U.S. v. Piccinonna

Page 1529

885 F.2d 1529

58 USLW 2234, 28 Fed. R. Evid. Serv. 1431

UNITED STATES of America, Plaintiff-Appellee, v. Julio PICCINONNA, Defendant-Appellant.

No. 86-5335.

United States Court of Appeals Eleventh Circuit.

Sept. 28, 1989.

James W. McDonald, Jr., McDonald & Erickson, P.A., Homestead, Fla., for defendant-appellant.

Dexter W. Lehtinen, U.S. Atty., Caroline Heck, Asst. U.S. Atty., Miami, Fla., John J. Powers, III and Laura Heiser, Dept. of Justice, Main Appellate Section, Washington, D.C., James Griffin, U.S. Dept. of Justice, Anti Trust Div., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, Chief Judge, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON and COX, Circuit Judges.

FAY, Circuit Judge:

In this case, we revisit the issue of the admissibility at trial of polygraph expert testimony and examination evidence. Julio Piccinonna appeals his conviction on two counts of knowingly making false material statements to a Grand Jury in violation of Title IV of the Organized Crime Control Act of 1970. 18 U.S.C. 1623 (1982). Piccinonna argues that the trial judge erred in refusing to admit the testimony of his polygraph expert and the examination results. Because of the significant progress made in the field of polygraph testing over the past forty years and its increasingly widespread use, we reexamine our per se rule of exclusion and fashion new principles to govern the admissibility of polygraph evidence. Accordingly, we remand the case to the trial court to reconsider the admissibility of Piccinonna's polygraph test results in light of the principles we espouse today.

I. Background

Julio Piccinonna has been in the waste disposal business in South Florida for over twenty-five years. In 1983, a Grand Jury conducted hearings to investigate antitrust violations in the garbage business. The government believed that South Florida firms in the waste disposal business had agreed not to compete for each other's accounts, and to compensate one another when one firm did not adhere to the agreement and took an account from another firm.

Piccinonna was compelled to testify before the Grand Jury pursuant to a grant of immunity. The immunity, however, did not protect Piccinonna from prosecution for perjury committed during his testimony. Piccinonna testified that he had not heard of the agreement between garbage companies to refrain from soliciting each other's accounts and to compensate each other for taking accounts. The Grand Jury, however, also heard testimony from several witnesses involved in the disposal industry who implicated Piccinonna in the garbage industry agreement. On August 1, 1985, Piccinonna was indicted on four counts of perjury.

Prior to trial, Piccinonna requested that the Government stipulate to the admission into evidence of the results of a polygraph test which would be administered subsequently. The Government refused to stipulate to the admission of any testimony regarding the polygraph test or its results. Despite the Government's refusal, George B. Slattery, a licensed polygraph examiner, tested Piccinonna on November 25, 1985. Piccinonna asserted that the expert's report left no doubt that he did not lie when he testified before the Grand Jury. (R1-38-2). On November 27, 1985, Piccinonna filed a motion with the district court requesting a hearing on the admission of the polygraph testimony. ¹ On January 6, 1986, the district court held a hearing on the defendant's motions. Due to the per se rule, which holds polygraph evidence inadmissible in this circuit, the trial judge refused to admit the evidence. The judge noted, however, that the Eleventh Circuit may wish to reconsider the issue of the admissibility of polygraph evidence since these tests have become much more widely used, particularly by the Government. Hence, the judge stated that if Piccinonna was convicted, the court would conduct a post-trial hearing to perfect the record for appeal.

Piccinonna was convicted on two counts of making false material declarations concerning a matter the Grand Jury was investigating. The court then conducted a hearing to perfect the record for appeal. At the hearing, the judge ordered the report of the polygraph examination and the complete transcript of the evidentiary hearing conducted in United States v. Irwin Freedman, No. 81-434-CR-ARONOVOTZ to become part of the record. On appeal, Piccinonna urges us to modify our per se rule excluding polygraph evidence to permit its admission in certain circumstances.

