Text of a Recent Order Admitting the Results of a Polygraph Examination in U. S. Federal Court Over the Objection of the Government

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If you need an exact copy of the original for legal purposes, please contact:

Charles R. Honts, Ph. D., Dept. of Psychology, Boise State University, 1910 University Drive, Boise, Idaho, 83725 USA; 208.385.3695

or

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Garrett & Gilliard, P.C.

Suntrust Bank Building

801 Broad Street, Suite 1001

Augusta, GA, 30901 USA: 706.724.1896

Related Web Pages:

Polygraph Law Resource Page

Homepage of Dr. Charles R. Honts

The Journal of Credibilty Assessment and Witness Psychology


This was the first polygraph related page posted at this site.


Last Updated: November 1, 1997

Number of page accesses since 17 October, 1996:

Begin Document

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

AUGUSTA DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

FRED EMERSON GILLIARD,

Defendant.

Case No. CRI9E-19

ORDER

¶The government has moved for a pretrial ruling precluding the

introduction of certain polygraph evidence which the defendant

intends to offer at the trial of this case. The Court conducted a

lengthy evidentiary hearing to consider this issue, receiving

testimony from four expert witnesses in the field of polygraphy.

The Court has received and considered the parties' post-hearing

submissions, including the brief and videotape submitted by the

defendant and the lengthy government brief (that substantially

exceeds the page limits of Local Rule 7.1, which prohibits the

filing of any brief or legal memorandum in excess 25 pages absent

the prior written permission of the Court).1

__________________________

1 The briefs addressing the admissibility of the polygraph

evidence now total over 100 pages. Although the government's 42-

page post-hearing brief was submitted without prior approval. given

the difficulty, novelty, and significance of the issues addressed

in that brief, the Court will excuse the government's noncompliance

with the local rule in this instance.

1

I. BACKGROUND

¶On March 8, 1998, the government secured an indictment

charging the defendant with some 100 counts of submitting, or

causing to be submitted, numerous claims to Medicare and Medicaid

seeking reimbursement for medical services which the defendant knew

to be false and fraudulent, one count of obstruction of justice,

and one count of false declarations before the grand jury.

According to the indictment, Gilliard served as an officer of Penn-

Teck, a company that furnished various diagnostic services to

physicians. He is alleged to have devised a scheme which involved

the manipulation of the company's computerized billing system to

include procedures that Penn-Tack technicians had never performed.

As a result, Penn-Tack was overcompensated by Medicare, and

Gilliard, whose compensation was tied to the overall profits made

by the company, directly benefitted from the excessive billings.

Gilliard is further alleged to have attempted to corruptly

influence the testimony of a witness before the grand jury and to

have lied in his own grand jury testimony.

¶Long before the return of the indictment in this case, the

defendant learned that he was a target of a government

investigation of suspected Medicare fraud in connection with his

employment at Penn-Tack. With the advice of counsel, the defendant

2

arranged to take a polygraph examination concerning his conduct at

Penn-Teck in the hope that his performance on the exam might

persuade the government to forego a criminal prosecution and pursue

exclusively civil remedies. That exam was performed by Captain

William E. Johnson of the Richmond County Sheriff's Department on

August 12, 1995. Defendant's counsel informed the government of

the results of this polygraph test on October 5, 1995, and

submitted the polygraph documents for the government's review. An

EBY polygraph examiner reviewed those documents and later

interpreted the results as "inconclusive."

¶Anticipating that the defendant would endeavor to introduce

the results of the polygraph examination at trial, the government

filed its motion to exclude such evidence on April 11, 1998,

arguing, inter alia, that the questions which were posed during the

exam were not relevant to the issues in the case.

¶After receiving the government's motion, the defendant elected

to undergo a second polygraph examination on June 24, 1998. On

this occasion the test was administered by Charles R. Honts, Ph.D.,

an associate professor of psychology at Boise State University and

a renowned expert in the field of polygraphy. The defendant then

gave notice to the government that the results of that polygraph

examination (which were tailored to the precise allegations of the

3

indictment) were also favorable to the defendant and would be

offered as evidence at the trial of this case. The government has

made very clear that it opposes the introduction of the Honts'

polygraph, although it-does so for reasons quite different from

those which gave rise to its objection to the Johnson polygraph.

¶Not long ago, the admissibility of these polygraph

examinations would have been an easy issue to decide, for this

circuit adhered to a well-established rule that the results of

polygraph examinations (except as stipulated to by the parties)

were per se inadmissible in federal trials. The per se rule of

exclusion has been firmly rejected in this circuit by United States

v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989) (en banc), a landmark

decision that has influenced a number of other federal courts to

either reject or reconsider their own blanket rules for the

exclusion of all contested polygraph evidence. It is this Court's

task, therefore, to determine whether the polygraph evidence sought

to be admitted in this case qualifies as "scientific . .

knowledge" which "will assist the trier of fact to understand the

evidence or determine a fact in issue." Fed. R. Evid. 702. Even

if the polygraph evidence qualifies as relevant scientific

knowledge which may properly be the subject of expert testimony,

the Court must further determine whether that evidence should

4

nevertheless be excluded because its probative value is

substantially outweighed by the danger of unfair prejudice. Fed.

R. Evid. 403. And, as will be seen, the government has raised a

number of additional challenges to the admissibility of this

evidence which will require the Court's careful attention.


II. SCIENTIFIC EVIDENCE: GENERAL PRINCIPLES

¶For some seventy years, the admission of scientific evidence

in federal trials was governed by the standard first announced in

Frye v. United States, 293 F. 1013 (D.C. App. 1923) , a decision

which addressed the admissibility of evidence derived from a

primitive prototype of the polygraph device (which relied

exclusively on measurements of the subject's systolic blood

pressure during questioning). The Frye court reasoned that a

scientific technique is admissible only if that technique has

gained "general acceptance" as reliable in the relevant scientific

community. Id. at 1014. Because the polygraph test at issue in

that case had "not yet gained such standing and scientific

recognition among physiological and psychological authorities," the

court concluded that the evidence was inadmissible. Id.

¶The adoption of the Federal Rules of Evidence in 1974

significantly liberalized evidence law by favoring "the admission

5

of evidence-rather than its exclusion if it has any probative value

at all." Young v. Illinois Cent. Gulf R. R. Co., 818 F.2d 332, 337

(5th Cir. 1980); see Fed. R. Evid. 401, 402. Those rules contain

a specific provision addressing the admissibility of expert

testimony about scientific matters:

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. Although the federal rules contain no reference

to the "general acceptance" standard announced in Frve, a majority

of the federal circuits continued to adhere to the traditional Era

standard. James P. McCall, Misconceptions and Reevaluation --

Polygraph Admissibility after Rock and Daubert, 1996 U. Ill. L.

Rev. 363, 375 n.71 (1996).

¶The standard for admitting expert scientific testimony in

federal trials was completely rewritten in 1993, when the Supreme

Court issued its opinion in Daubert v. Merrell Dow Pharmaceuticals.

Inc., 113 S.Ct. 2786 (1993). Daubert held that the Frye "general

acceptance" test did not survive the adoption of the Federal Rules

of Evidence, whose "liberal thrust" is simply inconsistent with

Frye's "austere standard" for admitting scientific evidence. Id.

6

at 2794. However, in adopting a more relaxed standard for the

admission of novel scientific evidence, Daubert requires federal

judges to exercise a "gatekeeping role" that involves a far more

complex analysis than the earlier Frye approach to such evidence.

¶The Daubert court determined that the general acceptance

standard had been displaced by Rule 702, which imposes a two-part

test for the admissibility of scientific evidence. First, the

court must decide whether the subject of the expert's testimony is

truly "`scientific . . . knowledge.'" Id. at 2795 (quoting Fed. R.

Evid. 702). This requires an exploration of the theoretical

underpinnings of the proffered evidence to ensure that it is

grounded in the methods and procedures of science and constitutes

more than mere unsupported speculation. Only evidence that is

"derived by the scientific method" possesses sufficient evidentiary

reliability be admissible under Rule 702. Second, the court must

determine whether the expert testimony "will assist the trier of

fact to understand the evidence or to determine a fact in issue."

Fed. R. Evid. 702. This "helpfulness" inquiry is essentially a

question of relevancy, requiring a sufficient "fit" between the

expert's testimony and an issue that is actually in dispute. Id.

at 2796. Thus, in order to admit novel scientific evidence, the

courts must make a preliminary assessment under Federal Rule of

7

Evidence 104 (a) "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.

at 2796.

¶The Supreme Court offered some non-exclusive factors to be

considered by the lower courts in assessing the evidentiary

reliability of novel scientific evidence: (1) whether the theory or

technique can be, and has been, tested, (2) whether the theory or

technique has been subjected to peer review and publication, (3)

the technique's known or potential rate of error, (4) the existence

of standards controlling the technique's application, and (5) the

general acceptance of the theory within the scientific community.

Id. at 2796-97. The Court emphasized that this is necessarily a

"flexible" inquiry the focus of which "must be solely on principles

and methodology, not on the conclusions that they generate." Id.

at 2797.

¶Although the Supreme Court expressed its confidence "that

federal judges possess the capacity to undertake this review," it

is with same degree of trepidation that this Court embarks upon a

reliability assessment of novel scientific evidence, particularly

where that evidence has generated some heat within both the

scientific and legal communities. "Mindful of our position in the

8

hierarchy of the federal judiciary, we take a deep breath and

proceed with this heady task." Daubert v. Merrell Dow

Pharmaceuticals. Inc., 43 F.3d 1311, 1316 (9th Cir. 1995) (on remand

from the Supreme Court). But before doing so, it may be

instructive to briefly survey the federal courts' treatment of

polygraphy evidence both before and after Daubert.


III. POLYGRAPHY'S RECEPTION IN THE FEDERAL COURTS

¶For many years following the Frye decision, the courts

remained hostile to any attempts to introduce polygraph evidence in

trial proceedings, despite the fact that significant strides were

made as to both the theory and practice of polygraphy.

Misconceptions and Reevaluation -- Polygraph Admissibility after

Rock and Daubert, 1966 U. Ill. L. Rev. at 368. A number of courts,

however, began to permit polygraph evidence upon the stipulation of

the parties, Id. at 371-72 & n.51 (noting that the Georgia courts

followed this practice), and polygraphy came into wide use within

private industry and the government, particularly law enforcement.

Id. at 379. The passage of the Federal Rules of Evidence did not

significantly change the federal courts' attitude toward polygraph

evidence; instead, the federal courts continued to adhere to the

notion that the polygraph had not gained "general acceptance"

9

within the scientific community. The Eleventh Circuit was the

first federal court to break with this traditional view.

