People v. Barbara

400 Mich v BARBARA PEOPLE (Calendar 15). 9, Argued January Docket No. 54774. No. De- 13, cided June 1977. polygraph The issue in this case is whether the results tests ihay judge determining be used to assist a in a motion for a Barbara, Jr., Joseph by new trial. jury convicted in Court, Ziem, J., Oakland Circuit Frederick C. of extortion. The Appeals, Burns, J., Fitzgerald Court of R. B. P. and Van (Docket Domelen, JJ., 8150), App 540; affirmed No. 23 Mich (1970), denied, appeal NW2d 105 leave to 383 Mich 803 allegation Defendant’s motion for a new trial was based on an prosecution witnesses, Lazaros, that one of the Peter the hus victim, band of the lied at the first trial. Defendant offered two "passed” new by witnesses and results tests witnesses, Metropoulos. defendant and one of the new Theodore gave permission The trial court defense counsel to make a special tests, concerning record proceedings which included in defendant, another criminal case in which Lazaros was a in attempt lay admissibility a foundation for the of the qualify presented results as evidence and to a witness polygraph expert. defense as a The motion for a new trial was ground denied on the results were not testimony admissible evidence and that the other was not newly sufficient granting discovered evidence to warrant a new Appeals, Holbrook, J., trial. The Court of D. E. P. and T. M. JJ., Fitzgerald, (Docket appeal Burns and denied leave to No. 15815). appeals. opinion by Williams, Defendant In an Justice [1, ^[7] [4, [3, ^[5] Physiological Admissibility 6] 58 Am 58 Am Jur 2, result 1306. Am Jur 6] 6-8] 58 Am Jur 58 Am Jur 29 Am Jur Jur will 2d, Expert 2d, 2d, References of lie detector test taken 2d, New Trial admissible New Trial 175. psychological 2d, New Trial 2d, New Evidence 831. Trial §§ 170-173. for Points § §§ § 192-195, evidence. 53 ALR3d 1005. 176. truth and § Evidence in Headnotes 200 et upon stipulation deception §§ seq. 16, tests. 23 ALR2d 20. that the Kavanagh concurred, and Justice Levin which Chief Justice it was held: admissibility The test to determine results of that there be offered which tests is would recognition general scientific indicate that there is a of the Despite very significant progress years, in tests. recent the field forcefully polygraphy challenged is still theoretical i.e., grounds, relationship whether there is a measurable be- person’s physiological state, deception tween a conscious and yet predictable consistency among and has level of to achieve polygraph present poly- state of the art examiners. In the the graph accepted among psychologists phy- generally is not and siologists. certainty reasonable Until it is established tests, follows such it would be error to admit their results in evidence. support polygraph 2. in of the The witnesses submitted tests polygraph operators, polygraph

in this all teachers case were or operation polygraphs. others whose business is the use or strong persons case that who defendant made a use or tests, operate polygraphs in the have confidence the but there testimony by impartial experts was no in disinterested and the particular (physiology psychology) fields in scientific which belongs, general the test and thus no demonstration of scientific recognition required of the tests as a foundation for admission. discovery testimony 3. The introduced at trial was perjured However, may grounds ordering be for a new trial. the test, polygraphic results of the defendant’s because serves effect, only, duplicate jury in evidence the heard at the first trial, i.e., guilt, merely the defendant’s denial of his cumula- tive, properly purview newly and does not fall within the discovered evidence. However, evidentiary requirements less formal are com- trial, monly post-conviction found at a motion for a new may matters such which as affidavits not be admissible at trial may judge be used to the assist to determine whether the request Polygraph permitted for a new trial has merit. tests evidence, this context would not themselves he but would be merely witnesses, credibility used to buttress the of new the evidentiary traditionally testimony value of whose satisfies ordering Therefore, strict criteria for a new trial. it is held that judge, post-conviction hearing in a the on a motion for a new evidence, newly may trial based on found in his discretion polygraph consider the results of a under these examination (1) conditions: the results of the tests are offered on behalf of (2) defendant; (3) voluntarily; profes- the test was taken 400 Mich qualifications polygraph approved; examiner sional of the are (4) (5) quality polygraph equipment approved; of the (6) procedures prosecutor employed approved; either the are or may independent the court examination of obtain an the sub- ject operator by choice; or of of the the test results court’s (7) only regard the results be considered with shall (8) general subject; credibility the affidavits or kept separate polygraph operator of the as a shall record (9) any way subsequent trial; and shall at the not be used judge granting polygraph a new trial on the basis of tests shall may preside thereafter sit as a trier of fact the case but jury. judge privy with a A trier of shall substitute fact not be results, polygraph to the examination or the fact that a any way or was in examination was taken involved. Reversed and remanded reconsideration motion. Coleman, Justice dissented. She wrote that: 1. Use of results introduces unreliable but influen- complicate, tial information which could confuse and extend mechanical, proceedings. Polygraph objective, tests are not scientifically verifiable determinations. The machine responses, records but the determination is made operator who reads charts. Polygraph competent 2. results are not evidence and should during proceeding pre- not be in admitted evidence a court — trial, post-trial. yet trial or The results are so unreliable potentially expe- so influential that the courts cannot afford to argument riment with them. The that a motion for a new trial requires and, proof lesser standards of than a trial itself there- fore, experiment admittedly we should with an unreliable evidence, unpersuasive. source of Polygraph truth, 3. results are viewed as determinations of true, no, false, findings yes guilty. of or or innocent or These products any proceeding. are essential of criminal Yet the proofs facto, Ipso are that results are not reliable. they should not be introduced. Jr., Fitzgerald, Ryan, Moody, Justices and Blair did not participate. Opinion op the Court Evidence—Polygraph Admissibility. 1. Criminal Law — Tests — admissibility The test to determine the into evidence of the testimony of results tests is that there be offered general recogni- which would indicate that there ais scientific tests; certainty tion of the until it is established that reasonable People y Barbara tests, follows be error to admit their such it would results in evidence. Evidence—Polygraph Admissibility—Ex- 2. Criminal Law — Tests — pert Witnesses. Testimony support reliability results operation persons polygraphs use or whose business was the impartial experts testimony by is not disinterested and in the psychology) particular (physiology and scientific fields which belongs, general not the test thus is a demonstration of required recognition the tests as foundation scientific for admissibility their into evidence. Newly New Trial — Discovered Evidence. Granting newly a new trial because discovered evidence re- itself, quires that the shown that the evidence court be discovered; merely materiality, newly its it would retrial; probable party render a different result and that the offering diligence not with the new evidence could reasonable produced have discovered and it at trial. Newly 4. New Trial — Discovered Evidence —Witnesses—Recanta- Impeachment. tion — Newly support discovered evidence raised in of a motion for a new trial which takes the form of witnesses’ recantation of testimony impeach or evidence useful a witness is generally suspect untrustworthy, merely deemed to be or cumulative. Newly Witnesses—Perjury. 5. New Trial — DiscovEREb Evidence — discovery perjured introduced at trial was grounds ordering may be a new trial. Newly Witnesses—Poly- 6. New Trial — Discovered Evidence — graph Tests. polygraphic A test of a defendant offered on a motion for a new trial, effect, only, duplicate jury which serves evidence the trial, i.e., guilt, heard at the first the defendant’s denial of his cumulative, merely purview and does not fall within the newly discovered evidence. Newly Poly- 7. Criminal Law —New Trial — Found Evidence — graph Witnesses—Credibility. Tests — post-conviction hearing judge in a on a motion for a new trial newly may found evidence based the court’s discretion polygraph the results of a consider examination under these (1) the results of the tests are offered on behalf of conditions: 400 Mich (2) (3) defendant; voluntarily; profes- was taken the test qualifications examiner, sional quality of the equipment, procedures (4) employed approved; and the are prosecutor may independent either the or the court obtain an (5) results; subject examination of the or of the test the results regard general shall be considered with to the credibility (6) subject; of the the affidavits or operator kept separate shall be aas record and shall not be (7) any way subsequent trial; judge used in granting at the new trial on the basis of tests shall not thereafter sit may preside as a jury. trier of fact in the case but with a Opinion Concurring Dissenting in Part and in Part

Coleman, J. Evidence—Polygraph Admissibility. 8. Criminal Law — Tests — Polygraph competent evidence; test results are not a court should during not admit them in evidence proceeding pre- a court — trial, trial, post-trial the results are so unreliable —because yet potentially so inñuential that the courts cannot afford to experiment with them. Kelley, Attorney Frank J. General, Robert A. Derengoski, General, Solicitor L. Brooks Patterson, Prosecuting Attorney, Deputy Givens, and T S. Appellate people. Counsel, for the

Norman L. Zemke for defendant.

Amici Curiae: Michigan, by American Civil Liberties Union of Edward M. Wise. Polygraph by

American Association, Harrison, Roberson, Friedman & P. C.

Prosecuting Attorneys Appellate by Service, Ed- (by Wilson, ward R. Director Howard C. Mardero- Special Attorney General); sian, Assistant Prosecuting Attorneys Association, Bruce A. People 357 v Barbara Opinion op the Court Barton, President, Durance, and Edward L. Brooks Patterson, Bauer, Roger Amicus Committee.

State Appellate Office, by Kathleen Defender Cummins, Researcher, & James R. Chief Writer Newhard, Benson, Dennis H. and John B. Phelps; and Michigan Association of Criminal Defense Sowell, Lawyers, by Myzell President.

Williams, J. "What truth?” asked Pilate in the trial of Jesus. John 18:38. Today really poses same In question. the intervening nineteen hundred years, everything from trial by ordeal trial jury has been used to try to estab- lish truth.

This case requires us to determine whether poly- graph evidence which heretofore has not been admissible at trial may be used to judge assist a determining whether grant motion for a new (For trial. a description of a polygraph how and a work, test please appendix.) see the The Michigan presently applied test to deter mine the admissibility of polygraph that which we in People Becker, v enunciated 562, Mich 566; (1942), 2 NW2d 503 repeated Davis, with approval v 343 Mich 370; 72 (1955), NW2d there be: "testimony offered which would indicate that there is at general this time a recognition scientific of such [polygraph] tests. Until it is established that reasonable certainty tests, follows from such it would be error to admit in evidence the result thereof.”

In Becker and in Davis we concluded that "the not, results of such tests have as yet, reached the stature of evidence admissible a court of law”. 343 Mich 370. 400 Mich used in test other the traditional

This follows forth in which, set originally Frye jurisdictions, 46, 47; 293 F DC States, App US United (1923), requires: admitting expert go long way in courts will "[W]hile well-recognized scientific testimony a from deduced thing which the from deduc- principle discovery, or the sufficiently established have must be tion is made particular field in general acceptance in the gained belongs.” which court, "standing no and finding such Frye among and physiological psy- recognition

scientific admit chological testimony did not authorities” 47; DC 293 F 1014. App tests. 54 US based the defendant, seeks to introduce In case who this tests, of has polygraph the results into evidence the im- distinguished testimony presented itself, the reliabil- proved polygraph nature ity operators and claimed accu- of apparent While it is tests. racy art, in the state of the have been made advances submitted of the matter is that all testi- the fact given operators, polygraph by polygraph was mony poly- the use of teachers or others connected with graphs. case of strong made defendant/appellant

What business is use showing was those whose in the polygraphs have confidence operation There no disinterested and tests. [physio- particular "in the field impartial experts belongs” in which it logical psychological] and test), "general thus no demonstration (Frye tests” recognition [polygraph] scientific such rule). (Michigan People v Barbara Opinion of the Court

So from its Michigan changes unless traditional rule, tests are still Davis/Frye not ad- missible in evidence. We have declined to make a change following such for the reasons: (1) The Frye accepted remains test standard for the polygraph testimony admission of in most jurisdictions.

(2) Serious still remain questions concerning the state of the art the polygraph.

(3) Even if Frye requirements were satisfac- met, torily remain to policy questions serious be resolved.

However, question of whether the polygraph may judge used to assist in determining grant whether for a motion new trial another evidentiary require- matter. Less formal ments are at post-conviction found commonly motion, matters such as affidavits which may not be may admissible at trial be used to assist judge to request determine whether for a new trial has merit. Polygraph permitted tests in this context would be used to merely buttress witnesses, credibility of new the evidentiary value of testimony whose satisfies traditionally strict Thus, criteria for ordering a new trial. the poly- graph examination would evidence, not itself be at post-conviction either motion or at the trial itself, should be granted. one basis,

On this and within carefully drawn and limitations, use, defined we hold that a judge may discretion, his tests and by offered defendant to help determine grant a post-conviction whether to motion for a new trial.

