US v. Crumby

• Citation: 895 F. Supp. 1354
• Decision Date: 07 July 1995
• Docket Number: No. CR 94-122-PHX-RGS.,CR 94-122-PHX-RGS.
• Parties: UNITED STATES of America, Plaintiff, v. David CRUMBY, Defendant.
• Court: U.S. District Court — District of Arizona

895 F. Supp. 1354

UNITED STATES of America, Plaintiff, v. David CRUMBY, Defendant.

No. CR 94-122-PHX-RGS.

United States District Court, D. Arizona.

July 7, 1995.

Thomas P. Hannis, Phoenix, AZ, for plaintiff.

Sally S. Duncan, Phoenix, AZ, for defendant.

ORDER

STRAND, District Judge.

INTRODUCTION

On January 17, 1995, Defendant, David Crumby, moved the Court for an evidentiary hearing as to the reliability and admissibility of polygraph evidence. The Defendant and Plaintiff have submitted a number of filings and evidentiary materials with respect to the admissibility of polygraph evidence. An extensive evidentiary hearing was held concerning the issue. The motion has been fully briefed and is ready for disposition.

BACKGROUND

On March 31, 1994, Defendant, David Crumby, was indicted on one count of Bank Robbery and Aid and Abet, in violation of 18 U.S.C. §§ 2113(a) and 2. The government contends that Defendant, who worked at Bank One in Chandler, Arizona, participated in robbing this bank on April 30, 1993. Thomas Riley, who admitted robbing the bank, has identified David Crumby as the "inside man" in the robbery.

David Crumby, who has no prior record of breaking the law, has maintained his innocence since being indicted. According to Defendant, in an attempt to demonstrate his innocence, Defendant submitted to a polygraph examination on November 28, 1994. Tom Ezell, a former polygrapher for the Phoenix Police Department, administered the polygraph examination. Mr. Ezell evaluated the results of the polygraph exam and determined that Defendant was being truthful on his responses to questions concerning the bank robbery. According to Mr. Ezell, the Defendant passed the test — that is Defendant truthfully stated that he did not commit the crime in question.

DISCUSSION

The issue presented to this Court is twofold: is polygraph evidence admissible, and if so, under what circumstances should it be admitted? The answer to this question has historically varied from circuit to circuit, and over time. A brief review of the Ninth Circuit's approach to polygraph evidence, as well as the other circuits' approaches, will illustrate the evolution of the science of polygraphy and the reaction of federal courts to this evolution.

A. ADMISSIBILITY OF POLYGRAPH EVIDENCE IN FEDERAL COURTS

1. Ninth Circuit Approach

The Ninth Circuit has traditionally "expressed an inhospitable view towards the admission of unstipulated polygraph evidence." Brown v. Darcy, 783 F.2d 1389, 1394 (9th Cir.1986). In the seminal case of Brown v. Darcy, the Ninth Circuit held that absent a stipulation, polygraph evidence was per se inadmissible under the Federal Rules of Evidence. The rationale underlying Brown was that polygraph evidence was of "questionable reliability" and presented a "great potential for prejudice from inaccurate polygraph evidence." Brown, 783 F.2d at 1394-97. In Brown, the Court stated that reliability was the most persuasive reason for excluding polygraph evidence. This conclusion was based on the Court's view that polygraph evidence was an accurate predictor of truthfulness anywhere from seventy to ninety-five percent of the time. Id.

In addition to the shortcomings in reliability, the Brown Court stressed grave concern over the prejudicial effect of admitting polygraph evidence. The four main concerns articulated by the Court were: (1) polygraph evidence is likely to be "shrouded with an aura of near infallibility, akin to the ancient oracle of Delphi," Brown, 783 F.2d at 1396, citing United States v. Alexander, 526 F.2d 161, 168 (8th Cir.1975), thus giving overly significant, if not conclusive weight to the expert testimony; (2) polygraph evidence is an opinion regarding the ultimate issue in the case, rather than just one relevant issue; (3) polygraph evidence infringes on the jury's role in determining credibility; and (4) judicial resources will be unduly consumed based on the great deal of testimony required in cases where polygraph evidence is admitted. Brown, 783 F.2d at 1396-1397.

