PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4104

MARVEL JOHNSON PRINCE-OYIBO,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CR-01-438)

Argued: January 24, 2003

Decided: February 27, 2003

Before WILLIAMS and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge King wrote the opinion, in

which Judge Williams joined. Senior Judge Hamilton wrote a dissenting opinion. 

COUNSEL

ARGUED: Matthew Alan Wartel, BYNUM & JENKINS, P.L.L.C.,

Alexandria, Virginia, for Appellant. Eric David Edmondson, Special

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON

BRIEF: Paul J. McNulty, United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
OPINION

KING, Circuit Judge: 

Marvel Johnson Prince-Oyibo appeals his conviction on one count

of travel document fraud. Prior to trial, the Government moved in

limine to exclude both the results of Prince-Oyibo’s polygraph examination, and evidence that he suffered persecution as a Christian in his

predominantly Muslim home country of Nigeria. During the course of

the jury trial, the district court granted both portions of the Government’s motion, thereby excluding both the polygraph evidence and

the evidence of persecution. In his appeal, Prince-Oyibo asserts that

the evidentiary exclusions constitute reversible error. For the reasons

stated below, we disagree and affirm. 

I.

Prince-Oyibo arrived at Dulles International Airport after a flight

from Lagos, Nigeria, by way of Amsterdam, on October 26, 2001. At

border control, he presented his Nigerian passport, with an enclosed

United States non-immigrant B1/B2 tourist type visa foil stamp, to

Immigration and Naturalization Service Inspector Warren Blair.

Inspector Blair had reservations concerning the authenticity of the

visa and referred Prince-Oyibo to secondary inspection for further

investigation. The secondary inspector found additional problems

with the visa and determined that it was not genuine. 

On October 29, 2001, Prince-Oyibo was arrested and was charged

by criminal complaint with travel document fraud, to wit, that he "did

knowingly use, and attempt to use, a false, forged, counterfeited and

altered nonimmigrant visa . . . knowing it to be forged, counterfeited,

altered, and falsely made," in violation of 18 U.S.C. § 1546(a). On

November 27, 2001, a grand jury in the Eastern District of Virginia

returned an indictment charging Prince-Oyibo with the same offense

as the criminal complaint. 

During Prince-Oyibo’s January 30, 2002, jury trial, the Government presented the testimony of forensics examiner Lurline Trizna.

Examiner Trizna concluded that, while the passport was genuine and

2 UNITED STATES v. PRINCE-OYIBO
unaltered and the visa was genuine when issued, various subtle abnormalities indicated that the visa had subsequently been altered. At the

conclusion of Examiner Trizna’s testimony, the Government introduced a State Department document showing that Prince-Oyibo’s visa

foil had originally been issued to a Nigerian woman. 

At trial, Prince-Oyibo did not challenge the Government’s contention that his visa had been altered. Rather, his defense was that he

"never intended to get a fraudulent visa"; that his failure to realize the

visa had been altered was reasonable; and that his ignorance of the

proper procedure for obtaining a visa, coupled with his culture’s practice of "paying officials to do what they are supposed to do," prevented him from realizing that his visa was "counterfeit, altered,

falsely made or otherwise unlawfully obtained." 

Prince-Oyibo took the witness stand at trial to explain the circumstances surrounding his acquisition of the visa. This, he stated, was

the first time that he had ever needed a visa. Given his inexperience,

he accepted the offer of a friend, Tony Igberi, to assist him. Igberi

travelled with Prince-Oyibo to Lagos, where they went to the United

States embassy and met a man who appeared to be an embassy

employee. The purported embassy employee had previously been

given certain documentation (Prince-Oyibo’s passport, birth certificate, and bank statements), as well as US $2,045, all of which PrinceOyibo had brought with him to Lagos. Prince-Oyibo completed a visa

application and departed. 

Several weeks later, Prince-Oyibo returned to the embassy on the

appointed date to receive his visa. An embassy employee handed him

both his passport and what he believed to be a legitimate visa. PrinceOyibo testified that he did not notice any irregularities; nor was he

made suspicious by the fact that attainment of the visa had required

the payment of such a large sum: he was inexperienced with foreign

travel, and, in Nigeria, it is common to have to "tip" officials to do

their jobs in a timely fashion. Furthermore, when Prince-Oyibo

checked with two airlines (KLM and British Airways) concerning

flights to the United States, both airlines indicated that they had confirmed the visa. And when the visa was checked during the Amsterdam stopover of his KLM flight to Dulles, the visa was again

UNITED STATES v. PRINCE-OYIBO 3
confirmed. Thus, Prince-Oyibo testified, when he presented the visa

to Inspector Blair, he believed it to be legitimate. 

