By: Ava Malkin
Volume X – Issue II – Spring 2025
I. INTRODUCTION
In the landmark Supreme Court case U.S. v. Scheffer (523 U.S. 303 (1998)) [1], the Court determined that there is “simply no consensus that polygraph evidence is reliable.” Being the first instance that the highest court of the United States ruled on the admissibility of polygraph evidence specifically, Scheffer delegitimized lie detection as a valid form of evidence and negated any violation of one’s Sixth Amendment right to present a defense using polygraph evidence. While many legal scholars condemn the majority opinion, Scheffer offers a crucial case study for military law and polygraph evidence; the decision has lasting impacts on the admissibility of evidence for future legal cases in military, state, and federal courts, which the present paper intends to explore.
II. MILITARY LAW
Before delving into the case itself, it is essential to recognize the unique nature of Scheffer due to the fact that it originated in the military court system. Thus, this case operates using a general courtmartial panel, composed of officer members, as their lower court, while also utilizing an entirely different set of laws and regulations—the Uniform Code of Military Justice. [2]
This separate set of laws implies different procedures for the admission of evidence into the military court. Before 1980, the military legal system determined whether evidence was admissible based on the Manual for Courts-Martial, which was essentially a “how-to guide” on admitting evidence, as well as other military court conduct. [3] Except, it was entirely unclear which portions of the manual were legally binding and which were explanatory, leaving the officer members to decipher on a case-by-case basis. The Army began proposing and advocating for the codification of these guidelines into official law, which they then began drafting in early 1978. While the Navy initially opposed the codification of the Manual into law because they thought it was low priority and would demand far too much litigation to legalize a document already in existence, they eventually assisted in the project, enacting a codification process with the Joint Service Committee on Military Justice. [4]
On March 12, 1980, President Jimmy Carter issued Executive Order 12198, which officially created the Military Rules of Evidence, amending the Manual for Courts-Martial and taking inspiration from on the Federal Rules of Evidence (which are utilized in civil and criminal trials in United States federal trial courts) to make a set of rules specifically tailored to military situations. These rules were rendered effective on September 1, 1980, and it became the responsibility of future presidents to amend the Military Rules of Evidence through Executive Orders.
In June of 1991, President George W. Bush did exactly that, promulgating the Military Rule of Evidence 707(a)—hereinafter “Rule 707”—through Executive Order 12767. [5] Rule 707 was the only new amendment to Section VII (Opinions and Expert Testimony) in this particular executive order, and it states: “Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.” [6] As a per se rule, Rule 707 deems polygraph evidence entirely inadmissible in court-martial proceedings, employing a complete ban rather than a case-by-case evaluation of lie detector results.
Before Scheffer, Rule 707 remained controversial. United States v. Williams (43 M.J. 348 (1995)) was a military case in which a Chaplains’ Fund Clerk—in charge of collecting and disbursing funds for the chaplaincy within the Voluntary Corps—was accused of making eighteen unauthorized payments from the fund account. The accused took a polygraph test in which he admitted that he misappropriated three, not eighteen, checks, and the examiner concluded that there was “no deception.” [7] Based on Rule 707, the military judge denied the accused from admitting the polygraph evidence, confirming the basis of inadmissibility established by Rule 707 that Scheffer would later argue.
Hence, Rule 707 is the core tension that Scheffer sought to address a mere seven years later, questioning whether the rule abridges the Sixth Amendment right of a defendant. Therefore, it is vital to explore this landmark case as well as its implications on future military, state, and federal cases.
III. U.S. v. SCHEFFER (1998)
i. Facts
Edward Scheffer, an airman stationed at March Air Force Base in California, began working as an informant for the Air Force Office of Special Investigations (OSI) in March 1992. In this position, Scheffer functioned as an informant on drug investigations with explicit knowledge of the possibility of facing drug tests. In April 1992, Scheffer’s OSI supervisors asked him to submit a urine sample for testing, as well as complete a polygraph examination, administered by an OSI examiner. The lie detector examiner asked Scheffer three questions—if he ever used drugs while enlisted, if he ever lied in drug information given to OSI, and if he told anyone he was assisting in OSI. Scheffer responded with “No” to all queries.
