United States v. Cordoba

104 F.3d 225, 97 Daily Journal DAR 1468, 45 Fed. R. Serv. 1197, 97 Cal. Daily Op. Serv. 976, 1997 U.S. App. LEXIS 2222, 1997 WL 3317
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 7, 1997
DocketNo. 95-50492
StatusPublished
Cited by136 cases

This text of 104 F.3d 225 (United States v. Cordoba) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cordoba, 104 F.3d 225, 97 Daily Journal DAR 1468, 45 Fed. R. Serv. 1197, 97 Cal. Daily Op. Serv. 976, 1997 U.S. App. LEXIS 2222, 1997 WL 3317 (9th Cir. 1997).

Opinion

THOMAS, Circuit Judge.

This appeal requires us to decide whether our per se rule excluding the admission of unstipulated polygraph evidence was effectively overruled by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We conclude it was and vacate Defendant Cordoba’s conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We affirm the remainder of the district court’s evidentiary rulings.

I.

We have long expressed our hostility to the admission of unstipulated polygraph evidence. See United States v. Givens, 767 F.2d 574, 585-86 (9th Cir.), cert. denied, 474 U.S. 953, 106 S.Ct. 321, 88 L.Ed.2d 304 (1985); United States v. Demma, 523 F.2d 981, 987 (9th Cir.1975) (en banc). This antipathy culminated in the adoption of a “bright line rule” excluding all unstipulated polygraph evidence offered in civil or criminal trials. See Brown v. Darcy, 783 F.2d 1389, 1396 n. 13 (9th Cir.1986).

In Daubert, the Supreme Court held that Federal Rulé of Evidence 702, governing the admission of scientific expert testimony, superseded Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), which had required scientific testimony to be generally accepted in the relevant scientific community to be admissible. 509 U.S. at 584-87, 113 S.Ct. at 2792-93. The Supreme Court stated that under Rule 702, when “[f]aeed with a proffer of expert scientific testimony ... the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2)will assist the trier of fact to understand or determine a fact in issue.” Id. at 592, 113 S.Ct. at 2796 (footnotes omitted). While the Court noted that many factors bear on the first inquiry and refused to set out an exclusive checklist, it identified the following issues as relevant: (1) whether the theory or technique can be and has been tested, (2) whether it has been subjected to peer review, (3)whether the technique has a high known or potential rate of error, and (4) whether the theory has attained general acceptance within the scientific community. Id. at 593-94, 113 S.Ct. at 2796-97. Finally, the Court stated that “[t]he inquiry envisioned by Rule 702 is, we emphasize, a flexible one” and that “Rule 702 ... assign[s] to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 594, 597, 113 S.Ct. at 2797, 2799.

The per se Brown rule excluding unstipu-lated polygraph evidence is inconsistent with the “flexible inquiry” assigned to the trial judge by Daubert. This is particularly evident because Frye, which was overruled by Daubert, involved the admissibility of polygraph evidence.

The only other circuit that has squarely addressed this issue held that a per se rule excluding expert polygraph evidence was overruled by Daubert and Rule 702. United States v. Posado, 57 F.3d 428, 431-34 (5th Cir.1995). The court stated:

[W]e do not now hold that polygraph examinations are scientifically valid or that they will always assist the trier of fact, in this or any other individual case. We merely remove the obstacle of the per se rule against admissibility, which was based on antiquated concepts about the technical ability of the polygraph and legal precepts that have been expressly overruled by the Supreme Court.

Id. at 434. We agree with the Fifth Circuit.

This holding is consistent with precedent in this circuit. We have held that Daubert overruled a per se rule excluding expert testimony regarding the credibility of eyewitness identification. See United States v. [228]*228Amador-Galvan, 9 F.3d 1414, 1417-18 (9th Cir.1993) (declining to follow per se rule of United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973) and instead requiring district courts to consider whether expert testimony regarding eyewitness identification meets Daubert requirements). Similarly, in United States v. Rincon, 28 F.3d 921 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 605, 130 L.Ed.2d 516 (1994), we upheld a district court’s decision to exclude expert testimony on eyewitness identification under Daubert, stating:

Notwithstanding our conclusion, we emphasize that the result we reach in this case is based upon an individualized inquiry, rather than strict application of the past rule concerning expert testimony on the reliability of eyewitness identification. See Amador-Galvan, 9 F.3d at 1418. Our conclusion does not preclude the admission of such testimony when the proffering party satisfies the standard established in Daubert by showing that the expert opinion is based upon “scientific knowledge” which is both reliable and helpful to the jury in any given case. See Daubert, 509 U.S. at 591-93, 113 S.Ct. at 2796. District courts must strike the appropriate balance between admitting reliable, helpful expert testimony and excluding misleading or confusing testimony to achieve the flexible approach outlined in Daubert. See id. at 595-99, 113 S.Ct. at 2798-99.

Id. at 926.

Accordingly, we hold that Daubert effectively overruled Brown’s per se rule under Rule 702 against admission of unstipulated polygraph evidence.

Brown also suggested that the admission of unstipulated polygraph evidence per se violated Federal Rule of Evidence 403. Brown, 783 F.2d at 1396 n. 13. Daubert specifically states that other evidentiary rules, such as Rule 403, should be considered by the trial judge in determining whether to admit scientific evidence. 509 U.S. at 595, 113 S.Ct. at 2797-98; see also Posado, 57 F.3d at 435. Daubert holds that it is the trial judge’s task, rather than ours, to conduct the initial weighing of probative value against prejudicial effect. Accordingly, we hold that Daubert also overruled any per se rule created by Brown that unstipulated polygraph evidence is always inadmissible under Rule 403.

Requiring the trial judge to conduct the Rule 403 analysis is consistent with the law of other circuits.

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104 F.3d 225, 97 Daily Journal DAR 1468, 45 Fed. R. Serv. 1197, 97 Cal. Daily Op. Serv. 976, 1997 U.S. App. LEXIS 2222, 1997 WL 3317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cordoba-ca9-1997.