Gillispie v. Miami Township et al

Filing 445

ENTRY ORDER granting 327 Defendant's Motion in Limine No. 4 (Doc. No. 327), as modified by the parties' Notice (Doc. No. 412). The Court bars any evidence or testimony relating to any polygraph examination taken by Gillispie. The Court clarifies that, because Moore did not raise or address the issue in the motion's briefing, it does not make any ruling regarding the limited category of evidence that Gillispie made a request, to Moore, to take a polygraph examination (and Moore did not have Gillispie take a polygraph examination). Signed by Judge Thomas M. Rose on 11-2-2022. (mm)

Case: 3:13-cv-00416-TMR Doc #: 445 Filed: 11/02/22 Page: 1 of 10 PAGEID #: 15372

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROGER DEAN GILLISPIE,

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Plaintiff,
v.
THE CITY OF MIAMI TOWNSHIP, et al.,
Defendants.

Case No. 3:13-cv-416
Judge Thomas M. Rose

______________________________________________________________________________
ENTRY AND ORDER GRANTING DEFENDANT’S MOTION IN LIMINE NO.
4 (DOC. NO. 327), AS MODIFIED BY THE PARTIES’ NOTICE (DOC. NO. 412)
______________________________________________________________________________
This matter is before the Court on a single issue in “Defendant Matthew Scott Moore’s
Motion in Limine No. 4” (Doc. No. 327), filed by Defendant Matthew Scott Moore (“Moore”).
Plaintiff, Roger Dean Gillispie (“Gillispie”), initially filed a response in opposition to the motion
that informed the Court that the parties were in “the process of conferring about the motion, which
may reduce the issues that require this Court’s involvement.” (Doc. No. 355.) The parties
subsequently filed a Notice, informing the Court that they “have reached agreement on various
points related to the motion that would eliminate the need for the Court to address all but one
remaining question.” (Doc. No. 412.) That one remaining question concerns the admissibility of
polygraph-related evidence. (Id.; see also Doc. No. 327 at PageID 11457.) The parties then filed
additional briefing on that issue: Gillispie filed a Response in Opposition (Doc. No. 427), and
Moore filed a Reply (Doc. No. 435). The motion is fully briefed and ripe for decision. For the
reasons discussed below, the Court GRANTS Defendant Matthew Scott Moore’s Motion In
Limine No. 4 (Doc. No. 327), such that the Court excludes evidence or testimony relating to any
polygraph examination taken by Gillispie.
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I.

BACKGROUND
The Court assumes that the parties are familiar with the general background of this case

and will not delve into its extensive history. For additional background, see Gillispie v. City of
Miami Twp., No. 3:13-cv-416, 2020 WL 5629677 (S.D. Ohio Sept. 21, 2020) (order ruling on
summary judgment motions) and Gillispie v. City of Miami Twp., No. 3:13-cv-416, 2022 WL
4922659 (S.D. Ohio Oct. 4, 2022) (order ruling on three other motions in limine). Gillispie’s
remaining claims against Moore are all claims pursuant to 42 U.S.C. § 1983 (“Section 1983”).
(Doc. No. 298 at PageID 10836, 10932-33.) Gillispie titles these remaining claims against Moore
as: Suppression of Exculpatory Material; Suggestive Identification; Fabricated Evidence;
Malicious Prosecution; and Destruction of Exculpatory Evidence. (Doc. No. 18 at PageID 94-97.)
As a broad overview of Gillispie’s claims, he alleges that Moore—who was a police detective—
engaged in various acts of police misconduct that “framed [Gillispie] for a series of sexual assaults
that he did not commit,” resulting in Gillispie being “deprived of his right to a fair trial,”
“wrongfully convict[ed],” and spending “over 20 years incarcerated as an innocent man.” (Id. at
PageID 77, 94-96, 98.)
Section 1983 “created a species of federal tort liability for individuals to sue state and local
officers for deprivations of constitutional rights.” Thompson v. Clark, 212 L. Ed. 2d 382, 142 S.
Ct. 1332, 1336-37 (2022). “A § 1983 claim must satisfy two elements: 1) the deprivation of a
right secured by the Constitution or laws of the United States and 2) the deprivation was caused
by a person acting under color of state law.” Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir.
1995). Gillispie alleges that he “suffered actual damages, pain and suffering, lost wages, and other
damages as a direct and proximate result” of each of the alleged Section 1983 violations. (Doc.
No. 18 at PageID 94-98.) He seeks an award of compensatory damages, costs, and attorneys’ fees,
along with punitive damages. (Id. at PageID 101.) Trial is scheduled to begin on November 7,
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2022. (Doc. No. 322.)
During his deposition in this civil action, Gillispie testified that he had made a request, to
Moore, to take a polygraph examination during the time Moore was investigating the sexual
assaults. (Doc. No. 168 at PageID 3188; Doc. No. 221 at PageID 4486-89.) Separately, Steven
Fritz (“Fritz”) testified during his deposition in this civil action that he had set up a polygraph
examination of Gillispie while Fritz was “working for a private investigation company” called
Area Wide, which, at the time, had been hired by Gillispie’s criminal defense to investigate
Gillispie’s criminal case. (Doc. No. 221 at PageID 4488, 4491, 4540, 4542; Doc. No. 427 at
PageID 14731.) According to Fritz, at Fritz’s request, Gillispie took a polygraph examination, it
lasted several hours, and the polygraph operator told Fritz “He didn’t do it”—presumably meaning
that, based on the results of the polygraph examination, he believed that Gillispie did not commit
the sexual assaults. (Doc. No. 221 at PageID 4488-89.) Fritz also discussed the polygraph
examination in an affidavit submitted in this civil action. (Doc. No. 221-4 at PageID 4628 (Fritz
stating that Gillispie “passed” the polygraph that Fritz had hired a polygraphist to conduct).)
II.

