Polygraph admissibility case citations by Dan Ribacoff – IIGPI

February 26, 2021

Dan Ribacoff from IIGPI, a polygraph expert provides the following case citations should be of interest to attorneys contemplating the introduction of PV examination results into evidence in a court of law:

• United States v. Piccinonna 885 F.2d 1529 (11th Cir. 1989). But see United States v. Henderson (11th Cir. 2005) 409 F.3d 1293, 1303.

• United States v. Posado (5th Cir. 1995) WL 368417 (admission at suppression pre-trial hearing).

• United States v. William Galbreth, 908 F. Supp. 877, 64 USLW 2260, 43 Fed. R. Evid. Serv 585, 4 Oct 1995.

• United States v. Richard Ridling, 350 F. Supp. 90 (E.D. Mich 1972)

• United States v. David Crumby, 895 Fed Supp 1354 (DC AR. 1995).

• United States v. Lee, 315 F.3d 206 (3d Cir. 2003). Polygraph examinations permitted as a condition of federal supervised release at the discretion of the probation officer.

• United States v. Locke, 482 F.3d 764 (5th Cir. 2007). Polygraph as a probation condition permitted in child pornography case.

• United States v. Stoterau , 524 F.3d 988, 1003 (9th Cir. 2008). Polygraph testing as a condition of supervised release does not infringe on a defendant’s Fifth Amendment rights because defendants retain such rights during polygraph examination.

• Ohio v. Sahil Sharma. CR 06-09-3248 (2009). Results admitted over objections. Ohio Appellate Court refused to overturn judge’s ruling.

• People v. Wilkinson (122 Cal.Rprt.2d 703). The California Appeals court recently ruled that expert polygraph foundation testimony must be allowed in criminal trials.

• Ohio v. Sims, 52 Ohio Misc. 31; 369 N.E. 2d 24; (1977).

• State v. Valdez, 371 P.2d 894 (Arizona, 1962).

• State v. Dorsey, 539 P.2d 204 (New Mexico, 1975).

• People v. Kenney, 3 N.Y.S.2d 348, 167 Misc. 51 (Queens County Ct. 1938).

• People v. Daniels, 422 NYS2d. 832, 102 Misc 2d 540 (1979). Admitted over objections.

• People v. Glenn Battle, reported in NY Law Journal 18 Apr 89, Page 26, Col. 3, Justice Lewis Douglass, NYS Supreme Court, Brooklyn, NY. Admitted over objections.

• People v. Vernon, 391 NYS 2d 959 (1977).

• In the matter of Jennifer Meyer and Jessica Meyer, 132 Misc 2d 415, 504 NY.X.2d 358. Admitted over objections.

• Patterson v. State, 633 S. W. 2d 549 (Tex.Cr.App. 1982).

• Kumbo Tire Company, Ltd, et al. v. Patrick Carmichael, 526 U.S. 137 (1999). The court added that a federal judge’s “gatekeeping” role under Rule 702 extends to all expert testimony, not just that deemed scientific. Thus, in federal court, soft-science (experience based) experts are subject to pre-trial Daubert challenges just like data based hard science.

• William Davis v. The People of the State of New York: County of Erie Office of Children and Family Services Administrative Law Judge Proceeding. SCR No. 218608069, Hearing ID No. 43132. Hon. Jerry McGrier, Sr., Administrator Law Judge, 25 March 2009.

NOTE: While the case of United States v. Edward G. Scheffer, 41 MJ 683 (AF Ct. Crim App 1995) and 423 U.S. 303 (1998) upheld the presidential ban on the admissibility of polygraph examination results in military courts, its position can be successfully challenged in that it permitted States to ban polygraph by statute due to the uncertainty of polygraph validity which has since been rectified with significant scientific validation studies published in peer-reviewed journals. Furthermore, the results of polygraph tests can still be admitted as character evidence as was permitted in United States v. Crumby (d. Ar. 1995) 895 F. Supp. 1354 wherein the mental state of the defendant was avoided (U. S. v. Campos, 217 F.3d 707 (9th Cir. 2000).

Below is an excellent critique of the United States v. Campos decision in a law review.


