Boeche v. State

Chappell, J.,

concurring.

I concur in the result. However, I do not agree with that part of the opinion holding that as a matter of law the so-called polygraph or lie detector, here involved, “used for determining the truthfulness of testimony has not yet gained such standing and scientific recognition as to justify the admission of expert testimony deduced from tests made under such theory.”

The history of such physiological or psychological deception tests, its progressive development, scientific efficiency, and the question of the admissibility thereof, particularly in criminal cases, will be found in 34 A. L. R. 145, 86 A. L. R. 611, 119 A. L. R. 1198, 139 A. L. R.-1171, together with the respective annotations thereto, and supplemental decisions to date.

It will be noted that the first case, reported as Frye v. United States, 54 App. D. C. 46, 293 F. 1013 , 34 A. L. R. 145, decided December 3, 1923, involved defendant’s offer of an expert witness to testify concerning the result of a simple systolic blood pressure deception test made upon him prior to trial. The government’s objection thereto was sustained, upon the basis that such a test “for determining the truthfulness of testimony has not yet gained such standing and scientific recognition as to justify the admission of expert testimony deduced from tests made under such theory.”

Defendant therein was convicted, and upon appeal therefrom the court said: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somet *379 where in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be' sufficiently established to have gained general acceptance in the particular field in which it belongs.

“We think the systolic blood-pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.”

State v. Bohner, 210 Wis. 651 , 246 N. W. 314 , 86 A. L. R. 611, decided January 10, 1933, involved the rejection of an offer by defendant of like evidence involving a like test, to prove an alibi for defendant. Therein, after citing and quoting from Frye v. United States, supra, it was said: “We are not satisfied that this instrument, during the ten years that have elapsed since the decision in the Frye Case, has progressed from the experimental to the demonstrable stage. * * * While it may have some utility at present and may ultimately "be of great value in the administration of justice, it must.not be overlooked that a too hasty acceptance of it during this stage of its development may bring complications and abuses that will overbalance whatever utility it may be assumed to have.”

In People v. Forte, 279 N. Y. 204 , 18 N. E. 2d 31 , 119 A. L. R. 1198, decided November 29, 1938, after all the evidence was adduced, defendant’s counsel moved to reopen the case and that he be permitted to take defendant to a laboratory in another county, there to be examined under the pathometer, commonly known as a lie detector. In reviewing denial of the motion, it was said: “We cannot take judicial notice that this instrument is or is not effective for the purpose of determining the truth. Can it be depended upon to operate with complete success on persons of varying emotional stability? The *380 record is devoid of evidence tending to show a general scientific recognition that the pathometer possesses efficacy. Evidence relating to handwriting, finger printing and ballistics is recognized by experts as possessing such value that reasonable certainty can follow from tests. Until such a fact, if it be a fact, is demonstrated by qualified experts in respect to the ‘lie detector,’ we cannot hold as matter of law that error was committed in refusing to allow defendant to experiment with it.”

It will be noted that the court therein simply concluded that it could not, in the absence of competent foundation evidence, take judicial notice as a matter of law, that the lie detector did or did not possess such general scientific recognition as to justify the admission of expert testimony deduced from tests made under such theory.

In People v. Becker, 300 Mich. 562 , 2 N. W. 2d 503 , 139 A. L. R. 1171, decided February 11, 1942, defendant offered the result of a polygraph or lie detector test made upon him, which, upon objection by the state, was refused admission. However, in sustaining the exclusion, it was said: “We see no reason why, under the circumstances of this case, the result should have been admitted. There was no testimony offered which would indicate that there is at this time a general scientific recognition of such tests. Until it is established that reasonable certainty follows from such tests, it would be error to admit in evidence the result thereof.”

In the annotation, 139 A. L. R. 1174, speaking of the foregoing case, it was said: . “In this case, the test being offered by the defendant and objected to by the prosecuting attorney, the appellate court held that no error was committed in refusing to admit the results of the test in evidence. It should be observed that the court in this case, as is true of the court in People v. Forte (1938) 279 NY 204 , 18 NE (2d) 31, 119 ALR 1198 (rehearing denied in (1939) 279 NY 788 , 18 NE (2d) 870), merely held that such test was properly rejected in the absence of testi *381 mony indicating a general scientific recognition of such a test. Had a proper foundation been laid for its introduction into evidence, it is conceivable that a different determination would have resulted.”

In People v. Kenny, 3 N. Y. S. 2d 348, which People v. Forte, supra, did not overrule in principle, defendant prior to trial was subjected to a lie detector test at Ford-ham University under a modern triple-test machine similar to that at bar, designed for accurately testing human emotional reactions by graphically recording the increase or decrease of blood pressure, perspiration, and respiration of the subject while under examination.

