Between Rock and a Hard Place: Polygraph Prejudice Persists after Scheffer

Buffalo Law Review

Volumn 47, Issue 3, 1999, Pages 1533-1586

  Barovick, Robin D ^a  

^a UNIVERSITY AT BUFFALO   (United States)

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EID: 0033265810     PISSN: 00239356     EISSN: None     Source Type: Journal    
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References (282)

1. 293 F. 1013 (D.C. Cir. 1923).
2. In Frye, the defense attempted to admit results of a systolic blood pressure deception test as exculpatory evidence, and presented scientific testimony that blood pressure would rise when the subject lied. Id. at 1013. See generally J.E. Starrs, A Still-Life Watercolor: Frye v. United States, 27 J. FORENSIC SCI. 684 (1982) (providing details concerning Frye's confession and his attempt to repudiate it by offering results of the polygraph's primitive precursor which indicated he was telling the truth when he denied committing the crime. Frye was found guilty of second degree murder and served eighteen years in prison before being paroled).
3. Just when a scientific principle or discovery crosses the line between experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained [general acceptance] in the particular field in which it belongs. Frye, 293 F. at 1014.
4. See id.
5. One noted critic of certain types of polygraph techniques, psychologist David T. Lykken, has written, "The lie detector has no more business in the court room than a psychic or a deck of Tarot cards." David T. Lykken, The Lie Detector and the Law, 8 CRIM. DEF. 19, 26 (May-June 1981). For a discussion on different methods employed by various cultures to ascertain whether a person is telling the truth, see, e.g., Richard H. Underwood, Truth Verifiers: From the Hot Iron to the Lie Detector, 84 KY. L.J. 597 (1995-1996) (taking a negative view of the 'lie detector' as the latest in a long history of theories and gadgets purported to measure truthtelling).
6. One noted critic of certain types of polygraph techniques, psychologist David T. Lykken, has written, "The lie detector has no more business in the court room than a psychic or a deck of Tarot cards." David T. Lykken, The Lie Detector and the Law, 8 CRIM. DEF. 19, 26 (May-June 1981). For a discussion on different methods employed by various cultures to ascertain whether a person is telling the truth, see, e.g., Richard H. Underwood, Truth Verifiers: From the Hot Iron to the Lie Detector, 84 KY. L.J. 597 (1995-1996) (taking a negative view of the 'lie detector' as the latest in a long history of theories and gadgets purported to measure truthtelling).
7. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); infra notes 37, 46, and Section III-C.
8. 523 U.S. 303 (1998). Scheffer was the Court's first direct pronouncement on the admissibility of polygraph evidence. Other polygraph cases have come before the Court in the last seventy years. The Court denied certiorari in two cases. See Israel v. McMorris, 455 U.S. 967 (1982); Masri v. United States, 454 U.S. 907 (1977). In other cases it made its ruling on other grounds. See, e.g., Wood v. Bartholomew, 516 U.S. 1 (1995) (holding that a state's failure to disclose that a witness had failed a polygraph test did not deprive the defendant of Brady material); Wyrick v. Fields, 459 U.S. 42 (1982) (finding that once a defendant was informed of his right to have counsel present at a polygraph examination and had waived that right, the police were not required to again advise him of his rights before questioning him at the same interrogation regarding the polygraph results).
9. See DAVID L. FAIGMAN, ET AL., 1 MODERN SCIENTIFIC EVIDENCE - THE LAW AND SCIENCE OF EXPERT TESTIMONY 554 & n.5, § 14-1.0 (1997) ("Polygraphy, as indicated by its being the subject behind the Frye rule, has had a long and mostly troubled history in American courts. Throughout the twentieth century, courts have been, at best, skeptical of polygraph tests, and at worst and more usual, hostile to them.").
10. The courts have ruled on a variety of scientific technologies. See, e.g., United States v. Williams, 583 F.2d 1194 (2d Cir. 1978) (ruling on admissibility of spectrographic analysis of voice); United States v. Stifel, 433 F.2d 431 (6th Cir. 1970) (discussing neutron activation analysis); Commonwealth v. Cifizzari, 492 N.E.2d 357 (Mass. 1986) (ruling on bitemark evidence). Furthermore, the courts have addressed the psychological realm. See, e.g., Borawick v. Shay, 68 F.3d 597 (2d Cir. 1995) (ruling on repressed memories); State v. Dumlao, 491 A.2d 404 (Conn. App. Ct. 1985) (discussing battered child syndrome); State v. Marks, 647 P.2d 1292 (Kan. 1982) (discussing rape trauma syndrome); State v. Martens, 629 N.E.2d 462 (Ohio App. 3d 1993) (addressing post-traumatic stress disorder).
11. "In the succeeding decades [since Frye], many courts treated the early decision as if it established that polygraph results were inadmissible regardless of any improvements in the technology." JOHN WILLIAM STRONG, MCCORMICK ON EVIDENCE, § 206, at 913 & n.44 (4th ed. 1992). James A. Matte opined that judges often misunderstand the technique, and compound that ignorance with outdated polygraph test results taken on old instruments, a combination that dictates inadmissibility. See JAMES ALEXANDER MATTE, FORENSIC PSYCHOPHYSIOLOGY USING THE POLYGRAPH 563 (1996).
12. "In the succeeding decades [since Frye], many courts treated the early decision as if it established that polygraph results were inadmissible regardless of any improvements in the technology." JOHN WILLIAM STRONG, MCCORMICK ON EVIDENCE, § 206, at 913 & n.44 (4th ed. 1992). James A. Matte opined that judges often misunderstand the technique, and compound that ignorance with outdated polygraph test results taken on old instruments, a combination that dictates inadmissibility. See JAMES ALEXANDER MATTE, FORENSIC PSYCHOPHYSIOLOGY USING THE POLYGRAPH 563 (1996).
13. In 1995, Dr. William J. Yankee, the Director of the Department of Defense Polygraph Institute, the nation's foremost academy for training polygraph examiners, stated, "The period between 1986 and the present has been one of unparalleled advances in the Psychophysiological detection of deception testing procedures and processes." PAUL C. GIANNELLI & EDWARD J. IMWINKELRIED, SCIENTIFIC EVIDENCE § 8-2C (2d ed. 1993 & Supp. 1998); see also William J. Yankee, The Current Status of Research in Forensic Psychophysiology and Its Application in the Psychophysiological Detection of Deception, 40 J. FORENSIC SCI. 63 (1995).
14. In 1995, Dr. William J. Yankee, the Director of the Department of Defense Polygraph Institute, the nation's foremost academy for training polygraph examiners, stated, "The period between 1986 and the present has been one of unparalleled advances in the Psychophysiological detection of deception testing procedures and processes." PAUL C. GIANNELLI & EDWARD J. IMWINKELRIED, SCIENTIFIC EVIDENCE § 8-2C (2d ed. 1993 & Supp. 1998); see also William J. Yankee, The Current Status of Research in Forensic Psychophysiology and Its Application in the Psychophysiological Detection of Deception, 40 J. FORENSIC SCI. 63 (1995).
15. See United States v. Scheffer, 44 M.J. 442 (C.A.A.F. 1996). The CAAF decision was remarkable in that it was, up until that time, the highest level court that found constitutional implications in refusing to allow a defendant to present polygraph evidence. The court limited its holding to exculpatory evidence offered to rebut an attack on the accused's credibility. See id. at 445.
16. MRE 707 provides, in relevant part: "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." MIL. R. EVID. 707.
17. See id.
18. See United States v. Scheffer, 523 U.S. 303, 305 (1998).
19. Justice Thomas delivered the opinion of the Court, in which Chief Justice Rehnquist, Justice Scalia, and Justice Souter joined. See Scheffer, 523 U.S. at 304-17.
20. Justice Kennedy concurred in part and concurred in judgment and filed the opinion in which Justice O'Connor, Justice Ginsburg, and Justice Breyer joined. See id. at 318-20.
21. Justice Stevens dissented and filed an opinion. See id. at 320-39.
22. Id. at 309 (citing FAIGMAN, supra note 8, at 565 n. 14-2.0, at § 14.3.0 (1997)); see GIANNELLI, supra note 11, at 225-27; STRONG, supra note 10, at 909.
23. Scheffer, 523 U.S. at 312.
24. Id. at 316-17.
25. Id. at 317.
26. Though numerous decisions have theorized about the devastating impact that polygraph results would have on a jury, hard evidence has been hard to come by. In McMorris v. Israel, 643 F.2d 458 (7th Cir.), cert. denied, 455 U.S. 967 (1981), the Court noted that while technology has evolved, so has the public's sophistication in dealing with it. "Scientific evidence . . . has become more a part of the ordinary trial so that jurors may be more likely to use polygraph evidence with discretion." Id. at 462; see STRONG, supra note 10, at 916 & n.63; Charles R. Honts & Mary V. Perry, Polygraph Admissibility Changes and Challenges, 16 LAW & HUM. BEHAV. 357, 366 (1992).
27. See Scheffer, 523 U.S. at 318-19 (finding that the polygraph does not usurp the role of the jury and stating that he does not join Part II-C of the plurality's opinion concerning collateral litigation). Interestingly, these two arguments which were rejected by the Supreme Court were put forth as the policy reasons for adopting Military Rule of Evidence 707. "In [the opinion of the Drafters of the Military Rules of Evidence], polygraph evidence poses a real danger of misleading, confusing, and wasting the court's time. The Drafters believed that fact finders will view this evidence as infallible, unimpeachable, or conclusive of trial issues which in turn will cause courts-martial to degenerate into trials about polygraph machines, and court members into ignoring the military judge's cautionary instructions." STEPHEN A. SALTZBURG ET AL., MILITARY RULES OF EVIDENCE MANUAL 211 (3d ed. 1991 & Supp. 1996).
28. MRE 101 provides "If not otherwise prescribed in this Manual or these rules, and insofar as not inconsistent or contrary to the Code or this Manual, courts-martial shall apply: (1) First, the rules of evidence generally recognized in the trial of criminal cases in the United States District Courts . . . ." SALTZBURG, supra note 24, at 5. However, the MREs are the primary source of evidentiary law for military practice. See id. at 1.
29. The Federal Rules of Evidence have no equivalent rule to MRE 707 regarding polygraph inadmissibility. See Scheffer, 523 U.S. at 323.
30. The Supreme Court promulgates the Federal Rules of Evidence, which are approved by Congress. See RONALD L. CARLSON ET AL., MATERIALS FOR THE STUDY OF EVIDENCE 5-7 (1983). The President, as Commander in Chief of the Armed Forces, promulgates the MREs pursuant to Article 36(a), U.C.M.J. See 10 U.S.C. § 836(a) (1994). Congress had no part in drafting the MREs.
31. See Middendorf v. Henry, 425 U.S. 25, 43 (1976). Concerning the matter of civilian court deference to the military court system, the Navy-Marine Corps Appellate Division, in its amicus brief in support of the Respondent (Scheffer), argued that, particularly on the constitutional question presented, a civilian court must undertake an analysis of the military's interests as well as constitutional principles. They urged deference to and affirmance of the decision by the court below (the Court of Appeals for the Armed Forces) as being in the best position to analyze the military's interests in matters of military justice. See Brief Amicus Curiae of United States Navy-Marine Corps Appellate Defense Division in Support of Respondent at 2, Scheffer (No. 96-1133).
32. See Loving v. United States, 517 U.S. 748, 768-73 (1996); Weiss v. United States, 510 U.S. 163, 167 (1994); Solorio v. United States, 483 U.S. 435, 447-48 (1987); Rostker v. Goldberg, 453 U.S. 57, 70 (1981).
33. See United States v. Ruth, 42 M.J. 730 (1995) (applying Daubert standards in holding that handwriting analysis was not a scientific technique and did not depend on factors governing admissibility of expert scientific testimony).
34. Military terminology for defendant, specifically defined as "[o]ne against whom charges have been preferred for an offense under the Code." EDWARD M. BYRNE, MILITARY LAW 744 (3d ed. 1981).
35. The Supreme Court's opinions [c]oncerning the Constitution's application to the military justice system have exhibited a theme of extending constitutional rights to service members without limitation, except where necessary due to the unique character of the military . . . . While the President and Congress may establish rules for courts-martial . . . it is axiomatic that neither is free to disregard the Constitution when acting in the area of military affairs. Brief of the United States Army Defense Appellate Defense Division as Amicus Curiae in Support of Respondent at 22, 23 Scheffer (No. 96-1133); see also Solorio v. United States, 483 U.S. 435, 447 (1987) (holding that "the plain language of the Constitution . . . should be controlling on the subject of court-martial jurisdiction"); Barney F. Bilello, Judicial Review and Soldiers' Rights: Is the Principle of Deference a Standard of Review?, 17 HOFSTRA L. REV. 465 (1989).
