Court: Court of Appeals for the Eighth Circuit; October 5, 1999; Federal Appellate Court
Clifton Waters appeals his conviction for aggravated sexual abuse of a child under 18 U.S.C. § 2241(c) and § 1153, arguing errors in evidentiary rulings, jury instruction on a lesser included offense, and denial of a new trial. The appeal follows an indictment based on allegations that Waters engaged in sexual acts with a child under 12. Prior to the indictment, Waters underwent a polygraph examination at the government's request, in which he denied touching the child inappropriately. The district court granted the government's motion to exclude polygraph results, referencing United States v. Scheffer, which upheld the exclusion of polygraph evidence.
During the trial, the nine-year-old victim testified that Waters had touched her inappropriately, both at his home and another location. Discrepancies in her statements to an FBI agent were explored, revealing inconsistencies regarding the nature and extent of the alleged abuse. On cross-examination, the victim acknowledged not being entirely truthful in her earlier statements, although she indicated fear as a reason for her omissions. The court ultimately affirmed the conviction, rejecting Waters’ claims of trial errors.
The government presented testimony from a pediatrician who examined the victim in late 1997, indicating that the absence of hymenal tissue was unusual for a child and suggested repeated vaginal penetration. In his defense, Waters denied any sexual contact with the victim and requested a Daubert hearing on the admissibility of polygraph results, but acknowledged he lacked evidence on the test's reliability. The district court referenced the Supreme Court's statement on the scientific consensus regarding polygraphs and excluded related evidence under Federal Rule of Evidence 403.
A clinical social worker testified that children often do not disclose complete details of abuse initially and may omit information due to embarrassment. During jury instruction discussions, Waters submitted a new set of proposed instructions, including for the lesser offense of abusive sexual contact, which requires intentional touching of specific body parts. The court allowed for discussions on scenarios that could result in a guilty verdict for abusive sexual contact without finding aggravated sexual abuse. Waters' counsel argued that the victim's testimony could only support a verdict for the lesser offense, but the government countered with evidence of inappropriate touching and pediatric findings consistent with penetration. The court sided with the government and denied Waters' request for lesser charge instructions, as Waters maintained his complete innocence.
Waters subsequently filed a motion for a new trial based on the victim's recantation of her testimony, but the court found the recantation not credible and denied the motion.
Waters contended that the district court incorrectly denied his request for a Daubert hearing, acknowledging his lack of evidence to support the reliability of polygraph tests. He claimed that the government's failure to comply with discovery requests hindered his ability to gather evidence. However, the court's exclusion of the polygraph evidence was based on Federal Rule of Evidence 403, which permits exclusion if the probative value is substantially outweighed by the potential for unfair prejudice or confusion. The court found the evidence to be collateral and likely to mislead the jury. The Supreme Court in Scheffer highlighted the risk of juries placing undue weight on polygraph results and noted that disputes over such evidence can distract from the trial's primary purpose.
Additionally, the court did not err in refusing to admit evidence of Waters' responses during the polygraph examination, as his reliance on United States v. Rothgeb was deemed misplaced. Rothgeb established that while polygraph results are inadmissible, evidence of a defendant's behavior during interrogation can be relevant; however, Waters sought to introduce a statement consistent with his not guilty plea, which constituted hearsay under Federal Rule of Evidence 801(d)(2).
Lastly, Waters argued that the district court abused its discretion by allowing a social worker's testimony regarding a child witness's credibility. The court disagreed, stating that the social worker did not assert the victim's truthfulness but rather informed the jury about behaviors typical in sexually abused children. The admission of the psychologist's testimony was also justified as it aimed to educate rather than usurp the jury's role. Waters' appeal regarding the Daubert standard for the psychologist's testimony was not considered, as he failed to raise this argument in the district court.
