Com. v. Vitello

Decision Date26 September 1978
Citation381 N.E.2d 582,376 Mass. 426
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Maurice F. Ford, Dorchester, for defendant.

Susan C. Mormino, Asst. Dist., Atty., for the Commonwealth.


LIACOS, Justice.

The defendant was indicted for armed robbery, G.L. c. 265, § 17, and was found guilty after a jury trial. He appealed under the provisions of G.L. c. 278, §§ 33A-33G. We transferred the case here from the Appeals Court on our own motion. G.L. c. 211A, § 10(A).

Considering only those assignments of error that have not been waived for failure to brief the arguments adequately, see Commonwealth v. Martin, 358 Mass. 282, 290, 264 N.E.2d 366 (1970), we are presented with two issues. First, did the trial judge err in allowing testimony regarding a polygraph examination unfavorable to the defendant to be introduced during the Commonwealth's case in chief? Second, should the judge have granted the defendant's motions for directed verdict made after the Commonwealth's case in chief and at the completion of all the evidence?

1. Admissibility of polygraph evidence not favorable to the defendant. Prior to trial, the defendant moved that he be allowed to take a polygraph examination, at the expense of the Commonwealth, "for the purpose of introducing its results into evidence" at the trial. The same judge who later presided at the trial allowed the motion after hearing. The examination was conducted by an employee of an agency selected by the defendant, and approved by the court.

After the jury had been empanelled but before the opening statements, the defendant's counsel asked the judge at a bench conference whether the polygraph evidence would be limited to impeaching the defendant's credibility should he take the stand, or whether it would be admissible as "substantive" evidence. The judge answered that, should he find the examiner to be qualified, the polygraph evidence would be admissible as part of the Commonwealth's case in chief. The judge also decided that the prosecutor could advise the jury during his opening of the polygraph evidence he expected to introduce. The defendant took exception to this ruling. After the prosecutor completed his opening statement in which he stated that the prosecution would offer testimony by the polygraph examiner that the defendant was untruthful in his responses of denial that he had committed the robbery, the defendant moved for a mistrial. The motion was denied and the defendant excepted.

Following a voir dire hearing, the judge found that the examiner was qualified as an expert on polygraphy and could testify. Over the objection and exception of the defendant, the examiner took the stand as part of the Commonwealth's case in chief. The examiner stated that, in his opinion, the examination did not support the truthfulness of the defendant's denials of involvement in the robbery. The defendant assigns as error the admission of this testimony. We agree that this testimony was improperly admitted.

We begin our discussion with a consideration of our prior decisions on the admissibility of polygraph evidence. In Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120 (1974), we deviated from our earlier view that the results of a polygraph examination were not admissible as evidence in a criminal case because the polygraph had not yet achieved "general acceptance by the community of scientists involved." Commonwealth v. Fatalo, 346 Mass. 266, 269-270, 191 N.E.2d 479, 481 (1963). Since our decision in A Juvenile, we have not had occasion to elaborate on the principles and guidelines set forth therein. 1

In A Juvenile, the issue presented was whether the trial judge had erred in denying the juvenile's pretrial motion for admission of polygraph test results. The juvenile, in his appeal, argued that developments in the field of polygraph testing since Fatalo, as well as the acceptance of polygraph results as evidence by a few trial courts, justified a conclusion that the "general acceptance" standard of Fatalo had been satisfied. We concluded that "(a) lthough . . . 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." 365 Mass. at 425, 313 N.E.2d at 123.

