Sufficiency of Evidence – Court Error

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7^th Circuit Court of Appeals

Case Name: United States of America v. David A Resnick

Case No.: 14-3791

Officials: WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.

Focus: Sufficiency of Evidence – Court Error

Court made no error in admittance of evidence, appellant forfeited objections at trial.

“Ultimately, however, the proper characterization does not matter here. A Fifth Amendment self‐incrimination violation is not structural error. See Chapman v. California, 386 U.S. 18, 24 (1967) (holding Fifth Amendment self‐incrimination error not grounds for reversal of conviction if proven harmless “beyond a reasonable doubt”); Jumper, 497 F.3d at 703 (same). Thus, if the district court committed Fifth Amendment error (a question we need not decide), we must still decide whether any such error was “plain.” We have never before held that the refusal to take a polygraph implicates the Fifth Amendment. Moreover, Resnick’s refusal to take a polygraph was mentioned only once by each side during closing, the evidence against him was very strong, and his defense did not depend on his credibility because he did not take the stand at trial. It is Resnick’s burden to “make a specific showing of prejudice” in order to satisfy the “substantial rights” part of the plain error analysis. Olano, 507 U.S. at 735. He has not done so. The dissent overstates matters when it says, post at 7, that “only an innocent defendant could have his conviction reversed” under the approach to plain error we have taken. Any defendant who can point to an error that affected his “substantial rights” (and the other criteria of Olano) can show plain error. Resnick’s problem is that any error in admitting the testimony about his reluctance to submit to a polygraph was not plain and did not affect his substantial rights in light of the record as a whole. It therefore does not support reversal of his conviction”

Affirmed

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