Senator Dianne Feinstein
THE SENATE SHOULD ADMIT THE POLYGRAPH TEST INTO EVIDENCE DURING THE KAVANAUGH CONFIRMATION HEARINGS.
The recent allegation made by Christine Blasey Ford, a Professor at Palo Alto University, that Brett Kavanaugh, attempted to rape her in 1982, when she was only 15, and he was 17, has caused a political storm, and the Senate has now scheduled hearings for Monday, September 24, at which, both Mrs. Ford, and Judge Kavanaugh are expected to testify.
It is reported that Judge Kavanaugh has categorically and unequivocally denied the charge by Mrs. Ford. Thus, the Senate, in carrying out its Constitutional responsibility to advise and consent to the President’s nominee for a lifetime position on the United States Supreme Court will be faced with a credibility problem. Who will they believe, Mrs. Ford or Judge Kavanaugh?
Fortunately, there appears to be some corroborating evidence to support Mrs. Ford’s allegations. It has been reported that she discussed the attack, with her therapist, during a therapy session with her husband in 2012. The therapists notes describe the attacker as a student from "an elite boy’s school." It is widely known that Judge Kavanaugh attended an "elite boys school, in the neighborhood of the all girls school Mrs. Ford [Blasey] attended at the time. In a letter sent to Senator Dianne Feinstein, in July of this year, Mrs. Ford stated that they were at a party, where that Kavanaugh, drunk at the time, forced her into a room, held her down while rubbing himself against her, and trying to remove the bathing suit she wore under her dress. She said that she was only able to escape, when a friend of Kavanaugh’s, identified as Mark Judge, also drunk, jumped on them, knocking them over, permitting her to escape and flee the room.
Mr. Judge’s lawyer says he has no recollection of the party or the incident, nor did he ever see Brett Kavanaugh behave in such a manner. However, it has been reported that Mark Judge has written about his struggles with alcoholism, including black-out drunkenness, and that he referred to a "Bart Kavanaugh" as getting so drunk he vomited in someone else’s car, and passed out.
On the other hand, Mrs. Ford’s husband has confirmed her version of the events stating that he recalls her mentioning Kavanaugh by name.
That leaves us with the lie detector [polygraph] test that she took in early August 2018. The test was administered by a former FBI agent, and confirmed Mrs. Ford’s allegations against Judge Kavanaugh. For years the Supreme Court followed judicial decisions that held that lie detector tests were "per se" inadmissible in criminal proceedings. [See: US v Scheffer, 523 U.S. 303 (1998)]. However, the Scheffer Court’s ruling the polygraph tests were "per se" inadmissible appeared to be in conflict with the Supreme Court’s decision on the admissibility of scientific evidence in general.[See: Daubert v Merril Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)]. Additionally, Justice Stevens, dissenting in Scheffer, noted that the military administered hundreds of thousands of polygraph tests each year, for a variety of official purposes.
[Note: it has been reported that between 1981 and 1997, the Department of Defense conducted over 400,000 polygraph examinations to resolve issues arising in counterintelligence, security, and criminal investigations.] .
In addition, Federal Court’s have admitted the results of a polygraph test to rebut an attack on a defendant’s credibility as a witness, United States v Cordoba, 104 F 3d 225 (9th Cir. 1997); U.S. v Crumby, 895 F. Supp. 13654( D. Ariz. 1994). Thus, if the Senate Republican’s attack the credibility of Mrs. Ford, the polygraph tests should be admitted to rebut these attacks. Additionally, Mrs. Ford could support her own credibility by testifying that she passed a polygraph test with respect to the allegations being heard in the Senate’s confirmation hearing, United States v Crumby, supra.
Polygraph tests have been admitted for the purpose of impeaching a key prosecution witness; finally polygraph tests are admitted in most federal and state courts by stipulation among the parties. Therefore, the Democratic members of the Senate Judiciary Committee should request the Republican Senators stipulate to the admissibility of the lie detector test.
This is a Senate hearing conducted to assist the United States Senate in fulfilling its Constitutional responsibility to advise and consent, with respect to the suitability of a President’s nominee for lifetime seat on the United States Supreme Court. It is not a criminal proceeding where guilt beyond a reasonable doubt is the standard. It is not a civil court trial where a preponderance of evidence is the standard. There is no Constitutional Right to a lifetime seat on the Supreme Court, and it is the Senate’s duty to ensure that only the most qualified individuals are appointed to such a position.
Respectfully submitted,
John P. Rudden, Esq.