No. 96-1133

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

UNITED STATES OF AMERICA, PETITIONER

v.

EDWARD G. SCHEFFER

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

MICHAEL R. DREEBEN
Deputy Solicitor General

DAVID C. FREDERICK
Assistant to the Solicitor
General

JOEL M. GERSHOWITZ
Attorney

Department of Justice
Washington, D.C. 20530-0001
(202)514-2217

MICHAEL J. BRESLIN
Lt. Colonel, USAF
Appellate Government
Division
Bolling Air Force Base
Washington, D.C. 20332

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QUESTION PRESENTED

Whether Military Rule of Evidence 707, which pro-
vides that evidence of a polygraph examination is not
admissible in court-martial proceedings, is an uncon-
stitutional abridgment of military defendants' right
to present a defense.

(I)

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TABLE OF CONTENTS

Opinions below . . . . 1
Jurisdiction . . . . 1
Rule and constitutional provisions involved . . . . 2
Statement . . . . 2
Summary of argument . . . . 12

Argument:

I. The per se exclusion of polygraph evidence in a
  criminal case is valid under the Sixth Amend-
  ment . . . . 14
  A. Restrictions on the admissibility of evidence
    are constitutional if they are reasonable and
    serve legitimate interests . . . . 14
  B. A per se rule excluding polygraph results
    serves legitimate interests in promoting
    fairness and reliable fact-finding . . . . 17
    1. Legitimate doubt exists in the scientific
     community over the reliability of poly-
     graphs . . . . 18
    2. The admission of polygraph evidence
     intrudes on functions performed by the
     trier of fact . . . . 26
    3. A per se prohibition on polygraph evid-
     ence serves the legitimate interest of
     avoiding unnecessary collateral litiga-
     tion . . . . 29
    4. Widespread judicial support for a prohi-
     bition on polygraph admissibility further
     supports the reasonableness of a per se
     rule . . . . 31
  C. The court of appeals erred in its analysis
    of the per se bar on polygraph evidence . . . . 34
II. The Sixth Amendment does not compel
  admissibility of polygraph results in  courts-
  martial . . . . 39

(III)

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IV

Table of Contents-Continued:          Page

    A. procedural rules adopted for military
     courts-martial  are entitled to deference
     by this Court . . . . 39
    B. Respondent's interest in introducing
     polygraph evidence does not outweigh
     the reasons for establishing a per se rule
     prohibiting such evidence . . . . 41
Conclusion . . . .  44

TABLE OF AUTHORITIES

Cases:
Anderson v. United  States, 78$ F.2d 517 (8th Cir.
1986) . . . .  33
Barefoot  v. Estelle,  463 U.S.880 (1983) . . . . 27
Bashor  v. Risley, 730 F.2d 1228 (9th Cir.), cert.
demied.469  U S .838 (B84) . . . . 37
Bennett v. City of Grand Prairie, 833 F.2d 400 (5th
Cir.. 1989) . . . . 32-33
Brady  v. Maryland,  373  U.S. 83 (1963 ) . . . . 11
Brown v. Darcy, 733 F.2d 1389 (9th Cir. 1986) . . . . 23, 27,
                                                                                 30, 33, 37
Burns v. Wilson, 346 U.S. 137(19153) . . . . 40
California v. Trombetta, 467  U.S. 479 (1984) . . . . 14
Chambers Y. Mississippi,  410 U.S. 284 (1973) . . . . 9
Commonwealth v. Mendes, 547 N.E. 2d 35 (Mass.
1989) . . . . 30-31, 32
Commonwealth v. Sneeringer, 668 A.2d 1167(Pa.
Super. 1996) . . . . 31
Conner  v. State, 632  So.2d  1239 (Miss. 1993), cert.
denied. 513 U.S. 927 (1994) . . . . 31
Connor v. Auger, 595 F.2d 407 (8th Cir,), cert.
denied. 444 U. S. 851(1979) . . . . 37
Contee v. United States, 667 A.2d 103(D.C. 1995). . . . 31
Crane v. Kentucky, 476 U. S. 683 (1986) . . . . 14, 15, 38

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V

Cases-Continued              Page

Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) . . . . 32-33, 36 ,37, 38
Frye v. United States, 293 F. 1013 (D.C. Cir.
1923) . . . . 32
Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . 42
Haakanson v. State, 960 F.2d 1030 (Alaska Ct.
App. 1988) . . . . 32
Healy  v. Healy,  397 N.W.2d 71 (N.D. 1986) . . . . 32
Jackson v. Garrison, 677 F.2d 371 (4th Cir.), cert.
denied, 454 U.S. 1036 (1981) . . . . 37
Jaffee v. Redmond, 116 S. Ct. 1923 (1996) . . . . 16
Johnson v. State, 495 A.2d  (Md. 1985), cert.
denied, 474 U.S. 1093 (1986) . . . . 32
Jones v. United States, 463 U.S. 354 (1983) . . . . 25
Kansas v. Hendricks, Nos. 95-1469 &  95-9075
(June 23, 1997) . . . . 25
Loving v. United States, 116 S. Ct. 1737 (1996) . . . . 41
Michelson v. United States, 335 U.S. 469 (1948) . . . . 27
Michigan v. Lucas, 500 U.S. 145 (1991) . . . . 15, 16
Middendorf  v. Henry, 425 U.S. 25 (1976) . . . . 41, 42
Montana v. Egelhoff 116 S. Ct. 2013 (1996) . . . . 10, 11, 12,
                                                                                16, 17, 18
Morton v. Commonwealth, 817 S.W.2d 218 (Ky.
1991) . . . . 31
O'Callahun v. Parker, 395 U.S. 258 (1969) . . . . 40
OdeU, In re, 672 A.2d 457 (R.I. 1996) . . . . 31
Old Chief v. United States, 117 S. Ct. 644 (1997) . . . . 27
Parker  v. Levy, 417 U.S. 733 (1974) . . . .  41
People v. Anderson, 637 P.2d 354 (Colo. 1981) . . . . 24, 32
People v. Angelo, 618 N.Y.S.2d 77 (App. Div.
1994), aff'd, 666 N.E.2d 1333 (N.Y. 1996) . . . . 31
People v. Barbara, 255 N.W.2d 171 (Mich. 1977) . . . . 30
People v. Monigan, 390 N.E.2d 562 (111. App. Ct.
1979) . . . . 23, 24

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VI

Cases-Continued:              Page

People v. Price, 821 P.2d 610 (Cal. 1991), cert.
denied, 506 U.S. 851 (1992) . . . . 37
People v.  Sanchez   662  N.E.2d  1199 (111. 1996) . . . . 31
People v. Williams, 333 N.W.2d 577 (Mich. Ct. App.
1983) . . . . 38
Perkins v. State, 902 S.W.2d 88 (Tex. Ct. App.
1995) . . . . 28
Petition  of  Grirnm,  635  A.2d 456 (N.H. 1993) . . . . 31
Pulakis  v. State,  476 P.2d 474 (Alaska 1970) . . . .  32
Quirin, .Ex  parte, 317 U.S. 1 (1942) . . . . 40
Reid v. Covert, 354 U.S. 1  (1957) . . . . 39
Robinson v. Commomwealth, 341 S.E 2d 159 (Va.
1988) . . . . 32
Rock v. Arkansas, 483 U.S. 44 (1987) . . . . 9, 10, 13, 15,
Rosen v. United States, 245 U.S. 467 (1918) . . . . 37
Rostker v. Goldberg, 45.3 U.S. 57 (1981) . . . . 31
Schlesinger v. Councilnzan, 420 U.S. 738 (1975) . . . . 38
Solorio v. United States, 463 U.S. 435 (1987) . . . . 28
State v. Anderson, 379 N.W.2d 70 (Minn. 1985),
cert. denied, 476 U.S. 1141 (1986) . . . .  32
State v. Beachman , 616 P.2d 337 (Mont. 19/30) . . . . 28
State v. Beard, 461 S.E.2d 486 (W. Va. 1995) . . . . 31
State v. Biddle, 599 S.W.2d 182 (Me. 1980) . . . . 32
State v. Campbell, 904 S.W.2d 608 (Term. Crim,
App. 1995) . . . . 31
State v. Catanese, 368 So. 2d 975 (La. 1979) . . . . 32
State v. Conner, 241 N.W.2d 447 (Iowa 1976) . . . . 38
State v. Copeland, 300  S.E.2d 63  (S.C. 1982), cert.
denied, 460  U.S. 1103  (1983) . . . . 32
State v. Dean, 307 N.W.2d 628 (Wis. 1981) . . . . 30, 32
State v. Dornbusch, 384 N.W.2d 682 (S.D. 1986) . . . . 32 
State v. Frazier, 252 S.E.2d 39 (W. Va. 1979) . . . . 24
State v. French, 403 A.2d 424 (N.H.), cert. denied,
444  U.S  (1979) . . . . 32
                 
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VII

Cases-Continued:              Page

State v. Grier, 300 S.E.2d  351 (N.C. 1983) . . . . 30
State v. Harnish, 560 A.2d 5 (Me. 1989) . . . . 32
State v. Hawkins, 604 A.2d 489 (Md. 1992) . . . . 31
State v. Okumura, 894 P.2d 80 (Haw. 1995) . . . . 32
State v. Patterson, 651 A.2d 362 (Me. 1994) . . . . 31
State v. Porter, No. SC  15363, 1997 WL 265202
(Corm. May 20, 1997) . . . . 28, 29, 31
State v. Staat, 811 P.2d 1261 (Mont. 1991) . . . . 31
State v. Steinman, 239 N.W.2d 495 (Neb. 1976) . . . . 32
State v. Walker, 493 N.W.2d 329 (Neb. 1992) . . . . 31
Strickland  v. Washington, 466 U.S. 668 (1984) . . . . 14
Taylor  v. Illinois, 484 U.S. 400 (1988) . . . . 15
Tennard v. State, 802 S.W.2d 678 (Tex. Crim. App.
1990), cert. denied, 501 U.S. 1259 (1991) . . . .  31-32
United Stutes v. Alexander, 526 F.2d 161 (8th Cir.
1975) . . . .  23, 24, 26, 37
United States v. A&S Council Oil Co., 947 F.2d
1128 (4th Cir. 1991) . . . . 32
United States v. Barnard, 490 F.2d 907 (9th Cir.
1973), cert. denied, 416 U.S. 959 (1974) . . . .  29
United States v. Cordoba, 104 F.3d 225 (9th Cir.
1997) . . . . 33
United States v. Cronic, 466 U.S. 648 (1984) . . . . 15
United States v. Gipson, 24 M.J. 246 (C.M.A.
1987) . . . . 4, 5
United States v. Glover, 596 F.2d 857 (9th Cir.),
cert. denied, 444 U.S. 857 (1979) . . . . 37
United States v. Gordon, 688 F.2d 42 (8th Cir.
1982) . . . . 37
United States v. Kwong, 69 F.3d 663 (2d Cir. 1995),
cert. denied, 116 S. Ct. 1343 (1996) . . . . 33
United States v. Lech, 895 F. Supp. 582 (S. D.N.Y.
1995) . . . . 37
United States v. Miller, 874 F.2d 1255 (9th Cir.
1989) . . . . 33

