United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART
DEFENDANT'S MOTION TO COMPEL PRODUCTION OF POLYGRAPH DATA
AND RELATED DOCUMENTS
MATTER comes before the Court following a hearing on October
23, 2017 upon Defendant's Motion to Compel Production of
Polygraph Data and Related Documents, filed July 17, 2017
(Doc. 38). Having reviewed the parties'
briefs and applicable law, the Court finds that
Defendant's motion is well-taken in part and shall be
granted in part, and otherwise denied as set forth below.
is charged with unlawfully killing John Doe on or about
February 1, 2016 with malice aforethought by striking him
with an axe, in violation of 18 U.S.C. §§1153 and
1111. According to the Complaint, on February 3, 2016, the
partially-burned and eaten body of a man was discovered near
Shiprock, New Mexico. Defendant is the victim's nephew
and is purportedly the last person to see John Doe alive. The
investigator's suspicions were raised when Defendant
seemed to be familiar with the condition of the body, which
had not been publicized.
seeks materials related to a polygraph examination of
Defendant administered by Special Agent Jennifer Sullivan
(“SA Sullivan”). Defendant subsequently confessed
to the crime, and Defendant seems to be alleging that this
confession is involuntary because it was coerced. Defendant
was interviewed on three different occasions:
(1) On February 4, 2016, Defendant was interviewed at his
home by a Navajo Nation Criminal Investigator and FBI agent.
Defendant was not given his Miranda rights, but he
did give consent to search the items of clothing that were
(2) On March 17, 2016, Defendant was interviewed at the
Shiprock, New Mexico Criminal Investigations office of the
Navajo Nation Police Department. Deft's Ex. 1. While he
was given his Miranda rights, he was not advised of
his rights with a Navajo translation. Deft's Ex. 2.
Defendant also gave his consent to have 4 buccal swabs taken.
Deft's Ex. 4.
(3) On March 29, 2016, Defendant voluntarily came to the
Shiprock Criminal Investigations office and underwent a
polygraph examination conducted by SA Sullivan. He was again
read his Miranda rights without a Navajo
translation. Deft's Ex. 3. He also signed a Consent to an
Interview with a Polygraph form that was not translated into
Navajo. Deft's Ex. 5.
polygraph pre-test and the administration of the test was
audio and video recorded, as was Defendant's
post-polygraph interview which occurred after SA Sullivan
told Defendant that he had failed the polygraph. Defendant
ultimately admitted to getting into an altercation with John
Doe on February 1, 2016 and described how he struck Doe in
the neck with an axe and dragged him outside and poured
kerosene on him and a blanket on which Doe was lying, setting
the blanket on fire.
argues that the requested information is material to the
preparation of his defense, particularly because it is
expected that the Government will attempt to introduce the
confession at trial. On behalf of the defense polygraph
expert, David Raskin, Ph.D., defense counsel seeks disclosure
of the following:
(1) all electronic data in native format recorded by SA
Sullivan during the administration of the polygraph;
(2) all polygraph examination worksheets (in handwritten and
(3) all rough notes created by SA Sullivan pertaining to Mr.
Dodge's polygraph; and
(4) the quality control report generated by SA Sullivan's
supervisor and all communications and documents exchanged
between SA Sullivan and her supervisor.
Government has agreed to make the April 4, 2016 polygraph
report available to the defense, but objects to disclosure as
to the other items. The Government also objects to releasing
the computerized polygraph files claiming that the FBI is not
able to release them under the terms of their license to use
the polygraph. Exs. 7 & 9. Moreover, the Government
contends that even if SA Sullivan knowingly misrepresented to
Defendant that he failed the polygraph examination, that
deception without more, would not render his admission
involuntary. See Frazier v. Cupp,394 U.S. 731, 739
(1969) (fact that police in interrogation of defendant
falsely told defendant that defendant's companion had
confessed, though relevant, was insufficient to make
otherwise voluntary confession by defendant inadmissible);
Lucero v. Kerby, 133 F.3d 1299, 1311 (10th Cir.