United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant James B. Wright's
(“Wright”) Motion to Admit Evidence of Polygraph
Examination Results and Request for Daubert Hearing
(Dkt. #82). After reviewing the relevant pleadings and
motion, the Court finds that the motion should be denied.
asks the Court to admit evidence and expert testimony
regarding a polygraph examination Eric Holden
(“Holden”) administered to Wright. The Government
asks the Court to exclude the evidence under Federal Rules of
Evidence 401, 402, 403, 702, 704(b), and 802.
Court will begin with the Government's assertion that the
polygraph should be excluded because its probative value is
substantially outweighed by the danger of unfair prejudice,
confusing the issues, undue delay, or wasting time under
Federal Rule of Evidence 403. The Government contends that
admitting the polygraph would improperly bolster Wright's
testimony, is not the proper subject for expert testimony,
and carries the danger that the jury will overvalue the
polygraph results. The Government argues that the probative
value of the polygraph examination is relatively low in this
case because the questions Holden asked Wright were vague,
confusing, and simplistic. As such, the Government asserts
that the polygraph should be excluded under Federal Rule of
maintains that the polygraph is admissible under Federal Rule
of Evidence 403 because it will not take a large amount of
time to admit the evidence in relation to trial and the
evidence is not cumulative. Further, Wright asserts that the
probative value of the polygraph far outweighs any potential
prejudice or delay because Holden is at the top of his field,
is well-respected, and is known for administering accurate
past, the Fifth Circuit had a per se rule excluding polygraph
evidence and testimony; however, with a “high degree of
caution” it abolished that rule. United States v.
Posado, 57 F.3d 428, 436 (5th Cir. 1995). Polygraph
evidence is now admissible subject to Federal Rule of
Evidence 403, among the other federal rules of evidence. Rule
403 states that a court may exclude 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.” Fed.R.Evid.
403. Several courts have offered guidance in analyzing a
polygraph under Rule 403 regarding both the probative and
the probative value of the polygraph, the polygraph
examination's context and specificity affects its
probative value to the fact-finder. United States v.
Kubini, No. 11-14, 2015 WL 418220, at *13 (W.D. Pa. Feb.
2, 2015) (holding that because the polygraph took place a
significant amount of time after the defendant learned of the
criminal investigation and criminal activity, and because the
defendant only answered general questions, rather than the
specific questions about the transactions, the probative
value was “not great.”). Here, Wright took the
polygraph examination several years after his participation
in the alleged conspiracy to commit bank fraud and several
months after he learned of his initial Indictment (Dkt. #82,
Exhibit 1 at p. 1). Additionally, Holden did not ask Wright
questions about specific transactions, but instead asked
general questions about the alleged “scheme.”
(Dkt. #82, Exhibit 1 at p. 3). As such, the probative value
of the polygraph examination is low.
the prejudicial effect of the polygraph examination, a
polygraph presents “the danger that the jury may
overvalue polygraph results as an indicator of truthfulness
because of the polygraph's scientific nature.”
United States v. Call, 129 F.3d 1402, 1406 (10th
Cir. 1997) (citing United States v. Falsia, 724 F.2d
1339, 1342 (9th Cir. 1983)). In this case, the polygraph will
be administered to bolster Wright's testimony, which goes
to his credibility, and is a determination for the jury to
make. Id. (citing United States v. Toledo,
985 F.2d 1462, 1470 (10th Cir. 1993)).
Fifth Circuit identified factors that could possibly
alleviate potential prejudice created by admitting expert
testimony about a polygraph:
First, the prosecution was contacted before the tests were
conducted and offered the opportunity to participate in the
exams, including stipulating as to any limited use for the
evidence. In such a case, both parties have a risk in the
outcome of the polygraph examination, simultaneously reducing
the possibility of unfair prejudice and increasing
reliability. Second, the evidence was not offered at trial
before a jury, but in a pretrial hearing before the district
court judge. A district court judge is much less likely than
a lay jury to be intimidated by claims of scientific validity
into assigning an inappropriate evidentiary value to
See Posado, 57 F.3d at 435.
Wright took the polygraph examination based on the direction
of his attorney. The Government was not “contacted
before the test[ was] conducted and” was not
“offered the opportunity to participate in the
exam.” See Id. Similarly, the Government did
not agree or stipulate to its limited use. See Id.
Further, Wright seeks to admit the evidence in front of the
jury, as opposed to in front of the Court. See Id.
Accordingly, the two Posado factors do not eliminate
any potential prejudice created by allowing such testimony
the probative value is low, the prejudice is high, and no
factors alleviate any of the prejudice, the polygraph should
be excluded under Federal Rule of Evidence 403. Therefore,
the Court need not engage ...