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Full Opinion
UNITED STATES
v.
SCHEFFER
United States Supreme Court.
Justice Thomas delivered the opinion of the Court with respect to Parts I, IIA, and IID, concluding that Military Rule of Evidence 707 does not unconstitutionally abridge the right of accused members of the military to present a defense. Pp. 308-312, 315-317.
(a) A defendant's right to present relevant evidence is subject to reasonable restrictions to accommodate other legitimate interests in the criminal trial process. See, e. g., Rock v. Arkansas, 483 U. S. 44, 55. State and federal rulemakers therefore have broad latitude under the Constitution to establish rules excluding evidence. Such rules do not abridge an accused's right to present a defense so long as they are not "arbitrary" or "disproportionate to the purposes they are designed to serve." E. g., id., at 56. This Court has found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused. See, e. g., id., at 58. Rule 707 serves the legitimate interest of ensuring that only reliable evidence is introduced. There is simply no consensus that polygraph evidence is reliable: The scientific community and the state and federal courts are extremely polarized on the matter. Pp. 308-312.
*305 (b) Rule 707 does not implicate a sufficiently weighty interest of the accused to raise a constitutional concern under this Court's precedents. The three cases principally relied upon by the Court of Appeals, Rock, supra, at 57, Washington v. Texas, 388 U. S. 14, 23, and Chambers v. Mississippi, 410 U. S. 284, 302-303, do not support a right to introduce polygraph evidence, even in very narrow circumstances. The exclusions of evidence there declared unconstitutional significantly undermined fundamental elements of the accused's defense. Such is not the case here, where the court members heard all the relevant details of the charged offense from respondent's perspective, and Rule 707 did not preclude him from introducing any factual evidence, but merely barred him from introducing expert opinion testimony to bolster his own credibility. Moreover, in contrast to the rule at issue in Rock, supra, at 52, Rule 707 did not prohibit respondent from testifying on his own behalf; he freely exercised his choice to convey his version of the facts at trial. Pp. 315-317.
Thomas, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IIA, and IID, in which Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts IIB and IIC, in which Rehnquist, C. J., and Scalia and Souter, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which O'Connor, Ginsburg, and Breyer, JJ., joined, post, p. 318. Stevens, J., filed a dissenting opinion, post, p. 320.
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Acting Solicitor General Dellinger, Acting Solicitor General Waxman, Acting Assistant Attorney General Keeney, David C. Frederick, Joel M. Gershowitz, and Michael J. Breslin.
Kim L. Sheffield argued the cause for respondent. With her on the brief were Carol L. Hubbard, Michael L. McIntyre, Robin S. Wink, and W. Craig Mullen.[*]
*305 Justice Thomas announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IIA, and IID, and an opinion with respect to Parts IIB and IIC, in which The Chief Justice, Justice Scalia, and Justice Souter join.
This case presents the question whether Military Rule of Evidence 707, which makes polygraph evidence inadmissible in court-martial proceedings, unconstitutionally abridges the right of accused members of the military to present a defense. We hold that it does not.
I
In March 1992, respondent Edward Scheffer, an airman stationed at March Air Force Base in California, volunteered to work as an informant on drug investigations for the Air Force Office of Special Investigations (OSI). His OSI supervisors advised him that, from time to time during the course of his undercover work, they would ask him to submit to drug testing and polygraph examinations. In early April, *306 one of the OSI agents supervising respondent requested that he submit to a urine test. Shortly after providing the urine sample, but before the results of the test were known, respondent agreed to take a polygraph test administered by an OSI examiner. In the opinion of the examiner, the test "indicated no deception" when respondent denied using drugs since joining the Air Force.[1]
On April 30, respondent unaccountably failed to appear for work and could not be found on the base. He was absent without leave until May 13, when an Iowa state patrolman arrested him following a routine traffic stop and held him for return to the base. OSI agents later learned that respondent's urinalysis revealed the presence of methamphetamine.
Respondent was tried by general court-martial on charges of using methamphetamine, failing to go to his appointed place of duty, wrongfully absenting himself from the base for 13 days, and, with respect to an unrelated matter, uttering 17 insufficient funds checks. He testified at trial on his own behalf, relying upon an "innocent ingestion" theory and denying that he had knowingly used drugs while working for OSI. On cross-examination, the prosecution attempted to impeach respondent with inconsistencies between his trial testimony and earlier statements he had made to OSI.
