William H. Rehnquist: We'll hear argument now in Number 96-1133, United States v. Edward G. Scheffer. Mr. Dreeben.
Michael R. Dreeben: Mr. Chief Justice, and may it please the Court: Polygraph evidence is opinion evidence about credibility. Based on inherent doubts about the reliability of polygraph evidence and the burdens of litigating about polygraph results, it has long been banned from courtrooms in a majority of the States. In 1991, the President adopted the same rule for military courts martial. Exercising delegated authority from Congress, the President promulgated Rule 707, which makes polygraph evidence per se inadmissible in military courts martials. That determination is constitutionally valid for three main reasons. First, the reliability of the polygraph remains unproven. Second, polygraph evidence is not necessary to help the trier of fact perform its core function of determining credibility of witnesses, and third, the costs of litigating about the reliability of polygraph evidence on a case-by-case basis outweigh any limited probative value that the polygraph may have.
William H. Rehnquist: Would that have been the... was that the consequence of the Armed Forces Court of Appeals opinion here that the validity of each individual polygraph examination had to be tested in each case?
Michael R. Dreeben: I think that's correct, Mr. Chief Justice. In 1987, the Court of Appeals for the Armed Forces, then the Court of Appeal... Military Appeals, determined that the per se rule against polygraph evidence which had prevailed in the military should be dropped, and that individual defendants should have the opportunity to litigate about it in each case, and in 1991 the evident response to that was to reinstate the per se rule that had been prevalent in courts across the country as well as the military courts.
Sandra Day O'Connor: How is it handled in other jurisdictions where there's no per se rule in effect? Is it treated like any other bit of scientific evidence?
Michael R. Dreeben: It is not, Justice O'Connor. In the States, 27 States have per se rules; 22 States allow polygraph evidence into... to be admitted only if there is a stipulation between the parties so that the parties have agreed to it.
Sandra Day O'Connor: And so from your research no State is treating it like other expert testimony, in effect.
Michael R. Dreeben: One State is. The State of New Mexico is allowing polygraph evidence in on a routine basis, provided that a very strict list of procedural requirements are satisfied, but--
Sandra Day O'Connor: But even New Mexico doesn't follow the typical expert testimony approach.
Michael R. Dreeben: --I think that that's fair. The requirements are spelled out in the statute with a--
Sandra Day O'Connor: Right.
Michael R. Dreeben: --far greater degree of specificity than for other expert testimony. Now, in the Federal system--
Anthony M. Kennedy: Daubert, of course, is in the civil context, but would you say that the petitioner's... pardon me, that the respondent's position here is consistent generally with what we held in Daubert?
Michael R. Dreeben: --I think the respondent's position here is... goes quite a bit further than Daubert. Daubert, of course, is simply an interpretation of Federal Rule of Evidence 702. The respondent's position here is that the Constitution prohibits any promulgator of a system of evidentiary rules from establishing a per se rule.
Anthony M. Kennedy: I recognize the difference. I'm talking about the thrust of the case and what it held, which was to undercut the Frye-type rule which is really being applied by the military here.
Michael R. Dreeben: That is--
Anthony M. Kennedy: I recognize one's civil, one's criminal, one's constitutional, one's evidence, but so far as the thrust of what the Court was talking about so far as sound management of trials, isn't there some inconsistency with your position in Daubert?
Michael R. Dreeben: --I don't think there is any inconsistency. The point of Daubert was to drop the strict rule of general acceptance in the scientific community as a prerequisite for scientific evidence to be admitted. Daubert did not do away with the rest of the evidentiary considerations that may bear on whether particular evidence may be admitted. Prominent among those are the requirement in Rule 702 itself that evidence in the form of expert testimony must assist the trier of fact, and furthermore that it's benefits, its probative value must not be significantly outweighed by the waste of time, confusion, or redundancy of other evidence that might be admitted. Those type of considerations amply justify exclusion of polygraph evidence. Polygraph evidence is very different from most other kinds of scientific evidence that comes into the courtroom. It represents in essence the opinion of the polygraph examiner that, based on an examination of the particular subject, he was deceptive or not deceptive on one particular occasion.
Ruth Bader Ginsburg: Mr. Dreeben, when the Government itself is responsible for the polygraph, and the Government is attacking the credibility of the defendant, isn't that a different situation? This doesn't have to be all or nothing, but at least as in this case, where the Government itself chose to administer a polygraph test and in prosecuting attacked the credibility of the defendant, when you have those two things, why isn't that enough to trigger a constitutional concern?
Michael R. Dreeben: Justice Ginsburg, the Government might have had a particular defendant interviewed by a psychiatrist if the defendant consented to that, and the psychiatrist might say, based on my expert opinion and analysis of this particular person's responses in the interview, I can render an opinion that he was quite certainly deceptive or not deceptive. That kind of evidence is never admitted in courtrooms in this country. Outside opinion, expert testimony that vouches for the credibility of a witness who testifies, is routinely excluded by both the State and Federal courts as not being needed to assist the trier of fact and, indeed, of impinging on the trier of fact's core function, and it is not--
John Paul Stevens: Mr. Dreeben, can I ask you this. There's a brief filed by an amicus, a group of social scientists who say that, if properly conducted, these tests are accurate about 90 percent of the time. Now, I don't know whether you would accept that, or you would say that's probably wrong, but assume that's correct, and if there are proper safeguards given and all the rest, what would your position be? Even if it was 100 percent accurate, would you still say, along the argument you're making to Justice Ginsburg, this still should be excluded?
Michael R. Dreeben: --Yes. I think, Justice Stevens, that it has a drawback from the point of view of courtroom evidence that justifies its exclusion even on the assumption--
John Paul Stevens: Even if completely reliable?
Michael R. Dreeben: --Well, completely reliable, I think that no form of scientific tests will ever be viewed by any--
John Paul Stevens: Well, at least as reliable as fingerprints or DNA or something like that.
Michael R. Dreeben: --Even if it had achieved that degree of reliability, which I think there's no reason to believe that it has, and there's no reason why the President as a matter of constitutional law must assume, it still has a different character--
John Paul Stevens: I understand.
Michael R. Dreeben: --than other forms of scientific evidence in two key respects. The first is that it tells the trier of fact something that we have traditionally entrusted the trier of fact to determine itself, namely, whether a particular witness should be believed. There are many kinds of experts who might be willing to come into court and render an opinion about credibility and say yes, indeed, I'm an expert on this. My work has been validated by numerous outside bodies, and I think that this particular witness is credible.
