USING THE POLYGRAPH AS EVIDENCE (After Scheffer)


The law of polygraph admissibility in American jurisdictions, and suggestions for dealing with the recurring legal obstacles

Introduction

      There is no single category of evidence in the history of American law that has been subjected to stricter scrutiny by the courts, to greater resistance against admission and to such a widespread reluctance to accept scientific developments in the courtroom than has been the case with polygraph evidence. The cases in which it has been admitted are the exceptional ones, and the vast majority of reported opinions either deny its use with little analysis or employ techniques of exclusion that are not used against other forms of evidence. Ironically, this hostile response by the courts occurs in a country that sees widespread use of the polygraph in other settings, particularly by the same government entities that routinely and vigorously oppose its use against them in court.
      Part I of this paper will review the historical development of the approaches of courts in the United States to the admission of results of polygraph examinations, will analyze the current realities, and will consider what the future might bring to this area.
      Part II will suggest alternative approaches for the use of polygraph in the defense of criminal cases in those situations where the court may not allow it to be introduced directly as expert evidence.

Admissibility of polygraph evidence in the United States

A. The Frye “General Acceptance in the Scientific Community” Test

      The development of American polygraph law began with the seminal case of Frye v. United States, 293 F.1013 (D.C. Cir. 1923). The defendant Frye was convicted of murder in a Washington, D.C. federal court and appealed his conviction on the ground that the trial court erroneously refused to admit defense evidence based on a crude precursor to the modern polygraph. The “systolic blood pressure deception test” used in Frye was based on a periodic samplings of readings from a simple blood pressure cuff during a dialogue with the defendant concerning the alleged crime. There was no scientific method of measurement or comparison of the reactions to particular questions. The technique actually was based on scientific theory, but was so unscientific in is application as to be unreliable.

      The fundamental problem posed to the courts in Frye went far beyond the particular technique under review. Increasingly, courts were confronting new forms of evidence based on modern scientific studies, but which ordinary juries were unable to evaluate on the basis of their own everyday experience and common understanding. Judges were similarly handicapped in deciding whether to admit the evidence before the jury without the imput of qualified members of the scientific community. The rationale developed by the court of appeals in upholding the trial court’s refusal to admit the novel evidence became widely known as the “Frye test”. It’s applied not only to polygraph evidence, but to novel scientific evidence in general:
       Just when a scientific principle or discovery crosses the line between the 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 v. United States, 294 F. at 1014. For the systolic blood pressure deception-testing technique under review, the Frye court concluded that it had not gained sufficient acceptance among physiological and psychological authorities to be admissible.
      The Frye “general acceptance in the scientific community” test dominated the admissibility of scientific evidence in general, and polygraph evidence in particular, for the next seventy years. During that time, while other forms of novel scientific evidence were deemed to have developed the level of acceptability mandated by Frye, the advances in the study of psychophysiology, as applied to polygraph testing, were ignored by the courts. For other forms of evidence, Frye stood for a process of analysis of acceptability; for polygraph, it was used to support the conclusion that the evidence may never be admitted. J. McCall, Misconceptions and Reevaluations – Polygraph Admissibility After Rock and Daubert, 1996 U. Ill. L. Rev. 363.
      There were few executions to this exclusionary trend in the State and federal court systems in the United States, the most significant being State v. Dorsey, 88 N.M. 184 (N.M. 1975) and United States v. Piccinonna, 885 F.2d 1529 (11t Cir. 1989). Dorsey and the subsequent promulgation of evidence rule 11-707 opened the doors of the New Mexico State courts to the use of polygraph evidence, an approach that has continued to the present. No other State admits the evidence without an agreement by the parties participating in the case, an approach that almost invariably results in exclusion.
      Piccinonna promised to have greater impact. A federal appeals court case, it provided the first thorough judicial study of the modern polygraph and determined that “since the Frye decision, tremendous advances have been made in polygraph instrumentation and technique”; that “the FBI, the secret service, military intelligence and law enforcement agencies use the polygraph”; that “in recent years polygraph testing has gained increasingly widespread acceptance as a useful and reliable scientific tool”; that there is “a leak of evidence that juries are unduly swayed”; and that “a per se rule disallowing polygraph evidence is no longer warranted.” 885 F.2d at 1532. That court therefore articulated standards for admissibility in the 11th circuit, in a decision that theoretically is in force today. United States v. Padilla, 908 F. Sup. 923 (S.D. Fla. 1995); Elortegui v. United States, 743 F. Supp. 828 (S.D. Fla. 1990). No other jurisdiction has followed the Piccinonna precedent, however, and it has not greatly affected proceedings even within the 11th Circuit. See, e.g., United States v. Gilliard, 133 F.3d 809 (11th Cir. 1998).

