Kevin F. McCoy

Assistant Federal Public Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant




UNITED STATES DISTRICT COURT



FOR THE DISTRICT OF ALASKA



UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxxxxxxx

)

Plaintiff, )

) IN LIMINE MOTION TO

) INTRODUCE POLYGRAPH

vs. ) EVIDENCE, OR,

) IN THE ALTERNATIVE,

xxxxxxxxxxxxxx, ) REQUEST FOR DAUBERT HEARING

)

Defendant. )

____________________________________)


xxxxxxxx asks this court in limine for an order admitting polygraph evidence at trial. In the alternative, Ms. xxxxxx asks for a pretrial evidentiary hearing to determine its admissibility pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

This motion is submitted pursuant to D.Ak.L.R. 7.1 and is based upon the Fifth Amendment, the Sixth amendment, Fed.R.Evid. 702, and upon the Memorandum of Law filed herewith.

A period of excludable delay under 18 U.S.C. § 3161(h)(1)(F) may occur as a result of the filing of this motion.

Dated at Anchorage, Alaska this 15th day of January, 1999.

 

_____________________________

KEVIN F. McCOY

Assistant Federal Defender



I hereby certify that on the _______ day of January,

1999, I hand delivered a copy of IN LIMINE

MOTION TO INTRODUCE POLYGRAPH

EVIDENCE, OR, IN THE ALTERNATIVE,

REQUEST FOR DAUBERT HEARING;

MEMORANDUM OF LAW IN SUPPORT

OF IN LIMINE MOTION TO INTRODUCE

POLYGRAPH EVIDENCE, OR, IN THE

ALTERNATIVE, REQUEST FOR DAUBERT

HEARING to Stephan Collins, Assistant U.S.

Attorney, U.S. Attorney's Office, 222 W.

Seventh Avenue, Anchorage, AK 99513.





______________________________________

Lynn M. Wright



Kevin F. McCoy

Assistant Federal Public Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, AK 99501

(907) 271-2277



Attorney for Defendant









UNITED STATES DISTRICT COURT



FOR THE DISTRICT OF ALASKA



UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxxxx

Plaintiff, ) MEMORANDUM OF LAW

) IN SUPPORT OF

) IN LIMINE MOTION TO

vs. ) INTRODUCE POLYGRAPH

) EVIDENCE, OR,

xxxxxxxxxxxxxxxx xxxxxx, ) IN THE ALTERNATIVE,

) REQUEST FOR DAUBERT HEARING

Defendant. )

____________________________________)



xxxxxx submits this memorandum of law as support for her request that polygraph evidence be admitted at trial.

I. Introduction.

On December 5, 1998, Ms. xxxxxx took and resoundingly passed a polygraph examination administered by David C. Raskin, Ph.D., an emeritus professor of psychology with the University of Utah and a recognized expert in the field of polygraphy. Ms. xxxxxx, through this motion and by letter, has notified the government about the results of this examination. Although not required by law, Ms. xxxxxx agrees to submit to a government polygraph examination in accordance with the conditions set forth in the letter. See Exhibit A. Regardless of the government's response to her offer, Ms. xxxxxx asks for an order admitting the results of her polygraph examination.

II. Factual Background.

To better understand the importance of this evidence, it is first necessary to review Ms. xxxxxx's background and the nature of the government investigation which led to the filing of the information in this case.

A. Ms. xxxxxx's Background.

xxxxxxxxx xxxxxx is a 35 year old Athabascan Native Women . She has lived in Holy Cross, Alaska virtually all of her life. Holy Cross is an Alaska Native Village on the Yukon River. It is a remote village unconnected to the Alaska Road System. Ms. xxxxxx has never been outside of Alaska and only travels to Anchorage infrequently.

She has been married to David xxxxxx since May 31, 1985 and they have five children ages 2 to 13. She and her husband are respected members of the Holy Cross community. They have maintained continuous sobriety since March of 1991. (1) She has served on the Holy Cross City Council since 1995 and was elected Mayor in 1997.

This case represents her first contact with the criminal justice system.

B. The Postal Service Investigation.

The Holy Cross Post Office ordinarily employs three people; a postmaster/mistress, a PTF (2) clerk, and a PMR (3) clerk. The PTF clerk and the PMR clerk fill in whenever the postmaster/mistress is unavailable and have access to postal funds and stamp stock.

On August 6, 1997, an audit of the Holy Cross Post Office indicated that a $2,562.67 postal fund shortage existed in the Holy Cross Post Office. The Postal Service never determined who, if anyone, took this money. Regardless, Ms. xxxxxx was told that as Postmistress she was responsible for the loss. Consequently, she agreed to a $100.00 bi-weekly deduction from her paycheck.