Prior to trial, Prince-Oyibo had taken and passed a polygraph

examination regarding whether he knew the visa to be false, altered,

counterfeit, or forged. The test, according to the retired FBI forensic

polygrapher who administered it, indicated that Prince-Oyibo was

truthful when he stated that he did not know that the visa was illegitimate. Before trial, the Government moved in limine to exclude this

opinion from evidence, citing our circuit’s per se rule that the results

of polygraph tests are inadmissible. On the day of trial, after hearing

argument on the Government’s motion to exclude Prince-Oyibo’s

polygraph evidence, the court granted the motion. 

Prince-Oyibo also hoped to present evidence showing that he was

a prominent Christian in Nigeria and that, as such, he faced persecution from his country’s Muslim majority. When asked during his

polygraph examination "Did you come to the U.S. as you were afraid

for your personal safety because of your religious beliefs?", the test

indicated that Prince-Oyibo’s affirmative answer was truthful. Prior

to trial, however, the Government had also moved in limine to

exclude all evidence relating to the defendant’s past or future persecution. At the start of Prince-Oyibo’s trial, the court withheld judgment

on the admissibility of the persecution evidence, in order to "wait and

see what you all present to see whether or not [it] becomes relevant."

Ultimately, the court found that the persecution evidence was irrelevant to the central issue in the case, that is, "whether [the defendant]

got a forged document and knew whether it was forged." Accordingly, the court granted the Government’s motion to exclude all evidence of past or future religious persecution. 

The sole issue before the jury was whether, "when the defendant

used [the] nonimmigrant visa, he knew it was counterfeit, altered,

falsely made or otherwise unlawfully obtained" and "did not act

because of ignorance, mistake, or accident."1 The jury convicted

Prince-Oyibo, and the court sentenced him to three months in prison

1The trial court rejected the prosecution’s "willful blindness" instruction on the ground that there was insufficient evidence to justify such an

instruction. 

4 UNITED STATES v. PRINCE-OYIBO
(which amounted to time already served); two years of supervised

release; a fine of $1,000; and a special assessment of $100. PrinceOyibo filed a timely notice of appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291. 

II.

We review rulings on the admissibility of scientific evidence, such

as polygraph test results, for abuse of discretion. United States v.

Ruhe, 191 F.3d 376, 387-88 (4th Cir. 1999). In so doing, we keep in

mind that "[a] district court by definition abuses its discretion when

it makes an error of law." United States v. Stitt, 250 F.3d 878, 896

(4th Cir. 2001) (internal quotation omitted). An abuse of discretion

standard also applies to evidentiary issues such as relevancy. United

States v. Ellis, 121 F.3d 908, 926 (4th Cir. 1997). 

III.

A.

Prince-Oyibo first contends that the district court’s exclusion of his

polygraph evidence constitutes reversible error. Though he recognizes

that we have previously held polygraph evidence per se inadmissible,

he maintains that recent advances in polygraph testing have rendered

it sufficiently reliable for admission under the standard enunciated by

the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993). The error is a reversible one, he maintains,

because the polygraph test results reached the critical issue in his

case, to wit, whether he was truthful when he stated that he did not

know that his visa was false, forged, counterfeit, or altered when he

presented it for inspection. 

Prior to Daubert, this circuit consistently maintained a per se rule

that the results of an accused’s or a witness’s polygraph test are not

admissible to bolster or undermine credibility.2See United States v.

2The qualification that polygraph evidence is per se inadmissible only

if offered "to bolster or undermine credibility" becomes clear through our

pre-Daubert, Council Oil case. There, the Government had offered

UNITED STATES v. PRINCE-OYIBO 5
Chambers, 985 F.2d 1263, 1270-71 (4th Cir. 1993); United States v.

A & S Council Oil Co., 947 F.2d 1128, 1134 (4th Cir. 1991); United

States v. Morrow, 731 F.2d 233, 238 (4th Cir. 1984) (describing polygraph evidence as "traditionally excluded"); see also United States v.

Porter, 821 F.2d 968, 974 (4th Cir. 1987) (holding that it is impermissible even to mention that a witness has taken a polygraph test);

United States v. Tedder, 801 F.2d 1437, 1444-45 (4th Cir. 1986)

(same). Absent an en banc overruling or a superseding contrary decision of the Supreme Court, we, as a circuit panel, are bound by these

precedents. Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 n.2

(4th Cir. 2002). The questions before us, then, are two: (1) Did Daubert work a change in the law governing the admissibility of expert

opinion testimony, such that the viability of per se rules barring

admission of polygraph evidence has been thrown into doubt? And,

if so, (2) have our post-Daubert precedents already resolved the matter by reestablishing this Circuit’s adherence to our longstanding per

se bar against polygraph evidence? We address these issues in turn.