36. Article 31, U.C.M.J. protects a member against compulsory self-incrimination, even if not in custody. See 10 U.S.C. § 831 (1994); see also MATTE, supra note 10, at 562 ("Our military justice system is replete with examples of safeguards for the rights of military accused which are not available to their civilian counterparts.").
37. See generally United States v. Scheffer, 523 U.S. 303 (1998).
38. See infra pp. 1701-03 and accompanying notes.
39. 509 U.S. 579 (1993).
40. Rule 702 reads, "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." FED. R. EVID. 702. Military Rule of Evidence 702, concerning "Testimony by Experts," contains exactly the same wording as Federal Rule of Evidence 702: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." MIL. R. EVID. 702.
41. Courts agree that "Daubert applies to polygraph techniques." FAIGMAN, supra note 8, at 560 & n.49.
42. See supra note 3.
43. James R. McCall, Misconceptions and Reevaluation - Polygraph Admissibility After Rock and Daubert, 1996 U. ILL. L. REV. 363, 369. Psychophysiologists study the relationship between psychological processes and bodily reactions. They measure the physiological reactions of people in controlled situations and from a knowledge of the situation and the stimulation provided, can make inferences about the psychological processes the individual is experiencing. The polygraph measures those physiological reactions. As Honts and Perry elucidated, "[I]t is important to note that there is no one polygraph technique. There are a great many polygraph techniques known by many names, although they all have certain characteristics in common." Honts
44. & Perry, supra note 23, at 358.
45. In the overwhelming majority of cases after Frye that involved the polygraph, "courts relied on Frye's general acceptance test as the basis for excluding testimony about polygraph examinations. The general rule emerged that evidence of a polygraph examination was per se inadmissible." Edward J. Imwinkelried & James R. McCall, Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations, 32 WAKE FOREST L. REV. 1045, 1048 (1997).
46. The Eleventh Circuit admitted polygraph evidence as early as 1989 after holding in United States v. Piccinonna, 885 F.2d 1529 (1989), that polygraph evidence could be admitted where the parties stipulated in advance as to the circumstances of the test and as to the scope of its admissibility. Four years before Daubert, Piccinonna charted new evidentiary territory by interpreting FRE 702 and finding that a complete bar to polygraph evidence was no longer defensible. The Piccinonna court pointed to the tremendous advances that had occurred in the field of polygraphy, its widespread use in military and law enforcement, and cited that in over 92% of cases, "a properly administered polygraph test is a highly effective way to detect deception." Id. at 1533 & n.12. In State v. Dorsey, 539 P.2d 204 (N.M. 1975), the New Mexico Supreme Court allowed polygraph results, treating them no differently than other types of scientific evidence. Dorsey required that the procedure be reliable, the operator be competent, and that the polygraph tests on the subject be valid. Id. Subsequently, New Mexico incorporated these requirements, further articulated in case law, by adopting a state rule of evidence in 1983 (N.M. R. EVID. § 11-707). See infra notes 231-32.
47. Prof. Edward J. Imwinkelried, an expert on scientific evidence, posited in a 1981 law review article that the American legal system was entering a new stage in the evolution of scientific evidence, dominated by questions of weight rather than admissibility. See Edward J. Imwinkelried, A New Era in the Evolution of Scientific Evidence-A Primer on Evaluating the Weight of Scientific Evidence, 23 WM. & MARY L. REV. 261 (1981). Though Daubert would be decided more than a decade later, he noted that the courts even then reflected a liberalizing trend in scientific evidence, given the "less than enthusiastic" view of Frye, which had already been subjected to a "drumbeat of criticism" by knowledgeable commentators. Id. at 264. In his article, he anticipated Sixth Amendment constitutional challenges for exclusion of scientific evidence. See id. at 267. Frye has been characterized as an "historical test rather than a scientific test," where "the nature of the general acceptance test almost necessarily builds in a substantial lag time between the advent of a new, valid scientific technique and the admission of testimony based on the technique." EDWARD J. IMWINKELRIED & NORMAN M. GARLAND, EXCULPATORY EVIDENCE - THE ACCUSED'S CONSTITUTIONAL RIGHT TO INTRODUCE FAVORABLE EVIDENCE § 13-7 (2d ed. 1996).
48. Prof. Edward J. Imwinkelried, an expert on scientific evidence, posited in a 1981 law review article that the American legal system was entering a new stage in the evolution of scientific evidence, dominated by questions of weight rather than admissibility. See Edward J. Imwinkelried, A New Era in the Evolution of Scientific Evidence-A Primer on Evaluating the Weight of Scientific Evidence, 23 WM. & MARY L. REV. 261 (1981). Though Daubert would be decided more than a decade later, he noted that the courts even then reflected a liberalizing trend in scientific evidence, given the "less than enthusiastic" view of Frye, which had already been subjected to a "drumbeat of criticism" by knowledgeable commentators. Id. at 264. In his article, he anticipated Sixth Amendment constitutional challenges for exclusion of scientific evidence. See id. at 267. Frye has been characterized as an "historical test rather than a scientific test," where "the nature of the general acceptance test almost necessarily builds in a substantial lag time between the advent of a new, valid scientific technique and the admission of testimony based on the technique." EDWARD J. IMWINKELRIED & NORMAN M. GARLAND, EXCULPATORY EVIDENCE - THE ACCUSED'S CONSTITUTIONAL RIGHT TO INTRODUCE FAVORABLE EVIDENCE § 13-7 (2d ed. 1996).
49. See Daubert v. Merrell Dow Pharmaceutical, 509 U.S. 579, 597 (1993). The gate the judge keeps is that of Rule 104(a), where, faced with a proffer of expert scientific testimony, the judge must determine, at the outset, "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Id. at 592. Rule 104(a) provides, in relevant part: "Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court . . . ." FED. R. EVID. 104(a).
50. In a scientific context, validity refers to a test's accuracy, the ability to measure what it says it is measuring. Reliability refers to reproducibility, or consistency of results. When referring to the polygraph, "Reliability is important, but the polygraph debate really centers around the test's validity [its ability to detect deception]." State v. Porter, 698 A.2d 739, 763 & n.46 (Conn. 1997). This Note will use the non-scientific meaning of the term "reliability" to denote the polygraph's accuracy in measuring what it purports to measure: the percentage of cases where a person's guilt or innocence is accurately determined. See infra note 203 (regarding "evidentiary reliability"). 46. The Supreme Court reaffirmed its Daubert standard for scientific evidence more recently in General Electric v. Joiner, 522 U.S. 136 (1997), where it applied an abuse of discretion standard to the trial court judge's ruling that scientific evidence is both relevant and reliable. The Court cleared up a Daubert ambiguity more recently in Kumho Tire Co., Ltd. v. Carmichael, _ U.S. _, 119 S.Ct. 1167 (1999), by holding that Daubert's gatekeeping obligation applied not only to scientific testimony, but to all expert testimony.
51. Though declining to set forth a definitive checklist, the Daubert Court listed several factors that federal judges could consider as guidelines when faced with determining whether to admit expert scientific testimony under FRE 702: (1) whether the theory/technique had been tested; (2) whether the theory/technique had been subjected to peer review and publication (a process by which other scientists could detect substantive flaws in methodology); (3) the technique's known or potential rate of error; (4) whether standards controlling the technique existed and had been maintained; (5) whether the theory/technique had gained a widespread level of acceptance within the relevant scientific community. See Daubert, 509 U.S. at 593-94.
52. The plurality and concurring judges expressed concern about polygraph reliability throughout Section II-A of the Scheffer decision, supported by citations to studies and cases that questioned or challenged polygraph accuracy. They espoused circular reasoning: because the polygraph was not reliable, it was not generally accepted, and it was not generally accepted because it was unreliable.
53. An oft-quoted 1975 decision captured the flavor of the popular prejudice against the polygraph. The decision expressed fear that a jury would imbue the polygraph with "an aura of near infallibility akin to the ancient oracle of Delphi." United States v. Alexander, 526 F.2d 161, 168 (8th Cir. 1975). A Seventh Circuit opinion voiced hostility to the polygraph in stating, "[J]udges loathe the specter [sic] of trial by machine, wherein each man's sworn testimony may be put to the electronic test." United States v. Bursten, 560 F.2d 779, 785 (7th Cir. 1977). Twenty years later, one of the Scheffer Amicus Curiae termed the polygraph "a class of evidence that is inherently dangerous to justice." Brief Amicus Curiae of the Criminal Justice Legal Foundation in Support of Petitioner at 1-2, Scheffer (No 96-1133). Another polygraph critic, Leonard Saxe, a Brandeis University psychologist, claimed that it made no more sense to tell jurors about polygraph evidence than to tell them about the suspect's astrological chart. See David G. Savage, Let Trial Judges Decide - High Court Rejects a Per Se Rule on Polygraph Evidence, 84 A.B.A. J. 52, 53 (June 1998). Honts & Perry observed, "Public information, and very often disinformation, on the field of polygraphy virtually mandates the use of an expert witness if for nothing else then to dispel the myths about polygraphy emanating from the popular media and from overly zealous supports [sic] and detractors." Honts & Perry, supra note 23, at 363. Even military court decisions had been divided on the polygraph. See United States v. Rodriguez, 37 M.J. 448 (C.M.A. 1993) (reversing a conviction of a master sergeant who testified that he had never used drugs). The government had been permitted to introduce polygraph evidence that he had been deceptive when denying knowingly using drugs. See id. In reversing the conviction, the court said that given the government's failure "to establish the reliability of this weapon of devastation," its results were improperly admitted. Id. at 453.
54. See Bennett L. Gershman, Lie Detection: The Supreme Court's Polygraph Decision, N.Y. ST. B. J., Sept.-Oct. 1998, at 34 (citing MOENSSENS, INBAU, & STARRS, SCIENTIFIC EVIDENCE IN CRIMINAL CASES, § 14.09, at 712 (3d ed. 1986)).
55. See infra notes 254-55, 257.
56. Twenty-eight state courts plus the District of Columbia exclude polygraph evidence; fifteen states admit polygraph evidence by stipulation of the parties; two states allow polygraph evidence to be admitted in certain proceedings and Mississippi and New Mexico allow admission of polygraph evidence, with restrictions, at trial. See Brief of the State of Connecticut and 27 States as Amici Curiae in Support of Petitioner at 4-5, Scheffer (No. 96-1133); infra note 261.
57. McCall, supra note 40, at 380 (citing Witherspoon v. Superior Court, 183 Cal.Rptr. 615 (Cal. Ct. App. 1982)).
58. Justice Stevens cited a study by J. Widacki and F. Horvath. See United States v. Scheffer, 523 U.S. 303, 333-34 & n.24 (1988). This study discussed how polygraph evidence was compared to fingerprinting, handwriting analysis, and eyewitness identification. See Widaki & Horvath, An Experimental Investigation of the Relative Validity and Utility of the Polygraph Technique and Three Other Common Methods of Criminal Investigation, 23 J. FORENSIC Sci., 596, 596-600 (1978). When inconclusive results from the tests were excluded, the fingerprinting expert correctly resolved 100% of cases, the polygraph expert 95%, the handwriting expert 94% and eyewitness 64%. See id. When inconclusive results were factored in, the polygrapher resolved 90% of cases correctly, the handwriting expert 85%, the eyewitness 35% and the fingerprinting expert 20%. See id.; Scheffer, supra. The study concluded, "[O]ur findings do support the claim of practitioners that relative to other methods the polygraph technique is particularly valuable for resolving criminal investigations." Widacki & Horvath, supra, at 600. For a discussion of these test results, see STAN ABRAMS, THE COMPLETE POLYGRAPH HANDBOOK 184 (1989) and MATTE, supra note 10, at 5 ("The aforesaid study supports Reid and Inbau's statement . . . that the accuracy of the psychophysiological veracity (PV) examination is commensurate with and even superior to most of the presently approved forms of evidence."). One scholar pointed out how prejudice against the polygraph translated legally by observing that the Frye standard had not been invoked to assess certain types of expert scientific testimony such as ballistics, intoxication tests and X-rays (allowing admissibility), while it had been consistently applied to the polygraph, rendering it inadmissible. See Honts & Perry, supra note 23, at 375 ("The continued widespread exclusion of polygraph tests appears to lie in a continued distrust of the polygraph based on concerns about logical relevance. This distrust is despite the fact that polygraph tests have been demonstrated to be more accurate than many forensic techniques routinely admitted by the courts.") (citation omitted); McCall, supra note 40, at 377 (highlighting other scientific evidence authorized for legal admission, which "raise substantial accuracy or validity questions"); Mark McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 IOWA L. REV. 879, 884-85 (1982); Donald F. O'Conner, Jr., The Polygraph: Scientific Evidence at Trial, 37 NAVAL L. REV. 97, 106 (1988) (discussing examples of scientific evidence, such as neutron activation analysis, based on scientific principles less reliable than polygraphy, but accepted at trial).
