    is based on impressions and observations gained through interaction
    with the subject before, during, and after the examination. Each of
    these impressions and observations made by one examiner are the very
    same thing each juror will ultimately use to collectively evaluate
    the credibility of the subject at trial. Aside from the obvious
    problem of substituting the judgment of one for the judgment of
    many, the examiner's observations and impressions are never conveyed
    to the factfinder.

[^128]: Brown v. Darcy, 783 F.2d 1389, 1396 (9^th^ Cir. 1986) (citations
    omitted). These other types of scientific tests also "do not purport
    to indicate with any degree of conclusiveness that the defendant who
    is so identified or connected with the \[subject of the test\]
    actually committed the crime." 526 F.2d at 169. Polygraph does. The
    Court of Military Appeals has stated that the polygraph could
    support a direct inference of guilt or innocence. 24 M.J. at 253.

[^129]: The polygraph has the capacity to cause serious damage to the
    justice system because, as previously noted, it is not possible to
    tell whether the polygrapher is better at detecting deception than
    the jury. The citizens and government of the United States have put
    their faith in the jury to determine credibility, believing that
    assemblage to be best equipped to detect deception and determine the
    truth. The introduction of polygraph evidence would severely
    undermine the process if it were less accurate than the jury.

[^130]: United States v. Helton, 10 M.J. 820 (A.F.C.M.R. 1981).

[^131]: *Id.* at 824.

[^132]: *Id.*

[^133]: At least one federal court has taken a similar approach to the
    admissibility of polygraph evidence under Fed. R. Evid. 702. In
    *Brown v. Darcy*, the court held that polygraph evidence was
    inadmissible under Rule 702 because it was too unreliable to assist
    the factfinder to understand the evidence or determine a fact in
    issue. Concerned with a lack of accuracy and the possibility of
    unreliable application, the court balked at allowing a determination
    of the credibility that could well be wrong. 783 F.2d at 1395-97.
    Despite claimed accuracy rates of 95%, it was not enough to permit
    infringement upon the jury's role to determine credibility. The
    import of the decision is that lack of proof the polygrapher was
    better than the factfinder meant the evidence could not assist the
    factfinder.

[^134]: For a list of studies assessing the validity of the polygraph,
    see 783 F.2d at 1395 n.12.

[^135]: *See supra* note 14. Opponents claim that one of the problems
    with these studies is that they do not test the polygraph under real
    life conditions. The reason this is a problem is because the
    artificial fear of detection experienced by the test subjects is not
    the same as the real fear of detection experienced by the accused.
    This would affect the physiological responses of the test subjects
    and yield results that raise questions about the validity of the
    test in real life situations where the accused has a great deal more
    at stake. *See* Saxe et al., *supra* note 17.

[^136]: *See* Goldwire, *supra* note 14, at 40, 46 (Testimony of Dr.
    Barland). Likewise, the authors are unaware of any studies that
    compare the ability of child abuse experts to evaluate credibility
    and the ability of juries to evaluate credibility. As a result, we
    cannot say which is better at making that determination. Thus, it
    cannot be said that the opinion of a child abuse expert concerning
    credibility will assist the jury.

[^137]: 18 M.J. at 179; United States v. Benedict, 27 M.J. 253, 259
    (C.M.A. 1988).

[^138]: 993 F.2d at 377.

[^139]: Interestingly enough, courts will even "subordinate" the
    knowledge of a single juror to that of the expert to insure the
    expert's in-court opinion guides the entire jury. For example, if a
    medical doctor serves on a jury, the doctor is instructed that she
    is bound by the evidence in the case, including the evidence
    presented by the expert. While she is allowed to use her knowledge
    of medicine to pose questions to a forensic pathologist, she, like
    the other jurors, must decide the factual issues based solely on the
    evidence presented in court. She would even be cautioned not to
    bring up areas of specialized knowledge not presented in court while
    in closed session deliberations.

[^140]: A rationale advanced in such cases is that it is beyond the
    scope of the witness' expertise to testify as to the believability
    of a witness. United States v. Arruza, 26 M.J. 234, 237 (C.M.A.
    1988).

[^141]: Even if the polygrapher could claim to be 100% accurate, the
    proponent still must prove the jury is *less* than 100% accurate in
    order to establish polygraph opinion testimony will *assist* the
    jury.