John Paul Stevens: But why doesn't--
Michael R. Dreeben: We don't have that--
John Paul Stevens: --Why doesn't fingerprint do the... evidence do the same thing if the witness says... gets on the stand and says, I was never in the place where the crime took place, and somebody says, well, your fingerprints were there. Doesn't that do the same thing?
Michael R. Dreeben: --No. It does something quite different, Justice Stevens, and that's my second distinction of polygraph evidence. It provides the trier of fact with factual information that it would otherwise have no access to. An expert who was able to bring to the jury's attention specific scientific information that has a degree of reliability that is outside the realm of normal jurors' comprehension serves a valid function in the trial system, and is unlikely ever to be excluded by a reasonable system of evidentiary rules precisely because it does enable the proof of facts that could not occur otherwise. Rules of evidence must be evenhanded, and the Government bears the burden of proof beyond a reasonable doubt in a criminal case of establishing a suspect's guilt, and it is therefore extremely unlikely that a reasonable system of rules of evidence will ever exclude reliable scientific testimony that is necessary to determine the facts. The Government would suffer far more than any criminal defendant in such a system, because we would lose the ability--
Sandra Day O'Connor: Well, this rule cuts both ways, because there might be times when the Government would like to produce a polygraph test in court because it shows the defendant is lying.
Michael R. Dreeben: --That's correct, Justice--
Sandra Day O'Connor: And under the military rule, the Government can't do that. So it cuts both ways here, I assume.
Michael R. Dreeben: --It does, and I think that that largely reflects the fact that we take a consistent position on this. We don't believe that it's sufficiently reliable for courtroom evidence, and we think that it performs a function that the trier--
Sandra Day O'Connor: What... under what authority did the President adopt the rule? What is the provision that says the President may adopt these evidentiary rules?
Michael R. Dreeben: --The President is delegated authority under Article 36 of the U.C.M.J., which is reprinted in footnote 2 on page 5 of our principal brief, and it says that pretrial, trial, and post trial procedures, including modes of proof, may be prescribed by the President by regulations which, so far as he considers practicable, apply principles of law and the rules of evidence generally recognized in a trial of criminal cases in the United States district courts.
William H. Rehnquist: Getting back to your colloquy with Justice O'Connor just a moment ago, I think perhaps the Court of Appeals for the Armed Forces might have taken a different view if the Government had sought to introduce the polygraph test, because they seem to base their constitutional decision on the defendant's right to call witnesses in his favor.
Michael R. Dreeben: That is absolutely right, Mr. Chief Justice. This was not a two-way-street decision. The decision partially invalidated Rule 707 to the extent that it erects a per se bar to the defendant's presentation of evidence. The rule would otherwise remain in effect and bar the Government from introducing it, but I think--
Antonin Scalia: Well, the President could change that, the scope of--
Michael R. Dreeben: --The President could change that. Justice Scalia, the President could certainly change it, but I think it's important to emphasize here that the Department of Justice in criminal trials in the civilian courts takes the position that polygraph evidence should not be offered by prosecutors even when it might arguably be of assistance to us, and that it should be opposed when presented by defense lawyers, and we do that precisely for the same reasons that the President relied on in promulgating Rule 707. The underlying scientific validity of polygraph evidence has always been a source of extreme controversy, and it has--
Ruth Bader Ginsburg: --Mr. Dreeben, as to the truth-telling identification that the polygraph is offered for, it's been traditionally allowed to have a character witness for defendants. Defendant testifies and he has a character witness that testifies to his reputation in the community for truth-telling.
Michael R. Dreeben: --Correct.
Ruth Bader Ginsburg: Well, isn't the polygraph far more reliable than just any character witness the defendant wants to present?
Michael R. Dreeben: Well, Justice Ginsburg, I think that that assumes that there is scientific validity and accuracy to the polygraph, which we dispute, but more importantly, the system of rules of evidence that we have in courtrooms specifically right now allows opinion evidence and reputation evidence about a trait of character of a witness, but it does not allow specific instances, and it certainly does not allow a witness to say, I know this person, he did denied committing the crime to me, and I believe him. That kind of testimony is routinely disallowed in criminal trials around--
John Paul Stevens: No, but it's reputation as to credibility that the character witness testifies to.
Michael R. Dreeben: --The character witness testifies only about what the individual's reputation--
John Paul Stevens: As to credibility.
Michael R. Dreeben: --As to credibility, and--
John Paul Stevens: Right. It's precisely the same issue that the polygraph evidence is directed to, credibility.
Michael R. Dreeben: --I think there's an important distinction, Justice Stevens, and that is the polygraph examiner will not render an opinion that I believe that this person is generally credible. He will render an opinion that says, based on physiological responses that I observed, and all other information that was available to me in whatever hour and a half I had with this individual, I concluded that he did not exhibit physiological signs of deception on this particular instance, and that is akin to an expert psychiatrist meeting with a defendant, interviewing him, and coming away with the view that I think this man is credible when he says that he didn't commit the act.
John Paul Stevens: Yes, but there's a difference as to the degree of reliability between the two, obviously, and... but your position as I understand it is, even if it were totally reliable, you would still take the same position it's inadmissible.
Michael R. Dreeben: I do, Justice Stevens.
John Paul Stevens: Yes.
Michael R. Dreeben: I recognize that the Court might view that as a somewhat different case, and I think that if, in fact, there were a 100-percent reliable--
John Paul Stevens: But then how do you... but then are you saying that the scientists who filed a brief saying it's 90-percent accurate if conducted properly, that we should disbelieve the substance of that brief? That's basically what you're saying.
Michael R. Dreeben: --I think all the Court has to do is realize that this is an area of extraordinary scientific polarization, and that a reasonable system of evidentiary rules is entitled to deference in the conclusion that polygraph has not progressed to the point where its reliability justifies--
John Paul Stevens: Well--
Michael R. Dreeben: --that we litigate about this in every single case where the defendant wants to present it.
William H. Rehnquist: --we don't ordinarily make findings of fact on the basis of briefs, I guess.
Michael R. Dreeben: I think that that is certainly an additional point here. This Court is not sitting to decide--
John Paul Stevens: No, but it is true, is it not, that we can take judicial notice of the practice of the Government itself in routinely using its experts for this very purpose?
