United States v. Justin Call
129 F.3d 1402
10th Cir.
1997
Check Treatment

*2 BALDOCK, EBEL, Before LOGAN and Judges. Circuit BALDOCK, Judge.

juryA convicted Defendant Justin Call of in- possession of a controlled substance with distribute, of 21 tent violation U.S.C. 841(a)(1). § was sentenced to 63 Defendant appeal imprisonment. This direct months appeal, argues followed. his by excluding court erred proffered expert regarding the re- Specifically, his test. De- sults of argues that the district court failed fendant set forth in Daubert Inc., 509 U.S. Merrell Dow (1993), L.Ed.2d failing and that the district court erred evidentiary hearing on the admissi- hold an evidence. its that the district court abused argues alternatively holding that the should be excluded jurisdiction un- 403. Our arises Fed.R.Evid. oper controlling technique’s R.App. P. of standards § 1291 and Fed. 28 U.S.C. der ation; 4(b). technique has affirm. We acceptance in the scientific gained general 593-95, 113 community. at 2796- Id. S.Ct. I inqui list is nonexhaustive and the 97. This patrol agents at a August border *3 594, at ry 702 is “flexible.” Id. Cruces, New Mexico checkpoint north of Las at 2797. The second Rule 702 113 S.Ct. concealed pounds of cocaine discovered 2.3 helpful be to requirement, that the evidence car of a driven behind the dashboard factfinder, question of relevance. is a was indicted and Defendant. Defendant preparation for his pleaded guilty. In consistently Prior to Daubert we held trial, professor jury Defendant retained pur for the offered University to con- at the of Utah psychology showing is truthful is inad pose that one polygraph examination. Defendant duct a Hall, v. 805 E.g., missible. United States the results of the sought then to introduce (10th Cir.1986). 1410, In 1416 so hold F.2d to show examination acceptance ing, applied general we being asserting in that he was truthful Frye forth in v. similar to the one set United knowledge no of the cocaine concealed he had (D.C.Cir.1923). States, 1013, 1014 293 F. holding evidentiary an in the car. Without 796, Wainwright, F.2d 413 United hearing, the court concluded that the (10th Cir.1969) (expert testimony must 803 was inadmissible. community in accepted in scientific be Hunter, admissible); to be United States II. (polygraph 672 817 F.2d they matter, inadmissible we must ad threshold “widely perceived by are not the scientific must whether the Daubert framework dress community having a reasonable measure We applied be to examinations.1 test, precision”). Frye Under the conclude that it must. technique on a was based scientific governs Rule of Evidence 702 Federal technique gener unless the was testimony. admissibility of scientific ally accepted as reliable in the relevant scien requires The rule a determination Daubert, community. at tific 509 U.S. (1) is based on scientific knowl Daubert, Supreme 113 at 2792. In S.Ct. (2) fact to edge, and will assist trier of test, rejected general acceptance Court the evidence or to determine understand superseded concluding that Rule 702 in Fed.R.Evid. 702. In Daubert fact issue. Daubert, Frye 113 test. U.S. Dow v. Merrell Thus, light in S.Ct. at 2793. orn 2786, 125 L.Ed.2d 469 applying Frye general acceptance eases (1993), Court set forth the Therefore, longer good no law.2 test are admissibility analyzing framework apply Frye test to determine the requires a Rule 702 evidence. Daubert de Instead, admissibility evidence. proffered evi termination of whether analysis. apply we must the Daubert Daubert, courts dence is reliable. Under Fifth of scientific evidence and Ninth Circuits have reached measure (1) technique considering can conclusion. same (5th (2) Posado, Cir.1995), tested; 432-33 has been whether the tech (3) review; subjected peer the Fifth concluded that because nique has been potential Frye general accep- known or error rate of the Daubert overturned test, analysis technique; the existence and maintenance tance the Daubert must be Although panel generally Although post- overrule we have held at least one one cannot exception gener- precedent, Su- results are circuit exists if the Daubert inadmissible, contrary question preme superseding ally Court has issued a of whether Dau- Smith, (10th applies examinations was not decision. re bert Monticello, Cir.1993). City In this Daubert constitutes addressed. See Palmer v. (10th Cir.1994). requisite superseding decision. F.3d set forth Daubert and that the standard polygraph evidence. See applied to Cordoba, would disturb the set- “nothing Daubert States Cir.1997). precedent Fifth and Ninth Like the tled Circuits, a reason to treat neither reliable nor admissible show we cannot discern Consequently, differently than other sci- one is truthful.” we conclude polygraph evidence Rule 702. Daubert that the district court did fact Dau- entific evidence excep- support for such an bert. itself contains examinations, Consequently,