On July 8, 1998, an audit of the Holy Cross Post Office disclosed a $593.75 shortage. The Postal Service assigned Inspector Byrne Bennett to investigate this shortage. Mr. Bennett arrived in Holy Cross by plane on July 29, 1998. Mr. Bennett went to the Post Office and immediately conducted an audit. The audit revealed an overage of approximately $35.00. Notwithstanding, Mr. Bennett believed that Ms. xxxxxx was responsible for the earlier shortages. At the end of the interview, Ms. xxxxxx signed a ten sentence statement in which she admitted responsibility for the theft of postal funds. Mr. Bennett left by plane the same day and Ms. xxxxxx immediately repudiated the statement. (4)

C. This Case Will Turn On Whether Constance xxxxxx Falsely Admitted to Something She Did Not Do.

Ms. xxxxxx will testify at trial that she has never taken postal funds or postal stock from the Holy Cross Post Office. This case will require the jury to evaluate this testimony in conjunction with evidence of her statement to Postal Inspector Bennett and the circumstances that led to the taking of this statement. The trial will pit Ms. xxxxxx, who denies taking any postal funds or postal stock, against government agents who believe, to the exclusion of all others, that she did. This process cannot be complete without evidence which effectively corroborates Ms. xxxxxx's claim that she had nothing to do with the missing funds.

Through this motion, Ms. xxxxxx asks this court to acknowledge that the Fifth Amendment due process clause, the Sixth Amendment compulsory process clause, and the Federal Rules of Evidence require that she be allowed to present the jury with all evidence that touches upon her veracity.

III. Summary Of Legal Issues Presented.

The results of the polygraph test should be admitted into evidence. First, polygraph evidence can be shown to meet the requisite standard of scientific reliability as set down in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Once Fed.R.Evid. 702 is satisfied, the intrinsic due-process rights of a defendant to present all relevant and reliable evidence requires the admission of the polygraph results.

Significantly, as a result of the Supreme Court's holding in Daubert, the Ninth Circuit has retreated from its former position barring the admission of unstipulated polygraph evidence established in Brown v. Darcy, 783 F.2d 1389, 1396 n. 13 (9th Cir. 1986). See United States v. Cordoba, 104 F.3d 222 (9th Cir. 1997). In Cordoba, the defendant sought to introduce polygraph evidence and the district court excluded the evidence and failed to hold a hearing to determine whether the evidence satisfied the standard for scientific evidence established by the Supreme Court in Daubert. The defendant was convicted at trial and appealed. On appeal, the Ninth Circuit reversed the conviction and remanded the case to the district court to conduct a particularized inquiry consistent with Daubert and to determine admissibility. United States v. Cordoba, 104 F. 3d at 229.

Ms. xxxxxx now asks this Court to hold an evidentiary hearing to allow the court to conduct this particularized inquiry. At this hearing, Ms. xxxxxx will amply demonstrate that polygraph evidence satisfies requirements established in Daubert.

IV. Argument.

Polygraph Evidence Has Gained Increasing Acceptance and Admissibility in Federal Courts.

In United States v. Crumby, 895 F. Supp. 1354 (D. Ariz. 1995), the United States

District Court for the District of Arizona acknowledged that "[t]he science of polygraphy has progressed to a level of acceptance sufficient to allow the use of polygraph evidence in limited circumstances where the danger of unfair prejudice is minimized." Crumby, 895 F. Supp. at 1354 (quoting United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989)). The Crumby court offered a detailed analysis, surveying case law from all circuits and closely examining the reliability of such evidence. Ultimately, the court concluded that "polygraph evidence is reliable under Daubert to be admitted as scientific evidence under Fed.R.Evid. 702." Id. (referring to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311 (9th Cir. 1995) ("Daubert II.").

Shortly after the Arizona district court decided Crumby, a New Mexico District Court held a similar Daubert hearing and joined the Crumby court in admitting polygraph evidence. United States v. Galbreth, 908 F. Supp. 877 (D. New Mexico 1995). (5) In reaching its decision, the Galbreth court engaged in an extensive analysis of the scientific reliability of polygraph evidence. The court clearly held that polygraph evidence more than satisfies the factors set forth in Daubert that a court must consider. Ultimately, the New Mexico District Court admitted the requested polygraph evidence without limitation under Rules 702 and 403 of the Federal Rules of Evidence.

In Crumby and Galbreth, both courts recognized that the Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), unshackled the admission of polygraph results from the Frye standard and made their acceptance by federal courts much easier. The case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was in fact a case in which admission was being sought for polygraph evidence. The Frye court held that the polygraph had "not yet gained such standing and scientific recognition among physiological and psychological authorities to be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. at 1014. The "general acceptance" test controlled the admission of scientific evidence in the federal courts (and the courts of many states) until Daubert.