¶In United States v. Piccinonna, 885 F.2d 1529 (11th Cir.

1989), the Eleventh Circuit rejected its per se rule of exclusion

of polygraph evidence and became the first court in the federal

system to hold that, in certain circumstances, such evidence may be

admitted absent a stipulation of the parties. The defendant in

that case, who was charged with false statements to the federal

grand jury, arranged for his own polygraph examination after the

government refused to stipulate to the admissibility of such

evidence. Id. at 1530. Following a hearing, the trial judge

precluded the use of the evidence but suggested that the Eleventh

Circuit reconsider its per se rule. "Because of the significant

progress made in the field of polygraph testing over the past forty

years and its increasingly widespread use," the Eleventh Circuit,

sitting en banc, agreed to reexamine its per se rule of exclusion.

Id. at 1530.

¶The court's decision, rendered prior to Daubert, proceeded

under the traditional Frye analysis that required the "general

acceptance" of scientific evidence as a condition to its

admissibility. Although Frye had stood as a complete bar to

polygraph evidence for some fifty years, the court noted that

10

"tremendous advances have been made in polygraph instrumentation

and technique" and that "polygraph tests are used extensively by

government agencies." Id. at 1532. The court reasoned that a per

se rule of exclusion was no longer supportable "even under a strict

adherence to the traditional Frye standard." Id. at 1532.

The Piccinonna court considered but found unpersuasive the

traditional concerns that the polygraph test is unreliable, lacks

sufficient standardization, and would have an undue impact upon the

jury. In view of the increasingly widespread acceptance of the

polygraph as a useful and reliable scientific tool, the court found

that its per se rule disallowing polygraph evidence was no longer

supportable. Balancing the need for relevant and reliable

polygraph evidence against the danger of unfair prejudice, the

court articulated two instances where polygraph evidence will be

admissible: (1) where both parties stipulate in advance as to the

nature of the test and the scope of its admissibility, and (2)

where the polygraph evidence is used to impeach or corroborate the

testimony of a witness at trial. Id. at 1535-36. When used for

the latter purpose, polygraph evidence will be admitted only if the

party offering the evidence gave adequate notice of his intention

to do so, the opposing party has a reasonable opportunity to

administer his own test, and the evidence otherwise satisfies the

11

Federal Rules of Evidence. Id. at 1536. The court emphasized that

the trial judge retains wide discretion in this area and was free

to exclude polygraph testimony if the examiner's qualifications

were unacceptable, the test procedure was unfairly prejudicial or

the test was poorly administered, or the questions were irrelevant

or improper. Id. at 1537.

¶Although recognizing that "the reliability of polygraph

testing remains a subject of intense scholarly debate," Piccinonna

concluded that "the 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." Id.. at 1537. The court further noted that its holding

was not expected to be "the final word within our circuit on this

increasingly important issue." Id..

¶The Frye standard was repudiated by the Supreme Court four

years after Piccinonna was decided. Since Piccinonna's holding

rests upon a standard that is incompatible with the Federal Rules

of Evidence, the decision must be reinterpreted in the light of

Daubert. Although the Piccinonna court referred to Rule 702 in its

decision, it assumed that the traditional "general acceptance"

standard was incorporated by that rule. United States v.

Piccinonna, 885 F.2d at 1531. Daubert has squarely refuted that

12

assumption, and any further assessment of the admissibility of

polygraph evidence in this circuit must rest upon the specific

analysis approved by Daubert, not the approach utilized in

Piccinonna. That is nor to say that the Piccinonna decision is no

longer useful, for many of the factors that the court found

persuasive in its consideration of polygraph evidence also apply

under the Daubert analysis. Nevertheless, it is essential to take

a fresh look at polygraph evidence in light of Daubert.

¶Some two years after Daubert was decided, a number of federal

courts reconsidered the admissibility of polygraph evidence using

the standard articulated by the Supreme Court. In United States v.

Posado, 57 F.3d 428 (5th Cir. 1995), the Fifth Circuit addressed

the admissibility of polygraph evidence offered by the defendants

in a pretrial suppression hearing. Ignoring the defendants'

request for a Daubert hearing, the district court adhered to

longstanding Fifth Circuit precedent that polygraph evidence is

inadmissible in federal court for any purpose. On appeal, the

Fifth Circuit concluded that its per se rule against the admission

of polygraph evidence had not survived Daubert. The court noted

the "tremendous advances" in polygraph instrumentation and

technique, recent research showing that the exams are highly

accurate in predicting truth or deception, increasing

13

standardization within the profession, and the widespread use of

polygraphy within industry and government. Id. at 434.

Nevertheless, the court declined to address the admissibility of

the polygraph evidence and instead remanded the case with

instructions that the district court consider the evidentiary

reliability and relevance of the evidence under the teachings of

Daubert. In passing, the court observed that if polygraph evidence

is determined to be reliable it is almost inevitable that such

evidence will be relevant, since it will bear upon the credibility

of the witness as to a disputed fact. Id. at 433 ("If polygraph

technique is a valid (even if not certain) measure of truthfulness,

then there is no issue of relevance.") 2

¶Given the liberal admissibility standards of the Federal Rules

of Evidence and Daubert's more receptive treatment of novel

scientific evidence, Posado envisioned "an enhanced role for Rule

403," requiring courts to determine whether polygraph evidence will

have "an unusually prejudicial effect which is not justified by its

_____________________

2 This, of course, assumes that the right questions were

asked by the polygrapher. If a polygrapher asks questions that do

not precisely "fit" the issues in the case, then the results of the

polygraph would not "assist the trier of fact to determine a

fact in issue." Fed. R. Evid. 702. "`Expert testimony which does

not relate to any issue in the case is not relevant and, ergo, non-

helpful.'" Daubert, 113 S.Ct. at 2795 (quoting 3 J. Weinstein & M.

Berger, Weinstein's Evidence ¶702 [02] , p.702-18 (1988))

14

probative value." United States v. Posado, 57 F.3d at 435. In

that case, the defendants had not only notified the prosecution of

their intent to take a polygraph exam but had offered the

prosecution an opportunity to participate in that exam. Id..

Furthermore, the polygraph evidence was offered during a pretrial

hearing, not during a jury trial. While the Posado court did not

prescribe these factors as conditions to admissibility in every

case, it did emphasize that in exercising their role as

"gatekeepers" under Rule 403, the district courts may insist that

litigants use test procedures and protocols that

reduc[e] the possibility of unfair prejudice and increas[e]

reliability." Id. at 435.

¶Recently in United States v. Pettigrew, 77 F.3d 1500 (5th Cir.

1996), the Fifth Circuit upheld the district court's exclusion of

the results of a polygraph examination during trial because the

defendant failed to satisfy the relevance prong of the Rule

702/Daubert inquiry. The questions asked during the polygraph exam

simply did not "fit" the facts of the case and therefore would not

assist the jury in determining a tact in issue. Accordingly, it

was not necessary for the district court to evaluate the scientific

validity of the evidence. Employing a Rule 403 analysis, the court

further noted that there was a substantial potential for prejudice

15

given the absence of any safeguards such as had been present in

Posado. while the particular safeguards present in Posado were not

necessarily essential to admissibility, the Court felt that "the

absence of these or other similar safeguards certainly weighs most

heavily against the admission of polygraph evidence." Id. at 1515

(emphasis added)

¶The most thorough treatment of polygraph admissibility issues

can be found in two district court opinions from Arizona and New

Mexico, both of which carefully apply the Daubert analysis to

exculpatory polygraph evidence sought to be admitted by a defendant

in his criminal trial. United States v. Galbreth, 908 F. Supp. 877

(D.N.M. 1995); United States v. Crumby, 895 F. Supp. 1354 (D. Ariz.

1995). Both courts relied heavily upon the testimony of Professor

David Raskin, a preeminent expert in the field of psychophysiology

and polygraphy and a colleague of Professor Charles R. Honts, who

testified for the defendant in this case. After a comprehensive

review of polygraph theory and the underlying methodology, both

courts concluded that the polygraph evidence offered by the

defendant met the reliability and relevancy standards of Rule 702

and was not substantially outweighed by the danger of unfair

prejudice or confusion of the issues. Accordingly, both courts

16

allowed the admission of the polygraph evidence at trial, although

for a limited purpose.

¶The Crumby court found a "significant increase in reliability

of polygraph evidence over recent years," 895 F. Supp. at 1358, and

opined that this "maturation" of the science of polygraphy, if

cautiously accepted, "will lead to a fairer and more just system of

criminal and civil jurisprudence." Id. Both Crumby and Galbreth

considered some variant of the "control question" technique, the

predominant examination format utilized by modern polygraphers

(more about that later). Applying the Daubert factors, both courts

found that polygraph theory and technique had been tested by the

scientific method and repeatedly validated in field and laboratory

studies, subjected to stringent peer review and extensive

publication, shown to have a remarkably low error rate when

properly applied by a skilled polygrapher, enjoyed substantial

acceptance within the scientific community, and was widely used

within government and industry. Galbreth, 908 R. Supp. at 891-893;

Crumby, 895 9. Supp. at 1359-60. The Crumby court acknowledged

that "the potential prejudicial effects of permitting a jury to

consider a polygraphy examination are enormous, and thus rather

disturbing," and called for the "utmost caution" before such

evidence is received. Id. at 1361. Crumby proposed the following

17

safeguards as a means of limiting the prejudicial effects of such

evidence: (1) polygraph evidence may only be used to impeach or

corroborate the credibility of the witness, (2) neither the

defendant nor the expert may testify regarding the specific

questions asked on the exam, (3) the party offering the evidence

must afford sufficient notice to the other party, and (4) the

opposing party must have a reasonable opportunity to administer its

own test. Id. at 1363-65. While not mandating a particular list

of safeguards to be followed in all cases, the Galbreth court

emphasized that the polygraph exam had been conducted by a renowned

expert in the field of polygraphy who had followed the rigorous

requirements of the New Mexico Rules of Evidence, which, as

conditions to admissibility, require an experienced and trained

polygrapher, the tape recording of the examination, a standardized

scoring technique, disclosure of all polygraph exams taken by the

subject, and production of all polygraph materials prior to trial.

Galbreth, 908 F. Supp. at 892.

¶A handful of other decisions have addressed the admissibility

of polygraph evidence in light of the Daubert decision. See e.g.,

United States v. Padilla, 908 F. Supp. 923 (S.D. Fla.

1995) (testimony of polygraph examiner could be admitted at trial

for purpose of corroboration of defendant's credibility, if

18

challenged); United Sates v. Dominguez, 902 R. Supp. 737 (S.D.

