*1 binding, I nevertheless submit stare decisis values should have been tak- present
en into in our decision. account reason, agree I
For this with much of what Judge I opinion
is said Part of Kravitch’s Judge opinion.
and Part I of Johnson’s join
I II (Applying Teague all of Part Petition) Judge
to Moore’s Kravitch’s
opinion, except join footnote 5. I in full (Abuse Writ) Judge
Part III opinion.
Kravitch’s respect Judge opinion,
With Johnson’s (Waiver); join (Re-
I Part II.A. Part II.B. (Gard-
troactivity Teague); Part II.C.l.
ner); Part {Proffitt)-, II.C.2. Part III.A. {Gardner).
{Proffitt)-, and Part III.C.
CLARK, Judge, Judge joins Circuit Judge
KRAVITCH’Sdissent and in JOHN except
SON’S dissent as to Part II.A.
(Waiver), {Smith) Part II.C.3 and Part (Estelle Smith).
III.B America,
UNITED STATES of
Plaintiff-Appellee, PICCINONNA,
Julio
Defendant-Appellant.
No. 86-5335. Appeals,
United States Court of
Eleventh Circuit.
Sept. *2 McDonald, Jr., disposal in the business had James W. McDonald & firms waste Erickson, P.A., Homestead, Fla., agreed compete for each other’s defen- not to accounts, dant-appellant. compensate to one another agree- firm did not adhere to the when one Lehtinen, Atty., Dexter W. U.S. Caroline from another ment and took an account Heck, Miami, Fla., Atty., Asst. U.S. John J. firm. Heiser, Powers, Dept, III and Laura Section, Justice, Washing- Appellate Main testify compelled Piccinonna was to be- Griffin, ton, D.C., Dept, James of Jus- Jury pursuant grant fore the Grand to tice, Div., Atlanta, Ga., for Anti Trust however, immunity. immunity, did not plaintiff-appellee. prosecution protect Piccinonna from
perjury during testimony. committed his Piccinonna testified that he had not heard agreement garbage compa- between soliciting nies to refrain from each other’s RONEY, Judge, Before Chief compensate accounts and to each other for TJOFLAT, HILL, FAY, VANCE, taking Jury, accounts. The Grand how- KRAVITCH, JOHNSON, HATCHETT, ever, testimony also heard from several ANDERSON, CLARK, EDMONDSON disposal industry witnesses involved COX, Judges. Circuit implicated garbage in who Piccinonna FAY, Judge: Circuit 1, 1985, industry agreement. August On Piccinonna was indicted on four counts of case, In this we revisit the issue of the perjury. admissibility polygraph expert at trial of testimony and examination evidence. Julio trial, requested Prior to Piccinonna appeals Piccinonna his conviction on two stipulate Government to admission knowingly making counts of false material into evidence of the results of a Jury statements to a Grand in violation of test which would be administered subse- Organized Title IV of the Crime Control quently. stipu- The Government refused to (1982). Act of 1970. 18 Picci- U.S.C. any testimony late to the admission of re- argues judge nonna that the trial erred in garding test or its results. refusing testimony to admit the of his Despite refusal, George the Government’s graph expert and the examination results. examiner, Slattery, B. a licensed significant progress Because of the made tested Piccinonna on November polygraph testing the field of over the expert’s Piccinonna asserted that re- past forty years increasingly and its wide- port left not lie no doubt that he did when use, spread per we reexamine our se rule (Rl-38- Jury. he testified before the Grand principles of exclusion and fashion new On Piccinonna November govern admissibility evi- filed a motion the district court re- Accordingly, dence. we remand the case to hearing questing a on the admission of the the trial court to reconsider the admissibili- 6,1986, polygraph testimony.1 January On ty of Piccinonna’s test results in hearing the district court held a on the light principles espouse today. we per motions. Due to the se defendant’s rule, holds evidence inad- Background I. circuit, judge the trial re- missible judge fused to admit evidence. Piccinonna has Julio been the waste noted, however, that the Eleventh Circuit disposal business in South Florida for over may wish to reconsider the issue of the twenty-five years. Jury In a Grand admissibility since hearings investigate conducted antitrust widely garbage violations in the these tests have become much more business. used, government particularly by Florida the Government. believed that South evidentiary hearing 1. Piccinonna also filed a motion for a James on the hearing hearsay to determine whether the state- graph tests held