Tuesday, July 29, 2014
The Human Polygraph: 10th Circuit Deems FBI Agent's Testimony on Defendant's Dishonesty Inadmissible
It is well established that, except in New Mexico, polygraph evidence is inadmissible to prove the guilt (or innocence) of a criminal defendant. But what if the prosecution wants to call a human polygraph -- an expert, like Dr. Cal Lightman on the TV show "Lie to Me" -- who professes to be able to distinguish truth from falsehood? That was the question addressed by the Tenth Circuit in its recent opinion in United States v. Hill, 749 F.3d 1250 (10th Cir. 2014).
In Hill, Stanley Hill was charged with bank robbery and related crimes after being interrogated regarding the crimes.
During trial, Charles Jones, a special agent with the Federal Bureau of Investigation ("FBI"), testified as an expert. Agent Jones stated that he was trained in "special tactics and ways to identify [ ] deception in statements and truths in statements" and that in his opinion, many of Stanley's answers were not worthy of credence and "[did] not make sense." Jones claimed that Stanley displayed evasive behaviors "common among the criminal element to keep law enforcement at bay" during an interrogation. When asked about Stanley's statement that he would rather die than face charges, Jones testified, "Never in my career have I seen that with an innocent person." And when the prosecutor asked about Stanley's repeated invocations of God in support of his truthfulness, Jones stated, "My training has shown me, and more[ ]so my experience in all these interviews, when people start bringing faith into validating [ ] their statements, that they're deceptive. Those are deceptive statements."
After he was convicted, Jones appealed, claiming, inter alia, that Jones's testimony was inadmissible under Federal Rule of Evidence 702, which provides that
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
not argue that Jones was unqualified to offer the opinion he provided, but instead that the subject matter of his testimony—the credibility of another person—may not be addressed by an expert testifying under Rule 702.
The Tenth Circuit agreed, finding Jones's testimony was inadmissible for three reasons:
Such testimony: (1) "usurps a critical function of the jury"; (2) "is not helpful to the jury, which can make its own determination of credibility"; and (3) when provided by "impressively qualified experts on the credibility of other witnesses is prejudicial and unduly influences the jury."
Moreover, the court concluded that
It appears our sibling circuits that have considered this issue have uniformly agreed. See Engesser v. Dooley, 457 F.3d 731, 736 (8th Cir.2006) (“An expert may not opine on another witness's credibility.”); Nimely v. City of New York, 414 F.3d 381, 398 (2d Cir.2005) (“[T]his court, echoed by our sister circuits, has consistently held that expert opinions that constitute evaluations of witness credibility, even when such evaluations are rooted in scientific or technical expertise, are inadmissible under Rule 702.”); United States v. Vest, 116 F.3d 1179, 1185 (7th Cir.1997) (“Credibility is not a proper subject for expert testimony; the jury does not need an expert to tell it whom to believe, and the expert's stamp of approval on a particular witness' testimony may unduly influence the jury.” (quotations omitted)); United States v. Gonzalez–Maldonado, 115 F.3d 9, 16 (1st Cir.1997) (“An expert's opinion that another witness is lying or telling the truth is ordinarily inadmissible pursuant to Rule 702 because the opinion exceeds the scope of the expert's specialized knowledge and therefore merely informs the jury that it should reach a particular conclusion.” (quotation omitted)); United States v. Beasley, 72 F.3d 1518, 1528 (11th Cir.1996) (“Absent unusual circumstances, expert medical testimony concerning the truthfulness or credibility of a witness is inadmissible ... because it invades the jury's province to make credibility determinations.”); United States v. Rivera, 43 F.3d 1291, 1295 (9th Cir.1995) (“[A]n expert witness is not permitted to testify specifically to a witness' credibility or to testify in such a manner as to improperly buttress a witness' credibility.” (quotation and alteration omitted)); United States v. Dorsey, 45 F.3d 809, 815 (4th Cir.1995) (“[E]xpert testimony can be properly excluded if it is introduced merely to cast doubt on the credibility of other eyewitnesses, since the evaluation of a witness's credibility is a determination usually within the jury's exclusive purview.”).