ADMISSION BY PARTY PROPONENT:
POLYGRAPH EVIDENCE UNDER THE FEDERAL RULES OF
EVIDENCE AND THE FIFTH AMENDMENT
Hamlet: Whose grave’s this, sirrah?
1. Clown: Mine, sir . . .
Hamlet: I think it be thine indeed, for thou liest in it.
1. Clown: You lie on’t, sir, and therefore ‘tis not yours; for my part, I do not lie in’t, yet it is mine.
Hamlet: Thou dost lie in’t, to be in’t and say that it is thine. ‘Tis for the dead and not for the quick; therefore thou liest.
1. Clown: ‘Tis a quick lie, sir, ‘twill away again from you to me . . . .
Hamlet: How absolute this knave is! we must speak by the card, or equivocation will undo us . . . 
Since time immemorial, societies have sought various ways to determine if an adversary speaks the truth or some fraction thereof. In ancient Rome, those persons thought to be lying were required to swear an oath by inserting their hands into the Bocca della Verità, a sacred stone mouth which, by superstition, would bite off the fingers of a liar. A person, suspected of falsehood, often a woman who was thought to be an adulteress, was asked to swear an oath and place her hand into the stone mouth. A priest would hide behind the mouth to remove the fingers of persons known to be swearing falsely, thereby reinforcing the legend. Obviously, a stone mouth had no means to bite anyone’s the hand off, yet if the superstition were believed even the most treacherous person would venture with a little trepidation if he knew himself to be a liar. Such trepidation, if manifest, would be appreciated by others and thus expose the suspected liar. Similarly, in medieval Japan, the bow and arrow was seen as a window to the soul of an individual. Because the traditions of this archery were lacquered with rituals, symbolism, and spiritualism, the ritual of drawing and firing the Bow is suffused with many layers of practice and understanding. The archer was considered to draw the bow with mental energy, not just the action of his muscles, and through the release of the shot, the archer is able to demonstrate his true character and inner strength. If he flinches, then the underlying character is shaky and unsteady, so he was not to be trusted unsteady.. Further, in 1730, Daniel Defoe wrote of a way to detect those suspected of criminal activity, “[g]uilt carries Fear always about with it; there is a Tremor in the Blood of a Thief, that, if attended to, would effectually discover him; and if charged as a suspicious Fellow, on the Suspicion only I would always feel his pulse, and would recommend it to practice.”
These examples show that a person’s being deceitful generates stress, and that stress is likely to manifest a nervousness which is accompanied by certain physiological signs. The modern polygraph makes use of electromechanical and electronic technology in an effort to measure these physiological signs and make a scientific determination as to whether that person is being deceptive. The theory underlying the polygraph technology is based on the same assumption as the historical examples, that there is an involuntary reaction that shows one to be a liar.
The polygraph has reached the point where it may be relied on by many different aspects of society to determine the truth of a person’s statements. The polygraph has also reached the point where it may be relied on as evidence in a court of law. However, to date, the federal and state courts have looked down upon the polygraph as evidence and have only admitted it in a few isolated instances, or by stipulation of the parties. Comparatively recently, in Daubert v. Dow Merrell Pharmaceuticals, Inc., the United States Supreme Court readjusted the stringent for the admissibility of scientific evidence. The Court overruled a seventy-year-old line of cases based on Frye v. United States which held that in order to be admissible as scientific evidence the scientific theory on which the evidence was based had to be “generally accepted” in the scientific community. The Daubert Court held that Rule 703 required that proffered scientific evidence be constitute scientific knowledge. The Court has articulated four considerations which bear on the inquiry whether the evidence is to be so considered. These include: 1) whether the theory or technique in question can be (and has been) tested, 2) whether it has been subjected to peer review and publication, 3) its known or potential error rate and the existence and maintenance of standards controlling its operation, and 4) whether it has attracted widespread acceptance within a relevant scientific community. Since Daubert a number of courts have held the a per se ban on the admission of polygraph evidence is no longer viable. Some courts have further consider whether or not the polygraph constitutes scientific knowledge. Moreover, during the 1997-1998 term of court, the United States Supreme Court will hear a Sixth Amendment challenge to a per se ban on polygraph evidence as violating the right to produce reasonably exculpatory evidence.
This Note examines whether polygraph evidence is scientific evidence under Daubert or alternatively whether it is admissible as nonscientific, but technical evidence, because polygraph technology is sufficiently reliable in the determination of truth or deception to allow it to be used as evidence in the courts. This Note proposes that under the Federal Rules of Evidence, polygraph evidence may be admitted under certain circumstances and for the limited purpose of rehabilitating a witness’ character for truthfulness. However, once admitted, the Fifth Amendment privilege against self-incrimination is waived because the holder of the privilege, usually a criminal defendant, must first testify at trial in order for the polygraph evidence to be relevant and therefore admissible. Moreover, even if admitted before such a person testifies, the admission of such evidence will serve as a wavier of the Fifth Amendment privilege. This is because the Sixth Amendment gives the right to a criminal defendant to present exculpatory evidence; however, when the defendant chooses to present polygraph evidence, he chooses to forgo the right to remain silent just as if he took the stand to testify.
Part I of this Note lays out a background by discussing the theories and assumptions underlying a polygraph examination and how polygraph technology is used to make a determination of whether the test subject has passed or failed the exam. Part I further discusses the rational for admitting expert testimony, the historical standard for admitting a polygraph examination at trial as scientific evidence, and the subsequent Daubert  standard for the Federal Rules of Evidence, Rule 702 under which polygraph evidence is to be considered. Part II chronicles a recent trend of cases which hold that Daubert overruled a per se ban on the admission of polygraph evidence and looks at a case which is to be heard by the United States Supreme Court this term changeling a legislative per se ban on polygraph evidence. Part II also examines how courts have consider the prejudicial value of a polygraph examination as evidence in the absence of a per se ban. Part III proposes an argument limiting the purposes for which polygraph evidence may be offered at trial. Finally, Part IV proposes how such a proffer on will impact the Fifth Amendment privilege against self-incrimination.
A polygraph examination is a psychophysiological examination which is used to determine whether a particular person is giving deceptive responses to interrogative questions concerning a particular event.
Lying is a central characteristic of life and it is relevant to almost all human affairs. A successful lie may provide great advantages for the deceiver, who may use it to exert social influence on the target of the deceptive communication . . . . for the same reasons, the issue of truthfulness is equally critical to the target. Great efforts are invested to reveal deceptive communication either by developing individual skills in detecting deceptive communication from the behavior of others or by the psychophysiological detection of deception . . . often refereed to as polygraph testing.
When listening to a person tell his story one is almost unaware of subtle physiological changes of the teller. For most people, lying produces a fear of the lies’ being exposed. This fear produces a sympathetic nervous system arousal which causes the body to produces adrenaline and increases breathing and heart rate. These are psychophysiological changes that unconsciously accompany deception or falsehood, because of a fear of failing the examination. There is an increase in outward nervous mannerisms. A casual observer or courtroom fact-finder, may use the nervous mannerisms and the outward manifestation in a person who is talking of the increased sympathetic nervous system arousal, such as sweating or heavy breathing, to determine the validity of what that person is saying. A polygraph examiner does much the same thing but is aided by instrumentation which uses sensors to measure physiological responses to deception.
In order to gain a scientific determination of deception, the polygraph equipment measures subtle changes in the psychophysiological arousal in the test subject while he responds to the polygraph examination questions. The instrumentation records measurements of the psychophysiological arousal parameters, referred to as a “channel.” The channels often include the subject’s pulse rate, blood pressure, thoracic and abdominal respiration, galvanic skin response, and other vital signs. The polygraph expert uses a different sensor to measure each particular physiological sign which is recorded independently. The amount of carbon dioxide which the test subject exhales, accompanying heavy breathing, can also be measure to show an increase in breathing due a psychophysiological arousal. The measurements of the physiological signs are recorded by means of a pen mounted on a electromagnetic stylus which traces a graph of the observed levels on a continuos stream of paper. An increase in these measurements may indicate a deceptive response and thus the examiner is then able to form an opinion whether the subject has given deceptive responses.
The data generated by a polygraph examination must be scored in order to determine whether the test subjects answers to the examination questions were deceptive. To score the data, the polygraph examiner must first generate control data to provide a scientific basis for the comparison and evaluation of the test the data. This is done through the use of “guilt complex questions,” “control questions,” and an analysis of “behavior symptoms.” To do this, the polygraph examiner measures the individual’s base level or normal physiology by asking pointed questions such as if subject has ever lied before, in order to establish a threshold level for deceptive responses. There are also pre-test and post-test observations in order to determine deceptiveness. The polygraph examiner further compares this data against subjective evaluation of the test subject’s behavior symptoms, before during and after the polygraph which would indicate an intent to deceive at the response to the exam process.
The polygraph instrumentation is merely the device by which one can hope to measure the psychophysiological response to the individual’s lying. Though the machine measures various different physiological responses, the testing conditions and examination questions are paramount to administering an accurate examination. “The art of this process is to create an emotional response.” “The emotions will be aroused at the very instant in which the subject hears the question to which he or she is going to respond deceptively.” Hence, it is not actually the test subject’s verbal response that is used to determine deception but rather his non-verbal physiological response to the question’s being asked. The questions and their presentation must provide the a sufficient stimulus for the sympathetic nervous system response for both the relevant and control questions so that a valid comparison can be made.
The test question break down into to major classifications: the Control Question Test and the Guilt Knowledge Test. The Control Question Test questions are: Relevant Irrelevant, Lie Control Test, and Truth Control Test. Lie control are the questions where the answers can be assumed to be lies The Lie Control Question can illuminate deceptive and non-deceptive responses to relevant questions by providing a basis for the comparison of a baseline for arousal when lying. Truth Control Test questions provide a basis for the comparison of the arousal response when accused of a fictitious incident. The arousal response would be the same if the test subject is non-deceptive and higher in the response to the accusation for the relevant incident if deceptive. A Positive Control Test is where the examine is asked to respond both truthfully and falsely in to the same question. In this way the question serves as its own control. This is predicated on the assumption that there will be a greater arousal when the test subject responds deceptively. Guilty Knowledge Tests works by asking a set of questions repeating the same question but changing one material element in the question. The a guilty test subject would have the greatest arousal to relevant item. The Guilty Knowledge Tests has a high rate of deception without false positives.
The examiner can rely on these measurements of physiological responses to determine a deceptive response because the reflexes of the human body respond to a person’s telling a lie. There are three hypothesizes to explain why the polygraph technique works, Stan Abrams explains:
[t]he most excepted of these concepts relates to the fear of consequences. When a subject recognizes that he or she faces possible imprisonment, financial loss, and personal embarrassment if a deception is discovered, he or she becomes fearful of that outcome. This emotional reaction actives the [sympathetic nervous system] and the ensuing polygraph changes can be interpreted as indicative of deception, Although this is a logical description of what occurs in most instances, this is not what occurs in laboratory research. In this situation volunteer college students, with little or nothing to loose if their lies were detected, assumedly would have no fear. Despite this, laboratory research has demonstrated a high [sic] degree of polygraph accuracy, which indicates the consequences theory alone cannot explain polygraph effectiveness.
There are two other hypotheses. These are: conflict and condition response. Conflict is described as the learned behavior of “moral orientation” taught to us as we are socialized which predisposes us to truthfulness. Lying in order to avoid trouble would produce a sympathetic arousal which can be detected in the polygraph instrumentation. Moreover, there is the explanation of the conditioned response. The hypothesis is that the test subject experiences the same emotional state as the perpetrator as he experienced at the time of the alleged act. While no one of these explanations accounts for the efficacy of the polygraph each one in varying amounts to a “generalized tension” which can so account.
There are four basic assumptions which explain why the polygraph examiner can evoke the sympathetic nervous system response in the test subject. These are:
Assumption 1: The examiner will be able to convince every subject that the results of the polygraph examination are virtually certain to be accurate.
Assumption 2: If all subjects have faith in the procedure, then there are certain behavior symptoms that will be shown only by truthful subjects and other, different symptoms that only deceptive subjects will manifest.
Assumption 3: When a behavior symptom cannot be directly observed but must be inferred by the examiner (e.g., “subject nervous” or “subject is sincere”), all examiners will be skillful enough to make correct inferences in dealing with all varieties of subjects.
Assumption 4: Given that the subject believes that the polygraph “works” then all deceptive subjects will be more aroused by the relevant questions than by the irrelevant or control questions and truthful subjects will be equally or less aroused by the relevant or “Did you do it?” questions than the other questions asked of them.
The subject has little conscious ability to control the autonomic arousal which the examiner seeks to evoke. Dr. Robert Steinbrook points out that the instruments do not measure deception itself, but rather physiological “autonomic arousal” which may be attributed to a variety of different causes.
Lie detection by the polygraph assumes that telling a lie causes a specific and reproducible physiological response related to the automatic nervous system, In turn, it is assumed that an experienced polygraph examiner can elicit these responses routinely. In fact, the crucial assumptions remain unproved. Automatic arousal may be caused by the deception, but it may also be caused by myriad potentially confounding factors, ranging from stress, fear and anxiety to anger and embarrassment. Deception cannot be measured directly.
While it is true that the polygraph does not directly measure deception directly, it measures psychophysiological parameters which can be correlated to deception. The fact that these parameters can also be correlated with other causes does not necessarily undermine the scientific principles underlying the theory. Moreover, psychopaths and others who have no moral aversion to lying would not necessarily be detectable by a polygraph. So long as scientific measurements made and testing conditions to minimize such contamination of the results the individual results will be more reliable.
“Polygraph findings alone will not influence any juror, but the credibility of the polygraphist will certainly have an effect on this panel, and effectiveness in presenting testimony can influence the jury’s final decision.” To get the polygraph examination into evidence it must be presented in the form of testimony from an expert witness. This will be more effective than merely the submission of a document containing the results of a polygraph examination. Thus, relying on the information contained in the polygraph expert’s testimony, the jury may be assisted in reaching a conclusion base on evidence it would not otherwise have.
The rationale for presenting scientific evidence is that “the expert, by definition, possesses knowledge that the judge and jury lack.” Thus, and expert may testify on an issue within his expertise regardless of whether he has first hand knowledge of the specific facts so long as the expert provides the fact finder with some new information which is not within their collective understanding. He nonetheless may render an opinion based on his experience and training.
Under the Federal Rules of Evidence, Rule 104(a), when expert opinion evidence is proffered, the district court must make a preliminary determination of a witness’ qualifications as an expert. This is done by examining the proffered witness’ knowledge, skill, experience, training, or education. In order for a witness to be qualified as an expert, he must have some expertise which would constitute “knowledge, skill, experience, training, or education.” The threshold for such qualification is rather minimal, but the depth of the expert’s testimony will vary depending on his level of expertise.
Once the court has determined a witness to be an expert, it must determine whether the expert’s testimony will assist the trier of fact in a material determination at issue. The expert’s testimony will only assist the trier of fact when it is based on “scientific knowledge.” When admitted, an expert witness is permitted wide latitude in offering evidence in the form of opinions, and in the basis for testimony. The expert may furnish an opinion which is not based on firsthand knowledge or observation.
