Lead Opinion
Opinion
The issues in this certified appeal are: (1) whether Connecticut should adopt as the standard for the admissibility of scientific evidence the standard set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
The following facts and procedural history are undisputed. The defendant’s home in Norwich was destroyed by a fire on July 20, 1992. The defendant was subsequently charged with two counts of arson in the first degree in violation of § 53a-111 (a) (3) and (4).
Before trial, the defendant retained Leighton Hammond, a polygrapher, to conduct a polygraph examination to determine whether the defendant was telling the truth when he claimed that he had no guilty knowledge of, and had not participated in, the burning of his home. The defendant did not give the state advance notification of the examination. The pertinent test questions asked of the defendant were: (1) “Did you set fire to your home?”; (2) “Did you tell even one lie, in your statement to the Norwich Police?”; and (3) “Do you know for sure, if any person deliberately set fire to your
The defendant then moved that the trial court admit the results of the polygraph examination. After a hearing, the trial court denied the defendant’s motion, stating that it was not the place of a trial court to reconsider Connecticut’s traditional per se ban on the admissibility of polygraph evidence.
Following a jury trial, at which the defendant did not testify, he was convicted of arson in the first degree in violation of § 53a-111 (a) (4).
I
The Daubert Standard
The defendant argues that Connecticut should adopt the federal test for the admissibility of scientific evidence, as set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
A
We begin with a general examination of the Frye and Daubert standards for the admission of scientific
In considering the defendant’s claim in Frye, the Court of Appeals for the District of Columbia first determined that “general acceptance” in the scientific community was a precondition to the admissibility of any scientific evidence. Frye v. United States, supra,
In 1993, however, the federal standard for the admissibility of scientific evidence changed as a result of the decision of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
Instead, a federal trial court has a responsibility to determine, pursuant to rule 702, whether the proffered evidence will “assist the trier of fact.” Id., 589. This
More specifically, the first requirement for scientific evidence to be admissible under rule 702 is that the subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted “in the methods and procedures of science”; id., 590; and is “more than subjective belief or unsupported speculation.”
The court listed four nonexclusive factors for federal judges to consider in determining whether a particular theory or technique is based on scientific knowledge: (1) whether it can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, including the existence and maintenance of standards controlling the technique’s operation; and (4) whether the technique is, in fact, generally accepted in the relevant scientific community. Id., 593-94. The court emphasized, however, that the inquiry is “a flexible one. Its overarching subject is the scientific validity — and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission.” Id.,
The second condition that scientific evidence must satisfy in order to be admissible under rule 702 is that it must “fit” the case in which it is presented. Id., 591. In other words, proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract. “The study of the phases of the moon, for example, may provide valid scientific ‘knowledge’ about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night.” Id.
Finally, the court emphasized that even if a scientific theory or technique satisfied both of the previous criteria and thus would be admissible under a rule 702 analysis, it can still be excluded for failure to satisfy some other federal rule of evidence. Id., 595. Most important, it can still be excluded for failure to satisfy rule 403, which allows for the exclusion of relevant evidence “ ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the juiy . . . ,’”
Because Daubert was premised on an interpretation of a federal rule of evidence, its rejection of Frye is not
B
We now address the question of the proper standard for the threshold admissibility of scientific evidence in this state. We begin by noting that, at present, Connecticut nominally follows the Frye rule.
A closer examination of our precedent, however, reveals that on many occasions we have declined to apply Frye when considering expert scientific testimony. See, e.g., State v. Hasan,
It is clear that we have been moving toward a validity standard for a number of years. We believe that it is
1
We first discuss why a special standard for the admissibility of scientific evidence is required at all. Implicit in both Frye and Daubert is the notion that a trial judge should, by one method or another, serve as a “gatekeeper” and make a preliminary assessment of the validity of scientific testimony before allowing the fact finder even to consider it. A number of commentators, however, have suggested that the validity of proffered scientific evidence should go solely to its weight, not to its admissibility, and thus the fact finder should have a chance to consider all scientific evidence that is submitted. For example, the latest edition of Charles McCormick’s treatise on evidence provides that in making admissibility determinations, “the traditional standards of relevancy and the need for expertise — and
Under this view, rule 702 of the Federal Rules of Evidence should not be interpreted as requiring judges independently to assess the validity of proffered scientific evidence, or to make admissibility decisions therefrom. Instead, “trial courts [should only] insure that expert witnesses are trustworthy — capable of explaining their reasoning in a manner that permits the factfinder to assess the testimony effectively — and so knowledgeable in their subject area that the inferences they draw are helpful. Thus, a court faced with scientific proof offers should not do what the jury does — that is, decide whether the evidence can be believed and how much of it should be believed. Instead, the court should consider whether the factfinder has enough information at its disposal to decide these issues for itself.” R. Dreyfuss, “Is Science a Special Case? The Admissibility of Scientific Evidence After Daubert v. Merrell Dow” 73 Tex. L. Rev. 1779, 1801 (1995).
We disagree with the preceding analyses and conclude that the validity of the methodologies underlying proffered scientific evidence should be considered in determining the admissibility of such evidence, as well as in determining its weight. Accordingly, we also conclude that it is proper for a trial judge to serve a gatekeeper function.
a
In this regard, we first note the concern expressed by many authorities that juries will be overwhelmed by complex scientific evidence and will give such evidence
Although the effect of scientific evidence with regard to both judges and juries is uncertain, we note that, purely as a procedural matter, a judge is in a much better position than a juror to assess accurately the fundamental validity of such evidence. This is due to the different roles each serves at trial and the concomitant powers each has. “[T]he process of judicial decisionmaking, including the methods by which information is received and decisions are reviewed, is better suited than is the rather awkward process of juror decisionmaking for evaluation of evidence that is beyond at least the usual ken of laypeople, judges, and jurors alike.” R. Friedman, “The Death and Transfiguration of Frye” 34 Jurimetrics J. 133, 144 (1994); see also B. Black, F. Ayala & C. Saffran-Brinks, “Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge,” 72 Tex. L. Rev. 715, 787 (1994) (“we agree with Daubert's preference for preliminary judicial screening only because judges are in a better position than juries to acquire and consider the kind of information that bears on the resolution of [scientific evidence] disputes”).
For example, juries mainly have to rely on in-court testimony for their understanding of scientific evidence; that is, they are largely dependent upon the presentations of the parties and their experts. There is evidence, however, that expert presentations may often be mis
Judges, on the other hand, have the benefit of reviewing briefs and other documents. B. Black, F. Ayala & C. Saffran-Brinks, supra, 72 Tex. L. Rev. 788. Indeed, a Connecticut trial judge has the power to request supplemental briefing on any issue that needs clarification, including issues surrounding proffered scientific evidence. Furthermore, Practice Book § 881 explicitly authorizes a judge presiding over a criminal case to appoint an independent expert when necessary.
Given this background, we conclude that a gatekeeping role for trial judges in relation to scientific evidence is appropriate. Although the extent to which juries give scientific evidence undue deference is uncertain, the potential risk can be greatly reduced simply by allowing the judge, as the participant in the judicial process with both the greater access and ability to gather relevant information, to exclude wholly invalid scientific testimony altogether. Moreover, a trial judge who does admit scientific evidence will be in a better position, by virtue of the knowledge gained during the preliminary assessment, to conduct the trial and instruct the jury in such a way as to minimize the risk that jurors will give that evidence undue deference.
In addition, we believe it is proper for trial judges to serve as gatekeepers for scientific evidence because a relevance standard of admissibility inherently involves an assessment of the validity of the proffered evidence. More specifically, if scientific evidence has no grounding in scientific fact, but instead is based on conjecture and speculation, it cannot in any meaningful way be relevant to resolving a disputed issue.
McCormick himself, although a proponent of the relevance standard for scientific evidence, initially recognized this fact. In the first edition of his treatise on evidence, McCormick rejected the Frye test in favor of a relevancy standard, in much the same maimer as that test is rejected in the fourth edition of his treatise. See C. McCormick, Evidence (1954) § 170, pp. 363-64. He went on to conclude, however, that such a standard would entail “deflating] the requirement [of general acceptance] to the normal standard which simply demands that the theory or device be accepted by a substantial body of scientific opinion . . . .” (Emphasis added.) Id., § 174, pp. 371-72. McCormick thus implicitly acknowledged that some indication of scientific validity — accomplished here by a showing of “substantial” acceptance — is necessaiy for scientific evidence even to be relevant. It is true that the previous passage was removed from subsequent editions of McCormick’s treatise. See, e.g., C. McCormick, Evidence (2d Ed. 1972) § 207, pp. 506-507. Nonetheless, we believe that McCormick’s original understanding was correct. See also P. Giannelli, supra, 80 Colum. L. Rev. 1233-34.
2
Having concluded that Connecticut judges should exercise a gatekeeper function with regard to scientific
We are persuaded by these criticisms of the Frye test. We conclude that an admissibility test for scientific evidence premised solely on its “general acceptance” is conceptually flawed and therefore must be rejected. In doing so, we follow in the footsteps of the many
3
We now turn to our reasons for concluding that the Daubert approach to the admissibility of scientific evidence is the proper approach for judges to follow in performing their gatekeeper role. In doing so, we are mindful of the fact that almost every other jurisdiction that has rejected Frye has also, either explicitly or effectively, adopted the Daubert multifactor “validity” approach to admissibility.
Our reasons for adopting Daubert are based upon our understanding of that case. By its own terms, the opinion of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
Critics of Daubert emphasize this indefiniteness. Chief Justice Rehnquist, in his concurring and dissenting opinion, for example, although agreeing that “Rule 702 confides to the judge some gatekeeping responsibility”; Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
We view Daubert's indefiniteness not as a flaw, but as a necessity. The term “scientific evidence” covers a large variety of subjects. The Federal Judicial Center, for example, included in its Reference Manual on Scientific Evidence essays on the broad topics of epidemiology, toxicology, survey research, DNA evidence, multiple regression, and estimation of economic losses in damages awards. See Reference Manual on Scientific Evidence, J. Moore, Federal Practice (1995). In addition to those subjects, courts have also treated as scientific
Accordingly, we conclude that it is impossible to formulate a specific, clearly defined test that provides judges with a precise, complete list of factors to consider in evaluating the entire class of scientific evidence. No purely mechanical test based on a finite number of set considerations can, in and of itself, truly guide judges with regard to the admissibility of all of the varied and eclectic types of scientific evidence. Indeed, “[e]ach factor may shed some light on the scientific merits of the evidence, but none illuminates much of the total picture. Without a conceptual framework, using [mechanical] multiple-factor tests to evaluate science is like trying to light up a ball park with a few misaimed spotlights.” B. Black, F. Ayala & C. Saffran-Brinks, supra, 72 Tex. L. Rev. 735.
It is therefore no surprise that courts that do apply either Frye or Daubert in a purely mechanical manner — simply looking at whether certain, specified factors are met — do not reach consistent results across jurisdictions regarding the admissibility of particular types of scientific evidence. By reading the individual factors narrowly or broadly, courts can skew the analysis toward the end they desire.
Indeed, because a generic, mechanical standard is often inapposite to an understanding of the validity of a particular type of scientific evidence, such a specific standard frequently deflates into no standard at all. This is because “[s]uperficially clear doctrinal standards that are in fact indeterminate nearly to the point of uselessness serve only to obstruct the rules that govern the system.” “Developments in the Law,” supra, 108 Harv. L. Rev. 1497. That is, mechanical factor tests emphasize specific considerations that are often irrelevant or unduly narrow while simultaneously obscuring the underlying principles upon which a court should be focusing. As a result, such tests have “little analytical value [and] serve primarily as labels to justify a court’s instinctive reaction.” B. Black, F. Ayala & C. Saffran-Brinks, supra, 72 Tex. L. Rev. 735. Thus, the reality under most mechanical tests for the admissibility of scientific evidence is that, beneath the illusion of a rigid standard, the court in fact has essentially unfettered discretion.
We conclude that a test embodying a general, overarching approach to the threshold admissibility of scientific evidence is required. Although such a standard is
C
We now examine, pursuant to our conception of the Daubert approach, the mechanics and scope of a, Daubert assessment. Indeed, our reasons for adopting the Daubert approach at all are intertwined with, and dependent upon, our conception of how that approach should operate.
