### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 3791

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D AVID A. R ESNICK

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:11 CR 68

— James T. Moody

, Judge

.

____________________

On Petition for Rehearing En Banc.

____________________

D ECIDED J ULY 28, 2016

____________________

Before W OOD

, Chief Judge

, B AUER

, P OSNER

, F LAUM

, E ASTERBROOK

, K ANNE

, R OVNER

, W ILLIAMS

, S YKES

, and

H AMILTON

, Circuit Judges

.

W OOD

, Chief Judge

. On consideration of the petition for

rehearing with suggestion for rehearing en banc filed by

defendant

‐ appellant on June 7, 2016, a majority of the judges2 No. 14

‐ 3791

on the original panel voted to deny rehearing and a majority

of the judges in active service voted to deny rehearing en

banc. Judge William J. Bauer voted to grant rehearing but did

not take part in the vote to rehear en banc. Judges Richard A.

Posner, Joel M. Flaum, and Michael S. Kanne voted to grant

rehearing en banc. Judges Bauer, Posner, Flaum, and Kanne

dissented from the denial of the rehearing and rehearing en

banc and filed an opinion.

The petition is therefore D ENIED

.No. 14

‐ 3791 3

B AUER

, P OSNER

, F LAUM

, and K ANNE

, Circuit Judges

, dissenting

from the denial of rehearing en banc. The majority opinion makes

two damaging admissions. The first is its statement that “our de

‐

cisions have, in practice, pointed in only one direction: affirming

the exclusion of polygraph evidence. There is no scientific consen

‐

sus that polygraph testing is reliable, and there is a significant

possibility of unfair prejudice if it is introduced into evidence at

trial” (emphasis in original). The second is its statement, quoting

Garmon v. Lumpkin County

, 878 F.2d 1406, 1410 (11th Cir. 1989),

that “because a criminal defendant’s constitutionally protected

silence may not be used against her, the natural corollary to that

rule is that generally a defendant’s refusal to submit to a poly

‐ graph examination cannot be used as incriminating evidence.” In

other words, “it is improper for a witness to testify whether or not

a criminal defendant refused to submit to a polygraph test.” Unit

‐

ed States v. St. Clair

, 855 F.2d 518, 523 (8th Cir. 1988).

Because polygraph (i.e., lie

‐ detector) evidence is unreliable, its

introduction in a trial creates a significant possibility of unfair

prejudice, and a defendant therefore has a constitutional right not

to have his refusal to submit to a polygraph be used in evidence

against him as an admission of guilt. The government is “prohib

‐ it[ed]

... from ‘treat[ing] a defendant’s exercise of his right to re

‐

main silent at trial as substantive evidence of guilt.’” United States

v. Ochoa

‐ Zarate

, 540 F.3d 613, 617 (7th Cir. 2008), quoting United

States v. Robinson

, 485 U.S. 25, 34 (1988). Therefore if a defendant

refuses to testify, or invokes his Miranda rights, the prosecutor

cannot comment to the jury on his refusal to take a polygraph test.

Most people, moreover, would be made nervous at the

thought of having to take a lie

‐ detector test, and this doubtless de

‐

ters many law

‐ abiding people from agreeing to take the test. For

we now know that being nervous cannot be treated as a confes

‐

sion of guilt—that there are nervous truth

‐ tellers as well as nerv

‐

ous liars, and confident liars as well as nervous liars. See Jeremy4 No. 14

‐ 3791

A. Blumenthal, “A Wipe of the Hands, a Lick of the Lips: The Va

‐ lidity of Demeanor Evidence in Assessing Witness Credibility,” 72

Nebraska L. Rev. 1157 (1993). These problems affect the reliability

of polygraph evidence. See Renée McDonald Hutchins, “You

Can’t Handle the Truth! Trial Juries and Credibility,” 44 Seton Hall

L. Rev. 505, 524–32, 529 n. 100 (2014).

The principles that we’ve enunciated, which are endorsed by

the majority, require that the judgment be vacated and the case

remanded for a new trial. Against this all the majority can marshal

is the doctrine of “plain error,” an exacting standard designed to

enforce finality in litigation and encourage counsel to raise objec

‐

tions in the district court instead of waiting for a possible appeal.