In Daubert, the Supreme Court rejected the Frye test as inconsistent with Federal Rule of Evidence 702, which reads: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." The Court held:

[A] rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the traditional barriers to 'opinion' testimony." [Citations omitted.] Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention "general acceptance," the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made "general acceptance" the exclusive test for admitting expert scientific testimony. That austere standard, absent from and incompatible with the Federal Rules of Evidence, should not be applied in federal trials.Id. at 2796. The Court, however, despite "relaxing the traditional barriers to opinion testimony," went on to hold that scientific evidence admitted in federal courts must satisfy a reliability test. This reliability analysis "entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id.

In performing this "gatekeeping function," the court may consider a number of factors. A first key question to be answered is whether the scientific theory or technique can be and has been tested. Id. Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Id. at 2797. Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error. Id. Finally, "general acceptance" can have a bearing on the inquiry, although it is no longer the sole criterion for acceptance. Id. The Court emphasized that there is no magic set of criteria nor any one dispositive factor: "The inquiry envisioned by Rule 702 is, we emphasize, a flexible one." Id.

The Ninth Circuit summarized how the new Daubert standard is to be applied.

The Supreme Court's opinion in Daubert focuses closely on the language of Fed.R.Evid. 702, which permits opinion testimony by experts as to matters amounting to "scientific . . . knowledge." The Court recognized, however, that knowledge in this context does not mean absolute certainty. ___U.S. at ____, 113 S.Ct. at 2795. Rather, the Court said, "in order to qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method." Id. Elsewhere in its opinion, the Court noted that Rule 702 is satisfied where the proffered testimony is "based on scientifically valid principles." Id. at ___ U.S. at ___, 113 S.Ct. at 2799. Our task, then, is to analyze not what the experts say, but what basis they have for saying it.Daubert II at 1316.

Clearly, the job for this court is not to focus on the fact that this is polygraph evidence as opposed to DNA evidence or fingerprint evidence nor to demand absolute certainty in polygraph results as a basis for admission. Rather, it is for this court to determine whether the proffered testimony has a scientific basis.

V. The Polygraph Evidence Advanced Here Is Admissible Under The Daubert Standard.

A. The Evidence is Clearly Relevant Pursuant to Rule 401.

Subject to Daubert's "scientific knowledge" inquiry being satisfied, expert testimony that will shed light on a question in issue should be admissible for the jury's consideration, along with all other relevant evidence. The fact that the polygraph results here contain relevant information surely cannot be in dispute. The credibility of Ms. xxxxxx will be the most critical issue in this case. The evidence here 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 "more probable or less probable" than it would be without the evidence.

B. The Polygraph Evidence Here is Based On Scientific Principles.

Crumby and Galbreth confirm that well-established scientific principles provide the basis for the polygraph test in this case. Crumby, 894 F. Supp. at 1358 and Galbreth, 908 F. Supp. 884-893. The parent science which provides the scientific basis for the modern polygraph is the scientific field of psycho-physiology, a recognized specialty within the field of psychology. It is based on the application of scientific principles. The "polygraph" instrument was not invented for, nor is it limited to, use in detection of deception. It is a scientific instrument long used in the scientific field of psycho-physiology, to measure and simultaneously record body changes related to psychological states. The scientific principles of psycho-physiology underlying the modern 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 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 reaction to a known lie. In this manner the polygraph can provide a scientific basis for an expert opinion as to whether the subject is being knowingly deceptive as to the inquiry in question.

C. The Underlying Scientific Principles of Polygraphs Have 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, 113 S.Ct. at 2795. As noted by the Crumby and Galbreth courts, there is ample evidence concerning the many tests conducted in recent years by scientists involved in testing the control question polygraph hypotheses. Crumby, 895 F. Supp. at 1356 and , 908 F. Supp at 891. The Crumby and Galbreth evidence established 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, and many field studies using real-life cases have also been performed. Laboratory and field testing have occurred on numerous occasions and under varied circumstances, with many of the results reported in scholarly publications.

D. Polygraph Principles and Methodology Have been Subject to Peer Review.

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 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. Id.

Again the Crumby and Galbreth courts noted there is extensive publication of scholarly articles concerning the polygraph science and technique. Crumby, 895 F. Supp. at 1358-1359 and Galbreth, 908 F. Supp. at 891. The numerous laboratory and field studies which have been published have been subjected to both informal and formal peer review. In addition, the evidence illustrates the exchanges which have taken place within the scientific community regarding polygraph methodology.

E. The Potential Rate Of Error For Polygraphs Is Within Evidentiary Standards.

Crumby and Galbreth establish that the inherent reliability of polygraph evidence exceeds that of many types of expert testimony routinely submitted to juries in federal and state courts. Crumby, 895 F. Supp. at 1359-60 and Galbreth, 908 F. Supp. at 891-892. The rates of accuracy compare favorably with other types of forensic evidence and certainly exceed that of traditional psychological testimony.

