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Admit Polygraph Evidence for Rebuttle

MOTIONS IN LIMINE:Other Creative Motions

I. POLYGRAPH EVIDENCE TO REBUT PROSECUTION EVIDENCE IS RELEVANT AND ADMISSIBLE

  1. Overview
    • Defendant will testify at Trial. The prosecution will cross-examine him. Once the prosecution attacks Defendant’s credibility, then the defense, as rebuttal evidence, has the right to present the testimony of Dr. Rovner that Defendant is credible and that he passed a polygraph examination regarding those events. See Declaration of Dr. Rovner and confidential report attached hereto as Exhibit A.
    • The testimony of the expert regarding the polygraph exam will be offered after Defendant has testified and has been cross-examined; thus the evidence will be presented after evidence has been presented by the People that Defendant is mendacious. The polygraph evidence will rebut the prosecution evidence and will be offered as part of the right to present a defense, due process right to a fair trial, and other Constitutional rights as specified below.
    • It is difficult to understand the glaring inconsistency between our government’s dedicated faith in polygraph examinations in the sensitive context of criminal investigations and national security and its rejection of such evidence in a case that provides relevant evidence on the defendant’s state of mind and which rebuts the prosecution’s evidence that suggests that Defendant is lying when he testifies under oath at the trial. Polygraphs are used on a regular basis throughout the United States and world. In the United States, polygraphs are used by the Department of Defense, the FBI, CIA, NSA, DEA, and Secret Service; all branches of the military; and numerous state and local law enforcement agencies throughout the country. The annual budget for the Department of Defense for polygraph testing alone is approximately $50 million. In doing so, the governmental agencies accept the value and validity of the polygraph test process. This is a court trial. There is no jury that could be falsely swayed by the scientific evidence.
    • If the courts honestly believed polygraph evidence to be unreliable, why would they permit juries to use it as a basis for important factual determinations in civil cases and when there has been a pretrial agreement of the parties in criminal cases? Surely, courts of law would not countenance using the results of trial by combat or the testimony of a Ouija board interpreter, no matter how much advance stipulation by the parties had taken place. The polygraph stipulation approach is an unprincipled anomaly in the law of evidence. The issue of Defendant’s truthfulness will be raised by the People. The Polygraph Exam is relevant evidence regarding Defendant’s credibility. Defendant passed a polygraph examination by a recognized expert in the field. The exam and the opinion of the expert will be offered as relevant rebuttal evidence to contradict the prosecution evidence that Defendant is not truthful.
    • The defense will demonstrate, that as of the year 2009, polygraph examinations performed by a trained and qualified expert with “hands on” knowledge of polygraph testing are accepted in the relevant scientific community as a valid and accurate technique for determining whether a statement is truthful or not. Further, Defendant has Constitutional rights that allow him to present the evidence (as discussed hereinbelow).
  2. To Exclude Relevant Rebuttal Evidence Violates Due Process, the Right to Present a Defense, Right to a Fair Trial, and Equal Protection.
    As explained below in II, the California legislature cannot limit the U.S. Constitution, due process, right to a fair trial, right to present evidence, right to testify, right to rebut evidence, etc. Barring the defendant from introducing reliable evidence to rebut prosecution evidence would constitute a denial of the Constitutional rights of cross-examination, equal protection, due process, and right to a fair trial. The Constitutional rights of a criminal defendant cannot be abrogated by a state statute. In a civil case (if able to lay a foundation) polygraph evidence is admissible. See In Re Kathleen W. (1987) 190 Cal.App.3d 68. (In a dependency hearing, mother of molested daughter should have been allowed to establish that she had undergone favorable Polygraph Examination.) Ev. Code 351.1 does not apply to civil cases. See also Rufo v. Simpson (2001) 86 Cal.App.4th 573 (wrongful death action, court held defendant was not prejudiced by plaintiff’s cross-examination implying that defendant had taken and failed polygraph tests). Equal protection requires admission of the polygraph evidence.

II. FEDERAL CONSTITUTIONAL RIGHTS TRUMP EVID.C. §351.1. BARRING THE DEFENSE REBUTTAL EVIDENCE WOULD VIOLATE CONSTITUTIONAL RIGHTS, INCLUDING THE RIGHT TO A FAIR TRIAL, DUE PROCESS, COMPULSORY PROCESS, AND RIGHT TO PRESENT EVIDENCE.

Under the facts of this case, barring the defense from presenting favorable polygraph evidence would violate defendant’s Federal and state Constitutional rights: the right to a fair trial; the state and federal constitutional right to Due Process; to compulsory process; and, to testify on one’s own behalf. If the court excludes favorable polygraph evidence, it would violate the federal constitutional right that the trier of fact consider all relevant evidence. The polygraph evidence “promotes the ascertainment of truth…,” the purpose of a trial. The prosecution has no legitimate interest in falsely characterizing Defendant as mendacious.

