OCTOBER TERM, 1997
Syllabus
UNITED STATES
v. SCHEFFER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
No. 96-1133. Argued November 3, 1997-Decided March 31, 1998
A polygraph examination of respondent airman indicated, in the
opinion of the Air Force examiner administering the test, that
there was "no deception" in respondent's denial that he had used
drugs since enlisting. Urinalysis, however, revealed the presence
of methamphetamine, and respondent was tried by general
court-martial for using that drug and for other offenses. In
denying his motion to introduce the polygraph evidence to support
his testimony that he did not knowingly use drugs, the military
judge relied on Military Rule of Evidence 707, which makes
polygraph evidence inadmissible in court-martial proceedings.
Respondent was convicted on all counts, and the Air Force Court of
Criminal Appeals affirmed. The Court of Appeals for the Armed
Forces reversed, holding that a
per se exclusion of
polygraph evidence offered by an accused to support his credibility
violates his Sixth Amendment right to present a defense.
Held: The judgment is reversed. 44 M. J. 442,
reversed.
JUSTICE THOMAS delivered the opinion of the Court with respect
to Parts I, II-A, and II-D, concluding that Military Rule of
Evidence 707 does not unconstitutionally abridge the right of
accused members of the military to present a defense. pp. 308-312,
315-317.
(a) A defendant's right to present relevant evidence is subject
to reasonable restrictions to accommodate other legitimate
interests in the criminal trial process. See,
e. g.,
Rock v.
Arkansas, 483 U. S. 44, 55. State
and federal rulemakers therefore have broad latitude under the
Constitution to establish rules excluding evidence. Such rules do
not abridge an accused's right to present a defense so long as they
are not "arbitrary" or "disproportionate to the purposes they are
designed to serve." E. g., id., at 56. This Court has found the
exclusion of evidence to be unconstitutionally arbitrary or
disproportionate only where it has infringed upon a weighty
interest of the accused. See,
e. g., id., at 58. Rule 707
serves the legitimate interest of ensuring that only reliable
evidence is introduced. There is simply no consensus that polygraph
evidence is reliable: The scientific community and the state and
federal courts are extremely polarized on the matter. pp.
308-312.
304
Syllabus
(b) Rule 707 does not implicate a sufficiently weighty interest
of the accused to raise a constitutional concern under this Court's
precedents. The three cases principally relied upon by the Court of
Appeals,
Rock, supra, at 57,
Washington v.
Texas, 388 U.
S. 14, 23, and
Chambers v.
Mississippi, 410 U. S. 284, 302-303,
do not support a right to introduce polygraph evidence, even in
very narrow circumstances. The exclusions of evidence there
declared unconstitutional significantly undermined fundamental
elements of the accused's defense. Such is not the case here, where
the court members heard all the relevant details of the charged
offense from respondent's perspective, and Rule 707 did not
preclude him from introducing any factual evidence, but merely
barred him from introducing expert opinion testimony to bolster his
own credibility. Moreover, in contrast to the rule at issue in
Rock, supra, at 52, Rule 707 did not prohibit respondent
from testifying on his own behalf; he freely exercised his choice
to convey his version of the facts at trial. Pp. 315-317.
THOMAS, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II-A, and II-D,
in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER,
GINSBURG, and BREYER, JJ., joined, and an opinion with respect to
Parts II-B and II-C, in which REHNQUIST, C. J., and SCALIA and
SOUTER, JJ., joined. KENNEDY, J., filed an opinion concurring in
part and concurring in the judgment, in which O'CONNOR, GINSBURG,
and BREYER, JJ., joined,
post, p. 318. STEVENS, J., filed a
dissenting opinion,
post, p. 320.
Deputy Solicitor General Dreeben argued the cause for the United
States. With him on the briefs were Acting Solicitor General
Dellinger, Acting Solicitor General Waxman, Acting Assistant
Attorney General Keeney, David C. Frederick, Joel M. Gershowitz,
and Michael J. Breslin.
Kim L. Sheffield argued the cause for respondent. With her on
the brief were Carol L. Hubbard, Michael L. McIntyre, Robin S.
Wink, and W Craig Mullen. *
*Briefs of
amici curiae urging reversal were filed for
the State of Connecticut et al. by
John M. Bailey, Chief
State's Attorney of Connecticut, and
Judith Rossi, Senior
Assistant State's Attorney, and by the Attorneys General for their
respective jurisdictions as follows:
Bill Pryor of Alabama,
Bruce M. Botelho of Alaska,
Winston Bryant of
Arkansas,
Daniel E. Lungren of California,
M. Jane
Brady of Delaware,
Thurbert E. Baker
305
JUSTICE THOMAS announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II-A, and II-D,
and an opinion with respect to Parts II-B and II-C, in which THE
CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE SOUTER join.
This case presents the question whether Military Rule of
Evidence 707, which makes polygraph evidence inadmissible in
court-martial proceedings, unconstitutionally abridges the right of
accused members of the military to present a defense. We hold that
it does not.
I
In March 1992, respondent Edward Scheffer, an airman stationed
at March Air Force Base in California, volunteered to work as an
informant on drug investigations for the Air Force Office of
Special Investigations (OSI). His OSI supervisors advised him that,
from time to time during the course of his undercover work, they
would ask him to submit to drug testing and polygraph examinations.
In early April,
of Georgia, Jeffrey A. Modisett of Indiana, Carla J. Stovall of
Kansas, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine,
J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of
Massachusetts, Mike Moore of Mississippi, Joseph P. Mazurek of
Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada,
Philip T. McLaughlin of New Hampshire, Dennis C. Vacco of New York,
Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio,
Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania,
Jeffrey B. Pine of Rhode Island, Charles Molony Condon of South
Carolina, Richard Cullen of Virginia, Christine O. Gregoire of
Washington, Robert A. Butterworth of Florida, and William U Hill of
Wyoming; and for the Criminal Justice Legal Foundation by Kent
Briefs of
amici curiae urging affirmance were filed for
the American Polygraph Association by
Gordon L. Vaughan; for
the United States Army Defense Appellate Division by
John T.
Phelps II; for the Committee of Concerned Social Scientists by
Charles F.
Peterson; for the National Association of
Criminal Defense Lawyers by
Charles W Daniels and
Barbara
E. Bergman; and for the United States Navy-Marine Corps
Appellate Defense Division by
Syed N. Ahmad.
306
one of the OSI agents supervising respondent requested that he
submit to a urine test. Shortly after providing the urine sample,
but before the results of the test were known, respondent agreed to
take a polygraph test administered by an OSI examiner. In the
opinion of the examiner, the test "indicated no deception" when
respondent denied using drugs since joining the Air Force.1
On April 30, respondent unaccountably failed to appear for work
and could not be found on the base. He was absent without leave
until May 13, when an Iowa state patrolman arrested him following a
routine traffic stop and held him for return to the base. OSI
agents later learned that respondent's urinalysis revealed the
presence of methamphetamine.
Respondent was tried by general court-martial on charges of
using methamphetamine, failing to go to his appointed place of
duty, wrongfully absenting himself from the base for 13 days, and,
with respect to an unrelated matter, uttering 17 insufficient funds
checks. He testified at trial on his own behalf, relying upon an
"innocent ingestion" theory and denying that he had knowingly used
drugs while working for OSI. On cross-examination, the prosecution
attempted to impeach respondent with inconsistencies between his
trial testimony and earlier statements he had made to OSI.
Respondent sought to introduce the polygraph evidence in support
of his testimony that he did not knowingly use drugs. The military
judge denied the motion, relying on Military Rule of Evidence 707,
which provides, in relevant part:
"(a) Notwithstanding any other provision of law, the results of
a polygraph examination, the opinion of a polygraph examiner, or
any reference to an offer to take,
1 The OSI examiner asked three relevant questions: (1) "Since
you've been in the [Air Force], have you used any illegal drugs?";
(2) "Have you lied about any of the drug information you've given
OSI?"; and (3) "Besides your parents, have you told anyone you're
assisting OSI?" Respondent answered "no" to each question. App.
12.
307
failure to take, or taking of a polygraph examination, shall not
be admitted into evidence."
The military judge determined that Rule 707 was constitutional
because "the President may, through the Rules of Evidence,
determine that credibility is not an area in which a fact finder
needs help, and the polygraph is not a process that has sufficient
scientific acceptability to be relevant." 2 App. 28. He further
reasoned that the factfinder might give undue weight to the
polygraph examiner's testimony, and that collateral arguments about
such evidence could consume "an inordinate amount of time and
expense."
Ibid.
