Brown v. Darcy, 83-6440

• Decision Date: 04 March 1986
• Docket Number: No. 83-6440,83-6440
• Parties: 20 Fed. R. Evid. Serv. 340 Robert J. BROWN, Plaintiff-Appellant, v. John F. DARCY, a/k/a Jack Darcy, an individual; Ducommun, Inc., a corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1389

783 F.2d 1389

20 Fed. R. Evid. Serv. 340

Robert J. BROWN, Plaintiff-Appellant, v. John F. DARCY, a/k/a Jack Darcy, an individual; Ducommun Inc., a corporation, Defendants-Appellees.

No. 83-6440.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 6, 1985.

Decided March 4, 1986.

James L. Seal, Swerdlow, Miller, Seal & Swerdlow, P.C., Beverly Hills, Cal., for plaintiff-appellant.

Richard Levy, Gibson, Dunn & Crutcher, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before HUG and HALL, Circuit Judges, and JAMESON, ^* District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Polygraph evidence has been disfavored in the federal courts since the decision of the District of Columbia Circuit in Frye v. United States, 293 Fed. 1013 (D.C.Cir.1923). ¹ Despite advances in polygraphy since the Frye decision, there are still significant questions regarding the reliability of polygraph examinations. Polygraph evidence also presents problems for our adversarial system because it has an overwhelmingly prejudicial effect when it is inaccurate, interferes with the jury's authority to determine credibility, and imposes a burden on district courts to review the reliability of polygraph evidence in each case. Accordingly, we hold that polygraph evidence may not be admitted to establish the truth of statements made during the polygraph examination unless the parties have stipulated to the admissibility of the polygraph results before the examination is administered, and the court is satisfied that the examination has been administered in a manner which supports the reliability of the polygraph results.

BACKGROUND

Plaintiff-appellant Robert J. Brown appeals from a jury verdict in favor of defendants John F. Darcy and Ducommun, Inc. on his complaint for libel and slander. At the time this dispute arose Brown was a Corporate Vice President and Director of Sales and Marketing-West for Motorola, Inc. Brown was also one of seven members of Motorola's Distributor Council, the body responsible for Motorola franchising decisions. Darcy was President of Kierulff Electronics, a wholly-owned subsidiary of Ducommun. Kierulff Electronics was a distributor of electronic components, including Motorola parts, and held Motorola franchises in eight cities throughout the United States. Kierulff Electronics was interested in obtaining Motorola franchises in eight additional locations. Motorola franchises are valuable to distributors of electronic components because franchisees are permitted to buy Motorola parts at a discount, and receive sales assistance from Motorola field personnel.

This dispute revolves around a May 15, 1980 meeting at the Radisson Hotel in Scottsdale, Arizona, among Brown, Darcy, and Donald Fullam, a Motorola executive with responsibilities similar to Brown's and also a member of Motorola's Distributor Council. According to Darcy, Brown and Fullam solicited a bribe from him at the meeting, asking him for $200,000 in return for Brown's and Fullam's efforts to lobby the Distributor Council to approve the additional franchises Kierulff Electronics was seeking. Brown maintains that the meeting was a legitimate discussion of Kierulff Electronics' record in existing franchises and the possibility of obtaining further franchises. According to Brown, Darcy at one point inquired whether Brown and Fullam were soliciting a bribe in exchange for their help in getting franchises, but Brown claims that he did not take Darcy seriously because such action would be a clear violation of Motorola policy. Brown remembers Fullam responding to Darcy's inquiry by describing a bribe that had been paid to another electronics company, but Brown claims that he directed the conversation Darcy returned to Los Angeles after the meeting, and consulted with Ducommun's President, Wallace Booth, and Ducommun's legal counsel, Arthur Schmultz. Acting on their advice, Darcy decided to wait and see what would happen rather than contact Motorola about the alleged solicitation.

back to Kierulff Electronics' eligibility for new franchises based on its past performance.

