U.S. v. Cordoba, SA CR 95-39-GLT [SF].

• Decision Date: 22 January 1998
• Docket Number: No. SA CR 95-39-GLT [SF].,SA CR 95-39-GLT [SF].
• Citation: 991 F.Supp. 1199
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Frank Javier CORDOBA, Defendant.

Page 1199

991 F.Supp. 1199

UNITED STATES of America, Plaintiff, v. Frank Javier CORDOBA, Defendant.

No. SA CR 95-39-GLT [SF].

United States District Court, C.D. California.

January 22, 1998.

Elizabeth Abrams, Asst. U.S. Atty., Los Angeles, CA, for Plaintiff.

Craig Wilke, Deputy Federal Public Defender, Santa Ana, CA, for Defendant.

ORDER FINDING POLYGRAPH EVIDENCE INADMISSIBLE AND REINSTATING CONVICTION

TAYLOR, District Judge.

The court finds unstipulated polygraph evidence does not meet the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) test for admission in evidence. The court finds polygraphy has not achieved general acceptance in the scientific community for courtroom use, the error rate for real-life polygraph tests is unknown, and there are no controlling standards for polygraphy.

I. BACKGROUND

In 1995 police conducted a surveillance operation in Santa Ana, California, and observed a van pull into an alley and stop next to an open garage. A group of men watchfully loaded heavy objects from the garage into the van. Once loaded, the van was driven to a nearby shopping center and parked. Defendant appeared in the parking lot, climbed into the van's driver's seat, and drove away.

Shortly thereafter, police stopped the van and a search revealed three duffle bags and three cardboard boxes containing 300 kilograms of cocaine. Defendant was arrested and charged with possession of cocaine with intent to distribute.

Before trial, and without the government's knowledge, Defendant took a polygraph test concerning his insistence he had not known the van contained cocaine. The polygraph examiner used a Modified General Question Test designed to consist of four relevant questions, four irrelevant questions, and two control questions.¹ The examiner concluded Defendant was truthful in his responses to the four supposedly relevant questions.

The defense proposed to offer the polygraph evidence at trial. The government moved in limine to exclude it.

The general rule in the Ninth Circuit at that time was set forth in Brown v. Darcy, 783 F.2d 1389 (9th Cir.1986).² Brown, a civil case, established a per se rule that unstipulated polygraph evidence was inadmissible to establish the truth or falsity of a party's statement.³ The Ninth Circuit had yet to comment on how Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), affected Brown's per se rule. This court ruled it was controlled by Brown, and granted the government's motion to exclude the polygraph evidence.

At trial, Defendant testified he had not known the van contained cocaine. He said he believed the van contained the personal belongings of a Mr. Rodriguez, who had asked him to drive the van. Based on all the evidence, however, the jury found Defendant guilty of knowingly possessing cocaine with the intent to distribute, and he was sentenced to 262 months in prison.

On appeal the Ninth Circuit abandoned Brown's per se rule, and joined other Circuits in holding that, under Daubert, unstipulated polygraph evidence is not per se excluded. United States v. Cordoba, 104 F.3d 225, 230 (9th Cir.1997); see, e.g., United States v. Pulido, 69 F.3d 192 (7th Cir.1995); United States v. Posado, 57 F.3d 428 (5th Cir.1995) (per se exclusion reversed); United States v. Piccinonna, 885 F.2d 1529 (11th Cir.1989).⁴

The Ninth Circuit vacated the conviction and remanded, instructing this court to "conduct individualized inquiries under Rule 702 and 403 to determine whether Cordoba's unstipulated polygraph evidence is admissible." Cordoba, 104 F.3d at 229. The Circuit left admission of the evidence to the discretion of the trial judge, but observed such evidence still "has grave potential for interfering with the deliberative process." Id. at 228. The Ninth Circuit concluded, should this court find the evidence inadmissible after conducting the inquiry, it may reinstate the judgment of conviction.⁵

Following the Ninth Circuit's remand order, this court conducted a two day evidentiary hearing, receiving detailed briefing from the parties. The court received testimony from highly-qualified witnesses on both sides of the issue. The centerpiece of the defense support for polygraph admission was the testimony of Dr. David Raskin, a pioneer psychophysiologist, nationally known scholar in forensic polygraphy, and generally acknowledged as the nation's foremost polygraph expert.⁶ The matter was then submitted for decision.