1. The Impact of Daubert

The Federal Rules of Evidence provide that "[i]f 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. In Daubert, the Supreme Court made clear

that it is the duty of the trial court to perform the gatekeeping function

with respect to expert testimony: "the trial judge must ensure that any

and all scientific testimony or evidence admitted is not only relevant,

but reliable." 509 U.S. at 589 (emphasis added). 

expert testimony on the credibility of a key Government witness and the

trial court had refused to permit cross-examination of the expert concerning the results of a polygraph test taken by the Government witness. We

held that the polygraph results should have been admitted as an attack on

the basis of the expert’s opinion, although not as a direct attack on the

credibility of the Government witness himself. United States v. A & S

Council Oil Co., 947 F.2d 1128, 1135 (4th Cir. 1991). 

6 UNITED STATES v. PRINCE-OYIBO
The Daubert Court announced five factors that the trial court may

use in assessing the relevancy and reliability of proffered expert testimony: (1) whether the particular scientific theory "can be (and has

been) tested"; (2) whether the theory "has been subjected to peer

review and publication"; (3) the technique’s "known or potential rate

of error"; (4) the "existence and maintenance of standards controlling

the technique’s operation"; and (5) whether the technique has

achieved "general acceptance" in the relevant scientific or expert

community. Id. at 593-94. Rather than provide a definitive or exhaustive list, Daubert merely illustrates the types of factors that will "bear

on the inquiry." Id. at 593. The analysis must be "a flexible one." Id.

at 594; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,

141-42 (1999) (holding that testing of reliability should be flexible

and that Daubert’s five factors neither necessarily nor exclusively

apply to every expert). In short, Daubert requires that a trial court

give broad consideration to all of the various factors that may illuminate the reliability of proffered expert testimony. 

Our per se bar on the admission of polygraph evidence pre-dates

Daubert. We established our rule pursuant to the "Frye test," which,

until replaced by Daubert in 1993, was for decades the dominant standard governing the admissibility of scientific evidence. See Charles

Alan Wright & Victor James Gold, 29 Federal Practice and Procedure § 6266 (1997). Under Frye, scientific evidence was admissible

only if it was based on principles generally accepted as valid by the

relevant scientific community. See Frye v. United States, 293 F. 1013

(D.C. Cir. 1923). Though Daubert maintained "general acceptance"

as one of the relevant factors to weigh in the decision of whether to

admit proffered expert evidence, the Court held that the Federal Rules

of Evidence require that a district court ultimately resolve questions

of admissibility on the basis of a broader assessment of reliability.

Daubert, 509 U.S. at 589 ("Frye made ‘general acceptance’ the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of

Evidence, should not be applied in federal trials."). 

Several of our sister circuits have, in light of the 1993 Daubert

decision, reexamined the viability of their similar, pre-existing per se

rules against the admission of polygraph evidence. In particular, the

Fifth and Ninth Circuits have held that Daubert effectively overturned

UNITED STATES v. PRINCE-OYIBO 7
their respective per se bars. Both now leave the admission or exclusion of such evidence to the discretion of the district courts. See

United States v. Cordoba, 104 F.3d 225, 227-28 (9th Cir. 1997)

(remanding for district court determination of whether proffered evidence was admissible under Rules 702 and 403)3

; United States v.

Posado, 57 F.3d 428, 432-34 (5th Cir. 1995) (same)4; cf. United

States v. Messina, 131 F.3d 36, 42 (2d Cir. 1997) (noting, postDaubert, that Second Circuit has "not decided whether polygraphy

has reached a sufficient state of reliability to be admissible under Rule

702"). As the Fifth Circuit put it, "[a]fter Daubert, a per se rule is not

viable." Posado, 57 F.3d at 433. 

At the very least, by reserving the reliability assessment to the district courts, Daubert throws into doubt the viability of our per se rule

that the results of an accused’s or a witness’s polygraph test are inadmissible to bolster or undermine credibility. Under one possible interpretation of Daubert, the court below should give Prince-Oyibo the

opportunity to present evidence in support of his claim of polygraphy’s newfound reliability; and, if it is satisfied that polygraphy is

indeed today reliable (a matter on which we express no opinion), that

court should be free to admit the polygraph test results in evidence.

The question remains, however, whether we, as a three-judge panel,

are free to adopt such an interpretation today. We turn to that question

now. 

2. Our Intervening Decisions

This circuit has, subsequent to Daubert’s announcement of the

3On remand, the district court in Cordoba held that the proffered polygraph evidence was not admissible under Rule 702, or, alternatively, that

it was inadmissible under Rule 403. United States v. Cordoba, 991 F.

Supp. 1199, 1208 (C.D. Cal. 1998) (concluding that polygraph evidence

generally did not meet the reliability standards of Daubert, and noting

that, in any event, defects in the test at hand rendered the test inadmissible under Rule 403), aff’d, 194 F.3d 1053 (9th Cir. 1999). 

