Petitioner
United States
Respondent
Edward Scheffer
Petitioner's Claim
That per se exclusion of polygraph evidence offered by the accused ina military court does not violate the Sixth Amendment right to present a defense.
Chief Lawyer for Petitioner
Michael D. Dreeben
Chief Lawyer for Respondent
Kim L. Sheffield
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor,William H. Rehnquist, Antonin Scalia, David H. Souter, Clarence Thomas (writing for the Court)
Justices Dissenting
John Paul Stevens
Place
Washington, D.C.
Date of Decision
31 March 1998
Decision
That Military Rule of Evidence 707, which makes polygraph evidence inadmissible in court-martial proceedings, does not unconstitutionally abridge the right of accused members of the military to present a defense.
Significance
This case marked the first occasion on which the Supreme Court issued a ruling with regard to the highly controversial matter of polygraph, or "lie-detector," testing.
The United States v. Scheffer ruling came, as legal writer Joan Biskupic noted in the Washington Post, "at a time when [polygraph] machinesare increasingly being used outside the courtroom"--and inside as well. Prosecutors were using polygraph results "to extract confessions from suspects," Biskupic observed, and defense lawyers were using "them for leverage in plea bargains"; likewise polygraph tests were being subjected to greater and greater use in the workplace. Employers were using them to test job applicants withregard to past wrongdoing, and to monitor present jobholders as well. Whilethe latter practice might raise Fourth Amendment questions of its own, the use of polygraph results in the courtroom had become a battleground for opposing factions of evidentiary experts.
Airman Scheffer Claims "Innocent Ingestion"
In March of 1992, when he volunteered to work as an informant with the Air Force Office of Special Investigations (OSI), Edward Scheffer was serving as anairman at March Air Force Base in California. At that time he was advised ofthe fact that the OSI would require him to submit to periodic drug testing and polygraph examinations to ensure that he remained drug-free in spite of the repeated exposure to drugs that his undercover work would entail. Accordingly, he was given a urinalysis test in early April, and soon afterward--beforethe results of his urinalysis were known--he was administered a polygraph examination. In the latter test, the OSI examiner asked Scheffer three relevantquestions: (1) "Since you've been in the [Air Force], have you used any illegal drugs?"; (2) "Have you lied about any of the drug information you've given OSI?"; and (3) "Besides your parents, have you told anyone you're assistingOSI?" Scheffer answered "No" to each of these, and in the opinion of the OSIexaminer, who evaluated his polygraph test, his pulse rate while answering these questions "indicated [that] no deception" was taking place.
But starting on 30 April 1992, a bizarre series of events began to unfold. Scheffer failed to show up for work, and could not be found anywhere on the airbase. In an ordinary context, this would undoubtedly have gotten him fired,but due to the fact that he was an enlisted member of the U.S. armed forces,Scheffer's disappearance had considerably more severe consequences. He remained AWOL (absent without leave) until 13 May when he turned up in Iowa, nearly2,000 miles away from the California air base. An Iowa state patrolman, making a routine traffic stop, became aware of the fact that Scheffer was an AWOLserviceman, and arrested him. Meanwhile, OSI agents learned that Scheffer'surinalysis had rendered a positive result for the presence of methamphetamine--this despite the fact that his polygraph tests seemed to indicate that he was not lying when he said he had used no illegal drugs. Scheffer was subjected to a general court-martial on four charges, including an unrelated matter involving his issuance of 17 bad checks. The facts relevant to the case that brought him before the Supreme Court included charges of using methamphetamine, an illegal stimulant consumed recreationally; failure to report for duty; and wrongfully absenting himself from his place of duty for 13 days.
At his trial, Scheffer claimed that he had been in the process of investigating two civilians allegedly selling drugs, a fact of which he had made the OSIinvestigators aware just before they administered the urine and polygraph tests. He testified that, in the course of his undercover work, he had visitedthe home of one of the civilians under suspicion. After leaving the residenceof the alleged drug dealer, he indicated, he had lost all memory for some time. Thus he claimed "innocent ingestion," holding that he had unwittingly ingested drugs, which his host (or some other guest at the home of the alleged dealer) had presumably slipped into a drink or otherwise secreted into his bloodstream. The prosecution said of Scheffer, "He lies. He is a liar. He lies at every opportunity he gets and he has no credibility. He knowingly used methamphetamine, and he is guilty . . . " To counter these claims, and to prove his innocence, Scheffer sought to introduce the exculpatory results of the earlier polygraph examination.
