Polygraph evidence is per se inadmissible under Rule 403.

Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 2012 VT 18 (Burgess, J.)

Following a jury trial, defendants R. Brown & Sons, Inc., a scrap metal hauling company, and its principal, Robert Brown (both referred to as hauler), were found liable for breach of contract, common law fraud, trespass, breach of the implied covenant of good faith and fair dealing, Each of these claims stemmed from hauler’s commercial dealings with plaintiff Rathe Salvage, Inc., a scrap metal salvage yard where hauler would crush cars and transport the scrap for sale to steel mills. Hauler now appeals, arguing that the case should be remanded due to the trial court’s refusal to conduct a Daubert hearing on the admissibility of hauler’s polygraph, or lie detector, testing before excluding such evidence from trial. We affirm .

The admissibility of polygraph evidence is one of first impression in Vermont. Hauler argues that the trial court erred by refusing to admit expert testimony about the results of a polygraph examination. The court denied hauler’s motion to convene a Daubert hearing, so called, for purposes of determining the underlying reliability of polygraphy. Concerned that the point of hauler’s polygraph examiner was to tell the jury “what and who should be believed,” the court ruled that even if polygraph results could satisfy Daubert admissibility standards, it was nevertheless precluded as an impermissible infringement on the jury’s province to determine credibility. The trial court’s exclusion of the polygraph results is sustainable on per se grounds founded in Vermont Rule of Evidence 403.

We hold that polygraph examination results are redundant to, and an unnecessary influence, on a jury’s responsibility to judge witness credibility or party liability, and that any probative value is substantially outweighed by risks of confusion, delay, and time wasted on collateral issues related to variables in administration of the polygraph. In so holding, we assume, without deciding, that polygraphy is sufficiently reliable for admissibility under Daubert.

The probative value of the polygraph results, at least in theory, rests on the expert’s ability to assess physiological responses of the subject as consistent with either truthfulness or deception. If, as we assume, polygraphy is generally accepted as accurate and reliable, the polygraph cannot but usurp the jury’s lie detecting function. Polygraph results are per se intrusive upon the jury’s prerogative. Per se exclusion is also supported by our holdings against expert opinions on ultimate legal issues or credibility in litigation. See Reiss v. A.O. Smith Corp., 150 Vt. 527, 530-32, 556 A.2d 68, 70-72 (1988) (explaining that notwithstanding authority under Vermont Rule of Evidence 704 to present opinion evidence that “embraces an ultimate issue to be decided by the trier of fact,” it was error to allow testimony on ultimate questions of law equivalent to “should [defendant] lose?”).  Similarly, Rule 702 is no license for expert opinion on the truthfulness of a witness or guilt or innocence of a defendant. See State v. Gokey, 154 Vt. 129, 139-40, 574 A.2d 766, 771 (1990) (reserving those issues for the jury). The polygraph expert’s opinion in this case vouching for hauler’s denial of fraud would amount to an opinion confirming hauler’s veracity and the legal insufficiency of Rathe Salvage’s fraud claim against him. As it was error in Reiss to admit an opinion that a defendant was liable for negligence in its installation of a propane tank regulator, so it would have been error to allow a polygraph expert to testify, in effect if not explicitly, that a fraud defendant was innocent of fraud.

There was no error in the trial court’s per se exclusion of polygraph evidence under Rule 403. Because polygraphy is inadmissible under Rule 403, the trial court was not required to conduct a Daubert hearing to assess its reliability under Rule 702.