In July 1980 Darcy was contacted by three different people in the electronics business who informed Darcy that Fullam was claiming that Darcy owed him a substantial sum of money. One of these individuals put Darcy in contact with Alfred Stein, Assistant General Manager of the Semiconductor Group at Motorola. Darcy recounted his version of the Radisson Hotel meeting for Stein, and later for Stein and Richard Weise, Motorola's General Counsel. During this second meeting Darcy provided a written statement and volunteered to take a polygraph test to support his accusations. The written statement summarized Darcy's version of the Radisson Hotel meeting, including his claim that Brown and Fullam had solicited a payment in exchange for lobbying efforts on behalf of Kierulff Electronics. Darcy's written statement also indicated that "[o]ver the course of the evening, [Darcy] consumed three glasses of 7-UP and Brown and Fullam accounted for the balance of a $33.00 bar bill," and that while "walking from the cocktail lounge to the parking lot [Brown and Fullam] repeatedly made insulting remarks with respect to [Darcy's] stupidity and lack of understanding as to what it took to be successful in business." At trial Darcy testified that he had orally informed Stein and Weise that Fullam attributed Brown's involvement in the solicitation scheme to Brown's need to pay off substantial gambling debts.

The polygraph examination ² which Darcy agreed to take in support of his accusations against Brown was administered by Cy Gilson ³ on September 9, 1980. The control questions employed by Gilson were criticized by some of the other polygraph experts. ⁴ Gugas found that the control questions were inappropriate because they were not sufficiently related to the subject which was being investigated and concluded that Darcy's truthfulness could not be On September 10, 1980, investigators from Motorola informed Brown of the accusations by Darcy and told Brown that Darcy had passed a polygraph examination. Brown submitted a written statement contradicting Darcy's accusations within two days, and agreed to submit to a polygraph test. The test was scheduled to be administered by Cy Gilson. Brown initially objected because Gilson had already opined that Darcy was telling the truth, but eventually consented to the examination by Gilson on September 12, 1980. Gilson found the Brown test results inconclusive. The Brown test was criticized by Horvath and Gugas because it was unlikely that Gilson could establish the rapport with Brown necessary to a successful polygraph examination. ⁷ Gugas also stated that he would not have administered the polygraph examination to Brown on September 12 if he had known that Brown was suffering from emphysema and had experienced two relatively sleepless nights since being informed of Darcy's accusations, because respiratory problems and high stress levels will affect the accuracy of a polygraph examination. ⁸ At trial Horvath testified that no opinion could validly be drawn regarding Brown's truthfulness or deceptiveness because the theft control questions were not relevant to the subject under investigation, too narrowly drawn, and may not have elicited the necessary untruthful response.

                evaluated because of this defect. 5   The control questions were also disapproved of by Horvath because they were prefaced by the phrase "Did you honestly believe ... ?"  This type of control question is ineffective because it tests what the examinee believed, not what actually happened. 6   In spite of these problems Gilson concluded that Darcy was telling the truth about the Radisson Hotel meeting
                

After Brown filed his motion to exclude the polygraph evidence, defendants arranged for a second examination of Darcy by Clarence Kirkland. Defendants did not inform the court or Brown of the examination until they knew that Kirkland had concluded that Darcy was telling the truth. The reliability of the Kirkland examination is questionable because it was not administered until December 1982, more than thirty months after the Radisson Hotel meeting.

The lapse of time between the events in question and the polygraph examination increases the likelihood that the subject will convince himself that certain statements are true, and therefore not produce the physiological responses associated with lying. ⁹

Before trial Brown moved to exclude all of the polygraph examinations. Alvin Burdick, the court-appointed expert, ¹⁰ concluded that the Darcy examination administered by Gilson was reliable, and agreed with Gilson's conclusion that Darcy was telling the truth. Burdick also concluded that Brown was attempting to beat the polygraph examination which Gilson found inconclusive, and supported Kirkland's conclusion that Darcy was telling the truth during his second examination. After reviewing the conflicting expert opinions and hearing argument from counsel the district judge concluded:

It appears to me that, as far as the law is concerned, I have no question regarding reliability. Anything further, the factual nature of it, can be argued to the jury, much as you have argued it here to me today.

The jury returned a verdict for defendants, and the district judge denied Brown's motion for new trial, indicating that he agreed with the jury's verdict and that, in his opinion, the polygraph evidence "was almost irrelevant in terms of reaching the decision that was reached." Brown filed a timely appeal.

ANALYSIS

On appeal Brown argues that the district court erred in admitting the polygraph evidence, and that the court should have instructed the jury that Darcy's statements to Motorola regarding the bar bill, Brown's alleged gambling debts, and Brown's allegedly intimidating behavior could be considered as...