rejecting a due process challenge to felony murder where the “[a]ppellant cite[d] no authority for the proposition that because, under the felony murder theory, there is no need to prove a specific intent to kill, the statute is unconstitutional”
How later courts described this case
- rejecting a due process challenge to felony murder where the “[a]ppellant cite[d] no authority for the proposition that because, under the felony murder theory, there is no need to prove a specific intent to kill, the statute is unconstitutional”
- holding that the defendant's statements to a polygraph examiner retained by the defendant's counsel were privileged
- concluding that defendant's mental capacity is a factual issue for the jury to resolve
- “Because appellant was willing to stipulate to the cause of death of [victim], it does not follow the admission of the exhibits was error.”
Written by the judges who cited it.
The opinion
DeBRULER, Justice,
dissenting.
I regard the trial court's action in restricting the defendant in her cross-examination of the prosecution witness, Thorn-burg, and in so doing bringing out before the jury the fact that the incriminating admissions attributed by the witness to her were made during the course of an actual polygraph examination as error.
As pointed out by the majority opinion, Thornburg was a polygraph operator and was permitted over objection by the defense to give defendant's incriminating answers to questions propounded to her by Thornburg during an actual lie detector test. Once those damaging admissions were before the jury as the trier of fact, the rule excluding evidence of polygraph examination had to give way so far as would be necessary to permit the accused an opportunity to exercise her right to full and fair cross-examination and confrontation. Davis v. Alaska, (1974) 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 . The fact of the test as distinguished from the opinions of the operator regarding his opinion as to truth or falsity, would enhance rather than retard the weight and credit determining processes of the trier of fact. Considerations such as the fact that she was wired to the machine, was speaking to generate an opinion by the operator for use in court, and that the questions being posed were in a form dictated by the practice of polygraph operators, should be brought out.
This conviction rests in substantial part and in a real sense upon appellant's pre-trial admissions during the polygraph operation. The court's restrictive ruling precluded the jury from information which would have aided it in determining the meaning of the admissions, the level of certainty with which they were made, and the weight and probative quality which they may have had. I would reverse and remand this case for a new trial.