Admissibility of Lie Detector Tests in Criminal Cases: A Legal Perspective, Slides of Law

Download Admissibility of Lie Detector Tests in Criminal Cases: A Legal Perspective and more Slides Law in PDF only on Docsity! NOTES EVIDENCE -ADMISSIBILITY OF LIE DETECTOR TESTS In the recent Nebraska decision of Boeche v. State' the defendant was tried and convicted of the crime of uttering and publishing two forged bank checks. A defense witness, a crim- inal investigator for the Nebraska Safety Patrol working in the capacity of polygraph (lie-detector) operator, testified that the defendant had voluntarily submitted to certain lie-detector tests. The defendant then offered the witness to testify to and prove the results of the tests. The trial court sustained an objection to the competency of such evidence, and the defend- ant appealed inter alia on the ground of the exclusion of this evidence. The Supreme Court of Nebraska -upheld the trial court's ruling, relying on an unbroken line of decisions holding that "as a matter of law" the results and interpretations of lie-detector tests are inadmissible as evidence. The concurring opinion by Justice Chappell, though agreeing with the majority of the court as to the correctness of the conclusion reached on the facts in this case, disagreed with that part of the opinion holding that "as a matter of law" the lie-detector "used for determining the truthfulness of testimony has not yet gained such standing and scientific recognition as to justify the admis- sion of expert testimony deduced from tests made under such theory."2 This opinion admitted that, on the facts of this case a sufficient foundation had not been laid to qualify the operator of the machine as an expert nor to submit the results of the tests as showing that the defendant was telling the truth when denying her guilt. But, the concurring opinion concludes, the results of the lie-detector test upon the defendant should not be excluded "if a proper foundation is laid whereby it would be established that the operator was an expert in that field, and that the apparatus used and the tests made thereunder have been given general scientific recognition as having efficacy."13 This is the first opinion on an appellate level in which a justice has expressly favored the admissibility of lie-detector evidence. It turns the key to the door which, if opened, will admit a long proposed, but consistently rejected, innovation 1. 37 N.W.2d 593 (Neb. 1949). 2. Id. at 597. 3. Id. at 598. WASHINGTON UNIVERSITY LAW QUARTERLY into the field of evidence. But the question of the admissibility of evidence "derived from" lie-detector tests is by no means a novel one. Text writers have pointed out that such evidence has been admitted in a number of unreported trial court cases where a proper foundation had been laid.4 An instance has been reported in which the results of a lie-detector test were admitted without objection on the part of the party adversely affected thereby where, prior to the tests, counsel for both litigants agreed and stipulated that the results and the testi- mony of the examiner as to their interpretations could be used in evidence.5 In an early Wisconsin case such an agreement was the basis for the admission of test results into evidence. The tests were given and expert testimony concerning the interpretation of the results was presented by Mr. Leonarde Keeler, one of the inventors of the instrument. The pertinent sections of the stipulation took the following form: 2. That the State of Wisconsin and each of the defendants hereby waive any objection which they might have to the admissibility in evidence of the results of such tests and the methods used in the administering of such tests and the experience with respect thereto. 3. That evidence so taken may be used by either party to be considered by the jury, together with all evidence in the case against each of such defendants upon trial of the charges against each of them. 5. That in addition to the graphs showing the results of such tests, it is expressly agreed that said Leonarde Keeler may testify as an expert as to the conclusions reached by him in the interpretations of such graphs.6 Where admissions and confessions were obtained in conse- quence of the use of lie-detectors, the courts have rejected any objection to the use of the instrument as a means of inducing such admissions and confessions.7 The opinion of Mr. Justice Chappell in the principal case relies heavily on the only other reported case favoring the admissibility of lie-detector evidence, People v. Kenny. Though 4. See Note, [1943] Wis. L. REV. 430. 5. 26 J. CRim. L. & CRIMINOLOGY 262-270 (1935). 6. State v. Loniello and Grignano, an unreported trial court case dis- cussed in 26 J. CnIM. L. & CRIMINOLOGY 262 (1935). 7. Commonwealth v. Hipple, 3 A.2d 353 (Pa. 1939); Commonwealth v. Jones, 19 A.2d 389 (Pa. 1941); De Hart v. State, 8 N.W.2d 360 (Wis. 1943). 8. 167 Misc. 51, 3 N.Y.S.2d 348 (County Court 1938). It should be noted that this was a trial court decision which never reached an appellate juris- NOTES A thorough review of all cases since the earliest decision in Frye v. United States" reveals that none but the already cited decisions have as much as permitted any variations from the established doctrine of the inadmissibility of lie-detector evi- dence. In Frye v. United States, decided in the District of Columbia more than a quarter of a century ago, expert testi- mony explaining systolic blood pressure deception tests was excluded on the ground that this type of scientific evidence had not yet been sufficiently established to gain general acceptance in the field in which it belongs. In State v. Bohner,5 ten years later, the offer of lie-detector evidence was again refused, the Supreme Court of Wisconsin relying almost exclusively on the decision in the Frye case. This result was obtained in spite of the fact that the expert witness was Prof. Leonarde Keeler, the leading authority in the field of lie-detection, who was ready to offer testimony as to the substantial accuracy of the ap- paratus. The