Tex. 1995) (assuming that the results of defendant's polygraph test

were reliable and relevant, the probative value of the test was

substantially outweighed by the danger of unfair prejudice because

(1) defendant did not invite the government to participate in the

test and (2) defendant would agree to take a government-

administered polygraph only upon condition that the government

dismiss all charges if defendant passed the exam, conduct no post-

test interview, and permit defendant's representatives to attend

the session); Ulmer v. State Farm Fire & Casualty Co., 897 F. Supp.

299 (W.D. La. 1995) (polygraph exam administered to plaintiffs in

civil suit against insurance company, which corroborated their

denial of setting fire which destroyed their home, was admissible

at trial since the exam met the reliability and relevance tests of

Rule 702 and was not unduly prejudicial given the circumstances of

that case). See also United States v. Sherlin, 67 F.3d 1208, 1216-

17 (6th Cir. 1995) (noting that "Rule 403 offers a basis for

excluding polygraph results independent of Daubert," the court

found that the evidence had little probative value because the

defendant "had no adverse interest at stake in the privately

commissioned polygraph" and that using a polygraph to bolster

19

credibility is "`highly prejudicial,' especially where credibility

issues are central to the verdict.").


IV. APPLICATION OF DAUBERT TO THIS CASE

¶At the outset of the pretrial hearing the government - - though

with some hesitation -- bowed to the advances in the field of

polygraphy and acknowledged that the particular version of the

"control question" technique which is currently the most widely

used in the field has been tested by the rigors of the scientific

method and determined to be a valid test for detecting deception.

Accordingly, the government has (apparently for the first time)

conceded that a polygraph examination, when properly administered

by a qualified examiner using the correct technique, yields results

which satisfy the reliability prong of the Rule 702 analysis.

¶The government was not prepared, however, to stipulate to the

admissibility of the particular polygraph examinations administered

to the defendant in this case. The government contends that the

initial polygraph, performed by Captain Johnson of the Richmond

County Sheriff's Department, fails to meet the relevance prong of

the Rule 702 inquiry, for the questions asked during the exam

simply do not "fit" the facts of this case. As to the second

polygraph, administered by Professor Charles Rants, the government

20

raises no challenge to the relevance of the questions asked during

the exam but instead contends that Dr. Honts employed a maverick

technique that has not been shown to be scientifically valid, thus

failing the reliability component of the Rule 702 standard. It is

the latter contention that has absorbed most of the parties'

attention at the evidentiary hearing and in the briefs which the

Court permitted to be filed after that hearing. And it is to this

issue that the Court will first direct its attention.


A. The Honts' Polygraph

¶Professor Charles R. Honts, Ph.D., presently at the Boise

State University, was the principal defense witness. Dr. Honts'

credentials are impeccable. After receiving a bachelor of science

degree in psychology, Dr. Honts completed a polygraph course at a

commercial polygraph school in San Diego, California, and spent

several years as a professionally licensed polygrapher in Virginia.

He obtained a Master of Science in experimental psychology from the

Virginia Polytechnic Institute and State University in 1982 and

then attended the University of Utah in Salt Lake City, where he

received a Ph.D. in experimental psychology in 1986. While at the

University of Utah, he studied under and later collaborated with

Professor David Raskin, a pioneer of modern polygraphy technique

21

and one of the leading experts in the field. Throughout Dr. Honts'

academic career, he emphasized psychophysiology, the science

concerned with how the mind and body interact.

¶Dr. Honts' employment and other professional achievements are

equally impressive. In addition to teaching positions throughout

his graduate and post-graduate career, he has taught at the

Department of Defense Polygraph Institute (known as "DODPI" in the

polygraphy world, and so referred to herein) at Ft. McClellan,

Alabama from 1988 to 1990. DODPI is responsible for teaching

polygraphy techniques to all federal agencies except the CIA Dr.

Honts has frequently taught courses and seminars to the law

enforcement community, is a member of several distinguished

professional societies, and has performed as an editor for a number

of professional publications. Dr. Honts has also conducted or

assisted in conducting many laboratory and field studies relating

to the detection of deception, many of which have been published.

His curriculum vitae lists some seventy-two publications in the

professional literature, the vast majority of which address some

aspect of polygraph testing or technique. Dr. Honts has repeatedly

testified as an expert witness in the field of polygraphy in

various federal and state court proceedings. He estimates that he

has performed over two thousand polygraph exams.

22

¶The science of polygraphy rests upon the underlying theory

that the mental state associated with conscious deception causes

physiological changes that can be measured using appropriate

instrumentation. More precisely, it is theorized that through the

careful interpretation of these physiological changes it is

possible to assess the truthfulness of a person's statements. The

modern polygraph instrument is a sophisticated device designed to

detect subtle changes in the body's autonomic nervous system.

Typically, the device measures changes in galvanic skin response

(attributable to sweat gland activity) , relative blood pressure,

respiration, and peripheral blood flow. Such autonomic responses

are generally beyond a person's voluntary control and therefore may

be used as a sort of barometer reflecting the body's responses to

various stimuli.

¶Early polygraphy tests employed the relevant/irrelevant

question technique, in which the subject was asked a series of non-

threatening, irrelevant questions intended to produce no

physiological response (e.g., is your name X) and a question

relevant to the incident under investigation (e.g. , did you rob the

store). This technique rests upon the theory that a deceptive

answer will produce a specific physiological response that is

measurably different from response produced by a truthful answer.

23

The relevant/irrelevant technique has been determined by

researchers to produce an unacceptably high number of "false

positive" errors (because even an innocent subject will recognize

the significance of the relevant question and may react to it) and

has generally been discarded in favor of other techniques that have

been shown to have a higher degree of reliability.

¶Another member of the polygraphy family is the concealed (or

guilty) knowledge technique, which measures the subject's

physiological response to information that only the perpetrator of

the crime would have. For example, in a burglary case the suspect

would be asked about a series of items that included both the

particular item stolen and other items not involved in the theft.

While this format has its advocates, it has been used only rarely,

if at all, in American forensic polygraphy, Misconceptions and

Reevaluation -- Polygraph Admissibility after Rock and Daubert,

1996 U- Ill. L. Rev. at 412-13; The Polygraph in 1995: Progress in

Science and the Law, 71 N.D. L. Rev. at 992-93, and none of the

experts in this case suggested its use here.

¶The predominant format employed in the field of polygraphy is

the "control question" technique, which is designed to measure a

subject's differential response to two separate types of questions:

relevant questions, which relate to the matter under investigation,

24

and control (or comparison) questions which are unrelated to the

incident under investigation but are nevertheless designed to

produce some anxiety or stress on the part of an innocent subject.

¶The traditional control question test employs one or more

questions designed to elicit a "probable lie" about a matter not

directly related to the incident under investigation. Under this

format, the examiner carefully devises a deliberately vague

question that is designed to trick the subject into giving a

deceptive response. For example, the subject might be asked

whether, prior to the incident at issue, he had ever done anything

that was dishonest, illegal, or immoral. The technique assumes

that the innocent subject, who is maneuvered into stating that he

has led a perfect life, will show a strong physiological reaction

to the control question because of uncertainty about his response,

and further assumes that the innocent subject's reaction to the

control question will be measurably greater than his truthful

denial of the relevant question. The guilty subject, however, will

be more concerned about the relevant question and will therefore

exhibit a stronger differential response to that question than to

the more vague control question.

¶There is no dispute in this case that the "probable lie"

version oft the control question technique, when properly employed,

25

is a highly accurate method for detecting deception and possesses

the type of scientific validity that satisfies the reliability

prong of Rule 702. Through numerous field and laboratory studies,

researchers have determined that polygraph examinations using this

technique produce results that have an accuracy rate of

approximately ninety percent. The researchers have found that the

rate of accuracy for detecting deception is slightly better than

the rate for detecting truthfulness -- i.e., the probable lie

control question technique produces slightly more false-positive

errors than false-negative errors.

¶In recent years a number of researchers, including Dr. Honts,

began to experiment with another version of the control question

test referred to as the "directed lie" technique, which had first

been developed within the military intelligence community in the

mid to late 1970's. As in the probable lie technique, the subjects

are asked relevant questions that address the specific incident at

issue. But rather than devising a control question designed to

trick or steer the subject into answering with a lie, under the

directed lie technique the subject is instructed to give a false

response to the control question. The differential response to the

control question, which produces a known lie, and the relevant

question is then measured by the examiner. The technique rests

26

upon the theory that guilty subjects will react more strongly to

the relevant question while innocent subjects will react more

strongly to the directed lie control question.

¶In this case, Professor Honts utilized both probable lie and

directed lie control questions in administering a polygraph

examination to the defendant. He testified that this "mixed

format" or hybrid technique is routinely used by Dr. Raskin and

other researchers at the University of Utah and is merely a

variation or refinement of the traditional control question

technique. Although one court has specifically found this

technique "to be at least as accurate as the probable lie control

question technique" and has determined that it satisfies the

reliability and relevance components of Rule 702, United States v.

Galbreth, 908 R. Supp. at 894, the government challenges that

conclusion and has offered expert testimony in support of its

position that the "hybrid" technique employed by Dr. Honts lacks

scientific validity. But even if the theory is sound, the

government contends that the administration of the test in this

case was significantly flawed and therefore yielded results that

lack evidentiary reliability.

¶This Court must resolve this dispute using the analysis set

forth in Daubert, as outlined above. As Daubert teaches, the mere

27

existence of a heated scientific debate among respected experts is

not alone sufficient to find that particular evidence -- even if

voiced by those espousing a minority position -- fails to qualify

as "scientific knowleIge."3 With this in mind, the Court will

analyze the disputed evidence in terms of the Daubert factors.


1. Has the technique utilized by Dr. Honts been tested?

¶It is undisputed that the probable lie version of the control

question technique has been subjected to extensive scientific

inquiry and has been tested repeatedly by a variety of researchers

using both laboratory and field studies. See United States v.

Galbreth, 908 R. Supp. at 885 (citing Dr. Raskin's estimate that

"hundreds of studies had been conducted and reported in the

____________________

3 In Daubert, the issue was whether the drug Bendectin was

responsible for the plaintiffs' birth defects. The defendant's

expert reviewed the extensive published scientific literature (more

than 30 published studies involving over 130,000 patients) and

found that no study had linked Bendectin to human birth defects.

