Free Motion in Limine - 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. ) ) ) ) ) ) ) ) ) )

98-168C, 02-1632C, 03-2699C (Judge Allegra)

Nos.

DEFENDANT'S MOTION IN LIMINE TO EXCLUDE FROM THE OCTOBER 7, 2004 EVIDENTIARY HEARING TESTIMONY AND OTHER EVIDENCE REGARDING A POLYGRAPH EXAM OF DEBRA REESE Defendant, the United States, respectfully requests that the Court exclude, from the evidentiary hearing that the Court has scheduled for October 7, 2004, any testimony and other evidence regarding a polygraph exam of Debra Reese. The witness and

exhibit list that plaintiff, North Star Alaska Housing Corp., filed on September 30, 2004, indicates that North Star intends to call Ricardo Hernandez. North Star describes Mr. Reese as a

polygraph examiner who will testify "about the polygraph exam he administered to Debra Reese," whom the list describes as a witness to document shredding. The list also indicates that

North Star intends to introduce, as evidence, Mr. Hernandez's curriculum vitae and a polygraph analysis of Ms. Reese. We have found no rule controlling upon this Court that excludes, per se, evidence regarding a polygraph exam. And there

is, apparently, disagreement among state and Federal courts concerning the admissibility of such evidence. v. Scheffer, 523 U.S. 303, 310-11 (1998). See United States

In order to determine

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whether polygraph evidence is admissible, however, a trial court must make an initial determination whether the evidence constitutes scientific knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue. See United States v. Cordoba, 194 F.3d 1053, 1056-57, 1063 (9th Cir. 1999) (affirming district court's finding that polygraph exam was inadmissible, and citing and quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)); see also Scheffer, 523 U.S. at 317 n.13 ("the evidence introduced is the expert opinion testimony of the polygrapher about whether the subject was truthful or deceptive in answering questions . . ."). In ascertaining whether proposed testimony is "scientific knowledge," trial judges first must determine if the underlying theory or technique is based on a testable scientific hypothesis, whether others in the scientific community have critiqued the proposed concept and whether such critiques have been published in peer-review journals. Daubert). Cordoba, 194 F.3d at 1056-57 (citing

Trial judges should also consider the "known or

potential error rate," whether standards to control the technique's operation exist, and whether the relevant scientific community accepts the technique. Id. at 1057. Lastly, the trial

court is to appraise whether the relevant scientific community accepts the technique. Id. In United States v. Cordoba, a

district court conducting that "particularized factual inquiry"

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regarding polygraph evidence "held a two day evidentiary hearing, received extensive briefing, and reviewed numerous affidavits and reports supplied by the parties." Id. at 1056.

North Star has the burden of coming forward with evidence from which the Court could determine that Mr. Hernandez will testify to scientific knowledge. See Maryland Cas. Co.

v. Therm-O-Disc, Inc., 137 F.3d 780, 782-83 (4th Cir. 1998). North Star's witness and exhibit list, however, does not indicate that any witness or exhibit will address that issue. Because

North Star, apparently, does not intend to come forward with evidence from which the Court could determine that Mr. Hernandez's testimony regarding Ms. Reese's polygraph exam will constitute scientific knowledge, the Court should exclude Mr. Hernandez's testimony. Because the Court should exclude Mr.

Hernandez's testimony, it should exclude his curriculum vitae, as irrelevant. And the Court should exclude the polygraph analysis

itself because that is "[t]he raw results of a polygraph exam--the subject's pulse, respiration, and perspiration rates," which "may be factual data . . . [but not] 'facts'" about what Ms. Reese allegedly witnessed. n.13. For the foregoing reasons, we request that the Court grant this motion and exclude from the October 7, 2004 hearing any testimony or other evidence regarding a polygraph exam of Debra See Scheffer, 523 U.S. at 317

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Reese.

Because the hearing is scheduled to take place in six

days, we request expedited consideration of this motion. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director

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

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

October 1, 2004

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Certificate of Filing I hereby certify that on October 1, 2004, a copy of the foregoing Defendant's Motion in Limine To Exclude From The October 7, 2004 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. system. s/Donald E. Kinner Parties may access this filing through the Court's