Scientific Evidence with Potential Application to White Collar Criminal Defense
By Michael A. Collora
Send Email to: mcollora@dwyercollora.com
ABA Conference, San Francisco, CA, March 1998
Introduction
The United States Supreme Court’s historic decision in Daubert v. Merrell Dow Pharmaceuticals loosened the standard for admission of scientific evidence (although debate still rages as to how much). In the aftermath of Daubert, defendants have sought to admit a growing body of scientific evidence and experts in criminal trials. Of significant interest to the white collar defendant is the growing class of evidence which can be loosely grouped under the heading of "credibility evidence." This evidence includes polygraph tests, psychiatric experts, and secondary evidence such as handwriting and linguistic experts. As courts continue to re-interpret Daubert in light of defendants’ Sixth Amendment rights, increasing numbers of criminal defendants are successfully introducing scientific evidence to enhance their credibility or diminish the credibility of government witnesses. However, as an example of how fluid this law is right now, Daubert has most recently been modified by the Supreme Court in General Electric Company v. Joiner, 1997 WL 764563, decided December 15, 1997. In Joiner, the court held that the relevance requirement in Daubert is not satisfied by the "mere assertions" of the expert. This most recent decision could signal a step back in reaction to pressure in the wake of Daubert. Nonetheless, the field is still very open.
This area of the law is constantly changing, and left largely to the discretion of the trial judges. There are many new opportunities to introduce novel scientific evidence on behalf of defendants. This trend is a long overdue change, allowing defendants to begin to bring their own experts into the process and level the playing field with the prosecution, which has a considerable head start. The most active debate in this area, polygraph tests, is the subject of a pending Supreme Court decision. Oral argument in United States v. Scheffer took place in November of 1997. With a decision pending as this article goes to publication, the Supreme Court has the opportunity to answer many long debated questions about this scientific evidence.
Beginning with polygraphs and covering many other forms of scientific evidence, this article will explore the admissibility of those type of scientific evidence which have the most potential usefulness for a white collar criminal defendant. Top
I. Polygraph Tests
A. What is a polygraph test?
There are many different types of polygraph examinations and many different types of polygraph examiners, and only a few are acceptable to the courts. The scientific basis for the polygraph is psychophysiology, a discipline which studies the relationship between physical and psychological changes. The early polygraphs, such as the one which was the subject of the famous "Frye" test, relied solely on blood pressure readings. Modern polygraphs use at least three different physical responses. Polygraphs are used, especially by the government, in a variety of employee screening, hiring and policy compliance settings.
There is a tension between the government’s heavy reliance on polygraphs for employment and investigative purposes and their steadfast refusal to allow criminal defendants to admit them for their own exculpatory purposes. In addition to employment screening, the government relies on polygraphs to verify the stories of informants, to corroborate the testimony of undercover police officers, and even as a condition of granting plea bargains and immunity agreements.1 Yet, when criminal defendants seek to offer the results of these tests in their own defense, the government claims they are unreliable.
The circumstances surrounding the test can have a big impact on admissibility. The test which defendants seek to admit most often is the so-called "unilateral" polygraph. The unilateral polygraph is one which is privately commissioned by the defendant, and then the results are offered for exculpatory purposes. Courts are most suspicious of these types of tests (see especially the "friendly polygrapher" theory below). A more acceptable test is the so-called "stipulated" polygraph, where the prosecution and the defense agree ahead of time to administer a test together, and agree that the results shall be admissible regardless of outcome.
Almost all respected polygraph examiners use the "control question test." In this test, the subject is asked a series of "control" questions which allow the examiner to calibrate the subject’s reactions, and then the substantive questions are asked. The test can be "inconclusive," and there is some debate over the significance of an inconclusive result. Because the administration of the test is such a subjective activity, and because there are so many variables involved in the test, it is important to be very careful in the administration of the test.
B. Polygraph Evidence’s Growing Legal Acceptance and the Emerging Federal Standard.
In certain cases, an attorney may be inclined to test her client’s story with an expert polygraph examiner. While truthful answers may give some comfort, the question may arise - can I use this later? Or, if not this test, can one supervised by the prosecutor be used? Alternatively, will the client’s ability to pass a polygraph be of use in pre-indictment bargaining with the prosecutor or otherwise bolster your case? This portion of this article covers some of these topics.
