Tuesday, May 24, 2005

11th Circuit Revisits Polygraphy

One result of the Supreme Court's 1993 ruling in Daubert was to create new ambiguity on what had previously been a largely settled point: the admissibility vel non of polygraph testimony in federal court. Yesterday's decision in United States v. Henderson, No. 04-11545 (11th Cir. May 23, 2005) (Barkett, Hill, & Farris, JJ.), shows that not all uncertainty on this issue has yet been dispelled.

First, some background. In 1989, before Daubert was decided, the Eleventh Circuit, sitting en banc, had announced two limited exceptions to the general rule then prevailing, under Frye, that polygraph testimony was inadmissible per se. See United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989) (holding that "the science of polygraphy has progressed to a level of acceptance sufficient to allow the use of polygraph evidence in limited circumstances where the danger of unfair prejudice is minimized"). The first exception allowed for polygraph evidence to be admitted by stipulation. The second permitted its use for impeachment or corroboration of a witness at trial, provided the proponent gave advance notice to the opposition and afforded the opposing party an opportunity to conduct its own polygraph of the subject. The Piccinonna court explained that it was not adopting a rule of per se admissibility in cases where the exceptions applied, and went on to enumerate three specific grounds on which polygraph evidence might still be excluded notwithstanding the exceptions: "1) the polygraph examiner's qualifications are unacceptable; 2) the test procedure was unfairly prejudicial or the test was poorly administered; or 3) the questions were irrelevant or improper." Id. at 1537. The court also noted that its holding was not intended to "preempt or limit in any way the trial court's discretion to exclude polygraph expert testimony on other grounds under the Federal Rules of Evidence." Id. at 1536 (emphasis added). The precise scope of these "other grounds" was not defined, although the opinion did give exclusion under Fed. R. Evid. 403 as one example.

The Supreme Court's 1993 ruling in Daubert, which overruled Frye and substituted new standards for the admissibility of expert evidence, placed the continuing validity of Piccinonna in some doubt. The Eleventh Circuit was confronted with the issue of Piccinonna's continuing viability in United States v. Gilliard, 133 F.3d 809 (11th Cir. 1998), and responded by upholding a trial court's discretionary exclusion of corroborative polygraph evidence. The holding in Gilliard, however, was ambiguous, because the trial court decision affirmed in Gilliard rested not only on Fed. R. Evid. 702, but also on the alternative ground that the probative value of the evidence was outweighed by the potential for prejudice and confusion under Fed. R. Evid. 403. Thus the outcome in Gilliard might have been reckoned consistent with the view that the list of three permissible grounds enumerated in Piccinonna for exclusion of polygraph testimony (in cases subject to the two exceptions) still governed, so far as Rule 702 was concerned, and indeed that it represented an exhaustive list of permissible bases for exclusion under Rule 702 in such cases.

The majority opinion in yesterday's Henderson decision rejects the latter view. Judge Barkett's opinion, joined by Judge Farris of the Ninth Circuit (sitting by designation), upholds the trial court's adoption of a magistrate's ruling that a polygraph should be excluded for want of reliability under Daubert. The majority opinion cites the following language from the Piccinonna decision itself: "Our holding states merely that in the limited circumstances delineated above, the Frye general acceptance test does not act as a bar to admission of polygraph evidence as a matter of law." Piccinonna, 885 F.2d at 1536. Piccinonna, in other words, does not pronounce on whether the Daubert test may bar the testimony in such circumstances, in the panel majority's view.

Judge Hill, however, filed a dissent. In his view, Piccinonna held that "polygraph evidence is sufficiently reliable to be generally admissible at trial in this circuit," and that holding cannot be overruled, he says, except by another en banc panel of the Eleventh Circuit. To the argument that the Supreme Court's intervening decision Daubert changed the landscape, Judge Hill responds that the Daubert Court announced its ruling "without any mention of Piccinonna." That response may sound somewhat weak, but Piccinonna, after all, is an en banc decision in which the Eleventh Circuit devoted considerable effort to gauging the scientific reliability of modern polygraphy (as Judge Hill apparently remembers, having dissented, back in 1989, from so much of the Piccinonna opinion as held polygraph testimony sufficiently reliable to be admissible in any context, absent stipulation).

Can Daubert be assumed to have overthrown whatever jurisprudence on expert evidence antedated the Supreme Court's decision? That view seems bold. Is Daubert enough to undo the binding force of en banc decisions rendered by the Courts of Appeals before it was decided? Two Eleventh Circuit judges from the Henderson panel apparently hold opposite views on that subject, with a Ninth Circuit judge, sitting by designation, breaking the tie. What should an Eleventh Circuit panel now do, in the next case, if it wants its holding to be faithful to precedent? We, at least, are unsure. We know only that a decision excluding polygraph testimony would be hard to condemn on the theory that it reached the wrong result.


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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.