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VIII

Cases-Continued:              Page

United States v. Murray, 784 F.2d 188 (6th Cir.
1986 . . . . 33
United States v. Piccinonna, 885 F.2d 1529 (llth
Cir. 1989) . . . . 33
United States v. Posado, 57 F.3d 428 (5th Cir.
1995) . . . . 33
United States v. Sherlin, 67 F.3d 1208 (6th Cir.
1995), cert. denied, 116 S. Ct. 795 (1996) . . . . 33
United States v. Soundingsides, 820 F.2d 1232
(l0th Cir. 1987) . . . . 33
United States ex rel. Toth v. Quarles, 350 U.S. 11
(1955) . . . . 42
United States v. Urquidez, 356 F. Supp. 1363
(C.D. Cal. 1973) . . . . 30
United States v. Williams:
39  M.J. 555 (A.C.M.R. 1994), decision set aside,
43 M.J. 348 (C.M.A. 1995), cert. denied, 116
S. Ct. 925 (1996) . . . . 38
43 M.J. 348 (C.M.A. 1995), cert. denied, 116
 S. Ct. 925  (1996) . . . . 11
United States v. Williams, 95 F.3d 723 (8th Cir.
1996), cert. denied, 117 S. Ct. 750 (1997) . . . . 33
United States v. Wilson, 361 F. Supp. 510 (D. Md.
1973) . . . . 36
Washington  v. Texas,  388  U.S. 14 (1967) . . . . 9, 14, 15,
                                                                                  28, 38
Weiss v. United States, 510 U.S. 163 (1994) . . . . 14, 40, 41,
                                                                                42,43
Wood v. Bartholomew, 116 S. Ct. 7 (1995) . . . . 11

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IX

Constitution, statutes, regulation and rules:      Page

U.S. Const.:
Art. I, 58, Cl. 14 . . . . 39
Art. II, 2 . . . . 17
Art. II ,  2,  Cl. 1 . . . . 42
Amend. V (Due Process Clause) . . . . 14, 39, 40
Amend. VI . . . . passim
Employee Polygraph Protection Act of 1988,
29  U.S.C.  2001  et  seq . . . . 22
Uniform Code of Military Justice, 10 U.S.C. 801
et seq.:
  Art. 36, 10 U.S.C. 836 . . . . 17
  Art. 36(a), 10 U.S.C. 836(a) . . . . 5, 42
  Art. 86, 10 U.S.C. 886 . . . . 2
  Art. l12a, 10 U.S.C. 912a . . . . 2
  Art. 123a, 10 U.S.C. 923a . . . . 2
Exec. Order No. 12,767, 3 C.F.R. 334 (1991
comp..) . . . . 5
Fed. R. Evid.:
Rule 403 . . . . 15, 16
Rule 404(b) . . . . 15, 16
Rule 501 . . . . 15, 16
Rule 608 . . . . 28
Rule 702 . . . . 16
Rule 704 . . . . 16
Rule 704(b) . . . . 29
Rule 802 . . . . 16, 18
Military R. Evid.:
Rule 608 . . . . 11
Rule 702 . . . . 5, 33, 36
Rule 707 . . . . passim
Miscellaneous:
S. Abrams, The Complete Polygraph Handbook
(1989) . . . . 18, 25
D. Carroll, "How accurate is polygraph lie detec-
tion?" in The Polygraph Test (A. Gale cd., 1988) . . . . 29

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X

Miscellaneous-Continued           Page

1 D. Faigman et al., Modern Scientific Evidence
(1997) . . . . 4, 20, 21, 25, 27
FBI, Manual of Investigative Operations and Guide-
lines (1987) . . . . 34
P. Giannelli, The  Admissibility  of  Novel  Scientific
Evidence: Frye v. United States, a Half-Century
Later, 80 Colum. L. Rev. 1197 (1980) . . . . 27
1 P. Giannelli  &  E. Inwinkelried,  Scientific Evidence
(2d cd., 1993) . . . . 4, 20, 21, 24
C. Honts  &  B. Quick, The Polygraph  in  1995: Pro-
gress in Science  and  the Law, 71 N.D. L. Rev. 987
(1995) . . . . 4
H.R. Rep. No. 198, 89th Cong., 1st Sess.(1965) . . . . 22
W. Iacono & D. Lykken, "The Scientific Status of
Research on Polygraph Techniques: The Case
Against Polygraph Tests in 1 Modern Scientific
Evidence  (D. Faigman  et  al. eds., 1997) . . . . 4, 20, 21, 25, 27
V. Kalashnikov, Beat the Box: The Insiders Guide
to Outwitting the Lie Detector (1986) . . . . 25
B. KIeinmuntz  &  J. Szuko, On  the  Fallibility  of  Lie
Detection, 17 Law & Soc'y Rev. 85 (1982) . . . . 21
D. Lyken, The Lie Detector and the Law, 8 Crim,
Def.  19 (1981) . . . . 21
J. Matte, Forensic  Psychophysiology  Using The
Polygraph (1996) . . . . 18, 25
C. Murphy & J. Murphy, "Polygraph Admissibility,"
in 10 National Center for Prosecution of Child
Abuse Update (1997) . . . . 24, 34
D. Raskin, Methodological  issues in estimating polg-
graph  accuracy  in field applications, 19 Canad.
J. Behav. Sci./Rev. Canad. Sci. Comp, 389 (1987) . . . . 27
D. Raskin et al., "The Scientific Status of Research
on Polygraph Techniques: The Case for Poly-
graph Tests," in 1 Modern  Scientific  Evidence
(D. Faigman et al. eds., 1997) . . . . 20

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XI

Miscellaneous-Continued:           Page

U.S. Congress, Office of Technology Assessment,
Scientific Validity of Polygraph Testing: A
Research Review and Evaluation-A Technical
Memorandum, (OTA-TM-H-15, NOV. 1983) . . . . 19, 20, 21
U.S. Department of Defense, The Accuracy and
Utility of Polygraph Testing (1984) . . . . 22
III(a) U.S. Department of Justice, United States
Attorneys' Manual (1988) . . . . 18
The Use of Polygraphs and Similar Devices by
Federal Agencies: Hearings on H.R. 795 Before
the House Comm. on Government Operations, 94th
Cong.,  2d  Sess. (1976) . . . . 22

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In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-1133

UNITED STATES OF AMERICA, PETITIONER

v.

EDWARD G. SCHEFFER

ON  WRIT OF CERTIORARI
TO THE UNITED STATES' COURT OF APPEALS
FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES

OPINIONS BELOW
   
The opinion of the court of appeals (Pet. App. 1a-
24a)  is  reported at 44 M.J. 442. The opinion of the Air
Force Court of Criminal Appeals (Pet. App. 25a-53a)
is reported at 41 M.J. 683.

JURISDICTION

The judgment of the United States Court of Ap-
peals for the Armed Forces was entered on September
18, 1996. On December 10, 1996, Chief Justice Rehn-
quist extended the time within which to file a petition
for a writ of certiorari to and including January 16,
1997.  The petition was filed on that date and was

(1)

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2

granted on May 19, 1997. The jurisdiction of this
Court rests on 28 U.S.C. 1259(3).

RULE AND CONSTITUTIONAL PROVISIONS'
INVOLVED

Military Rule of Evidence 707 provides:
  (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 examination, shall not be admitted into
evidence.
  (b) Nothing in this section is intended to ex-
clude from evidence statements made during a
polygraph examination which are otherwise
admissible.

The Fifth and Sixth Amendments to the United
States Constitution are reprinted at Pet. App. 77a-
78a.      

STATEMENT

Following trial by a general court-martial, respon-
dent was convicted of uttering 17 insufficient-funds
checks, using methamphetamine, failing to go to his
appointed place of duty, and wrongfully absenting
himself from the base for 13 days, in violation of
Articles 123a, 112a, and 86 of the Uniform Code of
Military Justice (UCMJ), 10 U.S.C. 923a, 912a, and
886, He was sentenced to 30 months' confinement, to
forfeiture of all pay and allowances, and to a bad
conduct discharge. The Air Force Court of Criminal
Appeals affirmed, with the proviso that respondent
should receive credit for one day's forfeitures. Pet.

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3

App. 25a-53a. The Court of Appeals for the Armed
Forces reversed and remanded. Id. at  1a-24a.
1. a. This case involves the constitutional validity
of a rule excluding from court-martial proceedings in
the armed forces any evidence of a polygraph exami-
nation.  A polygraph examination is intended to pro-
duce an assessment of credibility it is based on an
examiner's subjective interpretation of physiological
responses that are controlled by the subject's autono-
mous nervous system.  The theory behind polygraph
testing is that deception causes physiological reae-
tions that are involuntary and that such reactions
may be measured and interpreted,
While individual tests vary, polygraph examina-
tions generally follow a common format. After a pre-
liminary interview with the subject, the examiner
asks a number of questions while measuring the
subject's relative blood pressure (obtained from an
inflated cuff on the upper arm) and other indications
of blood flow, his "galvanic skin response" (e.g., pal-
mar sweating), and his respiration (obtained from sen-
sors placed on the subject's chest or abdomen).  The
polygraph instrument records physiological re-
sponses on a chart, and the examiner manually marks
when a response is uttered.  The questions asked in
most tests ordinarily fall into three broad categories:
direct questions concerning the matter under inves-
tigation, irrelevant or neutral questions, and more
general (so-called "control") questions concerning
whether the subject has possibly engaged in other
wrongful acts similar to the one under inquiry.  The
examiner poses the control questions in such a way
as to elicit anxiety and a possibly deceptive response,
in order to see a benchmark of the subject's physio-
logical reactions when exhibiting concern about

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4

lying.  There are no standardized questions in a
polygraph examination; the examiner devises the
questions for the individual subject and may refine
them after the preliminary interview.  Each question
is worded to elicit a "yes" or "no" answer. The test is
typically limited to ten questions, because " [t]he
restriction of blood flow in the arm produces ischemic
pain after several minutes." W. Iacono & D. Lykken,
"The Scientific Status of Research on Polygraph
Techniques:  The Case Against Polygraph Tests," in
1 Modern Scientific Evidence 14-3.1.1, at 583 (D.
Faigman et al. eds., 1997).
The examiner forms an opinion with respect to the
subject's truthfulness by comparing the subject's
physiological reactions to each set of questions.  See
generally 1 P. Giannelli & E. Imwinkelried, Scientific
Evidence   8-2(B), at  219-222  (2d ed. 1993); C. Honts &
B. Quick,  The  Polygraph  in 1995:  Progress  in Science
and the Law, 71 N.D.L. Rev. 987, 989-993 (1995).  If
the responses do not elicit a significant enough
variation in response, the examiner can adjust the
polygraph instrument so that the recordings during
the examination are more pronounced.  The subject is
usually required to be measured answering each set
of ten questions (with the questions asked in varying
orders) three different times.  The polygrapher may
base his inference of deception by comparing
physiological responses (as recorded in peaks and
valleys on the chart) to relevant and control ques-
tions.  See generally Gianelli & Imwinkelried, supra,
at 218.

b. In United States v. Gipson, 24 M.J. 246 (1987),
the Court of Military Appeals (now the Court of Ap-
peals for the Armed Forces) concluded that polygraph
techniques had reached a sufficient degree of reliabil-

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5

ity that evidence of a polygraph examination should
not be routinely excluded from court-martial proceed-
ings under Military Rule of Evidence 702.] The court
noted that " [i]f anything is clear, it is that the battle
over polygraph reliability will continue to rage," but
it concluded that "until the balance of opinion shifts
decisively in one direction or the other, the latest dev-
elopments * * * should be marshaled at the trial
level." 24 M.J. at 253.  Accordingly, the court held
that a serviceman who testifies at his court-martial
trial is entitled to lay a foundation showing the scien-
tific basis for polygraph results consistent with his
exculpatory  testimony. Id. at 252-253.
On June 27,1991,  "[b]y  the  authority  vested in [him]
as President  by  the Constitution  of  the United States
and by Chapter 47 of Title 10 of the United States
Code [i.e., the UCMJ], " the President responded to
Gipson by promulgating Military Rule of Evidence
707.2  See Exec. Order No. 12,767, 3 C.F.R. 334, 339-
340 (1991 comp.). The drafters' commentary that ac-

___________________(footnotes)

1 Military Rule of Evidence 702, like its counterpart in the
Federal Rules of Evidence, provides that " [i]f scientific, tech-
nical, 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 an
opinion or otherwise."

