United States v. Justin Call

129 F.3d 1402, 1997 Colo. J. C.A.R. 3059, 48 Fed. R. Serv. 339, 1997 U.S. App. LEXIS 34037, 1997 WL 746283

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 3, 1997
• Docket: 94-2229
• Status: Published

Opinions

BALDOCK, Circuit Judge.

A jury convicted Defendant Justin Call of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Defendant was sentenced to 63 months imprisonment. This direct appeal followed. In his appeal, Defendant argues that the district court erred by excluding proffered expert testimony regarding the results of his polygraph test. Specifically, Defendant argues that the district court failed to apply the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and that the district court erred in failing to hold an evidentiary hearing on the admissibility of the polygraph evidence. Defendant also argues that the district court abused its discretion by alternatively holding that the polygraph evidence should be excluded under Fed.R.Evid. 403. Our jurisdiction arises under 28 U.S.C. § 1291 and Fed. R.App. P. 4(b). We affirm.

I

In August 1993, agents at a border patrol checkpoint north of Las Cruces, New Mexico discovered 2.3 pounds of cocaine concealed behind the dashboard of a car driven by Defendant. Defendant was indicted and pleaded not guilty. In preparation for his jury trial, Defendant retained a professor of psychology at the University of Utah to conduct a polygraph examination. Defendant then sought to introduce the results of the polygraph examination to the jury to show that he was being truthful in asserting that he had no knowledge of the cocaine concealed in the car. Without holding an evidentiary hearing, the district court concluded that the polygraph evidence was inadmissible.

II.

As a threshold matter, we must address whether the Daubert framework must be applied to polygraph examinations.¹ We conclude that it must.

Federal Rule of Evidence 702 governs the admissibility of scientific expert testimony. The rule requires a determination that the testimony (1) is based on scientific knowledge, and (2) will assist the trier of fact to understand the evidence or to determine a fact in issue. Fed.R.Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court set forth the framework for analyzing the admissibility of Rule 702 evidence. Daubert requires a determination of whether the proffered evidence is reliable. Under Daubert, courts measure reliability of scientific evidence by considering (1) whether the technique can and has been tested; (2) whether the technique has been subjected to peer review; (3) the known or potential error rate of the technique; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether the technique has gained general acceptance in the scientific community. Id. at 593-95, 113 S.Ct. at 2796-97. This list is nonexhaustive and the inquiry under Rule 702 is “flexible.” Id. at 594, 113 S.Ct. at 2797. The second Rule 702 requirement, that the evidence be helpful to the factfinder, is a question of relevance.

Prior to Daubert we consistently held that polygraph testimony offered for the purpose of showing that one is truthful is inadmissible. E.g., United States v. Hall, 805 F.2d 1410, 1416 (10th Cir.1986). In so holding, we applied a general acceptance test similar to the one set forth in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). See United States v. Wainwright, 413 F.2d 796, 803 (10th Cir.1969) (expert testimony must be accepted in scientific community in order to be admissible); United States v. Hunter, 672 F.2d 815, 817 (10th Cir.1982) (polygraph examinations are inadmissible because they are not “widely perceived by the scientific community as having a reasonable measure of precision”). Under the Frye test, expert testimony based on a scientific technique was inadmissible unless the technique was generally accepted as reliable in the relevant scientific community. Daubert, 509 U.S. at 584, 113 S.Ct. at 2792. In Daubert, the Supreme Court rejected the general acceptance test, concluding that Rule 702 superseded the Frye test. Daubert, 509 U.S. at 587, 113 S.Ct. at 2793. Thus, in light of Daubert, orneases applying the Frye general acceptance test are no longer good law.² Therefore, we may not apply the Frye test to determine the admissibility of polygraph evidence. Instead, we must apply the Daubert analysis.

The Fifth and Ninth Circuits have reached the same conclusion. In United States v. Posado, 57 F.3d 428, 432-33 (5th Cir.1995), the Fifth Circuit concluded that because Daubert overturned the Frye general acceptance test, the Daubert analysis must be applied to polygraph evidence. See also United States v. Cordoba, 104 F.3d 225, 227 (9th Cir.1997). Like the Fifth and Ninth Circuits, we cannot discern a reason to treat polygraph evidence differently than other scientific evidence under Rule 702. Daubert itself contains no support for such an exception. Consequently, polygraph examinations, like all other scientific evidence, must be subjected to the Rule 702 analysis set forth, in Daubert.