Michael R. Dreeben: --Well, I think equally pertinent is the fact that we take the position that it should not be admitted into evidence. Out of court--
David H. Souter: Mr.--
Michael R. Dreeben: --uses of investigatory tools such as the polygraph, which then do not come into evidence because they are either not sufficiently reliable or not needed, are common. In investigating a crime, we will look at a suspect's arrest record. If we have 30 potential suspects, we don't know who did it, we will look at what the arrest records are of the suspects. Those who have arrest records may get particular investigatory focus. We don't admit arrest records into evidence. We will engage in profiling of criminal suspects of unsolved crimes, where we call upon various scientific disciplines, such as psychiatrists, forensic experts, and develop a profile of who the likely criminal is, but we don't--
David H. Souter: --Mr. Dreeben, could you go back to your use of the polygraph itself? What decisions does the Government make itself on the basis of polygraph evidence? I mean, one of the... excuse me. I'm just adverting to the issue of arbitrariness in saying it can't come in but we use it for other purposes. What decisions does the Government make in reliance on polygraph evidence?
Michael R. Dreeben: --I want to be clear about this, Justice Souter. The official policy of most of the users of the polygraph in personnel screening, which is its main application, is that the polygraph result itself is not a basis for any action one way or the other.
David H. Souter: Not even to hire or not hire someone?
Michael R. Dreeben: Not even to hire or not hire, except in extraordinary circumstances, and I certainly don't want to say that it never would be relied on as a sole factor, but it primarily is used in personnel screening in this way: Questions are asked. If the examiner concludes that there is some deception, there is an effort to determine what the truth is by further investigation, further questioning of the applicant and so forth. Generally, problems can get resolved that way, and it is the entire body of evidence that is developed in a background check that leads to a decision. The polygraph itself is not supposed to be a tool used in isolation, and it is distinguishable to say that in a context where the Government is considering whether to give access to an individual for national security purposes to use anything available that might be helpful in developing an accurate picture of an individual. It's quite another thing--
David H. Souter: So basically you use it as a kind of a tip-off of something, as a means of putting somebody on the spot, legitimately, but that's as far as the Government goes?
Michael R. Dreeben: --I don't want to be categorical and say that's as far as the Government goes.
David H. Souter: No, I realize there may be exceptions, but in sub... substantially, that is the only kind of use that's made.
Michael R. Dreeben: Substantially in the personnel screening area that's the use that's made. I don't--
David H. Souter: In criminal investigation likewise, I assume?
Michael R. Dreeben: --In investigations, the polygraph is an extraordinarily productive interrogation tool. An enormous amount of confessions are given when a suspect either fails a polygraph or believes that a polygraph is about to smoke him out. I have to say that in that sense there are examiners who believe that it is entirely reliable in this respect, and that it's a great interrogation tool because it's accurate. There are other people who will say that, well, it's a great placebo. There is a story of a police interrogation in a State system where the police put a colander on a suspect's head and wired it up to a Xerox machine, and then pressed a button that produced a picture, a little copy that said, you're lying, every time the suspect answered. [Laughter] The suspect confessed. So if a suspect believes that the polygraph is accurate and is about to catch him, then it will be very useful to do that.
David H. Souter: It's the tainted morsel of the 20th Century. [Laughter]
Michael R. Dreeben: Well, it has a certain use in that respect that would suggest that the Government continues to use it, but at the same time, it's not arbitrary to say that, look, not everything that we do in the investigatory phase should come into admission in evidence.
Anthony M. Kennedy: Are there instances in which an employee is terminated for failure to take a polygraph, Government employment?
Michael R. Dreeben: My understanding, Justice Kennedy, is that in the... certain national security agencies if you're not willing to take a polygraph, then you won't be able to work at that agency. In the Department of Defense, for example, you may be transferred to an equivalent job that doesn't require access to particular national security information, but you won't be terminated. And Congress, of course, which has addressed extensively the problem of polygraph reliability, has banned most of its uses entirely in the private sector in large part because of concerns about its reliability, so the President, when considering whether military courts martials ought to be a forum for the admission of polygraph evidence, is entitled to take into account the findings of Congress in enacting the Polygraph Protection Act, the fact that 27 States enjoy a per se rule that bars polygraph evidence, and the fact that until this Court decided Daubert, the uniform rule in the Federal courts, with the exception of the Eleventh Circuit in 1989, was that polygraph evidence is per se inadmissible. And even after Daubert has been decided, and several Federal courts have reconsidered whether it is appropriate to have a per se rule and have opted some case-by-case litigation, polygraph evidence is rarely being admitted in criminal trials in the civilian courts, by and large because the judges are concluding that either it will not assist the trier of fact, or it is unreliable either in a particular instance or across the board, or because traditional Rule 403 balancing considerations justify the exclusion of the evidence because it's not really needed. I think that the President is certainly in a position to take all of that into account and to conclude that the military courts, of all places, should not be a place where experimentation with new evidence is to be carried out. If there ever came a time when experience in the civilian courts revealed that the polygraph was a vital engine for getting out the truth, and that it ought to be part of our criminal trial process, I'm quite sure that the President or an appropriate rulemaking authority would recommend reconsideration of Rule 707.
Ruth Bader Ginsburg: Mr. Dreeben, why doesn't it work the other way with respect to the military courts, because my understanding is that the courts martial, the equivalent to the jurors, are of a certain high level, perhaps higher than the ordinary jury that would sit in a Federal court in a criminal case.
Michael R. Dreeben: Justice Ginsburg, I wouldn't want to disparage the ability of the courts martial members to understand and deal appropriately with scientific evidence, but it is still true that the military conducts an inordinate number of court martial proceedings around the world. These proceedings in which, under Daubert, litigants have attempted to admit polygraph evidence usually involve extensive evidentiary hearings back and forth with experts testifying at great length about the supposed merits of the polygraph while other experts come forward and testify about the demerits of the polygraph. One recent hearing that was carried out under the Court of Appeals for the Armed Forces decision in Scheffer took 3 days.
Anthony M. Kennedy: Well, it seems to me you're somewhat deflecting the thrust of Justice Ginsburg's question, and I notice this in your brief, too. You talk about danger of confusion of the jury. The military rules allow conclusions of experts on the very premise that military juries are somewhat more sophisticated than most juries.