Respondent sought to introduce the polygraph evidence in support of his testimony that he did not knowingly use drugs. The military judge denied the motion, relying on Military Rule of Evidence 707, which provides, in relevant part:
"(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, *307 failure to take, or taking of a polygraph examination, shall not be admitted into evidence." The military judge determined that Rule 707 was constitutional because "the President may, through the Rules of Evidence, determine that credibility is not an area in which a fact finder needs help, and the polygraph is not a process that has sufficient scientific acceptability to be relevant."[2] App. 28. He further reasoned that the fact finder might give undue weight to the polygraph examiner's testimony, and that collateral arguments about such evidence could consume "an inordinate amount of time and expense." Ibid.
Respondent was convicted on all counts and was sentenced to a bad-conduct discharge, confinement for 30 months, total forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The Air Force Court of Criminal Appeals affirmed in all material respects, explaining that Rule 707 "does not arbitrarily limit the accused's ability to present reliable evidence." 41 M. J. 683, 691 (1995) (en banc).
By a 3-to-2 vote, the United States Court of Appeals for the Armed Forces reversed. 44 M. J. 442 (1996). Without pointing to any particular language in the Sixth Amendment, the Court of Appeals held that "[a] per se exclusion of polygraph evidence offered by an accused to rebut an attack on his credibility . . . violates his Sixth Amendment right to present a defense." Id., at 445.[3] Judge Crawford, dissenting, *308 stressed that a defendant's right to present relevant evidence is not absolute, that relevant evidence can be excluded for valid reasons, and that Rule 707 was supported by a number of valid justifications. Id., at 449-451. We granted certiorari, 520 U. S. 1227 (1997), and we now reverse.
II
A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions.[4] See Taylor v. Illinois, 484 U. S. 400, 410 (1988); Rock v. Arkansas, 483 U. S. 44, 55 (1987); Chambers v. Mississippi, 410 U. S. 284, 295 (1973). A defendant's interest in presenting such evidence may thus "`bow to accommodate other legitimate interests in the criminal trial process.' " Rock, supra, at 55 (quoting Chambers, supra, at 295); accord, Michigan v. Lucas, 500 U. S. 145, 149 (1991). As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not "arbitrary" or "disproportionate to the purposes they are designed to serve." Rock, supra, at 56; accord, Lucas, supra, at 151. Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused. See Rock, supra, at 58; Chambers, supra, at 302; Washington v. Texas, 388 U. S. 14, 22-23 (1967).
*309 Rule 707 serves several legitimate interests in the criminal trial process. These interests include ensuring that only reliable evidence is introduced at trial, preserving the court members' role in determining credibility, and avoiding litigation that is collateral to the primary purpose of the trial.[5] The Rule is neither arbitrary nor disproportionate in promoting these ends. Nor does it implicate a sufficiently weighty interest of the defendant to raise a constitutional concern under our precedents.
A
State and Federal Governments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial. Indeed, the exclusion of unreliable evidence is a principal objective of many evidentiary rules. See, e. g., Fed. Rules Evid. 702, 802, 901; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 589 (1993).