B. The Daubert “Scientific Knowledge” Approach
      The most promising opinion to those who favored a fresh look at polygraph admissibility came several years after Piccinonna, when the Supreme Court of the United States Expressly replaced the Frye test for determining admissibility of expert testimony in the landmark case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Daubert concluded that the austere Frye approach of waiting for general acceptance in the community before recognizing scientific developments was too restrictive, given the more liberal approach to admissibility of the modern federal rules of evidence in general and, in particular, expert evidence rule 702. That rule allows expert testimony to be placed before the jury if it is based on specialized knowledge and if it will assist the trier of fact, such as a jury, to determine a fact in issue.
      Daubert provided some general guidelines in determining whether the offered evidence is based on scientific knowledge, that is, whether it has been derived by the scientific method, rather than unsupported speculation. The fact that the scientific community may be divided or that a majority may not yet be in agreement about the conclusions to be drawn was not itself to be deemed an automatic bar to admission of the evidence.
      The relevant factors suggested by the Daubet opinion included (1) whether the theory or technique on which the testimony is based is capable of being tested; (2) whether the technique has a known rate of error in its application; (3) whether the theory or technique has been subjected to peer review and publication; (4) the level of acceptance in the relevant scientific community of the theory or technique; and (5) the extent to which there are standards to determine acceptable use of the technique. None of the factors suggested by the court was to be rigidly dispositive, and the inquiry was to be a flexible one, keeping in mind the competing needs of keeping untrustworthy pseudoscience from the jury and of keeping the courts open to emerging scientific developments.
      The Court recently clarified and reemphasized its Daubert holding in Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137 (1999), which confirmed that the Daubert analysis applied to all varieties of expert testimony, an d not just to scientific evidence.
      Several federal courts addressing the implications of Daubert for the admissibility of polygraph evidence acknowledged that the rigid exclusionary stance of the Frye years was no longer justified and that a fresh Daubert analysis was required. United States v. Cordoba, 104 F.3d 225 (9th Cir. 1997): United States v. Pulido, 69 F.3d 192 (7th Cir. 1995); United States v. Posado, 57 F.3d 428 (5th Cir. 1995).
      Several of the more thorough analyses of the Daubert factors in reported trial court opinions resulted in findings that the modern control question polygraph is scientific evidence which should be admitted under rule 702. United States v. Galbreth, 908 F. Supp. 877 (D.N.M. 1995); United States v. Crumby, 895 F. Sup. 1354 (D. Ariz. 1995); Ulmer v. State Farm Fire & Casualty Co., 897 F. Supp. 299 (W.D. La. 1993). However, the majority of the post-Daubert opinions expressed great reluctance to change their exclusionary positions on polygraph evidence. See Cordoba, supra, at 226 (“we have long expressed our hostility to the admission of unstipulated polygraph evidence”) and United States v. Call, 129 F.3d 1402, 1408 (1997)(“our holdings [that Daubert allows a possibility of admitting polygraph] does not suggest a newfound enthusiasm for polygraph evidence”).
      Given the wealth of literature on the subject, an objective application of the Daubert factors of polygraph should be quite capable of being accomplished both by experts in the field and b y the judges who must make the ultimate determination of admissibility. The reality was, however, that Daubert did not result in opening the doors of American courts to use of polygraph evidence.
      The overwhelmingly dominant trend of the post-Daubert decisions has been to continue to exclude polygraph evidence, either on the basis of a stringently hostile Daubert analysis that is employed against no other form of proposed scientific evidence, or by the use of what amounts to evidentiary blackballs that inevitably prevent the evidence from being considered under Daubert at all. E.g. United States v. Cordoba, 991 F. Sup. 1199 (C.D. Ca. 1998). Some of the theories are either inexplicable le in themselves or impossible to reconcile with each other.
      For example, in United States v. Pulido, 69 F.3d 192 (7th Cir. 1993), a federal appeals court excluded a defendant’s polygraph evidence where the results were deemed peripheral to the “core issues,” while the very next year, in United States v. Sherlin, 67 F.3d 1208 (6th Cir. 1995), a federal appeals court in an adjacent circuit excluded another defendant’s polygraph because his credibility “was maybe the central issue in this case.” See generally, E. Imwinkleried & J. McCall, Issues Once Moot: The Other Evidentiary Objections to the Admission of Polygraph Examinations. 32 Wake Forest L. Rev. 1045 (1997).
      One of the mot common exclusionary techniques is the use o federal Rule 403 and its State court equivalents, which allow a trial judge to disregard other rules of admissibility and exclude evidence that is relatively weak or may cause confusion, consume too much time, or cause unnecessary prejudice to a party. Use of this approach can avoid a court’s even having to hold a Daubert hearing or consider any of the scientific realities. United States v. Perez, 295 F.2d 249 (2d Cir. 2002); United States v. Lea, 249 F.2d 632 (7th Cir. 2001); United States v. Benavidez-Benavidez, 217 F. 3d 720 (9th Cir. 2000); United States v. Call, 129 F.3d 1402 (10th Cir. 1997). It is an evidentiary blackball that a court may employ at will to override any other evidentiary standard.
      Despite the promise inherent in the Daubert opinion itself, the experience in the courts in subsequent years, makes it clear that one or more of the recurring exclusionary positions in the ensuing section are likely to be faced by any proponent of the use of polygraph evidence.