tion. Defendant next asserts that evidence, must be all other scientific like by failing court erred forth, set subjected to the Rule hearing to determine in Daubert. Although results. Defendant re quested hearing, Daubert does not mandate sug *4 holding does not our Nevertheless, appellate court must one. gest a newfound enthusiasm sufficiently developed it a record have before of application that our evidence. We caution in to allow a determination of whether im polygraph evidence does not Daubert to properly applied court the rele satisfy the ply that outlined Daubert vant law. Furthermore, requirements of Rule extensive, requiring the court to is district satisfy should even if “carefully meticulously” prof review 702, rigors it must still survive Rule Robinson v. Mis fered scientific evidence. 403, 595, Rule 509 U.S. (10th 1083, Pacific, 16 1089 Cir. souri F.3d permits the district court at 2797 which 1994). presented In the material this “probative its value exclude evidence where court was limited. Defendant to the district outweighed by danger substantially is areas which his outlined the about issues, prejudice, of the or unfair confusion testify during evidentiary hearing, would misleading jury....” Fed.R.Evid. 403. provided the district court with minimal addition, the information. dis substantive III. specific findings factual trict court made no of the We now turn to our review application of Rule 702 and regarding its in this case. We re district court decision However, not reach the Daubert. we need prop court view de novo whether the district is question of whether this record insufficient erly framework set forth followed the review, because we permit meaningful America, Compton v. Daubert. Subaru of properly excluded hold that the district court (10th Cir.1996). Inc., 82 F.3d 1517 Rule 403. the evidence under However, we that the district once determine 403, the district court Under Rule correctly applied the Daubert stan court value may “probative if its exclude evidence dards, court we reverse the district danger of substantially outweighed is if of the con the exclusion issues, or prejudice, unfair confusion of an abuse of discretion. Id. stituted jury....” Fed.R.Evid. 403. misleading the first that the dis asserts A to exclude evidence decision Daubert but instead trict court did abuse will not be reversed absent clear 403 per on a se rule the evidence based excluded Wolfgang v. Mid-America of discretion. inadmissibility. Although the district (10th 1526 Motorsports, 111 F.3d pre-Daubert opinion, United court cited a Cir.1997). Therefore, will not reverse the (10th Hall, 805 F.2d States v. decision .absent “definite district court’s Cir.1986), proposition that for the that the lower court and firm conviction that is inadmissible to show one judgment or exceeded made a clear error of truthful, clearly demonstrates the record in the cir permissible choice the bounds applied Daubert court district omitted). (citations cumstances.” Id. proffered polygraph evidence. The district ease, sought to the Defendant it explicitly stated its order bolster polygraph evidence to light introduce the evaluated cases, in pre-Daubert Tenth Circuit credibility. polygraph results would ruled his Hall, cluding his own that he United States have corroborated (10th Cir.1986), knowledge general cocaine was that utilized the prior had no credibility acceptance Frye of witnesses is forth in v. United in the vehicle. The test set (D.C.Cir.1923). States, subject for ex generally appropriate not an F. Toledo, 985 pert testimony. majority recognizes, a district court abus (10th Cir.1993). testi Such F.2d under Daubert es its discretion usurps a mony excluded because it requested evidentiary hearing is often to hold a it of the and because is critical function exam under jury, capable helpftd to the which Rule if the court Federal of Evidence 702 making determination its own sufficient information to make a deter lacks C.I.R., Id.; credibility. see Conti mination of the Cir.1994) (holding without the benefit of such a hear almost never admissi polygraph evidence is majority ing. here holds 403). There is also the dan ble under Rulé court did not abuse its discretion jury may ger that the overvalue it excluded as an indicator of truthfulness be results unduly prejudicial under Federal Rule polygraph’s cause of scientific nature. result, majority As a Evidence 403. does Falsia, not reach the issue of whether the district *5 polygraph’s (noting “mislead evidentiary court should have held an hear accuracy”). ing appearance of The district ing regarding admissibility. poly court based its decision to exclude the inquiry by Daubert mandated under graph results on a determination requires Rule 702 the district court to evalu- proba prejudicial was more than evidence only ate factors that not measure the reliabil- tive, jury. not and would assist the Under consideration, ity of the evidence under but circumstances, we cannot find that the light on also that shed evidence judgment a district court made clear error of testimony or will “assist the trier of fact to permissible choice. or exceeded the bounds or understand the evidence to determine a Thus, the district court did not abuse its issue,” fact 509 U.S. at excluding evi (citations omitted). S.Ct. at 2795 These dence. questions evaluating at the heart lie reasons, foregoing judgment For the probative proffered relevance and value of the district court is (relevance) evidence under both Rule 401 