STATE v. CATANESE

DENNIS, Justice.

In this case we are called upon to reconsider this Court's rule excluding for any purpose evidence of a polygraph examination. Our review convinces us that, at present, such evidence should not be admitted in criminal trials. However, the reasons for the exclusion of polygraph evidence during trial do not militate against its introduction, within the trial judge's discretion, in a post-trial proceeding such as a hearing on a motion for a new trial.

Defendant, Joseph A. Catanese, is charged by bill of information with armed robbery. Catanese is prepared to admit that shortly after the crime he picked up and gave an automobile ride to the gunman who committed the robbery. However, the defendant seeks to show by his testimony and the results of a polygraph examination that he was unaware of the robbery and innocent of any involvement in the crime.

The state has consistently objected to the introduction of the polygraph evidence at trial, relying on previous decisions of this Court. After Catanese was denied a pre-trial hearing on his request to introduce evidence of a proposed polygraph examination during trial, he applied to this Court for relief, and we ordered the trial court to hold an evidentiary hearing. 350 So.2d 677 (La.1977). Following a contradictory hearing, the trial judge concluded that, if the polygraph examination were conducted under safeguards prescribed by the court, the testimony of the polygraph expert explaining the test results would be admissible at trial.1 The State applied here for supervisory review and we brought the case up to consider whether the trial judge's ruling should be reversed or the previous decisions of this Court on the subject should be overruled.

Modern polygraph technique employs an apparatus consisting of scientific instruments which measure and record three or more involuntary physiological responses.2 The typical polygraph instruments in use today record changes in blood pressure, pulse rate, respiration, and "galvanic skin response"3 which occur while the subject is being asked carefully prepared questions.4 Before the test the examiner prepares the questions from information supplied to him by an interview with the subject and by other persons familiar with the subject or the particular case under investigation. The examiner also prepares the subject for the test by explaining to him the theory and measurements involved in the polygraph technique. After the examination the examiner interprets the subject's physiological responses recorded during the test in conjunction with all other information gathered by the examiner, including his careful observation of the subject before and during the examination. Based upon these interpretations and information, the examiner arrives at an opinion as to whether the subject responded truthfully to questions during the test.5

The theory underlying polygraph technique is based on several propositions concerning human psychology and physiology: The autonomic nervous system normally responds involuntarily to stress. An individual who is deceptive when questioned about a meaningful subject will experience stress. The polygraph apparatus is capable of accurately detecting the involuntary responses of the autonomic nervous system which result from stress. If the subject attempts to control his autonomic nervous system, this conscious effort is evident to a competent examiner through observation or analysis.6

The first appellate decision on the admissibility of polygraph evidence was Frye v. United States, 54 U.S.App.D.C. 46, 293 F. 1013 (1923). In that case the defendant offered the testimony of an expert witness regarding the results of a systolic blood pressure deception test which had been performed on the defendant. The court of appeals upheld the exclusion of this testimony in the following language:

This "general acceptance" test has been rigorously applied by many federal and state courts to exclude evidence of polygraph tests.7

In the relatively few cases in which this Court has considered the admissibility of polygraph evidence in criminal trials, the expert's testimony has been excluded by a rationale similar to the Frye "general acceptance" rule. In State v. Refuge, 270 So.2d 842, 844 (La. 1974), for example, this Court noted:

See also, State v. Whitmore, 353 So.2d 1286 (La.1978); State v. Davis, 351 So.2d 771 (La.1977); State v. Schouest, 351 So.2d 462 (La.1977); State v. Weeks, 345 So.2d 26 (La.1977); State v. Governor, 331 So.2d 443 (La.1976); State v. Corbin, 285 So.2d 234 (La.1973).