II. The Per Se Rule

In federal courts, the admissibility of expert testimony concerning scientific tests or findings is governed by Rule 702 of the Federal Rules of Evidence. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.

Fed.R.Evid. 702. Under this rule, to admit expert testimony the trial judge must determine that the expert testimony will be relevant ² and will be helpful to the trier of fact. ³ In addition, courts require the proponent of the testimony to show that the principle or technique is generally accepted in the scientific community. McCormick, McCormick on Evidence Sec. 203 (3rd ed.1984).

The general acceptance requirement originated in the 1923 case of Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). Frye involved a murder prosecution in which the trial court refused to admit results from a systolic blood pressure test, the precursor of the polygraph. The defendant appealed, arguing that the admissibility of the scientific test results should turn only on the traditional rules of relevancy and helpfulness to the trier of fact. The court of appeals disagreed and imposed the requirement that the area of specialty in which the court receives evidence must have achieved general acceptance in the scientific community. Id. 293 F. at 1014. The court stated that "while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. The court concluded that the systolic blood pressure test lacked the requisite "standing and scientific recognition among physiological and psychological authorities." Id.

Courts have applied the Frye standard to various types of scientific tests, including the polygraph. ⁴ However, the Frye standard has historically been invoked only selectively to other types of expert testimony, and has been applied consistently only in cases where the admissibility of polygraph evidence was at issue. See McCormick, Scientific Evidence: Defining a New Approach to Admissibility 67 Iowa L.Rev. 879, 884 (1982). ⁵ Most courts had little difficulty with the desirability of excluding polygraph evidence and thus, applied the Frye standard with little comment. Id. at 885. This circuit also has consistently reaffirmed with little discussion, the inadmissibility of polygraph evidence. United States v. Hilton, 772 F.2d 783, 785 (11th Cir.1985); United States v. Rodriguez, 765 F.2d 1546, 1558 (11th Cir.1985); cf. United States v. Beck, 729 F.2d 1329, 1332 (11th Cir.) (court implied that polygraph evidence may be admissible when the parties stipulate to its admissibility), cert. denied, 469 U.S. 981, 105 S.Ct. 383, 83 L.Ed.2d 318 (1984). Our position was derived from former Fifth Circuit precedent excluding polygraph evidence, which we adopted as law in this circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981). ⁶

Recently, the application of the Frye standard to exclude polygraph evidence has been subject to growing criticism. ⁷ Since the Frye decision, tremendous advances have been made in polygraph instrumentation and technique. ⁸ Better equipment is being used by more adequately trained polygraph administrators. Further, polygraph tests are used extensively by government agencies. Field investigative agencies such as the FBI, the Secret Service, military intelligence and law enforcement agencies use the polygraph. Thus, even under a strict adherence to the traditional Frye standard, we believe it is no longer accurate to state categorically that polygraph testing lacks general acceptance for use in all circumstances. For this reason, we find it appropriate to reexamine the per se exclusionary rule and institute a rule more in keeping with the progress made in the polygraph field.

III. Differing Approaches to Polygraph Admissibility

Courts excluding polygraph evidence typically rely on three grounds: 1) the unreliability of the polygraph test, ⁹ 2) the lack of standardization of polygraph procedure, ¹⁰ and 3) undue impact on the jury. ¹¹ Proponents of admitting polygraph evidence have attempted to rebut these concerns. With regard to unreliability, proponents stress the significant advances made in the field of polygraphy. ¹² Professor McCormick argues that the fears of unreliability "are not sufficient to warrant a rigid exclusionary rule. A great deal of lay testimony routinely admitted is at least as unreliable and inaccurate, and other forms of scientific evidence involve risks of instrumental or judgmental error." McCormick, supra, Sec. 206 at 629. Further, proponents argue that the lack of standardization is being addressed and will progressively be resolved as the polygraph establishes itself as a valid scientific test. Sevilla, Polygraph 1984: Behind the Closed Door of Admissibility, 16 U. West L.A.L.Rev. 5, 19 (1984). ¹³ Finally, proponents argue that there is no evidence that jurors are unduly influenced by polygraph evidence. Id....