1
We begin by noting the distinction under the Daubert approach between the methodologies underlying an expert’s scientific testimony and the expert opinion itself. As the court in Daubert noted, the focus of a validity assessment “must be solely on principles and methodology, not on the conclusions that they generate.” Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
For example,
After a thorough review of the bases upon which the plaintiffs physician had based his opinion, the court upheld the admission of his testimony. “Although [the plaintiffs physician’s] conclusion differs from those of the defendant’s medical experts, he has utilized an accepted methodology in reaching his conclusion — namely, analysis of medical literature and case study comparison with the individual characteristics of
Of course, even where a particular technique has been shown to satisfy Daubert, the proponent must also establish that the specific scientific testimony at issue is, in fact, derived from and based upon that methodology. The Supreme Court in Daubert referred to this concept as the “fit” requirement. Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
2
We now set forth some of the factors that various courts have considered in conducting a methodological analysis. We emphasize, however, that these factors are not exclusive. Some will not be relevant in particular cases; and some cases will call for considerations not discussed herein. “The factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case.” E.I. du Pont de Nemours & Co. v. Robinson,
Even under Daubert, courts should continue to consider whether a scientific principle has gained “general acceptance” in making admissibility determinations. Although “general acceptance” is no longer an absolute prerequisite to the admission of scientific evidence, it should, in fact, be an important factor in a trial judge’s assessment. Indeed, “[w]e suspect that general acceptance in the relevant scientific community will continue
Several other factors may properly play a role in a court’s assessment of the validity of a scientific methodology. The remaining factors listed in Daubert—
We appreciate that many of these factors lack precision, but this indefiniteness is unavoidable. The actual
3
We now turn to the threshold burden that a proponent of scientific testimony bears to establish that the testimony is admissible. “Once the party opposing the evidence objects, the proponent bears the burden of demonstrating its admissibility.” E.I. du Pont de Nemours & Co. v. Robinson, supra,
In addressing the showing that a proponent of scientific evidence must make, we are largely guided by the fundamental tenets of the law of evidence regarding admissibility. “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case.” (Internal quotation marks omitted.) State v. McClendon,
These concepts are as applicable to scientific testimony as to other types of evidence. Thus, questions about the methodological validity of proffered scientific testimony will generally go to the weight of such evidence, not to its admissibility. Courts should exclude scientific evidence, however, when such concerns render the technique, and the resulting evidence, incapable of assisting the fact finder in a sufficiently meaningful way.
A trial judge should therefore deem scientific evidence inadmissible only when the methodology underlying such evidence is sufficiently invalid to render the evidence incapable of helping the fact finder determine a fact in dispute. We adopt the Daubert approach, however, specifically because we conclude that a sufficient showing of validity is necessary for scientific evidence to be helpful. See part IB 1 of this opinion. The interplay between these principles — a general policy in favor of admission of helpful evidence, and a specific policy of
D
It is important to remember that Daubert only provides a threshold inquiry into the admissibility of scientific evidence. Even evidence that has met the Daubert inquiry into its methodological validity, and thus has been shown to have some probative value, may be excluded for failure to satisfy other evidentiary rules. In particular, scientific evidence, like all evidence, is properly excluded if its prejudicial impact outweighs its probative value, even if it is otherwise admissible. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
E
Finally, we address the concern that, by requiring trial courts to conduct a Daubert validity assessment, we are improperly requiring them to become amateur scientists. According to some critics, a significant problem with the Daubert approach is that “we sorely underestimate the complexity of many scientific controversies, particularly those involving complex quantitative analysis, when we presume that nonscientist judges can master the technical issues to the point that they should feel comfortable deciding what is or is not good science in a particular case. Scientists who have spent the greater portions of their professional lives wrestling with the complexities and mysteries of their disciplines must be amazed at the law’s hubris in thinking that nonscientist judges can ‘get up to speed’ on a scientific dispute and ultimately decide who has the better of the
We conclude that this concern is unfounded. Under Daubert, trial judges are not required to make a determination of the ultimate scientific validity of any scientific propositions. Instead, they need only make a much more limited inquiry: whether sufficient indicia of legitimacy exist to support the conclusion that evidence derived from the principle may be profitably considered by a fact finder at trial. It is true that answering even this question may require “a deeper and more detailed preliminary review of scientific claims than most courts have heretofore undertaken.” B. Black, F. Ayala & C. Saffran-Brinks, supra, 72 Tex. L. Rev. 721. Nonetheless, we do not expect this process to burden our courts unduly. “Though the details of science may be remote from common experience, nonscientists can under
Moreover, to the extent that our adoption of Daubert does “[signal] that the time has come for courts and lawyers to learn the basic principles of science”; L. Loevinger, supra, 35 Jurimetrics J. 179; we see this as an unavoidable necessity. As science and technology have advanced and become increasingly prevalent in our society, the number of cases, both civil and criminal, in which scientific testimony plays a role has also grown. See, e.g., id., 172 n.110. This number undoubtedly will continue to grow in the future. When such cases, with their attendant evidentiary issues, arise, it is indisputable that “]j]udges will . . . face difficult issues that are beyond their background and training. But they should not respond by evading their responsibility to reach a carefully reasoned decision or by using superficial labels ‘to justify [their] instinctive reaction.’ Instead, judges should try to educate themselves about the proposed area of expertise . . . .” “Developments in the Law,” supra, 108 Harv. L. Rev. 1517. Only by being knowledgeable, in at least a basic way, about the issues surrounding the scientific evidence before them, can judges discharge their duties properly. Accordingly, Daubert, at its most fundamental level, merely directs “trial judges consciously [to] do what is in reality a basic task of a trial judge — ensure the reliability and relevance of evidence without causing confusion, prejudice or mistake.” “Standards and Procedures for Determining the Admissibility of Expert Evidence After Daubert,” supra,
II
Admissibility of Polygraph Evidence
We now turn to the defendant’s claim that Connecticut should abandon its traditional per se rule against
Without deciding, we will assume, for the purposes of this opinion, that polygraph evidence satisfies the admissibility threshold established by Daubert. After reviewing the case law and the current, extensive literature on the polygraph test, however, we are convinced that the prejudicial impact of polygraph evidence greatly exceeds its probative value.
A
We first explain our methodology in assessing, in the absence of an evidentiary hearing before the trial court, the likely probative value of polygraph evidence. In conducting such an assessment, an appellate court “may take judicial notice of the existence of a body of scientific literature.” Browning-Ferris Industries of South Jersey, Inc. v. Muszynski,
B
With this background in mind, we turn now to an assessment of the threshold validity, probative value, and prejudicial impact of polygraph evidence. In order to do so, it is necessary to understand some of the mechanics and theory behind the modem polygraph test.
1
Modem polygraph theory rests on two assumptions: (1) there is a regular relationship between deception and certain emotional states; and (2) there is a regular relationship between those emotional states and certain physiological changes in the body that can be measured and recorded. J. Tarantino, Strategic Use of Scientific Evidence (1988) § 6.01, p. 205. These physiological changes include fluctuations in heart rate and blood
There is no question that a high quality polygraph is capable of accurately measuring the relevant physical characteristics. United States Congress, Office of Technology Assessment, “Scientific Validity of Polygraph Testing: A Review and Evaluation — A Technical Memorandum,” OTA-TM-H-15 (1983) (OTA Memorandum), reprinted in 12 Polygraph 198, 201 (1983). Even polygraph advocates, however, acknowledge that “[n]o known physiological response or pattern of responses is unique to deception.” D. Raskin, “The Polygraph in 1986: Scientific, Professional and Legal Issues Surrounding Application and Acceptance of Polygraph Evidence,” 1986 Utah L. Rev. 29, 31 (1986). Indeed, “there is no reason to believe that lying produces distinctive physiological changes that characterize it and only it. . . . [T]here is no set of responses — physiological or otherwise — that humans omit only when lying or that they produce only when telling the truth .... No doubt when we tell a lie many of us experience an inner turmoil, but we experience similar turmoil when we are falsely accused of a crime, when we are anxious about having to defend ourselves against accusations, when we are questioned about sensitive topics — and, for that matter, when we are elated or otherwise emotionally stirred.” (Citation omitted.) B. Kleinmuntz & J. Szucko, “On the Fallibility of Lie Detection,” 17 Law & Society Rev. 85, 87 (1982). Thus, while a polygraph machine can accurately gauge a subject’s physiological profile, it cannot, on its own, determine the nature of the underlying psychological profile. “The instrument cannot itself detect deception.” OTA Memorandum,
The polygraph examiner, therefore, is responsible for transforming the output of a polygraph machine from physiological data into an assessment of truth or deception. See, e.g, P. Giannelli, “Forensic Science: Polygraph Evidence: Part I,” 30 Crim. L. Bull. 262, 264 (1994). This mission actually involves two separate tasks. First, the examiner must design and implement a polygraph test in such a way that the physiological data produced is properly linked to a subject’s deceptiveness, and not just to his nervousness or other unrelated emotional responses. Id, 263. Second, even if the data produced is linked to a subject’s deception, the examiner must interpret the data, that is, grade the test, correctly. Id, 264.
The “control question test” is the polygraph method most commonly used in criminal cases to link physiological responses to deception.
In the control question test procedure, the polygrapher first conducts a pretest interview with the subject wherein the accuracy and reliability of the polygraph are emphasized.
A neutral question is entirely nonconfrontational and is designed to allow the polygrapher to get a baseline reading on the subject’s physiological responses. A neutral question addresses a subject’s name, age, address, or similar topic.
A control question concerns “an act of wrongdoing of the same general nature as the main incident under investigation,” and is designed to be “one to which the subject, in all probability, will lie or to which his answer will be of dubious validity in his own mind.” J. Rat & F. Inbau, Truth and Deception (2d Ed. 1977) p. 28. Control questions “cover many years in the prior life of the subject and are deliberately vague. Almost anyone would have difficulty answering them truthfully with a simple ‘No.’ ” D. Raskin, supra, 1986 Utah L. Rev. 34. In an assault case, a control question might be: “Did you ever want to see anyone harmed?” J. Tarantino, supra, § 6.09, p. 215. Although few people honestly could deny these control questions categorically, they are “presented to the subject in a manner designed to lead him to believe that admissions would negatively influence the examiner’s opinion and that strong reactions to those questions during the test would produce a deceptive result.” D. Raskin, supra, 1986 Utah L. Rev. 34.
The theoiy behind the control question test is that “the truthful person will respond more to the control questions than to the relevant questions because they represent a greater threat to that person. For the same reason the deceptive person will respond more to the relevant questions than to the control questions.” P.
Under the control question test, the absolute measure of the subject’s physiological responses to each question is unimportant. For example, the mere fact that a subject has a strong response to a relevant question can simply be indicative of nervousness and does not, by itself, indicate deception. Instead, the polygrapher looks to the relative strength of the responses to the control and relevant questions in order to determine truth or deception.
A control question exam ordinarily pairs relevant and control questions with some neutral questions interspersed. For example, a typical progression would be:
“1. (Neutral) Do you understand that I will ask only the questions we have discussed?
“2. (Pseudo-Relevant) Regarding whether you took that ring, do you intend to answer all of the questions truthfully?
“3. (Neutral) Do you live in the United States?
“4. (Control) During the first twenty-four years of your life, did you ever take something that did not belong to you?
“5. (Relevant) Did you take a ring from the Behavioral Sciences Building on July 1, 1985?
“6. (Neutral) Is your name Joanne?
“7. (Control) Between the ages of ten and twenty-four, did you ever do anything dishonest or illegal?
“8. (Relevant) Did you take that diamond ring from a desk in the Behavioral Sciences Building on July 1?
“9. (Neutral) Were you bom in the month of February?
“11. (Relevant) Were you in any way involved in the theft of that diamond ring from the Behavioral Sciences Building last July?” D. Raskin, supra, 1986 Utah L. Rev. 36. The entire sequence is normally gone through three times, after which the examiner scores the result to attempt to reach a determination of truthfulness or deception.
The most common technique for scoring polygraph charts is pure numerical grading. In the most prevalent numerical system, the polygrapher assigns a numerical value along the range of -3 to +3 to each pair of relevant and control questions. A score of +3 indicates a much stronger reaction to the control question than to the relevant question and, therefore, truthfulness; a score of -3 indicates a much stronger reaction to the relevant question and, therefore, deception; and a score of 0 indicates that there was no significant difference in response. The examiner considers only the polygraph chart in assigning these scores; no consideration is given to any subjective impressions regarding the subject’s truthfulness that the examiner develops over the course of the exam. The scores for all question pairs in all three sequences are then totaled. If the sum is +6 or greater, the subject is classified as truthful; if the sum is -6 or lower, the subject is classified as deceptive; scores of -5 to +5 are deemed inconclusive. Computers are sometimes used to give more precise numerical scores to polygraph charts.
