In prosecution concerning the making false statements to agents concerning the purchases of firearms, Seventh Circuit affirms trial court’s exclusion of the defendant’s evidence that he offered to take a polygraph examination to show “to his consciousness of innocence and credibility”; the exclusion was justified to avoid a danger of confusion of the issues and misleading the jury, in United States v. Dinga, _ F.3d _ (7th Cir. July 6, 2010) (No. 09-2956)
Courts are generally reluctant to admit polygraph evidence. The Seventh Circuit recently considered a case in which the defendant wanted to show the jury that he offered to take a polygraph examination. The judicial disinclination was once again noted.
In the case, defendant Dinga was prosecuted for making false statements to an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives concerning the purchase of multiple firearms in a short period. During a telephone interview, his story changed several times. During the interview, the agent asked if the defendant would be willing:
“to take a polygraph test to see if Dinga was telling the truth. Dinga asked, ‘Don’t you have to get a court order for that?’ to which Agent Salerno replied he did not, and he continued to press Dinga about taking the examination. Eventually, in response to Agent Salerno’s insistence that Dinga set a time on Tuesday for the exam, Dinga replied, ‘[A]nytime Tuesday.’ But no polygraph test was ever conducted.”
Dinga,_ F.3d at _. At trial, the defense asked to admit evidence of the defendant’s “’offer’ to take the polygraph test as evidence probative of his mental state.” The trial court excluded this evidence. The defendant was convicted by the jury and on appeal he challenged the exclusion of his offer to take a polygraph examination which he offered to show “to his consciousness of innocence and credibility.” Dinga, _ F.3d at _.
The Seventh Circuit affirmed the exclusion of the polygraph evidence. The circuit noted that courts “have been wary of this type of self-serving evidence.” (citing United States v. Beyer, 106 F.3d 175, 176 (7th Cir. 1997) (noting the defendant “past willingness [take a polygraph test] is of little help to a jury faced with determining whether he committed arson”); United States v. Bursten, 560 F.2d 779, 785 (7th Cir. 1977) (noting the offer of a willingness to submit to a polygraph “is so unreliable and self-serving as to be devoid of probative value”)). As the circuit explained:
“The district court was well within its discretion to exclude this evidence. There has long been a debate over the admissibility of polygraph testing results, particularly considering the concerns about the reliability of such testing and the possibilities of misleading and confusing the issues for a jury. Beyer, 106 F.3d at 176. As a general matter, the same is true of offers to take polygraph tests. Bursten, 560 F.2d at 785; see also United States v. Harris, 9 F.3d 493, 502 (6th Cir. 1993). A juror, having little understanding of the admissibility or reliability of any subsequent results, may erroneously believe that any offer necessarily meant Dinga was innocent. More importantly, Dinga’s offer to take a test would only be only marginally probative as to his credibility. Absent an agreement that polygraph results (favorable or not) would be admissible in court, Dinga had little at stake by expressing his willingness to submit to a polygraph test. No test was ever taken, and there is no way of knowing what Dinga knew about the subsequent admissibility of any such test results. He may have believed that the test would be taken and the results wouldbe admissible, or he may have known that he would never submit to a test, or he may have believed that any results would be inadmissible in court. The great potential of confusing the issues and misleading the jury substantially outweighed any probative value of the offer as to Dinga’s credibility. The district court’s decision to exclude Dinga’s ‘offer’ to take a polygraph test was not an abuse of discretion.”
Dinga, _ F.3d at _.
The Dinga opinion continues the general trend to exclude polygraph evidence which carries risk of confusion and misunderstanding.
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