ROGER VINSON, Chief Judge, District.
Pursuant to the pretrial order, the parties have briefed the issue of the admissibility of the three polygraph examinations administered to plaintiff Richard Barker, Jr.
I. Background
On May 23, 1991, Stacey Lynn Sheppard Barker ("Stacey Barker") died as a result of a near drowning in the swimming pool at her home in Panama City, Florida. At the time of her death, Stacey Barker was insured under a $350,000.00 term life insurance policy issued by defendant Jackson National Life Insurance Co. ("Jackson National"). Plaintiff Richard Barker, Jr. ("Barker"), Stacey Barker's husband, was the primary beneficiary under the policy. Jackson National ultimately refused to pay the proceeds of the policy, contending inter alia, that Stacey Barker had been killed by Richard Barker. Barker filed this lawsuit seeking the proceeds of the policy.
The plaintiff states that as part of the Bay County Sheriff Department's investigation of Stacey Barker's death, law enforcement officials requested that Barker submit to a polygraph examination. Initially, Barker declined to be examined by law enforcement officials. However, his then-attorney arranged for Frank Chamberlain, a polygraph examiner in Pensacola, Florida, to test Barker. Chamberlain administered two polygraph examinations to Barker. When the Florida Department of Law Enforcement ("F.D.L.E.") refused to accept Chamberlain's results, Barker agreed to be tested by Ray Fredericks, a polygraph examiner employed by the F.D.L.E. Barker contends that Jackson National promised to pay him the policy benefits if he passed the F.D.L.E. polygraph. Jackson National denies this contention. Barker seeks to have the results of the three polygraphs admitted into evidence at the trial on this matter. Jackson National opposes the admission of the test results.
There is ambiguity in Barker's memorandum about which polygraph examination Jackson National requested Barker to take. The plaintiff asserts on page 2 of his memorandum that Exhibit "A," a letter to Barker from Lori Fox, a Jackson National representative, asks Barker to take the test requested by the "Chief Investigator" for the Bay County Sheriff Department. It does not. It references a request by Jackson National that Barker be tested, and notes that he has failed to telephone the insurer to tell them of his decision as he promised to do. If the polygraph examination requested by Jackson National is in some way related to the one requested by the Sheriff's Department, it is not apparent from Exhibit "A." Later in the memorandum, Barker seems to assert that it was the F.D.L.E. examination that Jackson National promised to rely upon. However, this discrepancy is not material to my decision.
II. Analysis
The standard for the admissibility of polygraph examination results in the Eleventh Circuit was announced in United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989) ( en banc). The majority of the sharply divided en banc court abrogated the traditional per se ban on the admissability of polygraph tests. Subsequent to Piccinonna, the results of polygraphic testing are admissible in two narrow circumstances.
The first rule governing admissibility of polygraph evidence is one easily applied. Polygraph expert testimony will be admissible in this circuit when both parties stipulate in advance as to the circumstances of the test and as to the scope of its admissibility. The stipulation as to circumstances must indicate that the parties agree on material matters such as the manner in which the test is conducted, the nature of the questions asked, and the identity of the examiner administering the test. The stipulation as to scope of admissibility must indicate the purpose or purposes for which the evidence will be introduced. Where the parties agree to both of these conditions in advance of the polygraph test, evidence of the test results is admissible.
The second situation in which polygraph evidence may be admitted is when used to impeach or corroborate the testimony of a witness at trial. Admission of polygraph evidence for these purposes is subject to three preliminary conditions. First, the party planning to use the evidence at trial must provide adequate notice to the opposing party that the expert testimony will be offered. Second, polygraph expert testimony by a party will be admissible only if the opposing party was given reasonable opportunity to have its own polygraph expert administer a test covering substantially the same questions. Failure to provide adequate notice or reasonable opportunity for the opposing side to administer its own test is proper grounds for the exclusion of the evidence.
Finally, whether used to corroborate or impeach, the admissibility of the polygraph administrator's testimony will be governed by the Federal Rules of Evidence for the admissibility of corroboration or impeachment testimony. For example, Rule 608 limits the use of opinion or reputation evidence to establish the credibility of a witness in the following way: "[E]vidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." Thus, evidence that a witness passed a polygraph examination, used to corroborate that witness's in-court testimony, would not be admissible under Rule 608 unless or until the credibility of that witness were first attacked. Even where the above three conditions are met, admission of polygraph evidence for impeachment or corroboration purposes is left entirely to the discretion of the trial judge.
