2018 (October Term)
United States v. Kohlbek, 78 M.J. 326 (MRE 707 provides that notwithstanding any other provision 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; interpreting MRE 707 in line with ordinary rules of statutory construction and the rules of evidence generally recognized in the trial of criminal cases in the US district courts, the prohibition on any reference to the taking of a polygraph examination does not encompass evidence regarding the facts and circumstances of a polygraph examination procedure offered to explain the reason or motivation for a confession).
(the prohibition on any reference to the taking of a polygraph examination must be understood in the context of the entire rule; MRE 707 lists three categories of polygraph examination information that may not be admitted into evidence: (1) the results; (2) the polygraph examiner’s opinion; and (3) any reference to an offer to take, failure to take, or taking of a polygraph examination; the prohibition on evidence of the results of a polygraph examination is the clear target of this rule, and the remaining prohibitions are calibrated to exclude evidence that would permit panel members to infer, or otherwise draw conclusions about, the results of a polygraph examination; all these prohibitions are tied to the core concern that polygraph examinations are scientifically unreliable; evidence of the facts and circumstances of a polygraph examination procedure offered to explain the reason or motivation for a confession are in no way tied to the reliability of the test itself; thus, military judges may exercise their discretion in deciding whether to admit evidence regarding the facts and circumstances surrounding a polygraph examination to explain the reason or motivation for a confession).
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).