People v. Anderson, 80SA79
| Decision Date | 30 November 1981 |
| Docket Number | No. 80SA79,80SA79 |
| Citation | 637 P.2d 354 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Richard ANDERSON, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Alexander M. Hunter, Dist. Atty., C. Phillip Miller, Chief Deputy Dist. Atty., Boulder, for plaintiff-appellant.
Hemminger & Whittaker, Gary H. Hemminger, Englewood, for defendant-appellee.
Pursuant to section 16-12-102, C.R.S.1973 ), the prosecution has appealed from a ruling of the trial court which permitted the admission at trial of evidence of a polygraph test and testimony by the polygraph examiner. We disapprove the ruling of the trial court and conclude that real and testimonial evidence of a criminal defendant's polygraph examination is per se inadmissible at trial.
The defendant, Richard Anderson, was charged by information with aggravated robbery 1 and first-degree sexual assault. 2 At the request of the prosecution, Anderson voluntarily submitted to a polygraph examination conducted by the Boulder County Sheriff's Department. The results of the test were inconclusive. Thereafter, the defendant hired his own polygraph examiner, who concluded that Anderson was truthful when he denied committing the crimes charged. The district attorney then suggested that Anderson be tested by another independent polygrapher, and chose Stanley M. Slowik to conduct the examination. 3 Slowik found Anderson "qualifiedly truthful" in his denial of the charges. The test results were made available to both the prosecution and defense counsel. Counsel for the prosecution and the defense, however, did not stipulate to the admission at trial of any results of or testimony regarding the polygraph examination.
On April 27, 1979, the defendant filed a "Motion to Allow Testimony of Polygraph Examiners and Written Report of Polygraph Examiners." After hearing testimony from two polygraph examiners, the court denied the motion. However, the court granted a rehearing on the defendant's motion, so that additional testimony and argument could be presented. The court then ruled, over the prosecution's objection, that the polygraph result and expert testimony would be admitted at trial.
At trial, Slowik testified as to the results of his polygraph examination of Anderson. A mistrial was declared on November 9, 1979, after a jury was unable to reach a unanimous verdict. At the conclusion of a second trial on January 23, 1980, where Slowik's testimony and the polygraph test result were again admitted, Anderson was found not guilty of both charges. On appeal, the prosecution asserts that the trial court erred in admitting the polygraph test result and testimony of the polygraph examiner. We agree and, for the reasons set forth in this opinion, we disapprove the ruling of the trial court.
A brief review of the scientific principles and techniques underlying a polygraph examination is a necessary foundation for our conclusion. Polygraph examiners contend that conscious efforts to deceive by a rational individual cause the sympathetic branch of the autonomic nervous system to respond and produce a number of involuntary physiological responses. 4 United States v. Ridling, 350 F.Supp. 90 (E.D.Mich.1972). It is not the act of lying per se which causes physiological changes, but the physiological stress created by lying which causes the autonomic nervous system to respond involuntarily. The physiological changes are identical to those which result from the exposure of an individual to a novel situation, or from emotional strain due to fear, anger, elation, excitement, anguish, or other emotion. Orne, Implications of Laboratory Research for the Detection of Deception, in Legal Admissibility of the Polygraph 95 (N. Ansley ed. 1975). Therefore, by attaching mechanical devices to a subject's body, a polygraph does not "detect" lies, but only monitors and measures certain physiological functions of the subject.
When a subject is tested with a modern polygraph machine, changes in blood pressure, pulse, respiration, and galvanic skin responses are measured and graphically recorded as reactions to specific questions posed by the examiner. The subject's pulse rate and blood pressure are monitored by a sphygmonanometer-a standard blood pressure cuff-which is attached to the subject's upper arm. Respiratory activity is measured by fastening pneumograph tubes around the subject's chest and abdomen. During the test, as the circumference of the subject's torso increases with each inspiration of air, the pneumograph tubes stretch; as the subject exhales, they contract. The pressure changes inside the pneumograph tubes are recorded on the graph, or polygram. Psychogalvanic or electrodermal skin responses are usually monitored by attaching electrodes to the subject's fingers. The electrodes emit a small, undetectable, stable electrical current, and measure the relative changes in skin resistance to that current. See J. Reid & F. Inbau, Truth and Deception: The Polygraph ("Lie-Detector") Technique 5-6 (2d ed. 1977).
Polygraphers claim that the psychological stress of lying causes the polygram to reflect noticeable changes in the subject's physiological responses. In most polygraph examinations, the examiner asks the subject a series of "neutral" questions-those to which the examiner is certain of the answer and which are irrelevant to the issues to be determined, and "control" questions-other irrelevant questions to which it is expected that a deceptive response will be given. The subject's physiological reactions when responding to the control questions are then compared to those shown when asked the "relevant" questions, or direct questions on the target issue for which the examination is being conducted. 5 Polygraph experts claim that it is possible to examine the polygram and interpret the physiological responses to arrive at a conclusion regarding the subject's truthfulness or deception in answering the relevant questions:
See also Reid & Inbau, supra, at 59 et seq. In the usual polygraph examination, further interrogation and testing is conducted by the examiner to arrive at a diagnosis of truthfulness or deception by the subject. Id. at 42-50.
Since the crux of the polygraph technique is the development of the neutral, control, and relevant questions, all polygraph tests are preceded by a pretest interview. During the pretest interview, the examiner develops the exact questions used in the test, evaluates the subject for an indication of his truthful or deceptive nature, and obtains background information of the subject. Ideally, the examiner establishes a level of concern which will yield the optimal physiological record. The pretest must also convince the suspect of the effectiveness of the polygraph. Orne, supra, at 97. See also Reid & Inbau, supra, at 13.
The defendant claims that the polygraph has attained a degree of reliability and general acceptance in the scientific community which warrants the admission at trial of polygraph test results and testimony of polygraph examiners. So long as a proper foundation for expert testimony is laid, the defendant contends that the trial court may use its discretion to admit such evidence. We disagree. We do not believe that the physiological and psychological bases for the polygraph examination have been sufficiently established to assure the validity and reliability of test results. Nor are we persuaded that sufficient standards for qualification of polygraph examiners exist to insure competent examination procedures and accurate interpretation of the polygram. Further, use of the polygraph at trial interferes with and may easily prejudice a jury's evaluation of the demeanor and credibility of witnesses and their testimony. Accordingly, we conclude that any evidence of polygraph results and testimony of polygraph examiners is per se inadmissible in a criminal trial.
The recurring questions of validity and reliability of the polygraph as an instrument capable of detecting deception create a number of issues. 6 One of the earliest decisions in this area was Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which held that a systolic blood pressure deception test was inadmissible in federal criminal trials because it had not gained sufficient scientific standing to justify its use. The court in Frye established the traditional standard for admission of polygraph evidence at trial:
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
"We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and...
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