in the case of United States v. alleged co-conspirators Freedman, al., ments of the were ad- Irvin et Case No. 81-434-CR-AR- him, against missible in evidence and a motion ONOVITZ. incorporate by transcript reference of an Hence, general acceptance requirement stated that if Piccinonna judge convicted, originated Frye court conduct a was would case of v. Unit States, (D.C.Cir.1923). post-trial hearing perfect Frye the record for F. 1013 ed appeal. prosecution murder in which the involved a refused to admit results from a trial court Piccinonna was convicted on two counts test, systolic pressure precursor blood making declarations con- false material polygraph. appealed, The defendant ar Jury cerning a matter the Grand was inves- *3 admissibility guing that the of the scientific tigating. The court then conducted a hear- only turn on the tradition test results should appeal. ing perfect the record for At relevancy helpfulness rules al hearing, judge report ordered the appeals disagreed The court of trier fact. of the examination and the com- imposed requirement that the area of plete transcript evidentiary hearing court receives evi specialty conducted in v. Irwin Freed- in which the man, general accept No. 81-434-CR-ARON OVOTZ to be- must have achieved dence part appeal, community. come of the record. On Picci- Id. 293 in the scientific ance urges modify per nonna us to our se rule that “while at 1014. The court stated F. excluding polygraph permit admitting long way evidence to its go a courts will admission in certain circumstances. a well-rec testimony deduced from expert discovery, the principle or ognized scientific II. The Per Se Rule made thing the deduction is from which to have sufficiently established must be courts, admissibility In federal of ex- acceptance particular general gained pert testimony concerning scientific tests belongs.” The court it Id. field which governed findings or Rule 702 of the pressure systolic blood concluded that pro- Rules of Rule 702 Federal Evidence. “standing requisite and sci lacked the test vides: among physiological and recognition entific scientific, technical, special- If or other authorities.” psychological knowledge ized will assist the trier of fact to understand the evidence or to issue, quali- fact in
determine a
witness
applied
Frye
Courts have
standard to
knowledge, skill,
expert by
fied as an
tests, including
types
various
of scientific
education,
experience, training
may
However,
polygraph.4
the Frye stan
testify
opinion
in the form of
thereto
an
historically
dard has
been invoked
se
or otherwise.
lectively
types
expert testimony,
to other
consistently only in
applied
and has been
rule,
Fed.R.Evid. 702. Under this
to admit
admissibility
cases where the
expert testimony
judge must de
the trial
McCormick,
evidence was at issue. See
expert testimony
that the
will be
termine
Ap
Defining
Evidence:
a New
helpful
relevant2 and will be
to the trier of Scientific
proach
Admissibility 67 Iowa L.Rev.
addition,
require
pro
fact.3 In
courts
(1982).5
879,
courts had little
884
Most
ponent
testimony
to show that the
desirability
excluding
difficulty with the
accepted
principle
technique
generally
thus, applied
McCormick, polygraph evidence
community.
in the scientific
(3rd
little comment. Id. at
Frye standard with
on Evidence
203
ed.
McCormick
§
consistently
also has
re-
885. This circuit
Valdez,
401,
State v.
admissibility
see
graph
91 Ariz.
2. See Fed.R.Evid.
274,
894,
(1962).
P.2d
896 n. 4
371
e.g.
3. See
Fed.R.Evid.
Giannelli,
Admissibility
Novel
5. See also
Frye
holding
fifty years,
the next
acted
4. For
States,
Frye v. United
Evidence:
Scientific
complete
poly
bar
as a
Later,
1197,
Half-Century
80 Colum.L.Rev.
State,
evidence. Kaminski v.
graph
63 So.2d
State,
374,
(1980);
v.
Reed
283 Md.
391
State,
1219-21
339,
(Fla.1952); Boeche v.
151 Neb.
J.,
dissenting) (Frye
364,
(1978) (Smith,
593,
(1949);
A.2d
Henderson
37 N.W.2d
upon
State,
52-55,
495,
generally
relied
45,
not been
standard
Okl.Cr.
230 P.2d
898,
234,
fingerprints,
502-505,
as
of evidence such
the admission
cert. denied 342 U.S.
72 S.Ct.
tests,
ballistics,
X-rays).
(1951).
history
intoxication
permit
917,
(5th Cir.1980) (twelve
judge
the trial
to admit
F.2d
917
concur
stipula-
ring judges agreed
evidence even in the absence of a
per
se rule
tion,
denied,
only
special
reconsidered),
but
when
cert.
circumstances
should be
449
jurisdictions,
1128,
949,
exist.17 In these
the issue is
101
U.S.
