Com. v. Juvenile (No. 1)

• Decision Date: 12 June 1974
• Citation: 365 Mass. 421,313 N.E.2d 120
• Parties: COMMONWEALTH v. A JUVENILE (NO. 1).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 120

313 N.E.2d 120

365 Mass. 421

COMMONWEALTH v. A JUVENILE (NO. 1).

Supreme Judicial Court of Massachusetts, Bristol.

Argued Feb. 6, 1974.

Decided June 12, 1974.

Rudolph F. Pierce, Boston (Charlotte A. Perretta, Boston, with him) for defendant.

Mary A. McLaughlin, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

This is an appeal pursuant to G.L. c. 278, § 33B, following a Superior Court jury verdict that the appellant, a juvenile, is a delinquent by reason of manslaughter. The facts are essentially those recited in our previous decision in this case. ¹

Six grounds for reversal were argued. We will deal first with the issues surrounding the trial judge's denial of the juvenile's pre-trial motions for the admission of polygraph, or 'lie detector' test results. From the record it is clear that substantial advances have been made in the field of polygraphy since we rejected the admission of such evidence in Commonwealth v. Fatalo, 346 Mass. 266, 191 N.E.2d 479 (1963).

I.

In a written motion to the trial court, the juvenile stated that on May 26, 1970, a polygraph examination was administered to him by two polygraph experts of his own choosing, and that the results indicated that he was telling the truth when he denied having caused, directly or indirectly, the death of the victim in this case. He wished to 'offer testimony of qualified experts at trial to demonstrate the scientific reliability of the polygraph, the scientific acceptability of the polygraph with particular attention to the increased acceptability of the polygraph since 1963 when its admissibility was last ruled on by the Supreme Judicial Court . . . Commonwealth v. Fatalo, 346 Mass. 266, (191 N.E.2d 479) the manner in which the test was administered to the defendant, the physiological, psychological, and technological manner in which the test is effective, and the opinion of the test examiners and the specific basis for the opinion, regarding the truthfulness of defendant's answers to questions which are extremely relevant to the case in that they relate to the substance of the crime alleged by the complaint against the defendant.' Attached to the motion were three memorandum opinions by trial courts, two Federal and one State allowing polygraph results in evidence in criminal cases. United States v. Ridling, 350 F.Supp. 90 (E.D.Mich.1972). United States v. Zeiger, 350 F.Supp. 685 (D.D.C.1972), revd., 155 U.S.App.D.C. 11, 475 F.2d 1280 (1972). People v. Cutler (Superior Ct. of Cal. for L. A. County, November 6, 1972) (unreported).

The trial judge conducted a preliminary hearing at which the juvenile introduced the expert testimony described in his written motion. At the conclusion of the hearing, the juvenile made a supplemental oral motion requesting that the court order an additional polygraph examination by a court appointed examiner, whose results would be admissible together with or independent of those of the juvenile's expert, or that the Commonwealth be ordered to conduct an examination by an expert of its own choosing, and have those results admissible together with those of the juvenile's expert.

The trial judge denied the juvenile's motions, with expressed reluctance. He said, 'Polygraphic tests are now generally and widely accepted in the scientific community. The machine has proven to be a reliable instrument for detecting deception. Since the year 1963, polygraphic testing has become more reliable, and scientific acceptance thereof has increased. Advances have been made both to the machine itself and in the ways of administering the test. When conducted by competent polygraph examiners under proper examination conditions, polygraphic testing possesses a high degree of reliability and scientific acceptability. (The) polygraphic test of the juvenile was conducted by a qualified and highly competent polygraph examiner. Notwithstanding the foregoing findings and though counsel has cited some instances where the results of polygraphic tests have been admitted into evidence, I am not convinced that the courts in general have given widespread acceptance to this type of evidence, nor is there any indication that state legislatures have passed legislation permitting such tests or the results thereof as evidence. In any event, I do not feel that a favorable determination of the admissibility, if indeed it is warranted, should be made in the first instance by the trial judge. If any change in this direction is at all indicated, then it is a matter that is better left to an appellate court, particularly where our Supreme Judicial Court has already expressed its views regarding the acceptability of this type of evidence . . . In conclusion, the written motion and the supplemental oral motion . . . (are) denied.'