Remanded for further action pursuant to this opinion. 400 Mich op

I— Facts Barbara, Jr., Joseph was In defendant from of Delores extortion by jury convicted Peter Lazaros, Both Peter Lazaros. wife of trial. Delores Lazaros at Delores Lazaros testified to her came home Barbara testified that defendant raped her prison, was in while her husband by threatening her money and extorted from also said she and son. She lives her husband her returned this until husband told no one about his At prison safety. she feared for from because time, her husband informed Mrs. Lazaros and the authorities. rejected by was appeal

Defendant’s claim Barbara, App 23 Mich Appeals. People v Court of We denied leave to 548; 179 NW2d (1970). The United States 383 Mich 803 appeal. granted writ habeas District Court defendant’s Sixth Circuit reversed corpus, but was Johnson, 449 F2d Appeals. Court of 1971). (CA 6, is now before our Defendant s of hi motion a new appealing Court denial trial. for a trial request for defendant’s new basis this, support lied. To claim that Lazaros his two witnesses and evidence

defendant offered new passed by himself and one tests two new witnesses. testify Spadafore, although called

Albert trial, reported ready he had been original at the story, supporting untrue version Lazaros’ tell an from Lazaros. There was some under instructions told had indeed question Spadafore whether trial another unrelated the "untrue version” involving Lazaros. Lazaros, testi- Metropoulos, a cousin of

Theodore Opinion of the Court through fled him that Lazaros interpreter told wife his was not said raped. He Lazaros admitted making up the "because this was story the only way get to out of jail prison”. the cursed Metro- said poulos he had taken a successfully examination. He explained also that he came for- ward with story his at time this because he had learned that defendant had been sentenced to a long prison term. accept

The trial court refused to the polygraph tests in permission gave evidence but counsel to make a special concerning the record examinations given Metropoulos and defendant. Proceedings in a 1970 case involving Peter Lazaros in Oakland part Circuit Court were made of this special case, In record. that Lazaros’ defense coun- F. sel Lee Bailey lay undertook to a foundation for admissibility of the polygraph evidence qualify Lynn expert. as Marcy

Marcy was also Barbara’s polygraph witness in the case at bar. Marcy presented the results of the tests made on Barbara and on Metropoulos. He concluded that Barbara was not guilty either rape or extortion and procedures testified as used,1 indicating that accuracy polygraphic examination under circumstances given excess of 99 percent. The same procedure was used Metropoulos, with the addition of an inter- preter, and Marcy Metropoulos concluded that also telling the truth.

The court that observed Lazaros had sent letters he, too, indicating passed had a polygraph examination. for a

The motion new trial was denied. The held, first, Michigan prevents court law Appendix summary. See A for 352 362 400 Mich op examina- admission into evidence tions, proceeding. post-conviction even in a event, that, any judge

The also ruled newly sufficient dis- testimony did not constitute trial, a new granting covered evidence warrant first, testimony part was never Spadafore’s because further, he original since admitted trial and the trial court being prepared testify falsely, addition, In testimony. his rely could not on now testimony "clearly tended although Metropoulos’ Lazaros, testimony of Peter his discredit that of the cousin”, own it did discredit com- not the conviction plainant, Delores Lazaros. Since on Delores Lazaros’ testi- was based primarily alleged place and attack took while her mony, the court was not satisfied prison, husband was in would render a purported that new evidence probable different result on retrial. granted denied leave. We Appeals Court of 25, 1974. 391 Mich 761 appeal January

leave to (1974). For a

II — Standards New Trial a a grant Before court will new trial because evidence, newly discovered itself, must shown that the evidence not "[I]t

merely materiality, newly-discovered; its that it is cumulative; it is such as to render a different cause; probable result retrial diligence could not with have discov party reasonable Clark, produced People it at trial.” v 363 Mich ered (1961). 643, 647; 110 638 NW2d evidence, however, form of Where such takes tradi- witnesses’ recantation has been testimony, People 363 v Opinion op the Court tionally regarded suspect and untrustworthy. People Smallwood, 49, v 58; 10 Mich 306 NW2d Jimmerson, (1943); People v 147, Mich App Bersine, 149; v (1971); NW2d (1973); 299; Mich 210 NW2d 501 App Am 2d, Trial, too, p Generally, Jur New § where is useful to impeach the new evidence witness, Kube merely it is cumulative. deemed Neuenfeldt, 74, 82; 353 Mich 90 NW2d 642

However, discovery that intro- may grounds duced at trial be perjured was 2d, ordering Trial, 58 Am Jur new trial. New 175, p becomes, problem The for defendant § then, goes how he or she about demonstrating that perjury committed when the newly discovered evidence consists of a new witness or of an old witness’s revised What story. suggests defendant in the case at bar is that the polygraph may assist to judge determine whether the newly-discov- ered of evidence is if worthy Specifically, belief.2 the jury Metropoulos, would believe then that impeach Lazaros, would not only the credibility of it would credibility affect the of Delores Lazaros as well.

We therefore question whether, review the of post-conviction trial, motion for a new may evidence be help admissible to the trial judge determine of credibility offering witnesses to testify at this trial. new This is particularly signifi- when, cant case, as in the instant the only evi- dence that offense was ever committed was largely based on individuals 2 Barbara, The test of defendant because it serves duplicate heard, i.e., jury already in effect denial of his evidence the has Barbara’s guilt, merely cumulative, properly and does not fall purview reasoning apply within the had of new The evidence. same would Metropoulos Spadafore’s It testified. is not clear whether testi mony given is new had been at another unrelated trial Federal Court. 352 Mich question into put might credibility whose these new witnesses. Non-Admissibility Michigan Rule

Ill — Polygraph held uniformly against have Michigan decisions rationale basic polygraph. admissibility has been our determination of standard- degree received technique had not which among scientists or acceptance ization admissibility. would warrant would indicate which "[T]estimony offered [must be] recognition general scientific time a that there is at this reasonable such tests. Until it is established tests, be error to would certainty follows from such Davis, thereof.” v in evidence the result admit (1955), quoting People 370; Mich 72 NW2d Becker, 566; 2 NW2d Mich requirement the Frye is similar approach This is made from which the deduction thing that "the gained have established sufficiently must be field in which particular in the general acceptance 1013, 46, 47; F belongs”. App it 54 US DC applies equally of exclusion policy 1014. The in cases, not be admitted may and test results civil pursuant stipula cases either civil or criminal 606, 611; 50 331 Mich NW2d Earp, tion. Stone v (1951). of types this rule to other applied We have the admissi- example, determining For evidence. the rule drunkometer results we used bility of in- [polygraph "both because Drunkometers] devices, of accuracy scientific the by volve tests jury be determined scarcely which can concern- complicated, of scientific basis People v of Court ing of theory operation devices face of a scientific opinion difference of as to their Morse, v accuracy”. 270, 274; 325 Mich NW2d 322 Compare, People Kenney, Mich 196; (1958), 92 NW2d 335 where evi dence speedwatch of a was admitted when defend ant offered no evidence that the instrument was mechanically and inaccurate. scientifically

We have not required infallibility, but "reasonable certainty” follow from "such tests”. 300 Mich

Therefore, before the polygraph may admit- ted into Michigan, evidence in there must be a showing by the proponent of the evidence that state of the art Davis/Frye satisfies the require- ments.3 and Frye emphasize Davis

Both is the burden of party seeking admissibility to dem- onstrate of the acceptability proposed technique. We must therefore examine the record in the case at bar to determine if a showing has been made that polygraph test results meet the standards of the Davis/Frye test. Admissibility

IV — Defendant’s Case for of the Polygraph To establish the reliability polygraph testi mony and to meet the Davis/Frye tests admis sibility polygraph findings, defendant this case Lynn introduced Marcy, a private well-known special examiner and the record made presence outside the in the jury case (Oakland People v Lazaros Circuit Court Docket CR-6237) No. before then P. Circuit James Judge 3This, course, preclude questions concerning does not raised admissibility trial, accepted technique particular of an otherwise in a adequacy given particular such test and of the examiner. 400 Mich attorney Bailey case, F. Lee Churchill. In that sought lay for the introduction a foundation polygraph of a exami- into evidence of the results nation. presented testimony Bailey hearing, In that experts. polygraph Lynn Marcy other five and of Academic Affairs Dean J. William Yankee Poly- College Keeler teacher at Delta and a at graph degree Chicago. received a master’s He Institute in Michigan psychology State Univer- from higher sity education. Leo- Ph.D. in as well as a Poly- of Keeler President nard H. Haroldson was poly- Chicago. graph Institute, E. Reid was a John operator, attorney graph with Pro- and co-author polyg- on a standard book fessor Fred E. Inbau of Eugene raphy. Dinkel were and Richard North polygraph oper- Michigan and Police State Officers princi- polygraphy aas All witnesses had ators. pal occupation.4 six by the in the Lazaros defense The record made judge, acknowledged by was, trial case outstanding. as high- summary of the Even a some lengthy, necessary lights but of the proper case at bar. of the determination Bailey’s Marcy, witness on had been who theory polygraph trials, and in other discussed techniques operation device and the administering that sev- a test. He also indicated operators require eral states although varying licensed, standards, all but have himself, basing expertise his Bailey his also took the stand section, Corps experience investigator as the Marine G-2 as an examiners, investigator private who referred cases work, investigative attorney who who uses extensively polygraph, and who has done research about lectures investigations hypnosis polygraph, especially in the field with Bailey Marcy. of the American a former associate member with Polygraph Association, Polygraph lectured at the Keeler has (now Training of Lie Detection and the National Center Institute Detection). of Lie Baxter School People v Barbara Opinion op the Court require training approved formal course by licensing was authority. There there were five accredited schools. The accrediting Bailey explained, agency, the Ameri- can Polygraph Association. being

Marcy testified to able to verify, by 9,000 "guesstimate,” percent over exami- nations he reported administering over a 14-year Of period. reported these he that "better than 95 percent” were consistent with later developments.5 Less 3 percent than of his results were inconclu- sive. He reported also that of the mistakes he recall, screening could almost all were cases in- volving inventory pilferage where he cleared indi- viduals who were implicated by investiga- later tions.

Marcy concerning also testified whether various devices might be effective in "beating” the ma- chine. He hypnosis stated that would not work if the examiner qualified were and "aware various facets of and how hypnosis might against used him”. He asserted that there was no way somebody "through their own act” could de- ceive an examiner into diagnosing as true that due, which is not. said, Mistakes were he "[o]nly through human frailty”. The cause of such errors could, said, he by be detected retracing steps through the charts. polygraph, said, he could distinguish be- deceptive

tween a and a subject. nervous Individu- als who would lie about anything everything pose also problem. no He also said there are no diseases, illnesses even those that require drugs, problem. that cause him a reported

He he would be able to read charts showing i.e., follow-up, There was no of the nature of this if there evidence, example. were convictions or corroboration extrinsic 400 Mich op we were within

made examiner by another "[i]f He technique systems”. on ballpark the same if he knew on the charts form opinion could an at the time. the circumstances something about rely have to However, he would he admitted question what original report to examiner asked when. common be asked

Marcy quite it was testified operator’s another based on give opinion chart, the charts "full faith having addition is asking”. who in the individual and confidence reviewing infrequently polygraphers do two Only results, he with up opposing the same charts come said. too, opinions poly- on

He that acknowledged on subjective, were based graph results interpretation operator’s on tracing, the but the during period the pretest his or her reactions the post-test and on prepared, when the subject with the subject. results are discussed period when where, instances, reported, after There were he conclusion, he coming the to a running tests to sitting talking down and changed his mind after subjects.6 the said, generally he were easier polygraphs,

Police paying to than those made individuals interpret examinations, perhaps offering for and their own in the the fear of detection is less latter because situation. the general way in a the use

He testified device, by busi- screening as a usually polygraph, expressed opinion He also industry. ness and great phase initial has value in the that the device is issued. investigation of the before warrant subject occurring explained these circumstances as when He This, deception. he test had determined the showed confessed after he maintained, was not inconsistent with the conclusion reached. People v Barbara op reported He police what characterized as the he law enforcement that position, admissibility evidence would cause the to lose its aid, utility investigative as an because individuals would refuse take the test since there was no longer safeguard that it could not be used in court.

It opinion was his technique developed point has where should be admitted in court in criminal cases where the polygraph shows that the defendant is not decep- It tive. opinion also his the properly instructed jury would not be overwhelmed by the polygraph and gave, as an a 1960 example, New Jersey case where he had testified the defendant was deceptive, and the still jury acquitted him. He placed also plane evidence "on a reliability” with other kinds of scientific evidence such fingerprints.

Dr.7 Yankee testified concerning psychologi- cal aspects polygraphy, taught he at subject the Keeler Polygraph Institute.

Psychopaths sociopaths not present do problem to said, the polygraph operator, he be- cause the device operation relies sympathetic, or involuntary, nervous Fur- system. ther, charts sociopaths individuals such as characteristic, are so testified, he there would be no chance of such an individual passing without detection. however, said,

The neurotic personality, he usu- a ally very shows erratic slant which a may be little more difficult to interpret. Individuals with IQs below also may present difficulty. some He 7Although examiner, psychological a licensed Ph.D. is Dr. Yankee’s higher degrees in psychology. education. His bachelor’s and master’s are 400 Mich to examine individual not would also choose he would because not episode suffering psychotic to responding his the subject know whether own delusions. or to his her questions or that an individual is only The test also indicates to be true or telling or she believes what he Thus, untrue, actually is. two not the truth what may stories diametrically opposed individuals with he or long as each believes she "pass” the test as However, situation, such he telling the truth. said, is likely happen. er- frequency of verifiable

He testified that that predicted He also rors was rather small. jury because not eliminate polygraph would the part of error on possibility always there of the examiner. Haroldson, Keeler Pol- Leonard President

. Institute, that approximately testified ygraph All working Michigan. graduates Keeler were psychological, subjected are potential operators training. intelligence tests before and policy many He also testified to the common by the who are cleared individuals states prosecuted. He there- are not polygraph examiner rely enforcement officials fore believed that law polygraph. on the highly examiners his that different opinion

It was also same indi- testing the same result get would vidual. approximately that since

He also testified have remained techniques requirements not been settled, there have pretty well new changes breakthroughs. Some any radical used, but,. ex- being are Haroldson instruments phe- recording additional they are plained, nomena. truth verify was useful

He said device People v Barbara Opinion of the Court lies, that, rather than to fact, detect and would be a more description accurate of its function. Further, test results are reliable when analyzing two conflicting if only stories even one of the individuals involved is tested. Reid,

John the polygraph involved with for over 30 years, has run his company own since 1947 and trained, record, had at the time of this approxi- mately 35,000 examiners. Of tests he said he had career, run in his he knew of only six instances where a guilty person was classified as innocent. He knew of no case with which he was associated in which an innocent person was diag- nosed as guilty.

