Eighth Circuit holds that a curative instruction could not mitigate the informant’s unexpected testimony that the defendant told him he had failed a polygraph test, in United States v. Street, 548 F.3d 618 (8th Cir. Dec. 1, 2008) (Nos. 07-2600, 08-2109)
It is generally accepted that polygraph evidence is normally inadmissible as unfairly prejudicial. Can a jury instruction cure the prejudice from unsolicited testimony that the defendant failed a polygraph examination? The Eighth Circuit concluded that a limiting instruction was insufficient to redress the prejudice in a case involving close evidence.
In a circumstantial case, defendant Street was twice tried for aiding and abetting the murder of an individual dealing methamphetamine in furtherance of a drug trafficking offense. The victim’s body was found in the trunk of his car. The government suggested that the murder occurred after the defendant feared he would be implicated in a plan to steal a skid loader. The first trial resulted in a hung jury. During the second trial, the prosecutor asked the informant whether the defendant had discussed the murder more than one. The informant unexpectedly responded:
Yes. First he said they are trying to pin a murder on him and we talked about it, about a friend of his that had died or was murdered, and he said that, he said that he took a polygraph test and failed that.
The defense motion for a mistrial was denied. Instead, the trial court trial court instructed the jury that “polygraph examinations are not scientifically reliable and they’re not admissible in evidence.” Street, 548 F.3d at 628. The jury convicted the defendant on one count and acquitted him on two counts.
On appeal, the Eighth Circuit agreed with the defendant that the admission of the polygraph testimony was prejudicial and the mistrial should have been granted. The conviction was reversed. While the jury instruction may have been sufficient to cure the prejudice in a case involving substantial evidence of guilt, it was inadequate in a close case. As the circuit noted, the government’s:
case was largely built on the testimony of cooperating witnesses and jailhouse informants. The first jury was unable to reach a verdict on any of the three counts against Street. The second jury convicted him only on the count of aiding and abetting Weil’s murder in furtherance of a drug trafficking offense. It acquitted him of the related charges of aiding and abetting Weil’s murder while carrying a gun in furtherance of a drug trafficking offense and aiding and abetting the murder of a potential federal witness. Moreover, at the penalty phase five jurors professed lingering doubts about Street’s guilt even as to the charge of conviction…. The polygraph reference related to the testifying defendant himself, supposedly involved an admission, clearly indicated he had failed the exam, and came in the midst of the defendant’s case at a peculiarly damaging point to him…. Given the closeness of the case, its novel facts, and the vital importance of Street’s credibility to his defense, we cannot conclude that refusal to grant a mistrial in light of the polygraph testimony was harmless.
Street, 548 F.3d at 629.
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