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Polygraphers

Admissibility Rate: .121    (4/33) 

United States v. Kwong, 69 F.3d 663 (2d Cir. 1995), cert. denied, 517 U.S. 1115 (1996).  Criminal defendant offers exculpatory polygraph exam, invoking DaubertExclusion affirmed.  Pre-Daubert decisions in Second Circuit "suggested" that polygraph testimony was inadmissible, but after Daubert, polygraphy must still satisfy reliability test.  Even assuming reliability were satisfied, district court properly excluded ambiguous polygraph results under Fed. R. Evid. 403.

United States v. Lee, 315 F.3d 206 (3d Cir. 2003), cert. denied, 540 U.S. 858 (2003).  Defendant pleads guilty to possession and transport of child pornography, and to enticing minor by computer to engage in sex.  District court conditions supervised release on defendant's submission to periodic polygraph exams.  Sentence affirmed.  Among other arguments, defendant contends polygraph exam is unnecessarily burdensome, because polygraph results would be inadmissible at any revocation hearing.  Actually, some courts have held polygraphs admissible following Daubert, but Third Circuit need not reach that issue now, because polygraph could still be used by probation officer to enhance defendant's supervision and treatment. 

Nawrocki v. Twp. of Coolbaugh, No. 01-1196 (3d Cir. Apr. 8, 2002) (unpublished).  Teacher #1 receives various anonymous threatening and pornographic letters, and teacher #2 is suspected of being their source.  School district arranges for polygraph of teacher #2, and polygrapher concludes that teacher #2 is responsible for letters.  Teacher #1 files criminal charges, but teacher #2 is acquitted.  Teacher #2 then brings malicious prosecution claims against teacher #1 under section 1983.  District court enters judgment as matter of law for teacher #1, in part because polygraph results supplied probable cause.  Admissibility affirmed.  Polygraph results were not admitted for their truth, but to show probable cause.  Although most appellate courts have continued to exclude polygraph evidence notwithstanding Daubert, district court did not err in admitting polygraph findings for this limited purpose.

United States v. Prince-Oyibo, 320 F.3d 494 (4th Cir.), cert. denied, 540 U.S. 1090 (2003).  Nigerian charged with attempting to enter United States on forged visa offers polygraph, performed by retired FBI examiner, to prove he was unaware that visa was invalid.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Prior to Daubert, Fourth Circuit followed per se rule against admissibility of polygraph evidence.  Some post-Daubert decisions in Fourth Circuit suggested that per se ban could be relaxed without need for en banc decision repudiating those precedents, but those decisions did not actually depart from per se rule, and mere panel may not overrule it, even if Daubert arguably supports more nuanced view.  Dissent: Per se exclusionary rule is inconsistent with Daubert, and case should be remanded for Daubert inquiry.

United States v. Music, No. 02-4046 (4th Cir. Oct. 24, 2002) (unpublished).  Defendant pleads guilty to possession of child pornography.  As condition of supervised release, district court requires defendant to participate in treatment that may include polygraphs and penile plethysmographs.  Sentence affirmed.  Defendant argues that if polygraphs and plethysmographs are insufficiently reliable to be admitted in evidence, they may not be imposed as conditions of supervised release.  It is true that polygraphs are generally inadmissible, and also that some decisions have rejected penile plethysmograph evidence.  But such tests may nevertheless be useful for other purposes, such as treatment.  Defendant also argues, in the alternative, that it would be improper to revoke his supervised release, should he fail these tests.  But if that issue ever arises, defendant will be free to object at appropriate time.

ICap, Inc. v. Global Digital Satellite Sys., Inc., No. 99-2087 (4th Cir. July 31, 2000) (unpublished).  Action for breach of contract.  Plaintiff corporation offers polygraph to bolster its witnessís testimony that defendant agreed to contractual term in phone conversation.  Exclusion affirmed.  Plaintiff preserved right to introduce polygraph only if defendant impeached testimony of witness.  Moreover, polygraphs remain inadmissible per se for impeachment in Fourth Circuit notwithstanding Daubert.

United States v. Ruhe, 191 F.3d 376 (4th Cir. 1999).  Criminal defendant offers exculpatory polygraph at trial and for sentencing.  Exclusion affirmed.  Fourth Circuit declines request to reconsider its "per se ban on polygraph testimony" at trial, citing Scheffer.  Even if district court should have considered polygraph for sentencing, polygraph would not have justified downward departure from sentencing guidelines, because polygraph merely tended to show continued disclaimer of responsibility by defendant.