The United States Supreme Court has held the application of state evidentiary rules governing the admissibility of evidence can be inconsistent with the federal constitutional right to due process, to compulsory process, and to testify on one’s own behalf. See Rock vs Arkansas (1987) 483 U.S. 44 [97 L.Ed.2d 37, 107 S.Ct. 2704]; Green v. Georgia (1979) 442 U.S. 95 [60 L.Ed.2d 738, 99 S.Ct. 2150] [hereafter Green]; Chambers v. Mississippi (1973) 410 U.S. 284 [35 L.Ed.2d 297, 93 S.Ct. 1038]; Washington v. Texas (1967) 388 U.S. 14 [18 L.Ed.2d 1019, 87 S.Ct. 1920].) A defendant charged with criminal violations has a federal guaranteed right to present evidence and witnesses in his behalf. (Taylor v. Illinois 484 U.S. 400, 408 (1988); Chambers v. Mississippi 410 U.S. 284, 302 (1973).)

State evidentiary rules may so seriously impede the discovery of truth, “as well as the doing of Justice,” that they preclude the “meaningful opportunity to present a complete defense” that is guaranteed by the Constitution, Crane v. Kentucky, (1986) 476 U. S. 683, 690 (internal quotation marks omitted).

“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi, (1973) [410 U. S. 284], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, Washington v. Texas, (1967) 388 U. S. 14, 23; Davis v. Alaska, (1974) 415 U. S. 308 , the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense.’ California v. Trombetta, (1984) 467 U. S. [479, 485 ]; cf. Strickland v. Washington, (1984) 466 U. S. 668, 684-685. (`The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment.’) We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard. In re Oliver, (1948) 333 U. S. 257, 273; Grannis v. Ordean, (1914) 234 U. S. 385, 394. That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and `survive the crucible of meaningful adversarial testing.’ United States v. Cronic, (1984) 466 U. S. 648, 656. See also Washington v. Texas, supra, at 22-23.” Crane v. Kentucky, (1986) 476 U. S. 683, 690-691.

In Chambers v. Mississippi, (1973) 410 U. S. 284, 302, the U.S. Supreme Court held that “where constitutional rights directly affecting the ascertainment of guilt are implicated, the
hearsay rule may not be applied mechanistically to defeat the ends of Justice.”

“Few rights are more fundamental than that of an accused to present witnesses in his own defense. E.g., Webb v. Texas, (1972) 409 U. S. 95; Washington v. Texas, (1967) 388 U. S. 14, 19; In re Oliver, (1948) 333 U. S. 257. In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers’ defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of Justice.” Chambers v. Mississippi, (1973) 410 U. S. 284, 302.

Restricting the “defendant’s right to present relevant evidence,” must comply with the admonition in Rock v. Arkansas, (1987) 483 U. S. 44, 56, that they “may not be arbitrary or disproportionate to the purposes they are designed to serve.” Applying that admonition to Arkansas’ blanket rule prohibiting the admission of hypnotically refreshed testimony, the U.S. Supreme Court reasoned that a “State’s legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case.” Id., at 61.

Any ruling excluding reliable, relevant defense evidence that rebuts prosecution evidence would violate a citizen’s constitutional right to present a defense to a criminal charge.

A person accused of a crime has a firmly established constitutional right to present a defense. The Sixth Amendment provides that “the accused shall enjoy the right… to have compulsory process for obtaining witnesses in his favor.”

“Few rights are more fundamental than that of an accused to present witnesses in his own defense, see, e.g., Chambers v. Mississippi, (1973) 410 U. S. 284, 302. Indeed, this right is an essential attribute of the adversary system itself. … The right to compel a witness’ presence in the courtroom could not protect the integrity of the adversary process if it did not embrace the right to have the witness’ testimony heard by the trier of fact. The right to offer testimony is thus grounded in the Sixth Amendment … .” Taylor v. Illinois, (1988) 484 U. S. 400, 408-409.

According to Joseph Story, that provision was included in the Bill of Rights in reaction to a notorious common-law rule categorically excluding defense evidence in treason and felony cases. In Washington v. Texas (1967) 388 U. S. 14, the court held that this right is applicable to the States because it “is in plain terms the right to present a defense” and that it “is a fundamental element of due process of law.”

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” Id., at 19.

Consistent with the history of the provision, the Court in Washington v. Texas, Id., held that a state rule of evidence that excluded “whole categories” of testimony on the basis of a presumption of unreliability was unconstitutional. The blanket rule of inadmissibility held invalid in Washington v. Texas involved the testimony of alleged accomplices. Both before and after that decision, the U.S. Supreme Court has recognized the potential injustice produced by rules that exclude entire categories of relevant evidence that is potentially reliable. At common law interested parties such as defendants [Benson v. United States, (1892) 146 U. S. 325, 335], their spouses [Hawkins v. United States, (1958) 358 U. S. 74, 75-76], and their co-conspirators (see Washington v. Texas, 388 U. S., at 20-21), were not competent witnesses. “Nor were those named the only grounds of exclusion from the witness stand; conviction of crime, want of religious belief, and other matters were held sufficient. Indeed, the theory of the common law was to admit to the witness stand only those presumably honest, appreciating the sanctity of an oath, unaffected as a party by the result, and free from any of the temptations of interest. The courts were afraid to trust the intelligence of jurors.” Benson v. United States, supra, 146 U.S. 336. Under the regime established by Frye v. United States, scientific evidence was inadmissible unless it met a stringent “general acceptance” test. Strict rules of exclusion have been replaced by rules that broaden the discretion of trial judges to admit evidence and to allow properly instructed juries to evaluate its weight. The direction of the trend has been consistent and it has been manifested in constitutional holdings as well.

