# Fernandez v. State

> Court of Criminal Appeals of Texas · April 26, 1978 · 564 S.W.2d 771

URL: https://www.frixlaw.com/law-library/cases/9764940

## Case

- **Full name:** Silvestre FERNANDEZ, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 26, 1978
- **Citations:** 564 S.W.2d 771
- **Precedential status:** Published
- **Opinion:** Concurring in part by Roberts
- **Judges:** Roberts, Odom, Davis
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764940

## Opinion text

ROBERTS, Judge,
concurring in part and dissenting in part.
I agree with the Panel’s conclusion that the record does not reflect that the State agreed or stipulated with the appellant that the results of the polygraph examination would be admissible if the appellant would first agree to be examined by a psychiatrist. However, had the State entered into such an agreement or stipulation, I cannot but conclude that evidence of the results of the polygraph would have been admissible. Moreover, I would go even further and *774 conclude that regardless of the presence or absence of a stipulation, evidence of polygraph results should be admissible in the courts of this State. However, due to the facts of this case, I conclude that the trial judge’s improper exclusion of defensive evidence was harmless beyond a reasonable doubt.
We have consistently held that evidence of the results of lie detectors or polygraphs is not admissible on behalf of either the State or the defendant. Robinson v. State, 550 S.W.2d 54 (Tex.Cr.App.1977); King v. State, 511 S.W.2d 32 (Tex.Cr.App.1974); Lewis v. State, 500 S.W.2d 167 (Tex.Cr.App.1973); Romero v. State, 493 S.W.2d 206 (Tex.Cr.App.1973). This is in accord with the near unanimous view of the courts of this country that the results of a polygraph are not admissible. However, as noted in Romero v. State, supra at 211, there is a decided split among the courts as to whether a valid stipulation will authorize the admission of the results of a polygraph examination. See also State v. Chambers, 240 Ga. 76 , 239 S.E.2d 324 (1977).
In State v. Chambers, supra, 239 S.E.2d at 325 , the Georgia Supreme Court stated:
“We acknowledge that doubt exists as to the complete reliability of lie detector tests, and we share at least a modicum of that doubt. Operators may be unskilled, and results may be ambiguous and subject to arbitrary characterization. Of course, by cross examination counsel may show any vagueness of the electronic indications or any subjectiveness of the examiner’s interpretations, as well as exploring conditions other than the subject’s untruthfulness which could have produced such responses.
“However, despite some problems posed by polygraphs, McCormick warned more than 20 years ago that ‘We cannot in our hearts be so confident of the reliability of the present system of resolving conflicts in testimony by impeachment, cross-examination and inferences from demeanor, that we can afford to reject scientific aid in the task.’ McCormick, Evidence, Sec. 174 (1954 Ed.). A more recent writer has phrased this thought in more urgent language: ‘If the judicial system is to fulfill its duty of searching for truth and maintaining integrity, it must commence a war against perjury. The war cannot be won with weapons restricted to cross-examination, inferences from demeanor, and other relics from the crossbow era of Henry II. * * * There is no tenable reason why qualified polygraphers should not be welcomed by courts confronting credibility questions; clearly, polygraphy “appears to have something valuable to add to the administration of justice.” ’ Tarlow, admissibility of Polygraph Evidence in 1975, 26 Hastings L.J. 917 , 920-921 (1975). (Footnotes omitted).”
I unequivocally agree with the foregoing, but I cannot restrict my belief that evidence of the results of polygraph examinations is admissible to those situations where both parties have stipulated to the admissibility of such evidence.
Indeed, the current Texas view is completely devoid of logic. Article 37.071, Vernon’s Ann.C.C.P., provides for the procedure in capital cases in Texas. Article 37.-071(b) sets forth three essential questions for the jury to answer. The death penalty is imposed only when a jury unanimously answers all three questions in the affirmative. The second question — Article 37.-071(b)(2) — requires a jury to ascertain “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” In Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976), we held that testimony by psychiatrists whether there was a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society was permissible. See also Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976). Thus, we there sanctioned testimony by “doctors of the mind” addressing the probability of future acts of violence by a defendant. In Smith v. Estelle, 445 F.Supp. 647 (N.D.Tex.1977), Judge Porter stated:
*775 “Even a cursory review of the psychiatric literature reveals that psychiatrists differ widely in their diagnosis of the same patients. The testimony of psychiatric experts is receiving increased judicial scrutiny because of its unreliable and invalid nature. See United States ex rel. Wax v. Pate, 298 F.Supp. 164 (N.D.Ill.1967), affirmed 409 F.2d 498 (7th Cir.), cert. denied, 396 U.S. 830 , 90 S.Ct. 83 , 24 L.Ed.2d 81 (1969). Cf. Specht v. Patterson, 386 U.S. 605 , 87 S.Ct. 1209 , 18 L.Ed.2d 326 (1967).
“This judicial scrutiny reflects skepticism among experts in the field itself. In 1969 Professor Dershowitz reviewed studies on the predictions of anti-social conduct and concluded:
