The results of polygraph tests known as psychophysiological veracity (PV) examinations are admissible in a court of law if the particular polygraph technique used in the proffered PV examination meets the Daubert standard to the satisfaction of the presiding judge who acts as the gatekeeper of the Federal Rules of Evidence. Recent advances in polygraph instrument technology and polygraph techniques that have been validated by scientific studies published in peer-reviewed journals that meet the Daubert standard should open the field for renewed challenges to rules of inadmissibility. As of 1 May 2009, 18 states have adopted the Daubert standard of admissibility and the judicial door is open for other states to follow.

The federal courts and most state courts that adopted the Frye standard have since then, with rare exceptions except for the State of New Mexico, denied admissibility of psychophysiological veracity (PV) examination (polygraph) results in court. 19 States admit results of PV examinations under stipulation by the parties. The State of New Mexico permits the introduction of polygraph results into evidence without a stipulation, under strict evidentiary rules.

It was not until 1993 that the U.S. Supreme Court revisited the Frye standard in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct 2786, 125 L.E.2d 469, 509 U.S. (1993), and issued another landmark decision directly affecting the admissibility of expert testimony, including PV examinations results.

Under the standard enunciated by the United States Supreme Court in Daubert, which superseded the Frye standard of “general acceptance” test, the court ruled that:

the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subject to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community.

The court also stated:

Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising “general acceptance” standard, is the appropriate means by which evidence based on valid principles may be challenged.

The Supreme Court in Daubert summarized that:

“general acceptance” is not a necessary precondition to the admissibility of scientific evidence under the federal Rules of Evidence, but the rules of Evidence – especially Rule 702 – do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

Therefore lawyers must insure that the polygraphist they hire has been formally trained in a polygraph technique that has been validated by published peer-reviewed research.

Validation requires at least two independent research studies published in peer-reviewed journals. The preference is for field studies rather than laboratory studies, inasmuch as laboratory studies cannot generalize their results to real-world situations. For a detailed explanation of the value of field versus laboratory studies of polygraph techniques, please read “Guiding Principles and Benchmarks for the Conduct of Validation Studies on Psychophysiological Veracity Examinations Using The Polygraph” included in this website.

As can be seen in the Validated Polygraph Techniques listed in this website, the Matte Quadri-Track Zone Comparison Technique was validated by three separate, independent field validity studies, attaining a very high degree of accuracy with the lowest inconclusive rate.

Psychophysiological Veracity Examinations using the polygraph can be used in criminal and civil cases such as Plea Bargaining, Motions to Suppress Evidence, Settlements, Sentencing, Supporting Evidence, Parole and Probation, Arbitration, and Civil Actions. Since the advent of the Daubert decision there has been an increased willingness to accept polygraph results into evidence by court judges without jury, and administrative and post-trial hearings.

The defense attorney who intends to introduce PV examination results as evidence in a court of law on behalf of his or her client must realize that the supersedence of the Frye standard in favor of the Federal Rules of Evidence by William Daubert v. Merrill Dow Pharmaceuticals is merely an invitation for forensic psychophysiology to show that it is worthy of acceptance by the court. It therefore behooves the attorney who has such an aspiration to present to the court a most competent and well-prepared polygraphist formally trained in a validated polygraph technique, whose expert testimony is preferably preceded by the scientific testimony of a foundation expert, and whose results (of the PV examination) are confirmed by a qualified quality control reviewer.

The following case citations should be of interest to attorneys contemplating the introduction of PV examination results into evidence in a court of law:

United States v. Piccinonna 885 F.2d 1529 (11th Cir. 1989). But see United States v. Henderson (11th Cir. 2005) 409 F.3d 1293, 1303.

United States v. Posado (5th Cir. 1995) WL 368417 (admission at suppression pre-trial hearing).

United States v. William Galbreth, 908 F. Supp. 877, 64 USLW 2260, 43 Fed. R. Evid. Serv 585, 4 Oct 1995.

