The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Now pending is Plaintiff Dan Dixon's ("Dixon") Motion in limine to Exclude Polygraph Evidence (Docket No. 18). Dixon seeks to exclude evidence of two failed polygraph tests that were voluntarily taken as part of an internal employment disciplinary investigation. Dixon contends that the exams and the results of the exams are inadmissible pursuant to Federal Rules of Evidence 403 and 702.
Defendant City of Coeur d'Alene ("Defendant"), Dixon's former employer, seeks to present the polygraph evidence to the jury. Defendant argues that the polygraphs are scientifically accurate, valid, and will assist the trier of fact, without prejudice.
This is an employment law action based on allegations of wrongful discharge. In summary, Dixon alleges that Defendant breached Dixon's employment contract, and his federally protected rights to substantive due process.
Prior to the events that resulted in the filing of this case, Dixon was employed as a lieutenant by the Coeur d'Alene Police Department. In June 2009, at the conclusion of an internal department investigation into allegations that Dixon had falsified timekeeping records and manipulated a subordinate officer's work schedule, Coeur d'Alene Police Chief Wayne Longo recommended that Dixon's employment be terminated by the city. On June 24, 2009, following a pre-termination hearing, City Personnel Officer Jon Ingalls determined that in lieu of termination, Dixon be offered a demotion, from lieutenant to patrol officer (two ranks) with a similar reduction in pay. Dixon refused the offer and alleges that the determination amounted to a constructive discharge. Dixon now makes claims of wrongful termination based on his allegations of constructive discharge.
As part of the above mentioned investigation, Dixon submitted to two independent polygraph exams. Both polygraphers determined that Dixon was deceptive in his answers to investigative questions. Because on his failures of the polygraph examinations, as well as answers Dixon gave to investigators during extensive questioning outside of the polygraph examinations, Defendant determined that Dixon had falsified the timekeeping records and manipulated the subordinate officer's schedule. Defendant also concluded that Dixon had lied during the investigation, thus prompting the police chief's recommendation to terminate Dixon's employment.
Following the decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, (1993), the status of the admissibility of polygraph evidence has been in flux. Prior to Daubert the Ninth Circuit Court of Appeals excluded unstipulated polygraph evidence. Brown v. Darcy, 783 F.2d 1389, 1395 (9th Cir. 1986). The Court explained that "[g]iven the questionable reliability of polygraph evidence and the great potential for prejudice from inaccurate polygraph evidence, we conclude that unstipulated polygraph evidence is inadmissible as technical or scientific evidence under Fed. R. Evid. 702 because it does not 'assist the trier of fact to understand the evidence or to determine a fact in issue.' "
Id. (quoting Fed. R. Evid. 702).
In United States v. Cordoba, 104 F.3d 225 (9th Cir. 1997), the Ninth Circuit Court of Appeals recognized that Daubert overruled the Brown per se rule barring the admission of polygraph evidence, and that district courts must perform a particularized factual inquiry into the scientific validity of such evidence to determine admissibility. Id. at 228. However, the Court made clear that polygraph evidence remains suspect:
With this holding, we are not expressing new enthusiasm for admission of unstipulated polygraph evidence. The inherent problematic nature of such evidence remains. As we noted in Brown, polygraph evidence has grave potential for interfering with the deliberative process.
Id. In the instant motion, Dixon seeks to exclude the results and any mention of the aforementioned polygraph examinations under Federal Rule of Evidence 403 and 702. However, because neither Dixon nor Defendant have requested a Rule 702 Daubert hearing, Dixon's motion will be examined only under the ambit of Federal Rule of Evidence 403. See U.S. v. Ramirez-Robles, 386 F.3d 1234, 1247 (9th Cir. 2004); U.S. v. Benavidez-Benavidez, 217 F.3d 720, ...