The U.S. Supreme Court in 1918 observed that in the “years which have elapsed since the decision of the Benson Case, the Disposition of courts to remove disabilities from witnesses has continued under dominance of the conviction of our time that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court, rather than by rejecting witnesses as incompetent, with the result that this principle has come to be widely, almost universally, accepted in this country and in Great Britain.” Rosen v. United States, (1918) 245 U. S. 467, 471.

Funk v. United States, (1933) 290 U. S. 371, 377-378, involved the disqualification of spousal testimony, Justice Stewart stated: “Any rule that impedes the discovery of truth in a court of law impedes as well the doing of Justice.” Hawkins v. United States, (1958) 358 U. S. 74, 81 (emphasis added). (Stewart, J., Concurring).

III. FEDERAL CASE AUTHORITY HAS APPROVED POLYGRAPH EVIDENCE

Courts have specifically approved the admissibility of polygraph evidence, e.g., U.S. v. Crumby (D. Ariz. 1995) 895 F.Supp. 1354. In judging the admissibility of polygraph evidence, the Court is entitled to consider the purpose of the examination evidence to be offered. In Crumby 895 F. Supp. at 1358-63 defense polygraph evidence was admissible to show defendant’s credibility. In this case, a defendant claiming his innocence seeks to present exculpatory evidence as part of his defense and to rebut prosecution evidence. As the district court noted in Crumby, a defendant who seeks to present polygraph evidence to exonerate himself should be looked upon differently by the Court:

“[i]n the present case, it is not Orwell’s ‘Big Brother’ who wished to use its authority to require that all criminal suspects take polygraph examinations, but rather a self-proclaimed innocent individual who wishes to prove his innocence using polygraph evidence… This country’s long history of affording criminal defendant’s with [the presumption of innocence, right to obtain exculpatory evidence, and “beyond a reasonable doubt” norms] mandates that the Court consider the value of polygraph technology and its ability to foster justice and provide the criminal defendant… with a fair trial.”

Crumby, 895 F.Supp. At 1362-63.

There is no per se rule of inadmissibility for polygraph evidence in the Ninth Circuit. See United States v. Benavidez-Benavidez (9th Cir. 2000) 217 F.3d 720, 724 (discussing United States v. Cordoba (9th Cir. 1997) 104 F.3d 225, 228. Once the government attempts to impeach Defendant’s credibility, the defense is entitled to seek admission of the polygraph evidence to rehabilitate his credibility. See U.S. v. Cordoba (9th Cir. 1997) 104 F.3d 225, 228-29 (remanding to permit defendant to make Daubert showing for use of polygraph results to bolster his credibility); U.S. v. Crumby (D.Ariz 1995) 895 F.Supp. 1354 (polygraph results may be sued to show defendant’s credibility). In the Ninth Circuit, the district court has “wide discretion” to consider the admissibility or inadmissibility of such evidence, and is free to analyze the evidence under Federal Rules of Evidence 702, 403 and 704. 1 Benavidez-Benavidez, 217 F.3d at 725; Cordoba, 104 F.3d at 227 (“[t]he per se . . . rule excluding unstipulated polygraph evidence is inconsistent with the ‘flexible inquiry’ assigned to the trial judge by Daubert”).

Polygraph evidence offered by defendants has been ruled admissible in federal criminal cases post-Daubert. See United States v. Galbreth (D.N.M. 1995) 908 F.Supp. 877, 878-95 (polygraph examination evidence offered by defendant admissible under Daubert in criminal case); United States v. Crumby (D.Ariz. 1995) 895 F.Supp. 1354, 1358-63 (defense polygraph evidence admissible under Daubert in criminal case of showing defendant’s credibility); United States v. Padilla (S.D.Fla. 1995) 908 F.Supp. 923, 929-31 (denying prosecution motion to exclude polygraph evidence and noting that Eleventh Circuit had made an explicit determination that polygraph tests are reliable enough to form basis for expert testimony under FRE 702); United States v. Patino (M.D.Fla. 1997) 991 F.Supp. 1449, 1450 (polygraph evidence may be admitted to impeach or corroborate testimony of trial witness under certain circumstances). In addition, a number of courts have rejected a per se rule of inadmissibility where polygraph examination results are concerned and in some cases have remanded for a determination of admissibility. Federal courts have repeatedly recognized that polygraph results are reliable and admissible in a variety of other situations in the criminal context. See, e.g., Rupe v. Wood (9 Cir. 199 th 6) 93 F.3d 1434, 1437 (polygraph evidence showing that accomplice lied about his role in crimes should have been admitted in penalty phase of state death penalty case); United States v. Posado, 57 F.3d 4278, 436 (5th Cir. 1995) (remanding for reconsideration of polygraph admissibility in motion to suppress hearing); Toussaint v. McCarthy (9th Cir. 1990) 926 F.2d 800, 802-03 (polygraph may be used by prison officials in prison disciplinary proceedings); Bennett v. City of Grand Prairie, Texas (5th Cir. 1989) 883 F.2d 400, 405-06 (polygraph evidence was admissible in probable cause proceeding before magistrate and acknowledging that “polygraph exams, by most accounts, correctly detect truth or deception 80 to 90 percent of the time”). See also United States v. Cordoba (9th Cir. 1997) 104 F.3d 225, 230 (remanded for determination of polygraph evidence’s admissibility under Daubert); United States v. Pulido (7th Cir. 1995) 69 F.3d 192, 205 confirming that polygraph admission is within trial court’s discretion); United States v. Posado (5th Cir. 1995) 57 F.3d 428, 436 (remanding for admissibility determination); United States v. Piccinonna (11th Cir. 1989) 885 F.2d 1529 (holding unstipulated polygraph evidence admissible for corroboration and impeachment purposes under certain circumstances).