B. Lie Detector Evidence and the “Ultimate Issue” Prohibition of Rule 704

Courts have also ruled that expert testimony regarding certain lie detector results is inadmissible under Federal Rule of Evidence 704(b) because the testimony encompasses the “ultimate issue.” 64 As explained below, this objection, even if valid, is narrow in scope and consequently should not prove to be a significant obstacle to the future admission of lie detector evidence.

As originally drafted, Federal Rule of Evidence 704 was intended to abolish the common law doctrine that prohibited testimony on the “ultimate issue,” a prohibition deemed by the drafters of the rule to be “unduly restrictive, difficult of application, and generally serving only to deprive the trier of fact of useful information.” 65 In 1984, after a mentally disturbed individual attempted to assassinate President Reagan and a deranged fan murdered John Lennon, Congress passed the Insanity Defense Reform Act of 1984, 66 which, among other things, added a new subsection to Rule 704 in order to “constrain psychiatric testimony on behalf of defendants asserting the insanity defense.” 67 The added subsection of Rule 704 states in full that:

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 [*725] alone. 68

Despite arguments to the contrary, a number of circuits have interpreted Rule 704(b) to extend beyond the testimony of psychiatric or mental health experts “to all expert witnesses.” 69 The Ninth Circuit has subsequently applied this prohibition in two cases in which polygraph experts intended to testify with respect to the defendants’ answers to questions that indicated the absence of criminal intent. 70

Even assuming that Rule 704(b) properly applies to the testimony of all experts, proponents of lie detector expert testimony should have little difficulty avoiding its prohibitions, for a variety of reasons. First, the vast majority of lie detector evidence will not pertain to the “mental state or condition” of the defendant and consequently will not trigger the application of Rule 704(b). Rather, the more common use of lie detector evidence will be to establish the credibility of statements regarding objective facts – for example, a defendant’s statement that he was not present at the scene of the crime or that he did not engage in a physical act that forms the basis of the crime charged. 71

Second, even where the dispute at trial revolves around an issue of intent – such as whether a killing was premeditated or committed in self-defense – lie detector evidence can be introduced without any direct inquiry into a “mental state or condition.” A defendant can disprove his intent in the same manner the prosecutor will try to prove it – circumstantially. 72 The questioning presented [*726] from the lie detector examination will, again, solely concern objective facts, but in this case, those facts will be offered to disprove the requisite criminal intent. For example, if the defense seeks to prove that the defendant acted in self-defense, there is no need for the expert to inquire directly as to the defendant’s “intent.” Rather the expert could ask whether the victim had a weapon, whether the victim threatened to kill the defendant, who struck the first blow, and so on. 73 By showing the absence of criminal intent solely through circumstantial evidence of objective facts, the expert’s testimony avoids any conflict with Rule 704(b). 74

Third, contrary to the Ninth Circuit’s analysis, a lie detector expert can, in fact, testify with respect to the veracity of a defendant’s answer to an inquiry as to intent without violating the ultimate issue prohibition of Rule 704(b). 75 This is because there is a distinction between an expert’s opinion that the defendant truthfully stated he acted with a certain intent (e.g., in self-defense), and the expert’s (perhaps prohibited) opinion that the defendant did, in fact, act with that intent. As the Ninth Circuit itself has explained in another context, the prohibition in Rule 704(b): does not bar testimony supporting an inference or conclusion that a defendant does or does not have the requisite mental state, “so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony.” 76

Even the most sophisticated lie detector technology will not enable an expert to testify as to a defendant’s past intent. Instead, the most an expert can [*727] say is that when the defendant voiced an innocent intent, lie detector technology indicated that the defendant was truthful. The ultimate issue of the defendant’s intent does not “necessarily follow” from this testimony. 77 Rather, as the prosecution will no doubt argue, the test could be flawed, or the defendant may have “fooled” the test or deluded himself, and thus, even if the expert’s testimony regarding the test is credited, the jury could still conclude that the defendant possessed the requisite criminal intent. 78

Thus, the exceedingly narrow significance of Rule 704(b) in the lie detector context is, at most, that a lie detector expert is not permitted to testify directly as to the veracity of a defendant’s response to a question such as, “what was your intent?” And, as discussed above, even the exclusion of that testimony under the rule is legally questionable.

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