                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 99-1442
                                      ___________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *
      v.                                   * Appeal from the United States District
                                           * Court for the District of South Dakota.
Clifton Waters,                            *
                                           *
             Appellant.                    *
                                      ___________

                               Submitted: June 18, 1999

                                    Filed: October 5, 1999
                                     ___________

Before LOKEN, BRIGHT and ROSS, Circuit Judges
                           ___________

ROSS, Circuit Judge.

       Clifton Waters appeals his conviction for aggravated sexual abuse of a child in
violation of 18 U.S.C. §§ 2241(c) and 1153. He asserts that the district court1 erred in
certain evidentiary rulings, in refusing to instruct the jury on a lesser included offense,
and in denying his motion for a new trial. We affirm.

BACKGROUND




      1
        The Honorable Richard H. Battey, Senior Judge, United States District Court
for the District of South Dakota.
       Before indictment, at the government's request, Waters took a polygraph
examination conducted by a special agent of the Federal Bureau of Investigation (FBI).
Among other things, the agent asked Waters whether he had placed his fingers in the
child's vagina or touched her "private areas in a sexual way." He answered "no" to
both questions and the agent believed that the answers were not indicative of deception.
In April 1998, a grand jury indicted Waters with one count of aggravated sexual abuse
of a child in violation of 18 U.S.C. § 2241(c), which, in relevant part, makes it unlawful
for a person to engage in a "sexual act" with a child under the age of 12 in a territorial
jurisdiction. "Sexual act" is defined, in relevant part, as "penetration, however slight,
of the anal or genital opening of another by a hand or finger" or "intentional touching,
not through the clothing, of the genitalia of another person who has not attained the age
of 16" with an improper intent. 18 U.S.C. § 2246(2)(C) and (D).

       Before trial, Waters sought to admit the results of the polygraph examination and
requested a Daubert2 hearing in order to establish the examination's scientific reliability.
In response, the government moved to exclude all evidence relating to the examination
and opposed the request for a Daubert hearing, relying on United States v. Scheffer,
523 U.S. 303 (1998). In Scheffer, the Supreme Court held that a per se exclusion of
polygraph evidence under Military Rule of Evidence 707 was constitutional. Id. at 305.
The district court conditionally granted the government's motion to exclude, subject to
further ruling at trial.

        At the September 1998 trial, the victim, who was then nine years old, testified
that in December 1996 Waters took her to a house in Manderson, South Dakota (Indian


       2
        In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993),
the Supreme Court held that "[f]aced with a proffer of expert scientific testimony," a
district court must make "a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in issue."

                                            -2-
country), and while they were sitting on a couch, he told her to take off her pants. She
further testified that after she took off her underpants, Waters touched her "butt" and
her "middle," which she described as the place "you go to the bathroom,'' with his
hands. She also testified Waters had touched her "in my private places" and had done
the "same thing" to her at her house.

       On cross-examination, Waters' counsel asked the victim about prior statements
she had given to an FBI agent. The victim testified that she had met with the agent
several times and first told the agent that Waters had touched her "private areas over
the top of [her] clothing," but on another occasion told the agent that Waters had put
his "entire" hand inside her, and yet on another occasion said he had put three fingers
"up inside" of her. The victim also admitted that she had not told the agent about the
touching incident at her house. On re-direct examination, the victim explained that she
did not tell the agent everything because she was scared.

        On re-cross examination, Waters' counsel asked the victim "you didn't tell the
truth when you told [the agent] that [Waters] touched you over the top of your jeans,
did you?" She said "no." She also said "no" when counsel asked "[y]ou didn't tell the
truth when you told [the agent] that there was another incident where he put three
fingers into you, did you?" However, she answered "yes" when counsel asked "you
didn't [tell] the truth when you told [the agent] that he put his whole hand up inside of
you, did you?" Counsel then asked "[y]ou did tell the truth then?" She replied "no."