59. Justice Stevens cited a study by J. Widacki and F. Horvath. See United States v. Scheffer, 523 U.S. 303, 333-34 & n.24 (1988). This study discussed how polygraph evidence was compared to fingerprinting, handwriting analysis, and eyewitness identification. See Widaki & Horvath, An Experimental Investigation of the Relative Validity and Utility of the Polygraph Technique and Three Other Common Methods of Criminal Investigation, 23 J. FORENSIC Sci., 596, 596-600 (1978). When inconclusive results from the tests were excluded, the fingerprinting expert correctly resolved 100% of cases, the polygraph expert 95%, the handwriting expert 94% and eyewitness 64%. See id. When inconclusive results were factored in, the polygrapher resolved 90% of cases correctly, the handwriting expert 85%, the eyewitness 35% and the fingerprinting expert 20%. See id.; Scheffer, supra. The study concluded, "[O]ur findings do support the claim of practitioners that relative to other methods the polygraph technique is particularly valuable for resolving criminal investigations." Widacki & Horvath, supra, at 600. For a discussion of these test results, see STAN ABRAMS, THE COMPLETE POLYGRAPH HANDBOOK 184 (1989) and MATTE, supra note 10, at 5 ("The aforesaid study supports Reid and Inbau's statement . . . that the accuracy of the psychophysiological veracity (PV) examination is commensurate with and even superior to most of the presently approved forms of evidence."). One scholar pointed out how prejudice against the polygraph translated legally by observing that the Frye standard had not been invoked to assess certain types of expert scientific testimony such as ballistics, intoxication tests and X-rays (allowing admissibility), while it had been consistently applied to the polygraph, rendering it inadmissible. See Honts & Perry, supra note 23, at 375 ("The continued widespread exclusion of polygraph tests appears to lie in a continued distrust of the polygraph based on concerns about logical relevance. This distrust is despite the fact that polygraph tests have been demonstrated to be more accurate than many forensic techniques routinely admitted by the courts.") (citation omitted); McCall, supra note 40, at 377 (highlighting other scientific evidence authorized for legal admission, which "raise substantial accuracy or validity questions"); Mark McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 IOWA L. REV. 879, 884-85 (1982); Donald F. O'Conner, Jr., The Polygraph: Scientific Evidence at Trial, 37 NAVAL L. REV. 97, 106 (1988) (discussing examples of scientific evidence, such as neutron activation analysis, based on scientific principles less reliable than polygraphy, but accepted at trial).
60. Justice Stevens cited a study by J. Widacki and F. Horvath. See United States v. Scheffer, 523 U.S. 303, 333-34 & n.24 (1988). This study discussed how polygraph evidence was compared to fingerprinting, handwriting analysis, and eyewitness identification. See Widaki & Horvath, An Experimental Investigation of the Relative Validity and Utility of the Polygraph Technique and Three Other Common Methods of Criminal Investigation, 23 J. FORENSIC Sci., 596, 596-600 (1978). When inconclusive results from the tests were excluded, the fingerprinting expert correctly resolved 100% of cases, the polygraph expert 95%, the handwriting expert 94% and eyewitness 64%. See id. When inconclusive results were factored in, the polygrapher resolved 90% of cases correctly, the handwriting expert 85%, the eyewitness 35% and the fingerprinting expert 20%. See id.; Scheffer, supra. The study concluded, "[O]ur findings do support the claim of practitioners that relative to other methods the polygraph technique is particularly valuable for resolving criminal investigations." Widacki & Horvath, supra, at 600. For a discussion of these test results, see STAN ABRAMS, THE COMPLETE POLYGRAPH HANDBOOK 184 (1989) and MATTE, supra note 10, at 5 ("The aforesaid study supports Reid and Inbau's statement . . . that the accuracy of the psychophysiological veracity (PV) examination is commensurate with and even superior to most of the presently approved forms of evidence."). One scholar pointed out how prejudice against the polygraph translated legally by observing that the Frye standard had not been invoked to assess certain types of expert scientific testimony such as ballistics, intoxication tests and X-rays (allowing admissibility), while it had been consistently applied to the polygraph, rendering it inadmissible. See Honts & Perry, supra note 23, at 375 ("The continued widespread exclusion of polygraph tests appears to lie in a continued distrust of the polygraph based on concerns about logical relevance. This distrust is despite the fact that polygraph tests have been demonstrated to be more accurate than many forensic techniques routinely admitted by the courts.") (citation omitted); McCall, supra note 40, at 377 (highlighting other scientific evidence authorized for legal admission, which "raise substantial accuracy or validity questions"); Mark McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 IOWA L. REV. 879, 884-85 (1982); Donald F. O'Conner, Jr., The Polygraph: Scientific Evidence at Trial, 37 NAVAL L. REV. 97, 106 (1988) (discussing examples of scientific evidence, such as neutron activation analysis, based on scientific principles less reliable than polygraphy, but accepted at trial).
61. Justice Stevens cited a study by J. Widacki and F. Horvath. See United States v. Scheffer, 523 U.S. 303, 333-34 & n.24 (1988). This study discussed how polygraph evidence was compared to fingerprinting, handwriting analysis, and eyewitness identification. See Widaki & Horvath, An Experimental Investigation of the Relative Validity and Utility of the Polygraph Technique and Three Other Common Methods of Criminal Investigation, 23 J. FORENSIC Sci., 596, 596-600 (1978). When inconclusive results from the tests were excluded, the fingerprinting expert correctly resolved 100% of cases, the polygraph expert 95%, the handwriting expert 94% and eyewitness 64%. See id. When inconclusive results were factored in, the polygrapher resolved 90% of cases correctly, the handwriting expert 85%, the eyewitness 35% and the fingerprinting expert 20%. See id.; Scheffer, supra. The study concluded, "[O]ur findings do support the claim of practitioners that relative to other methods the polygraph technique is particularly valuable for resolving criminal investigations." Widacki & Horvath, supra, at 600. For a discussion of these test results, see STAN ABRAMS, THE COMPLETE POLYGRAPH HANDBOOK 184 (1989) and MATTE, supra note 10, at 5 ("The aforesaid study supports Reid and Inbau's statement . . . that the accuracy of the psychophysiological veracity (PV) examination is commensurate with and even superior to most of the presently approved forms of evidence."). One scholar pointed out how prejudice against the polygraph translated legally by observing that the Frye standard had not been invoked to assess certain types of expert scientific testimony such as ballistics, intoxication tests and X-rays (allowing admissibility), while it had been consistently applied to the polygraph, rendering it inadmissible. See Honts & Perry, supra note 23, at 375 ("The continued widespread exclusion of polygraph tests appears to lie in a continued distrust of the polygraph based on concerns about logical relevance. This distrust is despite the fact that polygraph tests have been demonstrated to be more accurate than many forensic techniques routinely admitted by the courts.") (citation omitted); McCall, supra note 40, at 377 (highlighting other scientific evidence authorized for legal admission, which "raise substantial accuracy or validity questions"); Mark McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 IOWA L. REV. 879, 884-85 (1982); Donald F. O'Conner, Jr., The Polygraph: Scientific Evidence at Trial, 37 NAVAL L. REV. 97, 106 (1988) (discussing examples of scientific evidence, such as neutron activation analysis, based on scientific principles less reliable than polygraphy, but accepted at trial).
62. Polygraph proponents and opponents will either laud the results or criticize the methodology of the same study in an effort to prove their premise that the polygraph is or is not reliable. See, e.g., OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, SCIENTIFIC VALIDITY OF POLYGRAPH TESTING: A RESEARCH REVIEW AND EVALUATION 5 (1983) [hereinafter OTA REPORT]. Opponents of polygraph reliability point to the OTA REPORT concluding that "when used in criminal investigations, the polygraph test detects deception better than chance, but with error rates that could be considered significant." Id. The OTA REPORT is reprinted in its entirety in 12 POLYGRAPH 198-319 (1983). The Government's Brief cited the OTA REPORT for the proposition that "no overall measure of single, simple judgment of polygraph testing validity can be established based on available scientific evidence," and proceeded to enumerate various studies that acknowledged the raging debate on polygraph accuracy. Brief for the United States at 19-21, Scheffer (No. 96-1133). Proponents cite results that could be interpreted as in their favor, such as "the conclusion about scientific validity can be made only in the context of specific applications," which keeps the door to polygraph evidence open simply because it does not discount it altogether. IMWINKELRIED & GARLAND, supra note 43, § 6-5, at 174 (quoting OTA REPORT at 4). Proponents also vigorously criticize the methodology of the sixteen year old study as using an improper statistic and treating inconclusive test results as errors. "As such, the petitioner's reliance upon the conclusion of the OTA Study - that polygraph tests in criminal investigations have significant error rates - is undermined by the study's suspect statistic." Brief for the Respondent at 22-23, Scheffer (No. 96-1133); see Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent at 14-15, Scheffer (No. 96-1133). Another bone of scientific interpretive contention is how the results of surveys among members of the Society for Psychophysiological Research, designed to quantify the level of polygraph acceptance among members of the relevant scientific community, are interpreted. See infra notes 238-39.
63. STRONG, supra note 10, at 908 & n.24; see, e.g., Paul C. Giannelli, Polygraph Evidence: Post-Daubert, 49 HASTINGS L. J. 895 (1998).
64. See generally United States v. Posado, 57 F.3d 428 (5th Cir. 1995) (admitting polygraph evidence on a case-by-case basis; concluding its per se rule against polygraph admissibility did not survive Daubert); United States v. Sherlin, 67 F.3d 1208 (6th Cir. 1995) (admitting polygraph evidence if stipulated to by both parties before the test is administered and trial judge determines that requirements of FREs are met); United States v. Pulido, 69 F.3d 192 (7th Cir. 1995) (stating that polygraph admissibility under FREs is left to the sole discretion of the trial judge); United States v. Cordoba, 104 F.3d 225 (9th Cir. 1997) (holding that polygraph admissibility should be applied on a case-by-case basis). Some courts, however, have found that Daubert did not change their approach to polygraph evidence. See United States v. Black, 831 F.Supp. 120, 123 (S.D.N.Y. 1993) ("After evaluating the standard set forth in the Daubert case, premised on Rule 702 of the Federal Rules of Evidence, the Court believes that nothing in Daubert would disturb the settled precedent that polygraph evidence is neither reliable nor admissible.").
65. The CAAF decision described what proof was necessary to lay a proper foundation for polygraph evidence. See United States v. Scheffer, 44 M.J. 442, 446-47 (C.A.A.F. 1996). The proponent had to establish "that the underlying theory - that a deceptive answer will produce a measurable physiological response - [was] scientifically valid, . . . that the theory [could] be applied to the [accused's] case . . ., that the examiner [was] qualified, the equipment worked properly and was properly used, and that the examiner used valid questioning techniques." Id. If the Daubert hearing resulted in the admission of the exculpatory polygraph data, this evidence would have negated the mens rea element of the knowing ingestion of methamphetamine charge, giving credence to Scheffer's claim of innocent ingestion. The panel members would then assess the proper weight to be given this evidence, and it may have been enough to reverse Scheffer's conviction on this charge.
66. See infra notes 94, 105, and 128-30.
67. United States v. Scheffer, 523 U.S. 303, 306 (1998).
68. See Scheffer, 44 M.J. at 443.
69. 523 U.S. at 306.
70. See generally United States v. Graham, 50 M.J. 56 (C.A.A.F. 1999) (discussing an innocent ingestion defense).
71. See Scheffer, 523 U.S. at 306.
72. 44 M.J. at 444.
73. Respondent's Brief at 14, Scheffer (No. 96-1133). "Twenty-one times, in closing argument alone, [Scheffer] was called a liar or [the Government] said his credibility was lacking . . . ." Transcript of Oral Argument Before the Supreme Court at 42, Scheffer (No. 96-1133).
74. Military terminology for a jury at a court-martial. "A person subject to the Code who is detailed to a court-martial has to determine whether an accused has been proven guilty and to determine an appropriate sentence if the accused is found guilty." BYRNE, supra note 31, at 751.