He acknowledged that he and Professor Fred E. Inbau, co-authors of standard field, book in the Truth Inbau, Reid & Deception: and The Polygraph e-Detector”) ("Li (Baltimore: Technique Wil Co, liams & 1966), Wilkins had been opposed to the use of polygraph evidence the courtroom because of concern about the caliber of examiners and the non-uniformity of the technique. They were concerned about the lack of self-regulation, but feel being this is resolved polygraphers’ formation of the American Polygraph Association (APA) which setting standards for the field.

As a consequence of the formation of the APA and the beginning of state licensing, he believed there significant improvement in the standard- ization of experts. qualifies

He polygraphy as a discipline, scientific comparable to other kinds of scientific evidence such as electroencephalograms, fingerprints firearm identification. Just as the handwriting compares examiner the known exemplar with the unknown order to determine if both were writ- ten by person, the same the polygraph examiner 400 Mich op

compares responses irrelevant the known compared questions with are then which control questions answer is not known. the not what the the to which subject says, significant thing The questions and their to the his but or her reactions answers. process judicial opinion the that

It was his polygraph impaired were used if the would not be be no difference evidence, would that there in ability juries accurate result. to reach an in the polygraph would be useful He felt the also sentencing judge and was at the time assist the in accomplish legislation preparing this record of this in Illinois. polygraph examiner, testified Howard, Richard a polygraph for in case examination about Bailey origi- special record was F. Lee which the general nally was the statement made. interest Of by only defend- selected the one examination that any by jury, and not ant could be considered might Further, have been taken. other tests which used, test would have to be that the entire selected portions. just favorable and not certain Michigan North, State Richard a member the Second examiner at Police and a Headquarters reported Detroit, admin- District istering graduation from the

825 tests since his Training Lie Detection New Center of National York City years He could recall three before. conclusions had been instance where his test one wrong by proven evidence. He was able extrinsic charts and find his mistake, but re-evaluate his borderline, reported had been the case ordinarily characterize kind which most examiners subject, consid- who had been as inconclusive. he examiner, when truthful confessed ered following police test. to the station returned of verified the amount judgment It was his percent. 1was error 2 percent almost of his opinion

His was that inconclusive, percent tests own were were. throughout department unusual for two opined He also would opposed opinions diametrically experts to have single chart. about as, for exam-

He use of the reported resulting mis- from injustices to avoid ple, way identification, valuable cases and as taken conflicting versions of sharply where there were technique is to test preferred incident. The is the examiner sole first. The polygraph victim tested, but no of who is judge investigation. substitute and prosecutor His was that experience heavily opinions State Police relied of the State Police department His polygraphers. person. a relief operators 8 full time and had pro- who had been There were other examiners unit. He estimated of the polygraph moted out examiners, including police and there were examiners, members the state who were private association. polygraph no was different

He also felt that a testimony, and bad expert from kinds other as on cross-examina- test be revealed such could tion. as polygraphs testified that use of

He also to evidence not be detrimental courtroom would investigative device an polygraphs the use taking because, example, people he has told admitted where tests have been tests of instances much it did not seem to have and by stipulation opinion, own This was his effect on those tested. however, department. his and not that of 400 Mich Opinion of the Court He operators testified that some were professional members of the association. Noth- ing stop calling would from an amateur himself or expert, way herself an determine if an individual really expert would be to person’s look at that qualifications experience. however, profession, Those would be aware of the charlatans.

Eugene Dinkel, a State who Policeman was also examiner, a noted that was the State Police policy any to test under person suspicion requested who a test.

Bailey himself testified as to experience his with doubt, the polygraph. He had no as a trial lawyer, that "the ordinary safeguards judicial control” would be effectively sufficient and safely handle polygraph evidence. He noted that the polygraph community give itself has come forward to attor- neys impeach information a charlatan on the witness stand. He noted military never brings person to if perform- trial the G-2 section ing polygraph examinations clears him or her. He said the military higher has much conviction rate than civil courts and is more accurate in its results.

Bailey claimed he knew of no conflict between experts single on a chart. He maintained this even though, subject case, the defendant passed part of test one and failed another. said Bailey case, there was no conflict even in this be- cause there had no effort been to reconcile these two tests.8 problem potential experts Since of conflict between two is so question, Bailey’s central ultimate observations are useful: Goussy Attorney report "Mr. That indicates [Assistant General]: passed

that Mr. Zimmerman Peter Lazaros affair in relation to the Diplomat that occurred in the Towers in Florida. Right. Bailey: part passed "Mr. In he it. Goussy: part. "Mr. In Opinion of the Court could lawyer not use

He unethical also felt an the court. to deceive polygraphs Churchill, observing "the people that Judge in the absolutely nothing nothing, forth with came * ** that scientific attacks way evidence device, it was except developed of this reliability cross-examination”, concluded: that within a "I am the evidence convinced from use, proper assuming there are circum- certain field of stances, experts, witnesses as competent and credible scientifically reliable instrument polygraph that deception.” to determine problems serious con-

He there were observed use, possibility there cerning including the that its that unless the experts, and would be a battle proliferation polygra- an expected courts control expert have offers of testi- phers going "we are bought”. mony simply that can be we However, hope "someday his despite enlightened have use court”, deny obliged admissibility he felt Bailey: "Mr. Yes. knowledge highly Goussy: personal of a "Mr. I have respected person that it failed Peter Lazaros. Bailey: "Mr. I am aware of that. Goussy: very "Mr. It me this situation in this case seems to among experts there can be serious conflicts indicates that as given to a incident. Bailey: these If "Mr. one an eifort to reconcile two tests. No made go questions together, to sit and their the examiners were the information down over they they had the time the examination at conducted charts, you compared quite their I am satisfied would up wind with a conflict. other, any had not had contact with each "On two examiners who very possible subject it is Mr. Lazaros withheld run the same information from the examiner, lying which mean he but didn’t counsel, readily he more disclose to which is a critical which would explain part responses clearing well it. Mr. did show of a test that could Lazaros control, merely fortify it is a which result because responses aspect to one of that shows transaction.” Mich 352 op Opinion proposed polygraph Michigan until evidence Supreme Court it would be admissible. decreed Davis/Frye

V — Defendant Fails to Meet Test special impressed record, This which so the trial judge ago, years seven also was the basis of the proof offer of in the instant case. The record is clearly superior advocacy.

However, the witnesses were not disinterested expert scientists. While not one would want an background experience witness without in the field, want, technical one would where the task general acceptability, was to demonstrate scientific acknowledgment and the value the device techniques by and the disinterested scientists intimately whose livelihood was connected Davis/Frye requires addition, with it. In test acceptability by those certain established scien- disciplines. forthcoming. tific This was not excellently Further, with the aid written and argued presentations9 bar, amicus in the matter at we find that the case for has not in clearly acceptance by fact been decided and that polygraph operators scientists rather than has not general widespread. been significant It is to note that the defendant Polygraph argued and the American Association admissibility. might gener- Even those who ally expected to be the first advocate devices defendants, which would favor such as the State (SADO) Appellate Defender Office and the Michi- gan op- Lawyers, Association Criminal Defense Polygraph Amicus briefs were submitted the American Associa tion, (also Appellate adopted by the State Defenders Office the Michi gan Lawyers), Association of Criminal Defense the American Civil Michigan, Prosecuting Attorneys Appel Liberties Union of and the late Service. op Court repre- prosecutors, admissibility.

posed Prosecutor in the County by sented Oakland Prosecuting Attorneys Appel- bar, at and the case Service, the same side the issue argued late Lawyers. Defense Criminal as SADO necessarily per- are by Numbers themselves but, looking for evidence of suasive, are where we spectrum of a broad such general acceptability, is acceptability certainly opinions against arguing significant. before us establishes record special

While by polyg- as reliable accepted is polygraph polygraph anal- raphers, not establish does by scientific commu- accepted as reliable ysis witnesses, although out- of the nity. Credentials technicians, are not those standing Therefore, we depart unless from of scientists. Davis/Frye admissibility, test for defend- standard failed us that the polygraph ant has to convince trial into at in our should be admitted evidence state. Michigan Depart Davis/ from

VI — Should

Frye Rule? A. Do Jurisdictions Stand? Where Other a) Rule. Frye Majority opinion specifically overrul appellate

No court or discov Frye ing has called to our attention been 1974, it said As late as by ered our research. 131, Skeens, States v App 161 DC United in US (1974): 1050, 1053 134; F2d leading Frye in v United case this Circuit "The (1923), 46; States, App US DC 293 F 1013 which fol This has been holds tests inadmissible. case such there uniformly this and other Circuits lowed 400 Mich Court challenge has never to it any any been successful federal court.”

See also ALR survey, the most recent ALR2d (Later Service, 1976, Supp, pp Case 127- § 128), holding which cited cases tests following Alabama, inadmissible states: Alaska, Illinois, Arizona, Florida, Indiana, Iowa, Kansas, Louisiana, Kentucky, Maryland, Michi Missouri, gan, Nebraska, Nevada, New Jersey, York, Carolina, Ohio, New Oklahoma, North Penn sylvania, Dakota, Texas, South Virginia and Wash ington. See further the excellent survey in 3A (Chadbourn Wigmore, rev), Evidence pp § 946-949, fn 2.10

b) by Stipulation Admission in Few States. There chipping has been some away Frye from by admitting those states evidence stipulation See, parties. especially, State v (1962).11 Valdez, 91 274; also, Ariz 371 P2d 894 See 10 departure significant recently The most until from this solid wall People non-admissibility Kenny, 51; of 348 was v 167 NY Misc 3 NYS2d (1938), pathometer where results of a test administered to prosecutor’s However, objection. defendant were admitted over the Kenny probably year by People overruled sub silentio the same v Forte, 204; (1938), 279 NY 18 31 NE2d when New York Court of Appeals judge’s affirmed the trial exclusion of lie-detector test results. polygraph The other substantial situation when evidence has parties stipu been admitted in some states has been when the have discussion, testimony. lated to the admission of the See infra. Wigmore prohibiting cites cases from admission federal courts (CA (CA including circuit, States, the tenth Marks v United 260 F2d 377 10, 1958); circuit, eighth States, McCroskey v United 339 F2d 895 8, 1965), California, Florida, including Arizona, and from states Ha Iowa, waii, Illinois, Montana, Kansas, Maine, Kentucky, Minnesota, Missouri, Nebraska, Mexico, York, Hampshire, New New New North Carolina, Dakota, Ohio, Oklahoma, Pennsylvania, North South Caro lina, Tennessee, Texas, Virginia and Wisconsin. 11 complete requirements The Valdez are: (1) parties sign stipulation; all That a written (2) may test, judge if, example, The still refuse to admit the qualified if faulty; examiner is not or the test conditions were (3) may qualifica- The examiner be cross-examined as his her People 379 v op 62, 69; 1343, 497 P2d Ross, App

State v 7 Wash Stanislawski, 730, 62 Wis 2d v State (1972); 1347 See also State v 8, 14 742-743; 216 NW2d 849, McDavitt, 62 NJ 36, 46; 297 A2d 854-855 686, 695; Houser, App 2d 85 Cal (1972); People v Brown, 177 v (1948); State So 2d 937, 942 193 P2d Freeland, State (Fla 1965); v 255 532, App, 533 (1964) (al 825, 828 1334, 1339; NW2d 125 Iowa stipulation, rejected but by joint lowed admission request); State v defendant’s ordering test even at 1969). (Iowa, 89, 94-95 Galloway, 167 NW2d evidence polygraph However, consideration has not admissibility stipulation with a even Trimble, 406; 362 State v 68 NM unanimous. been State, 474, (1961); Pulakis v 476 P2d P2d 1970) ("A does not for admission (Alas, stipulation results and reliability increase from deviation any lead to therefore should State, v LeFevre policy.”); exclusionary (1943); 416, 425; 8 NW2d Wis 302, 309; Zazzetta, 189 NE2d Ill 2d (1963) unfair to bind manifestly (”[W]e think regarding stipulation by him [defendant] his opinion beyond far of scientific trustworthiness ken.”) expected

c) Academic Criticism. Some has been criticized Frye standard12 The evi to other scientific applied than stricter dence, amounting to a test of as in effect McCormick, e.g., See, Evidence notice.13 judicial conditions, training, limitations the test tions and judge; any the trial technique, deemed relevant other matter (4) limited use of jury be instructed as to shall veracity the examina- at the time of defendant’s to indicate evidence charged, and that tion, prove any the crime element of and not for them to weight is and effect of corroborative determine. 91 283-284; 371 P2d 900-901. Ariz 12 includes, necessarily, of other and those the Davis standard This Frye. from which derive states "13 taking proper acceptance’ condition for is a scientific 'General 380 352 400 Mich op Court (1st ed), 170, 363-364; Kaplan, The Lie Detec pp § tor: An of Its Place in the Analysis Law Evi dence, 381, 10 L Thus, Rev 402-407 Wayne while other tests be admitted may face of serious dispute concerning scientific their credibil following Frye, ity, in states tests have not been.14