Respondent 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. The Air Force Court of Criminal Appeals affirmed in all
material respects, explaining that Rule 707 "does not arbitrarily
limit the accused's ability to present reliable evidence." 41 M. J.
683, 691 (1995) (en bane).
By a 3-to-2 vote, the United States Court of Appeals for the
Armed Forces reversed. 44 M. J. 442 (1996). Without pointing to any
particular language in the Sixth Amendment, the Court of Appeals
held that "[a]
per se exclusion of polygraph evidence
offered by an accused to rebut an attack on his credibility ...
violates his Sixth Amendment right to present a defense."
Id., at 445.3 Judge Crawford, dissent-
2 Article 36 of the Uniform Code of Military Justice authorizes
the President, as Commander in Chief of the Armed Forces, see U. S.
Const., Art. II, § 2, to promulgate rules of evidence for military
courts: "Pretrial, trial, and post-trial procedures, including
modes of proof, ... may be prescribed by the President by
regulations which shall, so far as he considers practicable, apply
the principles oflaw and the rules of evidence generally recognized
in the trial of criminal cases in the United States district
courts." 10 U. S. C. § 836(a).
3 In this Court, respondent cites the Sixth Amendment's
Compulsory Process Clause as the specific constitutional provision
supporting his claim. He also briefly contends that the "combined
effect" of the Fifth and Sixth Amendments confers upon him the
right to a "'meaningful op-
308
ing, stressed that a defendant's right to present relevant
evidence is not absolute, that relevant evidence can be excluded
for valid reasons, and that Rule 707 was supported by a number of
valid justifications.
Id., at 449-451. We granted
certiorari, 520 U. S. 1227 (1997), and we now reverse.
II
A defendant's right to present relevant evidence is not
unlimited, but rather is subject to reasonable restrictions.4 See
Taylor v.
Illinois, 484 U. S. 400, 410
(1988);
Rock v.
Arkansas, 483 U. S. 44, 55 (1987);
Chambers v.
Mississippi, 410 U. S. 284, 295 (1973). A
defendant's interest in presenting such evidence may thus "'bow to
accommodate other legitimate interests in the criminal trial
process.'"
Rock, supra, at 55 (quoting
Chambers,
supra, at 295); accord,
Michigan v.
Lucas,
500 U. S. 145,
149 (1991). As a result, state and federal rulemakers have broad
latitude under the Constitution to establish rules excluding
evidence from criminal trials. Such rules do not abridge an
accused's right to present a defense so long as they are not
"arbitrary" or "disproportionate to the purposes they are designed
to serve."
Rock, supra, at 56; accord,
Lucas, supra,
at 151. Moreover, we have found the exclusion of evidence to be
unconstitutionally arbitrary or disproportionate only where it has
infringed upon a weighty interest of the accused. See
Rock,
supra, at
58; Chambers, supra, at 302;
Washington
v.
Texas, 388
U. S. 14, 22-23 (1967).
portunity to present a complete defense,'"
Crane v.
Kentucky, 476
U. S. 683, 690 (1986) (citations omitted), and that this right
in turn encompasses a constitutional right to present polygraph
evidence to bolster his credibility.
4 The words "defendant" and "jury" are used throughout in
reference to general principles of law and in discussing
nonmilitary precedents. In reference to this case or to the
military specifically, the terms "court," "court members," or
"court-martial" are used throughout, as is the military term
"accused," rather than the civilian term "defendant."
309
Rule 707 serves several legitimate interests in the criminal
trial process. These interests include ensuring that only reliable
evidence is introduced at trial, preserving the court members' role
in determining credibility, and avoiding litigation that is
collateral to the primary purpose of the trial.5 The Rule is
neither arbitrary nor disproportionate in promoting these ends. Nor
does it implicate a sufficiently weighty interest of the defendant
to raise a constitutional concern under our precedents.
A
State and Federal Governments unquestionably have a legitimate
interest in ensuring that reliable evidence is presented to the
trier of fact in a criminal trial. Indeed, the exclusion of
unreliable evidence is a principal objective of many evidentiary
rules. See,
e. g., Fed. Rules Evid. 702, 802, 901; see also
Daubert v.
Merrell Dow Pharmaceuticals, Inc.,
509 U. S. 579,
589 (1993).
The contentions of respondent and the dissent notwithstanding,
there is simply no consensus that polygraph evidence is reliable.
To this day, the scientific community remains extremely polarized
about the reliability of polygraph techniques. 1 D. Faigman, D.
Kaye, M. Saks, & J. Sanders, Modern Scientific Evidence 565, n.
t, § 14-2.0 to § 14-7.0 (1997); see also 1 P. Giannelli & E.
Imwinkelried, Scientific
5 These interests, among others, were recognized by the drafters
of Rule 707, who justified the Rule on the following grounds: the
risk that court members would be misled by polygraph evidence; the
risk that the traditional responsibility of court members to
ascertain the facts and adjudge guilt or innocence would be
usurped; the danger that confusion of the issues "'could result in
the court-martial degenerating into a trial of the polygraph
machine;'" the likely waste of time on collateral issues; and the
fact that the "'reliability of polygraph evidence has not been
sufficiently established.''' See 41 M. J. 683, 686 (USAF Ct. Crim.
App. 1995) (citing Manual for Courts-Martial, United States,
Analysis of the Military Rules of Evidence, App. 22, p. A22-46
(1994 ed.)).
310
Evidence § 8-2(C), pp. 225-227 (2d ed. 1993) (hereinafter
Giannelli & Imwinkelried); 1 J. Strong, McCormick on Evidence §
206, p. 909 (4th ed. 1992) (hereinafter McCormick). Some studies
have concluded that polygraph tests overall are accurate and
reliable. See,
e. g., S. Abrams, The Complete Polygraph
Handbook 190-191 (1989) (reporting the overall accuracy rate from
laboratory studies involving the common "control question
technique" polygraph to be "in the range of 87 percent"). Others
have found that polygraph tests assess truthfulness significantly
less accurately-that scientific field studies suggest the accuracy
rate of the "control question technique" polygraph is "little
better than could be obtained by the toss of a coin," that is, 50
percent. See Iacono & Lykken, The Scientific Status of Research
on Polygraph Techniques: The Case Against Polygraph Tests, in 1
Modern Scientific Evidence,
supra, § 14-5.3, at 629
(hereinafter Iacono & Lykken).6
This lack of scientific consensus is reflected in the
disagreement among state and federal courts concerning both the
6 The United States notes that in 1983 Congress' Office of
Technology Assessment evaluated all available studies on the
reliability of polygraphs and concluded that" '[o]verall, the
cumulative research evidence suggests that when used in criminal
investigations, the polygraph test detects deception better than
chance, but with error rates that could be considered
significant.''' Brief for United States 21 (quoting U. S. Congress,
Office of Technology Assessment, Scientific Validity of Polygraph
Testing: A Research Review and Evaluation-A Technical Memorandum 5
(OTATM-H-15, Nov. 1983)). Respondent, however, contends current
research shows polygraph testing is reliable more than 90 percent
of the time. Brief for Respondent 22, and n. 19 (citing J. Matte,
Forensic Psychophysiology Using the Polygraph 121-129 (1996)). Even
if the basic debate about the reliability of polygraph technology
itself were resolved, however, there would still be controversy
over the efficacy of countermeasures, or deliberately adopted
strategies that a polygraph examinee can employ to provoke
physiological responses that will obscure accurate readings and
thus "fool" the polygraph machine and the examiner. See,
e.
g., Iacono & Lykken § 14-3.0.
311
admissibility and the reliability of polygraph evidence.7
Although some Federal Courts of Appeals have abandoned the
per
se rule excluding polygraph evidence, leaving its admission or
exclusion to the discretion of district courts under
Daubert, see,
e. g., United States v.
Posado,
57 F.3d
428, 434 (CA5 1995);
United States v.
Cordoba,
104 F.3d
225, 228 (CA9 1997), at least one Federal Circuit has recently
reaffirmed its
per se ban, see
United States v.
Sanchez, 118 F.3d
192, 197 (CA4 1997), and another recently noted that it has
"not decided whether polygraphy has reached a sufficient state of
reliability to be admissible."
United States v.
Messina, 131 F.3d
36, 42 (CA2 1997). Most States maintain
per se rules
excluding polygraph evidence. See,
e. g., State v.
Porter, 241 Conn. 57, 92-95, 698 A. 2d 739, 758-759 (1997);
People v.
Gard, 158 Ill. 2d 191, 202-204, 632 N. E.
2d 1026, 1032 (1994);
In re Odell, 672 A. 2d 457, 459 (RI
1996)
(per curiam); Perkins v.
