Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:98-cv-00168-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTH STAR ALASKA HOUSING CORP., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

Nos. 98-168C (Judge Allegra)

DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE FROM EMERGENCY EVIDENTIARY HEARING TESTIMONY AND OTHER EVIDENCE REGARDING A POLYGRAPH EXAM OF DEBRA REESE Defendant, the United States, respectfully submits this reply to the response of plaintiff, North Star Alaska Housing Corporation, to our request that the Court exclude any testimony and other evidence regarding a polygraph exam of Debra Reese from the upcoming emergency evidentiary hearing that had been scheduled for October 7, 2004. We have not argued that polygraph

evidence is subject to a per se rule of inadmissibility in this Court. Rather, we have argued that North Star has the burden of

coming forward with evidence from which the Court could determine that its polygrapher, Ricardo Hernandez, will testify to scientific knowledge. North Star, apparently, intends to rely upon the Mr. Hernandez himself for that evidence. However, North Star

does not demonstrate that Mr. Hernandez is competent to testify to the scientific theory underlying a polygraph test; that is, the scientific validity of the polygraph technique.

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In other cases, courts have heard from such witnesses. E.g., United States v. Galbreth, 908 F. Supp. 877, 882 (D. N. Mex. 1995) (hearing testimony from psychophysiologist upon scientific validity of polygraph technique); United States v. Crumby, 895 F. Supp. 1354, 1359 (D. Ariz. 1995) (hearing testimony from same psychophysiologist upon same subject). In

United States v. Galbreth, for example, the court held that in addition to proving that the specific examination was conducted properly by a competent examiner, the proponent of the proposed testimony must also establish "the scientific validity of the polygraph technique in the abstract . . . ." 882. The Galbreth court's consideration of the scientific validity of the polygraph technique included (1) whether the particular polygraph technique employed in that case can be and had been tested, (2) whether that technique had been subjected to peer review and publication, (3) the known or potential rate of error of that technique, (4) the existence and maintenance of standards controlling the technique's operation, and (5) the general acceptance in the relevant scientific community. 890-93. Id. at 908 F. Supp. at

The proponent of the polygraph evidence presented the

testimony of the polygraph examiner; but that examiner was also a specialist in the field of psychophysiology who testified

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regarding the scientific validity of the particular polygraph technique that he used to conduct the exam. Id.

Based upon that testimony, the court admitted the proffered polygraph evidence. Id. at 895. North Star, however, has not

indicated that Mr. Hernandez is competent to testify regarding the scientific validity of the particular polygraph technique that he used, but only that he will testify to the "reliability of polygraph evidence based upon his training and years of experience." Although North Star relies upon Ulmer v. State Farm

Fire & Casualty Company, 897 F. Supp. 299 (W.D. La. 1995), in which a court admitted polygraph evidence based only upon the testimony of a polygraph examiner, the testimony of a polygrapher, without more, is insufficient to establish the necessary foundation for the admissibility of scientific evidence. See United States v. Duque, 176 F.R.D. 691, 694 (N.D.

Ga. 1998), aff'd 199 F.3d 443 (11th Cir. 1999) (Table); United States v. Redschlag, 971 F. Supp. 1371, 1374-75 (D. Colo. 1997) (Borchers, Mag.); Jesionowski v. Beck, 955 F. Supp. 149, 150 (D. Mass. 1997) (Collings, Mag.). Milas v. United States, 42 Fed. Cl. 704 (1998), which North Star relies upon, is not to the contrary. There, a service

member argued that a Board for Correction of Naval Records had failed to properly consider exculpatory polygraph evidence by discounting its weight based upon a per se exclusionary rule that

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applied in courts-martial.

Id. at 714-15.

The question in

Milas, therefore, was whether it was appropriate to discount polygraph evidence that had been admitted into evidence, not whether polygraph evidence should be admitted in the absence of any foundation regarding its scientific validity. Finally, the requirement that a foundation for the admissibility of scientific evidence be established is not only a requirement that applies to jury cases. The requirement stems

from Rules 702 and 104(a) of the Federal Rules of Evidence, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 58993 (1993), which this Court has applied to its own cases. E.g.,

Globe Savings Bank, F.S.B. v. United States, 61 Fed. Cl. 91, 99 (2004) ("Rule 702 requires a preliminary determination, pursuant to Fed. R. Evid. 104(a), that the proffered expert testimony is both reliable and relevant."); Cuyahoga Metro. Hous. Auth. v. United States, 60 Fed. Cl. 481, 484 (2004) (holding that proffered witness's testimony could "only be offered through a qualified expert under Rule 702."). For the foregoing reasons, and those set forth in our motion in limine, we request that the Court grant this motion and exclude from the evidentiary hearing any testimony or other evidence regarding a polygraph exam of Debra Reese. Because the

Court has indicated that the hearing will be held on November 12, 2004.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director s/Donald E. Kinner DONALD E. KINNER Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 305-7561 Facsimile: (202) 305-7644 Attorneys for Defendant

OF COUNSEL WILLIAM. M. EDWARDS Assistant District Counsel United States Army Corps of Engineers Alaska District

October 29, 2004

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Certificate of Filing I hereby certify that on October 29, 2004, a copy of the foregoing "Defendant's Reply To Plaintiff's Response To Defendant's Motion In Limine To Exclude From Emergency Evidentiary Hearing Testimony And Other Evidence Regarding A Polygraph Exam Of Debra Reese" was filed electronically. I

understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. may access this filing through the Court's system. Parties

s/Donald E. Kinner