Waters contended that the district court erred by denying his request for a lesser included offense instruction for abusive sexual contact, which is recognized as a lesser included offense of aggravated sexual abuse. The court established that a jury must have sufficient evidence to rationally convict for the lesser offense while acquitting of the greater offense. Although Waters argued that the victim's cross-examination testimony supported this request, the court found he had not preserved this argument for appeal. During the jury conference, Waters' counsel did not specifically refer to the victim's cross-examination testimony when discussing the evidence for the lesser offense, leading to the application of the plain error standard for review.
The court concluded that there was no error, as Waters used the victim's prior statement about being touched over clothing solely for impeachment, not as substantive evidence. The jury was instructed not to consider prior statements as truth. Furthermore, despite Waters’ suggestion that the prior statement could serve as substantive evidence due to re-cross examination, the court disagreed, noting Waters' closing arguments indicated he aimed to undermine the victim's credibility rather than affirm the truth of her statements.
Additionally, Waters cited the victim's direct examination testimony, where she mentioned being touched on the "butt," as grounds for the lesser instruction. However, the court found this testimony insufficient when viewed alongside the victim's broader account, which included more severe allegations. Therefore, the court determined that a rational jury could not conclude that Waters only touched the victim's buttocks, and thus denied the request for a lesser-included offense instruction.
A court is not required to submit a defense instruction to a jury if the evidence does not reasonably support the defendant's position. Although a jury can reject the prosecution's case entirely, a judge is not obligated to facilitate a partial acceptance and rejection of the evidence. Waters contends that the district court erred by denying his motion for a new trial based on the victim's recantation, which is generally viewed with skepticism, particularly in child sexual abuse cases. The district court found the recantation not credible after thorough consideration of the circumstances, and this decision will not be reversed.
The conclusion of the court affirms the judgment, noting that a defendant's claim of innocence does not automatically prevent the submission of a lesser included offense instruction if supported by evidence. However, in this case, unlike *Plenty Arrows*, there was sufficient evidence of a sexual act based on the victim's testimony. The situation is comparable to *United States v. Two Bulls*, where the court did not err in refusing a lesser included offense instruction because the evidence established aggravated sexual abuse and the defendant claimed complete innocence.
Judge Bright dissents, arguing that the majority correctly denied the jury instruction on the lesser offense and ruled the polygraph evidence inadmissible under Federal Rule of Evidence 403, but he disagrees with the reasoning behind these decisions.
The majority opinion imposes an excessively high standard for specificity in requests for jury instructions, which is deemed inappropriate. Additionally, it argues that Rule 403 should not validate the exclusion of polygraph evidence, as the evidence was relevant and the district court failed to conduct a Daubert hearing to assess its reliability. In the background, Clifton Waters was convicted of aggravated sexual abuse of his daughter, M.W., predominantly based on her testimony. Prior to indictment, Waters took a polygraph test where he denied the allegations, and the examiner deemed his responses nondeceptive. Despite requests from the defense for the polygraph evidence, the government did not comply with discovery obligations. During the trial, M.W.'s testimony was unclear, and another man, Duane Fire Thunder, was present during the alleged abuse, which further complicated the identification of Waters as the perpetrator. After the trial, M.W. recanted, implicating Fire Thunder instead.
Waters sought a jury instruction for the lesser offense of abusive sexual contact, which the district judge denied, citing insufficient grounds. The majority later asserted that Waters did not preserve this issue for appeal due to a lack of specific factual support from M.W.’s testimony. However, it is argued that Waters adequately met the requirements established in United States v. Oakie by referencing the overall context of M.W.’s testimony, indicating that the trial court should not require an exhaustive enumeration of facts when the judge has already heard the evidence presented.
