No. 2015-2207-C2

THE STATE OF TEXAS, ) ) ) ) ) ) ) ) )

54TH DISTRICT COURT

Plaintiff, McLENNAN COUNTY, TEXAS

v.

MATTHEW ALAN CLENDENNEN,

Defendant.

MOTION IN LIM/NE NO. 1 REGARDING POLYGRAPH EVIDENCE AND OFFER OF PROOF 1

Defendant , Matthew Alan Clendennen , hereby moves this Court to admit the expert

testimony and/or lay testimony of Rick Holden to discuss the polygraph given to him regarding

the allegations in this case or, in the alternative , to grant him a hearing under Tex. R. Evid. 702

regarding the admission of the polygraph examination. In support of this motion, Mr.

Clendennen sets forth the following facts and argument:

I. Offer of Proof

On June 9, 2015, Rick Holden, a very well respected Dallas polygrapher, gave Mr.

Clendennen a polygraph examination . Mr . Holden is Past-President of the American Polygraph

Association and the Texas Association of Polygraph Examiners and has been a Licensed

Polygraph Examiner in Texas and other states since 1973. Mr. Holden is published in the fields

of polygraph and criminal behavior and has been the recipient of numerous state and national

awards for his contributions to the polygraph. In fact, the American Association of Police

Polygraphists (AAPP) presented Mr. Holden the Max Wastl Sr. Award for "Significant

1This Motion is made without prejudice to Mr. Clendennen's right to move to enjoin this proceeding under 42 U.S.C. § 1983 and Fitzgerald v. Peek, 636 F.2d 943 (51

h Cir.), cert. denied, 452 U.S. 916 (1981) . Motion in Limine No. 1 Regarding Polygraph Evidence and Offer of Proof

Contributions to the Polygraph Profession." His full CV is attached hereto as Attachment A.

The relevant questions and answers on the polygraph given to Mr. Clendennen were:

Relevant Q 1: Did you go to Twin Peaks on May 17th for the purpose of engaging

in violence?

Answer: No

Relevant Q2: Did you engage in any violence yourself at Twin Peaks on May 17th?

Answer: No

Relevant Q3: Did you encourage anyone to take part in violence at Twin Peaks that day?

Answer: No

Significantly Mr. Holden's examination concluded that those answers were

completely truthful and "no deception was indicated."

II. DISCUSSION

Mr. Clendennen begins by acknowledging that Texas does not allow the admission of

polygraph results at trial. See, e.g., Castillo v. State, 739 S.W.2d 280, 293 (Tex. Crim.

App.1987). Nevertheless, the Court of Criminal Appeals has also suggested that polygraphs may

be subject to a Daubert analysis. See Ross v. State, 133 S.W.2d 618, 625-26 (Tex. Crim.

App.2004). Likewise, the United States Court of Appeals for the Fifth Circuit has held that a

defendant is entitled to a Daubert hearing regarding the admissibility of polygraph evidence. 57

FJd 428 (51h Cir. 1995).

In light of other forms of "scientific" evidence routinely that are admitted before juries in

Texas, polygraph evidence is at least as reliable, if not more reliable, than many of these other

forms of evidence. For example, a United States District Court for the Middle District of Florida

Motion in Limine No. 1 Regarding Polygraph Evidence and Offer of Proof 2

recently admitted polygraph evidence after holding a 702 hearing upon the request of the

defendant. See Attachment B.

First, Dr. Raskin testified that there are dozens of scientific studies with regard to

polygraph examinations. TR at 5:22 - 6:1; Raskin Dec. ,, 12-16. In his Declaration, Dr. Raskin describes laboratory research studies and field studies that have been used to test the accuracy of polygraph examinations. Raskin Dec. 1 11. These studies and publications indicate that a properly performed polygraph examination has a 90% accuracy rate. TR at 6:16-20. The studies also show that the risk of a person who is lying passing the test (false negative) is less likely than a person who is telling the truth failing the test (false positive). TR at 9:15-23. An extensive study by the Department of Defense supports the accuracy and reliability of polygraph exams. TR at 11 :3 - 12:6; Raskin Dec. at p. 29.