United States v. Richard Ridling, 350 F. Supp. 90 (E.D. Mich 1972)

United States v. David Crumby, 895 Fed Supp 1354 (DC AR. 1995).

United States v. Lee, 315 F.3d 206 (3d Cir. 2003). Polygraph examinations permitted as a condition of federal supervised release at the discretion of the probation officer.

United States v. Locke, 482 F.3d 764 (5th Cir. 2007). Polygraph as a probation condition permitted in child pornography case.

United States v. Stoterau , 524 F.3d 988, 1003 (9th Cir. 2008). Polygraph testing as a condition of supervised release does not infringe on a defendant’s Fifth Amendment rights because defendants retain such rights during polygraph examination.

Ohio v. Sahil Sharma. CR 06-09-3248 (2009). Results admitted over objections. Ohio Appellate Court refused to overturn judge’s ruling.

People v. Wilkinson (122 Cal.Rprt.2d 703). The California Appeals court recently ruled that expert polygraph foundation testimony must be allowed in criminal trials.

Ohio v. Sims, 52 Ohio Misc. 31; 369 N.E. 2d 24; (1977).

State v. Valdez, 371 P.2d 894 (Arizona, 1962).

State v. Dorsey, 539 P.2d 204 (New Mexico, 1975).

People v. Kenney, 3 N.Y.S.2d 348, 167 Misc. 51 (Queens County Ct. 1938).

People v. Daniels, 422 NYS2d. 832, 102 Misc 2d 540 (1979). Admitted over objections.

People v. Glenn Battle, reported in NY Law Journal 18 Apr 89, Page 26, Col. 3, Justice Lewis Douglass, NYS Supreme Court, Brooklyn, NY. Admitted over objections.

People v. Vernon, 391 NYS 2d 959 (1977).

In the matter of Jennifer Meyer and Jessica Meyer, 132 Misc 2d 415, 504 NY.X.2d 358. Admitted over objections.

Patterson v. State, 633 S. W. 2d 549 (Tex.Cr.App. 1982).

Kumbo Tire Company, Ltd, et al. v. Patrick Carmichael, 526 U.S. 137 (1999). The court added that a federal judge’s “gatekeeping” role under Rule 702 extends to all expert testimony, not just that deemed scientific. Thus, in federal court, soft-science (experience based) experts are subject to pre-trial Daubert challenges just like data based hard science.

William Davis v. The People of the State of New York: County of Erie Office of Children and Family Services Administrative Law Judge Proceeding. SCR No. 218608069, Hearing ID No. 43132. Hon. Jerry McGrier, Sr., Administrator Law Judge, 25 March 2009.

NOTE: While the case of United States v. Edward G. Scheffer, 41 MJ 683 (AF Ct. Crim App 1995) and 423 U.S. 303 (1998) upheld the presidential ban on the admissibility of polygraph examination results in military courts, its position can be successfully challenged in that it permitted States to ban polygraph by statute due to the uncertainty of polygraph validity which has since been rectified with significant scientific validation studies published in peer-reviewed journals. Furthermore, the results of polygraph tests can still be admitted as character evidence as was permitted in United States v. Crumby (d. Ar. 1995) 895 F. Supp. 1354 wherein the mental state of the defendant was avoided (U. S. v. Campos, 217 F.3d 707 (9th Cir. 2000).

Below is an excellent critique of the United States v. Campos decision in a law review.

ARTICLE: THE SIGNIFICANCE (IF ANY) FOR THE FEDERAL CRIMINAL JUSTICE SYSTEM OF ADVANCES IN LIE DETECTOR TECHNOLOGY Jeffrey Bellin* 80 Temp. L. Rev. 711, 726-727 (2007)



B. Lie Detector Evidence and the "Ultimate Issue" Prohibition of Rule 704



Courts have also ruled that expert testimony regarding certain lie detector results is inadmissible under Federal Rule of Evidence 704(b) because the testimony encompasses the "ultimate issue." 64 As explained below, this objection, even if valid, is narrow in scope and consequently should not prove to be a significant obstacle to the future admission of lie detector evidence.