court felt that the instrument had not yet pro- gressed from the experimental to the demonstrable stage. The same result was reached by the same court in 1943, stating no further grounds than the authority of its previous decision."6 The Supreme Court of Missouri in 1945 joined the ranks of opponents to the use of lie-detectors for the purpose of pro- ducing evidence, basing its decision primarily on precedent and further stating that although the lie-detector may be useful in the investigation of crime, and may point to evidence which is competent, "it has no place in the court room."'7 By 1947 scientific advancements and improvements had apparently not yet overcome the effect of the shadow which the 1923 decision had cast upon this type of scientific evidence. In State v. Lowry ' a trial court verdict was reversed on the ground that it was prejudicial to permit lie-detector evidence to be weighed by the jury in determining the guilt or innocence of the de- fendant. The court based its objection on the fact that the "practical effect of the admission of this testimony was to constitute a mechanical device * * * a sort of witness in absentia on the question of the defendant's guilt or innocence." 9 14. 54 App. D.C. 46, 293 Fed. 1013 (1923). 15. 210 Wis. 651, 246 N.W. 314 (1933). 16. La Fevre v. State, 242 Wis. 416, 8 N.W.2d 288 (1943). 17. State v. Cole, 354 Mo. 181, 188 S.W.2d 43 (1945). 18. State v. Lowry, 163 Kan. 622, 185 P.2d 147 (1947). 19. Id. at 627, 185 P.2d at 150. WASHINGTON UNIVERSITY LAW QUARTERLY The court felt that such testimony, if permitted, would impair the vital function of cross examination. But it is apparent that the court found a welcome crutch in the long line of decisions cited above, from which it did not seem willing to depart. "We are not ready to say that the lie-detector has attained such scientific and psychological accuracy . . ." or words to that effect have become almost standardized dicta in the de- cisions of the past twenty-seven years. The overwhelming majority of courts have closed their eyes and ears to the admissibility of lie-detector evidence. In the light of these decisions, what solution may be sug- gested to the problem of laying a foundation for the admission of lie-detector evidence? The Kenny case offers one possible answer. But, as has been pointed out, the application of the standards set in that case would make the use of the lie- detector impractical in the field of evidence. On the other hand, courts will not permit this type of evidence unless it can be clearly proved to them that the test results are accurate and that its operator has the scientific background and the tech- nological ability accurately to interpret the instrument. The Boecke case is significant in that the concurring judge advo- cates the admission of lie-detector evidence if the witness through whom the testimony is offered is properly qualified as a polygraph operator. This is an implied indication that he had enough confidence in the instrument itself to have accepted its results if the other requirements had been met. There is no doubt that the stringency of the requirements for a "proper foundation" will vary inversely with the degree of acceptance the instrument itself has gained as one of scientific and psychological accuracy. No doubt, the day has not yet arrived on which the polygraph is to take its place among the many other scientific devices which are playing so important a role in the proper admin- istration of justice. But there are steps which may be taken to hasten that day, to strengthen the small foothold which such decisions as the Kenny case and the Boeche case have given the polygraph in the field of evidence. While the scien- tists and technical experts are developing new improvements and increasing the efficiency of the instrument, its legal advo- cates can devise new methods and techniques of impressing NOTES upon the courts not only the tremendous advances which have been made in the science of lie-detection but also the great social and practical value which may be derived from its ap- plication for the purpose of obtaining evidence admissible at the trial stage. In criminal cases both the prosecution and the defense have sought to apply lie-detector evidence. In State v. Loniello and Grignano02 the parties were successful in their attempt to do so by a stipulation for admission of the evidence prior to the taking of the tests.2 This is an ample indication that the parties to an action have recognized the value as evidence of the results of lie-detector tests. One of the major barriers to the admission of such evidence has been the lack of availability of experts whom the courts will recog- nize as qualified to give the tests and testify to the results. This barrier could probably be overcome if the appropriate departments of the states would undertake to give special training to qualified persons and license them as operators. Surely the courts would not then require the witness to be a leading authority in the fields of psychiatry and physiology in addition to being an expert in the operation of lie-detectors. Compilations of data showing the high percentage of accuracy of these tests should be available and discretion should be used in applying the tests only to those subjects where accurate results can be obtained. Once the basic objections to the use of lie-detector evidence, as brought out by the decisions cited in this note, have been overcome and such evidence is admitted by the courts for some purposes, then the "foothold" will have become sufficiently secure to establish the polygraph as one of the scientific devices in the field of evidence whose universal application will be justified. Mr. Inbau, a noted authority on scientific He-detection, clearly summarized this conclusion by stating that "in due course of time, . . . the judiciary will absorb it [lie-detector evidence] as it has ac- cepted other scientific developments-but not without the same degree of caution. '2 SAMUEL A. GOLDBLATT. 20. See note 6 supra. 21. 26 J. CRIM. L. & CRMINoLoGy 262-270 (1935). 22. Ibid.