United States v. Sanchez, 118 F.3d 192 (4th Cir. 1997).  Criminal defendant offers polygraph failure by co-conspirator called by prosecution.  Excluded by district court as irrelevant and because Fourth Circuit follows per se rule barring polygraph testimony.  Affirmed.  Polygraph testimony is always inadmissible to impeach.  Prior Fourth Circuit decisions so holding remain binding absent en banc reconsideration, notwithstanding Daubert.

United States v. Lewis, No. 04-10102 (5th Cir. Sept. 22, 2004) (unpublished), vacated on other grounds, 125 S. Ct. 1610 (2005).  District court excludes exculpatory polygraph in criminal proceeding.  Exclusion affirmed.  "There was no plain error, as the record indicates that [the defendant] failed to establish that the examiner's testimony was relevant and that polygraph exams were accepted in the scientific community."

Gibbs v. Gibbs, 210 F.3d 491 (5th Cir. 2000).  District court considers civil litigantís failure of polygraph in assessing attorneysí fees against litigant in ERISA action.  Affirmed.  Fifth Circuit has rejected per se exclusion of polygraphs following Daubert (citing Posado, infra).  Also, risk of prejudice or confusion is reduced when factual issues are decided by trial court as opposed to jury.  Also, fee award rested on sufficient alternative grounds.

United States v. Posado, 57 F.3d 428 (5th Cir. 1995).  Criminal defendants offer exculpatory polygraph at pretrial hearing on motion to suppress.  Excluded by district court in light of prevailing Fifth Circuit per se rule of inadmissibility.  Reversed and remanded for Daubert inquiry.  Per se ban cannot survive Daubert.  Polygraphy has made strides.  No view expressed, however, on whether evidence at issue possesses requisite reliability and relevance to be admissible on remand at suppression hearing.  "It is with a high degree of caution that we have today opened the door to the possibility of polygraph evidence in certain circumstances.  We may indeed be opening a legal Pandoraís box."

United States v. Younes, No. 05-1348 (6th Cir. Sept. 5, 2006) (unpublished).  Criminal defendant attempts to introduce unilaterally conducted exculpatory polygraph.  District court excludes evidence as unreliable and also as more prejudicial than probative.  Exclusion affirmed.  Sixth Circuit has taken dim view of polygraphy's reliability.

United States v. Thomas, 167 F.3d 299 (6th Cir. 1999).  Criminal defendant offers privately commissioned exculpatory polygraph at sentencing.  Exclusion affirmed.  Sixth Circuit has never adopted per se exclusionary rule, but has always shown "aversion" to polygraph testimony.  Because prosecution was not involved in defendantís polygraph, evidence was properly excluded under Rule 403, mooting question whether Daubert would require Sixth Circuit to revisit "general rule" against admissibility.

United States v. Wilson, No. 98-5373 (6th Cir. Dec. 22, 1998) (unpublished).  District court considers presentencing report including inconclusive polygraph.  Affirmed.  Under federal sentencing guidelines, sentencing evidence need only meet standard of "probable accuracy," not Daubertís more stringent standard.

United States v. Sherlin, 67 F.3d 1208 (6th Cir. 1995), cert. denied, 516 U.S. 1082 (1996).  Arson defendant offers exculpatory polygraph, invoking DaubertExcluded by district court under Rule 403.  Affirmed.  General rule is that polygraphy is inadmissible.  Unilaterally obtained polygraph evidence is almost always inadmissible under Rule 403. Self-serving polygraph evidence is seldom admissible absent pre-exam agreement between parties, because proponent has nothing at risk when taking exam -- polygraph simply will not surface if results are undesirable.  District court did not abuse its discretion under Rule 403.

Conti v. Commissioner of Internal Revenue, 39 F.3d 658 (6th Cir. 1994), cert. denied, 514 U.S. 1082 (1995).  Taxpayers offer privately and unilaterally commissioned polygraph to corroborate their claims of amount of cash hoard.  Excluded by district court as unreliable after hearing, in reliance on Frye and also on Sixth Circuit presumption of inadmissibility for unilateral polygraphs.  Affirmed.  Polygraph was legitimately excluded as unilateral under Sixth Circuit precedent, mooting Daubert issues.

United States v. Ross, 412 F.3d 771 (7th Cir. 2005).  Criminal defendant offers unilateral exculpatory polygraph.  Trial court excludes polygraph under Daubert and Fed. R. Evid. 403, and because admitting polygraph results would impinge on jury's function.  Jury convicts.  Exclusion affirmed.  Trial courts have wide discretion in excluding polygraph evidence.  Among other problems, instant polygraph was conducted in clandestine and unilateral fashion, leading to natural suspicion that if defendant had flunked, test results never would have been disclosed.