Prior to the adoption of the Federal Rules of Evidence, expert testimony had to be based on scientific knowledge which was generally accepted by the scientific community. This rule was derived from a 1921 conviction of James Frye who confessed to murdering Dr. Robert Brown. After later recanting his confession, Frye volunteered to be the subject of an “lie detector” examination administered by Dr. William Moulton Marston. During the examination Marston employed his “lie detector” machine to measure Frye’s systolic blood pressure in an effort to determine the validity of his denial of the murder. Frye attempted to introduce the results of this examination at trial, but the district court denied the request and Frye was convicted of the murder.
On appeal, addressing this sole issue of exclusion of the evidence, the Circuit Court of Appeals affirmed the conviction, stating:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
The court held that the use of the machine to determine deceptive nature of the answers had not gained general acceptance as such. Numerous courts have followed Frye in establishing a per se ban of polygraph evidence, and until 1993, this test also became the standard applied by federal courts (and most state courts) in determining whether scientific evidence in the form of opinion testimony is admissible into evidence in federal court. The Second, the Fourth, the Fifth, and the Ninth Circuits, as well as the Untied States Military Courts, adopted per se rule barring the admission of polygraph evidence. The Third, the Tenth, and the D.C. Circuits did not adopt per se bans but only admit polygraph evidence under certain compelling circumstances. Other circuits have admitted polygraph evidence exclusively by stipulation of the parties still subject the discretion to exclude polygraph evidence even if stipulated. On the other side of the isle is the First and Seventh Circuits, which disfavor polygraph evidence but allow the trial court to exercise its discretion.
In 1993, the United States Supreme Court handed down Daubert v. Merrell Dow Pharmaceuticals, Inc. Daubert redefined the admissibility standards for scientific evidence in federal courts by holding that the Federal Rules of Evidence enacted by Congress in 1975 did not incorporate the Frye test. Thus, Daubert dispensed with Frye’s stringent requiring “general acceptance” of a scientific principle within the scientific community as a precondition for the admissibility of scientific evidence.
The plaintiffs in Daubert, were two minor children suffering from birth defects who alleged that these birth defects were due to their mother’s prenatal ingestion of Bendectin, an anti-nausea drug. In their suit against the manufacturer of the drug, plaintiffs sought to introduce opinion testimony from two expert witnesses to show that prenatal ingestion of Bendectin by a mother can cause birth defects. The experts based their opinions both on a reanalysis of prior studies which concluded that there was no such causal relationship, and on a new analysis based on test-tube (in vitro) and live animal (in vivo) studies.
The United States District Court for the Southern District of California granted summary judgment for the defendant after excluding the expert witnesses’ testimony on the grounds that the scientific methodology on which they based their opinions was not “generally accepted” in the scientific community. Relying on Frye, the Circuit Court of Appeals for the Ninth Circuit affirmed the decision. However, the Supreme Court reversed and remanded, dismissively characterizing Frye as “short and citation-free,” and holding that the Frye “general acceptance” test was superseded by the legislatively-enacted Federal Rules of Evidence and “would be at odds with the ‘liberal thrust’” of the Rules. In so holding, the Court pronounced a two-part test. In order to be admissible as scientific evidence, the district court must find by a preponderance of the evidence that the proffered evidence is: 1) relevant to the issues before the court and 2) based upon a scientifically reliable foundation.
In the first part of the Daubert test, is that when scientific evidence is proffered, the district court must determine the admissibility of such a proffer pursuant to Rule 104(a), thereby ensuring that such evidence both rests on a reliable foundation and is relevant to the issues at hand. Rule 702 requires that a valid scientific connection between the proffered testimony and the factual issue is a prerequisite to admissibility. This is an exercise in relevance. “Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.” However, “all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.” In Daubert, the Court defined relevant evidence as “that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
By making the determination of an issue of fact more less probable, expert testimony aids the fact finder. The study of the phases of the moon, for example, may provide valid scientific “knowledge” about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. Rule 702’s “helpfulness” standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.
In determining relevancy, the district court is afforded a broad discretion and will not be overturned unless the decision is arbitrary or irrational.
The second part of the Daubert test requires that in order to assist the finder of fact and therefore be admissible, the proffered evidence must constitute scientific knowledge. The district court’s preliminary assessment entails a determination of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. In deriving a standard, the Court has articulated four, non-exhaustive considerations which bear on the inquiry. These include: 1) whether the theory or technique in question can be (and has been) tested, 2) whether it has been subjected to peer review and publication, 3) its known or potential error rate and the existence and maintenance of standards controlling its operation, and 4) whether it has attracted widespread acceptance within a relevant scientific community.
None of these four factors is solely determinative; however, the assessment is to be flexible, focusing on the principles and methodology rather than conclusions. The cross-examination of the expert and rebuttal evidence are a more appropriate means for insuring the integrity of the scientific evidence rather than the wholesale screening by the district court judge. This determination is to be made on a preponderance of the evidence. Some courts have articulated this screening role in the negative. Picking up in language in Daubert, the Second Circuit, stated the purpose of the role of the district court under the Daubert test is to filter “junk science” from evidence. In In re Joint Eastern & Southern Dist. Asbestos Lit., the Second Circuit reversed a district court decision to exclude expert testimony regarding the causation of cancer by certain suspected carcinogens although the district court found the evidence to support only a “weak” conclusion. Thus, scientific evidence need not be infallible in order to be admissible, it must only be able to reasonably demonstrate a conclusion, even though the evidence only demonstrates a weak conclusion.
The methodology which forms the basis for the scientific theory or technique must be capable of, and must have been, tested. The theory must be subject to some sort of empirical test which could demonstrate the theory’s falsifiability, refutability, or testability. An empirical test assists the fact finder in evaluating the validity of the underlying method, and thus how much deference to pay to its conclusions. While the Court acknowledges the fact that nothing in science can be known to a certainty, an inference must be derived from scientific method. The scientific method is a process where the inquiry is based on generating hypotheses and testing those hypotheses are in fact valid explanations of the physical world. The testability of the underlying technique, method, or process, rather than its conclusions, is the focus of the consideration.
Furthermore, the theory or technique should have been subjected to peer review and publication. Publication is one important element of peer review which entails the scrutiny of the scientific community, and is an essential component of “good science,” and increases the likelihood that substantive flaws in methodology will be detected. Though, publication is not dispositive, but helps to demonstrate the scientific validity of a particular technique or methodology on which an opinion is premised. Publication is not a prerequisite for admissibility because it is not necessarily correlated with reliability and because in some instances well-grounded but innovative theories will not have been published at the time when the theory if proffered as evidence.
The district court ordinarily should also consider the known or potential rate of error of the underlying technique, method, or process which illuminates its reliability. In addition, the existence and maintenance of standards controlling the technique’s operation also demonstrate the theory’s reliability. Divergence from these standards in the method’s application, of course, will undermine the reliability of the evidence. Moreover, it may be impossible to know the error in each specific case, but such is a point for impeachment or cross-examination rather than the district court’s assessment.
Finally, while “general acceptance” of the methodology is not a mandate for admissibility, a particular of degree acceptance of the methodology within an identifiable, relevant scientific community will assist the district court’s determination of reliability. This is because “a known technique which has been able to attract only minimal support within the community, may properly be viewed with skepticism.” The scientific community’s eschewing the method weighs against admissibility, while the community’s embracing the method weighs for admissibility.
In the federal courts, the rule that polygraph evidence is inadmissible per se has begun to founder. This is due to not only advances in polygraph technology, but also shift in the fundamental bedrock of the law of evidence caused by Daubert. Daubert is the law controlling a district court’s decision whether to admit polygraph evidence as scientific evidence and some courts have held that a per se rule is no longer viable after Daubert. Yet, this seems only to be lip service because only in a few isolated instances and for limited purposes have federal courts found polygraph it to be unreliable enough to let a jury use it as substantive evidence. This is an issue that been challenged in the courts, and is, in fact, on its way to the Supreme Court in United States v. Scheffer. Thus, Daubert may have opened the door to polygraph evidence.
Federal Courts have grappled with the teachings of Daubert in their role as a screen when scientific evidence is proffered. Arguably, the Frye test did not set a higher threshold for the admission of scientific evidence than the Daubert factors do – it merely change the evaluator’s for the scientific community to the district courts. Moreover, by requiring a particular of degree acceptance within a relevant scientific community, the Daubert test does to some degree incorporate the acceptance of the scientific knowledge in the relevant scientific community as part of the guidelines for admissibility. However, there is a split in the circuits as to whether the polygraph methodology constitutes scientific knowledge under the Daubert factors.
However, even before Daubert, the per se ban against polygraph evidence began to erode. In fact, a majority of the federal circuits do not have a per se prohibition against polygraph evidence. Instead, the court may seek to determine that the risk of prejudice is outweighed by its probative value, relying on Rules 401 through 403 of the Federal Rules of Evidence. In United States v. Gipson, the United States Court of Appeals for the Armed Forces held that an accused is “entitled to attempt to lay” the foundation for admission of favorable polygraph evidence despite the per se ban of the Military Rules of Evidence, Rule 707. The Gipson court’s holding was based on the reasoning that the Military Rules of Evidence, Rule 702 “may be broader and may supersede Frye v. United States.”
The first circuit to apply Daubert to the issue of whether polygraph methodology constitutes scientific knowledge was the Fifth Circuit in United States v. Posado. The Posado court acknowledged “controversy surrounding our circuit’s continued adherence to a per se rule against polygraph evidence,” and that an en banc consideration was not necessary since Daubert had eviscerated a per se ban. The Posado court further rejected the government’s contention that the district court had implicitly rejected the evidence relying on a Rule 403 “short-circuit” that the proffered evidence was inadmissible as being unfairly prejudicial even if found to be scientific. Nonetheless, the court took a middle of the road approach stating:
we do not now hold that polygraph examinations are scientifically valid or that they will always assist the trier of fact, in this or any other individual case. We merely remove the obstacle of the per se rule against admissibility, which was based on antiquated concepts about the technical ability of the polygraph and legal precepts that have been expressly overruled by the Supreme Court.
On remand, Chief Judge Black found that the proffered polygraph evidence lacked sufficient reliability and relevance and was therefore not admissible under Federal Rules of Evidence, Rule 702. Further, the evidence was excludable under Rule 403 because its minimal probative value is outweighed by the prejudicial effect and confusion of issues.
The Ninth Circuit has also overturned its per se ban excluding the admission of unstipulated polygraph evidence as being overruled by Daubert. In Cordoba, the defendant was convicted of possession of cocaine with intent to distribute, and took a polygraph examination to show lack of intent. The polygraph examiner found that Cordoba was truthful when he responded “no” to questions regarding his being aware of cocaine in the van which he was driving. The government moved to exclude the polygraph evidence. The district court refused to admit the polygraph test results based on the Ninth Circuit’s prior holding in Brown v. Darcy, which held that all unstipulated polygraph evidence offered in civil or criminal trials is inadmissible. On appeal, the Cordoba court held that the Brown rule was inconsistent with the ‘flexibility inquiry’ requirement in Daubert. The Ninth Circuit, concurred with the Posado holding, as it was consistent with precedent within the Ninth Circuit. The court also noted that its holding may allow for the admission of unstipulated polygraph evidence, should the proffering party is able to demonstrate that the methodology is “scientific knowledge” pursuant to Daubert. The court would not go so far as to express a “new enthusiasm” for polygraph evidence but rather, that “these matters are for determination by the trial judge.” While Daubert has presented a challenge to a per se ban on polygraph evidence, it does not present the only possible challenge.
Currently there is a Sixth Amendment challenge to a per se ban against the admission of polygraph evidence in the United States Supreme Court. The defendant, Edward Scheffer, an Air Force airman, was court-martialed and subsequently convicted on drug charges. Scheffer tested positive for methamphetamine in a urinalysis; however, Scheffer passed a polygraph exam which questioned whether he knowingly took methamphetamines while enlisted. Scheffer moved to have the polygraph test results admitted into evidence. The military trial judge denied the request because of Military Rule of Evidence, Rule 707 which imposes a per se ban on polygraph evidence. This decision was affirmed by the United States Air Force Court of Criminal Appeals. Scheffer challenged Military Rule of Evidence, Rule 707 as a violation of his Sixth Amendment right to present a defense. In September 1996, the United States Court of Appeals for the Armed Forces overruled the trial court’s polygraph ban and remanded. The Air Force is now appealing to the Supreme Court.
The Supreme Court addressed the issue of a per se ban against the admission of evidence in Rock v. Arkansas.  The Sixth Amendment grants a criminal defendant “the right to call ‘witnesses in his favor.’” This right may not be denied arbitrarily if the testimony is relevant. In Rock, the Court held a per se rule excluding the defendant’s hypnotically refreshed testimony to be unconstitutional as the rule infringed the right to present a defense because a “legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case.” This right to present a defense is not without limitations, it “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” However, such limitations on the presentation of evidence, “may not be arbitrary or disproportionate to the purposes they are designed to serve.”
A per se ban excluding polygraph evidence, in effect, constitutes judicial notice that polygraph results could not be found to be scientific evidence under Daubert. In order to successfully challenge such a ban under Rock, Scheffer must demonstrate that the ban is “disproportionate” to the ban’s interest. If the issue of whether polygraph constitutes scientific evidence is subject to reasonable debate, then under Rock the per se ban is unconstitutional. On the other hand, if polygraph evidence is not admissible under Rule 702, then the constitutional challenge will fail. Yet, even though a per se rule against the admission of polygraph evidence may no longer be viable or is held to be unconstitutional, a party proffering polygraph evidence will still be required to show that the methodology is scientific evidence was relevant, not unduly prejudicial, and properly applied to the facts at issue before the court.
Regardless of whether a per se ban on polygraph evidence is viable after Daubert, a district court must consider the danger of unfair prejudice from polygraph evidence, pursuant to Rule 403. In ruling against a per se ban against polygraph evidence, the Posado court was mindful of “opening a legal Pandora’s box.” Thus, the district court’s screening role will place an emphasis on analyzing how Rule 403 impacts polygraph evidence rather than Rule 702. Rule 403 states “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” The Scheffer court found that, the military judge was required by Daubert to be a gatekeeper and weigh probative value against prejudicial impact in accordance with Military Rule Evidence, Rule 403. “[T]he trial court may exclude polygraph expert testimony because 1) the polygraph examiner’s qualifications are unacceptable; 2) the test procedure was unfairly prejudicial or the test was poorly administered; or 3) the questions were irrelevant or improper.” Some courts have looked at the factors which may contribute to this risk of unfair prejudice. A United States District Court for the Southern District of Texas pronounced a list of relevant factors, which although non-exhaustive, should be considered before a court determines that the probative value of the test is not substantially outweighed by the danger of unfair prejudice. The list includes
(1) That all parties be present to observe the proceedings.
(2) That there be a legal commitment irrevocably allowing the admission of the results by both sides.
(3) That the subject commit to being examined by any polygraphic expert designated by the other side.
