In the
United States Court of Appeals
For the Seventh Circuit
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No. 14‐3791
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DAVID A. RESNICK,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:11 CR 68 — James T. Moody, Judge.
____________________
On Petition for Rehearing En Banc.
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DECIDED JULY 28, 2016
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Before WOOD, Chief Judge, BAUER, POSNER, FLAUM,
EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and
HAMILTON, Circuit Judges.
WOOD, Chief Judge. On consideration of the petition for
rehearing with suggestion for rehearing en banc filed by
defendant‐appellant on June 7, 2016, a majority of the judges
2 No. 14‐3791
on the original panel voted to deny rehearing and a majority
of the judges in active service voted to deny rehearing en
banc. Judge William J. Bauer voted to grant rehearing but did
not take part in the vote to rehear en banc. Judges Richard A.
Posner, Joel M. Flaum, and Michael S. Kanne voted to grant
rehearing en banc. Judges Bauer, Posner, Flaum, and Kanne
dissented from the denial of the rehearing and rehearing en
banc and filed an opinion.
The petition is therefore DENIED.
No. 14‐3791 3
BAUER, POSNER, FLAUM, and KANNE, Circuit Judges, dissenting
from the denial of rehearing en banc. The majority opinion makes
two damaging admissions. The first is its statement that “our de‐
cisions have, in practice, pointed in only one direction: affirming
the exclusion of polygraph evidence. There is no scientific consen‐
sus that polygraph testing is reliable, and there is a significant
possibility of unfair prejudice if it is introduced into evidence at
trial” (emphasis in original). The second is its statement, quoting
Garmon v. Lumpkin County, 878 F.2d 1406, 1410 (11th Cir. 1989),
that “because a criminal defendant’s constitutionally protected
silence may not be used against her, the natural corollary to that
rule is that generally a defendant’s refusal to submit to a poly‐
graph examination cannot be used as incriminating evidence.” In
other words, “it is improper for a witness to testify whether or not
a criminal defendant refused to submit to a polygraph test.” Unit‐
ed States v. St. Clair, 855 F.2d 518, 523 (8th Cir. 1988).
Because polygraph (i.e., lie‐detector) evidence is unreliable, its
introduction in a trial creates a significant possibility of unfair
prejudice, and a defendant therefore has a constitutional right not
to have his refusal to submit to a polygraph be used in evidence
against him as an admission of guilt. The government is “prohib‐
it[ed] … from ‘treat[ing] a defendant’s exercise of his right to re‐
main silent at trial as substantive evidence of guilt.’” United States
v. Ochoa‐Zarate, 540 F.3d 613, 617 (7th Cir. 2008), quoting United
States v. Robinson, 485 U.S. 25, 34 (1988). Therefore if a defendant
refuses to testify, or invokes his Miranda rights, the prosecutor
cannot comment to the jury on his refusal to take a polygraph test.
Most people, moreover, would be made nervous at the
thought of having to take a lie‐detector test, and this doubtless de‐
ters many law‐abiding people from agreeing to take the test. For
we now know that being nervous cannot be treated as a confes‐
sion of guilt—that there are nervous truth‐tellers as well as nerv‐
ous liars, and confident liars as well as nervous liars. See Jeremy
4 No. 14‐3791
A. Blumenthal, “A Wipe of the Hands, a Lick of the Lips: The Va‐
lidity of Demeanor Evidence in Assessing Witness Credibility,” 72
Nebraska L. Rev. 1157 (1993). These problems affect the reliability
of polygraph evidence. See Renée McDonald Hutchins, “You
Can’t Handle the Truth! Trial Juries and Credibility,” 44 Seton Hall
L. Rev. 505, 524–32, 529 n. 100 (2014).
The principles that we’ve enunciated, which are endorsed by
the majority, require that the judgment be vacated and the case
remanded for a new trial. Against this all the majority can marshal
is the doctrine of “plain error,” an exacting standard designed to
enforce finality in litigation and encourage counsel to raise objec‐
tions in the district court instead of waiting for a possible appeal.
Although there is a valid interest in the finality of litigation,
served by the plain‐error standard, it is outweighed by the con‐
cerns presented by this case. There is too much at stake, not only
for the defendant but for the criminal‐trial process in general.
What can be a simpler or more effective prosecutorial tactic than
simply to ask the defendant whether he’ll agree to take a poly‐
graph test, and if he refuses, as he is likely to do whether under
his own steam or by advice of counsel, parade his refusal before
the jury, arguing that it amounts to a confession of guilt—and if
he appeals cite the decision in the present case.
We need not go so far as to advocate a ban on all polygraph
evidence in criminal trials; the fact that it is unreliable doesn’t dis‐
tinguish it from a lot of other sometimes unreliable evidence—
eyewitness evidence for example—that is frequently admitted at
trial. We contend only that if a suspect refuses to take a polygraph
examination, the government shouldn’t be allowed to introduce
the refusal as substantive evidence or to comment on the refusal
to the jury. Adopting the narrower rule that we are suggesting
would align us with the prevailing judicial recognition of an ex‐
pansive right against self‐incrimination, see, e.g., Griffin v. Califor‐
nia, 380 U.S. 609 (1965); Miranda v. Arizona, 384 U.S. 436 (1966),
No. 14‐3791 5
coupled with the concern, not limited to us, that polygraphs are
unreliable trial evidence. See, e.g., United States v. Scheffer, 523 U.S.
303, 309–10 (1998); United States v. Lea, 249 F.3d 632, 638–39 (7th
Cir. 2001).
The government argues that because of the “overwhelming ev‐
idence of guilt” in this case the defendant can’t prove that the
prosecution’s submitting and commenting on his refusal to sub‐
mit to a polygraph test affected the verdict. The implication, seem‐
ingly adopted by the panel majority, is that if the government pre‐
sents enough evidence of guilt it can then for good measure top
off that evidence with evidence that violates a constitutional right,
ignores evidentiary rules, and tempts the jury to abdicate its role
as factfinder. There is no evidentiary demarcation line that when
traversed with enough damning evidence of guilt permits the
government and the court to deny a criminal defendant the right
to a fair jury trial.
That the polygraph is at the center of this controversy is im‐
portant. A polygraph is an instrument designed to determine
whether the person examined is telling the truth. But polygraphs
are not reliable truth‐telling tools, and determining credibility is
the jury’s duty. The introduction of and comment on evidence
that a suspect refused to take a polygraph test signals to the jury
that polygraph evidence is reliable, though it is not, and that the
suspect’s refusal to talk evidences consciousness of guilt when
courts have consistently held that this is an impermissible infer‐
ence. It could also signal to the jurors that their own instincts do
not matter when determining credibility—that the results of a
polygraph test (or the refusal of the defendant or a witness to
have taken the test) supersede their common sense—and so they
might as well ignore their duty as factfinders. In United States v.
Scheffer, supra, 523 U.S. at 313, a plurality of Justices agreed that
“by its very nature, polygraph evidence may diminish the jury’s
role in making credibility determinations.” The potential for this
6 No. 14‐3791
effect contradicts the government’s assertion that the defendant
cannot show that the government’s tactics affected the jury. Ra‐
ther those tactics infected the trial and rendered it unfair, no mat‐
ter how “overwhelming” the evidence against the defendant.
Such tactics should not be tolerated. Reversal would send the
right signal; this affirmance sends the wrong one. Resnick de‐
serves a new trial.