Michael R. Dreeben: That is true, Justice Kennedy, and I don't disagree with that submission. My point is the different one, in that polygraph evidence simply doesn't have a history of use in the civilian courts in this country. It is in an experimental phase in the Federal courts. Massachusetts, which had a 15--
Anthony M. Kennedy: Well, that may be true, but it doesn't go to the point of the differences in the trier of fact Justice Ginsburg was referring to.
Michael R. Dreeben: --The triers of fact may or may not be superior in the military, but the point is that this particular form of evidence, unlike most other forms of evidence, doesn't have a track record. In fact--
William H. Rehnquist: Well, I suppose one could argue that if the triers of fact are indeed superior, they need less help from this sort of evidence.
Michael R. Dreeben: --Mr. Chief Justice, that is certainly an additional consideration that supports the rule here. [Laughter] --happy to accept that. What does distinguish polygraph evidence, again, from the other kinds of scientific evidence or ultimate opinion evidence that might come in in these proceedings is that it's about credibility. It's an out-of-court opinion based on one experience, or exposure to the defendant that says that he was not credible or he was credible on this particular occasion, and it's not a form of evidence that is particularly necessary, and it has high costs as far as the litigation of the reliability of the polygraph whenever it is admitted. I would like to save the rest of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Dreeben. Ms. Sheffield, we'll hear from you.
Kim L. Sheffield: Mr. Chief Justice, and may it please the Court: Airman Scheffer's polygraph examination was one of 34,788 polygraph examinations conducted by the Department of Defense in fiscal year 1992. Although Department of Defense personnel rely on polygraph results in matters of national security, Military Rule of Evidence 707 automatically predetermines, without any evidentiary hearing whatsoever, that the results of Airman Scheffer's examination were both unreliable and a waste of the court's time. Despite the fact that polygraph examinations are used in the ordinary course of government business, the rule further predetermined that the military officers who sat in Airman Scheffer's panel were incapable of properly using or evaluating these results, even with proper cautionary instructions from the military judge.
Antonin Scalia: Those... those other uses you're referring to, I mean they are very common. It seems to me are quite different. I mean, it's not a use for the purpose of deciding whether you're going to send somebody to jail.
Kim L. Sheffield: No, Your Honor--
Antonin Scalia: Or for whether you're going to let a murderer back... back out on the streets.
Kim L. Sheffield: --No, Your Honor, they're very different uses, but... but they are also very important uses. They're used for counterintelligence operations, where it's absolutely critical that we know, you know, national security issues. They're used in whether or not people are going to have sensitive compartmented access to the secrets of the Nation.
Antonin Scalia: Well, but, you know, I mean, I... I might exclude somebody from the sensitive secrets of his... of the Nation if his... you know, if his... if his uncle is a... a Chinese Communist. Could I use that in a criminal trial? I mean, what... you know, what the government thinks creates enough of a doubt to exclude somebody from sensitive in... information bears no relationship to what creates enough of a doubt to be admissible in a criminal trial.
Kim L. Sheffield: Yes, Your Honor. And I understand this is a different scenario--
Antonin Scalia: So, then, all of these uses are really... don't... don't establish your point at all.
Kim L. Sheffield: --Well, what the uses establish, Your Honor, we would submit, is this... if this polygraph were so unreliable, why are millions of tax dollars being spent for it? It has a certain level of reliability or we would not be able to use it.
Antonin Scalia: I don't think they deny that it might have a certain level of reliability and... and, just in case it does, they... they use it. And however doubtful it may be, they... they... they choose to exclude people from national security information on that basis. But that... that... that's a world apart from saying it's reliable enough to make the decision whether you're going to send somebody to jail or not send somebody to jail who belongs there.
Kim L. Sheffield: Well, Your Honor, we would submit that it's at least as reliable enough... well... well, first off, on sending people to jail, the use we're talking about here is basically coming in, in an exculpatory sense, not in an inculpatory sense.
Ruth Bader Ginsburg: Yes, but I think you can't just close the door at that point.
Kim L. Sheffield: Yes.
Ruth Bader Ginsburg: Because the President would be free to say, okay, all bets are off, and the next case, there is no rule. It's the same government examiner that has given the polygraph. And there is an inculpatory result. And the government says, fine. As Justice O'Connor suggested, this is a two-way street, and we're going to use it. He gets on the stand. We're going to say, he's a liar, and here's the polygraph to prove it.
Kim L. Sheffield: Yes, Your Honor, you're absolutely right. If... if the rulemaker were to take 707 off the books, which they would have to do, because, right now, we just have a very narrow constitutionally required exception, but if the rulemaker were to take Rule 707 off the books, the potential for inculpatory results would come in. Now, we would submit that would come in, in a parallel sense. For example, in this case, the defendant took the stand. He testified. His credibility was attacked. And it was brought in to bolster his credibility. We would submit that the parallel right, then, would be for when a defendant who takes the stand has taken a government polygraph and failed... that that could perhaps come in to impeach his credibility.
Sandra Day O'Connor: Would your rule extend to a crucial defense witness as well, whose credibility is attacked?
Kim L. Sheffield: It would--
Sandra Day O'Connor: Here is... here is the state, has the burden of proof, brings in a crucial witness, who says, I saw the defendant stab the victim. And there's a polygraph test that might be favorable to the defense of this witness. Would your rule encompass that as well?
Kim L. Sheffield: --Well, Your Honor, the Court of Appeals for the Armed Forces specifically limited their holding to a polygraph examination of the defendant.
Sandra Day O'Connor: And what would your position be, logically?
Kim L. Sheffield: Your Honor--
Sandra Day O'Connor: From the position you're taking here, it's part of the defense?
Kim L. Sheffield: --Right. Your Honor, it would depend on exactly how critical it was. And--
Sandra Day O'Connor: Well, it's critical.
Kim L. Sheffield: --I... I--
Sandra Day O'Connor: This is the eyewitness.
Kim L. Sheffield: --Your Honor, then I would say you would have to... you would have to do the same balancing we're doing here. If it's a critical... critical favorable evidence for the defense, we would have to look at the rule and look at the basis for the rule, and determine if in fact--
William H. Rehnquist: So we'd have a big evidentiary hearing in every case where the polygraph was used?
