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Polygraph evidence in federal courts: should it be admissible?

In 1993, the United States Supreme Court established a new standard for the admissibility of scientific evidence in federal courts under Federal Rule of Evidence 702. The Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.(1) required federal courts to alter the manner in which they evaluated the admissibility of scientific evidence, including the results of polygraph or "lie-detector" tests. In the almost five years since Daubert was decided, the decision has been applied to polygraph tests on a number of occasions with courts' decisions on the admissibility of polygraph results varying from admissible(2) to inadmissible(3) to admissible under certain conditions.(4) In addition to the Daubert standard, scientific evidence must also clear the hurdle imposed by Federal Rule of Evidence 403. Further complicating the admissibility issue are two recent Supreme Court decisions: General Electric, Co. v. Joiner(5) and United States v. Scheffer.(6)

This Note argues that the results of polygraph examinations, as they are conducted today, should not be admissible as evidence in federal courts.(7) Part I of this Note examines the admissibility analysis laid down by the Supreme Court in Daubert. Part II describes polygraph examinations and the science behind them. Part III analyzes polygraph examinations under the Daubert factors. Part IV addresses the admissibility of polygraph examinations under Federal Rule of Evidence 403. Part V focuses on recent developments in the law since Daubert involving the evidentiary use of polygraph tests. Part VI explores two other related issues: the admissibility of polygraph results under Federal Rule of Evidence 608, and the admissibility of polygraph evidence when stipulated to by both parties. Finally, Part VII offers conclusions concerning polygraph evidence in federal courts.

I. DAUBERT AND SCIENTIFIC EVIDENCE

Daubert v. Merrell Dow Pharmaceuticals, Inc. was a case brought by two children and their parents against the manufacturer of a drug known as Bendectin.(8) The plaintiffs alleged that Bendectin, given to pregnant women to control nausea, was the cause of the children's birth defects.(9) As part of their case, plaintiffs attempted to introduce expert scientific evidence based on various studies which suggested that Bendectin could cause birth defects.(10)

The district court granted the defendant's motion for summary judgment because it found that plaintiff's scientific evidence did not reach the proper level of general acceptance in the relevant scientific community.(11) The court of appeals affirmed on the same basis.(12)

Both the district court and court of appeals based their decisions on Frye v. United States,(13) in which the D.C. Circuit held that scientific evidence was "inadmissible unless the technique is `generally accepted' as reliable in the relevant scientific community."(14) Frye's "generally accepted" test continued to be the prevailing standard for scientific evidence until the Supreme Court decided Daubert. Prior to addressing the proper admissibility standard of scientific evidence, the Supreme Court first had to address Frye and its proper place under the Federal Rules of Evidence. The Supreme Court held that the Frye test had been superseded by the adoption of the Federal Rules of Evidence, specifically Rule 702.(15)

In interpreting Rule 702, the Court held that an expert's testimony must be grounded in "scientific knowledge."(16) The Court stated that "scientific" implied a basis in the methods and procedures of science, while "knowledge" represented more than "subjective belief or unsupported speculation."(17) The second requirement in addition to "scientific knowledge" is that the evidence "assist the trier of fact."(18) The Court noted that this aspect of Rule 702 was basically a relevance requirement and stated, "Rule 702's `helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility."(19) Finally, in an attempt to assist federal judges in determining whether evidence has a basis in scientific knowledge and the ability to assist the trier of fact, the Court set out a non-exhaustive list of factors that should be taken into account during the admissibility evaluation.(20)

These factors are as follows: (1) whether the science underlying the evidence can be or has been tested; (2) whether the theory has been subject to peer review and publication; (3) whether there exists a known rate of error and whether standards exist governing the technique's operation; and (4) whether the theory has gained "general acceptance."(21) The final factor is essentially the Frye test which the Court earlier noted had been pre-empted by the Federal Rules of Evidence.(22)

The Supreme Court closed out its discussion of Federal Rule of Evidence 702 by noting that the admissibility of evidence should be a flexible inquiry with the focus on the "principles and methodology, [and] not on the conclusions" generated by the particular theory in question.(23) Once the Daubert inquiry is completed, the Court pointed out that other evidentiary rules, including Rule 403,(24) may still stand in the way of admissibility.(25) This statement by the Court seems especially fortuitous with regard to polygraph examinations.

Whether Daubert has dramatically changed the state and the use of scientific evidence in federal court from the standard adopted in Frye remains to be seen. One federal court opinion has interpreted Daubert as "kill[ing] Frye and then resurrect[ing] its ghost."(26)

II. POLYGRAPH EXAMINATIONS AND THEIR SCIENTIFIC METHOD

The underlying notion behind polygraph tests is that a subject will produce different physiological reactions when that subject tells a lie. During a polygraph test, instruments attached to the subject measure the physiological responses, and then record those responses onto a chart. The polygraph examiner then "reads" the chart and makes a determination concerning the credibility of the subject's answers to each of the questions posed during the polygraph exam. Among the instruments used in conducting a polygraph test are cardiographs, pneumographs, cardio-cuffs, and numerous sensitive electrodes.(27) These instruments measure changes in a subject's respiration, blood pressure, blood flow, pulse, and galvanic skin resistance.(28) There is no question concerning the ability of these instruments to measure accurately their respective physiological reactions.(29) Rather, the questions regarding the reliability of polygraph tests focus on the scientific explanations that allow an examiner to evaluate a given set of physiological responses and to conclude that the subject was not being truthful. This conclusory jump is based on the belief that people exhibit physiological signs of adversity and anxiety when telling falsehoods.(30) The subjective nature of polygraph tests is evidenced by the fact that no specific physiological responses or sets of responses exist which individually determine a subject's truthfulness.(31)

Rather, the examiner must interpret the varying responses to oral questions against their corresponding physical reactions and make a judgment concerning the subject's deception or non-deception. The manner in which an examiner "scores" a polygraph test depends on the type of polygraph test being given. It should already be apparent that the role of the examiner is critical to conducting a proper polygraph examination. Both lack of thoroughness and inadequate training to administer a proper exam can be fatal to the accuracy of a properly conducted polygraph exam.

There are currently three main polygraph examination techniques: the relevant-irrelevant (R-I) technique, the control question (CQ) technique, and the directed lie control (DLC) technique.(32) Each technique requires a pre-test interview.(33) During the pre-test interview, the subject is acquainted to the physical workings of the exam and helps finalize the wording of the questions to which the subject will respond during the exam. The purpose of this portion of the exam is to eliminate the surprise that may be inherent in unknown questions for fear that surprise may cause similar physiological results as would deception.(34)

The R-I technique is the oldest of the three current polygraph techniques in use and is based on the theory that a subject's physiological responses will be stronger to relevant questions than to irrelevant questions. Relevant questions are those questions that surround the issue being investigated. Irrelevant questions may be as simple as asking the subject his name or address. Deception is determined based on differences in the physiological responses to the relevant questions compared to the irrelevant questions. A subject who is truthful should produce similar, but not identical, responses to both relevant and irrelevant questions. A subject who is lying should produce noticeably greater physiological responses to the relevant questions than to the irrelevant questions.(35) As will be discussed later, the R-I technique has been found to be unreliable because of its high false positive results.(36)

The CQ technique is the most common polygraph technique used today. The exam consists of control questions and relevant questions. The control questions are irrelevant to the issue being examined but are intended to provoke physiological responses, as well as false denials, from the subject. These responses can then be compared to the responses given to the relevant questions. Theoretically, truthful subject will show greater physiological responses to the irrelevant questions which the subject has reluctantly answered falsely, than to the relevant questions, which the subject can easily answer truthfully. A deceptive subject will show greater physiological responses when falsely answering the relevant questions than when falsely answering the irrelevant questions.(37) Here, the underlying assumption is that a guilty subject will be more concerned with lying about the issue at hand, than with lying about other issues in general. An innocent subject will have no trouble telling the truth in response to the relevant questions, but will have trouble falsely answering the control question, despite the fact that such question may be phrased in vague and general terms.

The DLC technique involves control questions to which the subject is directed to answer falsely and relevant questions about the issue under investigation. Noted polygraph expert, Dr. David Raskin, believes that DLC polygraphs are as reliable as CQ tests and are easier to administer and use.(38) Under this technique, the subject is told that his false responses to the control questions are crucial to the outcome of the test. This "stress" placed on the subject is expected to produce greater physiological responses in the subject.(39) The DLC technique is similar to the CQ technique discussed above in that a truthful subject will show greater physiological responses to the control tests while a deceptive subject will show greater physiological response to the relevant questions.

Hybrid techniques involving the use of DLC questions and CQ questions can be conducted as well. The individual scientific explanations behind each technique remain the same. The only difference is that, in hybrid exams, the examiner compares both sets of control questions to one set of relevant questions rather than asking two distinct sets of relevant questions. The hybrid technique was the subject of the court's discussion in United States v. Gilliard.(40)

Scoring for polygraph examinations is usually done by the examiner. Scoring for each of the techniques is based on the assignment of a numerical value, positive or negative, to each response given by the subject to the questions asked. This part of the scoring is done by looking at the chart showing the various physiological responses of the subject. After totaling all the numbers, the final result is compared to a standard numerical value to indicate the overall level of deception. It may indicate truth, deception, or uncertainty.(41)

The subjective nature of polygraph scoring is noted by the fact that individual examiners may assign different numerical values for each response which will lead to differing final results. Therefore, the same exact test may show deception according to one examiner and uncertainty according to another. Furthermore, it is not beyond the realm of possibility to have separate examiners reach final results indicating truth and deception respectively.(42)

In response to this problem of subjective scoring, a method of computer scoring has been designed that is thought to be objective. A computer equipped with the proper program makes the necessary calculations based on the physiological response chart and returns a score that one court felt was objective.(43)

Thus far, this Note has provided a basic understanding of how polygraph examinations are designed to operate, but has avoided making any reference to the reliability of such examinations. Such an evaluation of reliability is most properly conducted under Daubert and its "general observations."