However, our holding does not suggest a newfound enthusiasm for polygraph evidence. We caution that our application of Daubert to polygraph evidence does not imply that polygraph examinations satisfy the requirements of Rule 702. Furthermore, even if polygraph evidence should satisfy Rule 702, it must still survive the rigors of Rule 403, Daubert, 509 U.S. at 595, 113 S.Ct. at 2797 which permits the district court to exclude evidence where its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” Fed.R.Evid. 403.

III.

We now turn to our review of the district court decision in this case. We review de novo whether the district court properly followed the framework set forth in Daubert. Compton v. Subaru of America, Inc., 82 F.3d 1513, 1517 (10th Cir.1996). However, once we determine that the district court correctly applied the Daubert standards, we may reverse the district court only if the exclusion of the expert testimony constituted an abuse of discretion. Id.

Defendant first asserts that the district court did not apply Daubert but instead excluded the evidence based on a per se rule of inadmissibility. Although the district court cited a pre-Daubert opinion, United States v. Hall, 805 F.2d 1410, 1416 (10th Cir.1986), for the proposition that polygraph evidence is inadmissible to show that one is truthful, the record clearly demonstrates that the district court applied Daubert to the proffered polygraph evidence. The district court explicitly stated in its order that it evaluated the proffered testimony in light of the standard set forth in Daubert and that “nothing in Daubert would disturb the settled precedent that polygraph evidence is neither reliable nor admissible to show that one is truthful.” Consequently, we conclude that the district court did in fact apply Dau-bert.

Defendant next asserts that the district court erred by failing to hold an evidentiary hearing to determine the admissibility of the polygraph results. Although Defendant requested a hearing, Daubert does not mandate one. Nevertheless, an appellate court must have before it a sufficiently developed record in order to allow a determination of whether the district court properly applied the relevant law. The analysis outlined in Daubert is extensive, requiring the district court to “carefully and meticulously” review the proffered scientific evidence. Robinson v. Missouri Pacific, 16 F.3d 1083, 1089 (10th Cir.1994). In this case, the material presented to the district court was limited. Defendant outlined the areas about which his expert would testify during an evidentiary hearing, but provided the district court with minimal substantive information. In addition, the district court made no specific factual findings regarding its application of Rule 702 and Daubert. However, we need not reach the question of whether this record is insufficient to permit meaningful review, because we hold that the district court properly excluded the evidence under Rule 403.

Under Rule 403, the district court may exclude evidence if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” Fed.R.Evid. 403. A decision to exclude evidence under Rule 403 will not be reversed absent a clear abuse of discretion. Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1526 (10th Cir.1997). Therefore, we will not reverse the district court’s decision .absent a “definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Id. (citations omitted).

In this ease, the Defendant sought to introduce the polygraph evidence to bolster his credibility. The polygraph results would have corroborated his own testimony that he had no prior knowledge that any cocaine was in the vehicle. The credibility of witnesses is generally not an appropriate subject for expert testimony. United States v. Toledo, 985 F.2d 1462, 1470 (10th Cir.1993). Such testimony is often excluded because it usurps a critical function of the jury and because it is not helpftd to the jury, which is capable of making its own determination regarding credibility. Id.; see also Conti v. C.I.R., 39 F.3d 658, 663 (6th Cir.1994) (holding that polygraph evidence is almost never admissible under Rulé 403). There is also the danger that the jury may overvalue polygraph results as an indicator of truthfulness because of the polygraph’s scientific nature. United States v. Falsia, 724 F.2d 1339, 1342 (9th Cir.1983) (noting polygraph’s “misleading appearance of accuracy”). The district court based its decision to exclude the polygraph results on a determination that the evidence was more prejudicial than probative, and would not assist the jury. Under the circumstances, we cannot find that the district court made a clear error of judgment or exceeded the bounds of permissible choice. Thus, the district court did not abuse its discretion in excluding the polygraph evidence.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

1 . Although we have held in at least one post-Daubert opinion that polygraph results are generally inadmissible, the question of whether Dau-bert applies to polygraph examinations was not addressed. See Palmer v. City of Monticello, 31 F.3d 1499, 1506 (10th Cir.1994).

2 . Although one panel cannot generally overrule circuit precedent, an exception exists if the Supreme Court has issued a superseding contrary decision. In re Smith, 10 F.3d 723, 724 (10th Cir.1993). In this case, Daubert constitutes the requisite superseding decision.