MOTION IN LIMINE TO ADMIT POLYGRAPH EVIDENCE by ipx46851

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									Case 1:07-cr-20839-PCH        Document 126          Entered on FLSD Docket 05/01/2008             Page 1 of 28



                                  UNITED STATES DISTRICT COURT
                                  SOUTHERN DISTRICT OF FLORIDA

                                     CASE NO.: 07-20839-CR-HUCK

     UNITED STATES OF AMERICA,

            Plaintiff,

     v.

     GUILLERMO ZARABOZO,

            Defendant.
                                         /

                    MOTION IN LIMINE TO ADMIT POLYGRAPH EVIDENCE

            Guillermo Zarabozo, through undersigned counsel, pursuant to Fed.R.Crim.P. 47(a), Fed.

     R.Evid. 608, Fed.R.Evid. 702, the Due Process Clause of the United States Constitution, and

     pursuant to other applicable rules, law, and Constitutional protections, hereby moves in limine for

     the admission of relevant polygraph evidence. Mr. Zarabozo has passed scientifically valid

     polygraph examinations conducted by two separate, leading experts in the field of polygraph

     examination. Both experts have determined that Mr. Zarabozo truthfully answered questions that

     demonstrate he did not: (1) commit premeditated murder, i.e., shoot anyone; (2) conspire to commit

     murder; or (3) commit felony murder. The Eleventh Circuit has held that polygraph evidence is

     admissible to corroborate the testimony of a witness at trial–here, Mr. Zarabozo. See United States

     v. Piccinonna, 885 F.2d 1529, 1536-37 (11th Cir. 1989). Moreover, for the reasons discussed in

     detail below, the science of polygraph examination has evolved to a point where it clearly satisfies

     the requirements of Daubert. As Justice Potter Stewart stated, “Any rule that impedes the discovery

     of truth in a court of law impedes as well the doing of justice.” Hawkins v. United States, 358 U.S.

     74, 81 (1958) (Stewart, J., concurring). Any effort to deprive a jury from hearing the results of Mr.
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     Zarabozo’s polygraph examinations would run contrary to Justice Stewart’s admonition and would

     impede justice in this case.

                           FACTUAL AND PROCEDURAL BACKGROUND

     A.     Government Allegations and Indictment

            1.      On September 24, 2007, Mr. Zarabozo was arrested, along with his co-defendant,

     Kirby Logan Archer. Upon being arrested, Mr. Zarabozo was interviewed about the events that took

     place on September 22-23, 2007 on the Joe Cool boat. Although those statements should be

     suppressed for reasons explained in Mr. Zarabozo’s motion to suppress, the alleged inconsistencies

     between Mr. Zarabozo’s statements and Mr. Archer’s statements form the heart of the government’s

     case. According to the government, Mr. Zarabozo and Mr. Archer each described a hijacking of the

     boat by three hijackers who overtook the Joe Cool and killed the four crew members. Significantly,

     despite the extensive interrogation of Mr. Zarabozo, at no point did Mr. Zarabozo confess to any

     wrongdoing. Mr. Zarabozo did not confess because he did nothing wrong. Mr. Zarabozo did not

     kill or participate in the killing of any of the crew members on the Joe Cool. Mr. Zarabozo also had

     no knowledge that Mr. Archer intended to shoot anyone on board the Joe Cool or steal the Joe Cool.

     Overall, Mr. Zarabozo did not make any of these confessions because as the polygraph examinations

     demonstrate, none of these things took place.

            2.      On February 28, 2008, a Second Superseding Indictment [D.E. 85] was filed in the

     case against Mr. Archer and Mr. Zarabozo. Count I charges Mr. Archer and Mr. Zarabozo with

     conspiracy to commit violence against maritime navigation in violation of 18 U.S.C. §§

     2280(a)(1)(H) and 2280(b)(1). Count II charges Mr. Archer and Mr. Zarabozo with seizing and

     exercising control over a ship by force, threat thereof, and intimidation in violation of 18 U.S.C. §§


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     2280(a)(1)(A), 2280(b)(1), and 2. Count III charges Mr. Archer and Mr. Zarabozo with performing

     an act of violence likely to endanger the safe navigation of a ship in violation of 18 U.S.C. §§

     2280(a)(1)(B), 2280(b)(1), and 2. Counts IV through VII charge Mr. Archer and Mr. Zarabozo with

     murder in the first degree in violation of 18 U.S.C. §§ 1111(a) and 2. Counts VIII through XI charge

     Mr. Archer and Mr. Zarabozo with four count of kidnaping in violation of 18 U.S.C. §§ 1201(a)(2)

     and 2. Count XII charges Mr. Archer and Mr. Zarabozo with robbery in violation of 18 U.S.C. §§

     2111 and 2. Counts XIII through XVI charge Mr. Archer and Mr. Zarabozo with causing death

     through use of a firearm in the course of violation 18 U.S.C. § 924(c) in violation of 18 U.S.C. §§

     924(c)(1)(A), 924(j)(1), and 2.

            3.      The evidence against Mr. Zarabozo is entirely circumstantial. There were no eye

     witnesses to the incidents on the Joe Cool boat. Mr. Zarabozo has not confessed in any way. And

     finally, there is no fingerprint or DNA evidence directly linking Mr. Zarabozo to the charges.

     Despite the circumstantial nature of the case, the government has decided to move forward, and at

     this time intends to pursue the death penalty against Mr. Zarabozo. Regardless of whether that

     decision is ultimately certified by the Attorney General of the United States and the Department of

     Justice, Mr. Zarabozo’s life is at stake.

            4.      The prosecution, in discussing the circumstantial nature of the case, admitted that the

     case against Mr. Zarabozo is daunting without a confession: “Our jobs, unfortunately, are not that

     simple.” Making murder case not easy job, Miami Herald at B1 (October 12, 2007). In fact, the

     prosecution made clear that the case against Mr. Zarabozo rests primarily on his own words: “Little

     of the Defendants’ Stories Ring True.” 2 Charged in Killings of Ghost Ship Crew, Miami Herald

     (October 10, 2007).