III. DISCUSSION

The court concludes the proposed unstipulated polygraph evidence is not admissible under both Federal Rule of Evidence 702 and 403.

A. Federal Rule of Evidence 702

Faced with an offer of expert scientific testimony, under Fed.R.Evid. 104(a) a trial judge must determine at the outset whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact in understanding or determining a fact in issue.⁷ Daubert, 509 U.S. at 592. The preliminary assessment of whether the methodology underlying testimony is reliable "scientific knowledge" is determined by conducting the multi-factor review set forth in Daubert. Ultimately Daubert directed courts to consider whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error, the existence and maintenance of standards controlling the technique's operation, and whether it is generally accepted within the relevant community. Id. at 592-595. The secondary determination, whether the testimony would assist the trier of fact, directs a trial court to evaluate whether the offered testimony is relevant. Id. at 591-92.

The reliability of polygraph testing fundamentally depends on the reliability of the protocol followed during the examination. After considering the evidence and briefing, the court concludes the proposed polygraph evidence is not admissible under Fed.R.Evid. 702. Although capable of testing and subject to peer review, no reliable error rate conclusions are available for real-life polygraph testing. Additionally, there is no general acceptance in the scientific community for the courtroom fact-determinative use proposed here. Finally, there are no reliable and accepted standards controlling polygraphy. Without such controlling standards, there is no way to ensure proper protocol, or measure the reliability of a polygraph examination. Without such standards, the proposed polygraph evidence is inadmissible because it is not based on reliable "scientific knowledge."

1. Testing

A scientific theory should be capable of being tested. Daubert, 509 U.S. at 593. The parties agree there is no known physiological response unique to deception which can be tested. David Raskin, The Polygraph in 1986: Scientific, Professional and Legal Issues Surrounding Application and Acceptance of Polygraph Evidence, 1986 UTAH L.REV. 29, 31 (finding there is "[n]o known physiological response or pattern of responses is unique to deception."). Proponents contend, however, the polygraph is testable because the body produces physiological reactions from which a trained polygraph examiner can draw inferences about truth and deception.

The premise underlying the polygraph has undergone testing in both laboratory and field settings. The laboratory studies create conditions which attempt to mimic experiences of real-life subjects. From a scientific viewpoint, laboratory studies can provide an ideal setting to study the reliability of polygraphs because "ground truth" (i.e., what is really true) is known. See T.D. Cook and D.T. Campbell, QUASI-EXPERIMENTATION: DESIGN AND ANALYSIS ISSUES FOR FIELD SETTINGS (1979) Field studies provide an alternative approach for studying polygraphs. Most often these studies use as subjects criminals who have confessed to a crime. The confession is used as the "ground truth" by which researchers measure the reliability of the polygraph.

Opponents have criticized the reliability of both laboratory and field tests. The Congressional Office of Technology Assessment ("OTA")⁸ evaluated all of the available studies in 1983 and concluded "no overall measure ... [of polygraph validity] can be established based on available scientific testing." See Scientific Validity of Polygraph Testing: A Research Review and Evaluation — A Technical Memorandum, Office of Technology Assessment, at 4 (Nov.1983). Generally, opponents criticize testing for insufficient sample size and methodological shortcomings. See generally W. Iacono & D. Lykken, The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, 1 MODERN SCIENTIFIC EVIDENCE § 14-3 (D. Faigman et al. eds.1997). Specifically, opponents criticize laboratory and field studies for lacking realism and having limited applicability to real-life settings.⁹ However, critics do not contest that some settings provide an effective forum to test whether a trained polygrapher can detect deception. In light of this, it appears the polygraph is a testable device.

2. Peer Review and Publication

"Submission to the scrutiny of the scientific community is a component of good science.... [P]ublication (or lack thereof) in a peer reviewed journal thus will be a relevant though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised." Daubert, 509 U.S. at 593.

Hundreds of articles about the polygraph have been published, many in peer-reviewed journals.¹⁰ The polygraph appears to meet the peer review factor of the Daubert analysis.

3. Known or Potential Error Rate

Daubert directs courts to consider the known or potential error rate of the scientific technique. Daubert, 509 U.S. at 594. Scientists supporting polygraph evidence have developed testing criteria which, if carefully followed, can produce accurate results. These high quality test...