GARY WITHERSPOON, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Civ. No. 64290
Second Dist., Div. Two.
June 23, 1982.
133 Cal. App. 3d 24
No appearance for Respondent.
John K. Van de Kamp, District Attorney, Harry B. Sondheim, R. Dan Murphy and Donald J. Kaplan, Deputy District Attorneys, for Real Party in Interest.
COMPTON, Acting P. J.—Proceedings in mandamus to compel the Superior Court of Los Angeles County to hold a pretrial evidentiary hearing as a prelude to admitting certain evidence in a criminal trial. We grant the petition.
Gary Witherspoon (defendant) is awaiting trial on an information filed in Superior Court of Los Angeles County in which he is charged with eight counts of armed robbery.
In a properly noticed motion pursuant to
The trial court denied the motion and refused to hold an evidentiary hearing on the grounds that the results of the polygraph examination would be inadmissible regardless of what evidence the defendant might offer concerning such examination.
The trial court‘s decision was understandably the result of an unbroken line of appellate decisions in California restating a blanket exclusion of such evidence, absent a stipulation by the parties to permit its introduction. In short, the trial court‘s ruling was not an exercise of discretion but was simply a statement that it lacked any discretion in the matter.
Defendant petitioned this court for a writ of mandate to compel the trial court to conduct the evidentiary hearing. We denied the petition. The Supreme Court, however, granted a hearing and transferred the matter to our calendar.
After extensive review of the statute and case law along with defendant‘s offer of proof, we have concluded that the writ should issue to compel the holding of an evidentiary hearing. Of course the holding of an evidentiary hearing would be an idle act if the heretofore arbitrary and blanket exclusion of such evidence is to continue. Thus we have further concluded that upon a proper showing pursuant to the procedure
The myriad of cases following Frye, which have, in one way or another, addressed the question have generally grounded their exclusion of the evidence on ipse dixit statements that the “reliability of the results of a polygraph examination has not been established” and that “courts in all jurisdictions have consistently denied their admission into evidence.” (People v. Wochnick (1950) 98 Cal.App.2d 124 [219 P.2d 70]; People v. Adams (1960) 182 Cal.App.2d 27 [5 Cal.Rptr. 795]; People v. York (1959) 174 Cal.App.2d 305 [344 P.2d 811]; People v. Parrella (1958) 158 Cal.App.2d 140 [322 P.2d 83].)
In People v. Carter, 48 Cal.2d 737 [312 P.2d 665], decided in 1957, the California Supreme Court declared at page 752 “[polygraph examinations] do not as yet have enough reliability to justify the admission of expert testimony based on their results.”
In People v. Jones, 52 Cal.2d 636 [343 P.2d 577], decided in 1959, the court again stated at page 653 “The courts have consistently held that the results [of a polygraph test] are not such as to be admissible for or against the defendant because of a lack of scientific certainty about the results.”
In none of the foregoing Court of Appeal and Supreme Court opinions is there any detailed discussion of the basis for such statements. In none of these cases does it appear that any evidence was offered on the subject. This is probably explained by the fact, as evidenced by the case at bench, that in face of the widely accepted rule of inadmissibility any offer of proof on the subject would have been a futile gesture.
On the other hand it was observed in 39 Cal.L.Rev. 439, Status of Lie Detector Evidence in California (1951) at p. 441: “Despite the near unanimity of exclusion of lie detector evidence, close examination demonstrates that most courts have refrained from laying down a hard and fast rule against admissibility. Rather, they have rested their holdings on failure of the proponent to demonstrate that the lie detector has such a scientific standing that it would be error for the trial court to refuse the proffered evidence.”
In our opinion, the more serious defect in the later cases which have, with an almost “knee jerk” response, continued some 60 years since the original Frye decision, to label the results of the polygraph examination as “unreliable,” is that courts in more recent times have merely subjectively favored one side of a dispute in which there is a substantial and credible body of opinion on both sides of the question. (See People v. Adams (1975) 53 Cal.App.3d 109 [125 Cal.Rptr. 518].)
Before discussing the polygraph examination itself we first examine some of the general principles of the law of evidence as codified in California‘s Evidence Code to determine whether there is any statutory basis for a blanket exclusion of such evidence.
The Evidence Code enacted into law in 1967 was based on recommendations of the California Law Revision Commission promulgated after extensive study. Conceptually the Evidence Code, as a separate code, was designed to specifically articulate the rules of evidence for California courts. In most areas the Evidence Code was designed to preclude changes and developments in the rules of evidence except by legislative enactment.
“As a general rule, the code permits the courts to work toward greater admissibility of evidence but does not permit the courts to develop additional exclusionary rules. Of course, the code neither limits nor defines the extent of the exclusionary evidence rules contained in the California and United States Constitutions. The meaning and scope of the rules of evidence that are based on constitutional principles will continue to be developed by the courts.
