Com. v. Mendes
Decision Date | 11 December 1989 |
Citation | 406 Mass. 201,547 N.E.2d 35 |
Parties | COMMONWEALTH v. Benjamin MENDES (and eight companion cases 1 ). |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Corinne Hirsch, Asst. Dist. Atty., for the Com.
Carol A. Donovan, Randolph, Committee for Public Counsel Services, for Benjamin Mendes.
Eric I. Zucker, Boston, for Kenneth Rosenberg.
Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.
In this case, we reexamine the admissibility of polygraphic evidence in criminal trials in this Commonwealth. Persuaded both by the failure of the basic theory of polygraphy to have gained general acceptance among physiological and psychological authorities, and by the nearly unanimous rejection of such evidence by courts throughout the United States (at least in the absence of stipulation), we conclude that polygraphic evidence is inadmissible in criminal trials in this Commonwealth either as substantive proof of guilt or innocence or as corroboration or impeachment of testimony.
The defendant Mendes is charged with rape of a child, indecent assault and battery on a child under sixteen, and rape of a child by force. The defendant Rosenberg is charged with rape of a child (two indictments), incest, and indecent assault and battery on a child under fourteen (three indictments). The defendants moved for court-ordered polygraphic examinations. Also, the defendant Mendes filed a motion seeking admission in evidence of the results of his previously court-ordered polygraph test. The motions were heard together by a judge of the Superior Court at an evidentiary hearing that consumed four days.
The judge issued a thorough memorandum in which he discussed the evidence at length, including numerous written studies, and set forth his findings and conclusions. He concluded as follows: (Emphasis in original.) 2 The judge concluded as follows: 3
The judge allowed each defendant's motion for a court-ordered polygraph examination, subject to conditions, among which are the requirements that the defendant file with the clerk "the results of any prior polygraphy test or tests he has taken along with an affidavit detailing his previous experience with the polygraph," and that those results and affidavit "be made available to the court-ordered polygrapher."
At the Commonwealth's request, the judge reported the following questions of law to the Appeals Court:
We granted the Commonwealth's application for direct appellate review. For the reasons stated below, we answer the first question "no; evidence that a defendant has taken a polygraphic examination, or testimony as to the results of such an examination is inadmissible at a criminal trial." Thus, we need not answer the remaining questions. We vacate the order allowing the defendants' motions for court-ordered polygraph tests.
In Commonwealth v. Fatalo, 346 Mass. 266, 191 N.E.2d 479 (1963), we first addressed the question whether the results of a polygraph test should be admissible in evidence at a criminal trial. In answering that question in the negative, we adopted the rule articulated in the landmark case of Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), that, "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." In rejecting an early predecessor of polygraphy, the Frye court stated: "We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." Id. In Fatalo, supra, 346 Mass. at 270, 191 N.E.2d 479, we, too, concluded that the polygraph test had not yet been accorded general scientific recognition, and that, therefore, the trial judge had properly excluded such evidence.
Commonwealth v. Lykus, 367 Mass. 191, 202, 327 N.E.2d 671 (1975). Those most qualified are not judges, but rather are scientists with special knowledge who are most familiar with the method or theory in question. Id. at 203, 327 N.E.2d 671. "Judicial acceptance of a scientific theory or instrument can occur only when it follows a general acceptance by the community of scientists involved." Id. at 196, 327 N.E.2d 671, quoting Commonwealth v. Fatalo, supra 346 Mass. at 269, 191 N.E.2d 479. In determining whether general acceptance by the appropriate scientific community has occurred, "we may properly consider not only the testimony of experts in the record before us but also articles written by experts and the conclusions of other courts." Commonwealth v. Kater, 388 Mass. 519, 527, 447 N.E.2d 1190 (1983). See Commonwealth v. Whynaught, 377 Mass. 14, 17-18, 384 N.E.2d 1212 (1979).
We have applied the Frye rule not only in the polygraphy context, see Fatalo, supra, but in numerous other contexts as well. The rule is imbedded in our law. See, e.g., Commonwealth v. Gomes, 403 Mass. 258, 265-266, 270, 526 N.E.2d 1270 (1988) ( ); Commonwealth v. Beausoleil, 397 Mass. 206, 215, 490 N.E.2d 788 (1986) ( ); Commonwealth v. Kater, supra 388 Mass. at 531-534, 447 N.E.2d 1190 (hypnotically aided testimony); Commonwealth v. Whynaught, supra 377 Mass. at 18, 384 N.E.2d 1212 (radar speedmeter); Commonwealth v. Lykus, supra 367 Mass. at 205, 327 N.E.2d 671 (spectrographic voice analysis). Apparently, the Chief Justice would have us abandon that long-standing rule. We are not persuaded to do so.
More than a decade after our decision in Fatalo, which was based on our acceptance of the Frye rule, we deviated from the Frye rule. In Commonwealth v. A Juvenile, 365 Mass. 421, 429, 313 N.E.2d 120 (1974), we stated that, "despite very significant progress in recent years," polygraphy was still insufficiently reliable to satisfy the Fatalo requirements for general admissibility. Nevertheless, the court, with three Justices dissenting, concluded "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." Id. 365 Mass. at 425, 313 N.E.2d 120. We subsequently observed in Commonwealth v. Vitello, 376 Mass. 426, 442, 381 N.E.2d 582 (1978), that "we recognized in A Juvenile that failure to achieve the standard of general acceptance need not freeze the evidentiary development of the polygraph in view of its...
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