Polygraph Testimony Admitted as Evidence in Federal Case

10th Circuit Carves Out Lie Detector Exception

True or false? Lie detector tests are not admissible in criminal court.

Standard wisdom holds that polygraph test are never admissible in Oklahoma criminal trials. There is more to it. Let’s try another question.

True or false? Results of polygraph tests may not be admitted as evidence of guilt or innocence in Oklahoma criminal courts.

Our crib notes might suggest we instantly answer this one as “true.” Polygraphs can never be used as proof of guilt in court. Yet careful examination again exposes hypothetical cases where the standard wisdom might not prevail.

A 10th Circuit Court of Appeals decision handed down Dec. 29, 2015 in Tenorio v. U.S., No. 15-2037 illuminated a circumstance where a polygraph examination might be admissible in a criminal trial. The logic could suggest how Oklahoma courts will treat polygraphs in similar cases.

Test Admissible, Results Not Admissible

In Tenorio, a man’s attorneys argued that police had coerced his confession. In response, the court allowed prosecutors to cross examine the man about the fact that he confessed after he had been confronted with results of a lie detector test.

It is important to note that the court did not allow prosecutors to introduce results of the polygraph test. The trial judge advised jurors that “Federal law does not permit you to consider polygraph examinations.”

The judge said the polygraph was only admitted to explain investigators’ actions. “[Y]ou are not to speculate or take into consideration anything regarding the polygraph examination or its potential results in reference to the guilt or innocence of the defendant…” the trial judge told jurors.

In affirming the trial court’s decision, the 10^th Circuit — Oklahoma’s federal circuit – summarized its case law regarding admissibility of so-called lie detector tests.

Until 1997, the 10^th Circuit prohibited polygraphs per se as “not admissible to show that one is truthful.”

A 1997 case provided the court an opportunity to adjust its stance in light of a 1993 U.S. Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which set the current standard for admission of expert testimony in federal courts.

Rules for Expert Testimony in Criminal Trials

The new Daubert rule replaced a prior rule that said expert testimony is admissible when it is consistent with science generally accepted by the relevant scientific community. In federal courts, the new Daubert standard became known as Rule 702.

Under Daubert, expert testimony is admissible when it:

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.

A basis in scientific knowledge can be determined by:

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.

Why Lie Detectors Lie

As a practical matter, Daubert did not make much difference in whether polygraphs were admissible. Even when considered for their scientific merit, they still failed to impress judges as scientifically reliable. Oklahoma’s Court of Criminal Appeals spelled out the reasons in a 1951 case. Not much as has changed since then.

In Henderson v. State 1951 OK CR 52, the Oklahoma court cited a text by a Northwestern University law professor that lists reasons polygraph tests so often get it wrong:

1.  Emotional tension — nervousness — experienced by a subject who is innocent and telling the truth regarding the offense in question, but who is nevertheless affected by:
   1. fear induced by the mere fact that suspicion or accusation has been directed against him, and particularly so in instances where the subject has been extensively interrogated or perhaps physically abused by investigators prior to the time of the interview and testing by the lie-detector examiner; and
   2. a guilt complex involving another offense of which he is guilty.
2. Physiological abnormalities, such as:
   1. excessively high or excessively low blood pressure;
   2. diseases of the heart;
   3. respiratory disorders, etc.
3. Mental abnormalities, such as:
   1. feeblemindedness;
   2. psychoses or insanities, as in manic depressives, paranoids, schizophrenics, paretics, etc.;
   3. psychoneuroses, and psychopathia, as among so-called ‘peculiar’ or ’emotionally unstable’ persons — those who are neither psychotic nor normal, and who form the borderline between these two groups.
4. Unresponsiveness in a lying or guilty subject, because of:
   1. lack of fear of detection;
   2. apparent ability to consciously control responses by means of certain mental sets or attitudes;
   3. a condition of ‘sub-shock’ or ‘adrenal exhaustion’ at the time of the test;
   4. rationalization of the crime in advance of the test to such an extent that lying about the offense arouses little or no emotional disturbance;
   5. extensive interrogation prior to the test.
5. Unobserved muscular movements which produce ambiguities or misleading indications in the blood pressure tracing.

In the 10th Circuit’s Tenorio case, however, polygraph evidence was not offered as expert testimony, so it was not subject to a Daubert test. Instead, it was introduced only to show why detectives persisted in questioning a man, as a rebuttal to his claim that he had been coerced.

For that purpose, the court nonetheless needed to determine if otherwise relevant evidence was unnecessarily prejudicial. It is called Rule 403 in the Federal Rules of Evidence. The federal appeals court said it had no problem striking that balance in this case.

Until the man took the stand on his own behalf, a trial court had excluded as too prejudicial any testimony about the polygraph. However, when he went on to testify that he had been coerced, the trial court decided jurors should hear both sides of the story.

That was when the court allowed prosecutors to ask him about the lie detector test. He had “opened the door” to let in evidence that had otherwise been excluded.

Polygraph Tests as Proof of Guilt?

At this juncture, an arm-chair lawyer might suggest arguing against the results of the lie detector test. It is well accepted that cops can lie during interrogation. Maybe they subjected the suspect to a fake lie detector test, conducted a poorly administered test or simply misrepresented the results.

Maybe, but that line of questioning could open the door further to introduction of lie detector test results. If a defense attorney challenged the results of a test, a prosecutor might be free to defend the results. A judge might let jurors reach their own conclusions.

Armed with that new knowledge, our arm-chair attorney might advise, “just never take lie detector tests.” But again, things are seldom so simple.

Sometimes a defense attorney might suggest that a client take a polygraph test. In that case, the criminal defense team could assert the examination was work product protected by attorney client privilege, unless a favorable result indicated showing results to prosecutors.

A couple of interesting Oklahoma cases shed further light on how polygraphs can go wrong. In Harris v. State 1992 OK CR 74 the court determined that a polygraph can be used as part of grant of immunity to assess statements made pursuant to agreement. If you make a plea agreement that involves taking a lie detector test and fail the test, the agreement could be invalid.

Wood v. State 2000 OK CR 16 was somewhat similar to Tenorio in that a defendant implicated himself in a crime after being confronted in a polygraph examination. Unlike Tenorio, however, the Oklahoma court reversed the conviction.

In Wood, statements made after a polygraph test without an attorney present were not admissible, even though the man had agreed to take a lie detector test in which his attorney was not present.

Strategy Session: Tulsa Polygraph Attorney

The bottom line with lie detector tests in criminal cases is to always ask a good Oklahoma attorney before you take any chances. At work, polygraphs are generally prohibited by the federal Employee Polygraph and Protection Act. Even then, there are exceptions – such as when an employer reasonably suspects theft or embezzlement. Again, talk to an attorney if you have any doubts about how the results might be used.

For a confidential strategy session with a Tulsa criminal attorney about lie detector tests, polygraph examinations or any matter involving criminal allegations, contact Wirth Law Office at (918) 879-1681 or send your question using the form at the top of this page.