No. 96-1133 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 UNITED STATES OF AMERICA, PETITIONER v. EDWARD G. SCHEFFER ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES BRIEF FOR THE UNITED STATES WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General DAVID C. FREDERICK Assistant to the Solicitor General JOEL M. GERSHOWITZ Attorney Department of Justice Washington, D.C. 20530-0001 (202)514-2217 MICHAEL J. BRESLIN Lt. Colonel, USAF Appellate Government Division Bolling Air Force Base Washington, D.C. 20332 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether Military Rule of Evidence 707, which pro- vides that evidence of a polygraph examination is not admissible in court-martial proceedings, is an uncon- stitutional abridgment of military defendants' right to present a defense. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 1 Rule and constitutional provisions involved . . . . 2 Statement . . . . 2 Summary of argument . . . . 12 Argument: I. The per se exclusion of polygraph evidence in a criminal case is valid under the Sixth Amend- ment . . . . 14 A. Restrictions on the admissibility of evidence are constitutional if they are reasonable and serve legitimate interests . . . . 14 B. A per se rule excluding polygraph results serves legitimate interests in promoting fairness and reliable fact-finding . . . . 17 1. Legitimate doubt exists in the scientific community over the reliability of poly- graphs . . . . 18 2. The admission of polygraph evidence intrudes on functions performed by the trier of fact . . . . 26 3. A per se prohibition on polygraph evid- ence serves the legitimate interest of avoiding unnecessary collateral litiga- tion . . . . 29 4. Widespread judicial support for a prohi- bition on polygraph admissibility further supports the reasonableness of a per se rule . . . . 31 C. The court of appeals erred in its analysis of the per se bar on polygraph evidence . . . . 34 II. The Sixth Amendment does not compel admissibility of polygraph results in courts- martial . . . . 39 (III) ---------------------------------------- Page Break ---------------------------------------- IV Table of Contents-Continued: Page A. procedural rules adopted for military courts-martial are entitled to deference by this Court . . . . 39 B. Respondent's interest in introducing polygraph evidence does not outweigh the reasons for establishing a per se rule prohibiting such evidence . . . . 41 Conclusion . . . . 44 TABLE OF AUTHORITIES Cases: Anderson v. United States, 78$ F.2d 517 (8th Cir. 1986) . . . . 33 Barefoot v. Estelle, 463 U.S.880 (1983) . . . . 27 Bashor v. Risley, 730 F.2d 1228 (9th Cir.), cert. demied.469 U S .838 (B84) . . . . 37 Bennett v. City of Grand Prairie, 833 F.2d 400 (5th Cir.. 1989) . . . . 32-33 Brady v. Maryland, 373 U.S. 83 (1963 ) . . . . 11 Brown v. Darcy, 733 F.2d 1389 (9th Cir. 1986) . . . . 23, 27, 30, 33, 37 Burns v. Wilson, 346 U.S. 137(19153) . . . . 40 California v. Trombetta, 467 U.S. 479 (1984) . . . . 14 Chambers Y. Mississippi, 410 U.S. 284 (1973) . . . . 9 Commonwealth v. Mendes, 547 N.E. 2d 35 (Mass. 1989) . . . . 30-31, 32 Commonwealth v. Sneeringer, 668 A.2d 1167(Pa. Super. 1996) . . . . 31 Conner v. State, 632 So.2d 1239 (Miss. 1993), cert. denied. 513 U.S. 927 (1994) . . . . 31 Connor v. Auger, 595 F.2d 407 (8th Cir,), cert. denied. 444 U. S. 851(1979) . . . . 37 Contee v. United States, 667 A.2d 103(D.C. 1995). . . . 31 Crane v. Kentucky, 476 U. S. 683 (1986) . . . . 14, 15, 38 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued Page Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) . . . . 32-33, 36 ,37, 38 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) . . . . 32 Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . 42 Haakanson v. State, 960 F.2d 1030 (Alaska Ct. App. 1988) . . . . 32 Healy v. Healy, 397 N.W.2d 71 (N.D. 1986) . . . . 32 Jackson v. Garrison, 677 F.2d 371 (4th Cir.), cert. denied, 454 U.S. 1036 (1981) . . . . 37 Jaffee v. Redmond, 116 S. Ct. 1923 (1996) . . . . 16 Johnson v. State, 495 A.2d (Md. 1985), cert. denied, 474 U.S. 1093 (1986) . . . . 32 Jones v. United States, 463 U.S. 354 (1983) . . . . 25 Kansas v. Hendricks, Nos. 95-1469 & 95-9075 (June 23, 1997) . . . . 25 Loving v. United States, 116 S. Ct. 1737 (1996) . . . . 41 Michelson v. United States, 335 U.S. 469 (1948) . . . . 27 Michigan v. Lucas, 500 U.S. 145 (1991) . . . . 15, 16 Middendorf v. Henry, 425 U.S. 25 (1976) . . . . 41, 42 Montana v. Egelhoff 116 S. Ct. 2013 (1996) . . . . 10, 11, 12, 16, 17, 18 Morton v. Commonwealth, 817 S.W.2d 218 (Ky. 1991) . . . . 31 O'Callahun v. Parker, 395 U.S. 258 (1969) . . . . 40 OdeU, In re, 672 A.2d 457 (R.I. 1996) . . . . 31 Old Chief v. United States, 117 S. Ct. 644 (1997) . . . . 27 Parker v. Levy, 417 U.S. 733 (1974) . . . . 41 People v. Anderson, 637 P.2d 354 (Colo. 1981) . . . . 24, 32 People v. Angelo, 618 N.Y.S.2d 77 (App. Div. 1994), aff'd, 666 N.E.2d 1333 (N.Y. 1996) . . . . 31 People v. Barbara, 255 N.W.2d 171 (Mich. 1977) . . . . 30 People v. Monigan, 390 N.E.2d 562 (111. App. Ct. 1979) . . . . 23, 24 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Page People v. Price, 821 P.2d 610 (Cal. 1991), cert. denied, 506 U.S. 851 (1992) . . . . 37 People v. Sanchez 662 N.E.2d 1199 (111. 1996) . . . . 31 People v. Williams, 333 N.W.2d 577 (Mich. Ct. App. 1983) . . . . 38 Perkins v. State, 902 S.W.2d 88 (Tex. Ct. App. 1995) . . . . 28 Petition of Grirnm, 635 A.2d 456 (N.H. 1993) . . . . 31 Pulakis v. State, 476 P.2d 474 (Alaska 1970) . . . . 32 Quirin, .Ex parte, 317 U.S. 1 (1942) . . . . 40 Reid v. Covert, 354 U.S. 1 (1957) . . . . 39 Robinson v. Commomwealth, 341 S.E 2d 159 (Va. 1988) . . . . 32 Rock v. Arkansas, 483 U.S. 44 (1987) . . . . 9, 10, 13, 15, Rosen v. United States, 245 U.S. 467 (1918) . . . . 37 Rostker v. Goldberg, 45.3 U.S. 57 (1981) . . . . 31 Schlesinger v. Councilnzan, 420 U.S. 738 (1975) . . . . 38 Solorio v. United States, 463 U.S. 435 (1987) . . . . 28 State v. Anderson, 379 N.W.2d 70 (Minn. 1985), cert. denied, 476 U.S. 1141 (1986) . . . . 32 State v. Beachman , 616 P.2d 337 (Mont. 19/30) . . . . 28 State v. Beard, 461 S.E.2d 486 (W. Va. 1995) . . . . 31 State v. Biddle, 599 S.W.2d 182 (Me. 1980) . . . . 32 State v. Campbell, 904 S.W.2d 608 (Term. Crim, App. 1995) . . . . 31 State v. Catanese, 368 So. 2d 975 (La. 1979) . . . . 32 State v. Conner, 241 N.W.2d 447 (Iowa 1976) . . . . 38 State v. Copeland, 300 S.E.2d 63 (S.C. 1982), cert. denied, 460 U.S. 1103 (1983) . . . . 32 State v. Dean, 307 N.W.2d 628 (Wis. 1981) . . . . 30, 32 State v. Dornbusch, 384 N.W.2d 682 (S.D. 1986) . . . . 32 State v. Frazier, 252 S.E.2d 39 (W. Va. 1979) . . . . 24 State v. French, 403 A.2d 424 (N.H.), cert. denied, 444 U.S (1979) . . . . 32 ---------------------------------------- Page Break ---------------------------------------- VII Cases-Continued: Page State v. Grier, 300 S.E.2d 351 (N.C. 1983) . . . . 30 State v. Harnish, 560 A.2d 5 (Me. 1989) . . . . 32 State v. Hawkins, 604 A.2d 489 (Md. 1992) . . . . 31 State v. Okumura, 894 P.2d 80 (Haw. 1995) . . . . 32 State v. Patterson, 651 A.2d 362 (Me. 1994) . . . . 31 State v. Porter, No. SC 15363, 1997 WL 265202 (Corm. May 20, 1997) . . . . 28, 29, 31 State v. Staat, 811 P.2d 1261 (Mont. 1991) . . . . 31 State v. Steinman, 239 N.W.2d 495 (Neb. 1976) . . . . 32 State v. Walker, 493 N.W.2d 329 (Neb. 1992) . . . . 31 Strickland v. Washington, 466 U.S. 668 (1984) . . . . 14 Taylor v. Illinois, 484 U.S. 400 (1988) . . . . 15 Tennard v. State, 802 S.W.2d 678 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259 (1991) . . . . 31-32 United Stutes v. Alexander, 526 F.2d 161 (8th Cir. 1975) . . . . 23, 24, 26, 37 United States v. A&S Council Oil Co., 947 F.2d 1128 (4th Cir. 1991) . . . . 32 United States v. Barnard, 490 F.2d 907 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974) . . . . 29 United States v. Cordoba, 104 F.3d 225 (9th Cir. 1997) . . . . 33 United States v. Cronic, 466 U.S. 648 (1984) . . . . 15 United States v. Gipson, 24 M.J. 246 (C.M.A. 1987) . . . . 4, 5 United States v. Glover, 596 F.2d 857 (9th Cir.), cert. denied, 444 U.S. 857 (1979) . . . . 37 United States v. Gordon, 688 F.2d 42 (8th Cir. 1982) . . . . 37 United States v. Kwong, 69 F.3d 663 (2d Cir. 1995), cert. denied, 116 S. Ct. 1343 (1996) . . . . 33 United States v. Lech, 895 F. Supp. 582 (S. D.N.Y. 1995) . . . . 37 United States v. Miller, 874 F.2d 1255 (9th Cir. 1989) . . . . 33 ---------------------------------------- Page Break ---------------------------------------- VIII Cases-Continued: Page United States v. Murray, 784 F.2d 188 (6th Cir. 1986 . . . . 33 United States v. Piccinonna, 885 F.2d 1529 (llth Cir. 1989) . . . . 33 United States v. Posado, 57 F.3d 428 (5th Cir. 1995) . . . . 33 United States v. Sherlin, 67 F.3d 1208 (6th Cir. 1995), cert. denied, 116 S. Ct. 795 (1996) . . . . 33 United States v. Soundingsides, 820 F.2d 1232 (l0th Cir. 1987) . . . . 33 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) . . . . 42 United States v. Urquidez, 356 F. Supp. 1363 (C.D. Cal. 1973) . . . . 30 United States v. Williams: 39 M.J. 555 (A.C.M.R. 1994), decision set aside, 43 M.J. 348 (C.M.A. 1995), cert. denied, 116 S. Ct. 925 (1996) . . . . 38 43 M.J. 348 (C.M.A. 1995), cert. denied, 116 S. Ct. 925 (1996) . . . . 11 United States v. Williams, 95 F.3d 723 (8th Cir. 1996), cert. denied, 117 S. Ct. 750 (1997) . . . . 33 United States v. Wilson, 361 F. Supp. 510 (D. Md. 1973) . . . . 36 Washington v. Texas, 388 U.S. 14 (1967) . . . . 9, 14, 15, 28, 38 Weiss v. United States, 510 U.S. 163 (1994) . . . . 14, 40, 41, 42,43 Wood v. Bartholomew, 116 S. Ct. 7 (1995) . . . . 11 ---------------------------------------- Page Break ---------------------------------------- IX Constitution, statutes, regulation and rules: Page U.S. Const.: Art. I, 58, Cl. 14 . . . . 39 Art. II, 2 . . . . 17 Art. II , 2, Cl. 1 . . . . 42 Amend. V (Due Process Clause) . . . . 14, 39, 40 Amend. VI . . . . passim Employee Polygraph Protection Act of 1988, 29 U.S.C. 2001 et seq . . . . 22 Uniform Code of Military Justice, 10 U.S.C. 801 et seq.: Art. 36, 10 U.S.C. 836 . . . . 17 Art. 36(a), 10 U.S.C. 836(a) . . . . 5, 42 Art. 86, 10 U.S.C. 886 . . . . 2 Art. l12a, 10 U.S.C. 912a . . . . 2 Art. 123a, 10 U.S.C. 923a . . . . 2 Exec. Order No. 12,767, 3 C.F.R. 334 (1991 comp..) . . . . 5 Fed. R. Evid.: Rule 403 . . . . 15, 16 Rule 404(b) . . . . 15, 16 Rule 501 . . . . 15, 16 Rule 608 . . . . 28 Rule 702 . . . . 16 Rule 704 . . . . 16 Rule 704(b) . . . . 29 Rule 802 . . . . 16, 18 Military R. Evid.: Rule 608 . . . . 11 Rule 702 . . . . 5, 33, 36 Rule 707 . . . . passim Miscellaneous: S. Abrams, The Complete Polygraph Handbook (1989) . . . . 18, 25 D. Carroll, "How accurate is polygraph lie detec- tion?" in The Polygraph Test (A. Gale cd., 1988) . . . . 29 ---------------------------------------- Page Break ---------------------------------------- X Miscellaneous-Continued Page 1 D. Faigman et al., Modern Scientific Evidence (1997) . . . . 4, 20, 21, 25, 27 FBI, Manual of Investigative Operations and Guide- lines (1987) . . . . 34 P. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum. L. Rev. 1197 (1980) . . . . 27 1 P. Giannelli & E. Inwinkelried, Scientific Evidence (2d cd., 1993) . . . . 4, 20, 21, 24 C. Honts & B. Quick, The Polygraph in 1995: Pro- gress in Science and the Law, 71 N.D. L. Rev. 987 (1995) . . . . 