75. Respondent's Brief at 14, Scheffer (No. 96-1133) (emphasis added).
76. Scheffer was "convicted on all counts and was sentenced to a bad-conduct discharge, confinement for 30 months, total forfeiture of all pay and allowances, and reduction to the lowest enlisted grade." Scheffer, 523 U.S. at 307.
77. See United States v. Scheffer, 41 M.J. 683 (C.C.A. 1995).
78. See United States v. Scheffer, 44 M.J. 442 (C.A.A.F. 1996).
79. Id. at 445.
80. Id. at 446.
81. United States v. Posado, 57 F.3d 428, 433 (5th Cir. 1995).
82. See Scheffer, 523 U.S. at 308.
83. 483 U.S. 44 (1987).
84. See ALFREDO GARCIA, THE SIXTH AMENDMENT IN MODERN AMERICAN JURISPRUDENCE: A CRITICAL PERSPECTIVE 127 (1992).
85. The Supreme Court has manifested a decided aversion to per se rules in a variety of contexts, as indicated in recent decisions. See also IMWINKELRIED & GARLAND, supra note 43, at 494 (noting that the accused's right to present evidence "is accentuating the modern trend to place greater stress on logical relevance and the concomitant tendency to devalue exclusionary evidentiary rules."); see, e.g., Minnesota v. Carter, 525 U.S. 83 (1998) (declining to apply a per se rule of home protection in the context of the exclusionary rule); Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (rejecting three per se rules of employer liability or immunity in Title VII cases); Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564 1997) (holding tax exemption clause which singled out institutions serving mostly in state residents for beneficial tax treatment, pursuant to a per se rule, unconstitutional); Ohio v. Robinette, 519 U.S. 33 (1996) (rejecting per se rule concerning voluntariness of consent to search, and emphasizing fact-specific nature of the reasonableness inquiry); Florida v. Bostick, 501 U.S. 429 (1991) (reversing a Florida Supreme Court decision which adopted a per se rule that questioning aboard a bus always constituted a seizure).
86. See 483 U.S. at 61.
87. See id. at 53.
88. Id. at 52.
89. Id. at 61.
90. Id. at 59.
91. Hypnosis had been credited with obtaining investigative leads that had later been independently confirmed. See People v. Hughes, 453 N.E.2d 484, 488 (N.Y. 1983).
92. Rock, 483 U.S. at 61. Other safeguards mentioned by the Rock Court included: adopting rules providing that hypnosis affects credibility, not admissibility; allowing individualized inquiries in each case; and establishing procedural prerequisites in order to reduce risks associated with hypnosis. See id. at 59 & n.16.
93. Id. (emphasis added).
94. Id. at 55. The Scheffer plurality emphasized the importance of limiting evidentiary rules by citing additional cases on point, including Taylor v. Illinois, 484 U.S. 400, 410 (1988) and Chambers v. Mississippi, 410 U.S. 284, 295 (1973).
95. Chambers, 410 U.S. at 295.
96. United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock, 483 U.S. at 56).
97. Id. (citations omitted).
98. IMWINKELRIED & GARLAND, supra note 43, § 2-4, at 52.
99. See Scheffer, 523 U.S. at 308.
100. Id. at 309 (emphasis added).
101. The two legitimate interests cited by the Court were preserving the jury's function of determining the weight and credibility of witnesses, and avoiding collateral litigation. See id. at 313-14. One commentator wryly noted that "Justice Thomas . . . concluded that the avoidance of litigation over issues other than the guilt or innocence of the accused was a legitimate consideration of judicial economy." John T. Winemiller, Note, Criminal Law - Constitutional Right to Present a Defense - Per Se Rules Against the Admission of Exculpatory Polygraph Evidence, 66 TENN. L. REV. 331, 344 (1998).
102. Scheffer, 523 U.S. at 309.
103. At the upper range of polygraph reliability, the plurality cited ABRAMS, supra note 54, at 190-91 (1968), and for the lower range, they cited Iacono and Lykkin's article, The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in FAIGMAN, supra note 8, at 629. Lykken is a noted critic of certain types of polygraph testing procedures. See, e.g., DAVID T. LYKKEN, A TREMOR IN THE BLOOD: USES AND ABUSES OF THE LIE DETECTOR (2d. ed. 1998).
104. Scheffer, 523 U.S. at 312.
105. See Rock v. Arkansas, 483 U.S. 44 (1987); Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967).
106. Scheffer, 523 U.S. at 315.
107. Id. Under the Sixth Amendment, the accused's right to present a defense - to call witnesses - is more fundamental than the right to testify in one's own defense. See Brief for the Respondent at 9-10, Scheffer (No. 96-1133). "The Sixth Amendment, on its face, is silent about an accused's right to testify on his own behalf." Id. at 9. At the time the Constitution was adopted, the common law rule prevented a defendant from testifying in his own behalf, but allowed the defendant to call witnesses. Id. Rock considered the right to testify in one's own defense as a subject to the more fundamental right to present a defense by calling witnesses. See, e.g., Nix v. Whiteside, 475 U.S. 157 (1985); Jones v. Barnes, 463 U.S. 745 (1983); Brooks v. Tennessee, 406 U.S. 605 (1972); Harris v. New York, 401 U.S. 222 (1971); see infra Section II-A.
108. Scheffer, 523 U.S. at 316-17.
109. Id. at 317 (emphasis added).
110. Id. at 312.
111. The concurring justices observed, "The continuing good-faith disagreement among experts and courts on the subject of polygraph reliability counsels against our invalidating a per se exclusion of polygraph results . . . ." Id. at 318.
112. The concurring opinion did not discuss the collateral litigation issue, but on the issue of the polygraph impinging on the province of the jury, Justice Kennedy criticized the principal opinion as "overreaching" when it rested its holding on the ground that "the jury's role in making credibility determinations is diminished when it hears polygraph evidence," and expressed surprised that the plurality had invoked the ultimate issue argument. Id.
113. Id.
114. Id.
115. Brief of the State of Connecticut and 27 States as Amici Curiae in Support of Petitioner, Scheffer (No. 96-1133). Describing polygraph evidence as "unreliable and overly prejudicial," the Brief warned that allowing such evidence would "obliterate the years of experience that the States have had with this type of evidence and force them to abandon their well-developed policy considerations for excluding it." Id. at 2-3. Among the policy reasons cited were that the validity of test results had not been established, trial court resources utilized to address and supervise such evidence rendered it too burdensome (lengthening trial time), and the polygraph usurps the function of the jury to assess credibility. See id. 109. Scheffer, 523 U.S. at 318.
116. Id.; see infra pp. 1679-80.
117. See infra notes 132-35. In his dissent, Justice Stevens commented on this irony. See Scheffer, 523 U.S. at 337-38 (Stevens, J., dissenting).
118. See Scheffer, 523 U.S. at 320 (Stevens, J., dissenting); see also 10 U.S.C. § 836(a) (1994) (allowing the President to promulgate evidentiary rules "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 . . . ."). This issue was not briefed in the courts below. It appears settled that the MREs can be viewed as "sufficiently procedural or evidentiary to withstand challenge." SALTZBURG, supra note 24, at xi. But see, e.g., United States v. Frederick, 3 M.J. 230 (C.M.A. 1977).
119. See Scheffer, 523 U.S. at 320 (Stevens, J., dissenting) (noting that this statutory issue had not been briefed).
120. See Taylor v. Illinois, 484 U.S. 400 (1988); Crane v. Kentucky, 476 U.S. 683 (1986); Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967).
121. Scheffer, 523 U.S. at 327 (Stevens, J., dissenting) (citing Washington, 388 U.S. at 20-21); see also Hawkins v. United States, 358 U.S. 74, 75-76 (1958); Benson v. United States, 146 U.S. 325, 335 (1892).
122. Scheffer, 523 U.S. at 328 (Stevens, J., dissenting).
123. Id. at 331.
124. Id. at 332 (citing United States v. Biaggi, 909 F.2d 662, 691-92 (2d Cir. 1990)); see Imwinkelried & McCall, supra note 41, at 1058, 1060-62.
125. Scheffer, 523 U.S. at 332 (Stevens, J., dissenting).
126. See id. (citing The Scientific Status of Research on Polygraph Techniques: The Case for Polygraph Tests, in FAIGMAN, supra note 8, at 572; ABRAMS, supra note 54, at 190-91).
127. Scheffer, 523 U.S. at 333 (Stevens, J., dissenting). Polygraph opponents emphasize the danger that people could be taught to undermine polygraph test results by employing a variety of physical or mental countermeasures. The government's brief mentions hypnosis (an interesting point, given its supposed unreliability as articulated in Rock), ingestion of drugs and subtle muscular movements as confounding polygraph results. Yet the brief goes on to admit that "no good evidence as to how well these countermeasures work under real life conditions" has been amassed. Brief for the United States at 25, Scheffer (No. 96-1133). While acknowledging that people can be trained to used countermeasures to fool the polygraph, Justice Stevens emphasized that that possibility was not enough to justify a per se ban. Scheffer, 523 U.S. 335, n.25 (Stevens, J., dissenting). For further discussions on the issue of countermeasures, see, e.g., ABRAMS, supra note 54, at 185-86; FAIGMAN, supra note 8, at 576-79, 595; GIANNELLI & IMWINKELRIED, supra note 11, at 229-30; LYKKEN, supra note 96, at 230-32, 273-77, 292-93; see infra note 247.
128. Scheffer, 523 U.S. at 335 (Stevens, J., dissenting) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993)).
129. Id. at 334.
130. Id. (emphasis added).
131. Barefoot v. Estelle, 463 U.S. 880, 898-901 (1983). In Barefoot, the Court came to the opposite conclusion on a per se rule of admissibility, and refused to bar evidence that was clearly unreliable. Although the American Psychiatric Association (APA) in their amicus brief strongly rejected predictions of future dangerousness, the Supreme Court stated, "We are no more convinced now that the rule of the APA should be converted into a constitutional rule barring an entire category of expert testimony . . . Neither petitioner nor the Association suggests that psychiatrists are always wrong with respect to future dangerousness, only most of the time." Id. at 899, 901. This almost flippant attitude towards accuracy, in a case where the defendant faced the death penalty as a result of a psychiatrist predicting future dangerousness, makes a mockery of the Court's apparent requirement of extremely high reliability for the polygraph. In addition, the Barefoot Court expressed confidence in the adversary process as the cauldron where reliable and unreliable evidence could be sorted out. See id. at 901.
132. See Widacki & Horvath, supra note 54, at 596-600.
133. See, e.g., Erica Beecher-Monas, Blinded by Science: How Judges Avoid the Science in Scientific Evidence, 71 TEMP. L. REV. 55, 56-57, 66 (1998) (pointing out that certain "time-honored" prosecutorial tools such as fingerprinting have found their way into courtrooms with hardly any demonstration of their scientific bases, and that virtually no empirical data on error rates is available for such routinely admitted evidence as voiceprints and handwriting analysis); Lloyd C. Peeples, III et al., Note, Exculpatory Polygraphs in the Courtroom: How the Truth May Not Set You Free, 28 CUMB. L. REV. 77, 95-96 (1997-1998) (discussing how courts should exclude rape trauma syndrome evidence for the same reasons that courts routinely refuse to admit polygraph evidence) [hereinafter Exculpatory Polygraphs]; Brief of the United States Army Defense Appellate Division as Amicus Curiae in Support of Respondent at 5, n.6, Scheffer (No. 96-1133) (noting that other expert evidence of controversial scientific reliability has been admitted in courts, such as post-hypnotic identification).
134. See, e.g., Erica Beecher-Monas, Blinded by Science: How Judges Avoid the Science in Scientific Evidence, 71 TEMP. L. REV. 55, 56-57, 66 (1998) (pointing out that certain "time-honored" prosecutorial tools such as fingerprinting have found their way into courtrooms with hardly any demonstration of their scientific bases, and that virtually no empirical data on error rates is available for such routinely admitted evidence as voiceprints and handwriting analysis); Lloyd C. Peeples, III et al., Note, Exculpatory Polygraphs in the Courtroom: How the Truth May Not Set You Free, 28 CUMB. L. REV. 77, 95-96 (1997-1998) (discussing how courts should exclude rape trauma syndrome evidence for the same reasons that courts routinely refuse to admit polygraph evidence) [hereinafter Exculpatory Polygraphs]; Brief of the United States Army Defense Appellate Division as Amicus Curiae in Support of Respondent at 5, n.6, Scheffer (No. 96-1133) (noting that other expert evidence of controversial scientific reliability has been admitted in courts, such as post-hypnotic identification).