      The government also presented the testimony of a pediatrician, who had
examined the victim in October and December 1997. The pediatrician testified that the
victim had no hymenal tissue, which was highly unusual in a child of that age and was
consistent with repeated penetration of the vagina.

      Waters testified in his defense. After he denied he had touched the victim in a
sexual way either over or under her clothes, his counsel renewed the request for a

                                          -3-
Daubert hearing regarding admissibility of the polygraph examination. However, he
admitted he had no evidence concerning the reliability of the test. Although the district
court observed that in Scheffer, 523 U.S. at 309, the Supreme Court noted the lack of
scientific consensus on the reliability of polygraph examinations, the court held that it
would "simply" exclude any evidence relating to the polygraph examination under Fed.
R. Evid. 403.

       In rebuttal, the government presented the testimony of a clinical social worker
who specialized in child sexual abuse. The social worker testified that children "rarely
tell you everything about an abuse the first time they are asked" and that "more
information may come over a period of time." She also testified that children often
leave out details of abuse because they are embarrassed.

       At the conference on jury instructions, Waters withdrew previously submitted
proposed instructions and handed the court a second set of proposed instructions,
including an instruction on the lesser included offense of abusive sexual contact under
18 U.S.C. § 2244(a), which, as relevant here, requires evidence of "intentional
touching, either directly or through the clothing, of the genitalia, anus, . . . or buttocks"
of another person with an improper purpose. 18 U.S.C. § 2246(3). The court "invited
counsel to outline the fact scenario" that would permit the jury to find Waters guilty of
abusive sexual contact, yet acquit him of aggravated sexual abuse. Waters' counsel
argued if the jury believed "the direct testimony from the alleged victim," it could find
no evidence of "penetration of any kind" and could only return a verdict on abusive
sexual contact. The government disagreed, noting that the victim testified Waters had
touched her unclothed "middle" and that the jury could also consider the pediatrician's
testimony of an injury consistent with penetration. The court agreed with the
government and denied Waters' request, noting he had professed complete innocence.
Waters' counsel again objected, asserting based on the victim's "testimony on direct
examination" there was no evidence of aggravated sexual abuse. The court then asked


                                            -4-
if he was moving for a judgment of acquittal. Counsel indicated he was, and the court
denied the motion.

       About two months after the jury returned a guilty verdict, Waters filed a motion
for a new trial based on newly discovered evidence, relying on a sworn statement in
which the victim recanted her testimony that Waters had touched her. The court denied
the motion, finding that in the circumstances of the case the recantation was not
credible.

DISCUSSION

        Waters first argues that the district court erred in denying his request for a
Daubert hearing. He concedes he has no evidence which establishes the reliability of
polygraph examinations, but argues his ability to gather the necessary evidence was
hampered by the government's failure to comply with his discovery requests. We need
not address any Daubert or discovery issues. The district court independently excluded
the evidence under Fed. R. Evid. 403, which provides for exclusion of evidence "if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of time
. . .." Here, the court stated it would not admit the evidence because it would go to a
collateral matter and cause confusion as to the weight of the evidence. The court did
not abuse its discretion. In Scheffer, the Supreme Court noted the legitimate "risk that
juries will give excessive weight to the opinions of a polygrapher, clothed as they are
in scientific expertise." 523 U.S. at 313-14. The Court also noted that "litigation over
the admissibility of polygraph evidence is by its very nature collateral," id. at 314-15,
thereby "prolong[ing] criminal trials and threaten[ing] to distract the jury from its
central function of determining guilt or innocence." Id. at 315.