IV. THE EVIDENCE CAN BE USED TO BOLSTER CREDIBILITY

Polygraph evidence may be used to bolster a witness’s credibility. Crumby, 895 F.Supp. at 1358-63 (defense polygraph admissible to show defendant’s credibility); U.S. v. Piccinonna (11th Cir. 1989) 885 F.2d 1529 (unstipulated polygraph evidence admissible to corroborate witness’s credibility in certain circumstances); U.S. States v. Padilla (S.D.Fla. 1995) 908 F.Supp. 923, 928-29 (polygraph evidence admissible to corroborate defendant’s credibility). See Campos, 217 F.3d at 712 n. 2 (polygraph evidence potentially admissible for collateral purposes). Defendant’s testimony would probably be less persuasive than that of a third-party witness without any purported bias. A rule that bars this defendant from introducing expert opinion testimony to bolster his own credibility, and counter prosecution attempts to characterize him as lying, unquestionably impairs his “opportunity to present a complete defense”.

In Dean Wigmore’s view, both “conduct” and “utterances” may constitute factual evidence of a “consciousness of innocence.”

“Moreover, there are other principles by which a defendant may occasionally avail himself of conduct as evidence in his favor — in particular, of conduct indicating consciousness of innocence, . . . of utterances asserting his innocence . . ., and, in sedition charges, of conduct indicating a loyal state of mind… .” 1A J. Wigmore, Evidence Section 56.1, p. 1180 (Tillers rev. ed. 1983); see United States v. Reifsteck, 841 F. 2d 701, 705 (CA6 1988).

V. U.S. v. SHEFFER DOES NOT PROHIBIT POLYGRAPH EVIDENCE UNDER THE FACTS OF THIS CASE

In United States v. Scheffer (1998) 523 U.S. 303 (“Scheffer”), a plurality of four justices upheld an exclusion of polygraph evidence involving a military court martial. It was not a state criminal case. Significantly, that case did not present any offer of proof based on the reliability of such evidence. Four concurring justices agreed with the result, but refused to join in any language restricting a later court from deciding whether or not the polygraph evidence was reliable. The concurring justices expressly reserved such a discussion to a case presenting an evidentiary record permitting such analysis. This case will have such a record. One of the sitting justices argued that per se rules excluding polygraph evidence are unconstitutional. Justice Thomas in Scheffer had only three other justices join to support exclusion of polygraph evidence and five justices criticized that portion of the opinion. Scheffer did not deal with the Federal Rules of Evidence or the Daubert test and did not hold that polygraph evidence was unreliable. 2

Scheffer did not provide a definitive answer to the issues surrounding polygraph use in criminal courts. There were, in fact, three separate opinions, 3 none garnering the full support of a majority of the nine-member court. It takes a careful analysis to determine just what the court said and did not say; the decision has been widely misinterpreted. The only clear majority holding from the court’s opinion is that the military’s choice to exclude polygraphs is not absolutely precluded by the United States Constitution, at least at the present time. That conclusion was shared by four justices supporting the Thomas opinion (“The Thomas four” — Thomas, Rehnquist, Scalia and Souter) and the four justices supporting the Kennedy opinion (“The Kennedy four” Kennedy, O’Connor, Ginsburg, and Breyer).

Only the “Thomas four” believed that the per se exclusion was appropriate. The “Kennedy four” reluctantly joined the Thomas four on the constitutional issue to avoid binding all court systems in the country to a constitutional ruling that they have no power to choose to exclude polygraph evidence, joining only on the ground that “the rule of exclusion is not so arbitrary or disproportionate that it is unconstitutional.” The “Kennedy four” went on to say, however, that they did not agree that the per se exclusion was wise and that a later case might cause them to reexamine their agreement with the constitutionality of the exclusionary position. The “Kennedy four” also noted the tension between the Scheffer result and the Daubert doctrine, as well as the inconsistency between the government’s oppositionist position to use of polygraphs by the accused while it makes widespread use of polygraph tests in going about its own business.

Synthesizing the three separate opinions, a five-justice majority of the court (Stevens, Kennedy, O’Connor, Ginsburg and Breyer) made clear their positions on the following issues:

  1. A per se rule of polygraph exclusion is either unconstitutional (Stevens) or unwise (Kennedy, O’Connor, Ginsburg and Breyer).
  2. Polygraph evidence was not found unreliable. In fact, none of the opinions of the nine justices reached that conclusion. The Thomas four and the Kennedy four agreed that in light of the continuing good faith disagreement among experts and courts on the subject, it is possible to “reasonably reach differing conclusions as to whether polygraph evidence should be admitted” as a matter of constitutional law. Justice Stevens found it sufficiently reliable that the Constitution requires its admission on behalf of the accused.
  3. The majority of the court did not find that polygraph evidence invades the province of the jury. The government used this familiar argument, but failed to convince the majority of the court. While the Thomas four accepted the argument, the remaining five justices explicitly rejected it.

