Case 3:08-cr-00096-P Document 67 Filed 03/11/14 Page 1 of 10 PageID 514 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA NO. 3:08-CR-0096-P v. ECF ELLEN CHEN YEH (01) GOVERNMENT=S RESPONSE TO DEFENDANT=S MOTION TO ADMIT POLYGRAPH EXAMINATION RESULTS The defendant, Ellen Chen Yeh ( Chen ), has filed a motion seeking to admit in its case-in-chief the results of a polygraph examination Chen took on March 2, 2014, the day before trial was scheduled to start, without the participation of the government. See Defendant=s Motion To Admit Evidence That Defendant Chen Passed A Polygraph Examination On An Issue Dispositive of Guilt or Innocence (hereinafter, Defendant s Motion to Admit Polygraph Evidence ), at 2-3. The government respectfully opposes the admission the polygraph evidence because the results, given the circumstances of this case and the conditions under which it was administered, are not sufficiently reliable to satisfy Federal Rule of Evidence 702. Additionally, even if the polygraph examination was reliable, any probative value associated with the results of the examination are substantially outweighed by the prejudice that will result from their admission, and should be excluded under Federal Rule of Evidence 403. To Admit Polygraph Examination - p. 1
Case 3:08-cr-00096-P Document 67 Filed 03/11/14 Page 2 of 10 PageID 515 FACTUAL BACKGROUND The defendant is charged in a fifteen-count Superseding Indictment with stealing trade secrets in violation of 18 U.S.C. 1832(a)(1); with copying, uploading, downloading, and replicating trade secrets without authorization, in violation of 18 U.S.C. 1832(a)(2); and with knowingly possessing misappropriated or stolen trade secrets, in violation of 18 U.S.C. 1832(a)(3). See Superseding Indictment, Dkt. No. 34. The various counts in the indictment charge the defendant with misappropriating information related to several iterations of a technological process for manufacturing certain types of integrated chips, known as the LinBiCMOS (LBC) process. On Saturday, March 1, 2014, two days before trial was scheduled to begin, defense counsel made the defense trial exhibits available to the government. When government counsel arrived at defense counsel s office to pick up the exhibits, defense counsel offered for the first time and without any advance notice to make Ms. Chen available for an interview. Government counsel spoke with Ms. Chen in the presence of all three of her counsel for a short period of time. After some discussion, government counsel stated that if Ms. Chen agreed to be polygraphed by a government polygrapher and the case would be resolved by the polygraph if she was found to be truthful, the government would dismiss the charges; if the results were inconclusive or she was found to be deceptive, she would plead guilty he would request approval to proceed with a polygraph. Defense counsel flatly refused to the terms. To Admit Polygraph Examination - p. 2
Case 3:08-cr-00096-P Document 67 Filed 03/11/14 Page 3 of 10 PageID 516 On March 3, 2014, the day trial was scheduled to start, defense counsel notified government counsel that Ms. Chen had submitted to a polygraph examination. Defense counsel did not inform government counsel Ms. Chen would be polygraphed; did not solicit the government s input in drafting the relevant test questions or allow the government to review the questions before the exam; or allow any government personnel to be involved in briefing the polygrapher or examine the exam environment. After receiving the polygrapher s report that night, and considering all the circumstances surrounding the examination, government counsel concluded that the results were not likely to possess a great degree of validity, and notified defense counsel that the government would not pursue any polygraph issues further. The proffered polygraph examination in this case should be excluded under Rule 702 because, first, the results of a polygraph examination, both generally and in this case, are not sufficiently reliable to be admitted; and second, because the results will not assist the jury in the case. Additionally, the examination results should be excluded under Rule 403 because they are prejudicial, misleading, and a waste of time. To Admit Polygraph Examination - p. 3