State, 902 S. W. 2d
88, 94-95 (Ct. App. Tex. 1995). New Mexico is unique in making
polygraph evidence generally admissible without the prior
stipulation of the parties and without significant restriction. See
N. M.
7 Until quite recently, federal and state courts were uniform in
categorically ruling polygraph evidence inadmissible under the test
set forth in
Frye v.
United States, 293 F.1d
13 (CADC 1923), which held that scientific evidence must gain
the general acceptance of the relevant expert community to be
admissible. In
Daubert v.
Merrell Dow Pharmaceuticals,
Inc., 509 U. S.
579 (1993), we held that
Frye had been superseded by the
Federal Rules of Evidence and that expert testimony could be
admitted if the district court deemed it both relevant and
reliable.
Prior to
Daubert, neither federal nor state courts found
any Sixth Amendment obstacle to the categorical rule. See,
e.
g., Bashor v.
Risley, 730 F.2d
1228, 1238
(CA9), cert. denied, 469 U. S. 838 (1984);
People v.
Price, 1 Cal. 4th 324, 419-420, 821 P. 2d
610, 663 (1991), cert. denied, 506 U. S. 851 (1992). Nothing in
Daubert foreclosed, as a constitutional matter,
per
se exclusionary rules for certain types of expert or scientific
evidence. It would be an odd inversion of our hierarchy of laws if
altering or interpreting a rule of evidence worked a corresponding
change in the meaning of the Constitution.
312
Opinion of THOMAS, J.
Rule Evid. § 11-707.8 Whatever their approach, state and federal
courts continue to express doubt about whether such evidence is
reliable. See,
e. g., United States v.
Messina,
supra, at 42;
United States v.
Posado, supra, at
434;
State v.
Porter, supra, at 126-127, 698 A. 2d,
at 774;
Perkins v.
State, supra, at 94;
People
v.
Gard, supra, at 202-204, 632 N. E. 2d, at 1032;
In re
Odell, supra, at 459.
The approach taken by the President in adopting Rule
707-excluding polygraph evidence in all military trials-is a
rational and proportional means of advancing the legitimate
interest in barring unreliable evidence. Although the degree of
reliability of polygraph evidence may depend upon a variety of
identifiable factors, there is simply no way to know in a
particular case whether a polygraph examiner's conclusion is
accurate, because certain doubts and uncertainties plague even the
best polygraph exams. Individual jurisdictions therefore may
reasonably reach differing conclusions as to whether polygraph
evidence should be admitted. We cannot say, then, that presented
with such widespread uncertainty, the President acted arbitrarily
or disproportionately in promulgating a
per se rule
excluding all polygraph evidence.
B
It is equally clear that Rule 707 serves a second legitimate
governmental interest: Preserving the court members' core
8 Respondent argues that because the Government-and in
particular the Department of Defense-routinely uses polygraph
testing, the Government must consider polygraphs reliable.
Governmental use of polygraph tests, however, is primarily in the
field of personnel screening, and to a lesser extent as a tool in
criminal and intelligence investigations, but not as evidence at
trials. See Brief for United States 34, n. 17; Barland, The
Polygraph Test in the USA and Elsewhere, in The Polygraph Test 76
(A. Gale ed. 1988). Such limited, out of court uses of polygraph
techniques obviously differ in character from, and carry less
severe consequences than, the use of polygraphs as evidence in a
criminal trial. They do not establish the reliability of polygraphs
as trial evidence, and they do not invalidate reliability as a
valid concern supporting Rule 707's categorical ban.
313
function of making credibility determinations in criminal
trials. A fundamental premise of our criminal trial system is that
"the
jury is the lie detector."
United States v.
Barnard, 490 F.2d
907, 912 (CA9 1973) (emphasis added), cert. denied, 416 U. S.
959 (1974). Determining the weight and credibility of witness
testimony, therefore, has long been held to be the "part of every
case [that] belongs to the jury, who are presumed to be fitted for
it by their natural intelligence and their practical knowledge of
men and the ways of men."
Aetna Life Ins. Co. v.
Ward, 140 U. S.
76, 88 (1891).
By its very nature, polygraph evidence may diminish the jury's
role in making credibility determinations. The common form of
polygraph test measures a variety of physiological responses to a
set of questions asked by the examiner, who then interprets these
physiological correlates of anxiety and offers an opinion to the
jury about whether the witness-often, as in this case, the
accused-was deceptive in answering questions about the very matters
at issue in the trial. See 1 McCormick § 206.9 Unlike other expert
witnesses who testify about factual matters outside the jurors'
knowledge, such as the analysis of fingerprints, ballistics, or DNA
found at a crime scene, a polygraph expert can supply the jury only
with another opinion, in addition to its own, about whether the
witness was telling the truth. Jurisdictions, in promulgating rules
of evidence, may legitimately be concerned about the risk that
juries will give excessive
9 The examiner interprets various physiological responses of the
examinee, including blood pressure, perspiration, and respiration,
while asking a series of questions, commonly in three categories:
direct accusatory questions concerning the matter under
investigation, irrelevant or neutral questions, and more general
"control" questions concerning wrongdoing by the subject in
general. The examiner forms an opinion of the subject's
truthfulness by comparing the physiological reactions to each set
of questions. See generally Giannelli & lmwinkelried 219-222;
Honts & Quick, The Polygraph in 1995: Progress in Science and
the Law, 71 N. D. L. Rev. 987, 990-992 (1995).
314
Opinion of THOMAS, J.
weight to the opinions of a polygrapher, clothed as they are in
scientific expertise and at times offering, as in respondent's
case, a conclusion about the ultimate issue in the trial. Such
jurisdictions may legitimately determine that the aura of
infallibility attending polygraph evidence can lead jurors to
abandon their duty to assess credibility and guilt. Those
jurisdictions may also take into account the fact that a judge
cannot determine, when ruling on a motion to admit polygraph
evidence, whether a particular polygraph expert is likely to
influence the jury unduly. For these reasons, the President is
within his constitutional prerogative to promulgate a
per se
rule that simply excludes all such evidence.
c
A third legitimate interest served by Rule 707 is avoiding
litigation over issues other than the guilt or innocence of the
accused. Such collateral litigation prolongs criminal trials and
threatens to distract the jury from its central function of
determining guilt or innocence. Allowing proffers of polygraph
evidence would inevitably entail assessments of such issues as
whether the test and control questions were appropriate, whether a
particular polygraph examiner was qualified and had properly
interpreted the physiological responses, and whether other factors
such as countermeasures employed by the examinee had distorted the
exam results. Such assessments would be required in each and every
case.10 It thus offends no constitutional principle for the
President to conclude that a
per se rule excluding all
polygraph evidence is appropriate. Because litigation over the
admissibility of polygraph evidence is by its very nature col-
10 Although some of this litigation could take place outside the
presence of the jury, at the very least a foundation must be laid
for the jury to assess the qualifications and skill of the
polygrapher and the validity of the exam, and significant
cross-examination could occur on these issues.
315
lateral, a
per se rule prohibiting its admission is not
an arbitrary or disproportionate means of avoiding itY
D
The three of our precedents upon which the Court of Appeals
principally relied,
Rock v.
Arkansas, Washington v.
Texas, and
Chambers v.
Mississippi, do not
support a right to introduce polygraph evidence, even in very
narrow circumstances. The exclusions of evidence that we declared
unconstitutional in those cases significantly undermined
fundamental elements of the defendant's defense. Such is not the
case here.
In
Rock, the defendant, accused of a killing to which she
was the only eyewitness, was allegedly able to remember the facts
of the killing only after having her memory hypnotically refreshed.
See
Rock v.
Arkansas, 483 U. S., at 46. Because
Arkansas excluded all hypnotically refreshed testimony, the
defendant was unable to testify about certain relevant facts,
including whether the killing had been accidental. See id., at
47-49. In holding that the exclusion of this evidence violated the
defendant's "right to present a defense," we noted that the rule
deprived the jury of the testimony of the only witness who was at
the scene and had firsthand knowledge of the facts. See id., at 57.
Moreover, the rule infringed upon the defendant's interest in
testifying in her own defense-an interest that we deemed
particularly significant, as it is the defendant who is the target
of any crimi-
11 Although the Court of Appeals stated that it had "merely
remove[d] the obstacle of the
per se rule against
admissibility" of polygraph evidence in cases where the accused
wishes to proffer an exculpatory polygraph to rebut an attack on
his credibility, 44 M. J. 442, 446 (1996), and respondent thus
implicitly argues that the Constitution would require
collaterallitigation only in such cases, we cannot see a principled
justification whereby a right derived from the Constitution could
be so narrowly contained.