ANALYSIS
A. Legal Standards for Addressing Motions In Limine
District courts adjudicate motions in limine under their “inherent authority to manage the

course of trials.” Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). “The purpose of a motion in
limine is to allow a court to rule on issues pertaining to evidence prior to trial to avoid delay and
ensure an evenhanded and expedient trial.” In re E.I. du Pont de Nemours & Co. C-8 Pers. Inj.
Litig., 348 F. Supp. 3d 698, 721 (S.D. Ohio 2016). Courts should exclude evidence pursuant to a
motion in limine “only when evidence is clearly inadmissible on all potential grounds.” Ind. Ins.
Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). The Sixth Circuit Court of
Appeals advises that the “better practice” is to address questions regarding the admissibility of
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broad categories of evidence “as they arise.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d
708, 712 (6th Cir. 1975). Courts are “almost always better situated during the actual trial to assess
the value and utility of evidence.” In re E.I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., 348
F. Supp. 3d at 721.
Denial of a motion in limine does not necessarily mean the evidence that is the subject of
the motion will be admissible at trial. Ind. Ins. Co., 326 F. Supp. 2d at 846. This is because “[a]
ruling on a motion in limine is no more than a preliminary, or advisory, opinion that falls entirely
within the discretion of the district court.” U.S. v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). The
district court may change its ruling on the motion in limine, whether prior to trial or at trial, “where
sufficient facts have developed to warrant the change.” Id.
B. Federal Rules of Evidence 401, 402, and 403
The Federal Rules of Evidence provide that “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Fed. R. Evid. 401. “Relevant evidence is
admissible unless any of the following provides otherwise: the United States Constitution; a federal
statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not
admissible.” Fed. R. Evid. 402.
Even if evidence is relevant, it may be excluded “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. Thus, “Rule 403 provides a balancing test for excluding relevant evidence.”
United States v. Asher, 910 F.3d 854, 860 (6th Cir. 2018). A court may, for example, find that
relevant evidence should be excluded when it has little probative value and there would be a