III. POLYGRAPH EXAMINATIONS AND ADMISSIBILITY UNDER DAUBERT

In Daubert, the United States Supreme Court addressed the admissibility of scientific evidence under the Federal Rules of Evidence. As guidance for federal judges, the Supreme Court offered "general observations" which included the following: (1) whether the science could be tested; (2) whether the scientific theory has been subject to peer review and publication; (3) whether the scientific method has a known rate of error and is subject to operational standards; and (4) whether the science has achieved general acceptance.(44) This Note will now assess polygraph examinations under these Daubert factors.

A. Can The Science Be Tested?

The science behind the polygraph exam is based on the idea that human beings produce different physiological responses when they lie versus when they tell the troth. The proper scientific inquiry is not whether the instruments attached to the subject during the exam can accurately measure their respective physiological responses. There is no question that these instruments can properly detect the responses they were designed to measure. However, there is a question as to whether individuals produce different physiological responses when they lie, and whether a different physiological response is indicative of lying as opposed to nervousness, anxiety, fear, confusion, or another emotion that may produce a change in physiological response,(45) In addition to the problems of determining what physiological responses are produced by deception, an examiner may also encounter affirmative attempts by the subject to alter the results of the exam. In addition, various cultural systems could alter the results of polygraph exams.

Testing "lie detection" is a very tough proposition.(46) First, in order to test polygraph exams, one must assume that the science upon which they are based is valid.(47) One commentator argued for the admissibility of polygraph evidence despite the fact that "an adequate scientific explanation has arguably not been articulated."(48) The second concern revolves around the question, "How do we know the polygraph is right?" To answer this question, one would have to develop an independent method of determining ground truth in order to establish whether polygraph results are accurate. Indeed, this is probably the greatest obstacle in determining the validity of polygraphs.(49) Inherent in the assumption that a subject produces certain physiological responses when lying is the notion that the subject knows he is lying. This assumption begins to break down in cases where a subject either rationalizes his answers or convinces himself that his answers are truthful. If a subject has no recollection of a murder he committed, one would not expect the subject to produce physiological responses indicative of deception when he denies committing that murder; even though he is lying.(50)

As a result, polygraph results may be misleading under circumstances where the subject has been able to alter her mental comprehension of certain events.(51) It is the role of the examiner to detect during the pre-test interview when a subject is "mentally incompetent" to take a polygraph exam. Whether examiners, including highly trained examiners, can detect such "mental incompetency" is a highly untenable position for it requires the examiner to become a "lie detector" herself.(52)

Another potential stumbling block with testing the science of polygraphy is the use of countermeasures. Countermeasures are techniques used by the subject to create certain physiological responses designed to fool the examiner when he interprets the charts produced by the instruments during the exam. One group of countermeasures that can be used by the subject involves inflicting pain upon oneself in order to alter physiological responses to the control questions. This must be done without detection by the examiner.(53) The theory is that by increasing one's reaction to the control question, the examiner will incorrectly score the exam in favor of truthfulness rather than deception. Some polygraph experts have conceded that even subjects who are given only a minimal amount of training could effectively use countermeasures to produce false negatives.(54)

In addition to taking affirmative steps to destroy the accuracy of polygraph results, a subject may possess inherent qualities that will lessen the reliability of the exam. One such factor is the value systems of different cultures.(55) In its report to Congress, the Office of Technology Assessment concluded that other factors, including race, gender, and intelligence, could affect the accuracy of polygraph tests.(56)

A thorough analysis under the first Daubert factor reveals that, at a minimum, it is very hard, if not impossible, to test the science upon which lie-detection rests. How can the underlying science be tested when it has been conceded that no adequate explanation exists as to how the underlying science operates? Additionally, the inability to determine ground truth accurately and the use of countermeasures to fool the polygraph and the examiner further frustrate attempts to test the accuracy of polygraph results. The combination of these obstacles leads to the conclusion that the first Daubert factor should weigh in favor of inadmissibility of the evidence at trial.

B. Has the Science Been Subject to Peer Review and Publication?

The second Daubert factor attempts to measure the criticism and acceptance of the specified scientific theory. As the title suggests, such criticism and review typically come from peers who have the required background and experience to weigh the merits of a scientific theory properly. Consequently, the more a theory has been published and affirmatively critiqued, the more likely it is that the theory has scientific merit.

A number of courts have found polygraphy to be subjected to both peer review and publication.(57) However, it is important to note that peer review and publication do not guarantee reliability. At best, they indicate plausibility. In Daubert, the Supreme Court noted, "[p]ublication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability."(58)

To the extent that mere publication and peer review alone are required to satisfy this Daubert factor, polygraph evidence should be admissible. But this factor should not outweigh the other Daubert factors. Publication and peer review are not conclusive evidence of reliability. They are only evidence that a portion of the scientific community, not necessarily a significant portion, considers the science of polygraphy to be valid. A more appropriate position for this factor would be to consider it along with the fourth Daubert factor, "general acceptance."

C. Is There a Known Error Rate? Are There Operational Standards?

Determining error rates(59) for the various types of polygraph tests is no easy task. It requires knowing ground truth in order to ascertain whether the polygraph exam properly determined truthfulness. But, in the real world, if one already knows the truth, there exists no real need to perform the polygraph examination. However, assuming one did perform an exam despite this fact, there is no reason to believe the results of the exam would be a proper reflection of the "usual" polygraph. When the subject is aware that the truth is already known, she is no longer under the type of anxiety and pressure that surrounds the standard polygraph exam. It does not seem possible both to recreate the conditions surrounding the usual polygraph exam and to obtain an independent verification of truth to test the polygraph results.(60)

Studies concerning the error rates of polygraph tests have yielded varying results.(61) Those studies that have indicated a high rate of accuracy may be subject to an underestimation of the potential error rate.(62) However, a number of studies have indicated a lower accuracy rate,(63) including a study conducted by the Congressional Office of Technology Assessment.(64) Additionally, it is not scientifically valid to extrapolate the error rates of laboratory studies to polygraphs administered in real-life situations.

Specifically, most experts agree that the R-I technique is not a reliable exam and "enjoys no appreciable scientific acceptance."(65) This is because the R-I technique produces a high percentage of false positives.(66) The most commonly used exam is the CQ technique.(67) Some studies indicate that the CQ technique is 90% accurate when conducted in the field as opposed to in the laboratory.(68) Other studies have indicated that the DLC technique may be even more reliable than the CQ technique.(69) However, due to the fact that the DLC technique is relatively new, thorough studies have not yet been completed and an accurate error rate has not yet been established.

The existence of specific standards for the operation of polygraph tests and for the qualifications of polygraph examiners is a crucial factor. As previously discussed, the examiner plays a critical role in arriving at the polygraph result.(70) One commentator noted, "the most important factor in [a] polygraph examination ... is the individual examiner['s] ... ability, experience, and education ... [making interpretation of polygraph results] something close to an interpretive art form."(71) One manner in which the examiner plays an important role is in phrasing proper questions. If an examiner improperly phrases a question, or asks an ambiguous question, then the results of the exam will not assist the trier of fact regardless of the exam's reliability.(72) Another important role of the examiner is to screen out subjects who will not produce accurate results. These include subjects who are sick, intoxicated, medicated, or incapable of producing reliable results, including those subjects trying to use countermeasures.(73) Therefore, the subjective role that the examiner plays as a part of the polygraph exam is readily apparent.

Finally, standards are needed to require a pre-test interview and to govern the thoroughness of such an interview. Not only does the examiner play an important role in the pre-test interview, but the pre-test interview plays an important role in the exam. "A poor pre-test interview [or no interview at all] increases the risk of error and decreases the chance of accuracy."(74) Dr. Raskin has testified that the pre-test interview is critical to polygraph reliability.(75)

While there are a number of organizations that suggest certain procedures be followed in administering a polygraph,(76) no uniform set of operational standards exists. The same can be said concerning the qualification requirements of examiners. In fact, licensing requirements vary among states and, in twenty states, no license is required at all to administer a polygraph exam.(77) This lack of uniform standards is fatal when the role of the examiner is as critical as it is in the case of polygraphs, and has caused at least one court to hold this factor against admissibility under a Daubert analysis.(78)

The creation of operational standards and qualifications for examiners is one of the easiest Daubert factors to fulfill. It could be done efficiently through legislation adopting thorough standards, the satisfaction of which would create a presumption that the standard had been met. But as of yet, no such legislation has been offered. Until certain minimum standards are in place, this Daubert factor will continue to weigh in favor of inadmissibility. "Even the most ardent supporters of the polygraph technique concede that the most pressing problem facing polygraphy today is the shortage of well-trained examiners."(79)

The combination of wide ranging error rates and the lack of operational and examiner standards weighs heavily on the side of inadmissibility as evidence. The nature of the polygraph exam will not allow for an accurate error rate to be indentified and we should not expect to attain any less varied results when it comes to the accuracy of such exams. This problem arises out of the inability to determine ground truth under real-life polygraph conditions. The addition of a standard-free environment surrounding the administration of the exam makes the result all the more suspect. Until adequate minimum standards are adopted, polygraph exams will always remain suspect in the eyes of Daubert even without getting to the question of error rates and accuracy.

D. Has the Science Been Generally Accepted?

An initial obstacle in determining whether polygraphy has been generally accepted is determining who is the relevant community. Is the community limited to polygraph examiners, or does it include all experts in the field of physiology, or some greater group of experts? It would be hard to justify a group composed solely of polygraph examiners because the very fact that the examiners are conducting polygraphs indicates that they accept the science. This would lead to a 100% acceptance level. It would be foolish to accept the notion that polygraphy has obtained a 100% acceptance level in the relevant scientific community given the controversy which surrounds its admission into evidence. Therefore, the classification must be some greater grouping. Courts have reasoned that since the science is based on physiological reactions to lying, it is appropriate to accept physiological experts as the relevant community.(80) This is a prudent and acceptable proposition.