While the polygraph examiner deemed that there was “no deception” in Scheffer’s polygraph in which he denied using drugs since enlisting, his urinalysis came back positive for methamphetamine. From April 30th to May 13th, Scheffer suddenly became absent without leave until he was found during an Iowa traffic stop. Upon his return, the airman was court-martialed for various offenses, including drug use, failing to go to his appointed place of duty, and wrongfully absenting himself, as well as seventeen insufficient funds checks. [8]
ii. Procedural History
Scheffer testified on his own behalf, using an “innocent ingestion” defense in which he fervently denied that he knowingly used drugs. Innocent ingestion is a defense used in military courts in which the individual knows how the illegal substance was consumed, but they did not knowingly consume it; this is distinct from unknowing or accidental ingestion, where the individual claims they have no idea how they consumed or absorbed the substance. [9] In other words, Scheffer claimed that he did not intentionally or wrongfully consume methamphetamine, but he knows how he may have ingested it.
The defendant wanted to introduce the polygraph evidence that found “no deception” on his behalf to support his testimony that he did not intentionally use drugs and to strengthen his credibility/defense. The general court-martial panel denied this motion on the basis of Rule 707, arguing that polygraph evidence like Scheffer’s is never permitted in military courtrooms. Scheffer was convicted on all charges, and he appealed on the grounds that Rule 707 violated his Sixth Amendment rights to present a defense. The Sixth Amendment states:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” [10]
While some scholars argue that this reasoning relies upon the Sixth Amendment protection of a defendant’s introduction of critical evidence and their right to present a defense, others argue that the defense failed to point to any language of the amendment specifically, rendering his argument illogical. [11,12] Nonetheless, the Air Force Court of Criminal Appeals affirmed, upholding Rule 707 and suggesting that no Sixth Amendment violation occurred.
In a 3-to-2 vote, the U.S. Court of Appeals for the Armed Forces reversed the Air Force Court of Appeals’ decision. Again, without highlighting any constitutional language specifically, the appellate court determined that the per se exclusion of polygraph evidence, as outlined by Rule 707, prevented Scheffer from defending himself and establishing his credibility, thereby violating his Sixth Amendment right to present a defense. This connection between the Sixth Amendment and the right to a defense is something later criticized by the majority opinion of the Supreme Court, but the appellate court utilized the general framework of the Sixth Amendment to argue for why Scheffer should be permitted to introduce evidence in his favor. Judge Crawford, dissenting, stated that a defendant does not have an absolute right to present evidence, and evidence can be excluded for valid reasons like that of Rule 707, which excludes polygraph evidence for the fact that it is unreliable. The case was appealed to the Supreme Court on this question about the legality of Rule 707 and the exclusion of polygraph results.
The Supreme Court granted certiorari and reversed in an 8-to-1 decision. [13]
iii. Rule of Law
In the majority opinion, Justice Clarence Thomas referenced a collection of cases in which the Court established that for evidence to be admitted in criminal trials, it must accommodate other legal interests (e.g., providing explanation when the defendant is the only eyewitness), meaning they do not require Rule 707 to be invalidated.