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     B.     Polygraph Examinations

            5.      In an effort to find the truth in this case, defense counsel retained two leading

     polygraph examination experts to examine Mr. Zarabozo. Significantly, the defense did not engage

     in a shopping expedition until it found experts who would reach results favorable to Mr. Zarabozo.

     The two experts retained by the defense were the first two experts the defense retained and both

     experts administered their examinations in an objective, professional manner without a pre-

     conceived outcome.

            6.      John J. Palmatier, Ph.D., has been conducting polygraph examinations since 1983.

     From 1983 to 2000, Mr. Palmatier conducted polygraph examinations for the Michigan State Police.

     Since 2000, Mr. Palmatier has been in private practice, where he has provided consulting services,

     researched credibility assessment, taught various lie detection and other criminal justice courses, and

     conducted credibility assessments. Mr. Palmatier has testified as an expert in numerous cases,

     including testimony on behalf of the Michigan State Police, and most recently in United States

     District Court for the Southern District of Florida regarding polygraph and related validity issues.

     Mr. Palmatier has also authored or co-authored peer-reviewed articles, including an article that is

     scheduled for publication in July, 2008 regarding the effect of two types of control questions and two

     question formats on the outcomes of polygraph examinations. Mr. Palmatier’s curriculum vitae is

     attached to this motion as Exhibit A.

            7.      Mr. Palmatier conducted his examination of Mr. Zarabozo on February 21, 2008. The

     purpose of the examination was to determine the truth of Mr. Zarabozo’s statements regarding the

     extent of his participation in the charged offenses which took place on board the Joe Cool boat.

     Specifically, prior to hearing gunshots, Mr. Zarabozo claims he had no knowledge of Mr. Archer’s


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     intentions or planned offenses.      Dr. Palmatier began his examination of Mr. Zarabozo by

     interviewing him extensively about the allegations in the case. In conducting the examination, Dr.

     Palmatier utilized the “Probable Lie Control Question” technique. Under this technique, Dr.

     Palmatier asked Mr. Zarabozo a series of questions. First, Mr. Zarabozo was asked a neutral or

     irrelevant question. He was then asked a “sacrifice relevant” question. The purpose of the “sacrifice

     relevant” question is to dissipate stress and initiate the subject to the relevant area of questioning.

     Mr. Zarabozo was then asked a comparison question and then a series of relevant questions to be

     evaluated for truthfulness in comparison to the comparison question. The relevant questions were

     designed to address the most fundamental questions about this case: Did Mr. Zarabozo commit first

     degree murder?, did Mr. Zarabozo conspire to commit first degree murder?, and did Mr. Zarabozo

     commit felony murder, i.e., did he conspire to commit robbery of the Joe Cool?

            8.      Mr. Zarabozo was specifically asked the following relevant questions and gave the

     following answers:

                    “1.     While on the Joe Cool, did you shoot anyone? Answer – No.

                    2.      Before hearing the first gunshot, had you talked with Kirby Archer
                            about shooting anyone on board the Joe Cool? Answer – No.

                    3.      Before hearing the first gunshot, had you talked with Kirby Archer
                            about stealing the Joe Cool? Answer – No.”


            Dr. Palmatier then used various methods to analyze the truthfulness of Mr. Zarabozo’s

     answers. First, Dr. Palmatier used a traditional review of the physiological data. Second, the data

     was analyzed using a recent innovation – the “Objective Scoring System 3 (OSS3). This software

     is an empirically based objection scoring system which has been subjected to peer-reviewed research.



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     The underlying statistics and formulas used in this program were subjected to further evaluation by

     psychometrician’s at Queens University in Kingston, Ontario, Canada. Based on his expertise and

     reviews, Dr. Palmatier determined that there was less than a 00.1 percent chance that Mr. Zarabozo

     was deceptive or lying in responding to the above relevant questions. In other words, Dr. Palmatier

     concluded that there is a 99.9 percent chance or greater that Mr. Zarabozo answered the relevant

     questions truthfully. Dr. Palmatier’s expert report (and summary of his experience) is attached to

     this motion as Exhibit B. Moreover, Dr. Palmatier videotaped his entire examination of Mr.

     Zarabozo.

            9.    Thomas K. Mote, Sr. has been a forensic polygraph examiner for 26 years. From 1984

     to 1997, Mr. Mote conducted over 500 polygraph examinations annually on behalf of the Miami-

     Dade Police Department, Homicide Bureau. Since 1997, Mr. Mote has worked in private practice.

     Mr. Mote is certified by the Florida Polygraph Association. Like Dr. Palmatier, Mr. Mote has

     extensive training in administering polygraph examinations. He has also been qualified as an expert

     witness regarding polygraph issues in several cases, including as a government witness for the State

     of Florida, and in United States District Court for the Southern District of Florida (as a government

     witness in trials in 1994 and 1995).         Mr. Mote has various commendations, including

     commendations from the United States Marshal’s Service for the Southern District of Florida and

     the United States Attorney’s Office for the Southern District of Florida. Mr. Mote’s curriculum vitae

     is attached to this motion as Exhibit C.

            10.     Mr. Mote conducted his examination of Mr. Zarabozo on March 18, 2008. The

     purpose of his examination was also to determine whether Mr. Zarabozo is being deceptive when

     he states he had no prior knowledge of what Mr. Archer planned to do and eventually did do on the


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     Joe Cool. Consistent with the appropriate scientific method, Mr. Mote first interviewed Mr.

     Zarabozo extensively regarding the allegations in the case and the events that took place on the Joe

     Cool boat. Mr. Mote reports the results of his interview in his report, which is attached to this

     motion as Exhibit D.

