THE STATE OF TEXAS § IN THE COUNTY COURT
VS. § AT LAW NO. __
____________ § BEXAR COUNTY, TEXAS
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes, __________, Defendant in the above-entitled and numbered cause, who, by and through undersigned counsel, respectfully files this Trial Memorandum and for cause would show this Honorable Court as follows:
That on May 25, 1993, _______ voluntarily underwent polygraph examination by licensed operator DEE E. WHEELER. Mr. Wheeler concluded from the examination that Mr. _____ recorded "VERY GOOD TRUTHFUL" graphs in answering "No" to the following questions:
(33) Have you ever exposed your genitals to a female in Eisenhauer Park?
(34) On the running trail in Eisenhauer Park, did you expose your genitals to a female? [See copy of report attached hereto as Exhibit 1].
That DEE E. WHEELER, of Austin, Texas, has been employed as a Licensed Polygraph Operator for over 40 years, employed in such capacity by the Texas Department of Public Safety, Austin, Texas, for 19 1/2 of those years; serving as Supervisor of Polygraph for the Texas Department of Public Safety for 11 years; acting as Supervisor of Polygraph for the Texas Department of Public Safety for more than two years. Mr. Wheeler has served as President of the Academy for Scientific Interrogation and on the Board of Directors of the American Polygraph Association and the American Association of Police Polygraphists, serving on the Texas Board of Polygraph Examiners for some 10 years until 1977. [See Biographical Data attached hereto as Exhibit 2].
The "Frye doctrine" no longer governs admissibility of scientific evidence after recent decisions in the United States Supreme Court and the Texas Court of Criminal Appeals. Daubert v. Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)[opinion attached as Exhibit 3] and Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) (en banc)[opinion attached as Exhibit 4]. Under Frye, scientific evidence was required to be "sufficiently established to have gained general acceptance in the particular field in which it belongs," but recently, this traditional test has been rejected in favor of a more modern approach. See Frye v. United States, 293 F. 1013, 1014 (1923); Daubert, 113 S.Ct. at 2786; and Kelly, 824 S.W.2d at 568.
In Daubert, the Supreme Court concluded that the Federal Rules of Evidence superseded the common law rule announced in Frye. Id. at 2793. While Respondents feared abandoning the Frye test would result in an evidentiary "free-for-all," the Court cited traditional methods such as vigorous cross examination, presentation of contrary evidence and careful instruction on the burden of proof as appropriate checks and balances on this kind of evidence. Id. at 2798. The Court stated, "These conventional devices, rather than wholesale exclusion under an uncompromising 'general acceptance' test, are the appropriate safeguards where the basis of scientific testimony meets the standard of Rule 702." Id. at 2798.
The text of Federal Rule of Evidence 702 (1) weighed significantly in the Court's analysis. Relying primarily on the language of that Rule, the Court stated that experts, unlike lay witnesses, are permitted wide latitude when offering opinions. Id. at 2796. Additionally, Rule 702 nowhere embodies the "general acceptance" standard as a prerequisite to admissibility. Id. at 2794. On the contrary, such a rigid requirement directly conflicts with the liberal thrust of the Rules and their tendency to relax traditional barriers to opinion testimony. Id.
Finally, the Court relied on trial judges to ferret out expert testimony that may properly be applied to the facts of a given case. Under Rule 104(a), the trial judge must make an initial determination as to whether the expert will testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Id. at 2796. Some determinative factors include: (1) whether a theory or technique can be and has been tested; (2) whether a theory or technique has been subjected to peer review and/or publication; (3) known or potential rate of error; and (4) acceptance within the scientific community. Id. at 2796-97. Unlike the austere Frye standard, this test focuses on methodology rather than conclusions, and although general acceptance may still be considered, it is no longer the sole factor. The Court emphasizes that this new test is flexible enough to allow a trial court to determine evidentiary relevance and reliability based on a combination of factors. Id. at 2797.
Prior to the Supreme Court's decision in Daubert, the Court of Criminal Appeals had already held that the Frye test was no longer a part of Texas law. Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (en banc). The Court stated that Texas had never formally adopted the Frye test, and cases using the "general acceptance" test as the standard of review were decided prior to the enactment of the Texas Rules of Criminal Evidence. Id. at 572. The initial question that must be answered concerning the admissibility of scientific evidence is the applicable legal test to be applied by the court.