We now examine the validity of the results produced by the polygraph test.
a
The “accuracy” of the polygraph test itself has two components: sensitivity and specificity. The polygraph’s sensitivity is its ability to tell that a guilty person is, in fact, lying. If the polygraph test had a 90 percent sensitivity, then it would correctly label a deceptive subject as being deceptive 90 percent of the time. Thus, the test would incorrectly label a deceptive subject as being truthful 10 percent of the time; this mislabeling is called a “false negative” error. The polygraph’s speci
There is wide disagreement, however, as to what the sensitivity and specificity values actually are for a well run polygraph exam. See generally 1 C. McCormick, supra, § 206, pp. 907-17. Dozens of studies of polygraph accuracy have been conducted. Id. They fall into two basic types, namely, laboratory simulations of crimes
Polygraph supporters base their accuracy estimates on both laboratory simulation and field studies. These advocates acknowledge that field studies are theoretically preferable for establishing the polygraph test’s field accuracy, but they conclude that serious methodological difficulties inherent in such studies, such as establishing the actual guilt or innocence of the study subjects, make most of these studies unreliable. They think, however, that laboratory studies, when designed to approximate field conditions and when carefully conducted, can provide useful and valid data. See generally J. Kircher, S. Horowitz & D. Raskin, “Meta-analysis of Mock Crime Studies of the Control Question Polygraph Technique,” 12 Law & Hum. Behav. 79, 80 (1988); see also C. Honts & M. Perry, supra, 16 Law & Hum. Behav. 361. David Raskin, perhaps the foremost polygraph advocate in the United States, recently reviewed the literature on polygraph studies and concluded that eight laboratory studies and four field studies of the control question test polygraph technique were methodologically valid. D. Raskin, “The Scientific Status of Research on Polygraph Techniques,” in West Companion to Scientific Evidence 2 (Faigman et al. eds., forthcoming 1996), cited in C. Honts & B. Quick, “The Polygraph in 1995: Progress in Science and the Law,” 71 N.D. L. Rev. 987, 995, 1018-19 (1995). The laboratory studies that Raskin cites, taken together, indicate that the polygraph test has an 89 percent sensitivity rate and a 91 percent specificity rate;
Critics, however, view the existing body of polygraph studies quite differently. First, although polygraph detractors agree with the advocates that most field studies are invalid due to methodological concerns, they disagree as to which tests are valid. David Lykken, a prominent polygraph critic, has concluded from the field tests he deems valid that the polygraph has a sensitivity of 84 percent and a specificity of only 53 percent. D. Lykken, “The Validity of Tests: Caveat Emptor,” 27 Jurimetrics J. 263, 264 (1987).
Moreover, polygraph critics argue that laboratory simulation studies are almost completely invalid. They point out that, although the accuracy of the control question test turns entirely on the subject having the “right” emotional responses, the emotional stimuli in the laboratory are completely different from those in the field. D. Carroll, “How Accurate Is Polygraph Lie Detection?,” supra, p. 24. “In the mock crime paradigm . . . it is likely that volunteer subjects regard the experience as a kind of interesting game. Those persons instructed to commit the mock crime and to he during the test no doubt feel a certain excitement, but not the guilt or fear of exposure that a real thief feels when tested for the police. Volunteers assigned to the innocent group have no reason at all to fear the relevant questions; they are not suspected of any wrongdoing and they will not be punished or defamed even if the test goes awry. On the other hand, the control questions used in laboratory studies . . . unlike the relevant questions, do refer to real-world events and, presumably, have the same embarrassing or disturbing effect on volunteer subjects that they have on criminal suspects. This is probably the reason why mock crime studies typically show a much lower rate of false positive errors than do studies of actual criminal interrogation in the field. Innocent suspects often fail police-administered tests . . . because they find the relevant questions more disturbing than the control questions, since they know they are in real jeopardy in respect to the accusations contained in the relevant questions
Even if one accepts Raskin’s field study estimates of accuracy over those of the polygraph critics, polygraph evidence is of questionable validity. Raskin’s 87 percent sensitivity indicates a 13 percent false negative rate. In other words, 13 percent of those who are in fact deceptive will be labeled as truthful. Moreover, Raskin’s 59 percent specificity indicates a 41 percent false positive rate. In other words, 41 percent of subjects who are, in fact, truthful will be labeled as deceptive.
b
In the previous section, we demonstrated that the basic accuracy of the polygraph test is still open to considerable debate. The actual probative value of polygraph evidence as asignifier of guilt or innocence, more
Predictive value positive and predictive value negative depend on the sensitivity and specificity of the polygraph test, but also turn on the “base rate”
Furthermore, the 50 percent base rate that Raskin posits is far from universally accepted. “[T]he figures for [the base rate] that [Raskin] pull[s] out of the hat
The specific predictive value positive and predictive value negative figures generated by a particular set of assumptions, however, is not the significant point for the legal determination of whether to admit polygraph evidence. The point is that, given the complete absence of reliable data on base rates, we have no way of assessing the probative value of the polygraph test. Under one set of assumptions, a failed test has some significance, while a passed test does not; under another, the situation is reversed. The figures are further muddied when one recalls that the sensitivity and specificity of the polygraph are also hotly debated.
c
Countermeasures are also a concern with regard to polygraph validity. A countermeasure is any technique used by a deceptive subject to induce a false negative result and thereby pass the test. For a countermeasure to work on the control question test, all it must do is “change the direction of the differential reactivity between the relevant and control questions . . . .” G. Gudjonsson, “How to Defeat the Polygraph Tests,” in The Polygraph Test (A. Gale ed., 1988) pp. 126, 127.
it may be true that “subjects without special training in countermeasures are unable to beat the polygraph test, even if they have been provided with extensive
With the foregoing information in mind, we will assume, without deciding, that polygraph evidence satisfies Daubert. Although the subjective nature and highly questionable predictive value of the polygraph test weigh heavily against admission, we assume that polygraph evidence may have enough demonstrated validity to pass the Daubert threshold for admissibility.
We conclude, however, that admission of the polygraph test would be highly detrimental to the operation of Connecticut courts, both procedurally and substantively. Moreover, as illustrated in part II B 2 b of this opinion, the probative value of polygraph evidence is very low, even if it satisfies Daubert. Accordingly, we also conclude that any limited evidentiary value that polygraph evidence does have is substantially outweighed by its prejudicial effects. We therefore reaffirm our per se rale against the use of polygraph evidence in Connecticut courts. See State v. Brown, supra,
a
The most significant, and fundamental, problem with allowing polygraph evidence in court is that it would
A determination of whether a witness is telling the truth is well within the province of all jurors’ understanding and abilities.
Very few studies have been done on the influence that polygraph evidence has over juries, and the cumulative results of those studies are inconclusive.
A polygrapher can ascertain a witness’ deception or truth only indirectly, through physical manifestations thereof. It is unfair, however, to label a person as truthful or a liar based solely on such indirect, secondary indicia as a polygraph provides. Although a juror also considers secondary indicia, like demeanor, in assessing a witness’ credibility, the juror has access to the rest of the evidence in the case as well, giving the
Moreover, we afford criminal defendants the right to trial by a panel of several jurors partly out of the recognition that, although one person may be misled when a witness gives the “incorrect” physical signals, the cumulative impressions of the group are likely to lead to the truth. It violates the premise of this entire system to allow a single person — the polygrapher — to label a witness as honest or as dishonest based solely on the same type of indirect evidence that we generally maintain takes an entire jury to evaluate.
In this regard, we do not dispute that polygraphers may often reach a correct conclusion regarding a subject’s guilt or innocence.
Accordingly, the fact that a polygrapher’s ultimate assessment happens to be right does not mean that it should be admitted at trial. If that opinion was not arrived at objectively through scientific principles and proof, then it is immaterial whether it happens to be correct because it was not based on any information that the jury itself could not have gleaned through its own observations. Because one cannot say with a high degree of certainty that a polygrapher’s conclusion is based firmly in objective, scientific truth, and because one therefore cannot say that polygraph evidence provides a better informed assessment of a witness’ credibility than the personal observations of each juror, allowing polygraph testimony would be a direct invasion of the province of the jury.
b
Furthermore, admission of polygraph test results at trial would likely produce regular, and immensely time
Indeed, polygraph evidence is especially likely to cause disruptive conflicts between experts. Even polygraph advocates admit that “a substantial proportion of those who conduct tests in the public and private sectors lack adequate training and competence.” D. Raskin, supra, 1986 Utah L. Rev. 66-67; see also C. Honts & B. Quick, supra, 71 N.D. L. Rev. 998-99. Although expert qualification is always an issue with regard to scientific evidence, it is of particular import in the polygraph case.
With most types of scientific evidence, and especially with psychological tests, there are certain set procedures that are generally deemed to give accurate results. S. Blinkhom, “Lie Detection As a Psychometric Procedure,” in The Polygraph Test (A. Gale ed., 1988) pp. 29, 30-31. The expert debate in the courtroom simply focuses on whether these generally accepted, fixed procedures were adequately observed. This process ensures a certain level of “quality control.”
There is, however, little standardization of polygraph test procedures. Id. With the polygraph test, each administration of a control question test is necessarily different, with appropriate control and relevant ques
Furthermore, the very nature of the polygraph test makes extensive expert battles inevitable. Many experts dispute that the polygraph has any value whatsoever. By contrast, much other scientific evidence is premised on tests and procedures that are generally accepted at least in the abstract, if not as performed in a particular case. For example, the “basic genetic theory underlying DNA profiling [restriction fragment length polymorphism analysis] essentially is undisputed.” J. McKenna, J. Cecil & P. Coukos, “Reference Guide on Forensic DNA Evidence,” in Reference Manual on Scientific Evidence, J. Moore, Federal Practice (1995) pp. 273, 285. Because many experts doubt the entire physiological and emotional basis of the polygraph test,
Polygraph results are ripe for in-court expert controversy, moreover, because, as previously discussed, the polygraph measures deception only indirectly, by gauging a subject’s physiological state. The examiner must formulate questions that will properly link actual deception to physiological responses and relate the responses to those questions back to truth or deception. Other types of scientific evidence directly address an objective fact. Ballistics evidence, for example, directly addresses whether a particular bullet could have come from a particular gun, based on directly relevant physical indicators. With the polygraph test, however, the physiological test results can be linked to truth or deception only through the polygrapher’s interpretation. This nexus between polygraph chart and polygraph significance is easily attacked by competing experts, and is likely to consume significant court time. Cf. M. Abbell, “Polygraph Evidence: The Case Against Admissibility in Federal Criminal Trials,” 15 Am. Crim. L. Rev. 29, 41 (1977) (“even under optimal conditions, the results of polygraph examinations lack the reliability of the typical objective forensic tests which are admissible in evidence” due to uniquely subjective manner in which polygraph exams are interpreted).
c
Finally, there is a risk that, if polygraph evidence were admissible, juries would come to expect it with regard to all witnesses, a possibility that implicates both of the aforementioned concerns. Indeed, one wonders whether juries would draw adverse inferences against
C
Our decision to maintain our per se rule of exclusion with regard to polygraph evidence is consistent with the conclusion of the majority of courts that have considered this issue. State appellate courts, for whom Daubert is not mandatory authority, largely agree with our assessment that the prejudicial impact of polygraph evidence outweighs its probative value. As a result, approximately one half of the states have an absolute rule barring admission of polygraph evidence in criminal cases. See, e.g., People v. Sanchez,
The majority of the remaining states that have considered the issue admit polygraph evidence at trial only when its admission is stipulated to in advance by all parties.
Of the states that do allow polygraph evidence without a stipulation, most allow it only in proceedings other than at trial. See, e.g., State v. Catanese,
In this regard, it is particularly instructive to note that several courts, after experimenting with polygraph admissibility for several years, rejected its admissibility and reinstated the traditional rule of inadmissibility. In each case, the court realized that its earlier assessment, namely, that the probative value of polygraph evidence outweighed its prejudicial impact, was mistaken. For example, in 1974 the Massachusetts Supreme Judicial Court decided to allow polygraph evidence for the limited purpose of corroborating or impeaching a defendant’s trial testimony. Commonwealth v. A Juvenile,
In 1989, however, the court reconsidered its position. Commonwealth v. Mendes, supra,
Similarly, after a seven year experiment with admitting polygraph evidence on stipulation, the Wisconsin Supreme Court reinstated its per se exclusionary rule, concluding that “the burden on the trial court to assess the reliability of stipulated polygraph evidence [outweighs] any probative value the evidence may have.” State v. Dean,
North Carolina and Oklahoma also allowed stipulated polygraph results for a brief time, then retreated to a per se rule of inadmissibility. State v. Grier,
In all, then, four states that at one time allowed polygraph evidence have subsequently, in light of their experiences, rethought and rejected this policy. Although not a decisive justification for our decision to retain our per se exclusionary rule, this pattern leads us to conclude that our concerns are, in fact, well founded.