As originally drafted, Federal Rule of Evidence 704 was intended to abolish the common law doctrine that prohibited testimony on the "ultimate issue," a prohibition deemed by the drafters of the rule to be "unduly restrictive, difficult of application, and generally serving only to deprive the trier of fact of useful information." 65 In 1984, after a mentally disturbed individual attempted to assassinate President Reagan and a deranged fan murdered John Lennon, Congress passed the Insanity Defense Reform Act of 1984, 66 which, among other things, added a new subsection to Rule 704 in order to "constrain psychiatric testimony on behalf of defendants asserting the insanity defense." 67 The added subsection of Rule 704 states in full that:



No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact [*725] alone. 68



Despite arguments to the contrary, a number of circuits have interpreted Rule 704(b) to extend beyond the testimony of psychiatric or mental health experts "to all expert witnesses." 69 The Ninth Circuit has subsequently applied this prohibition in two cases in which polygraph experts intended to testify with respect to the defendants' answers to questions that indicated the absence of criminal intent. 70



Even assuming that Rule 704(b) properly applies to the testimony of all experts, proponents of lie detector expert testimony should have little difficulty avoiding its prohibitions, for a variety of reasons. First, the vast majority of lie detector evidence will not pertain to the "mental state or condition" of the defendant and consequently will not trigger the application of Rule 704(b). Rather, the more common use of lie detector evidence will be to establish the credibility of statements regarding objective facts - for example, a defendant's statement that he was not present at the scene of the crime or that he did not engage in a physical act that forms the basis of the crime charged. 71



Second, even where the dispute at trial revolves around an issue of intent - such as whether a killing was premeditated or committed in self-defense - lie detector evidence can be introduced without any direct inquiry into a "mental state or condition." A defendant can disprove his intent in the same manner the prosecutor will try to prove it - circumstantially. 72 The questioning presented [*726] from the lie detector examination will, again, solely concern objective facts, but in this case, those facts will be offered to disprove the requisite criminal intent. For example, if the defense seeks to prove that the defendant acted in self-defense, there is no need for the expert to inquire directly as to the defendant's "intent." Rather the expert could ask whether the victim had a weapon, whether the victim threatened to kill the defendant, who struck the first blow, and so on. 73 By showing the absence of criminal intent solely through circumstantial evidence of objective facts, the expert's testimony avoids any conflict with Rule 704(b). 74



Third, contrary to the Ninth Circuit's analysis, a lie detector expert can, in fact, testify with respect to the veracity of a defendant's answer to an inquiry as to intent without violating the ultimate issue prohibition of Rule 704(b). 75 This is because there is a distinction between an expert's opinion that the defendant truthfully stated he acted with a certain intent (e.g., in self-defense), and the expert's (perhaps prohibited) opinion that the defendant did, in fact, act with that intent. As the Ninth Circuit itself has explained in another context, the prohibition in Rule 704(b): does not bar testimony supporting an inference or conclusion that a defendant does or does not have the requisite mental state, "so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony." 76



Even the most sophisticated lie detector technology will not enable an expert to testify as to a defendant's past intent. Instead, the most an expert can [*727] say is that when the defendant voiced an innocent intent, lie detector technology indicated that the defendant was truthful. The ultimate issue of the defendant's intent does not "necessarily follow" from this testimony. 77 Rather, as the prosecution will no doubt argue, the test could be flawed, or the defendant may have "fooled" the test or deluded himself, and thus, even if the expert's testimony regarding the test is credited, the jury could still conclude that the defendant possessed the requisite criminal intent. 78



Thus, the exceedingly narrow significance of Rule 704(b) in the lie detector context is, at most, that a lie detector expert is not permitted to testify directly as to the veracity of a defendant's response to a question such as, "what was your intent?" And, as discussed above, even the exclusion of that testimony under the rule is legally questionable.

