*3
deception
indications
in certain
STEPHENSON, Circuit Judge.
made
responses
principal
issue raised in
ap-
time,
At the same
the examination.
peal requires a determination of the evi-
testimony of
court excluded
another
admissibility
dential
of polygraph exami-
expert,
Virgil
Mr.
Hollis.
nation results under
particular
cir-
cumstances
Appellant
case.
Jo-
I.
seph Oliver was indicted on December
14, 1972, with
transporting the
issue whether the dis-
prosecu-
The central
trix from Missouri to
against
correctly
Kansas
admitted the
trict court
her
Becker,
prejudicially
1. We held that the trial court had
William H.
2. The Honorable
excluding
prose-
erred in
Judge
for the Western
States District
District
Missouri,
reputation
cutrix’s four roommates
to her
as
college community
within the
for truth and
veracity.
Oliver,
United States v.
that this court in 943, at 944 agree government ment that he the commented that “no prejudice to the the could offer results the of polygraph government can flow from allowing the According Oliver, examination. to the the opportunity to at least at- implied trial court that it would not au- lay a tempt to foundation for the admis- expenditure thorize the for Mr. Harrel- sibility a polygraph of test at trial.”3 government son’s services from funds if stipulate he to did the evidential use court then hearing The trial ordered a of the polygraph results. He further held on August on the motion parte that the ex concludes quired hearing re- 13, The record indicates that de- the Criminal Justice Act be- advised court fense counsel the that de- adversary proceeding came an and its his own expense fendant at had under- allegedly produced coercive effect the gone polygraph a examination Virgil waiver. Oliver claims to have par- been that H. Hollis and on the asked ticularly susceptible to coercion be- test, “there an in that indication indigency cause of his willingness to telling that the defendant was the truth polygraph submit to a test. court questions.” to those was fur- purpose ther advised that for the authorization was to It lay additional a clear person that a can reliability for
foundation of waive fundamental constitutional rights, testing including right against and also to have self-incrimi- simply preju- second trial. 943, 3. The We note that no comment of this court at 492 F.2d dice to can flow n. 1 was as from follows: allow- ing opportunity to at least alleges Defendant additional error lay attempt a for foundation the admissi- district court’s refusal to allow him to sub- bility polygraph Although of a test at trial. voluntarily mit to a examination past this court has in the held such tests expense. at his own Defendant’s counsel inadmissible, we note recent court decisions urges that he opportunity was denied the have found under certain circumstances a lay predicate attempt for an to convince examination be admissible. the district court that the status of the art (Citations omitted.) science examinations had progressed point to the Oliver seems where refer to his constitutional rights against self-incrimination, such examinations should be admitted into to the effec- counsel, tive evidence. view of our assistance of trial, reversal on other and to a fair grounds unnecessary statutory pass right and to his receipt question presented. Presumably funds under Act, counsel Criminal Justice 3006A(e)(l). § can his U.S.C. renew motion on remand before the counsel advised court that Oliver Hanson nation. test, to take the wished that he general had the Zerbst, 458, 465, that he advice counsel need not U.S. take Johnson ly test, (1938). L.Ed. 1461 and that he had been advised 58 S.Ct. However, requirement might waiver of consti a be made effective that an voluntary, the results agree must be know he be used rights even if tutional Arizona, importantly, Most intelligent. Miranda unfavorable. ing, and voluntary, establishes knowing, 16 record U.S. waiver intelligent on the part The record L.Ed.2d 13, 1974, August emphasized It should also be hearing is defendant. court’s satisfy cannot the strict standard be adminis- sufficient full cooperation without Oliver assured tered a waiver.5 possible, therefore, It is adequately that he had discussed defendant. taking of the lawyers. his mere with Defense examination is decision Yes, The Defendant: Your Honor. 