            11.     In summary, Mr. Zarabozo informed Mr. Mote that he believed he was accompanying

     Mr. Archer for the purpose of engaging in legitimate security work in Bimini. Mr. Zarabozo

     believed that he would then be conducting additional intelligence and security work with Mr. Archer

     in Cuba and Venezuela for the Central Intelligence Agency. Mr. Zarabozo did not realize anything

     illegal was going to happen until Mr. Archer began to shoot and kill the crew members of the Joe

     Cool. Mr. Zarabozo stated to Mr. Mote that Mr. Archer used Mr. Zarabozo’s firearm to kill the crew

     members. Moreover, Mr. Archer threatened to kill Mr. Zarabozo if Mr. Zarabozo did not help Mr.

     Archer throw the bodies of the crew members overboard and help clean the boat. Mr. Zarabozo

     admitted to lying to agents upon his arrest because he was stressed, confused, and in fear.

            12.     Following the pre-test interview, Mr. Mote, also using the “probable lie control

     question” technique, was asked the following relevant questions (the first one being the control

     question), and gave the following answers:

            “Q1:    Regarding what you knew before that charter boat the ‘Joe Cool’ crew was killed and

                    the boat hijacked last September 22, 2007: Do you intend to answer truthfully each

                    question about that” A1: Yes.

            Q2:     Other than what you now know: At any time before the crew members of the Joe

                    Cool were shot: For any reason did you really know that was going to happen? A2:

                    No.


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            Q3:     When you said that before the shooting occurred on that boat the Joe Cool; that the

                    only reason you were on board, was to travel to Bimini and participate in pre-planned

                    security job with Kirby Archer, did you lie about that? A3: No.

            Q4:     When you said that you expected to participate in a future CIA assignment with

                    Kirby Archer either in Cuba or Venezuela after the Bimini security job was done: Did

                    you lie about that? A4: No.

            Q5:     When you said that you brought your handgun for use on the Bimini security job and

                    that it was never intended to be used by you or Kirby Archer to hijack that boat the

                    Joe Cool: Did you lie about that? A5: No.”

            13.     Mr. Mote then proceeded to analyze and evaluate Mr. Zarabozo’s responses to

     questions two through five and determined that Mr. Zarabozo was not being deceptive and answered

     the questions truthfully. Mr. Mote utilized the “Backster Zone Comparison Test” to evaluate Mr.

     Zarabozo’s answers. The “Backster Zone Comparison Test” has been researched, peer reviewed,

     and validated as a recognized scientific technique by the American Polygraph Association, the

     Florida Polygraph Association, the American Association of Police Polygraphists, the Federal

     Bureau of Investigation, and the Department of Defense Polygraph Institute. Mr. Mote also

     videotaped his entire examination of Mr. Zarabozo.

            14.     Mr. Zarabozo will be a witness in this case. Undoubtedly, the prosecution will seek

     to attack his credibility, particularly in light of Mr. Zarabozo’s original statement to the authorities

     upon his arrest. The admission of the polygraph results conducted by Dr. Palmatier and Mr. Mote

     are essential to rebut the government’s inevitable attacks against Mr. Zarabozo’s testimony. See

     Piccinonna, 885 F.2d at 1536; see also Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (“[T]he


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     Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete

     defense.’”).

            15.     Overall, two leading experts in the field of polygraph examinations evaluated Mr.

     Zarabozo extensively to determine the truth of what took place on the Joe Cool boat on September

     22, 2007. The ultimate goal of any criminal case or trial is to determine the truth. Mr. Zarabozo

     truthfully responded to a series of questions about the tragic events on the Joe Cool. Mr. Zarabozo

     truthfully explained that Mr. Archer murdered the crew members on that date. However, Mr.

     Zarabozo did not participate in the killings, did not know the killings were to take place, and did not

     even know that Mr. Archer intended to steal the Joe Cool or kidnap the crew members. Mr.

     Zarabozo is innocent of the charges against him. For the reasons detailed below, the evidence of

     these polygraph examinations is not only admissible–it is essential for justice to be served. The jury

     in this case must be able to hear that when questioned under scientific conditions, Mr. Zarabozo

     spoke truthfully about his role in this case.

                                                ARGUMENT

            The Eleventh Circuit has held that polygraph evidence is admissible at the discretion of the

     Court in certain instances. Piccinonna, 885 F.2d at 1536-37. In Piccinonna, which was decided

     almost twenty years ago, the Eleventh Circuit noted that “[t]here is no question that in recent years

     polygraph testing has gained increasingly wide-spread acceptance as a useful and reliable scientific

     tool.” Id. at 1535. Thus, the Court concluded that “a per se rule disallowing polygraph evidence

     [was] no longer warranted.” Id.

            The Court held that polygraph evidence is admissible in two circumstances: (1) stipulation


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     between the parties; or (2) to impeach or corroborate the testimony of a witness at trial. Id. at 1536.

     Here, the government has not stipulated to the admissibility of Mr. Zarabozo’s polygraph

     examinations. Thus, the only issue for the Court’s determination is whether the polygraph

     examinations should be admitted to corroborate Mr. Zarabozo’s testimony at trial. In order for

     polygraph evidence to be admitted to corroborate testimony, three preliminary conditions must be

     met: (1) the party planning to use the evidence at trial must provide adequate notice to the opposing

     party that the expert testimony will be offered; (2) the opposing party must be given a reasonable

     opportunity to have its own polygraph expert administer a test covering substantially the same

     questions; and (3) the polygraph evidence must satisfy the Federal Rules of Evidence. Id. The

     Court further set forth instances in which the trial court may exclude polygraph expert testimony:

     (1) the polygraph examiner’s qualifications are unacceptable; (2) the test procedure was unfairly

     prejudicial or the test was poorly administered; or (3) the questions were irrelevant or improper. Id.

     at 1537. Finally, the Court noted that the admissibility of polygraph testimony was an “increasingly

     important issue.” Even at the time, almost twenty years ago, the Eleventh Circuit expressed its view

     that “the science of polygraphy has progressed to a level of acceptance sufficient to allow the use of

     polygraph evidence in limited circumstances where the danger of unfair prejudice is minimized.”

