CORE CRIMINAL LAW SUBJECTS: Evidence: Polygraph

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). 

 

2002

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).

United States v. Tanksley, 54 MJ 169 (portion of appellant’s pretrial statement referencing his refusal to take a polygraph examination should have been redacted prior to providing the statement to the finder of fact).


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