IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
-vs- xxxxxxxxxxxxxx
xxxxxxxxxxxxxxxx,
Defendant.
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANT'S MOTION FOR ADMISSION
OF EXPERT OPINION EVIDENCE REGARDING POLYGRAPH RESULTS
i. factual context.
The indictment accuses xxxxxxx, an Albuquerque dentist, of willfully under reporting income and thereby evading payment of income taxes. The alleged unreported income relates to reimbursement to him of office rent and hygienists' salaries by other dentists working in his office complex. There is no serious issue in this case that the monies involved constituted reportable income. The central issue in this case relates to whether Dr. xxxxxxxx realized that reportable income had not been included on the tax returns prepared by his accountant. The defense evidence will be that Dr. xxxxxxxx did not realize this fact until much later, during the IRS audit herein, when his accountant informed him the monies should have been reported as income. The question whether Dr. xxxxxxxx concealed information about this income from his accountant (he did not) will be addressed in part by the accountant, xxxxxxxx, at trial, and is summarized in the affidavit of Mr. xxxxxxxx attached hereto as Exhibit "A." The sole remaining issue is one of Dr. xxxxxxxx's intent, essentially whether he realized at the time the returns were filed that the returns underreported taxable income.
The issue is a crucial one. In Cheek v. United States, 489 U.S. 192, 111 S. Ct. 604 (1991), the United States Supreme Court held that the "willfulness" element requires that the jury determine whether the evidence shows, inter alia, that the defendant knew of his lawful duty regarding proper tax reporting and payment and that he voluntarily and intentionally violated that duty.
Dr. xxxxxxxx was the subject of a polygraph examination administered to him on August 10, 1994, by Dr. David Raskin, a qualified and experienced polygraph examiner, a laboratory and field researcher on the subject, a professor of psychology at the University of Utah and one of the world's foremost authorities on the scientific basis and applied use of polygraphs. A copy of Dr. Raskin's curriculum vitae is attached hereto as Exhibit "B." The purpose of the examination was to determine whether or not Dr. xxxxxxxx intentionally attempted to evade the payment of taxes. Dr. xxxxxxxx passed the examination with results that Dr. Raskin determined to be conclusively truthful. A summary of that examination is attached hereto as Exhibit "C." A copy of the summary, the polygraph charts, and a tape recording of the pretest interview and the polygraph test have previously been furnished to the government. At the evidentiary hearing requested by this motion, Defendant will introduce testimony from Dr. Raskin regarding his qualifications, the reliability of polygraph evidence, the scientific basis for the evidence and other pertinent criteria relevant to the determination of the admissibility of scientific polygraph evidence.
This evidence will be presented to comply with the new standards articulated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., ____ U.S. ____, 113 S. Ct. 2786 (1993), governing the admissibility of scientific evidence in federal trials.
ii. the new daubert standard and the demise of frye.
Admissibility of not only polygraph evidence, but scientific evidence in general has been governed in the federal courts for over half a century by the principles of the opinion in Frye v. United States, 293 F.2d 1013 (1923). Frye ruled inadmissible a simple and crude precursor to the modern polygraph test, on the ground that expert opinion based on a scientific technique would be inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community.
In large part, Frye has kept polygraph evidence out of federal trials, despite the development of knowledge about the scientific principles underlying the modern polygraph, and the extensive testing and development of techniques to apply that scientific knowledge.
Last year, the United States Supreme Court finally put Frye to rest. A Ninth Circuit opinion had upheld the exclusion of expert scientific testimony regarding whether birth defects were caused by an anti-nausea drug. The Ninth Circuit based its decision on Frye and the fact that the testimony of the expert was not based on principles sufficiently established to have general acceptance in the relevant scientific community.
The Supreme Court granted certiorari, "in light of sharp divisions among the courts regarding the proper standard for the admission of expert testimony." 113 S. Ct. at 2792. The Supreme Court reversed the Ninth Circuit and held that the Federal Rules of Evidence, not Frye, provided the standards for the admissibility of expert testimony. The Court stated that although the Frye "general acceptance" test had historically been the dominant standard for determining the admissibility of novel scientific evidence at trial, Fed. R. Evid. 702 superseded Frye and now governs admission of expert testimony. The rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules, including their "general approach of relaxing the traditional barriers to `opinion' testimony." 113 S. Ct. at 2793.