United States v. Lea, 249 F.3d 632 (7th Cir. 2001).  After business relationship between defendant and rendering company goes bad, defendant dumps pesticides on rendering company's "deadstock" (dead farm animals to be rendered and sold as animal food), forcing massive recall of rendering company's products when pesticides are discovered.  At trial, defendant argues that former employee of rendering company was actual culprit, and seeks to call FDA agent who administered polygraph to that employee, to testify that employee "failed" polygraph.  Polygrapher testifies at telephonic Daubert hearing that polygrapher can only speculate as to accuracy of employee's polygraph, and that polygrapher knows of no statistics on accuracy rate of polygraphy methods employed.  District court excludes polygrapher's testimony.  Exclusion affirmed.  In general, no consensus exists on reliability of polygraph testimony (citing Scheffer).  Seventh Circuit may be more permissive re polygraph testimony than some other circuits, but considerable deference is owed to district court's decision.  Trial courts may properly exclude polygraph evidence under Rule 403 without conducting full Daubert analyses, although factors from Daubert remain useful tools in gauging reliability of polygraph testimony.

United States v. Taylor, 154 F.3d 675 (7th Cir.), cert. denied, 525 U.S. 1060 (1998).  In trial #1, criminal defendant offers, and trial court admits, defense-commissioned polygraph testimony that defendantís girlfriend was truthful in asserting drugs belonged to her.  Jury #1 is hung.  In trial #2, polygraph testimony is excluded by trial court after Daubert hearing, on theory that although "control question" technique used by defense expert is valid, expertís application of technique was not, and risk of prejudice outweighs probative value under Rule 403.  Affirmed.  No abuse of discretion under Daubert, because evidence suggested expert had not stayed current with developments in polygraphy.

United States v. Rouse, 410 F.3d 1005 (8th Cir. 2005).  After having been convicted of charges stemming from their sexual molestation of five children, ages 20 months to 7 years, defendants move for new trial, based on recantation of children's trial testimony.  In support, defendants offer polygraph results tending to support one child's recantation.  District court excludes polygraph testimony after Daubert hearing and denies motion for new trial, finding that recantations are not credible.  Exclusion affirmed.  District court permissibly found that examiner's methods did not conform to any accepted polygraph testing procedure.  Even if exclusion had been in error, such error would have been harmless, as district judge, who sat as trier of fact on motion for new trial, plainly did not credit defendant's polygraph evidence.

United States v. Gianakos, 404 F.3d 1065 (8th Cir.), amended, 415 F.3d 912 (8th Cir.), cert. denied, 126 S. Ct. 764 (2005).  Detective testifies in kidnapping trial that witness has consistently told same story.  Defendant seeks to cross-examine detective re polygraph administered to witness.  District court refuses, saying cross on polygraph would be collateral.  Jury convicts and defendant appeals.  Affirmed.  Fundamental premise of our adversary system is that jury evaluates credibility.  Defendant had adequate opportunity to cross-examine detective and relevant witness.  Moreover, defendant took no steps to establish polygraph's reliability.

United States v. Greatwalker, 356 F.3d 908 (8th Cir. 2004). Criminal defendant seeks to introduce results of polygraph tests taken by witnesses at murder scene.  District court excludes evidence and jury convicts.  Exclusion affirmed.  Defendant never established reliability of tests.

United States v. Waters, 194 F.3d 926 (8th Cir. 1999).  Criminal defendant offers exculpatory FBI polygraph and requests Daubert hearing to establish reliability.  Excluded under Rule 403, without hearing, by district court.  Affirmed.  Exclusion under Rule 403 moots Daubert issues and obviates any need for hearing.

United States v. Jordan, 150 F.3d 895 (8th Cir. 1998), cert. denied, 526 U.S. 1010 (1999).  Criminal defendant offers police polygraph of co-defendant. Excluded by district court because of defendant waiver, and alternatively because not reliable under Daubert and more prejudicial than probative under Rule 403.  Affirmed.  No abuse of discretion to exclude on waiver theory or under Rule 403.  No discussion of Daubert issues.

United States v. Williams, 95 F.3d 723 (8th Cir. 1996), cert. denied, 519 U.S. 1082 (1997).  Criminal defendants offer polygraph of governmentís chief witness.  Excluded by district court as unreliable under Daubert and also under Rule 403.  Affirmed.  No abuse of discretion on either count.