4After the Fifth Circuit’s remand in Posado, the district court held that

the proffered polygraph evidence was not admissible. As in Cordoba, the

district court relied, in the alternative, on Rules 702 and 403. United

States v. Ramirez, 1995 WL 918083 (S.D. Tex. Nov. 17, 1995). 

8 UNITED STATES v. PRINCE-OYIBO
new, multi-factored test for admissibility of expert testimony, continued to invoke its longstanding per se rule against the admission of

polygraph evidence. See Ruhe, 191 F.3d at 388 & n.9 (adhering to

"this circuit’s per se ban on polygraph evidence"); United States v.

Sanchez, 118 F.3d 192, 197 (4th Cir. 1997) ("The rule [that polygraph

evidence is never admissible to impeach the credibility of a witness]

remains . . . in this circuit . . . ."). However, in each instance, we have

also noted the change in the law effected by Daubert. In both Ruhe

and Sanchez, we suggested that it may be necessary to overturn our

longstanding per se rule against admissibility of polygraph evidence,

and that en banc consideration may not be required to do so. On the

basis of these suggestions, Prince-Oyibo contends that our postDaubert precedents have reserved, rather than resolved, the questions

of (1) whether Daubert requires that this Circuit change its position

on polygraph evidence, and (2) whether a mere panel is free (as panels of the Fifth and Ninth Circuits found themselves to be) to

announce that change. 

Our consideration of the impact of Daubert on this Circuit’s per se

ban against polygraph evidence is traceable to a suggestion raised in

United States v. Toth, 91 F.3d 136 (4th Cir. July 31, 1996) (unpublished). There, our unpublished, per curiam opinion noted the Fifth

Circuit’s decision that, due to the change in the law effected by Daubert, en banc consideration was not necessary to overturn that circuit’s per se rule against admissibility of polygraph evidence.

Nonetheless, we adhered to our pre-Daubert precedents and recited

the "rule in this Circuit . . . that evidence that an accused or a witness

has taken a polygraph test is inadmissible." Id. at **4. While we suggested that "we might be inclined to agree with the Fifth Circuit in

an appropriate case," we decided that it was "not necessary to reach

that issue in Toth’s case," because the trial court was within its discretion in excluding the evidence under Rule 403. Id. at **5. 

A year later, in Sanchez, we returned to the Toth suggestion, noting

that "we recently suggested that it is possible to change our prohibition against polygraph evidence without the approval of the en banc

court in light of [Daubert]." 118 F.3d at 197 n.3. Nonetheless, we

held in Sanchez that "[t]he rule [against polygraph evidence] remains

. . . in this circuit, and is binding upon us in this case . . . ." 118 F.3d

at 197. "[I]n any event," we continued, "we would find any error in

UNITED STATES v. PRINCE-OYIBO 9
excluding this evidence harmless as having no significant relevance

to any material issue going to [the defendant’s] guilt." Id.

In Ruhe, we again took note of the Toth suggestion "that a panel

could rely upon [Daubert] to alter the circuit’s law on polygraph evidence." 191 F.3d at 388 n.9. However, as in Toth itself, we adhered

in Ruhe to our per se bar, reasoning that the appellant had "not

advanced [the Toth] argument and we do not pass upon it." Id.

Although both Ruhe and Sanchez ultimately applied the per se bar,

it is nonetheless not immediately clear that either case forecloses the

possibility that we, as a panel, might act on the Toth suggestion and

rely on the Daubert change of law to alter our circuit’s precedent on

polygraph evidence: in Ruhe, the panel did not reject the Toth suggestion outright, but rather sidestepped the suggestion on the ground that

the appellant there had not raised it. By contrast, Prince-Oyibo has

advanced the Toth argument. And while Sanchez did come closer to

simply rejecting the Toth suggestion, it stopped short when it invoked,

in the alternative, the doctrine of harmless error. Again by contrast,

an error in excluding the polygraph evidence indicating that PrinceOyibo was telling the truth when he stated that he did not know his

visa to be false has significant relevance to a material issue going to

the defendant’s guilt. 

These distinctions notwithstanding, we conclude that, to the extent

that Daubert’s alteration of the legal landscape threw into doubt the

viability of our per se rule against polygraph evidence, Ruhe and Sanchez effectively resolved those doubts in favor of the rule. In each

case, we treated our pre-Daubert polygraph decisions as continuing

to carry precedential force. See Ruhe, 191 F.3d at 388 (holding that

"as a simple panel, we are bound by prior precedent" to adhere to the

per se ban (emphasis added)); Sanchez, 118 F.3d at 197 (holding that

the traditional rule that polygraph evidence is never admissible to

impeach the credibility of a witness "is binding upon us in this case"

(emphasis added)). In so doing, we effectively reaffirmed our per se

ban on polygraph evidence. Cf. United States v. Scheffer, 523 U.S.