Most circuits now admit polygraph evidence for at least some limited purpose. United States v. Scheffer, 44 M.J. 442, cert. granted, 117 S.Ct. 1817 (1996) (citing United States v. A & S Council Oil Co., 947 F.2d 1128, 1134 n.4 (4th Cir. 1991) ("Circuits that have not yet permitted evidence of polygraph results for any purpose are now the decided minority")). However, few courts have allowed an exculpatory polygraph test taken by a defendant without the prior stipulation of the prosecution (the so-called "unilateral polygraph"). The two basic legal doctrines at work in this area are the federal district courts’ right under Daubert to determine the reliability and relevance of proffered scientific evidence, and a criminal defendant’s Sixth Amendment right to present a defense.
1. Daubert and Scientific Evidence
The trial court will determine the admissibility of scientific evidence using a test derived from Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Under Daubert, the court first asks if the scientific method upon which the evidence is based is reliable. Id. The court assesses reliability by asking four questions: Can the method be (and has it been) tested? Has the method been subjected to peer review? What is the known or potential rate of error? Is the method generally accepted in the relevant scientific community? (the final question is the old "Frye test" which used to be the sole determinant for admissibility). The second phase of the Daubert test is a general relevance inquiry in which the court asks if the evidence "fits" the facts of the case. Id. Thirdly, the Daubert court draws attention to other Federal Rules of Evidence that courts should consider, including 703 (expert opinion can be based on hearsay in some circumstances), 706 (court appointed experts), and, most importantly, 403 (is the evidence more prejudicial than probative). United States v. Galbreth, 908 F. Supp. 877 (D. N.M., 1995).
Daubert has most recently been modified by the Supreme Court in General Electric Company v. Joiner, 1997 WL 764563, decided December 15, 1997. In General Electric v. Joiner, the court held that the relevance requirement in Daubert is not satisfied by the mere assertions of the expert. "Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert" Id. at *6. While it is too early to tell what the full effect of this holding will be, it probably will not affect the polygraph proffer since polygraph experts do not testify as to the relevance of their exams, only as to its reliability. Furthermore, two experts should be used in a polygraph case, one to support the reliability of the method in general, and one to prove the particular test was valid.
A few courts have found that the results of a polygraph test satisfy the Daubert test for admissibility. See Galbreth, 908 F. Supp. 877; United States v. Crumby, 895 F. Supp. 1354 (D. Ariz., 1995); Ulmer v. State Farm Fire, 897 F. Supp. 299 (W.D. La. 1995). These cases are in the minority, however, and most district courts have chosen not to admit the evidence. An attorney setting out to admit a unilateral polygraph into evidence faces an uphill battle.
2. The Criminal Defendant’s Right to a Defense
The Daubert test is applied to all contested scientific evidence in all trials, regardless of who offers it, and whether it is stipulated. Although some lip service is paid to the fact that Daubert was a civil decision, the test seems to be almost universally applied to all scientific evidence.
A per se rule against polygraph evidence when it is offered by the defendant to rebut attacks on his or her credibility may be unconstitutional. See Scheffer, 44 M.J. 442. In Scheffer, an airman convicted of drug use had been administered a polygraph exam by the government during the investigation and had passed it. The Military Code of Evidence, which is promulgated by executive order, contains a per se ban on polygraph evidence. Mil. R. Evid. 707. Scheffer sought to admit the test results to show he had not taken drugs, but the lower court denied his attempt pursuant to rule 707. The Military Court of Appeals, in a fairly narrow ruling, held that the per se ban violated the Sixth Amendment. The Scheffer decision has been appealed to the U.S. Supreme Court and oral argument took place in November of last year. Key points of that argument and possible ramifications of a Supreme Court decision in either direction are discussed below in Section F.
C. Deciding Whether or Not to Have Your Client Take a "Unilateral" Polygraph.
The primary problem with unilateral polygraphs (exculpatory polygraph tests taken by defendants privately) is admissibility. Courts are very suspicious of unilateral polygraphs, and consequently, the Daubert hearing becomes difficult. (See attached order as a sample, Commonwealth v. Dinnall). It is also important what the polygraph test is going to cover, and what it will be offered to prove. See Charles W. Daniels, New Frontiers in Polygraph Evidence: Law & Tactics, The Champion (NACDL), July 1997. Polygraphs work best with specific facts, and direct questions that have clear answers. Id. They do not work well with more general and less well defined concepts such as good faith or due care. Id. The ideal polygraph question pertains to where someone was on a specific day, or did some action take place before the other. Id. Furthermore, there is a greater chance of admissibility if the polygraph results are offered to prove something other than the truthfulness of the test taker, such as whether the test was administered, or whether the defendant was willing to take such a test. Id. Furthermore, polygraph examiners could be potential character witnesses to bolster the general credibility of the witness. Id.