The Court went on to note that its decision does not mean that there are no limits on the admissibility of purportedly scientific evidence. Indeed, the Court referenced numerous criteria which may assist the trial court in the exercise of its discretion. The Court observed:
The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity--and thus the evidentiary relevance and reliability--of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.113 S. Ct. at 2797.
The Supreme Court's explicit rejection of Frye and the opinions of those courts which relied on its reasoning necessarily mandates a fresh look at the scientific realities which call for admission of the polygraph examination in this case.
In the Tenth Circuit, prior to Daubert, polygraphs have historically not been admitted because of insufficient evidentiary showing of its reliability there was no per se rule of exclusion regarding polygraph test results. U.S. v. Hall, 805 F.2d 1410, 1416 (10th Cir. 1986) (Polygraph inadmissible to show that one is truthful, although "in a proper case, the evidence might be admissible,"); quoting U.S. v. Wainwright, infra, with approval, U.S. v. Wainwright, 413 F.2d 796 (10th Cir. 1969) cert. denied, 396 U.S. 1009 (1969) (Polygraph not admitted because defendant produced expert testimony to lay a predicate as to developing scientific standards and the probative value of the evidence, i.e., that the proposed test is an accepted one in the profession and that it has a reasonable measure of precision in its indications). There have been no post-Daubert decisions in the Tenth Circuit applying the Daubert standards to resolve the issue either way.
An examination of those standards demonstrates that the polygraph evidence in this case should be admitted for the jury's consideration.
iii. the daubert considerations and standards summarized.
The salient points from Daubert which are applicable in this case are:
The Daubert court emphasized that the inquiry is a flexible one, and that none of the factors should be considered requisite or controlling. Daubert at 2797. Every single one of those factors, however, supports admission of the polygraph evidence in this case.
iv. applying the daubert standards to this polygraph evidence.
A. The Evidence is Clearly Relevant Under Rule 401.
Without the polygraph evidence relating to Dr. xxxxxxxx's state of mind regarding the omission of certain monies as reportable income on his returns, the parties and the jury will be left to deal with indirect inferences and speculations about whether the omission was intentional, or the result of ignorance and innocent miscommunication between Dr. xxxxxxxx and his accountant. (1) The evidence is therefore not only relevant, but of critical importance in a fair determination of the guilt or innocence of Dr. xxxxxxxx. Subject to Daubert's "scientific knowledge" inquiry being satisfied, expert testimony that will shed light on his state of mind surely should be admissible for the jury's consideration, along with all other relevant evidence.
The fact that polygraph results contained relevant information surely cannot be in dispute. The four relevant questions and the answers to them, which Dr. Raskin determined to be conclusively truthful, were specifically as follows:
R1. WAS IT YOUR
UNDERSTANDING BEFORE THE IRS AUDIT BEGAN THAT ALL REQUIRED TAXES HAD BEEN PAID ON THE RENT
AND SALARY PAYMENTS YOU HAD RECEIVED FROM OTHER DENTISTS? Answered "Yes"
R2. DID YOU KNOWINGLY
ATTEMPT TO AVOID INCOME TAXES BY NOT REPORTING THE RENT AND SALARY PAYMENTS YOU HAD
RECEIVED FROM OTHER DENTISTS? Answered "No"
R3. DID YOU FAIL TO REPORT
THOSE SALARY AND RENT PAYMENTS FROM OTHER DENTISTS IN ORDER TO REDUCE THE INCOME TAXES YOU
WOULD HAVE TO PAY? Answered "No"
R4. WHEN HAROLD xxxxxxxx TOLD YOU THAT YOU HAD TO REPORT THOSE RENT AND SALARY PAYMENTS FROM OTHER DENTISTS, WAS THAT THE FIRST TIME YOU KNEW YOU SHOULD HAVE REPORTED THEM? Answered "Yes"
See defendant's Exhibit "C", p. 2. The truthfulness of the answers to those questions is as relevant as Dr. xxxxxxxx's own testimony on the subject. It would be inconceivable that the government could prevent Dr. xxxxxxxx from answering those same questions before the jury at trial, on the ground that the questions and answers were irrelevant to the issues in the case. They are the core factual issues in the case, and both Dr. xxxxxxxx's testimony on the subject and the truthfulness of his testimony are relevant considerations for the jury.