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substantial risk of unfair prejudice, confusion of the issues, and/or any of the other dangers listed
in Rule 403. Journey Acquisition-II, L.P. v. EQT Prod. Co., 830 F.3d 444, 459-60 (6th Cir. 2016);
see also United States v. Hazelwood, 979 F.3d 398, 412 (6th Cir. 2020) (“[u]nfair prejudice” is
defined “as the undue tendency to suggest a decision based on improper considerations”).
In making the Rule 403 determination, “[c]ourts must also consider the availability of other
means of proof.” Asher, 910 F.3d at 861; see also Fed. R. Evid. 403 advisory committee’s note to
1972 proposed rules (the rule calls “for balancing the probative value of and need for the evidence
against the harm likely to result from its admission”). “[T]he existence of an alternative means of
proof—even one with substantially the same or greater probative value but a lower danger of unfair
prejudice—does not require exclusion of more prejudicial evidence.” Asher, 910 F.3d at 861
(internal quotation marks omitted). However, a court “must discount the value of the item first
offered and exclude it if its discounted probative value is substantially outweighed by unfairly
prejudicial risk.” Id. at 861-63 (internal quotation marks omitted) (where “the probative value of
the evidence is modest due to alternative methods of proof, courts must be especially careful not
to allow that evidence to reach the jury if the evidence is unduly prejudicial”).
C. The Single Remaining Request in Moore’s Motion in Limine No. 4
In Moore’s Motion in Limine No. 4, he asks the Court to exclude “[e]vidence relating to
any polygraph examination taken by Plaintiff.” (Doc. No. 327 at PageID 11457.) Gillispie
opposes the request and argues that polygraph evidence is relevant and “there is no serious risk of
unfair prejudice or juror confusion in this case.” (Doc. No. 427.) Gillispie references two separate
categories of evidence involving polygraph testing that he indicates may arise at trial: (1) Gillispie
testifying that he asked Moore to take a polygraph examination; and (2) Fritz, while working for a
private investigation company, helped to administer a polygraph examination on Gillispie, who
allegedly passed the exam. (Doc. No. 427 at PageID 14731-32.) In his reply, Moore argues that
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“the alleged private polygraph administered by Fritz” was administered as a “private polygraph to
Plaintiff” and “[a]ny reference to the polygraph and the result would be extremely prejudicial to
Defendant Moore and far outweigh any probative value regarding Fritz’ state of mind.” (Doc. No.
435 at PageID 15079-80.)
“In considering the admissibility of polygraph related evidence, [the Sixth] circuit has
decreed a two step analysis.” Wolfel v. Holbrook, 823 F.2d 970, 972 (6th Cir. 1987). “First, the
trial court must determine if the proffered evidence is relevant.” Id. “Second, if the court
concludes that the proffered evidence is relevant, it must balance the probative value of the
evidence against the hazard of unfair prejudice and/or confusion which could mislead the jury.”
Id. Specifically regarding the results of a polygraph examination, “[g]enerally, in the absence of
an agreement and/or stipulation between the parties to the contrary, results of polygraph
examinations are inadmissible into evidence.” Id.; see also Barnier v. Szentmiklosi, 810 F.2d 594,
596 (6th Cir. 1987) (“[g]enerally, the use of polygraph results to prove a party’s innocence is
prohibited”). “Under certain limited circumstances, however, the fact that such a test was taken
may be relevant and admissible for purposes other than establishing the truth or falsity of a disputed
fact.” Barnier, 810 F.2d at 596 (citing Murphy v. Cincinnati Ins. Co., 772 F.2d 273 (6th Cir.
1985)).
Regarding the first category of evidence referenced in Gillispie’s opposition (i.e., Gillispie
testifying that he made a request, to Moore, to take a polygraph examination), Gillispie argues that
the evidence goes to the credibility of both Gillispie and Moore because it “demonstrat[es] his
confidence in his innocence” and Moore “wrote a police report essentially accusing Mr. Gillispie
of dodging him, refusing to be forthcoming, and acting as if he had something to hide.” (Doc. No.
427 at PageID 14731.)

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Willingness to submit to a polygraph examination can, in certain instances, be relevant and
admissible. Murphy, 772 F.2d at 277 (in a case brought by a policyholder against an insurance
company for bad faith refusal to pay an insurance claim, holding that the district court did not
abuse its discretion in permitting plaintiff-insured’s testimony of his willingness to submit to a
polygraph examination, where the testimony was relevant because it “reflected upon his credibility
and the defendant[-insurer]’s motive in refusing the claim” for insurance coverage and the
defendant was permitted to present evidence to discount or discredit plaintiff’s willingness to
submit to a polygraph examination). “[A]dmissibility turns on the relationship of the proffered
evidence to other facts of the case, regardless of whether the results of polygraph tests are
admissible.” Id. Thus, “in limited circumstances, evidence of a party’s willingness to submit to a
polygraph may, within the discretion of the trial court, become admissible if it is relevant to the
proof developed by the probative evidence.” Wolfel, 823 F.2d at 972 (in a Section 1983 action,
reversing the trial court’s decision to allow the plaintiff to testify that he had volunteered to submit
to a polygraph examination and took an examination, where the relevance of plaintiff’s willingness
to submit to the polygraph examination was “marginal at best” given that it was offered for the
purpose of supporting his credibility, “there was no agreement or stipulation between the parties
that the results of the examination, whatever they might reflect, would be admissible in subsequent
litigation and hence, [plaintiff] had no adverse interest at stake to cloak his willingness with
credibility,” and plaintiff’s “refusal to respond to control questions negated his offer to submit to
the test because it induced inconclusive results”).
However, Moore never raised this category of evidence in the motion and never addresses
it in the briefing. (See Doc. Nos. 327, 412, 435.) In other words, Moore has not moved for it to
be barred at trial. Therefore, the Court will not make a ruling on this category of evidence at this

