*Honorable John H. Moore, II, Senior U.S. District Judge for the Middle District of Florida, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 96-9459

________________________ D. C. Docket No. CR196-19-01 UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus FRED EMERSON GILLIARD, Defendant-Appellant.

________________________ Appeal from the United States District Court for the Southern District of Georgia

_________________________ (January 21, 1998) Before ANDERSON and BLACK, Circuit Judges, and MOORE * ,Senior District Judge. BLACK, Circuit Judge:1 Gilliard also submitted to an earlier polygra ph examination on August 12, 1995, apparently in an attempt to avoid indictment. The district court’s exclusion of evidence pertaining to that earlier polygraph is not at issue here.
2 The sole issue in this appeal is whethe r the district court erred when it excluded evidence of a polygraph examination o ffered into evidence by Appellant Fred Emerson Gilliard. The district court ex cluded the polygraph evidence under Fed. R. Evid. 702 and, alternatively, under Fed. R. Evid. 403. Gilliard contends that the district court’s ruling constituted an abuse of discretion. We hold that the district court did not abuse its discre tion, and affirm the judgment entered by the district court.
I. BACKGROUND On March 8, 1996, a grand jury indi cted Gilliard on 100 counts of submitting false claims to Medicare and Medicaid, in violation of 18 U.S.C. § 287, while he was chief executive officer of Penn-Teck Di agnostics, Inc. (Penn-Teck); 1 count of obstructing justice in violation of 18 U.S .C. § 1503 by influencing a witness to make false statements pertaining to the Medi care and Medicaid claim submissions; and 1 count of making false declarations to a grand jury in violation of 18 U.S.C. § 1623. On June 24, 1996, Gilliard submitted to a polygraph examination administered by Charles R. Honts, Ph.D. (the Honts Polygraph). 1 Dr. Honts is an associate professor of psychology at Boise State University whose training is in3 psychophysiology, the science of how th e mind and body interact. The Honts Polygraph consisted of four relevant questions: 1. While you were employed by Penn-Teck, did you develop a scheme designed to defra ud Medicare or Medicaid through the use of incorrect billing codes? 2. When the incorrect billings were filed with Medicare or Medicaid, did you know that they were incorrect? 3. While you were employed by Penn-Teck, did you deliberately cause incorrect billings to be filed with Medicare or Medicaid? 4. To the best of your knowledge , were the incorrect billings to Medicare and Medicaid made unintentionally? Gilliard denied any wrongdoing. Dr. Honts scored the examination using two different methods, and conclude d that the results indicated that Gilliard was not being deceptive when he answered the relevant questions. G illiard notified the Government of the results of the Hont s Polygraph. The Governme nt never conducted its own polygraph examination of Gilliard, but instead moved for the exclusion of the Honts Polygraph evidence. On July 11, 1996, the magistrate judge held an evidentiary hearing, and on August 14, 1996, he issued an order holding the Honts Polygraph evidence to be admissible. The Government appealed that ruling to the district court. The district court recognized that under this Court's en banc decision in United States v.4 Piccinonna , 885 F.2d 1529 (11th Cir. 1989), polygraph evidence is no longer per se inadmissible. After performing the analysis required by our holding in Piccinonna , the district court sustained the Governme nt’s objection and held that the Honts Polygraph evidence was inadmissible under Fe d. R. Evid. 702, as well as under Fed. R. Evid. 403. The jury convicted Gilliard on all 102 count s of the indictment, and the district court sentenced Gilliard to imprisonment. Gilliard now appeals the exclusion of the Honts Polygraph evidence

. II. ANALYSIS Prior to this Court's en banc decision in Piccinonna , polygraph evidence was per se inadmissible in this Circuit. Piccinonna , 885 F.2d at 1531-32. In Piccinonna , however, this Court conclude d that the per se rule was unwarranted in light of the advances that had been made in the fiel d of polygraphy and the lack of evidence that juries are unduly swayed by polygraph evidence. Id. at 1535. Specifically, we held that a district court can admit polygraph ev idence in two circumstances: (1) when the parties stipulate in advance as to the circum stances of the test and as to the scope of its admissibility; and (2) to impeach or corr oborate the testimony of a witness at trial. Id. at 1536. We were careful to note, howev er, that neither modification to the per se exclusionary rule “preempt[s] or limit[s] in any way the trial court’s discretion to2 The Government raised before the district c ourt, and again raises before this Court, the argument that the Honts Polygraph evidence is not admissible as corroboration testimony under Fed.