The "general acceptance" standard has been the subject of considerable scholarly criticism in recent years.8 In particular, it has been suggested that the requirement of "general acceptance" is tantamount to a requirement that the validity of the test be susceptible of such demonstration as to enable the trial court to take judicial notice of the fact. Clearly, the criteria used for determining the admissibility of scientific evidence should not require the instant and unquestionable demonstration required for the judicial notice of scientific facts.9 Other types of scientific evidence have been admitted into evidence under less stringent standards which merely require the evidence to be "an aid to the jury" or "reliable enough to be probative."10

Professor McCormick and others have suggested that there should be no special rule for the admissibility of polygraphic evidence. C. McCormick, Evidence, § 203 (2d ed. 1972); Trautman, Logical or Legal Relevancy — A Conflict in Theory, 5 Vand.L.Rev. 385, 395 (1952). Instead, these scholars would submit the evidence in each case to a balancing process. Any relevant conclusions supported by a qualified expert witness would be received unless there were other reasons weighing more heavily in favor of its exclusion. The probative value of the evidence in each case would be balanced against reasons for its exclusion, such as the familiar dangers of prejudicing or misleading the jury and undue consumption of time, to determine the question of admissibility.11

Recent jurisprudence has also made significant inroads into the "general acceptance" standard. Many jurisdictions now admit polygraph evidence upon prior stipulation of the parties,12 and a number of recent cases have stated that polygraph test results would be admissible without stipulation and over objection of opposing counsel under a lesser standard than "general acceptance."13

We agree that the "general acceptance" standard of Frye is an unjustifiable obstacle to the admission of polygraph test results. In the present case defendant's expert witnesses testified that the modern polygraph examination achieves a high degree of accuracy when conducted by well qualified examiners under proper test conditions. The trial court record supports much of the literature which we have examined that is critical of the restrictive "general acceptance" standard and urges a meaningful reexamination of the admissibility of polygraph evidence.14 Since Frye was decided in 1923, law enforcement agencies and private industry have come to rely heavily on polygraph examinations for investigation of misconduct and for employment screening;15 a national association of examiners, the American Polygraph Association, has been established for the purpose of formulating qualifications and ethical standards for polygraph examiners;16 and many states have enacted statutes for regulating and licensing examiners.17 Although the validity of the polygraph technique is not universally accepted within the scientific community,18 it appears that polygraph evidence when obtained under proper safeguards is as reliable as other kinds of scientific evidence accepted routinely by courts.

Nevertheless, after considering the evidence in the instant case and studying the authorities and extensive literature in the field, we conclude that it shall be the judicial policy of Louisiana to exclude polygraph evidence in criminal trials at this time. In doing so, we do not rely upon the "general acceptance" standard which has barred admissibility in the past. Instead, we reach this conclusion after carefully considering the arguments for and against the introduction of polygraph evidence. We recognize the high probative value of polygraph evidence when obtained under optimal conditions. However, after engaging in a balancing process at the appellate level similar to that recommended by McCormick and other writers, we conclude that at present in our court system the probative value is so outweighed by the reasons for its exclusion that the evidence should not be admitted in criminal trials.19

