Top Ten Military Justice Stories of 2019 – #9: The Mil. R. Evid. 707 prohibition of “any reference to . . . a polygraph examination” doesn’t prohibit all references to a polygraph examination
The Military Rules of Evidence share a majority of provisions with the Federal Rules of Evidence, but the two sets of rules are not identical. In particular, the military rules contain provisions that are not in the federal rules. One of those is Mil. R. Evid. 707, which prohibits admission of any evidence related to a polygraph examination:
Rule 707. Polygraph examinations
(a) Prohibitions. 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.
(b) Statements Made During a Polygraph Examination. This rule does not prohibit admission of an otherwise admissible statement made during a polygraph examination.
The rule survived scrutiny by the Supreme Court two decades ago, in United States v. Scheffer, 523 U.S. 303 (1998). CAAF had held that the rule was unconstitutional as applied to an accused who took the stand, denied committing the offense, was accused by the prosecution of lying, and wanted to use a favorable polygraph result to support his own credibility. The Supreme Court reversed CAAF’s decision, holding that the rule served a valid purpose and does not unconstitutionally limit an accused’s right to present a defense because the rule “did not preclude [Scheffer] from introducing any factual evidence,” rather it “merely [prohibited] introducing expert opinion testimony to bolster his own credibility.” 523 U.S. 317.
CAAF revisited the rule in Kohlbek, where the accused wanted to use the fact of a polygraph examination (and the circumstances surrounding its administration) as evidence to support his claim that his confession was false.