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Wednesday, November 5, 2008

Were You Lying Then Or Are You Lying Now?: Supreme Court Opinions Display Disparate Treatement Of Polygraph Test Results And Hypnotically Refreshed Testimony

Since I covered the right to present a defense yesterday in both my Evidence class and a blog post, I thought that I would write another post about the right to present a defense today.  Recently, I read an article about a "lie detector challenge" which stated that "[p]olygraph evidence is generally inadmissible in court because, as Supreme Court Justice Clarence Thomas noted in his majority opinion in the 1998 case U.S. v. Scheffer, 'there is simply no consensus that polygraph evidence is reliable.'"

Well, that's part of it, but Scheffer was specifically focused on whether Military Rule of Evidence 707, which excludes polygraph test results in all military trials, violated an accused's right to present a defense.  And why did some think that the Supremes would find a Constitutional violation?  Well, in addition to certain courts finding polygraph test results admissible in certain circumstances after the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S 579 (1993), there was the Supreme Court's 1987 opinion in Rock v. Arkansas, 483 U.S. 44 (1987).

In Rock, Vicki Rock was charged with manslaughter in connection with the shooting death of her hubsand.  When Vicki could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis to refresh her memory.  Vicki was thereafter hypnotized by a neuropsychologist and subsequently "recalled" that she had a gun in her hand that accidentally discharged when her husband grabbed her arm during a struggle.  At trial, however, based upon the prosecution's motion, the court only allowed Vicki to testify concerning what she remembered before she was hypnotized because it "decided to follow the approach of States that ha[d] held hypnotically refreshed testimony of witnesses inadmissible per se."

The Supreme Court, however, found that this violated Vicki's right to present a defense, relying in part on its previous opinion in Washington v. Texas,  388 U.S. 14 (1967), in which it had held that Texas statutes precluding a charged or convicted coparticipant from testifying on behalf of another alleged coconspirator on the ground that application of these statutes "arbitrarily denied [the defendant] the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense."  The Court then analogized (and relied upon its opinion in Chambers v. Mississippi, 410 U.S. 284 (1973)), in finding that:

     "Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony."

The Court then found that Arkansas' per se rule was arbitrary, but, as is often the case when the defendant asserts that his right to present a defense was violated, it could only reach this conclusion by finding that hypnotically refreshed testimony can be or can be made sufficiently reliable.  And the problem acknowledged by the Court was that "[t]he use of hypnosis in criminal investigations...is controversial, and the current medical and legal view of its appropriate role is unsettled."  So, how did the Court find Arkansas' per se rule to be arbitrary?  Well, it found that

     "The inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards. One set of suggested guidelines calls for hypnosis to be performed only by a psychologist or psychiatrist with special training in its use and who is independent of the investigation....These procedures reduce the possibility that biases will be communicated to the hypersuggestive subject by the hypnotist. Suggestion will be less likely also if the hypnosis is conducted in a neutral setting with no one present but the hypnotist and the subject. Tape or video recording of all interrogations, before, during, and after hypnosis, can help reveal if leading questions were asked.... Such guidelines do not guarantee the accuracy of the testimony, because they cannot control the subject's own motivations or any tendency to confabulate, but they do provide a means of controlling overt suggestions.

     The more traditional means of assessing accuracy of testimony also remain applicable in the case of a previously hypnotized defendant. Certain information recalled as a result of hypnosis may be verified as highly accurate by corroborating evidence. Cross-examination, even in the face of a confident defendant, is an effective tool for revealing inconsistencies. Moreover, a jury can be educated to the risks of hypnosis through expert testimony and cautionary instructions. Indeed, it is probably to a defendant's advantage to establish carefully the extent of his memory prior to hypnosis, in order to minimize the decrease in credibility the procedure might introduce.

     We are not now prepared to endorse without qualifications the use of hypnosis as an investigative tool; scientific understanding of the phenomenon and of the means to control the effects of hypnosis is still in its infancy. Arkansas, however, has not justified the exclusion of all of a defendant's testimony that the defendant is unable to prove to be the product of prehypnosis memory."

So, based upon this, you can see why Edward G. Scheffer thought that he had a good chance of success when he claimed that Military Rule of Evidence 707 violated his right to present a defense.  After all, aren't polygraph results at least as reliable as hypnotically refreshed testimony, can't polygraph results be verified by corroborating evidence, can't cross-examination undercut polygraph results, and can't judges issue jury instructions about the fallibility of polygraph results?

Well, not according to the Court, which, as noted, found that 'there is simply no consensus that polygraph evidence is reliable.'"  Now, admittedly, there were other aspects of the opinion and different justices deciding the two cases, but, as things stand, the Supreme Court has basically said that hypnotically refreshed testimony can be reliable enough to make a per se rule mandating its exclusion arbitrary while polygraph test results are so unreliable that a similar per se rule proscribing their introduction is justified.  Do most readers think that this distinction makes sense?

-CM

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