The defendants countered with their own well-credentialed experts,

who had conducted animal and pharmacological studies as well as a

"reanalysis" of the published literature. Because the views of

plaintiffs' experts had not gained "general acceptance" in the

field of epidemiology, the district court granted summary judgment

to the defendant, a ruling upheld on appeal. In rejecting the

general acceptance standard, the Supreme Court made clear that a

novel theory adopted by only a minority of scientists may

nevertheless be admissible if it is grounded in the methods and

procedures of science. Thus, even if scientific evidence is

"shaky," it may nevertheless be admissible. 113 S.Ct. at 2798.

28

literature.").4 When the directed lie format first came to the

attention of Dr. Raskin, Dr. Honts, and the other researchers at

the University of Utah, they viewed it with some degree of

skepticism. Nevertheless, the Utah researchers began to study the

directed lie format in 1984. In the course of a field study, Drs.

Raskin and Honts began to administer polygraphs using the mixed

format technique that combines both probable lie and directed lie

control questions (the exact "hybrid" approach utilized in this

case). The field study involved some twenty-five actual criminal

cases where the truthfulness of the subject was established through

either a confession or convincing evidence. The researchers scored

the polygraph exams both with and without the directed lie control

questions. They then did a statistical analysis of the results

obtained using only the probable lie questions and the results

obtained using both the probable lie and directed lie questions.

_______________

4 In the view of Dr. Honts, the probable lie, directed lie,

and hybrid formats involve mere variations in the method of

preparing the control question and do not truly constitute

different "tests." Because all three formats rest upon the same

underlying theory, he believes that the studies which establish the

accuracy of the probable lie control question technique lend

credence to the directed lie control question technique.

29

This field study suggested that the addition of the directed lie

questions significantly improved the accuracy of the test.5

¶Because of the promising results of the field study, Stephen

Horowitz, a doctoral candidate working under Drs. Raskin and Honts,

conducted a laboratory study of the competing techniques as part of

his dissertation. In this study the researchers had students

commit a "mock crime" by removing an item from a secretary's desk.

The students were then given a polygraph exam, with the promise of

a twenty-five dollar reward if they "passed" the test. The study

was designed to look at the probable lie and directed lie formats

in isolation so that a comparison could be made between the two

techniques. The directed lie tests were further divided into

"trivial directed lies" (such as instructing a person to deny that

2+2=4) and "personally relevant directed lies" (such as directing

the subject to state that he had never told a lie in his entire

life). That study confirmed the accuracy of the directed lie

method, particularly the personally relevant question technique.

___________________

5 The government endeavored to cast doubt about the

validity of this field study by suggesting that a few subjects who

had passed the exam later confessed to the crime. Dr. Honts

pointed out, however, that a certain number of false negative

responses are predictable under both the hybrid and probable lie

versions of the control question technique, both of which have an

error rate of approximately two to ten percent. These

recantations, therefore, do not undermine the Utah study.

30

Dr. Honts testified that further studies had been conducted at

DODPI which produced essentially the same results as the earlier

Utah studies.

¶Thus, as did the Galbreth court, 908 R. Supp. at 891, I find

that researchers in the field of psychophysiology, using the

established methodology of their discipline, have tested both

probable lie and directed lie variants of the control question

technique, assessing the accuracy of those formats both in

isolation and in combination. The specific technique used by Dr.

Honts in this case has, therefore, been tested by the scientific

method, though it must be acknowledged that far more studies have

been conducted of the traditional probable lie version of the

control question technique.


2. Has the technique employed by Dr. Honts been subjected to peer review

and publication?

¶The field study conducted by Drs. Honts and Raskin, which

employed polygraph examinations utilizing both probable lie and

directed lie control questions, was published in a peer-reviewed

scientific journal in 1988. Charles R. Honts & David C. Raskin, A

Field study of the Directed Lie Control Question, 16 J. Police

Science & Admin. 1 (1988). The Horowitz study of the directed lie

31

and probable lie techniques has been subjected to peer review on

two occasions, both when presented as a paper at the American

Psychological Society meetings and when recently accepted for

publication by the Journal of Psychophysiology. Thus, the studies

of the directed lie format have been subjected to the scrutiny of

the scientific community. See Galbreth, 908 F. Supp. at 891.


3. The technique's rate of error

¶According to Dr. Honts, in a number of high quality laboratory

studies, the rate of error for the control question technique has

been determined to be in the range of ten percent, whether the

examiner used probable lies or directed lies as controls. He

noted, however, that the accuracy rate for the directed lie format

was slightly better than the probable lie version of the test. He

further testified that field studies, which tend to produce higher

estimates of accuracy for guilty subjects, had demonstrated that

the control question technique accurately identifies guilty

subjects some ninety-eight percent of the time but accurately

identifies innocent subjects only seventy-five percent of the time.

He testified that field tests which included directed lie control

questions significantly reduced the number of false positive errors

and, therefore, tended to be less likely to falsely accuse an

32

innocent person of engaging in deception. So, overall, the studies

indicate that the directed lie format has a range of error of

approximately five to ten percent.

¶Dr. Stanley Abrams, an expert called by the government,

expressed concern about the utilization of directed lie control

questions by Dr. Fonts and the other Utah researchers. While Dr.

Abrams conceded that the inclusion of directed lie controls tended

to reduce the number of false positive errors obtained under an

exclusively probable lie format, he surmised that the hybrid

approach might have the untoward effect of simultaneously

increasing the number of the false negative errors by causing

deceptive people to appear more truthful. Dr. Abrams conducted a

"pilot study" of this issue that yielded preliminary results

suggesting that scoring the directed lie responses would cause an

increase in the number of false negatives. Dr. Abrams, however,

readily conceded that there were inherent "weaknesses" in his pilot

study, that it was inappropriate to draw any generalizations based

on that study, and that he had not read Dr. Fonts' entire critique

of that study.6 While Dr. Abrams opined that the hybrid technique

____________

6 Dr. Abrams' pilot study was published in the trade

journal Polygraphy in 1991. Dr. Honts, who was on the editorial

board of that journal, opposed the publication of the study on the

ground that it did not meet scientific standards, and he later

33

might increase the number of false negative errors at the expense

of decreasing the number of false positives, he offered no precise

figures about his assessment of the error rates using the hybrid

technique. Based on the current record, therefore, the Court

accepts the testimony of Dr. Honts, which is based on empirical

data generated by a published study subjected to peer review, that

the error rate for the hybrid approach is approximately the same

(if not better than) the error rate for the probable lie technique,

which is approximately ten percent.

¶Dr. Honts testified that it is possible for some subjects to

defeat a control question polygraph test by using certain physical

or mental countermeasures, such as a subtle tensing of the muscles,

biting the tongue, or doing mental arithmetic in response to the

control questions. Indeed, studies indicate that, with proper

training, up to fifty percent of the population can learn to beat

the test. The research indicates, however, that in order for

countermeasures to be effective the subject must receive some

specialized training in their use and that merely furnishing a

subject with information about countermeasures does not appear to

_________________

published a formal critique of the study. Dr. Abrams conceded that

no studies had replicated the results of his pilot study and

suggested that more work needed to be done in this area.

34

work. Furthermore, Dr. Honts testified that when the polygraph

test is scored by means of a computerized analysis of the subject's

physiological responses (a relatively new innovation in the field

of polygraphy) only about fifteen percent of those trained in

countermeasures were successful in beating the test. The

government's experts did not dispute this research or place much

emphasis upon countermeasures in their testimony.


4. Existence and maintenance of standards

¶One of the chief criticisms of polygraphy is the lack of any

accepted standards controlling the application of the polygraph

technique in a particular case. In the Galbreth case, Dr. Raskin

referred to the "sorry state of training for polygraph examiners,"

908 F. Supp. at 889, and the Galbreth court noted that the American

Psychological Association had commented on the need for improved

training, since polygraphers "often have limited training and

expertise in psychology and interpretation of psychophysiological

measures." Id. This assessment has been echoed by the academic

community as well: "Effective standardization is crucial to the

development of a reliable technique, and its absence in polygraphy

has significantly diminished the reliability of polygraph

evidence." Misconceptions and Reevaluation -- Polygraph

35

Admissibility after Rock and Daubert, 1996 U. Ill. L. Rev. at 401.

And in his own recent law review article, Dr. Honts noted that

various commentators had decried the poor quality of training and

competence of polygraph examiners, citing a prior article (which he

co-authored) expressing a "particularly pessimistic [view] that

internal forces in the polygraph profession would be able to bring

about significant changes in this area." Charles R. Honts & Bruce

D. Quick, The Polygraph in 1995: Progress in Science and the Law,

71 N.D. L. Rev. 987, 998 (1995). Thus, while the Eleventh Circuit

in Piccinonna referred to the increased standardization within the

profession, even the staunchest advocates of polygraphy recognize

that inadequate standardization remains a matter of general

concern.

¶In this case, the defendant was examined by Dr. Honts, who was

recognized by the Galbreth court as a "highly qualified polygraph

examiner." Galbreth, 908 F. Supp. at 894. This Court concurs with

that assessment. As noted earlier, the focus of Dr. Honts'

professional career as a clinical psychologist has been in the area

of psychophysiology and, specifically, polygraphy. He studied

under and collaborated with "perhaps the world's leading expert in

the field of autonomic psychology and on polygraphy technique,"

Galbreth, 908 F. Supp. at 889, and he spends much of his time

36

conducting research in this area. He worked for several years with

the government's own polygraphy institute and has taught or advised

numerous law enforcement agencies concerning polygraphy issues.

Furthermore, in conducting his exam in this case, Dr. Honts

followed the rigorous standards established by the New Mexico

legislature, standards which are recognized as the most

comprehensive treatment of polygraphy issues and which have been

urged as a "model solution" for other courts to follow.

Misconceptions and Reevaluation -- Polygraph Admissibility after

Rock and Daubert, 1996 U. Ill. L. Rev. at 388. I therefore find

that while the lack of examiner qualifications and standards

remains a problem in the abstract, these concerns are not relevant

in this case. See United States v. Galbreth, 908 F. Supp. at 889

(reaching the same conclusion with respect to Dr. Raskin)


5. Acceptance in the relevant scientific community

While the "general acceptance" of a scientific theory or

technique is no longer a condition to its admissibility, the level

of acceptance remains a factor to be considered by the court in

making its reliability assessment. Daubert, 113 5. Ct. at 2797.

In 1989, the Eleventh Circuit noted "that in recent years polygraph

testing has gained increasingly widespread acceptance as a useful

37

and reliable scientific tool." United States v. Piccinonna, 885

F.2d at 1535. More recent decisions, applying a Daubert analysis,

have reached the same conclusion. See, e.g., United States v.

