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Using Polygraph Evidence After Scheffer (Part 2)
By Charles Daniels
Thinking inside the box –
traditional approaches to courtroom use
Despite the clear exclusionary
trend, defense counsel are occasionally successful in making use of polygraph
evidence by using straightforward traditional approaches.
- The textbook Daubert approach. Some courts still can be persuaded to give you a hearing on
admissibility of the polygraph.1 Neither the decision of the Supreme
Court in Kumho Tire Co. v. Carmichael,2 nor any other legal
development has changed the Daubert hearing requirements, which at least
in theory apply to polygraph evidence.
- Use of stipulations.Since most jurisdictions still admit
polygraph evidence if the parties stipulate to it, this remains a viable
approach. There are theoretically two ways in which a polygraph can be admitted
by stipulation: by seeking a stipulation after the polygraph evidence is
obtained or by working out a stipulation in advance of administration of the
The first exists in theory only,
since both experienc
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