and AFFIRMED. (prejudice). Consequently, I read Rule impacting Daubert as the evaluation of scien- EBEL, Judge, dissenting tific evidence my Rules 401 and 403 as well. under Defendant Justin Call contends therefore, judgment, a district court abuses by district court abused its discretion exclud- by excluding polygraph its discretion evi- ing expert testimony regarding the results of under Rule 403 if it lacks sufficient dence Specifi- examination. regard- information to make a determination cally, argues Defendant the district ing reliability results and evidentiary hearing court’s failure to hold an evidentiary hearing fails to hold an in the reliability on the evidence de- materially face of evidence ad- prived adequate court of an factu- district dressing issues relevant to Rule 403. background al on which to base the exclu- Thus, turns on sion. this case majority points out that to erred may possess “misleading appear- a results evidentiary hearing. accuracy” ance of threatens to under- jury’s agree majority responsibility I the Su- mine the to make an with the preme independent in Daubert v. Merrell evaluation of the truthfulness of Court’s decision we, testimony. witness neither Dow courts, adopted per circuit have 125 L.Ed.2d 469 over- nor other fact, expert “merely trier of but the cannot against the se rule reach.”). jury Rule result to under 403. See States tell what Cordoba, Similarly, per se rule bars Cir.1997)(holding that Daubert overruled expert describing physical respons- from per always se rule that displays being es an examinee when truthful under Rule 403 or Rule either jury informing or untruthful and then 702). experts to Although the use of bolster particular the characteristics exhibited disfavored, credibility is no absolute witness defendant, provided expert does not testimony prohibits utilizing expert rule express his individual as to whether Shay, purpose. See United States actually telling the truth. defendant was (1st Cir.1995) (“[N]o constitu Therefore, Defendant would not have been law, requires provision, or rule tional introducing polygraph barred from expert automatic exclusion of sim in this case if he met the standards of admis- credibility ply ques- it concerns a 401, 403, sibility Rules Cordoba, tion.”); 104 F.3d at 227 see also to successfully address (“Daubert excluding rule per overruled a se Rule court’s concerns under credibility expert juries to persuade needed the court that do (citations identification.”) eyewitness omit- unduly not overvalue and are not ted). expert may go so While “an far as swayed by polygraph results and that usurp of the the exclusive function characteristics revealed credibili- weigh the and determine probative of an truthfulness. examinee’s Samara, ty,” proof a detailed made offer of (10th Cir.1981), have courts allowed addressing precise these issues.1 support the use of credi- hearing designed issue of A of witness when the credibili- Daubert ty complete with a such as sexual the court more is central understanding relevance molestation cases where an testifies *6 of In Franks v. that a witness exhibited characteristics con- scientific evidence. Delaware, Supreme those in other the Court held that a sistent with observed victims abuse, see, reject e.g. district court cannot sub- of sexual St. Pierre, evidentiary proffer an mitted and must hold 419-20 evidentiary hearing proffer inform unless the on its (expert can of characteristics sexually compare to raise a material issue of abused children face insufficient found 171-72, by alleged with vic- fact. characteristics exhibited (1978). tim). 704(a) 2684-85, Although also Fed.R.Evid. and advi- 57 L.Ed.2d reliability the of an sory (expert opinions addressing are attacks on committee’s note warrant, they supporting a the merely em- affidavit search guidance the by opinion provides ultimate the Franks on brace the issue to be decided (1) prove questions of that if he knew 1. offered Dr. David all the asked him question (9) poly- administered a driving drugs; Raskin control he contained car was Defendant; (2) graph examination of control juries unduly are influ- studies show that question polygraph are scientifical- evidence; (10) by polygraph enced Dr. Raskin’s reliable; (3) ly question polygraph exami- control extremely to the would be relevant by recognized been as reliable nations have sci- credibility. I at of R.O.A. Vol. issue Defendant’s field; (4) question experts in the control entific already stipulated that government had 31. potential rate examinations have low qualified of Dr. in the field Raskin is error; (5) question of control exami- polygraphy. this evi- It be not all of probative the truthfulness nations of of appropriate dence submission would be (6) questions; examinee’s answers to relevant jury, the the that is not issue raised on Dr. Raskin conducted the examination appeal. only issue before us is with standard exami- of Defendant accordance hearing conducted court should have a Daubert (7) procedures; performance nation determining exercising before its discretion in during indicated that he was go jury. of what to the The offer evidence should answering questions about his truthful in knowl- proof that the court should presence drugs describes edge in the car was he exercising its discretion. driving; negative have received before Defendant answered in proper proof. evaluation offers of See also suant to the standards mandated Dau- Russo, bert. United States v. (10th Cir.1975) (suggesting