The contentions of respondent and the dissent notwithstanding, there is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques. 1 D. Faigman, D. Kaye, M. Saks, & J. Sanders, Modern Scientific Evidence 565, n. , § 14-2.0 to § 14-7.0 (1997); see also 1 P. Giannelli & E. Imwinkelried, Scientific *310 Evidence § 8-2(C), pp. 225-227 (2d ed. 1993) (hereinafter Giannelli & Imwinkelried); 1 J. Strong, McCormick on Evidence § 206, p. 909 (4th ed. 1992) (hereinafter McCormick). Some studies have concluded that polygraph tests overall are accurate and reliable. See, e. g., S. Abrams, The Complete Polygraph Handbook 190-191 (1989) (reporting the overall accuracy rate from laboratory studies involving the common "control question technique" polygraph to be "in the range of 87 percent"). Others have found that polygraph tests assess truthfulness significantly less accuratelythat scientific field studies suggest the accuracy rate of the "control question technique" polygraph is "little better than could be obtained by the toss of a coin," that is, 50 percent. See Iacono & Lykken, The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in 1 Modern Scientific Evidence, supra, § 14-5.3, at 629 (hereinafter Iacono & Lykken).[6]
This lack of scientific consensus is reflected in the disagreement among state and federal courts concerning both the *311 admissibility and the reliability of polygraph evidence.[7] Although some Federal Courts of Appeals have abandoned the per se rule excluding polygraph evidence, leaving its admission or exclusion to the discretion of district courts under Daubert, see, e. g., United States v. Posado, 57 F. 3d 428, 434 (CA5 1995); United States v. Cordoba, 104 F. 3d 225, 228 (CA9 1997), at least one Federal Circuit has recently reaffirmed its per se ban, see United States v. Sanchez, 118 F. 3d 192, 197 (CA4 1997), and another recently noted that it has "not decided whether polygraphy has reached a sufficient state of reliability to be admissible." United States v. Messina, 131 F. 3d 36, 42 (CA2 1997). Most States maintain per se rules excluding polygraph evidence. See, e. g., State v. Porter, 241 Conn. 57, 92-95, 698 A. 2d 739, 758-759 (1997); People v. Gard, 158 Ill. 2d 191, 202-204, 632 N. E. 2d 1026, 1032 (1994); In re Odell, 672 A. 2d 457, 459 (RI 1996) (per curiam); Perkins v. State, 902 S. W. 2d 88, 94-95 (Ct. App. Tex. 1995). New Mexico is unique in making polygraph evidence generally admissible without the prior stipulation of the parties and without significant restriction. See N. M. *312 Rule Evid. § 11-707.[8] Whatever their approach, state and federal courts continue to express doubt about whether such evidence is reliable. See, e. g., United States v. Messina, supra, at 42; United States v. Posado, supra, at 434; State v. Porter, supra, at 126-127, 698 A. 2d, at 774; Perkins v. State, supra, at 94; People v. Gard, supra, at 202-204, 632 N. E. 2d, at 1032; In re Odell, supra, at 459.
The approach taken by the President in adopting Rule 707excluding polygraph evidence in all military trialsis a rational and proportional means of advancing the legitimate interest in barring unreliable evidence. Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams. Individual jurisdictions therefore may reasonably reach differing conclusions as to whether polygraph evidence should be admitted. We cannot say, then, that presented with such widespread uncertainty, the President acted arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence.
B
It is equally clear that Rule 707 serves a second legitimate governmental interest: Preserving the court members' core *313 function of making credibility determinations in criminal trials. A fundamental premise of our criminal trial system is that "the jury is the lie detector." United States v. Barnard, 490 F. 2d 907, 912 (CA9 1973) (emphasis added), cert. denied, 416 U. S. 959 (1974). Determining the weight and credibility of witness testimony, therefore, has long been held to be the "part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men." Aetna Life Ins. Co. v. Ward, 140 U. S. 76, 88 (1891).
By its very nature, polygraph evidence may diminish the jury's role in making credibility determinations. The common form of polygraph test measures a variety of physiological responses to a set of questions asked by the examiner, who then interprets these physiological correlates of anxiety and offers an opinion to the jury about whether the witnessoften, as in this case, the accusedwas deceptive in answering questions about the very matters at issue in the trial. See 1 McCormick § 206.[9] Unlike other expert witnesses who testify about factual matters outside the jurors' knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion, in addition to its own, about whether the witness was telling the truth. Jurisdictions, in promulgating rules of evidence, may legitimately be concerned about the risk that juries will give excessive *314 weight to the opinions of a polygrapher, clothed as they are in scientific expertise and at times offering, as in respondent's case, a conclusion about the ultimate issue in the trial. Such jurisdictions may legitimately determine that the aura of infallibility attending polygraph evidence can lead jurors to abandon their duty to assess credibility and guilt. Those jurisdictions may also take into account the fact that a judge cannot determine, when ruling on a motion to admit polygraph evidence, whether a particular polygraph expert is likely to influence the jury unduly. For these reasons, the President is within his constitutional prerogative to promulgate a per se rule that simply excludes all such evidence.