Once the relevant scientific community has been selected, the criticisms of the community must be overcome. The greatest criticism may be that of the American Medical Association, which has questioned the reliability of polygraph examinations.(81) Additionally, scientific studies have not specifically indicated that there is a general acceptance of the use of polygraphs as courtroom evidence. A recent court decision has described the current status of polygraphs: "Scientific opinion about the validity of polygraph techniques is extremely polarized."(82) One study showed that two thirds of the members of the Society for Psychophysiological Research felt that polygraph results were "valuable diagnostic tool[s] when considered with other available information or that [they were] sufficiently reliable to be the sole determinant."(83) But again, support as a diagnostic tool does not imply that those surveyed would allow a jury to base its verdict on a polygraph examination.

Further criticism from the scientific community surrounds the CQ technique. As noted, the CQ technique is currently the most popular and the most accepted technique of polygraph examination. Yet, one commentator has recently concluded, "[d]espite its popularity, the scientific community is still divided regarding the reasonableness of the principles that underlie the CQ technique."(84)

In fact, the science surrounding polygraph examinations has not been generally accepted. While a number of experts are pushing for its ability to serve as reliable evidence, there are more experts who believe that polygraphs do not make reliable evidence. A controversy certainly exists, and it is one that will not be resolved at any point in the near future. Under these conditions, to say that polygraph tests have achieved general acceptance under the relevant scientific community would be a stretch of the English language. This Daubert factor thus weighs in favor of inadmissibility.

E. Conclusion Under the Daubert Factors

Based upon the "general observations" made by the United States Supreme Court in the Daubert case and the current inability of science to explain the science behind polygraph examinations, it cannot be argued that polygraph exams are "scientific knowledge" which will "assist the trier of fact." Consequentially, an expert should not be allowed to testify in relation to the results of a polygraph exam under Federal Rule of Evidence 702. Rule 702 and the rationale of Daubert currently combine to make polygraph results inadmissible in federal court. This is not to say that Daubert hearings should not be conducted in the future. The issue should continue to be revisited in the attempt to decide whether the underlying science has showed sufficient improvement to satisfy the Daubert factors.

In the aftermath of the Supreme Court's Daubert decision, a number of the federal circuits have reversed their per se bans on the use of polygraph evidence at trial and have begun to make individual determinations of admissibility under Daubert.(85) One federal circuit reversed its per se ban before Daubert was decided.(86) While these decisions do reflect an understanding of the requirements of Daubert, they do not indicate a sudden acceptance by the federal courts of polygraph evidence. Rather, most courts have continued to hold polygraph results inadmissible, but have done so under the Daubert analysis instead of under a per se ban.(87)

However, post-Daubert treatment of polygraph evidence has not been completely uniform. Some courts have conducted Daubert hearings and have found that polygraph results do satisfy the reliability test and are admissible under Rule 702.(88)

Nevertheless, the satisfaction of Rule 702 and Daubert still does not insure that polygraph results will make it into evidence. Polygraph evidence must still comply with Federal Rule of Evidence 403.

IV. POLYGRAPH EXAMINATIONS AND ADMISSIBILITY UNDER RULE 403

In order for polygraph evidence to be admissible at trial, it must satisfy both Federal Rules of Evidence 702 and 403.(89) Rule 403 allows relevant evidence to be excluded if the probative value of the evidence is substantially outweighed by certain other factors expressed by Congress, such as prejudice, confusion, and waste of time.(90) While Rule 702 remains the primary focus of admitting polygraph evidence, Rule 403 could become a powerful obstacle to admitting such evidence regardless of the outcome of the Daubert analysis.

Rule 403 essentially requires that the court conduct a balancing test to determine a piece of evidence's admissibility under this role. The first step of the procedure is to ascertain what the probative value is of polygraph evidence. This determination will undoubtedly be intertwined with the court's Daubert analysis. For instance, a determination that error rates are minimal, that the science can be tested, and that it is generally accepted, would suggest that polygraph results have a high probative value. Conversely, a finding that polygraph results are no more accurate than chance could lead to the conclusion that polygraph evidence has no probative value. As a result, the reliability one places upon the evidence as a result of the Daubert analysis will affect how much that same evidence will weigh during a Rule 403 balancing test.

Once the probative value of polygraph evidence has been determined, the factors on the side of inadmissibility must be discussed. These factors can be divided into three categories: (1) the prejudicial nature of the evidence; (2) the ability of the evidence to usurp the role of the jury; and (3) the amount of time that would be consumed in the presentation of such evidence.

A. The Prejudicial Nature of Polygraph Examinations

Allowing the trier of fact to factor in the results of lie-detector tests as evidence would be highly prejudicial. Once admitted, polygraph evidence usually will speak directly to the guilt or innocence of the defendant, or at a minimum, to a essential element which, if unsatisfied, would require a verdict for the defendant.(91) Even courts that have held polygraph tests to be admissible under certain circumstances have acknowledged that "the potential prejudicial effects of permitting a jury to consider a polygraphy examination are enormous, and thus rather disturbing."(92) This fear is a result of evidence which, when labeled "scientific," becomes so persuasive in the eyes of the jury that it becomes prejudicial.

A difficult problem regarding prejudice is one that a jury faces when presented with evidence that indicates there is a 70% to 90% chance that the subject was lying when he offered his alibi. Without reliable guidance, a juror is likely to be lost when trying to determine how much weight such evidence deserves. To offer such highly prejudicial evidence with little solid scientific ground underneath it can be very confusing to the jury. "With the lack of standardization of polygraph procedure and a lack of agreement as to necessary qualifications of examiners, the jury would have very little basis to evaluate the conflicting expert testimony."(93) A juror is likely either to accept such results without question, or to ignore them completely because she is unable to determine how much weight such evidence to given.

Another issue is the notion that the use of polygraph evidence leads to the trial of a defendant based on probability. A defendant should not be convicted because there is an 80% to 90% chance that he is guilty. Rather, convictions should rest on individual pieces of evidence linking each individual defendant to a specific crime. Allowing evidence of polygraph exams, whose error rates may range anywhere from 10% to 50%, to be a deciding factor in a defendant's innocence or guilt, is essentially trying the defendant based on probability. It is not possible for a juror, or an expert, to be certain when that error will occur. In simple terms, if a polygraph is 90% accurate, and is offered as inculpatory evidence in ten cases, ten different juries would likely bring back ten individual convictions based on the fact that there is a 90% chance of accuracy. But there is a good chance that one defendant was wrongly convicted because individual juries are incapable of accounting for the 10% error rate when they are deliberating in only one case in which polygraph evidence is being offered.(94)

B. The Ability of Polygraph Evidence to Usurp the Role of the Jury

Proponents of the jury trial system fear that admitting polygraph evidence will replace one of the most important roles of the jury, determining credibility. One often cited opinion effectively expressed this fear: "When polygraph evidence is offered in evidence at trial, it is likely to be shrouded with an aura of near infallibility, akin to the ancient oracle of Delphi."(95) Even if we accept that polygraph examinations have validity, the fear that they will usurp the jury's role remains. Specifically, will juries continue to weigh the evidence and make their own determinations of fact and credibility, or will jurors adopt the results of polygraph results as their own because of their scientific nature and their perceived ability to "detect lies"?(96) One commentator has noted the propensity of jurors to alter their verdicts based on contradictory polygraph evidence.(97)

The reality of allowing polygraph exams into evidence requires that an expert testify as to her opinion of whether the subject truthfully responded to the specific questions asked during the exam. The expert is, in effect, making a judgment on the subject's credibility at a specific instance. This is an evaluation that the jury typically makes on its own. Juries are more than capable of determining what evidence they will accept and what evidence they will not accept without the help of an expert.(98) Allowing an expert to offer her opinion to help the jury would, at worst, cause the jury to reach a conclusion without fully analyzing all the evidence, and at best, the jury would ignore the expert and make its own determination. Under this model, admitting the polygraph results serves no useful purpose, but has the potential of serving a harmful purpose.

C. The Amount of Time Consumed in Presenting Polygraph Evidence

The third problem surrounding the admissibility of polygraph evidence is the amount of time it would consume, particularly if one concludes that such evidence would not be very probative if admitted. It is likely that the number of cases that involve expert testimony would dramatically increase if polygraph evidence were routinely allowed into evidence. This would involve both parties presenting their experts concerning the polygraph test at issue, as well as a number of experts to testify about the science of polygraphy in general, its error rates, and scientific acceptance. This particular concern, among others, led to the adoption of a Military Rule of Evidence prohibiting the use of polygraph exams as evidence.(99) The drafters of the rule recognized that such evidence would likely waste time on collateral issues.(100)

A similar concern centers on shifting the ultimate focus of the trial--guilt or innocence--into a battle of the experts.(101) This, the jury would notice and possibly overemphasize the polygraph results because of the amount of time devoted to them at trial.(102) It is not unrealistic to conclude that if the individual parties can get caught up on a single issue, so too may the jury in reaching its verdict.

D. Conclusion under Rule 403

Federal Rule of Evidence 403 requires that polygraph results be excluded from evidence at trial because their probative value is substantially outweighed by a variety of countervailing concerns. Even assuming that polygraph evidence has strong probative value, the same analysis would follow.(103)

The rule's first concern is to prevent unfair prejudice. For this reason, polygraph evidence must be held inadmissible so that the jury fully evaluates the entire record and does not focus upon one piece of evidence which may unfairly produce an inaccurate verdict.

The second concern is that juries should determine credibility and, ultimately, the final verdict. Polygraph examination results may be so persuasive, regardless of their accuracy, that juries may defer to the expert rather than making their own credibility determinations. Allowing such evidence to be admitted at trial is not harmonious with the concept of jury trials and allowing the trier of fact to determine the ultimate issues.