The above information was acquired in part from the textbook “Examination and Cross-Examination of Experts in Forensic Psychophysiology Using The Polygraph” available on this website, and Charles M. Sevilla, Attorney at Law, San Diego, California.

Belgium

The Supreme Court on 15 February 2006, afforded polygraph results judicial notice of acceptance with certain requirements that assure the reliability of the test and protect the rights of the defendant/examinee.

Supreme Court of Belgium, February, 15th 2006. .05.1583.F/1, Nb P.05.1583.F M.F.J.F., accused, Plaintiff in appeal before the Supreme Court, With Marc Kauten and Nathalie Lequeux, counsels at the Bar Association of Arlon, Against S.N., D.J.L., D.M., E.M.M. Plaintififs claiming damages. Supreme Court Proceedings: The appeal to the Supreme Court refers to an arrest of October, 27th 2005 by the Court of Appeal in Liège, Grand Jury. The Supreme Court stated that ”Even if these conclusions are an indication which directed the investigation and justified some investigation duties during the preliminary investigation, the conclusions of a polygraph test are left to the judge’s appreciation, who in fact decides to follow them or not in order to measure the credibility he particularly gives to the interview. The judicial expert is skilled because of his knowledge and is appointed by the judge (he is not his proxy) in order to give him independently and impartially a technical opinion in view of the judge’s mission. He gives his conclusions only after solemn oath of reporting in all honesty, honour and accuracy.”

Source of Information: Gregorio Cornelis, Chief Inspector – Polygraphist, Belgium Federal Judicial Police.

Canada

Polygraph results not admissible as evidence in criminal courts, per R. V. Beland and Phillips (1987) 2 S.C.R. 398 Docket: 18856, which holds that polygraph results should not supersede the role of the jury to decide the credibility of a defendant or witness. However, results of polygraph examinations are admissible in civil and labor courts at the discretion of the judge. The following are court citations wherein polygraph results were admitted as evidence.

Lamothe v. General Accident Insurance Company, Court of Quebec, REJB 1998-10865.

Hotel Central Victoriaville Inc. V. Reliance Insurance Company, Quebec Court of Appeal, REJB 1998-06721.

Vetements Paul Allaire Inc. v. La Citadelle, compagnie d’assurances generales, Quebec Superior Court, REJB 2000-19632.

Fraternity des Policiers et Policieres de Longueuil, Inc. v. Ville de Longueuil, Province de Quebec, Canada, Quebec Labour Court. Griefs Nos: 98-05 et 99-03, 30 March 2001. Admitted polygraph evidence over objections. Click here to download the article.

Source of Information: John Galianos, Galianos Polygraphe Expert, Inc. 3221 Autoroute 440 West, Suite 222, Laval, Quebec H7P 5P2.

England

The current legal position, with respect to the second Bonython requirement, is that, for expert evidence to be admissible in England and Wales, it must be “sufficiently well-established to pass the ordinary tests of relevance and reliability” That is to say, the expert witness’s evidence must be sufficiently reliable to be fit for a jury to consider.

Convicted sex offenders on probation are required by law to submit to periodic polygraph examinations as a condition of their probation.

Source of Information: Guy Heseltine, Distress Services, Ash Lodge, The Street, Thurne, Norfolk, England NR29 3AP.

Japan

21 April 1982, Tokyo High Court. A written expert opinion of polygraph examination was admitted as evidence. The polygraphist had used both Concealed Information Test (CIT) and the Control Question Technique (CQT). The judge decided that the result of the CIT was reliable enough. The CQT result was questioned not because the CQT method itself was unreliable, but because the questionnaire used in this case was not in standard format.

25 October 1989. Urawa District Court. The defendant demanded the conduct of polygraph examinations as to who was lying, he or the interrogator. His application was rejected because of two reasons. (a) the CIT, called “The peak of tension test) in the main text of the judgement, was inapplicable in that situation, and (b) the CQT was unreliable and not at all admissible.

Source of information: Yukihisa Yokoi, Polygraphist, Aichi Pref. Police.