Kim L. Sheffield: --It would call for evidentiary hearings where there was an exculpatory polygraph, Your Honor, or one in favor of the defense. But bear in mind the net picture. The government focuses a great deal on the individual cases where the polygraph evidence comes up. But... but these cases are few and far between. The greater weight of cases, where you have an exculpatory polygraph, the military convening authority knows that. And, many times, based on that, elects not to take the case to trial at all. And if the... if he knew that those results were admissible, that's very much a factor. As Judge Gerky pointed out for the Court of Appeals for the Armed Forces, in his opinion, look at the overall effect on military justice with this rule. It's the rare case that's going to come in and have the 3-day hearing. Most of the cases, it's going to either--
William H. Rehnquist: But--
Kim L. Sheffield: --be disposed of pretrial--
William H. Rehnquist: --But how... how about a defendant, before the case is brought, who fails a polygraph test; there may be other reasons now why the... the... the Armed Forces would say, let's not bring this guy to trial. But this gives them an added sling in their bow, an added arrow in their bow, doesn't it?
Kim L. Sheffield: --Yes, Your Honor, it does right now, as well.
William H. Rehnquist: And don't you think that might lead to more cases being brought?
Kim L. Sheffield: I would not think so. And... and the other effect, Your Honor, is, oftentimes, when someone fails a polygraph, if they're truly guilty, it is a great confession inducer, if the government as quite straightforwardly told you. And also it pushes sometimes the defendant into actually pleading guilty, which is far more expedient as well.
Stephen G. Breyer: How... how would you avoid the endless hearings that would... or the disputes before the jury about whether the polygraph is given in the best possible way, of whether it is in fact, in this instance, how probative, of whether or not polygraphs, in general, are reliable or even if they are, in general, often reliable, whether this is the kind of one that is really that reliable or not, all of which, before a finder of fact that's not necessarily sophisticated in scientific matters?
Kim L. Sheffield: Well, Your Honor, a... a couple of points. First off, in the military, it's... it's done in what's called an Article 39(a) session. So the military judge would sort much of that out prior to it going to the jury. And he has... of course, he applies 403, which is the same rule that you have in the--
Antonin Scalia: I don't understand what you mean. What do you mean, he would sort it out?
Kim L. Sheffield: --Well, basically--
Antonin Scalia: The issue for the jury, it seems to me, is whether this person who administered the polygraph test is any good.
Kim L. Sheffield: --Yes, Your Honor, but a lot of--
Antonin Scalia: How can the judge decide that?
Kim L. Sheffield: --Well, at the preliminary hearing, under... on 102, he is going to make a determination of whether or not it should even go to the jury, like was done in this--
Antonin Scalia: Yeah, but once it goes to the jury, the ju... the jury is certainly entitled to come to the conclusion that this person who administered the polygraph test is a hack.
Kim L. Sheffield: --Yes, Your Honor, they certainly could.
Antonin Scalia: And comes to the wrong conclusion most of the... isn't the jury entitled to do that?
Kim L. Sheffield: Yes, Your Honor.
Antonin Scalia: So aren't you entitled to put in evidence to show that this person is a hack?
Kim L. Sheffield: Absolutely, Your Honor.
Antonin Scalia: Okay.
Kim L. Sheffield: I--
John Paul Stevens: Well, I don't know how you avoid that. May I ask, along that line, you're objecting to a per se rule. Supposing they change the per se rule and said, no polygraph evidence shall be admitted unless the examiner met the following qualifications: 5 years training, a degree from such and such a school, and so forth and so on. Would you challenge that kind of per se rule?
Kim L. Sheffield: --No... no, Your Honor, because at least... the... the problem with this rule is there's no exceptions, no matter how qualified.
John Paul Stevens: I understand. But I'm... I'm asking about a... a proposed hypothetical per se rule that defined minimum qualifications for the examinations, and just categorically said, all those that don't meet this standard are, per se, inadmissible?
Kim L. Sheffield: As long as the standards were not arbitrary and disproportionate, Your Honor, we would... we would not be doing that. One of the critical things about this case that's so ironic is this is a case that, if ever there were indicia of reliability, we'd have it. Even the worst critics of polygraph will... will tell you that much of the... whether or not the test is reliable depends on the examiner, his qualifications and his training. And much of what the States complain of in their amicus brief is the problem, then, in the States: there is no common training base and there's no standardized procedures. In--
Stephen G. Breyer: Well, is there any basis in the law... suppose we adopted your reliability test. Now, make it as strict as you want. If the Supreme Court says that the Constitution requires the defendant to have a right to put those results into evidence, I guess, then, States could say, well, we will permit prosecutors to do the same. After all, if it's that reliable.
Kim L. Sheffield: --Well, Your Honor--
Stephen G. Breyer: And there would be no rule of law that I'm aware of that would stop it. But I'm raising it because I think... I don't see how it could be... you would prevent, in practice, what I'd call tit for tat, or whatever--
Kim L. Sheffield: --Yes. Yes, Your Honor.
Stephen G. Breyer: --the... the prosecution... defense can do it, the prosecution can do it. And so, pretty soon, we have a contest of... of lie detector experts, one for the prosecution and one for the defense.
Kim L. Sheffield: Yes, Your Honor. But please understand, we are not asking the Supreme Court to hold that this test should have been admitted, or that any test of any defendant anywhere in the Nation be admitted; only that they have a chance to lay their evidentiary foundation, and let the judge evaluate it.
Ruth Bader Ginsburg: In this case, it was the govern... government's own--
Kim L. Sheffield: Yes, ma'am.
Ruth Bader Ginsburg: --test.
Kim L. Sheffield: Yes, Your Honor.
Ruth Bader Ginsburg: And we could presume that that would meet whatever standards one might set up. If your position is correct, that the defendant is entitled to use this evidence to bolster his credibility, then, in the next case, suppose the government said, we're not going to give this person a test; we think this person could probably pass one. Could that... that defendant then insist, as a matter of his Sixth Amendment right, to have the government provide a polygraph test, which he could then use in his defense?
Kim L. Sheffield: Your Honor, we submit no. And on this case, this wasn't a test that this defendant asked for. That's another thing to bear in mind. The government wanted this test done. And they went to him.
Antonin Scalia: I don't understand this constitutional rule you're asserting. You're asserting that if the evidence exists out there already, because the government has given a test, he has a constitutional right to have it admitted. But he does not have a constitutional right to develop a test on his own, to hire his own... his own polygraph administrator and have that put before the jury?
Kim L. Sheffield: Your Honor, he could hire someone on his own. I don't think it establishes a constitutional right for the government to manufacture exculpatory evidence.