5 exclude polygraph expert testimony on other grounds under the Federal Rules of Evidence.” Id. As the parties did not stipulate to th e circumstances and admissibility of the Honts Polygraph, the issue here is whet her the Honts Polygraph evidence should have been admitted to corroborate Gilliard’s trial testimony. There are three prerequisites to the admission of polygraph evidence fo r the purpose of corroborating the trial testimony of a witness: (1) “the party planning to use the evidence at trial must provide adequate notice to the opposing party that the expert testimony will be offered;” (2) the opposing party must be given a “reasonable opportunity to have its own polygraph expert administer a test c overing substantially the same questions;” and (3) the polygraph administrator's tes timony must be admissible under the Federal Rules of Evidence governing the admissibility of corroboration testimony. Id. Again, however, even if a party satisfies these prer equisites, a district court can exercise its discretion to exclude the polygraph evidence under other applicable rules of evidence. Id. In this case, the district court assu med that Gilliard satisfied the three prerequisites to the admission of the polygraph testimony for the purpose of corroborating Gilliard’s trial testimony. 2 The court concluded, however, that theR. Evid. 608. We hold that the district court’ s ruling based on Rule 702 and Rule 403 was correct, and therefore do not address the Government’s Rule 608 argument. 6 evidence was not admissible expert testimony under Fed. R. Evid. 702 and, alternatively, that the evidence was inadmissible under Fed. R. Evid. 403. A. Rule 702 1. Standard of Review A district court’s decision to admit or exclude expert te stimony under Rule 702 is reviewed for abuse of discretion. General Elec. Co. v. Joiner , __ U.S. __, __, 118 S. Ct. 512, 517 (1997).
2. Daubert v. Merrell Dow Pharmaceuticals, Inc.
In Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S. Ct. 2786 (1993), the Supreme Court set out a two-prong analysis for determining whether expert scientific testimony is admissible under Fed. R. Evid. 702: (1) whether the evidence constitutes scientific knowledge; and (2) whether the evidence is relevant,
i.e. , whether it would “assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. at 589-591, 113 S. Ct. at 2794- 96. Factors relevant to the determination of whether a technique constitutes scientific knowledge include: (1) whether the technique can be and has b een tested; (2) whether the technique “has been subjected to peer review and publi cation;” (3) “the known or potential rate of error;” (4) “the existence and maintenan ce of standards controlling the technique’s3 The information set forth in this opinion pertai ning to the various techniques that can be used to administer a polygraph examination is culled from the testimony presented to the magistrate judge. The parties do not dispute the general nature of the various techniques.
7 operation;” and (5) whether the technique ha s attained general acceptance within the relevant scientific community. Id. at 593-94, 113 S. Ct. at 2796-97. 3. Polygraph Techniques “[P]olygraphy is a developing and inexact science.” Piccinonna , 885 F.2d at 1535. Resolution of the issue presented inthis case requires an understanding of the various techniques that can be used to administer a polygraph examination. 3 a. Relevant/Irrelevant Technique One method of conducting a polygraph exam ination is the relevant/irrelevant technique, in which the examiner asks both questions that are relevant to the purpose of the test and questions that are irrelevantto the purpose of the test. In theory, an individual will have a unique re sponse associated with lyi ng. The relevant/irrelevant technique generally has been rej ected by the scientific community. b. Concealed or Guilty Knowledge Technique A second method of conducting a polygraph examination is the concealed or guilty knowledge technique. In this type of polygraph, an examiner tests the examinee's response to information that onl y the perpetrator of the crime would know. For example, if a ruby ring was stolen, th e examiner would ask: Did you steal a8 diamond ring? Did you steal a sapphire ring? Did you steal a ruby ring? In theory, a guilty individual will recognize the critical item, or question, and will show a psychophysiological response to that item. The difficulty with using this technique is that the examiner must be sure that the information tested ( i.e., that the stolen ring was a ruby ring) is not known generally and would not be known by the individual being tested unless he was the perpetrator of the crime. c. Control Question Techniques Most polygraph examiners employ a c ontrol question format in conducting polygraph examinations. At least three di fferent techniques fall within this general format. In a control question polygraph, the examiner generally asks questions relevant to the purpose of the examinati on and so-called control questions. The control questions address issues unrelat ed to the purpose of the examination. Depending on the particular t echnique used, the examinee w ill either be tricked into giving or directed to give a false answer to each control question. The premise underlying the control question format is that an innocent examinee will have a stronger physiological response to his false re sponses to the control questions than to his truthful answers to the relevant ques tions in which he denies wrongdoing, and that the reverse will be true for a guilty examinee. Three control question techniques are pertinent to this case. The first, and4 Although it is unclear what technique was used to conduct the polygraph examination in Piccinonna , the opinion and the studies cited in footnote 8 of that opinion strongly suggest that it was the probable lie control question technique. See, e.g., John A. Podlesny and David C. Raskin, Effectiveness of Techniques and Physiological Measures in the Detection of Deception , 15 Psychophysiology 344 (1978) (published laboratory study in which the probable lie control question technique and the guilty knowledge technique we re used; authors concluded that although the accuracy rates for the control question technique and the guilty knowledge technique were similar, the control question technique was the “current method of choice in criminal investigations” due to the limited applicability of the guilty knowledge technique); Gordon H. Barland and David C. Raskin, An Evaluation of Field Techni ques in Detection of Deception , 12 Psychophysiology 321 (1975) (published laboratory study involving th e probable lie control question technique). 