Specifically, the decision cited Washington v. Texas (388 U.S. 14 (1967)), where the Court determined that a statute preventing co-defendants or co-participants from testifying for one another violated the Sixth Amendment because the rule arbitrarily denied a witness testifying to events they observed. [14] For Scheffer, however, Rule 707 did not prevent the airman from testifying to his experiences, it only barred him from doing so through his polygraph evidence. The Court also cited Chambers v. Mississippi (410 U.S. 284 (1973)), in which the Court deemed a rule preventing a party from impeaching a witness to be unconstitutional, reinforcing the fact that if the accused is denied a fair opportunity to defend themselves as Scheffer claimed, the Court will properly intervene. [15] A third case utilized in the Court’s reasoning was Rock v. Arkansas (1987), where the defendant was accused of killing her husband and could only remember facts about the crime after hypnosis, the Court decided that a rule excluding hypnosis violated her constitutional rights because it deprived the jury of the testimony of the only witness at the crime scene. [16] In Scheffer’s case, he was not prevented from presenting his own version of the events, but again, Rule 707 simply deemed he could not testify on his own behalf using lie detection evidence.
The Court relied on these previous cases to determine that Rule 707 did not prevent Scheffer from excluding any factual evidence, but instead prevented him from including lie detection results or expert opinion testimony from the examiner to strengthen his credibility, denying his claim about a Sixth Amendment infringement.
iv. Decision
In the majority opinion, Justice Thomas claimed that Rule 707 is not arbitrary nor disproportionate in promoting its end, and it serves legitimate interests in the criminal trial process, meaning Scheffer’s argument is invalid, and this military evidence restriction is not unconstitutional under the Sixth Amendment.
Justice Thomas outlined distinct reasons why Rule 707 reflects a legitimate interest in promoting criminal procedure. First, he stated that the courts shall not admit unreliable evidence, and, because polygraph evidence has no scientific consensus within the literature nor legal agreement within state and federal rules, Rule 707 “is a rational and proportional means of advancing the legitimate interest in barring unreliable evidence.” [17]
Next, he emphasized that evidence should not prevent the jury from making credible decisions, and, with unreliable evidence like the polygraph test, there is concern that the trier of fact may give undue weight to the opinions of a polygrapher or the results of an examination. [18] Because a judge cannot know whether or not this will occur, regulations like Rule 707 exist to ensure the jury’s role is not diminished by unduly swaying them with unreliable lie detection methods.
Justice Thomas also argued that the courts should not admit evidence that heightens the probability of prolonged litigation or collateral arguments about the evidence, as this could increase the time and expenses for the trial; admitting polygraph evidence would require further investigation into the qualifications and credibility of the examiner, as well as the quality of the equipment, the testing procedures, and the questions asked, which would drag out the trial with legal matters other than the defendant's guilt or innocence. [19] Because of these factors, the Court reversed the U.S. Court of Appeals for the Armed Forces’s decision, thereby returning to the original ruling from the general court-martial panel and upholding the constitutionality of the rule that bars polygraph evidence from entering military courts.
v. Importance
This case is considered highly significant to evidence procedures and the legal field because it made a divisive ruling on an extremely controversial issue: determining the admissibility of lie detector tests. Leading up to Scheffer, there was a long tradition of ambivalence and hostility toward polygraph evidence. Courts had been generous towards other, more accepted/respected methods of evidence collection, such as eyewitness testimony, fingerprinting, and handwriting identification, meaning Scheffer stands out by denying polygraph evidence due to its unreliability and potential impact on the case. While the Court defends and preserves a defendant’s rights to testify as to their own experiences, as exemplified via their three cited precedents, this decision indicates that one’s right to defend themself is not absolute, namely when that defense requires polygraph evidence.
