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THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

 )

) 

Plaintiff, )

)

v. ) Civil Action No.

) 02-C-3310

PETER ROGAN, )

) Judge John W. Darrah

)

Defendant. )

UNITED STATES' MOTION IN LIMINE TO EXCLUDE ANY EVIDENCE,

ARGUMENT, OR OTHER REFERENCE TO POLYGRAPH TESTING

The United States respectfully moves this Court in limine, pursuant to Federal Rules of

Evidence 403 and 702, to exclude from trial of this case any evidence, argument, or other

reference to polygraph testing, including defendant Peter Rogan’s two proposed exhibits

pertaining to this subject. This evidence should be excluded because it is unfairly prejudicial

and unreliable.

In his exhibit list, defendant Rogan listed two polygraph reports pertaining to a witness

whom the United States intends to call at trial. The United States objected to the introduction of

those exhibits, and files this motion to ensure that neither the exhibits, nor any other evidence

concerning polygraph examinations, are admitted at trial. 

Case: 1:02-cv-03310 Document #: 163 Filed: 03/15/06 Page 1 of 8 PageID #:1800
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ARGUMENT

The Court should exclude any evidence, argument, or other reference to polygraph

testing under Fed. R. Evid. 403 due to its well-known unreliability and the significant likelihood

that the introduction of such evidence will cause unfair prejudice. In addition, such evidence

cannot be substantiated without expert testimony, and defendant Rogan has never identified an

expert witness qualified under the standards set forth in Fed. R. Evid. 702 to substantiate the

polygraph evidence. 

A. Polygraph Evidence Is Known To Be Unreliable And Is Typically Excluded

Any evidence, argument, or other reference to polygraph testing should be excluded from

trial because of the well-known unreliability of polygraph exams. The Supreme Court itself has

noted that "there is simply no consensus that polygraph evidence is reliable. To this day, the

scientific community remains extremely polarized about the reliability of polygraph techniques." 

United States v. Scheffer, 523 U.S. 303, 309 (1998).

Though the admissibility of polygraph evidence in the Seventh Circuit is left to the

"discretion of the district court," United States v. Robbins, 197 F.3d 829, 844 (7th Cir. 1999), the

critical factors to be considered weigh heavily against admission. Those factors include

"probative value, prejudicial effect, confusion of the issues, . . . and undue delay." United States

v. Olson, 978 F.2d 1472, 1480 (7th Cir. 1992) (affirming district court decision to exclude

polygraph evidence); Fed. R. Evid. 403. The reliability of the particular polygraph examination

should be considered as part of the analysis. United States v. Lea, 249 F.3d 632, 640 (7th Cir.

2001) ("we posit that the factors outlined by the Supreme Court in Daubert remain a useful tool

for gauging the reliability of the proffered testimony, as reliability may factor into a 403

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balancing test."). As the Seventh Circuit observed, "[a]s the reliability of the evidence decreases,

the likelihood increases that the probative value may be substantially outweighed by the

prejudicial effect.". United States v. Lea, 249 F.3d 632, 639 (7th Cir. 2001) . 

Concerns over reliability have prompted a number of state and federal jurisdictions to

eliminate polygraph evidence from trial altogether. Doubts about reliability have led the Fourth,

Fifth, and District of Columbia circuits to hold that polygraph evidence is never admissible. See

United States v. Sanchez, 118 F.3d 192 (4th Cir. 1997); United States v. Clark, 598 F.2d 994

(5th Cir. 1979); United States v. Skeens, 494 F.2d 1050 (D.C. Cir. 1974). Other circuits only

allow the admission of polygraph evidence upon the stipulation of both parties. See, e.g., United

States v. Britt, 917 F.2d 353 (8th Cir. 1990). Most state judiciary systems maintain "per se rules

excluding polygraph evidence," United States v. Scheffer, 523 U.S. at 311, and the Supreme

Court has recently noted that "state and federal courts continue to express doubt over whether

such evidence is reliable." Id.

The vast majority of published decisions in the Seventh Circuit regarding admissibility of

polygraph evidence feature cases where the district court used its discretion to exclude the

material. See, e.g., S.E.C. v. Saul, 1992 WL 3696, 6 (N.D. Ill. 1992) (reversing an earlier

decision to admit polygraph evidence "in light of . . . the evident potential for prejudice,

confusion, and waste of time and resources . . . . [T]he Court now finds polygraph evidence

inadmissible at trial to bolster or impeach the credibility of defendant"); Lea, 249 F.3d 632;

United States v. Dietrich, 854 F.2d 1056 (7th Cir. 1988) (affirming district court decision to

exclude polygraph evidence). The scant number of published district court decisions in the

Seventh Circuit actually admitting polygraph evidence in a federal proceeding generally deal

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with either post-trial proceedings, where guilt, innocence, or liability was not subject to

determination, United States v. Boyd, 833 F. Supp. 1277, 1298 (N.D. Ill. 1993), or admitted the

polygraph solely to show its effect on a party's subsequent actions. United States v. Bauer, 2000

WL 1720245, 8 (N.D. Ill. 2000) (holding that in the narrow circumstance when an "indictment

only refers to the polygraph evidence to show its effect on defendant's actions . . . the polygraph

evidence is admissible . . . ").