4 H.R. Rep. No. 198, 89th Cong., 1st Sess.(1965) . . . . 22 W. Iacono & D. Lykken, "The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests in 1 Modern Scientific Evidence (D. Faigman et al. eds., 1997) . . . . 4, 20, 21, 25, 27 V. Kalashnikov, Beat the Box: The Insiders Guide to Outwitting the Lie Detector (1986) . . . . 25 B. KIeinmuntz & J. Szuko, On the Fallibility of Lie Detection, 17 Law & Soc'y Rev. 85 (1982) . . . . 21 D. Lyken, The Lie Detector and the Law, 8 Crim, Def. 19 (1981) . . . . 21 J. Matte, Forensic Psychophysiology Using The Polygraph (1996) . . . . 18, 25 C. Murphy & J. Murphy, "Polygraph Admissibility," in 10 National Center for Prosecution of Child Abuse Update (1997) . . . . 24, 34 D. Raskin, Methodological issues in estimating polg- graph accuracy in field applications, 19 Canad. J. Behav. Sci./Rev. Canad. Sci. Comp, 389 (1987) . . . . 27 D. Raskin et al., "The Scientific Status of Research on Polygraph Techniques: The Case for Poly- graph Tests," in 1 Modern Scientific Evidence (D. Faigman et al. eds., 1997) . . . . 20 ---------------------------------------- Page Break ---------------------------------------- XI Miscellaneous-Continued: Page U.S. Congress, Office of Technology Assessment, Scientific Validity of Polygraph Testing: A Research Review and Evaluation-A Technical Memorandum, (OTA-TM-H-15, NOV. 1983) . . . . 19, 20, 21 U.S. Department of Defense, The Accuracy and Utility of Polygraph Testing (1984) . . . . 22 III(a) U.S. Department of Justice, United States Attorneys' Manual (1988) . . . . 18 The Use of Polygraphs and Similar Devices by Federal Agencies: Hearings on H.R. 795 Before the House Comm. on Government Operations, 94th Cong., 2d Sess. (1976) . . . . 22 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-1133 UNITED STATES OF AMERICA, PETITIONER v. EDWARD G. SCHEFFER ON WRIT OF CERTIORARI TO THE UNITED STATES' COURT OF APPEALS FOR THE ARMED FORCES BRIEF FOR THE UNITED STATES OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a- 24a) is reported at 44 M.J. 442. The opinion of the Air Force Court of Criminal Appeals (Pet. App. 25a-53a) is reported at 41 M.J. 683. JURISDICTION The judgment of the United States Court of Ap- peals for the Armed Forces was entered on September 18, 1996. On December 10, 1996, Chief Justice Rehn- quist extended the time within which to file a petition for a writ of certiorari to and including January 16, 1997. The petition was filed on that date and was (1) ---------------------------------------- Page Break ---------------------------------------- 2 granted on May 19, 1997. The jurisdiction of this Court rests on 28 U.S.C. 1259(3). RULE AND CONSTITUTIONAL PROVISIONS' INVOLVED Military Rule of Evidence 707 provides: (a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence. (b) Nothing in this section is intended to ex- clude from evidence statements made during a polygraph examination which are otherwise admissible. The Fifth and Sixth Amendments to the United States Constitution are reprinted at Pet. App. 77a- 78a. STATEMENT Following trial by a general court-martial, respon- dent was convicted of uttering 17 insufficient-funds checks, using methamphetamine, failing to go to his appointed place of duty, and wrongfully absenting himself from the base for 13 days, in violation of Articles 123a, 112a, and 86 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 923a, 912a, and 886, He was sentenced to 30 months' confinement, to forfeiture of all pay and allowances, and to a bad conduct discharge. The Air Force Court of Criminal Appeals affirmed, with the proviso that respondent should receive credit for one day's forfeitures. Pet. ---------------------------------------- Page Break ---------------------------------------- 3 App. 25a-53a. The Court of Appeals for the Armed Forces reversed and remanded. Id. at 1a-24a. 1. a. This case involves the constitutional validity of a rule excluding from court-martial proceedings in the armed forces any evidence of a polygraph exami- nation. A polygraph examination is intended to pro- duce an assessment of credibility it is based on an examiner's subjective interpretation of physiological responses that are controlled by the subject's autono- mous nervous system. The theory behind polygraph testing is that deception causes physiological reae- tions that are involuntary and that such reactions may be measured and interpreted, While individual tests vary, polygraph examina- tions generally follow a common format. After a pre- liminary interview with the subject, the examiner asks a number of questions while measuring the subject's relative blood pressure (obtained from an inflated cuff on the upper arm) and other indications of blood flow, his "galvanic skin response" (e.g., pal- mar sweating), and his respiration (obtained from sen- sors placed on the subject's chest or abdomen). The polygraph instrument records physiological re- sponses on a chart, and the examiner manually marks when a response is uttered. The questions asked in most tests ordinarily fall into three broad categories: direct questions concerning the matter under inves- tigation, irrelevant or neutral questions, and more general (so-called "control") questions concerning whether the subject has possibly engaged in other wrongful acts similar to the one under inquiry. The examiner poses the control questions in such a way as to elicit anxiety and a possibly deceptive response, in order to see a benchmark of the subject's physio- logical reactions when exhibiting concern about ---------------------------------------- Page Break ---------------------------------------- 4 lying. There are no standardized questions in a polygraph examination; the examiner devises the questions for the individual subject and may refine them after the preliminary interview. Each question is worded to elicit a "yes" or "no" answer. The test is typically limited to ten questions, because " [t]he restriction of blood flow in the arm produces ischemic pain after several minutes." W. Iacono & D. Lykken, "The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests," in 1 Modern Scientific Evidence 14-3.1.1, at 583 (D. Faigman et al. eds., 1997). The examiner forms an opinion with respect to the subject's truthfulness by comparing the subject's physiological reactions to each set of questions. See generally 1 P. Giannelli & E. Imwinkelried, Scientific Evidence 8-2(B), at 219-222 (2d ed. 1993); C. Honts & B. Quick, The Polygraph in 1995: Progress in Science and the Law, 71 N.D.L. Rev. 987, 989-993 (1995). If the responses do not elicit a significant enough variation in response, the examiner can adjust the polygraph instrument so that the recordings during the examination are more pronounced. The subject is usually required to be measured answering each set of ten questions (with the questions asked in varying orders) three different times. The polygrapher may base his inference of deception by comparing physiological responses (as recorded in peaks and valleys on the chart) to relevant and control ques- tions. See generally Gianelli & Imwinkelried, supra, at 218. b. In United States v. Gipson, 24 M.J. 246 (1987), the Court of Military Appeals (now the Court of Ap- peals for the Armed Forces) concluded that polygraph techniques had reached a sufficient degree of reliabil- ---------------------------------------- Page Break ---------------------------------------- 5 ity that evidence of a polygraph examination should not be routinely excluded from court-martial proceed- ings under Military Rule of Evidence 702.] The court noted that " [i]f anything is clear, it is that the battle over polygraph reliability will continue to rage," but it concluded that "until the balance of opinion shifts decisively in one direction or the other, the latest dev- elopments * * * should be marshaled at the trial level." 24 M.J. at 253. Accordingly, the court held that a serviceman who testifies at his court-martial trial is entitled to lay a foundation showing the scien- tific basis for polygraph results consistent with his exculpatory testimony. Id. at 252-253. On June 27,1991, "[b]y the authority vested in [him] as President by the Constitution of the United States and by Chapter 47 of Title 10 of the United States Code [i.e., the UCMJ], " the President responded to Gipson by promulgating Military Rule of Evidence 707.2 See Exec. Order No. 12,767, 3 C.F.R. 334, 339- 340 (1991 comp.). The drafters' commentary that ac- ___________________(footnotes) 1 Military Rule of Evidence 702, like its counterpart in the Federal Rules of Evidence, provides that " [i]f scientific, tech- nical, 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." 2 Article 36(a) of the UCMJ, 10 U.S.C. 836(a), provides that " [p]retrial, trial, and post-trial procedures, including modes of proof * * * may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." ---------------------------------------- Page Break ---------------------------------------- 6 companies the rule explained its adoption by ref- erence to several policies: There is a real danger that court members will be misled by polygraph evidence that "is likely to be shrouded with an aura of near-infallibility." United States v. Alexander, 526 F.2d 161, 168-169 (8th Cir. 1975). * * * There is also a danger of confusion of the issues, especially when conflicting polygraph evidence diverts the [court- martial] members' attention from a determination of guilt or innocence to a judgment of the validity and limitations of the polygraphs. * * * Poly- graph evidence also can result in a substantial waste of time when the collateral issues regard- ing the reliability of the particular test and qualifications of the specific polygraph examiner must be litigated in every case. Polygraph evi- dence places a burden on the administration of justice that outweighs the probative value of the evidence. The reliability of polygraph evidence has not been sufficiently established and its use at trial impinges upon the integrity of the judicial system. Pet. App. 82a-83a. Those considerations, the drafters stated, warrant "a bright-line rule that polygraph evidence is not admissible by any party to a court- martial." Id. at 83a. 2. On March 27, 1992, respondent, an airman stationed at March Air Force Base, California, opened a checking account with the Security Pacific Bank with a $277 deposit. He made no arrangements for his pay to be deposited into the account, and he withdrew $200 on the same day the account was opened. On March 31, 1992, respondent telephoned the bank and ---------------------------------------- Page Break ---------------------------------------- 7 stated that he had lost his ATM card and the tem- porary checks that the bank had issued for the ac- count. He was apparently told that the account would be closed for security reasons. After that telephone call, between April 1 and May 3, respondent wrote 17 checks on the account, totalling approximately $3,300 in checks drawn on insufficient funds. See Pet. App. 25a; 3 Trial Rec. 237-245,249, In late March 1992, as he was beginning the Secu- rity Pacific scheme, respondent volunteered to assist the Air Force Office of Special Investigations (0SI) with drug investigations, and informed OSI that he had information on two civilians who were dealing in significant quantities of drugs. Pet. App. 2a, 26a. On April 7, 1992, one of the OSI agents supervising re- spondent requested that respondent submit to a urine test. Respondent agreed, but he stated that he could not provide a urine specimen then, because he uri- nated only once a day. He submitted to a urinalysis on the following day. On May 14, 1992, OSI agents learned that respondent's urine had tested positive for methamphetamine. Id. at 26a-27a. On April 10, 1992, two days after providing a urine sample, respondent agreed to take a polygraph admin- istered by an OSI examiner. According to the exam- iner, respondent's polygraph charts "indicated no de- ception" when respondent denied that he had used drugs since joining the Air Force. Pet. App. 2a-3ay 26a-27a. Later that month, on April 30, 1992, respon- dent unaccountably failed to appear for work and could not be found on the base. Respondent was not heard from again until May 13, 1992, when an Iowa State Patrolman telephoned the base with news that respondent had been arrested in that State following a routine traffic stop; upon learning that respondent ---------------------------------------- Page Break ---------------------------------------- 3 was AWOL, the patrolman held respondent for return to the base. See 3 Trial Rec. 258-259,265-267. At his trial, respondent advised the court that he intended to testify in his defense, and that he wished to rely on "the results of the exculpatory polygraph" to corroborate "an innocent ingestion defense" to the drug charges. 