United States v. Justin Call

EBEL, Circuit Judge,

dissenting

Defendant Justin Call contends that the district court abused its discretion by excluding expert testimony regarding the results of Defendant’s polygraph examination. Specifically, Defendant argues that the district court’s failure to hold an evidentiary hearing on the reliability of polygraph evidence deprived the district court of an adequate factual background on which to base the exclusion. Thus, this case turns on whether the district court erred by refusing to hold an evidentiary hearing.

I agree with the majority that the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) overruled pre-Daubert Tenth Circuit cases, including United States v. Hall, 805 F.2d 1410, 1416 (10th Cir.1986), that utilized the general acceptance test set forth in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). As the majority recognizes, a district court abuses its discretion under Daubert by refusing to hold a requested evidentiary hearing on the admissibility of a polygraph exam under Federal Rule of Evidence 702 if the court lacks sufficient information to make a determination of the reliability of the polygraph evidence without the benefit of such a hearing. However, the majority here holds that the district court did not abuse its discretion because it excluded the polygraph evidence as unduly prejudicial under Federal Rule of Evidence 403. As a result, the majority does not reach the issue of whether the district court should have held an evidentiary hearing regarding 702 admissibility.

The inquiry mandated by Daubert under Rule 702 requires the district court to evaluate factors that not only measure the reliability of the evidence under consideration, but also that shed light on whether the evidence or testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue,” Daubert, 509 U.S. at 591, 113 S.Ct. at 2795 (citations omitted). These questions lie at the heart of evaluating the relevance and probative value of proffered evidence under both Rule 401 (relevance) and Rule 403 (prejudice). Consequently, I read Daubert as impacting the evaluation of scientific evidence not only under Rule 702, but under Rules 401 and 403 as well. In my judgment, therefore, a district court abuses its discretion by excluding polygraph evidence under Rule 403 if it lacks sufficient information to make a determination regarding the reliability of polygraph results and fails to hold an evidentiary hearing in the face of proffered evidence materially addressing issues relevant to Rule 403.

The majority points out that polygraph results may possess a “misleading appearance of accuracy” that threatens to undermine the jury’s responsibility to make an independent evaluation of the truthfulness of witness testimony. However, neither we, nor other circuit courts, have adopted a per *1407se rule against the admissibility of polygraph evidence under Rule 403. See United States v. Cordoba, 104 F.3d 225, 228 (9th Cir.1997)(holding that Daubert overruled any per se rule that polygraph evidence is always inadmissible under either Rule 403 or Rule 702). Although the use of experts to bolster witness credibility is disfavored, no absolute rule prohibits utilizing expert testimony for this purpose. See United States v. Shay, 57 F.3d 126, 131 (1st Cir.1995) (“[N]o constitutional provision, law, or rule requires the automatic exclusion of expert testimony simply because it concerns a credibility question.”); see also Cordoba, 104 F.3d at 227 (“Daubert overruled a per se rule excluding expert testimony regarding the credibility of eyewitness identification.”) (citations omitted). While “an expert may not go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility,” United States v. Samara, 643 F.2d 701, 705 (10th Cir.1981), courts have allowed the use of expert testimony to support the credibility of a witness when the issue of credibility is central to the case, such as in sexual molestation cases where an expert testifies that a witness exhibited characteristics consistent with those observed in other victims of sexual abuse, see, e.g. United States v. St. Pierre, 812 F.2d 417, 419-20 (8th Cir.1987) (expert can inform jury of characteristics found in sexually abused children to compare with characteristics exhibited by alleged victim). See also Fed.R.Evid. 704(a) and advisory committee’s note (expert opinions are not inadmissible merely because they embrace the ultimate issue to be decided by the trier of fact, but the expert cannot “merely tell the jury what result to reach.”).