       Nor, contrary to Waters' argument, did the court err in refusing to admit evidence
of his responses to the examination. His reliance on United States v. Rothgeb, 789

                                          -5-
F.2d 647 (8th Cir. 1986) is misplaced. In Rothgeb, although the results of a polygraph
examination were inadmissible, this court held that a district court had not abused its
discretion in allowing the government, which did not mention the polygraph
examination, to introduce evidence that during an interrogation the defendant had
denied committing the charged offense, but held his breath, "pant[ed] like a dog" and
"sweated profusely during the questioning." Id. at 651. Rothgeb did not, and could
not, overrule the rules of evidence. Fed. R. Evid. 801(d)(2) provides that an out-of-
court statement offered "against a party" is not hearsay. In contrast here, Waters, not
the government, sought to introduce "a prior statement consistent with his plea of not
guilty." United States v. Greene, 995 F.2d 793, 798 (8th Cir. 1993). "Such statements,
when offered by the defendant, are hearsay, except in narrow circumstances not present
here." Id; see also United States v. Chard, 115 F.3d 631, 635 (8th Cir. 1997)
(defendant's attempt to introduce out-of-court exculpatory statements properly excluded
as hearsay).

       Waters also argues the district court abused its discretion in admitting the social
worker's testimony, asserting she improperly "opine[d] as to a child witness's
credibility." United States v. Rouse, 111 F.3d 561, 571 (8th Cir.), cert denied, 118 S.
Ct. 261 (1997). We disagree. The social worker "never gave [her ] opinion as to
whether [the victim] was telling the truth." United States v. Running Horse, 175 F.3d.
635, 638 (8th Cir. 1999). Rather, she merely "'inform[ed] the jury of characteristics
in sexually abused children.'" Id. (quoting United States v. Whitted, 11 F.3d 782, 785
(8th Cir. 1993)); see also United States v. Johns, 15 F.3d 740, 743 (8th Cir. 1994)
(psychologist's testimony properly admitted because it "was circumscribed so as to
educate rather than to usurp the role of the jury"). Although on appeal Waters suggests




                                           -6-
that the testimony did not meet the Daubert standard for reliability,3 because he did not
raise this argument in the district court, we do not consider it.

       We next address Waters' argument that the district court erred in refusing his
request for a lesser included offense instruction. A "'prerequisite for a lesser included
offense instruction [is] that the evidence at trial must be such that a jury could rationally
find the defendant guilty of the lesser offense, yet acquit him of the greater.'" United
States v. Two Bulls, 940 F.2d 380, 381 (8th Cir. 1991) (per curiam) (quoting Schmuck
v. United States, 489 U.S. 705, 716 n.8 (1989), cert. denied, 502 U.S. 1065 (1992).
In this case,"[i]t is undisputed that abusive sexual contact is a lesser included offense
of aggravated sexual abuse." Id. (citing United States v. Demarrias, 876 F.2d 674, 676
(8th Cir.1989)). However, it is disputed whether "there is some evidence which would
justify conviction of the lesser offense." United States v. Parker, 32 F.3d 395, 400-01
(8th Cir. 1994) (emphasis and internal quotation omitted).

        On appeal Waters primarily argues there is evidence to support a conviction of
abusive sexual contact based on the victim's testimony on cross-examination that she
had told an FBI agent that Waters touched her over her clothing. We do not believe
Waters has properly preserved this argument for appeal. "We have repeatedly held that
an objection 'must call attention to the specific fact situation that would require giving
the lesser included offense instruction.'" United States v. Oakie, 12 F.3d 1436, 1442
(8th Cir. 1993) (quoting United States v. Young, 875 F.2d 1357, 1360 (8th Cir. 1989)).
On the day of the jury conference Waters filed a memorandum in support of his request
for a lesser included offense instruction which relied on the victim's testimony on cross-
examination. However, when the district court asked counsel to set forth the evidence
warranting the instruction, counsel based his argument solely on the victim's direct


       3
        We note in Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1171 (1999), the
Supreme Court extended Daubert to "testimony based on 'technical' and 'other
specialized' knowledge."

                                            -7-
examination. "Because [Waters] failed to give the district court an opportunity to rule
on th[e] theory [raised on appeal], we may only consider it under the plain error
standard." Id.