(4) When more than one exam is contemplated, the choice of the first examiner take place by chance.
(5) That the pre-test interview be allowed by all sides with all sides present.
(6) That the post-test interview be allowed by all sides with all sides present.
(7) That immediately prior to the test the subject be examined for any sedative or drugs in his body.
(8) That the rules do not admit character evidence for truthfulness be legally waived.
(9) That no questions be permitted to the mental state of the defendant at the time of the alleged commission of the event.
(10) The failure of the defendant to make himself available to testify in the case should also be a consideration.
A polygraph is less effective if there is no risk of the test subject’s lies being exposed through the examination. Thus, a polygraph exam which is offered having administered by one party is more likely to pose an undue risk of prejudice because the risk of consequences has been removed from the testing situation. Without this fear of consequences, the examination is far less reliable and therefore the risk of unfair prejudice is greater. The prejudicial effect of unilateral polygraph examinations outweighs their probative value “because the party offering them did not have an adverse interest at stake while taking the test.” In order to ensure that there is interest at stake and minimize the danger of unfair prejudice, the proffering party must offer irrevocably to stipulate to the admissibility of the examination so that jury will hear about unfavorable results. For example, in United States v. Posado, the defendants contacted the prosecutors and offered them an opportunity to participate in the testing and offered to stipulate that the results of the tests would be admissible “in any way the government wanted to use them, at trial or otherwise.” This no doubt impacted on the Fifth Circuit reversing the district court.
The decision whether to admit scientific evidence is not devoid of the other considerations of evidence. In some instances the court may duck the question of scientific evidence in its role of gatekeeper. For instance, in United States v Kwong, the Second Circuit declined to reach the issue whether the polygraph was scientific. Instead, the court stated that the questions comprising the proffered polygraph examination were so “inherently ambiguous no matter how they were answered” that the danger of prejudice was outweighed by the examination’s probative value under Rule 403. The court held that the first two questions could be answered truthfully in the negative without exculpating Kwong, and the last question was phrased in such a way that it rendered the level of certainty about the answer to the question “chimerical at best.” Similarly in United States v. Lech, the court found the polygraph examination questions prejudicial because the address the defendant’s subjective belief about his guilt and not the facts at issue. In a dictum, the court stated that it might consider admitting the polygraph examination if the questions were to directly address a factual issue:
A different situation might be presented if a defendant sought to introduce answers to an exam where he or she completely denied any connection or involvement with the charged conduct . . . . This distinction substantially affects the balancing under Rule 403 that I must consider. When a defendant unequivocally denies any connection to a particular scheme (e.g. I never met John Doe, let alone robbed a bank alongside him), the factual predicates for the polygraph examiner’s conclusions are relatively simple, and thus may be less likely to confuse the jury.
Without the questions which are unambiguous and address a specific and relevant issue, then the results of the polygraph examination are not admissible. One way to help make sure that the examination questions are unambiguous is give the opponent of the evidence the opportunity to comment on the questions, thereby further minimizing the danger of prejudice under Rule 403.
There is an inherent risk that the jury will give too much credence to an examination which purports to be a “lie detector” and give the polygraph expert’s testimony undue consideration over other forms of evidence, thereby exposing the opponent of the evidence to unfair prejudice under Rule 403. While such risk may exist, without persuasive evidence to show how much credence a jury would give to an expert who has administered a lie detector test, the providence of the jury would be invaded by second guessing how it would perceive evidence. However, the proponent of polygraph evidence can show how a jury would use expert assistance in order to form a conclusion. The proponent must demonstrate that the risk of prejudice by such testimony would not be substantially outweighed by its probative value. This risk could be minimized by the court’s limiting purposes for which the jury may use the expert’s testimony and circumstances when the testimony may be admitted. The district court has wide discretion, and rulings on admissibility are reviewed for a clear abuse of discretion.
Even if a party proffering polygraph evidence is able overcome the Rule 104 hurdles of showing that the polygraph methodology is: 1) scientific evidence; 2) is relevant without being unfairly prejudicial; and 3) the methodology properly applied to the facts at issue before the court, the admission of the polygraph evidence will have an impact his Fifth Amendment privilege against self incrimination.
Assuming all possible outcomes in United States v. Scheffer, the Supreme Court will not settle all issues concerning the admission of polygraph examinations into evidence in the federal courts. Scheffer challenges a per se ban as unconstitutional so the Court does not have to rule definitively the issue of the admissibility of polygraph evidence to rule on the constitutional challenge. In a narrow holding, the Court may find that polygraph evidence is not necessarily scientific, but rather sufficiently reliable, to allow a criminal defendant to attempt to lay the foundation that polygraph evidence constitutes scientific knowledge pursuant to Daubert. As such, it would be a matter for remand to the military trial court for the defendant to show that polygraph evidence is scientific knowledge, and is otherwise admissible by a preponderance of the evidence.
Should the Court reverse the Military Court of Appeals ruling, the Court will determine that a per se ban on polygraph evidence is allowable as not being unconstitutional. However, such a holding would not require all circuits to implement a per se ban on polygraph evidence, but would merely allow those circuits which have chosen to institute a ban to do so. This holding would not be the death knell to polygraph evidence in the federal courts. The Court could not that, hold as a matter of law, polygraph evidence could never be shown to be reliable evidence, which would eliminate the possibility of to a subsequent Sixth Amendment challenge. Alternatively, a reversal may be limit to the military’s per se ban in Military Rule of Evidence, Rule 707. On the other hand, if the Court affirms the Military Court of Appeals ruling by holding that a per se ban is impermissible under the Sixth Amendment it will presumably overrule all circuits which have per se bans. This holding would not necessarily open the flood gates to polygraph evidence. Yet, since the federal courts have ruled on the admissibility of polygraph evidence in limine, considering only the threshold arguments of scientific evidence and prejudicial value, only a few courts have examined the impact of the admission of polygraph evidence on the proponent’s Fifth Amendment Right against self-incrimination. Before deciding the issue of Fifth Amendment waiver, the courts must decide first that polygraph evidence is admissible under Rule 702 and decide the limited purposes for which polygraph evidence may be offered.
Despite the demise of a per se ban on polygraph evidence, after an application of the Daubert factors, the federal courts are still unsure as to whether polygraph methodology constitutes scientific knowledge. In fact, only one court has expressly so held. When applying the Daubert factors to polygraph methodology, it is quite possible to build a strong case to find, at least by a preponderance of the evidence, that the methodology is “scientific knowledge” when used to show that certain statements were deceptive and therefore admissible for the limited purpose of showing credibility.
The district court’s preliminary assessment whether proffered polygraph evidence constitutes scientific knowledge entails a determination of whether the reasoning or methodology underlying the polygraph is scientifically valid. In United States v. Galbreth, the United States District Court for the District of New Mexico admitted the results of a polygraph examination after a preliminary hearing, where the following testimony was offered. Dr. Charles R. Honts, an associate professor of Psychology at Boise State University, testified, as an expert, that the polygraph is based on valid scientific methodology. Dr. David C. Raskin, a retired psychophysiologist from the University of Utah, also testified as an expert, that laboratory and field tests validate polygraph methodology, and show that the polygraph is capable of being tested. Dr. Raskin further testified that there are published articles on polygraph methodology as being reliable evidence, that such reliability has a greater than ninety percent accuracy, and that the American Polygraph Association has established standards and guidelines for the administration of a polygraph exam and requires that the exam be videotaped. These polygraph procedures have been accepted by numerous associations including the National Association of Psychophysiologists. The court found that the evidence satisfied the Daubert requirements, but as Galbreth is not binding precedent when faced with a proffer of polygraph evidence, a district court must determine whether the evidence is sufficiently reliable to allow a jury to form a conclusion.
The methodology which forms the basis for a scientific theory must have been empirically tested to demonstrate the methodology’s falsifiability or refutability. The polygraph technique is capable of being tested. Studies indicate that the polygraph technique reliably predicates truth or deception between seventy to ninety percent of the time. This accuracy rate alone is indicative of reliability; indeed, by itself, the fact that the success rate has been measured is indicative of the testability of the technique. However, the polygraph technique is empirically not perfectly testable. For example, an attempt can be made by the test subject to slow his heart rate and breathing by calming himself, and thereby perturb the subject’s test results. However, this does not demonstrate that the underlying theory is false, but rather that the scientific technique is not properly applied to a particular instant case. For example, if the exam is administered to psychopath then the methodology and the accompanying results may not proper evidence.
Polygraph technique is scientific because it uses statistics to determine the overall reliability. Clinical results indicate the testability of the technique which the polygraph expert employed in administering the exam. The importance of testing the hypothesis is to show if the method is capable of being falsified, or can be refuted. Whether individual results are correct is not the issue, it is whether the theory can be tested to show that the theory accurately describes the world.
The assumptions which underlie the polygraph can be tested both in the field and in the laboratory. The way in which the polygraph is tested in the field is by comparing the results of polygraph examination with sources which are independent of the polygraph examination to confirm the event which is the subject of the examination. It is difficult to verify the results of examination. The primary means is an inculpatory confession by the test subject subsequent to the polygraph examination which shows that the test subject was lying during the examination. Such a confession, though, frequently comes after a failed polygraph examination. A laboratory analysis can be made of the Guilty Knowledge Test by giving a number volunteer test subjects folders containing different information on which they will be examined. The polygraph examiner then attempts to determine which subjects had knowledge of which information. The determinations are compared to the original distribution of the information in the folders. Similarly, this experiment can be duplicated for the Control Question Test by having the volunteer test subjects act out the tested events.
At any rate, polygraph technique is scientific in that it tests the rate of error, and calibrates the instrumentation based on physical principles, to ensure the integrity of the testing conditions. This attempt to follow quantifiable principles is “more than speculative belief or unsupported speculation.” While the law acknowledges the fact that nothing in science can be known to a certainty, an inference must be derived from scientific method, and not from pure conjecture or speculation. The scientific method is a process where the inquiry is based on generating hypotheses, and after testing those hypotheses they become valid explanations of the physical world.
The scrutiny of a theory by the scientific community is a component of “good science” and can be demonstrated by a showing that the theory has been subjected to peer review and publication. Though an important consideration under Daubert necessary to demonstrate the a theory peer review and publication is by no means infallible. The challenge of this consideration is to show the court that the expert is not basing his conclusions on some errant or forsaken methodology. Numerous studies show that polygraph technique has been the subject of such scrutiny. The polygraph is also subject to criticism in the scientific community. Presumably, such criticism would satisfy this criterion and would afford fodder for impeachment and cross-examination which are a far more probative means of insuring the integrity of the evidence in an adversarial system.
The district court ordinarily should consider the known or potential rate of error of the underlying technique, method, or process because it illuminates reliability. In addition, the existence and maintenance of standards controlling the technique’s operation also demonstrate the theory’s reliability. Divergence from these standards in the method’s application, of course, will undermine the reliability of the evidence.
It is often felt that the polygraph technique is accurate in predicting truth or deception between seventy to ninety percent of the time, but this measurement can vary greatly. It may be impossible to know the error in each specific case, but because such rates of error are, and can be, known, change of error in a specific case is a matter for cross-examination and not “wholesale” screening by the district court. Laboratory studies show that the Guilty Knowledge Test, at least in the laboratory, exposed ninety-five percent of guilty test subjects and exonerated one hundred percent of innocent test subjects. The Control Question Test is thought to be less accurate. Though the Guilty Knowledge Test requires the examiner to have access to and the ability to use information relating to the questioned event. However, the results of the Guilty Knowledge Test can be less accurate if the test subject forgets or has independent knowledge of the event in question. This can be minimized by the Guilty Action Test where the test subject is asked not whether he has knowledge, but whether he committed the crime. The Guilty Action Test yields greater false positives, identifying more innocent subjects as guilty because of the arousal produced by accusation.
Of course, as noted, it is a difficult to verify the test results because a confession (which usually comes after a failed polygraph) seems to be the only accurate way in the field to verify the results. Thus it is difficult to measure false negatives because a guilty person who passed a polygraph examination is unlikely to confess. The accuracy rate for the Control Question Test polygraph examinations, based on independent scoring the of the results, was fifty-five percent for innocent test subjects. This result is not statistically different from chance, assuming two outcomes deceptive and non-deceptive. However, when including the results based on the examiner’s opinion, the accuracy rate jumps to ninety percent. Clearly this places a lot of emphasis not on the polygraph methodology but on the expert’s administering an examination properly. The expert’s qualifications are as important as the qualification of the expertise.
Further, there are standard procedures and guidelines to minimize the variations in the integrity of the testing. These standards give a means by which to gauge testing accuracy and the reliability of the evidence. Ferguson and Miller also describe twenty critical steps in insuring a valid opinion on truth or deception. If these are not followed then the polygraph examination cannot be properly applied. An example of such may be where the examiner did not attempt to control for other emotions which might generate a sympathetic nervous system arousal. A major concern of the opponents to Control Question Test is the implausibility of the assumptions underlying the technique. The relationship between the examiner and the test subject must be a transactional relationship where the examiner controls the test subject in order to ensure that the control questions and the relevant questions evoke the proper arousal. The qualifications of the examiner impact the examination and whether the methodology was properly followed in the instant case. If the polygraph examiner lacks qualifications or fails to adhere to the technique, the evidence may be excluded or at a minimum these facts can be used for impeachment.
While, as noted, “general acceptance” is not a mandate for admissibility, a particular degree of acceptance within an identifiable, relevant scientific community will assist the district court’s determination of reliability. This is because “a known technique which has been able to attract only minimal support within the community, may properly be viewed with skepticism.” The community’s eschewing the method weighs against admissibility, while the community’s embracing the method weighs for admissibility. Identifying the relevant scientific community can pose a problem; however, polygraph methodology is accepted within a relevant scientific community. There is growing acceptance, not just by polygraph community but also among employers as a means of screening prospective employees, and as an investigative tool by the law enforcement and military communities.
The onus is on the attorney of the proffering party to convince the district court that a polygraph exam is based on valid scientific methodology and therefore scientific evidence. Charles Daniels said “I prepared the two experts [to testify in United States v. Galbreth] to deal with the basic Daubert standards. The subject was a matter of scientific knowledge and it was my purpose to understand all the Daubert requirements and present the issues to the judge. I tried to address each of them clearly and aggressively.”
No one of the four Daubert considerations are determinative individually, the district court’s assessment is to be flexible, allowing for cross-examination and rebuttal evidence as a more appropriate means for insuring the integrity of the evidence rather than the wholesale screening. Even if fallible, the onus may fall to the opponent to impeach the methodology. A per se ban does not comport with this undertaking. When these factors are applied in ruling on a motion to admit polygraph evidence, the district court’s ruling on admissibility of polygraph evidence is reviewed for abuse of discretion. Even if polygraph evidence is based on a methodology which is considered scientific under the Daubert standard, then the district court could still refuse to admit the evidence by exercise its gatekeeper role insuring the that the proffered polygraph evidence is limited relevant purposes.