In his defense, defendant offered the testimony as to the findings of the witness who asked the questions and operated the machine. Such witness was head of the Department of Psychology of the Graduate School of Fordham University, held a degree of doctor of physics from Georgetown University and one in philosophy from the Gregorian University. For seven years he was a professor of physiology at the Medical School of Georgetown University and had done extensive research work and private study in Europe, especially at the University of Vienna. His claim for scientific accuracy and reliability of the apparatus and tests resulting therefrom was based upon a study which covered more than 6,000 individual tests in which his findings were subsequently affirmed. He expressed the firm conviction, based upon evidence and investigations, that the tests, when properly employed upon those actually charged with crime, would prove 100 percent efficient and accurate in the detection of deception.

The state conceded the scientific value and practical utility of the apparatus and technique, but objected to evidence of its findings upon the grounds, among others, that the scientific principle involved in its use had not yet gone beyond the experimental and reached the demonstrable stage, and had not yet received general scientific acceptance. In doing so, the state relied upon *382 State v. Bohner, supra, and Frye v. United States, supra, both of which involved the results of simple systolic blood pressure tests as distinguished from the apparatus therein shown to have been perfected. The objection was overruled, and the court directed that the testimony should be received to be evaluated by the jury.

The opinion quoted from 2 Wigmore on Evidence (2d ed.), § 875, p. 237, App. 1, wherein it was said: “ ‘If there ever is devised a psychological test for the evaluation of witnesses, the law will run to meet it.’ ”

The opinion further said: “Objection to the use of scientific proof is not at all novel. At one time or another in their development testimony as to fingerprints, as to X-rays, as to handwriting, as to bullet markings and as to psychiatric examinations were all refused admission into evidence. * * * Their gradual admission into evidence came only after many rebuffs and rejections at the hands of various courts. Today their right to admission in evidence is firmly intrenched in our law. Yet the deductions of handwriting experts and of psychiatrists are not at all uniform, and we frequently have such experts testifying in our law courts and drawing conflicting inferences from their examinations. ■ Despite the fact that such experts frequently differ in their conclusions, their testimony is received in evidence, and it is left to a jury to determine which, if either, expert or experts they are going to believe and accept. * * * Both upon legal principle and sound reasoning, it would seem that the courts, if willing to accept and receive handwriting testimony, psychiatric testimony and other such expert opinion, should also admit in evidence testimony of the pathometer test and the results disclosed thereby when a proper foundation has been laid therefor.”

I agree that in the case at bar no sufficient foundation was laid to qualify the operator of the machine as an expert and that likewise no sufficient foundation was laid for admission of the exhibits demonstrating the recorded results of the tests to which defendant voluntarily *383 submitted upon request of county and state officials, who, as an inducement therefor, promised her a'release if the tests showed, as they concededly did, that'she was telling the truth when denying her guilt.

However, I am convinced that if such a foundátion were laid, as was done in People v. Kenny, supra, then the testimony of the operator and the results obtained by the tests would be admissible in criminal cases, such as. that at bar, wherein defendant had voluntarily submitted to the tests. That complicated and difficult questions may arise therefrom in the trial of cases should be no reason for the exclusion of such evidence. Modern court procedure must embrace recognized modern conditions of mechanics, psychology, sociology, medicine, or other sciences, philosophy, and history. The failure to do so will only serve to question the ability of courts to efficiently administer justice.

Be that as it may, in the case at bar, while the operator of the machine was on the stand, defendant offered in evidence the recordings which concededly demonstrated that defendant was not guilty. The State’s objection thereto for lack of foundation was sustained. Thereupon, without objection, defendant was called to the stand for the purpose of adducing further foundation evidence.

The record discloses that the State, upon cross-examination of her at that time, doubtless intended to and did adduce a reasonable inference that the tests showed affirmatively that defendant was guilty. The operator was then recalled, whereupon defendant offered to prove that the results of the tests given defendant showed a negative reaction upon questions and answers propounded in connection with the offense charged. Upon objection thereto by the State, the offer was refused.

In such a situation, defendant was entitled to rebut that inference by showing the true result of the tests, which indicated her innocence. The court’s refusal to permit the admission of such evidence, as I view it. *384 was prejudicially erroneous. See Burlingim v. State, 61 Neb. 276 , 85 N. W. 76 , wherein it was held: “It is error to exclude evidence the legitimate tendency of which is to put an innocent complexion upon inculpatory circumstances proven by the state; the weight of such evidence is for the jury.”

Therefore, I agree that the judgment should be reversed as was done by the majority opinion, but do not believe that upon a retrial the results of the lie detector test made upon defendant, under the circumstances in this case, should 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.