Since their adoption in 1986, the Court noted that the Rules, specifically Rule 702, (2) govern the admission of all expert testimony. Id. Significantly, Frye is not part of Texas law after adoption of the Rules because there is no textual basis in Rule 702 for a special admissibility standard for novel scientific evidence, and scientific evidence may be shown to be reliable even though not yet generally accepted in the relevant scientific community. Id. As a result, a new relevancy or "helpfulness" standard has emerged which centers on whether expert testimony is sufficiently reliable and relevant to aid in reaching an accurate result. Id. If the trial judge determines that the evidence is reliable, the inquiry then becomes whether the probative value is outweighed by any Rule 403 factor. Id.
In order to satisfy this reliability threshold, the proponent of scientific evidence must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Id. at 573. The Court mentions several factors which may affect a trial court's determination of reliability: (1) the extent to which the underlying scientific theory and technique are accepted by the relevant scientific community; (2) the qualification of the individual expert; (3) literature which supports or rejects the underlying scientific theory or technique; (4) potential rate of error; (5) availability of other experts; (6) clarity with which the theory can be explained to the court; and (7) experience and skill of the person who applied the technique on the occasion in question. Id.
Once the reliability hurdle has been cleared, the only remaining concern focuses on the credence that a jury will give polygraph evidence. Historically, the Court of Criminal Appeals was concerned with the jury's lack of capacity in evaluating expert testimony concerning polygraph results. As early as 1954, however, Professor McCormick noted:
[The] technique has much to contribute to the difficult process of judicial factfinding. It has been widely and successfully employed in criminal investigation and in business. We cannot in our hearts be so confident of the reliability of the present system of resolving conflicts in testimony by impeachment, cross examination and inferences from demeanor, that we can afford to reject scientific aid in the task.... Obviously, the lie detector tests have substantial probative worth.... [The] courts' wholesale exclusion of lie detector test results, for want of scientific acceptance and reliability are adequately proven by the expert himself as a foundation for his testimony giving the test results. In most of the cases where the results were held inadmissible no such foundation was laid.
Charles T. McCormick, Evidence 369 (1954).
In support of McCormick's conclusion, Patrick Wall, an expert in the field of identification, stated:
[A]n increasing use of the polygraph should be made in difficult identification cases. There is little question but that the result of a polygraph examination administered by an expert is far more reliable than most types of identification evidence. It is hardly fair to subject a defendant to possible imprisonment on the basis of an identification...without giving him an opportunity to support this claim of innocence by the only means which may be available to him.... The polygraph, it is submitted, will eventually find at least a limited place in the criminal trial; perhaps the place for it to start is in identification cases, where it is most needed.
Patrick M. Wall, Eyewitness Identification in Criminal Cases 204 (1975).
More recently, the Fifth Circuit confirmed these analyses:
The major danger of scientific evidence is its potential to mislead the jury; an aura of scientific infallibility may shroud the evidence and thus lead the jury to accept it without scientific scrutiny.... [I]t is feared that the jury will overestimate [a polygraph's] probative value, ... despite the fact that, at a conservative estimate, an experienced polygraph examiner can detect truth or deception correctly 80 to 90 percent of the time. Bennett v. City of Grand Prairie, 883 F.2d 400, 404 (5th Cir. 1989) (emphasis added)[Opinion attached as Exhibit 5].
The Fifth Circuit in Bennett recognized that factors leading some courts to preclude or limit polygraph evidence in a jury trial is absent when a magistrate relies on such evidence to make a probable cause determination because magistrates possess legal expertise which will prevent them from assigning such evidence inappropriate evidentiary value. Id. at 405.
Similarly, consideration of polygraph evidence at a sentencing hearing falls within the trial judge's discretion. U.S. v. Ridling, 350 F.Supp. 90 (E.D. Mich. 1972); Wolfel v. Holbrook, 823 F.2d 970 (6th Cir. 1987); Barnier v. Szentmiklosi, 810 F.2d 594 (6th Cir. 1987). In Ridling, the Court admitted polygraph evidence and commented that such evidence enhances the search for truth and is competent as evidence of character:
The search for truth should be enhanced, eliminating some cases in which both sides agree there is no real issue, and in other cases assisting the jury to reach a just result.