[^142]: United States v. Kwong, 69 F.3d 663 (2^nd^ Cir. 1995); Conti v.
    C.I.R., 39 F.3d 658 (6^th^ Cir. 1994); *but* *see* United States v.
    Posado, 57 F.3d 428, 435 (5^th^ Cir. 1995) (listing factors that
    counterbalance the potential for prejudicial harm caused by the use
    of polygraph evidence). Several courts have cautioned that opinion
    testimony as to the specific credibility of a witness could likely
    cause the jury to throw out its collective judgment of the witness'
    credibility in favor of the opinion of an "expert." *See* Kopf v.
    Skyrm 993 F.2d 374, 377 (4^th^ Cir. 1993) (stating trouble is
    encountered when we allow the evaluation of the common place by an
    expert to supplant the jury's independent exercise of common sense);
    United States v. Roy, 843 F.2d 305 (8^th^ Cir. 1988) (commenting
    there is a real danger jurors would abandon their own common sense
    evaluation of credibility in favor of the expert's); United States
    v. Snipes, 18 M.J. 172, 180 (C.M.A. 1984) (Everett, C.J.,
    concurring) (explaining that hearing a purported expert give an
    opinion about the credibility of a witness will distract the
    factfinder from using his own common sense and experience which is
    the best means for determining credibility). This is especially
    troubling in the area of credibility where the expert polygrapher's
    stamp of believability will be viewed with an aura of scientific
    certainty as something "akin to the ancient oracle at Delphi."
    United States v. Alexander, 526 F.2d 161, 168 (8th Cir. 1975);
    United States v. Helton, 10 M.J. 820, 824 n.16 (A.F.C.M.R. 1981).
    Some commentators and judges claim the jury would not be overwhelmed
    by polygraph evidence. *See* United States v. Galbreth, 908 F. Supp.
    877, 895 (D.N.M. 1995); United States v. Crumby, 895 F. Supp. 1354,
    1362 (D.Ariz. 1995); Honts & Perry, *supra* note 1, at 365-66;
    Charles M. Sevilla, *Polygraph 1984: Behind the Closed Door of
    Admissibility*, 16 [U. West L.A. L. Rev. 5, 16-18
    (1984).]{.smallcaps} Actually, nothing could be further from the
    truth. Polygraph evidence is generally offered when the entire case
    hinges on credibility. Even though qualified by virtue of their life
    experiences to determine credibility, jurors are generally not
    comfortable with the task of having to choose who in a one-on-one
    battle is lying. Better they should find someone is merely mistaken.
    Thrown the lifeline of expert opinion on the credibility of a key
    witness, the members will cling to the aura of scientific certainty
    instead of relying on the more subtle indicators right under their
    collective noses. There are three reasons why jurors would put aside
    their judgment in favor of the expert's. First, they have little or
    no experience as jurors. Second, the consequences of their decision
    may be greater than most they will ever make in their own lives.
    Third, jurors have no reason to trust their own ability to detect
    deception. Therefore, presented with a scientific instrument that
    "detects deception" and is anywhere from 70%-95% accurate, the
    temptation to just "take the expert's word for it" would be too
    great. *See also* Brown v. Darcy, 783 F.2d 1389, 1391 (9^th^ Cir.
    1986) (overwhelming prejudice possible because jurors, despite their
    ability, are likely to give conclusive weight to a polygrapher's
    opinion of the accused's believability).

[^143]: Mil. R. Evid. 403 states "\[a\]lthough relevant, evidence may be
    excluded if its probative value is substantially outweighed by the
    danger of unfair prejudice, confusion of the issues, or misleading
    the members . . . ." MCM, *supra* note 2, Mil. R. Evid. 403.
    Although the authors believe this polygraph evidence is indeed too
    prejudicial, this article will not discuss further the applicability
    of Rule 403 for two reasons. First, it is beyond the scope of this
    article. Second, since the evidence is not admissible under Rule 702
    for failure to assist the factfinder, it would never be necessary to
    address the issue under Rule 403.

