How does the SCHEFFER decision affect the prospect of the Protocol being implemented?
* The Supreme Court in Scheffer held that it was not unconstitutional for jurisdictions to exclude the polygraph, per se, as scientific evidence. The opinion quoted by the voter represented the views of only four of the nine members of the court. Four of the Justices refused to concur in the quoted portion of the Opinion, pointing out that the doctrine of the jury as the lie detector had been diminished through time even as to the ultimate facts of a case. They pointed out that the last remaining reed of the doctrine is Fed. Rule Evid. 704(b): “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.” One Justice dissented altogether.
