United States v. Richard W. Miller

ORDER

In its petition for rehearing in this case, the government claims that Miller himself requested that the polygraph evidence be tailored in a manner that included the specific questions and answers, and that this court should therefore apply the plain error standard of Fed.R.Crim.P. 52(b). We reject this argument since nothing in the record indicates that Miller made such a request. The government’s claim is based on its assertion that, during the final minutes of a pretrial hearing on July 81, 1985, Miller requested that the trial court limit the introduction of the polygraph testimony in certain respects. However, this portion of the hearing was never transcribed, and the parties vigorously contest what occurred during these few minutes. On October 4, 1988, we denied the government’s motion to supplement the record with regard to these “lost” few minutes.

Furthermore, even conceding that the defense made the particular requests that the government claims were made, we do not think that such action can be interpreted as a waiver of objection to the extent of polygraph testimony that the government sought to introduce. The defense was clearly on record as objecting to the…