U.S.A v. Cordoba, 98-50082

• Decision Date: 02 March 1999
• Docket Number: No. 98-50082,98-50082
• Citation: 194 F.3d 1053
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANK JAVIER CORDOBA, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1053

194 F.3d 1053 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANK JAVIER CORDOBA, Defendant-Appellant.

No. 98-50082

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted March 2, 1999--Pasadena, California

Decided November 12, 1999

[Copyrighted Material Omitted] Craig Wilke, Deputy Federal Public Defender, Santa Ana, California, for the defendant-appellant.

Elizabeth R. Abrams, Assistant United States Attorney, LosAngeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CR-95-00039-GLT

Before: Alfred T. Goodwin, Melvin Brunetti, and Thomas G. Nelson, Circuit Judges.

Opinion by Judge Brunetti; Concurrence by Judge Goodwin

BRUNETTI, Circuit Judge:

The issue of the admissibility of polygraph evidence has a long and controversial history in the courts. In the wake of the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the question of whether polygraph evidence is reliable enough to be admissible in a trial has once again come into issue. On this, the second appeal in this matter, we must decide whether the district court abused its discretion in finding, after holding an evidentiary hearing, the results of an unstipulated polygraph examination inadmissible under both Federal Rules of Evidence 702 and 403. We have jurisdiction under 28 U.S.C. S 1291, and we affirm.

I.

Appellant Frank Javier Cordoba was arrested while driving a van which was found to contain 300 kilograms of cocaine and was charged with possession of cocaine with intent to distribute. At trial, Cordoba presented a defense of lack of knowledge. To bolster his credibility, Cordoba sought to admit the results of an unstipulated polygraph exam which supported his contention that he was not aware that the van he was driving contained cocaine. The district court excluded the evidence, finding that Ninth Circuit precedent made polygraph evidence per se inadmissible. The jury returned a guilty verdict.

On appeal, we reversed, holding that Daubert, 509 U.S. 579, overruled the " `bright line rule' excluding all unstipulated polygraph evidence offered in civil or criminal trials." United States v. Cordoba, 104 F.3d 225, 227 (9th Cir. 1996)("Cordoba I"). We found that, under Daubert, a district court was required to make a particularized factual inquiry into the scientific validity of the proffered polygraph evidence under Rule 702 as well as weigh the probative value of the evidence against its prejudicial effect under Rule 403. Id. at 227-28. We remanded with instructions to the district court to "conduct individualized inquires under Rules 702 and 403 to determine whether Cordoba's unstipulated polygraph evidence is admissible." Id. at 230. We provided that "[i]f the district court conclude[d] that the unstipulated polygraph evidence [was] inadmissible under Rule 702 or 403, the district court [could] reinstate the judgment of conviction." Id.

Upon remand, the district court held a two day evidentiary hearing, received extensive briefing, and reviewed numerous affidavits and reports supplied by the parties. After considering this evidence, the district court found that the polygraph evidence was inadmissible under both Rules 702 and 403. United States v. Cordoba, 991 F. Supp. 1199 (C.D. Cal. 1998) ("Cordoba II"). The district court found that polygraph evidence generally did not meet the reliability standard of Daubert and that, due to defects in the test given to Cordoba, "the questionable reliability of the Defendant's polygraph evidence undermines its relevance, and the potential prejudice substantially outweighs its probative value." Id. at 1208. The district court reinstated Cordoba's sentence and this appeal followed.

II.

We review a district court's decision to admit or exclude expert testimony for abuse of discretion. General Electric Co. v. Joiner, 118 S. Ct. 512, 517 (1997). As an initial matter, Rule 702 assigns the district court "the task of ensuring an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597. "[I]t is very much a matter of discretion with the [trial] court whether to receive or exclude the evidence" and appellate courts should "not reverse in such a case unless the ruling is manifestly erroneous." Joiner, 118 S. Ct. at 517 (quoting Spring Co. v. Edgar, 99 U.S. 645, 658 (1878)).