d) Five Challenging Cases Frye. facts, judicial notice of a scientific but not criterion the admissibil- ity of Any scientific sup- evidence. relevant conclusions which are ported by qualified expert witness should be received unless there (2d McCormick, ed), 203, other are reasons for Evidence exclusion.” § p 491. judicial validity general "Even if notice is not taken of a science, proposition validity may by still be established appropriate evidentiary showing by expert testimony.” Strong, Ques Affecting Admissibility Evidence, tions of Scientific 1970 U Ill L 1, Forum 9. apply McCormick would the same for all standard scientific evi dence, that it should be if it admissible would "render the desired probable inference more it would be than without the evidence”. (1st McCormick, ed), 152, p Evidence § 318. Polygraph adherents maintain that scientific evidence such as psychiatry, they which maintain is even less verifiable than that of polygraph, readily the Inbau, is admissible without such test. Reid & ("Lie-Detector") Deception: Polygraph Truth and Tech (Baltimore: nique Co, 1966), 255, pp & Williams Wilkins suggested disagreement It only that scientific should affect weight handled 267 (1951). See, admissibility e.g., and not the of evidence. how courts disputed Breathalyzer. Olivas, 118; status of State v 77 Ariz (1954);People Bobczyk, 504; App P2d 893 v 343 Ill 99 NE2d 567 approach: One Federal court district recommended still another examiner, having particular "[A] satisfied a court that he qualified field, expert permitted present as an in his should be foundational polygraph’s evidence that court demonstrative of the reliability acceptance, substantial in an effort to establish its probative DeBetham, Supp value.” United v F States (SD 1972) added). Cal, (emphasis State, (Fla Coppolino 1968), See App, 223 So 2d 70-71 cert den, 927; 2242; (1970), S Ct US 26 L 2dEd where a test showing admitted, succinylcholine death resulted from chloride was though designed specially even test for that case and there generally accepted. general fore was not acceptance The court held lack weight admissibility affected and not the of the as within the supported admissibility evidence. The court further judge, noting prosecu wide discretion exercised the trial that the they tion witnesses stated medical held their conclusions "with reasonable centainty”, tests, that unlike lie detector and intoxication People v Barbara 381 Opinion op the Court however, jurisdictions, Certain particularly sev- courts, opted eral Federal district have to admit substituting, at polygraph evidence least implic- Frye. itly, another standard for For example, although was not v Wainwright, United States admitted in 413 F2d (CA 796, 1969), 10, 803 it precluded the expert because did not testify " proposed 'that accepted an test one in his profession and that it has reasonable measure of (3d precision ed), Wigmore in its indications.’ 3 on Evidence 990. properly The trial court § excluded it even though proper may in a it case (Empha- admissible.” added.) sis Thus, instance, by looking this to acceptability by the profession, the tenth appeared circuit substitute the polygraph profession for the profes- sions of and physiology psychology as required by Frye.

A approach similar Frye was taken modifying in an extremely thoughtful United States District DeBetham, United States v opinion, Court 348 F (SD 1972). Supp Cal, That Court re physiologists viewed and psycholo gists and to the Frye standard. The applied Court concluded that "physiologists as a group have no real quarrel with the as instrument for measuring and recording certain physiological responses Thus, of the human body”. specific guide "there is a dearth of literature and case law to the trial courts”, appellate and and that defendant did not show court Compare Superior abused its discretion. v Hodo Court of Riverside 778; County, App (1973), Rptr applying Cal 3d 106 Cal Frye (Fla voiceprints, Worley State, standard to 263 So 2d 613 1972), not, App, graph Tarlow, Admissibility Poly which does cited in Determining Credibility Evidence in 1975: An Aid in in a Perjury-Plagued System, Hastings 917, 939, LJ fn 107 400 Mich op Court a properly indicated apparently the evidence machine would maintained designed, operated specified physical certain accurately record psychophysiologist, A changes. Supp 348 F device is "a useful however, while testified changes”, "he ex- physiological tool for studying any conclusions whether pressed doubts therefrom”. derived could be deception about added). Supp (emphasis F indicated, do also not Court the Psychologists, of ac- widespread claim polygrapher’s the support defendant’s that even noted The Court ceptance. unequivocally "could not state psychologist witness technique en- detection lie polygraphic that profession”, his recognition of general joyed the conceding: paper had a authored " developed pragmat technique was 'The lie detection users, underpin theoretical by with the ically the field now, gener no following there exists later. Even nings explains of adequately all theory ally accepted which ” Raskin, Quoting Experimental "An phenomena.’ ”, paper a Techniques 'Lie Detection’ Study of Field Re Society Psychophysiological presented at 1381, Supp fn search, Louis, 1971. 348 F St. October 10. psychologists that while

The Court concluded eventually scientifi- may psychophysiologists hypothe- underlying psychological verify "the cally findings have no conclusive polygraph, sis of the would Court’s attention which brought to the been of admissibil- holding Frye test warrant a decisions, has interpreted by subsequent as ity, century”. a after almost half satisfied finally been 1381-1382. Supp 348 F stop

However, did opinion the DeBetham Frye to indicate there, interpreted but instead People v Barbara op the Court concern obligation with "the normal the trial protect judge exposure from jury evidence which F might Supp mislead them”. 348 1382. Thus, Frye court itself did says that not intend require "to rigorous standard specially of admis- sibility for F Supp such evidence”. 348 1382. How- ever, acknowledges nearly all sub- Frye sequent decisions applied have "to require more of the than of other types of scientific F Supp evidence”. 348

To this the responded noting Court the rec supra, McCormick, ommendations fn and of Kaplan,15 and agreeing that the standard for the admission of polygraph evidence artifically high and that evidentiary requirements normal for ad missibility should be established. This weigh would probative value the polygraph evidence against factors such the possibility jury preju dice or undue but delay, would apparently require support of at least "a substantial body opinion”. scientific 348 F Supp 1384.16 Under DeBetham approach, the qualified expert would be permitted present to foundational evidence demon strating the device’s "substantial reliability and acceptance, in an effort probative establish its value.” Supp 348 F 1384.

Thus DeBetham looked to the of poly- standard of scientific the the Wayne L Rev ments whatever say consuming evidence the 'a The Lie ^{[15] [16]} substantial proferred "[W]here possibilities "This is not to of Detector: demonstrating disagreement, probative applying admissibility, polygraph body judicial evidence court’s time.” 348 of An 402-407 of misleading value the say the normal standard of scientific Analysis notice is not against its need the courts that which reliability, technique may possess. opinion.’ of Its Place in the traditional simply weighs demonstrate the polygraph may escape prejudicing F [should] appropriate, Supp 1383-1384, citing Kaplan, since ” 348 F that is admissibility apply the Law the policy the Supp due to substantial jury, support probative the more 1384. factors, integral part of Nor is this to or of Evidence, all of scientific of at least value of require such as normal unduly 10 of 352 400 Mich 384 the Court of accuracy excess who testified graphers by polygraphers performed studies percent, and of accuracy achieved experimentally in which they 1385. Supp 348 F percent.17 between and placing the justified opinions Court these poly- along with those of the more graphers critical because of ad- psychologists and physiologists lie detection of instrumental vances in the field reasoned, Therefore, Frye. since not be lim- acceptance should search for scientific familiar to the "to of science ited those branches Supp F 1388. courts in 1923”. 348 significant particularly The Court found Federal state extensively used agencies, enforcement law technique upon the in their apparently rely "who * * * making. Such prosecutorial decision

day-to-day though strictly not of a 'scien- widespread acceptance, nature, important, in terms considerably more tific’ society, any than academic practical of its effect be; community psychological could ever by the approval and substitute, ample if the Court finds it to be an requirement of substantial scientific necessary, for the acceptance.” Supp 348 F value of the

Having probative found that established, the Court also exam- might militate various issues which policy ined However, found that against Court admission. objections had merit. none18 of these However, Court deci- this was District because had held sion, Appeals Circuit Court of and the psychologist testifying lone no indication whether the There was field, presented a validation in the but he was also involved percent. reporting percentage accuracy than better test polygraph on self- included effect of Issues discussed danger incrimination, right privacy, possible violation jury. Supp to in displacing 348 F 1389-1391. These are referred the part greater opinion, VII of this infra. detail somewhat the Court that properly results are excluded from evidence, adopt the finding Court did Appeals affirmed admissibility. Court (CA 1972). result. F2d 1367 Similar deference did not deter the United in United States v Ridling, States District Court 1972). (ED Mich, There, 350 F Supp 90 in a per United States v Wain case, court, jury citing the wright, supra, question declared that the of relia bility of the be determined in each case, noting individual that evidence in the at case techniques bar was equipment the had improved markedly past years. in the ten

In order to determine what it considered to be the proper test the admissibility, court first analyzed what it felt be "historical process of developing the admissibility opinions inter- preting First, scientific evidence”. 350 F Supp * * * "Someone has a theory developed] an idea and * * * until it acceptance. has some opinions "When interpreting the results are first Court, offered in underlying premises require a great proof, deal of well proper as does the use of premises, necessary these spe- controls used cific expert. appropriate cases and the qualifications of the proper proof, On the evidence becomes admissi- ble. The attention of the Courts at point this seems to proper be directed qualification at expert of an witness, including testimony, establishing underly- ing theory. "Finally, underlying principles premises be- come so well established and known that the real issues for determination in recep- connection with the proper tion of evidence is principles, use of premises and theories and the adequate use of controls specific in the words, good case to assure results. In other stage at this the Courts judicially notice the premises. basic They theories and longer need no proved.” 400 Mich Opinion the Court of The Court held: then interpreting the results expert opinions "The of use at one of still the first lie in

of detector tests Court denying stages, opinions admissibility judicial two give way and developments in the science itself in the to interpre- application or in techniques the tation of the that used its case record in this indicates The results. is sound and that theory (a case), directly perjury and this case that relevant to admissibility denying on these therefore grounds the cases 95. controlling.” Supp 350 F are not Thus, psychological ba declaring "the scientific is well for the examination estab sis lished”, 93, Ridling Frye F Supp rejected conclusion. hesitation Court ex The of the device was pressed technology about "to have outstripped the machine seems personnel de general acceptance obstacle, Ridling this velopment”. To surmount provided court-approved experts use to for the defendant, opinions de test with the both of the court polygrapher and that fendant’s long expert as the court’s was able to admissible conclusion, experts even if the two come disagreed. Supp 350 F 96-97. appeared the Court Bailey

F. Lee before (DDC, Zeiger, United States v 350 F Supp 11; rav'd 155 US 1972), 475 F2d 1280 App DC Court, to DeBetham but con That similar Frye. Ridling, recognized it was bound trary has recognized "polygraphy Court then * * * twilight into an emerged from zone [the] 350 F technology”. of science and established field Zeiger To this so establish status Supp DeBetham, court, "to the gave like consideration physiologists who are neither opinions experts Frye required Although psychologists”. nor People v Barbara op the Court " 'recognition among physiological psychologi- ”, rejected cal authorities’ the Court this exclusive approach although "polygraphy because at one time may dependent have on physiological been psychological authorities for certification of its reliability, longer it is appropriate no to confine solely disciplines”. consideration to those 350 F Supp 689. concluded,

Therefore, experts "The of the and the appear studies ing in the exhibits19 lead the Court to believe that the polygraph is an effective instrument for detecting de ception. The of the failure Government to demonstrate significant disagreement proposition, with this basic the of pointing absence any statistical data to other conclu sions, accepted widespread absorption of polygraph operations many government into the of agencies, all confirm the Court’s conclusion that polygraph accepted by has been authorities in the field being capable producing probative of highly evidence in the court properly by competent, of law when used experienced 350 Supp examiners.” F

Zeiger was reversed the appellate Court. 155 11; App US DC 475 1280 F2d (No 1), Commonwealth v A Juvenile 365 Mass 421; (1974), 313 NE2d 120 is a unique somewhat involving case the trial court’s reluctant refusal admit defendant’s test results because equivalent of the Massachusetts Frye rule. The defendant originally moved consideration of polygraph already tests performed by an exam iner of his own choice but subsequently requested a court-ordered examination as well. 19 apparently bibliography The record of exhibits included of a studies, Supp performed by 350 scientific David psychophysiology. F fn and studies Raskin, psychologist performed who of research the areas Mich Judicial Court rec Supreme

The Massachusetts art state but ognized advances unwilling to say are at stated "we nevertheless [Frye] in the Fatalo standard this time that 266; Fatalo, 346 Mass v case [Commonwealth been met and that (1963)] has NE2d subject henceforth be polygraph test results should applicable other the same rules of evidence evidence.” 313 scientific acceptable expert forms this conclusion because 123-124. It reached NE2d Court found, the District deci considering after DeBetham, Ridling Zeiger and and the sions in data: relevant progress years,

"[D]espite significant in recent very challenged forcefully polygraphy field still predictable yet to grounds and has achieve theoretical among For these consistency examiners. rea level that at this time test sons we do believe in evidence generally admissible results should be criminal Fatalo, supra.” trials. Commonwealth NE2d 125. Court, however, went on to hold agrees in advance to the admis- "that if a defendant regardless of their polygraph of of a test

sion outcome the trial inquiry, the results searching judge, after a close and * * * proper of discre- may, the exercise his results, binding not or conclusive admit the tion evidence, to all other evidence but be considered with guilt.” NE2d 124. as to innocence com- "a defendant could It further held exami- initially [polygraph] to take such an pelled 313 NE2d 127. nation”. in that to follow peculiar purports

This case special rule Frye but nonetheless makes the permit the to submit defendant exception v op evidence, the tests if offer testing and results would be the agrees "in advance he results”, 313 NE2d the irrespective admissible 126-127.