       In any event, we find no error, much less plain error. Waters offered the
victim's testimony concerning her prior statement that he had touched her over her
clothes only for impeachment purposes, not as substantive evidence for the truth of the
matter asserted. Indeed, the court instructed the jury that "[t]he credibility of a witness
may be attacked by introducing evidence that on some former occasion the witness
made a statement on a matter of fact or acted in a manner inconsistent with his or her
testimony," but cautioned the jury it "must not consider any such prior statement as
establishing the truth of any fact contained in that statement." At oral argument before
this court, Waters suggested that the prior statement could be considered as substantive
evidence because on re-cross examination, he asked the victim if the statement was
true. We disagree. Waters' closing argument to the jury makes clear that he was not
asking the victim to adopt the statement as true, but shows quite the opposite. Waters
argued that the victim was not credible because "she admitted to you in her testimony
that she had lied about what she had told the FBI agent in the past." In particular,
counsel pointed out that the victim "said she had lied to the agent about [Waters]
touching her over her clothing."

       Waters also argues, as he did in the district court, that there was evidence to
support an instruction on abusive sexual contact based on the victim's direct
examination, relying on her testimony that Waters had touched her "butt." We
disagree. As the district court found, this testimony was isolated and when considered
in the context of all the evidence, including the victim's testimony that in addition to
touching her "butt," Waters had touched her "in [her] private places," and the doctor's
testimony, we do not believe a rational jury could find that all Waters did was touch the
victim's buttocks. See United States v. Harrison, 55 F.3d 163, 167 (5th Cir.) ("This
testimony, when considered in isolation, arguably might support a lesser-included

                                           -8-
offense instruction . . . but, when considered in the context of the other evidence, it
does not."), cert. denied, 516 U.S. 924 (1995). This court has "never held . . . that a
defense [instruction] must be submitted to the jury even when it cannot be said that a
reasonable person might conclude the evidence supports the defendant's position."
United States v. Kabat, 797 F.2d 580, 591 (8th Cir. 1986) (internal quotation omitted),
cert. denied, 481 U.S. 1030 (1987). "'[W]hile a judge cannot prevent a jury from
rejecting the prosecution's entire case, he [or she] is not obligated to assist the jury in
coming to an irrational conclusion of partial acceptance and partial rejection of the
prosecution's case.'" United States v. Mansaw, 714 F.2d 785, 792 (8th Cir.) (quoting
United States v. Cady, 495 F.2d 742, 748 (8th Cir. 1974)) , cert. denied, 464 U.S. 964
(1983).4

       Last, Waters argues the district court abused its discretion in denying his motion
for a new trial based on the victim's recantation. "Courts look upon recantations with


       4
         Waters points out that a defendant's claim of innocence does not necessarily
preclude the giving of a lesser included offense instruction, as long as there is evidence
to support the instruction. United States v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir.
1991). Contrary to Waters' argument, this case is unlike Plenty Arrows. In Plenty
Arrows, this court held the victim's testimony that the defendant had "touched him on
the 'back of [his] behind'" was insufficient evidence of aggravated sexual abuse, but
was sufficient evidence of abusive sexual contact. Id. at 67. Here, although we believe
there was sufficient evidence of penetration of the victim's vagina, the victim's
testimony that after she took off her underpants Waters touched her "in [her] private
places" and touched her "middle" where "you go to the bathroom" was "sufficient to
establish that she was the victim of a 'sexual act' which the statute defines as intentional
touching of the unclothed genitalia." United States v. Eagle, 137 F.3d 1011, 1014 (8th
Cir. 1998). Rather, this case is similar to United States v. Two Bulls, 940 F.2d 380
(8th Cir. 1991), cert. denied, 502 U.S. 1065 (1992), in which this court held that the
district court did not err in refusing to give a lesser included offense instruction on
abusive sexual contact. In that case, the victim's testimony established aggravated
sexual abuse and because the defendant had "professed complete innocence . . . his
testimony could not support a conviction on any offense." Id. at 382.