S.Ct.
qualifications
reliable as
authorities in the
polygraph
and the limitations of
Souel,
123,
interrogation);
v.
made on the
are shown to
State
53 Ohio St.2d
and the tests
1318,
134,
valid).
(adopts
N.E.2d
1323-24
be
under
exclusion
Seventh,
that while wholesale
Sixth,
Ninth
tion
Third,
Finally, the
unwarranted,
Circuits,
of Mili
there must be
the Court
702 is
rule
Tenth
poly
permit
placed
admission
Appeals
tary
limitations
carefully constructed
of a
even
the absence
evidence
evidence
polygraph
upon the use of
ex
special circumstances
when
stipulation
parties,
stipulation
a
court. Absent
permit
Circuits
Third
Seventh
ist. The
any
in which a
locate
case
are unable to
we
introduced
evidence
expert testi-
has
court
allowed
by the defen
rebutting a claim
purpose
proof of
mony offered as substantive
result of
was
his confession
that
dant
made
falsity of the statements
truth
Johnson, 816
v.
States
United
coercion.
during
polygraph examination.
Cir.1987);
States
(3rd
United
F.2d
con-
circumstances” and
myriad
“special
Cir.1979),
(7th
Kampiles,
v.
held to constitute
that have been
ditions
954, 100
denied,
S.Ct.
446 U.S.
rt.
ce
use
scenarios for
appropriate
(1980).
Tenth
L.Ed.2d
rough
necessarily
estimates
are
evidence
government to
permitted
has
Circuit
the dan-
of when and where
by the courts
failed
the defendant
introduce the fact
to the admis-
prejudice
due
ger
unfair
police
explain
why
polygraph test
significant.
is least
sion
evidence
a more thor
conducted
had not
detective
Hall,
v.
investigation.
ough
Cir.1986). In its at
Principles
Admissibility
IV.
problems
potential
mitigate the
tempt to
in recent
question
There is no
evidence,
Sixth Circuit
testing
gained
has
increas
years
two-step approach to
promulgated
a useful
widespread acceptance as
ingly
Holbrook,
admission. Wolfel
—
tool. Because
denied,
scientific
Cir.1987),
reliable
cert.
(1988).
been achieved
-,
98 L.Ed.2d
that have
108 S.Ct.
advances
if
“First,
greater
must determine
use of
the trial court
have led
field which
Second, if
is relevant.
examination,
a lack
proffered
coupled with
evi
proffered
court concludes
swayed
unduly
juries are
of evidence
pro
relevant,
it must balance
dence
agree with
we
by polygraph
against
of the evidence
value
bative
per se
that a
have found
courts which
those
confu
prejudice and/or
of unfair
hazard
is no
disallowing polygraph evidence
rule
jury.”
mislead
could
sion
course, polygraphy
Of
longer warranted.
holds
Circuit
The Ninth
science, and we
inexact
developing and
ais
nar
only in instances
admissible
to allow
inappropriate
it
continue to believe
im
prejudicial
limit
rowly tailored to
in all
polygraph evidence
admission
States
the evidence. United
pact
types of
proven
more
in which
situations
Cir.1989).
1255, 1262
Miller, 874 F.2d
*7
However,
allowed.
are
expert testimony
considering prior Ninth
court, in
Miller
wrote, “any rule
Potter Stewart
Justice
as
issue,
poly
noted that
this
cases on
Circuit
truth
a
discovery of
impedes the
that
if it is
admissible
might be
graph evidence
doing of
as well the
impedes
of law
court
is
that
purpose
limited
for a
“introduced
States, 358
v. United
Hawkins
justice.”
correctness
to the substantive
unrelated
136, 140,
3 L.Ed.2d
79 S.Ct.
polygraph examination.”
of the
results
Thus,
believe
(concurring).
we
Bowen,
at 1261. In
Id.
is one which
area
approach in
best
Cir.1988),
admit all relevant
need to
balances
evidence
polygraph
if “the
that
held
court
danger against evidence
reliable
it is relevant
being
because
introduced
is
given
a
evidence for
given,
was
admission of
examination
polygraph
a
Ac
result,
may
unfairly prejudicial.
then it
will be
regardless
purpose
at 1341.
where
two instances
...”
