332
Stevens, J., dissenting
stitute factual evidence of a "consciousness of innocence." 18
As the Second Circuit has held, when there is a serious factual dispute over the "basic defense [that defendant] was unaware of any criminal wrongdoing," evidence of his innocent state of mind is "critical to a fair adjudication of criminal charges." 19 The exclusion of the test results in this case cannot be fairly equated with a ruling that merely prevented the defendant from encumbering the record with cumulative evidence. Because the Rule may well have affected the outcome of the trial, it unquestionably "infringed upon a weighty interest of the accused." Ante, at 308.
The question, then, is whether the three interests on which the Government relies are powerful enough to support a categorical rule excluding the results of all polygraph tests no matter how unfair such a rule may be in particular cases.
18 "Moreover, there are other principles by which a defendant may occasionally avail himself of conduct as evidence in his favor—in particular, of conduct indicating consciousness of innocence, . . . of utterances asserting his innocence . . . , and, in sedition charges, of conduct indicating a loyal state of mind . . . ." 1A J. Wigmore, Evidence § 56.1, p. 1180 (Tillers rev. ed. 1983); see United States v. Reifsteck, 841 F. 2d 701, 705 (CA6 1988).
19 "Mariotta's basic defense was that he was unaware of any criminal wrongdoing at Wedtech, that he was an innocent victim of the machinations of the sophisticated businessmen whom he had brought into the company to handle its financial affairs. That defense was seriously in issue as to most of the charges against him, drawing considerable support from the evidence. . . .
"With the credibility of the accusations about Mariotta's knowledge of wrongdoing seriously challenged, evidence of his denial of such knowledge in response to an opportunity to obtain immunity by admitting it and implicating others became highly significant to a fair presentation of his defense. . . .
"Where evidence of a defendant's innocent state of mind, critical to a fair adjudication of criminal charges, is excluded, we have not hesitated to order a new trial." United States v. Biaggi, 909 F. 2d 662, 691-692 (CA2 1990); see also United States v. Bucur, 194 F. 2d 297 (CA7 1952); Herman v. United States, 48 F. 2d 479 (CA5 1931).
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