C. The Recurring Exclusionary Issues
1. Whether the polygraph would replace the function of the jury. Often clearly articulated and equally often implicit, there is a pervasive apprehension in the exclusionary opinions that the introduction of polygraph evidence would wreak some fundamental change in the American judicial system of determining truth. A Fundamental premise of that system is that “the jury is the lie detector.” United States v. Barnard 490 F.2d 907, 912 (9th Cir. 1973), cert. Denied, 416 U.S. 959 (1974). Polygraph testimony is viewed as something that should be excluded “because it usurps a critical function of the fury and because it is not helpful to the jury.” United States v. Call, 129 F.3d 1402 (10th Cir. 1997).
      The opinions fail to understand the nature of the evidence. The polygrapher is not dictating how the case should be decided or even whether the test subject is telling the truth from the witness stand. The testimony is simply that on a previous occasion out of court, the subject exhibited measurable
psychophysiological responses shown by scientific study to be indicative of a likelihood of consciousness of truth or deception as to the particular answers to the relevant polygraph questions.
      Juries have traditionally been encouraged to consider observations of external demeanor as guides to determining consciousness of truthfulness or deception by a witness, despite the known difficulties in making accurate judgments in that manner. Flight, evidence tampering, obstruction of justice and numerous other physical activities reflecting consciousness of guilt have routinely been admissible in all courts. E. Imwinkelried, Uncharged Misconduct, Sec. 3-04 (1996). Similarly, circumstantial evidence of subjective consciousness of innocence is admissible “as relevant to show defendant’s lack of guilty knowledge.” Weinstein’s Federal Evidence Sec. 401.08[4] at 401-59 (2d ed. 1997). The polygraph simply provides another, and arguably more accurate, form of circumstantial evidence of consciousness of guilt. See, United States v. Scheffer, 523 U.S. 303, 332 (1997)(Stevens, J., dissenting). “No constitutional provision, law or rule requires the automatic exclusion of expert testimony simply because it concerns a credibility question.” United States v. Shay, 57 F.3d 126, 131 (1st Cir. 1995).