Although there is a valid interest in the finality of litigation,

served by the plain

‐ error standard, it is outweighed by the con

‐

cerns presented by this case. There is too much at stake, not only

for the defendant but for the criminal

‐ trial process in general.

What can be a simpler or more effective prosecutorial tactic than

simply to ask the defendant whether he’ll agree to take a poly

‐ graph test, and if he refuses, as he is likely to do whether under

his own steam or by advice of counsel, parade his refusal before

the jury, arguing that it amounts to a confession of guilt—and if

he appeals cite the decision in the present case.

We need not go so far as to advocate a ban on all polygraph

evidence in criminal trials; the fact that it is unreliable doesn’t dis

‐ tinguish it from a lot of other sometimes unreliable evidence—

eyewitness evidence for example—that is frequently admitted at

trial. We contend only that if a suspect refuses to take a polygraph

examination, the government shouldn’t be allowed to introduce

the refusal as substantive evidence or to comment on the refusal

to the jury. Adopting the narrower rule that we are suggesting

would align us with the prevailing judicial recognition of an ex

‐ pansive right against self

‐ incrimination, see, e.g., Griffin v. Califor

‐

nia

, 380 U.S. 609 (1965); Miranda v. Arizona

, 384 U.S. 436 (1966),No. 14

‐ 3791 5

coupled with the concern, not limited to us, that polygraphs are

unreliable trial evidence. See, e.g., United States v. Scheffer

, 523 U.S.

303, 309–10 (1998); United States v. Lea

, 249 F.3d 632, 638–39 (7th

Cir. 2001).

The government argues that because of the “overwhelming ev

‐

idence of guilt” in this case the defendant can’t prove that the

prosecution’s submitting and commenting on his refusal to sub

‐

mit to a polygraph test affected the verdict. The implication, seem

‐ ingly adopted by the panel majority, is that if the government pre

‐

sents enough evidence of guilt it can then for good measure top

off that evidence with evidence that violates a constitutional right,

ignores evidentiary rules, and tempts the jury to abdicate its role

as factfinder. There is no evidentiary demarcation line that when

traversed with enough damning evidence of guilt permits the

government and the court to deny a criminal defendant the right

to a fair jury trial.

That the polygraph is at the center of this controversy is im

‐

portant. A polygraph is an instrument designed to determine

whether the person examined is telling the truth. But polygraphs

are not reliable truth

‐ telling tools, and determining credibility is

the jury’s duty. The introduction of and comment on evidence

that a suspect refused to take a polygraph test signals to the jury

that polygraph evidence is reliable, though it is not, and that the

suspect’s refusal to talk evidences consciousness of guilt when

courts have consistently held that this is an impermissible infer

‐

ence. It could also signal to the jurors that their own instincts do

not matter when determining credibility—that the results of a

polygraph test (or the refusal of the defendant or a witness to

have taken the test) supersede their common sense—and so they

might as well ignore their duty as factfinders. In United States v.

Scheffer

, supra

, 523 U.S. at 313, a plurality of Justices agreed that

“by its very nature, polygraph evidence may diminish the jury’s

role in making credibility determinations.” The potential for this6 No. 14

‐ 3791

effect contradicts the government’s assertion that the defendant

cannot show that the government’s tactics affected the jury. Ra

‐

ther those tactics infected the trial and rendered it unfair, no mat

‐

ter how “overwhelming” the evidence against the defendant.

Such tactics should not be tolerated. Reversal would send the

right signal; this affirmance sends the wrong one. Resnick de

‐

serves a new trial.