Federal Evidence Review

In carjacking prosecution, after a government witness volunteered that the defendant had been summoned to take a polygraph examination regarding the victim's disappearance, a mistrial was not warranted based on the “brief” polygraph reference; upon striking the testimony, the court immediately reprimanded the witness in front of the jury and gave an extended curative instruction regarding the jury duty to disregard the struck testimony, in United States v. Rodriguez-Berrios, 573 F.3d 55 (1st Cir. July 23, 2009) (No. 07-1854)

As recently posted, generally the results of a polygraph examination are inadmissible. In a July case, the First Circuit reiterated this position, noting: “Polygraph results are rarely admissible at trial.” What happens, then, when a reference to polygraph evidence -- or presumably other inadmissible evidence -- ends up in the trial record? How do the court and trial counsel address a passing or unsolicited reference to polygraph results? In considering this issue, the First Circuit noted that a mistrial is usually considered as one effective remedy given that “the potentially prejudicial effect of the mention of the polygraph is understandable.” Rodriguez-Berrios, 573 F.3d at 73. However, under certain circumstances, other steps short of a mistrial can mitigate any prejudicial concerns. The circuit cited steps that a trial judge might take to ensure that the prejudicial effect of the reference to the possibility of a polygraph does not affect the trial.

In the case, defendant Rodriguez-Berrios was charged with committing a carjacking that resulted in the death of his ex-wife. After a four-year marriage, the defendant was divorced from his wife Ortiz and about two weeks after the divorce, she disappeared and her car was found “intentionally burned with an accelerant, such as gasoline, and the victim's body was never found.” During the investigation concerning the disappearance of the victim, the defendant “made several incriminating admissions linking him to her murder.” Rodriguez-Berrios, 573 F.3d at 59. During the trial, one government witness testified that the defendant “had been summoned to ... take a polygraph test during the course of the investigation into the victim's disappearance.” Rodriguez-Berrios, 573 F.3d at 73. The defendant’s motion for a mistrial was denied. After his conviction, the defendant appealed claiming the reference to the polygraph test was error.

The circuit noted a sequence of steps the trial judge took to obviate the need for a mistrial. First, when defense counsel immediately objected to the testimony and moved for a mistrial at sidebar, the court denied the motion but then “in the presence of the jury, the court granted appellant's request to strike the witness's reference to the polygraph test and admonished the witness.” The trial court told the witness:

“[Y]ou are to testify only what you're asked. I believe you had received some instructions from the assistant U.S. Attorney that you were not to go into certain matters-and you were about to go into those-and not to volunteer any information. If you do, I'm going to strike your whole testimony.”

Second, the court also in the presence of the jury, “admonished the government by stating, 'I'm going to allow you again to talk to the witness, advise him properly as to what are the areas that you are asking him. If he volunteers any information, the government is going to be in trouble.'“ Rodriguez-Berrios, 573 F.3d at 73.

Finally, the court adjourned for the day. The next morning, the court provided a curative instruction to the jury in which it a) reiterated its instruction from the beginning of the trial to disregard any testimony which had been ordered stricken; and, b) the court emphasized to the jury:

“You should totally disregard the testimony provided yesterday ... about a polygraph test allegedly offered to the defendant.... This means that you cannot consider it in any way or fashion during your deliberations in this case….

Because the witness's mention of the polygraph had been “brief,” the circuit concluded the mitigating steps taken by the trial court obviated the need for a mistrial. The witness's reference to the polygraph was not of significance because the witness “did not say whether appellant actually took the test or describe its results.” Rodriguez-Berrios, 573 F.3d at 73. One key to saving the trial was the lack of detail in the witness's reference to the polygraph, plus the “[s]wiftness” of the judges response.

Where this occurs, the circuit noted that “appellate courts inquiring into the effectiveness of a trial judge's curative instructions should start with a presumption that jurors will follow a direct instruction to disregard matters improvidently brought before them.” Rodriguez-Berrios, 573 F.3d at 73-74 (quoting United States v. Sepulveda, 15 F.3d 1161, 1185 (1st. Cir. 1993) (a witness’s “partially completed testimony does not strike us as so compelling that its impact would linger even after the court's stern admonition” as to its impropriety)).

An inadvertent reference to a polygraph examination or result cannot always avoid a mistrial or reversal. For a contrary result, in a close, circumstantial case, see Unsolicited Testimony That Defendant Failed Polygraph Exam Results In Reversal.