But the military judge refused to allow that evidence before the court, citing Military Rule of Evidence 707, which states in part that "Notwithstanding other provisions 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."Thus use of polygraph evidence was denied not only in situations where suchevidence would serve to exonerate the accused, but likewise in situations where it would serve the government's case. The military judge cited three reasons to support the constitutionality of his ruling: that "the President may, through the Rules of Evidence, determine that credibility is not an area in which a factfinder needs help"; that "the polygraph is not a process that has sufficient scientific acceptability to be relevant"; and that disputes over the relevance or reliability of a polygraph test would take up "an inordinate amount of time and expense."
The military court found Scheffer guilty, and sentenced him to a bad-conductdischarge, as well as 30 months' imprisonment, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. On appeal, the sentence was reversed by a 3-2 vote of the U.S. Court of Appeals for the Armed Forces.The majority held that per se exclusion of polygraph results violatesthe Sixth Amendment right to a legal defense, though it did not cite specificlanguage in the amendment.
A Question of Legitimate Interests
Justice Thomas's opinion stated that "legitimate interests" were served by excluding polygraph evidence--namely that "there is simply no consensus that polygraph evidence is reliable." He offered two other "legitimate interests" ("the jury's core function of making credibility determinations in criminal trials" and "avoiding litigation over issues other than the guilt or innocence of the accused"). Thomas was joined by a plurality.
These "legitimate interests" were essentially those cited by the military judge in the court-martial, whose ruling the Court upheld inasmuch as it reversed the decision of the appeals court. In presenting his response to the three"legitimate interest" questions, Justice Thomas noted that "A defendant's right to present relevant evidence is subject to reasonable restrictions to accommodate other legitimate interests in the criminal trial process." For this reason, there are rules governing the introduction or exclusion of evidence, and as long as they cannot be deemed "arbitrary" or "disproportionate to the purposes they are designed to serve," they do not infringe on the defendant'sSixth Amendment rights. Only when a rule excluding evidence denies "a weightyinterest of the accused," Justice Thomas wrote, can it be considered arbitrary or disproportionate. In the present instance, Rule 707 "serves the legitimate interest of ensuring that only reliable evidence is introduced." JusticeThomas then cited the great body of literature which questions the validity of polygraph results, as well as the view that, unlike other expert witnesses,a polygraph examiner in effect supplants the jury by offering simply one more opinion. Addressing the third "legitimate interest," he mentioned some of the ancillary (and time-consuming) disputes that would inevitably arise if polygraph evidence were allowed into the courtroom.
"A Serious Undervaluation" of Constitutional Rights
Justice Kennedy, joined by Justices Breyer, Ginsburg, and O'Connor, filed anopinion concurring in part and concurring in the judgment. In Justice Kennedy's view, only one of the three "legitimate interests" cited--that of stronglydiffering views regarding the validity of polygraph examinations--was necessary to invalidate the introduction of such evidence to a courtroom. As for the second "legitimate interest," the view that the use of polygraph evidence diminished the jury's role in determining the credibility of the accused, Justice Kennedy wrote that "With all respect . . . it seems the principal opinionoverreaches when it rests its holding on [this] additional ground." To prevent the jury from hearing "a conclusion about the ultimate issue at trial" was, Justice Kennedy held, a "tired argument," and one which demeaned jurors. This was particularly so, he noted, quoting the military's court-martial manual, due to "The statutory qualifications for military court members [which] reduce the risk that . . . [jurors] will be unduly influenced by the presentation of ultimate opinion testimony from psychiatric experts."