The Court of Appeals for the Eleventh Circuit has gone further than any other federal appellate court toward allowing polygraph evidence at trial in the
District courts in the Eleventh Circuit were thus given broader license to admit polygraph evidence than were district courts in any other circuit. It is noteworthy, therefore, that they have almost unanimously declined to do so.
The defendant’s final claim is that the right to compulsory process, as guaranteed under the sixth amendment to the United States constitution and as applied to the states through the fourteenth amendment to the United States constitution, and also as accorded by article first, § 8, of the Connecticut constitution,
Although an accused does, of course, have a federal constitutional right to present a defense, “the right to present relevant testimony is not without limitation.” Rock v. Arkansas,
Moreover, we agree with the Appellate Court that an evidentiary hearing in the present case would have been a “nugatory undertaking.”
The judgment of the Appellate Court is affirmed.
In this opinion CALLAHAN, C. J., and NORCOTT, KATZ, PALMER and MCDONALD, Js., concurred.
Notes
General Statutes § 53a-111 provides in relevant part: “Arson in the first degree: Class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and ... (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the result ant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily ipjury. . . .”
The dissent spends several pages recounting, and belittling, the state’s evidence in this case, implicitly arguing that the supposed weakness of the state’s case is relevant to the issue of the admissibility of the polygraph evidence. We fail to see, however, how the strength of the state’s case, in and of itself, is relevant to the general legal question of the admissibility of polygraph evidence. Compare part II B 3 a and footnote 63 of this opinion. We are aware of no support for the proposition that the legal question of the admissibility of a particular type of evidence turns on the general strength of the opposing party’s case.
In any event, we disagree with the dissent’s characterization of the state’s case. Indeed, the Appellate Court specifically rejected a sufficiency of the evidence claim raised by the defendant. State v. Porter,
We granted the defendant’s petition for certification to appeal from the Appellate Court, limited to the following issues: “Under the circumstances of this case: 1. Did the Appellate Court properly conclude that the trial court was correct in denying the defendant’s request for an evidentiary hearing regarding the admissibility of the defendant’s polygraph evidence?
“2. Should this court reconsider the applicability of the test for determining the admissibility of scientific evidence set forth in Frye v. United States,
Indeed, the state agrees that “Dauberf s focus on evidentiary reliability . . . is a positive step away from the rigid application of Frye as a precondition of admissibility.”
The systolic blood pressure deception test was simply a sphygmomanometer — a device that records blood pressure. The theory behind this device was that if a person lied, the resulting stress and fear of detection would cause that person’s blood pressure to rise. J. Tarantino, Strategic Use of Scientific Evidence (1988) § 6.01, p. 205. The systolic blood pressure deception test was developed by William Marston, and was actually administered by Marston in Frye. Marston was also the creator of the “Wonder Woman” comic book character, who is well known for her truth-inducing magic lasso. R. Underwood, “Truth Verifiers: From the Hot Iron to the lie Detector,” 84 Ky. L.J. 597, 629 (1995-96).
Rule 702 of the Federal Rules of Evidence provides: “Testimony by Experts
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
The court emphasized that “[t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
Rule 403 of the Federal Rules of Evidence provides: “Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of
See also Newhart v. State,
Several other states, which had already rejected Frye by the time Daubert was decided, have explicitly noted that their jurisprudence is already in conformance with the Daubert approach. See, e.g., Jones s. State,
See, e.g., J. Meaney, “From Frye to Daubert: Is a Pattern Unfolding?” 35 Jurimetrics J. 191, 194 (1995) (characterizing Connecticut as following Frye standard).
The Court of Criminal Appeals of Oklahoma, in addressing the issue of whether to abandon Frye in favor of Daubert, described a legal landscape regarding the admissibility of scientific evidence very similar to that which currently exists in Connecticut. The court observed that “[a] review of our pertinent caselaw reveals that this Court has not consistently relied upon Frye when faced with questions involving the admissibility of expert testimony describing novel scientific evidence. In fact, since adopting Frye in 1951, we have specifically cited to it in only six reported cases. While a number of our cases have mentioned the ‘general acceptance’ standard, several others appear to have utilized [a ‘helpfulness’ standard] in analyzing the admission of expert testimony describing novel scientific evidence.” Taylor v. State, supra,
There is a concession in McCormick’s treatise that, like all other relevant evidence, relevant scientific testimony can be excluded for the “familiar [reasons] of prejudicing or misleading the jury or consuming undue amounts of time.” 1 C. McCormick, supra, § 203, p. 875.
“ ‘Lay jurors tend to give considerable weight to “scientific” evidence when presented by “experts” with impressive credentials.’ ” People v. Leahy,
These authorities believe that modem juries are technologically sophisticated enough not to be overwhelmed by scientific evidence. See, e.g., R. Dreyfuss, supra, 73 Tex. L. Rev. 1798; J. Sanders, “From Science to Evidence: The Testimony on Causation in the Bendectin Cases,” 46 Stan. L. Rev. 1, 3 (1993) (concluding that faulty presentation, and not inherent difficulty of subject matter, is largely responsible for jury difficulties with scientific evidence).
See D. Shuman, A. Champagne & E. Whitaker, “Juror Assessments of the Believability of Expert Witnesses: A Literature Review,” 36 Jurimetrics J. 371, 382 (1996) (“Although the picture painted by the evolving social science research on juror assessments of the believability of experts is far from complete or consistent, an unsettling image emerges. The typical juror forms impressions of experts stereolypically, based on the occupation of the experts, and superficially, based on the personal characteristics of the experts.”).
The authors of the preceding article themselves subsequently surveyed 156 jurors from cases in which scientific evidence had been presented, D. Shuman, A. Champagne & E. Whitaker, “Assessing the Believability of Expert Witnesses: Science in the Jurybox,” 37 Jurimetrics J. 23 (1996). That study asked the jurors to rate the importance various factors had played in their assessment of expert scientific testimony. Id., 24-25. The study concluded that in assessing an expert’s credibility, jurors properly placed the greatest emphasis on the expert’s qualifications, familiarity with the case, quality of reasoning and impartiality. Id., 26, 27-28. The authors admit, however, that, because this study was based entirely on self-reporting by the jurors of what
But, see L. Loevinger, “Science as Evidence,” 35 Jurimetrics J. 153, 186 (1995) (arguing that judges are better able to cope with scientific evidence); J. Sanders, “From Science to Evidence: The Testimony on Causation in the Bendectin Cases,” 46 Stan. L. Rev. 1, 84 (1993).
Practice Boole § 881 provides: “ — Judicial Appointment of Expert Witnesses
“Whenever the judicial authority deems it necessary, on its own motion it may appoint any expert witnesses of its own selection. An expert witness shall not be appointed by the judicial authority unless the expert consents to act. A witness so appointed shall be informed of his or her duties by the judicial authority in writing, a copy of which shall be filed with the clerk, or the witness shall be informed of his or her duties at a conference in which the parties shall have an opportunity to participate. A witness so appointed shall advise the parties of his or her findings, if any, and may thereafter be called to testify by the judicial authority or by any party. A witness so appointed shall be subject to cross-examination by each party. The judicial authority may determine the reasonable compensation for such a witness and direct payment out of such funds as may be provided by law. This section shall not apply to appointments made pursuant to Gen. Stat., § 54-56d.”
We do not suggest, moreover, that this rule of practice limits any inherent judicial power that a trial court may also have to appoint an expert in an appropriate civil case.
We emphasize that we do not assume that jurors lack the capacity to analyze and understand complex scientific evidence. Indeed, once such evidencie is admitted, we ask jurors to do just that. Nonetheless, we conclude that it is incumbent upon trial judges to minimize, to the extent possible, the confusion and prejudice that scientific evidence may generate. Moreover, the very fact that proponents of scientific evidence will already have had to organize their evidence in a clear, comprehensible manner in order to pass the threshold validity assessment will, it is hoped, lead to clear, compre
See generally 1 C. McCormick, Evidence (4th Ed. 1992) § 203, pp. 871-73 (“Especially in the last two decades ... the Frye standard has been subjected to critical analysis, limitation, modification, and finally, outright rejection. ... A drumbeat of criticism of the Frye test provides the background music to the movement away from the general acceptance test.” [Internal quotation marks omitted.]).
Even before Daubert, several courts rejected the Frye standard as not embodying an adequate gatekeeper function. Several federal courts expressly rejected the rigid “nose-counting” of Frye and instead based admissibility decisions on the “helpfulness” to the fact finder of proffered scientific evidence. DeLuca v. Merrell Dow Pharmaceuticals, Inc.,
In total, twenty states had already rejected Frye and had adopted a “helpfulness” or “relevance” test for admissibility of scientific evidence by the time Daubert was decided in 1993. See J. Meaney, “From Frye to Daubert-. Is a Pattern Unfolding?” 35 Jurimetrics J. 191, 194-98 (1995) (compiling state judicial responses to Daubert on state-by-state basis).
The movement among state courts away from Frye and toward the Daubert approach has continued since the Daubert decision. See footnote 9 of this opinion; see also Harrison v. State,
We recognize that, to date, most of the states that have rejected Frye and have adopted a Daubert approach; see, e.g., footnotes 20 and 21 of this opinion; have state evidentiary codes that contain an analogue to rule 702 of the Federal Rules of Evidence, which Connecticut lacks, and that this fact often plays some role in their decisions. But see Lattarulo v. State,
We also recognize that with the exception of Georgia and, now, Connecticut, every other state without a rule 702 analogue — Alabama, California, Illinois, Maryland and New York — currently operates under a Frye standard. We note, however, that three of these states — Alabama, Illinois and Maryland — simply have not addressed the issue. See, e.g., People v. Miller,
In any event, we conclude that our reasons for rej ecting Frye and adopting a Daubert approach, as explained in this opinion, are valid independent of the existence of a codified rule 702 analogue.
See, e.g., footnotes 20 and 21 of this opinion.
For example, commentators have argued that, depending on the desired outcome, courts applying Frye have “differed on the issues of who constitutes the relevant community for acceptance, as well as what precisely that community must have approved in a given case.” (Emphasis in original.) “Developments in the Law,” supra, 108 Harv. L. Rev. 1486; see also P. Giannelli, supra, 80 Colum. L. Rev. 1208-15.
“Voiceprints are graphic depictions of sound produced by a device called a sound spectrograph. Their forensic use is based on the premise that each person’s voice produces a unique ‘picture.’ Voiceprints typically appear in court when there is a recording of an incriminating telephone call and the identity of the caller is at issue.” B. Black, F. Ayala & C. Saffran-Brinks, supra, 72 Tex. L. Rev. 735.
We emphasize, however, as did the court in Daubert v. Merrell Dow Pharmaceuticals, Inc,., supra,
The examples cited throughout part I C 1 of this opinion are merely illustrative. We do not necessarily endorse the conclusions reached in these cases.
We note that, although Celia v. United States, supra,
While the distinction between methodologies and conclusions is important, it is nonetheless true that the two are closely linked. It is plain that a judge’s doubts about an expert’s conclusions axe often based upon doubts regarding the expert’s methodology. “When a judge disagrees with the conclusions of an expert, it will generally be because he or she thinks that there is a mistake at some step in the investigative or reasoning process of that expert. If the judge thinks that the conclusions of some other expert are correct, it will likely be because the judge thinks that the methodology and reasoning process of the other expert are superior to those of the first expert.” In re Paoli R. Yard PCB Litigation, supra,
We also note that some scientific principles have become so well established that an explicit Daubert analysis is not necessary for admission of evidence thereunder. By this, we do not mean to reestablish the Frye general acceptance test. We do acknowledge, however, as did the Supreme Court in Daubert., that a very few scientific principles “are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, [and that such principles] properly are subject to judicial notice . . . .” Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
Once the validity of a scientific principle has been satisfactorily established, any remaining questions regarding the manner in which that technique was applied in a particular case is generally an issue of fact that goes to weight, and not admissibility. See, e.g., United States v. Porter,
Moreover, application of a methodology that is valid in the abstract can be so flawed that, in essence, a different, invalid methodology is being applied. Thus, although “[n]ot every error in the application of a particular methodology should warrant exclusion [a]n alleged error in the application of a reliable methodology should provide the basis for exclusion of the opinion [when] that error negates the basis for the reliability of the principle itself.” United States v. Martines,
For example, in In re Paoli R. Yard PCB Litigation, supra,
It is important to note, however, the Court of Appeals’ conclusion that, in those instances where the physician’s inquiry into a patient’s condition had been sufficient, it was an abuse of discretion for the trial court to exclude her testimony. Id., 765-67. Even though the physician was of “dubious expertise”; id., 765; such concerns did not render her underlying methodology per se invalid, and once that validity had been established, concerns about her qualifications went to her credibility, not to the admissibility of her testimony.