Antonin Scalia: No; I understand. But... but isn't it... isn't it the logic of your position not only that what polygraph tests are extant, having been given by the government, must be admitted, but also that you must allow a defendant to hire a... a... and administer a polygraph test, and... and get that admitted, if it's... if it's a reliable--
Kim L. Sheffield: Yes, Your Honor. But, again, our position is--
Antonin Scalia: --I don't think so.
Kim L. Sheffield: --not that it must be admitted... simply that he has the opportunity for his hearing, for his day in court.
David H. Souter: Well, the--
Kim L. Sheffield: To show that his test was reliable.
David H. Souter: --Isn't it also the logic of your position that if we agree with you to exactly that extent, we would also have to strike down a rule, a per se rule, that excluded the opinions of psychiatrists or psychologists on the specific truth telling of a witness?
Kim L. Sheffield: Well, Your Honor--
David H. Souter: We would... we would... we would have to say, well, the door is not entirely shut to that.
Kim L. Sheffield: --Well, Your Honor... and... and... and that is a tough issue. But looking at--
David H. Souter: Well, what's the answer?
Kim L. Sheffield: --Well--
David H. Souter: We'd... we'd have to... we'd have to-- [Laughter] --we'd have to open the door.
Kim L. Sheffield: --Well... well, Your Honor, perhaps and perhaps not. Because the other experts that we're shutting the door on giving truth testimony, a lot of times the most common example is the child accommodation syndrome, where you bring in a clinical social worker who treats abused children, their area of expertise is treating abused children. And then, the types of cases where that ultimate truth testimony is precluded is with that kind of expert. Well, we would submit, the difference with the polygraph, and of course you have to accord some reliability to it, is that this person's expertise is in using a scientific machine and a... a tested theory and a methodology to arrive at a credibility determination.
David H. Souter: Yeah, but you can make the same argument, absent the... the... the mechanics on... on the part of the psychiatrist, a psy... or a psychologist, with... with long clinical experience, and the opportunity to verify the stories of the... of the people interviewed, with... with independently verified facts. And it seems to me that, on your logic, that kind of specific credibility testimony would at least have to be ad... admissible potentially. Wouldn't... wouldn't you agree?
Kim L. Sheffield: Yes, Your Honor, the... the courts don't allow that now. And... and I... I agree with you that the theory would seem to apply to that as well. And oftentimes it comes extremely close.
David H. Souter: But--
Kim L. Sheffield: It's a hairline difference between what they actually can get in.
David H. Souter: --But... but you really... therefore, if we accept your position, we're... we're going to make a determination not only about polygraphs, but I suppose we would be making a... a kind of sea change in... in... in a... in a constitutional evidence rule. Because we would be, in effect, forcing the courts into a... a realm of evidence which, as a... as a general rule, an almost universally general rule, is inadmissible. And that is, evidence about the specific truth telling in a given instance. So we would... we would really be entering a... a new evidentiary realm here.
Kim L. Sheffield: Well, Your Honor, I... I would think that the... the... whether or not it's a sea change is going to depend on how narrowly or broadly this Court chooses to view this. Because if you look at it from a standpoint of a polygrapher being someone who has specialized expertise in judging credibility, and look at the others as their specialized expertise in perhaps treating children or victims, there could be differentiations made.
William H. Rehnquist: Yet... but your point in... in response to some of the questions, Ms. Sheffield, has been, you know, we don't ask that it be admitted, we just ask that it be submitted to a judge to decide. But it seems to me, following up on Justice Souter's question, you could then call into question all of the hearsay rule. In other words, don't exclude hearsay that... it doesn't come within the traditional exception, but if it has a lot of... it seems reliable, put people on the stand and let the judge decide whether it should come in.
Kim L. Sheffield: Well, Your Honor, I'm glad... I'm glad you mentioned the hearsay, because the thing with the other evidentiary rules, designed to ensure reliability and other reasons, all of them have exceptions. Hearsay does. And--
William H. Rehnquist: Of course it does.
Kim L. Sheffield: --and... and if there is a case, I believe, where the defense thinks their case is strong enough and there's enough indicia of reliability, they will probably make a proffer, under the residual exception. Even privilege rules have exceptions when the policy reasons that underpin them aren't at issue.
William H. Rehnquist: But, nonetheless, there... the rules tend to be categorical. They don't have litigation of whether a particular piece of evidence or particular thing should be admitted, just to be inquired into de novo every time. Because a trial would last for months if you did that.
Kim L. Sheffield: Yes, Your Honor. But the rules that are there now have existing exceptions. All we are asking for is--
Antonin Scalia: Is your argument, every rule has to have an exception? This... this... this is... this is the principle you're urging upon us? [Laughter]
Kim L. Sheffield: --Well, Your Honor, what we're saying, basically, is, one, when... when a defendant's constitutional rights are clearly at issue, where he has a Sixth... an arguable Sixth Amendment right that's at issue, a per se rule... you... you have to see if it apply... if the reasons for the per se rule apply in his case. That's what Rock basically said: wholesale inadmissibility is going to be arbitrary.
William H. Rehnquist: But Rock... Rock was the defendant's own testimony.
Kim L. Sheffield: Yes, Your Honor. But the underpinnings of Rock, it seems that it would apply with equal force. In fact, I think, in a... in... in this Court's opinion in another case... which escapes me... but... but, basically, the Court said that in Rock--
William H. Rehnquist: Are you talking about the other case or about Rock?
Kim L. Sheffield: --Okay. The other case... in Taylor v. Illinois... in a footnote, the Court said: Although in Rock we were addressing the specific issue of the defendant's right to offer testimony, it derived its standard from general compulsory process case law on the theory that the right to present one's own testimony extended at least as far as a right to present testimony of others. I see nothing constitutionally in Rock that would say it could not apply with equal force to someone other than the defendant's testimony.
William H. Rehnquist: Well, that... you... you're entitled, certainly, to take an expansive view of Rock. But I think you should remember it was a 5 to 4 decision.
Kim L. Sheffield: Yes, Your Honor. [Laughter]
Antonin Scalia: Really, the... the... the key difference between... between all of these... all of these other rules of admissibility and... is what Justice Souter was inquiring into. And that is, leaping over, into... into this new field of... of accepting evidence on whether... whether the defendant is lying here, today, in this trial, on this fact. And that's... that's... if... if polygraphs are really that good, you know, 90 percent accurate, what do you think the accuracy of juries is? You think it's 90 percent?