5. ****** ****** Oliver, you up The Court: Mr. would come you willing are Court: And to answer your with here to the Bench counsel? questions propounded by the examiner and expert, Your has asked that counsel knowing furnish him the information he seeks you expense permitted to incur the be neces- you required cannot to do so? sary to have a Yes, The Defendant: Your Honor. *5 Harrelson, whose name has been mentioned knowing The And Court: that if the results forth in here and as set the motion. they may against you are unfavorable be used you question willing The first whether are government? the agree polygraph to results of that the the be Yes, The Defendant: Your Honor. subject government to offer in evidence the possible, though it The Court: And even you. if the results are unfavorable to you, they the results are favorable to that will required You are not to make such you not be admitted evidence. Do under- agreement. stand that? Right very begin- The Defendant: from the Yes, The Defendant: I understand that. always ning, poly- I have wanted to take a you The Court: Did take a exami- graph. attempted rape nation in connection with the The Court: What? charge? Right very begin- The Defendant: from the Yes, Honor, The Defendant: Your I did. always ning, I have wanted to take a The Court: What the result? graph, that holds true with I this. would were, The The Defendant: results the results one, like this too. to take negative, Honor, actually Your but I my question. The Court: You didn’t answer they just knew that question would be. There was one Regardless The Defendant: to conse- very involved was a incrimina- know, quences, you is, regardless whether it question ting which I knew I was innocent of it, how the wants to use in other Court words. really and that the sole reason for me The I want to use it Court: don’t even at all. taking I knew that test. that would going I to even state am not whether will be against just me. come out question of, But there was one I admitted in evidence. would have to hear involved, that I knew I was innocent in connection with its evidence admission. taking and that was the reason for saying you you to What I am is that are test. you being willing asked now whether are generally The Court: But results ruling subject of the Court on ad- you, right? unfavorable to is that missibility, permitted Yes, They The Defendant: Your Honor. they if use are unfavorable to against and it were not favorable was used me government. you evidence in an offer of court, which was understandable. I was Right. say, yes, The Defendant: And I I point prove particular out to one in that case agree to that. I did that was that not abduct have a you You Court: understand that have weapon. point That I that wanted to no, you require agree- no one can to make prove. ment, you? don’t you The Court: Have discussed this matter Right, The Defendant: I understand that. your lawyers, with Mr. Freeman and Mr. Brad- Yes. shaw? intelligent, is this an The Court: And under- Yes, The Defendant: Your Honor. standing, voluntary agreement you ****** proposing make? are 736 377, to a waiver of 260 (10th
tantamount
constitutional United
382
adequate
1958).
warnings
given.
Despite
if
are
rights
Cir.
almost uniform
Arizona,
evidence,
v.
436,
however,
Miranda
384
of such
See
U.S.
exclusion
1602,
475,
16
(1966);
recognized
86
L.Ed.2d 694
has
S.Ct.
“recent court
Illinois,
478,
v.
Escobedo
U.S.
490 n. decisions have found under certain cir
1758,
14,
(1964).6
84 S.Ct.
L.Ed.2d 977
cumstances
may be admissible.” United
appellant
satisfied that
We are
Oliver,
943,
492 F.2d
(8th
944 n. 1
Cir.
knowingly
intelligently
voluntarily,
1974). But see
Sockel,
United States v.
rights
object
his
to the
to waive
chose
1134,
(8th
478 F.2d
1135-36
Cir.
the test results in evidence.
admission
courts have recognized,
Still other
a dis
Oliver calculated that
obvious
It is
cretionary exclusionary
See,
rule.
e. g.,
though
test even
he
pass the
he could
Ridling,
90,
States v.
350 F.Supp.
ultimately
agreement
so. His
do
did
(E.D.Mich.1972).
example,
For
Unit
test,
admissibility of the
there
as to
Wainwright,
ed States
fore,
upon
be looked
as a “deliber
could
(10th
1969),
denied,
Cir.
cert.
rights
bypass” of
constitutional
ate
U.S.
L.Ed.2d 501
strategy.
an exercise of trial
based
(1970), recognized that
in a proper case
Henry Mississippi,
379 U.S.
Cf.
be admissible.
451-52,
L.Ed.2d 408
S.Ct.
unique
Given the
circumstances of this
assertion of involun
(1965). Appellant’s
case, we
a discretionary
believe
rather
time
is raised for the first
tariness
per
exclusionary
than a
se
approp
rule is
objection
only
made
appeal.
regard,
In this
we emphasize
riate.7
Harrel
admission of
that the defense and the prosecution had
respect
with
to the results
son’s
stipulated
government’s
to the
right
test was that Harrelson
offer the
results in evidence.8
position of an advocate in his
took the
Eagle
Cf. Herman v.