Even under Frye, however, “general acceptance,” and thus scientific validity, was often determined by reference to acceptance among judges, not scientists. “Contrary to the assertion . . . that the Frye test places the responsibility of determining scientific validity upon scientists, in practice too many courts reference reported case law to determine what is generally accepted in the scientific community.” State v. Alberico, supra,
Indeed, this concern motivated the Court of Appeals for the Ninth Circuit, on remand in Daubert, to offer the following comment regarding the new Daubert standard: “[Tjhough we are largely untrained in science and certainly no match for any of the witnesses whose testimony we are reviewing, it is our responsibility to determine whether those experts’ proposed testimony amounts to ‘scientific knowledge,’ constitutes ‘good science,’ and was ‘derived by the scientific method.’ . . . Our responsibility, then ... is to resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and what is not ‘good science,’ and occasionally to reject such expert testimony because it was not ‘derived by the scientific method.’ Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.” Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
Most courts agree that evidence of both the results of a polygraph test and of a witness’ willingness to take a polygraph test implicate the same concerns and should be treated alike. See State v. Webber,
Indeed, concerns regarding the polygraph’s prejudicial impact have historically been the primary basis upon which this court has excluded polygraph evidence. It is true that we have mentioned the Frye test in excluding polygraph evidence. See State v. Hasan, supra,
Although most of the literature and case law address polygraph evidence admissibility in criminal cases, we note the finding by the United States Office of Technology Assessment, uncontroverted in any literature, that “meaningful scientific evidence of polygraph validity [exists] only in the area of criminal investigations.” (Emphasis added.) United States Congress, Office of Technology Assessment, “Scientific Validity of Polygraph Testing: A Review and Evaluation — A Technical Memorandum,” OTA-TM-H-15 (1983), reprinted in 12 Polygraph 198, 200 (1983). In light of this fact, and given our ultimate determination that polygraph evidence is of limited probative value even in the criminal context, we conclude that polygraph evidence should be excluded from civil as well as criminal trials. Cf. State v. Brown, supra,
Some jurisdictions that bar the admission of polygraph evidence for the substantive truth of the matter asserted do allow it to corroborate or impeach a witness’ testimony. See part II C of this opinion. We see no reason for this distinction. All of the valid criticisms of polygraph evidence; see part II B of this opinion; are equally applicable in either context. We therefore agree with the majority of jurisdictions that maintain a per se rule against the admissibility of polygraph evidence in any circumstance. See part II C of this opinion.
To paraphrase Judge Cardozo in People v. Zackowitz,
The record does not specify the type of polygraph examination administered in this case. Such facts as are in the record, however, suggest that it was either a control question test or a relevant-irrelevant test. See footnote 43 of this opinion. Because the former test is both the more likely and the more favorable to the defendant’s claim, we will assume that a control question test was administered in this case.
A number of theories other than fear of detection have been advanced to explain why a deceptive subject will undergo detectable physiological changes upon lying, including conditioned response theory, conflict theory, and threat-of-punishment theory. P. Giannelli, supra, 30 Crim. L. Bull. 263 n.12. The fear of detection theory is simply the most commonly accepted.
During the pretest interview, a “stimulation test” is often administered. “In this test, the examiner instructs the subject to choose aparticular number or name from a preselected series. The polygraph examiner does not know which number or name the subject chooses. The polygraph examiner then instructs the subject to respond ‘no’ every time he is asked whether he chose a specific number or name. The qualified examiner should be able to determine which response is deceptive by evaluating the physical responses detected by the polygraph. The examiner then confronts the subject with his findings, causing the subject to be ‘convinced’ that the polygraph examination is effective.” J. Tarantino, supra, § 6.11, p. 218. Occasionally, however, the correct response is determined by trickery, not polygraphy. J. Eat & F. Inbau, Truth and Deception (2d Ed. 1977) pp. 42, 85 (stimulation test conducted using marked deck of cards).
In other words, the control question test process requires that the examiner, during the pretest interview, manipulate the subject into both (1) lying on the control questions, out of fear that the examiner will otherwise react negatively to the subject’s prior antisocial conduct, and (2) fearing that this same deception will taint the entire exam.
This process is what separates the control question test from the relevant-irrelevant polygraph test. In the latter test, there are no control questions, only relevant and irrelevant questions. A subject whose responses to the relevant questions are greater than those to the irrelevant questions is considered deceptive. Although still practiced by some polygraphers today; P. Giannelli, supra, 30 Crim. L. Bull. 266; the relevant-irrelevant test is almost universally rejected in the literature. D. Raskin, supra, 1986 Utah L. Rev. 33 (“A variety of factors might cause individuals to react more strongly to questions about crimes of which they are accused than to innocuous questions. . . . There is no clear and systematic way to interpret the outcome of a relevant-irrelevant test, and the result is subject to a great deal of error.”); C. Honts & M. Perry, supra, 16 Law & Hum. Behav. 359 (“Almost all of the scientists involved in detection of deception research reject the
We note that there is disagreement in the literature even as to what method of scoring is proper. Most authorities agree that numerical scoring is the only valid approach. Nonetheless, many examiners still use “global scoring.” See, e.g., D. Lykken, “The Validity of Tests: Caveat Emptor,” 27 Jurimetrics J. 263, 264-65 (1987); D. Raskin, supra, 1986 Utah L. Rev. 37. Under this approach, the examiner looks at the subject’s relative reactions to the control and relevant questions, but also considers various “clinical impressions,” such as the subject’s demeanor, in arriving at a conclusion
The other main type of polygraph examination used in criminal matters is the guilty knowledge test. The guilty knowledge test “does not attempt to determine whether the [subject] is lying but, rather, whether he or she possesses guilty knowledge, that is, whether the [subject] recognizes the correct answers, from among several equally plausible but incorrect alternatives, to certain questions relating t,o a crime. For example, escaping through an alley a bank robber drops and leaves behind his hat. A likely suspect is later apprehended and, while attached to the polygraph, he is interrogated as follows:
“1. ‘The robber in this case dropped something while escaping. If you are that robber1, you will know what he dropped. Was it: a weapon? a face mask? a sack of money? his hat? his car keys?’ . . .
“Unlike the control question test, the accuracy of the guilty knowledge test does not depend upon the nature or degree of the subject’s emotional concern. The physiological variables employed are not intended to measure emotional response but, rather, to signal the cognitive processes involved in the recognition of the correct alternative.” D. Lykken, “The Case Against Polygraph Testing,” in The Polygraph Test (A. Gale ed., 1988) pp. 111, 121-23.
“The guilty knowledge test assumes that the guilty subject will have a greater physical response to the ‘significant alternative’ than would a subject without any guilty knowledge.” J. Tarantino, supra, § 6.13, p. 219. Advocates claim that the primary advantage of the guilty knowledge test is that recognition can be more directly measured by physiological data than can truth or deception. D. Lykken, “The Case Against Polygraph Testing,” supra, pp. 121-23.
For the guilty knowledge test to work, however, there must be “concealed knowledge” that only the guilty party would know and recognize. This requirement greatly limits the number of cases in which the test can be utilized. P. Giannelli, supra, 30 Crim. L. Bull. 266. In any event, although the guilty knowledge test does have its advocates; D. Lykken, “The Case Against Polygraph Testing,” supra, pp. 121-24; B. Kleinmuntz & J. Szucko, supra, 17 Law & Society Rev. 98; the guilty knowledge test’s validity is as hotly
Although courts generally use the word “reliability” when discussing the polygraph test; see, e.g., United States v. Crumby, 895 F. Sup. 1354, 1358 (D. Ariz. 1995) (“[t]he Court must consider whether polygraph evidence is reliable under DauberU [emphasis added]); the concept to which the courts are referring is actually the test’s “validity.” In the polygraph context, reliability and validity have specialized meanings. Reliability refers only to reproducibility of results, or consistency, while validity relates to the test’s actual ability to do what it claims to do, namely, detect deception. 1 C. McCormick, supra, § 206, p. 909 n.28. Reliability is important, but the polygraph debate really centers around the test’s validity. See generally S. Blinkhorn, “Lie Detection As a Psychometric Procedure,” in The Polygraph Test (A. Gale ed., 1988) pp. 29, 31-35.
“The most accepted type of laboratory study simulates a real crime in which subjects are randomly assigned to guilty and innocent treatment conditions .... Guilty subjects enact a realistic crime, and innocent subjects are merely told about the nature of the crime and do not enact it. All subjects are motivated to produce a truthful outcome, usually by a substantial cash bonus for passing the test.” (Citations omitted.) D. Raskin, “Does Science Support Polygraph Testing?,” in The Polygraph Test (A. Gale ed., 1988) pp. 96, 99.
“The best available method for field research uses cases in which suspects were administered polygraph tests after which their guilt or innocence was established when the guilty person confessed. Other polygraph examiners are then asked to malee diagnoses based solely on the polygraph charts from those tests without knowledge of the guilt or innocence of the subjects or the opinions of the original examiners. The decisions from these blind analyses are then compared to the confession criterion to estimate the accuracy of the polygraph tests.” D. Raskin, supra, 1986 Utah L. Rev. 44.
It is interesting that the recent laboratory studies cited here by Raskin as valid give lower aggregate rates for polygraph sensitivity and specificity than did those studies deemed reliable by him in an article he wrote ten years ago. D. Raskin, supra, 1986 Utah L. Rev. 43 (concluding that polygraph has 97 percent sensitivity and 92 percent specificity). It would appear that as testing has advanced, the validity of the polygraph has become more questionable.
Pursuant to standard practice in calculating specificity and sensitivity, we exclude all of the inconclusive outcomes in the raw data from our calculations, because inconclusive results are not conclusions. See, e.g., C. Honts & B. Quick, supra, N.D. L. Rev. 996 n.65.
Lykken admittedly wrote this assessment before any of the recent field studies on which Raskin relies were published. Nonetheless, there is inarguably a fundamental schism in the type of field study that Raskin and Lykken will regard as valid. For example, the three studies that Lykken deems “scientifically credible”; D. Lykken, supra, 27 Jurimetrics J. 264; are specifically attacked by Raskin as not satisfying even “basic methodological requirements.” D. Raskin & J. Kircher, “The Validity of Lykken’s Criticisms: Fact or Fancy?,” 27 Jurimetrics J. 271, 272 (1987).
Lykken describes a laboratory investigation that “succeeded in eliciting genuine concern in both the ‘guilty’ and ‘innocent’ examinees. [Two examiners] had forty-eight prison inmates tested in a mock crime situation. It was understood that each participant’s bonus of $20 would be withheld if more than ten of the forty-eight subjects failed the polygraph test. Moreover, the names of inmates failing the test would be posted in the prison for all to see. The intent was to make both ‘guilty’ and ‘innocent’ subjects believe that, if they failed the test, they might be blamed by their fellow inmates for the loss of the $20, a considerable sum by prison standards. That this manipulation was successful is suggested by the fact that several inmates expressed their concern about the consequences of failing and a few actually declined to participate for that reason. Two skilled and experienced examiners administered control question tests and all charts were independently scored by both examiners. . . . [0]nly thirty of the forty-eight subjects were correctly classified. Excluding inconclusive tests, there were 13 percent false negative errors and 44 percent of the ‘innocent’ inmates were misclassified as deceptive.” D. Lykken, “The Case Against Polygraph Testing,” supra, p. 115.
The term “base rate” refers to the prevalence of a condition among the relevant tested population. In the context of the polygraph test, the base rate is the percentage of people who submit to a polygraph exam who are, in fact, deceptive on the exam. If, out of every 100 people who take a polygraph test, we could empirically demonstrate that fifty are, in fact, giving deceptive responses, then the base rate of deception would be 50 percent.
