Martensen v. Koch

Filing 339

ORDER granting 242 Motion in Limine to Preclude Evidence of Polygraph Results. By Judge Robert E. Blackburn on 1/22/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02411-REB-CBS
KIRBY MARTENSEN,
Plaintiff,
v.
WILLIAM KOCH, and
DOES 1-25,
Defendants.

ORDER GRANTING DEFENDANT’S MOTION IN LIMINE
TO PRECLUDE EVIDENCE OF POLYGRAPH RESULTS
Blackburn, J.
The matter before me is Defendant William I. Koch’s Motion In Limine To
Preclude Evidence of Polygraph Results [#242],1 filed September 12, 2014. I grant
the motion.
While acknowledging that “[p]olygraph tests are generally inadmissible in this
circuit,” Jones v. Geneva Pharmaceuticals, Inc., 132 Fed. Appx. 772, 776 (10th Cir.
June 1, 2005), plaintiff insists that such evidence may become admissible if defendant
“opens the door” by referring to the fact that the Gunnison County District Attorney
refused to bring criminal charges of false imprisonment against defendant. Even if such

1

“[#242]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

evidence is admitted at trial,2 plaintiff’s conclusion that he perforce would be allowed to
proffer the results of his polygraph examination is far from pellucid. Nor does plaintiff
explain how he intends to qualify such evidence even if the court were inclined to
consider it. See id. (“If a party seeks to admit a polygraph test, that party must satisfy
the criteria for admission under Daubert.”).3 Indeed, this same rule would apply even if
plaintiff were to testify only to the bare fact that he underwent such an examination.
See id. In addition, “[t]he credibility of witnesses is generally not an appropriate subject
for expert testimony,” and thus “is often excluded because it usurps a critical function of
the jury and because it is not helpful to the jury, which is capable of making its own
determination regarding credibility.” United States v. Call, 129 F.3d 1402, 1406 (10th
Cir. 1997), cert. denied, 118 S.Ct. 2064 (1998).
Finally, even if plaintiff were able to overcome these not-insignificant hurdles, the
court sees as extremely unlikely any possibility that the admission of such evidence
would survive analysis under Rule 403. See Call, 129 F.3d at 1405; Jones, 132 Fed.
Appx. at 776. Any probative value, which for now appears extremely attenuated, would
likely be substantially outweighed – if not overwhelmed – by the dangers of confusing
the issues, misleading the jury, and wasting time.

2

I have recently denied, without prejudice, plaintiff’s motion to preclude reference to this fact in
limine. (See Order Denying Without Prejudice Plaintiff Kirby Martensen’s Motion In Limine To
Preclude Defendant William Koch form Referring to District Attorney’s Decision
Not To Prosecute Defendant for the Crime of False Imprisonment [#338], filed January 21, 2015.)
This ruling, of course, in no way suggests that such evidence will be admitted at trial.
3

Not only is such evidence presumptively inadmissible under Rule 702 and Daubert, but it
appears that plaintiff has failed to designate an expert to make such a showing in any event. See United
States v. Call, 129 F.3d 1402, 1404-05 (10th Cir. 1997), cert. denied, 118 S.Ct. 2064 (1998).

2

THEREFORE, IT IS ORDERED as follows:
1. That Defendant William I. Koch’s Motion In Limine To Preclude Evidence
of Polygraph Results [#242], filed September 12, 2014, is GRANTED; and
2. That all parties are PRECLUDED and PROHIBITED, pending further order of
court, from referring to or offering in evidence before the jury matters referring or
relating to plaintiff’s submission to a polygraph examination and/or the content or results
of any such examination.
Dated January 22, 2015, at Denver, Colorado.
BY THE COURT:

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