PolygraphsIntroduction at Trial
Neither the United States Code nor the Federal Rules of
Evidence have a
specific provision concerning the admissibility of polygraph
In 1991, however, the President promulgated Military Rule of
which bars the admission of polygraph results, the opinion of the
examiner, or any reference to an offer to take, failure to take, or
taking of a
polygraph examination in courts martial. Five years later, the
Court of Appeals for the Armed Forces struck down the rule as an
restriction on the defendant's right to present a defense in a case
in which the
defendant sought to corroborate his testimony with the results of
test administered by an investigative arm of the Air Force.
United States v.
Scheffer, 41 M.J. 683 (1996). The Solicitor General has filed
petition in the Supreme Court seeking review of the decision.
v. Scheffer, No. 96-1133, petition for writ of certiorari filed
1997. If the petition is granted, the Supreme Court can be
expected to decide
the constitutional question during its 1997 Term. The Court's
decision, if any,
could affect the arguments that are available to federal
prosecutors seeking to
exclude polygraph results in the civilian courts.|
For many years, the courts of appeals have upheld the
polygraph evidence on the ground that polygraphs are not "generally
the scientific evidence. Frye v. United States, 293 F. 1013
1923) (adopting "general acceptance" standard for admissibility of
testimony based on scientific theory). P. Giannelli & E.
Scientific Evidence 223-235 (2d ed. 1993) (noting that a
federal and state courts "follow the traditional rule, holding
inadmissible per se") (collecting authorities). In 1993, the
Supreme Court held
that, under Federal Rule of Evidence 702, expert testimony may not
solely because it is based on scientific theory that has not yet
"general acceptance." Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S.
579 (1993). Instead, the trial court must determine under Rule 702
expert is proposing to testify to (1) scientific knowledge that (2)
the trier of fact." 509 U.S. at 592. In determining whether the
testimony rests on scientific knowledge, the Supreme Court
non-exclusive list of several factors that the trial courts should
whether the theory or technique can be and has been tested, (2)
whether it has
been subjected to peer review, (3) whether the technique has a high
potential rate of error, and (4) whether the theory has attained
acceptance within the scientific community. Id. at 593-594.
Since Daubert, two circuits have retreated from the
position. United States v. Cordoba, 104 F.3d 225 (9th Cir.
United States v. Posado, 57 F.3d 428 (5th Cir. 1995). In a
pre-Daubert decision, United States v. Piccinonna,
885 F.2d 1529
(11th Cir. 1989) (en banc), the Eleventh Circuit held that
polygraph results are
admissible (1) when the parties stipulate to admissibility in
advance of the
test; or (2) when the polygraph results are used to impeach or
testimony of a witness. In the latter circumstance, the party
introduce the polygraph results must provide adequate notice to the
party; the opposing party must be given adequate opportunity to
have its own
polygraph expert administer a test covering substantially the same
the evidence must be admissible under the rules governing
Consequently, the government continues to have several good
excluding polygraph evidence. First, a prosecutor can still attack
reliability of polygraph evidence both generally and as
administered in the case
at hand. The FBI polygraph unit has provided affidavits and live
several district courts to rebut a defendant's proffer that his
are reliable, and stands ready to assist any prosecutor confronted
with such a
motion to introduce polygraph results.
Second, the prosecutor can argue that even if the test was
administered and reliable, it would not "assist the trier of fact"
702. Jurors have long been considered competent to gauge the
credibility of live
witnesses without resort to expert opinion. Since time immemorial
our system has
entrusted credibility determinations to the judgment of juries,
credibility in reliance on their common-sense evaluations of
demeanor, bias, and
the plausibility of the narrative. Prosecutors should argue that
on credibility invades the jury's province.
Third, the prosecutor should argue that polygraph results are
under Rule 403 as prejudicial, misleading, and a waste of time.
v. Williams, 95 F.3d 723, 729-30 (8th Cir. 1996) (polygraph
mislead the jury); United States v. Pettigrew, 77 F.3d 1500,
Cir. 1996) (unilaterally obtained polygraphs examinations are
admissible under Rule 403); United States v. Sherlin, 67
1216-17 (6th Cir. 1995) (Rule 403 is a proper ground for excluding
results even after Daubert), cert. denied, 116 S. Ct.
United States v. Kwong, 69 F.3d 663, 668 (2d Cir. 1995)
questions were ambiguous and hence not probative of the central
issues in the
case), cert. denied, 116 S. Ct. 1343 (1996).
Finally, polygraph results may be inadmissible under Federal
Evidence 608 "unless or until the credibility of that witness [is]
attacked." United States v. Piccinonna, 885 F.2d at 1536.
Although the government should seek the exclusion of polygraph
the district court, there is no bar to the introduction of
incriminatory statements made during a polygraph examination. If
claims that his confession was coerced, some circuits have held
government may rebut the claim of coercion by introducing evidence
polygraph examination. United States v. Figueroa, 15 F.3d
706, 708 (7th
Cir. 1995); United States v. Johnson, 816 F.2d 918, 1923 (3d
United States v. Kampiles, 609 F.2d 1233, 1245 (7th Cir.
denied, 446 U.S. 954 (1980); Tyler v. United States, 193
F.2d 24, 31
(D.C. Cir.), cert. denied, 343 U.S. 908 (1952). Further,
Circuit has permitted the government to introduce polygraph results
why the government had not conducted a more thorough investigation.
States v. Hall, 805 F.2d 1410 (10th Cir. 1986).
Finally, in Wood v. Bartholomew, 116 S. Ct. 7 (1995),
Court held that because Washington state law does not permit the
polygraph results at trial, the prosecutor did not violate his due
obligation under Brady v. Maryland, 373 U.S. 83 (1963), by
disclose that a government witness had failed a polygraph
"Disclosure of the polygraph results * * * could have had no direct
effect on the
outcome of trial, because [the defendant] could have made no
mention of them
either during argument or while questioning witnesses." 116 S. Ct.
at 10. In
other words, the inadmissible polygraph results were not
therefore it was not "reasonably likely" that disclosure would have
outcome of the trial. Id. at 10. Because, however, many
longer have a per se rule of exclusion regarding polygraph
evidence, it is wiser
in federal court to disclose unfavorable polygraph results of a
witness. United States v. Hart, 344 F. Supp. 522 (E.D.N.Y.