“The proposed Evidence Code is to a large extent a restatement of existing California statutory and decisional law. The code makes some significant changes in the law, but its principal effect will be to substitute a clear, authoritative, systematic, and internally consistent statement of the existing law for a mass of conflicting and inaccurate statutes and the myriad decisions attempting to make sense out of and
Setting the tone for the rules of evidence in California is
Stated another way, the rules of evidence are essentially rules of exclusion rather than admissibility. All relevant evidence is admissible unless there is a positive rule of evidence which excludes it. (People v. Jones (1954) 42 Cal.2d 219 [226 P.2d 38]; 1 Wigmore on Evidence, § 10, p. 293 et seq.)
The Law Revision Commission‘s comment to
A trial court has discretion after a weighing process to exclude as “immaterial” otherwise relevant evidence which is deemed to be inordinately time consuming or prejudicial when compared to its probative value (
In this latter connection the code contains two basic limitations on the use of opinion evidence, which come into play after the proffered evidence has passed the tests of relevancy and “materiality.”
We present this rather lengthy and somewhat elementary description of the rules of evidence to demonstrate that the Evidence Code while providing for the specific exclusion of some types of evidence, contains no positive rule which provides a blanket exclusion of the results of a polygraph examination. In other words, assuming the relevancy and materiality of the issue to which the polygraph examination may be addressed, the Evidence Code contains no specific exclusion as “incompetent” for either the mechanics of the administration of the test or the opinion of the polygraph operator. The consistent and persistent rejection of polygraph evidence by the courts appears at this time to be based more on considerations of policy rather than any demonstrated lack of reliability or acceptance of the test. These policy considerations in turn appear to be based on the fear that evidence of the results of polygraph examinations will tend to usurp the function of the trier of fact, and that lay juries would tend to be overly impressed with the results of polygraph examinations. Whatever may be the validity of those considerations they are more properly matters for legislative rather than judicial determination.
When we consider the vast number of fields in which persons with some technical or specialized training are permitted to express an opinion (
Since the case law up to this point has, in our opinion, failed to adequately delineate just what it is about the polygraph that has evoked the antipathy which is reflected in the almost universal barring of test results from being admitted into evidence, we think it important here to analyze the components of the polygraph examination.
The instrument itself is designed simply to measure mechanical changes in four physiological activities; (1) pulse rate and amplitude, (2) blood pressure, (3) respiratory activity, and (4) galvanic skin responses. Those activities are recorded on a continuing graph in a manner similar to the tracings of the familiar electroencephalogram, or electrocardiogram.
We pause here to observe that there can hardly be any question as to the ability of the instrument to perform those functions nor of the general acceptance in the scientific community of these types of measuring devices.
The qualified polygraph operator is trained in the operation of the instrument, the correlating of the tracings to the particular questions asked, and finally the techniques of the phrasing and sequencing of the questions. Again there appears to be no logical or legal barrier to the operator testifying to his qualifications and describing the objective mechanical results of the test.
That latter type of testimony involves no opinion. The operator simply describes what he perceived, i.e., certain tracings on the graph corresponding with the asking of particular questions. The trier of fact can then observe what changes occurred in the tracings from question to question. Objective verification by certain known facts such as age, name, address, etc. (so-called control type questions) can be established without resort to opinion evidence and the trier of fact can compare reactions to those questions with reactions to other questions.
Whether that phenomenon is based on the existence of what is properly referred to as “conscience” or the existence of a natural fear of detection or whether the theory is valid are all questions which have their roots in the field of psychiatry or psychology, both of which disciplines have long been accepted by the courts as recognized fields of expertise. (People v. Davis (1965) 62 Cal.2d 791 [44 Cal.Rptr. 454, 402 P.2d 142]; People v. Gorshen (1959) 51 Cal.2d 716 [336 P.2d 492]; People v. Jones (1954) 42 Cal.2d 219 [266 P.2d 38].)
Here defendant has offered, if given the opportunity, to establish that a qualified polygraph examiner can express a professional, expert and reliable opinion concerning the analysis of the examination, based on broad experience in examining a large number of individuals and verifying the results against objective criteria. He also purports to offer the results of a number of studies demonstrating the accuracy and significance of polygraph examinations.
We can perceive of no sound legal basis for denying defendant the opportunity to persuade a trial judge of the expert qualifications of the polygraph examiner and of the validity of the basic premises upon which the examiner‘s opinion is based.
Without seeming to appear facetious we suggest that to a degree the underlying premise that deception produces physiological reaction within an individual, who is within normal range of intellectual capacity and character, is a matter of common experience. Who but the most virtuous among us can honestly say that they have never experienced the rapid breathing, sweating in the palms of the hands and the feeling of “flushing” in the face connected with an attempt to deceive in even the most innocuous of situations?