The base rate is important because it can greatly accentuate the impact of the false positive and false negative rates arising from any given specificity and sensitivity values. If one assumes base rates progressively higher than 50 percent, then, by definition, the number of deceptive examinees increases and the number of honest examinees decreases. A logical consequence is that, even holding specificity and sensitivity rates constant, as the base rate increases the number of false negatives (the labeling of deceptive subjects as truthful) also rises and the number of false positives (the labeling of truthful subjects as deceptive) falls, because only deceptive subjects produce false negatives and only truthful subjects produce false positives. Likewise, if one were to assume base rates progressively lower than 50 percent, then, even holding sensitivity and specificity constant, as the base rate falls the number of false positives will necessarily rise and the number of false negatives will fall.
For example, a very low base rate would dramatically emphasize the problem of false positives, even if sensitivity and specificity were both
Innocent Guilty
Pass 72 1
Fail 18 9
“A hundred people are tested: 81 percent are correctly classified; 90 percent of the guilty fail; 80 percent of the innocent pass. And yet of these who fail, only one in three, is guilty.” S. Blinkhom, “Lie Detection As a Psychometric Procedure,” in The Polygraph Test (A. Gale ed., 1988) pp. 29, 34.
Predictive value positive (PVP) and predictive value negative (PVN) are determined by an equation involving the polygraph test’s sensitivity and specificity, and the base rate of deception among the tested population. Mathematically, the relationship among these concepts is expressed as follows:
and: PVP = 71T| 71 (T| + 0 - 1) + (1 - 0) 0 (1 - Tt) + 71 (1 - tQ
where: 7t = the base rate of deception among people who choose to take the polygraph exam;
T) = the polygraph test’s sensitivity; and
6 = the polygraph test’s specificity.
See D. Kaye, “The Validity of Tests: Caveant Omnes,” 27 Jurimetrics J. 349 (1987).
The figures of 68 percent predictive value positive and 82 percent predictive value negative noted in the text of this opinion are the result of the application of the equation stated in footnote 54 of this opinion, using a base rate of 50 percent, a sensitivity rate of 87 percent, and a specificity rate of 59 percent.
Even if we were to use only RasMn’s laboratory derived values for sensitivity and specificity in calculating predictive value positive and predictive value negative, the polygraph test would still be of questionable worth. Assuming an 89 percent sensitivity, a 91 percent specificity and a base rate of 50 percent, the predictive value positive of the polygraph test is only 91 percent and the predictive value negative is only 89 percent. In other words, approximately one out of every ten polygraph examinations would still mislabel the subject
We emphasize, moreover, that Raskin himself has never advocated assessing the validity of the polygraph examination solely by the use of laboratory data, without reference to field studies. Indeed, for the reasons set forth by the polygraph critics, we are persuaded that it would be reversible error for a trial court to follow such a procedure. Furthermore, to the extent that the previously mentioned figures may appear impressive to some, it is important to remember that, even if one does believe that use of laboratory derived values for sensitivity and specificity is appropriate, the assumed base rate of 50 percent underlying the calculations has essentially no empirical support.
But see D. Lykken, supra, 27 Jurimetrics J. 267 (“As it happens, there is a simple, easily learned technique with which a guilty person can ‘beat’ the control question test. In one informal prison study, twenty-seven inmates accused of violating prison rules were given some fifteen minutes of instruction in this method [by a fellow inmate, based on information provided by Lykken] before reporting for a test concerned with the alleged infraction. Although all twenty-seven privately admitted their guilt, twenty-four of them managed to pass the polygraph.”).
Cf. Perkins v. State,
The defendant suggested at oral argument before this court that polygraph evidence would not impinge on the province of the jury at all because it would not directly address witness credibility. He proposes limiting testimony of the polygrapher to whether a subject’s physiological responses are consistent with those of most people when telling the truth or lying, rather than allowing the polygrapher to testify as to an opinion of the subject’s actual truthfulness or deception. This is certainly a more honest approach, but we nonetheless recognize that, in the context of trial testimony, the message conveyed to the jury by both styles of testimony would be the same. Furthermore, altering the technical format of the evidence does not alter the general balance between its probative value and prejudicial impact.
By contrast, we allow expert testimony as to the general behavior patterns of battered women and sexual assault victims, even though such testimony also implicates witness credibility, specifically because such mat
The earliest reported study of the impact of polygraph evidence on a jury was in connection with a robbery prosecution in People v. Kenny,
Of course jurors, and society as a whole, have become more technologically sophisticated over the last sixty years. Nonetheless, more recent studies, although inconclusive, do not dispel the fear that juries will give undue weight to polygraph results. Each of eight jurors interviewed after the conclusion of a federal drug case, for example, indicated that, in a close case, the polygraph tests standing by themselves would be sufficient to raise reasonable doubt. F. Barnett, “How Does a Jury View Polygraph Examination
The most scientific study on this topic to date is reported in A. Cavoukian & R. Heslegrave, “The Admissibility of Polygraph Evidence in Court: Some Empirical Findings,” 4 Law & Hum. Behav. 117 (1980). In one experiment discussed therein, 52 percent of mock jurors in a control group found a defendant “guilty” based on a written fact pattern, whereas only 28 percent found the defendant “guilty” when exculpatory polygraph evidence with a stated accuracy of 80 percent was added. Id., 121,123. A cautionary statement by the judge in the fact pattern regarding the limitations of polygraph reliability somewhat mitigated the effect of polygraph evidence. Id., 123, 128. A second study demonstrated, however, that when an antipolygraph expert was added to the fact pattern, who testified that polygraph results should be treated “with skepticism,” the effect of the polygraph evidence was almost completely eliminated.
Given the limited number and scope of the extant studies, and the equivocal conclusions thereof, definitive contentions that jurors will blindly follow polygraph evidence; see, e.g., United States v. Alexander,
It is interesting to note that critics of the Frye rule and critics of polygraph exclusion in general have on occasion asserted Frye’s factual innocence as part of their arguments. “The premise appears to be that if, in truth, Frye was innocent of the crime charged, then the rule in the case is the culprit, for it permitted an innocent man to be convicted when science was ready and able to exonerate him. In the absence of the Frye court’s parochial, constraining attitude toward the efficacy of scientific evidence, or so the proponents of this position seem to say, an innocent man would not have been unjustly convicted of murder and punished for it.” J. Starrs, “ ‘A Still-Life Watercolor’: Frye v. United, States," 27 J. Forensic Sci. 684, 687 (1982); see also footnotes 2 and 80 of this opinion. Thus, authors have at various times asserted that someone else confessed to the murder for which Frye was convicted; see, e.g., W. Wicker, “The Polygraphic Truth Test and the Law of Evidence,” 22 Tenn. L. Rev. 711, 715 (1953); and that Frye was thereafter pardoned. See, e.g., P. Giannelli, supra, 80 Colum. L. Rev. 1204 n.42.
Subsequent scholarship has demonstrated, however, that both the third party confession and the pardon arising therefrom are nothing more than “folklore,” and that, in fact, Frye served eighteen years in jail before being paroled. See generally J. Stairs, supra, 27 J. Forensic Sci. 690, 692. Moreover, even if Frye had, in fact, been innocent, we conclude, for the reasons discussed in the text of this opinion, that the court in Frye was nonetheless correct to exclude the sphygmomanometer evidence.
Asking questions such as those used in the present case, involving such phrases as “do you know for sure,” renders answers “chimerical” at best. United States v. Kwong, supra,
This argument applies equally to the judge’s role as fact finder at a bench trial.
Many experts assert that polygraph practitioners have completely failed to establish that the physical data produced by the polygraph machine are linked to deception, as opposed to other emotions, and thus that the physiological responses actually recorded by the polygraph have any regular correlation with a deceptive state of mind, as opposed to general anxiety. See, e.g., T. Ney, “Expressing Your Emotions and Controlling Feelings,” in The Polygraph Test (A. Gale ed., 1988) p. 65. Moreover, there has been no
Secondino v. New Haven Gas Co.,
See also Pulakis v. State,
“Stipulation” in this context refers to a practice whereby both parties agree, before a subject taires a polygraph exam, that the results thereof will be admissible, but that the adversely affected party retains the right to cross-examine the polygraph witness and otherwise to attempt to impeach the polygraph evidence.
See also Ex parte Clements,
If, however, after a subject undergoes a polygraph examination, the adversely affected party believes that the examination did, in fact, result in an accurate factual determination, that party is of course free to stipulate to the results of the examination and, therefore, to the truth of those facts. In such a situation, however, it is difficult to believe that the case would actually be tried.
See also State v. Jones,
In 1975, the New Mexico Supreme Court rejected its per se rule of polygraph exclusion, in the absence of a stipulation, as unnecessarily “mechanistic in nature.” State v. Dorsey,
Only the Courts of Appeals for the Fourth and the District of Columbia Circuits currently maintain a per se rule of polygraph inadmissibility. See United States v. A & S Council Oil Co.,
Moreover, only the Eighth Circuit Court of Appeals limits polygraph evidence at trial to instances where its admissibility has been stipulated to by both parties. See Houston v. Lockhart,
See, e.g., United States v. Cordoba,
See United, States v. One Parcel of Real Estate, 804 F. Sup. 319, 322 (S.D. Fla. 1992) (polygraph evidence excluded after proponent failed to lay adequate foundation for expert testimony as required by rule 702 of Federal Rules of Evidence); Elortegui v. United States, 743 F. Sup. 828, 830 n.4 (S.D. Fla. 1990) (noting in dicta that use of polygraph to corroborate defendant’s testimony “clearly could [be] excluded . . . under rule 403 on the grounds that it [is] cumulative'’); United States v. Piccinonna, 729 F. Sup. 1336, 1338 (S.D. Fla. 1990) (on remand, trial court found that polygraph evidence failed to satisfy rule 608 [a] of Federal Rules of Evidence).
The most substantial of the few federal opinions permitting polygraph evidence at trial comes from the District Court of New Mexico. United States v. Galbreth, supra, 908 F. Sup. 877. The Tenth Circuit Court of Appeals had only addressed the question of polygraph admissibility before Daubert had been released; see United States v. Soundingsides,
The defendant also relies heavily on United States v. Crumby, 895 F. Sup. 1354 (D. Ariz. 1995). The court in Crumby held that, in light of Daubert, a reevaluation of the admissibility of polygraph evidence was required. Id., 1358. The court concluded, moreover, that with the proper safeguards, polygraph evidence should be permitted regarding a testifying defendant’s credibility. Id., 1363.
Putting aside the question of the relevance of Crumby to the present case, in which the defendant did not testify, we find Crumby unpersuasive to the extent that it specifically argues that the probative value of polygraph evidence outweighs its prejudicial effect. First, based largely on the testimony of Raskin, the court concluded that the control question test has great probative value. Id., 1361. It is unclear from the opinion, however, whether the court’s validity assessment referred to the polygraph’s sensitivity and specificity, or to the more relevant predictive positive and predictive negative values. Regardless, our review of the literature leads us to a contrary conclusion. See generally part II B of this opinion. Second, the court in Crumby disputed the severity of the prejudicial impact from polygraph evidence. United States v. Crumby, supra, 895 F. Sup. 1361. The court in Crumby rejected the argument that the evidence would consume too much time at trial, opining that as polygraph evidence becomes more established, standards will develop, and so time spent reviewing this evidence will decrease. Id., 1362. Experience in Massachusetts and Wisconsin, among other states,
Because the defendant has failed to provide any independent analysis under the state constitution, we limit our review to the federal constitution. State v. Dyson,
Some authorities have argued that Rock provides a “strong constitutional impetus” for polygraph admission. J. McCall, supra, 1996 U. Ill. L. Rev. 407. We disagree. In Rock, the Supreme Court struck down Arkansas’ per se ban on hypnotically refreshed testimony, concluding that such testimony could be reliable under certain conditions, and thus that a per se rule barring admission was unconstitutional. Rock v. Arkansas, supra,
See also Jackson v. Garrison,
The dissent asserts that denying the defendant an evidentiary hearing on his polygraph evidence deprives him “of his constitutional right to present a defense, [and] also his right to be heard at a meaningful time and in a meaningful manner — both rights which ... are at the core of due process under the federal and state constitutions.” The flaw in this argument is its underlying premise that the defendant could make a showing, if a hearing were granted, that his polygraph evidence is admissible. For, as a matter of logic, there can be no constitutional right to an evidentiary hearing regarding evidence that, as a matter of law, is inadmissible. Cf. State v. Coleman,
The dissent sets forth two scenarios to support its underlying position
The dissent also asserts that our per se exclusionary rule may lead to the death penalty being imposed on an innocent defendant. Due to the prejudicial nature of polygraph evidence and its lack of probative value, we have concluded that polygraph evidence is inadmissible in any judicial proceeding which is subject to the rules of evidence. It would make little sense to subject such proceedings — which are part of the trial process, even when they are conducted separately — to the minimal validity and great prejudice of polygraph evidence that we determine is inappropriate for the trial itself. As the dissent is well aware, however, the rules of evidence simply do not apply to the presentation of mitigating factors during the penalty phase of a capital case. See General Statutes § 53a-46a (c); see also State v. Ross,
Moreover, the dissenter’s inference that we have “attempt[ed] to allay [his] concerns by suggesting that polygraph evidence is admissible” in the penalty phase of a capital case is misguided. We are not engaged in the process of “allaying” the dissenter’s “concerns,” nor do we endorse the judicial psychoanalysis by which he draws such an inference.