135. Scheffer, 523 U.S. at 337 (Stevens, J., dissenting); see also Honts & Perry, supra note 23, at 366-67 (noting that "[s]tudies tend to show that juries are more inclined not to give extraordinary weight to polygraph evidence," a finding supported in both field and laboratory studies); IMWINKELRIED & GARLAND, supra note 43, § 6-5, at 174.
136. Scheffer, 523 U.S. at 337 (Stevens, J., dissenting).
137. Id.
138. Id. at 338 (citing N.M. R. EVID. § 11-707).
139. Id. at 323. Stevens cited Reports from the Department of Defense Polygraph Program, which indicated that between 1981 and 1997, the Department of Defense had conducted over 400,000 polygraph examinations to resolve counterintelligence, security, and criminal issues from State and federal law enforcement rely extensively on the polygraph. Id. at 324-25. There are 400 polygraph examiners on the federal payroll alone and many more working for state and local law enforcement. The fact that they rely on polygraph results in making important decisions about people's lives and liberty raises serious questions about their credibility when they argue the polygraph is so unreliable that the accused in a criminal case should not be allowed even to let the jury hear about it. Charles W. Daniels, New Frontiers in Polygraph Evidence: Law & Tactics, CHAMPION, July 1997, at 16, 62. See also Honts & Perry, supra note 23, at 358 (observing that inadmissibility of polygraph evidence "seems to be a most peculiar situation in that we have a nearly universally applied law enforcement technique that, more often than not, has been rejected as reliable evidence by our courts of law."). Fifty-seven countries administer polygraph examinations. See MATTE, supra note 10, at 5.
140. Scheffer, 523 U.S. at 323 (Stevens, J., dissenting) (quoting Department of Defense Polygraph Program, Annual Polygraph Report to Congress, Fiscal Year 1996, pp. 14-15). Outside the trial context, admission of unstipulated polygraph results "has become relatively commonplace. In hearing motions and other nontrial proceedings, lower court judges in a number of jurisdictions have been allowed to hear evidence of polygraph results." McCall, supra note 40, at 378-79. Further, law enforcement has used polygraph testing for crime investigation for decades; private industry has used testing to detect employee theft and screen job applicants and the federal government expanded its use of polygraph testing for pre-employment screening purposes. "The rapid growth
141. See Scheffer, 523 U.S. at 337-38 (Stevens, J., dissenting).
142. Id. at 339. The Department of Defense maintains the highest standards for polygraph examiners in the nation, providing a curriculum that meets the requirements of a master's degree of study. The minimum requirements for Department of Defense polygraph examiners are (1) Be a United States Citizen. (2) Be at least 25 years of age. (3) Be a graduate of an accredited four-year college or have equivalent experience that demonstrates the ability to master graduate-level academic courses. (4) Have two years of experience as an investigator with a Federal or other law enforcement agency . . . (5) Be of high moral character and sound emotional temperament, as confirmed by a background investigation. (6) Complete a Department of Defense-approved course of polygraph instruction. (7) Be adjudged suitable for the position after being administered a polygraph examination designed to ensure that the candidate realizes, and is sensitive to, the personal impact of such examinations. Department of Defense Polygraph Program, Annual Polygraph Report to Congress, Fiscal Year 1996, at 14-15.
143. Scheffer, 523 U.S. at 338 (Stevens, J., dissenting). He also admitted the same logic would be relevant to admit inculpatory polygraph evidence, and pointed out that according to certain studies, exculpatory tests are more reliable than inculpatory ones. See id. at 338 n.29.
144. 3 C.F.R. 334, 336 (1992).
145. See United States v. Gipson, 24 M.J. 246 (1987).
146. Id.
147. Id. at 253.
148. See id.; see also McCall, supra note 40, at 391 (stating that the analysis supplied by the new Rule "cites no scientific or field studies and refers only to [opinions denying polygraph admissibility] handed down prior to Gipson").
149. 43 M.J. 348 (1995). Williams held that an accused did not have the right to introduce polygraph results without first taking the stand and testifying. See id. at 355. In not reaching the issue whether automatic exclusion of polygraph evidence violated the accused's constitutional rights, the court concluded its decision by asking whether polygraph evidence was collateral evidence of the same constitutional magnitude as the types of evidence the Supreme Court has constitutionally required. See id. That question was left unanswered. See id.
150. Id. at 353. While the Williams Court declined to comment on the constitutional implications of the per se exclusion on the federal level, at the state level, courts have found that per se rules did not violate a defendant's Sixth Amendment rights. See e.g., State v. Porter, 698 A.2d 739 (Conn. 1997); Perkins v. State, 902 S.W.2d 88 (Tex. App. 1995).
151. "In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." U.S. CONST. amend. VI.
152. "No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . ." U.S. CONST. amend. V.
153. See Brief for Respondent at 14, Scheffer (No. 96-1133).
154. See id.
155. See infra notes 149-50. The Scheffer holding appears to counter a statement made by two legal scholars who evaluated the Supreme Court's decisions concerning a defendant's rights over the last thirty years. 523 U.S. at 303-05. "[I]t is still fair to say that the Court has 'consistently' protected the accused's constitutional right to present important exculpatory evidence." IMWINKELRIED & GARLAND, supra note 43, at 493.
156. 388 U.S. 14 (1967).
157. 410 U.S. 284 (1973).
158. See Scheffer, 523 U.S. at 308, 315-17 (plurality opinion), 326-30 (Stevens, J., dissenting).
159. 388 U.S. at 14, 16.
160. Id. at 23.
161. GARCIA, supra note 77, at 116 (quoting Washington, 338 U.S. at 19).
162. Id.
163. See Washington, 338 U.S. at 22, 23.
164. See id. at 22 (citing Rosen v. United States, 245 U.S. 467, 471 (1918)).
165. Chambers v. Mississippi, 410 U.S. 284, 289-90 (1973).
166. GARCIA, supra note 77, at 127.
167. United States v. Scheffer, 523 U.S. 303, 316 (1998).
168. See id. at 308, 315-17.
169. See Rock v. Arkansas, 483 U.S. 44 (1987); Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967).
170. See Rock, 483 U.S. at 46; Chambers, 410 U.S. at 287; Washington, 388 U.S. at 15-16.
171. See Scheffer, 523 U.S. at 316-17.
172. Id.
173. The Court observed that Scheffer was merely barred from "introducing expert opinion testimony to bolster his own credibility." Id. at 317.
174. See Rock, 483 U.S. at 56. For discussions on the constitutional implications of MRE 707 in the military, see John J. Canham, Jr., Military Rule of Evidence 707: A Bright-Line Rule That Needs to be Dimmed, 140 MIL. L. REV. 65 (1993);); First Lt. John A. Carr, Note, The Admissibility of Polygraph Evidence in Court-Martial Proceedings: Does the Constitution Mandate the Gatekeeper? 43 A.F. L. REV. 1 (1997); Timothy M. Hughes, Note and Comment, United States v. Scheffer: What Is Left of the Polygraph in Criminal Trials?, 10 ST. THOMAS L. REV. 653, 663-69 (1998).
175. See Rock, 483 U.S. at 56. For discussions on the constitutional implications of MRE 707 in the military, see John J. Canham, Jr., Military Rule of Evidence 707: A Bright-Line Rule That Needs to be Dimmed, 140 MIL. L. REV. 65 (1993);); First Lt. John A. Carr, Note, The Admissibility of Polygraph Evidence in Court-Martial Proceedings: Does the Constitution Mandate the Gatekeeper? 43 A.F. L. REV. 1 (1997); Timothy M. Hughes, Note and Comment, United States v. Scheffer: What Is Left of the Polygraph in Criminal Trials?, 10 ST. THOMAS L. REV. 653, 663-69 (1998).
176. See Rock, 483 U.S. at 56. For discussions on the constitutional implications of MRE 707 in the military, see John J. Canham, Jr., Military Rule of Evidence 707: A Bright-Line Rule That Needs to be Dimmed, 140 MIL. L. REV. 65 (1993);); First Lt. John A. Carr, Note, The Admissibility of Polygraph Evidence in Court-Martial Proceedings: Does the Constitution Mandate the Gatekeeper? 43 A.F. L. REV. 1 (1997); Timothy M. Hughes, Note and Comment, United States v. Scheffer: What Is Left of the Polygraph in Criminal Trials?, 10 ST. THOMAS L. REV. 653, 663-69 (1998).
177. See Scheffer, 523 U.S. at 317.
178. This issue was not appealed by Scheffer from the trial level.
179. For a definition of "material," see Kungys v. United States, 485 U.S. 759, 770-71 (1988). Concerning factual evidence, the plurality (joined by the concurring justices) did not regard polygraph results as factual evidence (where a witness could testify to events personally observed), but rather as expert opinion testimony. See Scheffer, 523 U.S. at 316-17. Justice Stevens, on the other hand, opined at length on how the results of the polygraph test constituted "independent factual evidence." Id. at 331. Quoting Dean Wigmore, Justice Stevens discussed how conduct and utterances "may constitute factual evidence of a 'consciousness of innocence'. . ."-and exclusion of such test results would infringe upon "a weighty interest of the accused." Id. at 331-32. Though Justice Thomas (author of the plurality opinion) is technically correct that only the polygrapher's opinion of truthfulness or deception is generally offered into evidence at trial (and not the "factual" blood pressure etc. readings from the polygraph instrument), this view is unduly limited in scope. Id. Factual evidence is not merely restricted to eyewitness testimony about the crime itself, but may be presented about other matters if it is relevant, material, and reliable. See id. Arguably, Justice Stevens' approach, equating Scheffer's polygraph results to "consciousness of innocence" appears more reasoned on this issue. Id.
180. Exculpatory Polygraphs, supra note 127, at 109.
181. Id. at 109-10.
182. See Scheffer, 523 U.S. at 309.
183. See id. at 318, 322.
184. See id. at 311 n.7.
185. See id.
186. Id.
187. The Frye " 'general acceptance' requirement would be at odds with the 'liberal thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to 'opinion' testimony." Daubert v. Merrell Dow Pharmaceutical, 509 U.S. 579, 588 (1993) (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1984)). Daubert was clear "[t]hat [the] austere [Frye] standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials." 509 U.S. at 589.
188. For a discussion that tracks how judges have been attempting to avoid or evade Daubert in a "kind of back-door endorsement of Frye," see Beecher-Monas, supra note 127, at 73.
189. See Daubert, 509 U.S. at 597. The judge's role is as a gatekeeper under Federal Rule of Evidence 104(a), focusing on preliminary questions of qualifications of witnesses and evidence, rather than a "screener" of evidence. FAIGMAN, supra note 8, at 533.
190. See Daubert, 509 U.S. at 589.
191. Rule 401 provides: " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Rule 402 provides: "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." FED. R. EVID. 402.
192. See Daubert, 509 U.S. at 591.
193. Id. (citing United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). The relevancy inquiry required the expert testimony to be "sufficiently tied to the facts of the case" to aid the jury in resolving the factual dispute. Id.
194. Id. at 590. Parsing the phrase into "scientific" and "knowledge," the Court instructed that " 'scientific' implie[d] a grounding in the methods and procedures of science," while " 'knowledge' connote[d] more than subjective belief or unsupported speculation." Id. This grounding would provide the basis for the evidentiary reliability the Court was seeking in juxtaposing legal and scientific standards. See id.
195. Id. at 592-93.
196. See id. at 595. Here the Court assesses the evidence's "empirical validity." Imwinkelried & McCall, supra note 41, at 1046.
197. See supra note 47.
198. See Brief of the Army Defense Appellate Division as Amicus Curiae in Support of Respondent at 23, Scheffer, 523 U.S. 303 (No. 96-1133).
199. Id.
200. Daubert, 509 U.S. at 594.
201. Law Professor James R. McCall regarded the use of the "adjective 'widespread," as opposed to 'general,'" as significant. McCall, supra note 40, at 400. Widespread implied that a "prevalent or widely diffused acceptance, rather than a more universal level of acceptance [would] be adequate." Id. This "lower level of acceptance" was consistent with the Federal Rules of Evidence which liberalized the admission of evidence. Id.
202. Daubert, 509 U.S. at 594 (quoting United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)). Of course, how narrowly or broadly that 'community' was defined became a source of heated controversy in the post-Daubert generation of debates on admissibility of polygraph evidence. See infra notes 238-39.