[^144]: United States v. Arruza, 26 M.J. 234, 237 (C.M.A. 1988) (citing
    United States v. Cameron, 21 M.J. 59, 62 (C.M.A. 1985) (finding it
    violated Mil. R. Evid. 608(a) for witness to testify victim was
    telling the truth about what happened)). In their analysis of
    *United* *States* *v.* *Helton*, 10 M.J. 820 (A.F.C.M.R. 1981),
    Professors Saltzburg, Schinasi, and Schluter, noted that the court,
    as part of its analysis, could have found that nothing in Mil. R.
    Evid. 608 permits testimony of a witness' opinion concerning
    truthfulness of another witness on a particular occasion. [Saltzburg
    et al.,]{.smallcaps} *supra* note 33, at 730. The applicability of
    this rule is discussed in greater detail *infra* notes 163-227 and
    the accompanying text.

[^145]: United States v. Hill-Dunning, 26 M.J. 260, 262 (C.M.A. 1988);
    26 M.J. 234; 21 M.J. 59 (not helpful); United States v. Azure, 801
    F.2d 336 (8^th^ Cir. 1986); United States v. Toledo, 985 F.2d 1462
    (10^th^ Cir. 1993) (finding it was inappropriate for an expert to
    testify he "knew" what the victim said was true and that there was a
    "high likelihood" her description of the events did occur); United
    States v. Binder, 769 F.2d 595 (9^th^ Cir. 1985); United States v.
    Brien, 59 F.3d 274 (1^st^ Cir. 1995).

[^146]: United States v. Cacy, 43 M.J. 214 (C.A.A.F. 1995).

[^147]: *Id.* at 217 (quoting with approval 21 M.J. at 64-65) (emphasis
    added).

[^148]: 43 M.J. at 218 (citing United States v. Brenton, 24 M.J. 562,
    565 (A.F.C.M.R. 1987), *pet. denied*, 25 M.J. 393 (1987)).

[^149]: 43 M.J. at 218-19. The court gave other examples of behavior
    testimony that would be permissible and they included discussions of
    patterns of consistency in the stories of child victims, symptoms of
    abused children as compared to the victim's symptoms, and a child
    victim's ability to separate truth from fantasy. In and of
    themselves, they say nothing about whether the child is actually
    telling the truth about what happened. For an example of how
    limiting instructions can be used to prevent the jury from using the
    evidence improperly, see *supra* note 93.

[^150]: United States v. Marrie, 43 M.J. 35 (C.A.A.F. 1995).

[^151]: *Id.* at 41.

[^152]: *Id.* at 41-42 (emphasis added).

[^153]: 769 F.2d 595.

[^154]: *Id.* at 602.

[^155]: 801 F.2d 336.

[^156]: *Id.* at 340 (quoting United States v. Awkard, 597 F.2d 667, 671
    (9^th^ Cir. 1979)). *Accord* 985 F.2d 1462.

[^157]: 801 F.2d at 340-41. The same court revisited this issue in
    *United States v. Whitted*, 11 F.3d 782 (8^th^ Cir. 1993). Citing
    *Azure* and employing its rationale, the court held that an expert
    could not opine as to the believability of the victim. 11 F.3d at
    785-86 (citing 801 F.2d at 339-41). The court also noted that Rule
    704 did not save the opinion of the child abuse expert even though
    that rule permits opinions that reach the ultimate issue. Citing the
    Advisory Committee's Note on Rule 704, the court stated that an
    opinion that tells the factfinder what result to reach is not deemed
    helpful and is not admissible. 11 F.3d at 785.

[^158]: United States v. Wagner, 20 M.J. 758 (A.F.C.M.R. 1985).

[^159]: *Id.* at 761.

[^160]: *Id.* *Accord* United States v. Farrar, 25 M.J. 856 (A.F.C.M.R.
    1988). In that case, the counselor's testimony was that based on his
    vast experience he could tell from the mannerisms of the accused
    that she was telling the truth when she denied using drugs. With
    little analysis, the court noted that while the counselor's opinion
    might be useful to determine whether entry into a drug
    rehabilitation program is appropriate, it had no place in the
    courtroom. *Id.* at 858.

[^161]: 20 M.J. at 762. Similarly, it is common in cross-examination of
    physicians or psychologists to ask if, in reaching their opinions,
    they accepted as true the account of their patient or subject. The
    purpose, of course, is not to establish the truth of the matters
    stated by the patient or subject, but rather to undercut the weight
    of the opinion based upon those matters.