9 apparently the most tested and most wide ly used, is called the probable lie control question technique. The Gove rnment concedes that this technique, if properly utilized, has been recognized in the scien tific community as being “good science.” 4 In administering a probable lie control question polygraph, the examiner asks the examinee a question that is designed to e licit a probable lie about a matter unrelated to the matter under investigation. For exam ple, the examiner mi ght ask an examinee whether he ever did anything illegal, dishone st, or immoral prior to the incident at issue. The examiner “tricks” the examinee into denying any such conduct by conducting a pretest interview of the examin ee such that during the examination the examinee will be too embarrassed to admit su ch conduct or will be unsure as to the truth of his answer. The premise is thatvirtually everyone has done something that could be considered to be ille gal, dishonest, or immoral. The second technique is th e directed lie control question technique. The directed lie control question technique invol ves the examiner instructing the examinee10 to give a false response to the control ques tions. In theory, the examinee will exhibit a physiological response to the control questions because the examiner has emphasized the questions by telling the examin ee that it is important that he responds appropriately when he lies. The third technique is a hybrid cont rol question technique, in which the examiner uses both probable lie and directedlie control questions. Dr. Honts used a hybrid control question technique in examining Gilliard. 4. The Honts Polygraph The polygraph examination that Dr. H onts administered to Gilliard consisted of four relevant questions, one probable lie control question, three irrelevant or neutral questions, and two directed lie control que stions. Before the polygraph examination, Dr. Honts discussed the questions with G illiard. During the course of the polygraph examination, Dr. Honts posed the questions to Gilliard in an order determined by the computerized polygraph machine. After Dr. Honts asked the questions one time through, he permitted Gilliard to take a break and he and Gilliard discussed the questions and Gilliard’s responses. Dr. H onts asked the questions a second time, and he again permitted Gilliard to take a break and he and Gilliard again discussed the questions and Gilliard’s responses. Dr. Hont s then asked the questions one final time.5 Two channels measured Gilliard’s respiration, one channel measured Gilliard’s galvanic skin response, one channel measured Gilliard’s blood pressure, and one chan nel measured Gilliard’s pulse.
11 In scoring the examination, Dr. Honts looked at Gilliard’s physiological responses to each relevant question in the five response areas measured by the polygraph machine, and compared those responses to the strongest control response for each of the five tested response areas. 5 5. Analysis of Daubert factors The evidence presented to the district court showed that the hybrid control question technique has been the subject of only one scientific study, a field study conducted by Dr. Honts and Pro fessor David Raskin that wa s published in 1988. This 1988 field study included 25 subjects, 13 of whom were innocent and 12 of whom were guilty. The guilt or innocence of the individuals was confirmed by confession (by either the individual or another individual), physical evidence, or recantation by the alleged victim. Dr. Honts testifie d that his field study showed the hybrid technique to be 100% accurate with resp ect to detecting innocent subjects and 92% accurate with respect to detecting guilty subjects. The Government, however, presented ev idence suggesting that the addition of directed lie control questions would skewthe results of a polygraph examination in favor of a guilty examinee. One of the G overnment’s experts, Dr. Stanley Abrams,12 testified that he performed a study in which he compared the probable lie control question technique to the directed lie c ontrol question technique. Dr. Abrams found that people appeared more truthful under the directed lie control question technique than under the probable lie control questi on technique, and has concluded that the directed lie control question technique is substantially less than 90% accurate. Dr. Abrams testified that although using th e directed lie cont rol question technique reduced the number of false positives, i.e. , innocent people appearing to be lying, it increased the number of false negatives, i.e. , guilty people appearing to be innocent. With respect to whether the hybrid t echnique has attained general acceptance within the relevant scientific community, Dr. Honts testified that the hybrid method is used by himself, Professor Raskin, the Arizona School of Polygraph, the Arizona State Police, and four other individual pol ygraphers. The Government, on the other hand, presented evidence thatthe hybrid technique is disfavored not only by the Government’s experts, but al so by federal government agenci es. Dr. Abrams testified that the Internal Revenue Service and th e Drug Enforcement Agency do not use the hybrid technique, and that