Saturday, October 23, 2004

9th Circuit Holds Polygraph Testimony More Prejudicial Than Probative

The Ninth Circuit has published a decision upholding the trial court's exclusion of a criminal defendant's exculpatory polygraph evidence. The trial judge did not state the evidentiary basis for his ruling, but he did say this:
I used to do a lot of criminal defense work, and I was always scared to death of polygraph evidence because usually it was the Government that was trying to use it or the State.

I am not going to allow it. I don't want to be the first judge to allow polygraph evidence. I don't feel like setting any markers there, and it is an interesting question to submit to the appeals court. So I am going to deny the motion to admit the polygraph evidence.
In the Ninth Circuit, the exclusion of polygraph testimony may be upheld on any theory supported by the record. Because the trial court did not conduct a Daubert inquiry, the appellate panel concluded that the exclusion of the testimony could not be upheld on reliability grounds. It went on to find, however, that the record supported exclusion of the testimony as more prejudicial than probative under Fed. R. Evid. 403. See United States v. Ramirez-Robles, No. 03-30122 (9th Cir. Oct. 21, 2004) (Hug, McKeown, & Fisher, JJ.).


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.