2. Whether the evidence would overwhelm and confuse the jury. This concern is related to the first, but relates more to the fear that a lay jury is simply incapable of processing rationally the testimony of the polygraph expert, who will have “an aura of near infallibility, akin to the ancient oracle of Delphi.” United States v. Alexander, 526 F.2d 161, 168 (8th Cir. 1975). The United States Supreme Court appeared to have put this kind of argument to rest when it overruled Frye in Daubert v. Merrell Dow Pharmaceuticals, Inc.:
      Respondent express apprehension that abandonment of “general acceptance” as the exclusive requirement for admission will result in a “free-for-all” in which befuddled juries are confounded by absurd and irrational pseudo-scientific assertions. In this regard Respondent seems to us to be overly pessimistic about the capabilities of the jury, and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.
      Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595-96 (1993). That admonition in Daubert has not been heeded in the multitude of cases relying on undue jury influence in rejecting admissibility of polygraph. Those opinions never refer to any actual research or experience to support the view that the jury will be unduly swayed by polygraph testimony; instead, they merely rely on the unsupported statements to that effect in prior opinions. See, e.g., United States v. Wright, 1998 U.S. Dist. LEXIS 15127 (W.D. Tenn. 1998); State v. Dean, 103 Wis. 2d 228 (1981). The few opinions that refer to actual studies on the subject find no evidence to support the fear that the polygraph evidence will confuse or mislead the jury. See, e.g., Untied States v. Scheffer, supra at 337 (Stevens, J., dissenting); United States v. Piccinonna, 885 F.2d 1329, 1533 (11th Cir. 1989)(the “studies refute the proposition that jurors are likely to give disproportionate weight to polygraph evidence.”); United States v. Starzecpyzel, 880 F. Supp. 1027, 1048-49 (S.D.N.Y. 1995); United States v. Galbreth, 908 F. Supp. 877 (D.N.M. 1995).
      The experience in the one American jurisdiction in which polygraph evidence is routinely admitted before juries in the same fashion as other expert evidence has largely been ignored by the exclusionary courts. In State v. Dorsey, 88 N.M. 184, 539 P.2d 204 (1975), the Supreme Court of the State of New Mexico determined that a blanket exclusion of unstipulated polygraph evidence was mechanistic in nature and inconsistent with the thrust of the modern rules of evidence. Polygraph evidence has been admissible in New Mexico State courts since then.
      In 1983, the court followed up on its Dorsey opinion by promulgating New Mexico rule of evidence 11-707, which provides procedures for pretrial notice, discovery and admissibility of polygraph evidence. After more than a quarter of a century of admissibility in the New Mexico courts, the results have been described as demonstrating that jurors quite capably deal with the evidence just as they deal with other evidence. The evidence has not dominated trials in New Mexico in any regard. In fact, it has been used only occasionally in either criminal or civil cases, although admissible in both. C. Daniels, New Frontiers in Polygraph Evidence, 25 The New Mexico Trial Lawyer (1997). See also, D. Raskin, The Polygraph in 1986: Scientific, Professional and Legal Issues Surrounding Acceptance of Polygraph Evidence, 1986 Utah L. Rev. 29; J. McCall, Misconceptions and Reevaluations – Polygraph Admissibility After Rock and Daubert, 1996 U. Ill. L. Rev. 363.