In a future case, a majority of the Court could hold that admission of polygraph evidence is constitutionally required. Until the issues are revisited by the Supreme Court, the lower courts remain free to consider the admissibility of polygraph evidence under Daubert. A majority of the Scheffer justices were favorable to consideration of polygraph evidence under the Daubert guidelines and that a policy of exclusion to be unwise or unconstitutional.

The United States Supreme Court suggested significant advancements have occurred concerning the reliability and relevancy of polygraph tests in the Court’s concurring opinion in Sheffer. Justice Kennedy observed that a subsequent case may arise that would warrant overturning the per se exclusion in favor of permitting the various courts and jurisdictions to determine whether polygraph evidence should be admitted at trial. Scheffer, id., at 318. As Justice Kennedy noted, voicing the concerns of five Supreme Court justices, “there is much inconsistency between the Government’s extensive use of polygraphs to make vital security determinations and the argument it makes here, stressing the inaccuracy of these tests.” See Scheffer, 523 U.S. at 318. As five Supreme Court justices agreed, the jury’s role in making credibility determinations is not diminished by hearing polygraph evidence and the government’s argument to the contrary here “demeans and mistakes the role and competence of jurors in deciding the factual question of guilt or innocence.” Scheffer, id., at 318-19 (Kennedy, J., concurring).

Justice Stevens, in his dissenting opinion, stated more emphatically that in recent years polygraph testing has gained increased acceptance as a useful and reliable tool, and that the confrontation clause of the Sixth Amendment and due process clause of the Fourteenth Amendment are fundamentally more important than the military’s reasons for finding polygraphs unreliable. Scheffer, id., at 322-326.

Regarding the admissibility of polygraph tests at trial under federal law, not in the military setting, Justice Thomas recognized the divergence of opinion and noted that two of the Circuit Courts have abandoned the per se exclusionary rule as it relates to Federal, non-military law, and replaced it in favor of leaving its admission or exclusion to the discretion of the district courts under the Daubert test – namely, the Fifth Circuit Court of Appeals in United States v. Posado (CA5 1995), 57 F.3d 192, 434, and the Ninth Circuit Court of Appeals in United States v. Cordoba (CA9 1997), 104 F 3d 225. Sheffer, at 311.

The prosecution can: 1) present its own contrary expert testimony regarding the effectiveness of polygraphs; 2) cross-examine the defense’s polygraphs expert; 3) argue the weight to be given to the polygraph evidence, and 4) benefit from any appropriate limiting instructions, this Court should hold a foundation hearing and admit the evidence.

VI. POLYGRAPH EVIDENCE IS MORE RELIABLE THAN HANDWRITING EVIDENCE OR IDENTIFICATION TESTIMONY

Under the now discredited reasoning in a case decided more than 80 years ago, Frye v. United States (1923) 54 App. D. C. 46, 293 F. 1013, the court excluded polygraph evidence. In recent years, however, the U.S. Supreme Court has not only repudiated Frye’s general approach to scientific evidence, but the federal courts have rejected the once-popular view that all lie detector evidence should be categorically inadmissible.

“There is no question that in recent years polygraph testing has gained increasingly widespread acceptance as a useful and reliable scientific tool. Because of the advances that have been achieved in the field which have led to the greater use of polygraph examination, coupled with a lack of evidence that juries are unduly swayed by polygraph evidence, we agree with those courts which have found that a per se rule disallowing polygraph evidence is no longer warranted… Thus, we believe the best approach in this area is one which balances the need to admit all relevant and reliable evidence against the danger that the admission of the evidence for a given purpose will be unfairly prejudicial.” United States v. Piccinonna, 885 F. 2d 1529, 1535 (CA11 1989). “[W]e do not now hold that polygraph examinations are scientifically valid or that they will always assist the trier of fact, in this or any other individual case. We merely remove the obstacle of the per se rule against admissibility, which was based on antiquated concepts about the technical ability of the polygraph and legal precepts that have been expressly overruled by the Supreme Court.” United States v. Posado (1995) 57 F. 3d 428, 434.

Well reasoned opinions are concluding, consistently with the U.S. Supreme Court’s decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., (1993) 509 U. S. 579, and General Electric Co. v. Joiner, (1997) 522 U. S., that the federal rules wisely allow district Judges to exercise broad discretion when evaluating the admissibility of scientific evidence.

In fields like handwriting analysis, for example, when most of the practitioners are part of the law enforcement community and where the relevant academic and publication communities are far more limited, the government typically argues (successfully) that, e.g., an accuracy rate of 87% is sufficient to establish an acceptable rate of error. See, e.g., United States v. Prime (9th Cir. 2004) 363 F.3d 1028, 1032-35, vacated and remanded on other grounds (2005) 125 S.Ct. (handwriting comparison). Most knowledgeable witnesses utilized by the prosecution concede that polygraph accuracy is above 90 percent. Dr. Rovner will testify it is 95% as of the year 2008 by a qualified examiner. Furthermore, the types of errors identified in polygraph studies previously discussed by experts against the admission of polygraph evidence could not possibly be at issue in this case because they involve almost exclusively false positive errors. In this case, the evidence will be that polygraph examination is governed by clear and consistent standards (including the APA and ASPA standards). Here there will be a more extensive and unbiased system of “peer review” for polygraph research and there will be surveys of objective and relevant scientific communities supporting general acceptance of polygraph techniques and the use of polygraphs by a wide range of federal agencies.