[^162]: United States v. Cameron, 21 M.J. 59, 63 (C.M.A. 1985) (quoting
    20 M.J. at 762). The court did not explain exactly what it meant by
    that last sentence. It could be that when it comes to the accused's
    testimony, the factfinder is even better at assessing the
    credibility of the testimony than it would be with an ordinary
    witness. Conversely, the court may have felt that testimony as to
    whether the accused is telling the truth is even less helpful than
    it would be if the testimony concerned an ordinary witness. Either
    way, it is apparent that at one time this court would not permit any
    testimony or opinions concerning the believability of the accused's
    version of the facts.

[^163]: United States v. Hill-Dunning, 26 M.J. 260 (C.M.A. 1988).

[^164]: *Id.* at 262.

[^165]: *Id.* at 263.

[^166]: *Id.* The court also noted that Rule 704 did not save this
    opinion on an ultimate issue because that rule did not open the door
    to all opinions and certainly not opinions that called on
    "oath-helpers."

[^167]: *Id.*

[^168]: 28 [Wright]{.smallcaps} & [Gold]{.smallcaps}, *supra* note 72 §
    6113, at 40.

[^169]: Methods of impeachment include evidence as to bad character for
    truthfulness, evidence of a prior inconsistent statements or acts,
    evidence of bias, prejudice, or motive to misrepresent, evidence of
    contradiction, and evidence of a conviction. United States v.
    Robertson, 39 M.J. 211 (C.M.A. 1994). Case law and Mil. R. Evid.
    603, Mil. R. Evid. 607, Mil. R. Evid. 609, and Mil. R. Evid. 613
    address these other forms of impeachment. *See generally* [Saltzburg
    et al.,]{.smallcaps} *supra* note 33, at 624-707.

[^170]: United States v. Hill-Dunning, 26 M.J. 260, 262 (C.M.A. 1988).
    In *United States v. Peterson*, 24 M.J. 283 (C.M.A. 1987), the court
    stated "\[t\]he credibility of a witness and the permissible
    evidence pertaining thereto is restricted by Mil.R.Evid 608." *Id.*
    at 285. *But* *see* United States v. Gipson, 24 M.J. 246, 252 n.8
    (C.M.A. 1987) (stating that since the opinion of a polygrapher
    concerning the deception, or lack thereof, of the accused was not
    character evidence, Mil. R. Evid. 608(a) did not apply).

[^171]: Subsection (a) of the military rule is taken verbatim from
    subsection (a) of the federal rule. Subsection (b) of the military
    rule is taken from the federal rule without substantial change.
    Subsection (c) does not exist in the federal rules. *See* [Saltzburg
    et al.,]{.smallcaps} *supra* note 33, at 648-49.

[^172]: *Id.* at 644-45; *see also* United States v. Awkard, 597 F.2d
    667, 670 (9^th^ Cir. 1979) (explaining that Fed. R. Evid. 608(a)
    limits opinion evidence concerning witness credibility to evidence
    of character only).

[^173]: Mil. R. Evid. 608(b)(1) allows cross-examination of the
    principle witness whose character is in issue, and Mil. R. Evid.
    608(b)(2) allows cross-examination of the character witness who
    testified as to another witness' character. *See* [Saltzburg et
    al.,]{.smallcaps} *supra* note 33, at 644.

[^174]: Being deceptive means to deceive. To deceive means to lie or to
    make a person believe that which is not true. [Webster's New
    Universal Unabridged Dictionary]{.smallcaps} 469 (2^nd^ Ed. 1979).

[^175]: *See, e.g.,* United States v. Alexander, 526 F.2d 161 (8th Cir.
    1975); United States v. Scheffer, 44 M.J. 442 (C.A.A.F. 1995).

[^176]: [Black's Law Dictionary]{.smallcaps} 566 (6^th^ ed. 1990).

[^177]: The only legitimate conclusion the polygrapher can draw is that
    the subject believes what he is saying, not that it is true. *See*
    United States v. Lech, 895 F. Supp. 582, 585 (S.D.N.Y. 1995).

[^178]: 24 M.J. 246 (Rule 608 not applicable); United States v. Posado,
    57 F.3d 428 (5^th^ Cir. 1995) (no mention of applicability of Rule
    608); United States v. Crumby, 895 F. Supp. 1354 (D.Ariz. 1995)
    (Rule 608 does not exclude).

[^179]: 24 M.J. at 252.

[^180]: United States v. Arruza, 26 M.J. 234 (C.M.A. 1988).

[^181]: *Id.* at 237.