303, 311 (1998) (citing our Sanchez decision for the proposition that

this circuit "has recently reaffirmed its per se ban" on polygraph evidence). 

10 UNITED STATES v. PRINCE-OYIBO
In sum, while we might otherwise be inclined to hold that Daubert

requires a more nuanced evaluation of polygraph evidence than that

dictated by the per se rule on which the district court relied, and that

the change in law effected by Daubert leaves a mere panel free to

acknowledge this requirement, our post-Daubert precedents foreclose

our abandonment today of this Circuit’s per se rule. Accordingly, we

conclude that only the en banc Court has the authority to consider

whether, "[a]fter Daubert, a per se rule is not viable." Posado, 57 F.3d

at 433. We affirm the district court’s exclusion — pursuant to our per

se rule, and with no Daubert inquiry into the reliability of the proffered expert testimony — of the results of Prince-Oyibo’s polygraph

test. 

B.

Prince-Oyibo next maintains that his religious persecution was an

important part of his defense, in that it tended to explain why he

would not question the large sum of money that he had to pay to

obtain his visa. As a result, he argues, exclusion of this evidence violated his constitutional right to present a defense. The Government

responds that the district court was within its discretion in excluding

the evidence of persecution, since the defendant’s fear of persecution

was irrelevant to whether Prince-Oyibo intended to use an altered visa

to enter the United States. 

As the Government correctly notes, a defendant’s right to present

a defense is not absolute: criminal defendants do not have a right to

present evidence that the district court, in its discretion, deems irrelevant or immaterial. See Taylor v. Illinois, 484 U.S. 400, 410 (1988)

("The accused does not have an unfettered [Sixth Amendment] right

to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence."); see also Montana v.

Egelhoff, 518 U.S. 37, 42 (1996) (applying same rule in Due Process

context). 

The only issue that the jury considered was whether Prince-Oyibo

actually knew his visa to be "counterfeit, altered, falsely made or otherwise unlawfully obtained." While testimony on persecution may

have been relevant to counter the Government’s proffered "willful

blindness" instruction (and, in fact, so the defense argued), this point

UNITED STATES v. PRINCE-OYIBO 11
of potential relevance was mooted by the court’s refusal of that

instruction. See supra note 1. Similarly, such testimony might have

been relevant in support of a duress defense; however, Prince-Oyibo

did not present such a defense. The only issue before the jury was

whether the defendant actually knew of his visa’s illegality. Since evidence of Prince-Oyibo’s religious persecution does not tend to prove

his claim that he did not have actual knowledge that his visa was

false, the district court was within its discretion in excluding the evidence of persecution as irrelevant. 

IV.

For the foregoing reasons, the conviction of Marvel Johnson

Prince-Oyibo is affirmed.

AFFIRMED

HAMILTON, Senior Circuit Judge, dissenting: 

This circuit has never addressed the question of whether our per se

rule banning the admission of polygraph evidence to bolster or undermine the credibility of a witness is consistent with the principles concerning the admission of scientific or technical evidence enunciated

in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). That

question, which is finally squarely before the court, must be answered

in the negative. For this reason, the district court should have given

Prince-Oyibo the opportunity to demonstrate that his proffered polygraph evidence was admissible under Daubert. Because, on the record

before the court, the exclusion of Prince-Oyibo’s proffered polygraph

evidence was not harmless error, I am constrained to conclude that

Prince-Oyibo’s 18 U.S.C. § 1546(a) conviction should be vacated and

the case should be remanded to the district court with instructions to

conduct a proper Daubert inquiry. If, on remand, the district court

concludes that Prince-Oyibo’s proffered polygraph evidence is inadmissible, the district court would be free to reinstate the conviction.

I

The first seminal case addressing the admissibility of polygraph

evidence was Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In

12 UNITED STATES v. PRINCE-OYIBO
Frye, the trial court refused to admit the results of a systolic blood

pressure test (a crude precursor to the polygraph test), which the

defendant sought to introduce in his murder trial. Id. at 1014. The

issue before the Frye court was whether the results of the systolic

blood pressure test should have been admitted into evidence. Id. The

Frye court used a "general acceptance" standard in order to determine

the admissibility of scientific or technical evidence in the context of

the science of polygraphy. Id. at 1014. The general acceptance standard required the proponent of the evidence to show that the science

was generally accepted in the relevant scientific community from

which it emerged. Id. According to the Frye Court,

[j]ust when a scientific principle or discovery crosses the

line between the experimental and demonstrable stages is

difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and 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. Because the systolic blood pressure test had "not yet gained such

standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments

thus far made," evidence of its results was ruled inadmissible. Id.

Frye became the seminal polygraph case and, consequently, over

the next five decades, virtually every state and federal court prohibited the admission of polygraph evidence. See generally James R.