3. Whether the polygraph is too unreliable to be considered. Many courts impose upon polygraph a high burden of accuracy (generally referred to as “reliability” in the legal literature) that is used against no other form of evidence. The majority of laboratory and field studies place the accuracy rates of the results of a properly conducted comparison question polygraph test in excess of 85%. United States v. Crumby, supra; United states v. Galbreth, supra. The court systems in the United States routinely admit evidence with much lower accuracy rates, such as eyewitness identifications, plea-dealing informant testimony, and the like. Lay witnesses are permitted to testify as to sanity and character of another. With regard to scientific testimony in particular, the courts have upheld handwriting comparisons, predictions of future dangerousness, inkblot analyses and other psychiatric diagnoses, even though the date show them to be less reliable, or even more likely than not to be simply wrong. See D. O’Conner, The Polygraph: Scientific Evidence at Trial, 37 Naval L. Rev. 97, 106 (1988). In Newman v. Hopkins, 245 F.3d 848 (8th Cir. 2002), e.g., the court held that it violated he Sixth Amendment to the Constitution to exclude categorically voice exemplar evidence, though excluding polygraph on the same basis did not constitute such a violation.
      Two federally-sponsored studies, although often cited by opponents for the proposition that polygraph evidence is subject to criticism, are actually helpful in establishing reliability rates. In 1982, the Office of Technology Assessment, the research arm of the United States Congress, conducted an analysis of the published validity testing that had been done on specific-issue tests (as opposed to the more general and problematical screening tests used in employment and security contexts), and found that mean accuracy rates were in excess of 86%. In 2002, the National Research Council, by contract between the National Academy of Sciences and the Department of Energy, found from a review of fifty-two studies in the published literature that polygraphs “discriminated lying from truth telling at rates well above chance, though well below perfection,” with mean accuracy rates in excess of 86%.
      No other evidence with accuracy rates in such a range has ever been excluded from consideration by the fact finder on grounds of insufficient reliability. In fact, the Supreme Court has approved the admission of psychiatric testimony of future dangerousness to support imposition of capital punishment, even in the face of data showing less than a one-third accuracy rate. Barefoot v. Estelle, 463 U.S. 880 (1983) Rule 402 of the Federal Rules of Evidence, similar to analogous rules of most State jurisdictions, set a threshold of evidentiary admissibility in general, providing that evidence need only tend to make the proposition for which it is offered more likely than it would have been without the evidence. Even polygraph opponents generally will not cite any scientific studies that conclude that the evidence fails to meet that legal standard.
      The rationale of lack of reliability often is voiced by judges who simply fear the potential impact of polygraph on the litigation process and who do not express it as candidly as one court did: “Even if the accuracy of polygraph examinations approaches the eighty or ninety percent claimed by the polygraph experts, [the jury’s] view of the polygraph as an absolute indicator of truth creates an overwhelming potential for prejudice…. .” Brown v. Darcy, 783 F.2d 1389, 1396 (9th cir. 1986). Justice Hans Lynde of the Supreme Court of Oregon accurately observed the reality:
      I doubt the uneasiness about electrical lie detectors would disappear even if they were refined to place their accuracy beyond question. Indeed, I would not be surprised if such a development would only heighten the sense of unease and the search for plausible legal objections.
People v. Lyon, 744 P.2d 231, 238 (Or. 1987)(Linde, J., concurring).

4. Whether polygraph evidence is too time-consuming. Many exclusionary opinions rely on the assertion that polygraph issues would simply take up too much court time. State v. Grier, 307 N.C. 628 (1983). None of those cases refer to any empirical study that has ever supported the notion that polygraph evidence is generally more time-consuming than the diverse variety of scientific evidence that the courts deal with in the course of litigation on a regular basis. In fact, the evidence is to the contrary. R. Peters, A Survey of Polygraph Evidence in Criminal Trials, 68 ABA Journal 162 (1982). No reported case has ever articulated why potential disputes over qualifications, foundations, cross-examination and disagreements among experts need take any more time for polygraph than it does for DNA, psychiatric disputes, legal economics or the issues about hypnotized witnesses that the Supreme Court faced in Rock v. Arkansas, 483 U.S. 44 (1987).
      The problem of the battle of the experts “is present in every area of expert testimony and the best solution is the discerning judgment of the jury,” subject to the trial court’s gate keeping discretion. State v. Mendoza, 80 Wis. 2d 122, 163, 258 N.W.2d 260, 278 (1977). In the con text of other forms of expert testimony, the courts repeatedly have acknowledged that the discretion to keep out time-consuming evidence “does not mean that a court may exclude evidence that will cause delay regardless of its probative value.” Johnson v. United States, 780 F.2d 902 (11th Cir. 1986); Ballkou v. Henri Studies, Inc., 656 F.2d 1147 (5th Cir. 1981); Bower v. O’Hara, 759 F.2d 1117 (3d Cir. 1983).

5. Whether the polygrapher is being offered as a character expert. One recurring argument totally misperceives the nature of polygraph evidence when it takes the position that “the polygraph results are inadmissible extrinsic evidence of plaintiff’s character.” Maddox v. Cash Loans of Huntsville II, 1998 U.S. Dist. LEXIS 14938 (N.D. Al. 1998); United States v. Pittner, 960 F. Supp. 1246 (W.D. Wash. 1997); Evans v. De Ridder Mun. Fire & Police Civ. Serv. Bur., 789 So.2d 752 (La. App. 2001).
      Rule 608 of the federal rules of evidence, like many corresponding State rules, imposes certain requirements for the use of a witness to testify about someone’s good or bad character, which testimony can be used as a basis for an inference by the jury that the person may have acted in conformity with that character on the occasion at issue in the trial. Rule 608(a) allows the witness to testify in the form of his own opinion of the person’s character or his knowledge of the person’s reputation in the community, provided he has a sufficient basis for knowing either. Rule 608(b) precludes character witnesses from testifying on direct examination about particular instances of misconduct or deception.
      The courts employing the character theory for excluding polygraph evidence theorize that when the polygrapher testifies about truthful or deceptive answers of a subject on a polygraph test, he is doing so to show that the test subject has the character of an honest or dishonest person. Since the paleographer’s opinion does not meet the standard for admission as character evidence, the opinion is held to be inadmissible.
      Those opinions are simply wrong. The polygrapher neither tests nor testifies about a person’s overall character. Those considerations are irrelevant to the overriding function of the polygraph test: to provide scientific circumstantial evidence of manifestations indicating consciousness of truth or deception as to particular items of knowledge. Whether the person lies or tells the truth on other occasions has no bearing on the outcome of the test and is of no concern to the polygrapher.