[^182]: 28 [Wright]{.smallcaps} & [Gold]{.smallcaps}, *supra* note 72 §
    6114, at 52-3. The admissibility of lay opinions for purposes of
    Rule 608(a) is controlled by Rule 701, which is specifically
    designed to deal with lay opinions. Mil. R. Evid. 701 provides for
    the admission of lay opinions that are "(a) rationally based on the
    perception of the witness and (b) helpful to a clear understanding
    of the testimony of the witness or the determination of a fact in
    issue." MCM, *supra* note 2, Mil. R. Evid. 701. This rule is
    identical to Fed. R. Evid. 701. [Saltzburg et al.,]{.smallcaps}
    *supra* note 33, at 721.

[^183]: 24 M.J. at 253.

[^184]: *Id.* at 252. Ordinarily, a psychophysiologist would never be
    able to provide a lay opinion under Rule 701 because he or she would
    never have had sufficient personal acquaintance with the accused.

[^185]: Generally, there is no requirement under Fed. R. Evid. 608 that
    the acquaintance be of long duration or that the information about
    the person be recently obtained. *See* 3 [Weinstein]{.smallcaps},
    [et al]{.smallcaps}., *supra* note 76 ¶ 608\[4\], at 608-30; United
    States v. Thomas, 768 F.2d 611 (5^th^ Cir. 1985). Nor is there such
    a requirement under Mil. R. Evid. 608. United States v. Williams, 26
    M.J. 487, 490 (C.M.A. 1988). *But* *Cf.* United States v. Jenkins,
    27 M.J. 209, 211 (C.M.A. 1988) (upholding trial judge's decision to
    exclude opinion testimony of a witness that the accused was
    truthful; the witness, a mental healthcare provider, was going to
    testify as to the accused's ability to tell the truth after "seeing
    appellant in *only* four or five \[marital\] counseling sessions and
    speaking with him a couple of times over the phone" and conducting a
    personality screening test; the court noted that a character witness
    must have a sufficiently close acquaintance upon which to base an
    opinion the accused was a truthful person).

[^186]: The way in which the witness formed the opinion and the
    circumstances under which the opinion was formed are more important
    in assessing the reliability of the opinion. *See* 3
    [Weinstein]{.smallcaps}, [et al]{.smallcaps}., *supra* note 76 ¶
    608\[4\], at 608-32; *see also* 26 M.J at 490. In *Williams*, the
    Court of Military Appeals ruled that a character witness did not
    have a sufficient basis upon which to render an opinion about the
    truthful character of the victim because she lacked personal
    knowledge of the victim's character. The witness, a paralegal, was
    present for two interviews of the seven-year-old victim that totaled
    an hour and a half. Focusing on the nature of the acquaintance, the
    court stated that an hour and a half "stint" as a disinterested
    witness would not be enough time to render a reliable character
    assessment. *Id.*

[^187]: Certainly, as a lay witness, a polygrapher could not testify
    that he interviewed the accused about what happened and he
    personally believes the accused was truthful when he denied
    committing the offense. *See* United States v. Farrar, 25 M.J. 856
    (A.F.C.M.R. 1988).

[^188]: *See supra* notes 142-167 and accompanying text.

[^189]: Under the Federal and Military Rules of Evidence, there are only
    two types of opinions -- lay opinions and expert opinions. Nothing
    in Rule 608(a) or any other rule of evidence suggests the existence
    of a third kind of opinion. If a witness' opinion does not meet the
    requirements in either one of these rules, it is hard to see how the
    opinion could otherwise be admitted. If, on the other hand, it did
    assist the factfinder to hear an expert's opinion that a witness
    told the truth, the question would be whether this was character
    evidence. Since the courts tend to simply assume this evidence
    assists the factfinder, the focus of the Rule 608 debate concerns
    whether polygraph evidence is character evidence and whether that
    even matters.

[^190]: [Black's Law Dictionary]{.smallcaps} 232 (6^th^ ed. 1990).

[^191]: United States v. Piccinonna, 729 F. Supp. 1336, 1338 (S.D. Fla.
    1990). *But* *see* United States v. Crumby, 895 F. Supp. 1354,
    1363-64 (D.Ariz. 1995) (finding that the polygrapher's opinion
    qualified as character evidence and for that reason was admissible
    under Fed. R. Evid. 608).

[^192]: 24 M.J. at 252 n.8.

[^193]: 28 [Wright]{.smallcaps} & [Gold]{.smallcaps}, *supra* note 72 §
    6113, at 43.

