U.S. v. Oliver, 75--1170

• Decision Date: 22 March 1976
• Docket Number: No. 75--1170,75--1170
• Citation: 525 F.2d 731
• Parties: UNITED STATES of America, Appellee, v. Joseph Armand OLIVER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 731

525 F.2d 731

UNITED STATES of America, Appellee, v. Joseph Armand OLIVER, Appellant.

No. 75--1170.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1975.

Decided Oct. 31, 1975.

Rehearing and Rehearing En Banc Denied Dec. 9, 1975.

Certiorari Denied March 22, 1976.

See 96 S.Ct. 1477.

David Robards, Asst. Federal Public Defender by David R. Freeman, Federal Public Defender, Kansas City, Mo., for appellant.

J. Whitfield Moody, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before VOGEL, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

The principal issue raised in this appeal requires a determination of the evidential admissibility of polygraph examination results under the particular circumstances of this case. Appellant Joseph Oliver was indicted on December 14, 1972, with transporting the prosecutrix from Missouri to Kansas against her will for the purpose of sexual gratification in violation of 18 U.S.C. § 1201. In proceedings that foreshadow the current appeal, Oliver's conviction for that charge was reversed on appeal and remanded for a new trial. ¹ Appellant's second trial in the district court ² on December 2, 1974, is the foundation for the present appeal. In that trial a jury found him guilty, and we affirm.

The evidence adduced at the trial on behalf of the government is fundamentally based on the testimony of the victim of the alleged kidnapping. In general she testified that on November 16, 1972, while walking near her school dormitory in Kansas City, Missouri, at approximately 9:30 p.m., the defendant forced her into a car and drove to a secluded place where he raped her. The F.B.I. confirmed that fibers similar to those within the carpet in the defendant's car were found on the victim's underclothing. The thrust of the defense was designed to establish that the transportation and sex acts were consensual. This was attempted through cross-examination of the prosecutrix and by introducing evidence as to her allegedly questionable reputation. The defendant did not testify. Most significantly, the district court allowed testimony by Mr. Leonard Harrelson, an expert on polygraph examinations, who testified that a polygraph test had been consensually administered to the defendant and expressed his opinion as to whether there were indications of deception in certain responses made by the defendant during the examination. At the same time, the court excluded the testimony of another polygraph expert, Mr. Virgil Hollis.

I.

The central issue is whether the district court correctly admitted the polygraph examination results of Mr. Harrelson and properly excluded the polygraph examination results of Mr. Hollis. On July 29, 1974, defense counsel filed an ex parte motion for permission to expend funds in excess of $300 under the Criminal Justice Act, 18 U.S.C. § 3006A(e)(3) (specifically, a sum not to exceed $1,500 plus an allowance for expenses in the amount of $450), to employ Mr. Harrelson, an expert in the field of polygraphy to administer a polygraph examination to the defendant and to interpret the results. The motion pointed out that prior to the first trial the defendant sought authority to voluntarily submit to a polygraph examination but was denied such authority by the trial court and that this court in 492 F.2d 943, at 944 commented that 'no prejudice to the government can flow from allowing the defendant the opportunity to at least attempt to lay a foundation for the admissibility of a polygraph test at trial.' ³

The trial court then ordered a hearing on the motion which was held on August 13, 1974. The record indicates that defense counsel advised the court that defendant at his own expense had undergone a polygraph examination by Virgil H. Hollis and that on the questions asked in that test, 'there was an indication that the defendant was telling the truth to those questions.' The court was further advised that the purpose for the additional authorization was to lay a foundation for the reliability to polygraph testing in general and also to have another polygraph test conducted. The record further discloses that Oliver, while represented by counsel, agreed that the results, even if unfavorable, could be offered in evidence by the government. Furthermore, Oliver agreed to submit himself to a polygraph examination and to answer any questions necessary to properly administer the test. Ironically, when the test was administered, it indicated deception on behalf of the defendant.

