United States v. Gipson

SULLIVAN, Judge

(dissenting):

Despite the scholarly opinion of Judge Cox and the perceptive comments of Chief Judge Everett, I must dissent. The broad issue they address obscures the particular issue before us on this appeal. It is:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN NOT ALLOWING THE DEFENSE AN OPPORTUNITY TO LAY A PROPER FOUNDATION FOR THE ADMISSION OF THE RESULTS OF APPELLANT’S POLYGRAPH EXAMINATION INTO EVIDENCE.

The military judge did not broadly hold that the results of a favorable defense polygraph examination were per se inadmissible at court-martial. Instead, he ruled that neither the defense nor the prosecution would be permitted to lay a foundation for the admission of such evidence at appellant’s trial.

Obviously, the military judge had misgivings about the reliability of this evidence, misgivings which I share along with other federal courts. See Brown v. Darcy, 783 F. 2d 1389, 1394-95 (9th Cir. 1986); United States v. Downing, 753 F.2d 1224, 1239 n.20 (3d Cir. 1985). However, his ruling * *256turned on the fact that trial counsel intended to evidence a second polygraph examination conducted by the Naval Investigative Service which concluded appellant was deceptive concerning his involvement with drugs on board ship. See Mil. R. Evid. 104(a), Manual for Courts-Martial, United States, 1969 (Revised edition). The potential for confusion in such a battle of polygraphers is great and, accordingly, his preemptive strike, as authorized by Mil. R. Evid. 403, was justified. I find no abuse of discretion in this case.

MJ: Well, let me say this, with respect to — I’m not going to admit this evidence on either side of the question. As far as this court is concerned, this field has not been developed that well, or accepted that well [i]n the scientific community or the judicial community for that matter, to be admissible, and it, more or less, takes that function from the fact finder, especially in light of the fact we have a defense, apparently] exculpatory — a so called exculpatory examination, and one by the government which is, more or less, inculpatory. And I’m just not inclined to admit this on either side of the question, so I’m going to deny your motion *256for appropriate relief in that regard. I will not allow the government to either lay a foundation — the defense to lay a foundation or to admit the evidence with respect to the polygraph examination, and that goes for the government as well, of course.

DC: Your Honor, if I could just make one point

MJ: Yes?

DC: The polygraph that Mr. Triplett of NIS gave, the few questions that he asked were much more general in nature, covered, not necessarily the same even — a period much greater than the period of charged conduct. He just asked him if you ever possessed or have you ever sold LSD on board USS INDEPENDENCE? The questions that Mr. Farr asked were very specific to that particular date that the offenses there charged—

MJ: I understand what you are saying. I don’t think that—

DC: Yes, sir.

MJ: —that would not change my view of the matter in any event.