In this case in which the question of truthfulness of the defendant is directly involved, the polygraph opinion would indicate the truthfulness of the defendant when he says he did not do the act or the truthfulness of the statement made at the Grand Jury proceedings, the basis for the charge. It does not stretch the law at all to hold that the opinion of the polygraph examiner that the defendant is telling the truth on these points is evidence of a trait of character to establish the fact that he did not do the act or did not lie before the Grand Jury....
Ridling, 350 F.Supp. at 98 (emphasis supplied); see also Murphy v. Cincinnati Ins. Co., 772 F.2d 273, 277 (6th Cir. 1985)[party's willingness to submit to polygraph examination reflected upon his credibility and his underlying motives to act and therefore, trial court did not err in admitting same]; Poole v. Perini, 659 F.2d 730, 735 (6th Cir. 1981)[admission of polygraph evidence by mutual consent is within discretion of trial court].
FIFTH CIRCUIT INVITES EVIDENTIARY SHOWING OF
STATE OF POLYGRAPHIC ART
Leaving intact a panel opinion holding polygraph evidence inadmissible, twelve judges of the Fifth Circuit sitting en banc, noted in U.S. v. Clark, 622 F.2d 917 (5th Cir. 1980) (per curiam) that if the defendant there had proffered evidence demonstrating advances in the state of polygraphic art in the past 60 years, as well as the competence of polygraph operators, the Court was inclined to reconsider the admissibility of polygraph evidence:
I concur in the court's order because no proffer was made of evidence tending to show advances in the state of polygraphic art since the seminal opinion in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), upon which our authorities are based, or the competence of polygraphic operators. Had one been made, in my view these authorities would properly be subject to reconsideration.
Id. (Gee, specially concurring, joined by Brown, Clark, Tjoflat, Fay, Reavley, Politz, Anderson, Randall, Tate, Samuel D. Johnson and Thomas A. Clark). [emphasis added] [Opinion attached hereto as Exhibit 6]. Thus, a majority of what then constituted the Fifth Circuit Court, sitting en banc, invited the evidentiary hearing sought herein, indicating that if the requisite evidentiary showing were made, "[the] authorities [which hold polygraph evidence inadmissible per se] would properly be subject to reconsideration." Id.
THE NECESSARY PROFFER: ADVANCED STATE OF THE SCIENCE OF POLYGRAPH EXAMINATION
Other circuits, which have had the opportunity to consider similar proffers of proof, have admitted polygraph evidence. U.S. v. Oliver, 525 F.2d 731 (8th Cir. 1975); McMorris v. Israel, 643 F.2d 458 (7th Cir. 1981)[Opinions attached hereto as Exhibits 7 and 8, respectively].
In Oliver, the Eighth Circuit upheld the trial court's admission into evidence of polygraph results where "the district court made a specific finding of the 'advanced state of polygraph examination'." Oliver, 525 F.2d at 737. The Court noted:
[The polygraph examiner], a distinguished expert in the field of polygraph, testified extensively concerning the evolution of the polygraph machine itself, the comprehensive training of polygraph examiners, licensing of the examiners, extensive research into the reliability of the polygraph technique, the increase of qualified experts, standard polygraph techniques and testing, improvement of polygraph schools and testing of different categories of people.
Id. Further, the Court noted that the polygraph operator's qualifications were "excellent," and the accuracy of his diagnosis was estimated in excess of 90 percent. Id. at 737, n. 9, 13.
More recently, the Seventh Circuit noted "that even the most ardent detractors from the validity of polygraph evidence concede a degree of reliability of 70 percent or higher for properly administered examinations." McMorris, 643 F.2d at 462. It further noted that "a large portion of this 30 percent 'error' rate includes tests that yield inconclusive results--results that cannot be fairly described as erroneous." Id. Since their initial historic rejection in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), polygraph tests have moved from the 'twilight zone' of Frye to such a degree of standing and scientific recognition that unconditional rejection of expert testimony based on polygraph testimony is no longer indicated. McMorris, citing State v. Stanislawski, 216 N.W.2d 8, 13 (1974)(footnote omitted). The Seventh Circuit concluded, "[s]cientific developments seem to have made the polygraph more reliable." (3) Id.