The prosecution will be entitled to “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof…” as the traditional and appropriate means of attacking evidence. United States v. Crisp 324 F.3d 261, 265-272 (expert handwriting evidence admissible even where “flawed or flimsy” because the defense can employ crossexamination or contrary expert testimony). Courts allow eye witness testimony into evidence which is tested in the crucible of cross examination. The testimony of disinterested third parties that is relevant to a determination of credibility will assist the trier of fact. This is not a case in which the defendant will choose not to testify.

VII. POLYGRAPH TESTING AS PERFORMED BY DR. ROVNER ON DEFENDANT, IS CONSIDERED RELIABLE AND GENERALLY ACCEPTABLE BY THE RELEVANT SCIENTIFIC COMMUNITY AS OF 2008

  1. The Polygraph Evidence In This Case Is Sufficiently Reliable and Accepted and Should Be Allowed to Rebut the People’s Evidence that Defendant is Lying.
    • The scientific evidence to be provided in this case by a leading expert regarding polygraph examinations, and the circumstances surrounding the specific polygraph examination of defendant, will provide a foundation for the admission of the examination results in this case. See Declaration of Dr. Louis Rovner, a nationally renowned expert on polygraphs that will testify (Exhibit “B”).
    • As an offer of proof, a recognized expert in the polygraph examination field, Dr. Louis Rovner, will testify that the polygraph examination of defendant Andrews is reliable and valid, and that polygraph evidence is generally accepted in the relevant scientific community as of the year 2008. See Declaration of Dr. Rovner attached hereto as Exhibit “B” which provides his background and experience and the basis for his opinion that the polygraph testing performed on defendant is generally accepted in the relevant scientific community, and that the polygraph examination of Defendant followed correct and accepted scientific procedures.
    • Dr. Rovner is a graduate of the Los Angeles Institute of Polygraph. Dr. Rovner has a doctorate in psychology with a specialty in psycho-physiology and a masters degree specializing in biopsychology. He has been an instructor more than twenty years in psychology and statistic courses at the University of Utah, California Lutheran University, and Westminster College. He has taught psychology, physiology, and psycho-physiology at the Los Angeles Institute of Polygraph. He is currently an instructor at the Marston Polygraph Academy in San Bernardino, California. He is also guest lecturer at numerous schools and at private and organizational seminars. He has also published articles on polygraph issues, including the subject of polygraph accuracy. He is a member of the American Psychological Association, the Society for Psycho-physiological Research, and the American Psychology Law Society and is on the panel of experts for the Superior Court of Los Angeles.
    • Dr. Rovner’s doctoral thesis was on the validity of the use of the Utah Zone Comparison Polygraph Test to determine a participant’s truthfulness. This two-year controlled study was presented to the Society for Psycho-physiological Research in 1979 and published in the Journal of Polygraph for the American Polygraph Association. Based upon this objective study, the overall accuracy for polygraphs were 95.5% for the standard non-informational group (no prior knowledge of polygraph testing procedures). Dr. Rovner will testify that the results of his study are consistent with the subsequent studies on the subject.
    • Polygraph tests, just as DNA tests, ballistic tests, fingerprint analysis, and handwriting analysis all are science related matters beyond the knowledge of a layperson. They can be helpful to the trier of fact. Dr. Rovner is eminently qualified as an expert in the field of polygraph testing based upon his individual knowledge, skill, experience, training and education.
      In Witherspoon v. Superior Court (1982) 133 Cal.App.3d 24, the court undertook an extensive analysis of the admissibility of polygraph test evidence. It noted that the original basis for court exclusion of such evidence was lack of reliability and acceptance of such tests, but that at the present time (1982) “the polygraph examination… is widely accepted for use in many areas of our government and society.” (Id. at p. 29.) It concluded that there was “no sound legal basis for denying defendant the opportunity to persuade a trial judge of the expert qualifications of the polygraph examiner and the validity of the basic premises upon which the examiner’s opinion is based.” (Id. at p. 33.) In response, in 1983, the Legislature enacted Evidence Code section 351.1, which prohibited the use of polygraph evidence in criminal proceedings in the absence of a stipulation by all parties.
    • Thereafter, in People v. Harris (1989) 47 Cal.3d 1047, 1095, the Supreme Court indicated that polygraph evidence could be admissible upon “proof that the polygraph is now accepted in the scientific community as a reliable technique.” The Court stated that “on a proper showing defendants must from time to time be permitted to demonstrate that advancement in a scientific technique has enhanced its reliability and acceptance in the scientific community, and to establish that the advances warrant admission of a previously excluded category of scientific evidence.” (Id. at p. 1094.)
  2. The Reliability and Acceptance of “Properly Conducted Polygraph Exams Are Reliable, Valid, and Accepted…”
    • The Declaration of Dr. Lou Rovner explains that as of 2008, there is not a “deep division” in the “relevant scientific community” regarding the reliability of polygraph evidence assuming proper procedures are followed by a trained and qualified expert. “There is a unanimity of opinion of those experts that have the qualifications, training, and experience in conducting polygraph examinations, i.e., that the relevant scientific community considers polygraph evidence accurate and reliable. When the scientific community consists of persons trained and experienced in the field that have actually performed polygraph examinations on subjects and when proper procedures are followed, when the expert is trained and qualified, and ‘inconclusives’ are not considered, there is a consensus that polygraph examinations are reliable and valid.” As Dr. Rovner opines, “The scientific community that performs and is actually involved with polygraph exams has established the validity and reliability of polygraph testing. Polygraph is now generally accepted in the scientific community. The scientific literature is replete with scores of research reports and articles which establish that a polygraph test, when conducted under proper conditions, is an extremely accurate indicator of a person’s truthfulness or deception with regard to an issue about which he is being questioned. Most of these studies have been conducted by scientists who had no financial motivation to do their research. Research studies have been conducted in universities around the United States, as well as in other countries such as Canada and Israel.” “As an expert on polygraphs, it is Dr. Rovner’s opinion that the results of properly conducted polygraph examinations are reliable, valid, and are accepted in the scientific community as a reliable technique.
    • Polygraph tests have gained general acceptance in the scientific fields of psychology, psychiatry and physiology as to the areas of said disciplines devoted to lie detection. Polygraph has long passed the experimental stage.”
    • There are a host of studies that place the reliability of polygraph tests at 90%.

