United States v. Scheffer

Justice Kennedy, joined by Justices Breyer, Ginsburg, and O'Connor, filed an opinion concurring in part and concurring in the judgment. In Justice Kennedy's view, only one of the three "legitimate interests" cited--that of strongly differing 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 opinion overreaches 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's ruling as a "serious undervaluation of the importance of the citizen's constitutional right to present a defense." He stated that rather than approaching Rule 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 was a 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 polygraph evidence 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 Amendment would 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 three cited interests--reliability, the role of the jury, and collateral litigation--and in each instance found arguments against the majority ruling.