Commonwealth v. Slonka
| Decision Date | 20 January 2000 |
| Docket Number | 911479 |
| Citation | 2000 MBAR 031 |
| Parties | Commonwealth v. Stanley Slonka |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 11 Mass. L. Rptr. 264
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): WERNICK
On April 28, 1991, Karen Mills ("Mills"), a prostitute addicted to cocaine, entered a pickup truck, was driven to a remote area and was viciously stabbed in the abdomen with what appeared to be hedge shears and left to die. She was discovered by a passerby and taken to a nearby hospital where her life was saved. Mills subsequently identified the defendant, Stanley Slonka ("Slonka"), as her attacker. Slonka was arrested on June 5, 1991, and was arraigned on June 11, 1991, in the Hampden Superior Court on indictments charging armed assault with intent to murder and assault and battery by means of a dangerous weapon. A jury returned verdicts of guilty on both indictments on March 13 1992. Slonka was sentenced to concurrent terms at MCI Cedar Junction of 15 to 20 years on the indictment charging armed assault with intent to murder and 9 to 10 years on the indictment charging assault and battery by means of a dangerous weapon. On May 30, 1997, Slonka's conviction was reversed and the case was remanded for new trial. , 42 Mass.App.Ct. 760 (1997), further appellate review denied, 425 Mass. 1108 (1997).
OnMarch 16, 1999, Slonka was administered a polygraph examination by James A. Johnson, Jr., ("Johnson") at the law offices of Slonka's attorney, William O'Neill. This was a confidential polygraph examination, meaning that if Mr Slonka failed the examination, the results would remain privileged and confidential. Johnson used the control question technique for the examination. There are various types of control question examinations. The technique used by Johnson is known as the probable lie comparison question technique. This technique involves asking the subject relevant questions and comparison questions. Relevant questions deal with the specific accusations at issue and are interspersed with control questions during the polygraph test. In this case, the relevant questions were (a) did you on April 28, 1991, stab Karen Mills? (b) did you on April 28, 1991, stab Karen Mills near the Connecticut River? (c) was Karen Mills on April 28, 1991, ever in your pickup truck? Control or comparison questions are designed to elicit probable lies from the subject on matters remote in time and subject matter from the relevant questions. An example of a control or comparison question used during Slonka's examination is "before the age of 20, other than what you told me about, did you ever lie to a priest or nun?" Throughout the examination, the polygraph device measures certain involuntary physiological responses of the subject during each question. These responses are respiratory activity, sweat gland activity, heart rate and blood pressure, or, more scientifically, electrodermal, pneumatic and cardiovascular activity.
The control question technique was introduced in 1947 by John Reid. The technique is based upon the emotion of fear as the dominant factor in the psychology of polygraph. The psychological theory, according to Johnson, The basic premise is that guilty individuals will show stronger responses to relevant questions than to the comparison questions, while innocent individuals will respond more strongly to the comparison questions, since the comparison question presumably will pose a greater threat to the innocent individual than to the guilty person.
The first part of a control question polygraph examination consists of a pre-test interview to obtain identification and biographical information, establish rapport between the participant and the examiner, review the questions, both relevant and comparison, with the subject and explain the instrumentation portion of the examination to follow. The pre-test is essential for a number of reasons, including, but not limited to, determining whether the subject is a suitable subject for polygraph examination, conditioning the subject, persuading the subject that the examiner will be able to detect untruthful responses, designing the comparison questions and insuring that the subject will not be confused in any way by any of the questions. Failure to conduct an adequate pretest will result in an unreliable polygraph examination.
Slonka's responses to each of the relevant questions was "no." Johnson determined by examining the readout from the polygraph machine that Slonka's responses were consistent with truthfulness.
Before Johnson administered the polygraph examination to Slonka, a study was commissioned to determine Johnson's accuracy as a polygraph examiner. This study was performed by Professor Jack Levin and his assistant Janese Free, at Northeastern University, between January 1999 and March 1999, The unpublished report of this study describes the study as follows:
The accuracy of polygraph examinations administered by examiner James A. Johnson, Jr. was tested with a sample of 20 students at Northeastern University. The study utilized the well-established "mock crime" model. Half of the participants were randomly assigned the "guilty" condition and instructed to commit a mock purse snatching. Half of the participants were randomly assigned the "innocent" condition and did not commit a mock crime. All participants were instructed to deny committing the purse snatching when polygraphed. The examiner, who had no knowledge of the guilt or innocence of the participants, conducted a control question test polygraph to determine whether each participant was being deceptive. By monitoring and recording the participant's electrodermal, pneumatic, and cardiovascular activity during the examination using relevant and control comparative questions, quantitative evaluations of the physiological responses were made. Excluding the 3 inconclusives and 1 invalidated test, the examiner correctly detected 7 out of the 7 deceptive subjects, and 8 out of the 9 truthful subjects.
Each subject was paid $8.00 per hour for his/her participation. A $50.00 bonus was offered each subject who passed the test. Further details of this study are described later in this memorandum.
Slonka has now moved that the results of his polygraph examination of March 16, 1999, be admitted at his retrial. He has also moved that an additional polygraph examination be conducted by the Commonwealth's polygraph examiner, or by another neutral examiner, and that the results of that examination also be admitted, whatever they turn out to be. Evidence was presented to the court over three days and numerous memoranda were filed by the parties.1 After consideration of all of the evidence and the parties' memoranda, the court concludes that Slonka's motion must be denied in its entirely.2
"Polygraph evidence, with or without pretest stipulation, is inadmissible in criminal trials in the Commonwealth either for substantive purposes or for corroborating or impeachment of testimony." Commonwealth v. Mendes, 406 Mass. 201, 212 (1989). Mendes applied the standard established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and Commonwealth v. Fatalo, 346 Mass. 266 (1963). Thatstandard was that "[j]udicial acceptance of a scientific theory or instrument can occur only when it follows a general acceptance by the community of scientists involved." Commonwealth v. Lykus, 367 Mass. 191, 196 (1975), quoting Fatalo, supra at 269. Noting that "[W]e have never determined that the appropriate scientific community, which includes physiologists and psychologists, has generally accepted the validity of polygraphy as a scientific means of detecting deception," Mendes, supra at 207, the Court concluded that Id. at 212.
The standard for admissibility of scientific evidence has changed since Mendes. It is that change that Slonka seizes upon to argue that the admissibility of polygraph evidence is again an open question in this Commonwealth. In Commonwealth v. Lanigan, 419 Mass. 15 (1994), the Court rejected strict adherence to general acceptance as the sole determinant of admissibility, holding that "[t]he ultimate test... is the reliability of the theory or process underlying the expert's testimony." Id. at 24. The Court, however emphasized that (Emphasis added.) Id. at 26. Other factors may be considered by a trial court in determining the reliability of the scientific theory or process underlying proffered opinion testimony, including whether the theory or process can be or has been tested whether the theory or process has been subject to peer review; the known or potential error rate of the process; and the existence of standards controlling the process'...
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