United States v. Hart

• Decision Date: 19 November 1971
• Docket Number: No. 70-CR-107.,70-CR-107.
• Citation: 344 F. Supp. 522
• Parties: UNITED STATES of America v. Dennis J. HART and Richard Patch, Defendants.
• Court: U.S. District Court — Eastern District of New York

344 F. Supp. 522

UNITED STATES of America v. Dennis J. HART and Richard Patch, Defendants.

No. 70-CR-107.

United States District Court, E. D. New York.

November 19, 1971.

Robert A. Morse, U. S. Atty., E.D.N. Y., Brooklyn, N Y., by Marvin R. Loewy, Special Atty., Crim. Div., Dept. of Justice, of counsel, for plaintiff.

Bailey, Alch & Gillis, Boston, Mass., by F. Lee Bailey, of counsel, for defendant Hart.

Mark A. Landsman, Brooklyn, N. Y., for defendant Patch.

JUDD, District Judge.

MEMORANDUM AND ORDER

Defendants' motion for the admission of the results of polygraph tests and for an evidentiary hearing raises a question which apparently has never been squarely presented before. The case involves a Brady-type issue and not a pure question of the reliability of polygraph tests.

On the trial of two former federal narcotic agents for conspiracy to solicit a bribe (and kindred counts), the principal government witness, a narcotics dealer, blurted out during cross-examination that he had taken a lie detector test. When it developed that the tests, requested by the government, had indicated that he was lying, and that the government knew this before it put him on the stand, the court declared a mistrial with the consent of the defendants in order to permit briefing the admissibility of evidence that polygraph tests had been made.

The matter was treated by both parties on the basis of the present court decisions concerning the inadmissibility of polygraph tests, and the right to show contemporary evidence of their reliability. The court requested further memoranda on the effect of the fact that the United States directed the taking of the tests and then determined to disregard their results. No further memoranda were submitted, the government relying on the cases which it had originally cited and the defendants apparently preferring to use this case as a test of the reliability of polygraph tests generally.

The case should be considered primarily in the light of the government's duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to disclose any evidence which may tend to exculpate a defendant. None of the lie detector cases cited by the government deal with the admissibility of a test administered at government request to a government witness before a trial. Under the Brady principle, the burden should be on the government to convince a jury that this test was of no significance.

A contrary result may be indicated by United States ex rel. Szocki v. Cavell, 156 F.Supp. 79, 81 (W.D.Pa.1957), which held that it was not error for the Commonwealth to suppress the result of a lie detector test that the defendant claimed he was "forced" to take. The statement in the Szocki opinion was merely a paragraph in a habeas corpus proceeding dealing with several issues and is not persuasive to this court.

Evidence of lie detector tests is admissible for some purposes under prior decisions. In Tyler v. United States, 193 F.2d 24, 31 (D.C.Cir.1951), cert. denied, 343 U.S. 908, 72 S.Ct. 639, 96 L.Ed. 1326 (1952), the court affirmed a conviction based in part on testimony that the defendant had taken a lie detector test and that the machine had indicated that he was lying. The evidence was admitted as having a proper bearing on the voluntariness of his confession.

Even before the Brady decision, it was the rule that the government should not obtain a conviction on evidence which it knew was perjurious. Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L.Ed. 791 (1935). Later cases have expanded the duty of the government to disclose facts which might be useful to the defense. Barbee v....