2 Article 36(a) of the UCMJ, 10 U.S.C. 836(a), provides
that " [p]retrial, trial, and post-trial procedures, including
modes of proof * * * may be prescribed by the President by
regulations which shall, so far as he considers practicable, apply
the principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United States
district courts."

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6

companies the rule explained its adoption by ref-
erence to several policies:

There is a real danger that court members will be
misled by polygraph evidence that "is likely to be
shrouded with an aura of near-infallibility."
United States v. Alexander, 526 F.2d 161, 168-169
(8th Cir. 1975). * * * There is also a danger of
confusion  of the issues,  especially  when
conflicting polygraph evidence diverts the [court-
martial] members' attention from a determination
of guilt or innocence to a judgment of the validity
and limitations of the polygraphs. * * * Poly-
graph evidence also can result in a substantial
waste of time when the collateral issues regard-
ing the reliability of the particular test and
qualifications of the specific polygraph examiner
must be litigated in every case.  Polygraph evi-
dence places a burden on the administration of
justice that outweighs the probative value of the
evidence.  The reliability of polygraph evidence
has not been sufficiently established and its use
at trial impinges upon the integrity of the judicial
system.

Pet. App. 82a-83a. Those considerations, the drafters
stated, warrant "a bright-line rule that polygraph
evidence is not admissible by any party to a court-
martial." Id. at 83a.
2. On March 27, 1992, respondent, an airman
stationed at March Air Force Base, California, opened
a checking account with the Security Pacific Bank
with a $277 deposit. He made no arrangements for his
pay to be deposited into the account, and he withdrew
$200 on the same day the account was opened. On
March 31, 1992, respondent telephoned the bank and

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7

stated that he had lost his ATM card and the tem-
porary checks that the bank had issued for the ac-
count.  He was apparently  told  that  the account  would
be closed for security reasons.  After that telephone
call, between April 1 and May 3, respondent wrote 17
checks on the account, totalling approximately  $3,300
in checks drawn on insufficient funds.  See Pet. App.
25a; 3 Trial Rec. 237-245,249,
In late March 1992, as he was beginning the Secu-
rity Pacific scheme, respondent volunteered to assist
the Air Force Office of Special Investigations (0SI)
with drug investigations, and informed OSI that he
had information on two civilians who were dealing in
significant quantities of drugs.  Pet. App. 2a, 26a. On
April 7, 1992, one of the OSI agents supervising re-
spondent requested that respondent submit to a urine
test.  Respondent agreed, but he stated that he could
not provide a urine specimen then, because he uri-
nated only once a day.  He submitted to a urinalysis
on the following day. On May 14, 1992, OSI agents
learned  that  respondent's  urine had tested positive for
methamphetamine. Id. at 26a-27a.
On April 10, 1992, two days after providing a urine
sample, respondent agreed to take a polygraph admin-
istered by an OSI examiner.  According to the exam-
iner, respondent's polygraph charts "indicated no de-
ception" when respondent denied that he had used
drugs since joining the Air Force.  Pet. App. 2a-3ay
26a-27a.  Later  that month, on April 30, 1992, respon-
dent  unaccountably  failed to appear for work and could
not be found on the base.  Respondent was not heard
from again until May 13, 1992, when an Iowa State
Patrolman telephoned the base with news that
respondent  had  been arrested in that State following a
routine traffic stop; upon learning that respondent

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3

was AWOL, the patrolman held respondent for return
to the base.  See 3 Trial Rec. 258-259,265-267.
At his trial, respondent advised the court that he
intended to testify in his defense, and that he wished
to rely on "the results of the exculpatory polygraph"
to corroborate "an innocent ingestion defense" to the
drug charges. 2 Trial Rec. 42, 43-44. Respondent
argued that Rule 707 "is unconstitutional if it prohib-
its an accused from introducing relevant and helpful
exculpatory evidence: and he argued that he should
be permitted to lay a foundation  "to show that in this
particular case * * * the polygraph results are
relevant and helpful." Id. at 44.
The military judge noted that  "[f]or evidence to be
helpful, the testimony of the polygrapher would have
to be in an area in which the factfinder himself needs
help in making a decision." 2 Trial Rec. 46. In his
view, the President may, through the Rules of Evi-
dence, determine that credibility is not an area in
which a fact finder needs help, and the polygraph
is not a process that has sufficient scientific
acceptability to be relevant.
Ibid. The military judge also noted that "[t]he fact
finder might give * * * too much weight" to
polygraph testimony, and that arguments about such
testimony could take "an inordinate amount of time
and expense. * * * (Given those concerns, I don't
believe that the constitution  prohibits  the President
from appropriately ruling that polygraph evidence
will not be admitted in a court-martial."  Ibid.
Respondent later testified that he did not recall
"knowingly" ingesting methamphetamine. He was
convicted. Pet. App. 3a-4a.

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9

3. The Air Force Court of Criminal Appeals, sit-
ting en bane, rejected respondent's contention that
the exclusion of the polygraph evidence deprived him
of a fair trial. Pet. App. 25a-53a. After reviewing this
Court's decisions in Washington v. Texas, 388 U.S. 14
(1967), Chamber v. Mississippi, 410 U.S. 284 (1973),
and Rock v. Arkansas, 483 U.S. 44 (1987), see Pet.
App. 32a-35a, the court concluded that the Constitu-
tion forbids evidentiary rules that "arbitrarily limit
the accused's ability to present reliable evidence,"
"arbitrarily limit admission [of evidence] by the de-
fense to a greater degree than by the prosecution," or
"arbitrarily infringe on the right of the accused to
testify on his own behalf."  Id. at 40a.
The court noted that Rule 707 is "equally applicable
to both the prosecution and the defense"  and does  "not
infringe on the right of the accused to testify on his
own behalf."  Pet. App. 43a.  It also observed that Rule
707 could not be viewed as an "arbitrary" limitation
on reliable evidence, because "[t]he President's
decision to prohibit polygraph evidence is not based on
whim or impulse, but rather on sound reasoning."
Pet. App. 40a. The court explained that there remain
"valid concerns" about polygraph examinations and
that:
The President is rightly concerned that courts-
martial could degenerate into a battle of poly-
graph examinations and experts that would im-
pose a burden on the administration of military
justice that would outweigh the value of the
evidence.
Id. at 41a. The court concluded  " [w]hile it might be
arbitrary for the President to promulgate a rule"
barring evidence that is widely accepted by courts as

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10

reliable, "such as fingerprint evidence; (id. at 43a),
the President acted within his authority in barring
polygraph evidence, which routinely is ruled inadm-
issible by the civilian courts (id. at 42a-43a).
Judge Pearson, joined by Judge Schreier, dissented
in part. Pet. App. 49a-53a.  He believed that properly
conducted polygraph examinations may provide
"vital" evidence in a case in which the defendant's
credibility  "becomes  the  whole  ball game," Id. at 51a.
4. By a three to two vote, the United States Court
of Appeals for the Armed Forces reversed.  The court
agreed with respondent's claim that Rule 707 "vio-
lates his Sixth Amendment right to present a defense
because it compelled the military judge to exclude
relevant, material, and favorable evidence offered by"
respondent. Pet. App. 4a.  Assuming that the Presi-
dent properly promulgated Rule 707 pursuant to the
UCMJ, see Pet. App. 7a, the court concluded that,
under Rock v. Arkansas , supra, the President's "leg-
itimate interest in barring unreliable evidence does
not  extend  to  per se exclusions  that  may be reliable  in
an individual case." Pet. App. 8a (quoting Rock, 483
U.S. at 61).  The court-acknowledged that Rock  "con-
cerned exclusion of a defendant's testimony and this
case concerns exclusion of evidence supporting the
truthfulness of a defendant's testimony," but it could
"perceive no significant constitutional difference
between the two." Pet, App. 9a.
Finally, the court noted that in Montana v. Egel-
hoff, 116 S. Ct. 2013 (1996), this Court upheld a state
"statute excluding evidence of voluntary intoxication
when a defendant's state of mind is at issue." Pet.
App. 13a. The court observed, however, that Egelhoff
was a "fragmented" decision that is best read as
"founded on the power of the state to define crimes

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11

and defenses." Id. at 14a. The court also found Egel-
hoff inapposite because Rule 707 does not address a
fact to be proved, but instead "bars otherwise admissi-
ble and relevant evidence based on the mode of proof
by categorically excluding polygraph evidence. While
the plurality in Egelhoff questions whether the
distinction between the fact to be proved and the
method of proving it makes a difference, 116 S. Ct. at
2017 n.1, only four justices joined in that observa-
tion." Pet. App. 15a. 3
Judges Sullivan and Crawford filed separate
dissents. Pet. App. 16a-24a.  Judge Sullivan's dissent
was based on his concurring opinion in United States
v. Williams, 43 M.J. 348 (C.M.A. 1995), cert. denied,
116 S. Ct. 925 (1996), a case in which the court of
appeals had declined to address the constitutional
validity of Rule 707, because the accused did not
testify. Pet. App. 67a-68a.  Writing separately in Wil-
liams, Judge Sullivan concluded that polygraph evi-
dence is inadmissible under Military Rule of Evidence
608, which restricts what evidence may be offered in
support of a witness's "character for * * * truth-
fulness." Id. at 75a.  Judge Sullivan believed, moreo-
ver, that such evidence "infringes on the jury's role

___________________(footnotes)

3 The court also noted that in Wood v. Bartholomew, 116 S.
Ct. 7 (1995) (per curiam), this Court summarily reversed the
Ninth Circuit's determination that a state prosecutor violated
his duties under Brady v. Maryland, 373 U.S. 83 (1963), by
failing to disclose the results of certain polygraph examina-
tions. Pet. App. 12a-13a.  The court observed that Bartholo-
mew involved "prosecution witnesses, not the accused," and it
added that while this Court "noted that polygraph evidence
was inadmissible under [state] law, * * * [t]he constitu-
tionality of the state law was not before the Court and * * *
was not addressed." Id. at  12a-13a.