When we allude to persons of “normal” intellect and character we touch upon one of the arguments advanced in opposition to the use of polygraph examinations, i.e., that persons with marked character defects, such as sociopaths will not respond to the polygraph, nor will persons with gross psychiatric disorders. There are those who contend
Although proponents of the polygraph contend that an experienced operator can detect such problems and deal with them no one has contended that the polygraph is fool proof under all circumstances, but what scientific or technical process is?
It appears to us that the arguments for and against the use of the polygraph examination in evidence are simply matters of proof to be developed by the opposing sides. The conflicting evidence can readily be presented to the trier of fact to be dealt with under proper instructions and by the application of the general rules which govern the use of all types of evidence. In short, there is, in our opinion, nothing so unique about the polygraph examination that justifies the courts continuing to treat it as an evidentiary pariah.
Once the perceived novelty of the polygraph has “worn off” we are confident that lay juries will be able to treat and deal with that form of evidence in as judicious a manner as they presently deal with medical, psychiatric and other forms of technical evidence.
None of these aforementioned provisions nor any statutory provision of which we are aware provides a basis for simply, in all cases, excluding the use of the results of a polygraph examination and denying the party proffering the evidence an opportunity to establish its relevancy, materiality and competency. A judicial proceeding is supposed to be a search for the truth. Any evidence which will facilitate that objective should be accepted by the courts absent a constitutional prohibition, or a specific statutory exclusion.
The function of providing for the exclusion of certain types of evidence on the basis of form, lack of reliability or public policy, is one for
We are not unmindful of the fact that the use of the results of polygraph examinations as evidence may pose some procedural problems which will have to be dealt with. Those problems, however, can be resolved by legislation which either totally excludes evidence of the results of polygraph examinations or, on the other hand, establishes a procedure which prescribes when and under what circumstances such evidence may be used. Until such legislation is forthcoming, however, it is our opinion that evidence of the results of a polygraph examination can be dealt with under the provisions of the Evidence Code and the procedures which presently exist for other types of physical and mental examinations of individuals involved in litigation.
Let a peremptory writ of mandate issue directing the trial court to grant defendant‘s motion and to hold an evidentiary hearing consistent with what we have here stated.
Beach, J., concurred.
GATES, J.—I concur in my colleagues’ decision to the extent that it determines that in this instance the petitioner is entitled to the evidentiary hearing he seeks. I decline, however, to speculate what such evidence, when introduced, may or may not establish regarding the reliability of polygraph testing or its acceptance in today‘s scientific community.
I also deem it important to stress the most limited nature of the question presently before us. During his oral presentation before this court, petitioner‘s counsel emphasized the fact that petitioner (1) heretofore has offered to undergo further polygraph testing by “qualified examiners”1 selected by the People or appointed by the court, or both, and (2) stands willing to fully cooperate with any other orders that may be promulgated by the trial court to ensure the integrity, accuracy, and fairness of any evidence relating to such tests, including the one he has heretofore taken.2
It is, of course, well established that evidence regarding polygraph examinations is of sufficient relevance and probative value that it will be received in a criminal proceeding in this State if the parties have so stipulated. (People v. Trujillo (1977) 67 Cal.App.3d 547, 554 [136 Cal.Rptr. 672], and People v. Reeder (1976) 65 Cal.App.3d 235, 238 [135 Cal.Rptr. 421], and cases cited therein.) The only novel question to be resolved by the hearing to be conducted in this instance is: “Has the theory and practice of polygraphy today achieved that degree of reliability and acceptance that a trial court may now promulgate rules for its receipt even though one party to the proceeding, here the People, initially has declined to have experts of its choosing conduct appropriate tests of a witness for the other party, here the defendant himself, despite the fact such witness has manifested his willingness to submit himself thereto and it is agreed that the results of all such tests, will thereafter be admissible whether favorable or unfavorable to either side?”
In People v. Duck Wong (1976) 18 Cal.3d 178, 189 [133 Cal.Rptr. 511, 555 P.2d 297], our Supreme Court rather clearly indicated that, as with all questions regarding any potential field of expertise, defendants must, from time to time, and upon proper and timely showings, be permitted to examine into the advancements that have been made therein in an effort to establish that sufficient reliability and acceptability has been achieved to warrant receipt of opinion evidence regarding it. (See also People v. Adams (1975) 53 Cal.App.3d 109 [125 Cal.Rptr. 518].)
I agree with my colleagues that it certainly would have been preferable for the Legislature, rather than the courts, to have undertaken the type of lengthy and in depth analysis that must be conducted in order adequately and properly to explore and evaluate the myriad arcane nuances of polygraphy. In view of the many “battles of the experts” that now engage our courts and excite the interest of press and public alike, even the not overly cynical observer3 might be forgiven a small involuntary shudder of apprehension at the prospect of seeing yet another area of strife developed, particularly one that is to delve directly to the very core of every judicial proceeding, i.e., the credibility of witnesses.
A petition for a rehearing was denied July 19, 1982, and the petition of real party in interest for a hearing by the Supreme Court was denied August 18, 1982.