C
A third legitimate interest served by Rule 707 is avoiding litigation over issues other than the guilt or innocence of the accused. Such collateral litigation prolongs criminal trials and threatens to distract the jury from its central function of determining guilt or innocence. Allowing proffers of polygraph evidence would inevitably entail assessments of such issues as whether the test and control questions were appropriate, whether a particular polygraph examiner was qualified and had properly interpreted the physiological responses, and whether other factors such as countermeasures employed by the examinee had distorted the exam results. Such assessments would be required in each and every case.[10] It thus offends no constitutional principle for the President to conclude that a per se rule excluding all polygraph evidence is appropriate. Because litigation over the admissibility of polygraph evidence is by its very nature collateral, *315 a per se rule prohibiting its admission is not an arbitrary or disproportionate means of avoiding it.[11]
D
The three of our precedents upon which the Court of Appeals principally relied, Rock v. Arkansas, Washington v. Texas, and Chambers v. Mississippi, do not support a right to introduce polygraph evidence, even in very narrow circumstances. The exclusions of evidence that we declared unconstitutional in those cases significantly undermined fundamental elements of the defendant's defense. Such is not the case here.
In Rock, the defendant, accused of a killing to which she was the only eyewitness, was allegedly able to remember the facts of the killing only after having her memory hypnotically refreshed. See Rock v. Arkansas, 483 U. S., at 46. Because Arkansas excluded all hypnotically refreshed testimony, the defendant was unable to testify about certain relevant facts, including whether the killing had been accidental. See id., at 47-49. In holding that the exclusion of this evidence violated the defendant's "right to present a defense," we noted that the rule deprived the jury of the testimony of the only witness who was at the scene and had firsthand knowledge of the facts. See id., at 57. Moreover, the rule infringed upon the defendant's interest in testifying in her own defensean interest that we deemed particularly significant, as it is the defendant who is the target of any criminal *316 prosecution. See id., at 52. For this reason, we stated that a defendant ought to be allowed "to present his own version of events in his own words." Ibid.
In Washington, the statutes involved prevented codefendants or coparticipants in a crime from testifying for one another and thus precluded the defendant from introducing his accomplice's testimony that the accomplice had in fact committed the crime. See Washington v. Texas, 388 U. S., at 16-17. In reversing Washington's conviction, we held that the Sixth Amendment was violated because "the State arbitrarily denied [the defendant] the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed." Id., at 23.[12]
In Chambers, we found a due process violation in the combined application of Mississippi's common-law "voucher rule," which prevented a party from impeaching his own witness, and its hearsay rule that excluded the testimony of three persons to whom that witness had confessed. See Chambers v. Mississippi, 410 U. S., at 302. Chambers specifically confined its holding to the "facts and circumstances" presented in that case; we thus stressed that the ruling did not "signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures." Id., at 302-303. Chambers therefore does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence.
Rock, Washington, and Chambers do not require that Rule 707 be invalidated, because, unlike the evidentiary rules at issue in those cases, Rule 707 does not implicate any significant *317 interest of the accused. Here, the court members heard all the relevant details of the charged offense from the perspective of the accused, and the Rule did not preclude him from introducing any factual evidence.[13] Rather, respondent was barred merely from introducing expert opinion testimony to bolster his own credibility. Moreover, in contrast to the rule at issue in Rock, Rule 707 did not prohibit respondent from testifying on his own behalf; he freely exercised his choice to convey his version of the facts to the court-martial members. We therefore cannot conclude that respondent's defense was significantly impaired by the exclusion of polygraph evidence. Rule 707 is thus constitutional under our precedents.
* * *
For the foregoing reasons, Military Rule of Evidence 707 does not unconstitutionally abridge the right to present a defense. The judgment of the Court of Appeals is reversed.
It is so ordered.
*318 Justice Kennedy, with whom Justice O'Connor, Justice Ginsburg, and Justice Breyer join, concurring in part and concurring in the judgment.
I join Parts I, IIA, and IID of the opinion of the Court.
In my view it should have been sufficient to decide this case to observe, as the principal opinion does, that various courts and jurisdictions "may reasonably reach differing conclusions as to whether polygraph evidence should be admitted." Ante, at 312. The continuing, good-faith disagreement among experts and courts on the subject of polygraph reliability counsels against our invalidating a per se exclusion of polygraph results or of the fact an accused has taken or refused to take a polygraph examination. If we were to accept respondent's position, of course, our holding would bind state courts, as well as military and federal courts. Given the ongoing debate about polygraphs, I agree the rule of exclusion is not so arbitrary or disproportionate that it is unconstitutional.
I doubt, though, that the rule of per se exclusion is wise, and some later case might present a more compelling case for introduction of the testimony than this one does. Though the considerable discretion given to the trial court in admitting or excluding scientific evidence is not a constitutional mandate, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 587 (1993), there is some tension between that rule and our holding today. And, as Justice Stevens points out, there is much inconsistency between the Government's extensive use of polygraphs to make vital security determinations and the argument it makes here, stressing the inaccuracy of these tests.