Star
Insurance
approach
Company,
but it indicated cognizant This court is primari- defendant. Oliver behalf of admitting hazards that Mr. ly Harrelson asserts utilized im- jury may in evidence. A too attach both proper procedures the pre- weight much test because of its and the test interview examination. It acceptability. Experts aura of scientific that Mr. Harrelson is claimed became an recognize also the reliability of a exhibited accuser and bias that aroused depends primarily hostility anger expertise validity examiner and upon his undermined technique.10 significant It is results. Oliver also contends trial court found Harrelson one premature to be formed a Mr. Harrelson opin- eminently qualified of the most persons the defendant was psychopath. ion that his field. cannot We conclude that Admission or stipulated or consented exclusion of ex testimony is a matter pert so to be within is unreliable as inadmissible particular judicial case.11 sound discretion We deem it un- only it necessary when the judge, to determine reviewing whether the that his graph has attained sufficient court determines decision “general “manifestly acceptance” erroneous” that justify scientific the ad- *7 judge the trial has of found that abused mission results absent his and that is stipulation. required. waiver or discretion reversal personally undergone he signifi- 9. Mr. Harrelson testified that has not 12. Mr. Hollis 50,000 continuing than polygraphy; had conducted more examinations education in cant his through subjected training primary acquired military; which were verification in the admissions, confessions, supporting primary addi- corporate or work his was involved with accuracy diagnosis work; security recognized tional evidence. The his and he was not as percent. authority of 90 was estimated in excess in his field. trial court char- part-time polygraph opera- him as a acterized Inbau, Deception, 10. J. Reid Truth & F. and tor. qualifications 13. Mr. Harrelson’s are excellent. relevancy, “tendency The standard president Poly- He as of the has served Keeler proved of the make the existence” fact to be Institute, polygraphy. which teaches probable probable less “more than it would training he has conducted various Moreover evidence,” fully be without met. Fed.R. schools, performed polygraph examinations on Evid. basis, regular undergone and continuous study polygraphy. in the field of Lines, Inc., Tank record discloses that the v. McKenzie Stancill qualifications minimal, of Mr. After Hollis are record, compared examination of the when thorough especially those of Mr. Expert testimony the district court’s de- concerning Harrelson. do not believe we testimony of Mr. results demands more to admit than cision manifestly erroneous. Ol- qualifications. See United Harrelson minimal pretrial hearing Ridling, at the 350 F.Supp. iver’s technique that Mr. Harrelson’s We it (E.D.Mich.1972). find even adamant more insulting that defense significant accusa- counsel informed testimony becomes to his per- prior His less Hollis administration tory. Mr. however, suasive, light of the contrary that he should not examine the test by Mr. testimony given anything Harrelson him- alleged about provided by corroboration It was indicated that the rape. self and defend Briick, an F.B.I. agent who was he Herbert was afraid would “blow the hot ant pretest at examination. De- present question,” referring rape. The limita present Bradshaw was also imposed by fense counsel the defense seriously tion un pretest interview. Neither reliability dermined the test con during the present administration Mr. Hollis. Under the ducted circum examination. Mr. Bri- of ick, we fail find exclusion stances experienced in who is the art of testimony to be an abuse of the trial pretrial hearing polygraphy, cor- court’s discretion. See Stancill v. Lines, of Mr. roborated Harrelson Tank supra, McKenzie 497 F.2d at proper utilized procedures he had in 535. of the pretest the administration inter- agreed with
view to Oliver Harrel- V. evaluation results of the son’s appeal This further requires a examination as shown determination whether the district court questions. and test charts The record in permitting erred Mr. Harrelson to tes the claim to sustain of bias on the fails tify that he permitted was not to at Furthermore, Mr. Harrelson. part of tempt to secure a confession from the emphasized qualifica- that the should defendant. Interestingly, this limitation expertise of Mr. tions Harrelson are originally imposed by the defense fact, highest order. he was of initially counsel. The trial court allowed Mr. selected the defendant. Harrelson to testify as to the limitation indicating by
without whom it was im posed. He previously had testified that IV. high reliability of his (about Defendant also asserts that 99%) was measured the confessions he court abused its discretion in excluding had been able to obtain. Preventing Mr. testimony of Mr. Hollis. His testi- Harrelson from testifying as to the ex mony took on importance increased to istence limitation, therefore, could following the defense Oliver’s failure of have minimized the accuracy of his poly given by Mr. graph results in the minds of the jury. court, Harrelson. The district however, It is untenable that the limitation consti rejected any testimony by Mr. Hollis for implication *8 tuted an by Mr. Harrelson First, two fundamental reasons. he did that the defendant guilty. was Mr. Har appear requisite not to have the qualifi- relson only testified as specific poly cations of a expert. Second, explained whether his test was found unreliable because he found deception. He did not ren expertise lack of and the limitations der an as to the defendant’s placed upon his administration of the ex- guilt or Error, innocence. if any, was amination the defense. prejudicial. not
739
1974).