EXCULPATORY SIGNIFICANCE OF DEFENDANT'S POLYGRAPH
RAISES SIXTH AMENDMENT COMPULSORY PROCESS ISSUES
Under readily analogous facts, the Seventh Circuit considered it "obvious that the evidence of a favorable polygraph examination taken by the Defendant would have been of great importance to the defense of the ... charge." McMorris at 461. There, "the entire prosecution case rested on the testimony of the [assault] victim as to the identity of his assailant." Id. "Realizing the importance of credibility in such a case, the petitioner sought to take a polygraph examination prior to trial." Id. at 459. "The Defendant took the stand and denied any involvement in the crime. His credibility was the primary issue before the jury." Id. at 461 (emphasis added). The Seventh Circuit in McMorris recognized that a defendant's Sixth Amendment right to compulsory process for obtaining witnesses in his favor "may attach where the polygraph evidence is of great importance to the defense inasmuch as his credibility is the primary issue." Id. at 461.
The exculpatory significance of Mr. ______'s own polygraph examination is equally as obvious, if not more so, that those of McMorris. Here, as in McMorris, the defendant's credibility in his denial of involvement in the crime are of great exculpatory significance. In the instant case, the opportunity to present the polygrapher's exculpatory testimony involves Mr. _______'s Sixth Amendment right to "compulsory process for obtaining witnesses in his favor." U.S. Const. Amend. VI.
NO COMPETING INTERESTS HERE SUBSTANTIAL ENOUGH
TO JUSTIFY DEPRIVATION OF SIXTH AMENDMENT RIGHT
Perhaps the most frequent objection to introduction to scientific evidence of polygraph examinations is that such evidence addresses an "ultimate issue" or that the introduction of such evidence may confuse the jury or cause them to rely too heavily on such evidence to the exclusion of more traditional gauges of credibility. However, following the advent of Rule 704 of the Rules of Evidence, such concerns would appear to no longer be of consequence. (4) Additionally, the McMorris decision indicated that jury confusion or undue reliance on such evidence is not as likely now as it once was, "[S]cience, for better or for worse, has become more a part of our daily lives. Scientific evidence, in turn, has become more a part of the ordinary trial so that jurors may be more likely to use polygraph evidence with discretion." McMorris at 462-63. This Court should heed the Fifth Circuit's invitation and hear evidence of the recent advances in the state of polygraphic science and the competence of the examiner conducting the tests herein, and upon such evidence to admit the proffered expert testimony under Rule 702, Rule 403 and the Sixth Amendment to the Constitution of the United States for the limited purpose of addressing Mr. ______'s credibility and to the critical issue herein.
VERACITY IS IN ISSUE
The Texas Rules of Criminal Evidence provide that:
The credibility of a witness may be...supported by evidence in the form of OPINION or reputation but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence OR OTHERWISE. Tex.R.Crim.Evid. 608(a) (emphasis added); ...[P]roof may be made by testimony in the form of an opinion. Tex.R.Crim.Evid. 405(a).
and
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are... rationally based on the perception of the witness.... Tex.R.Crim.Evid. 701.
RULES HAVE CHANGED
Historically, reputation evidence was the exclusive method for proving character, and opinion evidence was excluded. 3 Weinstein's Evidence, Par.608(04), at 608-20 (1978); McCormick, Evidence, §44, at 95 (1954); and Wigmore, Evidence, §§ 1981-6 (3rd Ed. 1940). The enactment of Rule 608(a) of the Texas Rules of Criminal Evidence in 1986 substantially enlarged the avenues by which one may prove character, providing that the credibility of a witness may be attacked or supported "by evidence in the form of opinion or reputation." Tex. R. Crim. Evid. 608(a); U.S. v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979). Under Rule 608(a) no foundation regarding length of acquaintance or recent information such as that required for "reputation" testimony is required for "opinion" testimony. See U.S. v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982); U.S. v. Lollar, 606 F.2d 587 (5th Cir. 1979). Additionally, such "opinion" testimony may be based upon isolated instances of conduct, or even personal feelings by the witness:
The Fifth Circuit determined that prior questioning of the opinion witness regarding his knowledge of the defendant's reputation was unnecessary. The rule imposes no prerequisite condition upon long acquaintance or recent information about the witness; cross-examination can be expected to expose defects of lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings of personal hostility towards the principle witness. U.S. v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982); see also U.S. v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979).