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12

in determining credibility," because  "[o]ur adversary
system is built on the premise that the jury reviews
the testimony and determines which version of events
it believes." Id. at 75a-76a (internal quotation marks
omitted). In his view, Rule 707 "properly" addresses
those concerns. Id. at 76a.
Judge Crawford argued that a defendant's right to
present relevant evidence " is not * * * absolute', "
and must yield to policy considerations such as those
that supported the President's decision to adopt Rule
707, Pet, App. 17a, 21a,  She also took issue with the
court's characterization of Egelhoff noting that the
four-Justice plurality and the four dissenting Jus-
tices agreed "that relevant, reliable evidence may be
excluded  if  there  is a valid policy  reason  for doing so."
Id. at 21a, Finally, Judge Crawford argued that the
court's ruling would have a seriously adverse impact
on the military's  " worldwide Western  of justice." Ibid.

 SUMMARY OF ARGUMENT

I. Military Rule of Evidence 707, which estab-
lishes a per se bar on the admissibility of polygraph
evidence in courts-martial, is valid under the Sixth
Amendment.  A polygraph is an instrument that re-
cords physiological responses to questions and pro-
duces data that an examiner interprets to form a sub-
jective opinion about the subject's credibility at the
time.  It is based on the theory that deception results
in essentially uncontrollable responses by the sub-
ject's autonomous nervous system, and that those re-
sponses can be interpreted as evidence of honesty or
deception.
A criminal defendant does not have an unqualified
right under the Sixth Amendment to present any
evidence that is arguably relevant to a fact at issue.

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13

Rather, trial proceedings are governed by rules of
evidence that are themselves designed to produce a
reliable result and to further valid policy interests.
Many evidentiary rules restrict or preclude admis-
sion of relevant and probative evidence, and such rules
are constitutional so long as they are not "arbitrary
or disproportionate to the purposes they are designed
to serve." Rock v. Arkanasas, 483 U.S. 44, 56 (1987).
A per se rule prohibiting admission of polygraph
evidence serves legitimate interests.  First, for de-
cades scientists have engaged in an arguably un-
resolvable debate over whether polygraph examina-
tions are reliable.  Significant doubts persist about
whether polygraphs are verifiable and replicable.
That scientific disagreement makes it particularly
appropriate for courts to defer to the  appropriate  rule-
making authority's determination to bar polygraph
evidence.  The rule is further supported by the intru-
sion of polygraph evidence on functions traditionally
performed by the trier of  fact: assessing credibility
and deciding the ultimate issue of guilt or innocence
based on all of the evidence adduced at trial.  A per se
rule against polygraph evidence also avoids unneces-
sary collateral litigation over the  evidentiary value of
a polygraph result in any given situation.  Finally,
the existence of widespread judicial support for exclu-
sion of such evidence further justifies the President's
reasonable judgment in promulgating the per se
prohibition on admission of polygraph evidence.
II. Not only does the decision by the court below
conflict with general principles of Sixth Amendment
jurisprudence, it is particularly unwarranted in the
military context, where deference to the political
branches of government is at its apex. It is well set-
tled that the constitutional requirements for trials in

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14

civilian life do not necessarily apply with equal force
to courts-martial and that procedural restrictions
may be appropriate in the military context in view of
the specialized  nature of military life and the mili-
tary's primary function to defend the Nation.  Thus, a
service member challenging the rule has an "extra-
ordinarily weighty" burden in "overcom[ing] the bal-
ance struck by Congress." Weiss v. United States,
510 U.S. 163, 177-178 (1994).  In  light  of  the  substan-
tial reasons for prohibiting admissibility of polygraph
evidence, respondent cannot meet that burden.

ARGUMENT

I. THE PER SE EXCLUSION OF POLYGRAPH
EVIDENCE IN A CRIMINAL CASE iS VALID
UNDER THE SIXTH AMENDMENT

A. Restrictions On The Admissibility Of Evi- 
dence Are Constitutional if They Are Rea-
sonable And Serve Legitimate Interests

Although  the Constitution  guarantees a fair trial
through the Due Process Clause, the Sixth Amend-
ment defines "the basic elements of a fair trial,"
including the right to confrontation, the right to
compel testimony, and the right to counsel. Strick-
 land v. Washington, 466 U.S. 668, 684-685 (1984).
Those Sixth Amendment rights "guarantee[] crimi-
nal defendants  a meaningful opportunity to present a
complete defense.'" Crane v. Kentucky,  476  U.S. 683,
690 (1986) [quoting  California  v. Trombetta, 467 U.S.
479, 485 (1984)), so that the trier of fact "may decide
where the truth lies," Washington v. Texas, 388 U.S.
14, 19 [1967).  As this Court has observed, the  right  to
present a complete defense  would  be an  "empty one" if
the  government were permitted to exclude competent,
reliable evidence that is central to the defendant's

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15

claim of innocence, for the exclusion of such exculpa-
tory evidence  "deprives a defendant  of  the basic right
to have the prosecutor's case encounter and `survive
the crucible of meaningful adversarial testing.'"
Crane, 476 U.S. at 690-691 (quoting United  States v.
Cronic, 466 U.S. 648,656  (1984))
Nevertheless, a defendant's right to present rele-
vant evidence in his defense is not absolute.  The
Court has consistently recognized that " [n]umerous
state procedural and evidentiary rules control the
presentation of evidence." Rock v. Arkansas, 483
U.S. 44, 55  n.11 (1987); Washington v. Texas, 388 U.S.
at 23 n.21.  Under  those  rules,  a defendant "does  not
have an unfettered right to offer testimony that is
incompetent, privilege], or otherwise inadmissible
under standard  rules of evidence." Taylor v. Illinois,
484 U.S. 400,410 (1988).   Testimony  may  be excluded
"through the application of evidentiary rules that
themselves serve the interests of fairness and
reliability-even if the defendant would prefer to see
the evidence admitted." Crane, 476 U.S. at 690; see
Michigan v. Lucas, 500 U.S. 145, 151 (1991) (upholding
exclusion of defense evidence for failure to comply
with notice requirement).
The principle that a defendant may not require a
court to admit all relevant, exculpatory evidence runs
throughout the standard rules of evidence. For exam-
ple, the Federal Rules of Evidence authorize a court
to exclude relevant evidence whose probative value is
substantially outweighed by the danger of unfair
prejudice (Fed. R. Evid. 403); evidence of other crimes
or wrongs to prove character in order to show action
in conformity there with (Fed. R. Evid. 404(b)); evi-
dence covered by a rule of privilege (Fed. R. Evid.
501); expert testimony that is insufficiently reliable

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16

to amount to "scientific knowledge"  that would "as-
sist the trier of  fact" (Fed, R. Evid. 702); expert testi-
mony on an ultimate issue of a criminal defendant's
mental state constituting an element of the crime
(Fed. R. Evid. 704); and hearsay evidence unless cov-
ered by an exception (Fed. R. Evid. 802). Although
some of those rules permit case-by-case adjudication
of the admissibility of a particular item of evidence,
others operate in a categorical fashion to establish
per se rules of exclusion. 4
In  reviewing  the constitutionality  of an  evidentiary
rule of exclusion, this Court looks to whether the
rule is "arbitrary or disproportionate to the purposes
[it is] designed to serve"-that is, "whether the
interests served by [the] rule justify [its] limitation"
on the admission of evidence. Rock, 483 U.S. at 56
Lucas, 500 U.S. at 151 ("Restrictions on a criminal
defendant's right to confront adverse witnesses and to
present evidence `may not be arbitrary or dispropor-
tionate to the purposes they are designed to serve.'")
(quoting Rock, 483 U.S. at 56).  As the plurality noted
in Montana v. Egelhoff, 116 S. Ct. 2013 (1996), in
which the Court upheld Montana's prohibition of
evidence of voluntary intoxication on the issue of
whether the defendant possessed a requisite mental
state, "the introduction of relevant evidence can be
limited by the State for a `valid' reason." Id. at 2022
(plurality  opinion  of  Scalia, J.); see id. at 2028-2029

___________________(footnotes)

4 For example, the determination whether evidence should
be excluded under Rule 403 is typically made on an individual-
ized basis.  In contrast, Rule 404(b) is categorical in excluding
other act evidence to prove character in order to show action
in conformity therewith.  See also Jaffea v. Redmond, 116 S.
Ct. 1923, 1932 (1996) (rejecting case-by-case balancing test for
psychotherapist-patient privilege under Rule 501).

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17

(O'Connor, J., dissenting) (arguing that Montana
improperly barred intoxication evidence for the sole
purpose of increasing convictions, whereas "[t]he
purpose of the familiar evidentiary rules is * * * to
vindicate some other goal or value-e.g., to ensure the
reliability and competency of evidence"); id. at 2032
(Souter, J., dissenting) ("A State may typically
exclude even relevant and exculpatory evidence if it
presents a valid justification for doing so.").  Rule
707's per se exclusion of polygraph results and the
opinion of the polygraph examiner is a proportionate
means to serve valid interests, and thus does not
abridge the Sixth Amendment.

B. A Per Se Rule Excluding Polygraph Results
Serves Legitimate Interests In Promoting
Fairness And Reliable Fact-Finding

As the Commander-in-Chief, the President has the
authority to promulgate rules of evidence applicable
in courts-martial. U.S. Const. Art. II,  2; 10 U.S.C.
836. Rule 707 evenhandedly bars polygraph evidence
whether offered by the prosecution or the defense.
The drafters' commentary that accompanied Rule 707
enumerated several factors underlying adoption of the
Rule: (1) the scientific controversy over the
reliability of polygraph examinations; (2) the danger
that the opinion of the polygraph examiner will
intrude on the jury's function of assessing credibility;
(3) the danger that jurors will accord excessive
weight to the expert's testimony (4) the danger that
the focus of the trial will shift from the guilt or
innocence of the accused to the validity of the
polygraph examination and (5) the time-consuming
collateral litigation to which the admissibility of
polygraph evidence would give rise, with the atten-

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18

dant burden on the administration of military justice.
See Pet. App. 82a-83a.  In light of these valid, nonarbi-
trary factors, the military's rule excluding evidence
of the results of polygraph examinations  from courts-
martial does not violate the Sixth Amendment.
  