1. The four factor reliability test
Recently, there has been a shift away from criticizing the lack of general acceptance of polygraph technology and towards finding flaws with each individual exam. In some recent cases where federal district courts did not admit polygraph results, it was due to reasons other than a lack of general acceptance. See Jesionowski v. Beck, 955 F. Supp. 149 (D. Mass. 1997) (insufficient testimony explaining method); U.S. v. Zertuche-Tobias, 953 F.Supp. 803 (S.D. Tex. 1996) (criticizing the methodology and lack of safeguards in the execution of the test); Lanier v. Old Republic, 936 F. Supp. 839 (M.D. Ala. 1996) (excluding the evidence on other grounds, but noting that the individual procedure should be examined for accuracy); U.S. v. Edmondson, 922 F. Supp. 505 (D. Kan. 1996) (citing failure of expert to explain validity of specific test at hand).
In all of the above cases, an expert examiner following the proper precautions and an expert psychophysiologist testifying to the validity of the procedure would have satisfied the concerns of the court. Most circuits agree either explicitly or implicitly that it is now the responsibility of the trial court to evaluate the proposed polygraph evidence using a Daubert hearing. See U.S. v. Cordoba, 104 F.3d 225 (9th Cir. 1997); U.S. v. Pettigrew, 77 F.3d 1500 (5th Cir. 1996). While the Fourth Circuit still has a per se rule that polygraph evidence on the issue of credibility is inadmissible, it recently has indicated it may have to reconsider its ban in light of Daubert. See U.S. v. Sanchez, 118 F.3d 192, 197 n.3 (4th Cir. 1997).
2. Relevance
Even if the court is convinced that the test is reliable, counsel must also convince the judge that the exam is relevant. If the trial judge denies the evidence on some reliability factor, there is some hope on appeal assuming a proper record. However, the judge’s discretion as to relevance is substantial. The most relevant use of polygraph results is one where the client seeks to admit polygraph evidence only for the purpose of corroborating her testimony which she anticipates will be challenged for its truthfulness. This satisfies the second prong of Daubert (relevance) since the evidence "relates to an issue that is actually in dispute." Galbreth, 908 F. Supp. at 895 (quoting Daubert).
Relevance is also important at sentencing. Even without the Rules of Evidence, courts have excluded polygraph evidence from a sentencing hearing on relevance, if the results of the test speak only to guilt or innocence. See U.S. v. Sciarrotta, 1997 WL 778402 (6th Cir.); U.S. v Stein, 127 F.3d 777 (9th Cir. 1997); U.S. v. Weekly, 118 F.3d 576 (8th Cir. 1997) (where failure to take exam disqualified defendant from downward departure).
3. Other Rules of Evidence
Very few Federal Courts have actually allowed a unilateral polygraph into evidence at trial. If they don’t determine it unreliable in the first phase of the Daubert hearing, and they can’t find it irrelevant, they can still find refuge in other parts of the Federal Rules of Evidence to exclude it, especially Rule 403. See U.S. v. Gilliard, 1998 WL 19661 (11th Cir.) (finding that proving the validity of the test would have taken too much time, and also finding that the exam did not cover all the counts in the indictment). Under Rule 403, the court determines if the probative value of the evidence is outweighed by any possible prejudicial effect it may have on the jury’s deliberations. In the case of polygraph evidence, the possible prejudicial effect is that the jury may place too much faith in the polygraph results, and not independently evaluate the subject’s credibility in light of all the other evidence.
Rule 403 analysis gives the most leeway for a reluctant court to toss out the evidence. There is little doubt that the evidence is highly probative, the danger is in the potential prejudice. The most common prejudice claim is the "aura of infallibility" that the polygraph creates. Galbreth, 908 F. Supp. at 895. The best response to this concern is that cross examination of the expert can expose the flaws in the system. Additionally, there is ample evidence that jurors simply are not affected in this way. See Daniels, New Frontiers, supra.