Justice Stevens filed a dissenting opinion, in which he attacked the Court'sruling as a "serious undervaluation of the importance of the citizen's constitutional right to present a defense." He stated that rather than approachingRule 707 simply from a constitutional standpoint, as the Court of Military Appeals had done, he would have also invalidated it on the basis that it violated Article 36(a) of the Uniform Code of Military Justice (UCMJ). Rule 707 wasa blanket rule of exclusion, Justice Stevens held, and thus "categorically denies the defendant any opportunity to persuade the court that the evidence should be received for any purpose." Taking the view that the use of polygraphevidence is not nearly as questionable as the Court would make it appear, Justice Stevens suggested that the very fact that polygraphs are used more regularly in the military than in private life ought to justify their use in a military court. Thus it was particularly ironic that Rule 707, as he noted, "has no counterpart" in federal civilian rules either for evidence or criminal procedure.
Justice Stevens then turned to the three sets of interests cited by the military court, and by the present majority opinion. In an observation cited by Justice Kennedy, he noted that given the special qualifications of the jurors who hear court-martial cases, as well as those of military polygraphers, "those interests pose less serious concerns in the military than in the civilian context." As for the question of what specific language in the Sixth Amendmentwould justify the use of polygraph evidence, Justice Stevens wrote that it was not necessary to point to specific language, since the Court's holding represented a clear abridgement of the right to a fair trial. In Washington v. Texas, he suggested, the Court had rejected a blanket rule of inadmissibility, but its current ruling tended to uphold just such a "potential injustice." In the latter part of his opinion, Justice Stevens approached the threecited interests--reliability, the role of the jury, and collateral litigation--and in each instance found arguments against the majority ruling.
Impact
Even before Scheffer, the use of polygraph evidence was on shaky ground. Thus Biskupic in the Washington Post noted that some 30 states already prohibited the introduction of polygraph evidence in court, "and some legal experts said [the Scheffer decision] may prompt the states that donot have outright prohibitions to consider imposing them." On the other hand,an official with the American Polygraph Association told Biskupic that the Court's opinion "represents an ongoing debate," and Biskupic herself noted that the Kennedy opinion suggested "that perhaps in the future another dispute might offer a more compelling case for the introduction of polygraph testimony." With regard to the other issue addressed in Scheffer, the less prominent but ultimately more significant question regarding exclusionary rules of evidence, future directions on the Court's part are less clear.
Related Cases
United States
Respondent
Edward Scheffer
Petitioner's Claim
That per se exclusion of polygraph evidence offered by the accused ina military court does not violate the Sixth Amendment right to present a defense.
Chief Lawyer for Petitioner
Michael D. Dreeben
Chief Lawyer for Respondent
Kim L. Sheffield
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor,William H. Rehnquist, Antonin Scalia, David H. Souter, Clarence Thomas (writing for the Court)
Justices Dissenting
John Paul Stevens
Place
Washington, D.C.
Date of Decision
31 March 1998
Decision
That Military Rule of Evidence 707, which makes polygraph evidence inadmissible in court-martial proceedings, does not unconstitutionally abridge the right of accused members of the military to present a defense.
Significance
This case marked the first occasion on which the Supreme Court issued a ruling with regard to the highly controversial matter of polygraph, or "lie-detector," testing.
The United States v. Scheffer ruling came, as legal writer Joan Biskupic noted in the Washington Post, "at a time when [polygraph] machinesare increasingly being used outside the courtroom"--and inside as well. Prosecutors were using polygraph results "to extract confessions from suspects," Biskupic observed, and defense lawyers were using "them for leverage in plea bargains"; likewise polygraph tests were being subjected to greater and greater use in the workplace. Employers were using them to test job applicants withregard to past wrongdoing, and to monitor present jobholders as well. Whilethe latter practice might raise Fourth Amendment questions of its own, the use of polygraph results in the courtroom had become a battleground for opposing factions of evidentiary experts.
Airman Scheffer Claims "Innocent Ingestion"
In March of 1992, when he volunteered to work as an informant with the Air Force Office of Special Investigations (OSI), Edward Scheffer was serving as anairman at March Air Force Base in California. At that time he was advised ofthe fact that the OSI would require him to submit to periodic drug testing and polygraph examinations to ensure that he remained drug-free in spite of the repeated exposure to drugs that his undercover work would entail. Accordingly, he was given a urinalysis test in early April, and soon afterward--beforethe results of his urinalysis were known--he was administered a polygraph examination. In the latter test, the OSI examiner asked Scheffer three relevantquestions: (1) "Since you've been in the [Air Force], have you used any illegal drugs?"; (2) "Have you lied about any of the drug information you've given OSI?"; and (3) "Besides your parents, have you told anyone you're assistingOSI?" Scheffer answered "No" to each of these, and in the opinion of the OSIexaminer, who evaluated his polygraph test, his pulse rate while answering these questions "indicated [that] no deception" was taking place.
