The “error” came out in the witness’s first sentence.

MJ: Please be seated. The court will come to order. MJ: Okay. Members, it was early in the morning, and I wasn’t sure what word WITNESS had used, but counsel confirmed for me that she did say the word, “Polygraph.” The President of the United States, the Military Rule of Evidence that’s in the Manual for Courts-Martial, has decided that the results of a polygraph are so unreliable that the result cannot be used in any way, shape or form in a trial by court-martial. You are officers under the command of the Commander in Chief, the President of the United States, as am I, as are most of the counsel in this courtroom. We have an obligation to follow that order of the President of the United States. The Supreme Court has considered whether or not the President acted reasonably in excluding polygraphs all together from use in trial by court-martial, and the U.S. Supreme Court has decided that the President acted rationally in doing that because polygraph results are not sufficiently reliable enough to be used in a trial by court-martial. So, you must disregard completely what LE WITNESS said to you when she used the word polygraph, and any implication from the use of that one word. Do the members understand that? PRES: Yes, Your Honor. [Mumblings in agreement from the panel members and positive response.] MJ: Okay. I have an affirmative response from all members. Now, the Trial Counsel told me that he instructed LE WITNESS specifically not to use the word, “Polygraph,” when she was testifying. My conclusion is therefore that she cannot follow guidance. Therefore, I have excluded her as a witness in this trial. Do the members understand that?[Positive response.] MJ: If a witness can’t follow that simple guidance, then I don’t care to hear from her, and I don’t believe you ought to hear from her. Do any of the members have any trouble with that instruction? Can you completely ignore the use of the word, “Polygraph?” [Positive response.] MJ: I have an affirmative response from all members. Okay. Government, call your next witness please.

The military judge did not grant a mistrial, partly because the trial counsel gave a proffer of expected testimony and it was all bad for the defense. So the military judge’s rationale was that we’d benefitted by the witness’s mistake. I’m still not sure that was the correct way to evaluate any prejudice because the members basically got to hear that the client had failed a polygraph. And this was after the witness had been instructed on not to talk about the polygraph.

One of three Navy SEALs facing a court martial announced at a rally Saturday that he has passed a polygraph test, casting doubt on the Pentagon’s case against him. Rep. John Shadegg (R.-Ariz.) who attended and spoke at the rally, told HUMAN EVENTS that “while the lie detector test results won’t be admissible in a court of law and their jury will never know that he passed, it is nonetheless important for the American public to know.

Mil. R. Evid. 707 prohibits testimony about a polygraph in court, but not in the media, heh, heh.

(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, failure to take, or taking of a polygraph examination, shall not be admitted into evidence. (b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.

And as we know, the Supreme Court agreed that polygraphs are unreliable and should not be admitted, in United States v. Scheffer, 523 U.S. 303 (1998), a court-martial case in which Scheffer wanted to admit evidence of an exculpatory polygraph. From the “headnotes,”

A polygraph examination of respondent airman indicated, in the opinion of the Air Force examiner administering the test, that there was “no deception” in respondent’s denial that he had used drugs since enlisting. Urinalysis, however, revealed the presence of methamphetamine, and respondent was tried by general court-martial for using that drug and for other offenses. In denying his motion to introduce the polygraph evidence to support his testimony that he did not knowingly use drugs, the military judge relied on Military Rule of Evidence 707, which makes polygraph evidence inadmissible in court-martial proceedings. Respondent was convicted on all counts, and the Air Force Court of Criminal Appeals affirmed. The Court of Appeals for the Armed Forces reversed, holding that a per se exclusion of polygraph evidence offered by an accused to support his credibility violates his Sixth Amendment right to present a defense. Held: The judgment is reversed.

Here is a link to one of the most vocal anti-polygraph advocates in which he argues:

• The consensus view among scientists is that polygraph testing has no scientific basis?
• The FBI considered the creator of the lie detector test to be a phony and a crackpot?
• The man who started the CIA’s polygraph program thinks that plants can read human thoughts?
• The foremost polygraph advocate in academia was discredited by a federal judge?
• A prominent past-president of the American Polygraph Association is a phony Ph.D., and this premier polygraph organization doesn’t consider it an ethics problem?
• The longest polygraph school produces newly minted polygraphers in just 14 weeks — less than half the time it takes to graduate from a typical barber college?
• The Defense Academy for Credibility Assessment (the erstwhile DoD Polygraph Institute) suppressed a study suggesting that innocent blacks are more likely to fail the polygraph than innocent whites?
• The researcher who developed the U.S. Government’s polygraph Test for Espionage and Sabotage”thought the whole security screening program should be shut down?”
• The National Academy of Sciences concluded that “[polygraph testing’s] accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies?”
• Spies Ignatz Theodor Griebl, Karel Frantisek Koecher, Jiri Pasovsky, Larry Wu-tai Chin, Aldrich Hazen Ames, Ana Belen Montes, and Leandro Aragoncillo all passed the polygraph?
• One of the most prolific serial killers in U.S. history passed the polygraph and killed again?
• Al-Qaeda and Iraqi insurgents know full well that the lie detector is bogus?
• You don’t have to be a psychopath, go to spy school, or somehow believe your own lies to fool the polygraph? (We’ll reveal how it’s done.)

Here is a link to another site which seems to think polygraphs could be admissible under certain limited circumstances.

In United States v. Willis, No. ARMY 20071339, which is being argued on Thursday, the issue is: “WHETHER THE PROSECUTION AGAINST APPELLANT WAS BARRED BY A GRANT OF DE FACTO IMMUNITY WHEN THE GOVERNMENT AGREED TO DISMISS CHARGES IF APPELLANT PASSED A POLYGRAPH EXAMINATION AND APPELLANT PASSED A POLYGRAPH EXAMINATION.”

h/tip CAAFLog.