Case 3:08-cr-00096-P Document 67 Filed 03/11/14 Page 4 of 10 PageID 517 ANALYSIS In the Fifth Circuit, there is no per se rule against admitting polygraph evidence in federal court. See United States v. Posada, 57 F.3d 428 (5th Cir. 1995 The admissibility of polygraph evidence, like any expert testimony, is governed by Federal Rules of Evidence 702 and 403. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). A. Polygraph Evidence is Not Admissible Under Rule 702 Initially, the results of the examination should be excluded under Rule 702 because they are not sufficiently reliable. Rule 702 provides that for expert opinion testimony to be admissible, it must be scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue. Fed. R. Evid. 702. The Rule requires the trial court find the expert opinion both reliable and relevant. Daubert, 509 U.S. at 592-93. The burden is on the proponent of the evidence to establish both of these factors. Posada, 57 F.3d at 433; Larson v. Matter, 2008 WL 3876015,*2 (N.D. Tx. 2008). The trial judge has the responsibility to serve as a gatekeeper and exclude unreliable expert testimony. Daubert, 509 U.S. at 593. In fulfilling this role, the court must make an objective, independent valuation of the principles and methods the expert used to reach his/her conclusion to ensure he/she has a sound and reliable basis in the knowledge and experience of the discipline at issue. Larson, 2008 WL 3876015 at * 2. To Admit Polygraph Examination - p. 4
Case 3:08-cr-00096-P Document 67 Filed 03/11/14 Page 5 of 10 PageID 518 Although federal courts have acknowledged following Daubert that polygraph evidence might be admissible in some instances, they continue to find that the proponent has failed to establish that the polygraph is reliable. See, e.g., United States v. Rodriguez- Berrios, 573 F.3d 55 (1st Cir. 2009); United States v. Henderson, 409 F.3d 1293 (11th Cir. 2005); United States v. Williams, 95 F.3d 723 (8th Cir. 1996). This is the case in this circuit, and the defendant has not cited to any case in this circuit in which polygraph evidence was accepted. See, e.g., United States v. Pettigrew, 77 F.3d 1500 (5th Cir. 1996); United States v. Sayavongsa, 2008 WL 2325622 (S.D. Tex. 2008); United States v. Hernandez, 2003 WL 102623 (N.D. Tex. 2003). Indeed, the most comprehensive, scholarly studies of polygraphy have concluded that it is not a sufficiently reliable technique to use for guilt or innocence. Thus, a 1983 study by the White House Office of Technology Assessment concluded: Overall the cumulative research evidence suggests that when used in criminal investigations, the polygraph detects deception better than chance, but with error rates that could be significant. Scientific Validity of Polygraph Testing: A Research Review and Evaluation, Ch. 1 at *3 (Office of Technology Assessment, Nov. 1983). And a more recent study by the National Academy of Sciences concluded that specific incident polygraph tests can discriminate lying from truth telling at rates well above chance, though well below perfection. The Polygraph and Lie Detection, National Academy of Sciences-National Research Council, Committee to Review the Scientific Evidence on the Polygraph To Admit Polygraph Examination - p. 5
Case 3:08-cr-00096-P Document 67 Filed 03/11/14 Page 6 of 10 PageID 519 (2003). 1 Critically, the NAS found that accuracy may be highly variable across situations, and that the evidence does not allow any precise quantitative estimate of polygraph accuracy across personality types, socio-demographic groups, psychological and medical conditions, examiner and examinee expectancies, or ways of administering and electing questions. Id. at 214. Moreover, even today polygraph evidence is not generally accepted as reliable in the scientific community. As the Supreme Court has observed, Although the degree of reliability of polygraph evidence may depend on a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph examinations. United States v. Scheffer, 523 U.S. 303, 312 (1998); see id. ( [T]here is simply no consensus that polygraph evidence is reliable. ). Even if the polygraph was reliable generally, the results are not reliable in this case because test questions are flawed. The critical questions posed by the examiner do not ask about any specific incident with which she is charged, or ask her about her state of mind when she downloaded the LBC manuals to her computer a month before she left TI. Instead, the examiner asked whether she had any plan to harm TI at the time she downloaded any proprietary information at TI, or whether she had a plan to use any 1 The National Academy of Sciences is a private, non-profit, self-perpetuating society of scholars engaged in scientific research dedicated the use and furtherance of science and technology. It was chartered in 1863 to advise the federal government on scientific and technical matters. United States v. Moultrie, 552 F. Supp.2d 598, 601 (N.D. Miss. 2008). To Admit Polygraph Examination - p. 6