McCall, Misconceptions and Reevaluation-Polygraph Admissibility

After Rock and Daubert, 1996 U. Ill. L. Rev. 363, 366-70 (analyzing

Frye and its progeny). In this circuit, post-Frye and pre-Daubert, we

concluded in numerous cases that the admission of polygraph evidence to bolster or undermine the credibility of a witness was per se

inadmissible. See, e.g., United States v. Chambers, 985 F.2d 1263,

1270-71 (4th Cir. 1993); United States v. A & S Council Oil Co., 947

F.2d 1128, 1134 (4th Cir. 1991); see also United States v. Porter, 821

F.2d 968, 974 (4th Cir. 1987) (holding that evidence "of a plea agreeUNITED STATES v. PRINCE-OYIBO 13
ment containing a provision that the government’s witness has agreed

to take a polygraph test to verify trial testimony constitutes impermissible bolstering of the witness’s credibility"); United States v. Tedder,

801 F.2d 1437, 1444 (4th Cir. 1986) (holding that "evidence that the

accused or a witness has taken a polygraph test is inadmissible");

United States v. Morrow, 731 F.2d 233, 238 (4th Cir. 1984) (holding

that stipulated admission of polygraph test results was, "at most,

harmless error"); but see United States v. Webster, 639 F.2d 174, 186

(4th Cir. 1981) (holding that district court has broad discretion to

admit polygraph evidence).1

1As noted by the majority, ante at 5 n.2, our per se rule only applies

to the admission of polygraph evidence offered to bolster or undermine

the credibility of a witness. Cf. A & S Council Oil Co., 947 F.2d at 1133

(holding that, where the government offered expert testimony on the

credibility of a key government witness and the district court refused to

permit cross-examination of the expert concerning the results of a polygraph test taken by the witness, the polygraph test results should have

been admitted as an attack on the expert’s opinion, although not as a

direct attack on the credibility of the witness). Aside from A & S Council

Oil Co., this court, other courts, and the government have expressed

approval of the use of polygraph tests in other situations. See, e.g.,

United States v. Music, 2002 WL 31387536, at *1-3 (4th Cir. 2002)

(unpublished) (upholding imposition of condition of supervised release

requiring defendant convicted of possessing child pornography to participate in mental health program that could include polygraph testing);

United States v. Queen, 2001 WL 882955, at *1 (4th Cir. 2001) (unpublished) (holding that the government’s reliance, in failing to move for

downward departure for substantial assistance, on the results of a polygraph examination, which indicated that defendant lied about distributing

drugs while released on bond, did not amount to an unconstitutional

motive, even though such results would have been inadmissible at trial

and, thus, the district court did not err in refusing to compel the government to file a substantial assistance motion); Bennett v. City of Grand

Prairie, Texas, 883 F.2d 400, 405-06 (5th Cir. 1989) (holding that magistrates may consider polygraph evidence when determining whether probable cause to issue an arrest warrant exists); United States v. Lindell, 881

F.2d 1313, 1326 (5th Cir. 1989) (holding that "[i]mpeachment evidence

includes the results of a polygraph test" for purposes of the Brady rule).

Not surprisingly, at oral argument, the government acknowledged that it

frequently uses and heavily relies upon polygraph tests in a wide variety

of situations, including when deciding on whether to make a substantial

14 UNITED STATES v. PRINCE-OYIBO
In Daubert, the Supreme Court held that scientific expert testimony

is admissible under Rule 702 of the Federal Rules of Evidence2 if the

expert’s testimony is based on a reliable foundation and is relevant to

the task at hand. Daubert, 509 U.S. at 597. Daubert expressly rejected

the Frye "general acceptance" standard, holding that the Frye standard was superseded by the adoption of the Federal Rules of Evidence. Daubert, 509 U.S. at 589. In its stead, the Supreme Court

outlined a flexible inquiry driven primarily by Federal Rules of Evidence 401, 402, 403, and 702. After discussing the thrust of the federal rules, as reflected in Rules 401 and 402, the Court noted that

nothing in Rule 702, which governs the admissibility of expert testimony, makes general acceptance an absolute prerequisite to admissibility. Daubert, 509 U.S. at 588. What Rule 702 does require, the

Court held, is that the district court make initial determinations that

the proffered evidence possesses sufficient evidentiary reliability to

be admissible as scientific, technical, or other specialized knowledge

and that the proffered evidence is relevant in the sense that it will

assist the trier of fact to understand the evidence or to determine a fact

in issue. Daubert, 509 U.S. at 592-95. With regard to the reliability

and relevance determinations, the Court emphasized a number of factors, including: (1) whether the theory can be (and has been) tested;

(2) whether it has been subjected to peer review and publication; (3)

its known or potential error rate; (4) the existence and maintenance

of standards controlling its operation; and (5) whether it has attracted

wide-spread acceptance within the relevant scientific community. Id.

at 592-94. The Court also emphasized that a district court evaluating

the admission of expert testimony under Rule 702 should also consider other applicable rules of evidence, including Rule 403, which

authorizes the exclusion of relevant evidence whose probative value

assistance motion on behalf of a criminal defendant to reduce his sentence; nevertheless, the government stressed the need for a per se rule

banning the admission of polygraph evidence to bolster or undermine the

credibility of a witness. 

