Recently, the issue of lie-detectors came up in one of my cases. I was reminded of UNITED STATES v. SCHEFFER, 523 U. S. 303 (1998).
Justice Clarence Thomas wrote:
The contentions of respondent and the dissent notwithstanding, there is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques. 1 D. Faigman, D. Kaye, M. Saks, & J. Sanders, Modern Scientific Evidence 565, n. †, § 14–2.0 to § 14–7.0 (1997); see also 1 P. Giannelli & E. Imwinkelried, Scientific Evidence § 8–2(C), pp. 225–227 (2d ed. 1993) (hereinafter Giannelli & Imwinkelried); 1 J. Strong, McCormick on Evidence § 206, p. 909 (4th ed. 1992) (hereinafter McCormick). Some studies have concluded that polygraph tests overall are accurate and reliable. See, e. g., S. Abrams, The Complete Polygraph Handbook 190–191 (1989) (reporting the overall accuracy rate from laboratory studies involving the common “control question technique” polygraph to be “in the range of 87 percent”). Others have found that polygraph tests assess truthfulness significantly less accurately—that scientific field studies suggest the accuracy rate of the “control question technique” polygraph is “little better than could be obtained by the toss of a coin,” that is, 50 percent. See Iacono & Lykken, The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in 1 Modern Scientific Evidence, supra, § 14–5.3, at 629 (hereinafter Iacono & Lykken).6
This lack of scientific consensus is reflected in the disagreement among state and federal courts concerning both the admissibility and the reliability of polygraph evidence.7 Although some Federal Courts of Appeals have abandoned the per se rule excluding polygraph evidence, leaving its admission
or exclusion to the discretion of district courts under Daubert, see, e. g., United States v. Posado, 57 F. 3d 428, 434 (CA5 1995); United States v. Cordoba, 104 F. 3d 225, 228 (CA9 1997), at least one Federal Circuit has recently reaffirmed its per se ban, see United States v. Sanchez, 118 F. 3d
192, 197 (CA4 1997), and another recently noted that it has “not decided whether polygraphy has reached a sufficient state of reliability to be admissible.” United States v. Messina, 131 F. 3d 36, 42 (CA2 1997). Most States maintain per se rules excluding polygraph evidence. See, e. g., State v.
Porter, 241 Conn. 57, 92–95, 698 A. 2d 739, 758–759 (1997); People v. Gard, 158 Ill. 2d 191, 202–204, 632 N. E. 2d 1026, 1032 (1994); In re Odell, 672 A. 2d 457, 459 (RI 1996) (per curiam); Perkins v. State, 902 S. W. 2d 88, 94–95 (Ct. App. Tex. 1995). New Mexico is unique in making polygraph evidence generally admissible without the prior stipulation of the parties and without significant restriction. See N. M. Rule Evid. § 11–707.8 Whatever their approach, state and federal courts continue to express doubt about whether such evidence is reliable. See, e. g., United States v. Messina, supra, at 42; United States v. Posado, supra, at 434; State v. Porter, supra, at 126–127, 698 A. 2d, at 774; Perkins v. State, supra, at 94; People v. Gard, supra, at 202–204, 632 N. E. 2d, at 1032; In re Odell, supra, at 459.
The approach taken by the President in adopting Rule707—excluding polygraph evidence in all military trials—is a rational and proportional means of advancing the legitimate interest in barring unreliable evidence. Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams. Individual jurisdictions therefore may reasonably reach differing conclusions as to whether polygraph evidence should be admitted. We cannot say, then, that presented with such widespread uncertainty, the President acted arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence.
Footnotes:
5 These interests, among others, were recognized by the drafters of Rule 707, who justified the Rule on the following grounds: the risk that court members would be misled by polygraph evidence; the risk that the traditional responsibility of court members to ascertain the facts and adjudge guilt or innocence would be usurped; the danger that confusion of the issues “ ‘could result in the court-martial degenerating into a trial of the polygraph machine;’ ” the likely waste of time on collateral issues; and the fact that the “ ‘reliability of polygraph evidence has not been sufficiently established.’ ” See 41 M. J. 683, 686 (USAF Ct. Crim. App. 1995) (citing Manual for Courts-Martial, United States, Analysis of the Military Rules of Evidence, App. 22, p. A22–46 (1994 ed.)).
6 The United States notes that in 1983 Congress’ Office of Technology Assessment evaluated all available studies on the reliability of polygraphs and concluded that “ ‘[o]verall, the cumulative research evidence suggests that when used in criminal investigations, the polygraph test detects deception
better than chance, but with error rates that could be considered significant.’ ” Brief for United States 21 (quoting U. S. Congress, Office of Technology Assessment, Scientific Validity of Polygraph Testing: A Research Review and Evaluation—A Technical Memorandum 5 (OTA–TM–H–15, Nov. 1983)). Respondent, however, contends current research shows polygraph testing is reliable more than 90 percent of the time. Brief for Respondent 22, and n. 19 (citing J. Matte, Forensic Psychophysiology Using the Polygraph 121–129 (1996)). Even if the basic debate about the reliability of polygraph technology itself were resolved, however, there would still be controversy over the efficacy of countermeasures, or deliberately adopted strategies that a polygraph examinee can employ to provoke physiological responses that will obscure accurate readings and thus “fool” the polygraph machine and the examiner. See, e. g., Iacono & Lykken § 14–3.0.
7Until quite recently, federal and state courts were uniform in categorically ruling polygraph evidence inadmissible under the test set forth in Frye v. United States, 293 F. 1013 (CADC 1923), which held that scientific evidence must gain the general acceptance of the relevant expert community to be admissible. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), we held that Frye had been superseded by the Federal Rules of Evidence and that expert testimony could be admitted if the district court deemed it both relevant and reliable. Prior to Daubert, neither federal nor state courts found any Sixth Amendment obstacle to the categorical rule. See, e. g., Bashor v. Risley, 730 F. 2d 1228, 1238 (CA9), cert. denied, 469 U. S. 838 (1984); People v. Price, 1 Cal. 4th 324, 419–420, 821 P. 2d 610, 663 (1991), cert. denied, 506 U. S. 851 (1992). Nothing in Daubert foreclosed, as a constitutional matter, per se exclusionary rules for certain types of expert or scientific evidence. It would be an odd inversion of our hierarchy of laws if altering or interpreting a rule of evidence worked a corresponding change in the meaning of the Constitution.
8 Respondent argues that because the Government––and in particular the Department of Defense––routinely uses polygraph testing, the Government must consider polygraphs reliable. Governmental use of polygraph tests, however, is primarily in the field of personnel screening, and to a lesser extent as a tool in criminal and intelligence investigations, but not as evidence at trials. See Brief for United States 34, n. 17; Barland, The Polygraph Test in the USA and Elsewhere, in The Polygraph Test 76 (A. Gale ed. 1988). Such limited, out of court uses of polygraph techniques obviously differ in character from, and carry less severe consequences than, the use of polygraphs as evidence in a criminal trial. They do not establish the reliability of polygraphs as trial evidence, and they do not invalidate reliability as a valid concern supporting Rule 707’s categorical ban.