2 Trial Rec. 42, 43-44. Respondent argued that Rule 707 "is unconstitutional if it prohib- its an accused from introducing relevant and helpful exculpatory evidence: and he argued that he should be permitted to lay a foundation "to show that in this particular case * * * the polygraph results are relevant and helpful." Id. at 44. The military judge noted that "[f]or evidence to be helpful, the testimony of the polygrapher would have to be in an area in which the factfinder himself needs help in making a decision." 2 Trial Rec. 46. In his view, the President may, through the Rules of Evi- dence, determine that credibility is not an area in which a fact finder needs help, and the polygraph is not a process that has sufficient scientific acceptability to be relevant. Ibid. The military judge also noted that "[t]he fact finder might give * * * too much weight" to polygraph testimony, and that arguments about such testimony could take "an inordinate amount of time and expense. * * * (Given those concerns, I don't believe that the constitution prohibits the President from appropriately ruling that polygraph evidence will not be admitted in a court-martial." Ibid. Respondent later testified that he did not recall "knowingly" ingesting methamphetamine. He was convicted. Pet. App. 3a-4a. ---------------------------------------- Page Break ---------------------------------------- 9 3. The Air Force Court of Criminal Appeals, sit- ting en bane, rejected respondent's contention that the exclusion of the polygraph evidence deprived him of a fair trial. Pet. App. 25a-53a. After reviewing this Court's decisions in Washington v. Texas, 388 U.S. 14 (1967), Chamber v. Mississippi, 410 U.S. 284 (1973), and Rock v. Arkansas, 483 U.S. 44 (1987), see Pet. App. 32a-35a, the court concluded that the Constitu- tion forbids evidentiary rules that "arbitrarily limit the accused's ability to present reliable evidence," "arbitrarily limit admission [of evidence] by the de- fense to a greater degree than by the prosecution," or "arbitrarily infringe on the right of the accused to testify on his own behalf." Id. at 40a. The court noted that Rule 707 is "equally applicable to both the prosecution and the defense" and does "not infringe on the right of the accused to testify on his own behalf." Pet. App. 43a. It also observed that Rule 707 could not be viewed as an "arbitrary" limitation on reliable evidence, because "[t]he President's decision to prohibit polygraph evidence is not based on whim or impulse, but rather on sound reasoning." Pet. App. 40a. The court explained that there remain "valid concerns" about polygraph examinations and that: The President is rightly concerned that courts- martial could degenerate into a battle of poly- graph examinations and experts that would im- pose a burden on the administration of military justice that would outweigh the value of the evidence. Id. at 41a. The court concluded " [w]hile it might be arbitrary for the President to promulgate a rule" barring evidence that is widely accepted by courts as ---------------------------------------- Page Break ---------------------------------------- 10 reliable, "such as fingerprint evidence; (id. at 43a), the President acted within his authority in barring polygraph evidence, which routinely is ruled inadm- issible by the civilian courts (id. at 42a-43a). Judge Pearson, joined by Judge Schreier, dissented in part. Pet. App. 49a-53a. He believed that properly conducted polygraph examinations may provide "vital" evidence in a case in which the defendant's credibility "becomes the whole ball game," Id. at 51a. 4. By a three to two vote, the United States Court of Appeals for the Armed Forces reversed. The court agreed with respondent's claim that Rule 707 "vio- lates his Sixth Amendment right to present a defense because it compelled the military judge to exclude relevant, material, and favorable evidence offered by" respondent. Pet. App. 4a. Assuming that the Presi- dent properly promulgated Rule 707 pursuant to the UCMJ, see Pet. App. 7a, the court concluded that, under Rock v. Arkansas , supra, the President's "leg- itimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case." Pet. App. 8a (quoting Rock, 483 U.S. at 61). The court-acknowledged that Rock "con- cerned exclusion of a defendant's testimony and this case concerns exclusion of evidence supporting the truthfulness of a defendant's testimony," but it could "perceive no significant constitutional difference between the two." Pet, App. 9a. Finally, the court noted that in Montana v. Egel- hoff, 116 S. Ct. 2013 (1996), this Court upheld a state "statute excluding evidence of voluntary intoxication when a defendant's state of mind is at issue." Pet. App. 13a. The court observed, however, that Egelhoff was a "fragmented" decision that is best read as "founded on the power of the state to define crimes ---------------------------------------- Page Break ---------------------------------------- 11 and defenses." Id. at 14a. The court also found Egel- hoff inapposite because Rule 707 does not address a fact to be proved, but instead "bars otherwise admissi- ble and relevant evidence based on the mode of proof by categorically excluding polygraph evidence. While the plurality in Egelhoff questions whether the distinction between the fact to be proved and the method of proving it makes a difference, 116 S. Ct. at 2017 n.1, only four justices joined in that observa- tion." Pet. App. 15a. 3 Judges Sullivan and Crawford filed separate dissents. Pet. App. 16a-24a. Judge Sullivan's dissent was based on his concurring opinion in United States v. Williams, 43 M.J. 348 (C.M.A. 1995), cert. denied, 116 S. Ct. 925 (1996), a case in which the court of appeals had declined to address the constitutional validity of Rule 707, because the accused did not testify. Pet. App. 67a-68a. Writing separately in Wil- liams, Judge Sullivan concluded that polygraph evi- dence is inadmissible under Military Rule of Evidence 608, which restricts what evidence may be offered in support of a witness's "character for * * * truth- fulness." Id. at 75a. Judge Sullivan believed, moreo- ver, that such evidence "infringes on the jury's role ___________________(footnotes) 3 The court also noted that in Wood v. Bartholomew, 116 S. Ct. 7 (1995) (per curiam), this Court summarily reversed the Ninth Circuit's determination that a state prosecutor violated his duties under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the results of certain polygraph examina- tions. Pet. App. 12a-13a. The court observed that Bartholo- mew involved "prosecution witnesses, not the accused," and it added that while this Court "noted that polygraph evidence was inadmissible under [state] law, * * * [t]he constitu- tionality of the state law was not before the Court and * * * was not addressed." Id. at 12a-13a. ---------------------------------------- Page Break ---------------------------------------- 12 in determining credibility," because "[o]ur adversary system is built on the premise that the jury reviews the testimony and determines which version of events it believes." Id. at 75a-76a (internal quotation marks omitted). In his view, Rule 707 "properly" addresses those concerns. Id. at 76a. Judge Crawford argued that a defendant's right to present relevant evidence " is not * * * absolute', " and must yield to policy considerations such as those that supported the President's decision to adopt Rule 707, Pet, App. 17a, 21a, She also took issue with the court's characterization of Egelhoff noting that the four-Justice plurality and the four dissenting Jus- tices agreed "that relevant, reliable evidence may be excluded if there is a valid policy reason for doing so." Id. at 21a, Finally, Judge Crawford argued that the court's ruling would have a seriously adverse impact on the military's " worldwide Western of justice." Ibid. SUMMARY OF ARGUMENT I. Military Rule of Evidence 707, which estab- lishes a per se bar on the admissibility of polygraph evidence in courts-martial, is valid under the Sixth Amendment. A polygraph is an instrument that re- cords physiological responses to questions and pro- duces data that an examiner interprets to form a sub- jective opinion about the subject's credibility at the time. It is based on the theory that deception results in essentially uncontrollable responses by the sub- ject's autonomous nervous system, and that those re- sponses can be interpreted as evidence of honesty or deception. A criminal defendant does not have an unqualified right under the Sixth Amendment to present any evidence that is arguably relevant to a fact at issue. ---------------------------------------- Page Break ---------------------------------------- 13 Rather, trial proceedings are governed by rules of evidence that are themselves designed to produce a reliable result and to further valid policy interests. Many evidentiary rules restrict or preclude admis- sion of relevant and probative evidence, and such rules are constitutional so long as they are not "arbitrary or disproportionate to the purposes they are designed to serve." Rock v. Arkanasas, 483 U.S. 44, 56 (1987). A per se rule prohibiting admission of polygraph evidence serves legitimate interests. First, for de- cades scientists have engaged in an arguably un- resolvable debate over whether polygraph examina- tions are reliable. Significant doubts persist about whether polygraphs are verifiable and replicable. That scientific disagreement makes it particularly appropriate for courts to defer to the appropriate rule- making authority's determination to bar polygraph evidence. The rule is further supported by the intru- sion of polygraph evidence on functions traditionally performed by the trier of fact: assessing credibility