e) Frye. Present Status of overruled specifically has appellate No court rule majority on the Frye, Frye remains Although evidence. sev admissibility on a limited basis such evidence eral states admit still other states parties, stipulation upon evidence, on stipula even exclude this specifically criticism, academic some tion. There has been courts, rule is more Frye noted in a few to test ordinarily rule used stringent than the evidence. Four interest of scientific admissibility rule into Frye have called ing Federal cases Court In a Federal Circuit question. Wainwright, a different rule Appeals sub silentio substituted DeBetham, Circuit Court of In a different Frye. which opinion a District Court Appeals affirmed from Frye a rule different thoughtfully considered Zeiger, In still a different cir Frye. but retained trying a District Court sharply cuit reversed the District Court for the overrule Frye. Finally, substituted, in Ri Michigan Eastern District of A Frye. peculiar lenient test than dling, a more Juvenile, case, Massachusetts Commonwealth rule, but makes a supra, Frye claims to follow agrees the defendant exception where special test and submit to take advance Yet, large, of results. irrespective by tests remain anomalies. these cases Changed Frye Rule Should Not Be Why B. requirement why Frye The two reasons should community the scientific acceptability 400 Mich Court up not changed succinctly were summed Juvenile:

"[Djespite progress significant years, in recent very challenged forcefully the field of polygraphy is still on grounds yet predictable theoretical and has to achieve of consistency among level examiners.” Even the Courts which modified Frye Federal recognized existed, these but problems they not were deemed dispositive because these courts also found that had received general acceptance. effectively Their new tests substituted the judgment of for those of polygraphers scien- tists order to demonstrate scientific acceptance. However, in order acceptance, to find such these adopted courts what fact logical fallacy. was in Under present state of the general art acceptance of the polygraph among psychologists demonstrated, and physiologists cannot be because such acceptance Therefore, does exist. not these courts, in order to general acceptance, find found amongst it polygraphers. Once finding general acceptance, the courts then they found did not to rely have on scientific but testimony, were able rely to polygraphers to estab- lish reliability of the device. reasoning

Such is circular and further reinforces our decision modify change otherwise Frye/Davis rule. further position,

To buttress this is useful review factors behind the prac- theoretical problems confronting tical still polygraph. with, begin To serious questions scientific have ability been raised about poly- evaluate the at all. graph question

The basic challenges which the funda- Opinion op the Court is theory underlying mental relationship a measurable be whether there is person’s physio and deception tween conscious and Theory Scien Skolnick, Scientific logical state. Lie-Detection, tific An Analysis 70 Evidence: Leone, (1961); 694, 25 Yale LJ 700-702 696, 511, 698; 307 515; 255 NYS2d NY2d NE2d State, Henderson v 430, 94 (1969); 433 and see 495, (1951), 501-502 51-52; Crim 230 P2d Okla cert den 342 US 898; 234; 96 L 72 S Ct Ed (1951). question to be little that a appears

While there designed, operated maintained and ma- properly phenom- chine record accurately physiological will ena, concerning great there is a deal debate recordings what these mean. precisely 1,200 survey psychologists One famous is pointed signifying psychologists often to as A Con Cureton, accepted have indeed device. Procedures, Validity Polygraph sensus as to (1953), Richardson, Tenn L Rev 728 cited (2d ed), 10.3, p 311. Modern Scientific Evidence § results, however, appear The do sustain example, response contention. For to the re of the quest opinion concerning validity for an reaction”, "as an indicator of emotional polled of the indicated percent psychologists useful, they thought .highly valid and felt it was valid and useful. percent moderately however, responses, The justify psychologists the conclusion that

"by no means regard as a valid instrument for the asks, essence, question of lies. What the detection psychologist blood-pressure whether believes that sphygmomanometer with a can be measured pneumo- respiration can be measured with a whether 400 Mich Opinion op the Court Levitt, graph.” Evaluation "Lie Scientific Detec tor”, 40 Iowa 456-457 L Rev question respondent if the does not ask be- lieves the lying. emotional reaction recorded indicates significant, per- therefore,

More that 64 disagreed polygraphers’ cent basic with state- theory underlying ment of the effectiveness of the device, viz., being "The fear of found out and/or conscious efforts significant

to deceive are the main cause of reactions in Levitt, polygraphic deception.” tests of 40 Iowa L Rev group non-psy Furthermore, the tested included chologists psychologists, as well as and the non- psychologists including polygraph examiners psycholo seemed to gists as be twice enthusiastic the high efficacy polygraph. as to the of the supra, Cureton, 22 Tenn L Rev challenge premise oper- This to the basic behind long-standing. ation the is Both the literature and the record in this case indicate that experimentation began early to demonstrate that changes physiological changes emotional which could be recorded polygraph. created

by predecessors of the argued However, it is still that while changes noted, these can be recorded and "There be upholds seems to little evidence the regular to a relationship lying claim between and emo- tion; there less support is even the conclusion that * * * precise can inferences be drawn between emo- change Skolnick, physiological tional response.” supra, 70 Yale LJ 727. response question autonomic critical "[T]he always by influenced will be difference varia- individual which subject’s guilt bles are not function of Opinion op the Court Lie Detector Psychology Lykken, innocence.” Industry, (1974). 725, Psychologist 29 Am Further, pressure, or change respiration, blood GSR "[a] seem normal is response] beyond what would

[skin considered speciGc physiological no important, but Instead, lying. decep change with uniquely is associated subject’s response diagnosed by comparing tion is response on items that should his relevant items with anxiety-provoking to an equally arousing or individ Sternbach, eds, & lying.” Greenfield ual is not who (New Holt, Rine York: Psychophysiology Handbook 1972) Inc, p Winston, ch 749. Hereafter hart & added.) (Emphasis & Sternbach. Greenfield Thus, investigating the Warren Commission Kennedy "concluded assassination of President other due factors responses that physiological fear, anxiety, nervous and deception, than such as emotions, given consideration had to be other The Burkey, Case evaluating polygraph”. 51 ABA J Against Polygraph, Smith, also, Motiva & Unconscious See Dearman Test, Am Psychiatry J Polygraph tion and (1963), id.20 cited apparently opposition theoretical operational weakness another strengthened parameters Scoring physiological test. basis, with the scores individual performed on an the judg- deception by determined which indicate 20 record, techniques acknowledged special and in the As 1956, largely same proponents we have been since and devices have remained presented original special by of the with no indication Thus, appear changed not have since then. it does that matters record years upon. need be studies of recent relied that conclusions and special testimony in the Apparently, on John E. Reid’s based position urging record, admissibility change in to Inbau’s celebrated Reid and profes- of the of the stems from formation any attempts self-policing, from its at and sional association new instrumentation. technique developments improvements or in area 352 400 Mich op ment on each examiner individ- individual Thus, ual the same score subject. may indicate deception for subject and not another. one The determination made ultimately only is Thus, appear examiner each there time. be no ranges standard outside of "normal” which decep- indicated, tion appear is decisions be highly judgmental and ad hoc. "When one the polygraph considers use of in a situation, why real life it becomes clear is difficult to interrogation procedure The evaluate. is an art rather depends upon than a science—much the manner interrogator which the tions, provide rogator ques individual his formulates voice, the tone of his and the subtle cues he may interrogation, experienced in the The etc.. inter problems intuitively must deal with inherent in such issues as individual differences in reactivity, re sponse specificity, person and the overall state of the

being questioned. Interrogators who have worked with 'lie readily detection’ will psychological admit that the edge is, provides during pretest the machine interview view, point importance. from their major of of Some go say that, on to if even the machine out were order, it would a major still be asset. Scientific evalua tion of the validity of the 'lie procedure detection’ is difficult, very since the test part itself is a small * * * procedure the total fully way No satisfactory at evaluating available tiveness this time for the overall effec technique.”21 Sternbach, Greenfield & pp 749-750, 751.

Further, we find there difficulty in empirically reports preponderance The text also that "the seems evidence * * * technique to indicate is effective—at least more effective ascertaining than alternative methods of truth —it still to be remains accurately determined how and under what conditions.” Greenfield & Sternbach, p 751. previous publication, concluded, In a one of the text’s authors " * * * public body knowledge support there exists no operators”. Sternbach, Colier, enthusiastic claim of Don’t Gustafson & Detector, (1962), quoted Trust the Lie Harvard Bus Rev Against Burkey, Polygraph, Case ABA J 395 Opinion Court Skolnick, supra, 70 findings, verifying polygraphic concerning 699, the accu LJ questions some Yale 714-721, Lykken, supra, figures, 70 LJ racy Yale 734, 738, apparent 725, and Am Psychologist 29 for this explanation of a rational lack scientific phenomenon.22 most is, results of

The fact extrinsic evi- by verified are not examinations dence,23 per- no studies there are scientific purport which polygraphers other than formed of verification. means to demonstrate scientific for much of responsible This factor alone has been poly- outside the anti-polygraph sentiment profession. graph recognize that there

Reid and Inbau themselves or devel- other evidence may never be confession Inbau examiner’s conclusion. oped support A Reliable Technique: Reid, The Lie-Detector & Aid, 470, 472 Investigative and Valuable 50 ABA J Wilson, (1964). F Supp United States v 361 1973). (D Md, Most studies have been 513-514 psychological with few polygraphers, performed by validity other studies available scientific "because of the polygraphic investigation, partly against the results irrefuta- difficulty checking facts”, Against The Case Burkey, ble extrinsic (1965), and perhaps, Polygraph, 51 ABA J lack of funds rather than partly, because "lack of the Scientiñc Evaluation Levitt, of interest”.24 description Appendix works. B for brief how the See special cases are record in this case indicated most verified, clarify used on did not the method never record those which were verified. might possibility Adminis be a Law Enforcement Aid One well compile designed, just study not tration-funded statistics, which would verify operation polygraph. statisti Mere but to field sufficient, usually again lack for their cal studies are not of weakness verification. however, police may, from There be some extrinsic verification 400 Mich op Detector”, "Lie 40 Iowa L Rev 440 One text, well-known but by polygraphers by psy states, "No chophysiologists, forthrightly adequate ** * evaluation of the validity 'a way lying’] yet scientific to record is availa [as Sternbach, ble”. Greenfield & Handbook Psycho- physiology, p

Thus, accuracy figures claimed in the polygraph must be considered with these limitations in mind:

(1) They reported are by polygraphers.25 investigation. example, below, For the fifth column in the chart "Reported Guilty provides some Confessed” measure of extrinsic support: PERIODIC REPORTS FROM POLICE RE: POLYGRAPH (Total Subjects: 7622)

EXAMINATIONS Trovillo, Credibility, Scientíñc Proof of 22 Tenn L Rev (1953). (Data computed by writing police letters about cities.) departments Rev 759. The author information chart is an graph ported 41.7 principal Trovillo, United States L Tenn acknowledges important that "some of the most validity reliability However, missing”. as to this interesting poly- demonstration of the usefulness of the investigative Kg., Michigan as an tool. State re- Police percent "Reported Guilty reported of a Confessed” out percent guilty. reported only verify 25 The examiner this case he was able approximately giving 95 percent of the examinations he made. has Without details, these, reported "something more he that of better than percent” developments. were consistent with later claims, evaluating Such made in the context of the difficulties of polygraph, weighed against competing must also be such conten- Court (2) They largely are unverified by extrinsic evi- dence.26

(3) There appears significant have been no scientific studies other than opera- tors purporting to demonstrate such accuracy.

(4) There appear to be no techniques substantial developed polygraph profession outside the which permit would scientific figures. verification these Further, even if grant polygraphers we true, their accuracy claims are we must confront is, all, the question of what after being analyzed. The operator prove subject] "cannot that he [the truth, telling the but that he is telling what degree percent”, that "the Burkey, tions of success is close to 70 supra, leading polygraph claiming 51 ABA J and that "a firm accuracy verify only Note, judgments”, 95% could of its 18.9% Evolv ing Proof, 679, 690, (1968), Methods of Scientific 13 NY L Forum fn 12 citing Hearing Before the of Subcommittee the Committee on Govern Operations Representatives ment of the House of the Use of [on the Government, Polygraph] by 1, Cong, Sess, pt p the Federal 88th 2d 32 (1964). Inbau, however, report percentage Reid & that the of known errors technique with the in the & laboratories of John E. Reid Associates is percent. diagnosis "less than 1 Of the remainder no at all is attempted cases, percent in about 5 of the because of such factors as physiological psychological impairment subjects.” the Inbau, or Reid & Deception, p Truth and proponents report accuracy ranging percent Other from 75 to 96 percent. Forum, 690, 13 NY L fn 12. 26 problem evaluating polygra One involved in the statements of phers comparing laboratory that these would involve studies. The difficulties of laboratory closely up field and studies are bound with the problem test and the field, suspect’s of in motivation: the the concern about the consequences positive of a evaluation are obvious. Green Sternbach, p many completely field & 752. While not will subscribe to judgment "[laboratory provide adequate the that studies cannot estimates”, validity try, Lykken, Psychology and the Lie Detector Indus 725, (1974) Psychologist (emphasis original), 29 Am 734 the problems comparability question obvious with make the validation urgent. even more Obviously, developing addition the difficulties of extrinsic conclusion, support polygraph problems the evidence other probability "false-negatives” verification in the field include the results, challenge verdict, jury although will not legally and that a conclusive, scientifically is not a controlled means of verifica- tion. 352 400 Mich 398 op Belli, & truth”. Streeter he believes Detector, L Vand Rev The Lie Degree’: 'Fourth Note, Problems Remain 549, (1952), cited Accepted” Polygraph, ing Generally for the (1973). 385, 375, L Rev fn 94 B U agree: Thus, of the device proponents even the witness who will not detect "[T]he fact, may misstatements makes honest detect the hardened recognizes no re- who individual codes or standards of sponsibility to moral to conform Richardson, Evi- Modern Scientific community.” (2d ed), 10.3, p 310. dence § other addition, many unlike polygraph, In judgment for its devices, on examiner solely relies value. of "lie detec opinions, results