The principal reasons for exclusion are interrelated: (1) Our fundamental concern is that the trier of fact is apt to give almost conclusive weight to the polygraph expert's opinion.20 Many decisions in other jurisdictions seem to rest upon a judicial estimate of the tremendous weight which a polygraph test would have in the minds of a jury. See, e. g., United States v. Alexander, 526 F.2d 161, 168-170 (8th Cir. 1975); People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977); People v. Leone, 25 N.Y.2d 511, 307 N.Y.S.2d 430, 255 N.E.2d 696 (1969); People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); State v. Smith, 113 Ohio App. 461, 178 N.E.2d 605 (1960). Our own appellate experience with P.E.I. tests and other scientific evidence reflects a concern over the apparent readiness of both juries and trial judges to accept such evidence uncritically. See, State v. Graham, 360 So.2d 853 (La.1978); State v. Monroe, 345 So.2d 1185 (La.1977); State v. Jones, 316 So.2d 100 (La.1975). (2) Because of the potentially decisive character of polygraph evidence, we are equally concerned about the quality of such evidence available in Louisiana. The polygraph technique is capable of a high degree of accuracy only when conducted under controlled conditions by an examiner who is highly qualified by his ability, experience, education and integrity.21 At present Louisiana has no law providing for the licensing, regulating and disciplining of polygraph operators. Although this Court could adopt rules establishing minimum qualifications for expert polygraph witnesses, it could not effectively regulate or discipline them. The record in the instant case does not reflect the number of examiners available in Louisiana or the extent of their qualifications. If polygraph evidence were admissible in criminal trials, highly qualified experts might not be readily available to both defense and prosecution in every case. Thus, introduction of polygraph evidence in criminal trials would entrust key participation in the fact-finding process to persons not presently subject to effective judicial, legislative or adversary control. (3) Even if litigants were afforded an adequate supply of highly qualified experts, extensive procedural safeguards should be established either by court rule or legislation before the introduction of polygraph tests at trial. Otherwise, there is apt to be either an inadequate check upon the quality of the evidence or an undue consumption of time involved in its introduction. Clarification is needed as to the nature of polygraph evidence and the purposes for which it may be introduced, as well as a determination of the type and number of witnesses whose tests may be considered in a criminal case. In our judgment there has not yet been enough judicial experience with polygraph evidence in Louisiana to provide an adequate basis for judicial rule making on this scale.

The reasons for the exclusion of polygraph evidence from criminal trials do not necessarily prevent its use in all criminal proceedings. The polygraph technique has advanced to the point that it could be extremely valuable in criminal proceedings provided its admissibility is carefully limited to specific circumstances designed to insure the validity of the evidence and the proper administration of criminal justice. See, Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120, 124 (1974). A number of courts have attempted to avoid the problems inherent in the use of polygraph evidence by limiting its admissibility to certain types of proceedings. The Michigan Supreme Court held that polygraph evidence, while inadmissible at trial, would be admitted in a hearing upon a motion for a new trial. People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977). Polygraph test results have been admitted into evidence in a number of preliminary and post-trial criminal proceedings. See, State v. Jones, 110 Ariz. 546, 521 P.2d 978 (1974); State v. Watson, 115 N.J.Super. 213, 278 A.2d 543 (1971) (sentencing hearing); People v. Gerry, Cal.Super.Ct. (February 27, 1975) (discussed in N. Ansley, Admissibility of Polygraph Evidence in Criminal and Civil Cases (1978)) (probation hearing); People v. Cutler, No. A176965 (Super.Ct. Los Angeles County, Cal., November 6, 1972), 12 Crim.L. Rptr. 2133 (1972) (motion to suppress). See also, United States v. Ridling, 350 F.Supp. 90 (D.C.Mich.1972), in which admissibility of polygraph evidence was limited to perjury trials.

Although we conclude that polygraph evidence is inadmissible in criminal trials, the reasons for our decision do not prevent its introduction in post trial proceedings, within judicial discretion and subject to guidelines such as those laid down by the trial judge in the instant case. Because the defendant's guilt or innocence is not at issue in such proceedings, there is less demand for the rigorous guarantees of accuracy which typify the rules governing introduction of evidence at trial. Consequently, the reasons for excluding polygraph evidence in criminal trials are not necessarily compelling in post trial proceedings. This avenue of admissibility, therefore, should be open, within the discretion of the trial judge, whenever the evidence is reliable and will aid in a decision. Moreover, the experience gained in this way will perhaps facilitate a more informed conclusion on the question of admissibility of polygraph results in criminal trials.

The capable trial judge in the instant case is to be commended for his very responsible approach toward solving a difficult problem. Had the question arisen in connection with a post trial proceeding we would not hesitate to affirm his decision. However, for the reasons assigned we have concluded that at this time the probative value of polygraph evidence in criminal trials generally is outweighed too heavily by its accompanying dangers. The judgment of the trial court declaring the proposed polygraph evidence admissible is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SUMMERS, C. J., I agree with the reversal of the ruling of the trial judge, otherwise, I dissent.