The evidence far exceeds Rule 401's simple relevancy requirement that the evidence have "any tendency" to make the existence of "any fact" that is of consequence to the determination of the action (i.e., whether Dr. xxxxxxxx intended to evade taxes or conceal reportable income) "more probable or less probable" than it would be without the evidence. Dr. Raskin's testimony will establish that the confidence in the truthfulness of Dr. xxxxxxxx's answers to the polygraph questions exceeds 90%.
B. The Control Question Polygraph Examination Administered in this Case has its Basis in Scientific Principles and Methodology.
The evidence will confirm that well-established scientific principles provide the basis for the polygraph test in this case. The parent science which provides the scientific basis for the modern control question polygraph is the scientific field of psychophysiology, a recognized specialty within the field of psychology. It is based on and applies scientific principles. The "polygraph" instrument was not invented for, nor is limited to, use in detection of deception. It is a scientific instrument long used in the scientific field of psychophysiology to measure and simultaneously record a number of reactions to measure changes in peoples' bodies which relate to psychological states.
The scientific principles of psychophysiology underlying the modern control question polygraph relate to the recognized "fight-or-flight" involuntary physiological reactions that are produced by the autonomic nervous system of the human body in response to perceived psychological or physical threats. The scientific hypothesis underlying the control question polygraph is that the "fight-or-flight" reactions generated internally when a test subject is aware he is telling a lie can be measured on a polygraph and compared to his own reaction to a known lie in a manner that can provide a scientific basis for an expert opinion as to whether the subject is being knowingly deceptive as to the inquiry in question.
As the following points of this brief discuss, the methodology of testing that hypothesis has been conducted according to scientific principles and fully meets and exceeds the Daubert standards for admissibility.
C. The Application of the Underlying Scientific Principles
to the Control Question Polygraph Can Be and Has Been Tested.
The scientific method of testing a hypothesis is well understood. It begins with a hypothesis based on scientific principles or reasoning, and the use of tests, whether laboratory or field, to determine whether the hypothesis works in actual practice. Daubert, supra at 2795.
At the pretrial hearing, the defendant will present evidence concerning the many tests conducted in recent years by the scientists involved in testing the control question polygraph hypotheses. The evidence will establish that these are classic textbook models of application of the scientific method to test scientific hypotheses. Controlled laboratory studies have been conducted with a variety of test subjects, including college students, convicted felons, psychopaths, drug users and others in the general population. Many field studies using real-life cases have also been conducted. Experimental laboratory and field testing has occurred between 2,000 and 3,000 times, with dozens of the results reported in publications. In fact, Dr. Raskin, the polygrapher in this case, has personally been involved in 15 or so of these studies.
D. The Control Question Polygraph Technique Has Been
Subjected to Peer Review and Publication
Although the Daubert opinion points out that publication "is not a sine qua non of admissibility; it does not necessarily correspond with reliability, . . . submission to the scrutiny of the scientific community is a component of 'good science' in part because it increases the likelihood that substantive flaws in methodology will be detected." Daubert, supra, 113 S. Ct. at 2797. "The fact of publication (or lack thereof) in a peer-reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised." Ibid.
If one were to look only at the resume of Dr. Raskin and the bibliography attached hereto as Exhibit "D", the evidence would be overwhelming that extensive publication and review by peers in the profession has taken place concerning the testing of the control question polygraph technique.
In addition, the evidence will illustrate the many exchanges within the scientific community regarding the scientific testing that has been conducted and the conclusions reached. Numerous laboratory and field studies have been published, and they have been subjected to both informal and formal peer review. "The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Daubert, supra, at 2797. Moreover, Dr. Raskin's testimony at the pretrial hearing will support the conclusions of most researchers in the field, that the tests prove the scientific validity of the hypotheses.
E. The Potential Rate of Error is Well Within Evidentiary Standards.
The evidence to be presented before this Court will establish that the accuracy rate of a polygraph far exceeds the "more probable than not" relevance standard of Rule 401 and is more reliable than a great deal of expert opinion testimony traditionally and routinely submitted to juries in federal and state courts throughout the nation. The rates of accuracy compare favorably with criminalistics and other forms of evidence and are higher than eyewitness identification. The evidence will establish that the accuracy rate of the kind of control question polygraph administered in this case is extremely high, in excess of 90%.