With all respect, moreover, it seems the principal opinion overreaches when it rests its holding on the additional ground that the jury's role in making credibility determinations is diminished when it hears polygraph evidence. I am in substantial agreement with Justice Stevens' observation that the argument demeans and mistakes the role and *319 competence of jurors in deciding the factual question of guilt or innocence. Post, at 336-337. In the last analysis the principal opinion says it is unwise to allow the jury to hear "a conclusion about the ultimate issue in the trial." Ante, at 314. I had thought this tired argument had long since been given its deserved repose as a categorical rule of exclusion. Rule 704(a) of the Federal Rules of Evidence states: "Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." The Advisory Committee's Notes state:
"The older cases often contained strictures against allowing witnesses to express opinions upon ultimate issues, as a particular aspect of the rule against opinions. The rule was unduly restrictive, difficult of application, and generally served only to deprive the trier of fact of useful information. 7 Wigmore §§ 1920, 1921; McCormick § 12. The basis usually assigned for the rule, to prevent the witness from `usurping the province of the jury,' is aptly characterized as `empty rhetoric.' 7 Wigmore § 1920, p. 17." Advisory Committee's Notes on Fed. Rule Evid. 704, 28 U. S. C., p. 888.
The principal opinion is made less convincing by its contradicting the rationale of Rule 704 and the well considered reasons the Advisory Committee recited in support of its adoption.
The attempt to revive this outmoded theory is especially inapt in the context of the military justice system; for the one narrow exception to the abolition of the ultimate issue rule still surviving in the Federal Rules of Evidence has been omitted from the corresponding rule adopted for the military. The ultimate issue exception in the Federal Rules of Evidence is as follows:
"No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may *320 state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone." Fed. Rule Evid. 704(b).
The drafting committee for the Military Rules of Evidence renounced even this remnant. It said: "The statutory qualifications for military court members reduce the risk that military court members will be unduly influenced by the presentation of ultimate opinion testimony from psychiatric experts." Manual for Courts-Martial, United States, Analysis of the Military Rules of Evidence, App. 22, p. A22-48 (1995 ed.). Any supposed need to protect the role of the finder of fact is diminished even further by this specific acknowledgment that members of military courts are not likely to give excessive weight to opinions of experts or otherwise to be misled or confused by their testimony. Neither in the federal system nor in the military courts, then, is it convincing to say that polygraph test results should be excluded because of some lingering concern about usurping the jury's responsibility to decide ultimate issues.
Justice Stevens, dissenting.
The United States Court of Appeals for the Armed Forces held that the President violated the Constitution in June 1991, when he promulgated Rule 707 of the Military Rules of Evidence. Had I been a member of that court, I would not have decided that question without first requiring the parties to brief and argue the antecedent question whether Rule 707 violates Article 36(a) of the Uniform Code of Military Justice, 10 U. S. C. § 836(a). As presently advised, I am persuaded that the Rule does violate the statute and should be held invalid for that reason. I also agree with the Court of Appeals that the Rule is unconstitutional. This Court's contrary holding rests on a serious undervaluation of the importance of the citizen's constitutional right to present a defense *321 to a criminal charge and an unrealistic appraisal of the importance of the governmental interests that undergird the Rule. Before discussing the constitutional issue, I shall comment briefly on the statutory question.
I
Rule 707 is a blanket rule of exclusion.[1] No matter how reliable and how probative the results of a polygraph test may be, Rule 707 categorically denies the defendant any opportunity to persuade the court that the evidence should be received for any purpose. Indeed, even if the parties stipulate in advance that the results of a lie detector test may be admitted, the Rule requires exclusion.
The principal charge against the respondent in this case was that he had knowingly used methamphetamine. His principal defense was "innocent ingestion"; even if the urinalysis test conducted on April 7, 1992, correctly indicated that he did ingest the substance, he claims to have been unaware of that fact. The results of the lie detector test conducted three days later, if accurate, constitute factual evidence that his physical condition at that time was consistent with the theory of his defense and inconsistent with the theory of the prosecution. The results were also relevant because they tended to confirm the credibility of his testimony. Under Rule 707, even if the results of the polygraph test were more reliable than the results of the urinalysis, the weaker evidence is admissible and the stronger evidence is inadmissible.