1. Legitimate doubt exists in the scientific
    community over the reliability of poly
    graphs

An important function of evidentiary rules is the
exclusion of certain categories of evidence that are
deemed insufficiently reliable, as demonstrated by the
hearsay rule, Fed. R. Evid. 802.  See Egelhoff,  116 S.
Ct. at 2017.  One need not take sides in the debate over
polygraph testing to recognize that the reliability of
such testing is widely questioned by scientists,
Congress, and the courts. 5

a. For more than a century, scientists have con-
ducted numerous studies in attempts to develop verifi
able  and  replicable proof that a subject's lie produces
measurable physiological responses. See generally J.
Matte,  Forensic Psychophysiology Using The Poly-
graph 11-101 (1996) (tracing history of lie detection
efforts);  S. Abrams,  The Complete Polygraph Hand-
book 2-8 (1989) (same).  Some studies attempt to
create laboratory conditions that mimic experiences

___________________(footnotes)                

5  In part for that reason, in federal criminal trials, Depart-
ment of Justice policy "opposes all attempts by defense counsel
to admit polygraph  evidence  or  to  have  an  examiner   appointed
by the court to conduct a polygraph test * * * [and admon-
ishes] [g]overnment attorneys * * * from seeking the admis-
sion  of  favorable examinations which may have been conducted
during the investigatory stage" of the case.  III(a) U.S. Depart-
ment of Justice, United States Attorneys' Manual  9-13.310
(1988) (Department  Policy Toward Polygraph Use).

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19

of real subjects; others compare information obtained
in real cases to verify findings of deceptiveness. The
Office of Technology Assessment (OTA) evaluated all
of the available studies in a comprehensive monograph
published in 1983. See U.S. Congress, Office of Tech-
nology Assessment, Scientific Validity of  Polygraph
Testing: A Research Review and Evaluation-A
Technical Memorandum (OTA-TM-H-15, Nov. 1983)
(OTA Study).  The OTA Study concluded that "no
overall measure of single, simple judgment of poly-
graph testing validity can be established based on
available scientific evidence":

There are two major reasons why an overall
measure of validity is not possible. First, the
polygraph test is, in reality, a very complex
process that is much more than the instrument.
Although the instrument is essentially the same
for all applications, the types of individuals tested,
training of the examiner, purpose of the test, and
types of questions asked, among other factors, can
differ substantially.  A polygraph test requires
that the examiner infer deception or truthfulness
based on a comparison of the person's physiologi-
cal responses to various questions.  For example,
there are differences between the testing pro-
cedures used in criminal investigations and those
used in personnel security screening. Second, the
research on polygraph validity varies widely in
terms of not only results, but also in the quality of
research design and methodology.  Thus, conclu-
sions about scientific validity can be made only in
the context of specific applications and even then
must be tempered by the limitations of available
research evidence.

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20

Id. at 4. In the years since publication of the OTA
study, numerous additional studies of polygraphs have
been performed. The validity of such studies has
sparked considerable debate.
The editors of the most recent treatise on scientific
evidence observe that "[scientific opinion about the
validity of polygraph techniques is extremely polar-
ized," and accordingly present the arguments pro and
con without attempting to resolve definitively
whether polygraph testing provides a valid means of
ascertaining  the credibility of a subject in the various
contexts in which such examinations are adminis-
tered. 1 D. Faigman et al., Modern Scientific Evi-
dence 14-1.4 at 565 n.* (1997). 6  See  also  1 P. Gian-
nelli & E. Imwinkelried,  Scientific Evidence  8-2(C),
at 225 (2d ed. 1993) ("The validity of polygraph testing
in criminal investigations remains controversial .");
see also id. at 227 ("A number of authorities have
questioned the validity of polygraph testing.").  Even
strong proponents of polygraph testing only venture
to say that " the polygraph is a useful diagnostic tool
for assessing truthfulness," while acknowledging
that many applications of  polygraph tests are "unde-
sirable" and "objectionable." D. Raskin et al., "The
Scientific Status of Research on Polygraph Tech-
niques:  The Case for Polygraph Tests," in 1 Faig-
man,  supra,  14-2.2.3 to 14-2.3, at 581-582. Two crit -
ics of the accuracy of polygraphs, however, have

___________________(footnotes)
                                     
6 Compare D. Raskin et al., "The Scientific Status of
Research on Polygraph Techniques: The Case for Polygraph
Tests,"  14-2.0, at  665-582, in 1 Modern  Scientific Euidence (D.
Faigman et  al. eds., 1997) with W. Iacono and D. Lykken, "The
Scientific Status of Research on Polygraph Techniques: The
Case Against Polygraph Tests," in ibid., 14-3.0, at 582-618.

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21

maintained that the validity of the control-question
testing method of polygraph examinations-the ap-
proach preferred by polygraph proponents-"is little
better than could be obtained by the toss of a coin."
W. Iacono & D. Lykken, "The Scientific Status of Re-
search on Polygraph Techniques: The Case Against
Polygraph Tests: in 1 Faigman, supra  14-5.3, at
629. That disagreement confirms the continuing va-
lidity of the view of the OTA, whose 1983 report
concluded that  "[o]verall, the cumulative research
evidence suggests that when used in criminal inves-
tigations, the polygraph test detects deception better
than chance, but with error rates that could be
considered  significant."  OTA  Study,  supra, at 5. 7

___________________(footnotes)

7 There is no doubt that the polygraph can accurately
measure certain physiological responses to accusatory question-
ing and that a correlation appears to exist between a fear of
detection and a subject's physiological response.  Critics argue,
however, that these responses have not been shown to be differ-
ent from physiological responses caused by other emotions:

[T]here is no reason to believe that lying produces
distinctive physiological changes that characterize it and
only it. . . . [T]here is no set of responses-physiological or
otherwise-that humans emit only when lying or that they
produce only when telling the truth. . . . No doubt when
we tell a lie many of us experience an inner turmoil, but
we experience a similar turmoil when we are falsely
accused of a crime, when we are anxious about having to
defend ourselves against accusations, when we are ques-
tioned about sensitive topics-and, for that matter, when
we are elated or otherwise emotionally stirred.

Giannelli & Imwinkelried, supra, at 216-217 (quoting B.
Kleinmuntz  & J. Szucko, On the Fallibility of Lie Detection, 17
Law & Soc'y Rev. 85, 87 (1982)). See also D. Lykken, The Lie
Detector  and  the  Law, 8  Crim. Def. 19, 21 (1981) ("But  people
do not all react in the same way when they are lying and, more

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22

b. Congress has reached similar conclusions about
the accuracy of polygraphs as a means of detecting
deceit.  After extensive hearings in 1965, the Commit-
tee on Governmental Operations of the House of
Representatives concluded:

There is no "lie detector." The polygraph ma-
chine is not a "lie detector", nor does the operator
who interprets the graphs 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
physical and psychological factors make it pos-
sible for an individual to "beat" the polygraph
without detection by the machine or its operator.
H.R. Rep. No. 198, 89th Cong., 1st Sess. 13 (1965).
Following further hearings and study, the same
conclusions were reached in 1976.  The Use of Poly-
graphs and Similar Devices by Federal Agencies:
Hearings of H.R. 795 Before the House Comm. on
Government  Operations,  94th  Cong., 2d Sess. (1976).
And  in  1988, as a result of continuing doubts about the
usefulness and accuracy of polygraphs as a means of
detecting deceit, Congress restricted the use of
polygraphs in employment decisions.  See Employee
Polygraph Protection Act of 1988, 29 U.S.C.  2001 et
seq.

___________________(footnotes)

important, any reaction that you might display when answer-
ing deceptively you might also display another time, when you
are being truthful"); U.S. Department of Defense, The Accu -
racy and Utility of Polygraph Testing 3 (1984) (noting limita-
tions in research conducted on polygraphs but stating that "the
research produces results significantly above chance").

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23

c. Courts have noted the highly subjective nature
of polygraph testing.  Because a polygraph examina-
tion tests a person's physiological reactions to
questions posed at a particular time and place, the
test is not replicable.  Influences as varied as the
emotional state of the subject on the day of the test,
the room in which the polygraph is administered, the
amount of sleep the subject has had the night before,
and the number of cups of coffee the subject has
consumed before the test may alter the physiological
responses to questions.  Thus, a person may produce a
different polygraph chart in response to the same
questions asked on a different day in a different
location. 8
Moreover, the polygrapher conducting the examina-
tion injects a high degree of subjectivity into the
examination.  Although both the American Polygraph
Association and the American Association of  Police
Polygraphists publish standards for the use of poly-
graphs, neither organization "has the authority to
compel members to comply with them," and "an esti-
mated 2,000 other polygraph examiners * * * do not

___________________(footnotes)

8 Courts critical of polygraph testing have also pointed to
the multiple variables that may influence the results of a
polygraph test, including the physical and mental condition of
the subject, the extent of the subject's nervousness, the sub-
ject's attitude toward the examiner, the subject's use of alcohol
or drugs, distractions in the examination setting, the extent of
a guilty subject's subjective belief in his own innocence, the
competence and integrity of the examiner, the phrasing of the
examiner's questions, and the appropriateness of the control
questions.  See,  e.g.,  Brown  v. Dewey, 783 F.2d 1389, 1396 (9th
Cir. 1986); United States v. Alexander, 526 F.2d 161, 165 (8th
Cir. 1975); People v. Monigan, 390 N.E.2d 562, 569 (Ill.. App. Ct.
1979).

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24

belong to either society."  C. Murphy  & J. Murphy,
" Polygraph Admissibility,"  in 10 National Center for
Prosecution of Child Abuse Update 1 (1997).  Accord
ingly, " [d]ue to the subjective nature of the polygraph
(it is not uncommon for  polygraphers to reach differ-
ent conclusions after reviewing the same test re-
sults), the potential for abuse by the polygrapher be-
ing biased either for or against the suspect ('assisted'
polygraph examinations), and the various levels of ex-
pertise of the polygraphers, the need for enforceable
standards is of  paramount  importance."  Ibid. (foot-
notes omitted).  See also People v. Monigan, 390 N.E.
2d 562, 569 (Ill. App. Ct. 1979) (subjectivity of inter-
preting test results);  State  v.  Frazier,  252  S.E.2d 39,
48-49  (W. Va. 1979) (same); United Slates v. Alexan-
der, 526 F'.2d 161, 164 n.6 (8th Cir, 1975) (general lack
of  training of  polygraphers and the absence of ade-
quate professional standards and qualifications);
People v. Anderson, 637 P.2d 354,360 (Colo. 1981) (en
bane) (same). 9
There is also evidence that a highly motivated
subject (such as a defendant) may employ countermea-
sures to obscure an accurate reading of physiological

___________________(footnotes)                                   

9 As Giannelli and Imwinkelried note

Even the proponents of the poIygraph technique agree
that the examiner, and not the machine, is the crucial  fac-
tor in arriving at reliable results.  The examiner's exper-
tise is critical in (1) determining the suitability of the
subject for testing, (2) formulating proper test questions,
(3) establishing the necessary rapport with the subject, (4)
detecting attempts to mask or create chart reactions, or
other countermeasures, (5) stimulating the subject to
react, and (6) interpreting the charts.
Scientific Evidence,  supra,   8-2(A), at 218.