cordingly
admissible
we outline
at tri
may be admitted
evidence
running through the
The common thread
necessary
achieve
al,
believe
we
which
by
which
taken
courts
approaches
various
recogni-
a
balance.
per se rule is
modified the
have
Stipulation
A.
examination, used to corroborate that wit-
testimony,
ness’s in-court
would not be ad-
governing
The first rule
admissibili
missible under Rule 608 unless or until the
ty
easily ap
evidence is one
credibility of that witness were first at-
plied. Polygraph expert testimony will be
tacked. Even where the above three condi-
admissible in this
parties
circuit when both
met,
tions are
admission of
evi-
stipulate in advance as to the circumstanc
impeachment
dence for
or corroboration
es of the
scope
test and as to the
of its
purposes
entirely
is left
to the discretion of
admissibility.
stipulation
as to circum
judge.
the trial
stances must
indicate
parties
agree on material matters such as the man
of these two modifications
Neither
ner in
conducted,
which the test
per
exclusionary
se
rule should be
questions asked,
nature of the
and the iden
construed
preempt
or limit in any way
tity of the examiner administering the test.
the trial court’s discretion
poly
to exclude
stipulation
scope
as to
of admissibility graph expert testimony
grounds
on other
must
purpose
indicate the
purposes
or
under the Federal Rules of Evidence. Our
which the evidence will be introduced.
holding
merely
states
in the limited
parties agree
Where the
to both of these
above,
circumstances delineated
Frye
test,
conditions in
advance of the
general acceptance test does not act as a
evidence of the test results is admissible. bar to admission of polygraph evidence as
stated,
matter of law. As we have
Impeachment
or Corroboration
B.
chief criterion in determining whether ex
The second situation in
poly
pert testimony
appropriate
is whether it
may
evidence
be admitted is
help
when will
the trier of fact to resolve the
impeach
used to
or corroborate the
702;
testimo
issues. Fed.R.Evid.
Worsham v. A.H.
ny of a witness at
Co.,
trial. Admission
Robins
734 F.2d
Cir.
polygraph evidence for
purposes
these
The expert
also,
testimony must
preliminary
three
course,
conditions.
401;
be relevant.
Fed.R.Evid.
First,
party
planning to use the evi
Roark,
United States v.
dence at
provide
trial must
adequate
(11th Cir.1985).
notice
Rule 401 defines relevant
opposing
party that the expert testi
“having
as evidence
any tendency
mony
Second,
will be offered.
to make the
any
existence of
fact that is of
expert testimony by party
will
consequence
be admis
to the determination of the
sible
if
opposing
party
given
was
probable
action more
probable
or less
than
reasonable opportunity to have its own it would be without the evidence.” Fur
polygraph expert
ther,
administer a test cover
Rule 403 states that
though
even
rele
ing substantially
questions.
the same
vant,
Fail
may
by
be excluded
the trial
provide adequate
ure to
notice or reason
probative
court “if its
value is substantially
opportunity
able
opposing
for the
side to
outweighed by
danger
preju
unfair
administer its
proper grounds
dice,
own test is
issues,
confusion of the
or misleading
for exclusion of the evidence.
jury,
consideration of undue de
time,
lay, waste of
presentation
or needless
Finally, whether used to corroborate or
Thus,
of cumulative
agree
evidence.”
we
impeach, the admissibility
with the Ninth
Circuit “that
evi
testimony
administrator’s
governed
will be
admitted,
dence should not be
even for
by the Federal Rules of Evidence for the
purposes,
limited
unless the trial court has
admissibility of corroboration
impeach-
*8
probative
determined that ‘the
value of the
testimony.
ment
example,
For
Rule 608
outweighs
potential
evidence
the
limits the
opinion
use of
reputation
or
evi-
prejudice
consumption
and time
involved in
dence to
credibility
establish the
of a wit-
”
presenting
such evidence.'
United
ness in
following way: “[Ejvidence
the
of
Miller,
States v.