See part II of this opinion.
For example, we recognize that a modification of the control question test, the “directed lie control question test,” has been developed over the past few years. Indeed, the results from the latter test have been admitted in at least one case. See United States v. Galbreth, supra, 908 F. Sup. 877. “The basic rationale of the [directed lie control question test] is similar to that of the [control question test]. Subjects are asked direct accusatory relevant questions. Physiological responses to the relevant questions are evaluated against the physiological response to comparison questions. However, in the [directed lie control question test] the comparison questions are known lies.” C. Honts & B. Quick, supra, 71 N.D. L. Rev. 1001-1002. “[T]he subject [is] asked a question like, ‘Before 1994, did you ever tell even one lie in your entire life?’ . . . The subject [is then] instructed to answer this question on the test with a lie, and [is also] instructed to: think of a specific incident of lying and to pay close attention to his or her physiological responses. . . . Subjects are told that it is important that they respond appropriately when lying and that if they fail to do so the test will be inconclusive. . . .” (Citations omitted.) Id., 1002 n.93. “The rationale of the [directed lie control question test] predicts that guilty subjects will respond with greater physiological responses to the relevant questions while innocent subjects will respond with greater responses to the directed lie questions.” Id., 1002.
The directed lie control question test has been praised both because it allows for standardization of the pretest interviews and control questions; id.; and because it is less intrusive than the traditional control question test. See United States v. Galbreth, supra, 908 F. Sup. 885. Moreover, such limited studies as have been conducted indicate that the directed lie control question test might produce somewhat fewer false positives than the traditional control question test. See, e.g., C. Honts & D. Raskin, “A Field Study of the Validity of the Directed Lie Control Question,” 16 J. Police Sci. & Admin. 56, 60 (1988). Even if we concede, however, that the directed lie control question test is “slightly more accurate” than the control question test; C. Honts & B. Quick, supra, 71 N.D. L. Rev. 1002; all of the prejudicial effects of control question test evidence persist under the directed lie control question test, thereby justifying its exclusion.
Concurrence in Part
concurring and dissenting. The court today retains a per se rale that bars from evidence the results of a polygraph test under any circumstances. This per se rale infringes on the defendant’s constitutional right to present a defense. The significance — and indeed the absurdity — of this rale barring polygraph evidence under any circumstances is demonstrated by hypothesizing the following factual scenario. A defendant is accused of a capital felony subject to the death penalty and the only issue is one of identification — that is, whether he was incorrectly identified by a witness as the perpetrator of the crime. The defendant submits to a properly administered polygraph examination that indicates that he is telling the truth when he says that he did not kill the victim. He also submits to a polygraph examination administered by the state that confirms the truthfulness of his statement that he was not the perpetrator. Notwithstanding the results of these two polygraph tests, the state continues with its prosecution of the defendant because of the strong identification testimony of its sole eyewitness. The thought of executing a person found guilty under these circumstances would shock anyone’s conscience,
Indeed, if the defendant in the present case was an African-American, as in the companion case,
In this case, the defendant sought a hearing before the trial court in order to demonstrate the validity of the polygraph test results he sought to introduce. The trial court, relying upon our failure to adopt Daubert v. Merrell Dow Pharmaceuticals, Inc.,
The majority of this court, instead of predicating its decision on a factual record, today decides as a matter of law that the polygraph, under any circumstances, does not have sufficient validity for the results of the test to be admissible into evidence. There are two procedural problems underlying the majority’s conclusion
I
First, it is important that the issues in this case be placed in the context of the evidence presented at the defendant’s trial. The defendant was charged with arson for a fire that destroyed his home on July 20, 1992. The defendant and his wife had moved into their new residence in September, 1991, and had extensively renovated the house. During the defendant’s trial, his wife testified that an area of the living room, which was identified as one of the sources of the fire, was primed and painted the day before the fire occurred. On the day of the fire, the defendant, his wife and their child smelled smoke and observed a haze in the house. The three of them then went to a neighbor’s house across the street. The defendant returned to the family home and emptied a fire extinguisher on the electrical panel in the basement, the location from which the defendant observed smoke originating. The defendant then returned to the neighbor’s house and telephoned his brother-in-law, a licensed electrician, for advice. A fire subsequently consumed the house.
The deputy fire marshall for the city of Norwich, who testified as a state’s witness, was aware that there were items such as paint thinner, turpentine, aerosol cans, jelly substances and other flammable items used in the painting of the interior of the home during the time that the fire occurred. The deputy fire marshall testified that he found three points of origin of fire, but that he had no opinion as to the source of the ignition of the fire. He also testified that he never considered electrical arcing
The deputy fire marshall identified a floor lamp, contained in a photograph admitted as a state’s exhibit, that was near a couch located in one of the three points of origin of the fire. Although the fire marshall testified that electrical arcing can cause fires, he failed to have the lamp or the electrical outlet dismantled and tested in order to determine if either of those were the source of the ignition of the fire. Indeed, the defendant’s attorney elicited testimony on cross-examination of the deputy fire marshall that the bum pattern on the lamp was inconsistent with his theory of where the fire started and that he had no explanation for such an inconsistency. In addition, he testified that if a fire is caused by an electrical arc, neither he nor any one else trained in the field of fire investigation would be able to determine the contact between an appliance and the fire.
At the trial, the defendant’s homeowner’s insurance agent indicated that the home was underinsured by approximately $48,000 at the time of the fire. The insur
The defendant did not testify on his own behalf, but his sworn statement to the police, concerning the denial of his participation in setting the fire and the circumstances surrounding the fire, was introduced into evidence by the state. The defendant submitted to a polygraph examination on January 27, 1993, which was administered by Leighton R. Hammond,
II
I agree with the majority that for the admissibility of scientific evidence we should abandon the Frye test and adopt the general principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
Our conclusion today that Daubert is the correct standard for determining the admissibility of scientific evidence requires, as I shall subsequently point out, that
Ill
In my view, there is substantial authority that would at least justify affording the defendant an opportunity to have a hearing regarding the admissibility of the polygraph evidence. In United States v. Piccinonna,
“There is no question that in recent years polygraph testing has gained increasingly widespread acceptance as a useful and rehable scientific tool. Because of the advances that have been achieved in the field which have led to the greater use of the polygraph examination, coupled with a lack of evidence that juries are unduly swayed by polygraph evidence, we agree with those courts which have found that a per se rule disallowing polygraph evidence is no longer warranted. Of course, polygraphy is a developing and inexact science, and we continue to believe it inappropriate to allow the admission of polygraph evidence in all situations in which more proven types of expert testimony are allowed. However, as Justice Potter Stewart wrote, 'any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice.’’ Hawkins v. United States,
Indeed, in a recent unanimous decision, the Court of Appeals for the Ninth Circuit abandoned the per se rale against the admissibility of polygraph evidence. “Daubert holds that it is the trial judge’s task, rather than [an appellate court’s task], to conduct the initial weighing of probative value against prejudicial effect. Accordingly, we hold that Daubert also overruled any per se rale [in the Ninth Circuit] that unstipulated polygraph evidence is always inadmissible under [r]ule 403 [of the Federal Rules of Evidence].
In addition, it appears that the Court of Appeals for the Second Circuit has signaled that it is ready to con
The only federal circuit in which the Court of Appeals, or the district courts within the circuit, have not abrogated or rejected a per se rule is the Court of Appeals for the District of Columbia Circuit. United States v. Skeens,
Thus, six federal Circuit Courts of Appeals (Fifth, Sixth, Seventh, Ninth, Eleventh and the Court of Appeals for the Armed Forces) and federal district courts in two other circuits (Second and Tenth) no longer apply a per se rule excluding polygraph evidence; three federal Circuit Courts of Appeals (Second, Fourth and Eighth) have either indicated a willingness to review the admissibility in a proper case or implicitly indicated that it was admissible. The Court of Appeals for the Third Circuit has not addressed the issue of polygraph admissibility. As the Court of Appeals for the Fourth Circuit just recently pointed out, “circuits that have not yet permitted evidence of polygraph results for any purpose are now in the decided minority.” (Internal quotation marks omitted.) United States v. Toth, supra,
In addition, state courts
IV
The majority acknowledges — by way of an assumption — that polygraph evidence “may have enough demonstrated validity to pass the Daubert threshold for admissibility.” The majority then illogically decides, as a matter of law, that the prejudicial impact outweighs its probative value. Notwithstanding our adoption of Daubert in this case, the majority then completely ignores the underpinnings of Daubert. In Daubert, the United States Supreme Court held: “Faced with a proffer of expert scientific testimony . . . the trial judge must determine at the outset . . . whether the expert is proposing to testily to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” (Citation omitted; emphasis added.) Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
Although the determination of the admissibility of scientific evidence in the first instance is a question for the trial court, I must comment on the majority''s finding that, as a matter of law, the prejudice of polygraph evidence outweighs its probative value. Applying what the majority formulates as our general standard for the admissibility of evidence — whether the prejudicial impact outweighs its probative value — the majority concludes that polygraph evidence is more prejudicial for essentially three reasons: (1) it lacks accuracy and, therefore, is of limited probative value; (2) it is time-consuming; and (3) it
First, as to its accuracy, the courts and the literature have indicated that a properly administered polygraph examination is quite accurate. In fact, the majority concedes that there are impressive statistics as to its accuracy, based upon a very recent study. The majority opinion indicates that David Raskin, a noted authority, reviewed laboratory studies (simulated studies) that indicate that the polygraph has an 89 percent sensitivity rate (correctly labels a deceptive subject as being deceptive 89 percent of the time) and 91 percent specificity rate (correctly labels a truthful subject as being truthful 91 percent of the time), whereas the field studies (based on data from polygraph examiners in actual criminal cases) indicate that the polygraph has an 87 percent sensitivity rate and 59 percent specificity rate.
Second, the claims that it will be time-consuming for our courts can be disposed of in short shrift. The need to conserve precious court time pales in significance when a person’s liberty or life is at stake.
Finally, the majority curiously rejects polygraph evidence on the ground that it invades the fact-finding province of the jury. There are three answers to that argument. First, any reliable device that can aid the jury in its truth seeking mission should be available under rules and standards set forth by this court. As stated by the United States Court of Appeals for the Armed Forces: “We believe that the truth-seeking function is best served by keeping the door open to scientific advances.” United States v. Scheffer, supra,
Indeed, this court recently allowed expert testimony to bolster the testimony of a child sexual abuse victim where there was a prolonged delay in the disclosure of the abuse to the authorities. See State v. Christiano,
Although some of the previously noted cases can be distinguished because the expert testimony was admitted for the purpose of establishing the behavior patterns of the victims, I see little difference in the distinction. Nevertheless, that distinction has little substance because in those situations the evidence is submitted to bolster the credibility of the state’s case, the state’s witness, or both.
Finally, by not allowing the defendant an opportunity to have a hearing before the trial court in order to demonstrate the reliability of the polygraph evidence, he is deprived of his right to present a defense under the sixth amendment to the federal constitution and article first, § 8, of the state constitution.
In Rock v. Arkansas,
“The right to present defense evidence was also cited in McMorris v. Israel, [supra,
Just recently, in United States v. Scheffer, supra,
VI
In conclusion, I would remand this case to the trial court in order to furnish the defendant with an opportunity to prove the validity of his polygraph examination and to demonstrate that it was correctly administered in this case. Both the state and the defendant should have the opportunity to be heard on the issue of accuracy and the conditions for the admissibility of the polygraph evidence. Only then do I believe that a court would be in the position to rule on its admissibility. “Where credibility is as critical as in the instant case, the circumstances are such as to make the polygraph evidence materially exculpatory within the meaning of the [federal] [constitution.” McMorris v. Israel, supra,
Accordingly, I dissent with respect to the issue of the admissibility of polygraph evidence.