and deciding the ultimate issue of guilt or innocence based on all of the evidence adduced at trial. A per se rule against polygraph evidence also avoids unneces- sary collateral litigation over the evidentiary value of a polygraph result in any given situation. Finally, the existence of widespread judicial support for exclu- sion of such evidence further justifies the President's reasonable judgment in promulgating the per se prohibition on admission of polygraph evidence. II. Not only does the decision by the court below conflict with general principles of Sixth Amendment jurisprudence, it is particularly unwarranted in the military context, where deference to the political branches of government is at its apex. It is well set- tled that the constitutional requirements for trials in ---------------------------------------- Page Break ---------------------------------------- 14 civilian life do not necessarily apply with equal force to courts-martial and that procedural restrictions may be appropriate in the military context in view of the specialized nature of military life and the mili- tary's primary function to defend the Nation. Thus, a service member challenging the rule has an "extra- ordinarily weighty" burden in "overcom[ing] the bal- ance struck by Congress." Weiss v. United States, 510 U.S. 163, 177-178 (1994). In light of the substan- tial reasons for prohibiting admissibility of polygraph evidence, respondent cannot meet that burden. ARGUMENT I. THE PER SE EXCLUSION OF POLYGRAPH EVIDENCE IN A CRIMINAL CASE iS VALID UNDER THE SIXTH AMENDMENT A. Restrictions On The Admissibility Of Evi- dence Are Constitutional if They Are Rea- sonable And Serve Legitimate Interests Although the Constitution guarantees a fair trial through the Due Process Clause, the Sixth Amend- ment defines "the basic elements of a fair trial," including the right to confrontation, the right to compel testimony, and the right to counsel. Strick- land v. Washington, 466 U.S. 668, 684-685 (1984). Those Sixth Amendment rights "guarantee[] crimi- nal defendants a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986) [quoting California v. Trombetta, 467 U.S. 479, 485 (1984)), so that the trier of fact "may decide where the truth lies," Washington v. Texas, 388 U.S. 14, 19 [1967). As this Court has observed, the right to present a complete defense would be an "empty one" if the government were permitted to exclude competent, reliable evidence that is central to the defendant's ---------------------------------------- Page Break ---------------------------------------- 15 claim of innocence, for the exclusion of such exculpa- tory evidence "deprives a defendant of the basic right to have the prosecutor's case encounter and `survive the crucible of meaningful adversarial testing.'" Crane, 476 U.S. at 690-691 (quoting United States v. Cronic, 466 U.S. 648,656 (1984)) Nevertheless, a defendant's right to present rele- vant evidence in his defense is not absolute. The Court has consistently recognized that " [n]umerous state procedural and evidentiary rules control the presentation of evidence." Rock v. Arkansas, 483 U.S. 44, 55 n.11 (1987); Washington v. Texas, 388 U.S. at 23 n.21. Under those rules, a defendant "does not have an unfettered right to offer testimony that is incompetent, privilege], or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400,410 (1988). Testimony may be excluded "through the application of evidentiary rules that themselves serve the interests of fairness and reliability-even if the defendant would prefer to see the evidence admitted." Crane, 476 U.S. at 690; see Michigan v. Lucas, 500 U.S. 145, 151 (1991) (upholding exclusion of defense evidence for failure to comply with notice requirement). The principle that a defendant may not require a court to admit all relevant, exculpatory evidence runs throughout the standard rules of evidence. For exam- ple, the Federal Rules of Evidence authorize a court to exclude relevant evidence whose probative value is substantially outweighed by the danger of unfair prejudice (Fed. R. Evid. 403); evidence of other crimes or wrongs to prove character in order to show action in conformity there with (Fed. R. Evid. 404(b)); evi- dence covered by a rule of privilege (Fed. R. Evid. 501); expert testimony that is insufficiently reliable ---------------------------------------- Page Break ---------------------------------------- 16 to amount to "scientific knowledge" that would "as- sist the trier of fact" (Fed, R. Evid. 702); expert testi- mony on an ultimate issue of a criminal defendant's mental state constituting an element of the crime (Fed. R. Evid. 704); and hearsay evidence unless cov- ered by an exception (Fed. R. Evid. 802). Although some of those rules permit case-by-case adjudication of the admissibility of a particular item of evidence, others operate in a categorical fashion to establish per se rules of exclusion. 4 In reviewing the constitutionality of an evidentiary rule of exclusion, this Court looks to whether the rule is "arbitrary or disproportionate to the purposes [it is] designed to serve"-that is, "whether the interests served by [the] rule justify [its] limitation" on the admission of evidence. Rock, 483 U.S. at 56 Lucas, 500 U.S. at 151 ("Restrictions on a criminal defendant's right to confront adverse witnesses and to present evidence `may not be arbitrary or dispropor- tionate to the purposes they are designed to serve.'") (quoting Rock, 483 U.S. at 56). As the plurality noted in Montana v. Egelhoff, 116 S. Ct. 2013 (1996), in which the Court upheld Montana's prohibition of evidence of voluntary intoxication on the issue of whether the defendant possessed a requisite mental state, "the introduction of relevant evidence can be limited by the State for a `valid' reason." Id. at 2022 (plurality opinion of Scalia, J.); see id. at 2028-2029 ___________________(footnotes) 4 For example, the determination whether evidence should be excluded under Rule 403 is typically made on an individual- ized basis. In contrast, Rule 404(b) is categorical in excluding other act evidence to prove character in order to show action in conformity therewith. See also Jaffea v. Redmond, 116 S. Ct. 1923, 1932 (1996) (rejecting case-by-case balancing test for psychotherapist-patient privilege under Rule 501). ---------------------------------------- Page Break ---------------------------------------- 17 (O'Connor, J., dissenting) (arguing that Montana improperly barred intoxication evidence for the sole purpose of increasing convictions, whereas "[t]he purpose of the familiar evidentiary rules is * * * to vindicate some other goal or value-e.g., to ensure the reliability and competency of evidence"); id. at 2032 (Souter, J., dissenting) ("A State may typically exclude even relevant and exculpatory evidence if it presents a valid justification for doing so."). Rule 707's per se exclusion of polygraph results and the opinion of the polygraph examiner is a proportionate means to serve valid interests, and thus does not abridge the Sixth Amendment. B. A Per Se Rule Excluding Polygraph Results Serves Legitimate Interests In Promoting Fairness And Reliable Fact-Finding As the Commander-in-Chief, the President has the authority to promulgate rules of evidence applicable in courts-martial. U.S. Const. Art. II, 2; 10 U.S.C. 836. Rule 707 evenhandedly bars polygraph evidence whether offered by the prosecution or the defense. The drafters' commentary that accompanied Rule 707 enumerated several factors underlying adoption of the Rule: (1) the scientific controversy over the reliability of polygraph examinations; (2) the danger that the opinion of the polygraph examiner will intrude on the jury's function of assessing credibility; (3) the danger that jurors will accord excessive weight to the expert's testimony (4) the danger that the focus of the trial will shift from the guilt or innocence of the accused to the validity of the polygraph examination and (5) the time-consuming collateral litigation to which the admissibility of polygraph evidence would give rise, with the atten- ---------------------------------------- Page Break ---------------------------------------- 18 dant burden on the administration of military justice. See Pet. App. 82a-83a. In light of these valid, nonarbi- trary factors, the military's rule excluding evidence of the results of polygraph examinations from courts- martial does not violate the Sixth Amendment. 1. Legitimate doubt exists in the scientific community over the reliability of poly graphs An important function of evidentiary rules is the exclusion of certain categories of evidence that are deemed insufficiently reliable, as demonstrated by the hearsay rule, Fed. R. Evid. 802. See Egelhoff, 116 S. Ct. at 2017. One need not take sides in the debate over polygraph testing to recognize that the reliability of such testing is widely questioned by scientists, Congress, and the courts. 5 a. For more than a century, scientists have con- ducted numerous studies in attempts to develop verifi able and replicable proof that a subject's lie produces measurable physiological responses. See generally J. Matte, Forensic Psychophysiology Using The Poly- graph 11-101 (1996) (tracing history of lie detection efforts); S. Abrams, The Complete Polygraph Hand- book 2-8 (1989) (same). Some studies attempt to create laboratory conditions that mimic experiences ___________________(footnotes) 5 In part for that reason, in federal criminal trials, Depart- ment of Justice policy "opposes all attempts by defense counsel to admit polygraph evidence or to have an examiner appointed by the court to conduct a polygraph test * * * [and admon- ishes] [g]overnment attorneys * * * from seeking the admis- sion of favorable examinations which may have been conducted during the investigatory stage" of the case. III(a) U.S. Depart- ment of Justice, United States Attorneys' Manual 9-13.310 (1988) (Department Policy Toward Polygraph Use). ---------------------------------------- Page Break ---------------------------------------- 19 of real subjects; others compare information obtained in real cases to verify findings of deceptiveness. The Office of Technology Assessment (OTA) evaluated all of the available studies in a comprehensive monograph published in 1983. See U.S. Congress, Office of Tech- nology Assessment, Scientific Validity of Polygraph Testing: A Research Review and Evaluation-A Technical Memorandum (OTA-TM-H-15, Nov. 1983) (OTA Study). The OTA Study concluded that "no overall measure of single, simple judgment of poly- graph testing validity can be established based on available scientific evidence": There are two major reasons why an overall measure of validity is not possible. First, the polygraph test is, in reality, a very complex process that is much more than the instrument. Although the instrument is essentially the same for all applications, the types of individuals tested, training of the examiner, purpose of the test, and types of questions asked, among other factors, can differ substantially. A polygraph test requires that the examiner infer deception or truthfulness based on a comparison of the person's physiologi- cal responses to various questions. For example, there are differences between the testing pro- cedures used in criminal investigations and those used in personnel security screening. Second, the research on polygraph validity varies widely in terms of not only results, but also in the quality of research design and methodology. Thus, conclu- sions about scientific validity can be made only in the context of specific applications and even then must be tempered by the limitations of available research evidence. ---------------------------------------- Page Break ---------------------------------------- 20 Id. at 4. In the years since publication of the OTA study, numerous additional studies of polygraphs have been performed. The validity of such studies has sparked considerable debate. The editors of the most recent treatise on scientific evidence observe that "[scientific opinion about the validity of polygraph techniques is extremely polar- ized," and accordingly present the arguments pro and con without attempting to resolve definitively whether polygraph testing provides a valid means of ascertaining the credibility of a subject in the various contexts in which such examinations are adminis- tered. 