V. Conclusion THEORY I. POLYGRAPH today’s hope expect nor neither
We our the final word within holding will be A. Introduction important issue. increasingly on this circuit reasoning begins The Court’s with developing technol- and The advent new polygraph technology has proposition that legal flexibility within ogies calls accuracy its point where reached justice the ultimate ends system so that commu- accepted by the scientific generally to hold fast It is unwise may served. be fact, community re- In the scientific nity. that rule the basis for rule when a familiar reliability of on the sharply mains divided We persuasive. believe ceases to be Congress, polygraph. Office progressed has polygraphy science of Assessment, Technology Validi- Scientific to allow acceptance sufficient to a level Re- Testing: A ty Polygraph Research in limited the use Mem- Technical and Evaluation —A view danger of unfair circumstances where OTAMem- orandum [hereinafter proceed with We prejudice is minimized. question Many theorists orandum]. reliability in area because the this caution underlying the assumptions basic subject of testing remains a stressful, telling and lies graph: field of scholarly As the debate. intense physio- itself stress manifests it progress, testing continues to on can be logical responses recorded which necessary to reexamine may become Ney, Expressing Emo- polygraph. See admissibility regarding rules Feelings, Controlling tions graph evidence. Lies, Truth and Science Test: conviction VACATED judgment ed.1988) Poly- (A. Gale [hereinafter district case is REMANDED Pro- Test]; Employee Polygraph and the consistent proceedings court for further HR. Hearing Act: on tection Before Comm., opinion. 100th with this Labor Education and (1987) (testimony of Cong., 1st Sess. concurring JOHNSON, Judge, Circuit III, of the on behalf Beary, M.D. F. John part, in dissenting in part Association) Medical [hereinafter American RONEY, Judge, HILL Chief Moreover, Congress has Hearing]. H.R. CLARK, Judges, join: Circuit sharply limited use Polygraph Pro- Employee private sector. holding that the Court’s I concur with 100-347, 102 Stat. P.L. Act of in tection should be admissible however, judge has discre the trial applicability parties to alter the wish 1. If the stipulation. case, proposed reject they parties’ should their tion to Rules 403 ques long stipulation, as on judge as discretion broad do so advance trial able to party’s any third should they do not interfere of evidence and tions courts. adjudicatory role of the or the interests abuse of is a clear there be reversed unless (P. Tillers rev. Wigmore 7a Borders, § on Evidence See States United discretion. (courts generally 1983). at 602 n. 35 But see id. Cir.1982); Scheib v. Williams- even where inadmissible polygraph results hold Co., Cir. McWilliams stipula- stipulation). Because such is a there *9 rules of applicability of would alter tion (codified (West Ques- Polygraph at U.S.C.A. 2001 B. The Is Based On § Supp.1989)).2 Assumptions tionable device records the sub- assump- Lie detection is on based four ject’s physiological (e.g., heart (1) activities tions: that individuals cannot control rate, pressure, respiration, per- blood and physiologies behavior, (2) their and spiration) questioned by he is as specific triggered by spe- emotions can be Bull, graph examiner. What is the Lie stimuli, (3) specific cific that there are rela- Polygraph Detection Test? in The 11- Test tionships aspects between the different major types 12. There are two (such people say, behavior as what how question examinations: the “control behave, they they respond physio- and how test” and the “concealed information test.” logically), and that there are no differ- question The control test is used most fre- among people, ences so people that most in quently investigating specific incidents. respond similarly. will compares The examiner the data corre- assumption that individuals cannot (a) sponding questions relevant to the physiologies control subject their is to seri- (b) questions designed crime “control” ous argue debate. Some theorists in- upset subject directly but relevant dividuals can learn to control physio- their crime, (c) questions. to the and If neutral logical responses by producing and that subject strongly reacts more physiological responses opportune at times questions relevant than to the control and during people test these questions, neutral then the examiner infers portray could themselves as truthful when subject lying. Id. at 13-17. they Ney, are not. Expressing Emotions There accuracy is much debate about Controlling Feelings (“Jet-fight- at 67 question control specific-incident tests in pilots er learn to control their emotions Raskin, investigations. Sup- Does Science (and therefore their physiology) in order to port Polygraph in Testing, Polygraph operate efficiency with maximum under ex- Test 98-99. physical stress.”) treme psychological The concealed information test focuses techniques These fooling person on fact that in involved are called