Posado, 57 F.3d at 434 ("Polygraphy is now widely used by employers

and government agencies alike."). In addition to being accepted by

government and business, it now appears that the use of the

polygraph has gained widespread acceptance among the community of

scientists who specialize in the field of psychophysiology,

particularly those who are well-versed in the recent scientific

literature. United States v. Galbreth, 908 F. Supp. at 892-93 ("it

now appears that there is general acceptance of the control

question polygraph technique [by autonomic psychophysiologists]

when it is administered properly by a qualified examiner."); United

States v. Crumby, 895 F. Supp. at 1360 ("there is a large community

of psychophysiologists who accept and endorse the use of polygraph

examinations in a variety of circumstances."). The Galbreth and

Crumby decisions both cite two surveys of the Society for

psychophysiological Research concerning the utility of the

polygraph device in detecting deception. According to these

surveys, some two-thirds of the members of the society view

polygraph tests as either a sufficiently reliable technique to be

the sole determinant of credibility or a useful diagnostic tool to

38

consider with other available information. Among those members of

the society who were well-informed about the polygraph literature,

the acceptance of the polygraph test as a useful diagnostic tool

rose to some eighty percent. Galbreth, 908 F. Supp. at 892-93;

Crumby, 895 F. Supp. at 1360; see The Polygraph in 1995: Progress

in Science and the Law, 71 N.D. L. Rev. at 1016 & n.229 (setting

forth the specific questions used during the survey). The basic

premise of polygraphy -- that the state of mind induced by

conscious deception causes physiological changes in the autonomic

nervous system and that those physiological changes are capable of

being measured with appropriate instrumentation -- clearly enjoys

general acceptance within the field of psychophysiology. There

also appears to be substantial acceptance of the further

proposition that through the appropriate interpretation of these

physiological changes it is possible to make inferences about a

person's credibility in a forensic setting -- i.e., that a skilled

examiner can distinguish between the physiological responses of

those practicing deception and those who are not. But, as this

case suggests, there remain considerable differences of opinion

within the relevant scientific discipline as to the best technique

for making such credibility assessments.

39

¶All of the experts who testified before this Court accepted

the notion that the most appropriate technique for making

credibility assessments in a forensic setting is some version of

the control question test. But, as Dr. Honts noted in a recent law

review article, the control question technique by no means enjoys

universal acceptance as the most accurate means for detecting

deception. Indeed, he points out that the technique "has been the

subject of a polemic controversy in the scientific literature for

over twenty years," a controversy that involves "a basic

disagreement about the reasonableness and rationale of the CQT."

The Polygraph in 1995: Progress in Science and the Law, 71 N.D. L,.

Rev. at 991. See David L. Faigman, et al., eds., MODERN SCIENTIFIC

EVIDENCE: The Law and Science of Expert Testimony (to be published

in 1997) (containing a chapter entitled "Polygraph Tests," which

sets forth a lengthy debate between Professors Raskin, Honts and

Kircher, who defend the theory underlying the control question

technique, and Professors Iacono and Lykken, who challenge the

control question technique but support the use of the guilty

knowledge technique, at least in certain instances).7 Based on the

______________

7 At the Court's request, West Publishing Co. furnished an

advance copy of the final draft of this book (which will bear a

1997 copyright date). Because the work is still undergoing the

editorial process, West requested that the Court not quote from the

40

testimony in this case, however, I find that the control question

test is the most widely used technique in the field of polygraphy,

has been the subject of numerous published studies, and enjoys at

least substantial acceptance among psychophysiologists who are

familiar with the polygraphy literature.

¶In this case, the parties have offered no hard data regarding

the acceptance of the precise control question format employed by

Dr. Honts in the polygraph test he administered to the defendant.

________________

material without prior approval. In the lengthy chapter dealing

with polygraph tests (which will appear as Chapter 14), Professors

Iacono and Lykken challenge the validity of the prior surveys of

the Society for Psychophysiological Research and publish the

results of their own survey, which suggests that the control

question technique has not gained general or even substantial

acceptance among the members of the society. Because these

statistics were not offered into evidence before this Court and

have not been tested in the crucible of cross-examination, the

Court is unwilling to rely upon this data in resolving the

admissibility issues in this case. Professor Lykken's challenge to

the control question technique is longstanding and has been the

subject of repeated publications in the professional literature.

See The Polygraph in 1995: Progress in Science and the Law, 71 N.D.

L,. Rev. at 991-92 nn.33-35, 992 nn.38-39 (where Professor Honts

refers to articles by Lykken critical of the control question

technique and advocating the guilty knowledge test). Presumably,

government counsel is aware of Professor Lykken's views, for he

questioned Honts about his law review article. It is interesting

to note that Professor Lykken's attack on the entire control

question technique would conflict not only with Professor Honts'

views but also with those of DODPI, the government's own school for

training polygraphers. Perhaps this explains the government's

reluctance to use Professor Lykken or his theories in this or any

of the other recent federal cases addressing polygraph issues.

41

The Court is unable to find that the hybrid test utilized by Dr.

Hoots has generated "widespread acceptance" as the preferred

questioning technique among the community of psychophysiologists or

polygraphers in general. Nevertheless, while the hybrid test is a

relative new procedure in the field of polygraphy, it is avidly

supported by a respected group of researchers and is routinely

utilized by at least some law enforcement agencies. Even DODPI,

the government's own school of polygraphy, has utilized the

directed lie as part of its training, although it does not appear

that the directed lie technique is in widespread use among field

polygraphers (with the exception of the intelligence community)

But even if the field use of the directed lie technique is not

widespread, the Court is more interested in its acceptance among

scientists than among polygraphers in general, many of whom lack

any scientific training at all, as evidenced in this case.8 The

fact that the hybrid technique advocated by Professors Raskin,

Honts and the other Utah researchers has yet to gain general or

even widespread acceptance does not persuade the Court that the

______________

8 Captain Johnson, called by the defendant, has spent his

entire career in law enforcement and apparently has no scientific

training. Thomas Lewis, a supervisory special agent with the FBI,

was educated in the field of business administration and

accounting, although he has taken some courses in psychophysiology.

42

technique lacks scientific validity. Although polygraphs (of one

kind or another) have been utilized for decades, only recently has

intensive research been conducted in this area. In this developing

area of science, it is not surprising that no one technique or

viewpoint has gained general acceptance within the scientific

community. Based on the evidence introduced at the hearing, the

Court is satisfied that the hybrid technique used by Dr. Honts has

sufficient support within the scientific community to satisfy the

reliability concerns of Daubert.



6. Application of the technique

¶In assessing whether a polygraph test satisfies the

reliability component of Rule 702, the court must determine not

only the validity of the technique in the abstract but also ensure

that the technique was properly applied by a competent examiner.

United States v. Galbreth, 908 F. Supp. at 881-82, 893-94. "Absent

a showing that the examination was properly conducted by a

competent examiner, the proponent simply cannot establish that the

evidence is sufficiently trustworthy to be admissible in court."

Id. at 882. Thus, this Court rejects the defendant's argument that

all issues regarding the application of the scientific technique go

merely to the weight and not the admissibility of the polygraph

43

evidence. Instead, as part of its reliability assessment, the

court must ensure that the polygraph results were derived using a

faithful application of a valid scientific technique.

¶In this case, the polygraph exam was performed by Dr. Honts,

one of the principal authorities on polygraph theory and technique

and a chief proponent of the "hybrid" test developed by researchers

at the University of Utah. Dr. Honts utilized a state-of-the-art

polygraph instrument designed to take accurate measurements of

respiration, blood pressure, sweating, heart rate, and blood flow.

He further utilized electronic sensors (under the chair where the

defendant was seated) as a means of detecting subtle movement or

tension in the subject's lower body, which might be indicative of

the use of physical countermeasures. Dr. Honts complied with the

rigorous standards established by the New Mexico legislature in

administering the test, including the requirement that the tests be

taped. The Court has carefully reviewed the videotape of the

entire polygraph session and has considered the testimony

concerning the test procedure.

¶Dr. Honts conducted an extensive pretest interview wherein he

obtained the defendant's consent to the polygraph, familiarized the

defendant with the polygraph device and test procedure, and

elicited information from the defendant about his history, present

44

condition, and understanding of the purpose of the test and nature

of the criminal charges. He then introduced the questions that

would be asked during the test. Dr. Honts artfully introduced the

"probable lie" control question in a way that maneuvered the

defendant into giving a deceptive answer. In addition, he

instructed the defendant to lie as to two other "directed lie"

control questions.

¶After calibrating his instrument and running a preliminary

test which required the defendant to lie about a number that he had

selected, Dr. Honts then proceeded to administer three separate

series of charts using the questions that he had introduced

earlier. He permitted the defendant to take a break between each

round of questioning, which is standard polygraphy practice. In

keeping with his training and research techniques, Dr. Honts

discussed test questions with the defendant during these breaks

between the tests.

¶At the conclusion of the examination, Dr. Honts scored the

results using both the traditional "Utah" technique (which is the

standard used by most polygraphers) and a more sophisticated

computer analysis developed in recent years. Both scoring methods

yielded the same result, strongly indicating that the defendant was

45

not being deceptive when he answered the relevant questions on the

test.

¶The government's expert witnesses have challenged essentially

two aspects of the administration of the Honts' test. First, both

Dr. Abrams and Agent Lewis were of the opinion that a polygrapher

should discuss the test questions only during the pretest interview

and should carefully avoid any reference to those questions during

the breaks between the administration of the charts. Agent Lewis

said that questioning between the administration of the charts is

not the DODPI or FBI approach, a position that Dr. Honts does not

dispute. Dr. Abrams said that the technique utilized by Dr. Honts

is flawed because, by overemphasizing the control questions, it has

a tendency to increase the number of false negative errors, thereby

causing some subjects to appear truthful who are actually being

deceptive. While Dr. Abrams suggested that there were some older

studies that supported his position that there should be no talking

between the administration of the tests, he was unable to cite a

single study during his testimony. Agent Lewis, who stated that he

reads all of the professional literature as part of his duties as

an FBI supervisor, was not aware of any such studies.

¶Dr. Abrams and Agent Lewis also expressed concern that during

the administration of the test the defendant periodically moved the

46

fingers of his right hand, a movement which may have distorted the

blood pressure readings (since the cuff was attached to the

defendant's right arm). Neither Abrams nor Lewis suggested that

these movements occurred only in response to the control questions,

and thus the movements did not indicate the deliberate use of a

physical countermeasure in an attempt to elevate the response to

the controls and thereby diminish the differential response between

the controls and the relevant questions. Instead, both witnesses

testified that these twitching movements appeared to have been

entirely random, occurring during the relevant and neutral

questions as well as the controls. Nevertheless, Dr. Abrams

believed the movement affected the blood volume reactions (one of

the five channels of information measured by the polygraph device)

on some of the questions and therefore prevented those readings

from being scored.