                                            -9-
suspicion." United States v. Miner, 131 F.3d 1271, 1273 (8th Cir. 1997). Moreover,
"skepticism about recantations is especially applicable in cases of child sexual abuse
where recantation is a recurring phenomenon . . ..'" Id. (quoting United States v.
Provost, 969 F.2d 617, 621 (8th Cir. 1992), cert. denied, 502 U.S. 1056 (1993)). Here,
the district court carefully considered all the circumstances of the case in concluding
the recantation was not credible, and we will not reverse its decision.

CONCLUSION

      Accordingly, we affirm the judgment.

BRIGHT, Circuit Judge, dissenting.

        The majority of our panel concludes that the district court properly refused to
give a jury instruction for the lesser offense of abusive sexual contact and that the
district court properly refused to grant a Daubert hearing on the admissibility of
polygraph evidence supporting the defendant's professed innocence. The majority
justifies its conclusion by ruling that the defendant did not properly preserve the jury
instruction issue for appeal. The majority has further ruled that the polygraph evidence
was inadmissible under FED. R. EVID. 403. I disagree on both issues. The majority
interprets precedent to require an unnecessarily high standard of specificity when
lawyers request jury instructions during trial. In addition, Rule 403 is an improper
basis for affirming the district court's exclusion of the polygraph evidence: the
polygraph evidence was relevant, and the district court erred when it failed to hold a
Daubert hearing on the test's reliability.

      BACKGROUND

      On September 23, 1998, a jury convicted Clifton Waters of the aggravated
sexual abuse of his seven-year-old daughter, M.W., primarily on the basis of testimony

                                             -10-
about one December evening around Christmas 1996.5 Before indictment, the FBI
administered a polygraph examination on Waters. During this exam, an FBI agent
asked Waters whether he had committed elements of aggravated sexual abuse: the
questions were specific, targeted at the essence of the crime, and highly relevant. The
agent asked the following:

      A. Did you ever place your fingers in [the victim's] vagina? . . .
      B. Did you ever touch [the victim's] private areas in a sexual way? . . .

App. at 17.

       Waters answered both questions in the negative. The examiner determined that
his answers were nondeceptive. Before trial, defendant requested information about
the polygraph test from the government.6 The government ignored the discovery
request. Both before trial and during trial, the defense requested that the polygraph
evidence be admitted. The district court ruled that the defense had not satisfied its
burden of showing that a Daubert hearing was necessary; the court did not take notice
of the federal government's abuse of the discovery process by refusing to turn over
evidence in its possession concerning the polygraph exam taken at the government's
behest. TT 144-45.

       At trial, the victim’s testimony reflected her reticence and confusion about the
details of the abuse. Despite the confusion, all of the other witnesses indicated that,
during the sexual abuse of M.W., at least one other man, Duane Fire Thunder, was

      5
       Most of the government's evidence focused on one evening during December
1996, although the government also presented some testimony that sexual abuse
occurred one evening in the summer of 1996. TT 29-30, 33.
      6
       This request asked for information such as: the full listing of all questions asked
of defendant by examiner, the examiner's training and experience in administering
polygraph exams, and information regarding the type of polygraph procedures used.

                                          -11-
present in the room where the abuse occurred. TT 27. Fire Thunder's presence that
night placed the victim's already equivocal identification of Waters as the perpetrator
in further doubt because Fire Thunder could have committed the crime. After trial, the
victim recanted her trial testimony and identified Fire Thunder as the man who had
abused her.

        As the trial came to a close, the defendant requested a jury instruction for the
lesser included offense of abusive sexual contact. The district judge denied the request,
finding that no rational jury could convict the defendant of abusive sexual contact, and
not convict on the aggravated sexual abuse charge.




      Instruction on the Lesser Included Offense of Abusive Sexual Contact

       As a procedural matter, the majority holds that the defendant did not properly
preserve this issue for appeal because he failed to specify facts from the victim's direct
examination that supported his request for an instruction. Such a holding misconstrues
the meaning of the phrase "specific fact situation." Under United States v. Oakie, 12
F.3d 1436 (8th Cir. 1993), a defense attorney must articulate to the presiding judge the
"specific fact situation" that constitutes grounds for a lesser included instruction to the
district judge. The defense must rely on that "fact situation" and the rationale stated at
trial when arguing its case on appeal. See Oakie, 12 F.3d at 1442 (citing FED. R. CRIM.
P. 30).