Should the polygraph be considered inadmissible as scientific evidence, it seems as though at least one court has carved an exception to short-circuit the Daubert standard which could allow for the admission of polygraph evidence. The Daubert opinion discusses “scientific knowledge” at length; however, Rule 702 provides “scientific, technical, or other specialized knowledge” is admissible if it will assist the trier of fact in understanding the evidence or in determining a fact in issue. Daubert’s more limited use of words begs the question whether an exception can be made in cases where the expert testimony may embrace “technical or other specialized knowledge.” If there is such a distinction, does the polygraph technique constitute “technical or other specialized knowledge,” within the meaning of the rule.
In United States v. Starzecpzel the court held that expert testimony by a forensic document examiner which embraces the issue of whether particular signatures were forgeries based on an analysis of handwriting samples, be admissible though not scientific evidence under Daubert.
While the Court originally considered Daubert to be controlling as to the admissibility of the forensic testimony at issue--relating to the comparison of a large body of genuine writings to claimed forgeries--the Court now concludes that Daubert, which focuses on the "junk science" problem, is largely irrelevant to the challenged testimony.
The court held that this is because, “[a]lthough Daubert standards do not apply to such “skilled” witnesses, trial courts need not certify every individual accomplished at a particular task as an expert.” The court read the Daubert holding narrowly stating that it was unclear that Daubert was to apply to “nonscientific experts.” But it is clear that Rule 702 is to be read broadly. The test of whether the evidence is admissible turns on whether the expert has the appropriate level of training or experience. Finally, the court ruled on the danger of unfair prejudice did not require exclusion under Rule 403, concluding that, although the skilled expert testimony might receive preferential consideration by the jury, the prejudicial value is slight because there is no hard evidence that jury is likely to be unduly influenced by the skilled evidence.
To date, no court has applied the reasoning in Starzecpzel to the issue whether polygraph methodology constitutes “skilled expert testimony.” However, should a court takes the position that view as non-scientific the polygraph does not encompass scientific methodology, a proponent of polygraph evidence may argue that the evidence is within the contemplation of the Starzecpzel exception. Polygraph evidence may be considered technical evidence in that it requires an expert who has training and experience in order to achieve an accurate result. Moreover, like handwriting analysis, a polygraph expert’s determination of truth or deception “is subject to juror confirmation or rejection, or to challenge by an opposing expert.” This minimizes the risk of unfair prejudice because “[T]he ability of jurors to perform the crucial visual comparisons relied upon by handwriting experts cuts against the danger of undue prejudice from the mystique attached to ‘experts.’” Thus, polygraph methodology may be admissible under Rule 702 as skilled testimony if it is not considered as scientific testimony.
Assuming that polygraph evidence is admissible under Rule 702, a court must determine under what circumstances polygraph evidence is relevant which will dictate the purposes for which the evidence may be used. There are two ways to bring in polygraph evidence. First, during his case-in-chief, a defendant may attempt to offer the testimony of a polygraph expert embracing the results of a polygraph exam which would tend to disprove a material element or elements of the charge, or tend to prove a material element or elements of an affirmative defense. However, such a proffer of polygraph evidence will most likely encounter problems with either relevancy or hearsay. Alternatively, if the defendant takes the stand to testify then the expert’s testimony is admissible to rehabilitate his credibility after the prosecution cross-examines him by showing his character for truth and veracity. It is easy to see how the defendant would prefer the first method. It allows him to admit his own favorable testimonial evidence without being subject to cross-examination, impeachment by character evidence, or impeachment by prior convictions.
The admission of polygraph evidence will constitute voluntary waiver of the defendant’s Fifth Amendment privilege against self-incrimination regardless of how the evidence is admitted. This constitutionally recognized privilege has been given a broad reading by the courts. The privilege protects against compelled disclosure that would lead to consequences of criminal liability including prosecution or increased sentencing. This includes not just compelled disclosure in criminal cases but also in civil trials and at depositions.
When analyzing the purposes for which polygraph evidence is admissible, it is best to consider the polygraph expert witness’ testimony in its most elemental parts. An expert witness’ proffered testimony concerning a polygraph exam contains three parts within the contemplation of the Federal Rules of Evidence. First is a recitation of the defendant’s responses to the examiner’s questions. These statements incorporate both the verbal responses and the nonverbal, physiological responses as measured by the polygraph instrumentation. Second is the expert witness’ opinion, based on these measurements of the physiological responses, that the defendant’s responses were intended to be either truthful or non-deceptive. Third is the expert’s opinion that the ultimate issue for which the polygraph examination is asserted is either true or false. The opinion is necessarily predicated on his scientific examination of the defendant or a review of the results of such an exam.
When the defendant offers expert testimony concerning a polygraph examination which he has taken, he is proffering his own statements as hearsay. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the matter asserted.” Any responses made by the defendant other than those made under oath in court are sure to fall within this rule. Thus, the defendant’s responses to the exam questions, both verbal and the nonverbal, are out of court statements unless the polygraph examination is administered at trial with the defendant under oath and subject to cross-examination. The measurement of the physiological readings by themselves have no relevance as they are not likely to illuminate a fact at issue without an expert to tell the lay jury what they mean. The Federal Rules of Evidence bar the admission of hearsay evidence. If the polygraph evidence is offered to prove the matter asserted by the examination, and it must be so offered otherwise the evidence has no relevance, the evidence is excludable as hearsay unless it falls under one of the hearsay exceptions.
A defendant may seek to admit the polygraph exam statements by using a hearsay exception in Title VIII of the Federal Rules of Evidence. The three most likely candidates for an exception are as an admission by party opponent, as a general hearsay exception, and as a general exception when the declarant is unavailable. Admission by party opponent is a party’s own statement which is offered against that party and is not considered hearsay within the meaning of the Federal Rules of Evidence. However, this Rule is not a ground which can support a defendant’s proffer of his test responses, to prove the matter asserted by the polygraph examination, because the proffer of evidence by the defendant to support his case-in-chief cannot be considered a “party’s own statement” which “offered against a party.” Indeed, the converse is true; the responses to the polygraph questions are a party’s statements offered by that party.
The defendant may alternatively argue that Rule 803(24), the “unrestricted” exception, covers the responses to the polygraph examination questions. The requirements which Rule 403 places on the polygraph exam as a prerequisite to admissibility could be convincingly argued to satisfy the requirement that the statement, though not specifically covered by any of the other exceptions in Rule 803, has equivalent guarantees of trustworthiness at least equal to the other hearsay exceptions. However, under this rule the district court has the discretion to determine whether the responses to the polygraph exam questions are “more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.” Under this Rule, which does not contemplate the Fifth Amendment privilege against self-incrimination, the live testimony (subject to cross-examination) of the defendant is more probative than the hearsay responses to the polygraph examination questions, and it is not unreasonably procured by the defendant taking the stand.
In an attempt to circumvent this argument, the defendant may proffer the responses under Rule 804(5). The rule allows for the admission of hearsay when the declarant is unavailable. The defendant may satisfy the requirement of unavailability as a witness as a declarant who “is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement . . . ” The defendant can assert that his Fifth Amendment privilege not to “be compelled in any criminal case to be a witness against himself” and that it is unreasonable to make the defendant choose between his Fifth Amendment privilege and the proffer of reasonably exculpatory evidence. Thus, because the general exception rule for an unavailable declarant are almost identical to those when the availability of the declarant is immaterial, the defendant can argue that the responses to the polygraph examination is reliable to be admitted and that the defendant is not required to make reasonable efforts to procure his own privileged testimony. without having to testify. However, admitting this evidence is, in effect, allowing the defendant to admit his own hearsay testimony while permitting him to evade cross-examination. The admission of the statement into evidence does not best serve “the general purposes of these rules and the interests of justice.”
Assuming that such a proffer would be deemed admissible, in order to have the statement admitted under this exception, the defendant must inform the prosecution sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to rebut the hearsay evidence, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant. Of course, the advance notice provision will probably be satisfied by the advance proffer of the experts’ qualifications and the irrevocable offer to stipulate.
If the responses are not offered for the matter asserted, i.e. to disprove a material element or elements of the charge, or tend to prove a material element or elements of an affirmative defense, but rather as basis for an expert’s opinion, then the polygraph evidence is not necessarily excludable as hearsay; however, in such a situation, the expert’s testimony is not necessarily relevant. The expert’s testimony will not be relevant should the district court limit the scope of the polygraph expert witness’ opinion to solely embrace whether the verbal responses were intended to be either deceptive or non-deceptive. If the verbal responses are not offered to prove the truth of the matter asserted in the polygraph examination, they are not hearsay, but merely statements made by a declarant while not testifying. Regardless of whether or not the responses are hearsay statements, an expert may properly rely on the responses as a basis for his opinion.
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject, the facts or data need not be admissible in evidence.
Thus, a district court may properly admit the responses during the polygraph examination when properly embodied as the basis for then expert’s testimony. But, a precondition to admissibility of the responses to the polygraph examination is that these responses must be shown to be of a type reasonably relied upon by experts in the particular field in forming opinions about deception. This can be demonstrated by a showing that the entire polygraph examination adhered to the standards established by the polygraph community. Thus, at a preliminary hearing it would not be difficult for the polygraph expert to establish that the responses are of the type normally relied on by polygraph experts so that the specific responses may be relied on for the basis of the opinion.
However, while the jury may hear the responses, neither Rule 703 or Rule 705 allows the fact finder to use responses to the polygraph examination for purposes other than as a basis for evaluating the credibility of the polygraph expert’s opinion. This is because the exception in Rule 703 is not a complete exception to the hearsay rule. Although the Rule 703 exception may presumably incorporated by reference in Rule 802, the Rule 703 exception only allows for the evidence as a basis for the expert’s opinion. If the jury is invited to use the responses to reach a conclusion asserted by the responses, then the responses are offered as hearsay because they are “statement[s], other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the matter asserted.” The defendant’s responses cannot be used in this way because of the bar against such hearsay. In order to insure the evidence is only used for the purpose of evaluating the expert’s opinion, a limiting instruction that the responses cannot be used as a basis for factual determination, pursuant to Rule 105 would be necessary.
However, the district court’s consideration of this kind of proffer ends when reaching the relevance of the opinion testimony. As noted, the proffered polygraph exam is limited to the opinion that certain statements were deceptive or non-deceptive. Such evidence is only legally relevant when the defendant’s character for truth and veracity is an issue before the court. Otherwise, the polygraph exam does not assist the fact finder in providing a basis for a determination of a material question of fact. Thus, polygraph evidence of this type may be excluded under Rule 402. In addition to lacking relevance, in admitting this proffer of polygraph evidence, the district court, in effect, impermissibly allows the defendant not only to evade cross-examination, but also to bolster his character for truthfulness before it has been attacked. Thus it seems as though polygraph evidence is not admissible until and unless the defendant testifies, absent a stipulation.
While polygraph evidence is inadmissible if the defendant does not take the stand, in instances where the defendant does take the stand to testify, then a polygraph expert’s opinion testimony will be admissible to rehabilitate the defendant’s credibility, after being attacked, by showing his character for truthfulness. The polygraph expert’s opinion is admissible, in this instance, because it is relevant to the issue of truthfulness, does not present hearsay problems, and the defendant is not allowed to circumvent cross-examination. As noted, the defendant’s verbal responses, and the nonverbal responses to the polygraph exam questions, are inadmissible as hearsay if asserted to prove an ultimate issue.
However, polygraph evidence is not necessary to prove the matter asserted by the examination. This may be done by the defendant’s direct examination testimony. Moreover, the responses can be adduced at trial, despite their inadmissibility as hearsay, when solely offered as a basis for the expert’s opinion provided that the expert’s testimony is relevant. An expert may properly rely on the responses as “facts or data in the particular case upon which an expert bases an opinion or inference . . . . If of a type reasonably relied upon by experts in the particular field in forming opinions . . . on the subject . . . ” The polygraph expert can establish that the responses are of the type normally relied on by polygraph experts so that the responses may be relied on for the basis of the opinion. This proffered opinion testimony is limited to the opinion that certain responses to the polygraph exam were deceptive or non-deceptive. The opinion testimony is only legally relevant when the defendant’s character for truth and veracity is an issue before the court. At this point, there is no real difference between a proffer before the defendant testifies, and his proffer after taking the stand.
Once the defendant takes the stand, either the prosecution or a codefendant will most likely attempt to impeach the defendant’s character for truthfulness. Once attacked, the opinion testimony becomes relevant to a material issue. The examination shows the defendant’s character for truthfulness because the expert may provide an opinion that the defendant was not being deceitful when he responded to the examination questions. If the polygraph exam unambiguously addresses the subject matter of the defendant’s direct examination and propensity for truth and veracity, then it has a tendency to make the fact that the defendant did not commit perjury more probable. Moreover, the defendant had not been able to admit his hearsay testimony while evading cross-examination.
One possible exception exists to the requirement that the defendant take the stand and testify in order to make the expert’s opinion testimony concerning a polygraph examination relevant. The exception comes in the form of the characterization of the opinion to include the expert’s opinion on the ultimate issue. Until this point, this Note has assumed that the district court limits the scope of the polygraph expert witness’ opinion solely to the issue of whether the verbal responses to the exam questions were either subjectively deceptive or non-deceptive. However, should the district court allow the opinion to address not only the subjective truth of the responses, but also the objective truth (i.e., whether the ultimate conclusion for which the polygraph exam is asserted is either true or false), then the testimony is relevant without the defendant’s first taking the stand. The testimony is relevant in that the polygraph expert’s opinion, if taken as truth, tends to prove that a material element at issue is either true or false. However, even most defendants are likely to concede that the expert testimony cannot encompass the objective truth of the ultimate issue. Testimony which does so is not objectionable merely because it embraces an ultimate issue; but, the opinion may be excluded on two other grounds. First, the conclusion usurps the role of the jury and therefore does not assist them in their factual determination. Second, polygraph technology lacks the power to derive a conclusion of objective truth of an ultimate issue. The second argument is the more compelling of the two.
The requirement in Rule 702 that the testimony “assist the trier of fact” is more easily employed to admit opinion evidence than to exclude it. At common law, expert witness testimony could not be admitted if it would invade the purview of the jury. It is not definitively decided whether the Federal Rules of Evidence mandate that the expert’s opinion be outside of the ken of the average juror. The jury may be able to form the conclusion that during a polygraph examination, the defendant asserted the truth of a material issue of fact, and because that statement was not deceptive, the material fact is true without expert assistance. Even though this is a matter familiar to the jury and no expert testimony is required to form the conclusion, the opinion testimony may still assist the jury to understand the evidence. This rule holds even when the polygraph evidence is used to support the defendant’s character for truth and veracity. The jury has the providence to determine the credibility of witnesses. Granted, scientific evidence assists this determination, but is it within their purview and experience to determine which witnesses to credit. The defendant’s Sixth Amendment right to adduce evidence to rehabilitate his character for truthfulness would allow the admission of such evidence. However, since there is no definitive rule, the court may exclude the opinion on the ultimate issue as not assisting the jury by invading their purview and by the risk of prejudice. Moreover, the district court may balance the interests of exclusion to keep the flood gates closed. If polygraph evidence is allowed on this issue, then it may come in any time the defendant testifies.
