Polygraph Examination Evidence Excluded In Death Penalty Case Under FRE 403

In a capital kidnapping resulting in a murder trial, excluding polygraph questioning of the defendant about the incident because it was not shown that the polygraph evidence was relevant under FRE 401 and under FRE 403 that its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury”; further the evidence was not shown to be "reliable under Daubert principles.... even though “there is simply no consensus that polygraph evidence is reliable,” in United States v. Montgomery, 635 F.3d 1074 (8th Cir. April 5, 2011) (No. 08–1780)

Even though polygraph test are frequently utilized by law enforcement, the admissibility of this evidence at trial renders its use restrictive. A recent Eighth Circuit case discussed application of the general rule against admitting polygraph evidence, based on an FRE 403 basis, rather than on the basis of lack of reliability under FRE 702 basis. The case provides an example of the treatment of polygraph evidence under the FRE when proffered by the defendant and without any involvement of the prosecution. The case of United States v. Montgomery provides an recent example of the cautious treatment of polygraph evidence in the federal courts.

In a case involving a multiplicity of evidence questions arose when the defendant Montgomery was charged with kidnapping resulting in death. Found guilty at trial, she was sentenced to death. One ground for her appeal involved the trial judge's exclusion of evidence from both the guilt and the penalty phases of her trial.

At her trial, the defendant was convicted of killing a person she had corresponded with via the Internet. Apparently, part of the reason for this was that the victim (Stinnett) was pregnant and had shared this news with her "online community which included Montgomery." Although the defendant had been sterilized, she began to tell acquaintances and family that she was pregnant. As Stinnett's delivery date drew near, Montgomery contacted her regarding a litter of puppies Stinnett had for sale. After expressing an interest in purchasing one, the defendant visited the victim to have a "look at the puppies." However, what actually happened when she arrived was dramatically different. The defendant "attacked Stinnett and used the cord [she brought with her on the visit] to strangle her until she was unconscious. Montgomery then used the kitchen knife [she had transported to the victim's house] to cut into Stinnett's abdomen, causing Stinnett to regain consciousness. A struggle ensued, and Montgomery strangled Stinnett a second time, killing her. Montgomery extracted the fetus from Stinnett's body, cut the umbilical cord, and left with the baby. Montgomery entered her car and drove away from the Stinnett home, holding the baby in her arms and pinching the umbilical cord." Montgomery, 635 F.3d at 1080.

The scheme of using Stinnett's child as the child she could not have unraveled shortly after the police investigation of Stinnett's death commenced. The defendant had told authorities "that her family was having some financial problems, so, unbeknownst to her husband, she had given birth at home, with the help of two friends. When asked the names of the friends, Montgomery responded that they had not been with her at the house but were available by phone in case she had trouble delivering the baby. Montgomery said that she had given birth in the kitchen and had disposed of the placenta in a nearby creek. At Montgomery's request, the officers moved their questioning to the sheriff's office. Shortly thereafter, Montgomery confessed to killing Stinnett, removing the fetus from Stinnett's womb, and abducting the child." Montgomery, 635 F.3d at 1080.

Although she was convicted in federal district court for kidnapping resulting in death (and was sentenced to death), she appealed the proceedings on a number of bases, including that the trial judge had improperly excluded polygraph evidence proffered by the defense at both guilt and penalty stages. In particular, this evidence involved that after "Montgomery confessed that she acted alone in killing Stinnett and in kidnapping the infant," she also "claimed that her brother, Tommy Kleiner, had accompanied her" to the Stinnett killing, and she "reiterated the allegations" of her brother's involvement "during interviews with psychiatrists for the government and for the defense." Montgomery, 635 F.3d at 1093.

The government's investigation cast considerable doubt on the defendant's story, primarily because when "the government investigated whether [defendant's brother] Kleiner was involved in the crime .... [i]t discovered that Kleiner had been meeting with his probation officer ... at the time of Stinnett's murder. Kleiner's probation officer and probation records confirmed the meeting," which occurred some "three hours away" from the killing. Accordingly, her attorneys commissioned a polygraph examination to test the veracity of the defendant's allegations." Montgomery, 635 F.3d at 1093.