Mr. _____ does not wish to offer testimony regarding the results of his polygraph. Accordingly, the question of admissibility of polygraph evidence before the advent of the new Rules of Criminal Evidence is not at issue in this motion. Mr. _____ rather desires to offer Mr. Wheeler's opinion of his credibility. If the prosecution desires to bring out the specifics of what that opinion is based upon, then cross-examination can be expected to expose the same. Watson, 699 F.2d at 1382; Lollar, 606 F.2d at 589.
The distinction between the foundation required for "reputation" as opposed to "opinion" testimony follows from an analysis of the nature of the evidence involved. Watson at 1382. The court in Lollar opined that opinion testimony as to character can be based on isolated instances. Following the Fifth Circuit's lead, the Eleventh Circuit stated, "...opinion testimony is a personal assessment of character...of course, the opinion witness must testify from personal knowledge...But once that basis is established the witness should be allowed to state his opinion...." Watson at 1382.
Based on the above authority, Mr. Wheeler's opinion testimony regarding Mr. ______'s truthfulness is admissible under the Texas Rules of Criminal Evidence. The fact that his opinion is based in part upon results from his administration of polygraph examinations constitutes no barrier to the introduction of his opinion. In U.S. v. Thomas, 768 F.2d 611 (5th Cir. 1985), the court refused to allow a polygrapher to testify as to the defendant's truthfulness. There, the Defendant sought to have the polygrapher testify that Defendant was telling the truth as to "...events at issue in the trial." Id. at 618. Mr. _____ does not seek such testimony from the polygrapher. Rather, the testimony sought is simply Mr. Wheeler's opinion as to Mr. _____'s character for truthfulness. That his opinion is based in part on the polygraph examination is of no consequence because Mr. _____ does not seek to admit testimony regarding questions asked or answers given during the examination nor does Mr. ______ seek to admit evidence regarding the results of that polygraph.
OPINION ADMISSIBLE AS EXPERT TESTIMONY
Regardless of the admissibility of the polygraph results, Mr. ______'s propensity to tell the truth is admissible under Texas Rules of Criminal Evidence 703 and 704. Rule 703 states that the facts or data relied on by an expert need not be admissible in evidence if they are of a type reasonably relied on by experts in the field. U.S. v. Jones, 687 F.2d 1265 (8th Cir. 1982); In re Aircrash, 684 F.2d 1301 (9th Cir. 1982); U.S. v. Baca, 687 F.2d 1356 (10th Cir. 1982). While the results of the examination may not, arguendo, be admissible data, an expert opinion based on the data is not so restricted. This is analogous to the admissibility of a law enforcement officer's opinion as to what certain "code words" meant in drug investigations under Rules 703 and 704. U.S. v. Theadoropaulose, 866 F.2d 587 (3rd Cir. 1989) [court allowed opinion even though such agents had not heard these exact code words before].
CONCLUSION
Polygraph evidence is admissible for the limited purposes of expert testimony and establishing credibility or truthfulness. Traditional reasons for excluding polygraph evidence, including unreliability, are no longer worthy. Finally, lack of juror sophistication is not a barrier to admitting polygraph evidence where, as here, the case is tried before a seasoned, sophisticated factfinder - the trial judge.
Respectfully submitted:
GOLDSTEIN, GOLDSTEIN & HILLEY
2900 Tower Life Building
San Antonio, Texas 78205
(210) 226-1463
BY: ___________________________
GERALD H. GOLDSTEIN
State Bar No. 08101000
Attorney for Defendant,
______________________
I HEREBY CERTIFY that an original copy of the above Memorandum has been hand-delivered to Mr. Kurt Gransee, Assistant District Attorney, Bexar County Justice Center, San Antonio, Texas, on this the ____ of October, 1993.
____________________________
GERALD H. GOLDSTEIN
C:\wwwfpd\veracit1.wpd
1. Rule 702 provides: 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. Fed. R. Evid. 702.
2. See note 1, supra. Texas Rule 702 tracks the language found in the Federal Rule.
3. 0The Seventh Circuit there added the sobering reminder that "[e]ven the results of the
technologically rudimentary polygraph test held inadmissible in Frye, however, were reliable enough
to correctly show that an innocent man had been wrongly convicted of murder (citation omitted)."
Id. at n. 11.