Admitting Lay Testimony About Polygraph Evidence

In a false claim (consumer-product tampering) prosecution, non-expert testimony by agent who conducted the polygraph examination of the defendant was admitted for the purpose of describing the facts and circumstances of the defendant's confession, rebutting defendant's claim that she had been coerced by the agent into falsely confessing to the charged crime, in United States v. Allard, 464 F.3d 529 (5th Cir. Sept. 11, 2006) (No. 05-20087)

Polygraph evidence has a bad rap under a number of evidence rules, such as FRE 702 requiring use of reliable expert testimony and FRE 403 regarding use of evidence with sufficient probative value. As suggested by other posts in the Federal Evidence Blog, this does not necessarily require the exclusion of all evidence regarding a polygraph examination. Other than admission for proving the truth of the matter that was the subject of the polygraph examination, an account of the test can often be admitted for other purposes, such as rebuttal (to rebut claim of coercion by police). The Fifth Circuit explored the admissibility of polygraph testimony for purposes other than to prove the truth of the examined matter, joining other circuits in explaining the conditions under which such polygraph evidence might be admitted.

In the case, defendant Allard’s appealed her conviction for falsely claiming that she had purchased tampered sausage at a local store. In reality, she and her husband had placed straight pins in the sausage that they claimed had been tampered. As part of its investigation, the Secret Service conducted a polygraph examination of the defendant. At its conclusion, the agent [Wind] opined that the test "results indicated she had not been truthful.” She agreed and provided the agent with a written confession, admitting that she “put the pins in the sausage” because she “was hoping to get money” from the sausage producer based on nearly $60,000 in debt. Before trial, the trial court granted the government’s unopposed motion in limine to bar the introduction of evidence that the defendant “was asked to take and did take a polygraph test or any of the results.” Allard, 464 F.3d at 531.

However, during the trial, evidence about the polygraph was admitted after the defendant testified on direct examination “that her confession was involuntary because it was coerced by Agent Wind” and the agent would not allow her to leave until she wrote what he dictated to her. Before the prosecution commenced its cross examination of the defendant, it moved to introduce evidence on the polygraph test, arguing that the defendant’s charge of a coerced confession made the polygraph “extremely relevant to the interview” with Wind, specifically that he physically restrained her. The defendant objected to admission of evidence of the test, arguing that the government had notice of her involuntary confession defense. The trial court allowed admission of the evidence, but also delivered a limiting instruction prior to the testimony. The government was allowed to cross-examine the defendant about the circumstances of the polygraph exam and later called agent Wind as a rebuttal witness and he testified he did not coerce the defendant’s confession. The jury returned a guilty verdict against the defendant and she appealed. Allard, 464 F.3d at 532.

In her appeal, the defendant contended that the admission of the testimony regarding the conduct of the polygraph examination had a probative value that was substantially outweighed by the danger of unfair prejudice under FRE 403. The circuit affirmed the trial court admission of the evidence about the conduct of the polygraph exam. The circuit noted that it previously had “not addressed the admissibility under Rule 403 of testimony relating to a defendant's polygraph examination. However, we 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.” Allard, 464 F.3d at 534.

“[I]t is well settled,” noted the circuit:

that the purpose of rebuttal testimony is to explain, repel, counteract, or disprove the evidence of the Adverse party … [I]f the defendant opens the door to the line of testimony, he cannot successfully object to the prosecution accepting the challenge and attempting to rebut the proposition asserted.” [So that if the defendant] "chooses to contest before the jury the voluntariness of her confession, it is only fair to permit the government, in response, to set the scene of that confession. It is significant, of course, that here the district court specifically instructed the jury that testimony relating to the polygraph was not scientific, that its results were irrelevant to the ultimate issue of truthfulness, and that the evidence was only to be considered in determining whether Allard's confession was voluntary.”
Allard, 464 F.3d at 535. (quoting United States v. Delk, 586 F.2d 513, 516 (5th Cir. 1978) (internal quotation and citation omitted)).

As support for its position, the Fifth Circuit cited three other circuits that had considered the issue of admissibility of polygraph examination evidence under FRE 403:

  • Third Circuit: United States v. Johnson, 816 F.2d 918, 923-24 (3d Cir. 1987) (“Appellant asserts that the district court impermissibly restricted appellant's ability to cross-examine witnesses concerning the voluntariness of appellant's confession by stating it would allow the government to introduce rebuttal evidence concerning the polygraph examination if appellant attempted to use the circumstances attending the polygraph examination to show coercion. Appellant's assertion ignores the fact that the district court never prevented appellant from asking specific questions on cross-examination. Rather, the district court simply informed appellant's counsel that certain questions might result in the government's submission of certain evidence concerning the polygraph examination. Since case law shows that evidence concerning a polygraph examination may be introduced to rebut an assertion of coercion of a confession”) (citing Kampiles, 609 F.2d at 1245).
  • Seventh Circuit: United States v. Kampiles, 609 F.2d 1233, 1244-45 (7th Cir. 1979) (The highly probative character of the polygraph evidence as to the voluntariness of the assailed confession sufficiently outweighed any prejudice to the defendant. The Seventh Circuit reasoned further that it would be unfair to allow the defendant to attack the confession as involuntary without allowing the Government to demonstrate the context in which that confession was given.), cert. denied, 446 U.S. 954 (1980).
  • D.C. Circuit: Tyler v. United States, 193 F.2d 24, 31 (D.C. Cir. 1951) (The defendant testified that his confession was coerced. When the government rebutted this claim with the testimony of the polygraph examiner, the defendant moved to strike the examiner's testimony that the defendant was told that the results indicated that the defendant was lying. The D.C. Circuit held that the district court did not violate Rule 403 in admitting the testimony, noting that the jury was instructed not to consider the testimony as evidence of the defendant's truthfulness, but only as evidence of the voluntariness of the defendant's confession.)

The Fifth Circuit in Allard made no general statement regarding the admissibility of polygraph evidence. The decision is rather narrow and limited, allowing evidence involving application of a polygraph for the limited purpose of determining the voluntariness of a defendant's confession and not for expert evidence purposes under FRE 702. Allard suggests testimony concerning a polygraph examination is admissible not to prove the truth of the polygraph result. Rather, it may be admitted when offered for a limited purpose, such as rebutting a defendant's claim of a coerced confession.

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