     Id.; see also United States v. Crumby, 895 F.Supp.1354, 1357 (D. Ariz. 1995) (describing the

     Eleventh Circuit’s approach as “novel” at the time and noting that it was “based on the Court’s view

     that advances in the science of polygraph have greatly increased the reliability of the tests and

     consequently reduced many of the prejudicial effects”). As discussed below, not only has the science

     of polygraphy progressed rapidly since 1989, but more importantly, each of the requirements of

     Piccinonna is satisfied in this case.


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            A.      Adequate Notice

            The first requirement for the admissibility of polygraph evidence is adequate notice. Trial

     is set in this case beginning the two-week period of June 9, 2008 (if the Department of Justice

     decides not to seek the death penalty against Mr. Zarabozo). Dr. Palmatier’s complete expert report

     and Mr. Zarabozo’s intent to admit Dr. Palmatier’s findings and testimony were disclosed to the

     government on February 29, 2008. At that time, Mr. Zarabozo’s counsel made clear that it hoped

     to agree to a stipulation with the government regarding the admissibility of the polygraph evidence

     and its willingness to allow the government to have its own retained expert administer a polygraph

     examination to Mr. Zarabozo. The government has, as of this date, not acted upon these invitations.

     Mr. Mote’s expert report and Mr. Zarabozo’s intent to admit Mr. Mote’s findings and testimony was

     disclosed orally to the government in early April, 2008. On April 15, 2008, Mr. Mote’s report was

     disclosed to the government as part of Mr. Zarabozo’s mitigation memorandum to the government

     regarding its intent to pursue the death penalty against Mr. Zarabozo. This provides the government

     with approximately two months notice to respond to Mr. Zarabozo’s invitation to reach a stipulation

     and/or to have a government expert administer a polygraph examination to Mr. Zarabozo.

            B.      Reasonable Opportunity

            The second requirement for the admissibility of polygraph evidence is that the opposing party

     must be given a reasonable opportunity to have its own polygraph expert administer a test covering

     substantially the same questions. The government has been given (and continues to be given) such

     a reasonable opportunity. Mr. Zarabozo, in fact, encourages the government to retain a qualified

     polygraph expert to administer an examination to Mr. Zarabozo.



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             Of course, any such examination should comply with the requirements of Daubert, like the

     examinations of Dr. Palmatier and Mr. Mote. Therefore, the following requirements should be

     ordered by the Court in allowing the government to administer a polygraph examination to Mr.

     Zarabozo:

             •         any expert retained by the government should qualify as an expert in polygraphy
                       pursuant to Daubert;


             •         any examination should take place in the Federal Detention Center (the site of the
                       examinations conducted by Dr. Palmatier and Mr. Mote);


             •         the government’s expert should utilize the “control question” technique;


             •         the government expert’s inquiry should be limited to the same substantive areas
                       covered by the relevant inquiries made by Dr. Palmatier and Mr. Mote; and


             •         the entire examination should be videotaped as was done by Dr. Palmatier and Mr.
                       Mote.


             •         the results, and related documentation, video and physiological data of any such
                       examination should be made available to Mr. Zarabozo’s attorney for review by
                       qualified experts.


             C.        Federal Rules of Evidence


                  The third requirement for the admissibility of polygraph evidence is that the polygraph

     evidence must satisfy the Federal Rules of Evidence.

                       1.     Rule 608

             In Piccinonna, the Eleventh Circuit specifically referenced Rule 608 as a rule that must be

     satisfied:


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                      For example, Rule 608 limits the use of opinion or reputation
                      evidence to establish the credibility of a witness in the following way:
                      ‘[E]vidence of truthful character is admissible only after the character
                      of the witness for truthfulness has been attacked by opinion or
                      reputation evidence or otherwise.’ Thus, evidence that a witness
                      passed a polygraph examination, used to corroborate that witness’s
                      in-court testimony, would not be admissible under Rule 608 unless or
                      until the credibility of that witness were first attacked.


     885 F.2d at 1536. Here, Mr. Zarabozo will be testifying in his own defense. His testimony will

     make clear that he did not kill anyone aboard the Joe Cool boat, did not know that Mr. Archer

     intended to kill the crew members aboard the boat, and did not know that Mr. Archer intended to

     kidnap the crew members or rob the boat. Inevitably, the prosecution will attack the veracity of Mr.

     Zarabozo’s testimony. The prosecution will assert that Mr. Zarabozo is lying and will point to his

     initial statement to agents upon his arrest. Therefore, under Piccinonna and Rule 608, the polygraph

     evidence will be admissible at trial. See United States v. Padilla, 908 F.Supp. 923, 928 (S.D. Fla.

     1995) (admitting polygraph evidence and stating that, consistent with Fed. R. Evid. 608(a), “once

     a witness’ character for truthfulness or credibility has been attacked, a polygraph expert may

     introduce testimony as to that witness’ character for truthfulness based on the results of a polygraph

     examination”).

            2.        Rule 702

            Piccinonna was decided before the United States Supreme Court’s decision in Daubert v.

     Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). However, in order to be admissible, polygraph

     evidence must comply with the requirements of Rule 702 and Daubert. See United States v.

     Gilliard, 133 F.3d 809, 812 (11th Cir. 1998). In Daubert, the Supreme Court held that expert

     scientific testimony is only admissible if (1) it constitutes scientific knowledge; and (2) it would

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     assist the trier of fact to understand the evidence or determine a fact in issue. Id. at 589-91. The

     Court also set forth factors that should be considered in determining whether a technique constitutes

     scientific knowledge: (1) whether the technique can be and has been tested; (2) whether the

     technique has been subjected to peer review and publication; (3) the known or potential rate of error;

     (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether

     the technique has attained general acceptance within the relevant scientific community. Id. at 593-

     94. Here, all of the requirements of Daubert are satisfied by Dr. Palmatier’s and Mr. Mote’s

     examinations of Mr. Zarabozo.

