State v. Lyon

LINDE, J.,

concurring.

While I fully concur in the court’s opinion, a few words may be added to ask whether there perhaps are wider reasons for the result.

This court, like others, has rejected the use of polygraph evidence on grounds that this means of attacking or supporting the truthfulness of a person’s declarations is too unreliable, too prone to error and conscious or unconscious manipulation, to have evidentiary value. The court set forth the reasons for that conclusion in Justice Jones’s extensive review of the literature on polygraphy in State v. Brown, 297 Or 404 , 687 P2d 751 (1984). Today’s decision is based on the same premises and conclusion.

These are reasons enough for the present case. Yet it seems worth raising a question whether more is involved in the widespread uneasiness about electrical lie detectors, reasons that are masked by the common law courts’ characteristic professional emphasis on trial procedures and rules of evidence. In fact, the question whether more is involved than unreliability suggests itself in this case, because the holding *235 goes beyond normal procedures for excluding unreliable evidence over an opposing party’s objection and instructs courts not to admit polygraph evidence even without objection or when the parties expressly stipulate to its admission. These are extraordinary strictures against questionable evidence.

I think more is involved. I doubt that the uneasiness about electrical lie detectors would disappear even if they were refined to place their accuracy beyond question. Indeed, I would not be surprised if such a development would only heighten the sense of unease and the search for plausible legal objections.

Published accounts, not of record here, report that submission to polygraph tests is widely demanded in public as well as in private employment, not without resentment by employees. It was not only a concern about inaccuracy that caused the current Secretary of State to protest White House plans to demand such tests in a drive to discover and to inhibit unauthorized disclosures of information. 1 In part, of course, the Secretary’s protest and the resentment of many civil servants and private employees arise from the implication that their word may not be trusted; but trust, too, is not the ultimate issue.

There are many contexts in which one person — a lender, a reporter, or a careful police officer — does not take another’s word about an important fact at face value without checking the credibility of the speaker and the believability of the information against other sources. The principle is familiar in the law governing warrants for a search or seizure. See, e.g., ORS 133.545; State v. Montigue, 288 Or 359 , 605 P2d 656 (1980). Sometimes a person will be required to undergo a physical examination that may contradict his verbal assertions (for instance, that he consumed no more than two beers), or without even obtaining or considering any verbal *236 statements from him. ORS 813.100 - 813.160. That, too, may be resented, but it is different from a polygraph examination.

What is that difference? The heart of the matter, I suspect, is that the polygraph seeks to turn the human body against the personality that inhabits it in a way that other tests do not.

The polygraph differs in principle from other physical examinations. Tests of one’s breath, blood, or urine to detect the presence of illicit substances or a communicable disease may be perceived as an insult or an infringement of one’s privacy. They also may prove one a liar. But even when employed to confirm or to contradict a verbal assertion, the immediate object of the test itself is to determine an independently relevant fact, the actual condition of the organism. Whether the tested person’s stated belief is proved correct or erroneous is a secondary consequence, even when it is important.

The polygraph does not independently establish any past, present, or future fact. It purports neither to replace nor to supplement the assertions of the tested person with other evidence on the matter in question. The polygraph is indifferent to what the assertions are about and whether they are factually correct. As its popular name suggests, the lie detector only purports to detect whether a person is uttering a lie.

Beyond doubt that often is a useful thing to know. There is no general right to lie, as civil, criminal, and administrative sanctions in many contexts show, although it is interesting to recall that as late as the time of Oregon’s statehood it was disputed whether a defendant could be sworn to the truth as well as permitted to address the jury, see State v. Douglas, 292 Or 516, 534 , 641 P2d 561 (1982), (Lent, J. specially concurring), and knowingly false statements do not invariably forfeit the guarantees of free expression. Doubtless, also, it often is in one’s interest to be able to overcome suspicion and “prove” one’s truthfulness.

Legal systems have sought truthful testimony by various means. The solemn oath to speak the truth “so help me God” invoked religious obligation and fear for one’s soul. Temporal punishment for perjury was added when conscience *237 or fear of damnation would not suffice. Both forms of admonition prompt the witness as a free agent to choose truth over falsehood and its consequences. The law also has experience with compelling disclosure by turning the human body against the human will. For five hundred years torture was a judicially administered instrument of criminal procedure to obtain confessions when reliable eyewitness testimony was lacking, because no conviction could rest only on inferences from circumstantial evidence. See Langbein, Torture and Plea Bargaining, 58 The Public Interest 43 (1980). Even without that legal rationale (and without its accompanying legal restraints), coercion of disclosures by pain remains a widespread though officially disavowed practice. Indefensible as it is, it still is addressed to human volition, as instances of failure to break the victim’s resistance show. Coercion of the will by threat or by force confirms rather than denies traditional conceptions of personality.