The final concern is that of administrative efficiency. Although this factor appears to be the weakest of the concerns, there is the real possibility that spending inordinate amounts of time on a battle of the experts will incorrectly cause the jury to place too great an emphasis on such testimony.

The conclusion that polygraph evidence is inadmissible under Rule 403, in addition to Rule 702, has an important consequence. The Note previously argued that Daubert analyses should be continued under the prospect that polygraph tests may one day satisfy those factors. However, it is much less likely that polygraph examinations will become so reliable as to increase their probative value sufficiently to satisfy Rule 403. Indeed, human perception is slow to change, and polygraph examinations may always retain an aura of infallibility in jurors' minds, and should thus remain inadmissible.

Commentators have written about the admissibility of polygraph tests since Daubert, and many have made intelligent conclusions as to how a Daubert analysis should handle such evidence. However, some of these commentators do not give Rule 403 the proper consideration in determining admissibility.(104) Once it is concluded that Rule 702 allows evidence of polygraphy, it is vital that the analysis continue until all hurdles have been cleared. In the future, Rule 403, and not Daubert, may be the biggest barrier to the admissibility of polygraph results.(105)

Since Daubert, a number of courts have exemplified the importance of Rule 403 by assuming that polygraph evidence is admissible under Rule 702, only to hold the evidence inadmissible under Rule 403.(106) These courts have decided that in cases where Rule 403 prevents the admissibility of evidence, the time-consuming Daubert analysis is unnecessary.(107)

The effect of this method makes the Rule 403 analysis all the more important, because without successfully satisfying Rule 403 first, a party offering polygraph evidence will likely not even get to argue its Daubert case. Although admissibility under Daubert will be presumed, the evidence will remain inadmissible.

To exemplify the admissibility concerns just discussed, this Note will consider two hypothetical situations involving polygraph evidence:

A. Defendant A is on trial for an alleged bank robbery. After listening to all the evidence, not including any polygraph results, assume that the jury would have convicted defendant A. However, also assume that, at the last moment, defendant A was allowed to introduce an exculpatory polygraph examination. The examiner will testify that, in his expert opinion, defendant A was being truthful when he stated that he did not commit the bank robbery. As a result of this last piece of evidence, the jury is now ready to acquit defendant A.

B. Defendant B is on trial for first degree murder. The prosecution presents one piece of evidence, an inculpatory polygraph result in which the examiner testifies that defendant B lied when he claimed he did not commit the murder. The defense also presents only one piece of evidence--defendant B's alibi claiming that he was home alone sleeping at the time of the murder.

In the first hypothetical, there is a concern that the jury will rely upon the scientific reputation of the evidence, rather than upon the evidence as they see it. Arguably, the jury may feel that this is a close case, and not until the expert testifies about the defendant's truthfulness is the jury prepared to return a not guilty verdict. However, to the extent that such a verdict is based on one expert's testimony, and arguably no more of an expert at credibility than those composing the jury, rather than on the jurors' own beliefs as to the defendant's guilt or innocence, the admission of the evidence has intruded upon the role of the jury.

Additionally, whether or not the jury gives proper weight to the polygraph evidence, such testimony is based on an inexact science with an unknown error rate. This risks reaching a verdict based on probabilities. Ultimately, this hypothetical may not seem so harsh because the defendant was able to use the flexibility of the rules in his favor. However, both the science behind the polygraph exam, and its effect upon the actions and decisions of jurors are likely to remain the same.

The second hypothetical addresses the opposite situation, an inculpatory polygraph. The hypothetical also addresses the question of how much weight a polygraph exam should carry. An initial response may be that the prosecution does not have enough evidence even to get the case to the jury. But why not? If the use of polygraphs as evidence is accepted, then certainly evidence of such an exam should be at least enough to get the case to the jury and to permit the jury to decide who should prevail.

If a polygraph alone does not amount to enough solid evidence to allow this case to get to the jury, then why should courts allow polygraphs into evidence under more typical circumstances? The reliability of polygraph evidence does not change under different evidentiary circumstances, and certainly there is no mention of requiring other evidence to corroborate polygraph results before admitting the polygraph under Daubert. If a polygraph exam cannot stand on its own, then it should not be allowed to stand as evidence under any circumstances. Essentially, this second hypothetical is the ideal situation to determine the reliability of polygraphs. Until courts are prepared to accept polygraph evidence under these circumstances, polygraphs should not be seen as reliable evidence.

V. RECENT DEVELOPMENTS

After the United States Supreme Court issued its Daubert opinion, it appeared that scientific evidence would become more likely to be admitted as evidence than it was under the previous Frye test. Such a result was likely because the Frye test was no longer the sole standard of admissibility, but rather, became a non-essential factor to be considered under Daubert. However, within the past two years, the Supreme Court has issued another opinion, General Electric Co. v. Joiner,(108) that appears to tighten up the admissibility requirements that were thought to be loosened by Daubert. The effect of Joiner on the admissibility of polygraph evidence is to give the trial court judge the discretion to scrutinize an expert's conclusions about a subject's truthfulness based on the premise that the scientific method behind polygraphy has not been explained to a satisfactory level.

In Joiner, plaintiff sued General Electric and others alleging that defendants promoted his lung cancer by exposing him to certain chemicals,(109) In order to avoid summary judgment, Joiner attempted to show the district court, through the use of experts, that there was a link between lung cancer and exposure to such chemicals.(110) The district court ruled in favor of the defendants because it did not believe that the plaintiff's expert testimony was anything more than "subjective belief or unsupported speculation."(111)

The court of appeals reversed, concluding that the district court erred by not allowing the testimony of the plaintiff's experts.(112) The court noted that the trial judge's role as gatekeeper should be limited to determining the legal reliability of an expert's testimony.(113) It is not the role of the judge to determine the validity of an expert's conclusions; rather, it is for the jury to determine whether the expert's opinion was correct.(114) In effect, the Court of appeals held that if an expert's conclusions are plausible given the scientific methods and evidence upon which the expert relied, then the court must admit such testimony and allow the jury to determine the correctness of these conclusions. The Supreme Court reversed because the Court of appeals applied a standard of review that was too stringent.(115) The Supreme Court held that the proper standard of review of a district court's evidentiary ruling is an "abuse of discretion" standard, and by not following this standard, the Court of appeals did not give enough deference to the trial court's determination.(116)

At this point, the Supreme Court could have remanded, allowing the court of appeals to review the district court's ruling under the proper standard of review. Instead, the Court continued to review the district court's determination in what may amount to dicta. It is in this portion of the opinion where the Court may have reigned in the liberal thrust given to Rule 702 under Daubert.

The Supreme Court reviewed the trial judge's decision to exclude the expert testimony and concluded that the trial judge could reasonably have held that the evidence underlying the expert's conclusions was not reliable enough to support those conclusions.(117) The plaintiff directed the Court's attention to the language in Daubert instructing that the "focus, of course, must be solely on principles and methodology, not on the conclusions that they generate."(118) But the Court explained,
 [C]onclusions and methodology are not entirely distinct from one another.
 Trained experts commonly extrapolate from existing data. But nothing in
 either Daubert or the Federal Rules of Evidence requires a district court
 to admit opinion evidence which is connected to existing data only by the
 ipse dixit of the expert. A court, may conclude that there is simply too
 great an analytical gap between the data and the opinion proffered.(119)


It is this passage which may give trial judges the ability to rely not only on the Daubert factors to exclude scientific evidence, but also upon their own judgment that the "analytic gap" between the underlying scientific method and the expert's final conclusions is too great to allow the evidence to be considered by the trier of fact.

It remains too early to determine what the impact of Joiner will be upon the admissibility of scientific evidence under Daubert. However, recent lower court opinions indicate that judges are taking notice of Joiner and are willing to take a more central role in the admissibility decision rather than just applying the listed Daubert factors.(120)

One court explicitly noted the Supreme Court's step back from Daubert when it wrote, "In its most recent discussion of Daubert, however, the Supreme Court seems to have retreated from the strict focus on methodology alone."(121)

In the specific instances involving the admissibility of polygraph results, it seems that trial judges would now be free to exclude such evidence based on the fact that the "analytic gap" between the physiological responses people have towards certain stimuli and the conclusions about their truthfulness at that given moment is too great to allow polygraph results into evidence. Simply, a judge may conclude that the physiological responses which an expert has interpreted to mean deception may also be caused by other physical traits such as fear, nervousness, or a cultural difference in values. And until these other possibilities are scientifically excluded, the analytic gap will remain.

