Saturday, July 21, 2012
No Lie, Take 2: Supreme Court Of Vermont Declares Polygraph Evidence Per Se Inadmissible Under Rule 403
Previously, I have noted that polygraph test results are inadmissible in every United States jurisdiction except New Mexico barring a prior stipulation by both parties. It turns out, though, that Vermont courts had never addressed the issue until the recent opinion of the Supreme Court of Vermont in Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 2012 WL 975429 (Vt. 2012). So, how did the court rule?In R. Brown, the following facts were not in dispute:
Rathe Salvage is in the business of acquiring old motor vehicles to sell for spare parts and scrap metal. For several decades Rathe Salvage did business with hauler, which is in the business of crushing and transporting scrap metal for sale. The typical pattern of their transactions was that the parties would agree on the price per ton of scrap metal, Rathe Salvage would identify the junked vehicles to be sold, and hauler would crush the junks for transport to a Montreal steel mill. It was understood that each load would be weighed at the mill, hauler would be paid by the mill, and Rathe Salvage would be paid by the hauler at the previously agreed upon price per ton. Rathe relied upon on handwritten weigh slips presented by hauler to figure the tons for which their price per ton was due.
In late 2003, Rathe Salvage terminated this arrangement and contracted with another trucking company [R. Brown & Sons, Inc.]. Although the replacement company bought and transported what Rathe Salvage contended were the same kinds of loads, Rathe noticed that the typical load weights reported by the new trucker—and thus, the typical payments received—were significantly higher than those reported by defendant hauler. Although hauler offered several reasons why the replacement trucker's loads were heavier, Rathe Salvage inferred from the difference that hauler had been submitting fraudulent weigh slips, and it sued for, for purposes of this appeal, breach of contract, fraud, and consumer fraud, the last claim based on the allegation that Rathe was a consumer of hauler's services.
At the end of trial, "defendants R. Brown & Sons, Inc., a scrap metal hauling company, and its principal, Robert Brown (both referred to as hauler), were found liable for breach of contract, common law fraud, trespass, breach of the implied covenant of good faith and fair dealing, and consumer fraud." The defendants thereafter appealed, claiming, inter alia, that "the case should be remanded due to the trial court's refusal to conduct a Daubert hearing on the admissibility of hauler's polygraph, or lie detector, testing before excluding such evidence from trial."
In addressing this issue, the Supreme Court of Vermont noted that "[t]he admissibility of polygraph evidence is one of first impression in Vermont." The trial court had declined to hold a Daubert hearing on the ground that "even if the tendered polygraph evidence had ample reliability and relevance so as to be admissible under Rule 702, it would be excluded under Rule 403," which provides that
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
The Supreme Court agreed with the trial court's conclusion for a number of reasons, including the following:
(1) "It is long settled that 'the jury is the lie detector'" and "the polygraph cannot but usurp the jury's lie detecting function;"
(2) "Questions concerning the polygraph's reliability in a particular case would unavoidably invite testimonial duels between experts over the tactics and circumstances of the examination itself;"
(3) "The polygraph expert's opinion in this case vouching for hauler's denial of fraud would amount to an opinion confirming hauler's veracity and the legal insufficiency of Rathe Salvage's fraud claim against him."
(Hat tip to Marc Ginsberg for the link)