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25

responses. 10 Such countermeasures include hypnosis
and biofeedback, ingestion of drugs, and subtle, sur-
reptitious muscular movements during the examina-
tion.  And although polygraphers can expect a subject
to employ countermeasures,  " [t]here is no good evi-
dence as to how well these countermeasures work
under real life conditions and no evidence at all con-
cerning how frequently such countermeasures are
successfully employed in real life by sophisticated
subjects."  Iacono & Lykken, supra, 314-3.2.5, at 595-
596.  A scientific technique whose reliability and help-
fulness are so widely questioned by scientists, leg-
islators, and courts may surely be made the subject of
a categorical exclusionary rule.  As this Court re-
cently noted, "when a legislature undertakes to act
in areas fraught with medical and scientific uncer-
tainties, legislative options must be especially broad
and courts should be cautious not to rewrite legisla-
tion.'" Kansas v. Hendricks, Nos. 95-1649 & 95-9075
(June 23, 1997), slip  op. 12  n.3 (quoting Jones  v. United
States, 463 U.S. 354, 370 (1983)); id. at 3 (Breyer, J.,
dissenting) ("The Constitution permits a State to

___________________(footnotes) 
                                            
10 Information on countermeasures is readily available. A
search on the Internet by the Federal Bureau of Investigation
Polygraph Unit produced some 3,000 hits.  And many pub-
lished sources on polygraphs contain discussions of countermea-
sures.  See, e.g., J. Matte, Forensic Psychophysiology Using the
Polygraph 531-648 (1996); S. Abrams, The Complete Polygraph
Handbook 185-186 (1989); V.  Kalashnikov,  Beat  the Box: The
Insider's Guide to Outwitting the Lie Detector 9-13 (1986).
Thus, a highly motivated person who felt the need to attempt
to trick the polygrapher could easily find information for that
purpose.

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26

follow  one  reasonable professional view, while reject-
ing another.").

2. The admission of polygraph evidence
intrudes on functions performed by the
trier of fact

Even assuming that polygraph testing had a high
degree of reliability when properly administered, the
President may reasonably be concerned about the
potential encroachment of polygraph evidence on the
proper functioning of the trier of fact.  First, juries
may be unduly swayed by the polygraph expert's
opinion.  As the Eighth Circuit explained in Alexan -
der, 526 F.2d at 168:

When polygraph evidence is offered in evidence at
trial, it is likely to be shrouded with an aura of
near infallibility, akin to the ancient oracle of
Delphi.  During the course of laying the eviden-
tiary foundation at trial, the polygraphist will
present his own assessment of the test's reliabil-
ity which will generally be well in excess of  90
percent.  He will also present physical evidence,
in the form of the polygram, to enable him to
advert the jury's attention to various recorded
physical responses which tend to support his
conclusion Based upon the presentment of this
particular form of scientific evidence, present-day
jurors, despite their sophistication and increased
educational levels and intellectual capacities, are
still likely to give significant, if not conclusive,
weight to a polygraphist's opinion as to whether
the defendant is being truthful or deceitful in his
response to a question bearing on a dispositive
issue in a criminal case.

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27

See also  Barefoot  v. Estelle, 463 U.S. 880, 926 (1983)
(Blackmun,  J., dissenting)  (quoting P. Giannelli,  The
Admissibility of Novel Scientific Evidence: Frye v.
United States, A Half-Century Later, 80 Colum. L.
Rev. 1197, 1237 (1980) ("The major danger of scientific
evidence is its potential to mislead the jury; an aura of
scientific infallibility may shroud the evidence and
thus  lead  the jury to accept it without critical scru-
tiny.'')).  Even if the accuracy of polygraph testing
approaches the 90 percent level that polygraph propo-
nents claim: the danger that jurors will view the
polygraph "as an absolute indicator of truth creates
an overwhelming potential for prejudice when inaccu-
rate results are introduced." Brown v. Darcy, 783
F.2d 1389, 1396 (9th Cir. 1986).  The prospect that
relevant evidence may "weigh too much with the jury
and * * * so overpersuade them" is a legitimate
basis for a categorical rule of exclusion.  Old Chief v.
United States, 117 S. Ct. 644, 650 (1997) (quoting
Michelson v. United States, 335 U.S. 469, 476 (1948)
(discussing propensity evidence)).
Second, even if polygraph evidence did not have a
potentially pervasive influence on the jury, the admis-
sion of such evidence would nonetheless tend to in-
fringe on the jury's role of determining witness
credibility. " [T]ruth is more likely to be arrived at by
hearing the testimony of all persons of competent
understanding who may seem to have knowledge of
the facts involved in a case, leaving the credit and

___________________(footnotes)

11 See, e.g., D. Raskin, Methodological issues in estimating
polygraph accuracy in field applications, in 19 Canad. J.
Behav.  Sci./Rev. Canad. Sci. Comp. 389, 389 (1987).  Raskin's
claim has been sharply criticized. See, e.g., Iacono  and  Lykken,
in 1 Faigman, supra, at 610.

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28

weight  of  such  testimony  to be determined  by the jury
or by the court." Rock, 483 U.S. at  54 (quoting  Wash-
ington v. Texas, 388 U.S. at 22 (quoting Rosen v.
United States, 245 U.S. 467, 471 (1918))).  A poly-
grapher has  no such "knowledge of the facts involved
in a case,"  but rather  can only  purport  to  speak  to the
credibility of the subject at one particular examina-
tion.  Since time immemorial our system has entrusted
credibility determinations to the judgment of juries,
which assess credibility  in reliance on  their common
sense evaluations of demeanor, bias, and the plausibil-
ity of the narrative.  See, e.g., State v. Porter, No. SC
15363, 1997 WL 265202; at 27 (Com. May  20,  1997)
("The jury has traditionally been the sole arbiter of
witness  credibility.");  Perkins v.  State, 902 S.W.2d 38,
94 (Tex. Ct.. App. 1995) ("Even though serious doubts
remain about the reliability of polygraph evidence, its
unreliability is not the primary reason for its exclu-
sion under our holding.  Instead, we find that such
evidence should be excluded because it impermissible
decides the issues of credibility and guilt for the trier
of fact and supplants the jury's function.") (footnote
omitted); State v, Beachman, 616 P.2d 337, 339 (Mont.
1980) ("It is distinctly the jury's province to deter-
mine whether a witness is being truthful.").  An ex-
pert who opinions based on a polygraph examination
that a testifying defendant was truthful at the time of
the test duplicates the jury's credibility-assessing
function.  It is entirely legitimate for an evidentiary
system to preserve for the factfinder its unique
province of weighing credibility based on first-hand
observation of witnesses and of making the ultimate
determination of guilt or innocence. Cf. Fed. R. Evid.
608 (limiting opinion evidence to support or attack

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29

credibility); Fed. R. Evid. 704(b) ("No expert witness
testifying with respect to the mental state or con-
dition of a defendant in a criminal case may state an
opinion or inference as to whether the defendant did
or did not have the mental state or condition
constituting an element of the crime charged or of a
defense thereto.  Such ultimate issues are matters for
the trier of fact alone.") .
That is especially true in the case of polygraph
evidence.  Unlike an abstruse area of science that
ordinarily would be beyond the jury's ken unless
explained  by an expert witness, "[a] determination of
whether a witness is telling the truth is well within
the province of all jurors' understanding and abili-
ties." Porter, 1997 WL 265202, at *27.  See also D.
Carroll, " How  accurate  is polygraph lie detection" in
The Polygraph Test 28 (A. Gale ed. 1988), ("an ob-
server,  regarding  the [polygraph  examinee's]  general
behaviour * * * does just as well as an experienced
polygraph examiner").  As one federal court of appeals
succinctly put it, "the jury is the lie detector."
United  States v. Barnard,  490 F.2d 907, 912 (9th Cir.
1973), cert. denied, 416 U.S. 959 (1974).

3. A per se prohibition on polygraph evidence
serves the legitimate interest of avoiding
unnecessary collateral litigation

Because of the many elements of subjectivity
associated with polygraph and the lack of widespread
acceptance of it  in the  scientific community, attempts
to admit results of a polygraph examination will pro-
duce lengthy collateral litigation regarding the valid-
ity of the technique in general and the reliability of
test results in particular cases.  In each case, the
party against whom the test results are introduced

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30       

can be expected to challenge the reliability of the
results first before the court in an effort to prevent
their admission and then, if they are admitted, before
the jury.  Because the validity of any particular poly-
graph test is dependent on a large number of
variables-among them, the mental and physical
suitability  of  the subject of the test, the competence
and integrity of the examiner, the phrasing of the
relevant questions, and the appropriateness of the
control questions-the  litigant  has  numerous  poten-
tial avenues for attacking a test's reliability.  The
result in most cases is bound to be a time-consuming
battle of experts who might differ not only on the
validity of polygraph in general, but also on the
reliability of the particular polygraph test under
consideration and the proper interpretation of the
test results.
One state court has concluded that "the administra-
tion of justice simply cannot, and should not, tolerate
the incredible burdens involved in the process of
ensuring that a polygraph examination has been
properly administered.  If a trial court were to ade-
quately police the reliability of [polygraph] results,
the time required to explore the innumerable factors
which could affect the accuracy of a particular test
would be incalculable."  State v. Grier,  300  S.E.2d 351,
359 (N.C. 1983).  Accord Brown, 783 F.2d at 1397;
United States v. Urquidez, 356  F. Supp. 1363, 1367
(C.D. Cal. 1973);  State  v.  Dean,  307  N.W.2d 628, 650
(Wis. 1981); People  v.  Barbara,  255  N.W.2d   171, 196
(Mich. 1977) protracted battles between "experts"
over the methodology, meaning, and appropriateness
of polygraph tests can occur even in jurisdictions
with extensive experience in litigating over the
admissibility of polygraphs.  See Commonwealth v.

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31

Mendes, 547 N.E.2d 35,36-37 (Mass. 1989) (evidentiary
hearing on polygraph results and motion for new
examinations took four days of court time even
though polygraph evidence had been permitted in
state courts for fifteen years).

