Kaminski v. State

• Decision Date: 14 November 1952
• Citation: 63 So.2d 339
• Parties: KAMINSKI et al. v. STATE.
• Court: Florida Supreme Court

Page 339

63 So.2d 339

KAMINSKI et al. v. STATE.

Supreme Court of Florida, en Banc.

Nov. 14, 1952.

On Rehearing Feb. 24, 1953.

Ben Cohen, Miami Beach, George C. Dayton, Dade City, and Weldon G. Starry, Tallahassee, for appellants.

Richard W. Ervin, Atty. Gen., Boone D. Tillett, Jr., and William A. O'Bryan, Asst. Attys. Gen., for appellee.

PER CURIAM.

The record and the briefs in this cause have been examined. Mr. Chief Justice SEBRING, Mr. Justice HOBSON and Mr. Justice ROBERTS are of the view that the judgment appealed from should be reversed.

Mr. Justice THOMAS, Mr. Justice MATHEWS, Mr. Justice DREW and Mr. Justice TERRELL are of the view that the judgment appealed from should be affirmed.

It follows that the judgment appealed from must be and is hereby affirmed.

Affirmed.

SEBRING, C. J., and TERRELL, THOMAS, HOBSON, ROBERTS, MATHEWS, and DREW, JJ., concur.

On Rehearing

SEBRING, Justice.

The appellants, who were the defendants below, were tried and convicted of the crime of assault with intent to murder one Holton Newbold by shooting and beating him.

At the trial Newbold identified the defendants as his assailants and then testified at considerable length and with scrupulous detail concerning certain events and incidents which allegedly had occurred prior to the assault and which, if true, were sufficient to establish a motive for the shooting and beating. No other testimony was adduced by the prosecution to establish the identity of the assailants or that tended to place the defendants in the company of the prosecuting witness or at or near the scene of the crime immediately prior or at the time of its commission.

At the conclusion of the State's interrogation, Newbold was subjected to rigid cross-examination by defense counsel in an effort to destroy his credibility as a witness. After this cross-examination the State produced other witnesses, who gave testimony that was at considerable variance with the testimony given by the prosecuting witness in respect to the events and incidents supposed to have occurred prior to the commission of the crime. Following the giving of this testimony Newbold was recalled to the stand for further questioning by the State, and the following happened:

'Q. Holton, did you consent to and take a lie detector test while being examined by Mr. Henderson?

'Mr. Cohen: We object to the question on the ground it is immaterial whether he consented or objected to taking a lie detector test, and if the Court will withdraw the jury * * *. (Argument of counsel off record.)

'The Court: The objection will be overruled and the motion denied. He can answer the question and after he answers it, the State or the defense will be permitted to show what the test was on.

'Q. Did you take such a test? A. I did.'

After this redirect examination the State rested its case. Thereupon, one of the defendants took the witness stand and testified to certain facts which, if believed, were sufficient to establish alibis for both defendants, and other defense witnesses gave evidence which tended to contradict the testimony given by the prosecuting witness in respect to matters and events apparently deemed by the prosecution to be material to its case.

At the conclusion of the entire evidence the case was submitted to the jury, who returned a verdict of guilty as charged.

The defendants have appealed from the judgment entered on the verdict and have assigned as one of the grounds for reversal the action of the trial judge in allowing the prosecuting witness to testify that he had submitted to the lie detector test.

We find, without a single exception, that every court of last resort that has been called upon to decide the question has ruled that results obtained from the so-called lie detector test are not admissible as evidence. As the matter is stated in one of the earliest reported cases on the subject:

'We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and phychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.' Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014, 34 A.L.R. 145. For other cases on the point see also People v. Forte, 279 N.Y 204, 18 N.E.2d 31, 119 A.L.R. 1198; State v. Cole, 354 Mo. 181, 188 S.W.2d 43, 189 S.W.2d 541; Henderson v. State, Okl.Cr.App., 230 P.2d 495, 23 A.L.R.2d 1292; People v. Wochnick, 98 Cal.App.2d 124, 219 P.2d 70; State v. Lowry, 163 Kan. 622, 185 P.2d 147; State v. Pusch, 77 N.D. 860, 46 N.W.2d 508; Boeche v. State, 151 Neb. 368, 37 N.W.2d 593; Le Fevre v. State, 242 Wis. 416, 8 N.W.2d 288; People v. Becker, 300 Mich. 562, 2 N.W.2d 503, 139 A.L.R. 1171. See also Wigmore on Evidence, 3d Ed., Vol. III, Sec. 999, note 2; and 20 Am.Jur. 633.

The Attorney General does not deny that the rule in respect to admissions is as has been stated. He contends, however, that none of the decisions relied on by the appellants are relevant to the case at bar, for the reason that they involve the question of the admissibility or inadmissibility of results from lie detection tests, and not the question whether testimony as to the taking of a lie detector test is admissible for the purpose of rehabilitating a witness. As he states the matter in his brief, 'Actually, what the appellant is complaining of here is the fact that after his counsel had...