BERDON, J., dissenting. I write this separate dissenting opinion based upon what occurred after this court released its opinion in this case on May 20, 1997. See State v. Porter,
On June 24, 1997, the majority of this court amended the original version of the Porter opinion by deleting the word “substantially” from the previously quoted material when it substituted the original page 90 with a replacement
I neither question that this court has the authority to hone the rules of evidence interpreted by Daubert, in order to fit the needs of our Connecticut jurisprudence,
Furthermore, I note that although our prior case law has not been consistent, this court has stated in the past that relevant evidence is to be excluded only if it is “unduly prejudicial.” See State v. Jeffrey,
Because we should leave the decision of whether to delete the word “substantially” from our rule, with respect to the admissibility of scientific evidence, to such time when that issue is properly raised within the context of a case or controversy, I disagree with the change in the original opinion of this court.
The majority, in footnote 80 of its opinion, in response to my concerns about the execution of an innocent person, attempts to allay those concerns by suggesting that polygraph evidence is admissible before the jury in the penalty phase of a capital case. I am unable to understand how polygraph evidence could be sufficiently reliable for the jury to consider when determining whether a person should be executed or whether a person should spend the rest of his or her life confined in prison, but not sufficiently
See part IV of this opinion.
See State v. Hunter,
“It is well documented that cross-racial identification is less reliable than identification of one person by another of the same race. [Considerable evidence indicates that people are poorer at identifying members of another race than of their own. . . . Moreover, counterintuitively, the ability to perceive the physical characteristics of a person from another racial group apparently does not improve significantly upon increased contact with other members of that race. Because many crimes are cross-racial, these factors may play an important role in reducing the accuracy of eyewitness perception. Note, ‘Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification,’ 29 Stan. L. Rev. 969, 982 (1977). Elizabeth F. Loftus, in her classic treatise entitled ‘Eyewitness Testimony,’ wrote that [i]t seems to be a fact — it has been observed so many times — that people are better at recognizing faces of persons of their own race than a different race. E. Loftus, Eyewitness Testimony (1979) pp. 136-37. She concluded, on the basis of an examination of studies made on the subject, that [pjeople have greater difficulty in recognizing faces of another race than faces of their own race. Id., 139. State v. Cerilli,
“Concern for the problems of cross-racial identification is well docu
In groping for support for its position, the majority, quoting the Appellate Court out of context, claims at the end of its opinion that the Appellate Court had also concluded that a hearing on the admissibility of the polygraph evidence would be a “nugatory undertaking.” What the Appellate Court held was that because of this court’s precedent holding that polygraph evidence is inadmissible, a hearing on the validity of the polygraph examination would serve no purpose. See State v. Porter,
See footnote 3 of the majority opinion.
See part V of this opinion.
See footnote 36 of the majority opinion.
An electrical arc is defined as “a sustained brilliantly luminous glow sometimes having the appearance of a curved line of flame that is formed under certain conditions when a break is made in an electric circuit.” Web
At oral argument before the trial court regarding the defendant’s motion to admit the results of his polygraph examination, the defendant’s attorney represented to the trial court that Hammond works for fifty-three police departments and performs all of the polygraph testing for the Windsor police department.
See part V of this opinion.
General Statutes § 53a-111 provides in relevant part: “Arson in the first degree: Class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and . . . (3) such lire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss . . . .”
General Statutes § 53a-111 (a) provides in relevant part: “A person is guilty of arson in the first, degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and ... (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”
See footnote 4 of this opinion with respect to identification evidence. In United States v. Amador-Galvan,
The court in Piccinonna, established certain conditions, as we should, for the admissibility of polygraph evidence. Besides allowing polygraph results to be admitted based on a stipulation, the court in Piccinonna outlined that this evidence is admissible to impeach or corroborate the testimony of a witness if: (1) the party planning to use the polygraph evidence provides adequate notice to 1he opposing party that the expert testimony will be offered; (2) the opposing party must be given a reasonable opportunity to have its own polygraph examiner administer a test covering substantially the same questions; and (3) any relevant requirements of the Federal Rules of Evidence must be followed — for instance, evidence that a witness passed a polygraph examination cannot be used to corroborate that witness’ testimony until after the credibility of that witness has been attacked. United States v. Piccinonna, supra,
“The instrument used in Frye measured only one physiological response (blood pressure), whereas the modem polygraph measures respiration and galvanic skin resistance in addition to blood pressure. The technique also
Rule 403 of the Federal Rules of Evidence provides: “Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
In Posado, even the government, conceded that the per se rule against admitting polygraph evidence was “no longer viable after Daubert.” United States v. Posado, supra,
See part V of this opinion.
The Eighth Circuit also allows stipulated polygraph evidence.
I have two observations with respect to the case law that the majority relies upon. First, with respect to the state jurisdictions, the vast number of the cases were decided before Daubert. Second, the majority downplays how the federal courts have dealt with Daubert in the context of polygraph evidence. Although the majority today embraces Daubert, it chooses to ignore the wave of compelling federal precedent, following in the wake of Daubert, holding that the admissibility of polygraph evidence must be decided by trial courts on a case-by-case basis.
At one time, Massachusetts admitted polygraph evidence without stipulation. Commonwealth v. A Juvenile,
“Of 1 he state jurisdictions, New Mexico has gone the furthest in admitting polygraph evidence. In State v. Dorsey, [
“The rule changed the prior law in New Mexico by limiting admission of polygraphs to purposes of impeaching or corroborating the testimony of a witness, and by requiring thirty-day written notice of a party’s intention to offer polygraph evidence at trial. Additionally, the following features of the rule set out clear cut solutions to four major concerns about, the admission of polygraph results: a set of minimum qualifications a polygrapher must meet to give testimony about a polygraph test result in a New Mexico court, a. recording requirement for all aspects of the polygraph examination, a prohibition on compelling any witness to take a polygraph examination, and a set of protocol requirements for a polygraph examination that must be followed if the results of the test, are to be admitted in New Mexico courts.” Id., 387-88.
See footnote 69 of the majority opinion.
See part II C of the majority opinion.
See part II B 2 a of the majority opinion.
The majority, in part IIB 2 b of its opinion, discusses “predictive values” based on the polygraph’s sensitivity and specificity. Based upon Raskin’s most recent field-derived figures of 87 percent sensitivity and 59 percent specificity, the majority calculates that “we should only be 68 percent confident that a subject really is lying if the subject fails a polygraph exam, and only 82 percent confident that the subject is being truthful if the subject passes.” Using only Raskin’s laboratory-derived figures, the majority calculates even higher “predictive values.”
In the present case, using the majority’s figures, we can be 82 percent confident that the defendant was being truthful when he passed his polygraph examination, an examination where he was asked whether he set fire to his house or if he knew if anyone else had purposely set the fire. See part I of this opinion. With this high degree of certainty, not to allow this evidence is simply unconscionable.
With respect to the truth-seeking ability of the polygraph, I find the “predictive value” percentages calculated by the majority compelling enough to show that a per se rule is unwarranted, especially in light of the significant debate about the accuracy of the polygraph. The trial courts in the first instance must conduct case-specific inquiries regarding offered polygraph evidence, in order to screen out incompetent polygraph practitioners and
Many of the arguments against the admissibility of polygraph evidence center around undesirable and incompetent examiner practices. “Polygraph examiners in the United States, as a whole, are poorly trained. Their techniques lack standardization, and polygraph tests are subject to manipulation by unethical examiners. Given this state of affairs, the probative value of the work-product of most of the polygraph professionals should rightly be questioned. . . . [M]any of the problems associated with examiner practices could be exposed and/or controlled by an evidentiary requirement that all polygraph tests offered for admission be tape recorded in their entirety. However, to date only New Mexico has taken this step to assure the quality of polygraph tests offered for evidence. Problems of attorneys shopping for a particular test outcome could be controlled by an evidentiary requirement that if one test is offered, all polygraph tests conducted on a particular subject must be disclosed. Again, only New Mexico has taken this simple and seemingly logical step.” C. Honts & M. Perry, “Polygraph Admissibility: Changes and Challenges,” 16 Law & Hum. Behav. 357, 375-76 (1992).
“The wealth of examples provided by actual cases shows that a great deal of questionable evidence is produced by incompetent, poorly trained and unethical polygraph examiners. ... To reduce these problems, the court could appoint polygraph experts after consultation with all parties. That would minimize the pressures placed on experts hired by one party and maximize the likelihood of screening out so-called experts who are incompetent or lack integrity.” D. Raskin, supra, 1986 Utah L. Rev. 71
The United States Court of Appeals for the Armed Forces answered the “floodgate” argument that their decision regarding polygraph evidence would generate an unreasonable burden on the military courts as follows: “Apart from the speculative nature of such an argument, we think that it is just as likely that polygraph evidence will prevent needless litigation by avoiding some meritless prosecutions as well as smoking out bogus [defenses]. . . . [0]ur measure should be the scales of justice, not the cash register.” United States v. Scheffer, supra,
The United States Supreme Court, in Daubert, rejected an argument that the abandonment of the “general acceptance” standard for the admissibility of scientific evidence will “result in a ‘free-for-all’ in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions. [This argument is] overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” (Emphasis added.) Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
“Several theories exist as to why polygraph evidence doesn’t mislead or confuse a jury: jurors distrust scientific evidence, cross-examination brings out the weaknesses in polygraph evidence giving jurors the ability to give polygraph tests ... the weight they are due, or there may be other significant evidence to support either a conviction or acquittal (or finding for [the] plaintiff or [the] defendant in a civil action) that simply outweighs the impact of the polygraph evidence .... Despite the logic and research to support these theories, none seem sufficient to persuade many courts from what appears to be a disparaging, and somewhat condescending, perspective of the abilities of American juries.” G. Honts & M. Perry, “Polygraph Admissibility: Changes and Challenges,” 16 Law & Hum. Behav. 357, 366-67 (1992); see also D. Raskin, supra, 1986 Utah L. Rev. 66 (“The available [empirical] evidence indicates that testimony by polygraph experts has no detrimental effects on the trial process, nor does it have an undue influence on the trier of fact. Since 1975 New Mexico has admitted polygraph evidence without a stipulation between the parties. Ten years of experience [1975 to 1985] has failed to reveal any inherent problems with that type of evidence.”); R. Peters, “A Survey of Polygraph Evidence in Criminal Trials,” 68 A.B.A. J. 162, 165 (1982) (on basis of empirical study conducted in Wisconsin, one commentator has indicated that “[t]he actual trial results clearly support, the belief that juries are capable of weighing and evaluating all evidence and rendering verdicts that may be inconsistent with the polygraph evidence”).
The illogic of the majority’s opinion is highlighted in its response to this concurring and dissenting opinion, where the majority indicates that a per se rule does not violate a defendant’s constitutional right to present a defense. The majority states that “as a matter of logic, there can be no constitutional right to an evidentiary hearing regarding evidence that, as a matter of law, is inadmissible.” See footnote 80 of the majority opinion. In other words, based on the majority’s circular reasoning, the defendant’s right to present a defense can be subverted merely by the court deciding, as a matter of state law, that exculpatory evidence is not admissible. Not only is that reasoning illogical, it is also devious.
Some of the procedural safeguards for the admission of hypnotically refreshed testimony are: (1) a qualified person performed the hypnosis; (2) an
“The holding in Rock v. Arkansas [supra,
With respect to the defendant’s right to lay the foundation for the admission of the polygraph evidence, the Schaffer court stated: “[W]e, like the Fifth Circuit, cannot determine ‘whether polygraph technique can be said to have made sufficient technological advance in the seventy years since Frye to constitute the type of “scientific, technical, or other specialized knowledge” envisioned by Rule 702 [of the Federal Rules of Evidence] and Daubert.’ United States v. Posado, [supra,
Although the defendant did not testify in this case, his credibility was at issue as a result of the introduction by the state of his exculpatory out-of-court statement. Furthermore, since the decision to exclude the polygraph evidence was made in a ruling on a pretrial motion, there was no need for the defendant to offer his own testimony as a predicate to raising the question of whether he was entitled to a hearing on the issue of admissibility.
Frye v. United States,
The replacement pages appear in the Connecticut Law Journal, Vol. 53, No. 52, pp. iii-iv (June 24, 1997). The original version of the page, without the change, appears in the Connecticut Law Journal, Vol. 53, No. 47, p. 92 (May 20, 1997).
Provided, however, that the court does not trample on constitutional rights.
Dissenting Opinion
dissenting. I concur in Justice Berdon’s dissent concerning a substantial change in this court’s May 20, 1997 opinion. State v. Porter,
I concurred in the original opinion because I believe that the Daubert
Daubert v. Merrell Dow Pharmaceuticals. Inc.,