Barrel of Fun, Inc. v. State Farm Fire & Cas. Co.

Decision Date24 August 1984
Docket NumberNo. 83-3525,83-3525
Parties16 Fed. R. Evid. Serv. 187 BARREL OF FUN, INC. d/b/a The Music Factory, Plaintiff-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellee. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

George J. Ledet, Jr., Cut Off, La., for plaintiff-appellant.

Buckley & Ward, E. Ross Buckley, Robert F. Spangenberg, IV, Metairie, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before TATE, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

GARWOOD, Circuit Judge:

This case presents the question of whether expert testimony based solely on the results of a psychological stress evaluation (PSE) is admissible evidence. Because we conclude that no relevant distinction can be drawn between such testimony and expert testimony based on polygraph evidence--long held inadmissible by this Court--we hold that PSE evidence is likewise inadmissible.

On November 24, 1981, a fire occurred at The Music Factory, a retail store selling phonograph records, tapes, stereo equipment, and musical instruments, in Larose, Louisiana. The Music Factory was owned by Barrel of Fun, Inc., a corporation operated and wholly owned by Floyd Guilbeau and his wife, Mona. After the fire, Barrel of Fun submitted a claim to State Farm Fire & Casualty Company pursuant to the store's $40,000 fire insurance policy with State Farm. Asserting that the fire was intentionally set by the insured, State Farm refused to pay the claim. Barrel of Fun then filed this suit against State Farm to force payment on the policy. State Farm asserted the affirmative defense of arson and filed a counterclaim against Barrel of Fun and a third-party claim in subrogation against the Guilbeaus for property damage sustained by other tenants of the building in which The Music Factory was located. Following a bench trial, the district court found that Floyd Guilbeau was involved in setting the fire 1 and rendered judgment for State Farm, rejecting Barrel of Fun's claims and awarding State Farm damages on its counterclaim.

On appeal, Barrel of Fun asserts that the district court erred in admitting testimony on the results of the PSE. We agree, and accordingly vacate and remand for reconsideration. 2

During the trial below, the district court refused to admit testimony from Howard L. Dey, Jr., an investigator for the Louisiana State Fire Marshal's office, regarding the results of the PSE he administered to Floyd Guilbeau. 3 Nevertheless, the district court admitted over plaintiff's objections testimony from William M. Roth, Jr., an arson investigator for the Fire Marshal's office, 4 that, based essentially only on the results of the PSE given by Dey, it was Roth's opinion that Guilbeau had prior knowledge of and authorized the setting of the fire. 5

The overwhelming majority of those courts that have considered the issue have held that PSE evidence is inadmissible. United States v. Traficant, 566 F.Supp. 1046, 1047 (N.D.Ohio 1983); Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24, 28 (1980); State v. Makerson, 52 N.C.App. 149, 277 S.E.2d 869, 872 (1981); People v. Tarsia, 67 A.D.2d 210, 415 N.Y.S.2d 120, 122 (1979), aff'd, 50 N.Y.2d 1, 427 N.Y.S.2d 944, 405 N.E.2d 188 (1980); State v. Ochalla, 285 N.W.2d 683, 684 (Minn.1979); State v. Schouest, 351 So.2d 462, 468-69 (La.1977); Smith v. State, 31 Md.App. 106, 355 A.2d 527, 535-36 (Md.1976). See Joubert v. Travelers Indemnity Co., 736 F.2d 191, 194 (5th Cir.1984) ("argument that the trial court erred in holding that a voice stress test was inadmissible is without merit"), citing United States v. Clark, 598 F.2d 994 (5th Cir.1979) (per curiam), vacated, 608 F.2d 238, reinstated, 622 F.2d 917 (1980), cert. denied, 449 U.S. 1128, 101 S.Ct. 949, 67 L.Ed.2d 116 (1981). 6

Our precedents "unequivocally hold" that polygraph evidence 7 is inadmissible. Clark, at 995. Accord, Smith v. Gonzales, 670 F.2d 522, 528 n. 3 (5th Cir.), cert. denied, 459 U.S. 1005, 103 S.Ct. 361, 74 L.Ed.2d 397 (1982); United States v. Masri, 547 F.2d 932, 936 (5th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977); United States v. Cochran, 499 F.2d 380, 393 (5th Cir.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975); United States v. Gloria, 494 F.2d 477, 483 (5th Cir.), cert. denied, 419 U.S. 995, 95 S.Ct. 306, 42 L.Ed.2d 267 (1974); United States v. Frogge, 476 F.2d 969, 970 (5th Cir.) (per curiam), cert. denied, 414 U.S. 849, 94 S.Ct. 138, 38 L.Ed.2d 97 (1973). "We have made no exception to the rule for civil cases ...." Smith, supra, at 528 n. 3. See California Insurance Company v. Allen, 235 F.2d 178, 180 (5th Cir.1956). 8 Upon reviewing the record before us, we cannot find a principled distinction between the inadmissible results of polygraph tests and the results of the PSE offered in this case. Both types of tests are identical in one essential respect: by measuring a person's physiological responses to various questions, the tests produce data which, when interpreted by an expert, purportedly indicate whether the person was lying in his answers. Heisse v. Vermont, 519 F.Supp. 36, 40 (D.Vt.1980). Moreover, we are persuaded that those concerns prompting this and other courts to bar polygraph evidence from the courtroom apply with at least equal force to the PSE.

