First Circuit Renews Criticism Of Polygraph Evidence

First Circuit notes the unreliability of polygraph evidence and notes that “polygraph evidence, even that dealing with matters other than the actual results of an examination, is usually more trouble than it is worth,” in United States v. Mare, _ F.3d _ (1st Cir. Feb. 9, 2012) (No. 09-1146)

Under most circumstances, polygraph evidence is considered inadmissible by the courts as unreliable evidence. In fact, the Supreme Court has noted that “there is simply no consensus that polygraph evidence is reliable” and that “the scientific community remains extremely polarized about the reliability of polygraph techniques.” United States v. Scheffer, 523 U.S. 303, 309 (1998). See generally Polygraph Examination Evidence Excluded In Death Penalty Case Under FRE 403. Error in admitting polygraph evidence can result in reversal on appeal. See, e.g., Unsolicited Testimony That Defendant Failed Polygraph Exam Results In Reversal. In rare circumstances, the parties can place polygraph evidence in issue. See, e.g., Opening The Door To Polygraph Evidence. The First Circuit recently considered whether the prosecutor’s effort to cross-examine a witness about the witness's willingness to take a polygraph examination should have resulted in a mistrial.

In the case, the defendant was prosecuted for an attempted arson of his business in order to obtain insurance proceeds. One government witness was allowed to testify that the defendant had told him about his plan to set his business on fire for insurance money. The defense attacked the credibility of the witness on cross-examination. On redirect, the prosecutor sought to rehabilitate the witness by asking about whether he had been “asked to undergo a polygraph test.” However, as the prosecutor mentioned the work "poly-", the defense objection was sustained. The trial court noted that the polygraph evidence was inadmissible. The prosecutor told the court at sidebar “that she had only planned to ask [witness] Correia about his willingness to take the test, not the results of any test that may have occurred.” Mare, _ F.3d at _. Even though the objection had been sustained, the defense moved for a mistrial. The motion was denied and the jury received a curative instruction the next day:

[P]olygraph tests as a matter of law are not reliable as trial evidence. Every court excludes them. And because they're unreliable, I instruct you that neither Nelson Correia nor any other witness called by the government was given a polygraph test; and therefore the credibility of Nelson Correia, as with every other witness, is solely and exclusively to be determined by you, the jury. Mare, _ F.3d at _. The jury convicted the defendant on the attempted arson charge but acquitted him on mail fraud and use of fire to commit mail fraud charges. On appeal, the defendant challenged the denial of the mistrial motion.

The First Circuit used the occasion to renew its criticism of polygraph evidence:

[W]e add as we did in [United States v.] Rodríguez-Berríos[,573 F.3d 55, 73 (1st Cir. 2009)] that "it is troubling that a polygraph test was mentioned in the presence of the jury." Id. The prosecutor at trial apparently believed that merely inquiring into the witness's willingness to submit to a polygraph exam was permissible, and we are not faced here with an instance of deliberate misconduct. But even if the government's mistake was in good faith, it should know better by now. This is the latest in a growing line of cases that ought to suggest, if not a per se rule, then at least a code of best practice for the virtuous prosecutor: polygraph evidence, even that dealing with matters other than the actual results of an examination, is usually more trouble than it is worth. See, e.g., id.; United States v. Gardiner, 463 F.3d 445, 468–69 (6th Cir. 2006); United States v. Nelson, 207 F. App'x 291, 292–93 (4th Cir. 2006).
Mare, _ F.3d at _.

On the merits, the circuit agreed that a mistrial was not warranted. While it was unclear whether “the jury heard the word ‘polygraph,’ it did not hear the answer to the question,” based on the objection. Additionally, the trial court gave a curative instruction which “was an appropriate remedy.” Mare, _ F.3d at _.

While polygraph examination results and evidence may be useful as an investigative tool or for other purposes, they rarely are admissible at trial. The Mare case represents recent criticism of attempts to use this evidence at trial.

Photo : David Bethune: Photograph of Polygraph Creative Commons License

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