But starting on 30 April 1992, a bizarre series of events began to unfold. Scheffer failed to show up for work, and could not be found anywhere on the airbase. In an ordinary context, this would undoubtedly have gotten him fired,but due to the fact that he was an enlisted member of the U.S. armed forces,Scheffer's disappearance had considerably more severe consequences. He remained AWOL (absent without leave) until 13 May when he turned up in Iowa, nearly2,000 miles away from the California air base. An Iowa state patrolman, making a routine traffic stop, became aware of the fact that Scheffer was an AWOLserviceman, and arrested him. Meanwhile, OSI agents learned that Scheffer'surinalysis had rendered a positive result for the presence of methamphetamine--this despite the fact that his polygraph tests seemed to indicate that he was not lying when he said he had used no illegal drugs. Scheffer was subjected to a general court-martial on four charges, including an unrelated matter involving his issuance of 17 bad checks. The facts relevant to the case that brought him before the Supreme Court included charges of using methamphetamine, an illegal stimulant consumed recreationally; failure to report for duty; and wrongfully absenting himself from his place of duty for 13 days.
At his trial, Scheffer claimed that he had been in the process of investigating two civilians allegedly selling drugs, a fact of which he had made the OSIinvestigators aware just before they administered the urine and polygraph tests. He testified that, in the course of his undercover work, he had visitedthe home of one of the civilians under suspicion. After leaving the residenceof the alleged drug dealer, he indicated, he had lost all memory for some time. Thus he claimed "innocent ingestion," holding that he had unwittingly ingested drugs, which his host (or some other guest at the home of the alleged dealer) had presumably slipped into a drink or otherwise secreted into his bloodstream. The prosecution said of Scheffer, "He lies. He is a liar. He lies at every opportunity he gets and he has no credibility. He knowingly used methamphetamine, and he is guilty . . . " To counter these claims, and to prove his innocence, Scheffer sought to introduce the exculpatory results of the earlier polygraph examination.
But the military judge refused to allow that evidence before the court, citing Military Rule of Evidence 707, which states in part that "Notwithstanding other provisions 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."Thus use of polygraph evidence was denied not only in situations where suchevidence would serve to exonerate the accused, but likewise in situations where it would serve the government's case. The military judge cited three reasons to support the constitutionality of his ruling: that "the President may, through the Rules of Evidence, determine that credibility is not an area in which a factfinder needs help"; that "the polygraph is not a process that has sufficient scientific acceptability to be relevant"; and that disputes over the relevance or reliability of a polygraph test would take up "an inordinate amount of time and expense."
The military court found Scheffer guilty, and sentenced him to a bad-conductdischarge, as well as 30 months' imprisonment, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. On appeal, the sentence was reversed by a 3-2 vote of the U.S. Court of Appeals for the Armed Forces.The majority held that per se exclusion of polygraph results violatesthe Sixth Amendment right to a legal defense, though it did not cite specificlanguage in the amendment.
A Question of Legitimate Interests
Justice Thomas's opinion stated that "legitimate interests" were served by excluding polygraph evidence--namely that "there is simply no consensus that polygraph evidence is reliable." He offered two other "legitimate interests" ("the jury's core function of making credibility determinations in criminal trials" and "avoiding litigation over issues other than the guilt or innocence of the accused"). Thomas was joined by a plurality.
These "legitimate interests" were essentially those cited by the military judge in the court-martial, whose ruling the Court upheld inasmuch as it reversed the decision of the appeals court. In presenting his response to the three"legitimate interest" questions, Justice Thomas noted that "A defendant's right to present relevant evidence is subject to reasonable restrictions to accommodate other legitimate interests in the criminal trial process." For this reason, there are rules governing the introduction or exclusion of evidence, and as long as they cannot be deemed "arbitrary" or "disproportionate to the purposes they are designed to serve," they do not infringe on the defendant'sSixth Amendment rights. Only when a rule excluding evidence denies "a weightyinterest of the accused," Justice Thomas wrote, can it be considered arbitrary or disproportionate. In the present instance, Rule 707 "serves the legitimate interest of ensuring that only reliable evidence is introduced." JusticeThomas then cited the great body of literature which questions the validity of polygraph results, as well as the view that, unlike other expert witnesses,a polygraph examiner in effect supplants the jury by offering simply one more opinion. Addressing the third "legitimate interest," he mentioned some of the ancillary (and time-consuming) disputes that would inevitably arise if polygraph evidence were allowed into the courtroom.