  4. Widespread judicial support for a prohibi-
      tion on polygraph admissibility further
      supports the reasonableness of a per se
      rule

Uncertainty about the reliability of polygraph
testing is reflected in the refusal of most courts to
admit polygraph evidence. In promulgating Rule 707,
it was not arbitrary of the President to take into
account the overwhelming views of federal and state
civilian courts on whether polygraph results should
be admissible into evidence.  The general rule in most
States is that the results of polygraph examinations
are inadmissible in criminal trials, primarily because
of the lack of adequate scientific support for their
reliability. 12  By and large, these courts adhere to the

___________________(footnotes)

12 See, e.g., Porter, 1997 WL 265202, at  2;  In re Odell, 672
A.2d 457, 459 (R.I. 1996) (per curiam); People v. Sanchez, 662
N.E.2d 1199, 1210 (Ill. 1996), cert. denied, 117 S. Ct. 392 (1996);
Contee v. United Slates, 667 A.2d 103, 104 n.4 (D.C. 1995); Com-
monwealth  v. Sneeringer, 668 A.2d 1167, 1174 (Pa. Super. Ct.
1995); State v. Beard, 461 S.E.2d 486, 492 (W. Va. 1995); State
v. Cambell, 904 S.W.2d 608, 614-615 (Term. Crim. App. 1995);
Petition of Grimm, 635 A.2d 456, 464 (N.H. 1993); State v.
Patterson, 651 A.2d 362, 366 (Me.1994); Conner v. State, 632
So.2d 1239, 1257 (Miss. 1993), cert. denied, 513 U.S. 927 (1994);
People v. Angelo,  618 N.Y.S.2d  77, 78 (App. Div. 1994), aff'd,
666 N.E.2d 1333 (N.Y. 1996); State v. Walker, 493 N.W.2d 329,
335 (Neb. 1992); State v. Hawkins, 604 A.2d 489, 492 (Md.
1992); Morton v. Commonwealth, 817 S.W.2d 218, 222 (Ky.
1991); State v. Staat, 811 P.2d 1261, 1262 (Mont. 1991);
Tenard  v. State, 802 S.W.2d 678, 683 (Tex. Grim. App. 1990)

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32

general rule even where  the  parties consent  to a dmis-
sion of  polygraph  evidence,  holding  that "the reliabil-
ity of the polygraph"  is insufficient "to permit uncon-
ditional admission of the evidence." Dean, 307 N.W.2d
at 653. 13
In the federal arena, neither the United States
Code nor the Federal Rules of Evidence has a specific
provision concerning the admissibility of polygraph
results.  Under the "general acceptance" test for sci-
entific testimony that prevailed under Frye v. United
States,  293 F. 1013 (D.C. Cir. 1923), however, the fed-
eral appellate courts traditionally upheld  the exclu-
sion of  polygraph evidence on the ground that the sci-
entific theory of polygraph testing had not achieved
general acceptance.14  In Daubert v. Merrell Dow
            
___________________(footnotes)

(en bane) (per curiam), cert. denied, 501 U.S. 1259 (1991);
State v. Harnisk, 560 A.2d 5 (Me. 1989); Haakanson  v. State,
760 P.2d 1030, 1034 (Alaska Ct. App, 1988); Healy v. Healy, 397
N.W.2d 71, 74 n.1 (N.D. 1986); Johnson v. State, 495 A.2d 1, 14
(Md. 1985), cert. denied, 474 U.S. 1093 (1986); State v,
Anderson, 379 N.W.2d 70, 79 (Minn. 1985), cert. denied, 476
U.S. 1141 (1986); State v. Dornbusch, 384 N.W.2d 68.2, 686
(S.D. 1986);  State  v. Copeland, 300 S.E.2d 63, 69 (S.C. 1982),
cert. denied, 460 U.S. 1103 (1983); People v. Anderson, 637 P.2d
354, 358 (Colo. 1981) (en bane); State v. Biddle, 599 S.W.2d 182,
185 (Me. 1980); State v. Catanese, 368 So.2d 975,981 (La. 1979);
State v. French, 403 Add 424, 426 (N.H.), cert. denied, 444
U.S. 954 (1979); State v. 239 N.W.2d 495, 497 (Neb.
1976).

13  See  also,  e.g., State v. Okumura, 894 P.2d 80, 94 (Haw.
1995); Mendes,  547  N.E.2d  at  41;  Robinson v. Commonwealth,
341  S.E.2d  159, 167 (Va. 1986);  People v. Anderson, 637  P.2d
354, 362 (Colo. 1981) (en bane); State v. Biddle, 599 S.W.2d 182,
187 (Me. 1980) (en bane); Pulakis v. State, 476 P.2d 474, 479
(Alaska 1970).

14 United States v. A&S Council Oil Co., 947 F.2d 1128,
1133-1134 (4th Cir. 1991); Bennett v. City of Grand Prairie, 883

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33

Pharmaceuticals, 509 U.S. 579 (1993), the Court
abandoned the Frye test and held that, under Federal
Rule of Evidence 702, expert testimony may not be
excluded solely because it is based on a scientific
theory that has not yet achieved general acceptance;
rather, the trial court must determine "whether the
expert is proposing to testify to (1) scientific knowl-
edge that (2) will assist the trier of  fact."  509 U.S. at
592. 15  In the wake of  Daubert, several courts of ap-
peals  have  retreated  from the categorical exclusion of
polygraph evidence and have left the matter to trial
courts. 16  No court of appeals, however, has concluded
that polygraph testing is scientifically valid or that

___________________(footnotes)

F.2d 400, 405  &  n.7 (5th Cir. 1989); United   States  v. Miller, 874
F.2d 1255, 1261 (9th Cir. 1989); United  States v. Soundingsides,
820 F.2d 1232, 1241 (l0th Cir. 1987); United States v. Murray,
784 F.2d 188, 188 (6th Cir. 1986);  Brown, 783 F.2d 1389 at 1394
1395. But see United  States  v. Piccinonna,  885  F.2d  1529, 1535
(llth Cir. 1989) (en bane) (polygraph evidence not inadmissible
per se); Anderson v. United States, 788 F.2d 517, 519 n.1 (8th
Cir. 1986) (polygraph evidence admissible by stipulation).

15 The Daubert Court provided a non-exclusive list of
several factors that the trial court should consider in determin-
ing whether an expert's testimony rests on scientific knowl-
edge whether the theory or technique can be and has been
tested, whether it has been subjected to peer review, whether
the technique has a high known or potential rate of error, and
whether the theory has attained general acceptance within the
scientific community. 509 U.S. at 593-594.

16 See United  States v. Cordoba, 104 F.3d 225, 227-228 "(9th
Cir. 1997); United  States v. Williams, 95 F.3d 723,729 (8th Cir.
1996), cert. denied, 117 S. Ct. 750 (1997); United States v.
Kwong, 69  F.3d 663,667-669 (2d Cir. 1995), cert. denied, 116 S.
Ct. 1343 (1996); United  States  v. Sherlin,  67  F.3d 1208, 1216-
1217 (6th Cir. 1995), cert. denied, 116 S. Ct. 795 (1996); United
States  v. Posado, 57  F.3d 428,434 (5th Cir. 1995).

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34

the results of a polygraph test were reliable enough
to be admitted into evidence. 17

C. The Court Of Appeals Erred In Its Analysis
Of The Per Se Bar On Polygraph Evidence

1. In concluding that Rule 707 violates the Sixth
Amendment right to present a defense, the court of
appeals relied on this Court's statement in Rock v.
Arkansas, 483 U.S. at 61, that a `legitimate interest
in barring unreliable evidence does not extend to per
se exclusions that may be reliable in an individual
case." Pet. App. 8a.  The court of appeals then found
no "significant constitutional difference" between the

___________________(footnotes)
               
17 In a variety of out-of-court settings, the United States
government does conduct and make limited use of the results
of polygraph examinations.  For example, the Department of
Defense views polygraphs as a tool that enhances the interview
and interrogation process, especially in providing essential
information to resolve national security issues and criminal
investigations.  Similarly, the Federal Bureau of  Investigation
conducts polygraphs within the context of criminal investiga-
tions, but its general policy cautions that " [t]he polygraph is to
be used selectively as an investigative aid and results consid-
ered within the context of a complete investigation."  FBI,
Manual of Investigative Operations and Guidelines 13-22.2(2)
(1987).  The investigative benefits  of the polygraph have been
described as follows:
  
In the hands of a competent, well-trained and ethical
examiner the polygraph can be a highly effective inves-
tigative  tool.  It can identify individuals who are withhold-
ing or distorting vital information, be one factor to elimi-
nate possible suspects and even serve as a deterrent.
Equally important, the psychological advantage created
during the polygraph examination and interview process
frequently results in confessions and admissions of guilt
being obtained.

Murphy and Murphy, supra, at 2.

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35

Court's holding that a State may not exclude a
defendant's hypnotically refreshed testimony, and the
issue presented here, which "concerns exclusion of
evidence supporting the truthfulness of a defendant's
testimony."  Id.  at  9a.  If the court's interpretation of
Rock were accepted, many categorical rules of
exclusion found in the standard rules of evidence
would be suspect.  In fact, the court's reliance on
Rock was misplaced.
Rock  involved  the  defendant's  constitutional  right
to testify and provide the jury with the defendant's
own version of events.  A bar of such evidence would
seriously restrict the defendant's right to present a
defense and would deprive the factfinder of highly
relevant and probative information.  At the same time,
while hypnosis-induced recollections of the defendant
may have an element of unreliability, the Court noted
that the time-honored method for exposing weak-
nesses in testimony is cross-examination, 483 U.S. at
61, which may be coupled with expert testimony and
cautionary instructions, ibid.  In that setting, the
Court held that a wholesale exclusion of the defen-
dant's own testimony was not a proportionate means
to respond to dangers to recollection posed by
hypnosis.
In contrast to Rock, a defendant whose trial is gov-
erned by Rule 707 remains free to testify to his
version of events.  Rule 707 does not deprive  the  fact-
finder of the substance of the defendant's testimony;
rather, it precludes only collateral polygraph
evidence-to bolster or attack it.  The validity of Rule
707 thus depends, not on a comparison to the result in
Rock, but on an analysis of the interests underlying
the per se prohibition on polygraph evidence.  As we
have discussed, the rule rationally  serves  valid  inter-

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36

ests in the fair and accurate adjudication of the ulti-
mate issue. See pp. 18-33, supra.  The court of appeals
erred  by  failing  to  consider those interests.
2.  The court of appeals also appeared to find Rule
707 arbitrary because other expert testimony is po-
tentially admissible under Military Rule of Evidence
702, which permits a case-by-case inquiry pursuant to
Daubert v. Merrell Dow Pharmaceuticals, Inc., su -
pra.  The court observed that under Daubert, "the
trial judge [acts as] a gatekeeper, trusted with re-
sponsibility to decide if novel scientific evidence was
sufficiently relevant and reliable to warrant admis-
sion." Pet. App. 9a.  Daubert, however, was not de-
cided under the Sixth Amendment, and it does not
preclude the adoption of otherwise-reasonable per se
rules to govern particular forms of expert testimony.
Indeed, even under Daubert, courts might conclude
that an accumulated body of  knowledge and experi-
ence with a particular category of "science" justifies
a categorical determination that the evidence is not
admissible under the rubric of  "scientific knowledge."
In any event, polygraph evidence has sufficient
distinctive features that it is not arbitrary to con-
clude that, unlike other forms of scientific evidence,
polygraph results should be categorically barred from
evidence.  Although an element of judgment is usual] y
present  with  respect  to other scientific evidence that
is routinely admitted at trials, such as analyses of
ballistics, fingerprints, handwriting, voiceprints, and
blood, polygraph testing, "albeit based on a scientific
theory, remains an art with unusual responsibility
placed on the examiner." United States v. Wilson, 361
F. Supp. 510, 512 (D. Md. 1973). More importantly,
polygraph evidence is different from other scientific
evidence in that it effectively consists of "an opinion