Gudjonsson, countermeasures. the crime could know the answers to cer- How to Polygraph Tests The Defeat questions. tain presents examiner Polygraph Test 126. Little research has multiple questions series of choice concern- been done on the effectiveness of counter- ing the crime while the machine lies, reducing measures in detection of but subject’s physiological records the activi- done, results of research that has been subject ties. If the relatively strong conflicting, while indicate that countermea- physiological reactions to the correct alter- sures can be effective. OTA Memoran- natives, then the examiner infers that the 100-01; Gudjonsson, dum at How to De- subject attempting to conceal informa- (conclud- Polygraph at Tests tion about the crime. Id. at 102. The feat ing physical that use of countermeasures concealed information test assumes that in- (e.g., floor) pressing toes protected, formation about the crime is but effective police suspects subject fact often inform all when the has been trained in coun- termeasures).3 even the media about the crime. Id. Employee Polygraph pro- physiological 2. The responses Protection Act ence between to rele- polygraphs pre-employment questions. study hibits the use of vant and neutral One found pressing against screening sharply during permissible one’s toes the floor curtails the questions neutral reduced the detection of lies specific-incident uses of the inves- Gudjonsson, from 75% to 10%. How to tigations. 29 U.S.C.A. §§ 2006 to 2007 Defeat tests, Kubis, Polygraph (citing (West Studies Supp.1989). Computer Feasibility in Lie Detection: Consider- test, question In order to fool the control 62-205, (Technical Report prepared ations physiological must enhance his reac- Command) (1962)). Systems Air Force A com- questions, tions to neutral decrease his peting study and/or concluded that such countermea- physiological questions. reactions to relevant sures caused no reduction in detection of lies. More, Inducing physical pain or (citing muscle tension dur- Research and the ing questions University, (1966)). non-relevant can reduce the 14 Law and differ- Order 73-78 *10 responses that reflect dishon- physiological underlying poly- the assumption Another rate, esty: changed pressure, heart blood trig- emotions will be specific
graph is that perspiration. There is con- respiration, and theorists, lying. Some by the act of gered proposition in the scien- troversy this over are however, that emotions do not believe 70; Hearing HR. community. at tific of triggered by presence the automatically III, (statement Beary, of John F. at 51 a theorists see stimuli. These specific such M.D.) (“there response. If is no Pinocchio causal between stimuli indirect chain more grow half inch you your lie nose does not a presented is person and emotion: bodily re- longer unique or some other it, stimuli, and appraises then then sponse.”) emotion, on is an which based reacts with underlying the lie assumption The fourth appraisal of the sti- cognitive person's expected to people is that can be detector theory, people can According to this muli.4 ways. respond to similar stimuli in similar “reappraise” thinking to adjust their maintain, however, that researchers Some a different create stimuli and stressful respond stress similar- individuals do not to might expect. one reaction than emotional index be used to ly and no one can and Emotions Control- Ney, Expressing in individuals. measure emotions different (“tell truth and ling Feelings think Ney, Expressing Emotions and Control- may the truth something painful and 71-72; Gudjonsson, How ling Feelings at lie”).5 as a Of appear on Polygraph Tests 135. to Defeat an course, way no for exam- there would be ap- subject is how the iner to determine Appellant’s Are Mislead- Statistics C. in his mind. the stimuli praising ing underlying the relevant sci- assumption third Piccinonna claims that “the The community”6 the accura- entific estimates patterns set is that there are gar- agreement among edge Florida Technology south Assessment reviewed an Office of The the available bage companies. issue in 1983 and could have ra- research this The defendant on can be questions effec- counter-measures on such am- concluded his answers to tionalized in the is further research area issues, and that tive necessary biguous and a and avoided emotional an engaged prevent persons to illicit questions. response physiological to the negatives” creating on "false from activities polygraph and, clearing way, exams scientific that the 6.Piccinonna claims "relevant any suspicion. OTA Memoran- themselves community” done research is "those who have (‘The possible effects of counter- at 100-01 dum training techniques had have on the and/or significant ex- particularly are measures techniques test- experience [of and relied is used on that the tent Appellant's at 9. The ing]_” En Banc Brief security purposes_ individ- [T]hose national stated, Technology Office of Assessment would most who the Federal Government uals however, should "Basic research security (e.g., for national viola- to detect want tions) the fields the latest research from consider may be most motivated well psychiatry, physiology, neurosci- psychology, ence, detection.”) perhaps to avoid the best trained develop a in order to medicine” polygraph. cognitive appraisal theory stronger base theoretical is Lazarus’s This Ney, Expressing to ar- Emotions at 6. It is reasonable See Memorandum emotion. OTA Lazarus, (citing Coyne, therefore, Controlling Feelings experts these fields are gue, from Folkman, Cognition, and Motiva- validity Emotion competent on the to comment Ap- Doctoring Humpty-Dumpty, Gianelli, Admissibility testing. tion: graph (K. and P. proaches States, Emotion Scherer Ekman to Frye v. United Evidence: Novel Scientific eds.1984)). Later, Half-Century Colum.L.Rev. ("'The Frye purpose test is employing subject is not coun- when Even court approach allows a an which defeated termeasures, cognitive appraisal seems affect opinions of a substantial ignore informed subject is accused of tests results where community segment the scientific the sole crime where issue of a nebulous ques- process in opposition to the stands cases, issue In intent. these criminal ” State, (quoting Md. Reed v. tion.’ subject ac- where the as in cases as distinct recog- (1978))). Congress has A.2d an issue calls for physical of a act. cused experts competent community of nized that may interpretation, which distor- beyond testify reaches on in the defendant’s mind. or rationalization tion Barland, proponents. For ex- and their examiners Polygraph in the U.S.A. and Test Beary appeared on behalf F. III ample, John Dr. Test 83-84. In in The Elsewhere before the Medical Association case, of the American is accused of know- the defendant instant and the and Labor Committee House Education telling when he denied knowl- a falsehood ingly cy of to be in upper- positives -false ranged from 2 to 50.7 *11 eighty mid-ninety percent range. Appel percent averaged and 14.1 percent; lant’s En figure Banc at 9. This and Brief misleading subject and dispute. to serious negatives ranged -false from 0 to 28.7 The things: must do two cor percent and averaged percent. 10.4 rectly identify liars and correctly identify OTA Memorandum at 97. Note that be- those telling who are the truth.7 Employ question cause subject lying?” “Is the Polygraph ee Hearing Protection Act: on question, is a yes no a random method of S. 185 the Senate Committee on Before answering question (e.g., toss) a coin Resources, Labor and Human 100th would be correct of the time. The 50% Cong., (Appendix 1st Sess. statement concluded, Memorandum III, Beary, M.D.) F. John [Herein The wide variability results from both after Hearing single “S. No figure, prior research reviews and Office of therefore, fully [The can express the accuracy Technology own review of polygraph. Assessment’s] The Office of Technology individual impossible studies makes it compiled Assessment the results pri- six research, specific reviews of determine a quantitative overall ten field studies, and analog fourteen measure studies of polygraph validity. pre- The the Office of Technology ponderance Assessment de of research evidence in- does termined met minimum scientific stan that, dicate when the control question dards. All of studies used the control technique is used specific-incident question technique specific-incident crim investigation, criminal the polygraph de- investigation inal settings. The results deception tects at a rate better than were as follows: chance, but with error rates that could be prior Six reviews field studies: significant. considered -average accuracy ranged from 64 to Id. percent. D. Extrinsic Factors Accuracy Affect
Ten individual field studies: A number of extrinsic factors affect -correct guilty detections ranged from polygraph validity. important, Most be- 70.6 to percent 98.6 averaged and 86.3 cause the examiner must percent; formulate the questions, supplement the data with his -correct innocent ranged detections impression own subject during the from 12.5 percent to 94.1 and averaged exam, and infer lies percent; from a combination of the data and impressions, his the level of positive (innocent -false rate persons skill training and of the examiner found will af- deceptive) ranged from 0 to 75 fect percent reliability averaged S.Rep. and results. percent; 19.1 284, and No. Cong., 100th 2d Sess. reprint- ed in 1988 negative Cong. -false rate U.S.Code & (guilty persons Admin. found nondeceptive) ranged News from 0 to Senate Re- [hereinafter percent 29.4 averaged per- port]; Barland, 10.2 Polygraph cent. USA and Elsewhere in Polygraph Fourteen analog individual Test Unfortunately, studies: 82. there are no uni- form