Without examiner the results meaningless. While tor” tests are graphs, polygrams, are recorded examination is made or falsehood veracity the determination interpreting both of the examiner’s as a result of the behav or her evaluation and his light ques in the tested person ior of the Nose, 48 NY New Pinocchio’s Note, tions asked. them Reid and Inbau UL Rev important factor single most selves state interpre testing procedures assuring proper Inbau, Reid & examiner. tation is discussion, Hen Deception, p 235. See Truth and State, 45; 230 P2d derson v Crim Okla Wilson, (1951);27 United States Supp 361 F (D Md, 512-513 1973). 27 process reading E.g., considerable of the charts involves "The may possibility

interpretation, biases the examiner’s and the Urquidez, United States v cannot be discarded.” his conclusions affect (CD 1973). Cal, Inbau, 1363, the most Supp one of 1367 Fred 356 F only reported polygraph, 20 proponents in 1964 that active of polygraph operators the time calling at percent themselves those of Note, Emergence Polygraph at actually qualified. The of the were (1973). 1120, 1124, Trial, article L fn 23 A classic Rev 73 Colum 399 Opinion of the Court examiner, a Without even capable totally effec- tive polygraph worthless. would be untrained,

"An inexperienced examiner is about as incapable detecting deception of with a aas layman diagnose is to a heart condition with a stetho * * * scope Wicker, cardiograph or a .” Poly The Evidence, graphic Truth Law Test and the of 22 Tenn L (1953). 711, Rev

This on dependence operator extreme emphasized by studies indicating successful tests vary experience with the directly The of Reid, examiner. Horvath & Reliability Poly graph Diagnosis Examiner of Truth and Deception, (1971).28 276, J Crim L C & P S It is also suggested that recognize a trained examiner can abnormalities which might affect test results.29

There is a question whether one examiner will arrive at the same conclusion as another from the first examiner’s test records. Examiners testifying in the instant case said this was the usual result. Bersh, But see A Validation of Polygraph Exam iner Judgments, 53 Applied J Psychology 399-403 early polygraph pioneer, Keeler, by emphasizing Leonarde concluded importance having only persons "the operators well trained approach investigation prove must be stressed. This criminal can dangerous Keeler, the hands the untrained.” A Method for Detecting Deception, (1930), quoted 1 Am J Police Sci in 3A (Chadbourn Wigmore, rev), 999, p Evidence § study only comparison graphs, experienced In a based on percent inexperienced examiners were correct 91.4 of the time. The percent succeeded 79.1 of the cases. 29E.g., positive” may a "false irregu due obtained to undetected disease, pressure, respiratory disorders, lar blood heart extreme nerv ousness, anxiety, anger, Decep Highleyman, or nervous tension. The IQ (1958). Certainty Detector,” Hastings tive of the "Lie LJ 60-61 however, It is maintained that examinations tend err more finding guilty subject innocent, finding side of subject guilty than an innocent Reid, lying. Reliability Polygraph Horvath & Diagnosis Deception, Examiner of Truth and L C & P S J Crim 276, 279 352 Mich Opinion the Court supra, Psychologist 29 Am

(1969), Lykken, cited in The 704; LJ Note. supra, Skolnick, 70 Yale 735; A Technique: Analysis, Selective Polygraphic (1971). 330, 335 L Rev Drake maintain, too, that no one can polygraphers The However, this. dispute others "beat” the machine. initially found that Inbau and Reid themselves especially neurot- suspect, in psychopathology difficult. Lev- detection made psychopaths, ics itt, the examiners supra, 40 Iowa Rev L 451. While consider did not this in instant case testifying remains controversy significant problem, and mental abnor- physiological certain whether results, without affect test may materially malities e.g., See, Note, being examiner. detected 36. Henderson v supra, 20 Drake L Rev fn 45, 51; 230 P2d 501-502 State, 94 Okla Crim factors well within may This include even toes,30 flexing such as subject, the control of the drugs. It demonstrated taking certain has been or ineffective, technique renders the that habituation train- it been that biofeedback suggested has machine. to "beat” the ing possible make may Sternbach, 776-779. pp See Greenfield & opposed which original publication Inbau did so largely the admission competence of exam- of concern about because part such a substantial operator plays iners.31 The designed polygraphs to detect such have devices which are Some muscular exertions. "eighty people percent of In Inbau stated that Professor up we feel are tests do not measure to standards who administer Note, years later, supra, & required.” L 692. Two Reid 13 NY Forum Deception, p suggested, in Truth and 257: Inbau (2) "(1) possess college degree. he has examiner That That internship experi- training under an six months of received at least enced, competent with a sufficient volume examiner examiners supervised frequent testing in actual case situa- to afford case work (3) years’ experience as a the witness have at least five tions. specialist That (4) the examin- the field of examinations. That op testing procedure, in the formulation of questions subjective evaluation of and the subject, reading graphs, to the addition disquiet obviously this portance well-founded. The im- pretest interrogation

of the and the lack procedures, today, of even make standardized such significant. despite progress, concern still So real appear goal high does not of uniform the and competence yet has been reached. Academy Polygraph

The "American of Examin purposes ers formed with the avowed of train ing experts gaining widespread recogni and more profession”. Comment, tion for the Evidence: Lie Stipulation Detector missibility of Prior Tests—Effect on Ad Results, 527, of 18 U Fla L Rev 532 principles For AAPE statement of see Rich (2d ed), ardson, Modern § 10.17, Scientific Evidence pp However, 332-335. even where there are statu torily-imposed apparently standards,32 the statutes require study psychology physiol do not of the and ogy, the two fields which seem to be most critical polygraph,33 Frye and the fields described in polygraph gen as those in which the must attain acceptance eral it is before to be admitted into evidence.

Further, even some courts which have admitted polygraph, recognize profession, the that "as a polygraphy yet has to achieve a uniform minimum competence”. level of v A Commonwealth Juvenile upon polygraph produces er’s be based records that he purposes.” court and which are available for cross-examination 32 See, e.g., Act, Polygraph Forensic Examiners et MCLA 338.1701 18.186(1). Note, however, seq.; Attorney MSA the has General licensing required psychological ruled that evaluator is used for is not where stress purposes deception verify other than to detect 1975). OAG, 1975-1976, (April No truthfulness. discussion, Trovillo, 763-765, supra, suggest See 22 Tenn L Rev ing training required. minimum academic desirable but not now Mich op (No 1), 421; 313 NE2d 124-125 365 Mass (1974) defendant where re (admitting polygraph agrees abide given he a test quests ensue). wrote, Judge Joiner whatever results Ridling, technique theory, polygraph, "[W]ith outstripped general

the hardware seem to have development. Al- acceptance personnel becoming experts is though profession yet it has not professionalized, devel- standardized and police itself. Al- adequate ways and means oped adopted a code ethics and though profession has organization to professional machinery in the exists unethical, discipline unqualified and chance examiners impropriety part serious Supp F 96.34 must be considered.” decisive, critical, role of the even In view of the testing the and evaluation examiner in polygraph disturbing concerns to be and process, we find such easily not overlooked. Frye./Davis test es- find that the

We therefore tes- requisite polygraph standard for tablishes the no clear consensus timony and that there has been scientific part on the of the relevant established the demonstrate that community which would that the should of the art is such state trial in our state. be admissible at reliability the remain about questions Serious not are also operators. and of its We technique the has been validity of the device that the convinced established. satisfactorily case, well- in while full and record this

The documented, polygra- to demonstrate seems appointment qualified attempted examiners the to assure He verify experts power utilizing appoint by the Federal Court’s Supp 350 F 96-97. defendant’s examination. People v Barbara Opinion of the Court has phy Perhaps made substantial strides. even- tually, technique progressed the will have to the again consider the point may question. where we however, technique As present, is yet questionable satisfy high too evidentiary requirement of our state.

It is true that has apparently widely investigative by become used as an tool Note, supra, government35 private and by industry. Trovillo, 343-344; Drake Scientific Proof L Rev Credibility, 22 Tenn L Rev But the investigative differences an between use as and as an evidentiary great, device are and technique accepted for one purpose may yet limited suitable for in the Damage by use other. done false results in may be more correctible easily inves tigative recognized This by situation. the pros ecuting attorneys opposed who in admissibility case at bar in the face of the documented use of the polygraph by prosecutors in the investigative phase. 35According article, prosecutors to a recent law review in several

jurisdictions engage pretrial agreements prosecutions to withdraw "passes” "fails,” polygraph. agree if defendant If defendant usually pledge plead charge ment not includes a to either to a lesser or to object Note, Emergence to the of the admission test at trial. The Trial, Polygraph 1120, 1127, at 73 Colum L Rev fns 41-42 (1973). (1975); 306, Reagan, 308-311; See 395 Mich 235 NW2d 581 State, (Fla 1969), App, Butler v 228 So 2d 422-424 requiring bargains kept. such to be However, prosecutor County supplemented the Oakland the record advising January in the instant case this Court as of basis; polygrapher regular did not office results were used at the initial retain on a complaint warrant-issuing stage, information-issuing however, process; and not at those initial stages, polygraph cent of the substantially per results are used less than one complainant cases. tests are administered to both respondent. also, Hearing See Before the Subcommittee of the House Committee Operations Polygraphs on Government on Use of "Lie as Detectors” Government, (1964), by Note, Cong, the Federal 88th 2d Sess cited in Trial, Emergence 1120, Polygraph of the at 73 L fn 3 Colum Rev (2d (1973); Richardson, ed), 10.2, 309, fn 6. p Modern Scientific Evidence § 352

404 400 Mich Court of the Frye/Davis that the stan- We found have also one to use determine is appropriate dard the testimony. basic Very admissibility validity theory, and relia- concerning the questions bility satisfactorily have been of the device answered, they that it is demonstrated and until the new tests of been, it is to follow have unwise some of the federal by admissibility recommended poly- use of permitted district courts which have graph testimony. while scientific polygraph,

The fact that the evidence, evidence. from other scientific is different to measure —the truth attempts it quantity "[T]he * * * directly related fulness of a witness —is Note, The Emer process”. of the trial essence Trial, 73 Colum L Rev of the at gence Polygraph (1973). 1120, render the evi This does not others, but does serve dence less admissible than of the rationale under to underscore at least some much for as scientific lying judiciary’s concern polygraph’s possible concerning consensus by on a fear that value. Further concern is based run close to polygraph, dangerously use we a trial substituting by by jury.36 trial machine for treating possibility jury persists of the The concern proof guilt may give or innocence evidence as conclusive Davis, overbearing prejudicial effect. such evidence Mich problem by (1955). 348; Judge Ridling Joiner in resolved the 72 NW2d 269 jury. maintaining intelligence faith in the of the modern Kaufman, hand, Stromberg, Judge in United States v other (SD 278, NY, 1959), admissibility Supp felt of such evidence 179 F overturning system. jury would be tantamount bringing important jury its function served "The most it, upon testifying experience in to to bear witnesses before accumulated order to * * * falsity. prepared distinguish truth I am not from yet jury system rule that the is as outmoded.” Smith, 461, 463-464; also, App Ohio 178 NE2d State v See upon wrote: "The exclusion seems to rest more McCormick weight give judicial to the that the trier of fact will a opinion, estimate opinion be almost infallible because and a demand (2d ed), However, he p it so.” trier will think Evidence § said, reliability of in our hearts so confident of the "We cannot also v 405 of It therefore to adhere to a best standard which in permits experts effect who know most procedure experiment about a and to study it. effect, In they jury, form a kind of technical which must first pass the scientific status of a proce dure before the it in lay jury utilizes making its findings of fact.37 In of the polygraph, the case such forbearance proved appropriate, has for the dis pute value, concerning its which apparently per sists in the scientific community, should not be prematurely decided in the Note, courtroom. Evolving Proof, Methods of Scientific 13 NY L (1968). 679, 683, 18, Forum fn It is argued principal that "the role of a trier of graph, when a adverse where the defendant was in which innocent. In Kenny?” based on common sense and the ment, pp 369-370. Edgerly not Rev mony, infallibility, the claimed that a 364, 379, 380, afford to tion should not be the ordinary Md, dence: An "Generally Accepted" Polygraph, The Examples Part of the appropriate respond. "[T]he present system resolving 1973). 202, jurors cross-examination and inferences from myth persists despite the classic (Docket subject experience.” six reject 228-229 your opinion, Analysis jury are jurors responded affirmatively. considered essential Forkosch, in response fn reason for this detector will People Kenny, of twelve men is scientific aid in the task.” McCormick mental set in the tested 2; offered, moreover, lies. No (1939), quoted polygraph experts example occurring 324 P2d test results. lightly exposed 59459) Skolnick, evidence was Lie-Detection, United States v to the v The Lie Detector and the conclusive acquitted ring (Mass, problem ordinary experience. question, the fact that Scientifíc 329 P2d 167 NY Misc designed Note, bells or set off alarms 53 B U L Rev conflicts in by polygraph proof People Schiers, Middlesex to drastic revision. Evaluation of 70 Yale LJ admitted, is indeed in Commonwealth v no doubt lies with the Wilson, in Problems subject. "was the 'lie detector’ testi 1, 2, of the innocence or to evaluate jury disregarding spite Theory Four said fn 2 proponents 51; testimony by impeach- demeanor, 361 F Superior 375, 694, found the defendant beyond of the admission of examiners to create Courts, 3 NYS2d 348 (1958) Remaining and Scientifíc Evi- This historic 704-705 Supp 160 Cal * * * no, (1st automatically the realm of (dissent). Court, 1961), that we can and two did have never NY U ed), testimony George (1961). myth guilt App for the (1938), § func poly 174, L 2d (D Q O 400 Mich 352 Opinion op the Court

fact any the search truth and reasonable procedure or the court method to assist for truth Tarlow, should be Admissibility of employed”. Pol ygraph in 1975: An Aid in Evidence Determining Credibility Perjury-Plagued System, 26 Hast ings 917, 919-920, (1975), LJ fn 21 citing People v (Cal Cutler, Ct, Super Angeles Los County, Docket A176965, (BNA) No 6, 1972), L Nov 12 Crim Rep (1972). first, 2133 But it must be ascertained that procedure will indeed assist finding the end, truth. To this Davis/Frye test was devel oped, and to this end Michigan our courts shall retain it. Questions

VII —Some Other About Polygraph Even if the Frye met, criteria had been or if another test adopted were which polygraph testi- mony could satisfy, the amici have raised some philosophical and constitutional questions concern- ing the wisdom of admitting this evidence. While to, is not necessary and we do not resolve these today, it is wise to at least recognize that these questions exist.

