IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

-vs- No. xxxxxxxxxxx

xxxxxxxxxxxxxxxx,

Defendant.

MOTION FOR ADMISSION OF EXPERT OPINION

EVIDENCE REGARDING POLYGRAPH RESULTS

Defendant, xxxxxxxxxxxxxx, by his counsel, respectfully moves the Court for a pretrial evidentiary hearing and determination regarding the admissibility of certain polygraph results pursuant to Fed. R. Evid. P. 104, 402, 702-705, Daubert v. Merrell Dow Pharmaceuticals, Inc. ___ U.S. ___, 113 S. Ct. 2786 (1993), and the Fifth and Sixth Amendments to the United States Constitution. As grounds, defendant states:

1. Defendant has been indicted on several counts of willful tax evasion by allegedly intentionally filing returns which underreported his income.

2. There are certain items of income which experts now conclude should have been reported on the income tax returns. The only issue is whether the "willful" mens rea exists, i.e., whether defendant knew the returns prepared by his accountant that he signed and forwarded to the Internal Revenue Service omitted taxable income which should have been set forth on the forms.

3. Defendant was administered a polygraph examination by Dr. David C. Raskin, Ph.D., professor of psychophysiology at the University of Utah, on his knowledge and intent regarding the unreported items. Dr. Raskin concluded that defendant was truthful in his statements that he did not realize his returns underreported his taxable income. See Exhibit "C" to the accompanying memorandum of points and authorities.

4. Counsel had previously provided the results of the polygraph examination and all related materials to the United States Attorney's office, and further advised that the defense would offer the results as expert evidence at the trial of this cause. Counsel for the government have advised the defense that introduction of the evidence will be opposed. All counsel have conferred and agreed that, given the potential disruption of the trial and the potential length and complexity of the foundational hearing on admissibility of the polygraph testimony, the most appropriate procedure would be to alert the court to the existence of the controversy over the admissibility of this evidence, and to request a pretrial hearing at which the court could consider the evidence and the legal issues surrounding admissibility. The defense agreed to present the controversy to the court in the form of this motion for admission of the scientific evidence.

5. The testimony is admissible expert testimony because it is scientific testimony, grounded in the methods and procedures of science, that will assist the trier of fact to understand or determine facts and issues concerning defendant's intent and knowledge. The testimony is based on scientific knowledge, relating to hypotheses that can be and have been tested, techniques that have been subjected to peer review and publication, subject to reasonably acceptable potential rates of error, subject to standards controlling the techniques operation, and sufficiently accepted within the relevant scientific polygraph community.

6. The right to a fair trial guaranteed by the Fifth Amendment and the right to produce witnesses guaranteed by the Sixth Amendment support admission of this relevant and helpful exculpatory evidence.

7. This motion is supported by the accompanying memorandum of points and authorities and the evidence to be presented at the hearing.

FREEDMAN, BOYD, DANIELS, PEIFER

HOLLANDER, GUTTMANN & GOLDBERG, P.A.

By:_______________________________

Charles W. Daniels

David A. Freedman

P.O. Box 25326

Albuquerque, NM 87125

Telephone: (505) 842-9960

Attorneys for Defendant

I hereby certify that a copy of the

foregoing pleading was mailed to

opposing counsel of record this

_____ day of December, 1994.

________________________

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