TATE, J., assigns, reasons, concurring in part, dissenting in part.

MARCUS, J., concurs and assigns reasons.

BLANCHE, J., not participating.

TATE, Justice (concurring in part, dissenting in part).

The majority's scholarly and comprehensive opinion has held that polygraph examinations should not be admissible in criminal jury trials. Under current conditions, it is difficult to disagree with this conclusion.

The unexpressed major premise for the result is that— whatever the reliability of such scientific evidence under controlled conditions in affording polygraph tests— they are subject to abuse in criminal jury trials, because of the undue weight we Americans tend to give to "scientific" demonstrations of supposed objectivity, and because, in the present state of the administration of criminal justice, the use of such polygraph tests is subject to great abuse and is without adequate protection for the criminally accused as to the test being conducted in a truly reliable manner.

Nevertheless, I respectfully suggest that these considerations, however much they suggest the need for protective judicial mechanisms in the use of polygraph examinations, do not themselves furnish an adequate reason why the courts should reject the use of the results of the polygraph examination as in principle inadmissible because of their unreliability. Their widespread use in industry and in government are indicative that, although their use may be distasteful, their reliability is not. The courts should not refuse the admission of this type of evidence on the non-existent basis of its unreliability, when the real reason is our failure as yet to devise adequate protective mechanisms to assure the reliability and fairness of the testing conducted insofar as its being used in jury trials in criminal courts.

The chief difference in the viewpoint thus expressed is that I would not adopt any per se rule of inadmissibility of a polygraph examination (based on their supposed unreliability) although I might suggest very strict safeguards, including adequate counselled consent of an accused and strict monitoring of the conditions of the test, before it could be used. Especially in jury trials, it would seem to me appropriate to apply these safeguards strictly and also to weigh whether the probative value of the test was appropriate as to a particular issue (e. g., one-on-one contradictions), so as to outweigh the possible jury prejudice involved in the use of this type of evidence.

Further, it seems to me that unquestionably polygraph tests would be admissible in pre-trial proceedings (as well as post-trial, as suggested by the majority). For instance, too often in motion to suppress situations we have a direct contradiction between the testimony of the accused and the testimony of the searching and arresting officer, which swearing matches to my mind might be more satisfactorily resolved with the aid of polygraph examinations than by judgment calls as to which of two apparently equally credible versions is true.

Furthermore, once we lay aside the unreliability rationale, there seems to be absolutely no sensible reason to exclude the results of polygraph tests conducted under reliable circumstances, with the stipulation of both the state and the defendant that the results of the test can be admitted in evidence on the trial on the merits.

Finally, we may fear state abuse, if polygraph examinations became a customary method of police interrogation (just as pre-Miranda police interrogation, with inadequate safeguards to the accused, often led to unreliable confessions, in the place of adequate investigation through interrogation of other witnesses and collection of objective evidence). Whatever the merit of such fears, I am concerned that a per se rule prevents the accused from using a reliable source of evidence which may prove his innocence. If the use of polygraph data is found to be sufficiently reliable in so many of the other social institutions of our society, the courts should not bar their doors, for essentially arbitrary reasons, to the use by an accused of a form of evidence of a great degree of reliability (if the testing is conducted under properly controlled conditions).

MARCUS, Justice (concurring).

I concur in the adherence to the well-settled jurisprudence of this state holding that the results of the polygraph examination are inadmissible as evidence in criminal prosecutions. State v. Schouest, 351 So.2d 462 (La.1977); State v. Governor, 331 So.2d 443 (La.1976); State v. Corbin, 285 So.2d 234 (La.1973). This would include, in my opinion, introduction of said evidence in "post-trial proceedings." I therefore disagree with the majority's statement that polygraph evidence may be introduced in post-trial proceedings, within the discretion and subject to guidelines such as those laid down by the trial judge in the instant case. Since this case has not yet been tried, this issue is not before us at this time. Accordingly, I concur in the decree.