885 F.2d at 1536.
Surprisingly, in the six years since
Piccinonna, the Eleventh Circuit appears not to have had opportunity to elaborate on the decision, other than to decide that it was not to be applied retroactively.
United States v. Ramos, 933 F.2d 968, 969 (11th Cir. 1991),
cert. denied, 503 U.S. 908, 112 S.Ct. 1269, 117 L.Ed.2d 496 (1992);
United States v. Edwards, 968 F.2d 1148, 1151 (11th Cir. 1992);
cert. denied, ___ U.S. ___,
113 S.Ct. 1006, 122 L.Ed.2d 155 (1993).
On remand, the trial court found that the poly-graph results were not sufficiently probative to be admissible. United States v. Piccinonna, 729 F. Supp. 1336, 1337 (S.D.Fla. 1990), aff'd without op., 925 F.2d 1474 (11th Cir. 1991).
First, Barker contends that Jackson National has "arguably stipulated" to the admissability of the results. I do not agree. Even if I credit the plaintiff's assertion that Jackson National promised to pay Barker the proceeds if he passed a polygraph, there is no contention that Jackson National agreed, prior to the examination, that the results would be admissible. Certainly, there is no indication that Jackson National and Barker agreed on either the material terms or the scope of admissibility. Indeed, it is undisputed that the two examinations by Chamberlain, including the selection of the examiner, were totally controlled by Barker. Clearly, there has been no stipulation to the admissibility of the polygraph results.
If the polygraph results are admissible, it must be under Piccinonna's second category, to corroborate Barker's trial testimony. It is undisputed that both polygraphers were listed as expert witnesses by Barker, and Jackson National has apparently not requested that Barker be separately examined by its expert. Therefore, the first and second prongs of the Piccinonna test have been met. The third prong limits the admissibility of polygraph results to corroboration or impeachment of a trial witness's testimony. Barker seems to suggest that the status of Jackson National's defense that Barker murdered his wife meets this prong. It may, but only if Richard Barker, Jr., chooses to testify that he did not kill his wife, and Jackson National then attacks the credibility of that testimony.
Assuming that Barker does testify at trial, and that the defendant attacks his truthfulness, the polygraph results would become admissible in the discretion of the court. Jackson National has filed the opinion of its polygraph expert, Warren Holmes. However, although the plaintiff was aware that I would rule on the admissibility of the results, he has not filed a copy of the results, the qualifications of the examiners, or any other evidentiary materials relating to the trustworthiness of the results.
First, I consider the admissibility of the results of the two examinations conducted by Chamberlain. Barker's memorandum is silent as to what qualifications, if any, Chamberlain has as a polygrapher. I have found no reported case in the Eleventh Circuit dealing with the admissibility of a unilateral polygraph result. However, the Sixth Circuit considered the issue in Conti v. Comm. of Internal Revenue, 39 F.3d 658 (6th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1793, 131 L.Ed.2d 722 (1995). There, a taxpayer arranged for a polygraph examination by an examiner of his choosing. The Sixth Circuit affirmed the trial court's decision not to admit the results of the test. 39 F.3d at 663. See also Wolfel v. Holbrook, 823 F.2d 970, 973-75 (6th Cir. 1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1035, 98 L.Ed.2d 999 (1988); Barnier v. Szentmiklosi, 810 F.2d 594, 597 (6th Cir. 1987) (both holding unilateral polygraph tests are "almost never" admissible).
Jackson National has filed the report of its expert challenging the reliability of Chamberlain's methodology and results.
In this case, Barker initially refused to be examined by an independent examiner, and arranged for the two examinations by Chamberlain. It is undisputed that the F.D.L.E. would not accept his results. I agree with the Sixth Circuit's decision in Conti, that the results of a polygraph unilaterally arranged by one party should ordinarily not be admissible.
The plaintiff has not included any indication of Frederick's qualifications as a polygrapher. The burden is on the party seeking to admit the polygraph results to make a proffer of the polygraph examiner's qualifications and the procedures and circumstances surrounding the administration of the examinations. United States v. One Parcel of Real Estate at 298 N.W. 45th Street, Boca Raton, Florida, 804 F. Supp. 319, 322 (S.D.Fla. 1992), aff'd without op., 12 F.3d 218 (11th Cir. 1993). Although aware that the admissibility of the polygraph results would be determined in this ruling, the plaintiff neither made such a proffer, or stated that he would be able to do so at trial. However, I will assume that, at trial, Barker can lay an adequate foundation for his testimony. I defer ruling until that time.
DONE AND ORDERED.