2008 (September Term)
United
States v. Gardinier, 67 M.J. 304 (MRE 707
prohibits the results of
a polygraph examination and the opinion of a polygraph examiner from
being
admitted into evidence; polygraph evidence is prohibited because the
reliability of polygraph evidence has not been sufficiently established
and its
use at trial impinges upon the integrity of the judicial system).
United
States v. Tyndale, 56 MJ 209 (although appellant’s
case
was tried while United States v. Scheffer, 44 MJ 442 (1996),
was the
state of the law with respect to admissibility of polygraph evidence in
military trials, the court determined to apply the Supreme Court
decision in United
States v. Scheffer, 523 U.S. 303 (1998), retroactively and review
the trial
judge’s admission of a government polygraph as rebuttal to defense
polygraph
evidence for plain error).
(appellant failed to show that erroneous admission of government
polygraph
evidence designed to rebut defense polygraph evidence materially
prejudiced a
substantial right because: (1) other than the fact that he was
convicted,
appellant points to nothing that would support a blanket assertion that
the
members reached their findings of guilt solely by rejecting appellant’s
polygraph experts and accepting the government’s; (2) precedent does
not
support the general proposition that an accused be allowed to put his
credibility in issue without challenge from the prosecution; and (3)
appellant’s own erroneously admitted polygraphs likely negated any
potential
prejudicial error stemming from the government’s polygraph).
2001
United
States v. Whitney,
55 MJ 413 (the opinion of a polygrapher as to the
truthfulness of
an appellant is inadmissible evidence pursuant to Mil.R.Evid. 707(a)).
2000
United
States v. Clark, 53 MJ 280 (military judge
committed plain
and obvious error by admitting a stipulation of fact into evidence
during a
providence inquiry where that stipulation noted that appellant agreed
to take a
polygraph test and that he failed that test. See Military
Rule of
Evidence 707).
United
States v. Southwick, 53 MJ 412 (where defense did
not object
to evidence that informant had taken a polygraph examination as part of
a
background investigation prior to being used as an informant, the
matter will
be reviewed for plain error).
(although it was clear or obvious error to permit evidence of a
polygraph
examination taken by an informant, appellant did not carry his burden
of
establishing material prejudice where: (1) the polygraph was not
presented as substantive proof; (2) there was no evidence of the
subject matter
of the polygraph; (3) there was no evidence of any responses given
during the
course of the polygraph; (4) there was no suggestion that the polygraph
was
used to measure the truthfulness of the informant’s reports to law
enforcement
regarding appellant’s misconduct; (5) the polygraph was not mentioned
to
bolster the informant’s testimony; and (6) it was the defense counsel
who
elicited the disclosure regarding the polygraph examination).