according to the Department of Defense Polygraph Institute, none of the federal ag encies are able to use it. Considering the paucity of tests and published studies addressing the validity of the hybrid technique, and Gilliard’s failure to show that the hybrid technique has13 gained general acceptance within the relevant scientific community, the district court did not abuse its discretion in finding the H onts Polygraph evidence to be inadmissible under Fed. R. Evid. 702. Fu rthermore, due to the lack of corroboration by other studies and polygraphers, the district court did not err in declining to assign much weight to the rate of accuracy that Dr. Honts attributed to the hybrid technique. B. Rule 403 1. Standard of Review A district court’s decision to exclude evidence under Fed. R. Evid. 403 is reviewed for clear abuse of discretion. United States v. Taylor , 17 F.3d 333, 338 (11th Cir. 1994). A trial court may exclude othe rwise admissible evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” Fed. R. Evid. 403. “Expert evidence can be both powerful and quite misleading because of th e difficulty in evaluating it. Because of this risk, the judge in weighing possibl e prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.” Daubert , 509 U.S. at 595, 113 S. Ct. at 2798 (int ernal quotations and citation omitted). 2. Analysis Although the district court held that the Honts Polygraph evidence was not admissible under Fed. R. Evid. 702, the distri ct court also addre ssed the Government’s6 The district court also expressed concern about the scope of the questi ons that the Government could have asked had it conducted its own polygraph examination and the lack of a “need” for expert testimony in this “garden-variety” case.
14 argument that, assuming the evidence was admissible under Fed. R. Evid. 702, it should nonetheless be excluded under Fed. R. Evid. 403. In performing the Rule 403 analysis, the district court’s primary c oncerns centered around the amount of time it would have taken the partie s to present evidence pertaining to the Honts Polygraph, the fact that the questions posed to Gilliard during the Honts Polygraph did not address all counts in the indictment, and the fact that a Government representative was not present during the administration of the Honts Polygraph. 6 The district court concluded that the probative value of the Honts Polygraph evidence was substantially outweighed by the potential for unfair prej udice, confusion of the issues, and misleading the jury. The district court was concerned about the amount of time it would have taken the parties to present evid ence pertaining to the Honts Polygraph, and the way in which it would have affected the focus of the trial. Although the actual number of hours and minutes it would take to put on expert testim ony should not ordinarily be a controlling factor, a court may considerwhether the amount of time needed to present the evidence would sh ift the focus of a criminal trial from determining guilt or innocence to determining the validity of the scientific method at issue.15 In this case, the district court determ ined that the four-day trial would have taken an additional one-half to two days had both sides presented evidence pertaining to the Honts Polygraph. In light of th e degree to which the validity of the hybrid technique was disputed, it was not unreasonable for the district court to assume for purposes of its analysis that the time needed would have been at least one day. The district court did not err in concluding th at the devotion of so much time to the presentation of the Honts Polygraph eviden ce likely would have diverted the jury’s attention from the real issue in the case, thatof guilt or innocence, to the issue of the validity of polygraph evidence in general and the validity of the hybrid technique in particular. The district court also expressed co ncern about the fact that the Honts Polygraph addressed only the fa lse claims counts of the indi ctment. If the jurors heard one to two days of evidence on a polygraph examination pertaining to only one of the three categories of charges against Gilliard , they may have viewed the obstruction of justice and perjury charges as secondary innature. Moreover, the three categories of charges in this case were so in tertwined it is possible, if not probable, that if the jurors believed the Honts Polygraph evidence, they would have determined Gilliard also was not guilty of the obstruction of justice and perjury charges without looking at the evidence specifically addressing those two counts.16 The district court expressed further con cern with respect to the fact that a Government representative was not present during the administration of the Honts Polygraph. Although a party is not required to give an adverse party advance notice of, and the opportunity to be present at, a polygraph examination, the absence of such notice and opportunity may be a factor in determining whether admission of the polygraph evidence would unduly prejudice the adverse party. In this case, even though the Government had the opportunity to view a videotape of the Honts Polygraph examination, viewing a videotape is not the same as being present at the examination. The district court could r easonably have conclude d that the unilateral nature of the Honts Polygraph hindered th e Government’s ability to cross examine Gilliard’s experts and to have its own experts conduct an independent review of the Honts Polygraph results. Based on these considerations of the danger of unfair prejudice, confusion of the issues, and misleading the jury, we concl ude that the district court did not abuse its discretion in excluding the Honts Polygraph evidence under Fed. R. Evid. 403.17 III. CONCLUSION For the reasons set forth above, the distri ct court did not abuse its discretion in excluding the Honts Polygraph evidence unde r Fed. R. Evid. 702 or under Fed. R. Evid. 403.
AFFIRMED.