[^194]: 28 *Id.* § 6115, at 65.

[^195]: 24 M.J. at 252 n.8.

[^196]: *Id*.

[^197]: *See* United States v. Rodriguez, 37 M.J. 448, 452 (C.M.A.
    1993).

[^198]: *See* United States v. Scheffer, 44 M.J. 442 (C.A.A.F. 1995).
    The court in *Scheffer* does not mention Rule 608 or any other rule
    remotely concerned with credibility.

[^199]: United States v. Piccinonna, 885 F.2d 1529 (11^th^ Cir. 1989),
    *on remand* 729 F. Supp. 1336.

[^200]: 885 F.2d at 1536 (the court focused its analysis on Rule
    608(a)(2)).

[^201]: 729 F. Supp. 1336.

[^202]: *Id.* at 1338. The court also felt the evidence was unfairly
    prejudicial but actually ruled it was inadmissible under Fed. R.
    Evid. 402 and Fed. R. Evid. 608.

[^203]: United States v. Thomas, 768 F.2d 611 (5^th^ Cir 1985).

[^204]: *Id.* at 618.

[^205]: United States v. Azure, 801 F.2d 336 (8^th^ Cir. 1986).

[^206]: *Id.* at 341. *Accord* United States v. Cecil, 836 F.2d 1431,
    1442 (4^th^ Cir. 1988) (stating that opinions of credibility not
    related to character are for the jurors to form); United States v.
    Awkard, 597 F.2d 667, 670 (9^th^ Cir. 1979) (stating that Rule
    608(a) strictly limits opinion evidence concerning credibility to
    character).

[^207]: United States v. Peterson, 24 M.J. 283 (C.M.A. 1987).

[^208]: *Id.* at 285. *Accord* 26 M.J. 487, 490 n.1 (stating again that
    a witness' opinion as to the specific believability and truthfulness
    of the victim's story was not admissible at all under Mil. R. Evid.
    608(a)). Although the court only mentioned the victim's story, there
    is no reason the same rule of law would not apply to the accused's
    story.

[^209]: 24 M.J. at 285 (emphasis added).

[^210]: 26 M.J. at 237 (quoting United States v. Cameron, 21 M.J. 59, 62
    (C.M.A. 1985)).

[^211]: 26 M.J. at 238. The court noted that several theories had been
    advanced as to why such testimony was inappropriate. In addition to
    the non-character nature of this testimony, the court noted the
    evidence has been found to exceed the specialized knowledge of the
    expert, the evidence usurps the jury's function to weigh
    credibility, and it is unfairly shrouded with an aura of scientific
    certainty. *Id.* at 237. The differing rationale listed by the court
    helps illustrate the problem.

[^212]: 44 M.J. at 446 (emphasis added).

[^213]: United States v. Cacy, 43 M.J. 214 (C.A.A.F. 1995).

[^214]: 44 M.J. at 446 (citing 43 M.J. at 218). The court focused on its
    holding in *Cacy* that an expert could testify that the victim's
    version of the events did not appear to be feigned or rehearsed. 44
    M.J. at 446.

[^215]: United States v. Suarez, 35 M.J. 374 (C.M.A. 1992).

[^216]: 44 M.J. at 446 (citing 35 M.J. at 376).

[^217]: 44 M.J. at 446 (citing United States v. Palmer, 33 M.J. 7, 12
    (C.M.A. 1991); United States v. Tolppa, 25 M.J. 352, 354-55 (C.M.A.
    1987)).

[^218]: The converse, that if the accused was not truthful he would
    indicate deception, is equally apparent.

[^219]: We note that there was no indication, express or implied, in
    *Scheffer* that the court was rejecting its earlier reasoning.

[^220]: 24 M.J. at 253.

[^221]: United States v. Williams, 43 M.J. 348, 354 (C.A.A.F. 1995)
    (emphasis added).

[^222]: This might have something to do with the fact that to deceive is
    to lie and telling a lie is the opposite of telling the truth. There
    is no such linguistic relationship between the word "rehearse" and
    the word "truth."

[^223]: Testimony concerning counter-intuitive conduct is routine human
    behavior evidence, and it says nothing about whether the witness is
    actually telling the truth. *See supra* notes 91-94 and accompanying
    text.

[^224]: United States v. Marrie, 43 M.J. 35 (C.A.A.F. 1995).