More recently, the Supreme Court decided a case which should give trial judges the confidence to exclude polygraph results while reducing the possibility that a Court of appeals would reverse such a decision based on the improper exclusion of reliable evidence. In United States v. Scheffer,(122) the defendant challenged the constitutionality of Military Rule of Evidence 707, which makes polygraph results inadmissible in military court-martial proceedings.(123) Scheffer challenged the rule as violating his Sixth Amendment and Fourteenth Amendment rights to present a complete defense by not allowing him to introduce an exculpatory polygraph examination into evidence.(124)

The United States Court of appeals for the Armed Forces ruled in Scheffer's favor and held the Military Rule of Evidence to be unconstitutional.(125) The Supreme Court reversed and allowed the military's per se exclusionary rule to stand.(126)

At the outset, the Court noted that a defendant's constitutional right to present a complete defense is not unlimited, but rather is limited to the right to present relevant evidence, and beyond that, the right may be further limited as long as such limits are not" `arbitrary' or `disproportionate to the purposes they are designed to serve.'"(127) The Court held that the rule served three legitimate interests, all of which were previously addressed by the drafters of the rule during discussions concerning the admissibility of polygraph evidence, "ensuring that only reliable evidence is introduced at trial, preserving the jury's role in determining credibility, and avoiding litigation that is collateral to the primary purpose of the trial."(128) The rule disallowing polygraph evidence under any circumstances was held not to be arbitrary, nor to involve a "sufficiently weighty interest of the defendant."(129)

Justice Thomas echoed some of the sentiments discussed under the Section III Daubert analysis. He wrote, "there is simply no consensus that polygraph evidence is reliable," and that some have found its accuracy is "`little better than could be obtained by the toss of a coin.'"(130) The majority opinion went so far as to endorse the Fourth Circuit's adherence to a per se ban on polygraph evidence.(131) This fact may indicate that the Supreme Court would not even require that scientific evidence involving polygraphy be tested under Daubert, unless the Court is implying that somewhere within the per se ban there is an implicit Daubert analysis being done.(132)

In part of the majority opinion, Justice Thomas pointed to a great underlying concern, which was previously noted in the hypotheticals--the fear of conviction based on probability. He wrote, "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."(133)

In writing for a plurality, Justice Thomas explained that it was up to the jury to determine credibility. Additionally, unlike other scientific evidence of which the jurors have no particular knowledge, a polygraph examiner can only offer the jury another opinion as to the truthfulness of the subject.(134) Furthermore, such an additional opinion could be dangerous because of the "aura of infallibility" which surrounds scientific evidence and the fear that jurors would defer to the expert's testimony rather than fulfill their duty to determine credibility.(135) Justice Thomas's final reason for his holding centers on the need to focus the jury's attention on guilt or innocence, and not on collateral issues which would be presented in all future polygraph cases.(136)

The Court only recently issued Scheffer, and so few reported decisions have incorporated Scheffer into their legal analysis.(137) At its narrowest, Scheffer stands for the proposition that the President of the United States could constitutionally promulgate a rule of evidence which bans the use of polygraph results at military courts martial.(138)

It may also be easily expanded to allow both the federal government and individual states to enact such a rule of evidence themselves. What the decision does not prevent are individual determinations that polygraph results are admissible once Daubert and Rule 403 have been satisfied.

However, Scheffer is likely to slow down any movement that may have existed routinely to allow polygraph tests into evidence since the Court has held that defendants do not have a constitutional right to introduce polygraph evidence in their defense. District court judges will now be forced to balance their Daubert analyses of polygraph evidence with the words of a Supreme Court decision noting the unreliability of polygraph evidence and the danger of destroying the role of the jury. It is, therefore, likely that federal judges will be more hesitant to allow expert testimony of polygraph results. In fact, a judge could easily use the ideas expressed in Scheffer to hold polygraph evidence inadmissible under Rule 403 and further reduce the role of Daubert in determining the reliability of such evidence.

VI. OTHER RELATED ISSUES

There remain a number of issues which should be discussed concerning the use of polygraph evidence in court. Including the use of polygraph evidence during sentencing hearings, pre-trial rulings, and prison and parole decisions. Additionally, the use of polygraphs in the private sector by employers is a current issue that is worthy of lengthy discussion. However, this Note will address only two issues that are related to polygraph admissibility. The first issue is the admissibility of polygraph results under Federal Rule of Evidence 608, and the second issue is the admissibility of polygraph evidence when stipulated to by both parties.

A. Admissibility under Federal Rule of Evidence 608

Federal Rule of Evidence 608 applies to evidence presented to demonstrate the character and conduct of a witness, which may include the defendant.(139) The essential requirement of all evidence admitted under this rule is that the evidence speak to the witness' character. Under this Rule, polygraph results may be offered only to establish the subject's general character and reputation for being either truthful or deceitful, and not to establish specific incidents of truth or deceit. Essentially, the results of polygraph exams would be offered to show that the subject is known to be a liar or an honest individual, but could not be offered to show that the subject was lying or telling the troth during specific occasions.

Proponents of polygraph evidence seeking to admit such evidence have attempted to gain admissibility under Rule 608. The flaw with this argument is that polygraph experts are incapable of speaking about a subject's character, and therefore Rule 608 should not be applicable. Assuming the validity of polygraph examinations, the examiner could only speak to the truthfulness or untruthfulness of the subject under certain circumstances--specifically, only at the time of the test and only regarding the issues covered during the exam. At no point does the examiner gain enough insight to determine the subject's character for truthfulness. Therefore, once the subject has testified, a party should not be allowed to introduce an inculpatory examination to attack the credibility of the subject under Rule 608. Additionally, once the subject's credibility has successfully been attacked through other appropriate means, the subject should not be allowed to introduce exculpatory polygraph results under the same rule.(140)

Subsection (b) of Rule 608--covering specific instances of conduct--provide proper grounds for admitting polygraph evidence. First, as noted above, polygraph examiners cannot speak to a subject's character for truthfulness, and second, the polygraph examination would constitute extrinsic evidence which is not allowed under this subsection of the rule.(141) As a result, neither Rule 608(a) nor Rule 608(b) is an appropriate method of admitting polygraph evidence. Two recent commentators are in agreement that Rule 608 is inapposite to admitting polygraph evidence and that the admissibility of such evidence more appropriately should be decided on other grounds.(142)

B. Admissibility upon Stipulation by Both Parties

This admissibility argument centers on an agreement by both parties to admit the results of the polygraph exam into evidence, usually agreed to before the exam has been conducted. This argument concludes that, based on the agreement, the trial judge should respect the wishes of the parties and allow the evidence to be considered by the trier of fact. While this theory may seem counterintuitive after the lengthy discussion on polygraph evidence, at least seventeen states and three federal districts have adopted this position.(143)

The concern raised by such a position is that the stipulation of the parties does not suddenly make polygraph evidence any more scientifically reliable,(144) nor does it rid the evidence of its "Oracle of Delphi" problem of usurping the role of the jury. Each of the concerns raised in this Note regarding the use of polygraph evidence remains just as problematic despite the stipulation by both parties to allow the results into evidence. Stipulation or not, polygraph evidence will stand in the way of a proper determination of guilt or fault by the trier of fact based only upon relevant, non-prejudicial evidence.

An argument made in favor of allowing stipulations is that a stipulation acts as a waiver by the parties and allows for the admission of inadmissible evidence.(145) It is hard to understand why an agreement between the parties should allow inadmissible evidence to be admitted at trial. Prior to the stipulation, inadmissible evidence is inadmissible because of underlying concerns that the drafters of the Federal Rules of Evidence had towards certain types of evidence. Allowing this stipulation exception would directly undercut the protections and concerns that were intentionally adopted by the Federal Rules of Evidence. This position could best be summed up by one state court judge's concern: "How does the agreement lend credibility to an examination that otherwise would not be given judicial recognition?"(146)

VII. CONCLUSION

Despite the tremendous advances that the world of science has made, it has not yet been able to create a reliable lie-detector. Although the polygraph examinations which exist today are probably more reliable than chance, they still are not accurate enough to be brought into the courtroom as evidence. A more appropriate role for the polygraph device is as an investigative tool. In this way, investigators can develop leads and acquire various avenues of approach to facilitate fact-finding investigations. But to place such leads in front of the jury under the guise of scientific evidence is not appropriate.

Proponents of allowing polygraph evidence at trial anticipated that when the Supreme Court issued its opinion in Daubert, the Court had opened the door to certain types of scientific evidence which had previously been inadmissible under Frye. However, under the "general observations" issued by the Supreme Court, polygraph results fail to qualify as such evidence. This failure has much to do with both the fact that science cannot fully explain why a "lie-detector" works, and that such a device is necessarily subjective. From the role of the examiner to the determination of ground truth, insuring that polygraphs are indeed "detecting" truthfulness is not possible. Additionally, determining when a polygraph examiner is making those inevitable mistakes is an impossible task.

However, the role of Daubert and Rule 702 is currently not as crucial to the admissibility analysis as when the Supreme Court issued its decision five years ago. In the interim, courts have been willing to decide the admissibility issue on Rule 403 grounds and the notion that our judicial system placed the jury, and not scientific experts, in the role of determining credibility, truth, and guilt. Allowing polygraph results into evidence serves to undermine completely this basic philosophy underlying our judicial system. "If we get to the point in this country where lie-detector tests are the basis upon which we make judgments ... we have reached a sad day for the civil liberties of this country."(147) It is Rule 403 that is designed to be the safety valve for the judicial system and the "civil liberties of this country."

The door that the Supreme Court seemingly opened in Daubert seems to have been partially shut by the Supreme Court's opinion in Joiner. And while Scheffer may not have touched the Daubert door, arguably, the Court's decision placed a large obstacle in the Daubert doorway which may be just as effective as closing the door. These cases are new, and it remains to be seen how they will affect Daubert and the admissibility of polygraph evidence, but at a minimum, they are likely to make federal judges proceed with caution in any decision to admit polygraph results into evidence.

The dangers of admitting polygraph evidence are great. The benefits of admitting the same evidence are few, if any. The Federal Rules of Evidence are prepared to defend against admitting such evidence. Both Rules 702 and 403 are obstacles which the science of polygraphy cannot currently overcome. Polygraph evidence should not be admitted into evidence through the side doors represented by Rule 608 and the use of a stipulation, should not be the manner in which polygraph exams enter. Justice Thomas's dicta in the Scheffer decision offers as a final barrier to the use of such evidence, we have. All these factors point to the conclusion that polygraph evidence should not be admissible in federal courts.

(1.) 509 U.S. 579 (1993).

(2.) See, e.g., United States v. Galbreth, 908 F. Supp. 877 (D.N.M. 1995) (allowing polygraph results as evidence after conducting a Daubert hearing to ascertain the reliability of the evidence in this individual case).

(3.) See, e.g., United States v. Cordoba, 991 F. Supp. 1199 (C.D. Cal. 1998) (holding polygraph examinations as inadmissible under both Daubert and Federal Rule of Evidence 403).

(4.) See, e.g., United States v. Padilla, 908 F. Supp. 923 (S.D. Fla. 1995) (allowing evidence of polygraph examination only to corroborate or impeach the credibility of a testifying witness).