The judge recognized inconsistencies in the victim's testimony but improperly weighted the evidence and dismissed parts of it due to the defendant's claim of innocence. A defendant is entitled to a jury instruction on a lesser included offense if the request is timely, supported by evidence, and accurately states the law. Abusive sexual contact is a lesser included offense of aggravated sexual abuse, distinguished by whether a forced sexual act or mere sexual contact occurred. To warrant the instruction, the defendant must demonstrate that the evidence is sufficiently disputed for a jury to find him innocent of the greater charge and guilty of the lesser. The victim testified inconsistently about penetration and whether the defendant touched her underneath her clothing. A rational jury could potentially find that the defendant engaged only in sexual contact, creating reasonable doubt about aggravated sexual abuse. The failure to provide the lesser included offense instruction constituted an abuse of discretion, given the victim’s confused and inconsistent testimony, which was particularly significant as she was only seven years old at the time of the incident.
Polygraph evidence gains importance when evidence is limited and the key witness's credibility is questionable. In such circumstances, results from polygraphs, performed using reliable techniques, can enhance the jury's understanding of the case. While the Supreme Court has upheld per se exclusions of polygraph evidence in military contexts, this is not the case in the Eighth Circuit or other non-military contexts, where such evidence may be admissible if reliable. Studies indicate polygraphs can be accurate up to 97.5% of the time, and even critics acknowledge an accuracy of around 70%. Factors affecting reliability include the examiner’s integrity, the formulation of questions, and the polygraph technique used.
The reliability of polygraph exams necessitates a specific inquiry, typically requiring a Daubert hearing to assess admissibility. The district court's denial of such a hearing, based on a generalized lack of consensus about polygraph reliability, constitutes a legal error and effectively creates a blanket exclusion of polygraph evidence. The court must allow parties to gather facts for a thorough reliability assessment, fulfilling its 'gatekeeper' role as outlined in Daubert.
Some record statements imply the court denied a Daubert hearing because the defense did not sufficiently demonstrate the exam's reliability; however, this reasoning is flawed since the prosecution failed to provide the requested evidence under Fed. R. Crim. P. 16(a)(1)(D), hindering the defense's ability to establish a foundation for the hearing. This lack of disclosure raises concerns about potential violations of the Brady rule.
While a Daubert hearing is not automatically required for Rule 702 determinations regarding polygraph evidence, essential information for assessing reliability must be available to the court. In this case, the government possessed relevant information but chose not to disclose it, suggesting a need for further investigation.
The court cannot determine the polygraph evidence's reliability due to the government's lack of disclosure and the absence of a Daubert hearing. The paradox of the government utilizing polygraph tests while questioning their reliability is noted. The rejection of polygraph evidence under FED. R. EVID. 403 appears inappropriate when foundational information remains undisclosed, and the evidence could be highly relevant without unfairly prejudicing the government or causing confusion.
Ultimately, the trial judge sentenced Waters to fourteen years in prison despite significant doubts about his guilt. A new trial is warranted, along with a requirement for the prosecution to provide discovery for a Daubert hearing on the admissibility of polygraph evidence.
The request sought detailed information, including a list of questions posed to the defendant during a polygraph examination, the examiner's qualifications, and the polygraph procedures used. At trial, defense counsel argued for a lesser included offense instruction based on the alleged victim's testimony, which detailed inappropriate touching but lacked evidence of penetration. The victim recounted two incidents where the defendant, Waters, allegedly touched her without any claims of penetration, and defense counsel asserted that this did not support a charge of aggravated sexual abuse. The court noted that the jury could disregard any impeached testimony from the victim during cross-examination.
After the government rebutted the defense, the district court concluded there was no evidence to support a conviction for a lesser included offense, emphasizing that Waters denied any contact and that substantial evidence of aggravated sexual abuse existed, including the victim's testimony and corroborating medical evidence. The court cited 18 U.S.C. § 2246(2)(D), stating that intentional touching of the buttocks does not constitute a sexual act.
The district court referenced United States v. Two Bulls to argue that a defendant professing complete innocence cannot request a lesser included offense instruction. However, the excerpt indicates that this application of Two Bulls was incorrect, as the circumstances of that case differed significantly from the current case. Notably, the victim's testimony raised questions about the nature of the offense, the evidence did not definitively establish aggravated sexual abuse over abusive sexual contact, and the defendant did not assert he was absent during the events in question.