            As an initial matter, the Eleventh Circuit in Piccinonna, which again was decided almost

     twenty years ago, made clear that polygraph tests in general “possess enough scientific rigor to form

     an acceptable basis for expert opinion.” Padilla, 908 F.Supp. at 929. As Judge Atkins of this

     District explained, “[b]y eradicating this circuit’s per se ban on polygraph evidence, the Court of

     Appeals made an explicit determination that polygraph tests are sufficiently reliable to form the basis

     for expert testimony. Therefore, district courts have been left with the task of determining whether

     the specific examination has been conducted in accordance with acceptable principles so as to make

     it a sufficiently reliable basis for expert opinions in each case.” Id. (emphasis in original). Dr.

     Palmatier and Mr. Mote are both qualified experts in the field of polygraph examinations who

     conducted their examinations in accordance with accepted principles.

            Moreover, the specific technique utilized by the experts in this case has already been

     recognized by the Eleventh Circuit and the government as scientifically valid. Gilliard, 133 F.3d

     at 813. As the Court explained in Gilliard, there are a number of techniques that can be used to

     administer a polygraph examination, including the relevant/irrelevant technique, the concealed or

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     guilty knowledge technique, and the control question technique. Both Dr. Palmatier and Mr. Mote

     utilized the control question technique, and, more specifically, the probable lie control question

     technique. According to the Eleventh Circuit (in an opinion written ten years ago): “The first, and

     apparently the most tested and most widely used [control question technique], is called the probable

     lie control question technique. The Government concedes that this technique, if properly utilized,

     has been recognized in the scientific community as being ‘good science.’” Id. (emphasis added)1; see

     also United States v. Galbreth, 908 F.Supp. 877, 884-85 (D.N.M. 1995) (describing the methodology

     of the probable lie control question technique and ultimately admitting polygraph evidence

     conducted under an even less-accepted technique, the directed lie control question technique).

             Nonetheless, in light of the government’s inevitable challenge to the admissibility of this

     evidence, each Daubert consideration is addressed in detail below. First, the technique can be and

     has been tested. See, e.g., Galbreth, 908 F.Supp. at 885-86; Crumby, 895 F.Supp. at 1359. In fact,

     hundreds of studies had been conducted regarding the scientific hypothesis underlying the probable

     lie control question technique as of 1995. Galbreth, 908 F.Supp. at 885. “On the whole, these high

     quality studies support the hypothesis underlying the control question technique.” Id. Overall, “not

     only is it possible to test whether these polygraph techniques can accurately detect truth or deception,

     but, in fact, the techniques have actually been tested.” Id. at 891; see also Crumby, 895 F.Supp. at

     1359 (“In short, Dr. Raskin and the numerous authorities cited by Defendant strongly support the

     view that the science of polygraphy has been subjected to vigorous scientific testing and the



             1
              In Gilliard, the expert utilized another variation of the control question technique known
     as the hybrid control question technique. 133 F.3d at 814. The Court found that technique did
     not satisfy all of the requirements of Daubert.

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     assumptions underpinning the science have been deeply analyzed by those in the field of polygraphy

     and psychophysiology.”).

               Not only has polygraph evidence been subjected to rigorous testing, polygraph evidence has

     also been compared by scientists to other scientific evidence traditionally admitted at trial in criminal

     cases. See J. Widacki & F. Horvath, An Experimental Investigation of the Relative Validity and

     Utility of the Polygraph Technique and Three Other Common Methods of Criminal Identification,

     23 J. Forensic Sci. 596 (1978) (attached as Exhibit E). The results demonstrate that polygraph

     evidence is more reliable than handwriting expert testimony, eyewitness testimony, and fingerprint

     testimony. In this test, eighty volunteers participated in an experiment testing the ability of lay

     witnesses and expert witnesses to identify perpetrators out of four groups of twenty subjects. The

     scientists found that, excluding inconclusives, the fingerprint expert was correct in 100% of his

     decisions, the polygrapher was correct in 95% of his decisions, the handwriting expert was correct

     in 94% of his decisions, and the eyewitness was correct in 64% of his decisions. Significantly, when

     inconclusives were included, the percentage of correct decisions was 90% for the polygraph

     examiner, 85% for the handwriting expert, 35% for the eyewitness, and 20% for the fingerprint

     expert.      In another recent study, polygraph evidence was compared to other medical and

     psychological diagnostic tools. See Crewson, Comparative Analysis of Polygraph With Other

     Screening and Diagnostic Tools, 32 Polygraph 2 (2003) (attached as Exhibit F). Crewson concluded

     that polygraph evidence, in specific-issue testing, had a similar accuracy to diagnostic radiology and

     better accuracy than various medical and psychological tools, including MRIs and x-rays targeting

     breast cancer and multiple sclerosis, and DSM-IV analyses for personality disorders and depression.

     Id. at 63.

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            Second, the probable lie control question technique has been subjected to peer review and

     publication. In fact, there have been hundreds of articles published on the probable lie control

     question technique. Galbreth, 908 F.Supp. at 891. “Many of these articles have been published in

     peer-reviewed journals and otherwise subjected to the scrutiny of the scientific community.” Id.; see

     also Crumby, 895 F.Supp. at 1359 (“The Court finds that the science of polygraphy and its

     underlying scientific principles have been subjected to extensive peer review and publication.”). Dr.

     Palmatier, for example, has had articles related to the polygraph and the assessment of credibility

     published in the United States, France, and the People’s Republic of China.

            Third, the probable lie control question technique has a known or potential rate of error, and

     that rate is very low. See Crumby, 895 F.Supp. at 1359 (“The known error rates for the science of

     polygraphy are remarkably low.”). As of 1995, “where the exams are properly conducted, where the

     numerical scoring system is employed, and where the examiner is highly qualified,” “the known rate

     of error [was] approximately 10% with innocent subjects, i.e., false-positive errors, and 5% with

     guilty subjects, i.e., false negative errors.” Galbreth, 908 F.Supp. at 892. A false-negative occurs

     when a deceptive examinee is reported as being truthful. Here, neither expert detected any indication

     that Mr. Zarabozo was being deceptive and found him to be truthful. Therefore, the rate of error

     with such a negative finding is, at most, 5%. See Crumby, 895 F.Supp. at 1360 (“In the present case,

     Mr. Crumby appeared to be truthful, and thus, the statistical probability of Mr. Crumby actually

     being deceptive is roughly five percent.”). In other words, there is a 95% chance, at worst, that Mr.

