Polygraphy Revisited: U.S. v. Scheffer Melvin G. Goldzband, MD U.S. v. Scheffer is a case that poses two questions. First, must a defendant who wishes to place polygraphic evidence before the court be allowed to do so for fear that refusal will create a Constitutional issue by depriving him of due process? Second, is polygraphic evidence admissible evidence at all, as defined by the Military Rule of Evidence or the Federal Rules of Evidence? The case, originally tried in Court-Martial, was reviewed by two military courts of appeal, with resulting judicial dissention leading to the granting of certiorari by the U.S. Supreme Court. In its decision, the Supreme Court affirmed the refusal of the Court-Martial to admit the requested polygraphic evidence. Airman Edward G. Scheffer had been tions (OSI) of the United States Air Force convicted in a general court-martial in (U.S.A.F.). Soon afterward, he told OSI 1992. Contrary to his pleas of innocence, about two men who were dealing in large he was charged with and convicted of amounts of illicit drugs. Scheffer was passing bad checks to the extent of more asked by OSI to provide a urine speci- than $3,300.00, "wrongfully using meth- men, a routine procedure for controlled amphetamine" (does the Air Force ac- informants. He readily agreed to do so, knowledge a right way to use it?), failing but asked for a delay of a day because, as to go to his appointed place of duty, and he explained, he was able to urinate only being absent without leave (AWOL) for once daily. A few days later, OSI asked 13 days. Scheffer had been picked up in him to submit to a polygraphy examina- Iowa, far distant from his California base tion. The examiner asked three questions: to which he was promptly returned. He (1) had he ever used drugs while in the had been driving at an excessive speed Air Force; (2) had he ever lied regarding and with a suspended license. any of the information given to OSI; and As further background, in March 1992, (3) had he ever told anyone other than his Scheffer had begun to work as an infor- parents that he worked for OSI? No other mant for the Office of Special Investiga- questions were noted in the descriptive histories of the case in any of the court Dr. Goldzband is Clinical Professor Emeritus of Psychi- summaries, so it is not known here if any atry and Director Emeritus of Forensic Psychiatric Training, School of Medicine, University of California, other questions were asked of the defen- San Diego. Address correspondence to: Melvin G. Goldz- dant. But regarding those three significant band, MD, 4709 La Rueda Dr., La Mesa, CA 91941; E-mail: [email protected] questions quoted, Scheffer answered all J Am Acad Psychiatry Law, Vol. 27, No. 1, 1999 133 Goldzband of them in the negative, and the examiner relevant to the credibility of a witness. In concluded that no deception was indi- part, the analysis of Scheffer's case by the cated. However, the urinalysis had proven U.S.A.F. Court of Criminal Appeals positive for methamphetamine, a situa- stated that, although there must be an tion discovered by OSI only after the assumption that Scheffer's credibility was polygraphy examination. indeed relevant and vital to his defense, The court-martial sentenced him to a ". we do not believe that presentation bad conduct discharge, a reduction to the of polygraph evidence was vital to the lowest enlisted grade, total forfeitures, court members' assessment of. [his]. and a 30-month confinement. The credibility." That affirming Appellate U.S.A.F. Court of Criminal Appeals re- Criminal Court reviewed considerable viewed the matter and affirmed the deci- law regarding polygraphy, going back to sion of the court-martial.' On May 8, the familiar Frye test (Frye v. U.S.,293 F. 1996, the case was argued before the U.S. 1013 (D.C. Cir. 1923)). They noted their Court of Appeals for the Armed Forces. ". inability to locate any federal case. The issue to be decided by that court was either before or after the promulgation of "whether the military judge erred in de- the Federal Rules of Evidence, which nying appellant's motion to present evi- suggests that the federal rule or any sim- dence of a favorable polygraph result ilar state rule unconstitutionally interferes concerning his denial of use of drugs with an accused's rights to due process or while in the Air ~orce".