Under the now discredited reasoning in a case decided 75 years ago, Frye v. United States, 54 App. D. C. 46, 293 *322 F. 1013 (1923), that anomalous result would also have been reached in nonmilitary cases tried in the federal courts. In recent years, however, we have not only repudiated Frye `s general approach to scientific evidence, but the federal courts have also been engaged in the process of rejecting the oncepopular view that all lie detector evidence should be categorically inadmissible.[2] Well reasoned opinions are concluding, consistently with this Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), and General Electric Co. v. Joiner, 522 U. S. 136 (1997), that the federal rules wisely allow district judges to exercise broad discretion when evaluating the admissibility of scientific evidence.[3] Those opinions correctly observe that the rules of evidence generally recognized in the trial of civil and criminal cases in the federal courts do not contain any blanket prohibition against the admissibility of polygraph evidence.
*323 In accord with the modern trend of decisions on this admissibility issue, in 1987 the Court of Military Appeals held that an accused was "entitled to attempt to lay" the foundation for admission of favorable polygraph evidence. United States v. Gipson, 24 M. J. 246, 253 (1987). The President responded to Gipson by adopting Rule 707. The governing statute authorized him to promulgate evidentiary rules "which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." 10 U. S. C. § 836(a).[4] Thus, if there are military concerns that warrant a special rule for military tribunals, the statute gives him ample authority to promulgate special rules that take such concerns into account.
Rule 707 has no counterpart in either the Federal Rules of Evidence or the Federal Rules of Criminal Procedure. Moreover, to the extent that the use of the lie detector plays a special role in the military establishment, military practices are more favorable to a rule of admissibility than is the less structured use of lie detectors in the civilian sector of our society. That is so because the military carefully regulates the administration of polygraph tests to ensure reliable results. The military maintains "very stringent standards for polygraph examiners"[5] and has established its own Polygraph *324 Institute, which is "generally considered to be the best training facility for polygraph examiners in the United States."[6] The military has administered hundreds of thousands of such tests and routinely uses their results for a wide variety of official decisions.[7]
*325 The stated reasons for the adoption of Rule 707 do not rely on any special military concern. They merely invoke three interests: (1) the interest in excluding unreliable evidence; (2) the interest in protecting the trier of fact from being misled by an unwarranted assumption that the polygraph evidence has "an aura of near infallibility"; and (3) the interest in avoiding collateral debates about the admissibility of particular test results.
It seems clear that those interests pose less serious concerns in the military than in the civilian context. Disputes about the qualifications of the examiners, the equipment, and the testing procedures should seldom arise with respect to the tests conducted by the military. Moreover, there surely is no reason to assume that military personnel who perform the factfinding function are less competent than ordinary jurors to assess the reliability of particular results, or their relevance to the issues.[8] Thus, there is no identifiable military concern that justifies the President's promulgation of a special military rule that is more burdensome to the accused in military trials than the evidentiary rules applicable to the trial of civilians.
It, therefore, seems fairly clear that Rule 707 does not comply with the statute. I do not rest on this ground, however, because briefing might persuade me to change my views, and because the Court has decided only the constitutional question.
II
The Court's opinion barely acknowledges that a person accused of a crime has a constitutional right to present a *326 defense. It is not necessary to point to "any particular language in the Sixth Amendment," ante, at 307, to support the conclusion that the right is firmly established. It is, however, appropriate to comment on the importance of that right before discussing the three interests that the Government relies upon to justify Rule 707.
The Sixth Amendment provides that "the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." Because this right "is an essential attribute of the adversary system itself," we have repeatedly stated that few rights "are more fundamental than that of an accused to present witnesses in his own defense."[9] According to Joseph Story, that provision was included in the Bill of Rights in reaction to a notorious common-law rule categorically excluding defense evidence in treason and felony cases.[10] Our holding in Washington v. Texas, 388 U. S. 14 (1967), that this right is applicable to the States, rested on the premises that it "is in plain terms the right to present a defense" and that it "is a fundamental element of due process *327 of law."[11] Consistent with the history of the provision, the Court in that case held that a state rule of evidence that excluded "whole categories" of testimony on the basis of a presumption of unreliability was unconstitutional.[12]
The blanket rule of inadmissibility held invalid in Washington v. Texas covered the testimony of alleged accomplices. Both before and after that decision, the Court has recognized the potential injustice produced b