In fact, the accuracy rate of the control question polygraph like the one administered in this case is between 90 and 95 percent. Id. This Court may consider any cross-examination on the methodology used to challenge these high rates. This, however, goes to the weight of the evidence for the fact-finder, not its admissibility.

Neither Daubert nor any other test of admissibility of scientific 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, 113 S. Ct. at 2797. The court in 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." Smith, 869 F.2d at 353. The court held that the fact that various conflicting studies showed false identification rates of .31 % , 2.4 % and 62.7 % and false elimination rates variously of .53%, 6% and 83.33 %, did not militate against admissibility.

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." Id. 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 rely on the expert testimony, aided by cross-examination. Interestingly, the Smith court compared admissibility of the voice identification evidence to polygraph test results, which "long have been admissible in this [Seventh] circuit under the sound discretion of the trial judge." Id. at 353.

F. Polygraph Methodology is Accepted in the Relevant Scientific Community.

The main thrust of the Daubert opinion, in overruling the Frye test, 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 argue for admissibility, while a known technique that has been able to attract only minimal support within the community may properly be viewed with skepticism. Daubert, 113 S.Ct. at 2797.

Crumby and Galbreth demonstrate that the methodology is accepted as scientific and reliable by a majority of the relevant scientific community, whether that community is defined as all persons in the polygraph field or the profession of psycho-physiologists. Crumby, 895 F. Supp. at 1360 and Galbreth, 908 F. Supp. at 892. With regard to the former, every major federal, state and local law enforcement agency uses polygraph tests and relies on them. With regard to the narrower group of psycho-physiologists, two major surveys of the Society for Psycho-Physiological Research, the professional group for the parent science underlying the polygraph, demonstrated that a clear majority of those polled in 1993 supported the proposition that the polygraph was a useful tool. Id.

G. Polygraph Evidence Will Not Cause Havoc in the Courtroom.

Given the clear admissibility of this testimony under Rule 702 and Daubert, the only conceivable argument that could be offered to exclude the evidence would be the recurring vague claim that polygraphs will 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 subvert the fact-finding process. Experience shows the contrary.

In the state of New Mexico, polygraph evidence has routinely been admissible for many years. In State v. Dorsey, 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. The court also found that admissibility was required by Rules 401, 402 and 703. In the last two decades the most reliable field study imaginable has been conducted in real courtrooms in New Mexico with real cases before real juries. The long experience in New Mexico demonstrates that polygraphs have been routinely used without causing any disruption to the trial process or confusion to juries.

A number of published, well-documented scientific studies refutes the idea that jurors are likely to give disproportionate weight to polygraph evidence. They include: Carlson, Pasano & Jannunzzo, The Effect of Lie Detector Evidence on Jury Deliberations: An Empirical Study, 5 J. Pol. Sci. & Admin. 148; Markwart & Lynch, The Effect of Polygraph Evidence on Mock Jury Decision-Making, 7 J. Pol. Sci. & Admin. 324 (1979); Peters, A Survey of Polygraph Evidence in Criminal Trials, 68 A.B.A. J. 162, 165 (1982) (citing cases in which the jury verdict in criminal trials was at odds with the testimony of the polygraph examiner).

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 juries currently are permitted to hear in trials. Polygraph evidence can be subjected to cross-examination, just as any other evidence, and objective scoring techniques used by polygraphers allow other examiners to scrutinize the administration of the test, the charts produced, and the results 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 pseudoscientific 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.Daubert, 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 jurors would somehow be mentally or emotionally unable to assess it in the same manner they consider other evidence. It is certainly less confusing than testimony about a Rorschach or MMPI test, or a clash between Freudian and Jungian theories, or the various DNA methods now in use. Finally, the probative value of this evidence on the important issue of credibility is at least as great as any other evidence to be presented in this case. Rule 403 does not justify keeping this key evidence from the jury.

VI. Conclusion.

In sum, there is no rational basis for excluding the polygraph examination in this case, and both justice and law call for its admission. For these reasons and for the reasons to be articulated, this court must admit polygraph evidence at Ms. xxxxxx's trial.

Dated at Anchorage, Alaska this 15th day of January, 1999.



_____________________________

KEVIN F. McCOY

Assistant Federal Defender



FEDERAL PUBLIC DEFENDER

for

THE DISTRICT OF ALASKA



Rich Curtner 550 W. Seventh Avenue, Suite 1600

Federal Public Defender Anchorage, Alaska 99501

(907) 271-2277/FAX (907) 271-2271


January 15, 1999





Stephan Collins

Assistant U.S. Attorney

U.S. Attorney's Office

222 W. 7th Ave., #9, Rm. 253

Anchorage, Alaska 99513-7567



Re: United States v.