2Under Rule 702, a qualified expert witness may testify "in the form

of an opinion or otherwise, if (1) the testimony is based upon sufficient

facts or data, (2) the testimony is the product of reliable principles and

methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702. 

UNITED STATES v. PRINCE-OYIBO 15
is substantially outweighed by its danger of unfair prejudice, confusion of the issues, or misleading the jury. Daubert, 509 U.S. at 595.

The emphasis behind these suggested guidelines was that the district

court had a "gatekeeping role" that was to ensure the reliability and

relevancy of the information being offered. Id. at 597. This gatekeeping role was designed to give sufficient discretion to the district court

in order to avoid problems for the trier of fact. Id.

Without question, our per se rule banning the admission of polygraph evidence to bolster or undermine the credibility of a witness is

inconsistent with the flexible inquiry assigned to the district court by

Daubert; indeed, the majority even impliedly recognizes this fact.

Ante at 8 ("At the very least, by reserving the reliability assessment

to the district courts, Daubert throws into doubt the viability of our

per se rule that the results of an accused’s or a witness’s polygraph

test are inadmissible to bolster or undermine credibility."). To be sure,

Daubert and the Federal Rules of Evidence recognize the gatekeeper

role of the district court, which is for the specific purpose of screening

evidence under Daubert and the Federal Rules of Evidence. A per se

rule of exclusion does not allow the district court to perform its proper

function under Daubert and the Federal Rules of Evidence. Simply

put, the proponent of polygraph evidence should be given the opportunity to demonstrate the relevance and the reliability of the evidence

before a decision on admissibility is made. 

Consistent with this analysis, numerous courts have recognized that

a per se rule banning the admission of polygraph evidence is inconsistent with Daubert. See, e.g., United States v. Cordoba, 104 F.3d 225,

228 (9th Cir. 1997) (holding that Daubert overruled its per se rule

excluding all unstipulated polygraph evidence offered in civil and

criminal trials); United States v. Posado, 57 F.3d 428, 434 (5th Cir.

1995) (holding that its per se rule against the admission of polygraph

evidence in federal court not viable in light of Daubert); see also

United States v. Lea, 249 F.3d 632, 638-41 (7th Cir. 2001) (noting

that a district court’s decision on the admissibility of polygraph

results deserves considerable deference, and will be reversed only

when the district court has abused its discretion); United States v. Piccinonna, 885 F.2d 1529, 1531-37 (11th Cir. 1989) (rejecting per se

rule). The rationale behind these decisions is obvious and was best

stated by the Fifth Circuit in Posado:

16 UNITED STATES v. PRINCE-OYIBO
[W]e do not now hold that polygraph examinations are scientifically valid or that they will always assist the trier of

fact, in this or any other individual case. We merely remove

the obstacle of the per se rule against admissibility, which

was based on antiquated concepts about the technical ability

of the polygraph and legal precepts that have been expressly

overruled by the Supreme Court. 

57 F.3d at 434.3

The majority in this case feels compelled to reject Daubert

because, in the majority’s view, "our post-Daubert precedents foreclose our abandonment . . . of this Circuit’s per se rule." Ante at 11.

However, an examination of these precedents leads inexorably to the

conclusion that this court has not addressed, let alone answered, the

question of whether our per se rule banning the admission of polygraph evidence to bolster or undermine the credibility of a witness is

consistent with the principles concerning the admission of scientific

or technical evidence set forth in Daubert. 

In United States v. Toth, 1996 WL 426865 (4th Cir. 1996), one of

Toth’s codefendants entered into a plea agreement, which was conditioned on the codefendant’s successful completion of a polygraph

examination. Id. at *4. At Toth’s trial, the codefendant testified for

the government, but the government had earlier argued in its opening

statement that some of the codefendant’s testimony favorable to Toth

should not be believed. Toth sought to introduce evidence concerning

the codefendant’s successful completion of the polygraph examination, but the district court excluded the evidence "under Fourth Circuit

precedent" and Rule 403. Toth, 1996 WL 426865, at *4. 

On appeal, we noted that the "rule in this Circuit" is "that evidence

that an accused or a witness has taken a polygraph test is inadmissible." Id. We also recognized that our relevant circuit precedent was

decided before Daubert and that the Posado court observed that, due

3Of note, the Posado court also concluded that, because of the change

in the law affected by Daubert, en banc consideration was not necessary

to overturn that circuit’s per se rule against admissibility of polygraph

evidence. Posado, 57 F.3d at 433. 

