(dissenting):
We have held that “[t]he defendant has the right to present legally and logically relevant evidence at trial.” United States v. Woolheater, 40 MJ 170, 173 (CMA 1994). But as all the Judges of this Court agreed in Wool-heater, this is “not [an] absolute” right, id.; see also Montana v. Egelhoff, — U.S. —, —, —, 116 S.Ct. 2013, 2017, 2026, 135 L.Ed.2d 361 (1996); and may yield to valid “policy considerations,” 40 MJ at 173; id.; United States v. Bins, 43 MJ 79, 84 (1995) (citing Woolheater, 40 MJ at 173); United States v. Schaible, 11 USCMA 107, 111, 28 CMR 331, 335 (1960).
None of the cases cited by the majority hold that there is a constitutional right to admit an exculpatory polygraph examination. Assuming polygraphs are relevant and reliable, there is ample justification for Mil. R.Evid. 707, Manual for Courts-Martial, United States (1995 ed.). This justification satisfies the provisions of Article 36(a), Uniform Code of Military Justice, 10 USC § 836(a), that the rules of procedure and evidence “generally recognized” in federal trials be applied to courts-martial “so far as he [the President] considers practicable.”
Through dicta and implicit holdings the Supreme Court has signaled that there is no constitutional right to introduce polygraph evidence. Exclusion of exculpatory evidence does not contravene fundamental “principle[s] of justice ... rooted in the traditions and conscience of our” society. Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977).
In McMorris v. Israel, 643 F.2d 458 (1981), the Court of Appeals for the Seventh Circuit stated that “polygraph evidence [may be] materially exculpatory within the meaning of the Constitution.” 643 F.2d at 462. In dissenting to the denial of certiorari in that case, then-justice Rehnquist characterized McMorris as a “dubious constitutional holding.” Israel v. McMorris, 455 U.S. 967, 970, 102 S.Ct. 1479, 1481, 71 L.Ed.2d 684 (1982).
In Wood v. Bartholomew, — U.S. —, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995), the Court summarily denied habeas corpus for the prosecution’s failure to disclose information pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The basis for the defense allegation was that the prosecution failed to reveal polygraph examinations and statements by the defendant’s brother and his girlfriend, the two key prosecution witnesses at trial.1 These polygraphs and their statements would have undermined the witnesses’ testimony at trial and supported the defense theory.
The defendant’s brother testified at trial that, while he and his brother sat in the car in the laundromat parking lot, the defendant said “that he intended to rob the laundromat and ‘leave no witnesses.’” The prosecution offered evidence that both the brother and girlfriend left a short while later and went to *450the girlfriend’s house. The girlfriend also testified that when the defendant arrived at her house, he told her that he “put two bullets in the kid’s head.” She also heard the defendant “say that he intended to leave no witnesses.” — U.S. at---, 116 S.Ct. at 8-9.
At trial the defendant testified that he forced the attendant “to lie down on the floor.” While removing the cash, he “accidently fired” a bullet into the victim’s head. The defendant “denied telling” his brother and the girlfriend “that he intended to leave no witnesses.” Moreover, he said that his brother “assisted” him. — U.S. at -, 116 S.Ct. at 9.
Under Washington State law, polygraph evidence is inadmissible. State v. Ellison, 36 Wash.App. 564, 676 P.2d 531, 535 (1984). Even so, prior to trial, the prosecution requested that the two key witnesses take a polygraph examination. The polygrapher noted that the girlfriend’s answers to the “questions were inconclusive.” The polygrapher asked the defendant’s brother whether (1) he had “assisted” in the robbery and (2) whether at any time he was with his brother in the laundromat. The examiner said that his negative responses showed “deception.” The prosecution did not disclose these examinations to defense counsel. -U.S. at-, 116 S.Ct. at 9. In denying relief because of failure to disclose the polygraph examinations, the Supreme Court noted that, during the habeas corpus hearing, “counsel obtained no contradictions or admissions” from the defendant’s brother. — U.S. at-, 116 S.Ct. at 11. Clearly, if polygraph examinations were admissible, polygraph results would have impeached the witnesses. Thus, the results on appeal would have been different.