"A Serious Undervaluation" of Constitutional Rights
Justice Kennedy, joined by Justices Breyer, Ginsburg, and O'Connor, filed anopinion concurring in part and concurring in the judgment. In Justice Kennedy's view, only one of the three "legitimate interests" cited--that of stronglydiffering views regarding the validity of polygraph examinations--was necessary to invalidate the introduction of such evidence to a courtroom. As for the second "legitimate interest," the view that the use of polygraph evidence diminished the jury's role in determining the credibility of the accused, Justice Kennedy wrote that "With all respect . . . it seems the principal opinionoverreaches when it rests its holding on [this] additional ground." To prevent the jury from hearing "a conclusion about the ultimate issue at trial" was, Justice Kennedy held, a "tired argument," and one which demeaned jurors. This was particularly so, he noted, quoting the military's court-martial manual, due to "The statutory qualifications for military court members [which] reduce the risk that . . . [jurors] will be unduly influenced by the presentation of ultimate opinion testimony from psychiatric experts."
Justice Stevens filed a dissenting opinion, in which he attacked the Court'sruling as a "serious undervaluation of the importance of the citizen's constitutional right to present a defense." He stated that rather than approachingRule 707 simply from a constitutional standpoint, as the Court of Military Appeals had done, he would have also invalidated it on the basis that it violated Article 36(a) of the Uniform Code of Military Justice (UCMJ). Rule 707 wasa blanket rule of exclusion, Justice Stevens held, and thus "categorically denies the defendant any opportunity to persuade the court that the evidence should be received for any purpose." Taking the view that the use of polygraphevidence is not nearly as questionable as the Court would make it appear, Justice Stevens suggested that the very fact that polygraphs are used more regularly in the military than in private life ought to justify their use in a military court. Thus it was particularly ironic that Rule 707, as he noted, "has no counterpart" in federal civilian rules either for evidence or criminal procedure.
Justice Stevens then turned to the three sets of interests cited by the military court, and by the present majority opinion. In an observation cited by Justice Kennedy, he noted that given the special qualifications of the jurors who hear court-martial cases, as well as those of military polygraphers, "those interests pose less serious concerns in the military than in the civilian context." As for the question of what specific language in the Sixth Amendmentwould justify the use of polygraph evidence, Justice Stevens wrote that it was not necessary to point to specific language, since the Court's holding represented a clear abridgement of the right to a fair trial. In Washington v. Texas, he suggested, the Court had rejected a blanket rule of inadmissibility, but its current ruling tended to uphold just such a "potential injustice." In the latter part of his opinion, Justice Stevens approached the threecited interests--reliability, the role of the jury, and collateral litigation--and in each instance found arguments against the majority ruling.
Impact
Even before Scheffer, the use of polygraph evidence was on shaky ground. Thus Biskupic in the Washington Post noted that some 30 states already prohibited the introduction of polygraph evidence in court, "and some legal experts said [the Scheffer decision] may prompt the states that donot have outright prohibitions to consider imposing them." On the other hand,an official with the American Polygraph Association told Biskupic that the Court's opinion "represents an ongoing debate," and Biskupic herself noted that the Kennedy opinion suggested "that perhaps in the future another dispute might offer a more compelling case for the introduction of polygraph testimony." With regard to the other issue addressed in Scheffer, the less prominent but ultimately more significant question regarding exclusionary rules of evidence, future directions on the Court's part are less clear.
Related Cases
- Frye v. United States, 293 F. 1013 (1923).
- Washington v. Texas, 388 U.S. 14 (1967).
- Chambers v. Mississippi, 410 U.S. 284 (1973).
- Rock v. Arkansas, 483 U.S. 44 (1987).
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
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