316
nal prosecution. See id., at 52. For this reason, we stated that
a defendant ought to be allowed "to present his own version of
events in his own words."
Ibid.
In
Washington, the statutes involved prevented
codefendants or coparticipants in a crime from testifying for one
another and thus precluded the defendant from introducing his
accomplice's testimony that the accomplice had in fact committed
the crime. See
Washington v.
Texas, 388 U. S., at
16-17. In reversing Washington's conviction, we held that the Sixth
Amendment was violated because "the State arbitrarily denied [the
defendant] the right to put on the stand a witness who was
physically and mentally capable of testifying to events that he had
personally observed."
Id., at 23.12
In
Chambers, we found a due process violation in the
combined application of Mississippi's common-law "voucher rule,"
which prevented a party from impeaching his own witness, and its
hearsay rule that excluded the testimony of three persons to whom
that witness had confessed. See
Chambers v.
Mississippi, 410 U. S., at 302.
Chambers specifically
confined its holding to the "facts and circumstances" presented in
that case; we thus stressed that the ruling did not "signal any
diminution in the respect traditionally accorded to the States in
the establishment and implementation of their own criminal trial
rules and procedures."
Id., at 302-303.
Chambers
therefore does not stand for the proposition that the defendant is
denied a fair opportunity to defend himself whenever a state or
federal rule excludes favorable evidence.
Rock, Washington, and
Chambers do not require that
Rule 707 be invalidated, because, unlike the evidentiary rules at
issue in those cases, Rule 707 does not implicate any signifi-
12 In addition, we noted that the State of Texas could advance
no legitimate interests in support of the evidentiary rules at
issue, and those rules burdened only the defense and not the
prosecution. See 388 U. S., at 2223. Rule 707 suffers from neither
of these defects.
317
cant interest of the accused. Here, the court members heard all
the relevant details of the charged offense from the perspective of
the accused, and the Rule did not preclude him from introducing any
factual evidence.13 Rather, respondent was barred merely from
introducing expert opinion testimony to bolster his own
credibility. Moreover, in contrast to the rule at issue in
Rock, Rule 707 did not prohibit respondent from testifying
on his own behalf; he freely exercised his choice to convey his
version of the facts to the court-martial members. We therefore
cannot conclude that respondent's defense was significantly
impaired by the exclusion of polygraph evidence. Rule 707 is thus
constitutional under our precedents.
***
For the foregoing reasons, Military Rule of Evidence 707 does
not unconstitutionally abridge the right to present a defense. The
judgment of the Court of Appeals is reversed.
It is so ordered.
13 The dissent suggests,
post, at 331, that polygraph
results constitute "factual evidence." The raw results of a
polygraph exam-the subject's pulse, respiration, and perspiration
rates-may be factual data, but these are not introduced at trial,
and even if they were, they would not be "facts" about the alleged
crime at hand. Rather, the evidence introduced is the expert
opinion testimony of the polygrapher about whether the subject was
truthful or deceptive in answering questions about the alleged
crime. A
per se rule excluding polygraph results therefore
does not prevent an accused-just as it did not prevent respondent
here-from introducing factual evidence or testimony about the crime
itself, such as alibi witness testimony, see ibid. For the same
reasons, an expert polygrapher's interpretation of polygraph
results is not evidence of "'the accused's whole conduct,' " see
post, at 336, to which Dean Wigmore referred. It is not
evidence of the "'accused's ... conduct'" at all, much less
"conduct" concerning the actual crime at issue. It is merely the
opinion of a witness with no knowledge about any of the facts
surrounding the alleged crime, concerning whether the defendant
spoke truthfully or deceptively on another occasion.
318
Opinion of KENNEDY, J.
JUSTICE KENNEDY, with whom JUSTICE O'CONNOR, JusTICE GINSBURG,
and JUSTICE BREYER join, concurring in part and concurring in the
judgment.
I join Parts I, II-A, and II-D of the opinion of the Court. In
my view it should have been sufficient to decide this case to
observe, as the principal opinion does, that various courts and
jurisdictions "may reasonably reach differing conclusions as to
whether polygraph evidence should be admitted."
Ante, at
312. 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 or of
the fact an accused has taken or refused to take a polygraph
examination. If we were to accept respondent's position, of course,
our holding would bind state courts, as well as military and
federal courts. Given the ongoing debate about polygraphs, I agree
the rule of exclusion is not so arbitrary or disproportionate that
it is unconstitutional.
I doubt, though, that the rule of
per se exclusion is
wise, and some later case might present a more compelling case for
introduction of the testimony than this one does. Though the
considerable discretion given to the trial court in admitting or
excluding scientific evidence is not a constitutional mandate, see
Daubert v.
Merrell Dow Pharmaceuticals, Inc.,
509 U. S. 579,
587 (1993), there is some tension between that rule and our holding
today. And, as JUSTICE STEVENS points out, there is much
inconsistency between the Government's extensive use of polygraphs
to make vital security determinations and the argument it makes
here, stressing the inaccuracy of these tests.
With all respect, moreover, it seems the principal opinion
overreaches when it rests its holding on the additional ground that
the jury's role in making credibility determinations is diminished
when it hears polygraph evidence. I am in substantial agreement
with JUSTICE STEVENS' observation that the argument demeans and
mistakes the role and
319
competence of jurors in deciding the factual question of guilt
or innocence.
Post, at 336-337. In the last analysis the
principal opinion says it is unwise to allow the jury to hear "a
conclusion about the ultimate issue in the trial."
Ante, at
314. I had thought this tired argument had long since been given
its deserved repose as a categorical rule of exclusion. Rule 704(a)
of the Federal Rules of Evidence states:
"Except as provided in subdivision (b), testimony in the form of
an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of
fact." The Advisory Committee's Notes state:
"The older cases often contained strictures against allowing
witnesses to express opinions upon ultimate issues, as a particular
aspect of the rule against opinions. The rule was unduly
restrictive, difficult of application, and generally served only to
deprive the trier of fact of useful information. 7 Wigmore §§ 1920,
1921; McCormick § 12. The basis usually assigned for the rule, to
prevent the witness from 'usurping the province of the jury,' is
aptly characterized as 'empty rhetoric.' 7 Wigmore § 1920, p. 17."
Advisory Committee's Notes on Fed. Rule Evid. 704, 28 U. s. C., p.
888.
The principal opinion is made less convincing by its
contradicting the rationale of Rule 704 and the well considered
reasons the Advisory Committee recited in support of its
adoption.
The attempt to revive this outmoded theory is especially inapt
in the context of the military justice system; for the one narrow
exception to the abolition of the ultimate issue rule still
surviving in the Federal Rules of Evidence has been omitted from
the corresponding rule adopted for the military. The ultimate issue
exception in the Federal Rules of Evidence is as follows:
"No expert witness testifying with respect to the mental state
or condition of a defendant in a criminal case may
320
state an opinion or inference as to whether the defendant did or
did not have the mental state or condition constituting an element
of the crime charged or of a defense thereto. Such ultimate issues
are matters for the trier of fact alone." Fed. Rule Evid.
704(b).
The drafting committee for the Military Rules of Evidence
renounced even this remnant. It said: "The statutory qualifications
for military court members reduce the risk that military court
members will be unduly influenced by the presentation of ultimate
opinion testimony from psychiatric experts." Manual for
Courts-Martial, United States, Analysis of the Military Rules of
Evidence, App. 22, p. A22-48 (1995 ed.). Any supposed need to
protect the role of the finder of fact is diminished even further
by this specific acknowledgment that members of military courts are
not likely to give excessive weight to opinions of experts or
otherwise to be misled or confused by their testimony. Neither in
the federal system nor in the military courts, then, is it
convincing to say that polygraph test results should be excluded
because of some lingering concern about usurping the jury's
responsibility to decide ultimate issues.
JUSTICE STEVENS, dissenting.
The United States Court of Appeals for the Armed Forces held
that the President violated the Constitution in June 1991, when he
promulgated Rule 707 of the Military Rules of Evidence. Had I been
a member of that court, I would not have decided that question
without first requiring the parties to brief and argue the
antecedent question whether Rule 707 violates Article 36(a) of the
Uniform Code of Military Justice, 10 U. S. C. § 836(a). As
presently advised, I am persuaded that the Rule does violate the
statute and should be held invalid for that reason. I also agree
with the Court of Appeals that the Rule is unconstitutional. This
Court's contrary holding rests on a serious undervaluation of the
importance of the citizen's constitutional right to present a
de-
321
fense to a criminal charge and an unrealistic appraisal of the
importance of the governmental interests that undergird the Rule.
Before discussing the constitutional issue, I shall comment briefly
on the statutory question.
