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
Modern polygraph technique employs an apparatus consisting of scientific instruments
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
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.
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.
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.
Recent jurisprudence has also made significant inroads into the "general acceptance" standard. Many jurisdictions now admit polygraph evidence upon prior stipulation of the parties,
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.
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.
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.
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
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.
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.
"We, therefore, establish the following eleven points as necessary prerequisites for a sufficient foundation to allow the result of the polygraph examination in this case into evidence:
I. A competent examiner. Obviously, this is the heart of the examination. We believe the examiner should be trained to use and analyze the results of a polygraph; that he be current in the field; that he have a baccalaureate degree or the judge be satisfied that he has equivalent experience and literacy, a working knowledge of psychology; at least two years experience in administering tests with the device, the ability to recognize a defective machine, and, furthermore, that his integrity be above reproach. While we would exercise extreme care in this area, surely these standards are no more than we would want from an expert in any field.
II. A calibrated machine. III. A subject relaxed to the extent that the test is valid. Unfortunately, this phrase seems to fall back upon itself for a definition. We must simply be convinced that the subject was sufficiently still and relaxed under the stress of the examination to allow definitive reactions.
IV. A competent pre-test interview. Emphasis must be on the individual's current medical circumstances to include the psychiatric with no real problems indicated as well as a full explanation of the machine, its functions, and a review of the questions to be asked.
V. A meaningful area of inquiry involved. The subject matter must be significant to the person examined.
VI. One question, at least, that threatens the well-being of the subject and precludes the rationalization of the answer. The questions going to the heart of the matter must be worded in such a way as to eliminate possible rationalization by the subject.
VII. At least one control question in the technique. A question establishing a significant reaction level.
VIII. Short Answers. (preferably `yes' or `no').
IX. A low-key, quiet approach by the examiner throughout.
X. At least two charts with proper labeling and responses to include technical notations as to machine settings, devices used, locations of devices on the subject, identity of the point of question on the chart and point of response. Significant proper attempts to resolve apparent positive responses to meaningful questions are necessary. These responses are to be valid throughout. There can be no unresolved responses to the question such that one question has received a positive reaction on two occasions, but not on two others; or positive on three and negative on two, etc. As the witnesses explained, where there is an indication of response to a question on the first occasion, then a second chart is essential to be certain that a response to that question is received on the second occasion. If no response is received on the second chart, then the question is asked a third time. If no response is received again, then the question is determined to be without response. If response is received on this occasion, then proper attempts to resolve the response are to be made and the question asked still again. Thus, it must be apparent from the charts that there is no unresolved area of inquiry, such that the number of responses and non-responses to the same question are not of the same general frequency. However, a positive and then two consecutive negatives are considered negative and vice versa.
XI. The charts made available to the other side sufficiently in advance of the trial. Obviously, this for analysis by any experts they may wish, who may testify if they can be qualified under Point I. Also, we would allow the other side to request a psychiatric evaluation of the testee if they can lay a sufficient foundation to indicate the potentiality that the test was influenced by the testee's mental condition or state of mind, either willfully or inadvertently. As previously discussed, we believe there are slim possibilities in this regard, and we would be critical in evaluating a motion to test the subject.
"We believe that if these criteria are met before the admission of the polygraph examination, the test will have sufficient probative value and be sufficiently valid to assist us or whoever may be trial judge in this cause in the resolution of the issues. Of course, we have the responsibility to evaluate the test in the same fashion that we would evaluate any other scientific evidence, including the strength of the responses and the competence of the examiner as compared with the other evidence in the case."
In addition to the four involuntary responses listed in the text, some polygraph apparatus in use today also measure muscular movements in the arm and subtle variations in the heart beat. For a discussion of these and other recent developments in polygraph instrumentation and technique, see articles collected in Legal Admissibility of the Polygraph, 257-288 (ed. N. Ansley 1975).
The irrelevant, control, and relevant questions are carefully arranged in a series of no more than about ten questions. All questions are precisely drafted so that the response sought can not be misinterpreted or misconstrued by the subject, and the questions are formulated to require a short answer so that the subject's breathing pattern will not be affected by speech. The questions are delivered in an unemotional monotone so as not to influence the subject's response. The prepared list of questions is read to the defendant in the same order at least twice.
The preparation and use of test questions is discussed in Truth & Deception, supra, note 2, at 24-32; A. Moenssens, R. Moses, & F. Inbau, Scientific Evidence in Criminal Cases, 543-551 (1975); Abrams, Polygraphy Today, 3 J.Crim. Def. 85, 97-104 (1977).
"The purpose of administering a lie detector test is for the operator to come to a conclusion that the subject either is or is not lying when claiming not to have committed the crime of which he is accused. The conclusion is not wholly based on the measured and recorded physiological variations, but includes the operator's subjective interpretation of the subject's attitude toward the examination in general and to particular questions. Although Reid instructs the operator to be noncommittal and completely objective throughout the entire examination, he indicates at almost every point what a `lying' subject (as opposed to a `truthful' one) is supposed to do or say."
Polygraph theory recognizes that there is no physiological response to deception per se. Rather, it is believed that certain physiological responses are indicative of the stress which accompanies the attempt to deceive. See, Note, The Emergence of the Polygraph at Trial, 73 Col.L.Rev. 1120, 1137 (1973).
Those jurisdictions which admit polygraph evidence by stipulation reason that if a defendant agrees to the admission of polygraph test results then he should not be able to object if the subsequent results turn out to be unfavorable to him. Nevertheless, the trial judge is usually given the power to disallow all polygraph testimony regardless of the stipulation if he is not satisfied that the test results are reliable. See, e. g., State v. Valdez, supra.
Admission by stipulation has, however, been criticized. See, e. g., Tarlow, supra, note 6, at 953-56; Note, The Polygraphic Technique: A Selective Analysis, 20 Drake L.Rev. 330, 340-43 (1971). It has been suggested that it is illogical to deny admissibility on the ground that the evidence is unreliable and then admit the same testimony by stipulation.
Arkansas (Ark.Stat.Ann. §§ 71-2201 to 2225 (Supp.1973)), Florida (Fla.Stat.Ann. §§ 493-40-56 (1974-75 Supp.)), Georgia (Ga.Code Ann. §§ 84-5001 to 5016 (1970)), Illinois (Ill.Stat. Ann. ch. 38, §§ 201-1 to 30 (1973)), Kentucky (Ky.Rev.Stat.Ann. §§ 329.010-.990 (1972)), Mississippi (Miss.Code Ann. §§ 73-29-1 to -47 (1972)), Nevada (Nev.Rev.Stat. §§ 648.005-.210 (1973)), New Mexico (N.M.Stat. §§ 67-31A-1 to -11 (2d Repl.Vol. 10 1974)), North Dakota (N.D.Cent.Code §§ 43-31-01 to -17 (Supp. 1973)), Texas (Tex.Civ.Stat. art. 4413 (29cc) (1974-75 Supp.)), and Virginia (Va.Code §§ 54-729.01-.018 (1974 Repl.Vol. 7A)).
"The most important factor involved in the use of any such instrument is the ability, experience, education, and integrity of the examiner himself."
See also, Tarlow, supra, note 6, at 965-66; Comment, The Polygraph Revisited: An Argument for Admissibility, 4 Suff.L.Rev. 111, 119-120 (1969). This reliance has often been noted by courts considering the admissibility of polygraph evidence. See, e. g., United States v. Wilson, 361 F.Supp. 510, 512-13 (D.Md.1973); Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120, 124-25 (1974).