IV. CRITICISMS
i. From Concurring
The concurring opinion, given by Justice Anthony Kennedy, and joined by Justices Sandra Day O’Connor, Ruth Bader Ginsburg, and Stephen Breyer, agrees that the rule of exclusion is not so arbitrary nor disproportionate that Rule 707 is unconstitutional. [20] However, these justices do not entirely agree that a per se exclusionary rule is most wise, as some future cases could present a compelling reason for the introduction of polygraph testimony, and no military court will permit it due to Rule 707. They also believe there is a discrepancy between the government’s extensive use of lie detection methods for security purposes and the holding of the Court. In this sense, the concurring opinion highlights the ways in which the majority opinion was hypocritical and narrow-minded in their ruling. [21]
ii. From Dissenting
Justice John Paul Stevens’s dissenting opinion begins with his argument that President Bush violated the Constitution when he promulgated Rule 707 in 1991, stating that this rule of evidence violates Article 36(a) of the Uniform Code of Military Justice, which suggests military rules be similar to the federal legal practices. Justice Stevens expresses concern that “Rule 707 is a blanket rule of exclusion” that “categorically denies the defendant any opportunity to persuade the court.” He emphasizes that the previous court cases often found evidence exclusion to be invalid, meaning that they were moving towards less strict rules of scientific evidence in courts (i.e., cases being assessed on a case-by-case basis rather than barring unreliable evidence). The dissenting opinion expands more on the particular details of the majority opinion as well, including the fact that the Court pointing out “any particular language in the Sixth Amendment” is inappropriate to their conclusion, suggesting overall that Rule 707 is a constitutional violation and military defendants like Scheffer should be able to defend themselves in court. [22]
iii. From Legal Scholars
Regardless of whether scholars adamantly condemn the Scheffer decision, many note that Rule 707 itself was a dramatic shift from prior military precedent (a per se exclusion of evidence rather than a mere suggestion to be evaluated per case); [23] they attack Rule 707 for its absolutist stance on evidence and potential defenses. [24]
At the same time, some legal scholars agree with Justice Stevens that the ruling was flawed, especially emphasizing the Court’s longstanding anti-polygraph stance and focusing on the point that the Scheffer ruling is inconsistent with previous proceedings from the Court itself. [25, 26] Some also point out the fact that Justice Thomas was only joined in full by three other justices, suggesting that the concurring and dissenting opinions might actually share the more agreeable perceptions on the case. [27] Regarding the reliability argument, some experts believe this is a byproduct of the Court’s own distrust of polygraph results, as Justice Stevens suggests there is evidence that finds lie detection to be somewhat reliable, yet Justice Thomas compared it to a coin toss. In terms of the majority opinion’s legitimate interest in the triers of fact, legal scholars believe that Justice Thomas somewhat contradicted himself in his argument about the jury giving undue weight to the evidence, as he said they also have “natural intelligence” and “practical knowledge,” yet that is not sufficient enough for jurors to not place excessive weight on and/or be swayed by the lie detection evidence.
Finally, many believe that the Court did not adequately address this defendant and their rights, as well as potential future defendants who might face issues with Rule 707. One legal writer pointed out that the Court did not consider what might be at stake for defendants who offer polygraph evidence and instead simply blocked evidence that might support a future defendant. In other words, while some scholars agree that Scheffer’s polygraph results might not need to be admitted into evidence, especially considering his innocent ingestion theory, there might be some case in the future where the defendant needs the lie detection to support their case. Another legal academic considers Scheffer to be an “unbalanced analysis of the competing interests,” which ultimately distorted all future precedent. [28] This disruption occurred because many critics believe that Scheffer put a limit on the extent to which the Constitution protects a defendant’s introduction of critical evidence, as it deprives the Sixth Amendment of any independent significance by only invalidating truly arbitrary restrictions and sweepingly validating a per se rule. [29]
Scholars repeatedly suggest that accused individuals should be permitted to defend themselves, even if that implies attacking the constitutionality of a per se rule. In other words, the accused should be able to attack the "blanket rule of exclusion" which bars polygraph evidence in military courts, arguing that cases and lie detection evidence should be evaluated on an individual basis.