I
Rule 707 is a blanket rule of exclusion.1 No matter how reliable
and how probative the results of a polygraph test may be, Rule 707
categorically denies the defendant any opportunity to persuade the
court that the evidence should be received for any purpose. Indeed,
even if the parties stipulate in advance that the results of a lie
detector test may be admitted, the Rule requires exclusion.
The principal charge against the respondent in this case was
that he had knowingly used methamphetamine. His principal defense
was "innocent ingestion"; even if the urinalysis test conducted on
April 7, 1992, correctly indicated that he did ingest the
substance, he claims to have been unaware of that fact. The results
of the lie detector test conducted three days later, if accurate,
constitute factual evidence that his physical condition at that
time was consistent with the theory of his defense and inconsistent
with the theory of the prosecution. The results were also relevant
because they tended to confirm the credibility of his testimony.
Under Rule 707, even if the results of the polygraph test were more
reliable than the results of the urinalysis, the weaker evidence is
admissible and the stronger evidence is inadmissible.
Under the now discredited reasoning in a case decided 75 years
ago,
Frye v.
United States, 54 App. D. C. 46, 293
1 Rule 707 states, 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.
Rule Evid. 707(a).
322
F. 1013 (1923), that anomalous result would also have been
reached in nonmilitary cases tried in the federal courts. In recent
years, however, we have not only repudiated
Frye's general
approach to scientific evidence, but the federal courts have also
been engaged in the process of rejecting the oncepopular view that
all lie detector evidence should be categorically inadmissible.2
Well reasoned opinions are concluding, consistently with this
Court's decisions in
Daubert v.
Merrell Dow
Pharmaceuticals, Inc., 509 U. S. 579 (1993), and
General Electric Co. v.
Joiner, 522 U. S. 136 (1997),
that the federal rules wisely allow district judges to exercise
broad discretion when evaluating the admissibility of scientific
evidence.3 Those opinions correctly observe that the rules of
evidence generally recognized in the trial of civil and criminal
cases in the federal courts do not contain any blanket prohibition
against the admissibility of polygraph evidence.
2 "There is no question that in recent years polygraph testing
has gained increasingly widespread acceptance as a useful and
reliable scientific tool. Because of the advances that have been
achieved in the field which have led to the greater use of
polygraph examination, coupled with a lack of evidence that juries
are unduly swayed by polygraph evidence, we agree with those courts
which have found that a per se rule disallowing polygraph evidence
is no longer warranted .... Thus, we believe the best approach in
this area is one which balances the need to admit all relevant and
reliable evidence against the danger that the admission of the
evidence for a given purpose will be unfairly prejudicial."
United States v.
Piccinonna, 885
F.2d 1529, 1535 (CAll 1989). "[W]e do not now hold that
polygraph examinations are scientifically valid or that they will
always assist the trier of fact, in this or any other individual
case. We merely remove the obstacle of the per se rule against
admissibility, which was based on antiquated concepts about the
technical ability of the polygraph and legal precepts that have
been expressly overruled by the Supreme Court."
United
States v.
Posado, 57 F.3d
428, 434
(CA5 1995).
3 "The per se ... rule excluding unstipulated polygraph evidence
is inconsistent with the 'flexible inquiry' assigned to the trial
judge by
Daubert. This is particularly evident because
Frye, which was overruled by
Daubert, involved the
admissibility of polygraph evidence."
United States v.
Cordoba, 104 F.3d
225, 227
(CA9 1997).
323
In accord with the modern trend of decisions on this
admissibility issue, in 1987 the Court of Military Appeals held
that an accused was "entitled to attempt to lay" the foundation for
admission of favorable polygraph evidence.
United States v.
Gipson, 24 M. J. 246, 253 (1987). The President responded to
Gipson by adopting Rule 707. The governing statute
authorized him 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." 10 U. S. C. § 836(a).4
Thus, if there are military concerns that warrant a special rule
for military tribunals, the statute gives him ample authority to
promulgate special rules that take such concerns into account.
Rule 707 has no counterpart in either the Federal Rules of
Evidence or the Federal Rules of Criminal Procedure. Moreover, to
the extent that the use of the lie detector plays a special role in
the military establishment, military practices are more favorable
to a rule of admissibility than is the less structured use of lie
detectors in the civilian sector of our society. That is so because
the military carefully regulates the administration of polygraph
tests to ensure reliable results. The military maintains "very
stringent standards for polygraph examiners" 5 and has established
its own Poly-
4 "Pretrial, trial, and post-trial procedures, including modes
of proof, for cases arising under this chapter triable in
courts-martial, military commissions and other military tribunals,
and procedures for courts of inquiry, may be prescribed by the
President by regulations which shall, so far as he considers
practicable, apply the principles of law and the rules of evidence
generally recognized in the trial of criminal cases in the United
States district courts, but which may not be contrary to or
inconsistent with this chapter." 10 U. S. C. § 836(a).
5 According to the Department of Defense's 1996 Report to
Congress:
"The Department of Defense maintains very stringent standards
for polygraph examiners. The Department of Defense Polygraph
Institute's basic polygraph program is the only program known to
base its curriculum on forensic psychophysiology, and conceptual,
abstract, and applied knowl-
324
graph Institute, which is "generally considered to be the best
training facility for polygraph examiners in the United States." 6
The military has administered hundreds of thousands of such tests
and routinely uses their results for a wide variety of official
decisions.7
edge that meet the requirements of a master's degree-level of
study. Candidates selected for the Department of Defense polygraph
positions must meet the following minimum requirements:
"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.
"All federal polygraph examiners receive their basic polygraph
training at the Department of Defense Polygraph Institute. After
completing the basic polygraph training, DoD personnel must serve
an internship consisting of a minimum of six months
on-the-job-training and conduct at least 25 polygraph examinations
under the supervision of a certified polygraph examiner before
being certified as a Department of Defense polygraph examiner. In
addition, DoD polygraph examiners are required to complete 80 hours
of continuing education every two years." Department of Defense
Polygraph Program, Annual Polygraph Report to Congress, Fiscal Year
1996, pp. 14-15; see also Yankee, The Current Status of Research in
Forensic Psychophysiology and Its Application in the
Psychophysiological Detection of Deception, 40 J. Forensic Sciences
63 (1995).
6 Honts & Perry, Polygraph Admissibility: Changes and
Challenges, 16 Law and Human Behavior 357, 359, n. 1 (1992)
(hereinafter Honts & Perry).
7Between 1981 and 1997, the Department of Defense conducted over
400,000 polygraph examinations to resolve issues arising in
counterintelligence, security, and criminal investigations.
Department of Defense Polygraph Program, Annual Polygraph Report to
Congress, Fiscal Year
325
The stated reasons for the adoption of Rule 707 do not rely on
any special military concern. They merely invoke three interests:
(1) the interest in excluding unreliable evidence; (2) the interest
in protecting the trier of fact from being misled by an unwarranted
assumption that the polygraph evidence has "an aura of near
infallibility"; and (3) the interest in avoiding collateral debates
about the admissibility of particular test results.
It seems clear that those interests pose less serious concerns
in the military than in the civilian context. Disputes about the
qualifications of the examiners, the equipment, and the testing
procedures should seldom arise with respect to the tests conducted
by the military. Moreover, there surely is no reason to assume that
military personnel who perform the factfinding function are less
competent than ordinary jurors to assess the reliability of
particular results, or their relevance to the issues.8 Thus, there
is no identifiable military concern that justifies the President's
promulgation of a special military rule that is more burdensome to
the accused in military trials than the evidentiary rules
applicable to the trial of civilians.
It, therefore, seems fairly clear that Rule 707 does not comply
with the statute. I do not rest on this ground, however, because
briefing might persuade me to change my views, and because the
Court has decided only the constitutional question.
II
The Court's opinion barely acknowledges that a person accused of
a crime has a constitutional right to present a
1997, p. 1;
id., Fiscal Year 1996, p. 1;
id.,
Fiscal Year 1995, p. 1;
id., Fiscal Year 1994, p. 1;
id., Fiscal Year 1993, App. A;
id., Fiscal Year 1992,
App. A; id., Fiscal Year 1991, App. A-I (reporting information for
1981-1991).
8 When the members of the court-martial are officers, as was
true in this case, they typically have at least a college degree as
well as significant military service. See 10 U. S. C. § 825(d)(2);
see also,
e. g.,
United States v.
Carter, 22
M. J. 771, 776 (A. C. M. R. 1986).
326
defense. It is not necessary to point to "any particular
language in the Sixth Amendment,"
ante, at 307, to support
the conclusion that the right is firmly established. It is,
however, appropriate to comment on the importance of that right
before discussing the three interests that the Government relies
upon to justify Rule 707.