Despite our conclusion in A Juvenile That polygraph test results should not be generally admissible in evidence, a majority of the court recognized that a properly conducted test had potential value "as an aid to determining whether an individual is telling the truth." Id. at 429, 313 N.E.2d at 126. Emphasizing that we intended to take "but a cautious first step toward the acceptance of polygraph testing," Id. at 432, 313 N.E.2d at 127, we held that the technique "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. at 425, 313 N.E.2d at 124. 2

Although we emphasized in A Juvenile our general intention "not to overrule Commonwealth v. Fatalo . . . , and not to make polygraphic evidence generally admissible," Id. at 433 n.11, 313 N.E.2d at 128, we did not attempt to indicate in any precise manner what evidentiary purposes could be accomplished by the admission of evidence as to polygraph test results. Contemplating that more detailed and comprehensive guidelines would be forthcoming in future decisions, Id. at 432-433, 313 N.E.2d 120, we left a number of questions unanswered. See Id. at 448-450, 313 N.E.2d 120 (Quirico, J., dissenting); Id. at 452-453, 313 N.E.2d 120 (Kaplan, J., dissenting). It is thus understandable that one trial judge, relying on A Juvenile, could conclude that favorable polygraph evidence is admissible only to corroborate the defendant's testimony, see Commonwealth v. Moynihan, --- Mass. --- A, 381 N.E.2d 575, while another trial judge could conclude in this case that unfavorable polygraph evidence is admissible as part of the Commonwealth's case in chief.

Although the instant case and the Moynihan Case indicate that the time has come to elaborate on the holding of A Juvenile, we emphasize that this is not an appropriate occasion to reexamine the type of factual questions presented to and considered by this court in Fatalo and A Juvenile. Specifically, no evidence has been submitted on the question of the scientific reliability or acceptability of the polygraph method. Rather, we accept as current and valid the finding of the court in A Juvenile that the "general acceptance" standard of Fatalo has not yet been achieved. We seek only to clarify when, and for what purposes, a trial judge may allow in evidence testimony concerning a polygraph examination that has been conducted within the guidelines established by A Juvenile. To determine these questions we consider the factors of (a) the nature of the polygraph method; (b) pertinent considerations of the rules of evidence; and (c) policy.

(a) The polygraph method. A great deal has been written concerning the theoretical and practical aspects of the polygraph method, and numerous authorities have analyzed and debated its impact on the judicial process. We take note of the various authorities and treatises on the subject not as a substitute for evidence as to the reliability or limitations of the polygraph method but rather to recognize the views of various courts and authors on the subject. We limit our inquiry primarily to those aspects of the polygraph method that shed light on its evidentiary nature and capacity. In particular, we highlight the role of the polygraph examiner in administering, analyzing, and describing 3 the polygraph test.

The polygraph method consists of a complex, and incompletely understood, series of interactions among (1) the subject, (2) the polygraph machine, and (3) the examiner. Each of these three facets of the "lie detection" process can be broken down into constituent parts. Focusing first on the response of the subject, it is theorized that (a) the act of lying or deceiving leads to conscious conflict, (b) which induces fear or anxiety, (c) which results in measurable physiological events such as changes in skin resistance (perspiration), respiration, blood pressure, heart rate, blood flow, skin temperature, muscle tension, pupillary diameter, gastric motility, and blood oxygen saturation. See Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection, 70 Yale L.J. 694, 699-700 (1961) (hereinafter cited as Skolnick). These psychophysiologic reactions are largely controlled by the autonomic nervous system, which functions automatically and involuntarily. See Abrams, Polygraphy Today, 3 Nat'l J. Crim. Def. 85, 88 (1977) (hereinafter cited as Abrams). The theory that conscious lying can be detected reliably by measuring involuntary physiological changes thus seems to assume a regular relationship between lying and certain emotional states, and a regular relationship between emotional states and changes in the body. The validity of both these assumptions has been questioned. 4

The second facet of the polygraph method the mechanical and electrical functioning of the polygraph machine appears to be the best understood, and least controversial, aspect of the process. Although there are some differences in the functioning of the various types of polygraphs, the higher quality machines are generally conceded accurately to measure and record changes in blood pressure, heart rate, respiration, and skin resistance. Stress-sensing devices may also be provided to measure body movements and muscle flexing activities which...

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