There is a special 403 problem endemic to unilateral polygraphs, and it is sometimes referred to as the "friendly polygrapher theory." Galbreth, 908 F. Supp at 890. This potential prejudice is taken quite seriously by some jurisdictions. See U.S. v. Sherlin, 67 F.3d 1208 (6th Cir. 1995), cert. denied, 116 S.Ct. 795, 1548 (1995) (declaring unilaterally arranged polygraphs inadmissible by the third prong of the Daubert test, Fed. R. Evid. 403). These courts reason that a subject who takes a test with the understanding that if he does well it will help him, but if he fails it will be protected by the attorney client privilege as work product, will be under no pressure, and therefore not get caught lying. Galbreth, 908 F. Supp. at 895. This scenario makes the evidence appear much more prejudicial than probative. Some noted psychophysiologists can testify against this theory’s validity, but most courts look for certain safeguards that mitigate the danger of misleading the jury. Id. The most important of these safeguards is that the state’s experts need to see the test and related proceedings, which means they must all be recorded. See U.S. v. Dominguez, 902 F. Supp. 737 (S.D. Tex. 1995).
If the test is going to be used in a pretrial hearing or some other non-jury hearing, then the rules of evidence are more flexible. Furthermore, concern about unduly swaying the jury will be removed from the equation. See U.S. v. Posado, 57 F.3d 428 (5th Cir. 1995); U.S. v. Pettigrew 77 F.3d 1500 (5th Cir. 1996). The Posado, court highlighted this feature, finding that district court judges were less likely to be swayed by the evidence, and that the rules of evidence were relaxed in pretrial sessions. In Posado the defendants had been arrested in Houston Intercontinental Airport by police who claimed to have followed proper search and seizure procedure. The defendants’ version of the story was quite different, and if true, indicated that the police had violated their rights and improperly searched their bags. The defendants were well aware that their version of the arrest would not be believed over that of the officers, and so offered to take a polygraph, and offered to stipulate that the results of the test would be admissible regardless. The prosecution refused, and the trial court did not accept the results of the polygraph which the defendants subsequently arranged on their own. The Fifth Circuit held that their previous ban on polygraph evidence based on Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (the so-called "Frye" standard) was no longer valid in light of Daubert. The court applied a straightforward interpretation of the Daubert test to the newer polygraph technology, and removed its previous ban. The court found several factors which weighed in favor of the admissibility of the evidence, among them that the evidence was offered in a pretrial hearing and reversed.
D. Deciding Whether or Not To Have Your Client Agree to a State Administered Polygraph.
Depending on the overall holding in Scheffer, a state administered polygraph may become admissible as a constitutional right (see Section F, infra). The type of polygraph used in Scheffer wasn’t optional, making it different from the so-called "stipulated polygraph." The stipulated polygraph is an agreement before the test by both sides that the results will be admissible regardless. While the advantage is greater admissibility, the disadvantage is also greater admissibility. While it is true that polygraphs have a fairly low level of false positives, that is, falsely accusing someone of lying, it can happen. Furthermore, the pressure surrounding a government administered exam could skew your client’s results. The results could also be inconclusive, leaving the jury to think that your client failed to pass the test. There are many risks.
If there is a government administered test, take all the same precautions the government would if things were reversed. Have an expert present, and be ready to criticize the test if it is performed poorly.
A Timeline of Polygraph Considerations
Every criminal defense lawyer has clients walk into their office with the following story: "I didn’t do it (or didn’t know I was doing it) but I have no proof other than my word. I swear I’m telling the truth and I’m willing to take a lie detector test." The first thing to do with such clients is to discuss the admissibility problems outlined above and the cost involved. Even if the situation is well suited to a polygraph exam, such as in a pretrial suppression hearing, the client may not understand how the test works. This is a polite way of telling your client that if they think they can beat the test, they can’t do it in the way they might think. The only way to possibly "beat" a polygraph (which is still very difficult) is to disrupt the test so as to render an inconclusive result. Creating a false positive or negative result is almost impossible. If your client decides to go ahead with the test, and decides to take a "unilateral" test, then you must make sure the record is properly prepared, (see checklist below). Once your client has passed a polygraph, you need to evaluate your options.
Aside from the straightforward attempt to get the results admitted into evidence at trial, there are some other ways to use the test, which have advantages and disadvantages. In a high profile case, pretrial disclosure can educate potential jurors. However, early disclosure at the grand jury level is problematic because the prosecutor still has freedom to further investigate.
Assuming there are no special uses, admission at trial requires the following:
1. Is the contested information the type which will work well with a polygraph?
2. Is your client’s credibility at issue?
3. What will the polygraph evidence prove?
4. Is the test for trial, or pretrial hearing?
5. Preparing the record for the Daubert hearing:
Obtain a highly respected polygraph examiner, and a respected psychophysiologist. (In the case of a few highly qualified individuals, these could be the same person, however, to be safe it is best to use two separate experts).