genuine
When there is
issue as
VI.
motive, intent,
identity,
preconceived
still other
Appellant
raises
entrapment, or absence of mistake
plan,
court
to con
issues
evidential
accident, evidence of other
crimes
that
the evidence
asserts
sider. Oliver
See,
g.,
e.
may
Umbaugh
be admissible.
sup
trial was insufficient
at
adduced
Hutto,
904,
(8th
486 F.2d
906
v.
Cir.
it is
Specifically,
con
a conviction.
port
denied,
960,
1973), cert.
416
94
U.S.
S.Ct.
actions of the victim
that
tended
1978,
(1974);
June relevant. See Fed.R.Evid. 401. In addi Furthermore, witness Den- government tion, proof we find that Oliver com Hogard testified ise mitted similar offenses sufficiently com ordered her into his August requirement to meet the plete that it be sexually assaulted her. The car and convincing. Cf. Neff v. clear United tendered excluded 691-92 two other as to individu- probative worth appears also to similar acts of the respect als with outweigh probable prejudicial im were remote in time. pact. regard, In this it should be em the two phasized rule is that evi similar incidents accused, reasonably were similar in kind and crimes close of other dence charge part and not in time to involved in this in the indictment charged The maximum time lapse only or occurrence case. same transaction Hutto, Umbaugh months. See I6V2 charged, is inadmissible. *9 (8th 1973), Clemons, (8th Cir. cert. F.2d Cir. she was the ceived since victim denied, 416 U.S. offense. alleged (1974). Notably, the L.Ed.2d evi- activity dence other criminal does not difficulty is that hearing after of an have be that identical offense. in counsel chambers and the permitting Belle, United States appropriate defense to make an offer It is sufficient proof the latter failed to do so. Ms. is of a similar involve- “[the] ment Huddleston called to the stand for reasonably offending related purpose and when she indicated she in presented and is conduct manner in did know what chastity promis- not prejudice outweigh which its does its cuity meant she was excused de- value.” Id. After probative considering fendant’s counsel indicated the defense governing the admissibility these rules It proper rested. for the court to acts, fail we to find similar that the trial require defendant to make his offer of an abuse of court committed discretion proof by questioning the witnesses and admitting disputed testimony. receiving responses their before ruling
thereon. The claimed error is without merit. VIII. Affirmed.
Finally, appellant charges alleged character traits of the pros HEANEY, Judge Circuit (dissenting). improperly ecutrix were excluded from respectfully I dissent. The trial initially evidence. sus view, my colloquy In set forth in objections tained by defense the majority opinion footnote dem- counsel addressed various defense wit clearly onstrates rather the trial who nesses were former roommates of granting court conditioned the de- concerning victim her character fendant’s motion for a polygraph exami- reputation chastity traits and for requirement nation the de- morality.14 sought The defense to elicit agree fendant could Crystal from Closterman whether offer the results of the examination in prosecutrix had told about any similar evidence if the results were unfavorable involving rape. occurrences Sheryl Hud to the defendant. This an inappro- similarly questioned. dleston was De priate impose, condition to particularly questioned also fense counsel Deborah light of the comments of this Ness about the activities of prosecu set Court forth footnote 3 of the ma- evening trix following the alleged jority opinion. The trial court could rape. general, In the defense was at position its have made clear stating tempting show that the victim had examination would reputation chastity bad for and morality. been made have available even if the The trial court directed defense counsel to discontinue this line of questions until defendant did not consent in advance to the results of that being matter could considered in cham against him used if the results were un- bers. meantime the witnesses favorable. retained call. appellant now contends that extrinsic I do myself evidence of not find in disagreement the character and traits of character expressed by of with views my col- the prosecutrix should have been re- on the other leagues issues in this case. permitted testify The court reputation former roommates about victim’s veracity. truth and