     Zarabozo was telling the truth. Dr. Palmatier, who utilized multiple scoring and evaluation

     techniques, in fact, determined that there was less than a 00.1 percent chance that Mr. Zarabozo was

     deceptive or lying during his examination.

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               Fourth, the probable lie control question technique is subject to standards controlling its

     operation. The American Polygraph Association (“APA”), “which has about 2,500 members,

     accredits schools of polygraphy, screens its members and administers written and oral tests to

     graduates to assure an established level of competency. Standard test protocol calls for pre-test

     collection of data, a pre-test interview, administration of the test questions (usually in a control

     question format) and a post-test interview. In addition, the APA sanctions members who do not

     follow enumerated testing procedures.” United States v. Posado, 57 F.3d 428, 434 & n.9 (5th Cir.

     1995) (also noting that “there is good indication that polygraph technique and the requirements for

     professional polygraphists are becoming progressively more standardized”); see also Piccinonno,

     885 F.3d at 1533 n.13 (“The American Polygraph Association and state organizations have standards

     in their charters which their members must follow as well.”). Both Dr. Palmatier and Mr. Mote are

     members of the APA. (Mr. Mote has served on various committees of the APA during his

     membership years). The New Mexico Supreme Court described the APA’s standards as follows:

             Under these standards, prior to examination, the polygraph examiner must make a
             reasonable effort to determine whether an examinee is fit for polygraph testing by
             inquiring into the medical and psychological condition of the examinee, as well as
             any recent drug use by the examinee, APA Standard 3.4.1; the polygraph instruments
             must be APA approved and have been calibrated, APA Standard 3.5; and a pretest
             interview must be conducted where the examiner both discusses with the examinee
             the polygraph process and the issues to be tested and ensures that the examinee
             recognizes and understands each question, APA Standard 3.8. During the
             examination, the questions used must be clear and distinct, APA Standard 3.9.3; the
             questions used must be balanced in terms of length and impact, APA Standard 3.9.4;
             the examiner must collect a sufficient number of charts, APA Standard 3.9.5;
             standardized chart markings should be used, APA Standard 3.9.7; and either an audio
                                                nd t                       n     e de PA ndad .
             oraudio/videorecordingofthepretesta in-estphaseoftheexaminatio mustb ma ,A Sta r 39.8.Asforscoringthechart,theexaminermustuse
     numerical scoring, APA Standard 3.10.1; and the examiner's notes must have ‘sufficient clarity and
     precision so that another examiner could read them,’ APA Standard 3.10.2.

     Lee v. Martinez, 96 P.3d 291, 304 (N.M. 2004). The American Association for Police Polygraphists


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     has also set out standards of practice and ethics. See www.policepolygraph.org/standards.htm (last

     visited April 16, 2008).

             Moreover, many states, although not the State of Florida, have licensing regulations.

     Galbreth, 908 F.Supp. at 892. In the federal sector, in order to practice as a polygraph examiner for

     a federal agency, an individual must attend a polygraph school, usually the Department of Defense

     Polygraph Institute (which is discussed in more detail below), and must receive a certificate before

     he/she can administer examinations. Additionally, most of the federal agencies have quality control

     programs where examiners’ work is reviewed periodically. Id.

             Fifth, the probable lie control question technique has attained general acceptance within the

     relevant scientific community. As an initial matter, in Daubert, the Supreme Court made clear that

     “general acceptance” is no longer an absolute prerequisite to admissibility. Daubert, 509 U.S. at

     588-89. It is still, however, a factor that is satisfied in this case.

             Various surveys regarding the general acceptance in the relevant community have been

     conducted and demonstrate that polygraph evidence is accepted within the psychophysiological

     community. See The Gallup Organization, Survey of Members of Society for Psychological

     Research Concerning Their Opinion of Polygraph Test Interpretation, 13 Polygraph 153 (1984);

     (attached as Exhibit G); Susan L. Amato & Charles Honts, A Survey of Members of the Society for

     Psychophysiological Research Regarding the Polygraph (1993) (attached as Exhibit H). Based on

     these surveys and studies courts have concluded that “use of polygraph evidence is widespread” and

     that polygraph evidence is generally accepted within the professional community. Crumby, 895

     F.Supp. at 1360 (stating that the Amato/Honts survey “suggests that there is a large community of

     psychophysiologists who accept and endorse the use of polygraph examinations in a variety of


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     circumstances”); see also Galbreth, 908 F.Supp. at 892-93. In Galbreth, in which the Court

     specifically considered the validity of the control question technique, the Court held “for purposes

     of meaningfully accessing the scientific validity of the control question technique, this Court has

     considered the degree of acceptance amongst well-informed members of the relevant scientific

     community. The Court finds the high degree of acceptance within this group to be particularly

     indicative of reliability.” 908 F.Supp at 893.

            Moreover, polygraph examinations have gained general acceptance within the federal

     government–the same government opposing its admissibility here. See United States v. Rafael

     Davila, CR-03-021-RHW at 8 (E.D. Wash. April 22, 2005) (unpublished).2 In 1986, the Department

     of Defense Polygraph Institute was created. The Institute is a federally funded institution providing

     graduate and continuing education courses in forensic psychophysiology. Its mission is four-fold:

     to (1) qualify Department of Defense and other federal personnel for careers as psychophysiological

     detection of deception (PDD) examiners; (2) provide continuous research in forensic

     psychophysiology and credibility assessment methods; (3) manage the PDD continuing education

     certification program for federal agencies; and (4) manage the Quality Assurance Program that

     develops, implements, and provides oversight of PDD standards for federal polygraph programs.

     DoDPI Mission, at http://www.dodpi.army.mil/mission.asp (last visited April 16, 2008).