V. IMPLICATIONS FOR LAW & ANALYSIS
i. Innocent Ingestion Defense
Scheffer’s defense entirely relied upon his claim that he innocently ingested drugs, and he wanted to admit the polygraph evidence as proof that his use of drugs was not purposeful. For an innocent ingestion claim, defendants often have to answer questions regarding whether there are any witnesses that will testify under oath that they caused the defendant to innocently ingest the substance, how much of the substance was consumed, if the substance is known, if they felt the effects, and if they have good military character. [30] While his military character post-urinalysis (fleeing for approximately two weeks) is questionable, Scheffer arguably had no other means to answer these questions besides his own testimony and his use of polygraph evidence. Thus, one might argue Rule 707 is unjustified in his case, as there is no other way for Scheffer to support his defense. In this regard, Scheffer is more similar to Rock than the Court initially perceived, as he was essentially the only witness as to his crime, with polygraph evidence being comparable to hypnosis as his proof of his innocence. Additionally, in a later case that used the innocent ingestion theory, United States v. Brewer (61 M.J. 425 (2005)), the United States Court of Appeals for the Armed Forces ruled it was a due process violation to prevent witnesses from testifying to the defendants’ behavior amidst his drug allegations. In this case, only Scheffer could testify as to his behavior, and other than his own testimony, polygraph evidence seems to be his only means of defense, meaning Rule 707 did prevent Scheffer from entirely arguing his innocence.
ii. Relationship with Frye and Daubert
While this case was integral in clarifying and supporting a Military Rule of Evidence, one must acknowledge that, as Justice Thomas pointed out, there is no federal equivalent to this law. Therefore, although the Court expressed its majority opinion absolutely denying lie detection in military courts, polygraph evidence is technically evaluated on a case-by-case basis in civilian courts; however, it is normally considered unreliable and inadmissible unless both parties entirely agree to stipulate its admissibility. Instead of Rule 707, state and federal courts operate under the legal precedent of the Frye or Daubert standards, which outline why polygraph evidence is regularly inadmissible outside military courts as well.
In Frye v. United States (293 F. 1013 (1923), the trial court found a systolic blood pressure test— the precursor to the polygraph—to be inadmissible in a murder trial, reasoning that it did not have scientific recognition from expert authorities. Legal scholars consider Frye to be “the first case to determine the admissibility of polygraph evidence” or a case where “polygraph evidence was excluded in its crudest form.” It set a standard of “general acceptance,” where any expert testimony or scientific evidence admitted into a court must be widely regarded as valid and acceptable in the scientific community. [31] Some courts were wary of the possible per se exclusion implied by Frye and wanted to avoid establishing such strict standards for admissibility; others, however, generally interpreted this Frye standard as rendering polygraph evidence inadmissible in court. [32]
In Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 (1993), the standard of admissibility changed, as the Court rejected the general acceptance standard and replaced it with a four-factor rest of reliability of the evidence. [33] In this case, the plaintiffs had eight expert witnesses who were not allowed to testify because their findings were not peer-reviewed and thus not “generally accepted.” [34] So, the Court decided to shift the focus to four factors: considering if the theory/technique can be tested, if the theory or technique has been subjected to peer review and publication, if there is a known rate of error, and if it is generally accepted in the scientific community. [35] After Daubert, polygraph evidence is still considered generally unreliable and inadmissible, but some courts have since allowed polygraph testimony in some state and federal courts; however, Scheffer definitively bans the admission of polygraphs in all courtmartial proceedings, and the general mistrust for lie detection remains existent.
One might find it logical for Rule 707 and military courts to follow these statutes similarly to state and federal courts, evaluating cases like Scheffer on an individual basis rather than employing a blanket exclusionary rule—an argument aligning with the concurring and dissenting opinions. This validates that polygraph evidence is generally inaccurate, suggesting probable inadmissibility, but permitting its use in particular cases when deemed generally accepted or reliable.
Overall, while the theory of innocent ingestion might seem unconvincing considering Scheffer’s urinalysis and questionable actions, the Court’s ruling on Rule 707 itself can be deemed similarly disputable due to its per se nature and prevention of Scheffer’s entire defense. A reevaluation of the military rule might be necessary, framing it more similarly to Frye or Daubert standards to protect military members in their legal defense.