A. Admissibility of Polygraph Evidence Under Rule 702

1. Rule 702 Analysis

Federal Rule of Evidence 702 allows experts to testify in both opinion form and non-opinion form in order to assist the trier of fact in resolving issues in dispute.¹ In Daubert, the Supreme Court found that Rule 702 requires a trial court to make an initial determination, under Federal Rule of Evidence 104(a), whether proffered expert scientific testimony: (1) constitutes scientific knowledge, that (2) "will assist the trier of fact to understand the evidence or to determine a fact in issue." 509 U.S. at 589-91.

The Court enumerated a series of general observations designed to aid trial judges in making initial admissibility determinations. In ascertaining whether proposed testimony is scientific knowledge trial judges first must determine if the underlying theory or technique is based on a testable scientific hypothesis. Id. at 593. The second element considers whether others in the scientific community have critiqued the proposed concept and whether such critiques have been published in peer-review journals. Id. at 593-94. Third, the trial judge should consider the known or potential error rate. Id. at 594. Fourth, courts are to consider whether standards to control the technique's operation exist. Id. Lastly, the trial court is to appraise whether the relevant scientific community accepts the technique. Id. at 594. The Court instructed that the presence or absence of any single Daubert criterion is not to be dispositive in determining the admissibility or inadmissibility of the evidence. Id. at 592-93. To make the determination of whether the testimony would assist the trier of fact, the trial judge must evaluate the relevancy of the evidence.

2. Scientific Premises of the Polygraph

Because this is the first case which has required this Court to consider the admissibility of polygraph evidence in the wake of Daubert and because aspects of the theoretical underpinnings of polygraph tests are the gravamen of our analysis, we deem it appropriate to begin with a brief background description of the theory behind polygraphy and the test methods most often utilized.²

"The polygraph is a device that measures physiological reactions of humans in an attempt to determine the veracity of statements they make." Timothy B. Henseler, A Critical Look at the Admissibility of Polygraph Evidence in the Wake of Daubert: The Lie Detector Fails the Test, 46 Cath. U. L. Rev. 1247, 1251 (1997). A polygraph instrument consists of an assortment of instrumentalities that measure the following physiological functions: blood volume, heart rate, respiratory activity, and galvanic skin resistance (palmar sweating). After an examiner attaches the instruments to the subject, any changes in the physiological measurements are transmitted to pens which record them on moving chart paper.

The general hypothesis upon which the theory of polygraphy rests is the notion that when a person lies, the human aversion to lying causes a physiological response which in turn causes an involuntary physiological reaction. A lie is believed to precipitate an alteration in the rate and pattern of breathing, blood pressure, rate and volume of blood flow, and the moisture on the skin. Truthful responses do not precipitate these same reactions.

In the Controlled Question Technique ("CQT"), the test method used most often by polygraph examiners,³ an examiner asks three different types of questions: neutral, control and relevant. The neutral questions are asked to ascertain the subject's chart readings when answering honestly. The control questions, which are formulated by the examiner and the subject, are designed to be stress inducing. The control questions deal with issues similar to the incident in question, but which are more general. They are worded in such a vague manner that it is difficult for anyone to simply answer "no." The examiner asks the questions in a way that leads the subject to believe that an affirmative answer will affect the examiner's perception of the subject. The control questions are designed to elicit an untruthful answer.⁴ Finally, the relevant, or incident-specific, questions deal specifically with the crime of which the subject has been accused.⁵

The theoretical underpinning of the CQT is that a person who answers relevant questions truthfully will be more concerned about the broader control questions which they answer falsely. The truthful subject, therefore, will have greater physiological responses to the control questions than to the relevant questions. A deceptive subject, by contrast, will have stronger physical responses to the relevant questions. Thus, the examiner determines whether the subject is answering the relevant questions truthfully by comparing the subject's physiological changes to the relevant and control questions.

3. District Court Findings

After holding an evidentiary hearing, considering all the evidence submitted by the parties, and requesting and evaluating additional information, the district court made the following findings:

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...