NO. -----

STATE OF TEXAS § IN THE DISTRICT COURT

V. § ---- JUDICIAL DISTRICT

---- § ----COUNTY, TEXAS

NOTICE OF INTENT TO OFFER OPINION TESTIMONY

[VERACITY]

TO THE HONORABLE ----, DISTRICT JUDGE FOR THE ---- JUDICIAL DISTRICT, ----, TEXAS:

COMES NOW ----, the Defendant in the above entitled and numbered cause, who by and through undersigned counsel, respectfully files this Motion for Notice of Intent to Offer Opinion Testimony under Rule 608 of the Texas rules of Criminal Evidence and for cause would show this Honorable Court as follows:

FACTS

1. During the first part of May, Special Prosecutor ---- indicated that if undersigned counsel produced evidence showing the innocence of defendant he would be amenable to dismissing the indictment in this cause.

2. The Defendant voluntarily underwent polygraph examination by (Polygrapher & information regarding i.e. who pioneered the use of polygraph examinations by the Texas Department of Public Safety ___ years ago). The result being that (Polygrapher) concludes ---- "(quote from Polygrapher's report)". [See report attached as Exhibit 1]

VERACITY IS IN ISSUE

3. Extensive discovery between the State and undersigned counsel shows that the prosecution relies heavily on the alleged "accomplice-witness" testimony of ---. ----'s position must, to be consistent with innocence of the offense charged, be in direct conflict with the testimony of ----. Thus, if -- testifies, the state will, of necessity, argue that ----is untruthful.

4. 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.Ev. 608(a) [emphasis supplied];

"...proof may be made by testimony in the form of an opinion." Tex.R.Crim.Ev. 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.Ev. 701

RULES HAVE CHANGED

5. Historically, reputation evidence was the exclusive method for proving character. Opinion evidence was excluded. 3 Weinstein's Evidence, Par. 608[04], at pp. 608-20 (1978); McCormick, Evidence, § 44, at p. 95 (1954); and Wigmore, Evidence, §§ 1981-6 (3rd Ed. 1940.

6. However, 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." Rule 608(a), Tex.R.Cr.Ed. 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. Lollar, 606 F.2d 587 (5th Cir. 1979); U.S. v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982).

7. And 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).

8. Defendant does not wish to offer testimony regarding the results of her polygraph. Accordingly, the question of admissibility of polygraph evidence before the advent of the new Rules of Criminal Evidence is not at issue. Defendant rather desires to offer ----'s opinion of her credibility. If the prosecution desires to bring out the specifics of what that opinion is based at least in fact upon, then "cross-examination can be expected to expose" same. U.S. v. Watson, Supra, at p. 1382, U.S. v. Lollar, Supra, at p. 589.

9. 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.

10. Based on the above authority (Polygrapher)'s opinion testimony regarding ----'s truthfulness is admissible under the new Rules of Criminal Evidence. The fact that his opinion is based in part upon results from his administration of polygraph examinations constitute no barrier to the introduction of his opinion.

11. 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. However, Defendant Thomas sought to have the polygrapher testify that Thomas was telling the truth as to "...events at issue in the trial." Thomas, at 618. This is not what undersigned counsel seeks from the testimony of (Polygrapher). The testimony sought to be introduced is simply (Polygrapher)'s opinion as to ----'s character for truthfulness. That his basis for this opinion is in part the polygraph examinations is of no consequence since counsel does not seek to admit testimony regarding questions asked or answers given during the polygraph examination nor does counsel seek to admit evidence regarding the results of that examination.

STATE SHOULD NOT BE HEARD TO ASK AND THEN NOT RECEIVE

12. Nevertheless, courts have held that were the prosecution conducts polygraph examinations then ignores the results same are admissible over the objection of the prosecutor. U.S. v. Hart, 344 F. Supp. 522 (E.D. N.Y. 1971); Brady v. Maryland, 373 U.S. 83 (1963). Therefore, in the circumstances in this case the results of the polygraph exam are admissible over objection of the prosecutor.

13. Here the prosecutor's request actuated the administration of the polygraph examinations in this case. He should not now be heard to object to the admission of the results of those exams.

OPINION ADMISSIBLE AS EXPERT OPINION

14. Regardless of the admissibility of the results, (Polygrapher)'s opinion testimony regarding ----'s character for truth or veracity 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 that 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, (Polygrapher)'s opinion based on the data is not so restricted.

15. This is analogous to the admissibility of a law enforcement officer's opinion as to what certain "code words" really meant in drug investigations under Rules 703 and 704. U.S. v. Theadoropaulose, 866 F.2d 587 (3d Cir. 1989) [Even though such agents had not heard these exact code words before, the court held that based on their experience they could give an opinion].

CONCLUSION

Accordingly, undersigned counsel would respectfully move the admissibility of Polygraph Examiner ----'s opinion as to ----'s truthfulness.

Respectfully submitted,

Attorney for Defendant,

----

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