NACDL

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 test.  

The first exists in theory only, since both experienc