William J. Bauer
Diane P. Wood
An Indiana man accused of sexually abusing a 9-year-old boy was not denied his right against self-incrimination when jurors were told he had refused to take a polygraph exam, a divided federal appeals court ruled.
Splitting 2-1, the 7th U.S. Circuit Court of Appeals this week upheld David A. Resnick’s conviction on federal child-abuse and firearms charges.
Quoting United States v. Scheffer, 523 U.S. 303 (1998), the court’s majority conceded the scientific community “remains extremely polarized about the reliability of polygraph techniques.”
But the majority noted the 7th Circuit has never held that refusing to take a polygraph exam “implicates the Fifth Amendment” in any way.
And even absent evidence that Resnick did not submit to a polygraph exam, the majority wrote, the case against Resnick was “airtight.”
“Resnick’s problem is that any error in admitting the testimony about his reluctance to submit to a polygraph was not plain and did not affect his substantial rights in light of the record as a whole,” Chief Judge Diane P. Wood wrote Wednesday in an opinion joined by Judge Diane S. Sykes.
In a dissent, Judge William J. Bauer said he would grant Resnick a new trial.
“I see this as a clear and obvious example of someone refusing to testify against himself,” Bauer wrote.
And because Resnick had exercised his right against self-incrimination, he wrote, the prosecution could not use his refusal to talk as “substantive evidence against him.”
The prosecution also could not comment during closing arguments on Resnick’s refusal to submit to a polygraph exam, Bauer wrote.
However, he wrote, the prosecution did just that.
These actions by the prosecution “constituted plain error which polluted the other evidence and compromised the entire trial,” Bauer contended.
Joshua Sachs of the Law Office of Joshua Sachs & Associates in Evanston argued the case before the 7th Circuit on behalf of Resnick.
Sachs said his client has not decided his next move.
But "all things are under consideration" he said, including seeking a rehearing before the 7th Circuit or asking the Supreme Court to review the case.
Thomas McGrath of the U.S. attorney’s office in Fairview Heights argued the case on behalf of the government.
Spokesman Ryan C. Holmes of the U.S. attorney’s office for the Northern District of Indiana declined to comment.
Resnick was tried before a jury in Hammond, Ind., in U.S. District Judge James T. Moody’s court.
In 2008, Resnick, a long-haul truck driver, took the son of family friends on a cross-country work trip.
He told the boy’s family the trip would end at Disneyland in California.
Instead, he traveled to Washington state and back, repeatedly abusing the boy.
When Resnick was stopped by a state patrol officer for failing to pull into a weigh station, he held a gun to the boy’s head and threatened to kill him and his family if he revealed the abuse.
Resnick was questioned by FBI agents after the abuse came to light.
He answered several questions but said he wanted to talk to an attorney before taking a polygraph exam. He never took such an exam.
In its opinion, the 7th Circuit’s majority conceded there are “serious doubts” about the scientific value of polygraph evidence.
In fact, the majority wrote, those doubts are so serious that some other federal appeals courts have adopted a rule excluding polygraph evidence in all circumstances.
“They have done so out of concern that there is no reliable way for the district courts to separate sound polygraph results from unreliable ones,” Wood wrote.
She wrote those appeals courts — the 4th Circuit in Richmond, Va.; the 8th Circuit in St. Louis; and the 11th Circuit in Atlanta — also were concerned about the possibility that a defendant will be unfairly prejudiced.
That possibility stems from what the U.S. Supreme Court in Scheffer said was “the aura of infallibility” that surrounds polygraph evidence, Wood wrote.
However, she wrote, the 7th Circuit has not adopted a blanket rule excluding the introduction of polygraph evidence in federal criminal cases.
And Resnick’s case “is not the right one in which to take that step,” Wood wrote.
Because Resnick did not object at trial to evidence concerning his refusal to take a polygraph test, she wrote, its admission is reviewed for plain error.
Admitting the evidence did not plainly violate Resnick’s constitutional rights under current 7th Circuit precedent, Wood wrote
Also, she continued, Resnick failed to show the comments made about his refusal to take the test — the defense and prosecution each made one during closing arguments — affected his substantial rights.
The evidence against Resnick was very strong, Wood wrote, and Resnick’s credibility was not an issue because he never took the witness stand.
“It is Resnick’s burden to ‘make a specific showing of prejudice’ in order to satisfy the ‘substantial rights’ part of the plain error analysis,” Wood wrote, quoting United States v. Olano, 507 U.S. 725 (1993). “He has not done so.”
The case is United States v. David A. Resnick, No. 14-3791.