Dowd v. Calabrese

• Decision Date: 26 April 1984
• Docket Number: 80-3325 and 81-1266.,No. 80-0911,80-3324,80-0911
• Citation: 585 F. Supp. 430
• Parties: John M. DOWD, Plaintiff, v. Samuel Ray CALABRESE, Defendant. William M. KRAMER, Plaintiff, v. Samuel Ray CALABRESE, Defendant. William M. KRAMER, Plaintiff, v. James A. DRINKHALL, et al., Defendants. John M. DOWD, Plaintiff, v. James A. DRINKHALL, et al., Defendants. James A. DRINKHALL, Plaintiff, v. William M. KRAMER, Defendant.
• Court: U.S. District Court — District of Columbia

585 F. Supp. 430

John M. DOWD, Plaintiff, v. Samuel Ray CALABRESE, Defendant.

William M. KRAMER, Plaintiff, v. Samuel Ray CALABRESE, Defendant.

William M. KRAMER, Plaintiff, v. James A. DRINKHALL, et al., Defendants.

John M. DOWD, Plaintiff, v. James A. DRINKHALL, et al., Defendants.

James A. DRINKHALL, Plaintiff, v. William M. KRAMER, Defendant.

Nos. 80-0911, 80-3324, 80-3325 and 81-1266.

United States District Court, District of Columbia.

April 26, 1984.

Thomas C. Green, Washington, D.C., for plaintiffs.

Michael T. Kenney, Santa Ana, Cal., Michael N. McCarty, Sara E. Lister, Togo D. West, Patterson, Belknap, Webb & Tyler, Washington, D.C., Floyd Abrams, Charles A. Gilman, Cahill, Gordon & Reindel, Gregory L. Diskant, Patterson, Belknap, Webb & Tyler, New York City, Richard L. Levie, U.S. Dept. of Justice, Civ. Div., John C. Martin, Asst. U.S. Atty., Washington, D.C., for defendants.

MEMORANDUM

HAROLD H. GREENE, District Judge.

The Dow Jones defendants¹ request that the Court admit polygraph evidence in the forthcoming trial of this libel action. The request is opposed by plaintiffs.

According to the Dow Jones motion, Wall Street Journal reporter Jim Drinkhall was given two separate polygraph examinations in December 1980. The questions asked of him on these examinations related to the truth and accuracy of his interviews with plaintiffs Kramer and Dowd and with certain of his confidential sources. According to the defendants, both polygraph examiners concluded that Drinkhall's answers were truthful, and they ask the Court to rule that these polygraph results are admissible in evidence.

I

The Court of Appeals for this Circuit held in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), a decision widely followed in the United States, that polygraph evidence is not admissible, and that it may be admitted only if and when it is "sufficiently established to have gained general acceptance in the particular field in which it belongs."² Defendants claim that surveys they have commissioned demonstrate that the Frye test has now been met. Before examining the factual accuracy of that assertion and the information underlying it, it is appropriate to recapitulate briefly the state of the law generally on the admissibility of polygraph evidence.

The great weight of judicial authority in the United States still is, sixty years after Frye, as opposed to the admission of such evidence as the Court of Appeals was at that time, and for the same reasons.³ Indeed, contrary to defendants' claim that during recent years courts have begun to rule that such evidence may be admitted,⁴ the fact is that, as a leading text⁵ puts it,

the trend favoring admissibility of polygraph evidence that some commentators detected a decade ago now seems to have been reversed by a number of significant state decisions.

Moreover, every single federal court of appeals which has considered the issue has ruled against admissibility⁶ and the Court of Appeals for this Circuit likewise continues to adhere to the Frye principle.⁷

It is against this background that defendants' claim of the alleged reliability and general acceptance of the results of polygraph examinations in the scientific community must be evaluated.⁸

II

The polygraph records and measures certain involuntary bodily responses, e.g., blood pressure, pulse rate, respiration, and skin resistance to electricity. The theory of polygraph examinations is that these physiological responses can be analyzed to determine the individual's subjective state of mind. Thus, acceptance of the polygraph test requires in the first instance an acceptance of two premises: (1) that there are generally-existing relationships between lying, emotions, and measurable physiological changes, and (2) that measures cannot be taken to affect these relationships. It is not clear that even these basic premises are correct.⁹

Even if these premises are accepted, however, scientific results are still not guaranteed. The successful use of a polygraph test to produce reliable results depends, first, upon the biological and psychological makeup of the individual being examined, and second, upon the training, competence, experience, and integrity of the examiner and his conduct during the test. The examiner's analysis of the polygraph charts is based not merely on the recorded physiological measurements; it also takes prominently into account his subjective impressions of the outward behavior of the individual being examined.¹⁰

It is because of these intangible and subjective factors—which exist notwithstanding the polygraph's aura of scientific precision— that the courts have been reluctant to accord to polygraph test results the kind of scientific, and hence legal, acceptability that defendants are advocating in these cases.