1 D. Faigman et al., Modern Scientific Evi- dence 14-1.4 at 565 n.* (1997). 6 See also 1 P. Gian- nelli & E. Imwinkelried, Scientific Evidence 8-2(C), at 225 (2d ed. 1993) ("The validity of polygraph testing in criminal investigations remains controversial ."); see also id. at 227 ("A number of authorities have questioned the validity of polygraph testing."). Even strong proponents of polygraph testing only venture to say that " the polygraph is a useful diagnostic tool for assessing truthfulness," while acknowledging that many applications of polygraph tests are "unde- sirable" and "objectionable." D. Raskin et al., "The Scientific Status of Research on Polygraph Tech- niques: The Case for Polygraph Tests," in 1 Faig- man, supra, 14-2.2.3 to 14-2.3, at 581-582. Two crit - ics of the accuracy of polygraphs, however, have ___________________(footnotes) 6 Compare D. Raskin et al., "The Scientific Status of Research on Polygraph Techniques: The Case for Polygraph Tests," 14-2.0, at 665-582, in 1 Modern Scientific Euidence (D. Faigman et al. eds., 1997) with W. Iacono and D. Lykken, "The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests," in ibid., 14-3.0, at 582-618. ---------------------------------------- Page Break ---------------------------------------- 21 maintained that the validity of the control-question testing method of polygraph examinations-the ap- proach preferred by polygraph proponents-"is little better than could be obtained by the toss of a coin." W. Iacono & D. Lykken, "The Scientific Status of Re- search on Polygraph Techniques: The Case Against Polygraph Tests: in 1 Faigman, supra 14-5.3, at 629. That disagreement confirms the continuing va- lidity of the view of the OTA, whose 1983 report concluded that "[o]verall, the cumulative research evidence suggests that when used in criminal inves- tigations, the polygraph test detects deception better than chance, but with error rates that could be considered significant." OTA Study, supra, at 5. 7 ___________________(footnotes) 7 There is no doubt that the polygraph can accurately measure certain physiological responses to accusatory question- ing and that a correlation appears to exist between a fear of detection and a subject's physiological response. Critics argue, however, that these responses have not been shown to be differ- ent from physiological responses caused by other emotions: [T]here is no reason to believe that lying produces distinctive physiological changes that characterize it and only it. . . . [T]here is no set of responses-physiological or otherwise-that humans emit only when lying or that they produce only when telling the truth. . . . No doubt when we tell a lie many of us experience an inner turmoil, but we experience a similar turmoil when we are falsely accused of a crime, when we are anxious about having to defend ourselves against accusations, when we are ques- tioned about sensitive topics-and, for that matter, when we are elated or otherwise emotionally stirred. Giannelli & Imwinkelried, supra, at 216-217 (quoting B. Kleinmuntz & J. Szucko, On the Fallibility of Lie Detection, 17 Law & Soc'y Rev. 85, 87 (1982)). See also D. Lykken, The Lie Detector and the Law, 8 Crim. Def. 19, 21 (1981) ("But people do not all react in the same way when they are lying and, more ---------------------------------------- Page Break ---------------------------------------- 22 b. Congress has reached similar conclusions about the accuracy of polygraphs as a means of detecting deceit. After extensive hearings in 1965, the Commit- tee on Governmental Operations of the House of Representatives concluded: There is no "lie detector." The polygraph ma- chine is not a "lie detector", nor does the operator who interprets the graphs detect "lies." The machine records physical responses which may or may not be connected with an emotional reaction-and that reaction may or may not be related to guilt or innocence. Many, many physical and psychological factors make it pos- sible for an individual to "beat" the polygraph without detection by the machine or its operator. H.R. Rep. No. 198, 89th Cong., 1st Sess. 13 (1965). Following further hearings and study, the same conclusions were reached in 1976. The Use of Poly- graphs and Similar Devices by Federal Agencies: Hearings of H.R. 795 Before the House Comm. on Government Operations, 94th Cong., 2d Sess. (1976). And in 1988, as a result of continuing doubts about the usefulness and accuracy of polygraphs as a means of detecting deceit, Congress restricted the use of polygraphs in employment decisions. See Employee Polygraph Protection Act of 1988, 29 U.S.C. 2001 et seq. ___________________(footnotes) important, any reaction that you might display when answer- ing deceptively you might also display another time, when you are being truthful"); U.S. Department of Defense, The Accu - racy and Utility of Polygraph Testing 3 (1984) (noting limita- tions in research conducted on polygraphs but stating that "the research produces results significantly above chance"). ---------------------------------------- Page Break ---------------------------------------- 23 c. Courts have noted the highly subjective nature of polygraph testing. Because a polygraph examina- tion tests a person's physiological reactions to questions posed at a particular time and place, the test is not replicable. Influences as varied as the emotional state of the subject on the day of the test, the room in which the polygraph is administered, the amount of sleep the subject has had the night before, and the number of cups of coffee the subject has consumed before the test may alter the physiological responses to questions. Thus, a person may produce a different polygraph chart in response to the same questions asked on a different day in a different location. 8 Moreover, the polygrapher conducting the examina- tion injects a high degree of subjectivity into the examination. Although both the American Polygraph Association and the American Association of Police Polygraphists publish standards for the use of poly- graphs, neither organization "has the authority to compel members to comply with them," and "an esti- mated 2,000 other polygraph examiners * * * do not ___________________(footnotes) 8 Courts critical of polygraph testing have also pointed to the multiple variables that may influence the results of a polygraph test, including the physical and mental condition of the subject, the extent of the subject's nervousness, the sub- ject's attitude toward the examiner, the subject's use of alcohol or drugs, distractions in the examination setting, the extent of a guilty subject's subjective belief in his own innocence, the competence and integrity of the examiner, the phrasing of the examiner's questions, and the appropriateness of the control questions. See, e.g., Brown v. Dewey, 783 F.2d 1389, 1396 (9th Cir. 1986); United States v. Alexander, 526 F.2d 161, 165 (8th Cir. 1975); People v. Monigan, 390 N.E.2d 562, 569 (Ill.. App. Ct. 1979). ---------------------------------------- Page Break ---------------------------------------- 24 belong to either society." C. Murphy & J. Murphy, " Polygraph Admissibility," in 10 National Center for Prosecution of Child Abuse Update 1 (1997). Accord ingly, " [d]ue to the subjective nature of the polygraph (it is not uncommon for polygraphers to reach differ- ent conclusions after reviewing the same test re- sults), the potential for abuse by the polygrapher be- ing biased either for or against the suspect ('assisted' polygraph examinations), and the various levels of ex- pertise of the polygraphers, the need for enforceable standards is of paramount importance." Ibid. (foot- notes omitted). See also People v. Monigan, 390 N.E. 2d 562, 569 (Ill. App. Ct. 1979) (subjectivity of inter- preting test results); State v. Frazier, 252 S.E.2d 39, 48-49 (W. Va. 1979) (same); United Slates v. Alexan- der, 526 F'.2d 161, 164 n.6 (8th Cir, 1975) (general lack of training of polygraphers and the absence of ade- quate professional standards and qualifications); People v. Anderson, 637 P.2d 354,360 (Colo. 1981) (en bane) (same). 9 There is also evidence that a highly motivated subject (such as a defendant) may employ countermea- sures to obscure an accurate reading of physiological ___________________(footnotes) 9 As Giannelli and Imwinkelried note Even the proponents of the poIygraph technique agree that the examiner, and not the machine, is the crucial fac- tor in arriving at reliable results. The examiner's exper- tise is critical in (1) determining the suitability of the subject for testing, (2) formulating proper test questions, (3) establishing the necessary rapport with the subject, (4) detecting attempts to mask or create chart reactions, or other countermeasures, (5) stimulating the subject to react, and (6) interpreting the charts. Scientific Evidence, supra, 8-2(A), at 218. ---------------------------------------- Page Break ---------------------------------------- 25 responses. 10 Such countermeasures include hypnosis and biofeedback, ingestion of drugs, and subtle, sur- reptitious muscular movements during the examina- tion. And although polygraphers can expect a subject to employ countermeasures, " [t]here is no good evi- dence as to how well these countermeasures work under real life conditions and no evidence at all con- cerning how frequently such countermeasures are successfully employed in real life by sophisticated subjects." Iacono & Lykken, supra, 314-3.2.5, at 595- 596. A scientific technique whose reliability and help- fulness are so widely questioned by scientists, leg- islators, and courts may surely be made the subject of a categorical exclusionary rule. As this Court re- cently noted, "when a legislature undertakes to act in areas fraught with medical and scientific uncer- tainties, legislative options must be especially broad and courts should be cautious not to rewrite legisla- tion.'" Kansas v. Hendricks, Nos. 95-1649 & 95-9075 (June 23, 1997), slip op. 12 n.3 (quoting Jones v. United States, 463 U.S. 354, 370 (1983)); id. at 3 (Breyer, J., dissenting) ("The Constitution permits a State to ___________________(footnotes) 10 Information on countermeasures is readily available. A search on the Internet by the Federal Bureau of Investigation Polygraph Unit produced some 3,000 hits. And many pub- lished sources on polygraphs contain discussions of countermea- sures. See, e.g., J. Matte, Forensic Psychophysiology Using the Polygraph 531-648 (1996); S. Abrams, The Complete Polygraph Handbook 185-186 (1989); V. Kalashnikov, Beat the Box: The Insider's Guide to Outwitting the Lie Detector 9-13 (1986). Thus, a highly motivated person who felt the need to attempt to trick the polygrapher could easily find information for that purpose. ---------------------------------------- Page Break ---------------------------------------- 26 follow one reasonable professional view, while reject- ing another."). 