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motion in limine stage.
Regarding the second category of evidence (i.e., evidence relating to Gillispie’s polygraph
examination that Fritz had set up while working for a private investigation company hired by
Gillispie’s criminal defense), it fails the two-part analysis from Wolfel. Therefore, it will be barred
at trial. The Sixth Circuit has expressed a “long-held opinion that the results of a polygraph are
inherently unreliable.” United States v. Thomas, 167 F.3d 299, 308 (6th Cir. 1999); see also
Wolfel, 823 F.2d at 974 (stating in 1987 that “general skepticism … pervades the scientific
community concerning the reliability of polygraph examination”). More important to the specific
issue presented, the Sixth Circuit has “repeatedly held that unilaterally obtained polygraph
evidence is almost never admissible under Federal Rule of Evidence 403.” Thomas, 167 F.3d at
308-09 (admitting the results of the polygraph would have violated the principles of Federal Rule
of Evidence 403, where the defendant “took a private polygraph test administered by an examiner
hired by his family[] and did not inform the government of his test results until after he had taken
the examination”).
In Barnier, a Section 1983 case, the Sixth Circuit held that the district court’s admission of
evidence that the plaintiffs took a polygraph examination (sometimes colloquially known as a lie
detector test) was reversible error. Barnier, 810 F.2d at 597. In that case, the plaintiffs had
privately arranged for, and submitted to, a polygraph examination; the defendants (who were
police officers) did not know about it, let alone encourage or agree to it. Id. at 596-97. The Sixth
Circuit “doubt[ed] that the evidence of the polygraph was properly admissible for any purpose”
and explained that the “district court should not have admitted this evidence under Federal Rule
of Evidence 403.” Id. at 597.
Here, as in Thomas and Barnier, the polygraph examination was privately administered.

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(Doc. No. 221 at PageID 4488, 4491, 4540, 4542.) There is no evidence that Moore even knew
about it. Thus, evidence regarding the polygraph examination constitutes “unilaterally obtained
polygraph evidence” that the Sixth Circuit has explained “is almost never admissible under Federal
Rule of Evidence 403.” Thomas, 167 F.3d at 308-09. The Court finds that the evidence has
(limited) relevance, but its probative value is substantially outweighed by a danger of unfair
prejudice, confusing the issues, and/or misleading the jury. Fed. R. Evid. 403; Barnier, 810 F.2d
at 596-97; Thomas, 167 F.3d at 308-09; Wolfel, 823 F.2d at 975. Therefore, at trial, any evidence
or testimony relating to the polygraph examination taken by Gillispie—including, but not limited
to, the fact that Gillispie took a polygraph examination, its results, statements regarding the
examination, any argument that the polygraph examination should have been admitted into
evidence at the criminal trial, etc.—is barred.1
III.

CONCLUSION
For the reasons stated above, the Court GRANTS the sole remaining request in Moore’s

Motion In Limine No. 4 (Doc. No. 327), as modified by the parties’ Notice (Doc. No. 412). The
Court bars any evidence or testimony relating to any polygraph examination taken by Gillispie.
The Court clarifies that, because Moore did not raise or address the issue in the motion’s briefing,
it does not make any ruling regarding the limited category of evidence that Gillispie made a
request, to Moore, to take a polygraph examination (and Moore did not have Gillispie take a
polygraph examination).

Gillispie’s cited cases are distinguishable, either factually, legally (including because they do not involve federal
law), or both. For example, Noonan v. Cnty. of Oakland, 683 F. App’x 455, 462-63 (6th Cir. 2017) involved whether
a detective was entitled to qualified immunity at the summary judgment stage. The Sixth Circuit in Noonan held that
the detective was entitled to qualified immunity because, as a matter of law, the plaintiff “did not suffer a deprivation
of liberty” despite being called in by the police for questioning, undergoing a polygraph exam, hiring a criminal
defense attorney, and having his car impounded for months. Id. As another example, as shown above, Murphy did
not involve the taking of a polygraph examination or its results. Murphy, 772 F.2d at 277.
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DONE and ORDERED in Dayton, Ohio, this Wednesday, November 2, 2022.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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