It is evident that the judge was convinced of the polygraph's reliability and evidentiary value but felt that as a trial judge he should wait for our prior approval before admitting such evidence. In Commonwealth v. Fatalo, supra, we held that the results of polygraph tests were not admissible as evidence in a criminal case because the test had not yet achieved general acceptance by the scientific community as a reliable method for determining whether an individual is telling the truth. While not establishing universal scientific approval or a demonstration of infallibility as prerequisites to admissibility of polygraph test results, we felt that the results could not be admitted until the 'substantial doubts which presently revolve about the polygraph test' were resolved. 346 Mass. at 270, 191 N.E.2d at 481. The juvenile, in attacking the validity of the trial judge's denial of his motions, asserts that developments in the field of polygraph testing since the Fatalo case and the recent acceptance of polygraph results as evidence by a few trial courts, demonstrate that the doubts which troubled us in 1963 can no longer be called substantial enough to deny admissibility to the results of tests conducted on a criminal defendant by experts under proper conditions. We do not accept that argument in full force. Although we acknowledge that these scientific and legal developments indicate that the polygraph is making progress in a hoped for evolution toward complete evidentiary recognition, we nevertheless are unwilling to say at this time that the standard in the Fatalo case has been met and that the polygraph test results should henceforth be subject to the same rules of evidence applicable to other forms of acceptable expert scientific evidence. We do, however, think that polygraph testing has advanced to the point where it could prove to be of significant value to the criminal trial process if its admissibility initially is limited to carefully defined circumstances designed to protect the proper and effective administration of criminal justice. Accordingly, we hold for reasons stated below that if a defendant agrees in advance to the admission of the results of a polygraph test regardless of their outcome, the trial judge, after a close and searching inquiry into the qualifications of the examiner, the fitness of the defendant for such examination, and the methods utilized in conducting the tests, may, in the proper exercise of his discretion, admit the results, not as binding or conclusive evidence, but to be considered with all other evidence as to innocence or guilt. As a prerequisite the judge would first make sure that the defendant's constitutional rights are fully protected.

Engaging at this point in an exhaustive and lengthy treatment of the subject of polygraphy would to a large extent be but a rehash of what has already been effectively said elsewhere. ² We will instead, based mainly on the testimony before the trial judge, limit ourselves to a discussion of the polygraph and the associated scientific and legal problems to the extent it is necessary to explain the conclusions reached by us. The polygraph machine is a scientific device which through measurement and recording of involuntary bodily responses--blood pressure, pulse rate, respiration, and skin resistance to electricity--seeks to determine whether an individual is telling the truth. The fundamental assumptions of polygraphy are that (1) there is a regular relationship between lying and emotional states and (2) there is a regular relationship between these emotional states and measurable physiological changes in the body. See Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection, 70 Yale L.J. 694, 700 (1961). In short, the polygraph machine is said to be capable of determining an individual's subjective state of mind through analysis of objective criteria which cannot be manipulated by the individual.

Equal to the importance of the machine itself is the competence, experience, and education of the test examiner. '(I)t is the examiner who must screen out the 'unfit' examinee, conduct the important pretest interview (which is essential to the proper preparation of the actual test questions), and supervise the environment of the test of eliminate possible distortive influences, as well as ask the questions and interpret the resulting polygrams.' United States v. DeBetham, 348 F.Supp. 1377, 1385 (S.D.Cal.1972). ³ Overall, the training and background of polygraph examiners have become more sophiscated in recent years, and the 'practice has acquired the usually accepted indicia of a profession, such as a national professional organization, training schools, qualification standards, yearly seminars, and specialized publications.' United States v. Zeiger, supra, 350 F.Supp. at 688. Nevertheless, as a profession, polygraphy has yet to achieve a uniform minimum level of competence. As one court said, '(t)he polygraph, the theory, the technique and the hardware seem to have outstripped the general acceptance of...