2. The admission of polygraph evidence intrudes on functions performed by the trier of fact Even assuming that polygraph testing had a high degree of reliability when properly administered, the President may reasonably be concerned about the potential encroachment of polygraph evidence on the proper functioning of the trier of fact. First, juries may be unduly swayed by the polygraph expert's opinion. As the Eighth Circuit explained in Alexan - der, 526 F.2d at 168: 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. During the course of laying the eviden- tiary foundation at trial, the polygraphist will present his own assessment of the test's reliabil- ity which will generally be well in excess of 90 percent. He will also present physical evidence, in the form of the polygram, to enable him to advert the jury's attention to various recorded physical responses which tend to support his conclusion Based upon the presentment of this particular form of scientific evidence, present-day jurors, despite their sophistication and increased educational levels and intellectual capacities, are still likely to give significant, if not conclusive, weight to a polygraphist's opinion as to whether the defendant is being truthful or deceitful in his response to a question bearing on a dispositive issue in a criminal case. ---------------------------------------- Page Break ---------------------------------------- 27 See also Barefoot v. Estelle, 463 U.S. 880, 926 (1983) (Blackmun, J., dissenting) (quoting P. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum. L. Rev. 1197, 1237 (1980) ("The major danger of scientific evidence is its potential to mislead the jury; an aura of scientific infallibility may shroud the evidence and thus lead the jury to accept it without critical scru- tiny.'')). Even if the accuracy of polygraph testing approaches the 90 percent level that polygraph propo- nents claim: the danger that jurors will view the polygraph "as an absolute indicator of truth creates an overwhelming potential for prejudice when inaccu- rate results are introduced." Brown v. Darcy, 783 F.2d 1389, 1396 (9th Cir. 1986). The prospect that relevant evidence may "weigh too much with the jury and * * * so overpersuade them" is a legitimate basis for a categorical rule of exclusion. Old Chief v. United States, 117 S. Ct. 644, 650 (1997) (quoting Michelson v. United States, 335 U.S. 469, 476 (1948) (discussing propensity evidence)). Second, even if polygraph evidence did not have a potentially pervasive influence on the jury, the admis- sion of such evidence would nonetheless tend to in- fringe on the jury's role of determining witness credibility. " [T]ruth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and ___________________(footnotes) 11 See, e.g., D. Raskin, Methodological issues in estimating polygraph accuracy in field applications, in 19 Canad. J. Behav. Sci./Rev. Canad. Sci. Comp. 389, 389 (1987). Raskin's claim has been sharply criticized. See, e.g., Iacono and Lykken, in 1 Faigman, supra, at 610. ---------------------------------------- Page Break ---------------------------------------- 28 weight of such testimony to be determined by the jury or by the court." Rock, 483 U.S. at 54 (quoting Wash- ington v. Texas, 388 U.S. at 22 (quoting Rosen v. United States, 245 U.S. 467, 471 (1918))). A poly- grapher has no such "knowledge of the facts involved in a case," but rather can only purport to speak to the credibility of the subject at one particular examina- tion. Since time immemorial our system has entrusted credibility determinations to the judgment of juries, which assess credibility in reliance on their common sense evaluations of demeanor, bias, and the plausibil- ity of the narrative. See, e.g., State v. Porter, No. SC 15363, 1997 WL 265202; at 27 (Com. May 20, 1997) ("The jury has traditionally been the sole arbiter of witness credibility."); Perkins v. State, 902 S.W.2d 38, 94 (Tex. Ct.. App. 1995) ("Even though serious doubts remain about the reliability of polygraph evidence, its unreliability is not the primary reason for its exclu- sion under our holding. Instead, we find that such evidence should be excluded because it impermissible decides the issues of credibility and guilt for the trier of fact and supplants the jury's function.") (footnote omitted); State v, Beachman, 616 P.2d 337, 339 (Mont. 1980) ("It is distinctly the jury's province to deter- mine whether a witness is being truthful."). An ex- pert who opinions based on a polygraph examination that a testifying defendant was truthful at the time of the test duplicates the jury's credibility-assessing function. It is entirely legitimate for an evidentiary system to preserve for the factfinder its unique province of weighing credibility based on first-hand observation of witnesses and of making the ultimate determination of guilt or innocence. Cf. Fed. R. Evid. 608 (limiting opinion evidence to support or attack ---------------------------------------- Page Break ---------------------------------------- 29 credibility); Fed. R. Evid. 704(b) ("No expert witness testifying with respect to the mental state or con- dition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.") . That is especially true in the case of polygraph evidence. Unlike an abstruse area of science that ordinarily would be beyond the jury's ken unless explained by an expert witness, "[a] determination of whether a witness is telling the truth is well within the province of all jurors' understanding and abili- ties." Porter, 1997 WL 265202, at *27. See also D. Carroll, " How accurate is polygraph lie detection" in The Polygraph Test 28 (A. Gale ed. 1988), ("an ob- server, regarding the [polygraph examinee's] general behaviour * * * does just as well as an experienced polygraph examiner"). As one federal court of appeals succinctly put it, "the jury is the lie detector." United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974). 3. A per se prohibition on polygraph evidence serves the legitimate interest of avoiding unnecessary collateral litigation Because of the many elements of subjectivity associated with polygraph and the lack of widespread acceptance of it in the scientific community, attempts to admit results of a polygraph examination will pro- duce lengthy collateral litigation regarding the valid- ity of the technique in general and the reliability of test results in particular cases. In each case, the party against whom the test results are introduced ---------------------------------------- Page Break ---------------------------------------- 30 can be expected to challenge the reliability of the results first before the court in an effort to prevent their admission and then, if they are admitted, before the jury. Because the validity of any particular poly- graph test is dependent on a large number of variables-among them, the mental and physical suitability of the subject of the test, the competence and integrity of the examiner, the phrasing of the relevant questions, and the appropriateness of the control questions-the litigant has numerous poten- tial avenues for attacking a test's reliability. The result in most cases is bound to be a time-consuming battle of experts who might differ not only on the validity of polygraph in general, but also on the reliability of the particular polygraph test under consideration and the proper interpretation of the test results. One state court has concluded that "the administra- tion of justice simply cannot, and should not, tolerate the incredible burdens involved in the process of ensuring that a polygraph examination has been properly administered. If a trial court were to ade- quately police the reliability of [polygraph] results, the time required to explore the innumerable factors which could affect the accuracy of a particular test would be incalculable." State v. Grier, 300 S.E.2d 351, 359 (N.C. 1983). Accord Brown, 783 F.2d at 1397; United States v. Urquidez, 356 F. Supp. 1363, 1367 (C.D. Cal. 1973); State v. Dean, 307 N.W.2d 628, 650 (Wis. 1981); People v. Barbara, 255 N.W.2d 171, 196 (Mich. 1977) protracted battles between "experts" over the methodology, meaning, and appropriateness of polygraph tests can occur even in jurisdictions with extensive experience in litigating over the admissibility of polygraphs. See Commonwealth v. ---------------------------------------- Page Break ---------------------------------------- 31 Mendes, 547 N.E.2d 35,36-37 (Mass. 1989) (evidentiary hearing on polygraph results and motion for new examinations took four days of court time even though polygraph evidence had been permitted in state courts for fifteen years). 4. Widespread judicial support for a prohibi- tion on polygraph admissibility further supports the reasonableness of a per se rule Uncertainty about the reliability of polygraph testing is reflected in the refusal of most courts to admit polygraph evidence. In promulgating Rule 707, it was not arbitrary of the President to take into account the overwhelming views of federal and state civilian courts on whether polygraph results should be admissible into evidence. The general rule in most States is that the results of polygraph examinations are inadmissible in criminal trials, primarily because of the lack of adequate scientific support for their reliability. 12 By and large, these courts adhere to the ___________________(footnotes) 12 See, e.g., Porter, 1997 WL 265202, at 2; In re Odell, 672 A.2d 457, 459 (R.I. 1996) (per curiam); People v. Sanchez, 662 N.E.2d 1199, 1210 (Ill. 1996), cert. denied, 117 S. Ct. 392 (1996); Contee v. United Slates, 667 A.2d 103, 104 n.4 (D.C. 1995); Com- monwealth v. Sneeringer, 668 A.2d 1167, 1174 (Pa. Super. Ct. 1995); State v. Beard, 461 S.E.2d 486, 492 (W. Va. 1995); State v. Cambell, 904 S.W.2d 608, 614-615 (Term. Crim. App. 1995); Petition of Grimm, 635 A.2d 456, 464 (N.H. 1993); State v. Patterson, 651 A.2d 362, 366 (Me.1994); Conner v. State, 632 So.2d 1239, 1257 (Miss. 1993), cert. denied, 513 U.S. 927 (1994); People v. Angelo, 618 N.Y.S.2d 77, 78 (App. Div. 1994), aff'd, 666 N.E.2d 1333 (N.Y. 1996); State v. Walker, 493 N.W.2d 329, 335 (Neb. 1992); State v. Hawkins, 604 A.2d 489, 492 (Md. 1992); Morton v. Commonwealth, 817 S.W.2d 218, 222 (Ky. 1991); State v. Staat, 811 P.2d 1261, 1262 (Mont. 1991); Tenard v. State, 802 S.W.2d 678, 683 (Tex. Grim. App. 1990) ---------------------------------------- Page Break ---------------------------------------- 32 general rule even where the parties consent to a dmis- sion of polygraph evidence, holding that "the reliabil- ity of the polygraph" is insufficient "to permit uncon- ditional admission of the evidence." Dean, 307 N.W.2d at 653. 