Record the entire exam (videotape) and keep meticulous account of methods used, etc. for government cross examination.
Ensure that the test is executed flawlessly, follow standards for federal government examiners.
Since the government may want to conduct their own test, an even bolder step would be to notify the prosecution ahead of time and allow a government observer at the test. (while this would certainly help admissibility, it may not be the preferred strategy.
6. At the hearing
Be sure to separate the defense of the execution of your client’s test from the defense of the general method of test used. The test has to be reliable in general, reliable as applied, and relevant.
Be ready with arguments against the 403 analysis described above. The government will try to demonstrate that the jury will be unduly swayed.
Remember that even if the test results are not admitted to prove your client’s innocence, they may admissible for some other purpose, and they may be admissible at sentencing.
E. Be careful what you wish for, you may get it.
If defense counsel are increasingly successful at gaining admission of polygraph results, and the science becomes more accepted by the courts, could this become more of a problem than a benefit for defendants? Won’t the Government be able to bolster the credibility of their witnesses and victims with polygraph tests as well? And since the government generally has more resources than all but the wealthiest of clients, won’t this in the end hurt defendants more than help them? The federal government alone had over 400 polygraph experts on their payroll as of June 1997. See Daniels, New Frontiers, supra. Much of the leading research and expertise is owned by the government in the form of the Department of Defense Research Center. Eventually, won’t criminal defendants wish they had never opened the Pandora’s Box of polygraph evidence?
The answer to all these questions is that things probably won’t change too much, partly because they are already bad, and partly because the current discussion centers around the Sixth Amendment.
1. Things could not get much worse
The government already gets to use the polygraph in almost every way they would want to. The government can use the polygraph to obtain a confession and for other investigative purposes. Plea agreements can be made conditional on passing a polygraph and polygraph results are more easily admissible in pretrial hearings and sentencing. The only effect of expanding polygraph admissibility to further use by the government would be allowing polygraph results to verify the truthfulness of government witnesses. In some cases, courts have already allowed this. See U.S. v. Barger, 931 F.2d 359 (1991) (admitting results of polygraph of undercover FBI agent corroborating his testimony).
However, the defense has all the same opportunities to challenge the quality of the exam, and the defendant can have their own expert evaluate the witness and cross examine the government examiner. Also, there is a good side to informants taking polygraphs, they can fail. The Ninth Circuit has held that failure to disclose that a key prosecution witness has failed a polygraph exam violates the Brady rule. See Bartholomew v. Wood, 34 F.3d 870 (9th Cir. 1994). With this in mind, police and prosecutors may be hesitant to submit a self-interested conspirator turned informant to a polygraph. Consequently, that informants’ unwillingness to take a polygraph could also become relevant.
2. Different legal basis
Furthermore, extensive government use of polygraph results at trial may not come to pass at all. The current push to gain increased admissibility of the polygraph for defendant’s is based on the Sixth Amendment right to a defense. This is the logic behind the Sheffer Appellate decision, and the force behind the respondent’s argument before the Supreme Court. A holding on those grounds would not necessarily translate into a correlative right for the prosecution. A narrow finding that a defendant whose veracity is challenged needs to be able to demonstrate her truthfulness will not necessarily open the floodgates.
This view is supported as well by the remark of Deputy Solicitor General Michael Dreben at oral argument in Scheffer, when he argued that a world with admissible polygraph evidence would harm the government.
F. Scheffer and the future.
As noted above, the Sheffer decision in the Military Court of Appeals was a narrow one. Military Rule of Evidence 707 was so sweeping as applied, that any portion of it could be found offensive. After all, that rule contained a per se ban on all polygraph evidence in all situations. It covered sentencing and pretrial hearings, evidence offered by defense and government, no matter how it was obtained or whether agreed to beforehand. If the appeals court decision is upheld, it could be read very narrowly, and affect only those jurisdictions with a per se ban. The most offensive part of Rule 707 to the Military Court of Appeals is that it precludes any attempt by the defense to even lay a foundation for the admissibility of the evidence.
