United States v. Scheffer

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 an airman at March Air Force Base in California. At that time he was advised of the 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--before the results of his urinalysis were known--he was administered a polygraph examination. In the latter test, the OSI examiner asked Scheffer three relevant questions: (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 assisting OSI?" Scheffer answered "No" to each of these, and in the opinion of the OSI examiner, 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 air base. 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, nearly 2,000 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 AWOL serviceman, and arrested him. Meanwhile, OSI agents learned that Scheffer's urinalysis 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 OSI investigators aware just before they administered the urine and polygraph tests. He testified that, in the course of his undercover work, he had visited the home of one of the civilians under suspicion. After leaving the residence of 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 such evidence 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-conduct discharge, 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 violates the Sixth Amendment right to a legal defense, though it did not cite specific language in the amendment.