The Champion

June 2003 , Page 36 

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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 test.  

The first exists in theory only, since both experienc

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