Com. v. DiLego

• Decision Date: 07 September 1982
• Citation: 439 N.E.2d 807,387 Mass. 394
• Parties: COMMONWEALTH v. John DiLEGO, Third.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 807

439 N.E.2d 807

387 Mass. 394

COMMONWEALTH v. John DiLEGO, Third.

Supreme Judicial Court of Massachusetts,

Berkshire.

Argued May 7, 1982.

Decided Sept. 7, 1982.

John F. McLaughlin, Jr., Pittsfield, for defendant.

Daniel A. Ford, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

We are squarely presented with whether a trial judge may, in his discretion, admit the results of a polygraph examination to corroborate the testimony of a prosecution witness. We conclude that a judge may not, at least in the absence of an appropriate stipulation concerning the admissibility of the results of such an examination.

The defendant was convicted in May, 1981, of attempted arson and of perjury following a jury trial in the Superior Court in Berkshire County. He was charged with attempting to burn a building and with two counts of perjury in testimony before a grand jury in which he denied his involvement in the attempted arson. The Commonwealth's case against the defendant depended on the testimony of one Ronald Thomas.

Originally, Thomas had denied the defendant's involvement in the crime. On December 19, 1980, Thomas had been given a polygraph examination in which he denied the defendant's involvement. On February 10, 1981, Thomas was convicted of the attempted arson of the same building, arising out of the same incident. Following Thomas's conviction, the prosecutor recommended a sentence of from five to seven years at the Massachusetts Correctional Institution at Walpole. Sentencing was deferred until March 19, 1981. Thomas did not want to serve a sentence at Walpole, and he changed his position concerning the defendant's involvement in the attempted arson. On February 18, 1981, Thomas gave a statement describing the defendant's involvement. The prosecution agreed to bring Thomas's cooperation to the attention of the sentencing judge, provided Thomas gave a complete statement and "passed" a polygraph examination. A second polygraph examination was given on March 12, 1981, in which Thomas stated that the defendant had been involved in the attempted arson. After the test results were received, the prosecutor recommended a sentence of two and one-half years in a house of correction, and, on March 19, 1981, the judge imposed a two-year sentence to be served in a house of correction.

At the defendant's trial, Thomas testified concerning the defendant's participation in the attempted arson. He testified that his earlier statements that the defendant was not involved were incorrect, that he had changed his story after he was found guilty, and that his more recent statements concerning the defendant's involvement were true. After other evidence was introduced, the Commonwealth called the polygraph examiner who had conducted both polygraph examinations of Thomas. The judge held a lengthy voir dire concerning the two examinations, made detailed findings, and ruled the results of each test were admissible, but solely on the question of Thomas's credibility. The examiner then testified before the jury that, in his opinion, (a) Thomas was "conclusively deceptive" when he said at the first examination on December 19, 1980, that the defendant was not involved in the attempted arson and (b) Thomas was "conclusively truthful" when he said at the second examination on March 12, 1981, that the defendant was involved.

The jury returned guilty verdicts on the perjury and attempted arson charges. The defendant was sentenced to concurrent sentences of from four and one-half to six years at the Massachusetts Correctional Institution at Walpole, but execution of sentence was stayed pending appeal.

1. We hold that it was error to admit the results of a polygraph examination to corroborate the testimony of Thomas, the principal prosecution witness. The question of the admissibility in this Commonwealth of such evidence to corroborate (or to impeach) the testimony of a witness, other than a defendant, was an open one at the time of the trial. This court has set forth procedures for the admissibility of the results of a polygraph examination of a defendant (Commonwealth v. A Juvenile, 365 Mass. 421, 313 A.2d 120 [1974] ), and has limited the admissibility of the results of such tests to the impeachment or corroboration of a criminal defendant's testimony (Commonwealth v. Vitello, 376 Mass. 426, 453-457, 381 N.E.2d 582 [1978] ). To this point, we have carefully left undecided the question of the admissibility of the results of a polygraph examination given to a witness other than a defendant. In Commonwealth v. Wilborne, --- Mass. ---, Mass. Adv. Sh. (1981) 59, 415 N.E.2d 192, where the defendant wished to impeach a prosecution witness by asking her whether she had taken and failed such an examination, we upheld the judge's exclusion of the question. But we did not pass on the general proposition and stated that we intimated no view on the admissibility of the results of a witness's polygraph examination. Id. --- Mass. at --- - ---, Mass. Adv. Sh. at 66-67, 415 N.E.2d 192. Earlier, in 1979, in reviewing various opinions in other courts, we concluded that, assuming such evidence might be admissible, the judge did not abuse his discretion in excluding the results of a polygraph examination given to a prosecution witness. Commonwealth v. Moore, 379 Mass. 106, 114, 393 N.E.2d 904 (1979). We said that, in that situation, "we think it the part of wisdom to reserve again the question whether evidence of a polygraph test is ever admissible to impeach a prosecution witness." Id. ¹

The issue cannot reasonably be avoided in this case. The judge heard evidence concerning the procedures followed in conducting the tests and concerning the reliability of the results. He made complete findings of fact and admitted the evidence in his discretion, carefully limiting its use to the question of Thomas's credibility. He concluded that the test results were admissible to rebut the inherent claim that Thomas's trial testimony was of recent contrivance. Certainly, the admission of this evidence cannot be fairly upheld on the ground that the admission, even if error, was not prejudicial to the defendant.

The polygraph test results of a criminal defendant are admissible only if the defendant agrees in advance of the test that adverse results can be admitted for impeachment purposes if he chooses to take the stand. Commonwealth v. Vitello, supra, 376 Mass. at 430 n.2, 381 N.E.2d 582. Here, there was no advance stipulation by the defendant or by the Commonwealth concerning the admissibility of polygraph test results. Consistent with our case by case treatment of the subject of the admissibility of polygraph test results, we express no opinion on their admissibility when, in advance of the test, the defendant or the Commonwealth, or both, agree to their admission to impeach or to corroborate the testimony of a witness. In the case before us, we have no stipulation. ²

The truthfulness of the testimony of a witness generally will not have as direct a bearing on a defendant's guilt as the truthfulness of the testimony of the defendant himself. The processes to be followed in admitting evidence of the results of a polygraph examination consume a great deal of time, and such evidence may divert the attention of the trier of fact from the question of the defendant's guilt toward the question whether a witness "passed" or "failed" the test. Commonwealth v. Vitello, supra 376 Mass. at 444-445, 381 N.E.2d 582. At this stage of the development of polygraph examinations, we thus decline to extend the principles of the Vitello case beyond the defendant to other witnesses, at least in...