The Court should follow the majority of federal and state judicial decisions and exclude

the polygraph evidence because, as the Seventh Circuit recently noted, "the scientific community

remains skeptical and has grave doubts about the reliability of polygraph techniques." Veazey v.

Commc’ns and Cable of Chicago, Inc., 194 F.3d 850, 855 n.4 (7th Cir. 1999). Dozens of

published scientific studies seriously question the reliability of polygraphs exams in general, one

of which, as the Seventh Circuit recognized, referred to polygraph exams as no more reliable

than "simply flipping a coin." Veazey, 194 F.3d at 856, citing Frank Horvath, The Effect of

Selected Variables on Interpretation of Polygraph Records, 62 J. Applied Psychol. 127 (1977). 

A major study on the reliability of polygraph examinations recently published by the National

Research Council found "little basis for the expectation that a polygraph test could have

extremely high accuracy." Mark H. Moore (ed.), The Polygraph and Lie Detection (2003).

In sum, the unreliability of polygraph examinations and the strong weight of precedent

against admission support the exclusion of such evidence in this case.

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B. Polygraph Evidence Must Be Supported By Expert Testimony and Rogan

Cannot Present Such Testimony

Aside from the general doubts regarding polygraph examinations, Rogan is not capable

of verifying the reliability of the particular polygraph examinations listed on his exhibit list. The

results of polygraph tests, like the results of any other scientific study, require introduction by an

expert before they may be admitted in trial. Fed. R. Evid. 702; U.S. v. Lea, 249 F.3d at 637

(affirming a district court decision to exclude polygraph evidence because the administrator of

the test "could only speculate as to the accuracy of the polygraph examination he had performed,

and could not state whether there were any known statistics on the accuracy rate of the

methodology employed").

The Seventh Circuit in particular has been clear that polygraph examinations may be

subject to the same sorts of analyses that any other evidence under scientific study undergoes

when a court determines admissibility. Id. at 640. That analysis includes the gatekeeping test

enunciated in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The expert should be

able to testify (1) that the technique can and has been tested; (2) whether the technique has been

subjected to peer review; (3) the known or potential error rate of the technique; (4) the existence

and maintenance of standards controlling the technique's operation; and (5) whether the

technique has gained general acceptance in the scientific community. Id. at 593-95. Though a

full Daubert analysis is not necessary under Seventh Circuit case law (the Court may also

examine the evidence under a Rule 403 framework), these factors "remain a useful tool for

gauging the reliability [of polygraph exams]." Lea, 249 F.3d at 640.

Rogan's exhibit list does not include a single expert witness, much less one qualified to

comment on the reliability of the listed polygraph examinations. He has listed neither the

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1 Rogan has listed two FBI agents who participated in the criminal investigation of

Edgewater Hospital on his witness list. Neither agent, however, is a polygraph expert or

administrator, and cannot opine on the reliability of the polygraphs. 

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administrators of the examinations, nor any individual who would have any understanding of the

type of polygraph that was performed, or its error rate (if known).1 This void of evidence cannot

be filled because the deadline for listing expert witnesses, and allowing the opposing party

adequate time to depose, passed over 15 months ago. Rogan cannot present any evidence as to

whether the polygraph technique has been tested, subject to peer review, or whether it has gained

any support in the scientific community. In short, Rogan will not be able to present a single

witness qualified to even testify as to the reliability of the exams, much less persuade this Court

that, contrary to the vast weight of empirical evidence, these particular polygraph exams can be

trusted.

Under these circumstances, any evidence of polygraph exams should not be admitted

because the prejudicial effect of the unreliable exams would outweigh whatever slight probative

value the exams could offer.

CONCLUSION

For the aforementioned reasons, this Court should exclude from trial of this case any

evidence, argument, or other reference to polygraph testing.

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Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

PATRICK J. FITZGERALD

United States Attorney for the

Northern District of Illinois

LINDA WAWZENSKI

Assistant United States Attorney

219 South Dearborn Street

Chicago, IL 60604-1702

 Tel: 312 353 1994

 

Dated: March 15, 2006 /s/ Linda A. Wawzenski 

 MICHAEL F. HERTZ 

LAURIE A. OBEREMBT

JOHN K. NEAL

MICHAEL J. FRIEDMAN

Attorneys, Department of Justice

Civil Division

Post Office Box 261

Ben Franklin Station

Washington, DC 20044

Tel: (202) 514-0132

Fax: (202) 514-0280

Attorneys for United States of America

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CERTIFICATE OF SERVICE

The undersigned Assistant United States Attorney hereby certifies that the following

document:

UNITED STATES’ MOTION IN LIMINE TO EXCLUDE ANY EVIDENCE,

ARGUMENT, OR OTHER REFERENCE TO POLYGRAPH TESTING

was served on March 15, 2006, in accordance with FED.R.CIV. P. 5, LR5.5, and the General Order

on Electronic Case Filing pursuant to the district court’s Electronic Case Filing (ECF) system as to

ECF filers.

Neil Holmen, Esq.

Joseph Spiegler, Esq.

Winston & Strawn

35 W. Wacker Drive

Chicago, Illinois 60601

s/ Linda A. Wawzenski

 LINDA A. WAWZENSKI

 Assistant U.S. Attorney

 219 South Dearborn Street

 Chicago, Illinois 60604

(312)353-1994

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