203. See Daubert, 509 U.S. at 594.
204. Imwinkelried & McCall, supra note 41, at 1054.
205. See Daubert, 509 U.S. at 591.
206. See United States v. Scheffer, 523 U.S. 303, 321, 331-32 (1998).
207. The premise holds that there is a definite relationship between lying and certain emotional states, as well as between those emotional states and changes in the body. See Ronald J. Simon, Adopting a Military Approach to Polygraph Evidence Admissibility: Why Federal Evidentiary Protections Will Suffice, 25 TEX. TECH. L. REV. 1055, 1058 (1994). If a person is threatened or concerned about a stimulus or question, especially querying about the matter under investigation, that concern will be expressed by measurable physiological reactions the subject is unable to control and which can be recorded on a polygraph instrument. See United States v. Galbreth, 908 F. Supp. 877, 884 (D. N.M. 1995). The testing format changed over the years, beginning with examiners using a "relevant/irrelevant" technique whereby they would ask relevant questions about the incident under investigation and irrelevant questions about non-threatening subject that would provoke true answers. This technique has been generally discredited. See McCall, supra note 40, at 381. In the 1960s, scientists developed the control question format. See Galbreth, 908 F. Supp. at 844. Here, the examiner asks the subject an anxiety-producing question (the control question) unconnected with, yet similar to, the issues under investigation. See id. That question is geared either to provoke a lie, or the subject is told to lie when answering. See id. The examiner follows the control question with questions concerning the incident. See id. A comparison of the person's responses to both types of questions is the critical criterion for determining whether deception is indicated. See id. The pretest interview between the examiner and subject is also a critical phase of the process. See id. For a critical view of polygraph assumptions and techniques, see generally David Gallai, Note, Polygraph Evidence in Federal Courts: Should It Be Admissible? 36 AM. CRIM. L. REV. 87 (1999); Timothy B. Henseler, Comment, A Critical Look at the Admissibility of Polygraph Evidence in the Wake of Daubert: The Lie Detector Fails the Test, 46 CATH. U. LAW REV. 1247, 1251 n.23 (1997).
208. The premise holds that there is a definite relationship between lying and certain emotional states, as well as between those emotional states and changes in the body. See Ronald J. Simon, Adopting a Military Approach to Polygraph Evidence Admissibility: Why Federal Evidentiary Protections Will Suffice, 25 TEX. TECH. L. REV. 1055, 1058 (1994). If a person is threatened or concerned about a stimulus or question, especially querying about the matter under investigation, that concern will be expressed by measurable physiological reactions the subject is unable to control and which can be recorded on a polygraph instrument. See United States v. Galbreth, 908 F. Supp. 877, 884 (D. N.M. 1995). The testing format changed over the years, beginning with examiners using a "relevant/irrelevant" technique whereby they would ask relevant questions about the incident under investigation and irrelevant questions about non-threatening subject that would provoke true answers. This technique has been generally discredited. See McCall, supra note 40, at 381. In the 1960s, scientists developed the control question format. See Galbreth, 908 F. Supp. at 844. Here, the examiner asks the subject an anxiety-producing question (the control question) unconnected with, yet similar to, the issues under investigation. See id. That question is geared either to provoke a lie, or the subject is told to lie when answering. See id. The examiner follows the control question with questions concerning the incident. See id. A comparison of the person's responses to both types of questions is the critical criterion for determining whether deception is indicated. See id. The pretest interview between the examiner and subject is also a critical phase of the process. See id. For a critical view of polygraph assumptions and techniques, see generally David Gallai, Note, Polygraph Evidence in Federal Courts: Should It Be Admissible? 36 AM. CRIM. L. REV. 87 (1999); Timothy B. Henseler, Comment, A Critical Look at the Admissibility of Polygraph Evidence in the Wake of Daubert: The Lie Detector Fails the Test, 46 CATH. U. LAW REV. 1247, 1251 n.23 (1997).
209. The premise holds that there is a definite relationship between lying and certain emotional states, as well as between those emotional states and changes in the body. See Ronald J. Simon, Adopting a Military Approach to Polygraph Evidence Admissibility: Why Federal Evidentiary Protections Will Suffice, 25 TEX. TECH. L. REV. 1055, 1058 (1994). If a person is threatened or concerned about a stimulus or question, especially querying about the matter under investigation, that concern will be expressed by measurable physiological reactions the subject is unable to control and which can be recorded on a polygraph instrument. See United States v. Galbreth, 908 F. Supp. 877, 884 (D. N.M. 1995). The testing format changed over the years, beginning with examiners using a "relevant/irrelevant" technique whereby they would ask relevant questions about the incident under investigation and irrelevant questions about non-threatening subject that would provoke true answers. This technique has been generally discredited. See McCall, supra note 40, at 381. In the 1960s, scientists developed the control question format. See Galbreth, 908 F. Supp. at 844. Here, the examiner asks the subject an anxiety-producing question (the control question) unconnected with, yet similar to, the issues under investigation. See id. That question is geared either to provoke a lie, or the subject is told to lie when answering. See id. The examiner follows the control question with questions concerning the incident. See id. A comparison of the person's responses to both types of questions is the critical criterion for determining whether deception is indicated. See id. The pretest interview between the examiner and subject is also a critical phase of the process. See id. For a critical view of polygraph assumptions and techniques, see generally David Gallai, Note, Polygraph Evidence in Federal Courts: Should It Be Admissible? 36 AM. CRIM. L. REV. 87 (1999); Timothy B. Henseler, Comment, A Critical Look at the Admissibility of Polygraph Evidence in the Wake of Daubert: The Lie Detector Fails the Test, 46 CATH. U. LAW REV. 1247, 1251 n.23 (1997).
210. A person generally cannot control autonomic responses such as blood pressure and sweating of the palms. See Galbreth, 908 F. Supp. at 883 n.9. The autonomic nervous system controls how the body adjusts to changes in conditions, and is relatively impervious to voluntary control. See id.
211. See infra notes 217-24.
212. See supra note 182. Rule 401's relevance threshold is very low: the standard of probability under the rule is "more . . . probable than it would be without the evidence." FED. R. EVID. 401. "Any more stringent requirement is unworkable and unrealistic . . . . Dealing with probability in the language of the rule has the added virtue of avoiding confusion between questions of admissibility and questions of the sufficiency of the evidence." FED. R. EVID. 401 advisory committee's note.
213. See supra note 182.
214. In a legal context, reliability refers to accuracy, while in a scientific context, reliability refers to consistency of results. In this section, the discussion focuses on the legal definition of reliability. See supra note 45.
215. See supra notes 96, 120 and infra pp. 1694-95.
216. For example, see FAIGMAN, supra note 8, at 565-633 and STRONG, supra note 10, at 908-12.
217. Respondent's Brief at 17 n.6, Scheffer (No. 96-1133) (citation omitted).
218. Brief of the Committee of Concerned Social Scientists as Amicus Curiae in Support of Respondent at 7, Scheffer (No. 96-1133).
219. See United States v. Piccinonna, 885 F.2d 1529, 1532 (11th Cir. 1989); see also United States v. Galbreth, 908 F. Supp. 877 (D.N.M. 1995).
220. See Respondent's Brief at 17 n.6, Scheffer (No. 96-1133).
221. See Galbreth, 908 F. Supp. at 885-88.
222. See Brief of the Committee of Concerned Social Scientists as Amicus Curiae in Support of Respondent at 19-20, Scheffer (No. 96-1133).
223. See Brief of the Committee of Concerned Social Scientists as Amicus Curiae in Support of Respondent at iv-x, Scheffer (No. 96-1133).
224. Id. at 19.
225. See id.
226. Id. at 19, 20.
227. See id. at 17 n.21. The Brief roundly criticized a survey of members of the Society for Psychophysiological Research on polygraph acceptability by Dr. William Iacono and David Lykken, outspoken critics of polygraph testing, as so flawed and controversial that it could not be used for any substantive purpose. See id. at 17-18. The Brief denounced the lacono and Lykken methodology as biased, by asking those who responded to make political and legal judgments rather than scientific ones; how the sample of respondents was as a whole, highly uninformed about the topic of polygraph examinations; how their statistical choices made it impossible to compare surveys; how the survey, represented as random, was not; and how lacono and Lykken refused to make their data available for reanalysis. See infra notes 246-47.
228. See STRONG, supra note 10, at 909-12.
229. See Brief of the Committee of Concerned Social Scientists as Amicus Curiae in Support of Respondent at 14, Scheffer (No. 96-1133); Respondent's Brief at 22, Scheffer (No. 96-1133); see also Canham, supra note 167, at 84; Charles Robert Honts & Bruce D. Quick, The Polygraph in 1995 Progress in Science and the Law, 71 N.D. L. REV. 987, 998 (1995); Honts & Perry, supra note 23, at 360-62, 365; Imwinkelried & McCall, supra note 41, at 1055; James A. Matte's compendium, supra note 10 (offering an extensive and exhaustive review of polygraph studies conducted since the 1980's); David C. Raskin, The Polygraph in 1986: Scientific, Professional and Legal Issues Surrounding Application and Acceptance of Polygraph Evidence, 1986 UTAH L. REV. 29, 43 (1986); Simon, supra note 198, at 1062-63; MOENSSENS, ET AL., SCIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL CASES, § 20.11 & n.1 (4th ed. 1995) (referencing the accuracy of polygraph tests, the section on "The Detection of Deception" cites a 1990 study by Ansley, "The Validity and Reliability of Polygraph Decisions in Real Cases," Polygraph 19(3), 169-81, in which the author reviewed eleven field studies conducted between 1980 and 1990, involving 920 suspects, and reported that polygraph examiners were correct in 90% of their diagnoses, based on a limited analysis of chart responses);.
230. See Brief of the Committee of Concerned Social Scientists as Amicus Curiae in Support of Respondent at 14, Scheffer (No. 96-1133); Respondent's Brief at 22, Scheffer (No. 96-1133); see also Canham, supra note 167, at 84; Charles Robert Honts & Bruce D. Quick, The Polygraph in 1995 Progress in Science and the Law, 71 N.D. L. REV. 987, 998 (1995); Honts & Perry, supra note 23, at 360-62, 365; Imwinkelried & McCall, supra note 41, at 1055; James A. Matte's compendium, supra note 10 (offering an extensive and exhaustive review of polygraph studies conducted since the 1980's); David C. Raskin, The Polygraph in 1986: Scientific, Professional and Legal Issues Surrounding Application and Acceptance of Polygraph Evidence, 1986 UTAH L. REV. 29, 43 (1986); Simon, supra note 198, at 1062-63; MOENSSENS, ET AL., SCIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL CASES, § 20.11 & n.1 (4th ed. 1995) (referencing the accuracy of polygraph tests, the section on "The Detection of Deception" cites a 1990 study by Ansley, "The Validity and Reliability of Polygraph Decisions in Real Cases," Polygraph 19(3), 169-81, in which the author reviewed eleven field studies conducted between 1980 and 1990, involving 920 suspects, and reported that polygraph examiners were correct in 90% of their diagnoses, based on a limited analysis of chart responses);.
231. See Brief of the Committee of Concerned Social Scientists as Amicus Curiae in Support of Respondent at 14, Scheffer (No. 96-1133); Respondent's Brief at 22, Scheffer (No. 96-1133); see also Canham, supra note 167, at 84; Charles Robert Honts & Bruce D. Quick, The Polygraph in 1995 Progress in Science and the Law, 71 N.D. L. REV. 987, 998 (1995); Honts & Perry, supra note 23, at 360-62, 365; Imwinkelried & McCall, supra note 41, at 1055; James A. Matte's compendium, supra note 10 (offering an extensive and exhaustive review of polygraph studies conducted since the 1980's); David C. Raskin, The Polygraph in 1986: Scientific, Professional and Legal Issues Surrounding Application and Acceptance of Polygraph Evidence, 1986 UTAH L. REV. 29, 43 (1986); Simon, supra note 198, at 1062-63; MOENSSENS, ET AL., SCIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL CASES, § 20.11 & n.1 (4th ed. 1995) (referencing the accuracy of polygraph tests, the section on "The Detection of Deception" cites a 1990 study by Ansley, "The Validity and Reliability of Polygraph Decisions in Real Cases," Polygraph 19(3), 169-81, in which the author reviewed eleven field studies conducted between 1980 and 1990, involving 920 suspects, and reported that polygraph examiners were correct in 90% of their diagnoses, based on a limited analysis of chart responses);.
232. See The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in FAIGMAN, supra note 8, at 629; see also OTA REPORT, supra note 55, at 5, 97; Henseler, supra note 198, at 1297 n.233.
233. Henseler, supra note 198, at 1280 (citing David T. Lykken, The Validity of Tests: Caveat Emptor, 27 JURIMETRICS J. 263, 265 (1987)).
234. MATTE, supra note 10, at 121-29; Honts & Quick, supra note 218, at 997-98; Raskin, supra note 218, at 43. For a survey of the pro-polygraph position, see The Scientific Status of Research on Polygraph Techniques: The Case for Polygraph Tests, in FAIGMAN, supra note 8, at 565-82, 619-27, 629-31.