¶The Court has carefully reviewed the videotape of the

polygraph session. Following the number test portion of the

pretest interview, Dr. Honts remarked that the defendant had a

tendency to twitch his right hand slightly during the questioning

and asked him not to move during the administration of the test.

The defendant then endeavored to adjust his position in the chair

in order to become as comfortable as possible. On the initial

47

test, the defendant slightly moved a finger on his right hand

following the first question, prompting Dr. Honts to caution him

again to be as still as possible. During the balance of the first

test, (which, like all three of the tests, lasted approximately

five minutes) the defendant appears to have remained perfectly

still, with no detectable motion of his right hand. At the outset

of the second test, Dr. Honts again reminded the defendant to

remain as still as possible. The videotape reflects, however, that

the defendant frequently moved one or more fingers on his right

hand at various times during the administration of the second test.

At the outset of the third series of questions, Dr. Honts once

again reminded the defendant of the importance of remaining still

during the questioning. Nevertheless, the videotape reflects some

twitching of the fingers of the defendant's right hand, although

the frequency of such movements is noticeably less than during the -

second test. During the pauses between the tests, Dr. Honts asked

the defendant if the questions relating to Penn-Teck were clear and

again explained that those questions pertained to some deliberate

plan to defraud the government rather than some accident or

mistake. Dr. Honts also discussed the control questions on the

test, asking whether anything particular had come to the

48

defendant's mind in response to the probable lie and deliberate lie

questions.

¶Neither government expert testified that the polygraph

administered by Dr. Honts is completely invalid simply because of

the random twitching of the defendant's right hand during certain

portions of the test. Nor is the Court prepared to find that Dr.

Honts so deviated from the standard protocol that the results of

the polygraph examination possess no evidentiary reliability within

the meaning of Rule 702. Nevertheless, the slight movements of the

defendant's hand -- even though not indicative of the use of

physical countermeasures -- remain a rich source for cross-

examination of both Dr. Honts and the defendant. Based on the

present testimony, however, the Court is not persuaded that the

results of the Honts polygraph are completely unreliable as a

matter of law. "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." Daubert, 113 S.Ct. at 2798.

¶Based on an analysis of the Daubert factors, I find that the

technique which Dr. Honts utilized in this case has been tested by

the scientific method, subjected to peer review, and determined by

a respected group of researchers to be a highly accurate means for

49

assessing credibility in a forensic setting. While Dr. Abrams has

published a study challenging the technique, he conceded that there

were inherent "weaknesses" in his "pilot study" and that it would

be inappropriate to make generalizations from his preliminary

results. Under the teachings of Daubert, I find that the specific

technique employed by Dr. Honts in this case is grounded in the

methods and procedures of science and therefore qualifies as

"scientific . . . knowledge" within the meaning of Rule 702 and

Daubert.


7. The relevancy of the expert testimony

¶To be admissible under Rule 702, scientific evidence must not

only be reliable but must "assist the trier of fact to understand

the evidence or to determine a fact in issue." As the Fifth

Circuit has noted, "[i]f polygraph technique is a valid (even if

not certain) measure of truthfulness, then there is no issue of

relevance." United States v. Posado, 57 F.3d at 433; United States

v. Galbreth, 908 F. Supp. at 895; United States v. Crumby, 895 F.

Supp. at 1361. The polygraph evidence offered by the defendant in

this case bears upon his intent or knowledge, which are critical

issues in this case. Rule 702's helpfulness standard is thus

satisfied.

50

B. The Johnson Polygraph

¶The admissibility of the polygraph examination administered by

Captain Johnson merits little discussion. Utilizing the probable

lie version of the control question test, Johnson drafted his

relevant questions prior to the return of the indictment. The

government has convincingly argued, and the defendant has not

seriously disputed, that these questions do not precisely dovetail

with the allegations of the indictment and, therefore, yield

responses which have little if any probative value. The control

questions formulated by Captain Johnson were equally suspect, which

lends support to those critics who claim that most polygraphers

lack the sophistication to devise appropriate control questions.

See 71 N.D. L. Rev. at 991. Furthermore, the test was administered

by someone who has not made a study of psychophysiology and who

failed to record the examination. The absence of such safeguards

-- which the Court deems critical to the admission of any polygraph

test -- significantly undermines the reliability of the examination

and creates a heightened threat of prejudice. The Johnson test

satisfies neither the reliability nor the relevancy prongs of Rule

702, and it fails the Rule 403 balancing test as well. It is

inadmissible.

51

V. RULE 403-BALANCING

¶Even if scientific evidence meets the reliability and

relevance requirements of Rule 702, it may nevertheless be excluded

"if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence." Fed. R. Evid. 403.

Daubert noted that because expert evidence "`can be both powerful

and quite misleading, `" courts are permitted more control over

experts than lay witnesses. Daubert, 113 S.Ct. at 2798 (quoting

Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It

Should Not Be Amended, 138 F.R.D. 631, 632 (1991)). Because of the

liberal admissibility standards of the federal rules and the

Supreme Court's hospitable treatment of novel scientific evidence,

the Fifth Circuit has envisioned "an enhanced role for Rule 403" in

the post-Daubert era. United States v. Posado, 57 F.3d at 435.

"There can be little doubt that polygraphy evidence, if

reliable, is relevant evidence with an enormous amount of probative

value." United States v. Crumby, 895 F. Supp. at 1361; United

States v. Galbreth, 908 F. Supp. at 895. Here, the polygraph exam

was administered by a highly-trained and respected scientist who

52

utilized state-of-the-art equipment and a technique shown by

empirical data to be extremely effective in detecting deception.

During the exam the defendant responded to questions that address

the heart of the government's case: whether he "develop[ed] a

scheme designed to defraud Medicare or Medicaid through the use of

incorrect billing codes" or "cause[d] incorrect billings to be

filed with Medicare or Medicaid."9 The results of the polygraph

exam are therefore highly probative of whether the defendant is

being truthful about denying any involvement in the first 100

crimes charged in the indictment. "Clearly, the probative value of

such evidence is beyond question." Crumby, 895 F. Supp. at 1361.

But even though the probative value of such evidence is great,

so is the potential prejudice that may result from its admission.

Id. ("the potential prejudicial effects of permitting a jury to

consider a polygraphy examination are enormous," calling for the

"utmost caution" before admitting such evidence). In addition to

concerns about reliability -- which the government says are

increased because the defendant "risked nothing" by submitting to

________________

9 In addition to these two relevant questions, Honts also

asked whether the defendant knew the billing codes were incorrect

and whether the incorrect billings were made intentionally. Def.'s

Ex. 7; Joint Ex. 1 (the videotape).

53

an exam before a "friendly polygrapher"10 -- there is the potential

danger that a jury will consider polygraph evidence "to be shrouded

with an aura of near infallibility, akin to the ancient Oracle of

Delphi." United States v. Alexander, 526 F.2d 161, 168 (8th Cir.

1975).11 There is a further risk that admitting such evidence would
___________

10 The "friendly polygrapher" theory, discussed at length

during the hearing, rests on the notion that a litigant who submits

to a polygraph without notice to the opposing party risks nothing

in taking the exam, for he knows that the results will not be

revealed if they indicate deception. It has been hypothesized that

because there is no fear of detection in such a confidential

setting, the subject will be more likely to pass the exam. Dr.

Honts testified that this theory is not supported by any empirical

data, is not accepted by either the scientific community or

polygraphers in general, and is based on the illogical premise that

the subject doesn't care about the outcome of the test, when in

fact the subject is concerned about the results (since a favorable

result will yield a benefit and an unfavorable result may

compromise the subject's relationship with his counsel or family)

Dr. Honts testified that a person who was truly unconcerned about

the test results would not respond to either the relevant or the

control questions, resulting in an inconclusive, and therefore

unusable, score. The government's expert, Dr. Abrams, agreed that

taking an exam in a confidential setting does not generally create

a problem, for the subject realizes the importance of the test and

is therefore concerned about the results. Dr. Abrams did not even

mention the concept in his latest book, The Complete Polygraphy

Handbook.

11 In Piccinonna, 885 F. 2d at 1533 & n.14, the Eleventh

Circuit cited studies that "refute the proposition that jurors are

likely to give disproportionate weight to polygraph evidence." Dr.

Honts' own studies of this issue yielded similar results. The

government has offered no empirical data that juries are unduly

swayed by polygraph evidence. Furthermore, "the specter of undue

deference by factfinders is no longer persuasive given the Daubert

court's statement that arguments for excluding evidence based on

54

lead to a time-consuming battle of the experts that would produce

much heat but little light. Because of these concerns and the

historic hostility to polygraph evidence, the courts that have

rejected the per se rule of exclusion have looked to Rule 403 "as

a means of forcing litigants to use test procedures and protocols

that make for reliable test results." Id. at 418. See Piccinonna,

885 F.2d at 1536 (requiring adequate notice to the opposing party

that polygraph evidence will be offered, an opportunity for the

opposing party to have its own polygrapher administer a similar

test, and limiting admissibility of polygraph evidence to the

purpose of impeaching or corroborating witness testimony)

¶In this case, Dr. Honts adhered to the protocols required by

the New Mexico rule, which requires a competent operator, reliable

testing procedures, the recording of the exam, and advance notice

of the intent to use polygraph evidence. The defendant has also

offered to submit to a government-sponsored polygraph. The

government, however, argues that an essential safeguard missing in

this case is notice to the government prior to the administration

________________

visions of `befuddled juries . . . confounded by absurd and

irrational pseudoscientific assertions' are `overly pessimistic

about the capabilities of the jury, and of the adversary system

generally.'" Misconceptions and Reevaluation -- Polygraph

Admissibility after Rock and Daubert, 1996 U. Ill. L. Rev. at 405-

06 (quoting Daubert, 113 S.Ct. at 2798)

55

of the polygraph examination, thus depriving the government of an

opportunity to submit relevant questions or participate in the

selection of the polygrapher, and further eliminating any "risk" to

the defendant. While the government is correct that the Fifth

Circuit has cited such prior notice as a particularly effective

safeguard, Posado, 57 F.3d at 435, Pettigrew, 77 F.3d at 1515, it

has not imposed such a safeguard as an absolute condition to

admissibility. Instead, the Court has noted that "other similar

safeguards" may suffice. Pettigrew, 77 F.3d at 1515.

¶By videotaping the polygraph examination, Dr. Honts has made

it possible for the government to analyze the administration of the

test in a way that is not normally possible, for most polygraphs

(including those conducted by government polygraphers) are not

recorded. While it is true that the government was not able to

"suggest relevant questions," the government has never challenged

the adequacy of the relevant questions utilized by Dr. Honts. And

while the government did not participate in the selection of Dr.