       In this case, Waters' request for an instruction complied with the Oakie
requirements. Although the defendant now broadens the number of references to the
record, he has presented substantially the same facts on appeal that he did at trial to




                                           -12-
support the legal theory he used to make his original request. TT 164-69.7 The context
of the conversation between the judge and defense counsel indicates that counsel was
referring to the victim's entire testimony when pointing out facts that supported giving
an instruction on the lesser charge.8 Without a daily transcript, the trial court, which
also has heard the evidence, should not require an enumeration of every statement of
fact, only a general "fact situation." In this case, the judge was aware of the
inconsistencies in the victim's testimony but improperly relied on the weight of the
evidence and also rejected portions of the testimony because the defendant testified that
he was innocent.9


      7
        At trial, defense counsel stated the following upon being asked to "outline the
facts scenario" that would justify the giving of a lesser included offense instruction:

      It's my recollection based on notes I took during the alleged victim's direct
      testimony, . . . that [Waters] allegedly asked her to take off her pants and
      started touching her front and back. Then a guy came up. There was no
      testimony of any penetration of any kind at that point.

      ....

      She described another time at her house in Rockyford in the trailer house;
      said [Waters] told her to take off her pants, touched both private places.
      Still no evidence of any penetration of any kind. . . . Based on that direct
      testimony from the alleged victim, there is no evidence of aggravated
      sexual abuse. . . . And by the way, she also testified [Waters'] clothes
      were on in both incidents. TT 168.
      8
        Some of the facts necessary for defendant to make a successful argument arose
through cross-examination of the victim. To the extent that her answers on cross-
examination impeached the victim's testimony, the jury could disregard some of M.W.'s
assertions.
      9
         After allowing the government to rebut the defense counsel's argument, the
district court stated:


                                          -13-
       While a district court has wide discretion in formulating jury instructions, a
defendant is entitled to a jury instruction "if the request is timely, the evidence supports
the [instruction], and the proffered instruction correctly states the law." United States
v. Brown, 33 F.3d 1002, 1004 (8th Cir. 1994).
       Abusive sexual contact is a lesser included offense of aggravated sexual abuse.
United States v. Two Bulls, 940 F.2d 380, 381 (8th Cir. 1991). The difference between
the two crimes turns upon whether there is a forced "sexual act" – necessary for
aggravated sexual abuse – or "sexual contact" – required for abusive sexual contact.
To receive the instruction, the defendant must show that the proof is sufficiently in
dispute that the jury could find the defendant innocent of the greater and guilty of the
lesser included offense. United States v. Eagle Hawk, 815 F.2d 1213, 1215 (8th Cir.
1987). Under federal law, a "sexual act" involves either penetration or touching the
genitalia10 underneath the clothing of a person younger than sixteen years old; "sexual
contact" involves only touching – either directly or over the clothes – of the genitalia
and other specified body parts, such as the buttocks. See 18 U.S.C. § 2246(2),(3)


       In this case the Court believes that there is no evidence that could
       possibly support a conviction on the lesser included offense of abusive
       sexual contact. The defendant took the stand; he steadfastly denied any
       touching of any kind, either sexual contact or sexual abuse. He now
       wishes to improve on his theory of defense which was that nothing
       happened, but in isolation hang his hat on a simple statement about
       contact about touching on the butt. . . . [T]here was . . . overwhelming
       evidence of penetration of the vaginal area indeed to the extent that the
       hymenal ring had completely disappeared. . . . [T]he victim testified that
       the sexual act was committed on her and if the jury credits her testimony,
       it would be compelled to find aggravated sexual abuse which, of course,
       was confirmed by Dr. Lori Strong. . . . [T]he defendant has professed
       complete innocence so his testimony could not support a conviction on
       either offense. TT 170-71.
       10
        Under 18 U.S.C. § 2246(2)(D) (1998), a sexual act does not include the
intentional touching of the buttocks.