Thus, example, the United Supreme States Court intimated California, Schmerber v 757, 764; US 1826; 86 S Ct (1966), 16 L Ed 2d 908 that forcing a defendant to take a polygraph test would violate the fifth amendment right against self-incrimination.38 It argued has been it is however, Ridling, suggested testify that defendant’s offer to further, right, may waives this testimonial. 350 F results not be Supp Contra, 339, Eyman, Supp Bowen v 324 F (D 1970). Ariz, eloquently argued poly It has been that use of graph policy privilege evidence violates these foundations of the against self-incrimination: agencies independent "1. To stimulate law enforcement to discover inquisitorial evidence to uncover offenders rather than resort to the many persons. examination of People v Barbara op impossible right where a waive this involved, because, examination since such tests unconscious, reveal the examinee never knows precise scope advance the of his or her waiver.39 Silving, Testing of the Unconscious in Criminal Cases, 69 Harv L Rev

Silving also brilliantly discusses a German case,40which a conviction based on reversed results of a polygraph test to which the defendant had consented. express While we no opinion whether, if evidence is scientifically keep police investigation "2. To meddling individuals free from probable unless there is cause to believe one has broken the law. preclude inquisitions person’s private "3. To into a life local * * * 'tyrants’ purpose for the of 'ensnarement.’ Dependence upon "4. confession at trials. Assuming percent "5. the detector becomes 100 accurate and its admissible, jury vestigial results are ant will become and the defend longer 'party’ will no be a since he cannot make a realistic open defense. The real case will be decided not in court but in the Schiers, laboratory.” People 981, 364, 379, App 383; 160 Cal 2d 324 P2d (1958) (dissent) (citations omitted). 329 P2d polygraphers unanimously agree While that a coerced test in valid, coercion, question may not be academic because of subtle means of development Note, techniques. or because of of new Nose, 339, See, e.g. Pinocchio’s New 48 NY U L Rev 351 Pinter State, 344, 347; 723, (1948), admitting v 203 Miss 34 So 2d 724 require confession secured a threat to a defendant to submit to a because, polygraph test "It would seem that his fear was not of the * * * capacity anticipate machine but of its to elicit truth. A desire to by voluntary disclosure, has its supposed revelations of a Tie detector’ origin defendant, in the mind and conscience of the and is not Approved, Richardson, an 'undue influence’ ”. Modern Scientific Evi (2d ed), 10.8, p dence 318. § 39Although referring possibility positive, to the of a false Justice Carter, writing Appeal for the dissenters of the District Court of California, observed, man, "An innocent convinced of the device’s accuracy, admission of result, anticipate involuntary would a favorable not an guilt. privilege He cannot be held to have waived his against Schiers, supra, 364, App an untruth.” 160 Cal 2d (dissent). 384; 329 P2d (I. "Judgment Bundesgerichtshof Strafsenat), 16, 1954, Feb. Entscheidungen Bundesgerichtshofes des in Strafsachen [hereinafter Bundesgerichtshof highest B.G.H. Bonn 332. The St.] is the court of the Republic Silving, supra, in civil and criminal matters.” 69 Harv L Rev fn 22. Mich Opinion op the Court valid it may be admitted with the consent of defendant, court, we observe according to Silving, reasoned that

"application test, of the in the course of which the unconscious mind of the accused answers involuntarily, procedural requirement violated both the of freedom of the accused to conduct his defense and his ethical independent status as an moral 'personality.’ For moral personality implies 'an essential and inalien- mind, able autonomous area of the which must remain ” inviolate also 689 procedure.’ in criminal 69 Harv L Rev (footnotes omitted). " The accused’s 'freedom of will with regard to ” decision and action’ thus any makes waiver regard to the polygraph untenable because precludes "freedom suspension deliberate of his con- sciousness purpose for the exploring his unconscious. The accused cannot standing waive this and this free- dom, for they are privileges granted him, but principles fundamental upon procedure, criminal based law, which must be observed in accordance with government the idea of of laws.” 69 Harv L Rev 688- Thus, the Court accepted contention, defendant^ based on a principle of the Constitution " Bonn Republic: 'Man’s dignity is inviolate. All state has authority duty respect and protect ” it.’ 69 L Harv Rev 688.

In our own country, considerations of fairness have significant also been in considering admissi- bility the polygraph. For example, one Court rejected polygraph evidence after noting, among reasons, other that only those defendants who "pass” admitted, examinations want them thereby making difficult for the indigent defendant to be Opinion op the Court similarly advantaged, primarily because he or she could not afford to take an examination in confi dence results knowing that need not be re vealed until they and unless were favorable. This is a significant advantage compared with the indi gent defendant who can take an examination only government’s with the financing and knowledge, and who must stick with results of that one attempt. Further, the Court observed that sense of security exhibited the defendant who knows he or she can take continually examina tions "diminishes the fear of discovered deception, upon which an effective examination depends.” United Wilson, (D States v 361 F Supp 1973). Md,

For an excellent marshalling arguments against use of the polygraph as substantive evi- trial, dence at see statement of Henry Dogin, S. Deputy General, Assistant Attorney Criminal Divi- sion, the Department Justice, in testimony be- fore Foreign Operations and Government In- formation Subcommittee of the House Committee (BNA) Operations, Government 16 Crim L Rep (1975).41 41 Dogin Mr. noted that the Criminal Division finds such examina investigative situations, tions particularly property useful work in a few limited "screening groups members of 'closed’ with access to embezzled, screening was stolen or as an informant prevent unnecessary investigative device to mant efforts and to test infor credibility.” policy against poly- Additional considerations raised admission of "(1) graph inordinate though significant, jury put examination results include these: that the will weight (2) testimony examiner; that, on the al- fingerprint expert usually of a ballistics or question you 'a demonstrated lie or truth to the "Did kill (3) invariably perfectly conclusive’; XT’ would that examination unilaterally by offered always results ble to him and his the defendant would be favora- opponent would not be able to examine him under lie-detector, the stand; nor cross-examine him should he refuse to take the (4) that, even where the defendant consents to take an exami- nation, while incarcerated the conditions under which the consent is given may producing obtained and the examination is be a factor

410 400 Mich 352 Opinion of the Court

The amici authorities which they and the be a rely suggest also may possibility there matters, bogging with collateral per down trials haps polygraph,42 in a trial of the or resulting may battle of note there be a experts.43 They sixth involving right problem amendment to con impossibility frontation of the because cross- There is also the examining possi the machine.44 bility of a if hearsay problem polygraph evidence used prove the truth of the statement made Note, The Poly by during the test. subject graph: Acceptance, Scientiñc Judicial v 27 U Mi (1972). Contra, 254, United ami L 259-260 Rev States v Ridling, 350 F Supp merit,

Such arguments varying are of but there is neither the need to decide these nor today Indeed, record help before us to us do so. perhaps is most useful to observe that such serious serve, else, questions nothing if to reinforce the propriety high of the standard of admissibility required of the polygraph. (5) defendant; presumption results unfavorable to the may by weight likely innocence be threatened the inordinate to be

given tion results are failing polygraph to take a examination once such examina * * * ”, Note, generally admitted Problems Remain ing "Generally Accepted” 375, Polygraph, for the L 53 B U Rev (1973). prediction polygraph The that admission of the would lead to a confusing courts handwriting experts their determine and experts battle of the was dealt with one of the earliest admitting polygraph Noting evidence. that "the deductions of * * * psychiatrists and of are not at all uniform evidence, jury is received in and it is left to a which, either, expert experts they going if are to believe (1938). 51; accept”. People Kenny, v 167 Misc 3 NYS2d judge during making This was a concern of the trial who sat special of the record. objection completely This misconstrues the nature of which, seen, testimony polygraph expert. really opinion as we have of the can, course, Note, expert be cross-examined. However, supra, 48 NY U L Rev 350. our own Court has noted there possibility credibility is a credibility that the than the examiners rather of witnesses would become at trial. the issue Davis, 372; 343 Mich 72 NW2d 269 People v Barbara Opinion of the Court Polygraph VIII —Use at New Trial Motion Our conclusion thus far is the state of the poly- art does not the introduction of warrant graphic tests in a into evidence trial. But question precise us is different. We before are judge may asked whether a consider tests in a trial on motion for new the basis of newly specifically, discovered evidence. More issue in this whether case is tests could be used to of a bolster the new witness (the defendant’s test is immaterial own since he already jury rejected had at trial and the testified testimony). his proceedings short,

In the the character of on a newly motion for new trial because discovered significantly pro- so evidence ceedings different from the permit polygraph at trial toas the use of deny tests in the one and its use in the other? procedure The answer the is that at trial and at post-conviction hearing a for new trial is different significantly procedures signifi- so. The are cantly purposes signifi- different because their are cantly purpose different. The a trial is to deter- guilt mine the or innocence of the defendant. The purpose post-conviction hearing of a for a new suggests, is, trial its name action to deter- mine whether there should such be a trial. It is a preliminary, procedure. not a final implication

The of this difference is basic. Since guilt issue, the defendant’s or innocence is not at procedures permissible some are which would not acceptable example, be at trial. For the motion argued may affidavits, which, on the be basis of possible course, at would be trial. It does not guilt determine the defendant’s or innocence. question whether, The arises therefore under Mich Opinion of the Court to actual preliminary post-trial these conditions his or trial, her sound the exercise judge may guided be in the exer- discretion as to whether of polygraph results of that the cise discretion at words, this may judge stage In test. other similar to that exercise discretion prior trial going often exercises before which prosecutor trial, the results a voluntar- namely consider taken test? ily polygraph a post-conviction judge

In our opinion newly on for new trial based on hearing a motion her con- may his or discretion found evidence If of a examination. polygraph sider results it must judge chooses to consider such results enumerated condi- under hereinafter certain tions.45

(1) tests are polygraph The of the offered results on behalf of the defendant.

(2) The test taken voluntarily. (3) qualifications professional poly- approved. graph examiner are have done so Some other states which considered issue have only evidence would be in the of whether itself context at a new trial. However, today decision our based admissible precisely trial and examination, post-conviction for a new difference between a motion If the evidence is the trial itself. new would inadmissible at and would this of course be trial Thus, granting v be a basis for a new trial. in State not sufficient (Fla Brown, 1965), App, 177 So the court to have 2d 532 was held grant appropriately of its discretion to a new trial on the basis exercised given stipulated-to polygraph tests to defendant to confirm his alibi passed out two of three tests. So 2d 532. The defense. Defendant court, however, general admitting poly on Florida’s rule of relied graph parties stipulate. so 177 So 2d tests when both (SD contrast, Stromberg, Supp v F In in United States NY, 1959), rejected polygraph the on a Court the use of evidence trial, a new because the evidence would not have been motion admissible defendant’s which he other new evidence. trial, polygraph simply supported at trial. The results of the conspiracy story not of that he had been involved the convicted, and or had did not relate to witnesses been new of a To have made a difference in outcome the polygraph evi would have to be admitted into test itself This, Accord, prepared v do. State the trial court to dence. Scott, 426, 434; Kan 502 P2d Court

(4) The polygraph equipment quality of approved.

(5) approved. are procedures employed (6) or the court prosecutor may Either ask the subject examination be examined by polygraph operator court’s or asked operator may choice such be to review original operator, the offered data with the or both.

(7) The test results shall be considered with regard to general credibility of the examinee not as to any the truth or falsehood of particular statement.

(8) The affidavits or of the polygraph operator shall be a separate record and shall not subsequent used at any way any trial.

(9) A judge granting a new trial on the basis of polygraph tests shall not thereafter act as trier of fact in that may preside case but jury. with a A substitute judge as trier of fact shall not be privy to the polygraph results, examination or to the fact that a polygraph examination was taken or any way was in involved.

By permitting such limited of the polygraph, use we are operating within prescribed well the limits Further, state the art. prema- we avoid turely considering those policy questions which . inevitably accompany use such evidence at trial.