There exist three reasons to support the argument to limit the scope of the expert’s opinion to the subjective deceptive or non-deceptive nature of the polygraph examination responses. The arguments are predicated on the fact that a polygraph examination is not able to reconstruct the past, but the exam can determine whether someone is subjectively being deceptive. This is due to the inherent limitations of the human memory as it is an integral part of the exam. The results of the test cannot predict an objective truth because the test subject may forget the details concerning questioned event or he may have independent knowledge of the questioned event. The polygraph examiner can never be certain whether or not the test subject has this information. During the examination, the test subject may not feel that he is being deceitful or may respond emotionally based on his independent knowledge, in either event, this will change the magnitude of his sympathetic nervous system arousal, thereby skewing the accuracy of the test results when used to show an objective truth. If the expert testifies to a conclusion which the scientific knowledge is not capable of supporting, then evidence may be excluded because the methodology underlying the polygraph is not properly applied to the facts in issue.
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology . . . properly can be applied to the facts in issue.
Alternatively, if the scientific knowledge cannot support the expert’s conclusion, then the evidence may be excluded as it is substantially more prejudicial than probative for the purpose for which it is being offered. Finally, when the expert is allowed to testify to the ultimate conclusion, when the defendant has not taken the stand, the defendant is offering his hearsay testimony in the guise of an expert opinion. This allows the defendant to circumvent cross-examination and to bolster his character for truthfulness prior to being attacked. In short, the defendant must take the stand in order for the polygraph evidence to be admissible. Thus, the expert will not be allowed to testify that he is of the opinion that the defendant did not commit the alleged crime.
The only instance when a polygraph expert’s opinion is relevant is when the defendant’s character for truthfulness has been put at issue by the defendant taking the stand to testify, and it has been attacked. It naturally follows that in so doing, the defendant waives his Fifth Amendment privilege against being compelled to be a witness against himself. However, should a district court admit the polygraph without the defendant first testifying, the proffer and subsequent admission of the evidence will waive the defendant’s Fifth Amendment privilege, allowing the prosecution to call him to testify.
The constitutionally recognized Fifth Amendment privilege arises from the language “No person shall be . . . compelled in any criminal case to be a witness against himself.” The privilege attaches at anytime when a person compelled to disclose something that would lead to criminal liability. This includes not just criminal trials, but also civil trials, depositions, and preliminary hearings. However, while the government may require the defendant to submit a blood sample or a be part of an identification, the privilege prevents government from requiring the defendant to testify in his defense, because the privilege applies to evidence which is “testimonial.” Evidence is considered testimonial when it is derived from memory. A polygraph examination may be considered is certainly testimonial because is based on the test subject’s memory of events.
The justification for the privilege is further reaching than the rule itself:
The privilege against self-incrimination ‘registers an important advance in the development of our liberty--’one of the great landmarks in man’s struggle to make himself civilized.’’ It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load, our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’
A United States District Court has the discretion to determine the privilege of a witness as “governed by the principles of common law as they may be interpreted . . . in light of reason and experience.” Congress intended that Rule 501 keep the common law of privilege in tact, thus a district may determine the waiver of that privilege based on the common law. A waiver of the Fifth Amendment privilege does not require the defendant to formally announce his intent to waive his Fifth Amendment privilege, he may waive his privilege merely by his actions. Thus, a district court may rule on this issue based on the actions of the defendant.
While it is a violation of the Sixth Amendment right to prevent a criminal defendant from presenting exculpatory evidence, when the defendant chooses to present a witness to produce the defendants exculpatory testimony, the defendant chooses to forgo the right to remain silent. This is just as it would be if he took the stand to testify. When a defendant adduces a polygraph expert’s testimony, the defendant’s own testimonial evidence comes in as a necessary part of the polygraph evidence. Allowing a defendant to offer his own testimonial evidence without being subject to cross-examination is simply unfair to the interests of justice as it provides the defendant with a windfall. The fact that the defendant does not undergo the punctilious formalities of swearing an oath and taking the witness stand should afford the dual benefit of admitting one’s statement through the expert witness back door while being immune from cross-examination of those statements. Such an imbalance of the equities of justice do not comport with “reason and experience” or the “fundamental values and most noble aspirations.” Furthermore, the rationale for privilege based on preventing the government’s abuse of power by usurping an individual’s liberties and denigrating his human dignity. Because the defendant is not being compelled to adduce this evidence, the proffer of the evidence is his choice. Thus, it cannot be said that the government’s actions can abuse the individual or denigrate his dignity. This balancing of the equities to allow the prosecution to call the defendant to testify does not require that the defendant face the cruel trilemma of self-accusation, perjury or contempt because he has already voluntarily offered his own testimony.
Moreover, if the defendant’s testimonial evidence comes in for the truth of the matter asserted as part of the expert’s testimony, then the defendant may be considered a hearsay declarant. A hearsay declarant is a witness within the meaning of the Federal Rules of Evidence, and thus may be impeached under Rule 806. The privilege against self-incrimination is waived when the witness discloses privileged information and there is no further legal detriment. Since the defendant may be considered as a witness and impeached as a hearsay declarant, there is no further legal detriment in waiver after the defendant has voluntarily disclosed, at trial, the subject matter of the testimonial privilege. This comports with our notions of “fair play.”
Requiring the defendant to testify before offering polygraph evidence or at least waive his Fifth Amendment privilege when he does not first testify, as a precondition to admitting polygraph evidence will not unduly burden the defendant. This is because while he waives his privilege against self-incrimination and may be called to the stand to testify, this waiver is limited to trials the proponent actually offers the evidence. Although the record of the defendant’s testimony or the polygraph examination results may be used against the proponent in a subsequent trial, he may assert the privilege not to testify in the subsequent trial.
[W]e must comment on the dissenter’s “floodgate” argument that our opinion will generate an unreasonable burden on the services. Apart from the speculative nature of such an argument, we think that it is just as likely that polygraph evidence will prevent needless litigation by avoiding some meritless prosecutions as well as smoking out bogus claims of innocent ingestion.
Polygraph evidence is likely to be admitted under Rule 702 in federal court with increasing frequency before the end of the decade, if not before the end of the year. In order to adhere to the rules of evidence and maintain a check on the “floodgate,” the evidence must be shown to be reliable. The best means to insure that the evidence is reliable is though careful construction of the burden of proof and through vigorous cross-examination and presentation of contrary evidence to attack “shaky but admissible evidence.”
Polygraph evidence may be further limited to the purpose of rehabilitating a witness’ character for truthfulness, which will, once admitted, constitute voluntary waiver of the Fifth Amendment privilege against self-incrimination. The question whether the Sixth Amendment right of a criminal defendant to present exculpatory evidence; includes the right to require that the prosecution’s witnesses to take a polygraph examination will certainly have to be addressed in future. But at present there is no such right. However, polygraphs only be used as evidence in federal courts when the testing conditions are well documented, adhere to applicable standards and the examination questions are unambiguous. Thus, if polygraph evidence is to be admitted the defendant “must speak by the card, or equivocation will undo” him.
 William Shakespeare, Hamlet, Prince of Denmark act 5, sc. 1.
 See generally, Encyclopedia Britanica vol. 21 p. 440a (1945).
 See e.g., Eugen Herrigel, Zen in the Art of Archery, 68, 78 (R. F. C. Hull trans. Pantheon Books, Inc. 1953) (“For mastery [of the bow] provides its validity as a form of life only when it dwells in the boundless Truth and, sustained by it, becomes the art of origins.” “Outwardly, for the observer, the right shot is diminished by the cushioning of the right hand as it is jerked back, so that no tremor runs through the body. Again, after the wrong shot the pent-up breath is expelled explosively and the next breath cannot be drawn quickly enough”).
 Daniel Defoe, An Effectual Scheme for the Immediate Prevention of Street Robberies and Suppressing All Other Disorders of the Night (1730). David T. Lykken uses this quote for the basis of the title of his book because it articulates the hypothesis underlying modern polygraphs. David Thoreson Lykken, A Tremor in the Blood, Uses and Abuses of the Lie Detector, vii (1981).
 While the issue is also relevant in state courts, this Note deals primarily with federal law.
 See e.g., Tyler v. United States, 193 F.2d 24 (D.C. Cir. 1951) (admitting polygraph evidence only to rebut defendant’s claim of coerced confession); United States v. Johnson, 816 F.2d 918 (3d Cir. 1987) (same); United States v. Hall, 805 F.2d 1410 (10th Cir. 1986) (admitting the results of a polygraph examination which the defendant failed for the prosecution to demonstrate why the police did not conduct a more thorough investigation) Anderson v. United States, 788 F.2d 517, 519, n. 1 (8th Cir.1986) (polygraph evidence admissible by stipulation). See W. Thomas Halbleib, Note, United States v. Piccinonna: The Eleventh Circuit Adds Another Approach to Polygraph Evidence in the Federal System, 80 Ky. L.J. 225, 227-28 (1992).
 509 U.S. 579 (1993).
 See infra Part I.C.
 293 F. 1013 (D.C. Cir. 1923).
 See infra Part I.C.
 951 F.2d 1128 (1991), 727 F. Supp. 570 (1989), on remand, 43 F.3d 1311 (1995) (affirming district court), cert, denied, 116 S.Ct. 189 (mem) (U.S., Oct 02, 1995) (NO. 95-198), 509 U.S. 579, 589-91 (1993).
 509 U.S. at 592-95.
 See e.g., United States v. Posado, 57 F.3d 428 (5th Cir. 1995); United States v. Scheffer, 44 M.J. 442, 446 (1996), cert. granted, 117 S.Ct. 1817 (May 19, 1997) (No. 96-1133); United States v. Ramirez, 1995 WL 918083 (S.D. Tex. Nov. 17, 1995)).
 Compare United States v. Galbreth, No. 94-197 (D.N.M 1995) (admissible) with United States v. Ramirez, 1995 WL 918083 (S.D. Tex. Nov. 17, 1995) (inadmissible).
 See Rock v. Arkansas, 483 U.S. 579 (1987). The Supreme Court has agreed to hear this issue in United States v. Scheffer, 44 M.J. 442, 446 (1996), cert. granted, 117 S.Ct. 1817 (mem) (May 19, 1997) (No. 96-1133).
 See Rock, 483 U.S. 579 (1987).
 Daubert v. Dow Merrell Pharmaceuticals, Inc., 509 U.S. 579 (1993).
 Elaad Eitan, Detection of Deception, a Transactional Analysis Perspective, 127 J. Psychol. 5, 5. (1993).
 The sympathetic nervous system is part to the autonomic nervous system which controls involuntary bodily functions. See Taber’s Cyclopedic Medical Dictionary 144 (14th ed. 1981).
 Stan Abrams, The Complete Polygraph Handbook 35 (1989).
 See Id.
 Norman Ansley, Capillary Response as a Polygraph Channel, The Legal Admissibility of The Polygraph (Norman Ansley ed. 1972) at 257.
 United States v. Posado, 57 F.3d 428, 434, n. 9 (5th Cir. 1995).
 Id. at 258. One example of a sensor is called a plethysmograph is an instrument which registers variations in the size of an organ or limb especially those created by blood passing through the organ. Id. at 257.
 John E. Jacobs, The Feasibility of Alternate Physiological Sensors as Applicable to the Polygraph, The Legal Admissibility of The Polygraph (Norman Ansley ed. 1972) at 257.
 The word “polygraph” actually means “a lot of writings.” See The American Heritage Dictionary 1016 (1981).
 See Abrams, supra note 21, at 35.
 Lykken supra note 5, at 31
 Id. This method was first employed in polygraph methodology called the “clinical lie test” by John E. Reid in the late 1940s. Id.
 Id. Examples of this evaluation, called global scoring, are the test subject’s showing up late or being nervous. Id. This is a subjective diagnosis left to the impressions of the examiner However, when comparing these symptoms and the polygraph examination the examiner is able to make a more accurate and comprehensive determination of deception. Id.
 Lykken, supra note 5, at 50-55
 Abrams, supra note 21, at 34.
 Lykken, supra note 5, at 113-15.
 Id. at 115.
 Id. at 131-33.
 Id. at 135-39
 M. T. Bradley, et al, Deceptive and Non-deceptive Responses, 81 J. Applied Psychol. 153, 153 (1996).
 See Elaad Eitan, Detection of Guilty Knowledge in Real-Life Criminal Investigations, 75 J. Applied Psychol. 521 (1990). False positives are when the test indicates a deceptive response when in fact the response is truthful.
 Abrams, supra note 21 at 34; see also Eitan, supra note 19, at 7-8.
 Abrams, supra note 21 at 33-34.
 Id. at 33.
 Id. at 34.
 Lykken, supra note 5, at 93, 95, 97.
 Id. at 55-58. But cf Robert Steinbrook, M.D., The Polygraph Test - A Flawed Diagnostic Method, 327 New Eng. J. Med. 122, 122 (1992).
 Steinbrook, supra note 51, at 122.
 Id. (endnotes omitted).
 Abrams, supra note 21, at 33; Robert J. Ferguson, Jr. & Allan L. Miller, Polygraph for the Defense 153-4 (1974).
 Abrams, supra note 21, at 214.
 Id. at 215.
 David L. Faigman, et al., Check Your Crystal Ball at the Door, Please: Past, Understanding the Present, and Worrying About the Future of Scientific Evidence, 15 Cardozo L. Rev. 1799, 1801 (1994). If the knowledge which the expert is to testify to is within the understanding of the jury then it will not assists the fact-finder. Id.
 See New England Glass Co. v. Lovell, 61 Mass. (7 Cush.) 319 (1851).
 See e.g., John B. Chapin, Experts and Expert Testimony, 22 Alb. L.J. 365 (1880).
 Daubert v. Dow Merrell Pharmaceuticals, Inc., 509 U.S. 579, 592 n. 10 (1993); Bourjaily v. United States, 483 U.S. 171, 175-176(1987).
 Fed. R. Evid. 702.
 Fed. R. Evid. 702
 For instance, in McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1040-42 (2d Cir. 1995), the Second Circuit affirmed the admission of testimony concerning the dissipation of hot glue fumes by a consulting engineer whose experience with fumes in an industrial workplace was limited to “a couple of dozen times,” but who had experience designing ventilation systems. However, he was not allowed to testify about the sufficiency of a warning label on the glue. Id. at 1040-42. But compare, Liriano v. Hobart Corp., 949 F. Supp. 171, 175-78 & n. 4 (S.D.N.Y. 1996) (safety consultant with over 40 years experience to opine on the sufficiency of a warning label).
 Fed. R. Evid. 702.
 For a further explanation of scientific knowledge see infra Part I.C.2.
 Fed. R. Evid. 702, see contra Fed. R. Evid. 701 which limits the testimony of “witness not testifying as an expert . . . those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.”