The Sixth Amendment provides that "the accused shall enjoy the
right ... to have compulsory process for obtaining witnesses in his
favor." Because this right "is an essential attribute of the
adversary system itself," we have repeatedly stated that few rights
"are more fundamental than that of an accused to present witnesses
in his own defense." 9 According to Joseph Story, that provision
was included in the Bill of Rights in reaction to a notorious
common-law rule categorically excluding defense evidence in treason
and felony cases.10 Our holding in
Washington v.
Texas, 388 U.
S. 14 (1967), that this right is applicable to the States,
rested on the premises that it "is in plain terms the right to
present a defense" and that it "is a fundamental element of due
proc-
9 "Few rights are more fundamental than that of an accused to
present witnesses in his own defense, see,
e. g., Chambers
v.
Mississippi, 410 U. S. 284, 302
(1973). Indeed, this right is an essential attribute of the
adversary system itself .... The right to compel a witness'
presence in the courtroom could not protect the integrity of the
adversary process if it did not embrace the right to have the
witness' testimony heard by the trier of fact. The right to offer
testimony is thus grounded in the Sixth Amendment .... "
Taylor v.
Illinois, 484 U. S. 400, 408-409
(1988).
10 "Joseph Story, in his famous Commentaries on the Constitution
of the United States, observed that the right to compulsory process
was included in the Bill of Rights in reaction to the notorious
common-law rule that in cases of treason or felony the accused was
not allowed to introduce witnesses in his defense at all. Although
the absolute prohibition of witnesses for the defense had been
abolished in England by statute before 1787, the Framers of the
Constitution felt it necessary specifically to provide that
defendants in criminal cases should be provided the means of
obtaining witnesses so that their own evidence, as well as the
prosecution's, might be evaluated by the jury."
Washington
v.
Texas, 388
U. S. 14, 19-20 (1967) (footnotes omitted).
327
ess of law." 11 Consistent with the history of the provision,
the Court in that case held that a state rule of evidence that
excluded "whole categories" of testimony on the basis of a
presumption of unreliability was unconstitutional.12
The blanket rule of inadmissibility held invalid in
Washington v.
Texas covered the testimony of alleged
accomplices. Both before and after that decision, the Court has
recognized the potential injustice produced by rules that exclude
entire categories of relevant evidence that is potentially
unreliable. At common law interested parties such as defendants,13
their spouses,14 and their co-conspirators 15 were not
competent
11 "The right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right to
present a defense, the right to present the defendant's version of
the facts as well as the prosecution's to the jury so it may decide
where the truth lies. Just as an accused has the right to confront
the prosecution's witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to
establish a defense. This right is a fundamental element of due
process of law."
Id., at 19.
12 "It is difficult to see how the Constitution is any less
violated by arbitrary rules that prevent whole categories of
defense witnesses from testifying on the basis of
a priori
categories that presume them unworthy of belief.
"The rule disqualifying an alleged accomplice from testifying on
behalf of the defendant cannot even be defended on the ground that
it rationally sets apart a group of persons who are particularly
likely to commit perjury."
Id., at 22.
13 "It is familiar knowledge that the old common law carefully
excluded from the witness stand parties to the record, and those
who were interested in the result; and this rule extended to both
civil and criminal cases. Fear of perjury was the reason for the
rule."
Benson v.
United States, 146 U. S. 325, 335
(1892).
14 "The common-law rule, accepted at an early date as
controlling in this country, was that husband and wife were
incompetent as witnesses for or against each other ....
"The Court recognized that the basic reason underlying thEe]
exclusion [of one spouse's testimony on behalf of the other] had
been the practice of disqualifying witnesses with a personal
interest in the outcome of a case. Widespread disqualifications
because of interest, however, had long since
[Footnote 15 is on p. 328J
328
witnesses. "Nor were those named the only grounds of exclusion
from the witness stand; conviction of crime, want of religious
belief, and other matters were held sufficient. Indeed, the theory
of the common law was to admit to the witness stand only those
presumably honest, appreciating the sanctity of an oath, unaffected
as a party by the result, and free from any of the temptations of
interest. The courts were afraid to trust the intelligence of
jurors."
Benson v.
United States, 146 U. S. 325, 336
(1892). And, of course, under the regime established by
Frye
v.
United States, scientific evidence was inadmissible
unless it met a stringent "general acceptance" test. Over the
years, with respect to category after category, strict rules of
exclusion have been replaced by rules that broaden the discretion
of trial judges to admit potentially unreliable evidence and to
allow properly instructed juries to evaluate its weight. While that
trend has included both rulemaking and nonconstitutional judicial
decisions, the direction of the trend has been consistent and it
has been manifested in constitutional holdings as well.
Commenting on the trend that had followed the decision
in
Benson, the Court in 1918 observed that in the
"years which have elapsed since the decision of the Benson
Case, the disposition of courts and of legislative bodies to
remove disabilities from witnesses has continued, as that decision
shows it had been going forward before, under dominance of the
conviction of our time that the
been abolished both in this country and in England in accordance
with the modern trend which permitted interested witnesses to
testify and left it for the jury to assess their credibility.
Certainly, since defendants were uniformly allowed to testify in
their own behalf, there was no longer a good reason to prevent them
from using their spouses as witnesses. With the original reason for
barring favorable testimony of spouses gone the Court concluded
that this aspect of the old rule should go too."
Hawkins
15 See
Washington v.
Texas, 388 U. S., at
20-21.
329
truth is more likely to be arrived at by hearing the testimony
of all persons of competent understanding who may seem to have
knowledge of the facts involved in a case, leaving the credit and
weight of such testimony to be determined by the jury or by the
court, rather than by rejecting witnesses as incompetent, with the
result that this principle has come to be widely, almost
universally, accepted in this country and in Great Britain."
Rosen v. United States, 245 U. S. 467, 471.
See also
Funk v.
United States, 290 U. S. 371, 377-378
(1933). It was in a case involving the disqualification of spousal
testimony that Justice Stewart stated: "Any rule that impedes the
discovery of truth in a court of law impedes as well the doing of
justice."
Hawkins v.
United States, 358 U. S. 74, 81 (1958)
(concurring opinion).
State evidentiary rules may so seriously impede the discovery of
truth, "as well as the doing of justice," that they preclude the
"meaningful opportunity to present a complete defense" that is
guaranteed by the Constitution,
Crane v.
Kentucky,
476 U. S. 683,
690 (1986) (internal quotation marks omitted).16 In
Chambers
v.
Mississippi, 410 U. S. 284, 302
16 "Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment,
Chambers v.
Mississippi,
[
410 U. S. 284
(1973)], or in the Compulsory Process or Confrontation clauses of
the Sixth Amendment,
Washington v.
Texas, 388 U. S. 14, 23 (1967);
Davis v.
Alaska, 415 U. S. 308 (1974), the
Constitution guarantees criminal defendants 'a meaningful
opportunity to present a complete defense.'
California v.
Trombetta, 467 U. S. [479,485 (1984)]; cf.
Strickland
v.
Washington, 466 U. S. 668, 684-685
(1984) ('The Constitution guarantees a fair trial through the Due
Process Clauses, but it defines the basic elements of a fair trial
largely through the several provisions of the Sixth Amendment'). We
break no new ground in observing that an essential component of
procedural fairness is an opportunity to be heard.
In re
Oliver, 333 U. S.
257, 273 (1948);
Grannis v.
Ordean, 234 U. S. 385, 394
(1914). That opportunity would be an empty one if the State were
permitted to exclude competent, reliable evidence
330
(1973), we concluded that "where constitutional rights directly
affecting the ascertainment of guilt are implicated, the hearsay
rule may not be applied mechanistically to defeat the ends of
justice." 17 As the Court notes today, restrictions on the
"defendant's right to present relevant evidence,"
ante, at
308, must comply with the admonition in
Rock v.
Arkansas, 483
U. S. 44, 56 (1987), that they "may not be arbitrary or
disproportionate to the purposes they are designed to serve."
Applying that admonition to Arkansas' blanket rule prohibiting the
admission of hypnotically refreshed testimony, we concluded that a
"State's legitimate interest in barring unreliable evidence does
not extend to
per se exclusions that may be reliable in an
individual case."
Id., at 61. That statement of
constitutional law is directly relevant to this case.
bearing on the credibility of a confession when such evidence is
central to the defendant's claim of innocence. In the absence of
any valid state justification, exclusion of this kind of
exculpatory evidence deprives a defendant of the basic right to
have the prosecutor's case encounter and 'survive the crucible of
meaningful adversarial testing.'