Kim L. Sheffield: Your Honor, I don't--
Antonin Scalia: I mean, if it's lower than 90 percent, maybe we should just dispense with juries and have polygraphs. You wouldn't need juries. [Laughter]
Kim L. Sheffield: --Well, Your Honor, to me, the... the most perplexing argument is this idea that the jury can determine credibility and the polygraph usurps their function. It is one tool they use. It is simply one piece of the puzzle. And military juries especially, they balance things all the time and weigh competing interests to make important decisions.
Ruth Bader Ginsburg: I thought that the argument that Mr. Dreeben was making was not that it usurps the jury's function, but that it's unnecessary, since juries, from time immemorial, have been judging questions of credibility. I thought his argument was, on that branch, it's unnecessary and it's very costly.
Kim L. Sheffield: Well... well, Your Honor, we... we submit that it's not unnecessary. And in Airman Scheffer's case, it would be particularly helpful to a jury. Credibility was the issue in this case. Twenty-one times, in closing argument alone, he was called a liar or said his credibility was lacking, even while the trial counsel knew he'd passed this government-initiated polygraph. And interestingly, the government brought in evidence of his external physical manifestations going to credibility. There was testimony in the record from Special Agent Shilaikis, when they... when Airman Scheffer came in, and he explained what happened to him the night before the urinalysis, they elicited from their witness, well, what was his demeanor when he testified? Well, he was nervous. He used a fast rate of speech. Now, arguably, that went to whether drugs were in his system or credibility. But reading the record, it's clear, they're trying to use evidence to go to his credibility. As one judge from the Air Force Court of Criminal Appeals said in this case, Airman Scheffer's credibility was the whole ball game.
Anthony M. Kennedy: Well, of course, they... they weren't purporting to be experts, reaching a conclusion as to credibility?
Kim L. Sheffield: No, Your Honor, they were not.
Anthony M. Kennedy: All right. Are there other instances in which experts, as Justice Stevens indicated, psychologists or psych... psychiatrists, are called to... to testify about credibility? Does this ever happen in... in State proceedings?
Kim L. Sheffield: Your Honor, I'm not familiar with State proceedings enough to answer that. I can tell you that, in military proceedings, that they are called. And although they are not permitted to say, I believe the witness, everything they're saying is basically saying, I believe the witness, without using those words. It's very, very close.
John Paul Stevens: May I ask what the rule is in the military, if there is one, in cases involving very young children who might have been cla... claim to have been sexually abused or something of that kind, who recount the instance to a... a caretaker soon after the incident occurred. Is the caretaker allowed to testify as to his or her opinion as to the truthfulness of what the child was describing?
Kim L. Sheffield: Not as to the truthfulness, Your Honor. But... but demeanor and... and everything else, and then will bring in experts, who talk about child abuse accommodation syndrome and whether or not what the child said to the caretaker would or would not be consistent with a child who was fabricating or involved in fantasy or telling the truth.
Stephen G. Breyer: I'm slightly curious how they know what... whether these are reliable or not. I take it the question is whether a person who says "I'm innocent" is really guilty. And then we have these numbers in the brief that say, well, it's 90 percent of the time. How would anyone know that? I mean, how... how... you have somebody who says "I'm innocent". How, in some test or something, do they know wheth... whether he... how do they know, independently, he's guilty?
Kim L. Sheffield: Yes. And... and, often, independent proof is one of the problems. And it is more the... the accuracy rates are somewhat less in proving that an innocent person is telling the truth.
Stephen G. Breyer: Yeah, but my question is, how do they get these numbers, the accuracy rate?
Kim L. Sheffield: Your Honor--
Stephen G. Breyer: I mean, you'd have to have, like, a laboratory or something. I guess everybody would know it would be like a game. So I guess it's a question whether a game replicates reality. And if you go outside the laboratory, to the field, how does anybody know what the truth is to make this accuracy estimate?
Kim L. Sheffield: --Yes, Your Honor. And... and exactly what you said, Your Honor. They do do laboratory studies. And a great weight of the... the... the basis for these cred... these reliability estimates come from laboratory studies. They also do real-life studies. And what they'll do is they'll go back and review cases in which someone subsequently confessed or some other person subsequently confessed.
Stephen G. Breyer: Yeah, but a confession wouldn't work in a case where a person is innocent. There would be very... there would be a handful of cases in which the person was really guilty and he confessed. But there might be a lot of cases where he's really guilty and he didn't confess.
Kim L. Sheffield: Yes, Your Honor.
Stephen G. Breyer: So how would you know in... how would you ever... how do they ever go about figuring this out?
Kim L. Sheffield: And... and that's one of the problems with nailing it down. But--
William H. Rehnquist: Ms. Sheffield, a moment ago, you were... you read a quotation from Taylor against Illinois. Were you quoting from the court opinion or the dissent?
Kim L. Sheffield: --It was a dissent, Your Honor. And I should have specified.
William H. Rehnquist: I think you should have made that clear.
Kim L. Sheffield: I apologize, Your Honor.
David H. Souter: Ms. Sheffield, what do you make of the... the... of the information provided in one of the government briefs... I forget which... to the effect that less than one-third of the members of the two major polygraph examiners' organizations are of the opinion that their... that their... that their opinions should be admissible in evidence?
Kim L. Sheffield: Well, Your Honor, that came from a study... a survey that was conducted by Dr. Licken... Dr. Lykken... I'm not sure which the correct way was. The study has been called into question by the amicus brief that we have done by the Committee for Concerned Social Scientists. Basically, they... they... obviously, it is polarized. There's no doubt about that. Dr. Raskin and Dr. Honts and some other scientists talk about this study that the government relies on, and says less than one-third said that. But there were some problems with the survey that they point out. They... they... to question whether it was a random sampling, the context that the survey was sent out under. Apparently, it had a cover letter that dealt with the O.J. Simpson case. It asked them about legal implications. And we would submit that there are two other surveys that are out there that show very different results from that. In fact, two other surveys... one done by Gallup in 1982, I believe, and... and another survey done by a Dr. Amato, both show that about two-thirds of that same group would support the polygraph being used, at least in conjunction with... as one piece, with other evidence, in... in making this type of determination. And the last survey that they reference in their brief was conducted by someone who is noted for being almost a vitriolic critic of polygraph evidence. So there's... again, it's a polarized thing and there's viewpoints on either side.