Neither Daubert nor any other test of admissibility of expert opinion evidence requires anything approaching near infallibility. If so, very few expert opinions would be introduced in evidence. Daubert merely required that the Court "ordinarily should consider" the known or potential rate of error, citing with approval United States v. Smith, 869 F.2d 348, 353-354 (7th Cir. 1989). Daubert, supra at 2797. Smith determined that spectrographic voice identification opinion evidence should be admitted for the jury's consideration, despite the fact that "the field itself was controversial and that some studies had found high error rates." 869 F.2d at 353. The Court determined that the fact there were FBI studies showing a .31% rate of false identifications and a .53% rate of false eliminations and other studies showing corresponding rates of 62.7% and 83.33% did not militate against admissibility. The proponent had presented a different University--State Police study concluding that the rates were 2.4% and 6% and another claiming no errors at all. The court said," a thorough examination of the record reveals both that this technique is not 100% infallible and that the entire scientific community does not support it." 869 F.2d at 354. As the court noted, however, it was proper to let the jury weigh the evidence and determine the extent to which it would or would not rely on the expert testimony, with the aid of cross-examination and argument. Interestingly, the Smith court compared admissibility of the voice identification evidence to polygraph test results, which "long have been admissible in this [7th] circuit under the sound discretion of the trial judge," even though both spectrographic evidence and polygraph evidence are subject to disagreements about reliability. 869 F.2d 353.
F. The Polygraph Community Recognizes Standards as to the Control Question Technique's Operation.
Another non-controlling factor discussed in Daubert is the extent to which standards exist and are maintained with regard to the operation of the scientific technique in question. At the pretrial hearing, the evidence will clearly establish that the most commonly accepted technique in the polygraph community is the control question polygraph. The American Polygraphy Association inspects and certifies polygraph schools in the country, at least half the states (including New Mexico) license or certify polygraph examiners, and experienced examiners using the standard techniques show a high degree of correlation in their conclusions about truthfulness or untruthfulness with regard to the test.
This is a case in point. Dr. Raskin scored the mechanical computations objectively on the graphs alone. He assessed the polygraph as a +29 under a system in which a +6 is required for a conclusively truthful result. Dr. Raskin will testify regarding the standards that control the technique's operation and the record will establish that professional standards exist and are maintained.
G. The Control Question Polygraph Technique has a High Degree of Acceptance in the Relevant Scientific Community.
The entire thrust of the Daubert opinion, in overruling Frye, was that "general acceptance" within the scientific community is not a prerequisite to admissibility. However, the Court said that the degree of acceptance in the community can have a bearing on the inquiry. Widespread acceptance may militate toward admissibility, while a known technique that has been able to attract only "minimal" support within the community may properly be viewed with skepticism. Daubert, supra at 2797. The Daubert case itself related to the admissibility of expert opinions that were not supported by general acceptance within the scientific community. Nonetheless, the court determined that there was a sufficient scientific basis for the theories to justify their admission to the jury for its consideration.
In the case at bar, the evidence at the pretrial hearing will show that the control question polygraph technique is accepted as scientific and reliable by a majority of the relevant scientific community, whether that be defined as all persons in the polygraph field, or simply the narrower profession of psychophysiologists.
With regard to the former, every major federal, state and local law enforcement agency uses the control question techniques extensively and relies on them. With regard to the narrower group of psychophysiologists, two major surveys of the Society for Psychophysiological Research, the professional group for the parent science underlying the polygraph, demonstrated that a clear majority of those polled in both 1982 and 1993 supported the proposition that the polygraph was a useful tool to be considered along with other evidence.
H. Empirical Polygraph Experience Demonstrates that
Polygraph Evidence Will Not Wreak Havok in the Courtroom.
Given the clear admissibility of this science-based expert testimony under Rule 702 and Daubert, the only conceivable argument that could be offered to exclude the evidence on any other ground would be the recurring vague claim that polygraphs will bamboozle and confuse juries and make them ignore any other evidence. Much of the traditional opposition to polygraph testimony appears to be based on fears it will wreak havoc with the fact-finding process. Experience shows the contrary. New Mexico, the state in which this federal district lies, is not unfamiliar with polygraph evidence, which has routinely been admissible for many years with no adverse effects. In State v. Dorsey, 88 N.M. 184, 539 P.2d 204 (1975), the New Mexico Supreme Court held that polygraph tests were admissible under Rule 702 of the New Mexico Rules of Evidence, which was taken from the federal rules. The court also found that admissibility was required by Rules 401, 402 and 703. Essentially, the New Mexico courts arrived at the Daubert result in favor of Rule 702 some 18 years before the United States Supreme Court reached that issue.