Id. at 5-6 (emphasis added). See also Raymond Nelson, Scientific Basis for Polygraph Testing,

Polygraph, Vol. 44 at 43 (2015) ("The most recent scientific review of comparison question

polygraph techniques in present use (American Polygraph Association, 2011) reported a mean

accuracy of .89 for event-specific diagnostic polygraphs, with some evidence-based methods

having been shown to provide mean accuracy levels in excess of .90.").2

In contrast, eyewitness identification, which is often key evidence in many criminal cases,

has a notoriously low accuracy rate. Noah Clements, Flipping a Coin: A Solution for the

Inherent Unreliability of Eyewitness Identification Testimony, Indiana L. Rev. 271 , 284 (2007)

("The baseline accuracy rates [for eyewitness identification] ... range from 50-60% even in non-

stressful witnessing situations which is not too much more reliable than a coin toss.") In fact, the

Innocence Project had determined that, of over 230 people who had been exonerated through

DNA testing in the United States, 75% of those wrongful convictions involved eyewitness

2If permitted a 702 hearing, Mr. Holden would offer similar testimony regarding the accuracy rate for polygraph testing. Motion in Limine No. 1 Regarding Polygraph Evidence and Offer of Proof 3

misidentification! 3

To put all of this in perspective, one study comparing different forms of evidence

concluded that polygraph evidence compared favorably with other types of evidence. Excluding

"inconclusive" results from each test, a fingerprinting expert resolved 100% of the cases

correctly, a polygrapher resolved 95% of the cases correctly, a handwriting expert resolved 94%

of the cases correctly, and a eyewitness resolved only 64% of the cases correctly.4

In short, given the scientific studies regarding the high accuracy rate of polygraph testing

and comparing that rate with the accuracy rates of other type of evidence routinely admitted at

trial, the jury in this case should be permitted to hear the results of the polygraph test

administered to Mr. Clendennen by Mr. Holden. Indeed, if the trial is truly to be a "search for the

truth," there is no reason not to allow the jury to evaluate this evidence and then give it the

weight it feels is proper.

III. CONCLUSION

Based on the foregoing, Defendant, Matthew Alan Clendennen, respectfully requests this

Court to admit the expert testimony of Rick Holden to discuss the polygraph given to him

regarding the allegations in this case or, in the alternative, to grant the defense a hearing under

Tex. R. Evid. 702 regarding the admission of the polygraph examination

3www.innocenceproject.org/files/imported/ eyewitness_ id_ report-6. pdf

4Widacki & Horvath, An Experimental Investigation of the Relative Validity and Utility of the Polygraph Technique and Three Other Common Methods of Criminal Identification, 23 J. Forensic Sciences 596, 596-600 (1978).

Motion in Limine No. 1 Regarding Polygraph Evidence and Offer of Proof 4

F. Clinton Broden TX Bar 24001495 Broden & Mickelsen 2600 State Street Dallas, Texas 75204 214-720-9552 214-720-9594 (facsimile)

Attorney for Defendant Matthew Alan Clendennen

Motion in Limine No. 1 Regarding Polygraph Evidence and Offer of Proof 5

CERTIFICATE OF SERVICE

I, F. Clinton Broden, do hereby certify that, on this !81 day of February, 2016, I caused a

copy of the foregoing document to be served on McLennan County District Attorney 219 N 6th

St Waco, TX 76701, by overnight mail.

t F. Clinton Broden

Motion in Limine No. 1 Regarding Polygraph Evidence and Offer of Proof 6

No. 2015-2207-C2

THE STATE OF TEXAS,

Plaintiff,

v.

MATTHEW ALAN CLENDENNEN,

Defendant.

) ) ) ) ) ) ) ) )

54rn DISTRICT COURT

McLENNAN COUNTY, TEXAS

ORDER

Upon consideration of Defendant's Motion in Limine No. 1 Regarding Polygraph

Evidence and Offer of Proof, it is this __ day of ______ , 2016 ORDERED that a

hearing pursuant to Tex. R. Evid. 702 shall be conducted on this matter.

JUDGE PRESIDING

Case 8:14-cr-00379-CEH-TGW Document 161 Filed 04/09/15 Page 10 of 10 PagelD 504

Polygraph Admitted in Court Opinion Courtesy Copy

DONE AND ORDERED in Tampa, Florida on April 9, 2015.

~' < &1 .. 1a,,d11..Jfuno,1rweb.P. Charlene Edwards Honeywell =-United States District Judge

Copies to: Counsel of Record and Unrepresented Parties, if any

10

Law Office of W. F. Casey Ebsary Jr I http://www.centrallaw.com I 813-222-2220