                                           -14-
(1998) (emphasis added). To succeed, the defendant must show that the jury could
have found him guilty of sexual contact but not guilty of engaging in a forced sexual
act. See Two Bulls, 940 F.2d at 381.

        M.W. testified on direct examination that Waters had penetrated her vaginal area
with his fingers and, in fact, his whole hand. However, on cross-examination she
testified that he had not penetrated her. TT 54. Most importantly, it was unclear from
her testimony whether he had touched her underneath her clothing at all. TT at 40-43.
If a rational jury could find that Waters had not penetrated M.W., nor had he touched
her genitalia beneath her clothing but that he had engaged in sexual contact, then the
defendant satisfied his burden. There existed a reasonable doubt about whether he
committed aggravated sexual abuse. Failure to give the instruction amounted to an
abuse of discretion because, in light of the victim's entire testimony and its
inconsistencies, a rational jury could have found the lesser and not the greater offense.
Where the single witness to the crime was a seven-year-old victim – confused and
traumatized not only by the abuse, but by the trial as well – who could not clearly and
consistently articulate what had happened to her, a lesser included offense instruction,




                                          -15-
under the evidence in the case, should have been submitted to the jury.11 The error was
harmful to the defendant and should be reversed.

       The Polygraph Evidence

       Polygraph test results take on special importance when evidence is sparse and
the primary witness's testimony is highly unreliable. In such situations, polygraph
exams that are performed with the latest techniques and that inquire into the central
elements of the crime charged become increasingly relevant because they add to the
jury's otherwise minimal knowledge base. Polygraph test results should be treated as
highly relevant, as in a case such as this one, when very little consistent evidence is
presented to the jury.




       11
         The district court justified its decision, in part, by drawing an analogy to United
States v. Two Bulls, 940 F.2d 380 (8th Cir. 1991). The district court cited Two Bulls
for the proposition that if a defendant professes complete innocence, the defendant
cannot ask for an instruction on a lesser included offense. TT 171-72. This is not the
rule of Two Bulls, nor is it the general rule upon which district judges should determine
whether to give a lesser included instruction. In Two Bulls, the victim claimed that
Two Bulls and another man raped her, while the defendant claimed he was absent when
the victim was raped. The victim clearly identified the defendant as the perpetrator,
and the evidence showed that rape had occurred. No evidence of abusive sexual
contact existed. See Two Bulls, 940 F.2d at 382. In a situation like that in Two Bulls,
no rational jury could find that abusive sexual contact, but not rape, had occurred: the
defendant insisted he was not present during the crime, but the crime committed was
clearly rape. This case is distinguishable for three reasons: (1) the victim's own
testimony raised the question of whether the greater or lesser offense occurred; (2) the
evidence presented did not clearly show that aggravated sexual abuse and not abusive
sexual contact had occurred; and (3) the defendant did not claim to be absent at the
time of the offense – he merely maintained that he did not commit the act charged.

                                           -16-
       The Polygraph Test and Rule 702

       Although the Supreme Court has upheld per se exclusions of polygraph evidence
in the military, see United States v. Scheffer, 118 S. Ct. 1261 (1998), per se exclusion
of polygraph evidence is not the rule of the Eighth Circuit, nor in other circuits in a non-
military context. See, e.g., United States v. Williams, 95 F.3d 723 (8th Cir. 1996).
Polygraph test results may be admissible when the indices of reliability are present.
Studies have shown that polygraph results can be accurate as much as 97.5% of the
time, and even critics of the polygraph place its accuracy at 70%. The Supreme Court
has articulated particular factors that affect polygraph reliability, such as: the
examiner's integrity, independence, choice of questions, or training in the detection of
deliberate attempts to provoke misleading physiological responses. See Scheffer, 118
S. Ct. at 1276 (Stevens, J., dissenting). Reliability of polygraph test results will also
depend on the polygraph technique used; there are a number of different questioning
tactics that use different logical assumptions to detect lies. See United States v.
Gilliard, 133 F.3d 809, 812-14 (11th Cir. 1998). Another index of reliability, present
in this case, is the type of result: exculpatory polygraphs are more reliable than
inculpatory ones because the test tends to create false positives rather than false
negatives. 118 S. Ct. at 1276.