Honts, no court has ever suggested this as an appropriate

safeguard, and, in any event, Dr. Honts is a leading figure in the

field of polygraphy with impeccable credentials. Finally, the

argument that the defendant "risked nothing" by taking the exam in

a confidential setting -- while attractive to some jurists -- is

56

not supported by any empirical data and is not considered a major

concern even by the government's own expert.

¶The Court 15 satisfied that through effective cross-

examination by government counsel, the presentation of contrary

evidence, and careful cautionary instructions from the court, the

jury will not consider polygraph evidence as a Delphic

pronouncement but will properly weigh the testimony along with the

other evidence. Accordingly, I find that the probative value of

this evidence is not substantially outweighed by the danger of

unfair prejudice.


VI. HEARSAY OBJECTIONS

¶In an argument first raised in its post-hearing brief, the

government argues that, "quite simply," the polygrapher's testimony

concerning defendant's statements during the polygraph examination

are inadmissible hearsay. The defendant has not had an opportunity

to respond to this argument, as the Court required that all

supplemental briefs be filed within ten days of the hearing, which

meant the defendant did not have the benefit of the government's

brief when he submitted his own. There is no need to reopen the

briefing schedule, however, for it sees no merit to the

government's argument.

57

¶First, it should be noted that none of the post-Daubert

decisions addressing the admissibility of polygraph evidence --

whether the courts favored or disfavored such evidence -- has ever

mentioned a potential hearsay problem with such evidence. Nor in

the Court's extensive readings in this area has it encountered any

legal commentary suggesting that there are hearsay obstacles to

polygraph evidence. See, e.g., John W. Strong, McCormick on

Evidence § 206 (4th ed. 1992); Paul a. Giannelli & Edward J.

Imwinkelried, Scientific Evidence 215-256 (2d ed. 1993); James R.

McCall, Misconceptions and Reevaluation -- Polygraph Admissibility

after Rock and Daubert, 1996 U. Ill. L. Rev. 363 (1996); W. Thomas

Halbleib, United States v. Piccinonna: The Eleventh Circuit Adds

Another Approach to Polygraph Evidence in the Federal System, 80

Ky. L.J. 225 (1992). The government has cited no case law12 or

__________________

12 A few of the cases cited by the government mention

polygraphy and hearsay in the same opinion, but none of the cases

hold that polygraph evidence constitutes inadmissible hearsay. For

example, in DeMartino v. Weidenburner, 616 F.2d 708 (3rd Cir.

1980), a habeas petitioner who alleged that the prosecution had

suppressed evidence useful for impeachment conceded that certain

polygraph results were not admissible but nevertheless argued that

the statements made to the polygrapher were. The court held that

the statements were not material because they were merely

repetitive of trial testimony. Another decision cited by the

government, United States v. Rea, 958 F.2d 1206 (2nd Cir. 1992)

discusses hearsay principles (on page 1225, not page 1215 of the

opinion) but does so in a section that has nothing to do with

polygraph issues. The other cases cited deal with exceptions to

58

other authority supporting its position that polygrapher testimony

about the defendant's statements during a polygraph exam

constitutes hearsay. Despite the open hostility expressed by so

many courts to polygraph evidence in the pre-Daubert era, the cases

have not identified the hearsay rule as being a major obstacle to

polygraph evidence. Be that as it may, the government has raised

the argument here and it merits the Court's attention.

¶The government states at the outset that the defendant "seeks

to introduce his prior statements, i.e., the questions and answers

during the polygraph session, for the truth thereof." Post-Hearing

Br. at 17. This initial premise -- upon which the rest of the

government's hearsay argument depends -- is flawed. It is true

that the defendant's "yes" and "no" responses during the polygraph

exam were intended as assertions and therefore qualify as

"statements" within the meaning of Fed. R. Evid. 801(a). But in

the context of expert testimony from a polygrapher, those

statements are being offered not for their truth but for the

physiological responses they induced. It is not the defendant's

statements that are of interest to the polygrapher but rather the

__________________

the hearsay rule, cases which do not apply if polygraph testimony

is not hearsay.

59

squiggles that appear on a chart caused by changes to the autonomic

nervous system in response to those statements. In other words,

the statements have value, independent of their truth or falsity,

as a stimulus that triggers a measurable response in physiological

systems that are not subject to the defendant's voluntary control.

It is these physiological manifestations of the autonomic nervous

system that are the focus of the expert's science and that he uses

to make an inference about the defendant's credibility. The

statement has utility to the expert, and thus to the jury, whether

it is true or not.

¶The value of the statement as a stimulus, independent of its

truth, is easily seen where a defendant denies culpability but the

polygrapher's physiological measurements suggest deception:

clearly in this situation the statements are not offered for their

truth, for the polygrapher will testify that the statementgiver

does not himself believe them to be true. But even where the

polygrapher reaches the opposite conclusion, the statement's

function as a stimulus does not change. So, a statement made to a

polygrapher is significant not for its truth but only because it

engenders an uncontrollable, and therefore nonassertive,

physiological response. Since the value of the statement as a

stimulus does not hinge upon the defendant's credibility (i.e., a

60

response will be induced whether the defendant is truthful or

deceptive), the statement is not being offered for the truth of the

matter asserted. Of course, in a given case, the polygrapher's

interpretation of the defendant's physiological responses may lead

him to conclude that the defendant believed his answer to be true,

an opinion that may ultimately be accepted by the factfinder as

supporting the defendant's credibility. But regardless of the

polygrapher's ultimate finding, the statement has a value

independent of its truth or falsity. Since the statement itself is

not being offered in evidence to prove the truth of the matter

asserted, it is not hearsay under Rule 801(c)

¶In a case predating the Federal Rules of Evidence (but citing

to the proposed rules), a defendant charged with making false

declarations before the grand jury sought to introduce the

testimony of a polygraph expert at the trial of the case. United

States v. Ridling, 350 F. Supp. 90 (E.D. Mich. 1972). In

addressing whether there was a hearsay problem with such evidence,

the court made the following observations:

The questions of the examiner and the answers of
the subject are not received in evidence to prove
the truth of the fact asserted. They have value
and will be received as evidence of the stimulus
for the response of the autonomic nervous system of
the subject that is being interpreted by the
expert, and to identify the opinion with a

61

statement or act otherwise made or done by the
subject. The testimony to be admitted is the
opinion of the expert that the subject is or is not
telling the truth. The expert may base his opinion
on matters which are " . . . reasonably relied upon
by experts in the particular field." It is clear
that a well-conducted polygraph examination,
including the questions, answers and the recorded
responses, is the stuff on which polygraph experts
rely. In one sense, the expert is stating his
opinion on what he sees, what he hears and what he
knows are the psychological responses of the body
to statements that are truthful or not truthful.
In this sense, he is like a physician who examines
a patient and is permitted to express his opinion
on the physiological condition of the patient.
This has nothing to do with hearsay.

Id. at 99.13 This Court has it exactly right: the value of the out-

of-court statement does not depend upon the credibility of the

asserter (although that statement will be used as a means with

which to gauge credibility) and therefore is not offered for the

truth of the matter asserted. The polygraph evidence, therefore,

will not infringe the rule against hearsay.

_____________________

13 The court stated that, in another sense, the statements

of the subject "appear to be hearsay," but since the statements

were necessary in order to establish the relevancy of the expert's

opinion, and since the evidence had a high degree of

trustworthiness, the court deemed the evidence admissible as an

exception to the hearsay rule. 350 F. Supp. at 90, 99 (E.D. Mich.

1972) (citing proposed rule 803(24)). Of course, it was unnecessary

for the court to apply a hearsay exception to statements which it

had earlier found not to be hearsay. Id. ("the answers of the

subject are not received in evidence to prove the truth of the fact

asserted.")

62

VII. RULE 704

¶The government further argues that the defendant is proposing

to introduce the opinion of a polygrapher concerning defendant's

mental state at the time of the alleged offense, as the polygrapher

will in effect be asked to testify that defendant lacked the intent

to defraud. According to the government, testimony regarding this

"ultimate issue" embraces a subject matter precluded by Rule

704 (b). The defendant responds that Rule 704 (b) is not implicated,

as the polygrapher will not be called upon to testify about the

defendant's mental state at the time of the crime but instead about

defendant's truthfulness at the time the polygraph test was

administered. "From this information, the jury may or may not draw

an inference as to the defendant's mental state at the time the

alleged crime was committed." Def.'s Supp. Sr. at (unnumbered

page) 4.14

¶The common law rule that prohibited a witness from testifying

in the form of an opinion or inference about the ultimate issue in

the case (for fear that this would usurp the province of the jury)

_______________

14 Local Rule 10.1 requires that all papers offered for

filing be numbered on each page. All of the defendant's motions

and briefs in this case have been unnumbered. Any further

submissions from the defendant in violation of the local rule will

be returned.

63

was abolished by the enactment of the Federal Rules of Evidence in

1974. However, as part of the Insanity Defense Reform Act of 1984,

Congress resurrected the "ultimate issue" rule in the limited

context of expert testimony regarding the mental state of a

defendant in a criminal case.

No expert witness testifying with respect to
the mental state or condition of a defendant in a
criminal case may state an opinion or inference as
to whether the defendant did or did not have the
mental state or condition constituting an element
of the crime charged or a defense thereto. Such
ultimate issues are matters for the trier of fact
alone.

Fed. R. Evid. 704(b). While there is some question as to whether

the rule even applies outside the context of expert testimony on

the issue of a defendant's sanity or insanity, see Michael M.

Graham, Federal Practice and Procedure § 6662 nn. 1, 4 (interim ed.

1992 & Supp. 1996) (citing opposing viewpoints about the scope of

the rule), the Eleventh Circuit has assumed that the rule extends

to any expert testimony pertaining to a mental state constituting

an element of the crime. See, e.g., United States v. Alvarez, 837

F.2d 1024, 1031 (11th Cir.) (applying Rule 704(b) to expert

testimony by a DEA agent that gave rise to an inference that crew

members aboard a smuggling vessel were likely aware that the vessel

carried drugs), cert. denied, 486 U.S. 1026 (1988).