In the Ninth Circuit, there are two exceptions to the per se inadmissibility rule: stipulated polygraph evidence and polygraph evidence used for the purposes of demonstrating an operative fact. Stipulated polygraph evidence has been in use in the Ninth Circuit for a number of years and its use is prevalent in most circuits. The operative fact exception has also been used with a good deal of frequency. In United State v. Bowen, 857 F.2d 1337 (9th Cir.1988), the Ninth Circuit held that "if polygraph evidence is being introduced because it was relevant that a polygraph examination was given regardless of the result, then it may be admissible." Id. at 1341. Thus, by way of example, if a Defendant wanted to introduce polygraph evidence to demonstrate that he could not have committed a crime, because he was taking a polygraph test at the time of the alleged crime, it might be admissible. The purpose of introducing the polygraph evidence in this previous hypothetical would be to show an operative fact — the Defendant was taking the test at the time of the crime. The truth or falsity of the results of the test would be irrelevant.

Similarly, in United States v. Miller, 874 F.2d 1255 (9th Cir.1989), the Court stated that the government may demonstrate an operative fact using polygraph evidence if the evidence is narrowly tailored. Id. at 1262. In Miller, the government wanted to establish that the Defendant's admission was reliable because he decided to admit to committing the crime after he was told he failed a polygraph examination. This "limited purpose" evidence might be admissible because whether he in fact failed the test or not was irrelevant. The purpose of evidence was to show that after learning he failed the test, the Defendant decided to admit to committing the crime. The Miller Court, however, reversed the district court's decision to admit the polygraph evidence because it was not narrowly tailored. The Court held that the district court abused its discretion in permitting the specific questions asked on the polygraph examination to be introduced at trial.

Lastly, in Toussaint v. McCarthy, 926 F.2d 800 (9th Cir.1990), cert. denied 502 U.S. 874, 112 S.Ct. 213, 116 L.Ed.2d 171 (1991), the Ninth Circuit called into question the traditional view in the Circuit that polygraph evidence is unreliable. The Court favorably cited an important case from the Eleventh Circuit. The Toussaint Court stated: "a careful review of polygraph evidence by the Eleventh Circuit notes that `in recent years polygraph testing has gained increasingly widespread acceptance as a useful and reliable scientific tool.'" Toussaint, 926 F.2d at 803, citing United States v. Piccinonna, 885 F.2d 1529, 1535 (11th Cir.1989) (en banc). Thus, the Ninth Circuit has called into question its traditional view of polygraph evidence. The Eleventh Circuit's approach in Piccinonna challenges the traditional rule of per se inadmissibility.

2. The Eleventh Circuit and Other Circuits' Approaches

In Piccinonna, the Eleventh Circuit outlined the differing approaches taken by the various circuits. Id. at 1533-1536. The approaches may be divided into three basic camps. First, the Fourth, Fifth, and District of Columbia Circuits adhere to the per se inadmissibility approach. Id. Second, the Eighth Circuit allows stipulated polygraph evidence and has been leaning towards greater admissibility. Id. And third, the Ninth Circuit, as well as the Third, Sixth, Seventh, and Tenth, permit polygraph evidence pursuant to a stipulation and under special circumstances. Id. The most common special circumstance is when the evidence is introduced to establish an operative fact.

In Piccinonna, the Court fashioned a novel approach to the admissibility of polygraph evidence. The decision to change the legal landscape was based on the Court's view that advances in the science of polygraph have greatly increased the reliability of the tests and consequently reduced many of the prejudicial effects. The Eleventh Circuit outlined two situations where polygraph evidence may be admitted. Id. at 1536. The first instance is stipulated polygraph evidence. The second instance, the one most relevant for the purposes of the instant case, is polygraph evidence used to impeach or corroborate the testimony of a witness at trial.

The Court stated that polygraph evidence may be used to impeach or corroborate, subject to three preliminary requirements. First, the party planning to use the evidence must provide sufficient notice to the opposing party. Second, the opposing party must be given a reasonable opportunity to have its own expert administer a polygraph examination which is materially similar to the previously taken examination. Third, the admissibility of evidence is subject to the relevant provisions of the Federal Rules of Evidence, specifically, Fed.R.Evid. 608 and 702. Thus, Piccinonna creates a new exception to the per se inadmissibility rule.

B. REASONS FOR REASSESSING THE PER SE INADMISSIBILITY RULE

There are a number of reasons for reexamining the per se rule prohibiting introduction of unstipulated polygraph evidence in the Ninth Circuit. First, the facts of this case differ dramatically from the previous line of Ninth Circuit cases. In the present case, a criminal defendant who claims his innocence has taken and passed a polygraph examination, and seeks to introduce this potentially exculpatory evidence. Second, the Supreme Court's landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), necessarily causes courts to reconsider the traditional approaches to the admissibility of scientific evidence under Fed.R.Evid. 702. In Daubert, the Supreme Court abandoned the Frye test¹ and outlined a new method for federal district courts to follow when considering whether to admit scientific evidence. Third, based on the evidence...