The opinion of the court was delivered by: Robert N. Scola, Jr.united States District Judge
ORDER DENYING MOTION TO ADMIT POLYGRAPH EVIDENCE
THIS MATTER is before the Court on Defendant Stanislav Pavlenko's Motion In Limine to Admit Polygraph Evidence [ECF No. 532]. On February 15, 2012, the Court held a preliminary conference and hearing to determine if Defendant should be given an evidentiary hearing concerning the admissibility of his polygraph examination evidence at trial. After careful consideration of the parties' written submissions and their oral arguments, the Court concludes that an evidentiary hearing would not be helpful and, further, that the Motion to Admit Polygraph Evidence should be denied.
On August 30, 2011, Defendant obtained a polygraph examination from Richard W. Keifer, a purported "leading" polygraph expert who was formerly Chief of the FBI's Polygraph Unit in Washington, D.C. See Mot. at 3-4. Keifer examined Defendant and produced a report of the results on August 31, 2011. Defendant represents that Keifer asked a series of case-relevant questions and measured Defendant's responses using "generally accepted polygraph charting evaluated in accordance with scoring techniques adopted and taught by the United States Government." See id. at 5. The examination questions were, according to Defendant, designed to address "the most fundamental aspects" of the Government's case against him. See id. Keifer purportedly concluded that there was no deception in any of Defendant's responses to the questions posed.
Defendant asserts that he will take the stand at trial, and he seeks to admit Keifer's polygraph examination report in order to rebut what he anticipates to be "the [G]overnment's inevitable attacks" against him when he testifies. Defendant would introduce the polygraph results into evidence to "support and corroborate [his] position and contemplated testimony that he did not have the requisite guilty knowledge or criminal intent to join a conspiracy with anyone to perpetrate frauds upon any patron of the Caviar Bar." See id. at 3. Defendant also claims that the polygraph evidence supports and corroborates his lack of knowledge "that other individuals, working at Caviar Bar, were engaging in fraudulent techniques or practices so as to financially victimize Caviar Bar patrons." See id.
The Court held a preliminary conference and hearing on February 15, 2012 to determine whether it would be appropriate to hold an evidentiary hearing, to include a possible Daubert*fn1 inquiry, on the admissibility of Defendant's polygraph evidence. At the preliminary conference and hearing, counsel for Defendant was unable to articulate or explain how he intended to satisfy the Daubert requirements if an evidentiary hearing were held. Nor was counsel otherwise able to explain why an evidentiary hearing was justified.
"Opinions based on polygraph examinations are seldom, if ever, admissible into evidence." Norelus v. Denny's, Inc., 628 F.3d 1270, 1284 (11th Cir. 2010). In fact, at one time, polygraph evidence was per se inadmissible in this Circuit. See United States v. Gilliard, 133 F.3d 809, 812 (11th Cir. 1998). In United States v. Piccinonna, 885 F.2d 1529, 1536 (11th Cir. 1989), however, the Eleventh Circuit sitting en banc ruled that polygraph evidence may be admitted in two discrete situations: when the parties stipulate in advance as to the circumstances of the polygraph test and the scope of its admissibility, or when used to corroborate or impeach the testimony of a witness at trial. While Piccinonna did away with the per se ban on admissibility, it did not in any way limit the trial court's discretion to exclude polygraph evidence "on other grounds under the Federal Rules of Evidence." See id.; see also United States v. Carroll, 2012 WL 89953, at *2 (11th Cir. Jan. 12, 2012) (finding "it was within the district court's discretion to exclude the polygraph evidence as unreliable under Fed. R. Evid. 702 and unduly prejudicial under Fed. R. Evid. 403").
Notably, Piccinonna was decided prior to the Supreme Court's decision in Daubert, when the Frye*fn2 test still governed the admissibility of expert opinions. See Piccinonna, 885 F.2d at 1536 (holding only that "the Frye general acceptance test does not act as a bar to admission of polygraph evidence as a matter of law"). Since Daubert, several district courts in this Circuit have analyzed the admissibility of polygraph evidence under the now-governingstandard and have excluded such evidence under Federal Rule of Evidence 702. See, e.g., United States v. Arthur, 2011 WL 3844090, at *4 (S.D. Fla. Aug. 29, 2011); Hiscox Dedicated Corporate Member, Ltd v. Matrix Group Ltd., Inc., 2011 WL 2148088, at *2 (M.D. Fla. May 31, 2011); see also United States v. Derosa, 2011 WL 742655, at *1 (S.D. Fla. Feb. 23, 2011); United States v. Loaiza-Clavijo, 2012 WL 529981, at *3 (N.D. Ga. Jan. 25, 2012), report and recommendation adopted by 2012 WL 529975 (N.D. Ga. Feb. 17, 2012). In addition, the Eleventh Circuit has affirmed a trial court's determination that polygraph evidence fails Daubert scrutiny and is unreliable, not scientific, and not sufficiently relevant under Rule 702. See United States v. Henderson, 409 F.3d 1293, 1302-03 (11th Cir. 2005).
Focusing on the significant leeway and discretion afforded district judges to exclude expert polygraph evidence, the Eleventh Circuit said in 2005 that "we have yet to hold that exclusion of polygraph evidence at trial was an abuse of discretion under Piccinonna." See Henderson, 409 F.3d at 1303. More recently, in 2010, the Court of Appeals reaffirmed this proposition. See Norelus, 628 F.3d at 1284 ("We have never held that it is an abuse of discretion to exclude the opinion of a polygraph examiner.").
Based upon thoughtful consideration of the arguments made during the preliminary hearing and after careful review of the parties' written submissions, the Court concludes that an evidentiary hearing on the admissibility of Defendant's polygraph evidence is neither necessary nor justified in this case. In addition, the Court finds that such evidence is not admissible at trial.
In Henderson, the Eleventh Circuit affirmed the trial court's determination that polygraph evidence was not admissible under Daubert. Significantly, the trial court's findings were not wholly based upon case-specific deficiencies in the polygraph test at issue; rather, they mostly concerned the problematic nature of the "science" of polygraphy itself:
First, [the magistrate judge] found that the theories of polygraphy at issue could not adequately be tested. Polygraphs monitor the subject's physical responses to questioning. An examiner then interprets the physiological data and opines about whether the subject was lying. The magistrate concluded that while the physical responses recorded by a polygraph machine may be tested, "there is no available data to prove that those specific responses are attributable to lying." Second, she remarked that the error rate for polygraph testing "is not much more reliable than random chance and does not meet the stricter standards of scientific methods required by Rule 702 and Daubert." Third, she noted that despite the presence of standards regulating polygraphers, all compliance is self-imposed, and that effective countermeasures existed to defeat accurate results. Finally, she determined that polygraphy did not enjoy general acceptance from the scientific community, relying both on ...