Even if the Supreme Court holds in favor of admitting polygraph evidence, their holding could be quite narrow. They could hold that a per se ban is unconstitutional, that would only affect the military and maybe the Fourth Circuit. They could hold that it is unconstitutional to exclude an exam taken at the behest of the government, which would not help unilateral polygraphs at all, and could hurt them. They could limit the holding to the military system, leaving open the possibility for per se bans in some situations, such as unilateral polygraphs. So even a decision against the government in this case may not do too much. However, since the rule was a military one promulgated by the president’s executive order, the court has to find a constitutional right to trump the president’s rulemaking authority. If it were simply a Federal Rules of Evidence issue, the Court could re-interpret the rules under their own authority, as they did in Daubert. Top
II. Hypnotically Enhanced Testimony
Hypnotically enhanced testimony is something of a misnomer, given that people rarely, if ever, actually testify while hypnotized. See Rault v. Butler, 826 F.2d 299 (5th Cir. 1987) (holding that a defendant does not have a right to testify while hypnotized to offer demonstrative proof of his insanity when committing the crime). Instead, a witness, for either the defense or prosecution, will testify as to events which they did not remember before they were hypnotized. The hypnotism is conducted by a psychiatrist who specializes in that method. The Supreme Court has recognized a right on the part of a defendant to offer hypnotically enhanced testimony so that they might give their side of the story. See Rock v. Arkansas, 483 U.S. 44 (1987). This right is, however, a limited one. Rock only holds that a per se ban preventing defendants from offering hypnotically induced testimony violates the constitution. The constitutional basis for the decision is the defendant’s right to introduce all relevant evidence in their favor, therefore the court can still exclude the evidence as irrelevant. As with all scientific evidence, its relevance is in part determined by its reliability. Despite recognizing the value of hypnosis, the Rock court also noted its shortcomings, namely its propensity to increase both true and false memories equally, the hypnotized witness’s desire to please the questioner, and the tendency toward "confabulation."
The Rock court gives some guidelines as to how to properly offer hypnotically enhanced testimony. See Rock, 483 U.S. at 60-61. First, the hypnosis should be performed by a psychologist or psychiatrist with special training2 who is independent of the investigation. Second, the examination should be conducted in a neutral, non-suggestive location. Third, there should be an accurate record of the examination3, including a pre-exam interview to provide a record of pre-hypnosis knowledge. See Bundy v. Dugger, 850 F.2d 1402 (11th Cir. 1988), for an example of satisfactory compliance with the Rock factors.
Various circuits have extended Rock in different directions. One of the original reasons why hypnosis became acceptable to courts is that it had proven helpful in investigations. Now prosecutors are trying more often to include at trial evidence obtained through hypnosis during an investigation. Provided that the testimony fits the criteria from Rock, it is usually let in. See Armstrong v. Young, 34 F.3d 421 (7th Cir. 1994); Robinson v. Maynard, 829 F.2d 1501 (10th Cir. 1987). However, in at least one instance, it was unwise for police to use hypnosis on a suspect who had not even been arrested yet. Burns v. Reed, 44 F.3d 524 (7th Cir. 1995) (where use of hypnosis on defendant before arrest violated her constitutional rights). Another development has been that since it is now a limited constitutional right, indigent defendants have a right to have it provided by the court, although failure to do so is not always reversible error. See United States v. Kibby, 848 F.2d 920 (8th Cir. 1988). Indigent defendants certainly have this right when the prosecution uses hypnotically enhanced testimony and the defense needs to discredit it.
Hypnotically enhanced testimony gains credibility when it is corroborated by other evidence, as it was in Rock, and loses significance when it is not corroborated or worse, contradicted. See, e.g., Kibby 848 F.2d 920 (where the defendant accused of operation under the influence claimed he was not driving, and requested hypnotist to help him remember who was, court committed only harmless error by denying request since defendant was the only occupant of the car who had injuries from steering wheel).
III. The Special Case of Repressed Memory
Within hypnotically enhanced testimony is a subset known as repressed memory. Cases of this sort are almost always sexual assault cases and therefore while almost always state prosecutions, however it is conceivable that a white collar criminal defendant could be brought into federal court on the strength of similar testimony. The field of repressed memory is extremely controversial, and two polarized camps are currently waging war in the courts, media, and scientific literature over the validity of repressed memory. Once a large number of these suits began to be filed, and once some parents felt wrongly accused, groups formed and recruited like minded members of the scientific community to cast doubt on the validity of these tests. The debate is an especially heated one, and difficult to resolve in court. Some plaintiffs actions are now being successfully filed against psychiatrists for implanting false memories. See Cool v. Legion Insurance Co., Kenneth C. Olson, et al., No. 94 CV 707 Circuit Ct., Outagamie Co., Wisconsin (trial ending in $2.4 million dollar settlement, where psychiatrist was accused of inducing "horrific" memories). See also Pam Belluck, "Memory Therapy Leads to Lawsuit" NYT, Nov. 6, 1997, A1:1. Suits are also being filed against attorneys for bringing suits of this nature without investigating the claims. See Jamerson v. Vandiver, 1997 Wash. App. LEXIS 270, Feb. 24, 1997. There is even a website, (www.accused.com) providing information on defenses for those who are falsely accused.