The implicit holding in Wood has been reinforced in Montana v. Egelhoff, — U.S. —, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996). In Egelhoff the Supreme Court held that a state may exclude evidence of voluntary intoxication as it relates to the mens rea element of a criminal offense. When interpreting Supreme Court decisions, it is instructive and helpful to look beyond the specific holding to the debate of broader principles of jurisprudence.
In Egelhoff, eight Justices agreed that there may be valid policy reasons to exclude relevant, reliable evidence. — U.S. at-, -, 116 S.Ct. at 2017, 2026. While the eight Justices debated the “Chambers principle,” id. at-, 116 S.Ct. at 2022, Justice Ginsburg, concurring in the judgment, looked “[bjeneath the labels” in concluding that a state legislature’s redefinition of mens rea “encounters no constitutional shoal.” Id. at -, 116 S.Ct. at 2024.
Justice Scalia, speaking for four other Justices, described Chambers as a “highly case-specific error correction” case as well as a “fact-intensive case.” He concluded that there is no violation of a defendant’s right of defense “whenever ‘critical evidence’ favorable to him is excluded”; on the other hand, “erroneous evidentiary rulings can, in combination, rise to the level of a due process violation.” Id. at -, 116 S.Ct. at 2022. The plurality then emphasized that Fed. R. Evid. 403 and 802 result in exclusion of relevant, reliable evidence. Id. at —-, 116 S. Ct. at 2017.
Justice O’Connor, dissenting and joined by three other Justices, agreed the “defendant does not enjoy an absolute right to present evidence relevant to his defense.” Id. at -, 116 S.Ct. at 2026. Her dissent rejected the plurality argument that because evidence of voluntary intoxication was excluded at common law, it should be excluded in this case. Id. at---, 116 S.Ct. at 2029-31. Justice O’Connor asserted that to exclude the evidence would prohibit a defendant from having a “fair opportunity to put forward his defense.” Id. at-, 116 S.Ct. at 2031. She emphasized that this concept was “universally applicable.” Id. at -, 116 S.Ct. at 2030. In any event, she concluded that the state had not set forth “sufficient justification,” id. at-, 116 S.Ct. at 2027, to exclude involuntary intoxication to negate the mental element of a defense. She agreed with Justice Ginsburg that a state could redefine an offense to render “voluntary intoxication irrelevant,” but she concluded that the State of Montana did not evidence such an *451intent. Id. at-, 116 S.Ct. at 2031. Justice O’Connor also rejected the plurality’s characterization of Chambers. Id. at-- -, 116 S.Ct. at 2026-27.
Justice Souter agreed that the “plurality opinion convincingly demonstrates that ... the common law ... rejected the notion that voluntary intoxication might be exculpatory, or was at best in a state of flux____” Id. at -, 116 S.Ct. at 2032 (citation omitted). Thus, a state may “exclude even relevant and exculpatory evidence if it presents a valid justification for doing so.” Id. at-, 116 S.Ct. at 2032.
However, in separate opinions, Justices Breyer and Souter stated that the State of Montana had not provided for exclusion of voluntary intoxication from the mens rea element of an offense. In summary, in Egelhoff eight Justices of the Court recognized that relevant, reliable evidence may be excluded if there is a valid policy reason for doing so.
MiLR.Evid. 707 was “based on several policy grounds.” The policy grounds set forth in the Drafters’ Analysis are not exclusive. These grounds include the risk of being treated with “near infallibility”; “danger of confusion of the issues”; and a waste of time on collateral matters. Drafters’ Analysis, Manual, supra (1995 ed.) at A22-48.
An additional policy concern is the impact in terms of practical consequences. Unfortunately, the majority overlooks the practical consequences of its decision on a worldwide system of justice. Our Court sees the cases that are at the end of a long funnel. There are approximately 4,000 general courts-martial per year. Annual Report, 39 MJ CXLVII, CLIX, CLXXIV, CLXXVII (1992-93). However, across the services, there are approximately 100,000 criminal actions per year. Statistically more than 20 percent of these involve drug cases like the present case. The majority fails to recognize that a concomitant right of presenting polygraph evidence is the right to demand a polygraph examination during the investigative stage. This may well impose a practical impossibility on the services. Additionally, if an individual were accused of a minor crime for which she was to be given a captain’s mast, she could claim a right to a polygraph examination.2 Thus, the practical policy consequences set forth in the analysis established a valid governmental interest in precluding admissibility of polygraph examinations. This rule is not inconsistent with the rule in the Federal courts.