(5.) 118 S. Ct. 512 (1997).

(6.) 118 S. Ct. 1261 (1998).

(7.) This Note will limit discussion to the use of polygraph evidence in federal courts because the Daubert decision only applies to federal jurisdictions. However, the conclusion that polygraph tests should not be admissible as evidence in federal courts is equally applicable to state courts. State courts are free to adopt the principles espoused in Daubert, and a number of courts have done so.

Additionally, it is polygraph evidence as a truth-testing device and its results which should be inadmissible. This Note does not argue that, in all cases, evidence of polygraphs should be inadmissible. For example, if a defendant were accused of robbing a bank and offers as his alibi that he was taking a polygraph at the time of the robbery, then evidence of the polygraph would be admissible, but not in its truth-telling capacity.

(8.) 509 U.S. 579, 582 (1993).

(9.) See id.

(10.) See id. at 583.

(11.) See Daubert v. Merrell Dow Pharm., Inc., 727 F. Supp. 570, 576 (S.D. Cal. 1989).

(12.) See Daubert v. Merrell Dow Pharm., Inc., 951 F.2d 1128, 1131 (9th Cir. 1991).

(13.) 293 F. 1013 (D.C. Cir. 1923).

(14.) Daubert, 509 U.S. at 584 (quoting Frye).

(15.) See id. at 588. Rule 702 provides, "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." FED. R. EVID. 702.

(16.) See Daubert, 509 U.S. at 589.

(17.) Id. at 590.

(18.) Id. at 591.

(19.) Id. at 591-92.

(20.) See id. at 593. The Court listed these factors under the term "general observations." In his dissent, Chief Justice Rehnquist criticized the majority's general observations as being too "vague and abstract," especially since these observations would probably "carry great weight with lower federal courts." Id. at 598 (Rehnquist, C.J. dissenting).

(21.) See Daubert, 509 U.S. at 593-94.

(22.) See supra note 15 and accompanying text.

(23.) Id. at 595.

(24.) Rule 403 addresses the concept of relevancy and states, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403.

(25.) See id.

(26.) Maiorana v. National Gypsum Co., 827 F. Supp. 1014, 1033 (S.D.N.Y. 1993).

(27.) See Timothy B. Henseler, A Critical Look at the Admissibility of Polygraph Evidence in the Wake of Daubert: The Lie Detector Fails the Test, 46 CATH. U. L. REV. 1247, 1251-52 (1997).

(28.) See id. at 1252.

(29.) See id. at 1252 n.33.

(30.) See Meyers v. Arcudi, 947 F. Supp. 581, 586 (D. Conn. 1996) (explaining the theory behind polygraph examinations).

(31.) See Henseler, supra note 27, at 1252. For example, there are no specific heart rates, pulse rates, or galvanic skin responses that indicate deception based solely on the fact that these reactions reached a certain level.

(32.) See id. at 1254. There exists a fourth polygraph exam known as the concealed knowledge (CK) technique. This technique is based on the evaluation of physiological responses to questions that only the actual perpetrator of a crime would know. Due to problems involving the ability of law enforcement officials to obtain the perpetrator's knowledge and to ascertain the extent of a perpetrator's memory regarding the alleged activity, the CK technique is rarely used in criminal investigations in the United States. See Charles Robert Honts & Bruce D. Quick, The Polygraph in 1995: Progress in Science and the Law, 71 N.D. L. REV. 987, 992 (1995). As a result, the CK technique will not be considered in this Note, but suffice it to say that if leading polygraph experts have problems with the technique and if law enforcement officials are hesitant to use the technique as an investigative tool, then the CK technique would not withstand a Daubert test.

(33.) See Honts & Quick, supra note 32, at 989.

(34.) See United States v. Galbreth, 908 F. Supp. 877, 884 (D.N.M. 1995) (discussing the role of the pre-test interview during polygraph examinations).

(35.) See James R. McCall, Misconceptions and Reevaluation--Polygraph Admissibility After Rock and Daubert, 1996 U. ILL. L. REV. 363,410 n.333.

(36.) See infra notes 65-66 and accompanying text.

(37.) See McCall, supra note 35, at 411 & n.339.

(38.) See Galbreth, 908 F. Supp. at 885 (discussing Raskin's opinion that DLC technique more accurately eliminates factors, other than deception, which may cause varied physiological responses and consequently diminish the accuracy of the exam).

(39.) See United States v. Gilliard, 133 F. 3d 809, 814 (11th Cir. 1998) (discussing the scientific rationale behind various polygraph techniques).

(40.) Id. at 811 (affirming district court's exclusion of the polygraph examination).

(41.) See Henseler, supra note 27, at 1257 n.82. Most scoring systems use final totals of positive six and negative six as indicators of truth and deception respectively. Scores between positive six and negative six indicate uncertainty. See id.

(42.) The numerical scoring procedure may be supplemented by a "global" scoring procedure. Under this procedure, the examiner bases his numerical scores not only on the subject's physiological responses to each question, but also on the subject's behavior throughout the test and on observations during the pre-test interview. This type of scoring can be analogized to a "physician's diagnosis of an illness." McCall, supra note 35, at 412.

(43.) See Galbreth, 908 F. Supp. at 888 (discussing the various scoring procedures of polygraph examinations). In Galbreth, the scoring program used by the computer was designed by Dr. Raskin. See id. This fact may make computer scoring as subjective as human scoring in that the program's analysis reflects those features which Dr. Raskin believes to be important. Even if another examiner were to run the program on a different exam, the program would analyze the exam under Dr. Raskin's interpretations of polygraph charts. Such a program does not make polygraph scoring consistent by creating an objective scoring system, but rather, it makes scoring consistent by creating only one scorer, Dr. Raskin through his computer program.

(44.) See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, at 593-95 (1993) (discussing the non-exhaustive checklist of factors that could assist federal judges in assessing the admissibility of scientific evidence under Rule 702).

(45.) Cf. Lisa Davis, A Doubtful Device; Polygraph Machine, HEALTH, Oct. 1992, at 92 (attributing to Leonard Saxe, the lead analyst of a study of polygraphs done for Congress, the opinion that "the polygraph simply shows whether a question makes someone anxious, and there are a thousand and one reasons that explain why a person hooked up to a polygraph might become anxious.").

(46.) See United States v. Cordoba, 991 F. Supp. 1199, 1202 (C.D. Cal. 1998) (noting that the parties, as well as leading polygraph expert, Dr, Raskin, agree that there is no known physiological response that is unique to lying). But cf. United States v. Crumby, 895 F. Supp. 1354, 1359 (D. Ariz. 1995) (accepting that polygraphy has been tested by the scientific method based on the testimony of leading polygraph expert, Dr. Raskin). It seems the Crumby court confused Daubert's observation, testing the scientific method behind the evidence, with its own factor (analyzing the testing of polygraph examinations). If Crumby were correct, it would make the potential error rate factor, discussed in Daubert, repetitive. The Crumby court appears to have accepted Dr. Raskin's testimony that polygraphy could be tested, but the court did not disclose how such testing could be accomplished.

(47.) In arguing that the polygraph is based on questionable assumptions, a district court judge wrote:
 Lie detection is based on four assumptions: (I) that individuals cannot
 control their physiologies and behavior, (2) that specific emotions can be
 triggered by specific stimuli, (3) that there are specific relationships
 between the different aspects of behavior (such as what people say, how
 they behave, and how they respond physiologically), and (4) that there are
 no differences among people, so that most people will respond similarly.


United States v. Piccinonna, 885 F.2d 1529, 1538 (11th Cir. 1989) (Johnson, J., dissenting).

(48.) McCall, supra note 35, at 405 n.297.

(49.) See Meyers v. Arcudi, 947 F. Supp. 581,587 (D. Conn. 1996) (stating that difficulty of determining `ground truth,' in these studies "creates a fundamental flaw in the scientific validity of these studies").

(50.) If a polygraph were able to detect such a lie, the polygraph would be a machine capable of detecting "objective truth." Throughout this author's research, there was no evidence of a polygraph exam that could detect "objective truth." Indeed, if such a device were to exist, crime solving could be reduced to administering polygraphs to all plausible suspects until a perpetrator was "identified." Therefore, this Note is written under the premise that if the polygraph is valid, it is valid to the point it can determine "subjective truth." If a subject believes he did not commit the crime, the polygraph should reflect that he is being truthful.

(51.) Cf. Richard H. Underwood, Truth Verifiers: From the Hot Iron to the Lie Detector, 84 KY. L.J. 597, 630 (1995) ("At best, the device can claim only to detect symptoms of emotions consistent with the examinee's belief in the truth of his or her answers.").

(52.) "Of course, there would be no way for an examiner to determine how the subject is appraising the stimuli in his mind." Piccinonna, 885 F.2d at 1539 (Johnson, J., dissenting).

(53.) One such "pain inflicting" countermeasure is placing a tack inside of one's shoe, and stepping on it when answering certain questions. See McCall, supra note 35, at 415 n.364 (discussing use of this method to distort reactions to control questions in CQ testing).

(54.) See Henseler, supra note 27, at 1253 n.42 (acknowledging that certain countermeasures can be successful in defeating a polygraph examination).

(55.) See United States v. Dominguez, 902 F. Supp. 737, 739 (S.D. Tex. 1995) (noting that different value systems can reduce the accuracy of polygraph exams). Because most polygraphs involve control questions designed to make the subject lie and to show some anxiety while lying, the examiner makes a subjective decision as to what control questions she should ask. If the subject places different weight on those control questions, the examiner's scoring techniques could be inaccurate. See id.

(56.) See Henseler, supra note 27, at 1282 n.238 (discussing factors in addition to countermeasures that may affect polygraph results).