United States v.
Cronic, 466 U.
S. 648, 656 (1984). See also
Washington v.
Texas,
supra, at 22-23."
Crane v.
Kentucky, 476 U. S.,
at 690-691.
17 "Few rights are more fundamental than that of an accused to
present witnesses in his own defense.
E. g., Webb v.
Texas, 409 U.
S. 95 (1972);
Washington v.
Texas, 388 U. S. 14, 19 (1967);
In re Oliver, 333 U. S. 257 (1948). In
the exercise of this right, the accused, as is required of the
State, must comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the
ascertainment of guilt and innocence. Although perhaps no rule of
evidence has been more respected or more frequently applied in jury
trials than that applicable to the exclusion of hearsay, exceptions
tailored to allow the introduction of evidence which in fact is
likely to be trustworthy have long existed. The testimony rejected
by the trial court here bore persuasive assurances of
trustworthiness and thus was well within the basic rationale of the
exception for declarations against interest. That testimony also
was critical to Chambers' defense. In these circumstances, where
constitutional rights directly affecting the ascertainment of guilt
are implicated, the hearsay rule may not be applied mechanistically
to defeat the ends of justice."
Chambers v.
Mississippi, 410 U. S., at 302.
331
III
The constitutional requirement that a blanket exclusion of
potentially unreliable evidence must be proportionate to the
purposes served by the rule obviously makes it necessary to
evaluate the interests on both sides of the balance. Today the
Court all but ignores the strength of the defendant's interest in
having polygraph evidence admitted in certain cases. As the facts
of this case illustrate, the Court is quite wrong in assuming that
the impact of Rule 707 on respondent's defense was not significant
because it did not preclude the introduction of any "factual
evidence" or prevent him from conveying "his version of the facts
to the court-martial members."
Ante, at 317. Under such
reasoning, a rule that excluded the testimony of alibi witnesses
would not be significant as long as the defendant is free to
testify himself. But given the defendant's strong interest in the
outcomean interest that was sufficient to make his testimony
presumptively untrustworthy and therefore inadmissible at common
law-his uncorroborated testimony is certain to be less persuasive
than that of a third-party witness. A rule that bars him "from
introducing expert opinion testimony to bolster his own
credibility," ibid., unquestionably impairs any "meaningful
opportunity to present a complete defense"; indeed, it is sure to
be outcome determinative in many cases.
Moreover, in this case the results of the polygraph test, taken
just three days after the urinalysis, constitute independent
factual evidence that is not otherwise available and that strongly
supports his defense of "innocent ingestion." Just as flight or
other evidence of "consciousness of guilt" may sometimes be
relevant, on some occasions evidence of "consciousness of
innocence" may also be relevant to the central issue at trial. Both
the answers to the questions propounded by the examiner, and the
physical manifestations produced by those utterances, were
probative of an innocent state of mind shortly after he ingested
the drugs. In Dean Wigmore's view, both "conduct" and "utterances"
may con-
332
stitute factual evidence of a "consciousness of innocence." 18
As the Second Circuit has held, when there is a serious factual
dispute over the "basic defense [that defendant] was unaware of any
criminal wrongdoing," evidence of his innocent state of mind is
"critical to a fair adjudication of criminal charges." 19 The
exclusion of the test results in this case cannot be fairly equated
with a ruling that merely prevented the defendant from encumbering
the record with cumulative evidence. Because the Rule may well have
affected the outcome of the trial, it unquestionably "infringed
upon a weighty interest of the accused."
Ante, at 308.
The question, then, is whether the three interests on which the
Government relies are powerful enough to support a categorical rule
excluding the results of all polygraph tests no matter how unfair
such a rule may be in particular cases.
18 "Moreover, there are other principles by which a defendant
may occasionally avail himself of conduct as evidence in his
favor-in particular, of conduct indicating consciousness of
innocence, ... of utterances asserting his innocence ... , and, in
sedition charges, of conduct indicating a loyal state of mind ... "
lA J. Wigmore, Evidence § 56.1, p. 1180 (Tillers rev.ed. 1983); see
United States v. Reifsteck,
841 F.2d
701, 705 (CA6 1988).
19 "Mariotta's basic defense was that he was unaware of any
criminal wrongdoing at Wedtech, that he was an innocent victim of
the machinations of the sophisticated businessmen whom he had
brought into the company to handle its financial affairs. That
defense was seriously in issue as to most of the charges against
him, drawing considerable support from the evidence ....
''With the credibility of the accusations about Mariotta's
knowledge of wrongdoing seriously challenged, evidence of his
denial of such knowledge in response to an opportunity to obtain
immunity by admitting it and implicating others became highly
significant to a fair presentation of his defense ....
''Where evidence of a defendant's innocent state of mind,
critical to a fair adjudication of criminal charges, is excluded,
we have not hesitated to order a new trial."
United States
v.
Biaggi, 909 F.2d
662, 691-692
(CA2 1990); see also
United States
v.
Bucur, 194 F.2d
297 (CA7 1952);
Herman v.
United States,
48 F.2d 479
(CA5 1931).
333
Reliability
There are a host of studies that place the reliability of
polygraph tests at 85% to 90%.20 While critics of the polygraph
argue that accuracy is much lower, even the studies cited by the
critics place polygraph accuracy at 70%.21 Moreover, to the extent
that the polygraph errs, studies have repeatedly shown that the
polygraph is more likely to find innocent people guilty than vice
versa.22 Thus, exculpatory polygraphs-like the one in this case-are
likely to be more reliable than inculpatory ones.
Of course, within the broad category of lie detector evidence,
there may be a wide variation in both the validity and the
relevance 23 of particular test results. Questions about the
examiner's integrity, independence, choice of questions, or
training in the detection of deliberate attempts to provoke
misleading physiological responses may justify exclusion of
20 Raskin, Honts, & Kircher, The Scientific Status of
Research on Polygraph Techniques: The Case for Polygraph Tests, in
1 Modern Scientific Evidence 572 (D. Faigman, D. Kaye, M. Saks,
& J. Sanders eds. 1997) (hereinafter Faigman) (compiling eight
laboratory studies that place mean accuracy at approximately 90%);
id., at 575 (compiling four field studies, scored by independent
examiners, that place mean accuracy at 90.5%); Raskin, Honts, &
Kircher, A Response to Professors Iacono and Lykken, in Faigman 627
(compiling six field studies, scored by original examiners, that
place mean accuracy at 97.5%); Abrams, The Complete Polygraph
Handbook 190-191 (1989) (compiling 13 laboratory studies that,
excluding inconclusive results, place mean accuracy at 87%).
21 Iacono & Lykken, The Scientific Status of Research on
Polygraph Techniques: The Case Against Polygraph Tests, in Faigman
608 (compiling three studies that place mean accuracy at 70%).
22 E. g., Iacono & Lykken, The Case Against Polygraph
Tests, in Faigman 608-609; Raskin, Honts, & Kircher, A Response
to Professors Iacono and Lykken, in Faigman 621; Honts & Perry
362; Abrams, The Complete Polygraph Handbook, at 187-188, 191.
23 See,
e. g., Judge Gonzalez's careful attention to the
relevance inquiry in the proceedings on remand from the Court of
Appeals decision in
Piccinonna. 729 F. Supp. 1336 (SD Fla.
1990).
334
specific evidence. But such questions are properly addressed in
adversary proceedings; they fall far short of justifying a blanket
exclusion of this type of expert testimony.
There is no legal requirement that expert testimony must satisfy
a particular degree of reliability to be admissible. Expert
testimony about a defendant's "future dangerousness" to determine
his eligibility for the death penalty, even if wrong "most of the
time," is routinely admitted.
Barefoot v.
Estelle,
463 U. S. 880,
898-901 (1983). Studies indicate that handwriting analysis, and
even fingerprint identifications, may be less trustworthy than
polygraph evidence in certain cases.24 And, of course, even highly
dubious eyewit-
24 One study compared the accuracy of fingerprinting,
handwriting analysis, polygraph tests, and eyewitness
identification. The study consisted of 80 volunteers divided into
20 groups of 4. Fingerprints and handwriting samples were taken
from all of the participants.
In each group of four, one person was randomly assigned the role
of "perpetrator." The perpetrator was instructed to take an
envelope to a building doorkeeper (who knew that he would later
need to identify the perpetrator), sign a receipt, and pick up a
package. After the "crime," all participants were given a polygraph
examination.
The fingerprinting expert (comparing the original fingerprints
with those on the envelope), the handwriting expert (comparing the
original samples with the signed receipt), and the polygrapher
(analyzing the tests) sought to identify the perpetrator of each
group. In addition, two days after the "crime," the doorkeeper was
asked to pick the picture of the perpetrator out of a set of four
pictures.