United States v. Ramirez-Robles, 386 F.3d 1234 (9th Cir. 2004), cert. denied, 544 U.S. 1035 (2005).  Trial court refuses to admit defendant's expert evidence re exculpatory polygraph.  Jury convicts.  Exclusion affirmed.  Trial court did not state evidentiary basis for decision, but decisions excluding polygraph evidence may be affirmed on any ground supported by record and briefed by parties.  Because district court did not perform Daubert inquiry, exclusion cannot be affirmed on reliability grounds.  But record supports conclusion that evidence was more prejudicial than probative under Fed. R. Evid. 403.

United States v. Booth, 309 F.3d 566 (9th Cir. 2002).  Wire fraud defendant offers polygraph to show he did not harbor fraudulent intent.  District court excludes polygraph and jury convicts.  Exclusion affirmed.  District court properly excluded polygraph evidence under Fed. R. Evid. 704(b), because it was offered to disprove mens rea.  No Daubert hearing was required, because district courts may exclude polygraph evidence under any applicable rule, without analyzing all other possible bases for exclusion.

Miranda v. Clark County, 279 F.3d 1102 (9th Cir. 2002), overruled on rehearing en banc, 319 F.3d 465 (9th Cir.), cert. denied, 540 U.S. 814 (2003).  Roberto Hernandez Miranda is represented in Nevada state court proceedings by county public defender's office.  Office has alleged policy of administering polygraphs to its clients to aid in decisions about allocation of scarce public defender resources.  Miranda performs poorly on polygraph.  Represented at trial by rookie in capital cases, Miranda is convicted and sentenced to death.  Miranda continues to protest vigorously that he is innocent, and pursues various appellate remedies.  After fourteen years of incarceration, Nevada Supreme Court concludes that Miranda received ineffective assistance of counsel at trial and overturns conviction.  State declines to reprosecute, and Miranda is released from jail.  Miranda sues county and the public defenders under section 1983, based in part on alleged polygraph policy.  District court dismisses his claims.  Affirmed by panel.  Claim against rookie public defender must be dismissed because attorneys performing function of representing clients as public defenders do not act under color of state law.  As for claims against public defender's office and county, Miranda admits that public defenders may make discretionary decisions allocating resources and fails to explain why polygraph results may not constitutionally be one factor in such decisions.  Indeed, use of polygraphs at trial is constitutional under Scheffer, and so their use by public defender's office in aid of administrative decisions clearly is not constitutionally suspect.  Reversed on rehearing en banc.  Unconstitutional for polygraph results to be determinative in such circumstances.

United States v. Skavinsky, No. 00-10153 (9th Cir. July 12, 2001) (unpublished).  Criminal defendant offers exculpatory polygraph.  District court excludes it under Fed. R. Evid. 403 and 702Exclusion affirmedOn appeal, defendant challenges exclusion under Rule 702, but not under Rule 403, which is sufficient basis by itself for district court's decision.  Trial courts will rarely be held to have abused discretion in refusing to admit polygraph evidence. 

United States v. Froelich, No. 00-10222 (9th Cir. May 18, 2001) (unpublished), cert. denied, 534 U.S. 939 (2001).  Trial court refuses to admit criminal defendant's unstipulated polygraph evidence.  Exclusion affirmedDaubert hearings are not required in every case where unstipulated polygraph evidence is tendered.  It is unfortunate that district court did not articulate reasons for rejecting polygraph evidence.  However, proponent bears burden of prima facie showing that evidence satisfies Daubert, and defendant attempted such showing only with respect to polygraphy in general, untethered to methods used in this case.

United States v. Benavidez-Benavidez, 217 F.3d 720 (9th Cir. 2000).  Criminal defendant offers exculpatory police polygraph.  Excluded by trial court, after extensive Daubert hearings, under Fed. R. Evid. 403, 702, and 704(b).   Affirmed.  District courts have wide discretion in refusing to admit polygraphs and will "rarely" be held to abuse their discretion in doing so.  Courts are free to reject polygraph evidence based on any applicable rule of evidence.  No need to conduct Daubert hearing in every (polygraph) case.

United States v. Campos, 217 F.3d 707 (9th Cir.), cert. denied, 531 U.S. 952 (2000).  Criminal defendant offers police polygraph to show she did not know drugs were in van.  Exclusion affirmed.  Unstipulated polygraph evidence going to ultimate issue of mens rea is inadmissible under Rule 704(b).   Reliability of polygraph under Daubert therefore moot.

United States v. Yagin, No. 99-15584 (9th Cir. Feb. 8, 2000) (unpublished).  Convict raises ineffective assistance claim, alleging attorney should have offered unstipulated exculpatory polygraph.  Held: No ineffective assistance, because polygraph was inadmissible per se at time of trial in 1993, and district court expressly stated it would have exercised any discretion to exclude polygraph if offered.