Significant among those concerns is that the polygraph does not command sufficient scientific acceptance and "is not generally believed to be sufficiently reliable in ascertaining truth and deception to justify its utilization in the trial process." United States v. Alexander, 526 F.2d 161, 164 (8th Cir.1975). Accord, United States v. Gloria, 494 F.2d at 483; United States v. Bursten, 560 F.2d 779, 785 (7th Cir.1977) (per curiam); United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir.), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376 (1976); Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). 9 See also Fed.R.Evid. 401. Of equal concern is the risk that the jury or judge, sitting as triers of fact, "will abdicate their responsibility for determining credibility, and rely instead upon the assessment of a machine." Bursten at 785. Accord, Alexander at 168-69; United States v. Wilson, 361 F.Supp. 510, 513 (D.Md.1973); United States v. Stromberg, 179 F.Supp. 278, 280 (S.D.N.Y.), rev'd in part on other grounds, 268 F.2d 256 (2d Cir.1959); E. Cleary, McCormick's Handbook of the Law of Evidence Sec. 207 at 507 (2d ed. 1972). 10

Because the PSE has not yet gained general judicial recognition, the proponent of such evidence has the burden of showing as a predicate to its admission that the proffered test has achieved scientific acceptability and that the test has a reasonable measure of trustworthiness. Alexander at 163; Marshall at 1360; United States v. Wainwright, 413 F.2d 796, 803 (10th Cir.1969), cert. denied, 396 U.S. 1009, 90 S.Ct. 566, 24 L.Ed.2d 501 (1970). Based on the record before us, we conclude that State Farm has failed to discharge this burden.

The only evidence proffered below pertaining to the general acceptance and use of the PSE was Dey's testimony that the test is utilized by the State Fire Marshal's office in its arson investigations and that Dey had administered 300 to 500 of the tests. The evidence, however, does not establish the extent to which PSE results are actually relied upon in those investigations, nor whether the PSE has attained broader scientific acceptance among experts in fire investigation, psychology, psychiatry, physiology, and other related disciplines. See Alexander at 164 & n. 6. See also Heisse v. Vermont, 519 F.Supp. at 41 (noting "disagreement in the scientific community about the validity of PSE testing"); United States v. Traficant, 566 F.Supp. at 1047 (same); Horvath, Detecting Deception: The Promise and the Reality of Voice Stress Analysis, 27 J. Forensic Sci. 340 (1982) (hereinafter cited as Horvath). Furthermore, although Dey testified that during the nine years in which he had administered PSE tests for the Fire Marshal's office, "we haven't had one incident come back and prove to us factually that we had the wrong indication from the instrument," that fact by itself, in light of the lack of proof of general scientific acceptance of the PSE, does not convince us of the reliability of the test. See Traficant at 1047; State v. Makerson, 277 S.E.2d at 872; People v. Tarsia, 415 N.Y.S. at 122. See also Horvath, supra, at 349 ("All of the reliable evidence now available shows that none of the voice stress devices is useful in detecting deception; .... The fact that voice stress devices have apparently been accepted rather uncritically by some law enforcement agencies, and for some forensic science purposes, is a development which, judging from the available evidence, cannot now be justified."). We further observe that the district court refused to qualify Dey as an expert in this field (see note 3, supra ).

Finally, when either PSE or polygraph evidence is offered at trial, "it is likely to be shrouded with an aura of near infallibility, akin to the ancient oracle of Delphi." United States v. Alexander, 526 F.2d at 168. Accord, United States v. Wilson, 361 F.Supp. at 513; People v. Leone, 25 N.Y.2d 511, 518, 307 N.Y.S.2d 430, 435, 255 N.E.2d 696, 700 (1969). Both tests invite the trier of fact to substitute the test results for its own credibility determinations, Traficant, 566 F.Supp. at 1047, thus inducing the fact finder to surrender "the responsibility for determining the truth of the evidence." United States v. Price, 722 F.2d 88, 90 (5th Cir.1983). 11

Here, the PSE evidence directly contradicted the trial testimony of Floyd Guilbeau that he was not involved in, nor had any prior knowledge of, the arson. 12 To the extent the district court considered the test results unimpeachable, the defense case was won. See Alexander at 168.

We therefore hold that...

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