Appellant now contends that the agreement and waiver were secured from him in violation of his rights. ⁴ Specifically, Oliver asserts that the district court implicitly imposed as a condition to granting his motion the requirement that he agree the government could offer the results of the polygraph examination. According to Oliver, the trial court implied that it would not authorize the expenditure for Mr. Harrelson's services from government funds if he did not stipulate to the evidential use of the polygraph results. He further concludes that the ex parte hearing required by the Criminal Justice Act became an adversary proceeding and its allegedly coercive effect produced the waiver. Oliver claims to have been particularly susceptible to any coercion because of his indigency and willingness to submit to a polygraph test.

It is clear that a person can waive fundamental constitutional rights, including the right against self-incrimination. Hanson v. United States, 186 F.2d 61, 65 (8th Cir. 1951). See generally Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). However, an effective waiver of constitutional rights must be voluntary, knowing, and intelligent. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record of the court's hearing on August 13, 1974, is sufficient to satisfy the strict standard for a waiver. ⁵ Oliver assured the trial court that he had adequately discussed his decision with his lawyers. Defense counsel advised the court that Oliver wished to take the test, that he had the advice of counsel that he need not take the test, and that he had been advised that a requirement might be made that he agree that the results be used even if unfavorable. Most importantly, the record establishes a voluntary, knowing, and intelligent waiver on the part of the defendant. It should also be emphasized that a polygraph test cannot be administered without the full cooperation of the defendant. It is possible, therefore, that the mere taking of the examination is tantamount to a waiver of constitutional rights if adequate warnings are given. See Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478, 490 n. 14, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). ⁶

We are satisfied that appellant voluntarily, knowingly and intelligently chose to waive his rights to object to the admission of the test results in evidence. It is obvious that Oliver calculated that he could pass the test even though he did not ultimately do so. His agreement as to the admissibility of the test, therefore, could be looked upon as a 'deliberate bypass' of his constitutional rights based on an exercise of trial strategy. Cf. Henry v. Mississippi, 379 U.S. 443, 451--52, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). Appellant's assertion of involuntariness is raised for the first time on appeal. The only objection made by the defendant to the admission of Harrelson's opinion with respect to the results of the polygraph test was that Harrelson took the position of an advocate in his approach to the defendant during the pretest interview and that this tainted the reliability of the test. See infra Part III. We fail to find the trial court's action in providing for this test amounted to plain error.

II.

This appeal necessarily raises the issue whether the state of the art of polygraph examinations has advanced to a level of reliability sufficient to make the tests admissible in evidence. Justicial opinions pertaining to the admission of polygraph testimony seem all to point toward exclusion. See, e.g., Marks v. United States, 260 F.2d 377, 382 (10th Cir. 1958). Despite the almost uniform exclusion of such evidence, however, this court has recognized that 'recent court decisions have found under certain circumstances a polygraph examination may be admissible.' United States v. Oliver, 492 F.2d 943, 944 n. 1 (8th Cir. 1974). But see United States v. Sockel, 478 F.2d 1134, 1135--36 (8th Cir. 1973). Still other courts have recognized a discretionary exclusionary rule. See, e.g., United States v. Ridling, 350 F.Supp. 90, 94 (E.D.Mich.1972). For example, United States v. Wainwright, 413 F.2d 796, 803 (10th Cir. 1969), cert. denied, 396 U.S. 1009, 90 S.Ct. 566, 24 L.Ed.2d 501 (1970), recognized that in a proper case polygraph evidence may be admissible. Given the unique circumstances of this case, we believe a discretionary rather than a per se exclusionary rule is appropriate. ⁷ In this regard, we emphasize that the defense and the prosecution had stipulated to the government's right to offer the polygraph results in evidence. ⁸ Cf. Herman v. Eagle Star Insurance Company, 396 F.2d 427 (9th Cir. 1968), aff'g, 283 F.Supp. 33 (C.D.Cal.1966).

It still must be determined whether the government has established an adequate foundation for the admissibility of stipulated or consented to polygraph evidence. We believe the necessary foundation can be constructed through testimony showing a sufficient degree of acceptance of the science of polygraphy by experienced practitioners in polygraphy and other related experts. See Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923). Cf. United States v. Wilson, 361 F.Supp. 510, 511 (D.Md.1973). Given the special circumstances of this case, the government appears to have met this burden. Mr. Leonard Harrelson, a distinguished expert in...