(57.) See United States v. Pitner, 969 F. Supp. 1246, 1250 (W.D. Wash. 1997) (acknowledging that polygraphy has been subject to peer review and numerous publications); United States v. Crumby, 895 F. Supp. 1354, 1359 (D. Adz. 1995) (holding second Daubert factor to be satisfied). But see United States v. Duque, 176 F.R.D. 691, 694 (N.D. Ga. 1998) (holding that the CQ technique had not been subjected to adequate peer review).

(58.) Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993).

(59.) Error rates may be subdivided into two types of errors: false positives and false negatives. False positives are those errors which indicate that a subject is lying when she is actually being truthful. False negatives are those errors which indicate a subject is being truthful when she is actually being deceptive. Studies indicate that false positives are more prevalent than false negatives. See United States v. Galbreth, 908 F. Supp. 877, 885 (D.N.M. 1995) (noting that false positives are twice as prevalent as false negatives). See also Crumby, 895 F. Supp. at 1360 (same).

(60.) Neither would it be appropriate to use the results of trials to determine the accuracy of polygraphs, whether or not the results of the polygraph were admitted into evidence. In those cases where a jury and a polygraph reached different results, one could not be sure which entity was incorrect, and in cases where the jury and the polygraph agreed, one could not be sure that both entities were incorrect.

(61.) See Allison Kornet, The Truth About Lying; Has Lying Got a Bad Rap?, PSYCHOLOGY TODAY, May 15, 1997, at 52, 56 ("[T]he best-controlled research suggests that lie detectors err at a rate anywhere from 25 to 75 percent."). See also Yigal Bander, United States v. Posado: The Fifth Circuit Applies Daubert to Polygraph Evidence, 57 LA. L. REV. 691, 705 (1997) ("It would be more accurate to say that estimates of polygraph reliability range from below fifty percent to over ninety percent and that none of these estimates are free from methodological difficulties.").

(62.) For example, a polygraph expert with "impressive credentials" testified that studies exist which indicate the accuracy of polygraph results to be 98%. However, he admitted that such studies have "significant weaknesses" because studies are not comparable to a "real situation where the individual faces imprisonment, [or] being fined, ..." and that it was "`certainly possible' that the rate of error of these studies is underestimated." Pitner, 969 F. Supp. at 1250-51 (discussing scientific validity of polygraph exams).

(63.) See United States v. Cordoba, 991 F. Supp. 1199, 1203 (C.D. Cal. 1998) ("Eleven studies of polygraph evidence showed a wide range of accuracy rates--from 48% to 90%--with an average rate of 71%. Two critics have maintained that the CQ [technique] is little better than `the toss of a coin.'").

(64.) See OFFICE OF TECH. ASSESSMENT, CONGRESS OF THE UNITED STATES, SCIENTIFIC VALIDITY OF POLYGRAPH TESTING, 4-5 (1983) (concluding that "no overall measure [of validity] ... can be established based on available scientific evidence" and that polygraphs "detect[] deception better than chance, but with error rates that could be considered significant").

(65.) See McCall, supra note 35, at 411 (discussing R-I technique and its lack of acceptance among scientific community).

(66.) See Honts & Quick, supra note 32, at 990.

(67.) See id.

(68.) See id. at 996 (noting that false readings in the field are primarily false positives, while false readings in the lab are evenly split between false positives and false negatives). However, error rates may be misleading because of the inability to determine "ground truth" in field research. It should also be noted that almost all of the errors in field testing for the CQ technique were false positives, a problem that could be very harmful for a defendant on trial. See id. But see Henseler, supra note 27, at 1288 n.268 (noting that 75% of psychophysiologists did not believe that the CQ technique was at least 85% accurate).

(69.) See Honts & Quick, supra note 32, at 1002 (citing two studies that discuss the error rates of the DLC technique). See also United States v. Galbreth, 908 F. Supp. 877, 892 (D.N.M. 1995) (finding that "[a]lthough, the directed lie technique is relatively new, preliminary studies have indicated that it has at least as high an accuracy rates as the ... control question technique and in fact appears to reduce the number of false-positive errors").

(70.) See United States v. Pitner, 969 F. Supp. 1246, 1251 (W.D. Wash. 1997) (acknowledging that test results can be influenced by the behavior of the examiner).

(71.) John C. Canham, Jr., Military Rule of Evidence 707: A Bright Line Rule that Needs to be Dimmed, 140 MIL. L. REV. 65, 69 (1993).

(72.) See United States v. Redschlag, 971 F. Supp. 1371, 1375 (D. Colo. 1997) (noting that questions that do not assist the trier of fact because of lack of legal relevance or ambiguities are not admissible).

(73.) See McCall, supra note 35, at 414.

(74.) Henseler, supra note 27, at 1254.

(75.) See United States v. Galbreth, 908 F. Supp. 877, 884 (D.N.M. 1995) (reporting of Dr. Raskin's testimony during the Daubert hearing).

(76.) These include the American Polygraph Association, the Department of Defense, and the Federal Bureau of Investigations, among others. See United States v. Cordoba, 991 F. Supp. 1199, 1205 (C.D. Cal. 1998).

(77.) See McCall, supra note 35, at 415. Additionally, those organizations which do suggest procedures have no regulatory authority over the administration of the tests. Often the procedures they describe are vague or in conflict with those promulgated by another group. Id. at 1206.

(78.) See Cordoba, 991 F. Supp. at 1208 (noting lack of uniform standards weighs in favor of inadmissibility).

(79.) Henseler, supra note 27, at 1289 n.279.

(80.) See United States v. Pitner, 969 F. Supp. 1246, 1251 (W.D. Wash. 1997) (stating that testifying polygraph expert admitted relevant community includes more than just polygraph examiners). See also McCall, supra note 35, at 410 (noting that "[o]nly scientists specializing in physiological psychology have the capabilities required").

(81.) See Pitner, 969 F. Supp. at 1251 (noting that American Medical Association does not accept polygraph results as reliable).

(82.) Cordoba, 991 F. Supp. at 1204.

(83.) See Honts and Quick, supra note 32, at 1016 (discussing a survey conducted at the University of North Dakota).

(84.) See Henseler, supra note 27, at 1256.

(85.) See, e.g., United States v. Posado, 57 F.3d 428, 431-33 (5th Cir. 1995); United States v. Galbreth, 908 F. Supp. 877, 879 (D.N.M. 1995).

(86.) See United States v. Piccinonna, 885 F.2d 1529, 1532 (11th Cir. 1989) (holding that a per se ban on polygraph evidence is no longer appropriate under the Federal Rules of Evidence).

(87.) See, e.g., United States v. Gilliard, 133 F.3d 809, 815 (11th Cir. 1998); United States v. Duque, 176 F.R.D. 691,694 (N.D. Ga. 1998); United States v. Pitner, 969 F. Supp. 1246, 1252 (W.D. Wash. 1997); Meyers v. Arcudi, 947 F. Supp. 581,588 (D. Conn. 1996).

(88.) See, e.g., Galbreth, 908 F. Supp. at 895; United States v. Crumby, 895 F. Supp. 1354, 1361 (D. Ariz. 1995).

(89.) See United States v. Sherlin, 67 E3d 1208, 1217 (6th Cir. 1995) ("Rule 403 offers a basis for excluding polygraph results independent of Daubert.").

(90.) See supra note 24.

(91.) This is a reference to a criminal action or a civil cause of action where the prosecution or plaintiff needs to prove a number of factors in order to establish the crime, breach, tort, etc. A defendant's ability to attack just one of these factors may be enough to require a verdict in his favor.

(92.) Crumby, 895 F. Supp. at 1361.

(93.) United States v. Duque, 176 F.R.D. 691,695 (N.D. Ga. 1998).

(94.) See United States v. Cordoba, 991 F. Supp. 1199, 1208 (C.D. Cal. 1998) (noting that regardless of the accuracy of polygraph exams, the lay view of polygraphs as an ultimate indicator of truth creates the potential for prejudice in cases of inaccurate results).

(95.) United States v. Alexander, 526 F.2d 161,168 (8th Cir. 1975).

(96.) See United States v. Call, 129 F.3d 1402, 1406 (10th Cir. 1997) (noting the "danger that the jury may overvalue polygraph results as an indicator of truthfulness because of the polygraph's scientific nature"). See also Henseler, supra note 27, at 1294 n.304 (allowing expert testimony concerning credibility "`would be an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment'") (citing Commonwealth v. Seese, 517 A.2d 920, 922 (Pa. 1986) (quoting Commonwealth v. O'Searo, 352 A.2d 30, 32 (Pa. 1976))).

(97.) See Henseler, supra note 27, at 1292 & n.293 (discussing study that showed jurors would change their verdicts when presented with unfavorable polygraph results). But see McCall, supra note 35, at 376-77 & n.83 (citing certain studies which suggest that juries do not give a disproportionate amount of weight to polygraph evidence).

(98.) See Duque, 176 F.R.D. at 695 (noting that jurors are capable of evaluating indicia of credibility, including demeanor, without the distraction of an expert). See also Pitner, 969 F. Supp. 1246, 1253 (W.D. Wash. 1997) (noting that if credibility were the appropriate subject for expert testimony, then all witnesses would come with expert testimony of their credibility); Bander, supra note 61, at 708 (noting that credibility is for the jury to determine, which in effect makes the jury the proper lie-detector).

(99.) M.R.E. 707. See also infra note 123 and accompanying text.

(100.) See United States v. Scheffer, 118 S. Ct. 1261, 1265 n.5 (1998) (discussing the factors behind the adoption of Military Rule of Evidence 707).

(101.) See United States v. Gilliard, 133 E3d 809, 816 (11th Cir. 1998) (suggesting that the focus of a criminal trial needs to be on the ultimate issue and not the validity of scientific theories). See also Duque, 176 F.R.D. at 695 ("Such a procedure would make time-consuming `battles of experts' a standard feature of criminal trials.").