The advantage of permitting the to be used for such limited purposes is two-fold:

(1) gives It us poten- opportunity use this tially useful strictly device under controlled condi- tions, thereby permitting a "track establish record” in our state and help provide some missing data.

(2) is, All does in this context Mich the of Court effect, whether evidence help judge decide provides it Thus good jury. to the enough go is case, arguing in their individuals some assistance making a assistance gives judge a some decision, polygraph a deci- casting without sive role.

IX — Conclusion is The The obvious. attraction legal any dispute. credibility issue of is central once and for A device which to determine purports is lying who truth and who would telling all justice. our system be of tremendous service to is, know the extent of the fact we don’t totally If we foreclose ad- polygraph’s usefulness. other we never know. On the missibility, may hand, would be unwise when experimentation hinge directly might individual’s life freedom device. questionable effect at trial of a for purposes Admission of evidence post-conviction determine a assisting judge motion matter. The trial orderly different concluded, already and the finder process has been fact within a consti- judgment has rendered its system. adversarial tutionally structured are within dif- hearings Post-conviction handled ferent trials. The for exam- judge, constraints from certain data which would be inadmis- ple, may use Yet rendering sible at trial to assist decisions. has been process because the adversarial precisely job, post-conviction has its completed and done can be conducted stage judicial proceedings under different rules. slightly

Therefore, post- at a admission of not set hearing for a new trial would conviction trial, it would at but pattern admissibility Opinion op the Court provide opportunity an test to effectiveness of the polygraph adding at same time while the another judge. to tool assist the particularly

The is need for such assistance presented type by evident in the of situation the Traditionally, instant case. the of re- canting suddenly discovered witnesses has been highly suspect, largely impossible it because is to being poly- determine when the truth is told. The graph either; won’t do this not even its most proponents might ardent would contend. But it so help. judge

Further, the decision would be followed a trial at which the finder of fact opportunity would have an totally independent a to render decision any poly- influence of the graph test. post-conviction

Thus, trial, in a motion for a new polygraph may the experimental be in as observed close to an possible

status as is within the ac- judicial process, only way apparently tual it possible truly gauge will hold, be its worth. We polygraph may therefore, results be consid- judge, ered, within the discretion of the to enable a post-conviction hearing decision to at be reached a for new trial. safeguards present. must, course,

Certain be Validity testing machine, the test and competence condition, and of the examiner must be established. polygraph presented

The tests must be on behalf constitutionally of thé so defendant that a satisfac- tory may waiver is established. As a new trial only upon presentation genuinely awarded new meeting supra, evidence certain standards, strict support results must be used to credibility sup- of new witnesses or to otherwise Mich op

port the finder of fact new evidence which already previous Thus, not reviewed. trial has purporting to demonstrate test story of fact has the finder al- defendant whose ready rejected telling actually the truth would satisfy be, This is as should the conditions. machine, truth not a jury already passed has collective wisdom of story. defendant’s appoint judge may the court’s own trial also expert prosecutor may request expert, or the merely examination, or another review conduct already taken. the results the test polygraph may the itself not be admit- Results of judge granting the so ted at the new trial and a may a fact at new trial finder of that not become trial. judge case, he had

In this trial assumed no the polygraphic evidence, to discretion consider reliability if he was with the and even satisfied poly- proficiency polygraph and the of the machine graph operator. This was error. just poly- indicated,

As we have we hold qualified graph properly may evidence be consid- judge, ered, to enable within discretion post-conviction hearing at a decision be reached trial. for a new this

We therefore remand matter trial permit judge discretion court to exercise his testimony to admit about to consider whether hearing post-conviction on a results in a provided trial, for he finds a motion proper new testimony laid foundation has been for such opinion. outlined this J., Levin, J., C. Kavanagh, with concurred J. Williams, of Jr., JJ.,

Fitzgerald, Moody, Ryan, Blair no of part took the decision this case.

Appendix A portions Lynn Relevant of Marcy concerning the examinations given in instant are summarized case below to appropriate procedures utilizing poly- illustrate graph evidence in a for a new trial: motion ques-

The examiner testified to the opinion given, asked, tions answers and his as to deception procedure truthfulness each. The question technique using used was a controlled types questions. three type question

One is the irrelevant to which the answer is obvious and which the examiner knows purposes comparison. in advance. It is used for example Michigan?” you is, An "Are now in type, question general The second of a broad question, nature, is the control or the "known lie”. subject presumed lying is either to be or it presumed ques- could be from the nature answering tion, that he could not be sure he was truthfully. Marcy explained purpose diag- its is for comparison helped nostic said basis and it also psychological during examiner achieve a set procedure. examination It enables the examiner to reading deception see what a like looks for a particular person. example you is, An "Did ever anything your steal of value in life?” type question, The third is the relevant or issue Marcy to which testified the attention of the indi- attempting deception vidual will directed be- greatest cause he or she finds that area of conse- quence. person The who believes or she he answering questions correctly the relevant or issue psychological will direct his or her attention and Mich Court of the poly- The questions. lie control or set toward the on whether is based operator's diagnosis graph on the con- stimulation greater there is emotional questions. trol, or on issue the relevant procedures was a in these used instrument recording machine four-stylus Keeler Polygraph, changes, movement respiratory upper and lower cardiovascular re- and responses, galvanic skin sponse changes. examinations, instant the prepare

In order reviewing the time spending Marcy testified interview case, pretest then had facts of the and history took a and in which he with Barbara background physi- his with Barbara discussed addition, attempted Marcy In cal condition. conference, that Bar- ensure, during pretest the particular the mutually understood bara and he purpose Another wordings questions. surprise the element

review was to remove The tests of Barbara distort results. might which involving one days, occurred on two successive charge, rape on the questioning primarily other, that of extortion. and circumstances the facts

Marcy testified proper subject case would be of the instant specified examination. He further whether, on examination is a test that such an the sub- reported, asked and specific questions he or she believes to be telling what ject truth. He also testified: conditions, as outlined in the record "With qualified part proceeding, of this and a made a

has been proper equipment subject, suitable examiner with a that has techniques, accuracy proper the use field, including myself, by examiners been found percent.” something plus side of 99 would be Opinion of the Court Marcy that Barbara concluded answered "each * * * questions listed truthfully relevant best of knowledge his and belief’. Marcy the results of reviewed Barbara’s poly- graph examination with two examiners Police, the Michigan for State and did the same change for that of The Metropoulos. proce- dure with Metropoulos was interview with the interpreter, briefing him proce- working dures which would facilitate with Marcy, working and question with him on structure so that they clearly conveyed could in Greek. Marcy also to assure the attempted court was not unusual conduct polygraph examina- through tions an interpreter. He concluded that Metropoulos told the truth on the relevant ques- tions in the examination.

Appendix B Polygraph How Works The polygraph has matured systolic since the blood measurement device in Frye was first used. Today’s machines measure changes, several pal- galvanic mar skin resistance skin response (GSR), Lykken, Psychology and the Lie Detector Industry, 29 Am Psychologist (1974), ab respiration, dominal thoracic respiration, pressure-pulse Reid, blood rate. Horvath & The Polygraph Reliability Examiner Diagnosis of Truth Deception, 62 J Crim L P C & S may Others add a Psychological Stress Evaluator presence records the of a low-fre component which quency speed diminishes stress. Lykken, supra, 29 Am Psy sounds under chologist 729. Most have device for recording activity, muscular added when it was discovered Mich op accuracy of affect the examinee could relaxing muscles unob tensing or diagnosis by Polygraphic Note, operator. served 20 Drake L Rev Analysis, Technique: A Selective (1971). 330, 331 that he awareness suspect’s

The is that a theory over being with concern combined lying, or she is lie, emotional disturbances create caught a physiological changes into which are transformed polygraph. Reid & by the can be detected which Inbau, ("Lie Polygraph Deception: Truth and Detector”) 50, 196.1 Technique, pp following pre-test a oversimplification,

To risk administers interview, generally the examiner relevant, test, including irrele specific response test, vant, peak-of-tension A questions.2 and control alleged of the offense critical detail using some not know has been discov does suspect which the Note, supra, 20 Drake L Rev ered, rarely used. rate is 95 accuracy maintain the & Reid Inbau margin of inconclusive percent a 4 with percent, error. percent margin possible 1 results and a the errors tend to be a maintain They also guilty subjects, the lies of rather failure to detect Note, supra, 20 false-positives. finding than Lie Detec 334, Reid, citing Inbau & L Rev Drake (Baltimore: Interrogation Criminal tion and Wil ed, 1953), 110-111, Co, pp 3d liams & Wilkins apparatus theory and the behind are The main features (Chadbourn rev), 999, Wigmore, pp expressed 3A Evidence § well 949-953. pattern questions: might sample include this test A (2) "(1) you you you called John? Have had a smoke since Are (3) you Kieson last Do know who killed Frank this room? entered (5) (4) today? you anything you night? kill Frank eaten Did Have (6) night? you know where the went after he left Do killer Kieson last Kieson’s house? Kieson? (7) implement you kill know what any my questions?” was used to Do Trovillo, (8) you Scientific Have lied (1953). 743, Credibility, 22 Tenn L Rev Proof of Opinionby J. Coleman, Detector Technique: The Lie Reid, Inbau & A Aid, Reliable Investigative and Valuable 50 ABA J bar, In the case at the examiner testified percent his test was 99 accurate. This is consistent reported with results on the special results, however, record. Such have not been uni eg., United States v Wil See, versally accepted. son, (D Md, 1973), 361 F Supp 512-513 report ing range accuracy percent from to 95 percent. (concuring part, dissenting in J.

Coleman, part). We concur in that part of Justice Williams’ opinion which precludes the use of polygraph test trial, results in a criminal but dissent as to that portion which would allow such use in post-trial proceedings. Use of results introduces (all agree) unreliable but influential information. It could complicate, confuse and extend the pro- ceedings. It bring would closer the spectre "Big Brotherism”.

If experimentation in polygraph testing is desir- able, the experimenting place should not take in a court of law.

We would affirm the trial court.

I This produced case has an unusual alliance. As amici, the Prosecuting Attorneys Appellate Service (PAAS), Appellant the State Defender Office (SADO) and the American Civil Liberties Union (ACLU) agree that polygraph tests should not be in post-trial admitted evidence in proceedings. This unexpected unanimity alone any should check personal impulse to cause polygraph use of results court, at particularly stage development. this

Justice Williams believes "admission of the pol- 400 Mich Coleman, by J. hearing for a at a new trial ygraph post-conviction admissibility at would not set trial”. pattern whether question admitting The ACLU and SADO hearings post-trial at can be results trial. We separated during from admission share their concern. Call it what will —"a foot you door”, "a under camel’s nose tent” —limited general. admission become mate- may easily rial is so that introduction of even a unreliable small harm. quantity great could do mechanical,

We are dealing objective, with scientifically verifiable determinations. The poly- graph responses. machine records The deter- mination operator. argues is made PAAS obtaining the "most critical factor in accurate reliability results is the of the exam- pivotal iner”. "the role says SADO of the polygrapher’s process intuition in the test which distinguishes polygraph technique from other types of scientific evidence”. The ACLU notes "the possibility great inconsistency those many difficult cases in which admittedly results turn as much on the in assessing examiner’s skill whole testing reading situation as on his charts”. Justice Williams there are "serious results are not A

evidence. court should not admit them in evi- trial, dence during a court proceeding pre-trial, — post-trial. The results are so yet poten- unreliable tially so influential expe- that we cannot afford to riment with them. Opinion by Coleman, J.

II against progress experi- This is not a stand or introducing polygraph However, mentation. results proceeding experiment into different from criminal is an much preserving testimony tape on video computerizing Polygraph or court dockets. results findings truth, are viewed as determinations of yes guilty. no, false, true or innocent or products any These are the essential criminal proceeding. proofs Yet are that Ipso they facto, results are not reliable. should not be introduced. argument

The that a motion for a new trial requires proof lesser standards of than a trial experiment and, therefore, itself we should with admittedly evidence, unreliable source of unpersuasive.

Ill why poly- There is another reason courtroom graph orderly use is unwise. The administration of justice significance including is of us, to all of defendants. at tests, Introduction of even post-trial hearings, produce would another trial. polygraph operator person would be the tried. (or her) qualifications, His conduct, his his conclu- disputed. sions would be This is a natural result as depend upon operator’s the test results tech- nique, judgment. Although intuition and not dis- positive, "experiment” open this would also an- appeal. other avenue of

IV Finally, the ACLU raises an issue more human- juristic disturbing istic than but nonetheless. It Mi,ch Coleman, by J. impair human "the threatens says * * * * * * treating the defendant dignity tested in a labora- object upon, operated to be will either convict probed which tory, for evidence aside, foreign courts acquit Reliability him”. they because in- tests rejected polygraph have It upon privacy dignity. fringe an individual’s voluntary. the tests are Those say no answer Their suspect. refusing will be the tests it is even heard. before could discredited to an step the first unknown We see this as which, on begin journey may It destination. arrival, ever started. regret having we will

We would affirm. notes scien- * * * tific questions ability about to evaluate at Operators’ all”. appear "decisions to be highly judgmental and ad hoc”. He concludes "the technique yet questionable too high satisfy evidentiary of our requirement state”. agree. Polygraph We competent

Case Details

Case Name: People v. Barbara

Court Name: Michigan Supreme Court

Date Published: Jun 13, 1977

Citation: 255 N.W.2d 171

Docket Number: 54774, (Calendar No. 15)

Court Abbreviation: Mich.