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Friday, July 29, 2016
Ind. Decisions - 7th Circuit yesterday denies rehearing in lie detector case
In U.S. v. Resnick (ND Ind., Moody), a 25-page, 2-1 opinion, Chief Judge Woods concluded: "Finally, the admission of testimony revealing that Resnick refused to submit to a polygraph was not plain error. The judgment of the district court is therefore AFFIRMED."
From Judge Bauer's dissent:
I would remand this case for retrial. I believe that the district court committed reversible plain error by admitting Resnick’s refusal to submit to a polygraph examination into evidence and allowing the government to comment on this refusal during closing arguments. These actions virtually exclude the possibility of Resnick receiving a fair trial.Here is a long story on the decision that appeared in the Chicago Daily Law Bulletin on May 6th.
Our standard of review—plain error—is a “high bar,” see United States v. Love, 706 F.3d 832, 841 (7th Cir. 2013), but it should not be an impenetrable shield. Here, the introduction of the refusal to take the polygraph and the government’s subsequent comments constituted plain error which polluted the other evidence and compromised the entire trial. It had the effect of replacing the jury as factfinder and convicting Resnick by judicial fiat, not by the evidence presented. Because such actions prejudiced Resnick and seriously called into question the fairness, integrity, or public reputation of his trial, I would remand. * * *
I admire the discussion of the problem by the majority; I disagree with the legal implication. The error was plain, damning, and cannot be overlooked. I would reverse for a new trial that would be conducted without any discussion of the refusal of Resnick to submit to a polygraph examination.
Yesterday, July 28th, the 7th Circuit, en banc, denied rehearing in USA v. Resnick, Chief Judge Wood writing:
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 judges 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.Judges Bauer, Posner, Flaum and Kanne issued a 4-page dissent from the denial of rehearing en banc that concludes:
The petition is therefore DENIED.
That the polygraph is at the center of this controversy is important. 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 inference. 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 this effect contradicts the government’s assertion that the defendant cannot show that the government’s tactics affected the jury. Rather those tactics infected the trial and rendered it unfair, no matter 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 deserves a new trial.
Posted by Marcia Oddi on July 29, 2016 09:07 AM
Posted to Ind. (7th Cir.) Decisions