 Fed. R. Evid. 703. See also, Zuchowicz v. United States, 870 F. Supp. 15, 19 (D. Conn. 1994); In re “Agent Orange” Product Liability Lit., 611 F. Supp. 1223, 1224 (E.D.N.Y 1985); Ferebee v. Cheveron Chemical Co., 736 F.2d 1529, 1534 (D.C. Cir. 1984). The expert’s opinion is still acceptable even though it may be based on evidence which would normally be excluded as hearsay or on other grounds. Fed. R. Evid. 702-3; Ambrosini v. Labarraque, 966 F.2d 1464, 1466 (D.C. Cir 1992) (hearsay exception). See generally, Peter Huber, Galileo’s Revenge: Junk Science in the Court Room (1991).
 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); see also, Abrams, supra note 21, at 203.
 Marston held a Juris Doctorate and Doctorate in Philosophy. He developed the machine based on his studies of experimental psychology at Harvard University. Lykken, supra note 5, at 27. See generally, William Moulton Marston, The Lie Detector Test (1938). Marston was so confident of the reliability of his machine that he dubbed it a “lie detector” and further stated that the invention of the lie detector “marked the end of man’s long, futile striving a means of distinguishing truth-telling from deception.” Id. at 45. Perhaps this comment is even still a bit premature in over estimating the abilities of the polygraph.
 The machine is considered a simple precursor to the modern polygraph. Abrams, supra note 21, at 203.
 Frye, 293 F. at 1013-14.
 Id. at 1014 (emphasis added).
 See e.g., United States v. Scarborough, 43 F.3d 1021, 1026 (6th Cir.1994) (polygraph results “inherently unreliable”); United States v. Soundingsides, 820 F.2d 1232, 1241 (10th Cir.1987) (polygraph evidence “not admissible to show” that witness “is truthful”); United States v. Skeens, 494 F.2d 1050, 1053 (D.C.Cir.1974) (adhering to Frye and holding polygraph evidence inadmissible); Dowd v. Calabrese, 585 F. Supp. 430 (D.D.C.1984); see generally, Mil. R. Evid. 707 (per se ban). See also, Abrams, supra note 21, at 203-05.
 See Abrams, supra note 21, at 204; Faigman, et al., supra note 57, at 1808, n. 25.
Frye was not cited by a single other court, federal or state, for a decade. During the first quarter century after its publication, Frye was cited in eight federal cases and five state cases. During its second quarter century, it was cited fifty-four times in federal cases and twenty-nine times in state cases. By the 1980s, it was being cited as much each year as it had been in its first fifty years added together. What seems apparent from counting case citations is that judicial interest in the Frye test did not pick up until a few years before the promulgation of the Federal Rules of Evidence and thereafter, no doubt stimulated by the drafting and adoption of the Federal Rules themselves.
 See e.g., United States v. Rea, 958 F.2d 1206 (2d Cir. 1992); United States v. Bortnovsky, 879 F.2d 30 (2d Cir. 1989); United States v. Gloria, 494 F.2d 477, 483 (5th Cir. 1974); United States v. Brevard, 739 F.2d 180 (4th Cir. 1984); United States v. Frogge, 476 F.2d 969, 970 (5th Cir. 1973) (“the rule is well established in federal criminal cases that the results of lie detector tests are inadmissible”); United States v. Miller, 874 F.2d 1255, 1261 (9th Cir. 1989); Mil. R. Evid 707.
 See e.g., United States v. Johnson, 816 F.2d 918 (3d Cir. 1987); United States v. Hall, 805 F.2d 1410 (10th Cir. 1986); United States v. Hunter, 672 F.2d 815 (10th Cir. 1982); Tyler v. United States, 193 F.2d 24 (D.C. Cir. 1951); United States v. Skeens, 494 F.2d 1050 (D.C. Cir. 1974).
 See e.g. . Wolfel v. Holbrook, 823 F.2d 970 (6th Cir. 1987); Barnier v. Szentmiklosi, 810 F.2d 594 (6th Cir. 1987); Conti v. Commissioner of Internal Revenue, 39 F.3d 658 (6th Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995); United States v. Oliver, 525 F.2d 731 (8th Cir. 1975); United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989) (en banc).
 See e.g., DeVries v. St. Paul Fire & Marine Insurance Co., 716 F.2d 939 (1st Cir. 1983); United States v. Winter, 663 F.2d 1120 (1st Cir. 1981); United States v. Rumell, 642 F.2d 213 (7th Cir. 1981); United States v. Kampiles, 609 F.2d 1233 (7th Cir. 1979).
 509 U.S. 579 (1993).
 Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F. Supp. 570, 572 (S.D. Cal. 1989) (quoting United States v. Kilgus, 571 F.2d 508, 510 (9th Cir. 1978)).
 Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128, 1129-30 (9th Cir. 1991).
 Daubert, 509 U.S. 585; see also, Joseph Sanders, The Bendectin Litigation: A Case Study in the Life Cycle of Mass Torts, 43 Hastings L.J. 301, 339-348 (1992).
 Daubert, 509 U.S. at 588.
 Id. at 592. On remand, the Circuit Court of Appeals for the Ninth Circuit affirmed the district court’s granting summary judgment and prior ruling excluding the expert witnesses’ testimony on the grounds that testimony did not constitute scientific evidence under the second part of the Daubert test. 43 F.3d 1311 (1995) (affirming district court), cert, denied, 116 S.Ct. 189 (mem) (U.S., Oct. 2, 1995) (No. 95-198).
 “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue . . .” Fed. R Evid. 702.
 3 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 702, p. 702-18 (1988), quoted in Daubert, 509 U.S. at 591.
 See Daubert, 509 U.S. at 587 (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988)); see also, Fed. R. Evid. 402.
 Id. (citing Fed. R. Evid.401) (internal quotes omitted).
 Daubert, 509 U.S. at 591-92.
 United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir. 1994); United States v. Cruz, 797 F.2d 90, 95 (2d Cir. 1986).
 Daubert, 509 U.S. at 589-91.
 Id. at 591-92.
 Id. at 592-95.
 Id. at 595.
 Id. at 596.
 Id. at 592 & n. 10.
 Iacobelli Const. Inc. v. County of Monroe, 32 F.3d 19, 25 (1994); see also, Darskow v. Teledyne Continental Motors, 826 F. Supp. 677, 682, n. 1 (W.D.N.Y. 1993) (holding that court is to keep out “pseudoscientific assertions”).
 52 F.3d 1124 (1995).
 Id. at 1128-29.
 Daubert, 509 U.S. at 593.
 Id. at 590.
 Id. at 591.
 Id. at 593.
 Id. at 593
 Id. at 594 (citing United States v. Smith, 869 F.2d 348, 353-54 (7th Cir. 1989)).
 Id. at 594
 Id. (citing United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)).
 Id. (citations omitted).
 For a future discussion of the per se ban see supra notes 77-80.
 See United States v. Posado, 57 F.3d 428, 432-34, & n. 7-9 (5th Cir. 1995).
 See Posado, 57 F.3d 428 (1995) (per se rule against the admission of polygraph evidence no longer valid after Daubert v. Dow Merrell Pharmaceuticals, Inc., 509 U.S. 579 (1993)); see also, United States v. Kwong, 69 F.3d 663 (2d Cir. 1995) (per se rule not reached holding inadmissible under Rule 403); United States v. Lech, 895 F. Supp. 582 (S.D.N.Y. 1995). For a detailed description of the Posado case see Yigal Bander, Note, United States v. Posado: The Fifth Circuit Applies Daubert To Polygraph Evidence, 57 La. L. Rev. 691 (1997).
In the wake of Daubert, the implications in this change in the law of evidence have been felt most notably in the toxic tort, pharmaceutical, and product liability cases, but the implications have been felt in other areas. See generally, Faigman, et al., supra note 57.
 United States v. Galbreth, No. 94-197 (D.N.M. 1995) (admitting polygraph evidence to show absence of mens rea).
 44 M.J. 442, 446 (1996), cert. granted, 117 S.Ct. 1817 (May 19, 1997 (No. 96-1133).
 Faigman, et al., supra note 57, at 1810.
 See Daubert, 509 U.S. at 594.
 The Daubert opinion discusses “scientific knowledge” at length. However, Rule 702 provides “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. . .” leading one to question whether Daubert can be applied to cases where the expert testimony may embrace “technical or other specialized knowledge” and if such a distinction may be properly made. If so, does the polygraph technique constitute “technical or other specialized knowledge,” as opposed to “scientific knowledge” within the meaning of the rule. See United States v. Starzecpzel, 880 F. Supp. 1027, 1048-49 (S.D.N.Y. 1995). In that case, Judge Lawrence M. McKenna held that expert handwriting testimony to be admissible evidence, because the danger of unfair prejudice did not require exclusion under Fed. R. Evid 403 in that the handwriting testimony was “skilled” expert testimony -- not “scientific” expert testimony that carried the danger of creating for jurors an “aura of infallibility.” Id. See also, infra discussion Part1 III.B.
 United States v. Scheffer, 44 M.J. 442, 444-45 (CMA 1996).
 United States v. Kwong, 69 F.3d 663, 667-69 (2d Cir. 1995) (holding that there was a risk of unfair prejudice because the questions subject to the polygraph examination were “inherently ambiguous”); United States v. Lech, 895 F. Supp. 582, 585 (S.D.N.Y 1995) (same).
 24 MJ 246, 253 (CMA 1987).
 Mil. R. Evid. 707 provides:
(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence.
(b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.
 24 MJ at 251. Military Rule of Evidence, Rule 702 is textually identical to Federal Rule of Evidence, Rule 702.
 57 F.3d 428 (5th Cir. 1995), on remand, sub nom, United States v. Ramirez, 1995 WL 918083 (S.D. Tex. Nov. 17, 1995). In Posado, the defendants were arrested at Houston Intercontinental Airport after an alleged consent search of their checked baggage revealed they were attempting to transport forty-four kilograms of cocaine. Defendants were indicted on one count of conspiracy to possess and one count of possession with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Defendants moved to suppress the evidence asserting they had not given valid consent to search the checked bags. In support of their motion to suppress, Defendants offered polygraph evidence constituting the following questions which were prepared in English and translated into Spanish for the defendants. The following relevant questions were asked and the following answers were given:
Before opening the bag, did the police officials at
some time ask your permission to search some of those bags?
(to Defendant Irma Clemencia Hurtado) Before searching your bags, did they tell you that you were under arrest?
(to Defendant Miriam Henao Posado [sic]) In the restaurant area, did they tell you that you were under arrest?
(to Defendant Pablo Ramirez) In the restaurant area, did they tell you that you could not go until the bag was inspected?
In the airport, at some time did they tell you that you were free to go?
Did you deliberately lie in your affidavit?
Before opening the bags, did the police advise you of your Miranda rights?
The defendants each submitted individually to a polygraph examination administered by Paul K. Minor and Ernie Hulsey (Minor had administered a number of prior polygraph examinations for defense counsel and Hulsey is a polygraph examiner licensed by the State of Texas). Both polygraph examiners concluded as to each Defendant that deception was not indicated. Following an evidentiary hearing the district court declined to admit the polygraph evidence as per se inadmissible and denied the motion to suppress. The Court found the search was pursuant to valid verbal and written consent given knowingly and voluntarily by Defendants. After a bench trial, each defendant was a judged guilty on both counts. The defendants appealed the evidentiary rulings.
 57 F.3d at 433.
 Id. (citing Barrel of Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d 1028, 1031, n. 8 (5th Cir 1984). In this case, the government also conceded that Daubert had made such a rule no longer viable. Id. at 432.
 Id. at 432.
 Id. at 434.
 United States v. Ramirez, 1995 WL 918083, at *4-*6 (S.D. Tex. Nov. 17, 1995) (taking judicial notice of polygraph’s unreliability). In addition, the district court previously determined the credibility of the witnesses who testified at the suppression hearing, after personally observing and hearing them, and that determination would not be altered irrespective of the polygraph evidence. Id.
 United States v. Cordoba, No. 95-50492, (9th Cir. 1996).
 783 F.2d 1389, 1396 (9th Cir. 1986).
 United States v. Scheffer, 44 M.J. 442, 446 (C.A.A.F. 1996), cert. granted, 117 S.Ct. 1817 (mem) (May 19, 1997) (No. 96-1133).
 The relevant polygraph examination questions were:
(1) Since you’ve been in the [Air Force], have you used any illegal drugs?
(2) Have you lied about any of the drug information you’ve given [Office of Special Investigations]?
(3) Besides your parents, have you told anyone you’re assisting [Office of Special Investigations]?
United States v. Scheffer, 41 M.J. 683, 685 (A.F.C.C.A. 1995) (en banc).
 See supra note 129, setting out the text of Military Rule of Evidence, Rule 707.
 Scheffer, 41 M.J. 683.
 Scheffer, 44 M.J. at 446 (“a properly qualified expert, relying on a properly administered polygraph examination, may be able to opine that an accused’s physiological responses to certain questions did not indicate deception”); see also, Rinat Fried, Supreme Court to Rule On Use of Polygraph Tests, The Recorder, May 20, 1997, at 1.
 Scheffer, 44 M.J. 442, 446 (C.A.A.F. 1996), cert. granted, 117 S.Ct. 1817 (mem) (May 19, 1997) (No. 96-1133).
 Rock v. Arkansas, 483 U.S. 44 (1987).
 Id. at 52.
 Washington v. Texas, 388 U.S. 14, 23 (1967).
 Rock, 483 U.S. at 61.
 Chambers v. Mississippi, 410 U.S. 284, 295 (1973). See also, Washington, 388 U.S. at 23, n. 21, (right limited by testimonial privilege or rules of evidence).
 Rock v. Arkansas, 483 U.S. at 56.
 See e.g., United States v. Posado, 57 F.3d 428, 436 (5th Cir. 1995).
 Robert G. Morvillo, Polygraph Evidence After ‘Daubert’, 10 White-Collar Crime Reporter, 1, 3, n. 26 (June 1996).
 Fed. R. Evid. 403.
 United States v. Scheffer, 44 M.J. 442, 446 (1996) (quoting United States v. Piccinonna, 885 F2d 1529, 1537 (11th Cir. 1989).
 United States v. Dominguez, 902 F. Supp. 737, 740 (S.D. Tex. 1995); see also, Morvillo, supra note 153, at 1.
 Dominguez, 902 F. Supp. at 740.
 See supra notes 44-54, discussing the fear of consequences as a theory explaining why the polygraph works. “While many prosecutors consider polygraphs to be a useful investigative tool, few would welcome the admissibility of unilaterally administered polygraphs.” Morvillo, supra note 153, at 1.
 Conti v. Commissioner, 39 F3d 658 (6th Cir. 1994), cert denied, 115 S. Ct. 1793 (1995); United States v. Sherlin, 67 F.3d 1208 (6th Cir. 1995).
 It is unclear as to what is the extent of the required stipulation to insure the results are admissible. If a defendant proposes to use the polygraph examination for rehabilitation of his character for truthfulness once attacked, he may have to stipulate that the results of a failed examination can be used as substantive evidence by the prosecution. Moreover, even if the offer to stipulate is not accepted, because the risk of consequences is only important during the administration of the examination seems as though the an unaccepted offer to stipulate will remove this danger of prejudice so long as the offer remains irrevocable until after the examination.