      Raskin, Honts, & Kircher, The Scientific Status of Research on Polygraph Techniques: The Case for Polygraph Tests, in 1 Modern Scientific Evidence 572 (D. Faigman, D. Kaye, M. Saks, & J. Sanders, eds. 1997) (hereinafter Faigman) (compiling eight laboratory studies that place mean accuracy at approximately 90%); id., at 575 (compiling four field studies, scored by independent examiners, that place mean accuracy at 90.5%); Raskin, Honts, & Kircher, A Response to Professors Iacono and Lykken, in Faigman 627 (compiling six field studies, scored by original examiners, that place mean accuracy at 97.5%); S. Abrams, The Complete Polygraph Handbook 190-191 (1989) (compiling 13 laboratory studies that, excluding inconclusive results, place mean accuracy at 87%).

      Moreover, to the extent that the polygraph errs, studies have repeatedly shown that the polygraph is more likely to find innocent people guilty than vice versa. Thus, exculpatory polygraphs are likely to be more reliable than inculpatory ones.

    • There is no legal requirement that expert testimony must satisfy a particular degree of reliability to be admissible. Expert testimony about a defendant’s “future dangerousness” to determine his eligibility for the death penalty, even if wrong “most of the time,” is routinely admitted. Barefoot v. Estelle, (1983) 463 U. S. 880, 898-901.
    • Studies indicate that handwriting analysis, and even fingerprint identifications, may be less trustworthy than polygraph evidence. One study compared the accuracy of fingerprinting, handwriting analysis, polygraph tests, and eyewitness identification. The study consisted of 80 volunteers divided into 20 groups of 4. Fingerprints and handwriting samples were taken from all of the participants. In each group of four, one person was randomly assigned the role of “perpetrator.” The perpetrator was instructed to take an envelope to a building doorkeeper (who knew that he would later need to identify the perpetrator), sign a receipt, and pick up a package. After the “crime,” all participants were given a polygraph examination. The fingerprinting expert (comparing the original fingerprints with those on the envelope), the handwriting expert (comparing the original samples with the signed receipt), and the polygrapher (analyzing the tests) sought to identify the perpetrator of each group. In addition, two days after the “crime,” the doorkeeper was asked to pick the picture of the perpetrator out of a set of four pictures. The results of the study demonstrate that polygraph evidence compares favorably with other types of evidence. Excluding “inconclusive” results from each test, the fingerprinting expert resolved 100% of the cases correctly, the polygrapher resolved 95% of the cases correctly, the handwriting expert resolved 94% of the cases correctly, and the eyewitness resolved only 64% of the cases correctly. Interestingly, when “inconclusive” results were included, the polygraph test was more accurate than any of the other methods: The polygrapher resolved 90% of the cases correctly, compared with 85% for the handwriting expert, 35% for the eyewitness, and 20% for the fingerprinting expert. Widacki & Horvath, An Experimental Investigation of the Relative Validity and Utility of the Polygraph Technique and Three Other Common Methods of Criminal Identification, 23 J. Forensic Sciences 596, 596-600 (1978); see also Honts & Perry 365.
    • Even highly dubious eyewitness testimony is, and should be, admitted and tested in the crucible of cross-examination. 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, 509 U. S., at 596.
  3. A Kelly Foundation Will Be Made by a Qualified Expert.
    • People v. Kelly (1976) 17 Cal.3d 24, p.30, states that the party that wants to introduce evidence that is based on a new or novel scientific technique bears the burden of establishing the reliability in order to admit the evidence. The Kelly rule deals with the fundamental validity of the scientific technique. The methodology is tested by the weight of the evidence. “The Kelly rule is based on the notion that juries may give undue way to experimental techniques presented by credentialed experts whose testimony may convey an unjustified aura of scientific certainty. (See Cal. Crim. Law, Procedure and Practice CEB, 2005 Ed., §3113, p. 912.) There is no such concern in this case. The Kelly standard has three prongs:
      1. The test must be generally accepted in a relevant scientific community;
      2. Testimony must be given by properly qualified experts; and
      3. Correct scientific procedures must have been used.

