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  •   Justices Voice Concerns About Polygraphs

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, November 4, 1997; Page A05

    Taking up the controversial subject of polygraph testing, Supreme Court justices voiced skepticism yesterday about whether the results of so-called lie detector tests should be allowed into courts.

    At issue are automatic bans that many federal and state courts place on the use of tests that measure physiological responses to incriminating questions. Advocates say trained examiners using today's sophisticated polygraph machines can accurately determine whether a person is lying by recording breathing that becomes shallow, blood pressure that rises and skin that moistens.

    But the Justice Department contends polygraphs are unreliable and could lead jurors to abdicate their quest for the truth and simply accept what the test indicates. The Justice Department is appealing a lower court decision that said rules automatically barring polygraphs violate a defendant's Sixth Amendment right to present all favorable evidence.

    During oral arguments yesterday, some members of the bench were sympathetic to the Justice Department's position. Chief Justice William H. Rehnquist worried that, because of the controversial nature of the method, there would have to be "a big evidentiary hearing in every case where a polygraph was used."

    Justice Stephen G. Breyer similarly suggested hearings over evidence would be "endless." "Pretty soon we'd have a contest of lie detector tests," he said, one for the prosecutors, one for the defendant.

    Justice Sandra Day O'Connor noted that if defendants were able to introduce evidence that they passed a polygraph, prosecutors also would want to show a jury test results when a defendant flunked. "It cuts both ways," she said.

    Yesterday's case was originally brought by a former U.S. airman who was court-martialed for using methamphetamines but who passed a polygraph test on the subject. The U.S. Court of Appeals for the Armed Forces said he at least should have been able to lay a foundation for the validity of his polygraph result.

    Representing the Justice Department, lawyer Michael R. Dreeben asked the high court to reverse that decision and reinstate a military policy barring all polygraphic evidence. He emphasized that its reliability is suspect and said such evidence is different from other scientific evidence because it purports to say definitely whether someone is telling the truth.

    Lawyer Kim L. Sheffield, representing former airman Edward G. Scheffer, challenged the government's assertion that polygraphs are unreliable. She noted that the Defense Department gives tens of thousands of polygraphs annually, mostly for national security reasons. "If this polygraph were so unreliable, why are millions of taxpayer dollars being spent for it?" Sheffield said.

    A decision in the case of United States v. Scheffer is likely sometime early next year.

    Separately yesterday, the court also left intact a ruling that said the National Academy of Sciences must provide open public access to its deliberations and documents. A lower court said the academy was covered by a federal law allowing public access to governmental advisory groups. The justices rejected the appeal without comment.

    © Copyright 1997 The Washington Post Company

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