Federal Evidence Review

While noting that polygraph evidence is generally inadmissible, after the defendant claimed his confession was procured by coercion, he opened the door to evidence concerning his polygraph examination so that the government could show it was not coerced and was consistent with his subsequent confession to the case agent; the polygraph evidence was not unfairly prejudicial given the court’s limiting instruction, in United States v. Blake, 571 F.3d 331 (4th Cir. July 2, 2009) (Nos. 07-4619, 07-4827)

Generally, the results from a polygraph test are not admissible at trial, unless it is offered not for a non-hearsay purpose. United States v. Allard, 464 F.3d 529, 534 (5th Cir. 2006) (“[W]e are persuaded by the holdings of other Circuits, finding that testimony concerning a polygraph examination is admissible where it is not offered to prove the truth of the polygraph result, but instead is offered for a limited purpose such as rebutting a defendant's assertion that his confession was coerced.”) (collecting cases). A recent Fourth Circuit case noted the general rule against admitting polygraph evidence was overcome after the defendant opened the door to the polygraph evidence by asserting that his confession had been coerced.

In the case, defendant Blake was arrested for a carjacking that involved the death of the victim. The defendant’s associate in the crime, Tolbert, told police after his arrest that the defendant shot the victim, took the victim’s keys, and drove the vehicle from the scene. After his arrest, the defendant eventually told the police that Tolbert had the gun and shot the victim, removing his keys and driving off. After he made this statement, Detective Johns asked the defendant if he would “agree to a polygraph exam, and Blake said he would.” Blake, 571 F.3d at 337.

Before trial, the government agreed not to refer to the polygraph examination but filed a motion in limine requesting evidence of the polygraph if the defense contended the statements to law enforcement were coerced. The motion was denied. At trial, the defense’s opening argument “strongly suggested” that the defendant had been coerced to make the statement. The trial court agreed to allow the prosecutor use the defendant’s statement to the polygraph examiner to show that the statement to the detective had not been coerced. Before the defense cross-examination of the detective, “the court instructed the jury that it could not speculate regarding the test results and could consider evidence of the polygraph examination only for the purpose of considering the circumstances under which Blake made his statements.” Blake, 571 F.3d at 348. The jury convicted the defendant and he appealed, contending that the trial court “erred in ruling that he opened the door to testimony concerning the polygraph and … even if he did open the door, the polygraph evidence should have been excluded under Rule 403.”

The circuit rejected both grounds. First, it found that the court did not abuse its discretion in finding that the defendant opened the door to admission of evidence about the polygraph statement:

“Defense counsel unmistakably advanced the argument that the one-on-one nature of Cpl. White's interrogation was a coercive police tactic that should undermine confidence in the truth of Blake's statement. To allow such an attack to go unanswered would have been unfair…. It was, of course, only defense counsel who suggested that the interrogation was coercive. The district court therefore properly ruled that defense counsel opened the door to questioning about whether the one-on-one evidence of the polygraph examination only.”

The Fourth Circuit also rejected that the polygraph statement was inadmissible under FRE 403, disagreeing with the defense contention that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. According to circuit,

“The evidence had substantial probative value” and that “[a]ny danger of unfair prejudice was greatly minimized by the court's instructions. And, in any event, even if the evidence was prejudicial, the prejudice to Blake was hardly ‘unfair’ as it was Blake himself who essentially forced the court to admit the evidence.”

The Blake case provides a recent example of how the general prohibition against admitting polygraph evidence may be overcome.