        Because the reliability of any polygraph exam must be assessed in a
particularized inquiry, a Daubert hearing will generally be required to determine
admissibility. The district court's failure to grant a hearing based on a generalized "lack
of consensus" about the reliability of polygraph evidence creates a de facto per se
exclusion, and as such, commits an error of law. TT 2, 144-47. The district court must
enable the parties to develop the facts necessary to make a particularized determination
of reliability. Such is the role of “gatekeeper” required by Daubert. See Kumho Tire
v. Carmichael, 119 S. Ct. 1167, 1175 (1999) (citing Daubert, 509 U.S. at 591).




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       Some statements in the record suggest that the district court may have denied the
Daubert hearing because the defense did not establish sufficient foundation for the
claim that this particular exam was reliable. If that were the court's rationale, then the
district court erred in failing to require the prosecution to give the defense the
information it requested under Fed. R. Crim. P. 16(a)(1)(D) (1999). Because the
particularized inquiry into the particular polygraph examination sits at the crux of the
matter, the government clearly obstructed the defendant's burden of establishing a
foundation for a Daubert hearing when it did not produce the polygraph evidence
requested by defendant. Such government action borders on infringement of the Brady
rule. See Brady v. Maryland, 373 U.S. 83 (1963).

      A Daubert hearing need not be granted as a matter of course before a Rule 702
determination can be made on a polygraph exam; however, the basic information
necessary to determine the reliability of a polygraph exam should be present and
available to the court. In this case, it was clear that the government possessed the
relevant information but declined to disclose essential facts. When such facts could be
made readily available, but are not, a court should presume that further investigation
and discussion of the matter is necessary.

       This court cannot know whether the polygraph evidence was sufficiently reliable
to warrant admission into trial because the government never revealed, and the district
court never heard, the information necessary to determine such reliability. One
wonders, however, why the government so often uses polygraph tests if it believes its
results are unreliable. Justice Stevens notes this very point in his Scheffer dissent: "It
is incongruous for the party that selected the examiner, the equipment, the testing
procedures, and the questions asked of the defendant . . . to challenge the competence
of the procedures that it has developed and relied upon in hundreds of thousands of
cases." 118 S. Ct. at 1278. The government cannot administer polygraph tests to
whomever it chooses, and then, depending on the outcome, decide whether those
results should be admitted at trial. It may be that, when the government administers the

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polygraph exam, the district court should employ a presumption of reliability of the
polygraph results.

      The rejection of polygraph evidence on the basis of FED. R. EVID. 403 seems
inappropriate when the foundation and background of the tests remain hidden. Rule
403 reads:

              Although relevant, evidence may be excluded if its probative value
      is substantially outweighed by the danger of unfair prejudice, confusion
      of the issues, or misleading the jury, or by considerations of undue delay,
      waste of time, or needless presentation of cumulative evidence.

      The polygraph test could be extremely relevant and under proper instructions,
would not unfairly prejudice the government, confuse the issues, cause delay or waste
time. Obviously the evidence would not be cumulative. However, the Rule 403 issue
would need to await the results of the Daubert hearing.

      CONCLUSION

       The trial judge sentenced Waters to fourteen years imprisonment for a crime in
which his guilt remains in serious question. Accordingly, I would grant him a new trial
on the lesser included offense instruction issue and require the prosecution to provide
discovery for a Daubert hearing on the admissibility of the polygraph evidence.

      A true copy.

            Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT



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