(102.) See Pitner, 969 F. Supp. at 1253 (supposing that spending an unusually long amount of time on an issue would "confuse the jury as to the importance of the issue and would unduly delay trial").

(103.) Discussions of how much probative value to assign to polygraph examinations will not be undertaken here because it would effectively be a repetition of those arguments discussed under the Daubert factors. For these purposes, this Note will assume that the results of polygraph examinations have a high probative value.

(104.) Two commentators recently attacked all evidentiary objections against polygraph evidence and concluded that admissibility should come down to Rule 702. However, only in passing did they mention that "the trial judge might be justified in excluding the testimony under ... [Rule] 403." Edward J. Imwinkelried and James R. McCall, Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations, 32 WAKE FOREST L. REV. 1045, 1079 (1997).

(105.) See United States v. Smith, No. 96-5385, 1998 U.S. App. LEXIS 5772, at *7 (6th Cir. Mar. 19, 1998) ("This circuit follows Federal Rule of Evidence 403 in determining whether to admit polygraph evidence and weighs its probative value against its potential for prejudice.").

(106.) See, e.g., Pitner, 969 F. Supp. at 1252 (holding evidence inadmissible under Rule 403 even if admissible under Rule 702); United States v. Dominguez, 902 F. Supp. 737, 739 (S.D. Tex. 1995) (same); United States v. Lech, 895 F. Supp. 582, 585 (S.D.N.Y. 1995) (same). But see, e.g., United States v. Padilla, 908 F. Supp. 923, 928 (S.D. Fla. 1995) (holding polygraph evidence admissible despite the absence of "substantial probative value" under Rule 403); United States v. Galbreth, 908 F. Supp. 877, 895 (D.N.M. 1995) (holding polygraph evidence admissible under both Rules 702 and 403); United States v. Crumby, 895 F. Supp. 1354, 1361 (D. Adz. 1995) (same).

(107.) But see United States v. Call, 129 F.3d 1402, 1407 (10th Cir. 1997) (Ebel, J., dissenting) (arguing that a district court abuses its discretion by holding polygraph evidence inadmissible under Rule 403 without conducting a Daubert heating), cert. denied, 118 S. Ct. 2064 (1998).

(108.) 118 S. Ct. 512 (1997).

(109.) See id. at 516.

(110.) See id.

(111.) See Joiner v. General Elec. Co., 864 F. Supp. 1310, 1326 (N.D. Ga. 1994) (granting summary judgment motion for defendants).

(112.) See Joiner, 118 S. Ct. at 516 (noting court of appeals' reliance on the Federal Rules of Evidence's preference for admissibility).

(113.) See id.

(114.) See id. Although this Note argues that admitting certain scientific evidence may usurp the role of the jury, the court of appeals argued the converse: that when a judge exercises too great of a gate keeping role, she is usurping the role of the jury.

(115.) See id. at 517.

(116.) See id.

(117.) See id. at 518.

(118.) Id. at 519 (quoting language from Daubert).

(119.) Id.

(120.) Cf. Target Market Publ'g, Inc. v. ADVO, Inc., 136 F.3d 1139, 1143 (7th Cir. 1998) (alluding to Joiner as precedent for excluding expert testimony because "it did not rise above `subjective belief or unsupported speculation'"); Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997) (noting that judges are "free to determine as a threshold question whether an expert is in fact predicating her conclusions on the scientific theory, procedure, or principle on which she purports to rely"); Belofsky v. General Elec., Co., 1 F. Supp.2d 504, 507 (D.V.I. 1998) (holding that gap between data upon which expert relied and opinion he drew amounted to an "analytical chasm").

(121.) Graham v. Playtex Prods., Inc., 993 F. Supp. 127, 132 (N.D.N.Y. 1998).

(122.) 118 S. Ct. 1261 (1998). The Court's opinion was written by Justice Thomas and contained Parts I, II-A, II-B, II-C, and II-D. With respect to Parts I, II-A, and II-D, the opinion represented a majority of the Court with Justice Stevens as the lone-dissenter. With respect to Parts II-B and II-C, Justice Thomas's opinion represented a plurality of the Court with three other Justices joining him. In regards to Parts II-B and II-C, Justice Kennedy also wrote a plurality opinion when he gained the concurrence of three other Justices. Justice Stevens dissented to the entire decision and wrote his own opinion.

(123.) See id. at 1263.

(124.) See id. at 1264.

(125.) See id.

(126.) See id.

(127.) Id. (citation omitted).

(128.) Id. at 1264-65.

(129.) Id.

(130.) Id. at 1265 (citation omitted). Justice Thomas was also concerned with the use of countermeasures regardless of whether the reliability of polygraph tests could be established. Id.

(131.) See id. at 1266. Despite the fact that this endorsement of the per se ban was in the majority section of the opinion, Justice Kennedy wrote in his concurring opinion, "I doubt, though, that the rule of per se exclusion is wise...." Id. at 1269. Justice Kennedy concurred because, while he did not fully agree with the logic of Rule 707, he agreed that such a rule was not unconstitutionally arbitrary or disproportionate. Id.

(132.) In footnote seven, Justice Thomas touches upon this issue by noting that before Daubert, there had been no Sixth Amendment obstacles to the per se ban on polygraph evidence, and nothing in Daubert suggested that a per se rule of exclusion would violate the Constitution. See id. at 1265-66.

(133.) Id. at 1266.

(134.) See id. at 1267.

(135.) See id. In response, Justice Kennedy writes that Justice Thomas's opinion is overreaching when it argues that the role of the jury to determine credibility is diminished by the admission of polygraph evidence. See id. at 1269. Justice Kennedy notes that this is especially not true under the facts of Scheffer because specific members of the military court system would be considering the expert testimony as opposed to lay jurors. See id. at 1270.

(136.) See id. at 1267.

(137.) See, e.g., Castillo v. Johnson, 141 F. 3d 218, 222 (5th Cir. 1998) (noting that although Scheffer involved a challenge to a military rule of evidence, the Supreme Court's disposition of federal constitutional claims in Scheffer is equally applicable in non military context); Wong v. Money, 142 F.3d 313, 325 (6th Cir. 1998) (applying Scheffer in a non-military context).

(138.) As Commander-in-Chief, it is the President of the United States who has the authority to enact the rules of evidence for the military. See id. at 1264 n.2 (citing 10 U.S.C. [sections] 836(a)).

(139.) Rule 608, entitled "Evidence of Character and Conduct of Witness," provides as follows:
 (a) Opinion and reputation evidence of character. The credibility of a
 witness may be attacked or supported by evidence in the form of opinion or
 reputation, but subject to these limitations: (1) the evidence may refer
 only to character for truthfulness or untruthfulness, and (2) evidence of
 truthful character is admissible only after the character of the witness
 for truthfulness has been attacked by opinion or reputation evidence or
 otherwise.

 (b) Specific instances of conduct. Specific instances of the conduct of a
 witness, for the purpose of attacking or supporting the witness'
 credibility ... may not be proved by extrinsic evidence. They may, however,
 in the discretion of the court, if probative of truthfulness or
 untruthfulness, be inquired into on cross-examination of the witness (1)
 concerning the witness' character for truthfulness or untruthfulness, or
 (2) concerning the character for truthfulness or untruthfulness of another
 witness as to which character the Witness being cross-examined has
 testified....


FED. R. EVID. 608.

(140.) See United States v. Pitner, 969 F. Supp. 1246, 1253 (W.D. Wash. 1997) (holding polygraph evidence inadmissible under Rule 608); United States v. Piccinonna, 729 F. Supp. 1336, 1338 (S.D. Fla. 1990) ("This court holds that a single polygraph testing session represents an inadequate foundation upon which an expert can base an opinion on the defendant's `character' for truthfulness or untruthfulness."). But see United States v. Padilla, 908 F. Supp. 923, 927 (S.D. Fla. 1995) (disagreeing with Piccinonna and allowing polygraph examiners to make determinations of character under Rule 608); United States v. Crumby, 895 F. Supp. 1354, 1364 (D. Ariz. 1995) ("The polygrapher's opinion, which is based on scientific principles, will be far more informed than a lay opinion which generally states: `I have known the Defendant for three years, and I know him to be truthful.'").

(141.) See Pitner, 969 F. Supp. at 1253 (noting that polygraph evidence would be inadmissible under Rule 608(b) because it is extrinsic evidence). But see Crumby, 895 F. Supp. at 1364 (admitting that polygraph results would constitute extrinsic evidence but would still be admissible under impeachment by the contradiction exception to Rule 608(b)).

(142.) See Imwinkelried & McCall, supra note 104, at 1079 (suggesting that Rule 608 is not applicable to polygraph examiner's testimony concerning subject's truthfulness). The two commentators agree that an examiner could not testify to the accused's general character for truthfulness because the "polygraphist would not satisfy the normal foundational requirements for reputation and opinion testimony." Id. at 1078 (internal footnotes omitted).

(143.) See John A. Carr, The Admissibility of Polygraph Evidence in Court-Martial Proceedings: Does the Constitution Mandate the Gatekeeper?, 43 A.F. L. REV. 1, 9 (1997) (noting various jurisdictions allow polygraph results into evidence upon stipulation by parties).

(144.) See Chatwin v. Davis County, 936 F. Supp. 832, 837 n.9 (D. Utah 1996) ("It is difficult to see how a stipulation enhances the reliability of the evidence.").

(145.) See Carr, supra note 143, at 10 (discussing reasons for admissibility upon stipulation).

(146.) McCall, supra note 35, at 373 n.60 (citing People v. Baynes, 430 N.E.2d 1070, 1077 (Ill. 1981)).

(147.) Underwood, supra note 51, at 633 (quoting Michael Ross, Effect of Hill's Taking of Lie Test Uncertain, L.A. TIMES, Oct. 14, 1991, at A1).

David Gallai, J.D. candidate, Georgetown University Law Center, expected 1999.
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