            The Institute developed a curriculum and improved instruction of federal polygraph

     examiners. The Institute also set up a strict quality assurance program that was initially published

     in 1998 in a handbook. See Quality Assurance Program, at http://www.dodpi.army.mil/div_QAP.asp


            2
             A copy of United State District Judge Robert Whaley’s Order Denying the Government’s
     Motion In Limine In Opposition to the Admission of Polygraph Evidence in United States v.
     Rafael Davila and Deborah Cummings, is attached to this motion as Exhibit I.

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     (last visited April 16, 2008). The Institute also has a research division that supports a wide variety

     of research projects in an effort to achieve its mission. As of 2005, there were at least 600 polygraph

     examiners employed by the federal government. At least 25 different federal agencies routinely

     conduct polygraph examinations. And recent reports to Congress state that at least 11,000 polygraph

     examinations are conducted by these federal agencies each year. This statistic does not even include

     examinations conducted by the National Security Agency (NSA) involving classified information.

     Davila, CR-03-021-RHW at 9.           The Department of Defense relies heavily on polygraph

     examinations: “The polygraph is clearly one of our most effective investigative tools.” Department

     of Defense, Annual Polygraph Report to Congress at 1 (2000) (attached as Exhibit J). The

     importance of the polygraph to the Department of Defense and our national security cannot be

     understated:

                    [t]he Department of Defense has used the polygraph for almost half
                    a century. It is used in criminal investigations, counterintelligence
                    cases, foreign intelligence and counterintelligence operations,
                    exculpation requests, and as a condition for access to certain positions
                    or information. The polygraph is a tool that enhances the interview
                    and interrogation process. Often it is the only investigative technique
                    capable of providing essential information to resolve national security
                    issues and criminal investigations.
     Id.

            Overall, courts since at least 1995 have recognized the scientific validity and acceptance of

     polygraph examinations, including one judge in this District. See, e.g., Padilla, 908 F. Supp. at 931;

     Galbreth, 908 F.Supp. at 896. Of course, since that time, the validity, testing, acceptance, and

     standards regarding polygraph evidence has continued to progress and develop. Polygraph evidence

     in the twenty-first century clearly satisfies all of the requirements of Daubert. Both of the experts

     who evaluated Mr. Zarabozo are highly trained and skilled experts whose examinations complied


                                                      -21-
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     with relevant standards and appropriate science. Under Fed. R. Evid. 702, the polygraph evidence

     is admissible.

            3.        Rule 403

            Finally, some courts have excluded polygraph evidence under Rule 403 of the Federal Rules

     of Evidence. The government will undoubtedly will ask this Court to fall back on Rule 403 as a

     basis for excluding the polygraph evidence. Rule 403, however, will not be violated by the

     admission of this evidence.

            There can be no dispute that the polygraph examination conducted by Dr. Palmatier and Mr.

     Mote of Mr. Zarabozo and their expert testimony are relevant to this case. In essence, Mr. Zarabozo

     was asked whether he killed anyone or conspired to kill anyone aboard the Joe Cool or rob the Joe

     Cool from the crew members. In both examinations, he truthfully explained that he did not kill

     anyone, did not intend to kill anyone, and did not know about Mr. Archer’s intentions prior to the

     first gunshot. In Mr. Mote’s examination he truthfully answered questions regarding the reasons he

     thought he was aboard the Joe Cool boat. These issues are highly probative, and, as the Court stated

     in Padilla, “[i]n a case such as this, where the defendant is charged with serious crimes, and faces

     lengthy prison terms if convicted [here, possibly death], the Court should not unduly interfere with

     defendant’s choices in formulating [his] case.” Padilla, 908 F.Supp. at 929. Moreover, as in

     Galbreth, “the expert testimony is highly probative of a critical fact in issue, i.e., whether the

     Defendant possessed the willful mens rea at the time [of the alleged offense]. This is so, because

     the accuracy of the test results is approximately 95%.” Galbreth, 908 F.Supp. at 895; see also

     Crumby, 895 F.Supp. at 1361 (“In cases such as the present case, the polygraph examination is

     probative of whether the subject is being truthful about whether he or she committed the crime in


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     question. Clearly, the probative value of such evidence is beyond question.”).

            The potential prejudicial effects that the government will likely assert are “either overstated

     or unfounded.” Crumby, 895 F.Supp. at 1361. For example, in some cases, courts and/or the

     opposing party have expressed concern that too much time will be consumed considering polygraph

     evidence. In this potential death penalty case, time consumption is not an issue. Mr. Zarabozo’s life

     is at stake in this case. Mr. Zarabozo was nineteen years old at the time of the incidents in

     September, 2007. Moreover, he has no criminal record, he is a high school graduate, he was a

     member of ROTC, and was an active Boy Scout during his youth. No amount of time is too much

     in such a circumstance.

            Perhaps the most common critique of polygraph evidence is the alleged “aura of infallibility.”

     This concern that the jury’s role as fact-finder will be unduly infringed upon by polygraph evidence

     is a red herring. First, stipulated evidence is admitted in most circuits in the United States; however,

     a stipulation “does not magically expunge the ‘Oracle of Delphi’ prejudice argument.” Id. at 1362.