6. Whether the opposing party has been present at the actual test. There is nothing in the rules of evidence or the case law which imposes a requirement that a party must invite the opposing party to be present for any scientific test, medical examination, psychological evaluation or other expert study in order for the results to be offered into evidence. Nevertheless, a substantial number of court opinions exclude polygraph test results precisely on that theory, even where the opponent has been provided an opportunity to conduct it’s own test or review actual audiotapes or videotapes of the first examination. United States v. Gilliard, 133 F.3d 809 (11th Cir. 19098); Conti v. Commissioner, 39 F.3d 658 (6th Cir. 1994)(“unilaterally obtained polygraph evidence is almost never admissible).

7. Whether the opposing party has stipulated to admission of the test. The frequently-encountered stipulation approach, common in State courts (McCall, supra), and “prevalent in most [federal judicial] circuits,” United States v. Crumby, 895 F. Supp. 1354, 1336 (D. Ariz. 1995), cannot be justified on any sound jurisprudential basis. If the evidence is relevant and reliable, opposing counsel should not have the unilateral power to decide whether the jury should hear it. The cases support the proposition that either party may refuse to stipulate to use of the evidence, for any reason or no reason at all, essentially arming the parties with unreviewable evidentiary blackballs. Jackson v. State, 997 P.2d (Nev. 2000).
      If the courts honestly believed polygraph evidence to be irrelevant and unreliable, why would they permit juries to use it as a basis for important factual determinations when there has been a pretrial agreement of the parties? Surely, courts of law would not countenance using the results of trial by ordeal or combat or the testimony of an ouija board interpreter, no matter how much advance stipulation by the parties had taken place. The polygraph stipulation approach is an unprincipled anomaly in the law of evidence.