Antonin Scalia: Ms. Sheffield, if... if we agree that polygraphs have to be used in the... as... that the Constitution requires polygraphs to be used in military trials, I suppose it would follow that... that they have to be used in civilian criminal trials. I mean, we... we couldn't have one rule for the milit... one constitutional rule for the military and... right? I mean, a fortiori--
Kim L. Sheffield: Yes, Your Honor.
Antonin Scalia: --in... in Federal District Courts, we have... what about civil cases, is there any reason why the constitutional requirements wouldn't apply to civil cases?
Kim L. Sheffield: Well, Your Honor, I... I wouldn't think that the Sixth Amendment would be implicated in a civil case.
Antonin Scalia: Is that right, there... there are no... there... there are no restrictions on the processes that... that can be used in... in civil trials--
Kim L. Sheffield: Your Honor--
Antonin Scalia: --especially in those civil trials in Federal courts, where a jury is required?
Kim L. Sheffield: --Well, Your Honor, it's my understanding that... that it does come in, in civil trials, even in some jurisdictions that don't allow it in criminal. I'm not conversant enough in Federal civil practice to say--
Antonin Scalia: Well, I... I would expect the same argument to be made. Look, I'm... I'm trying to prove my case, defend my property, my livelihood.
Kim L. Sheffield: --Yes, Your Honor.
Antonin Scalia: And you're excluding perfectly relevant evidence that... that the Constitution requires to be allowed in criminal trials. As a matter of due process, I don't know how you could exclude it from a civil trial.
Kim L. Sheffield: But... but, again, we're not asking this Court to hold it has to be admitted. Only let a person show--
Antonin Scalia: Yes, it--
Kim L. Sheffield: --in his case.
Antonin Scalia: --it... it has to be admitted if the judge finds... finds that this is a good... a good enough expert.
Kim L. Sheffield: Yes, Your Honor.
William H. Rehnquist: It would be a strange rule that said you had to admit it, even if you found the expert was a fraud.
Kim L. Sheffield: Absolutely, Your Honor. And that's why we're not asking this Court to hold that. We're simply saying, let the military courts, like the vast majority of the Federal Circuits do, let the trial judge hear the evidence. Let him do his 403 balancing. Let him see, and... and make a determination.
William H. Rehnquist: Well, if... if... if we were the co... Court of Appeals for the Armed Forces, and... and there weren't any Rule 707 promulgated by the President, your presentation cert... certainly would make a great deal of sense. But you... you're in the position where it isn't just a common law judgment on our part. The President has said this will not come in. And so you have to say there's a constitutional principle that says it has to come in.
Kim L. Sheffield: Yes, Your Honor. Yes, we do. And... and... and we... and we, of course, do assert that. And... and what's ironic is the reasons that are adduced here for allowing poly... keeping polygraphs out make less sense in the military context than they do in the civilian. We... the... the States--
Sandra Day O'Connor: Well, let... let me ask you.
Kim L. Sheffield: --Yes.
William H. Rehnquist: Is there any way of... of limiting the rule adopted by the Court of Appeals for the Armed Forces to military criminal trials, as opposed to civilian criminal trials? As I read the... the opinion, there... there is no effort to. I mean, it comes in as a constitutional matter, the right to... for a defendant to present its case.
Kim L. Sheffield: Yes, Your Honor. However, in this Court, looking at it, such a limiting could be done. Of course, the Court of Appeals--
William H. Rehnquist: How... how would you suggest that we do it?
Kim L. Sheffield: --Well, basically, the reasons that are problems for a lot of the States are not present for us. If you look at their amicus brief, they cite things like there's no standardized training for polygraphers. Much of the reliability depends on the qualifications and training of the examiner. The States, unlike the Department of Defense, do not have the Department of Defense Polygraph Institute. They don't have standardized equipment. They don't have standardized protocol. They don't have two layers of independent review above the polygrapher. We have protections that make our tests more reliable, more trustworthy, that don't exist in the States, which would be a basis for this Court not to apply this case beyond the... the military.
William H. Rehnquist: But then what... but you would still have to derive it from the same constitutional principle, wouldn't you... the right of the defendant to call witnesses in his defense?
Kim L. Sheffield: Yes, Your Honor. But I think the argument would be on the... as far as the States, that the government reasons are not arbitrary. Which they are in the military and which they are in Airman Scheffer's case specifically... arbitrary or disproportionate. Because we have safeguards in our system that they don't have that make these rules arbitrary and disproportionate, and certainly in Airman Scheffer's case. Even the thing about the waste of time and everything else is--
Antonin Scalia: Well, if those safeguards were... were eliminated, the Army could... could then no longer admit polygraph evidence?
Kim L. Sheffield: --They would--
Antonin Scalia: I mean, if... if we rule that it must be admitted only because there are all of these safeguards, the military could get them unadmitted again by simply eliminating all the safeguards.
Kim L. Sheffield: --If they wanted to throw their... their thou--
Antonin Scalia: Yes.
Kim L. Sheffield: --hundreds of thousands of polygraphs into disarray.
Antonin Scalia: Yeah. I mean, go... go under the colander, the colander theory instead, just-- [Laughter] Right.
Kim L. Sheffield: And... and, you know, what's interesting about the colander theory is that confession would be admissible. But if an individual defendant goes through this grueling process, designed to elicit confessions, and he's been there, done that, and doesn't confess, he can--
William H. Rehnquist: Thank you, Ms. Sheffield. Your time has expired. Mr. Dreeben, you have 5 minutes remaining.
Michael R. Dreeben: Thank you, Mr. Chief Justice. The fundamental unreliability of polygraph evidence is underscored not only for the reasons that Justice Breyer adverted to, but also because of the possibility that countermeasures can defeat any test. Any individual who wants to can go on the Internet and download a book called "Beat the Box: The Insider's Guide to Outwitting the Lie Detector. " And studies have shown that with about a half an hour of education in how to outwit the lie detector test, a suspect can do that by provoking physiological responses that fool the examiner by measures as easily as pressing his toes against the ground or biting his tongue when asked particular questions. Those kinds of ways of skewing any reliability that polygraph might otherwise have make it clear that the examiner can never be confident to the level that should be required before this form of evidence is admitted in a criminal trial. If the Court has no further questions, thank you.
William H. Rehnquist: Thank you, Mr. Dreeben. The case is submitted.