     In other words, if a jury can properly weigh polygraph evidence where there is a stipulation, it can

     do so where there is no stipulation, as well. Second, the prosecution will undoubtedly engage in

     vigorous cross-examination of Dr. Palmatier and Mr. Mote, including examination of their methods,

     the reliability of polygraph examinations, and the error rates. In fact, if the government chooses, it

     can engage its own expert to examine Mr. Zarabozo or at least examine the defense’s polygraph

     examinations of Mr. Zarabozo. Third, the Court can issue an appropriate jury instruction explaining

     to the jury that polygraph evidence is one piece of evidence to be weighed by the jury along with all

     of the other evidence. Id.; see also Richardson v. Marsh, 481 U.S. 200, 211 (1987) (explaining that

     there is a strong presumption juries will abide by courts’ instructions). Fourth, “if polygraph


                                                      -23-
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     evidence is used in a limited manner, the jury’s role will be maintained.” Id. The Eleventh Circuit

     already limited polygraph evidence in Piccinonna to a specific use–the corroboration of a witness’s

     testimony whose credibility is under attack. Finally, studies have been conducted that demonstrate

     that jurors do not “blindly” accept polygraph evidence, but that they instead weigh polygraph

     evidence along with other evidence. See United States v. Scheffer, 523 U.S. 303, 336 n.26 (1998)

     (Stevens, J., dissenting) (citing A. Cavoukian & R.J. Heslegrave, The admissibility of polygraph

     evidence in court: Some empirical findings, 4 Law & Human Behavior 117, 123, 127-28, 130

     (1980)). In fact, the study by Messrs. Cavoukian and Heslegrave found that expert testimony about

     the limits of the polygraph “completely eliminated the effect of the polygraph evidence” on the jury.

      Id. (emphasis in original).

             Overall, the highly probative value of the polygraph evidence significantly outweighs any

     potential prejudicial effects. Any argument that Rule 403 is violated falls short.

                                               CONCLUSION

              Almost twenty years ago, in Piccinonna, the Eleventh Circuit recognized the scientific

     validity of polygraph examinations and the importance of giving courts the flexibility to admit

     polygraph evidence in appropriate situations. Since that time, the science of polygraphy has

     continued to evolve, standards have been developed, and polygraphy has become a validated and

     accepted science. In fact, polygraph evidence is far more reliable that other evidence brought into

     courts on a regular basis every day in criminal trials. The Eleventh Circuit appropriately limited the

     admission of polygraph evidence to corroborate the testimony of a witness whose testimony is being

     attacked. That is precisely the case here. Mr. Zarabozo will testify at trial regarding his innocence

     in this case. He will also be attacked by the government who is wrongly convinced of his guilt. This


                                                     -24-
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     Court should allow the polygraph evidence and expert testimony to be admitted in this case. For

     these reasons, Mr. Zarabozo respectfully requests that this motion be granted. Mr. Zarabozo further

     requests a full evidentiary hearing regarding the expert qualifications of Dr. Palmatier and Mr. Mote,

     the qualifications of any government witness regarding polygraphy, and any Rule 702 or Rule 403

     challenges to the admission of this evidence.3

     Respectfully submitted,

     KATHLEEN M. WILLIAMS
     FEDERAL PUBLIC DEFENDER

     By: s/Anthony J. Natale             By:        s/ William D. Matthewman
     Anthony J. Natale                                      William Matthewman, Esq.
     Supervisory Assistant Federal Public                   Florida Bar No. 372757
     Florida Bar No. 296627                                 Seiden, Alder, Matthewman & Bloch
     150 West Flagler Street, Suite 1700                    E-mail: billmatt@seidenlaw.com
     Miami, FL 33130-1556                                   5850 Coral Ridge Drive, Suite 208
     Tel: 305-530-7000/Fax: 305-536-4559                    Coral Springs, Florida 33076
     anthony_natale@fd.org                                  Tel: (954)796-3400
                                                            Facsimile: (954)769-3400

     By: s/ Brian L. Stekloff
     Assistant Federal Public Defender
     Special Bar No. A5501037
     150 West Flagler Street, Suite 1700
     Miami, Florida 33130-1556
     Tel: 305-530-7000/Fax: 305-536-4559
     brian_stekloff@fd.org




                                       CERTIFICATE OF SERVICE



            3
              After consultation with the government, they have stated their opposition to the granting
     of this motion.

                                                      -25-
Case 1:07-cr-20839-PCH        Document 126          Entered on FLSD Docket 05/01/2008              Page 26 of 28



            I hereby certify that on the 1st day of May, 2008, undersigned electronically filed the

     foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing

     document is being served this day on all counsel of record or pro se parties identified on the attached

     Service List in the manner specified, either via transmission of Notices of Electronic Filing generated

     by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized

     to receive electronically Notices of Electronic Filing.



                                            By:       s/ Anthony J. Natale

                                                     s/ William Matthewman

                                                     s/ Brian L. Stekloff




                                                      -26-
Case 1:07-cr-20839-PCH       Document 126      Entered on FLSD Docket 05/01/2008   Page 27 of 28



                                           SERVICE LIST
                                United States v. Guillermo Zarabozo
                                   Case No. 07-20839-CR-HUCK
                       United States District Court Southern District of Florida


     Karen Gilbert
     Assistant United States Attorney
     E-mail: karen.gilbert@usa.doj.gov
     99 N.E. 4th Street
     Miami, Florida 33132-2111
     Tel: (305)961-9161
     Fax: (305)536-7231
     Via: CM/ECF

     Michael Gilfarb
     Assistant United States Attorney
     E-mail: michael.gilfarb@usa.doj.gov
     99 N.E. 4th Street
     Miami, Florida 33132-2111
     Tel: (305)961-9015
     Fax: (305)530-7976
     Via: CM/ECF

     Jeffrey E. Tsai
     Assistant United States Attorney
     E-mail: jeffrey.e.tsai@usa.doj.gov
     99 N.E. 4th Street
     Miami, Florida 33132-2111
     Tel: (305)961-9311
     Fax: (305)530-7976
     Via: CM/ECF

     Allan B. Kaiser
     E-mail: akaiser@quiononlaw.com
     111 N.E. 1st Street
     Suite 902
     Miami, Florida 33132
     Tel: (305)858-6070
     Facsimile: (305)350-1915
     Attorney for Kirby Logan Archer
     Via: CM/ECF



                                                 -27-
Case 1:07-cr-20839-PCH     Document 126   Entered on FLSD Docket 05/01/2008   Page 28 of 28



     Humberto R. Dominguez
     E-mail: hrdcriminallaw@aol.com
     800 Brickell Avenue
     Suite: PH-2
     Miami, Florida 33131
     Tel: (305)373-6400
     Fax: (305)373-0396
     Attorney for Kirby Logan Archer




                                           -28-

								
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