D. United States v. Scheffer
      The closest the United States Supreme Court has ever come to facing the issues of polygraph evidence admissibility occurred recently in United States v. Scheffer, 523 U.S. 303 (1998), a case as narrow in its true technical holding as it is broadly significant in its future influence on the exclusion of polygraph evidence from American courtrooms. Anyone who seeks to litigate admissibility of polygraphs must be thoroughly familiar with Scheffer.
      The case appropriately originated in the military courts. The United States armed forces have for many years studied and used the polygraph, and beginning with United States v. Gipson, 24 M.J. 246 (C.M.A. 1987), the military courts had officially recognized the scientific reliability of the polygraph and the propriety of its use as evidence. The executive branch of the federal government responded to Gipson by issuing a new military rule of evidence to impose a per se ban on polygraph evidence for the military courts, precluding any possibility of making a showing of scientific reliability or relevance. Scheffer tested the constitutionality of that per se ban under those provisions of the 6th Amendment that guarantee the right of the accused to have his defense evidence heard. That theory had previously been relied on to strike down evidentiary bans on the ability of the accused to introduce exculpatory hearsay statements, accomplice testimony and hypnotically refreshed testimony. G. Dery, Mouse Hunting With an Elephant Gun: The Supreme Court’s Overkill in Upholding a Categorical Rejection to Polygraph Evidence in United States v. Scheffer. 26 Am. J. Crim. L. 227 (Spring 1999).
      An airman charged with using drugs had been administered both a urinalysis and a polygraph by the Air Force. The urinalysis expert concluded that traces of methamphetamine were found in his urine, and the polygraph expert reported that the airman did not show signs of deception when he denied knowingly ingesting the drugs. As a result of the new exclusionary evidence rule, the court martial “jury” was not allowed to hear about the polygraph evidence, while the urinalysis analysis was admitted. The airman appealed his resulting conviction, and the court of appeals for the armed forces held that a rule imposing a per se exclusion of polygraph evidence violated the Sixth Amendment right to present a defense. The government took the case to the United States Supreme Court, which reversed the court of appeals and reinstated the conviction.
      Those who hoped the Scheffer opinion would provide some definitive answers to the issue surrounding polygraph use in the United States courts found little resolution in the decision. Comment, Between a Rock and a Hard Place: Polygraph Prejudice Persists After Scheffer, 47 Buffalo L. Rev. 1533 (1999). There were in fact three separate opinions, none garnering the full support of a majority of the nine-member court. It takes a careful analysis to determine just what the court said and did not say, and the opinion has already been widely misinterpreted and misused. The only clear majority holding from the court’s opinion is that a jurisdiction that chooses to keep polygraphs out of evidence is not absolutely precluded by the United States Constitution from making that choice, at least at the present time. That conclusion was shared by the four justices supporting the Thomas opinion (“The Thomas four” – Thomas, Rehnquist, Scalia and Souter) and the four justices supporting the Kennedy opinion (“The Kennedy four” – Kennedy, O’Connor Ginsburg and Breyer).
      Only the Thomas four believed that the per se exclusion was appropriate, mentioning several of the common exclusion theories analyzed above. The Kennedy four reluctantly joined the Thomas four on the constitutional issue to avoid binding all court systems in the country to a constitutional ruling that they have no power to choose to exclude polygraph evidence, joining only on the ground that “the rule of exclusion is not so arbitrary or disproportionate that it is unconstitutional.” The Kennedy four went on to say, however, that they did not agree that the per se exclusion was wise and that a later case might cause them to re-examine their agreement with the constitutionality of the exclusionary position. The Kennedy four also noted the tension between the Scheffer result and the Daubert doctrine, as well as the inconsistency between the government’s oppositionist position to use of polygraphs by the accused while it makes widespread use of polygraph tests in going about its own business.
      Justice Stevens was clear in his separate dissent that the courts should be open to admission of polygraph results and that the Sixth Amendment does prohibit a per se exclusion. His opinion contains the single most thorough judicial analysis ever written about the scientific and legal issued involving polygraph evidence.

       Synthesizing the three separate opinions, a five-justice majority of the court (Stevens, Kennedy, O’Connor, Ginsburg and Breyer) made clear their positions on the following issued:
      1. A per se rule of polygraph exclusion is either unconstitutional (Stevens) or unwise (Kennedy, O’Connor, Ginsburg and Breyer).
      2. Polygraph evidence was not found to be unreliable. In fact, none of the opinions of the nine justices reached that conclusion. The Thomas four and the Kennedy four agreed that in light of the continuing good faith disagreement among experts and courts on the subject, it is possible to “reasonably reach differing conclusions as to whether polygraph evidence should be admitted” as a matter of constitutional law. Justice Stevens found it sufficiently reliable that the Constitution requires its admission on behalf of the accused
      3. That majority of the court did not find that polygraph evidence invades the province of the jury. The government used this familiar argument, but failed to convince the majority of the court. While the Thomas four accepted the argument the remaining five judges explicitly rejected it.
      4. The court did not say that consideration of polygraph takes too much time in litigation and consideration of collateral issues. Again, this argument had the support of the Thomas four, but not the remaining five justices.
      The plurality opinion of the Thomas Four has been justly criticized as
Flawed and inconsistent with Sixth Amendment jurisprudence on the right of the accused to present his defense. E. Imwinklereid, A Defense of the Right to Present Defense Expert Testimony: The Flaws in the Plurality Opinion in United States v. Scheffer, 69 Tenn. L. Rev. 539 (Spring 2002).
      Despite the fact that advocates on all sides of the polygraph issue will find support for their arguments in either the ultimate result or particularly language in the various opinions, there are some predictions that are safe to make. This is little doubt that the Thomas four can be expected to remain hostile to the use of polygraph evidence, while the other five justices are likely to be more receptive. In a future case, a majority of the court eventually could hold that admission of polygraph evidence is constitutionally required, though there is no reason to expect that result any time soon. Until the issues are revisited by the Supreme Court, the lower courts technically remain free to consider the admissibility of polygraph evidence under Daubert.