13 In the federal arena, neither the United States Code nor the Federal Rules of Evidence has a specific provision concerning the admissibility of polygraph results. Under the "general acceptance" test for sci- entific testimony that prevailed under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), however, the fed- eral appellate courts traditionally upheld the exclu- sion of polygraph evidence on the ground that the sci- entific theory of polygraph testing had not achieved general acceptance.14 In Daubert v. Merrell Dow ___________________(footnotes) (en bane) (per curiam), cert. denied, 501 U.S. 1259 (1991); State v. Harnisk, 560 A.2d 5 (Me. 1989); Haakanson v. State, 760 P.2d 1030, 1034 (Alaska Ct. App, 1988); Healy v. Healy, 397 N.W.2d 71, 74 n.1 (N.D. 1986); Johnson v. State, 495 A.2d 1, 14 (Md. 1985), cert. denied, 474 U.S. 1093 (1986); State v, Anderson, 379 N.W.2d 70, 79 (Minn. 1985), cert. denied, 476 U.S. 1141 (1986); State v. Dornbusch, 384 N.W.2d 68.2, 686 (S.D. 1986); State v. Copeland, 300 S.E.2d 63, 69 (S.C. 1982), cert. denied, 460 U.S. 1103 (1983); People v. Anderson, 637 P.2d 354, 358 (Colo. 1981) (en bane); State v. Biddle, 599 S.W.2d 182, 185 (Me. 1980); State v. Catanese, 368 So.2d 975,981 (La. 1979); State v. French, 403 Add 424, 426 (N.H.), cert. denied, 444 U.S. 954 (1979); State v. 239 N.W.2d 495, 497 (Neb. 1976). 13 See also, e.g., State v. Okumura, 894 P.2d 80, 94 (Haw. 1995); Mendes, 547 N.E.2d at 41; Robinson v. Commonwealth, 341 S.E.2d 159, 167 (Va. 1986); People v. Anderson, 637 P.2d 354, 362 (Colo. 1981) (en bane); State v. Biddle, 599 S.W.2d 182, 187 (Me. 1980) (en bane); Pulakis v. State, 476 P.2d 474, 479 (Alaska 1970). 14 United States v. A&S Council Oil Co., 947 F.2d 1128, 1133-1134 (4th Cir. 1991); Bennett v. City of Grand Prairie, 883 ---------------------------------------- Page Break ---------------------------------------- 33 Pharmaceuticals, 509 U.S. 579 (1993), the Court abandoned the Frye test and held that, under Federal Rule of Evidence 702, expert testimony may not be excluded solely because it is based on a scientific theory that has not yet achieved general acceptance; rather, the trial court must determine "whether the expert is proposing to testify to (1) scientific knowl- edge that (2) will assist the trier of fact." 509 U.S. at 592. 15 In the wake of Daubert, several courts of ap- peals have retreated from the categorical exclusion of polygraph evidence and have left the matter to trial courts. 16 No court of appeals, however, has concluded that polygraph testing is scientifically valid or that ___________________(footnotes) F.2d 400, 405 & n.7 (5th Cir. 1989); United States v. Miller, 874 F.2d 1255, 1261 (9th Cir. 1989); United States v. Soundingsides, 820 F.2d 1232, 1241 (l0th Cir. 1987); United States v. Murray, 784 F.2d 188, 188 (6th Cir. 1986); Brown, 783 F.2d 1389 at 1394 1395. But see United States v. Piccinonna, 885 F.2d 1529, 1535 (llth Cir. 1989) (en bane) (polygraph evidence not inadmissible per se); Anderson v. United States, 788 F.2d 517, 519 n.1 (8th Cir. 1986) (polygraph evidence admissible by stipulation). 15 The Daubert Court provided a non-exclusive list of several factors that the trial court should consider in determin- ing whether an expert's testimony rests on scientific knowl- edge whether the theory or technique can be and has been tested, whether it has been subjected to peer review, whether the technique has a high known or potential rate of error, and whether the theory has attained general acceptance within the scientific community. 509 U.S. at 593-594. 16 See United States v. Cordoba, 104 F.3d 225, 227-228 "(9th Cir. 1997); United States v. Williams, 95 F.3d 723,729 (8th Cir. 1996), cert. denied, 117 S. Ct. 750 (1997); United States v. Kwong, 69 F.3d 663,667-669 (2d Cir. 1995), cert. denied, 116 S. Ct. 1343 (1996); United States v. Sherlin, 67 F.3d 1208, 1216- 1217 (6th Cir. 1995), cert. denied, 116 S. Ct. 795 (1996); United States v. Posado, 57 F.3d 428,434 (5th Cir. 1995). ---------------------------------------- Page Break ---------------------------------------- 34 the results of a polygraph test were reliable enough to be admitted into evidence. 17 C. The Court Of Appeals Erred In Its Analysis Of The Per Se Bar On Polygraph Evidence 1. In concluding that Rule 707 violates the Sixth Amendment right to present a defense, the court of appeals relied on this Court's statement in Rock v. Arkansas, 483 U.S. at 61, that a `legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case." Pet. App. 8a. The court of appeals then found no "significant constitutional difference" between the ___________________(footnotes) 17 In a variety of out-of-court settings, the United States government does conduct and make limited use of the results of polygraph examinations. For example, the Department of Defense views polygraphs as a tool that enhances the interview and interrogation process, especially in providing essential information to resolve national security issues and criminal investigations. Similarly, the Federal Bureau of Investigation conducts polygraphs within the context of criminal investiga- tions, but its general policy cautions that " [t]he polygraph is to be used selectively as an investigative aid and results consid- ered within the context of a complete investigation." FBI, Manual of Investigative Operations and Guidelines 13-22.2(2) (1987). The investigative benefits of the polygraph have been described as follows: In the hands of a competent, well-trained and ethical examiner the polygraph can be a highly effective inves- tigative tool. It can identify individuals who are withhold- ing or distorting vital information, be one factor to elimi- nate possible suspects and even serve as a deterrent. Equally important, the psychological advantage created during the polygraph examination and interview process frequently results in confessions and admissions of guilt being obtained. Murphy and Murphy, supra, at 2. ---------------------------------------- Page Break ---------------------------------------- 35 Court's holding that a State may not exclude a defendant's hypnotically refreshed testimony, and the issue presented here, which "concerns exclusion of evidence supporting the truthfulness of a defendant's testimony." Id. at 9a. If the court's interpretation of Rock were accepted, many categorical rules of exclusion found in the standard rules of evidence would be suspect. In fact, the court's reliance on Rock was misplaced. Rock involved the defendant's constitutional right to testify and provide the jury with the defendant's own version of events. A bar of such evidence would seriously restrict the defendant's right to present a defense and would deprive the factfinder of highly relevant and probative information. At the same time, while hypnosis-induced recollections of the defendant may have an element of unreliability, the Court noted that the time-honored method for exposing weak- nesses in testimony is cross-examination, 483 U.S. at 61, which may be coupled with expert testimony and cautionary instructions, ibid. In that setting, the Court held that a wholesale exclusion of the defen- dant's own testimony was not a proportionate means to respond to dangers to recollection posed by hypnosis. In contrast to Rock, a defendant whose trial is gov- erned by Rule 707 remains free to testify to his version of events. Rule 707 does not deprive the fact- finder of the substance of the defendant's testimony; rather, it precludes only collateral polygraph evidence-to bolster or attack it. The validity of Rule 707 thus depends, not on a comparison to the result in Rock, but on an analysis of the interests underlying the per se prohibition on polygraph evidence. As we have discussed, the rule rationally serves valid inter- ---------------------------------------- Page Break ---------------------------------------- 36 ests in the fair and accurate adjudication of the ulti- mate issue. See pp. 18-33, supra. The court of appeals erred by failing to consider those interests. 2. The court of appeals also appeared to find Rule 707 arbitrary because other expert testimony is po- tentially admissible under Military Rule of Evidence 702, which permits a case-by-case inquiry pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., su - pra. The court observed that under Daubert, "the trial judge [acts as] a gatekeeper, trusted with re- sponsibility to decide if novel scientific evidence was sufficiently relevant and reliable to warrant admis- sion." Pet. App. 9a. Daubert, however, was not de- cided under the Sixth Amendment, and it does not preclude the adoption of otherwise-reasonable per se rules to govern particular forms of expert testimony. Indeed, even under Daubert, courts might conclude that an accumulated body of knowledge and experi- ence with a particular category of "science" justifies a categorical determination that the evidence is not admissible under the rubric of "scientific knowledge." In any event, polygraph evidence has sufficient distinctive features that it is not arbitrary to con- clude that, unlike other forms of scientific evidence, polygraph results should be categorically barred from evidence. Although an element of judgment is usual] y present with respect to other scientific evidence that is routinely admitted at trials, such as analyses of ballistics, fingerprints, handwriting, voiceprints, and blood, polygraph testing, "albeit based on a scientific theory, remains an art with unusual responsibility placed on the examiner." United States v. Wilson, 361 F. Supp. 510, 512 (D. Md. 1973). More importantly, polygraph evidence is different from other scientific evidence in that it effectively consists of "an opinion ---------------------------------------- Page Break ---------------------------------------- 37 regarding the ultimate issue before the jury, not just one issue in dispute." Brown, 783 F.2d at 1396. As the court explained in United States v. Alexander, 526 F.2d at 169, " [t]he role of the jury after a poly- graphist has testified that the results of a polygraph examination show that the defendant's denial of participation in the crime was fabricated is much more circumscribed [than after the testimony of other scientific experts]. If the [polygraph] testi- mony is believed by the jury, a guilty verdict is usually mandated." The opposite would be true when a defendant supports his credibility by a polygraph examination. Finally, other types of scientific evi- dence are often indispensable to the resolution of particular factual issues. Polygraph evidence, on the other hand, is never indispensable in light of the traditional, time-tested tools available to juries for making credibility determinations. Daubert thus does not control this Court's analysis of the constitu- tional validity of the per se exclusion of polygraph evidence. Notably, before Daubert, when the courts generally applied a per se bar against polygraph evidence under the Frye test, federal and state courts found no Sixth Amendment obstacle to such a rule. See, e.g., Bashor v. Risley, 730 F.2d 1228, 1238 (9th Cir.), cert. denied, 469 U.S. 838 (1984); United States v. Gordon, 688 F.2d 42,44-45 (8th Cir. 1982); Jackson v. Garrison, 677 F.2d 371, 373 (4th Cir.), cert. denied, 454 U.S. 1036 (1981); United States v. Glover, 596 F.2d 857, 867 (9th Cir.), cert. denied, 444 U.S. 857, 860 (1979); Connor v. Auger, 595 F.2d 407, 411 (8th Cir.), cert. denied, 444 U.S. 851 (1979); United States v. Lech, 895 F. Supp. 582,586 (S.D.N.Y. 1995); People v. Price, 821 P.2d 610, 663 (Cal. 1991), cert. denied, 506 U.S. 851 (1992); ---------------------------------------- Page Break ---------------------------------------- 38 People v. Williams, 333 N.W.2d 577, 580 (Mich. Ct. App. 1983); State v. Conner, 241 N.W.2d 447, 457-458 (Iowa 1976).18 The fact remains, even after Daubert, that polygraph evidence has characteristics that ,justify specialized treatment under the rules of evi- dence. It is not arbitrary for appropriate authorities to conclude that the costs and dangers of admitting the evidence outweigh any limited contribution that polygraph evidence might make to the fair disposition of criminal trials. 