1058-59 offer proof sufficiently set forth the reliabil

ity require evidence would

trial court full-scale

hearing

results). Here, present Defendant offered to evi- SMITH, Plaintiff-Appellee/ Debbie L. directly posed by dence related to the issues Cross-Appellant, the district court’s evaluation of whether to results under Rules admit government prof- While NORTHWEST FINANCIAL ACCEP unreliability fered evidence TANCE, INC., corporation; an Iowa polygraphs, the record reveals no evidence Mangus; Wy Curtis Norwest Financial government offered to contradict De- oming, Inc., Wyoming corporation; juries claim that prejudiced fendant’s are not Financial, and Norwest an Iowa result,

by polygraph results. As a in order corporation, Defendants-Appellants/ evidence, to exclude Defendant’s Cross-Appellees. reject

the district court either had to Defen- 96-8103, Nos. 96-8111. proffer proffer dant’s or conclude that unpersuasive. my view, was ap- Appeals, United States Court of either proach Tenth Circuit. constituted an abuse discretion.

First, presented Dec. prejudice district court on the issue of reflected in the record demonstrates that unduly sway evidence does not Second,

jury. conflicting prof- government

fered

as to the pres- tests exactly type

ents dispute of material Court Franks concluded re-

quires inquiry further in the form of an Third,

evidentiary hearing. proffers by

themselves sufficiently do de-

veloped factual basis us to review wheth-

er the district court applied the Therefore,

relevant law. I believe that the

district court erred not holding the re-

quested evidentiary hearing develop a suf-

ficient factual background deciding before polygraph expert’s

exclude the testimony.2 reasons,

For these I respectfully dissent.

I would hold that the district court abused its

hearing on 401, 403,

evidence under Rules pur- and 702 course, surrounding 2. Of (C.A.A.F.1996), the issues Scheffer, the admissi- United States v. 44 MJ. 442 — —, granted, evidence will become clearer rt. ce (1997). once the Court issues an 137 L.Ed.2d 1026