Monday, September 25, 2006

Circumstances, but not Results, of Polygraph Exam Admissible to Rebut Defendant's Claim of Coerced Confession

United States v. Allard, No. 05-20087 (5th Cir. Sept. 11, 2006) (Garwood, King, Jolly)

When is a polygraph exam admissible? When the circumstances surrounding the exam are offered to rebut a defendant's claim that her confession was coerced.

Here's the court's summary of the facts:
Linda Gay Allard contacted her local Wal-Mart store in 2003, complaining that her husband found straight pins in Hillshire Farms summer sausage she had purchased from the store. In addition to contacting Wal-Mart, Allard filed a complaint with the U.S.D.A.’s Food Safety Inspection Service. The U.S.D.A. joined with the United States Secret Service and conducted an investigation of Allard’s claim. As a part of the investigation, Secret Service Agent William Wind conducted a polygraph examination with respect to both Allard and her husband. At the conclusion of Allard’s polygraph exam, Agent Wind informed Allard that the results indicated she had not been truthful. Allard then gave the following written confession: “I put the pins in the sausage before I left for work on Thursday, December 4, at 3 p.m. I was hoping to get money from Hillshire Farms. I got the pins from the sewing box.” Allard told Agent Wind that she and her husband had nearly $60,000 in consumer debt that they were struggling to repay.

Slip op. at 2.

The Government charged Allard with "one count of making a false claim of consumer product tampering in violation of 18 U.S.C. § 1365(c)(1)." At trial, the Government initially persuaded the court to exclude any evidence of the polygraph exam.

The Government reversed course, however, after Allard testified that "Agent Wind told her she could not leave until she wrote what he told her to write in her statement; that Agent Wind threatened her by stating that he could take her farm and arrest her at work; that Agent Wind refused to honor her request for an attorney; that Agent Wind pushed her, shoved her, and told her to sit down and shut up; and that Agent Wind said he could make her children disappear." Slip op. at 3-4. The Government then asked the court to admit the polygraph exam, arguing that "the test was relevant to the progression of events preceding the confession and to the fact that her failure of the polygraph test lent credence to Agent Wind’s testimony that he judged her to be deceptive." Id. at 4.

The district court refused to allow the Government to introduce the results of the polygraph test, but it did allow the Government to cross-examine Allard regarding the circumstances surrounding the test. The Government also called Agent Wind as a rebuttal witness. The court instructed the jury that it could consider the circumstances of the test only for the purpose of determining whether Allard's confession was voluntary.

On appeal, Allard argued that admission of Agent Wind's testimony and the circumstances of her polygraph exam violated Fed. R. Evid. 403 and 702. The court of appeals rejected both arguments.

The court held that Agent Wind's testimony did not run afoul of Rule 702 because
The government did not proffer Agent Wind as an expert. Neither did Agent Wind claim to offer, or actually provide, technical, scientific, or expert testimony. Instead, Agent Wind was called in rebuttal to provide his account of the facts and circumstances surrounding Allard’s confession, in an attempt to counter Allard’s allegations that her confession was coerced.

Slip op. at 6. Furthermore, "the district court instructed the jury that it should consider any polygraph evidence only to determine the credibility of the witnesses and not as scientific evidence . . . ." Id. at 9.

The court also found no clear abuse of discretion in the district court's admission of the evidence regarding the polygraph exam:
Where a defendant, such as Allard, chooses to contest before the jury the voluntariness of her confession, it is only fair to permit the government, in response, to set the scene of that confession. It is significant, of course, that here the district court specifically instructed the jury that testimony relating to the polygraph was not scientific, that its results were irrelevant to the ultimate issue of truthfulness, and that the evidence was only to be considered in determining whether Allard’s confession was voluntary. See supra, n.3. Given these circumstances, Allard has failed to establish that the district court abused its discretion under Rule 403 in admitting testimony relating to her polygraph examination.

Slip op. at 12.

(The court also held that the district court did not err in giving a modified Allen charge that was "substantively the same as the charge found in the Fifth Circuit Pattern Jury Instructions." Slip op. at 13.)


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