19 ___________________(footnotes) 18 But see United States v. Williams, 39 M.J. 556, 558 (A.C.M.R. 1994) ("We held under the facts of this case that appellant's Fifth Amendment right to a fair trial by court- martial, combined with his Sixth Amendment right to produce favorable witnesses on his behalf, affords him the opportunity to be heard on these foundational matters [regarding polygraph reliability], and allows for the possibility of admitting poly- graph evidence."), decision set aside, 43 M.J. 348, 354 (C.M.A. 1995) (holding polygraph inadmissible in this case because defendant did not take the stand), cert. denied, 116 S. Ct. 925 (1996). 19 Nor is Rule 707 an irrational ban on a category of evidence akin to those invalidated in Washington v. Texas, w U.S. 14 (1987), or Crane v. Kentucky, 476 U.S. 683 (1986). In Washington v. Texas, the Court held that a State could not prohibit a defendant from introducing the testimony of a co- defendant in order to prevent perjury, because it was "arbi- trary" to disqualify an entire category of defense witnesses on the presumption that they were "unworthy of belief." 388 U.S. at 22. In Crane v. Kentucky, the Court held that a State could not bar evidence of the circumstances of a confession on the theory that the evidence had no relevance once the confession had been ruled voluntary. The Court explained that the evi- dence may remain highly relevant to the credibility of the confession, and that there was no "rational justification for the wholesale exclusion of this body of potentially exculpatory evidence," 476 U.S. at 691. As discussed in the text, there is a ---------------------------------------- Page Break ---------------------------------------- 39 II. THE SIXTH AMENDMENT DOES NOT COM- PEL ADMISSIBILITY OF POLYGRAPH RE- SULTS IN COURTS-MARTIAL The constitutional theory embraced by the court of appeals not only conflicts with general principles of Sixth Amendment law applicable in state and federal civilian courts, it is particularly unwarranted and onerous in the military context. Thus, even if the court of appeals' application of the Sixth Amendment principles in the civilian context had merit, it would not justify invalidating a military rule of evidence, because respondent cannot meet his burden of demon- strating that a servicemember's need to introduce polygraph evidence in courts-martial overcomes the determination by the President to promulgate a per se rule prohibiting such evidence. A. Procedural Rules Adopted For Military Courts-Martial Are Entitled To Deference By This court The Constitution grants Congress the power " [t]o make rules for the Government and Regulation of the land and naval Forces." Art, I, 8, Cl. 14. This Court has recognized that this power "creates an exception to the normal method of trial in civilian courts as provided by the Constitution and permits Congress to authorize military trial of members of the armed services without all the safeguards given an accused by Article III and the Bill of Rights." Reid v. Covert, 354 U.S. 1, 19 (1957) (plurality opinion). It is well established that certain Fifth and Sixth Amendment rights enjoyed by civilians are not appli- rational justification for treating polygraph evidence in a distinctive fashion. ---------------------------------------- Page Break ---------------------------------------- 40 cable to defendants in military proceedings. See, e.g., O'Callahan v. Parker, 395 U.S. 258, 261 (1969) ('[The Fifth Amendment specifically exempts cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger from the requirement of prosecution by indictment and, inferentially, from the right to trial by jury (empha- sis supplied)."), overruled on other grounds, Solorio v. United States, 483 U.S. 435, 436 (1987); EX parte Quirin, 317 U.S. 1, 40 (1942) (no right to Fifth or Sixth Amendment trial by jury in trials by military commission). Although persons tried by courts- martial cannot be denied the Fifth Amendment's guarantee of due process of law, this Court has determined that the tests for applying that right differ and that limitations on due process generally exist in the military context. See Weiss v. United States, 510 U.S. 163, 176-177 (1994); Rostker v. Goldberg, 453 U.S. 57,67 (1981). With respect to military trials, this Court has sanctioned the military's use of evidentiary and pro- cedural rules that differ from those that prevail in civilian courts. See O'Callahan v. Parker 395 U.S. 258 (1969) ("Substantially different rules of evidence and procedure apply in military trials."); id. at n.4 ("For example, in a court-martial, the access of the defense to compulsory process for obtaining evidence and witnesses is, to a significant extent, dependent on the approval of the prosecution.") ___________________(footnotes) 20 Military courts are not compelled to adhere to rules of evidence grounded only in the Supreme Court's supervisory powers over the administration of justice in the federal courts. See, e.g., Burns v. Wilson, 346 U.S. 137, 145 & n.12 (1953). ---------------------------------------- Page Break ---------------------------------------- 41 In assessing the need for a military court to adopt a certain rule or practice constitutionally mandated in civilian tribunals, this Court looks to "whether the factors militating in favor of [the practice] are so extraordinarily weighty as to overcome the balance struck by Congress." Weiss, 510 U.S. at 177-178 (quoting Middendorf v. Henry, 425 U.S. 25,44 (1976)). That test is highly deferential: [T]he Constitution contemplates that Congress has plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, proce- dures, and remedies related to military discipline. Judicial deference thus is at its apogee when reviewing congressional decisionmaking in this area. Our deference extends to rules relating to the rights of servicemembers: Congress has pri- mary responsibility for the delicate task of bal- ancing the rights of servicemen against the needs of the military. Weiss, 510 U.S. at 177 (quotations and citations omit- ted). The court below erred in not giving the per se rule against polygraph admissibility the deference it deserved. B. Respondent's Interest in Introducing Poly- graph Evidence Does Not Outweigh The Reasons For Establishing A Per Se Rule Prohibiting Such Evidence As this Court has recognized, "the military in im portant respects remains a "specialized society sepa- rate from civilian society," Weiss, 510 U.S. at 174 (quoting Parker v. Levy, 417 U.S. 733, 743 (1974)); see also Loving v. United States, 116 S. Ct. 1737, 1751 (1996), whose essential function is "to fight or be ---------------------------------------- Page Break ---------------------------------------- 42 ready to fight wars should the occasion arise." United States ex rel. Toth v. Quarles, 350 U.S. 11,17 (1955); see also Schlesinger v. Councilman, 420 U.S. 738, 757 (1975). MiIitary trials are necessary "to maintain discipline," but they are "merely incidental to an army's primary fighting function." Quarles, 350 U.S. at 17. "To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served." Ibid. Thus, the introduction of procedural complexities into military trials is "a particular burden to the Armed Forces because virtually all the participants, including the defendant and his counsel, are members of the military whose time may be better spent than in possibly protracted disputes over the imposition of discipline." Middendorf v. Henry, 425 U.S. at 45-46. The court of appeals' opinion does not reflect con- sideration of those factors, which have long informed this Court's assessment of rules" designed for mili- tary trials. Nor does that decision accord the great deference properly due to the judgments of the politi- cal branches in this area. See, e.g., Weiss, 510 U.S. at 177 Goldman v. Weinberger, 475 US. 503,508 (1986). Invoking his powers under the Constitution, see Art. II, 2, Cl. 1, and an express congressional delegation authorizing him to prescribe rules of evidence for courts-martial, see 10 U. S.C. 836(a), the President concluded that polygraph evidence is unnecessary for reliable credibility assessments, that its admission could confuse the trier of fact, and that case-by- case litigation about its admissibility would waste the time of servicemembers whose "primary func- tion" (Quarles, 350 U.S. at 17) is the Nation's defense. Against those considerations is respondent's asser- ---------------------------------------- Page Break ---------------------------------------- 43 tion that the polygraph evidence would enhance his credibility in denying that he had used drugs since joining the Air Force. Yet prohibiting respondent from introducing the results of polygraph examina- tions neither lessens the prosecution's burden of proof nor limits respondent's opportunity to testify at a court-martial on any relevant topic. In light of the continuing disagreements among polygraph experts over the validity and reliability of polygraphs, the propensity of polygraph evidence to confuse the trier of fact, and the likelihood that the introduction of polygraph evidence would lead to lengthy disputes over the methodology and results of polygraph testing in a particular circumstance, respondent cannot carry his burden of demonstrating that "the factors militating in favor of [allowing polygraph evidence to be considered as evidence] are so extraordinarily weighty as to overcome the balance struck by Congress." Weiss, 510 U.S. at 177-178. Deference in formulating such an evidentiary rule is particularly appropriate where, as here, the scientific evidence on the validity of polygraphs is open to serious debate and polygraph test results may be manipulated. Thus, even if generally applicable Sixth Amendment princi- ples were found not to justify a per se rule prohibiting polygraph evidence, the President and Congress may constitutionally establish such a rule in the context of courts-martial. ---------------------------------------- Page Break ---------------------------------------- 44 CONCLUSION The decision of the court of appeals should be reversed. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General DAVID C. FREDERICK Assistant to the Solicitor General MICHAEL J. BRESLIN JOEL M. GERSHOWITZ Lt. Colonel, USAF Attorney Appellate Government Division Boiling Air Force Base JULY 1997