"substantial possibility that the admission of the polygraph results would mislead and confuse the jury, outweighing any probative value they may have." Kwong, 69 F.3d at 668. Hence, the Second Circuit held that even if the polygraph evidence was admissible under Fed. R. Evid. 702, the evidence should have been excluded under Fed. R. Evid. 403. Id. The Second Circuit did note that "the record before us simply does not provide the proper opportunity to explore the validity of polygraph evidence under Rule 702." 69 F.3d at 669.
However, the standards of admissibility of evidence at a criminal trial is inapplicable to sentencing proceedings. It is a well-settled principle that "a sentencing judge . . . [may] exercise wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed." Williams v. New York, 337 U.S. 241, 246, 69 S. Ct. 1079, 1082, 93 L. Ed. 1337 (1949). See also United States v. Watts, 519 U.S. 148, , 117 S. Ct. 633, 635, 136 L. Ed. 2d 554 (1997). Because "[a] sentence reflects a prediction of future events based largely upon the defendant's past," United States v. Schipani, 315 F. Supp. 253, 255 (E.D.N.Y.), aff'd, 435 F.2d 26 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S. Ct. 1198, 28 L. Ed. 2d 334 (1971), a sentencing court's inquiry traditionally has been "largely unlimited either as to the kind of information . . . considered, or the source from which it may come," United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 591, 30 L. Ed. 2d 592 (1972).
"The Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, codified the traditional purposes of sentencing, both recognizing the importance of imposing individual sentences, see 18 U.S.C. § 3553(a)(1)-(2), and displaying a desire to allow a broad inquiry into relevant information concerning a defendant. See 18 U.S.C. § 3661." United States v. Tejada, 956 F.2d 1256, 1262 (2d Cir.), cert. denied, 506 U.S. 841, 113 S. Ct. 124, 121 L. Ed. 2d 80 (1992). It is permissible to consider information in sentencing that would be inadmissible for the purpose of determining guilt. See United States v. Reese, 33 F.3d 166, 174 (2d Cir. 1994) ("when determining sentence, a sentencing court is free to consider hearsay evidence, evidence of uncharged crimes, dropped counts of an indictment and criminal activity resulting in an acquittal"), cert. denied, 513 U.S. 1092, 115 S. Ct. 756, 130 L. Ed. 2d 655 (1995). Indeed, 18 U.S.C. § 3661 provides that "no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." In addition, the Federal Rules of Evidence, by their own terms, do not apply to sentencing hearings. See Fed. R. Evid. 1101(d)(3); see also United States v. Fatico, 579 F.2d 707, 711 (2d Cir. 1978) ("the Federal Rules of Evidence, except those relating to privileges, do not apply to sentencing proceedings"), cert. denied, 444 U.S. 1073, 99 S. Ct. 1221 (1980).
This principle is echoed in the United States Sentencing Guideline § 6A1.3, which provides that "in resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." Thus, "the tradition of providing complete information at sentencing blossomed in a judicial system that granted a district judge enormous flexibility in assessing a suitable penalty." Tejada, 956 F.2d at 1263. Hence, these principles do not suggest "any basis for the courts to invent a blanket prohibition against considering certain types of evidence at sentencing." Watts, 117 S. Ct. at 635.
Several circuit courts, including the Second Circuit, have addressed on a case-by-case basis the issue of the admissibility of polygraph testimony at sentencing. In United States v. Messina, 131 F.3d 36, 1997 U.S. App. LEXIS 28600 (2d Cir. 1997) (slip op.), the defendant submitted polygraph evidence in an attempt to persuade the district court not to impose the "related conduct" sentencing enhancements. After hearing testimony from the polygraph examiner on his qualifications, the testing procedure and his opinion that the defendant had answered the questions truthfully, the district court stated as follows:
It was interesting to meet [the polygrapher] and hear his views. I still don't believe - let me put it this way, I believe that the rule of law which excludes polygraphs is the right one.
Id. at 42. The district court then concluded that the polygraph evidence offered by the defendant was "flat out wrong." Id. The Second Circuit affirmed without reaching the question of whether the district court could have relied upon the polygraph evidence if it had concluded it to be credible, stating as follows:
Although the district court stated its belief in the correctness of our traditional rule against the admission of polygraph evidence, it also allowed Messina great latitude in presenting such evidence at his sentencing hearing. And, it made a factual finding that the test results Messina offered were "flat out wrong." In view of the fact that we have not decided whether polygraphy has reached a sufficient state of reliability to be admissible under Rule 702 of the Federal Rules of Evidence, see United States v. Kwong, 69 F.3d 663, 668-69 (2d Cir. 1995), cert. denied, 517 U.S. 1115, 134 L. Ed. 2d 491, 116 S. Ct. 1343 (1996), we cannot say that the district court clearly erred in finding that the polygraph evidence actually presented was unworthy of credit.