64

¶Indisputably, the defendant's expert cannot expressly state a

conclusion that the defendant did or did not have the requisite

intent to defraud, for "[e]xpert testimony expressly stating an

opinion as to the defendant's state of mind at the time of the

offense is barred by rule 704(b)." United States v. Alvarez, 837

F.2d at 1031. But that is not what the defendant proposes to do in

this case. Instead, he intends to offer expert testimony regarding

his state of mind on the day of the polygraph examination -- i.e.,

that he was not consciously deceptive on that occasion. The

defendant will then ask the jury to infer that because the

polygrapher's physiological measurements did not indicate conscious

deception during the polygraph exam, the defendant lacked the

intent to defraud at the time of the alleged offense. Where an

expert's opinion testimony gives rise to an inference about the

defendant's state of mind, that testimony does not offend Rule

704 (b) so long as that inference is not stated by the expert but is

left for the jury to draw. Id. at 1031. It matters not that the

inference is one that will be "obvious" to the jury, so long as the

expert does not "expressly `state [the] inference.'" Id. (quoting

Rule 704(b)).

¶Ultimately, the application of Rule 704 (b) must await the

trial of the case, for much depends upon the "style" of the

65

question and answer concerning the defendant's mental state.

United States v. Edwards, 819 F.2d 262, 265 (11th Cir. 1987);

Federal Practice and Procedure § 6662. While it is not inevitable

that testimony from a polygrapher concerning the defendant's mental

state on the date of the polygraph exam will offend Rule 704 (b), it

is certainly conceivable that counsel may frame a question that

calls for, or the expert may give an answer that constitutes, a

conclusion as to the ultimate legal issue to be decided by the

jury. But as long as the polygrapher's testimony is limited to

giving an opinion as to the defendant's mental state (i.e., lack of

conscious deception) at the time he was tested, and the inference

to be drawn from that evidence is left to the trier of fact, the

testimony will not run afoul of Rule 704 (b). There is "a line that

expert witnesses may not cross," United States v. Mitchell, 996

F.2d 419, 422 (D.C. Cir. 1993), and it will be up to defense

counsel to ensure that the expert understands where that line is

and keeps his testimony within its boundary.


VIII. Rule 608

¶Finally, the government argues that the results of the

polygraph examination are inadmissible under Rule 608. This Court,

however, is not at liberty to reconsider an issue that has already

66

been decided by the Eleventh Circuit's en banc decision in

Piccinonna.

Piccinonna holds that polygraph evidence may be admitted "when

used to impeach or corroborate the testimony of a witness at

trial." United States v. Piccinonna, 885 F.2d at 1536. When used

for this purpose, the polygrapher's testimony "will be governed by

the Federal Rules of Evidence for the admissibility of

corroboration or impeachment testimony." Id. The court then

specifically referenced language from Rule 608 (a), which allows

opinion or reputation evidence of a witness' truthful character

"only after the character of the witness for truthfulness has been

attacked by opinion or reputation evidence or otherwise." Fed. R.

Evid. 608(a). Thus, "under Rule 608," a witness' in-court

testimony may not be corroborated by evidence that he "passed" a

polygraph exam unless or until his credibility has been challenged.

885 F.2d at 1536.

¶On remand, the Piccinonna district court held that the

polygraph evidence offered by the defendant was inadmissible

because the questions and answers of the polygraph test were simply

"irrelevant." United States v. Piccinonna, 729 F. Supp. 1336, 1337

(S.D. Fla. 1990) (Piccinonna II). After frankly admitting that it

was "not clear what the Court of Appeals would have this court do,"

67

Id. at 1336, the court mused that even if the questions and answers

had been relevant, it was "doubtful that such evidence would ever

be admissible" since it fits under neither provision of Rule 608.

Id. at 1337. The `court reasoned that a single polygraph

examination would not be admissible under Rule 608(b) since it

constitutes a specific instance of conduct which "`may not be

proved by extrinsic evidence.'" Id. at 1338 (quoting Rule 608(b)).

The court then concluded that polygraph evidence is inadmissible

under Rule 608 (a) because a single polygraph session is an

inadequate foundation upon which to base an opinion as to a

defendant's "`character for truthfulness or untruthfulness.'" Id.

(quoting Rule 608(b)). The government, adopting this argument,

argues that Rule 608 stands as an absolute bar to the admission of

polygraph evidence.

¶The district court's reasoning in Piccinonna II cannot be

reconciled with the Eleventh Circuit's en banc opinion, which

specifically invoked Rule 608(a) and declared that, under that

rule, a witness' in-court testimony could not be corroborated by

polygraph evidence unless or until his credibility is first

attacked. As another court has observed, it is clear that the

Eleventh Circuit "considered and concluded that a single polygraph

result would be enough to support testimony under 608(a)." United

68

States v. Padilla, 908 F. Supp. 923, 927 (S.D. Fla. 1995). In

response to the view that Piccinonna II "effectively stripped the

Court of Appeals' decision of much of its meaning," Id., the

government has pointed out that the Piccinonna II decision was

ultimately affirmed. 925 F.2d 1474 (11th Cir. 1991) (table). But

one cannot infer from this unpublished ruling that the court of

appeals approved the lower court's obiter dictum discussion of Rule

608. Indeed, had the Eleventh Circuit agreed with the district

court's reasoning that Rule 608 stands as an absolute bar to all

polygraph evidence, surely it would have so stated, for its

published en banc decision signaled a major departure in the law of

polygraph evidence with far-reaching consequences in the circuit.

In other words, it would not let stand a published en banc decision

that clearly contemplated the admissibility of polygraph evidence

in criminal trials if it was persuaded by the district court's

analysis that such evidence is, after all, never admissible.

Thus, the government's contention that Rule 608 (a) prohibits the

admission of polygraph evidence is foreclosed by Piccinonna.

Indeed, even the dissent in Piccinonna did not challenge the

admissibility of polygraph evidence under Rule 608 but argued that

Rule 608 was subject to the strictures of Rule 403, which operated

to exclude polygraph evidence because it posed too great "a danger

69

of prejudice, confusion of the issues and wasting time." Id. at

1541 (Johnson, J., concurring in part and dissenting in part)

Thus, it would appear that the entire en banc panel was of the

opinion that Rule 608 posed no barrier to the admission of

polygraph evidence.

¶During the motions hearing, Dr. Honts conceded that the

function of a polygraph examination is not to determine the

subject's general character for truthfulness or untruthfulness but

to assess the subject's credibility with respect to a specific and

narrow issue relating to a particular matter under investigation.

Since opinion evidence under Rule 608 (a) "may refer only to

character for truthfulness or untruthfulness," and since Honts has

disclaimed any expertise in this area, the government reasons that

Honts' testimony is outside the scope of the rule. While this

argument has a certain first blush appeal, it does not withstand

analysis.

¶In Piccinonna the Eleventh Circuit addressed a polygraph

examination administered for the purpose of assessing the

defendant's credibility with respect to the specific perjury charge

at issue in that case. The court did not question the

applicability of Rule 608 (a) in that circumstance. The fact that

an expert proposes to state an opinion as to the believability of

70

specific testimony, rather than the general credibility of the

witness, does not mean that the expert is not testifying as to the

witness' "character for truthfulness or untruthfulness" under Rule

608(a). 28 Federal Practice and Procedure § 6114 at 58-59. Expert

opinion regarding the believability of specific testimony may have

the same function and effect as traditional character evidence and

"should not depend on something so fortuitous as the phraseology

employed by the expert to express his opinion." Id. at 59.

Furthermore, the construct that the law places on opinion evidence

regarding a witness' credibility as to a single issue is for the

court, not the polygrapher, to decide. Dr. Honts is not a legal

expert, and courts "should not be bound by the label the expert

chooses to apply to his opinion." Id.15

_____________

15 It is sometimes difficult to determine whether evidence

concerning a witness' credibility constitutes "character evidence"

within the scope of Rule 608. "This problem is presented when the

expert states an opinion concerning either the witness's mental

capacity to tell the truth or the believability of specific

testimony." 28 Federal Practice and Procedure § 6114 at 58. If it

is assumed that an opinion concerning the believability of specific

testimony does not qualify as character evidence since it does not

relate to the general credibility of the witness, then

"admissibility would be decided solely by reference to Rule 702 and

Rule 403." Id. at 59 n.31. Thus, whether the polygrapher's

testimony is viewed as "character evidence" within the scope of

Rule 608 or is viewed as something other than true character

evidence, it is nevertheless admissible under the Federal Rules of

Evidence.

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¶There have been various interpretations of Piccinonna's

reference to Rule 608, but one thing seems clear: the Eleventh

Circuit assumed that Rule 608 (a) encompasses testimony from a

polygrapher about a defendant's credibility with respect to the

specific issue in the case. The fact that the expert denies that

he is expressing an opinion about the defendant's "character for

truthfulness" does not control the legal effect or significance of

his opinion. In other words, it is for the court, not the expert,

to decide whether his opinion about a witness' truthfulness or

untruthfulness on a single occasion regarding a particular fact of

relevance to the case constitutes "character evidence." The

Eleventh Circuit has evidently decided that it does. This Court is

not free to ignore the plain import of the en banc decision.

Accordingly, the government's Rule 608 argument must be rejected.


CONCLUSION

¶This Court is not enamored of polygraph evidence and does not

lightly countenance its use in trial proceedings. But the Court is

not free to ignore the teachings of Daubert, which calls for the

admission of a novel theory or technique that is based upon

scientifically valid principles, even if that theory or technique

has yet to achieve general acceptance within the scientific

72

community. In this case, the government did not mount a frontal

assault on the reliability of all polygraph evidence (as some

critics have done) but instead focused on the particular technique

utilized by Dr. Honts, arguing that it has not been shown to be as

reliable as the technique more commonly used by polygraphers.

While the government has shown that not all members of the

scientific community accept the mixed format or hybrid technique,

it has failed to demonstrate that the technique is some form of

pseudoscience or is less reliable than the traditional probable lie

version of the control question technique, which the government

concedes satisfies the Daubert standard. Although there remain

concerns about the reliability of the polygraph evidence offered in

this case -- which will doubtless prove a rich source for cross-

examination -- the Court is persuaded that the technique employed

by Dr. Honts meets both the reliability and relevance components of

Rule 702.

¶As a caveat to its ruling, the Court notes that it would truly

be a remarkable case where a typically trained polygrapher --

unschooled in psychophysiology or some related scientific

discipline -- would be allowed to offer expert testimony regarding

the results of a polygraph examination, when so much depends upon

the qualifications and competence of the examiner. Dr. Honts, of

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course, is not the typical polygrapher, and the reception he has

received here may not be accorded to those who have less scientific

training or experience.

¶For the reasons discussed herein, the Court GRANTS the

government's motion to exclude the results of the polygraph

examination administered by Captain William Johnson but DENIES the

government's motion to exclude the results of the polygraph

examination administered by Dr. Charles Honts.







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End Document


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