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Polygraph evidence: winds of change?

Society and the law treat polygraph evidence differently. Government agencies--including the U.S. Department of Defense, the Central Intelligence Agency, and local police departments--routinely rely on polygraph testing of employees.(1)

Surveys indicate that approximately 20 percent of all businesses in the United States use polygraphs. About 50 percent of commercial banks and over 60 percent of retail operations use them in some way.(2)

Until recently, however, a litigant who passed a polygraph examination had no hope of informing the jury of that fact.(3)

Some judicial hostility toward polygraph evidence reflects skepticism about its validity. Uneasiness is also generated by displacing the jury's traditional role as evaluator of credibility, unduly impressing the jury with the aura of scientific infallibility, and risking a general admissibility that would lead to trial-by-polygraph in every case. The volume of litigation and the relatively small supply of competent polygraph experts make the last consideration especially worrisome.

Winds of change, however, have begun to blow. The polygraph technique has advanced since a crude version was rejected in 1923 in Frye v. United States.(4) The Frye yardstick itself has given way to the Daubert multi-factor test for admissibility of scientific evidence.(5) Some courts have begun to depart from per se prohibitions on introducing polygraph evidence.(6)

What could turn out to be a watershed case was recently argued before the U.S. Supreme Court. In United States v. Scheffer a criminal defendant claims a constitutional right to introduce a favorable polygraph examination to rebut an attack on his credibility.(7) The Court of Appeals for the Armed Forces agreed with this claim, and the Supreme Court granted the government's petition for certiorari.

Scheffer was an airman who agreed to work as an informant for the Air Force Office of Special Investigations (OSI). His assignment was to gather evidence against two civilians, Fink and Davis, who were suspected of drug dealing.

When Scheffer's urine test on April 7, 1992, showed positive for methamphetamines, he claimed that he remembered nothing after departing Davis's house on April 6 until he awoke in his car the next morning. Involuntary ingestion would be a defense against the charge of drug use.

OSI asked Scheffer to submit to a polygraph test, and he agreed. The examiner asked him if he had ever used drugs while in the Air Force and whether he had eve' lied to OSI. Scheffer answered "no" to these questions, and the examiner concluded that no deception was indicated.

At trial, Scheffer testified that he had not knowingly taken methamphetamines, and the prosecution characterized his testimony as lies. Scheffer then tried to lay a foundation for introducing the polygraph examination, but the trial judge denied the offer of proof on the authority of Military Rule of Evidence 707.

This rule, which has no counterpart in the Federal Rules of Evidence, provides that "notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence."(8)

The Court of Appeals for the Armed Forces held that, as applied to Scheffer's case, the rule violated his constitutional right to put on a defense. This right, variously grounded on due process or on the Sixth Amendment, now has the backing of an array of Supreme Court precedents.(9)

Rock v. Arkansas, for example, reversed the murder conviction of a woman who offered to testify in her own defense after undergoing hypnosis to enhance her recollection of a shooting.(10) The Arkansas courts had upheld denial of her right to testify based on a per se exclusion of hypnotically enhanced testimony, but the Supreme Court held that exclusion of her testimony could not survive constitutional attack in the absence of a case-specific finding that the evidence would be untrustworthy.

If polygraph testing is as reliable as hypnotically enhanced testimony, Rock cuts strongly against Military Rule 707's per se approach. However, of the five justices in the Rock majority, Blackmun, Brennan, Marshall, and Powell are no longer on the Court while dissenters Rehnquist, O'Connor, and Scalia remain. Rock recognized that "the right to to present relevant testimony is not without limitation" and that rules excluding relevant exculpatory evidence "may not be arbitrary or disproportionate to the purposes they are designed to serve."

So the question in Scheffer is whether Rule 707's per se ban is "arbitrary or disproportionate" to the legitimate policy reasons for excluding polygraph evidence. Since recent literature reviews show polygraph error rates of about 5 percent in "deception indicated" cases and about 10 percent to 15 percent in "no deception indicated" cases, unreliability alone probably will not justify exclusion.(12)

The government is in an especially awkward position on the reliability question in Scheffer, because the defendant took the exam at the government's request and from a government examiner.

On the other hand, if the purpose of Rule 707 is to prevent juror prejudice or to protect the system from universal polygraph testing, the "arbitrary or disproportionate" inquiry becomes problematic.(13) Some empirical evidence indicates juries are not swept away by polygraph evidence,(14) but the theme of jurors awed by science runs deep in case law. A general rule of admissibility would have negative immediate consequences, as civil and criminal litigants would scramble for experts for the inevitable polygraph war at trial.

The Court of Appeals for the Armed Forces tried to limit its ruling to the facts of the case. Scheffer was not just a witness but the criminal defendant himself, and the government had directly attacked the credibility of his trial testimony.(15) These limits, however, are not very impressive.