Defendants claim that they have overcome these difficulties and objections by a survey of psychophysiologists they commissioned which was conducted by the Gallup Organization, Inc. According to that survey, 61 percent of the individuals questioned considered a professionally-administered polygraph test to be at least a "useful diagnostic tool when considered with other available information" in interpreting whether a subject is or is not telling the truth.¹¹ This, according to defendants, satisfies the Frye requirements.

In the Court's view, the results of this survey do not overcome the deficiencies which the courts have found to exist with respect to the reliability of polygraphs, for several reasons.

First. Scientific truth and the acceptability of scientific procedure are not normally established by public opinion polls. The scientific community uses entirely different methods for such purposes (e.g., articles in learned journals, seminars, acceptance at institutions of higher learning). Defendants' polling shortcut cannot substitute for these time-honored procedures, which are time-honored precisely because scientific truth generally requires this kind of maturation of a consensus. See United States v. Williams, 583 F.2d 1194, 1198 (2d Cir. 1978) ("a determination of reliability cannot rest solely on a process of `counting (scientific) noses.'"

Second. Polls are unreliable even as to broad issues of public opinion and policy, as recent experience with election polling has forcefully demonstrated to the chagrin of candidates and commentors. Such low reliability may not matter greatly in the context of electoral politics, for the voters will eventually make the real decisions, and these decisions will not be based on the results of a public opinion poll but on the appeals of the candidates themselves and the reporting of the candidates' activities in the media.¹² Here, by contrast, the Court is expected by defendants to make a decision to overturn decades of legal and scientific doctrine based on one poll commissioned by one party to this litigation.

Third. Defendants' poll is flawed, and it can hardly be regarded as a truly scientific, impartial test. The methodology, the questions, the tabulations, and all the other factors which do or do not impart reliability to a poll, were entirely outside the control of anyone but defendants' agents. That basic problem is not cured in the context of our adversary system by references to the integrity of these defendants and of the Gallup organization. Referring to situations where polygraph results have been admitted pursuant to stipulation, the Dean court noted such stipulations encourage discussion and eventual agreement with regard not only to the general subject of the reliability of polygraph testing but also to more specific subjects such as the qualifications required of the examiner, the designation of the examiner, the phrasing of the test questions, and the specification of the condition under which the test is to be given. 307 N.W.2d at 637. Defendants' unilateral test satisfied none of these safeguards and conditions.

Fourth. Even on their own terms, the results of the Gallup poll submitted by defendants are not impressive. Two out of three of those responding to the telephone poll had never used polygraphs to determine whether an individual was telling the truth, and only 33 percent of all the respondents described themselves as "very informed" regarding polygraph testing.¹³ Thus, the expertise of the body of those polled is somewhat suspect. Moreover, only 62 percent of those responding stated that they regarded polygraph tests as a useful diagnostic tool when considered with other information; 35 percent found them to have "little weight" or no usefulness.¹⁴ That is hardly the stuff which would justify one in concluding that now, unlike in the past, polygraph test results have found broad scientific acceptability.

Fifth. It is obvious that, had the results of the polygraph examination shown that Drinkhall was not telling the truth, neither plaintiffs nor the Court or jury would have ever heard about the examination or the results.¹⁵ Whatever other consequences might have flowed from this peculiar method of insuring scientific objectivity, it was bound to have an impact on the state of mind with which Drinkhall approached the tests. One of the important factors that many of those who rely on polygraphs insist on is that the individual taking it should know that something real is at stake. Absent such conditions, no results of significance can be expected.¹⁶

The Dow Jones defendants respond that Drinkhall was under just such pressure because he knew that his employers would not take kindly to lying and that, if he did not pass the test, they would take appropriate action.¹⁷ It would not be fair to the plaintiffs or to the search for truth in this litigation to depend on that assumption for equating the Drinkhall test with one that is taken with full knowledge of and participation by both parties. No one can know whether, had Drinkhall failed the test, he would have been subjected to consequences remotely similar to...