# Commonwealth v. a Juvenile

> Massachusetts Supreme Judicial Court · June 12, 1974 · 365 Mass. 421

URL: https://www.frixlaw.com/law-library/cases/9706748

## Case

- **Full name:** Commonwealth vs. a Juvenile
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** June 12, 1974
- **Citations:** 365 Mass. 421; 313 N.E.2d 120; 1974 Mass. LEXIS 671
- **Precedential status:** Published
- **Opinion:** Dissent by Kaplan
- **Judges:** Tauro, Reardon, Quirico, Braucher, Hennessey, Kaplan, Wilkins
- **Cited by:** 93 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*452 Kaplan, J.
(dissenting, with whom Reardon and Quirico, JJ., join). Agreeing in substance with all that Justice Quirico has written, I add a few words. Such reading as I have been able to do about the diagnostic method called “polygraph” — for it is not just a machine but a method — leaves me less confident of its reliability than the majority opinion appears to be. My impression is that, in the family of scientific aids to the forensic search for truth, the polygraph remains a rather remote relation of shabby gentility.
But if the polygraph were more nearly equal to the claims made for it, I would still think the majority opinion inadequate to support its conclusion, because it offers only a fragmentary guide to the procedures to be followed and decisions to be made in the actual utilization of the polygraph for the ultimate purposes of criminal trial. The same deficiency exists in the literature about the polygraph; it is a weakness one might expect, in view of the nearly unanimous rejection by the courts to the present day of the results of unstipulated polygraph testing. The majority opinion attracts the sympathy of the reader by saying that only a small step is being taken, and that comprehensive rules should be written after experience has accumulated. The step does not strike me as being small, but in any event the suggested progression from judicial experimentation to the formulation of rules, which is sound enough for some legal innovations, seems badly calculated for this one. Trial judges and the bar should not be left to grope on so important a matter; they deserve better help from the start, and this, as Justice Quirico says, should have come from the work of a commission, if any move was to be made to domesticate the polygraph.
The step taken by the majority involves an element that is quite novel, namely, the proposition that once the defendant agrees to take a court-sanctioned test, the results become admissible on either side — to which is added the novel (and aleatory) twist of the four-way choice. Were I acting as counsel, I am not sure on what basis I could now advise a client whether he should submit himself to the *453 polygraph. Questions arising upon the trial proper are equally obscure and difficult: add as a further illustration to those mentioned by Justice Quirico the question whether a defendant will be entitled to try to rebut the results of a court-sanctioned test, if damaging to him, by taking another test without application to the court and then introducing its results. The uncertainties appear all the more serious when we reflect that the failure of a defendant to volunteer for polygraph testing is likely to make a deep impression on the triers, as are the results of the testing, which may seem to speak with the voice of impartial science.
If we are to go ahead without a commission, then at least there should be an effort to collate and examine in some orderly way the experience of the trial judges and the bar as they seek to follow the trail indistinctly marked by the majority. But that is not provided for and is not easily promoted. Our trial judges are not in the habit of writing extended opinions, nor are their opinions published. Exchange of experience and ideas at conference is not frequent and is rarely searching. Appellate review in the ordinary course can afford only sporadic help. What the situation suggests is that special means should be employed to tame and rationalize the force that the majority has set loose. A commission inquiry is still possible, although it would operate after the event. And there may be scholars willing to keep watch as our courts and lawyers contend with the polygraph.
An understandable impatience with our criminal justice system and its traditional, lumbering methods of fact finding has led, I believe, to the impetuous adoption of a dubious expedient. I am not reconciled to the majority decision by its suggestion that the actual admission of the results of polygraph testing at trial will be infrequent. It may indeed be that the confused procedural and tactical situation will discourage applications for the polygraph, and the ultimate good judgment of trial judges will still further limit its use as evidence. But whatever these eventualities, we have an obligation to the individual case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9706748. Public record. Not legal advice.