The results of the study demonstrate that polygraph evidence
compares favorably with other types of evidence. Excluding
"inconclusive" results from each test, the fingerprinting expert
resolved 100% of the cases correctly, the polygrapher resolved 95%
of the cases correctly, the handwriting expert resolved 94% of the
cases correctly, and the eyewitness resolved only 64% of the cases
correctly. Interestingly, when "inconclusive" results were
included, the polygraph test was more accurate than any of the
other methods: The polygrapher resolved 90% of the cases correctly,
compared with 85% for the handwriting expert, 35% for the
eyewitness, and 20% for the fingerprinting expert. Widacki &
Horvath, An Experimental Investigation of the Relative Validity and
Utility of the Polygraph Technique and Three Other Common Methods
of Criminal Identification, 23 J. Forensic Sciences 596, 596-600
(1978); see also Honts & Perry 365.
335
ness testimony is, and should be, admitted and tested in the
crucible of cross-examination. The Court's reliance on potential
unreliability as a justification for a categorical rule of
inadmissibility reveals that it is "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, 509 U. S., at 596.25
25 The Government argues that there is a widespread danger that
people will learn to "fool" the polygraph, and that this
possibility undermines any claim of reliability. For example, the
Government points to the availability of a book called Beat the
Box: The Insider's Guide to Outwitting the Lie Detector. Tr. of
Oral Arg. 53; Brief for United States 25, n. 10. Beat the Box,
however, actually cuts against a
per se ban on polygraph
evidence. As the preface to the book states:
"Dr. Kalashnikov [the author] is a polygraph professional. If
you go up against him, or someone like him, he'll probably catch
you at your game. That's because he knows his work and does it by
the book.
"What most people don't realize is that there are a lot of not
so professional polygraph examiners out there. It's very possible
that you may be tested by someone who is more concerned about the
number of tests he will run this week (and his Christmas bonus)
than he is about the precision of each individual test.
"Remember, the adage is that you can't beat the polygraph system
but you can beat the operator. This book is gleefully dedicated to
the idea of a sporting chance." V. Kalashnikov, Beat the Box: The
Insider's Guide to Outwitting the Lie Detector (1983) (preface);
id., at 9 ("[W]hile the system is all but unbeatable, you can
surely beat the examiner").
Thus, Beat the Box actually supports the notion that polygraphs
are reliable when conducted by a highly trained examiner-like the
one in this case.
Nonetheless, some research has indicated that people can be
trained to use "countermeasures" to fool the polygraph. See,
e. g., Honts, Raskin, & Kircher, Mental and Physical
Countermeasures Reduce the Accuracy of Polygraph Tests, 79 J.
Applied Psychology 252 (1994). This possibility, however, does not
justify a
per se ban. First, research indicates that
individuals must receive specific training before they can fool the
polygraph (i.
e., information alone is not enough). Honts,
Hodes, & Raskin, Effects
336
The Role of the Jury
It is the function of the jury to make credibility
determinations. In my judgment evidence that tends to establish
either a consciousness of guilt or a consciousness of innocence may
be of assistance to the jury in making such determinations. That
also was the opinion of Dean Wigmore:
"Let the accused's whole conduct come in; and whether it tells
for consciousness of guilt or for consciousness of innocence, let
us take it for what it is worth, remembering that in either case it
is open to varying explanations and is not to be emphasized. Let us
not deprive an innocent person, falsely accused, of the inference
which common sense draws from a consciousness of innocence and its
natural manifestations." 2 J. Wigmore, Evidence § 293, p. 232 (J.
Chadbourn rev. ed. 1979).
There is, of course, some risk that some "juries will give
excessive weight to the opinions of a polygrapher, clothed as they
are in scientific expertise,"
ante, at 313-314. In my
judgment, however, it is much more likely that juries will be
guided by the instructions of the trial judge concerning the
credibility of expert as well as lay witnesses. The strong
presumption that juries will follow the court's instructions, see,
e. g.,
Richardson v.
Marsh, 481 U. S. 200, 211
(1987), applies to exculpatory as well as inculpatory evidence.
Com-
of Physical Countermeasures on the Physiological Detection of
Deception, 70 J. Applied Psychology 177, 185 (1985); see also
Honts, Raskin, Kircher, & Hodes, Effects of Spontaneous
Countermeasures on the Physiological Detection of Deception, 16 J.
Police Science and Administration 91, 93 (1988) (spontaneous
countermeasures ineffective). Second, as countermeasures are
discovered, it is fair to assume that polygraphers will develop
ways to detect these countermeasures. See,
e. g., Abrams
& Davidson, Counter-Countermeasures in Polygraph Testing, 17
Polygraph 16, 17-19 (1988); Raskin, Honts, & Kircher, The Case
for Polygraph Tests, in Faigman 577-578. Of course, in any trial,
jurors would be instructed on the possibility of countermeasures
and could give this possibility its appropriate weight.
337
mon sense suggests that the testimony of disinterested third
parties that is relevant to the jury's credibility determination
will assist rather than impair the jury's deliberations. As with
the reliance on the potential unreliability of this type of
evidence, the reliance on a fear that the average jury is not able
to assess the weight of this testimony reflects a distressing lack
of confidence in the intelligence of the average American.26
Collateral Litigation
The potential burden of collateral proceedings to determine the
examiner's qualifications is a manifestly insufficient
justification for a categorical exclusion of expert testimony. Such
proceedings are a routine predicate for the admission of any expert
testimony, and may always give rise to searching cross-examination.
If testimony that is critical to a fair determination of guilt or
innocence could be excluded for that reason, the right to a
meaningful opportunity to present a defense would be an
illusion.
It is incongruous for the party that selected the examiner, the
equipment, the testing procedures, and the questions asked of the
defendant to complain about the examinee's burden of proving that
the test was properly conducted. While there may well be a need for
substantial collateral proceedings when the party objecting to
admissibility has a basis for questioning some aspect of the
examination, it seems quite obvious that the Government is in no
position to challenge
26 Indeed, research indicates that jurors do not "blindly"
accept polygraph evidence, but that they instead weigh polygraph
evidence along with other evidence. Cavoukian & Heslegrave, The
Admissibility of Polygraph Evidence in Court: Some Empirical
Findings, 4 Law and Human Behavior 117, 123, 127-128, 130 (1980)
(hereinafter Cavoukian & Heslegrave); see also Honts &
Perry 366-367. One study found that expert testimony about the
limits of the polygraph
"completely eliminated the effect of
the polygraph evidence" on the jury. Cavoukian & Heslegrave
128-129 (emphasis added).
338
the competence of the procedures that it has developed and
relied upon in hundreds of thousands of cases.
In all events the concern about the burden of collateral debates
about the integrity of a particular examination, or the competence
of a particular examiner, provides no support for a categorical
rule that requires exclusion even when the test is taken pursuant
to a stipulation and even when there has been a stipulation
resolving all potential collateral issues. Indeed, in this very
case there would have been no need for any collateral proceedings
because respondent did not question the qualifications of the
expert who examined him, and surely the Government is in no
position to argue that one who has successfully completed its
carefully developed training program 27 is unqualified. The
interest in avoiding burdensome collateral proceedings might
support a rule prescribing minimum standards that must be met
before any test is admissible,28 but it surely does not support the
blunderbuss at issue.29
IV
The Government's concerns would unquestionably support the
exclusion of polygraph evidence in particular cases, and may well
be sufficient to support a narrower rule designed to respond to
specific concerns. In my judgment, however,
27 See n. 5, supra.
28 See N. M. Rule Evid. § 11-707.
29 It has been suggested that if exculpatory polygraph evidence
may be adduced by the defendant, the prosecutor should also be
allowed to introduce inculpatory test results. That conclusion
would not be dictated by a holding that vindicates the defendant's
Sixth Amendment right to summon witnesses. Moreover, as noted
above, studies indicate that exculpatory polygraphs are more
reliable than inculpatory ones. See n. 22, supra. In any event, a
concern about possible future legal developments is surely not
implicated by the narrow issue presented by the holding of the
Court of Appeals for the Armed Forces in this case. Even if it
were, I can see nothing fundamentally unfair about permitting the
results of a test taken pursuant to stipulation being admitted into
evidence to prove consciousness of guilt as well as consciousness
of innocence.
339
those concerns are plainly insufficient to support a categorical
rule that prohibits the admission of polygraph evidence in all
cases, no matter how reliable or probative the evidence may be.
Accordingly, I respectfully dissent.
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