Case 3:08-cr-00096-P Document 67 Filed 03/11/14 Page 7 of 10 PageID 520 proprietary information taken from TI to harm the company. The defendant worked at TI for 12 years, and may have downloaded files throughout her career as well as during the last several months before she left the company. Moreover, both questions talk about any proprietary information without limiting the type, scope, or time period. Moreover, the defendant was polygraphed about her state of mind nine years ago. The passage of such a lengthy period of time, and defendant s considerable preparation for trial, put in questions whether any current evaluation of her state of mind provides insight into her state of mind at the time incident took place. B. Polygraph Evidence In This Case Must Be Excluded Under Rule 403 Rule 403 provides that a trial court may exclude evidence otherwise admissible under Rule 401 where the probative value of the evidence is substantially outweighed by potential prejudice from its admission, including the danger of unfair prejudice, confusion of issues,... or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 403 plays an enhanced role where, as here, the scientific or technical knowledge offered is controversial. Posada, 57 F.3d at 435; United States v. Moultrie, 552 F. Supp.2d 598, 600.(N.D. Miss. 2008). The polygraph in this case was administered ex parte without the input or participation of the government. Government personnel were not allowed to participate in developing or framing the relevant test question, which renders it suspect. Further, the To Admit Polygraph Examination - p. 7
Case 3:08-cr-00096-P Document 67 Filed 03/11/14 Page 8 of 10 PageID 521 defendant did not have to worry about any negative consequences if she failed the exam because it would not be disclosed to the government. Thus, the parties did not have an equal stake in the outcome of the examination. Securities and Exchange Commission v. Kopsky, 586 F. Supp. 2d 1077, 1082 (E.D. Mo. 2008)(citing United States v. Thomas, 167 F.3d 299 (6th Cir. 1999; United States v. Ross, 412 F.3d 771 (7th Cir. 2005); United States v. Gilliard, 133 F.3d 809 (11th Cir. 1998)). Additionally, admitting polygraph evidence is likely to confuse the jury and distract them from their role as the sole and ultimate factfinder. The jury may be misled by the notion that polygraph examinations must necessarily have scientific basis and give excessive weight to the polygraph results in determining [the defendant s] credibility.... Kopsky, 586 F. Supp.2d at 1082. And it will result in undue delay and waste of valuable court time. Before the Court can accept the testimony, it will have to hold a hearing outside the presence of the jury on admissibility that will devolve quickly into a protracted battle of the experts. Sayavongsa, 2008 WL 2325622 at *5. To Admit Polygraph Examination - p. 8
Case 3:08-cr-00096-P Document 67 Filed 03/11/14 Page 9 of 10 PageID 522 For these reasons, the United States respectfully requests that the Defendant=s request that the Court exclude the proffered polygraph results Respectfully submitted, SARAH R. SALDAÑA UNITED STATES ATTORNEY s/paul Yanowitch PAUL YANOWITCH Assistant United States Attorney Illinois Bar No. 6188269 1100 Commerce Street, Third Floor Dallas, Texas 75242 Tel: 214.659.8618 Fax: 214.659.8805 paul.yanowitch@usdoj.gov /s/ Brian Levine BRIAN LEVINE Special Assistant United States Attorney D.C. Bar No. 480216 1100 Commerce Street Dallas, Texas 75242 Telephone: 214.659.8618 Facsimile: 214.659.8805 brian.levine@usdoj.gov To Admit Polygraph Examination - p. 9
Case 3:08-cr-00096-P Document 67 Filed 03/11/14 Page 10 of 10 PageID 523 CERTIFICATE OF SERVICE I hereby certify that on March 11, 2014, I electronically filed the foregoing Government=s Response To Defendant=s Motion To Admit Polygraph Examination Results with the Clerk of Court for the United States District Court for the Northern District of Texas using the electronic filing system of the Court. The electronic case filing system will send a notice of filing to all the attorneys of record who have consented to such service. /s/ Paul Yanowitch PAUL YANOWITCH Assistant United States Attorney To Admit Polygraph Examination - p. 10