The circuit noted that the polygraph report's purpose was "was to determine the truthfulness of Montgomery's assertions that her brother accompanied her to [the killing site] and that he was present when [victim] Stinnett was killed. During the examination, Montgomery was asked the following questions: (1) 'On that day, was Tommy with you at the house?' (2) 'Was Tommy present in the house on that day?' Montgomery answered 'yes' to both questions. The polygraph examiner opined that Montgomery did not show a 'consistent and strong physiological reaction when responding" to the relevant questions and concluded that her answers were “not indicative of deception.” The circuit noted that the "government was not notified of the polygraph examination and did not take part in it." Montgomery, 635 F.3d at 1093.

Learning from the defense of the polygraph exam and its results, the government moved to "exclude any testimony related to the [polygraph] examination or its results, arguing that the questions were flawed. The trial judge agreed that the results were unreliable, and that any evidence related to the polygraph examination should be excluded under FRE 702 and FRE 403. "Montgomery sought to use the evidence to impeach the government's expert's opinion that Montgomery's allegations against Kleiner were 'intentional and knowing fabrications and not the product of an unsound mind.'” The district court granted the motion to exclude.

The circuit concluded that the polygraph evidence was properly excluded. It recognized "there is no per se ban on the use of polygraph evidence in this circuit." The circuit noted that "[t]o be admissible, polygraph evidence must be relevant, and its probative value must not be “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” This was in addition to also "being reliable under Daubert principles.... Polygraph evidence must also be reliable" and “there is simply no consensus that polygraph evidence is reliable.” Montgomery, 635 F.3d at 1094 n.9 (citing United States v. Scheffer, 523 U.S. 303, 309 (1998); United States v. Gill, 513 F.3d 836, 846 (8th Cir. 2008) (gathering cases and finding that "polygraph evidence is disfavored"))

The circuit could affirm exclusion of the polygraph test even without conducting a FRE 702 reliability assessment. It found that FRE 403 would preclude such evidence. As explained by the circuit:

Results from a unilateral polygraph examinations have little probative value. See, United States v. Sherlin, 67 F.3d 1208, 1217 (6th Cir. 1995) (concluding that the defendant's “privately commissioned polygraph test, which was unknown to the government until after its completion, is of extremely dubious probative value”). The defendant has no adverse interest at stake because a polygraph examination administered without notice to and participation by the government “carries no negative consequences, and probably won't see the light of day if a defendant flunks.” United States v. Ross, 412 F.3d 771, 773 (7th Cir.2005). Applying the balancing test set forth in Federal Rule of Evidence 403, courts have routinely deemed inadmissible evidence related to unilateral polygraph examinations. See, e.g., id.; United States v. Thomas, 167 F.3d 299, 308–09 (6th Cir. 1999); United States v. Gilliard, 133 F.3d 809, 815–16 (11th Cir. 1998); Sherlin, 67 F.3d at 1217; see also United States v. Williams, 95 F.3d 723, 729–30 (8th Cir. 1996) (affirming the district court's exclusion of polygraph evidence on the basis that the evidence would be more prejudicial than probative).
Montgomery, 635 F.3d at 1094.

In finding that the evidence could be easily excluded without the use of FRE 702 and the principles of Daubert, the circuit concluded that the trial judge

did not abuse its discretion in excluding the polygraph evidence under Federal Rule of Evidence 403. Montgomery's polygraph evidence had minimal probative value. The test was administered without the government's knowledge and without the possibility that Montgomery might suffer negative consequences from a failed examination. The questions were vague, with the results establishing only that Montgomery did not show a “consistent and strong physiological reaction” when responding to questions regarding whether Kleiner was “with [her] at the house” and “present in the house on that day.” Moreover, the admission of the proposed evidence would have necessitated collateral proceedings regarding the validity of a unilateral polygraph examination. Accordingly, the polygraph evidence was properly excluded.
Montgomery, 635 F.3d at 1094.

The circuit also indicated that in this particular case, exclusion of the evidence on FRE 403 grounds was proper at both the "guilt or the penalty phases of the trial," and no different analysis was required with regard to both issues. "

Federal Rules of Evidence