E. The Impact of Scheffer on the Polygraph Debate.
      In the several years following the issuance of the Supreme Court opinions
In Scheffer, a growing number of lower court cases purport to have relied on the case. Despite the fact that a majority of the Scheffer justices were favorable to consideration of polygraph evidence under the Daubert guidelines, the trend of subsequent lower court decisions has been strikingly exclusionary. Some cases simply recite that a categorical ban on admissibility of polygraph evidence is supported by Scheffer. See, e.g. United States v. Ruhe, 191 F.3d 376 (4th Cir. 1999). In other cases, language is often taken from dictum in the four-justice opinion of Justice Thomas to support conclusory statements in lower court opinions that the polygraph is in fact unreliable, or is in fact confusing to the jury, or is otherwise excludable under Rule 403. See, e.g., United States v. Reed, 147 F.3d 1178, 1183 (9th Cir. 1998); United States v. Orians, 9 F. Supp. 2d 1168 (D. Ariz. 1998); United States v. Wright, 1998 U.S. Dist. LEXIS 15127 (W.D. Tenn. 1998).
      Not a single opinion even takes note of the fact that a majority of the Scheffer Court thought a policy of exclusion to be unwise or unconstitutional. Many of the opinions misrepresent various statements in the Thomas plurality opinion, dicta explicitly rejected by the written opinions of the majority of the Scheffer justices, as representing the opinion of the United States Supreme Court.
      Ironically, our adversaries continue to make widespread use of the technique. Neither Scheffer nor the many exclusionary lower court decisions have diminished use of the polygraph outside the courtroom, particularly by the federal government and State and local law enforcement. Government officials who vigorously oppose the use of polygraph evidence by the acc used find it reliable enough to use in their decision-making, despite their concern that it is too unreliable for ordinary jurors to deal with. Prosecutors and police agencies routinely use the polygraph in such decision-making contexts as determinations of probably cause for arrest, Bennett v. City of Grand Prairie, 883 F.2d 400 (5th Cir. 1989); Johnson v. Schneiderheinz, 102 F.3d 340 (8th Cir. 1996); decisions to prosecute, Brodnicki v. City of Omaha, 75 F.3d 1261 (8th Cir. 1996); forfeiture of a defendant’s property, United States v. Haselden, 1996 U.S. App. LEXIS 32989 (4th Cir.); prison disciplinary proceedings, Stone-Bey v. Debruyn, 1996 U.S. App. LEXIS 30012 (7th Cir.); parole revocation proceedings, Martin v. Parker, 1991 U.S. App. LEXIS 2326 (6th Cir.); conditions of plea agreements, United States v. Lewis, 110 F.3d 41 (7t Cir. 1997); to vouch for the credibility of government witnesses, United States v. Winkelman, 1996 U.S. App. LEXIS 30169 (6th Cir.); in determining whether to agree to a downward departure in sentencing, United States v. Morrison, 1996 U.S. App. LEXIS 27409 (4th Cir.); and numerous other out-of-court uses. As incredible as it sounds, at least one public defender office has even used polygraph examinations of indigent defendants in making decisions about proper allocation of defense resources. Miranda v. Clark County, 2003 U.S. App. LEXIS 1778 (9th Cir. 2/3/2003). The very fact that the government relies so much on polygraph results for important decisions is something that ought to be stressed to belie arguments that the polygraph is of no assistance in determining whether someone is consciously being deceptive, as noted by several Justices in Scheffer.
      Whatever uses of polygraph continue to be made in the real world; the Scheffer opinions have not changed the hostile treatment of polygraph evidence in the courts. L. Peeples, Exculpatory Polygraphs in the Courtroom: How the Truth May Not Set You Free, (citing cases from 27 sates and the District of Columbia absolutely barring polygraph evidence). The historical pattern of apprehension and exclusion, with only occasional exceptions allowing the evidence to be admitted, has continued. Although a dispassionate analysis of general legal rules and theories of admission of evidence in general, and of scientific evidence in particular, would seem to favor polygraph admission, those theories tend to be ignored or applied in unusually stringent ways to exclude polygraph evidence. While proponents will undoubtedly continue to attempt to influence the courts in applying those theories more consistently to polygraph evidence there is no reason to expect any significant change in the overall trend of in-court exclusion in the near future.