Brief of the Committee of Concerned Social Scientists as Amicus Curiae

This 1997 amicus curiae brief, authored by Honts and Peterson on behalf of the Committee of Concerned Social Scientists, synthesized polygraph research to argue that Control Question Test accuracy exceeded 90% and should be admissible in the landmark U.S. v. Scheffer Supreme Court case challenging Military Rule of Evidence 707's categorical ban on polygraph evidence.

Legal brief synthesizing existing empirical research on CQT polygraph accuracy from laboratory studies, field studies, and Department of Defense operational data to present scientific evidence supporting admissibility in criminal proceedings.

Background & Context

The 1997 amicus curiae brief submitted by the Committee of Concerned Social Scientists represented a pivotal moment in the decades-long legal battle over polygraph admissibility in American courts. Authored by Charles R. Honts and Charles F. Peterson, this brief summarized the results of high-quality polygraph studies and reported accuracy rates exceeding 90%, directly challenging the widespread judicial skepticism toward polygraphy that had dominated since the 1923 Frye decision.

United States v. Scheffer was the first case in which the Supreme Court issued a ruling regarding the highly controversial matter of polygraph testing, with the central issue being whether the per se exclusion of polygraph evidence offered by the accused in a military court violated the Sixth Amendment right to present a defense. The case arose when Airman Edward Scheffer sought to introduce exculpatory polygraph results to support his claim of unknowing drug ingestion, only to be blocked by Military Rule of Evidence 707's categorical ban on polygraph evidence.

The Committee of Concerned Social Scientists prepared a pro-polygraph amicus brief in U.S. v. Scheffer, joining several other amicus parties including the American Polygraph Association and the National Association of Criminal Defense Lawyers in arguing for the admissibility of polygraph evidence. The brief emerged during a critical transitional period following the Supreme Court's 1993 Daubert decision, which had replaced the rigid Frye "general acceptance" standard with a more flexible reliability-based framework for scientific evidence.

Research Design & Methodology

The Honts-Peterson brief was not an original empirical study but rather a comprehensive legal brief synthesizing existing polygraph research to inform the Supreme Court's deliberations. The brief's methodology involved systematic review and presentation of accuracy data from published field and laboratory studies of the Control Question Test (CQT), the most commonly used polygraph technique in forensic settings.

The brief drew upon several sources of evidence to support its accuracy claims:

• Laboratory studies compiled by Raskin, Honts, and Kircher (1997) showing mean accuracy of approximately 90%, and field studies scored by independent examiners showing mean accuracy of 90.5%
• Comparative validity research by Widacki and Horvath demonstrating that polygraph resolved 95% of cases correctly (excluding inconclusives), and 90% with inconclusives included, comparing favorably to fingerprinting, handwriting analysis, and eyewitness identification
• Department of Defense data showing that between 1981 and 1997, DoD conducted over 400,000 polygraph examinations to resolve issues arising in counterintelligence, security, and criminal investigations

The brief emphasized that the military maintained rigorous examiner training standards and quality control procedures, arguing that concerns about examiner variability and testing conditions were minimized in the military context. It presented polygraph accuracy as comparable to or exceeding other forms of forensic evidence routinely admitted in courts.

Results & Key Findings

The brief's central finding was that research convergence suggested CQT polygraph accuracy exceeded 90%, directly challenging the Supreme Court's eventual characterization of persistent scientific disagreement. Honts and Peterson (1997) reported the accurate rate as exceeding .900 based on their synthesis of high-quality studies.

Specific accuracy findings presented in the brief and related materials included:

• Laboratory studies: Eight laboratory studies placed mean accuracy at approximately 90%
• Field studies (independent scoring): Four field studies scored by independent examiners placed mean accuracy at 90.5%
• Field studies (original examiner scoring): Six field studies scored by original examiners placed mean accuracy at 97.5%
• Comparative validity: Polygraph resolved 95% of cases correctly when excluding inconclusive results

The brief argued that these accuracy rates surpassed the typical 54% accuracy of unaided human lie detection and were comparable to other expert testimony routinely admitted in criminal trials. It emphasized that modern computerized scoring algorithms and standardized testing protocols had substantially improved reliability beyond historical concerns.

Discussion & Significance

Despite the brief's scientific arguments, the Court ruled that Military Rule of Evidence 707 does not unconstitutionally abridge the right of accused members of the military to present a defense, and the Supreme Court affirmed the refusal to admit the requested polygraphic evidence. The Court's 8-1 decision (with only Justice Stevens dissenting) rejected the brief's accuracy claims, instead emphasizing the "lack of scientific consensus" reflected in disagreement among state and federal courts concerning both the admissibility and the reliability of polygraph evidence.

The Scheffer decision had profound implications for polygraph admissibility nationwide. Scheffer has often been misunderstood as standing in favor of the per se exclusion of polygraph evidence, though at least 5 out of 9 justices expressed views against a per se exclusion. Justice Kennedy's concurrence notably stated doubts about the wisdom of blanket exclusion, suggesting future cases might present more compelling circumstances for admission.

The brief's significance lies not in its immediate legal success—which was limited—but in crystallizing the pro-polygraph scientific perspective during a critical juncture in evidence law. The brief represents a strongly held minority position on whether polygraph tests are valid to assess truthfulness or deception, contributing to an increasingly vitriolic and polarized debate among scientists. The document became a frequently cited reference point in subsequent Daubert hearings and polygraph admissibility challenges, even as most jurisdictions maintained restrictive rules.

Limitations & Considerations

The brief faced several critical limitations that undermined its persuasiveness to the Court. Critics noted methodological concerns with the underlying research it cited. Studies cited in the brief had not been designed to estimate the most important sources of measurement error threatening the reliability of a polygraph test's results, and therefore they were inappropriate tests of polygraph's reliability.

The brief's reliance on field studies with potentially circular criterion contamination raised validity questions. When confessions obtained partly based on polygraph results serve as ground truth for validating those same polygraph results, accuracy estimates may be artificially inflated. Additionally, critics like Iacono and Lykken found that scientific field studies suggested accuracy rates "little better than could be obtained by the toss of a coin"—approximately 50 percent, directly contradicting the brief's >90% claims.

A significant credibility issue emerged when one of the brief's co-signers, Ed Gelb (listed as "Ph.D."), was later exposed as never having earned a doctoral degree from any accredited university, raising questions about the committee's vetting processes. The brief also failed to adequately address countermeasure vulnerabilities and the examiner-dependency of polygraph accuracy, both of which the Court found concerning.

Practical Applications

While the Honts-Peterson brief did not achieve its immediate goal of securing polygraph admissibility in Scheffer, it established a template for presenting polygraph science in legal contexts. In the United States, polygraph tests remain admissible in courts of law in about half the states under stipulation, New Mexico allows general admission without stipulation, and federal courts may admit results at the trial judge's discretion under Daubert.

For polygraph examiners and practitioners, the brief reinforced the importance of rigorous training, standardized protocols, and quality control measures. Department of Defense standards require basic polygraph training, a minimum six-month internship with at least 25 supervised examinations, and 80 hours of continuing education every two years, exemplifying the professionalization the brief advocated. For defense attorneys and prosecutors, the document provides a roadmap of scientific arguments that can be deployed in jurisdictions where polygraph admissibility remains contested, though they must be prepared to counter equally robust criticisms from opposing experts.