Colbert v. Com.

• Decision Date: 01 November 1957
• Parties: Herman COLBERT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 825

306 S.W.2d 825

71 A.L.R.2d 442

Herman COLBERT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Nov. 1, 1957.

Robert W. Zollinger, Irving I. Friedman, Louisville, for appellant.

Jo M. Ferguson, Atty. Gen., David Sebree, Asst. Atty. Gen., for appellee.

Marvin H. Morse and Louis Lusky, Louisville, for Kentucky Civil Liberties Union, amicus curiae.

CULLEN, Commissioner.

Herman Colbert appeals from a judgment of conviction of armed robbery, imposing a sentence of life imprisonment.

The only witnesses upon the trial were the victim, the arresting officer, and an employe of the state reformatory who had given a lie detector test to the defendant. The only real issue upon the trial was whether the defendant was the person who committed the robbery.

The major contentions of the appellant are that it was error to admit the testimony concerning the lie detector test, and it was error to permit the prosecuting witness to testify that he had identified the defendant in a police line-up. Other contentions will be discussed at a later point in this opinion.

The transcript of record sets forth an order of May 16, 1956 (about four and onehalf months before the trial) 'that the defendant submit to a lie detector test, and that same be reported to the Court.' The transcript of the proceedings upon the trial recites that upon the case being called the defendant made objection to the admission of evidence concerning the lie detector test, and the objections were repeated when the evidence later was offered. However, in a written opinion ruling upon a motion for a new trial, the trial judge stated that on the day the order to take the lie detector test was entered (May 16) the defendant in open court requested permission to take the test and 'agreed to be bound by the result.'

Only one recorded case has come to our attention in which results of a lie detector test were held admissible on the basis of a stipulation. In that case, People v. Houser, 85 Cal.App.2d 686, 193 P.2d 937, the defendant not only stipulated in writing that the results of the test could be admitted in evidence, but also that the operator of the lie detector was a qualified expert. We do not consider the instant case to fall in that category. Here there was no written stipulation, but only an oral agreement to take the test and be bound by the results, which agreement was not entered of record at the time it was made. We think more formality should be required to give effect to an agreement of such importance. Furthermore, there is no contention that the agreement stipulated the qualifications of the person who gave the test. Accordingly, we do not approach the case as one involving a stipulation of full admissibility.

Nor do we approach the case as one where the test was administered involuntarily. We think the record warrants the conclusion that the defendant voluntarily submitted to the test.

The question then is, may the results of a lie detector test, voluntarily taken but with no stipulation of full admissibility, be admitted over the objection of the defendant upon the trial? The answer to this question, in other jurisdictions, has with practical unanimity been 'No,' the reason being that the lie detector has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. Annotation, 23 A.L.R.2d 1306.

In the instant case, the test given was the Keeler polygraph test. The operator was a clinical psychologist in the employ of the state reformatory, who had received some training in the use of the polygraph and had given some 500 tests over a period of five years. However, he did not testify as to the degree of accuracy the polygraph can attain, the test conditions that must prevail in order to attain maximum accuracy, or to what extent the conditions of the test given to Colbert met ideal standards, not did he state what degree of accuracy had been achieved in the previous tests given by him.

Without expressing any view as to whether, upon the laying of a sufficient foundation to warrant a conclusion of reasonable reliability and accuracy, the results of a lie detector test may be admissible in evidence, we state our opinion that the evidence offered here was not such as to meet an acceptable standard of admissibility, and the trial court erred in admitting it.

We come to the second main contention. On direct examination the prosecuting witness was permitted, over objection, to testify that on the day after the robbery was committed he went to the police station and was shown photographs of a number of persons, among which he identified the defendant, and that a week later he identified the defendant in a police line-up. The arresting officer also was permitted to testify that the prosecuting witness identified the defendant in the line-up. It is contended that this testimony was incompetent.

In Griffith v. Commonwealth, 250 Ky. 506, 63 S.W.2d 594, at page 596, the broad statement was made that, 'Except perhaps in a certain class of circumstances in rape cases, extrajudicial identification of persons accused of crime is never competent as original evidence in a subsequent trial.' Later, in Keene v. Commonwealth, 307 Ky. 308, 210 S.W.2d 926, recognition was accorded the fact that the authorities are not in accord on the question of competency of evidence of extrajudicial identification, and the court, finding it unnecessary to rule on the question raised in the...