United States v. Cordoba, 194 F.3d 1053 (9th Cir. 1999), cert. denied, 529 U.S. 1081 (2000).  Criminal defendant offers exculpatory polygraph.  Excluded by trial court after Daubert hearings under Rules 702 and 403.  AffirmedDaubert overruled prior Ninth Circuit rule of per se exclusion.  However, district court did not abuse discretion in excluding polygraph under Rules 702 or 403.  Lengthy analysis of polygraphyís demerits.

United States v. Reed, 147 F.3d 1178 (9th Cir. 1998).  Criminal defendant offers exculpatory polygraph.  Excluded by district court under Fed. R. Evid. 403.  Affirmed.  Trial court did not abuse discretion in failing to conduct Daubert hearing because polygraph was permissibly excluded under Rule 403 (citing Scheffer).

United States v. Apperson, 441 F.3d 1162 (10th Cir. 2006).  District court grants prosecution's motion in limine to bar defendant from introducing evidence that prosecution's informant failed polygraph.  Jury convicts.  Exclusion affirmed.  Even if polygraph had satisfied Daubert, trial court had discretion to exclude it under Fed. R. Evid. 403.

Jones v. Geneva Pharms., Inc., No. 04-1079 (10th Cir. June 1, 2005) (unpublished).  Plaintiff in age discrimination suit seeks to introduce evidence that she offered to take polygraph, without offering test's results or testimony from polygrapher.  Trial court grant's defendant's motion in limine.  Jury finds for defendant and plaintiff appeals.  Exclusion affirmed.  Value of proffered evidence would have depended on assumption that polygraph testing is reliable, which plaintiff made no attempt to establish.  Polygraph testimony is generally inadmissible within Tenth Circuit, and trial court did not abuse its discretion in concluding that testimony's probative value was outweighed by danger of prejudicial effect.

United States v. Walters, No. 00-3307 (10th Cir. Dec. 7, 2001) (unpublished).  Criminal defendant stipulates to admissibility of polygraph before test but objects when unfavorable test results are offered.  District court conducts Daubert hearing and concludes that polygrapher has offered sufficient defense of polygraph exam's reliability.  District court also declines to exclude evidence as more prejudicial than probative.  Admissibility affirmed.  Defendant did not present any evidence to rebut polygrapher's testimony re methodology, and in fact had stipulated to its admissibility.  Moreover, district court crafted lengthy jury instruction to prevent jurors from giving undue weight to polygraph results.  District court did not abuse discretion in Daubert analysis or in refusing to exclude testimony as unduly prejudicial.

United States v. Call, 129 F.3d 1402 (10th Cir. 1997), cert. denied, 524 U.S. 906 (1998).  Criminal defendant offers defense-commissioned exculpatory polygraph and requests Daubert hearing.  Excluded by district court without a hearing.  AffirmedDaubert applies to polygraph evidence, but this holding "does not suggest a newfound enthusiasm for polygraph evidence."  District court did not abuse discretion in concluding that polygraphy was unreliable.  Failure to hold hearing immaterial because evidence was permissibly excluded under Rule 403.

United States v. Henderson, 409 F.3d 1293 (11th Cir. 2005), cert. denied, ___ S. Ct. ___ (2006).  Criminal defendant offers corroborative polygraph test.  District court adopts magistrate's ruling that polygraph evidence should be excluded as unreliable.  Jury convicts and defendant appeals.  Exclusion affirmed.  It is true that in United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989) (en banc), it was held that Frye did not render polygraph testimony inadmissible per se, when offered to impeach or corroborate testimony of witness at trial.  But after Supreme Court's subsequent decision in Daubert, Piccinonna does not preclude trial courts from finding, in their discretion, that polygraph evidence is unreliable.

United States v. Gilliard, 133 F.3d 809 (11th Cir. 1998).  Criminal defendant offers privately commissioned exculpatory polygraph.  Excluded by district court, after Daubert hearings, under Rule 702 and (alternatively) Rule 403.  Affirmed.  Citing advances in field, Eleventh Circuit had abrogated its per se rule against polygraph evidence years before Daubert was decided.  Polygraph evidence may be offered to impeach or corroborate, providing proponent notifies opposition and provides opportunity for opposition to conduct its own polygraph of subject, but polygraphy remains subject to exclusion under applicable evidentiary rules (including Daubert).  District court did not abuse discretion in excluding evidence under Rule 702 or Rule 403.   Lengthy discussion of Daubert factors.

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