      The defense will establish a foundation for the reliability of the polygraph examinations performed by Dr. Rovner of this defendant and which satisfies the Kelly Rule. The relevant scientific community considers the procedures used reliable. A recognized polygraph expert will testify at the hearing that the polygraph technique used is reliable and is as good or better than handwriting analysis, eyewitness identification, and fingerprinting (once inconclusive results are eliminated).

VIII. THE WILKINSON CASE DOES NOT APPLY TO THESE FACTS

The defense is aware of People v. Wilkinson (2004) 33 Cal.4th 821, 845 which states that polygraph evidence is inadmissible per Ev. Code 351.1 unless the parties stipulate to admissibility. However, the defense in Wilkerson failed to properly lay a foundation.

In People v. Wilkinson (2004) 33 C.4th 821 the Supreme Court upheld a ruling by a trial court that denied the defendant a Kelly hearing to lay a foundation for the admissibility of polygraph evidence, stating the hearing was unnecessary because of Evid. C. §351.1’s “categorical prohibition” of polygraph evidence. The defense has no quarrel with that general principle under the showing presented in Wilkinson. However, this case is different based upon the offer of proof (Ex. B) by a recognized expert which demonstrates that polygraph testing is now accepted in the relevant scientific community, there is no split of relevant scientific opinion, and that a qualified examiner followed recognized and accepted procedures in the examination of Defendant.

The Constitutional Rights involved override Evid. Code §351 and the prosecution can cross-examine and otherwise call its own experts so that the trier of fact can evaluate the polygraph evidence. The defendant is going to testify, the prosecution will attack his testimony and his veracity, the polygraph examination will relate to critical issues of the defense, the defense has the Constitutional rights to present evidence, present a defense, counter the prosecution evidence, and has the right to a fair trial.

IX. CONCLUSION

Dean Wigmore opined:

“Let the accused’s whole conduct come in; and whether it tells for consciousness of guilt or for consciousness of innocence, let us take it for what it is worth, remembering that in either case it is open to varying explanations and is not to be emphasized. Let us not deprive an innocent person, falsely accused, of the inference which common sense draws from a consciousness of innocence and its natural manifestations.” 2 J. Wigmore, Evidence Section 293, p. 232 (J. Chadbourn rev. ed. 1979).

Given the recent advancements in polygraph technology, this Court should find that the Sixth Amendment and Fourteenth Amendment warrant the admission of non-stipulated polygraph evidence in this limited situation in which the proffered polygraph is reliable, the polygraphist is subject to cross-examination, and where no jury can be swayed unduly. Dr. Rovner will testify that: “Polygraph instruments have become far better at measuring and recording physiological responses. Our knowledge of how to structure and conduct a polygraph test, our knowledge of how to evaluate the results of a polygraph test, and our knowledge of how to estimate accuracy is light years beyond what it was years ago.”

Some courts have been concerned with the variable skill of the polygraph examiner as a major reason to object to polygraph evidence. In the instant case however, that concern is alleviated by the demonstrated expertise of Dr. Rovner.

Under the unique circumstances of this case, where this Court can conduct an evidentiary hearing to evaluate the reliability of the instant polygraph evidence, where the polygraphist will testify as to the general acceptance of polygraph use and methodology, and where Dr. Rovner will testify that the defendant was not being deceptive in his answers to the questions pertaining to the criminal charges, this court should find that the polygraph evidence is admissible at trial. Based upon the great advancements in the technology of polygraph examinations and greater consensus by the scientific community as to its accuracy, this Court should admit the polygraph tests and polygraph testimony over the People’s objection to its admissibility. Given the eminent qualifications of the polygraph examiner and the demonstrated reliability of the polygraphy evidence and the defendant’s right to present a defense, this Court should find that the polygraph test results are admissible.

The Court can be guided by settled principles concerning the credibility of expert testimony. Common sense suggests that the testimony of a disinterested third party with a scientific background and an expertise that is relevant to the credibility determination will assist, rather than impair, the court’s factual findings. The Constitution protects the right of a defendant to present evidence to rebut prosecution evidence.

1 Benavidez-Benavidez states that courts may make a decision excluding such evidence based on any, or all, of those rules. 217 F.3d at 725.
2 Furthermore, the Ninth Circuit has confirmed after Scheffer that it does not preclude the admissibility of polygraph evidence in this situation. United States v. Benavidez-Benavidez (9th Cir. 2000) 217 F.3d 720, 724 n. 2. Benavidez, which recognizes that polygraph evidence is potentially admissible, was also decided after United States v. Cordoba (9th Cir. 1999) 194 F.3d 1053.
3 Much of this argument is taken from an article written by Charles W. Daniels, an adjunct professor at the University of New Mexico School of Law, past President of New Mexico Criminal Defense Lawyers Association, and a member of the NACDL Board of Directors. The article was published in 2003 in the National Association of Criminal Defense Lawyers Inc., “The Champion” and the article was entitled “Using Polygraph Evidence After Scheffer…”