A defendant armed with a "no deception indicated" polygraph result will have every reason to testify. If the government does not challenge the defendant's testimony, conviction seems a remote possibility. If the government does challenge the testimony, then the military court's logic would lead to admission of the polygraph result.

Likewise, suppose the defendant's sole alibi witness passed a polygraph test and the government attacked the witness's credibility? Or suppose the state's star witness failed a polygraph test? If the polygraph technique passes the Daubert test, it is hard to explain why third-party witness cases should come out differently than a defendant-witness case.

The most likely result is a rerun of Rock v. Arkansas: a ruling striking down the per se exclusion of exculpatory polygraph evidence in favor of a case-by-case approach. If experience with admitting polygraph evidence turns out to be positive, the justices might hope that legislatures would gradually accommodate polygraph examinations with the Rules of Evidence. If experience turns out to be negative, little will have been lost by case-by-case adjudication.

My view is that a case-by-case approach might provide the interregnum the system needs. Ultimately, polygraph evidence will find its place in courts. Too many serious people rely on it outside the courtroom for the technique to be mere humbug.

Admissibility, however, might take many forms, such as admitting polygraph evidence only in nonjury proceedings, or admitting it only when there are no disinterested witnesses or there is no objective proof beyond a partisan swearing contest. Moreover, because the technique depends heavily on the quality of the examiner, general acceptance of polygraph evidence must arrive gradually to allow the demand for competent examiners to generate an increase in supply. A case-by-case approach to the Scheffer problem might buy the system the time it needs.

Donald A. Dripps is a professor at the University of Illinois College of Law.

Notes

(1.) See U.S. DEP'T OF DEFENSE (DOD), THE ACCURACY AND UTILITY OF POLYGRAPH TESTING 11 (1984); Robert T. Meesig & Frank Horvath, Changes in Usage, Practices and Policies in Pre-Employment Polygraph Testing in Law Enforcement Agencies in the United States: 1964-1991, 22 POLYGRAPH 1 (1993).

(2.) Joseph P. Buckley, The Use of Polygraph in the Workplace: The American Polygraph Association's View, 17 POLYGRAPH 80, 80 (1988)

(3.) See, e.g., Brown v. Darcy, 783 F. 2d 1389, 1394-95 (9th Cir. 1986) ("We have found no United States Court of Appeals decision which has affirmed the admission of unstipulated polygraph evidence under the Federal Rules of Evidence or concluded that the refusal to admit polygraph evidence at trial was an abuse of discretion.") (citations & footnotes omitted).

(4.) 293 F. 1013 (D.C. Cir. 1923).

(5.) Dauvert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). See generally James R. McCall, Misconceptions and Reevaluation--Polygraph Admissibility After Rock and Daubert, 1996 ILL. L. REV. 363.

(6.) See United States v. Posado, 57 F. 3d 428 (5th Cir. 1995) (polygraph result not subject to per se exclusion at suppression hearing that turned on credibility); United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989) (en banc) (polygraph evidence may be admitted to corroborate testimony of witness whose credibility is first attacked); United States v. Crumby, 895 R. Supp. 1354 (D. Ariz. 1995) (Daubert analysis supporting admissibility).

(7.) 44 M.J. 442 (C.A.A.E. 1996), cert. granted, U.S.L.W. 3766 (U.S. May 19,1997) (No. 96-1133).

(8.) Id. at 444.

(9.) See Olden v. Kentucky, 488 U.S. 227 (1988) (confrontation clause right to prove rape complainant's relationship with third party for purpose of showing motive to fabricate); Crane v. Kentucky, 476 U.S. 683 (1986) (Sixth Amendment or due process right to introduce evidence tending to show that confession was coerced and therefore untrustworthy); Davis v. Alaska, 415 U.S. 308 (1974) (confrontation clause right to prove juvenile delinquency record of state's star witness).

(10.) 483 U.S. 44 (1987).

(11.) Id. at 55-56.

(12.) See DOD, supra note 1, at 58-63; Norman Ansley, The Validity and Reliability of Polygraph Decisions in Real Cases, 19 POLYGRAPH 1389 (1990).

(13.) For a general analysis, see Donald A. Dripps, Relevant but Prejudicial Exculpatory Evidence: Rationality Versus Jury Trial and the Right to Put on a Defense, 69 S. CAL. L. REV. 1389 (1996).

(14.) See Edward J. Imwinkelried, The Standard for Admitting Scientific Evidence: A Critique from the Perspective of Juror Psychology, 28 VILL. L. REV. 554, 556-70 (1983).

(15.) See Scheffer, 44 M.J. 442, 445.

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Author:Dripps, Donald A.
Publication:Trial
Date:Dec 1, 1997
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