Professors Giannelli and Imwinkelried state, “A majority of jurisdictions follow the traditional rule, holding polygraph evidence inadmissible per se.” P. Giannelli & E. Imwinkelried, Scientific Evidence § 8-3(A) at 232 (2d ed.1993 and 1995 Supp.) (citing many eases). Further, “[a] substantial minority of courts admit polygraph evidence upon stipulation of the parties.” Id. § 8-3(B) at 236. But “[a] few courts recognize a trial court’s discretion to admit polygraph evidence even in the absence of a stipulation.” Id. § 8-3(C) at 240.
While the Federal courts are split as to admissibility of polygraphs, some, like United States v. Posado, 57 F.3d 428 (5th Cir. 1995), have admitted polygraph evidence at suppression hearings or pursuant to a stipulation. United States v. Piccinonna, 885 F.2d 1529, 1536 (11th Cir.1989). This is not unlike admitting hearsay at suppression hearings. In any event, the Federal courts have not faced the issue of a rule precluding admissibility of polygraph evidence in a worldwide system of justice. California, which does have a rule similar to the military and applies the Kelly-Frye (so named after People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976), and Frye v. United States, 293 F. 1013 (D.C.Cir.1923)) test, has held that there is no constitutional right to introduce exculpatory polygraph examinations. See, e.g., People v. Kegler, 197 Cal.App.3d 72, 84-90, 242 Cal.Rptr. 897, 905-09 (1987).
*452Since Mil.R.Evid. 707 is based on valid policy grounds, it satisfies the Constitution and the requirement in Article 36(a) that the rules of procedure and rules of evidence conform to those in Federal trials “so far as he [the President] considers practicable.” If one carried the view of the majority to its logical conclusion, it calls into question various procedural and evidentiary rules. See, e.g., Mil.R.Evid. 502-12 and 803(6); RCM 305(h)(2)(B). Unfortunately this path reminds me of earlier forays by this Court. See, e.g., United States v. Larneard, 3 MJ 76, 80, 83 (CMA 1977); United States v. Heard, 3 MJ 14, 20 n. 12 (CMA 1977); United States v. Hawkins, 2 MJ 23 (CMA 1976); United States v. Washington, 1 MJ 473, 475 n. 6 (CMA 1976). But see United States v. Newcomb, 5 MJ 4, 7 (CMA 1978) (Cook, J., concurring).
To the extent the majority suggests that Egelhoff is distinguishable because it involves a legislative act rather than rulemaking by an executive, I have two responses. First, just as the Supreme Court treats Federal Rules of Criminal Procedure the same as statutes, so should we. See, e.g., Bank of Nova Scotia v. United States, 487 U.S. 250, 255, 108 S.Ct. 2369, 2373-74, 101 L.Ed.2d 228 (1988). Second, in Loving v. United States, — U.S. —, —, 116 S.Ct. 1737, 1748, 135 L.Ed.2d 36 (1996), the Supreme Court recognized that the President as Commander-in-Chief has been delegated “wide discretion and authority.” The Court upheld the delegation of authority to the President to promulgate aggravating factors in a death-penalty case. Loving left open the question as to the extent of the President’s authority under Article 36. Id. at-, 116 S.Ct. at 1749.
For the aforementioned reasons, I dissent.
. This Court in the past has looked at Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its military counterpart as to its impact on prosecution witnesses as in Wood v. Bartholomew, — U.S. —, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995), and reversed a conviction. United States v. Simmons, 38 MJ 376, 380-82 (CMA 1993).
. See, e.g., United States v. Bass, 11 MJ 545 (ACMR 1981) (refusal to accept Article 15 resulted in a general court-martial and 8 years’ confinement). There have been other instances where Article 15s have resulted in more serious dispositions. See, e.g., United States v. Brock, No. 96-0673, pet. granted (July 12, 1996); United States v. Zamberlan, 44 MJ 69 (1996).