[^225]: *Id.* at 41.

[^226]: *Id.* at 41-42. In *Marrie*, the court stated that experts are
    not allowed to testify concerning the credibility of the victim.
    *Id.* at 41. Although the court did not specifically mention Mil. R.
    Evid. 608, it did cite to *Peterson*, 24 M.J. 283, to support that
    proposition. 43 M.J. at 41. In *Peterson*, the court found that an
    expert's opinion the victim was telling the truth violated Mil. R.
    Evid. 608. 24 M.J. at 285.

[^227]: To be sure, the court ignored the rationale and the *Marrie*
    case. That case is not mentioned in the *Scheffer* opinion.

[^228]: Extrinsic evidence can be defined as external evidence or
    evidence from an outside source. [Black's Law
    Dictionary]{.smallcaps} 588-89 (6^th^ ed. 1990). In other words, if
    *A* provides testimony during direct examination about something *B*
    did, that would be extrinsic evidence. It is worth noting that based
    on the opinions of both military and civilian courts, the accused
    could not discuss evidence of his own polygraph until his
    credibility has been attacked and then only if some expert opinion
    was to follow that could explain the evidence.

[^229]: *See* United States v. Piccinonna, 729 F. Supp. 1336, 1338
    (S.D.Fla. 1990). The rule does not define that phrase but one
    commentator described a specific instance of conduct as "the
    isolated act of the person whose character is in issue." 28
    [Wright]{.smallcaps} & [Gold]{.smallcaps}, *supra* note 72 § 6117,
    at 79. As such, any incident or event that related to truthfulness
    might serve as the basis for an opinion of character, but could not
    itself be admitted as direct proof. 28
    *[I]{.smallcaps}d[.]{.smallcaps}* § 6117, at 79.

[^230]: United States v. Gipson, 24 M.J. 246 (C.M.A. 1987).

[^231]: *Id.* at 253.

[^232]: "Polygraph evidence relates to the credibility of a certain
    statement." United States v. Rodriguez, 37 M.J. 448, 452 (C.M.A.
    1993) (quoting 24 M.J. at 252-53).

[^233]: 729 F. Supp. at 1338; *see also* United States v. Early, 505 F.
    Supp. 117 (S.D.Iowa 1981).

[^234]: United States v. Crumby, 895 F. Supp. 2354, 1364 (D.Ariz. 1995).

[^235]: *Id.* at 1364. The court, choosing to read subsection (b)
    narrowly, said that a polygraph exam is admissible because it is
    "highly probative evidence of a criminal defendant's propensity for
    truthfulness *with respect to the issues in the case*." *Id.*
    (emphasis added). This kind of analysis makes an even better case
    for a new clear rule.

[^236]: Most federal and military courts recognize this exception, but
    it is unclear how it applies in this situation. Contradiction
    evidence is normally admitted because it contradicts a specific
    statement or fact already testified to. United States v. Trimper, 28
    M.J. 460 (C.M.A. 1989), *cert. denied*, 493 U.S. 965, 110 S. Ct.
    409, 107 L. Ed. 2d 374 (1989). In *Crumby*, the polygraph evidence
    did not specifically contradict anything, though it did generally
    contradict the evidence of the crime and the general impeachment
    evidence to be presented to the jury. *See* 895 F. Supp. at 1364.
    The trouble is that the "contradiction" the defense sought to
    introduce was a specific instance of truthfulness. This is exactly
    what Mil. R. Evid. 608(b) prohibits. The contradiction exception is
    supposed to be narrow, but with the stroke of a pen, the *Crumby*
    court created an exception big enough to swallow the rule. And, in
    that case it did. This treatment of Mil. R. Evid. 608(b) renders the
    Rule meaningless--a result which was neither intended nor desired.

[^237]: 24 M.J. at 252 n.8. In *United States v. Rodriguez*, 37 M.J. 448
    (C.M.A. 1993), the court did not even list Mil. R. Evid. 608 as a
    rule to be considered. Referring only to Mil. R. Evid. 401, Mil. R.
    Evid. 402, Mil. R. Evid. 403, and Mil. R. Evid. 702, the court's
    attention was focused only on the admissibility of the evidence as
    expert testimony. *Id.* at 452.