IV. Linguistic Experts
While there is potential use for linguistic experts in white collar criminal trials, up to now their use has been predominantly in the intellectual property area. In Trademark Law, the turning point for most decisions is whether the infringing mark creates a "liklihood of confusion in the marketplace." To prevent confusion, new trademarks must be different in sound, appearance, and meaning from existing ones. One of the principal sources for this confusion is similar sounding product names. Litigants will often enlist the help of linguistic experts to demonstrate that allegedly infringing marks do or do not sound similar. One of the most famous cases along these lines is Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., 702 F.Supp. 1031 (S.D.N.Y. 1988). In Mead Data, the plaintiffs were the parent company of the LEXIS information service, and were concerned that the new line of LEXUS luxury cars would create confusion in the marketplace. Linguistic experts from both sides were ready to assure the court that the terms did or did not sound similar. The winning argument in that portion of the case came when one side pointed out that the marks would usually be spoken by professional broadcasters and therefore could be pronounced distinctly.
To date, few intellectual property criminal prosecutions take place. Since the victims are usually corporations, they enforce their rights through a variety of civil measures. Should criminal prosecutions increase, then no doubt linguistic experts will play a key role in the defense of these cases. Linguistic experts have also been used to decipher flight recording devices, See Beech Aircraft Corp. v. U.S., 51 F.3d 834 (9th Cir. 1995).
V. Handwriting Experts
Handwriting experts are fairly common and generally accepted; they are frequently used by the prosecution. See U.S. v. Rosario, 118 F.3d 160 (3d Cir. 1997) (Secret Service expert testified at trial that defendant had "probably forged" signatures on checks, the expert’s testimony was admissible because there were sufficient similarities but writing fell short of the "virtually certain" category). If the government uses a handwriting expert as part of its case, your client may want to call an "expert critic" to point out the shortcomings of handwriting analysis in general and the flaws of the particular test and tester. See U.S. v. Velasquez, 64 F.3d Cir. 1995) (finding new trial needed where district court did not allow such an "expert critic").
Failure to call a handwriting expert can be used against your client to point out a lack of credibility, and can even constitute ineffective assistance. See U.S. v. Brown, 66 F.3d 124 (6th Cir. 1995) (allowing prosecutor to point out defense’s failure to call handwriting expert); U.S. v. Tarricone, 996 F.2d 1414 (2d Cir. 1993) (where handwriting on documents was essential to the guilt of defendant).
Whether handwriting analysis is a science is unclear. It is less reliable than fingerprint identification and the practitioner may want to challenge its admissibility. See Risinger, et al. "Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lesson of Handwriting Identification ‘Expertise,’" 137 U. Pa. L. Rev. 731 (1989) (challenging expertise of handwriting identification).
VI. Experts on Eyewitness Testimony
In cases where the prosecution’s case depends heavily on eyewitness or earwitness testimony, many defendants seek to introduce experts to cast doubt on the accuracy or eyewitness testimony. Psychology research has exposed many problem areas where eyewitness testimony is especially unreliable. These include cross-racial identification, identification after long delays, identification after observation under stress, and psychological phenomena such as "the feedback factor"4 and "unconscious transference."5 See United States v. Harris, 995 F.2d 532 (4th Cir. 1993). Experts have testified that there is little correlation between how confident an eyewitness is and how accurate they are. See Id. (citing United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991)).
Most Federal Circuits consider eyewitness expert testimony to fall under Fed. R. Evid. 702, and give the trial judge wide latitude to admit or exclude it. However, at least two circuits, the 11th and the 7th, have categorically excluded it. See United States v. Daniels, 64 F.3d 311 (7th Cir. 1995) ("Expert testimony regarding the potential hazards of eyewitness identifications . . . will not aid the jury because it addresses an issue of which the jury already generally is aware and it will not contribute to their understanding of the particular factual issues posed"); see also United States v. Holloway, 971 F.2d 675 (11th Cir. 1992). Where it is up to the trial judge, there are several factors which are helpful to admitting eyewitness expert testimony. The eyewitness expert should provide some specific analysis of the eyewitness in question, not just lecture the jury as to the potential weaknesses of the testimony. See United States v. Serna, 799 F.2d 842 (2d Cir. 1986) (trial judge did not abuse discretion by excluding where expert was ignorant of conditions under which identification was made, and testimony was to be "general pronouncements"). The eyewitness testimony which the defendant seeks to attack also needs to be a very important part of the government’s case. See United States v. Blade, 811 F.2d 461 (8th Cir. 1987) (where there was other evidence placing the defendant at the scene).