UNITED STATES v. PRINCE-OYIBO 17
to the change in the law effected by Daubert, en banc consideration

was not necessary to overturn the Fifth Circuit’s per se rule against

admissibility of polygraph evidence. Toth, 1996 WL 426865, at *4.

We also suggested that "we might be inclined to agree with the Fifth

Circuit in an appropriate case," but opined that it was "not necessary

to reach that issue in Toth’s case," because the district court acted

within its discretion in excluding the proffered polygraph evidence

under Rule 403. Toth, 1996 WL 426865, at *4. Thus, the Toth case

was not decided on the basis of the per se rule, but rather on the basis

that, even if the Daubert standard applied, the district court did not

abuse its discretion when it concluded that the proffered polygraph

evidence was inadmissible under Rule 403. Toth, 1996 WL 426865,

at *5. 

A year later, in United States v. Sanchez, 118 F.3d 192, 197 (4th

Cir. 1997), the defendant argued that the district court erred when it

refused to allow him to cross-examine a cooperating coconspirator

about the polygraph examination she had failed and that he should

have been allowed to mention the failed polygraph examination to the

jury. Id. at 197. Again, we recognized the per se rule and found that

the rule was "binding" on the court. Id. However, in a footnote, we

expressly declined to reach the question of whether our per se rule

banning the admission of polygraph evidence to bolster or undermine

the credibility of a witness was consistent with Daubert. Sanchez, 118

F.3d at 197 n.3. 

A little over two years later, in United States v. Ruhe, 191 F.3d 376

(4th Cir. 1999), the defendant argued that the district court erred when

it refused to admit the defendant’s polygraph evidence at trial. Id. at

387. In upholding the district court’s decision on appeal, we rejected

the defendant’s argument on the basis that we were bound by our circuit’s per se rule "absent contrary law from an en banc or Supreme

Court decision." Id. at 388. In reaching this conclusion, we noted that

we were declining to address the question of whether our per se rule

banning the admission of polygraph evidence to bolster or undermine

the credibility of a witness was consistent with Daubert because the

defendant did not advance that argument. Ruhe, 191 F.3d at 388 n.9.

The above discussion makes it abundantly clear that this court has

never addressed, let alone answered, the question of whether our per

18 UNITED STATES v. PRINCE-OYIBO
se rule banning the admission of polygraph evidence to bolster or

undermine the credibility of a witness is consistent with the principles

set forth in Daubert. With the issue now squarely before the court,

one must conclude, for the reasons set forth above, that our per se rule

is not consistent with the principles concerning the admission of scientific or technical evidence outlined in Daubert. Moreover, en banc

consideration is not necessary to reach this result because a panel of

this court is not at liberty to ignore clear and unequivocal Supreme

Court precedent. Ruhe, 191 F.3d at 388 ("[A]s a simple panel, we are

bound by prior precedent from other panels in this circuit absent contrary law from an en banc or Supreme Court decision."); Posado, 57

F.3d at 433 ("Because no panel has squarely addressed the issue of

polygraph admissibility since Daubert, en banc consideration is not

required for this decision."). 

The only remaining question concerns harmless error under Rule

52(a). A district court’s evidentiary error is harmless if one can conclude, "‘with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment was

not substantially swayed by the error.’" United States v. Urbanik, 801

F.2d 692, 698 (4th Cir. 1986) (quoting Kotteakos v. United States,

328 U.S. 750, 765 (1946)). In this case, as the majority acknowledges,

ante at 10, the categorical exclusion of the polygraph evidence indicating that Prince-Oyibo was telling the truth when he stated that he

did not know his visa was fraudulent was relevant and material to

whether Prince-Oyibo committed an 18 U.S.C. § 1546(a) violation.

Under such circumstances, I am unable to conclude with fair assurance that the judgment in this case was not substantially swayed by

the potentially erroneous exclusion of Prince-Oyibo’s polygraph evidence. Urbanik, 801 F.2d at 698. Accordingly, the error in this case

is not harmless. 

II

In summary, the district court should have given Prince-Oyibo the

opportunity to demonstrate that his proffered polygraph evidence was

admissible under Daubert. Because, on the record before the court,

the exclusion of Prince-Oyibo’s proffered polygraph evidence was not

harmless error, Prince-Oyibo’s 18 U.S.C. § 1546(a) conviction should

be vacated and the case should be remanded to the district court with

UNITED STATES v. PRINCE-OYIBO 19
instructions to conduct a proper Daubert inquiry. If, on remand, the

district court concludes that Prince-Oyibo’s proffered polygraph evidence is inadmissible under the principles enunciated in Daubert, the

district court would be free to reinstate the conviction.

20 UNITED STATES v. PRINCE-OYIBO