‘ . . . that psychiatrists are rather inaccurate predictors — inaccurate in an absolute sense and even less accurate when compared with other professionals, such as psychologists, social workers and correctional officials and when compared to actuarial devices, such as prediction or experience tables. Even more significant for legal purposes, it seems that psychiatrists are particularly prone to one type of error — over prediction. They tend to predict antisocial conduct in many instances where it would not, in fact, occur. Indeed, our research suggests that for every correct psychiatric prediction of violence, there are numerous erroneous predictions. That is, among every group of inmates presently confined on the basis of psychiatric predictions of violence, there are only a few who would, and many more who would not, actually engage in such conduct if released.’
Dershowitz, The Psychiatrist’s Power in Civil Commitment: A Knife That Cuts Both ways, Psychology Today, Feb. 1969, at 47. '
“Recent studies support Professor Der-showitz’s conclusions: ‘perhaps the most striking evidence supporting Dershowitz’s conclusions comes from the study of the results of “Operation Baxstrom” involving 969 prisoner-patients in New York State who were affected by the Supreme Court’s decision in Baxstrom v. Herold [ 383 U.S. 107 , 86 S.Ct. 760 , 15 L.Ed.2d 620 (1966)]. The Court held that those persons remaining in Department of Corrections Hospitals after their prison terms had expired must be released, and committed civilly, if at all. Each of the 969 patients had been detained in maximum-security hospitals because psychiatrists determined that they were mentally ill and too dangerous for release or even for transfer to civil hospitals. Nevertheless, one year after the patients were transferred to civil hospitals, 147 had been discharged to the community and the 702 who remained were found to present no special problems to the hospital staff. Only seven patients were found to be so difficult to manage or so dangerous as to require recommitment to a Department of Corrections hospital. Several years later, 27% of the patients were living in the community, only nine had been convicted of a crime (only two of felonies), and only 3% were in a correctional facility or hospital for the criminally insane.
‘Another recent study, described by one observer as the “most extensive study to date on the prediction ... of dangerousness in criminal offenders” confirms the lesson of Baxstrom . A team of at least five mental health professionals, including two or more psychiatrists, was asked to conduct unusually thoroughly clinical examinations of individuals who had been convicted previously of serious assaultive crimes (often sexual in nature), assigned to special treatment programs after conviction, and who were then eligible for release. Based upon the examinations, extensive case histories, and the results of psychological tests, the team attempted to predict which individuals again would commit assaultive crimes if released. These predictions of dangerousness were made prior to the court hearings at which the ultimate release decisions were made. Of 49 patients considered by the evaluating team to be dangerous and therefore not recommended *776 for release, but who nevertheless were released after a court hearing, 65% had not been found to have committed a violent crime within five years of returning to the community. In other words, Vsrds of those released despite predictions of dangerousness by the professional team did not in fact turn out to be dangerous.’ Ennis & Litwack, Psychiatry and the Presumptions of Expertise: Flipping Coins in the Courtroom, 62 Cal.L.Rev. 693, 712-13 (1974). (Footnotes omitted) (emphasis supplied.)” [Footnotes omitted in original]
I fail to understand how expert testimony relating to what a defendant may or may not do in the future and an opinion whether the defendant would constitute a continuing threat to society is any more reliable than testimony relating to the physical reactions of a defendant in response to questions and the opinion that those physical reactions are consistent or inconsistent with whether the defendant lied during his responses. To me, any conclusion that the former is less innocuous than the latter to a defendant’s right to a fair trial is bottomed not on logic, but on an unwillingness to depart from the “judicially accepted majority view” and a misguided belief that polygraph testing must emerge from the scientific “twilight zone” before we see the mistake we have made and reverse ourselves. As Judge Douglas so artfully stated in Perez v. State, 537 S.W.2d 455 at 458 (Tex.Cr.App.1976) (Dissenting Opinion), “[a] past mistake on the part of the Court is not a justification for committing the same mistake again.”
Due to the inherent unreliability of psychiatric testimony and its acceptability in the area of capital punishment, I cannot but conclude that evidence of the results of polygraph examinations should always be admissible. Just as Chief Justice Burger observed in Thornton v. Corcoran, 132 U.S.App.D.C. 232, 248 , 407 F.2d 695, 711 (1969) (Dissenting Opinion), that cross-examination serves as the check on the process by which a psychiatrist reaches a conclusion, so too will cross-examination serve as the check on the process by which a polygraph examiner reaches a conclusion.
The trial judge should not have excluded the evidence. However, in light of the “positive” identifications of the appellant made by Ramirez and Lozano, both of which were unobjected to, I conclude in this case that the excluded evidence would have merely been cumulative of the appellant’s alibi witnesses. Therefore, the exclusion of evidence in this case was harmless error.
For the foregoing reasons, I concur with the result reached by the Panel, but I dissent from that portion of the opinion which discusses the admissibility of the polygraph results.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764940. Public record. Not legal advice.