(concurring in the result):
I concur in the result because of the failure of the Government to establish a suitable foundation for admission of the polygraph examination. I also wish to reply to the footnote contained in the majority opinion. Neither due process and fundamental fairness nor Article 46, Uniform Code of Military Justice, 10 USC § 846, compels admission of exculpatory polygraph evidence notwithstanding Mil. R.Evid. 707(a), Manual for Courts-Martial, United States, 1984 (effective July 6, 1991). Under the new change to the Military Rules of Evidence, absent a pretrial or post-trial agreement as to use of the results of a polygraph examination, such results are no longer admissible in evidence. See supra, 37 MJ at 451.
*454I
In United States v. Gipson, 24 MJ 246, 253 (CMA 1987), this Court indicated that the proponent of polygraph-examination evidence must lay a sufficient foundation including “the competence of the examiner, the suitability of the examinee, the nature of the particular testing process employed, and such other factors as may arise____” In this instance the proponent did not lay a foundation as to the nature of the testing process by differentiating between questions related to criminal conduct and innocent conduct. Additionally, the polygraph examiner did not conduct a post-polygraph interview to analyze the questions and answers to determine whether they were understood and correctly evaluated.
II
If this Court were writing from a clean slate as it was in Gipson, it could adopt one of the three approaches taken in the Federal courts regarding admissibility of polygraph examinations. See, e.g., United States v. Slozes, 1 USCMA 47, 1 CMR 47 (1951). One approach is that set forth in Gipson, which permits polygraph examinations in the discretion of the military judge. A second approach is to allow the results of a polygraph where the parties have stipulated to admissibility before the examination is administered. P. Giannelli & E. Imwinkelried, Scientific Evidence § 8.3(B) at 248 (1986 & Supp.1991). A third approach is to exclude all polygraph evidence. Id. at § 8.3(A) at 244. Effective July 6, 1991, MiLR.Evid. 707(a) will apply.
What happens if there is no clean slate? As this Court stated in United States v. Villasenor, 6 USCMA 3, 7, 19 CMR 129, 133 (1955):
We have consistently recognized that where a Manual provision does not lie outside the scope of the authority of the President, offend against the Uniform Code, conflict with another well-recognized principle of military law, or clash with other Manual provisions, we are duty-bound to accord it full weight____
See also United States v. Boland, 20 USC-MA 83, 42 CMR 275 (1970); United States v. Johnson, 18 USCMA 436, 40 CMR 148 (1969); United States v. Houston, 17 USC-MA 280, 38 CMR 78 (1967); United States v. Smith, 13 USCMA 105, 32 CMR 105 (1962). Applying this rationale, this Court followed the prior Manual provisions holding polygraph evidence inadmissible. United States v. Ledlow, 11 USCMA 659, 29 CMR 475 (1960).
MiLR.Evid. 707(a) does not prohibit use of the results of polygraph examinations at the pretrial or post-trial stage of a criminal proceeding. See, e.g., United States v. Carr, 18 MJ 297 (CMA 1984). It is permissible for the accused to agree to take a polygraph on the condition that the convening authority agrees to dismiss the charges if the examination shows no deception. This same sort of agreement might also take place post-trial for considerations such as leniency in sentencing or dismissal of the charges. These sort of agreements allow the parties to resolve the objections to the polygraph evidence among themselves and alleviates the concern that there will be a battle of experts at trial.
Ill
A concomitant right of the defense to introduce polygraph evidence at trial is the right to compel an examination. With our Armed Forces deployed to the far flung points of the globe, this is simply unworkable. One needs only to consider hypothetically a sailor on a destroyer in the Red Sea requesting a polygraph examination to assert this innocence of some crime. Must that individual be flown to an installation that has polygraph capability or, contrariwise, must a polygrapher and his or her equipment be flown to the destroyer to perform this examination? When one considers the number of investigations, administrative actions, and nonjudicial punishments taking place in all of the services during any particular day, the burden imposed by a right to present polygraph evidence immediately becomes apparent.
*455IV
Neither the Constitution nor the Code requires admissibility of polygraph evidence. In United States v. A. & S. Council Oil Company, 947 F.2d 1128, 1133-34 (1991), the Court of Appeals for the Fourth Circuit held that the Sixth Amendment does not give the defendant the right to introduce a polygraph examination to impeach a key government witness. As the Supreme Judicial Court of Massachusetts stated in Commonwealth v. Mendes, 406 Mass. 201, 210-11, 547 N.E.2d 35, 40 (1989), cases from other jurisdictions “demonstrate a nearly unanimous judicial consensus ... that polygraphic evidence, at least in the absence of a pretest stipulation, ought not be admitted as evidence in a criminal trial for any purpose.”
The Court of Appeals for the Seventh Circuit in McMorris v. Israel, 643 F.2d 458 (7th Cir.1981), cert. denied, 455 U.S. 967, 102 S.Ct. 1479, 71 L.Ed.2d 684 (1982), granted a habeas petition where credibility was critical to the case. Then Justice Rehnquist characterized McMorris as “a dubious constitutional holding.” 455 U.S. at 970, 102 S.Ct. at 1480. Some courts have simply rejected the argument that the prosecution is required to provide reasons for its refusal to stipulate. Others reject the broad proposition that there is a constitutional right to present polygraph evidence. See, e.g., Houston v. Lockhart, 982 F.2d 1246, 1257 (8th Cir.1993); United States v. A & S Council Oil Co., 947 F.2d at 1133-34.
Our cases prior to Gipson implicitly recognized that there is no constitutional right to introduce the results of polygraph examinations based on the Due Process Clause. Article 46 does not require admissibility of defense polygraph evidence, either. Therefore, there is likewise no concomitant right to compel a polygraph examination.
V
Even without Mil.R.Evid. 707, Daubert v. Merrell Dow Pharmaceuticals, Inc., — U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), may support a judge’s ruling to exclude polygraph examinations. In Daubert the Court held that the general-acceptance test of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), has been superceded by Fed.R.Evid. 702. — U.S. at-, 113 S.Ct. at 2793. Beyond this, the Justices all agreed that trial judges exercise some “gatekeeping responsibility.” Id. at-, 113 S.Ct. at 2795 n. 7. Justice Blackmun, speaking for seven members of the Court, set forth what judges might do in considering admissibility of expert testimony in the future. First, in exercising the gatekeeping function the trial judge should determine whether the scientific technique has been tested. Id. at-, 113 S.Ct. at 2796. Citing scientific authorities the Court recognized that the hallmark of science is empirical testing. Second, the judges could look at “peer review and publication”; sometimes these reviews detect an error in methodology. Third, a technique’s “known or potential rate of error” is also a relevant factor. Fourth, the judge could consider “the existence and maintenance of standards controlling the technique’s operation” as another indicia of reliability. The Court also noted several additional factors that have been proposed by other authors. The Court indicated that the “overarching subject is the scientific validity — and thus the evidentiary relevance and reliability” of the evidence presented. — U.S. at-, 113 S.Ct. at 2797. The Court further stressed considering whether the theory or technique can be scientifically tested — that is, capable of an empirical evaluation.
Thus, absent Mil.R.Evid. 707(a), a military judge applying the rationale of Daubert could properly exercise discretion to exclude the results of a polygraph examination. This would hold true whether the results were inculpatory or exculpatory, or whether they were sought to be introduced by the Government or by the accused.