235. See generally OTA REPORT, supra note 55.
236. See LYKKEN, supra note 96; David T. Lykken, The Case Against Polygraph Testing, in THE POLYGRAPH TEST: LIES, TRUTH AND SCIENCE 111, 117 (Anthony Gale ed., 1988); Lykken, supra note 220, at 265. For a survey of the anti-polygraph position, see The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in FAIGMAN, supra note 8, at 582-618, 627-29, 631-33.
237. See, e.g., United States v. Black, 831 F. Supp. 120, 123 (E.D.N.Y. 1993) (citing United States v. Rea, 958 F.2d 1206, 1224 (2d Cir. 1989) (holding that polygraph tests were not sufficiently reliable to warrant the admission of the results in evidence); People v. Baynes, 430 N.E.2d 1070, 1076 (Ill. 1981) (stating that "the primary obstacle in admission of polygraph evidence, stipulated to or not, has continually and consistently been the instrument's disputed scientific reliability.") (citations omitted); State v. Beard, 461 S.E.2d 486, 493 (W.Va. 1995) (stating that "we remain convinced that the reliability of such examinations is still suspect and not generally accepted within the relevant scientific community. Therefore, any speculation that our position in Frazier regarding polygraph admissibility is in question due to the Daubert/Wilt rulings is put to rest today.") (emphasis in original). But see United States v. Posado, 57 F.3d 428, 434 (5th Cir. 1995) (stating that the "[c]urrent research indicates that, when given under controlled conditions, the polygraph technique accurately predicts truth or deception between seventy and ninety percent of the time.") (footnote omitted) (citation omitted); United States v. Crumby, 895 F.Supp. 1354, 1358 (D.C. Ariz. 1995) (stating that "based on the evidence presented by the parties, the Court finds that there has been a significant increase in the reliability of polygraph evidence over recent years.").
238. See Brief of the United States at 23-24, Scheffer (No. 96-1133).
239. More than twenty states have licensing regulations. See United States v. Galbreth, 908 F. Supp. 877, 892 (D.N.M. 1995); McCall, supra note 40, at 372.
240. See United States v. Scheffer, 523 U.S. 303, 333-34 (1998).
241. See id. at 323-24 n.5.
242. Brief of the Committee of Concerned Social Scientists as Amicus Curiae in Support of Respondent at 28, Scheffer (No. 96-1133).
243. Scheffer, 523 U.S. at 323-24 n.5.
244. See N.M. R. EVID. § 11-707.
245. The rule provides that polygraph evidence is admissible only when the following conditions are met: the examiner must have had at least five years experience in conducting polygraph tests and twenty hours of continuing education within the past year; the examination must be tape recorded in its entirety; the polygraph charts must be scored quantitatively in a manner generally accepted as reliable by polygraph experts; all polygraph materials must be provided to the opposing party at least ten days before trial; and all polygraph examinations conducted on the subject must be disclosed. See id.
246. See McCall, supra note 40, at 385-99; Exculpatory Polygraphs, supra note 127, at 100-01. In his dissent, Justice Stevens also referred to the New Mexico Rule of Evidence. See Scheffer, 523 U.S. at 338 & n.28.
247. The outcome of an inquiry into general acceptance "depends largely on the generality with which the question is posed." STRONG, supra note 10, at 902.
248. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent at 12, Scheffer (No. 96-1133).
249. See Honts & Perry, supra note 23, at 362. "Many types of generally accepted forensic evidence are also characterized by polemic debate . . . and equivocal evidence." (citations omitted). Id. However, when applying a Frye widespread acceptance standard, "[t]he existence of a heated controversy over the validity of a scientific technique ordinarily precludes its admission in a Frye jurisdiction: the controversy is the antithesis of the widespread acceptance required by Frye." IMWINKELRIED & GARLAND, supra note 43, § 13-7, at 422. Clearly, the plurality and concurring justices' arguments in Scheffer revolved around the Frye standard.
250. Frye suggested that the fields of psychology and physiology should be surveyed for general acceptance. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Dr. Matte explains that the relevant community would be forensic psychophysiologists. See MATTE, supra note 10, at 3-4.
251. The 1982 survey, taken by telephone of members of the Society for Psychophysiological Research (SPR), was conducted by the Gallup Organization. The purpose of the survey was to assess general acceptance of the polygraph in the relevant scientific community for the Wall Street Journal, which sought to introduce polygraph evidence in a civil libel suit. SPR is a scientific organization composed of psychologists, medical researchers and engineers who study the relationships between physiological reactions and psychological states, and whose members and journal have published the majority of scientific articles concerning polygraph techniques. Therefore, the membership of SPR best represents the 'relevant scientific community' for determining the validity of polygraph testing. . . . Approximately two-thirds of the scientists reported favorable opinions concerning the usefulness of polygraph tests. The Scientific Status of Research on Polygraph Techniques: The Case for Polygraph Tests, in FAIGMAN, supra note 8, at 580-81. The 1992 survey, conducted by Susan Amato and Charles Honts, by mail, mirrored the results of a decade earlier. They also subdivided their respondents into a group that considered themselves "highly informed" about the polygraph, and 83% of this group endorsed polygraph testing. Id. at 581.
252. In response to Raskin, William Iacono and David Lykken challenge the survey results on a number of fronts. See The Scientific Status of Research on Polygraph Technique: The Case Against Polygraph Testing, in FAIGMAN, supra note 8, at 612-18. They view SPR membership as constituting only part of the relevant scientific community, with psychologists as the best qualified to assess polygraph validity and reliability. See id. at 616. They then attack the surveys' methodology, charging that the 1982 survey was unpublished, and provided few details concerning how it was conducted. See id. at 612. They dismissed the second survey by noting that only 30% of those surveyed responded, and that its query as to whether the scientist viewed the polygraph as a "useful diagnostic tool" did not necessarily mean that it was useful for legal proceedings. Id. at 612-13. They noted the surveys were fraught with ambiguities and did not distinguish between what questioning technique was employed. See id. at 591, 612-14. They discussed results of a mail survey they had conducted in 1994 of certain SPR members, of which 90% returned their questionnaires. See id. at 614. The results were startlingly divergent, with 64% denying that the Control Question Technique was scientifically sound, and only about one-quarter of those surveyed willing to use either passed or failed tests in court. See id. at 614-15. They also conducted a survey of "an elite group of psychologists" where the results were similar, leading to their conclusion that "the scientific community regards the CQT [Control Question Technique] to be an unstandardized, nonobjective technique, based on implausible assumptions . . . and which is unlikely to achieve good accuracy in detecting either truthfulness or deception." Id. at 616-17. Raskin, et al. in turn responded to this criticism. Id. at 626-27.
253. United States v. Galbreth, 908 F. Supp. 877, 892 (D.N.M. 1995). The most widely used and accepted polygraph technique involves two types of questions: control questions and relevant questions that concern the particular investigation. See id. at 884. Through comparative reactivity rather than absolute reactivity to the questions, the examiner can opine as to truth or deception. See supra note 198.
254. Daniels, supra note 128, at 18.
255. Galbreth, 908 F. Supp. at 878.
256. The examiner was Dr. David Raskin, Professor of Psychology at the University at Utah, a specialist in psychophysiology and one of the nation's leading experts on and proponents of polygraphy. See Galbreth, 908 F. Supp. at 882-83.
257. Dr. Raskin administered a Directed Lie Control Question Technique polygraph test to the defendant (an advanced form of the Control Question technique). See id. The Drug Enforcement Agency, various military and intelligence agencies, the Internal Revenue Service and Department of Energy currently use this test. See id. at 885; see also Canham, supra note 167, at 84-85.
258. The Galbreth court extensively reviewed the scientific data underlying the Probable Lie Control Question Technique (a generic version of the directed lie control question technique undergone by the defendant). See 908 F. Supp. at 884. According to Dr. Raskin's testimony, the high quality studies conducted on this technique "number in the many dozens" and support the hypothesis underlying the technique. Id. at 885. Dr. Raskin testified about his involvement with 12-15 laboratory studies that "produced accuracy rates in excess of 90%" and a major field study that "yielded an accuracy rate of approximately 94-95%." Id. at 885-87. For further discussion on laboratory and field studies, see ABRAMS, supra note 54, at 188-201; NORMAN ANSLEY & MARCIA GARWOOD, THE ACCURACY AND UTILITY OF POLYGRAPH TESTING, DEP'T. OF DEF. 1984, reprinted in 13 POLYGRAPH 5 (1984); FAIGMAN, supra note 8, at 570-76, 603-12; GIANNELLI & IMWINKELRIED, supra note 11, at 225-29; STRONG, supra note 10, at 909-11; Honts & Quick, supra note 218, at 995-98; Michael Tiner & Daniel J. O'Grady, Lie Detectors in Employment, 23 HARV. C.R.-C.L. L. REV. 85, 92-102 (1988).
259. Dr. Raskin testified that he employed a computer scoring method in this case to evaluate test results. See Galbreth, 908 F. Supp. at 888. "The examiner simply runs the program and the computer makes tens of thousands of calculations within five to ten seconds." Id. This totally objective scoring method removes one of the issues that critics charge make the polygraph test unreliable: incorporating some of the examiner's clinical impressions of the subject during the pretest interview and examination. This subjective assessment, which accompanied early polygraph examinations, provoked criticism that the examiner's interpretation of the subject's behavior was being tested, not the subject's deception. For further information on the use of computer algorithms to analyze physiological data collected during Psychological Detection of Deception tests, see Yankee, supra note 11.
260. Issues involved here are the competence of the examiner, whether the examiner may manipulate the subject and examination to produce a desired result, whether certain personality types (such as psychopaths) can defeat the test, and whether countermeasures (such as drugs or other physical countermeasures) could defeat the test. See Galbreth, 908 F. Supp. at 889. Dr. Raskin testified that studies have indicated psychopaths could not beat a properly conducted test, and that no studies have demonstrated as of yet that drugs were effective countermeasures against the control question technique. See id. Concerning physical countermeasures, Dr. Raskin testified that research has indicated that if a subject is given specific training on how to use undetectable maneuvers (such as biting the tongue or tensing the leg muscles during control questions), as many as 50% of subjects can produce erroneous results. See id. at 890. However, Dr. Raskin added, and the Court found, that because a subject "must receive highly specialized hands-on training in order to successfully engage in countermeasures, the possibility that a subject will succeed in such measures is very slight." Id. For further discussions on the issue of countermeasures, see ABRAMS, supra note 54, at 185-86; FAIGMAN, supra note 8, at 576-79, 595-96; GIANNELLI & IMWINKELRIED, supra note 11, at 229-30; LYKKEN, supra note 96, at 230-32, 273-77, 292-93; MATTE, supra note 10, at 531; Stan Abrams & Lt. Michael Davidson, Counter-Countermeasures in Polygraph Testing, 17 POLYGRAPH 16 (1988); Charles R. Honts, et. al., Effects of Spontaneous Countermeasures on the Physiological Detection of Deception, 16 J. POLICE SCI. & ADMIN. 91, 91-93 (1988); Honts & Perry, supra note 23, at 373-75.
261. Issues involved here are the competence of the examiner, whether the examiner may manipulate the subject and examination to produce a desired result, whether certain personality types (such as psychopaths) can defeat the test, and whether countermeasures (such as drugs or other physical countermeasures) could defeat the test. See Galbreth, 908 F. Supp. at 889. Dr. Raskin testified that studies have indicated psychopaths could not beat a properly conducted test, and that no studies have demonstrated as of yet that drugs were effective countermeasures against the control question technique. See id. Concerning physical countermeasures, Dr. Raskin testified that research has indicated that if a subject is given specific training on how to use undetectable maneuvers (such as biting the tongue or tensing the leg muscles during control questions), as many as 50% of subjects can produce erroneous results. See id. at 890. However, Dr. Raskin added, and the Court found, that because a subject "must receive highly specialized hands-on training in order to successfully engage in countermeasures, the possibility that a subject will succeed in such measures is very slight." Id. For further discussions on the issue of countermeasures, see ABRAMS, supra note 54, at 185-86; FAIGMAN, supra note 8, at 576-79, 595-96; GIANNELLI & IMWINKELRIED, supra note 11, at 229-30; LYKKEN, supra note 96, at 230-32, 273-77, 292-93; MATTE, supra note 10, at 531; Stan Abrams & Lt. Michael Davidson, Counter-Countermeasures in Polygraph Testing, 17 POLYGRAPH 16 (1988); Charles R. Honts, et. al., Effects of Spontaneous Countermeasures on the Physiological Detection of Deception, 16 J. POLICE SCI. & ADMIN. 91, 91-93 (1988); Honts & Perry, supra note 23, at 373-75.