 Posado, 57 F3d at 431. Trial counsel should take note of the adverse consequences of failing to offer to so stipulate. See generally, Houston v. Lockhart, 982 F.2d 1246, 1250-53 (8th Cir. 1993) (ineffective assistance when counsel failed to obtain written stipulation for admissibility of polygraph because favorable results are inadmissible without stipulation).
 69 F.3d 663 (2d Cir. 1995).
 Id. at 668. Kwong, was charged with the attempted murder of an Assistant United States Attorney by sending a booby-trapped briefcase. The polygraph examination consisted of the following questions and answers:
1. Did you conspire with anyone to send that package to Assistant United States Attorney Catherine Palmer
2. Were you the one that sent that package to Assistant United States Attorney Catherine Palmer
3. Do you know for sure who used a driver’s license in the name of Wing Yeung Chan to buy the gun in question
 United States v. Lech, 895 F. Supp. 582, 585 (S.D.N.Y 1995).
 Id. at 585, n. 2.
 See, United States v. Kwong, 69 F.3d 663, 667-69 (2d Cir. 1995).
 See Bennett, 883 F.2d 400 (5th Cir. 1989); Barrel of Fun, Inc. v. State Farm Fire & Casualty Co., 739 F.2d 1028 (5th Cir. 1984). This issue raises the question whether the consideration of unfair prejudice under the Federal Rules of Evidence, Rule 403 is different between bench and jury trials. Compare use of the rules terminology, Federal Rules of Evidence, Rule 403 governs evidence which runs the danger of “unfair prejudice, confusion of the issues, or misleading the jury” (emphasis added) with Fed. R. Evid. 702 which governs a broader scope of evidence this may “assist the trier of fact” (emphasis added). Moreover, a district court may see inadmissible evidence under 104(a) determinations when it is not bound by the rules of evidence at that time and there is a greater review of judicial determinations of fact then a jury’s. See Bennett, 883 F.2d at 405 (affirming the admission of polygraph evidence for a magistrate judge because "[u]nlike a lay jury, a magistrate possesses legal expertise; when determining probable cause, he is unlikely to be intimidated by claims of scientific authority into assigning an inappropriate evidentiary value to a polygraph report or to rely excessively on it”).
 See, e.g., Edward J. Imwinkelried, The Standard for Admitting Scientific Evidence: A Critique from the Perspective of Juror Psychology, 28 Vill. L. Rev. 554, 566‑68 (1982) (reviewing studies showing that jurors are not unduly influenced by polygraph evidence); Jane Goodman, Jurors’ Comprehension and Assessment of Probabilistic Evidence, 16 Am. J. Trial Advoc. 361, 368-69 (1992) (using mock jurors and written case summary); Ann Cavoukian & Ronald J. Keslegrave, The Admissibility of Polygraph Evidence in Court: Some Empirical Findings, 4 J. L. & Hum. Behav. 117, 124-25 (1980) (using mock jurors and a written description of a murder case); Ronald L. Carlson et al., The Effect of Lie Detector Evidence on Jury Deliberations: An Empirical Study, 5 J. Police Sci. & Admin. 148, 150 (1977) (using mock jurors). See also, Abrams, supra note 21, at 207-8 (discussing the results of polling jurors after trials where polygraph evidence had been admitted and concluding that polygraph evidence is effective in determining the credibility of witnesses).
 Fed. R. Evid. 403.
 See Fed. R. Evid 105; See e.g., Bennett, 883 F.2d 400, 405 (5th Cir. 1989). For a discussion of how polygraph testimony may be limited see infra Part III.C.
 See, United States v. Pettigrew, 77 F.3d 1500, 1514 (5th Cir. 1996) (judge’s ruling on admissibility of polygraph evidence reviewed for abuse of discretion); see also, Robert G. Morvillo, supra note 153, at 2.
 44 M.J. 442, 446 (1996), cert. granted, 117 S.Ct. 1817 (May 19, 1997 (No. 96-1133).
 In United States v. Bellomo, No. 96-430 (S.D.N.Y 1997), the defendants, Liborio (Barney) Bellomo and Michael (Mickey Dimino) Generoso, alleged leaders of the Genovese crime family, were on trial pursuant to a multiple count indictment charging, inter alia, racketeering and unlawful operation of the Feast of San Gennaro festival. The defendants moved in limine asking Southern District Judge Lewis Kaplan to admit, as scientific evidence, the expert testimony of Paul K. Minor. Minor’s testimony was to embrace a polygraph exam showing that the defendants were not involved in the 1991 slaying of Ralph DeSimone. In order to ensure that the polygraph examination was fair and reliable the defendants stipulated to the polygraph examination’s admissibility regardless of the outcome, submitted the exam questions to the prosecution for comment and review, invited the prosecution to submit exam questions and to be present during the examination, and video taped the exams Bellomo, was, potentially, a perfect test case; however, a plea bargain agreement deprived the court of the opportunity to definitively answer the polygraph issue. See also, Mob Figures Plead In Racketeering Case, New York L.J. at 2, Feb. 11, 1997.
 See e.g., United States v. Posado, 57 F.3d 428 (5th Cir. 1995) (holding that a per se ban is not viable after Daubert), on remand, sub nom, United States v. Ramirez, 1995 WL 918083 (S.D. Tex. Nov. 17, 1995) (holding that polygraph was not scientific evidence after applying the Daubert factors). See also, discussion supra Part II.A.
 United States v. Galbreth, No. 94-197 (D.N.M. 1995) (admitting polygraph exam solely to support an affirmative defense that the defendant did not knowingly try to withhold income taxes from the Internal Revenue Service).
 See Experts Key to Polygraph Admission Under Daubert, 3 The Testifying Expert, 12 (December 1995) (hereinafter, Testifying Expert)
 Daubert,. 509 U.S. at 591-93.
 No. 94-197 (D.N.M 1995).
 Testifying Expert, supra note, 177 at 12.
 Galbreth, No. 94-197 (D.N.M. 1995).
 Daubert v. Dow Merrell Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993). “Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.” Id. (quoting David Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U. L. Rev. 643, 645 (1992).
 See United States v. Posado, 57 F.3d 428, 434, n. 7 (5th Cir. 1995) (a variation in the results is due to the integrity of the testing environment and the qualifications of the examiner).
 See Daubert 509 U.S. 592-93.
 See supra note 54; see also, Lykken, supra note 5, at 228-32.
 See Abrams, supra note 21, at 239-52; Department of Defense Polygraph Program Annual Report to Congress for the Fiscal Year 1993 at 9-19.
 See supra notes 44-53.
 Bradley, supra note 41, at 154.
 Patrick, Christopher & William G. Iaconon, Validity of Control Question Probability of Sample Bias, Journal of Applied Psychology vol. 76. no 2, Apr. 1991, pp. 229-238
 Patrick, Christopher & William G. Iaconon, Validity of Control Question Probability of Sample Bias, Journal of Applied Psychology vol. 76. no 2, Apr. 1991, pp. 229-238
 Bradley, supra note 41, at 156.
 See supra note 37.
 See Abrams, supra note 21, at 34-5.
 See Daubert v. Dow Merrell Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993).
 Id. at 593-94.
 Id. See also, United States v. Starzecpzel, 880 F. Supp. 1027, 1038 (S.D.N.Y. 1995) (“[Peer review and publication] is the manner in which scientists discover, if not absolute truth, then at least increasingly correct truths”).
 Daubert 509 U.S. at 593-94. While publication and peer review is an important element of “good science,” it is by no means an infallible element. Publication is key to career advancement in the medical community, creating a powerful incentive to publish; however, subject to a tacit understanding, the Center for Disease Control did not publish a 1987 paper by Dr. Thomas J. Torork concerning an outbreak of salmonella in The Dalles, Oregon for fear of “copycat” incidents. Lawrence K. Altman, M.D., Some Medical Puzzles Lead to Dark, and Criminal, Minds, N. Y. Times, Aug. 12, 1997, at C4. The paper attributed the cause of the outbreak to the criminal activities of Bhagwan Shree Rajneesh Cultists. Id. Furthermore, when scientific papers are published, it does not necessarily mean that the theories which they espouse are correct.
Before journals publish such reports, they usually submit them to experts for their comments in the peer review process. But a recent trial in New York State found a mother guilty of murdering her five infants illustrated a flagrant weakness in the peer review process. No one had raised the possibility of foul play in a 1972 report on the case in a leading journal, Pediatrics.
There, Dr. Alfred Steinschneider cited the deaths of two infants in the same family as compelling evidence that sudden infant death syndrome ran in families . . . .
In fact, the Pediatrics paper lead to additional reports about similar incidents in other journals and a widespread belief that [sudden infant death syndrome] is a familial disease.
Id. Of course by logical extension, this Note can make no claims of infallibility.
 Id. See e.g., FDIC v. Suna Assoc., Inc., 80 F.3d 681, 686 (2d Cir. 1996). This case affirmed the admission of expert testimony concerning valuation of property as scientific evidence. The expert testified to two types of valuation methodologies. The defendant argued that one of the types was “unknown to the appraisal literature.” Id. at 687. The district court found that this was not dispositive of admissibility because the relevant publications were in regard to valuation theory in general and not this specific method. Id. The Second Circuit affirmed this finding as being within the discretion of the district court and would not reverse unless there is a showing that such a decision was clearly erroneous. Id. This discretion included admitting expert testimony that was apparently internally inconsistent; as such it was grounds for impeachment rather than exclusion. Id. In Omega Engineering, Inc. v. Eastman Kodak Co., 908 F. Supp. 1084, 1093 & n. 5 (D. Conn. 1995), Judge Dorsey admitted the testimony of Dr. Gary L. French as an expert in profit and loss to render an opinion on consequential damages.
In Becker v. National Heath Products, Inc., 896 F. Supp. 100, 101-03, the court admitted the testimony of two doctors who would testify that the defendant’s muscle amino acid supplement caused the plaintiff’s diverticulosis (a condition of inflamed or perforated outpouches in the intestinal wall). In order to do so, the expert witness must be qualified as expert and have a basis for the opinion. Such basis may be a review of medical records or clinical diagnosis. Id. at 102. The court found that the despite the fact that there no published studies that the product causes diverticulosis, the opinion was not mere speculation because the doctor reached this conclusion based on thirty years experience as a physician. Id. at 103.
 See e.g., Scientific Validity of Polygraph Testing: A Research Review and Evaluation -- A Technical Memorandum, at 4 (U.S. Cong., Office of Technology Assessment, OTA‑TM‑H‑15, Nov. 1983) (“no overall measure or single, simple judgment of polygraph testing validity can be established based on available scientific evidence.”); John E. Reid & Fred E. Inbau, Truth and Deception (2d ed. 1984); Lykken, supra note 5; Rex J. Beaber, Not Guilty by Reason of Polygraph, 16 U. West L.A. L. Rev. 27 (1984); John C. Kircher et al., Meta-Analysis of Mock Crime Studies of the Control Question Polygraph Technique, 12 L. & Human Behav. 79 (1988); David C. Raskin, The Polygraph in 1986: Scientific, Professional and Legal Issues Surrounding Application and Acceptance of Polygraph Evidence, 1986 Utah L. Rev. 29. (reliability range from below fifty percent to over ninety percent).
 See supra note 52 and accompanying text.
 See infra notes 237-239 and accompanying text. It would seem foolish of a party to proffer “scientific evidence” which could be so easily impeached as it might be perceived by the jury to undermine that party’s entire position. The maxim false in one, false in all others applies.
 Daubert v. Dow Merrell Pharmaceuticals, Inc., 509 U.S. 579, 594 (1993) (citing United States v. Smith, 869 F.2d 348, 353‑354 (7th Cir. 1989)).
 See e.g., United States v. Posado, 57 F.3d 428, 434, n. 7 (5th Cir. 1995) (citing Bennett v. City of Grand Prairie, Texas, 883 F.2d 400, 405 (5th Cir. 1989) (80-90%); Brown v. Darcy, 783 F.2d 1389 1395 n. 12 (9th Cir. 1986) (70%); Scientific Validity of Polygraph Testing: A Research Review and Evaluation, supra note 207 (58-98%); Kircher et al., supra note 207 (65%); Raskin, supra note 207, at 72 (1986) (90% in criminal investigations). See also; 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedures § 5169 (1978); Lykken, supra note 5; Rex J. Beaber, Not Guilty by Reason of Polygraph, 16 U. West L.A. L. Rev. 27 (1984); John E. Reid & Fred E. Inbau, Truth and Deception (2d ed. 1984).; Bander, supra note 120, at n. 44. But see, United States v. Starzecpyzel, 880 F. Supp. 1027, 1036-37 (S.D.N.Y 1995) (two incomplete statistical studies sufficient to show that forensic document analysis is testable, though they do not show potential rate of error).
 See Daubert, 509 U.S. at 596. More over nothing in science can be known to a certainty. Id. at 589.
 Bradley, supra note 41, at 154.
 See William G. Iaconon & Christopher J. Patrick, Clinical Assessment of Malingering and Deception, Assessing Deception: Polygraph Techniques, 205-33 (R. Rogers ed. 1988); see also, J. J. Furedy, Alice-in-Wonderland terminological Usage in, and Communicational Concerns about that Peculiarly American Flight of Technological Fancy, the CQT Polygraph, 26 Integrative Physiology and Behav. Sci., 240 241-47 (1991).
 Bradley, supra note 41, at 154.
 Id. at 154-55.
 Christopher J. Patrick & William G. Iaconon, Validity of Control Question Probability of Sample Bias, 76 J. Applied Psychol. 229, 230 (1991).
 See supra note 181.
 They are: 1) Knowing all available facts; 2) Establishing amicable rapport between subject and examiner; 3) Availability of and pertinent medical history; 4) Careful observation of subject’s outward physical manifestations; 5) Getting the subject to talk; 6) Expertise in utilizing interrogative psychology; 7) Clear understanding of the issues; 8) Proper formation of the test questions; 9) A proper explanation of the instrumentation to the subject; 10) Full cooperation of the subject with respect to his obeying pre-test instructions; 11) A properly functioning instrument; 12) Adequate facilities; 13) Proper utilization of accepted polygraph techniques; 14) Properly worded guilt complex questions and controlled stimulus test; 15) Proper formation of irrelevant and control questions; 16) Adequate spacing of questions; 17) Proper explanation of between chart and post chart deviations from physical norm; 18) Exact chart markings; 19) Proper utilization of peak tension material; and 20) Accurate chart interpretation. See Ferguson & Miller, , supra note 54, at 155-6.
 See infra note 53.
 Eitan supra note 19, at 14.
 See Steinbrook, supra note 51, at 122. For considerations which bear on the qualifications of a polygraph expert see Ferguson & Miller, supra note 54, at177-8.
 Daubert v. Dow Merrell Pharmaceuticals, Inc., 509 U.S. 579, 594 (1993); see also United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985).
 Daubert, 509 U.S. at 594 (citations omitted).
 See Abrams, supra note 21, at 205.