Endnotes
[1] United States v. Scheffer, 523 U.S. 303 (U.S. 1998), https://supreme.justia.com/cases/federal/us/523/303/
[2] “The Judge Advocate General’s Legal Center and School Criminal Law Deskbook.” The Judge Advocate General’s Legal Center and School, n.d.
[3] Fredric I. Lederer, “The Military Rules of Evidence: Origins and Judicial Implementation.” Military Law Review 130 (1990): 5-39.
[4] Lederer, “The Military Rules of Evidence.”
[5] “Executive Order 12767-Amendments to the Manual for Courts-Martial, United States, 1984.” Executive Order 12767-Amendments to the Manual for Courts-Martial, United States, 1984 | The American Presidency Project, June 27, 1991. https://www.presidency.ucsb.edu/documents/executive-order-12767-amendments-the-manual-for-courtsmartial-united-states-1984.
[6] Military Rule of Evidence. (1991). Polygraph Examination
[7] United States v. Williams, 43 M.J. 348 (C.A.A.F. 1995), https://www.courtlistener.com/opinion/7351515/unitedstates-v-williams/.
[8] Scheffer, 523 U.S. 303
[9] “Innocent Ingestion: Military Drug Crime Lawyers.” Daniel Conway & Associates, August 27, 2024. https://www.mcmilitarylaw.com/court-martial-defense/drug-offenses/innocent-ingestion/.
[10] U.S. Const. amend. VI.
[11] Edward J. Imwinkelried, “Defense of the Right to Present Defense Expert Testimony: The Flaws in the Plurality Opinion in United States v. Scheffer, A.,” Tennessee Law Review 69, no. 3 (2002): 539-562
[12] Scheffer, 523 U.S. 303
[13] Scheffer, 523 U.S. 303
[14] Washington v. Texas, 388 U.S. 14 (1967), https://supreme.justia.com/cases/federal/us/388/14/.
[15] Chambers v. Mississippi, 410 U.S. 284 (1973), https://supreme.justia.com/cases/federal/us/410/284/.
[16] Rock v. Arkansas, 483 U.S. 44 (1987), https://supreme.justia.com/cases/federal/us/483/44/.
[17] Scheffer, 523 U.S. 303
[18] Scheffer, 523 U.S. 303
[19] Scheffer, 523 U.S. 303
[20] Scheffer, 523 U.S. 303
[21] Scheffer, 523 U.S. 303
[22] Scheffer, 523 U.S. 303
[23] Timothy M. Hughes, "United States v. Scheffer: What Is Left of the Polygraph in Criminal Trials," St. Thomas Law Review 10, no. 3 (1998): 653-684
[24] George M. Dery III, "Mouse Hunting with an Elephant Gun: The Supreme Court's Overkill in Upholding a Categorical Rejection to Polygraph Evidence in United States v. Scheffer," American Journal of Criminal Law 26, no. 2 (1999): 227-256
[25] Robin D. Barovick, "Between Rock and a Hard Place: Polygraph Prejudice Persists after Scheffer," Buffalo Law Review 47, no. 3 (1999): 1533-1586
[26] Imwinkelried, “Defense of the Right to Present Defense Expert Testimony.”
[27] Dery III, “Mouse Hunting with an Elephant Gun.”
[28] Dery III, “Mouse Hunting with an Elephant Gun.”
[29] Imwinkelried, “Defense of the Right to Present Defense Expert Testimony.”
[30] Daniel Conway & Associates, “Innocent Ingestion.
[31] Shauna Fleming Askins, “United States v. Scheffer: An Anomaly in the Military or a Return to the Per Se Ban of Polygraph Evidence,” Houston Law Review 37, no. 1 (2000): 175-218
[32] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), https://law.justia.com/cases/district-of-columbia/court-ofappeals/1923/no-3968.html.
[33] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), https://supreme.justia.com/cases/federal/us/509/579/.
[34] Daubert, 509 U.S. 579. 35 Daubert, 509 U.S. 579.
[35] Daubert, 509 U.S. 579.