[^238]: 24 M.J. at 252 n.8. The mere fact that polygraph evidence is not
    character evidence would not necessarily have anything to do with
    admissibility of extrinsic evidence. The second part of subsection
    (b) does address character evidence, but only to the extent it
    permits the use of specific instances of conduct to cross-examine a
    witness about a person's character. It is the first sentence of
    subsection (b) that operates to exclude extrinsic evidence of
    specific conduct and its application seems clear.

[^239]: 28 [Wright]{.smallcaps} & [Gold]{.smallcaps}, *supra* note 72 §
    6113, at 40-41.

[^240]: The introduction of evidence to demonstrate contradiction is
    possible only under very narrow circumstances. *See* 28 M.J. 460.
    Given subsection (c), a more literal interpretation of the first
    part of subsection (b) by military courts would seem appropriate.
    Any other approach under the military rules would effectively render
    the first sentence in Mil. R. Evid. 608(b) meaningless. But, if the
    first part of subsection (b) is read literally, then it is hard to
    explain the court's position in *Gipson*.

[^241]: Three different approaches were taken by the courts in
    *Piccinonna*, *Crumby*, and *Gipson*.

[^242]: *See* United States v. Arruza, 26 M.J. 234, 237 (C.M.A. 1988)
    (citations omitted).

[^243]: *See* Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 2711 n.12,
    97 L. Ed. 2d 37 (1987).

[^244]: The authors suggest a similar addition to Fed. R. Evid. 608, and
    suggest also that adding the language of Mil. R. Evid. 608(c) would
    help to further clarify the evidence rules regarding character and
    credibility.

[^245]: [U.S. Const]{.smallcaps}. amend. VI.

[^246]: United States v. Alexander, 526 F.2d 161 (8th Cir. 1975).

[^247]: *Id.* at 168-69 (quoting United States v. Stromberg, 179 F.
    Supp. 278, 280 (S.D.N.Y.), *rev'd in part on other grounds*, 268
    F.2d 256 (2^nd^ Cir. 1959).

[^248]: *See supra* notes 142-167 and accompanying text.

[^249]: United States v. Gipson, 24 M.J. 246, 252 (C.M.A. 1987). The
    Supreme Court recently held that polygraph evidence, inadmissible
    under state law even for impeachment purposes, had no independent
    and inherent evidentiary value mandating disclosure under Brady v.
    Maryland, 373 U.S. 83, 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1968).
    Wood v. Bartholomew, \_\_\_ U.S. \_\_\_, 116 S. Ct. 7, 133 L. Ed. 2d
    1 (1995). In *Wood*, the prosecution failed to reveal polygraph
    results showing their two key witnesses were deceptive. The
    polygraphs would have been offered to undermine their credibility at
    trial. *See also* Jackson v. Garrison, 677 F.2d 371 (4^th^ Cir.
    1981) (holding that the defendant's constitutional rights were not
    violated and the fairness of the trial was not jeopardized where
    prosecutor refused to stipulate to the admissibility of a polygraph
    result and state law prohibited admissibility absent stipulation).
    *But* *see* McMorris v. Israel, 643 F.2d 458 (7^th^ Cir. 1981)
    (holding the prosecution impermissibly refused to stipulate to
    admission of a polygraph because polygraph evidence may be
    materially exculpatory within the meaning of the Constitution).

[^250]: Moreover, the accused cannot claim exclusion infringes on his
    right to testify on his own behalf as it did the appellant in
    *Rock*. *See* 107 S. Ct. 2704. He is simply being denied the
    opportunity to present evidence intended to bolster his credibility.
    The accused is not constitutionally entitled to have a witness
    testify that what the accused said about the incident is true.

[^251]: Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 1049, 35
    L. Ed. 2d 297 (1973); 107 S. Ct. at 2711.

[^252]: If the polygraph is welcomed, what other scientific advancements
    might expect invitations into the courtroom to "assist" the jury?
    Perhaps body language analysts could be allowed to recount their
    "expert" assessment of the believability of each of the witnesses
    after they testify. Or, experts seated in the back of the courtroom
    with telescopes trained on the eyes of the witnesses to determine
    their pupil dilation at the time of responding to each question
    could be called to testify as to their opinion. Maybe we could even
    use voice stress analyzers to display audio charts during the
    testimony of each witness. And finally, we could just connect every
    witness to a polygraph, in the *courtroom*, and allow the jury to
    observe the charts projected real-time on a large screen while any
    witness--including a polygrapher--testifies.