In the last two decades, the most reliable field study imaginable has been conducted in real courtrooms with real cases before real juries. The long experience in New Mexico, demonstrates that polygraphs have been routinely dealt with without causing any disruption to the trial process or confusion to juries. In addition, experience in the State of Wisconsin confirmed that juries were not overwhelmed by polygraphs and determined that the polygraphs were useful and helpful in the cases that were tried before them. There is not a single study which supports the proposition that juries will have any more difficulty with polygraph evidence than they have with psychiatric testimony, medical testimony, accident reconstructionists, handwriting examiners, nuclear scientists or the myriad varieties of expert witnesses that they presently are permitted to hear in trials every day. Finally, jury simulation studies show that jurors tend to be cautious in dealing with polygraph evidence, just as they are with other kinds of evidence.
There is no reason why polygraph evidence cannot be dealt with by the jury and judge in a federal court. The testimony regarding the administration and scoring of the test is easily subject to countering testimony, if there is anything to counter. It can be subjected to cross-examination, just as any other evidence, and the objective control question numerical scoring technique allows other examiners to scrutinize the administration of the test and the charts produced to agree or disagree with the result reached by the examining polygrapher. As the United States Supreme Court stated in Daubert:
Respondent expresses apprehension that abandonment of "general acceptance" as the exclusive requirement for admission will result in a "free-for-all" in which befuddled juries are confounded by absurd and irrational pseudo-scientific assertions. In this regard, respondent seems to us to be overly pessimistic about the capabilities of the jury, and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. . . . These conventional devices, rather than wholesale exclusion under an uncompromising "general acceptance" test are the appropriate safeguards when the basis of scientific testimony meets the standards of Rule 702.
113 S. Ct. at 2798.
This approach is equally applicable to any proposed Rule 403 analysis. It would be sheer and unsupported speculation to argue that the jury should not know of the polygraph results because the jurors would somehow be mentally or emotionally unable to assess it in the same manner they consider other evidence, both complex and non-complex. It is certainly less confusing than testimony about a Rorschach or MMPI test, or a clash between Freudian and Jungian theories, or DNA theories.
Finally, the probative value of this evidence bearing on the elusive issue of intent is as great as any other evidence to be presented in this case and probably more so. Rule 403 does not justify keeping this key evidence from the jury.
v. admission of the polygraph evidence is required by the fifth and sixth amendments.
Not only should the polygraph evidence be admitted pursuant to Rule 702 and the Daubert opinion, the Fifth Amendment right to a fair trial and the Sixth Amendment right to produce favorable witnesses on behalf of the accused call for admission of the truthful polygraph test on the critical issue of intent in this case. These constitutional principles were recognized in the post-Daubert case of United States v. Williams, 39 M.J. 555 (1994). The U.S. Army Court of Military Review in that case specifically held that a rule of evidence flatly precluding admission of polygraph testimony was unconstitutional. The total ban on admissibility of polygraph evidence under the evidentiary rule had been enacted to try to avoid the effect of United States v. Gipson, 24 M.J. 246 (C.M.A. 1987), in which the United States Court of Military Appeals, in an opinion tracking the analysis that would later be outlined in the Daubert opinion, determined that polygraph evidence should be admissible under the federal rules relating to relevance and expert opinion.
CONCLUSION
Seventy years of legal history have called for the replacement of the outdated Frye standard. The United States Supreme Court, in Daubert, has accomplished this result. During those same 70 years, research, study and refinement of the application of scientific principles underlying the modern polygraph examination have likewise taken us far beyond the crude polygraph rejected in the Frye case itself. The polygraph examination in this case, based in the modern scientific research, objectively meets all standards of the Daubert opinion and the rules it interprets.
There is no rational or lawful basis for excluding the polygraph examination in this case, and both justice and law call for its admission.
Respectfully submitted,
FREEDMAN, BOYD, DANIELS, PEIFER,
HOLLANDER, GUTTMANN & GOLDBERG, P.A.
By____________________________
Charles W. Daniels
david a. freedman
20 First Plaza, Suite 700
Albuquerque, NM 87102
(505) 842-9960
Counsel for Defendant
William E. xxxxxxxx
I hereby certify that a copy of the
foregoing pleading was mailed to
opposing counsel this ___ day of
December, 1994.
__________________________
C:\wwwfpd\polygra1.wpd
1. The government makes no claim of wrongdoing or collusion on the part of the accountant who handled Dr. xxxxxxxx's business and personal affairs.