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37

regarding the ultimate issue before the jury, not just
one issue in dispute." Brown, 783 F.2d at 1396. As
the court explained in United States v. Alexander,
526 F.2d at 169, " [t]he role of the jury after a poly-
graphist has testified that the results of a polygraph
examination show that the defendant's denial of
participation in the crime was fabricated is much
more circumscribed [than after the testimony of
other scientific experts].  If the [polygraph] testi-
mony is believed by the jury, a guilty verdict is
usually mandated."  The opposite would be true when
a defendant supports his credibility by a polygraph
examination.  Finally, other types of scientific evi-
dence are often indispensable to the resolution of
particular factual issues.  Polygraph evidence, on the
other hand, is never indispensable in light of the
traditional, time-tested tools available to juries for
making  credibility determinations.  Daubert thus
does not control this Court's analysis of the constitu-
tional validity of the per se exclusion of polygraph
evidence.
Notably, before Daubert, when the courts generally
applied a per se bar against polygraph evidence under
the Frye test, federal and state courts found no Sixth
Amendment obstacle to such a rule.  See, e.g., Bashor
v. Risley, 730 F.2d 1228, 1238 (9th Cir.), cert. denied,
469 U.S. 838 (1984); United States v. Gordon, 688  F.2d
42,44-45 (8th Cir. 1982); Jackson v. Garrison, 677 F.2d
371, 373  (4th Cir.), cert. denied, 454 U.S. 1036 (1981);
United States  v. Glover, 596 F.2d 857, 867 (9th Cir.),
cert. denied, 444 U.S. 857, 860 (1979); Connor v.
Auger, 595 F.2d 407, 411 (8th Cir.), cert. denied, 444
U.S. 851 (1979); United States v. Lech, 895 F. Supp.
582,586 (S.D.N.Y. 1995); People v. Price, 821 P.2d 610,
663 (Cal. 1991), cert. denied, 506 U.S. 851 (1992);

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38  

People  v. Williams, 333 N.W.2d 577, 580 (Mich. Ct.
App. 1983);  State  v. Conner,  241 N.W.2d 447, 457-458
(Iowa 1976).18  The fact remains, even after Daubert,
that polygraph evidence has characteristics that
,justify specialized treatment under the rules of evi-
dence.  It is not arbitrary for appropriate authorities
to conclude that the costs and dangers of admitting
the evidence outweigh any limited contribution that
polygraph evidence might make to the fair disposition
of criminal trials. 19

___________________(footnotes)

18 But see United States v. Williams, 39 M.J. 556, 558
(A.C.M.R. 1994) ("We held under the facts of this case that
appellant's Fifth Amendment right to a fair trial by court-
martial, combined with his Sixth Amendment right to produce
favorable witnesses on his behalf, affords him the opportunity
to be heard on these foundational matters [regarding polygraph
reliability], and allows for the possibility of admitting poly-
graph evidence."), decision set aside, 43 M.J. 348, 354 (C.M.A.
1995) (holding polygraph inadmissible in this case because
defendant did not take the stand), cert. denied, 116 S. Ct. 925
(1996).

19 Nor is Rule 707 an irrational ban on a category of
evidence akin to those invalidated in Washington v. Texas, w
U.S. 14 (1987), or Crane v. Kentucky, 476 U.S. 683 (1986). In
Washington v. Texas, the Court held that a State could not
prohibit a defendant from introducing the testimony of a co-
defendant in order to prevent perjury, because it was "arbi-
trary" to disqualify an entire category of defense witnesses on
the presumption that they were "unworthy of belief." 388 U.S.
at 22.  In Crane v. Kentucky, the Court held that a State could
not bar evidence of the circumstances of a confession on the
theory that the evidence had no relevance once the confession
had been ruled voluntary.  The Court explained that the evi-
dence may remain highly relevant to the credibility of the
confession, and that there was no "rational justification for the
wholesale exclusion of this body of potentially exculpatory
evidence," 476 U.S. at 691.  As discussed in the text, there is a

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39

II. THE SIXTH AMENDMENT DOES NOT COM-
     PEL ADMISSIBILITY OF POLYGRAPH RE-
     SULTS IN COURTS-MARTIAL

The constitutional theory embraced by the court of
appeals not only conflicts with general principles of
Sixth Amendment law applicable in state and federal
civilian courts, it is particularly unwarranted and
onerous in the military context.  Thus, even if the
court of appeals' application of the Sixth Amendment
principles in the civilian context had merit, it would
not justify invalidating a military rule of evidence,
because respondent cannot meet his burden of demon-
strating that a servicemember's need to introduce
polygraph evidence in courts-martial overcomes the
determination by the President to promulgate a per
se rule prohibiting such evidence.
  
A.    Procedural Rules Adopted For Military
        Courts-Martial Are Entitled To Deference
        By This court

The Constitution grants Congress the power " [t]o
make rules for the Government and Regulation of the
land and naval Forces."  Art, I, 8, Cl. 14.  This Court
has recognized that this power "creates an exception
to the normal method of trial in civilian courts as
provided by the Constitution and permits Congress to
authorize military trial of members of the armed
services without all the safeguards given an accused
by Article III and the Bill of Rights."  Reid v. Covert,
354 U.S. 1, 19 (1957) (plurality opinion).
It is well established that certain Fifth and Sixth
Amendment rights enjoyed by civilians  are  not appli-
rational justification for treating polygraph evidence in a
distinctive fashion.

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40

cable  to  defendants  in military proceedings.   See, e.g.,
O'Callahan  v.  Parker, 395 U.S. 258, 261  (1969)  ('[The
Fifth Amendment specifically exempts cases arising
in the land or naval forces,  or in the Militia, when in
actual service in time of War or public danger from
the requirement of prosecution by indictment and,
inferentially,  from the right to trial by jury (empha-
sis supplied)."), overruled  on  other grounds,  Solorio  v.
United  States, 483 U.S. 435, 436 (1987); EX parte
Quirin, 317 U.S. 1, 40 (1942) (no right to Fifth or
Sixth Amendment trial by jury in trials by military
commission).  Although persons tried by courts-
martial cannot be denied the Fifth Amendment's
guarantee of due process of law, this Court has
determined that the tests for applying that right
differ and that limitations on due process generally
exist in the military context.  See Weiss v. United
States, 510 U.S. 163, 176-177 (1994); Rostker v.
Goldberg, 453 U.S. 57,67 (1981).
With respect to military trials, this Court has
sanctioned the military's use of  evidentiary and pro-
cedural rules that differ from those that prevail in
civilian courts.  See O'Callahan v. Parker 395 U.S.
258 (1969)  ("Substantially  different  rules of evidence
and procedure apply in military trials."); id. at n.4
("For example, in a court-martial, the access of the
defense to compulsory process for obtaining evidence
and witnesses is, to a significant extent, dependent on
the approval of the prosecution.")

___________________(footnotes)

20 Military courts are not compelled to adhere to rules of
evidence grounded only in the Supreme Court's supervisory
powers over the administration of justice in the federal courts.
See, e.g., Burns v. Wilson, 346 U.S. 137, 145 & n.12 (1953).

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41

In assessing the need for a military court to adopt a
certain rule or practice constitutionally mandated in
civilian tribunals, this Court looks to "whether the
factors militating in favor of [the practice] are so
extraordinarily weighty as to overcome the balance
struck by Congress."  Weiss, 510 U.S. at 177-178
(quoting Middendorf v. Henry, 425 U.S. 25,44 (1976)).
That  test is highly deferential:

[T]he Constitution contemplates that Congress
has plenary control over rights, duties, and
responsibilities in the framework of the Military
Establishment, including regulations, proce-
dures, and remedies related to military discipline.
Judicial deference thus is at its apogee when
reviewing congressional decisionmaking in this
area.  Our deference extends to rules relating to
the rights of servicemembers:  Congress has pri-
mary responsibility for the delicate task of bal-
ancing the rights of servicemen against the needs
of the military.
Weiss, 510 U.S. at 177 (quotations and citations omit-
ted). The court below erred in not giving the per se
rule against polygraph admissibility the deference it
deserved.
  B.   Respondent's Interest in Introducing Poly-
        graph Evidence Does Not Outweigh The
        Reasons For Establishing A Per Se Rule
        Prohibiting Such Evidence

As this Court has recognized, "the military in im 
portant respects remains a "specialized society sepa-
rate from civilian society," Weiss,  510 U.S. at 174
(quoting  Parker v. Levy, 417 U.S. 733, 743 (1974)); see
also Loving v. United States, 116 S. Ct. 1737, 1751
(1996), whose essential function is "to fight or be

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42

ready to fight wars should the occasion arise."
United States ex rel.  Toth v. Quarles, 350 U.S. 11,17
(1955); see also Schlesinger v. Councilman, 420 U.S.
738, 757 (1975). MiIitary trials are necessary "to
maintain discipline,"  but  they  are "merely  incidental
to an army's primary fighting function." Quarles, 350
U.S. at 17. "To the extent that those responsible for
performance of this primary function are diverted
from it by the necessity of trying cases, the basic
fighting purpose of armies  is not  served."  Ibid.  Thus,
the introduction of procedural complexities into
military trials is "a particular burden to the Armed
Forces because virtually all the participants,
including the defendant and  his counsel, are members
of the military whose time may be better spent than
in possibly protracted disputes over the imposition of
discipline."  Middendorf  v.  Henry,  425 U.S. at 45-46.
The court of appeals' opinion does not reflect con-
sideration of those factors, which have long informed
this Court's assessment of rules" designed for mili-
tary trials.  Nor does that decision accord the great
deference properly due to the judgments of  the politi-
cal branches in this area.  See, e.g., Weiss, 510 U.S. at
177 Goldman  v. Weinberger, 475 US. 503,508 (1986).
Invoking his powers under the Constitution, see Art.
II, 2, Cl. 1, and an express congressional delegation
authorizing him to prescribe rules of evidence for
courts-martial, see 10 U. S.C.  836(a), the President
concluded that polygraph evidence is unnecessary for
reliable credibility assessments, that its admission
could confuse the trier of fact, and that case-by-
case litigation about its admissibility would waste the
time of servicemembers whose "primary func-
tion"  (Quarles,  350 U.S. at 17) is the Nation's defense.
Against those considerations is respondent's asser-

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43

tion that the polygraph evidence would enhance his
credibility in denying that he had used drugs since
joining the Air Force.  Yet prohibiting respondent
from introducing the results of polygraph examina-
tions neither lessens the prosecution's burden of
proof  nor limits  respondent's opportunity  to testify at
a court-martial on any relevant topic.  In light of the
continuing disagreements among polygraph experts
over the validity and reliability of polygraphs, the
propensity of polygraph evidence to confuse the trier
of fact, and the likelihood that the introduction of
polygraph evidence would lead to lengthy disputes
over the methodology and results of polygraph testing
in a particular circumstance, respondent cannot
carry his burden of demonstrating that "the factors
militating in favor of [allowing polygraph evidence to
be considered as evidence] are so extraordinarily
weighty as to overcome the balance struck by
Congress." Weiss, 510 U.S. at 177-178.  Deference in
formulating such an evidentiary rule is particularly
appropriate where, as here, the scientific evidence on
the validity of polygraphs is open to serious debate
and polygraph test results may be manipulated.  Thus,
even if generally applicable Sixth Amendment princi-
ples were found not to justify a per se rule prohibiting
polygraph evidence, the President and Congress may
constitutionally establish such a rule in the context
of courts-martial.

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44

CONCLUSION

The decision of the court of appeals should be
reversed.
Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

DAVID C. FREDERICK
Assistant to the Solicitor
General
MICHAEL J. BRESLIN   JOEL M. GERSHOWITZ
Lt. Colonel, USAF Attorney
Appellate Government
Division
Boiling  Air  Force Base

JULY 1997