-correct standards for guilty training detections ranged from of poly- 35.4 percent to 100 averaged examiners country. 63.7 Senate percent; Report at Cong. U.S.Code & Admin. 731; (statement -correct News at Hearing innocent S. at ranged detections from percent 32 to 91 Scheve, averaged Jr., Mr. William J. American percent; 57.9 Polygraph Association); Barland, see Senate Committee on Labor and example, Human Re- 7. For examiner who ac- oppose every sources to lying use of polygraphs cused would be 100% workplace. 51; detecting Hearing accuracy H.R. accurate at tecting Hearing at liars. His S. at at de- truthful, however, those who are 16. would unacceptably low. unstipulated determined that Brown court Elsewhere at in the USA Polygraph under inadmissible Association evidence is (the American Brown, schools 702 and over Rule Rule has accredited both to four- ranging presents from seven n. with courses F.2d at 1396 weeks). being very teen scientific. For in- itself as stance, “galvanic skin it is said to measure system reviews quality A control En Banc response,” Appellant’s the va- also affects Brief conclusions examiners’ merely that it measures means The results of results. lidity *12 Bull, person perspires. much a What how ex- polygraph federally administered most Test? at 11. This officers, Lie-Detection is the by quality control checked ams are cloud the fact that aura tends to if the data scientific reexaminations for who call accuracy detecting lies is examiner’s con- machine’s at that the does indicate Barland, Brown, Poly- The 783 correct. better than chance. F.2d clusion was little 87. Alexander, Elsewhere USA and 526 F.2d at (quoting 1396 at such a within police examiners work 168); Few at Memorandum 97. OTA examiners private no system, and almost Ninth found that admis- Circuit also control. quality have poten- polygraph of evidence had the sion exam will also length a of confusing wasting the issues and tial One ad- validity of the results. affect the 1397; Fed.R.Evid. 403. In Id. at see time. that an has stated vocate of case, instance, Brown for mini- take a polygraph exam would expert one fourth of graph evidence consumed complete. hours to Senate mum of several (two Brown, F.2d at 1397 trial. 783 entire Cong, and Report at U.S.Code trial). days eight-day of an Because full at 730-31. News Admin. help little to polygraph evidence is of fact, great potential for trier has BE TESTS SHOULD II. POLYGRAPH fact, confusing prejudicing the trier of FEDERAL UNDER THE EXCLUDED time, wasting it should ex- be issues and EVIDENCE RULES OF under Federal Evidence cluded Rule 702, ex of Evidence Federal Rule Under danger prejudice, confusion testimony proper testimony is if pert wasting pre- should also time issues and analyzing the trier fact would assist admitting polygraph evi- courts from vent advisory Fed.R.Evid. the evidence. purposes of im- under dence Rule (West Because the note committee’s opinion the Court’s a witness. As peaching person a predict whether polygraph can states, polygraph evi- correctly all offers slightly only accuracy that lying with light of Rule analyzed should be dence help chance, of little it will be greater than Miller, 874 F.2d v. United States 403. Cf. Moreover, slight this of fact. the trier to (even Cir.1989) when of- weighed against must helpfulness polygraph evi- purpose, for a limited fered prejudice, confusion dangers of unfair analy- go a Rule through must dence Fed.R.Evid. of time. and waste the issues evidence is sis). To hold that found that has Ninth Circuit 403. The create too Rule 608 would under admissible overwhelming evidence an barring poly- rule exception large an jury. Brown prejudicing the potential for generally, and graph evidence Cir.1986) 1389, 1396 Darcy, v. being up admitted wind results would test Alexander, 526 (citing Moreover, cases. most into (8th Cir.1975)); see Gia also Rule nothing special about there nelli, Admissibility Novel Scientific lessens the procedure impeachment States, a Frye v. United Evidence: Half- and confusion prejudice dangers of Later, 80 Colum.L.Rev. Century Toney, United issues. States (1980)(“The major danger of scientific Cf. Cir.1980) (“Rule 403 a is. jury; potential is its mislead guide for rule, ‘designed as a general infallibility may of scientific an aura specific no handling of situations jury lead the the evidence thus shroud ”) formulated.’ been have scrutiny.”) The rules critical it without accept
III. CONCLUSION community sharp-
The scientific remains
ly divided over the issue of validity Although presented exams. as rigorously procedure, “scientific” upon test in fact relies highly
subjective, physiolog- inexact correlation of having only
ical factors a debatable rela-
tionship dishonesty as such. The device
detects lies at a rate somewhat better
than chance. there-
fore, should not be admissible under Rule impeach
702 or under Rule 608 to a wit-
ness. case,
In government stip- did not
ulate of the defendant’s participate evidence and did not
in selection of the examiner or the determi-
nation of the circumstances of the I test.
would judgment therefore AFFIRM the be-
low.
Terry RINGSTAFF, Kent
Petitioner-Appellant, Attorney
Dale HOWARD and The Gen Alabama, eral of the State of Don Siegelman, Respondents-Appellees.
No. 87-7573. Appeals, Court of
Eleventh Circuit.
Sept. 28, 1989. Clarke, Ala.,
Janie Montgomery, Baker petitioner-appellant.