 See United States v. Piccinonna, 885 F2d 1529, 1535 (11th Cir. 1989); Testifying Expert, supra note, 177 at 13. See also, Philip Ash, Survey of Subjects, Attorneys and Scientists the Attitudes of Polygraph Examinees Toward the Polygraph Examination and Attitudes of Polygraph Examinees and Behavioral Scientists Toward Appropriateness of the Instrument, Legal Admissibility of the Polygraph (Norman Ansley ed. 1975)
 See Abrams, supra note 21, at 205.
 An attorney at of Freedman, Boyd, Daniels, Peifer, Hollander, Guttman & Goldberg, Albuquerque, N.M.
 Testifying Expert, supra note, 177 at 12.
 Daubert v. Dow Merrell Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993).
 United States v. Cordoba, No. 95-50492, (9th Cir. 1997).
 United States v. Pettigrew, 77 F.3d 1500, 1514 (5th Cir. 1996).
 United States v. Starzecpzel, 880 F. Supp. 1027 (S.D.N.Y. 1995).
 Fed. R. Evid. 702 (emphasis added).
 880 F. Supp. 1027.
 Id. at 1028.
 Id. at 1029.
 Id. at 1039-40 (citing Edward J. Imwinkelried, The Next Step After Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 Cardozo L.Rev. 2271, 2283, 2294 (1994)).
 Id. at 1042 (citing Fed. R. Evid. 702 advisory committee’s note).
 Id. at 1043.
 Id. at 1047-50.
 United States v. Ramirez, 1995 WL 918083 (S.D. Tex. Nov. 17, 1995); United States v. Lech, 895 F. Supp. 582 (S.D.N.Y. 1995).
 See infra notes 226. & 230.
 Starzecpyzel, 880 F. Supp. at 1044.
 United States v. Buck, 1987 WL 19300, at *3 (S.D.N.Y. Oct. 28, 1987), quoted in, Starzecpyzel, 880 F. Supp. at 1044. But see, Barrel of Fun, Inc. v. State Farm Fire & Casualty Co., 739 F.2d 1028, 1032 (5th Cir. 1984) (finding that the polygraph “is shrouded with an aura of near infallibility, akin to the ancient oracle of Delphi”). See also, supra note 169.
 See infra discussion Part III.C.2 and Part III.C.3.
 See infra discussion Part III.C.3.
 See Fed. R. Evid. 611(b).
 See Fed. R. Evid. 608(a)(1) & (b).
 See Fed. R. Evid. 609(a)(2).
 See, Hoffman v. United States, 341 U.S. 479, 486-487 (1951).
 This Note focuses on waiver in criminal trials, but the privilege applies, and may be waived, in both to criminal and civil trials. See Fed. R. Evid. 1101(b) & (c). However, this Note’s conclusion that after offering polygraph evidence the proponent waives his privilege against self-incrimination and that he may be called to the stand to testify, is limited to trials where the proponent actually offers the evidence. Although a record of the testimony may be used against the proponent in a subsequent trial, Rule 805(b)(1), he may assert the privilege not to testify in the subsequent trial. See infra discussion Part IV.
 Fed. R. Evid. 801(c).
 Assume, for the argument, that the polygraph examination is administered prior to trial or at least before the polygraph expert testifies (after an offer to the prosecution). However, there is no reason to believe that the defendant could not incorporate a polygraph exam as part of his testimony on direct examination if shown to be relevant. Thus, the verbal responses and the nonverbal responses to the polygraph/direct exam questions are not out of court statements and therefore not hearsay. See Fed. R. Evid. 801(c). However, the district court should balance the risk of prejudice under Rule 403 because the results of the exam is conditionally relevant to the prosecution attacking the defendant’s character for truthfulness. See infra note 293 and accompanying text.
 Fed. R. Evid. 802 (“Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress”).
 Fed. R. Evid. 801(d)(2).
 Fed. R. Evid. 803(24).
 Fed. R. Evid. 804(b)(5).
 The Rule reads:
Statements which are not hearsay. A statement is not hearsay if . . .
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
Fed. R. Evid. 801(d)(2).
 Fed. R. Evid. 801(d)(2)(A). Also consider other types of responses to the polygraph exam questions, for instance, see Fed. R. Evid. 801(d)(2)(C) (statement by person authorized party) and Fed. R. Evid. 801(d)(2)(D) (statement by party’s agent).
 Fed. R. Evid. 801(d)(2).
 Fed. R. Evid. 803(24). The Rule states:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness . . . .
(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.
 See supra discussion Part II.C.
 Fed. R. Evid. 803(24).
The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at trial even though he may be available. The theory find vast support in the many exceptions to the hearsay rule developed by the common law in which unavailability of the declarant is not a relevant factor. The present rule is a synthesis of them, with the revision where modern developments and conditions are believed to make that course appropriate.
Fed. R. Evid. 803(24), Advisory Committee’s Note.
 Fed. R. Evid. 803(24) (emphasis added).
 Fed. R. Evid. 804(a)(1).
 U.S. Const. amend. V
 See supra discussion Part I.B.
 The other exceptions reads as follows:
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.
Fed. R. Evid. 804(a)(1).
 See Fed. R. Evid. 803(24).
 Fed. R. Evid. 804(b)(5).
 See supra discussion Part II.C.
 Accord, Fed. R. Evid. 801(c).
 Daubert v. Dow Merrell Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993).
Presumably, this relaxation of the usual requirement of firsthand knowledge -- a rule which represents a most pervasive manifestation of the common law insistence upon ‘the most reliable sources of information, is premised on an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.
Id. (citing Fed. R Evid. 602, Advisory Committee’s Notes) (internal quotes omitted).
 Fed. R. Evid. 703 (emphasis added); but see, United States v. Crumby, 859 F. Supp. 1354 (D. Ariz. 1995) (witnesses may not testify as to the specific questions or responses included in the examination).
The district court is has the ability to require the expert to first testify to the facts or which underlie the polygraph exam before rendering an opinion or on cross examination. Fed. R. Evid. 705. This is important in instances when the expert has actually administered the polygraph exam.
 Fed. R. Evid. 703.
 See supra discussion Part II.C. and Part III.A.3
 See Fed. R. Evid. 705.
 See United States v. Wright, 783 F.2d 1091, 1100 (D.C. Cir. 1986) (underlying evidence does not come in as substantive evidence). See also, Fed. R. Evid. 702, Advisory Committee Note, (disclosing the basis for the opinion is for necessary for cross-examination and determining the admissibility under Rules 702 and 703 of the expert’s testimony).
 Rule 802 provides that “[h]earsay is not admissible except as provided by these rules.” (emphasis added). There, is of course, the argument that the exceptions referenced in Fed. R. Evid. 802 may consist of only the exceptions enumerated in title VIII of the Federal Rules. However, this is the more likely than not the proper construction of the Rule because of the alternate language “except as provided by this Rule” which is not used in the Rule. Moreover, Rule 802 has not been used as the basis for excluding polygraph evidence.
 Fed. R. Evid. 801(c).
 Fed. R. Evid. 802.
 “When evidence which is admissible . . . for one purpose but not admissible. . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Fed. R. Evid. 105. Accord, United States v. Crumby, 859 F. Supp. 1354 (D. Ariz. 1995) (limiting polygraph evidence to the purpose of impeaching or corroborating the credibility of the defendant so as to reduce the risk of prejudice under Fed. R. Evid. 403); see also, Wright, 783 F.2d at 1100; United States v. Sim, 514 F.2d 147, 149 (9th Cir. 1975) (jury may determine credibility of hearsay statements in evaluating expert’s opinion); State v. Valdez, 371 P.2d 894 (Ariz. 1962).
 See infra discussion Part III.C.3.
 “[E]vidence of truthful character is admissible only after the character of the witness [the defendant] for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Fed. R. Evid. 608(a)(2) (emphasis added). See, Crumby, 859 F. Supp. 1354 (holding that the polygraph expert’s opinion testimony as to the defendant’s character for truthfulness would be admissible under Rule 608(a), provided the defendant lay a proper foundation to qualify the expert); United States v. Williams, 43 MJ 348, 355 (1995) (“the accused had no right to introduce the polygraph evidence without taking the stand and testifying consistently, or without offering some other plausible evidentiary basis”). See also, United States v. Abeyta, 25 M.J. 97, 98 (CMA 1987) (polygraph evidence only relevant when accused testifies). Accord, United States v. Scheffer, 44 M.J. 442, 445 (1996) (holding limited to a per se ban against polygraph evidence as a violation of the Sixth Amendment right to present a defense by an accused offering to rebut an attack on his credibility). See also, infra discussion Part IV and supra notes 257 & 258.
 See supra notes 261 - 263 and accompanying text.
 In fact, if the defendant testifies the responses to the responses to the polygraph exam may be inadmissible because they constitute “undue delay, waste of time, or needless presentation of cumulative evidence.” See Fed. R. Evid. 403.
 Fed. R. Evid. 703 (“the facts or data [relied on by the expert] need not be admissible in evidence”). See, Daubert 509 U.S. at 595.
 Fed. R. Evid. 703; but see, United States v. Crumby, 859 F. Supp. 1354 (D. Ariz. 1995) (witnesses may not testify as to the specific questions or responses included in the examination). The district court is has the ability to require the expert to first testify to the facts or which underlie the polygraph exam before rendering an opinion or on cross examination. Fed. R. Evid. 705. This seems important if the expert has actually administered the polygraph exam.
 Fed. R. Evid. 402.
 It is not necessary that an opponent of the evidence present opinion or reputation testimony to the defendants character for truthfulness at issue. The defendant’s character for truthfulness can be deemed “attacked by opinion or reputation evidence or otherwise.” Fed. R. Evid. 608(a)(2) (emphasis added). “[The] appellant testified, placed his credibility in issue, and was accused by the prosecution of being a liar.” United States v. Scheffer, 44 M.J. 442, 445 (1996).
 “[E]vidence of truthful character is admissible only after the character of the witness [the defendant] for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Fed. R. Evid. 608(a)(2) (emphasis added). See, Crumby, 859 F. Supp. 1354 (holding that the polygraph expert’s opinion testimony as to the defendant’s character for truthfulness would be admissible under Fed. R. Evid. 608(a), provided the defendant lay a proper foundation to qualify the expert); United States v. Williams, 43 M.J. 348, 355 (1995) (“the accused had no right to introduce the polygraph evidence without taking the stand and testifying consistently, or without offering some other plausible evidentiary basis”). See also, United States v. Abeyta, 25 M.J. 97, 98 (CMA 1987) (polygraph evidence only relevant when accused testifies). Accord, United States v. Scheffer, 44 M.J. 442, 445 (1996) (holding limited to a per se ban against polygraph evidence as a violation of the Sixth Amendment right to present a defense by an accused offering to rebut an attack on his credibility).
 This is assuming that the evidence satisfies the requirements as scientific or technical knowledge and is not substantially unfairly prejudicial. See supra discussion Part II.C. and Part III.A.
 Fed. R. Evid. 402. Quite ironically, if the scope of the expert opinion extents to an ultimate issue and the defendant has already taken the stand and has not yet been impeached, the expert opinion could be excluded as being a waste of time or cumulative. See Fed. R. Evid. 403.
 A polygraph is not a time machine, which enables the polygraph examiner to objectively reconstruct earlier events. The only thing an honest, competent polygraph examiner will testify to is a diagnosis of subjective honesty or dishonesty of the subject at the time of the time of the examination. No responsible polygraph examiner would venture an opinion on the objective truth of the responses given by the subject during the examination because the subject might have misperceived the facts or misrecollected them during the examination.
Defendants’ Memorandum of Law in Support of Application to Admit Expert Testimony Concerning a Polygraph Examination at 24, United States v. Bellomo, No. 96-430 (S.D.N.Y 1997) (emphasis in original).
 Fed. R. Evid. 704(a) (“testimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact”).
 See e.g., In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 278-79 (3d. Cir. 1983) (expert testimony not limited to subjects “beyond the sphere of knowledge”). But compare, Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir. 1986) (harmless error to admit expert’s testimony embracing “persons wearing heel tend to avoid walking on grates”). See also, Faigman, et al., supra note 57, at 1801.
 See e.g., Gabincius v. Boston Edison Co., 621 1171, 1174-75 (1st Cir. 1980) (adequacy in number of warning devices). Moreover, Daubert’s discussion of Rule 702’s “helpfulness” standard does not speak to whether scientific evidence assists the jury when it is within their sphere of understanding but rather “requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” See Daubert v. Dow Merrell Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993). Moreover, such evidence may “assist the trier of fact to understand the evidence” and not just a factual issue. See Fed. R. Evid. 702.
 See Fed. R. Evid. 403.
 See e.g., United States v. Scheffer, 44 M.J. 442, 451 (1996) (Crawford, J., dissenting), cert. granted, 117 S.Ct. 1817 (May 19, 1997) (No. 96-1133).
 See, Bradley, supra note 41, at 154
 See, Id.
 Daubert, 509 U.S. 592-93 (footnotes omitted).
 See United States v. Lech, 895 F. Supp. 582 (S.D.N.Y. 1995); United States v. Kwong, 69 F.3d 663 (2d Cir. 1995) (examination questions to ambiguous to support conclusion, inadmissible under Rule 403).
 U.S. Const amend. V.
 U.S. Const. amend. V.
 See, Hoffman v. United States, 341 U.S. 479 (1951).
The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself--his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified and to require him to answer if ‘it clearly appears to the court that he is mistaken. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence
Id. at 486-487 (citations omitted). See also, Rogers v. United States, 340 U.S. 367 (1951).
 See Schmerber v. California, 384 U.S. 757 (1966).
 See Id.
 See supra note 309.
 Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964) (citations omitted). See also, 8 Wigmore, Evidence 317 (McNaughton rev. ed., 1961).
 Fed. R. Evid. 501.
 See Weinstein’s Evidence § 501 (1996).
 See Rogers v. United States, 340 U.S. 367 (1951) (holding that intent to waive one’s Fifth Amendment privilege is not required).
 See Rock v. Arkansas, 483 U.S. 579 (1987).
 See supra discussion Part III.C.1.
 See McCormick, Evidence, § 132 (2d Ed. 1978).
 Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964) (citations omitted). See also, 8 Wigmore, Evidence 317 (McNaughton rev., 1961).
 McCormick, Evidence, (1978 2d Ed.) § 140.
 Murphy, 378 U.S. at 55.
 See supra notes 261-263 and accompanying discussion.
 Fed. R. Evid. 803, Advisory Committee’s Note.
 See Ellis v. United States, 416 F.2d 791, 805 (1969).
 Murphy, 378 U.S. at 55.
 Fed. R. Evid. 805(b)(1). See also, Fed. R. Evid. 803(8); 28 U.S.C. § 753(b).
 See, United States v. McDonald, 837 F.2d 1287 (1988). See also, United States v. Feldman, 761 F.2d 380 (1985).
 United States v. Scheffer, 44 M.J. 442, 448 (1996) (citation omitted), cert. granted, 117 S.Ct. 1817 (May 19, 1997) (No. 96-1133);
 Daubert v. Dow Merrell Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).
 See Rock v. Arkansas, 483 U.S. 579 (1987).
 William Shakespeare, Hamlet, Prince of Denmark act 5, sc. 1.