~ to present a defense." They also com- The decision of that court was that the mented about the fact that, at the time original decision of the court-martial and their opinion was written, "most of the the affirmation by the U.S.A.F. Court of federal courts of appeal still hold that Criminal Appeals was to be set aside. In polygraph evidence cannot be introduced the opinion of the higher appellate court, . to establish the truth of statements the rule prohibiting polygraph evidence made during the examination. " was unconstitutional as ". applied to One of the U.S.A.F. Court of Criminal the case in which the testifying accused Appeals judges, in his separate, partially offered it to rebut the attack on his cred- dissenting opinion, opined that the pros- ibility." The court also held that founda- ecution's case rested entirely on the sci- tional evidence for the proffered poly- entific evidence of the urinalysis. The graph examination must establish that the judge asked: underlying theory is scientifically valid Do urinalysis machines, or their operators, and can be applied to the accused's case. make "mistakes" which go undetected through The affirmation by the U.S.A.F. Court normal quality control? We need only look at of Criminal Appeals had been made in the Pentium computer chips that cannot divide, nu- clear reactors that go haywire, and space shut- face of knowledge that a higher court, the tles that don't launch to answer that question. U.S. Court of Appeals for the Armed So what if you are wrongfully accused of Forces, had previously held that poly- drug use based upon an erroneous urinalysis graph examinations could be considered result?. Because of the nebulous nature of 134 J Am Acad Psychiatry Law, Vol. 27, No. 1, 1999 Polygraphy Revisited: US. v. Scheffer the prosecution's evidence, you basically have Rules of Evidence. Judges now must act only your word. But why should a judge or jury as gatekeepers. They may seek to deter- believe you, as opposed to the prosecution's "scientific" evidence, if you choose to testify? mine (with expert help, it is hoped) Credibility! whether or not a mechanism, theory, ma- in a urinalysis case, the accused's credibility chine, or what-have-you, upon which ex- becomes the whole ball game. since urinal- pert testimony is based, is acceptable to a ysis machines cannot be cross-examined. significant proportion of the members of Polygraphs are also machines operated by hu- mans which produce results interpreted by hu- that expert's profession. mans. Polygraph evidence reflects on the cred- The dissenting judge in the U.S.A.F. ibility of an accused's denial of having used the Court of Criminal Appeals. regardless of drug charged (U.S. v. Gipsoiz, 24 M. J., 253; his certainly being close either to touting US. v. McMorris, 643 F.24 at 461-2). 1s it admissible on an accused's behalf? We think so the machines purporting to uncover lies despite the absolute prohibition in Military or else selling short any and all machines Rule of Evidence 707. ' purporting to tell or do anything. in the Thus, polygraphy remains a seemingly end properly based his dissent on legal constant focus of arguments in the courts. rather than scientific grounds. He stated In Scheffer, the first appellate court knew that he recognized ". a constitutional that the higher court would probably dis- escape clause to Military Rule of Evi- agree, but it nonetheless ruled to affirm dence 707. " He noted that the Mili- the court-martial's refusal to allow poly- tary Rules of Evidence indicate that poly- graph evidence. In that court, however, as graph evidence is ". not admissible has been noted, a dissenting judge dis- unless it is 'constitutionally required to be agreed with the Military Rule of Evidence admitted,' that is. unless it is relevant regarding polygraphy. A reading of his material and favorable to the defense. cf. opinion may reflect the notion that if one U.S. v. Williams, 37 M.J. 352 (C.A.A.F. "machine" proving evidence can be ac- 1993). " The dissenting judge opined cepted. another "machine" can, too, es- that the military judge in the court-martial pecially if it has an operator to cross- denied the defendant the opportunity to examine. demonstrate that his polygraph evidence On the basis of one aspect of logic, that met the constitutionally required criteria conclusion makes sense. On the basis of for admission. another, aside from the fact that even The decision of the U.S. Court of Ap- "urinalysis machines" have operators, it peals for the Armed Forces, in setting makes none at all, as most psychiatrists aside the decision of the court-martial and would agree. Dnubert v. Merrell Dow the affirmation of the earlier appellate Pharmaceuticals, Znc. (509 U.S. 579 court, noted that, at the court-martial, the (1993)) sometimes tends to affirm that as defendant had asked the military judge well, again depending upon the opinion for an opportunity to lay a foundation for of the judge.