MARVIN KATZ, UNITED STATES DISTRICT JUDGE:
Now, during trial, I must decide the prosecution's Motion to Exclude evidence of a polygraph examination of a government witness in this criminal case. I waited as long as possible to get the feel of the case. Four days before trial, the government served the defense with the FBI polygraph examination report of government witness John Stayton.
The report, prepared by examiner Frank A. Cryon, stated "deception indicated" with respect to every question posed. The defense wishes Mr. Cryon to testify as an expert regarding the examination of Mr. Stayton, who is one of several alleged Co-conspirators of the accused who will testify against them. The government has moved in limine to suppress any reference to the examination.
In United States v. Downing, 753 F.2d 1224 (3d Cir. 1985), the court articulated a standard for the admission of expert testimony concerning novel scientific techniques. The court held that Federal Rule of Evidence 702 "requires that a district court ruling upon the admission of (novel) scientific evidence, i.e., evidence whose scientific fundaments are not suitable candidates for judicial notice, conduct a preliminary inquiry focusing on (1) the soundness and reliability of the process or technique used in generating the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse, or mislead the jury, and (3) the proffered connection between the scientific research or test result to be presented, and particular disputed factual issues in the case." Id. at 1237. After applying the Downing test to the polygraph examination at issue here, I find that such evidence is inadmissible.
First, in determining the reliability of the scientific technique employed, the court "may take judicial notice of expert testimony that has been offered in earlier cases." Id. at 1239. A review of the evidence regarding polygraph examinations reveals that "there is no agreement in the scientific community about the accuracy of polygraph technique . . . ." Brooks v. Scheib, 813 F.2d 1191, 1194 (11th Cir 1987); United States v. Scallatino, No. 85-114, slip op. at 3 (E.D. Pa. June 27, 1985) ("The unreliability of lie detectors as a device for discovering the truth is a matter of wide judicial recognition").
"After assessing the reliability of the evidence, the court must also weigh any danger that the evidence might confuse or mislead the jury." Downing, 753 F.2d at 1239. Even scientific techniques with substantial indicia of reliability may confuse, rather than assist, the jury. Id. Admission of polygraph evidence creates a danger that the scientific nature of the test will cause jurors to give it greater weight than it deserves. I find that because "polygraph evidence . . . is likely to be shrouded with an aura of near infallibility, akin to the ancient [oracle] of Delphi," United States v. Alexander, 526 F.2d 161, 181 (8th Cir. 1975), such evidence is likely to mislead the jury.
In addition, the court has noted that "techniques that rely on the use of a mechanical device to produce data as well as upon the exercise of an expert's subjective judgment to draw conclusions from the data would also seem to raise at least the possibility of confusing or misleading the jury." Downing, 753 F.2d at 1239. Polygraph evidence employs just such a technique. See United States v. Ioannucci, 1990 U.S. Dist. Lexis 3067, No. 88-139, slip op. at 3-4 (E.D. Pa. Mar. 28, 1989); United States v. Williams, 583 F.2d 1194, 1199 n.9 (2d Cir. 1978).
An additional consideration is whether the proffered scientific evidence is sufficiently connected to the facts of the case that it will aid the jury in resolving a factual dispute. Downing, 753 F.2d at 1242. In this case, the witness took the polygraph examination in December, 1986, two and one-half years before trial. In addition, there may be other ways to impeach the witness that do not involve the dangers inherent in polygraph evidence.
Few courts have discussed the admission or exclusion of evidence regarding a government witness's polygraph examination. The two major opinions that do so arrive at opposite conclusions. I believe that both opinions contain logical flaws.
In United States v. Hart, 344 F. Supp. 522 (E.D.N.Y. 1971), the court held that evidence that the principal government witness had taken and failed a polygraph examination presents an exception to the general rule against admission of polygraph evidence. The court held that in light of the government's duty to disclose all exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and under the long-standing rule that the government should not obtain a conviction on evidence which it knows to be perjurious, a defendant is "entitled to inquire concerning any investigations made by the government which might have put [him] on notice that a government witness was untruthful." Id. at 523. The court went on to state:
Having requested that [their witness] submit to polygraph tests, and then rejected the conclusions of the tests, the government should be prepared to show (a) the prior experience with polygraph tests and with the particular testers which led [them] to have [the witness] submit to the tests; (b) the basis for the subsequent doubts about the validity of polygraph tests which led to the disregard of the results; and (c) any other relevant material concerning the tests which defendants may request from the government on their own behalf. The bearing of the lie detector test on [the witness's] credibility should be determined by the jury and not by a prior court hearing.