Of course the polygraph is not torture, no more than an electrocardiogram, for instance. Also unlike torture, however, the polygraph is unconcerned with personal choice. Purporting only to detect lies, it is as indifferent to persuading the subject to tell the truth (though it may produce that effect) as it is to the substance of the questions asked and answered. The polygraph turns its subject into an object.

So do many diagnostic tests, as I have said. The same approach also may correspond to one theory of human behavior and human relationships. But is it consistent with the theory underlying our legal and social institutions? This seems doubtful. Inconsistency of physiological lie detection with fundamental tenets about human personhood has been important in European objections to the polygraph, reflecting Christian and Kantian philosophical traditions as much as doubts of its accuracy. See, e.g., Silving, Testing of the Unconscious in Criminal Cases, 69 Harv L Rev 683 (1956), Westin, Privacy and Freedom 237-39 (1967). 2

*238 The institution of the trial, above all, assumes the importance of human judgment in assessing the statements of disputing parties and other witnesses. The cherished courtroom drama of confrontation, oral testimony and cross-examination is designed to let a jury pass judgment on their truthfulness and on the accuracy of their testimony. The central myth of the trial is that truth can be discovered in no better way, though it has long been argued that the drama really serves symbolic values more important than reliable factfinding. See, e.g., Arnold, The Symbols of Government 145 (1962). One of these implicit values surely is to see that parties and the witnesses are treated as persons to be believed or disbelieved by their peers rather than as electrochemical systems to be certified as truthful or mendacious by a machine.

What would be the effect if some such machine were proved 100 percent effective? It could be the ultimate 21st-Century refinement of the medieval Anglo-Saxon oath-helpers, who, of course, were only human. 3 A machine improved to detect uncertainty, faulty memory, or an overactive imagination would leave little need for live testimony and cross-examination before a human tribunal; an affidavit with the certificate of a polygraph operator attached would suffice. There would be no point to solemn oaths under threat of punishment for perjury if belief is placed not in the witness but in the machine.

Compulsion to take polygraph examinations would hardly be necessary; the present somewhat pathetic urge of previously unfaithworthy prisoners and suspects to prove their statements by volunteered polygraph tests would likely be emulated by other witnesses who want to be believed. Volunteered certificates of truthfulness could be expected to spread from legal procedures to employment, credit, and more personal relationships, and their absence thereafter would appear as grounds for suspicion. Would a perfect detector enhance people’s capacity to test for truth only at the cost of diminishing their common humanity?

These questions go beyond doubts of the polygraph’s *239 accuracy. I do not speculate what legal issues beyond the rules of evidence they may raise; here none has been briefed. For the present case, I am satisfied to join in the court’s opinion.

Secretary of State George Schultz protested a presidential authorization of random polygraph tests of federal officials who have access to confidential information, stating: “The minute in this government I am told that I’m not trusted is the day that I leave.” New York Times, December 20, 1985, at Al col. 6. Senator Sam Ervin, chairman of the United States Senate subcommittee on constitutional rights, in 1971 proposed outlawing polygraph testing of employees as a form of “20th Century witchcraft,” citing many state statutes. 117 Cong Rec S21998 (Daily ed. June 24,1971). See, e.g. ORS 659.225, 659.990.

The West German federal supreme court in 1954 held even consensual polygraph examination inconsistent with constitutional and statutory guarantees of personal dignity and free will. See Silving, supra at 688-93, Kaganiec, Lie-Detector Tests and “Freedom of the Will” in Germany, 51 NWU L Rev 446 (1956), reviewing the philosophical background. Professor Westin, at page 238, reports a 1958 papal condemnation of polygraphs as well as narco-analysis on moral grounds. See generally Richards, Rights and Autonomy, 92 Ethics 3 (1981).

Oath-helpers were persons who swore on oath that they believed the oaths of a party to a suit, thus helping to prove that the assertions made by that party were true. See Maitland, The Constitutional History of England 115-18 (1955).