Similarly, no per se rule bars a polygraph expert from describing the physical responses an examinee displays when being truthful or untruthful and then informing the jury of the characteristics exhibited by a particular defendant, provided that the expert does not express his individual opinion as to whether the defendant was actually telling the truth. Therefore, Defendant would not have been barred from introducing polygraph evidence in this case if he met the standards of admissibility under Rules 401, 403, and 702. In order to address successfully the district court’s concerns under Rule 403, Defendant needed to persuade the court that juries do not overvalue polygraph and are not unduly swayed by polygraph results and that the characteristics revealed by a polygraph test are probative of an examinee’s truthfulness. Defendant made a detailed offer of proof addressing these precise issues.1

A Daubert evidentiary hearing is designed to provide the court with a more complete understanding of the reliability and relevance of proffered scientific evidence. In Franks v. Delaware, the Supreme Court held that a district court cannot reject a properly submitted evidentiary proffer and must hold an evidentiary hearing unless the proffer on its face is insufficient to raise a material issue of fact. 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978). Although addressing attacks on the reliability of an affidavit supporting a search warrant, the Franks opinion provides guidance on the *1408proper evaluation of offers of proof. See also United States v. Russo, 527 F.2d 1051, 1058-59 (10th Cir.1975) (suggesting that an offer of proof that sufficiently set forth the reliability of polygraph evidence would require the trial court to hold a full-scale evidentiary hearing on the admissibility of polygraph results).

Here, Defendant offered to present evidence directly related to the issues posed by the district court’s evaluation of whether to admit the polygraph results under Rules 401, 403, and 702. While the government proffered evidence regarding the unreliability of polygraphs, the record reveals no evidence offered by the government to contradict Defendant’s claim that juries are not prejudiced by polygraph results. As a result, in order to exclude Defendant’s polygraph evidence, the district court either had to reject Defendant’s proffer or conclude that the proffer was unpersuasive. In my view, either approach constituted an abuse of discretion. First, the only evidence presented to the district court on the issue of prejudice as reflected in the record demonstrates that polygraph evidence does not unduly sway the jury. Second, the conflicting evidence proffered by the government and the Defendant as to the reliability of polygraph tests presents exactly the type of material dispute that the Supreme Court in Franks concluded requires further inquiry in the form of an evidentiary hearing. Third, the proffers by themselves do not provide a sufficiently developed factual basis for us to review whether the district court properly applied the relevant law. Therefore, I believe that the district court erred by not holding the requested evidentiary hearing to develop a sufficient factual background before deciding to exclude the polygraph expert’s testimony.2

For these reasons, I respectfully dissent. I would hold that the district court abused its discretion by refusing to hold an evidentiary hearing on the admissibility of polygraph evidence under Rules 401, 403, and 702 pursuant to the standards mandated in Dau-bert.

. Defendant offered to prove that (1) Dr. David Raskin administered a control question polygraph examination of Defendant; (2) control question polygraph examinations are scientifically reliable; (3) control question polygraph examinations have been recognized as reliable by scientific experts in the field; (4) control question polygraph examinations have a low potential rate of error; (5) control question polygraph examinations are probative of the truthfulness of an examinee’s answers to relevant questions; (6) Dr. Raskin conducted the polygraph examination of Defendant in accordance with standard examination procedures; (7) Defendant’s performance during the polygraph test indicated that he was truthful in answering questions about his knowledge of the presence of drugs in the car he was driving; (8) Defendant answered in the negative all of the questions that asked him if he knew that the car he was driving contained drugs; (9) studies show that juries are not unduly influenced by polygraph evidence; (10) Dr. Raskin’s testimony would be extremely relevant to the issue of Defendant’s credibility. R.O.A. Vol. I at 31. The government already had stipulated that Dr. Raskin is a qualified expert in the field of polygraphy. It may be that not all of this evidence would be appropriate for submission to the jury, but that is not the issue raised on this appeal. The issue before us is only whether the court should have conducted a Daubert hearing before exercising its discretion in determining what evidence should go to the jury. The offer of proof describes evidence that the court should have received before exercising its discretion.

. Of course, the issues surrounding the admissibility of polygraph evidence will become clearer once the Supreme Court issues an opinion in United States v. Scheffer, 44 MJ. 442 (C.A.A.F.1996), cert. granted, — U.S. —, 117 S.Ct. 1817, 137 L.Ed.2d 1026 (1997).