There is a thin line between the type of insight an expert will make into an eyewitness identification and the type of common sense which every juror will exercise with no more prodding than a garden variety instruction.
VII. Expert Testimony as to State of Mind of Witnesses or Defendants
What happens when a defendant is on trial for statements he made, but he has a mental illness which causes him to frequently lie? What if a witness has the same disorder? Can the opposing side offer expert testimony as to the truthfulness of a witness? In the American legal system, we rely on the jury to determine the truthfulness of witnesses by relying on their impressions at trial. Traditionally, expert testimony as to the truthfulness of a witness would exceed the expert’s scope of specialized knowledge.
If an expert witness is testifying only as to the witness’s character for truthfulness, then the expert can testify. The most famous incidence of this was in the trial of Alger Hiss, where Hiss was permitted to introduce psychiatric testimony that his principal accuser was mentally ill and therefore not credible. See United States v. Hiss, 185 F.2d 822 (2d Cir. 1950). The Second Circuit eventually settled on the rule that "a psychologist’s opinion on a witness’s credibility can be useful to a jury . . . in some circumstances but not others. In addition, independent considerations of prejudice, public policy, a defendant’s and witness’s constitutional rights . . . must be taken into account." U.S. v. Sessa, 806 F.Supp. 1063 (E.D.N.Y. 1992) The most recent treatment of this issue in federal courts has been in the First Circuit. See U.S. v. Gonzalez-Maldonado, 115 F.3d 9 (1st Cir. 1997) (citing U.S. v. Shay, 57 F.3d 126, 132 (1st Cir. 1995)). In Gonzalez, the government’s case was heavily dependent on the taped testimony of a witness who had since become incompetent to testify. Since the evidence was damaging to the defense, and the witness’s reliability was clearly suspect, the court allowed the testimony of the expert that the witness suffered "verbosity" and "grandeza." Id. In Shay, it was the defendant’s statements being used against him. The defense sought to admit testimony of an expert that the defendant suffered from "pseudologia fantastica", a mental condition which caused him to lie to attract attention. The court of appeals overturned the district court’s denial of the evidence, on the grounds that the evidence "fit" the facts of the case. The key consideration in the Shay opinion is whether untrained lay jurors could determine intelligently and to the best degree the particular issue. See Shay, 57 F.3d 126.
In the white collar crime area, a recent ninth circuit case has highlighted another possible use for state of mind experts. In U.S. v. Morales, 108 F.3d 1031 (9th Cir. 1997) the defendant was accused of embezzlement. Claiming that the inaccurate entries were unintentional, the defendant introduced the testimony of a CPA to demonstrate that the defendant knew very little about accounting. The court allowed the evidence because it did not speak directly to the defendant’s truthfulness, but was rather testimony from which the jury could draw conclusions as to her truthfulness, and therefore state of mind.
There are limits to the usefulness of this doctrine. Federal courts have declined to allow similar testimony when the claim is that the defendant was psychologically affected by failing a polygraph test. See United States v. Miller, 874 F.2d 1255 (9th Cir. 1989). Additionally, courts have been reluctant to allow expert testimony which tends to diminish the testimony of a child abuse victim. See United States v. Reynolds, 77 F.3d 253 (8th Cir. 1996).
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Footnotes:
1 Sometimes, witnesses seeking immunity or other special treatment will offer to take a polygraph, see Natta and Broder, "Lewinsky Would Take Lie Test In Exchange For Immunity Deal", New York Times, February 2, 1998, A1:4.
2 For an example of an unqualified examiner, see Orndorff v. Lockhart, 707 F.Supp. 1062 (E.D. Ark 1988).
3 If there is no record of the exam, the evidence will not be allowed. See Borawick v. Shay, 68 F.3d 597 (2d Cir. 1995).
4 The feedback factor demonstrates that when witnesses talk to each other, they can reinforce mistaken identifications.
5 Unconscious transference usually takes place with a photo array or lineup, where the witness mistakenly identifies the defendant.