262. See Galbreth, 908 F. Supp. at 895.
263. See id. at 881. The Court viewed the validity of polygraph results as not only dependent on the general validation provided by field and laboratory studies for the hypothesis underlying the polygraph technique, but also specifically dependent on certain conditions such as a properly conducted examination by a competent examiner and utilization of standard polygraph techniques in the particular case. See id. at 882.
264. See, e.g., John E. Theuman, Admissibility in Federal Criminal Case of Results of Polygraph (Lie Detector) Test-Post-Daubert Cases 140 A.L.R. FED. 525 (1997) (giving an overview of relatively recent circuit and federal district court cases concerning the polygraph).
265. See United States v. Cordoba, 104 F.3d 225, 228 (9th Cir. 1997) (concluding its former per se rule of exclusion of polygraph evidence was inconsistent with Daubert, the court noted that the trial court had to weigh the probative value of the evidence against the danger of misleading the jury under Rule 403); United States v. Posado, 57 F.3d 428, 429 (5th Cir. 1995) (holding that "the rationale underlying this circuit's per se rule against admitting polygraph evidence did not survive Daubert," and finding that Rule 403 would also govern admissibility). Both the Ninth and Fifth Circuits updated these decisions, providing more guidance concerning polygraph admissibility in a post-per se rule era. See United States v. Elkwachi, 111 F.3d 139 (9th Cir. 1997). While noting that polygraph results were not per se inadmissible, the Ninth Circuit upheld exclusion of the evidence as within the trial court's discretion. See id. The Fifth Circuit updated Posado in United States v. Pettigrew 77 F.3d 1500 (5th Cir. 1996). The court observed that the inquiry pursuant to Federal Rule of Evidence 702 is a flexible one, where admissibility is left to the sound discretion of the trial court. See Pettigrew, 77 F.3d at 1515. In this case, while the court opined that it did not "sanction efforts to 'short circuit' the Daubert analysis," it found the polygraph examiner's questions irrelevant and thus inadmissible. Id.
266. Federal Rule of Evidence 403 reads, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403.
267. See United States v. Call, 129 F.3d 1402 (10th Cir. 1997) (rejecting its categorical rule of exclusion, the court went on to uphold the trial courts exclusion of polygraph evidence under Rule 403). The Scheffer Court's disregard of Daubert prompted one of the amici to write: Unfortunately, Daubert has not served to change the ultimate reality of per se exclusionary practices. The major change in many post-Daubert cases has not been a change toward acceptance of the consequences of the opinion, but rather has been a shift in the stated rationales for what are, in effect, continued per se refusals to admit the polygraph evidence. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent at 8, Scheffer (No. 96-1133). Courts inhospitable to the polygraph have used Rule 403 discretion and other exclusionary theories. See generally IMWINKELRIED & MCCALL, supra note 41 (explaining that courts have rejected the admissibility of polygraph evidence because of its tendency to prejudice or mislead the jury).
268. See United States v. Kwong, 69 F.3d 663 (2d Cir. 1995). The court faulted the polygrapher for asking questions that were "inherently ambiguous no matter how they were answered," which led to their conclusion that admission of the defendant's answers would mislead and confuse the jury, "outweighing any probative value they may have [had]." Id. at 668. In United States v. Messina 131 F.3d 36, 42 (2d Cir. 1997), cert. denied _ U.S. _, 118 S.Ct. 1546 (1998), the panel noted that the Second Circuit had not "decided whether polygraphy has reached a sufficient state of reliability to be admissible under Rule 702 of the Federal Rules of Evidence," perhaps representing an ever-so-slight loosening of the Circuit's traditional anti-polygraph position. Id.
269. See United States v. Williams, 95 F.3d 723 (8th Cir. 1996) (finding that the polygrapher's questions concerned peripheral details about the crime and that because of that infirmity, the judge did not abuse his discretion in disallowing the evidence under Rule 403). The Eighth Circuit permits polygraph evidence if stipulated to by both parties prior to the test. See Anderson v. United States, 788 F.2d 517, 520 n.1 (8th Cir. 1986).
270. The Sixth Circuit relaxed its per se rule against admissibility of polygraph related evidence in limited circumstances where "it is relevant to the proof developed by the probative evidence." United States v. Wright, 22 F. Supp. 2d 751, 753 (W.D. Tenn. 1998) (citing Wolfel v. Holbrook, 823 F.2d 970, 972 (6th Cir. 1987)). However, the circuit later circumscribed that opening. See United States v. Sherlin, 67 F.3d 1208, 1216-17 (6th Cir. 1995) (holding that unilateral polygraph examination was inadmissible, particularly since it would have dubious probative value); Conti v. Commissioner, 39 F.3d 658, 663 (6th Cir. 1994) (stating that "unilaterally obtained polygraph evidence is almost never admissible under Evidence Rule 403."), cert. denied 514 U.S. 1082 (1995). The Sixth Circuit adroitly and consistently declined to address the effect of Daubert on its holdings concerning the polygraph. See United States v. Thomas, 167 F.3d 299, 309 n.8 (6th Cir. 1999).
271. See, e.g., United States v. Sanchez, 118 F.3d 192, 197 (4th Cir. 1997) (adhering to the circuit's per se rule prohibiting introduction of polygraph evidence). The Sanchez court observed that in a previous decision, United States v. Toth, 91 F.3d 136 (4th Cir. 1991), the Fourth Circuit suggested it may be possible to change the prohibition against polygraph evidence without approval of the en banc court in light of Daubert, but declined to reach the issue. Id. at 197 n.3.
272. See United States v. Piccinonna, 885 F.2d 1529, 1536 (11th Cir. 1989) (allowing polygraph expert testimony when stipulated to in advance; allowing such testimony when used to impeach or corroborate witness upon proper notice). After carefully reviewing scientific evidence on the polygraph, the court concluded, "It is unwise to hold fast to a familiar rule [against polygraph admissibility] when the basis for that rule ceases to be persuasive." Id. at 1537.
273. See United States v. Lynn, 856 F.2d 430, 433-34 (1st Cir. 1988) (requiring judge's discretion); see also United States v. Pulido, 69 F.3d 192 (7th Cir. 1995) (allowing polygraph pursuant to judge's discretion). In Pulido, the Seventh Circuit cited its position of having "persistently refused to adopt [a per se rule against admissibility of polygraphs], choosing rather to leave the decision on admissibility to the sound discretion of the district court." Id. at 205 (quoting United States v. Kampiles, 609 F.2d 1233, 1244 (7th Cir. 1979), cert. denied 446 U.S. 954 (1980)).
274. See United States v. Johnson, 816 F.2d 918, 923 (3d Cir. 1987) (appearing to allow polygraph evidence in rebuttal, introduced here to rebut assertion of coerced confession).
275. For states that exclude polygraph evidence per se, see Pulakis v. State, 476 P.2d 474, 477 (Alaska 1970); Haakanson v. State, 760 P.2d 1030, 1035 (Alaska Ct. App. 1988); People v. Anderson, 637 P.2d 354, 361 (Colo. 1981) (en banc); State v. Porter, 698 A.2d 739, 750 (Conn. 1997); State v. Okumura, 894 P.2d 80 (Haw. 1995); People v. Sanchez, 662 N.E.2d 1199, 1210 (Ill. 1996); Morton v. Commonwealth, 817 S.W.2d 218, 222 (Ky. 1991); State v. Harnish, 560 A.2d 5, 8 (Me. 1989); State v. Hawkins, 604 A.2d 489, 492 (Md. 1992); Commonwealth v. Mendes, 547 N.E.2d 35, 36 (Mass. 1989); People v. Davis, 72 N.W.2d 269, 281-82 (Mich. 1955); State v. Anderson, 379 N.W.2d 70, 79 (Minn. 1985), cert. denied, 476 U.S. 1141 (1986); State v. Biddle, 599 S.W.2d 182, 185 (Mo. 1980); State v. Staat, 811 P.2d 1261, 1261 (Mont. 1.991); State v. Steinmark, 239 N.W.2d 495, 497 (Neb. 1976); In re Grimm, 635 A.2d 456, 464 (N.H. 1993); People v. Angelo, 666 N.E.2d 1333, 1335 (N.Y. 1996); State v. Grier, 300 S.E.2d 351, 356 (N.C. 1983); Fulton v. State, 541 P.2d 871, 872 (Okla. Crim. App. 1975); State v. Brown, 687 P.2d 751, 772 (Or. 1984); Commonwealth v. Brockington, 455 A.2d 627, 629 (Pa. 1983); In re Odell, 672 A.2d 457, 459 (R.I. 1996); State v. Muetze, 368 N.W.2d 575, 588 (S.D. 1985); State v. Hart, 911 S.W.2d 371, 377 (Tenn. Crim. App. 1995); Perkins v. State, 902 S.W.2d 88, 95 (Tex. App. 1995); State v. Hamlin, 499 A.2d 45, 54 (Vt. 1985); Robinson v. Commonwealth, 341 S.E.2d 159, 167 (Va. 1986); State v. Beard, 461 S.E.2d 486, 491 (W.Va. 1995); State v. Dean, 307 N.W.2d 628, 653 (Wisc. 1981). Furthermore, Washington, D.C., home of the Frye decision, bars polygraph evidence. See Contee v. United States, 667 A.2d 103, 104 n.4 (D.C. 1995). Other states admit polygraph evidence by stipulation of the parties; two states allow polygraph evidence to be admitted in certain proceedings; and Mississippi and New Mexico allow admission of polygraph evidence, with restrictions, during a trial. For a listing of states that fall into these latter categories, see Brief of the State of Connecticut and 27 States as Amici Curiae in Support of Petitioner at 4-6, Scheffer (No. 96-1133).
276. Honts & Perry, supra note 23, at 369.
277. "A great deal of lay testimony routinely admitted is at least as unreliable and inaccurate [as the polygraph], and other forms of scientific evidence involve risks of instrumental or judgmental error." STRONG, supra note 10, at 915 & n.57.
278. During the oral argument before Supreme Court, this exchange between counsel for the United States and Justice Stevens indicated that high polygraph reliability, the gravamen of the written briefs, would still not be enough to admit polygraph evidence. "The Court: Your position, as I understand it is, even if it were totally reliable, you would still take the same position, it's inadmissible? Mr. Dreeben: I do, Justice Stevens." Transcript of Oral Argument Before the United States Supreme Court at 14, Scheffer (No. 96-1133).
279. See Winemiller, supra note 94, at 349 (stating that "[a]lthough the polygraph is not perfect, the Department of Defense considers it to be one of its 'most effective investigative tools' and uses it tens of thousands of times each year. To dismiss as irrelevant a kind of expert opinion on which crucial matters of confidence - even national security-rely borders on capriciousness, especially when one considers the other forms of opinion evidence that are routinely admitted.") (citation omitted).
280. Scheffer, 523 U.S. at 338 (illustrating Justice Stevens' term for the per se rule excluding polygraph evidence).
281. Numerous courts cited Scheffer as sufficient precedent to shut the door in cases where defendants sought a right to a hearing to determine the admissibility of polygraph evidence. See, e.g., United States v. Bryant, 1998 WL 743500 (A.F.Ct. Crim. App. 1998); United States v. Fortner, 48 M.J. 882, 884 (1998) (describing a case where the defendant claimed the trial court erred she he could not introduce polygraph evidence showing his confession was involuntary); Milas v. United States, 42 Fed. Cl. 704 (1999) (describing a case where a defendant sought to show the polygraph was reliable). The post-Scheffer anti-polygraph drumbeat continued in cases where courts hardened their lines concerning what evidence submitted by a defendant was constitutionally required to be admitted. See, e.g., United States v. Velez, 48 M.J. 220 (1998); State v. Karlen, 589 N.W.2d 594 (S.D. 1999). In other cases, some courts determined that exclusion of polygraph evidence did not violate a defendant's constitutional rights. See, e.g., Mayabb v. Johnson, 168 F.3d 863, 869-70 (5th Cir. 1999), Castillo v. Johnson, 141 F.3d 218, 222 (5th Cir., 1998), State v. Grossberg, No. 9611007818, 1998 WL 283470 (Del. Super. Apr. 2, 1999), State v. Council, No. 24932, 1999 WL 184099 (S.C. Apr. 5, 1999).
282. IMWINKELRIED & GARLAND, supra note 43, at 495 (citing Justice Powell's opinion in Chambers v. Mississippi, 410 U.S. 284, 295 (1973)).