Lee v. Martinez, 27,915.

• Decision Date: 14 July 2004
• Docket Number: No. 27,915.,27,915.
• Citation: 2004 NMSC 27,136 N.M. 166,96 P.3d 291
• Parties: Kevin LEE, William Vance Langley, Teri Bogey, Teodoro Jose Gallegos, and Erlinda Saiz, Petitioners, v. Hon. Lourdes MARTINEZ, Third Judicial District Court, Hon. Jay Forbes, Fifth Judicial District Court, Hon. Charles Currier, Fifth Judicial District Court, Hon. Timothy L. Garcia, First Judicial District Court, and Hon. W. John Brennan, Second Judicial District Court, Respondents.
• Court: New Mexico Supreme Court

96 P.3d 291

136 N.M. 166

2004 NMSC 27

Kevin LEE, William Vance Langley, Teri Bogey, Teodoro Jose Gallegos, and Erlinda Saiz, Petitioners, v. Hon. Lourdes MARTINEZ, Third Judicial District Court, Hon. Jay Forbes, Fifth Judicial District Court, Hon. Charles Currier, Fifth Judicial District Court, Hon. Timothy L. Garcia, First Judicial District Court, and Hon. W. John Brennan, Second Judicial District Court, Respondents.

No. 27,915.

Supreme Court of New Mexico.

July 14, 2004.

John Bigelow, Chief Public Defender, Jeff Rein, Freedman, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Charles W. Daniels, Albuquerque, for Petitioners.

Patricia A. Madrid, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, for Respondents.

University of New Mexico School of Law, Michael B. Browde, Albuquerque, for Amicus Curiae New Mexico Trial Lawyers Association.

Vaughan & DeMuro, Gordon L. Vaughan, Colorado Springs, CO, William E. Parnall, Albuquerque, for Amicus Curiae American Polygraph Association and American Association of Police Polygraphists.

OPINION

MINZNER, Justice.

{1} Petitioners are defendants in several pending criminal cases who are seeking to have their polygraph examination results admitted into evidence under Rule 11-707(C) NMRA 2004, which states that "the opinion of a polygraph examiner may in the discretion of the trial judge be admitted as evidence as to the truthfulness of any person called as a witness," provided certain conditions are met. In each case the State has opposed the admission of such polygraph evidence on the ground that it fails to satisfy the standard for the admissibility of expert testimony set forth in Rule 11-702 NMRA 2004. On February 10, 2004, Petitioners filed a Petition for Writ of Superintending Control asking this Court to order the district courts to comply with Rule 11-707, rather than conducting a separate Rule 11-702 hearing in each case.

{2} On April 14, 2003, we granted Petitioners' request for a writ pursuant to Rule 12-504 NMRA 2004 and Article VI, Section 3 of the New Mexico Constitution. In our order, we remanded the cases to the Honorable Richard J. Knowles of the Second Judicial District "for the limited purpose of conducting an evidentiary hearing as to the scientific reliability of polygraph evidence under State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993),State v. Anderson, 118 N.M. 284, 881 P.2d 29 (1994), and State v. Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20." The district court held a seven-day evidentiary hearing in order to determine whether polygraph evidence should be admissible.

{3} On August 25, 2003, the district court filed its Findings of Fact and Conclusions of Law. In addition to its legal conclusions, the district court's order contained a thorough description of the polygraph examination and a comprehensive review of how other jurisdictions have treated polygraph evidence. The district court's Findings of Fact and Conclusions of Law are attached as an appendix. First, the district court concluded polygraph results are not sufficiently reliable to satisfy Rule 11-702. Second, the district court concluded that "the limited probative value [of] polygraph test results is substantially outweighed by the danger of confusion of the issues, undue delay, and waste of time" rendering such results inadmissible under Rule 11-403 NMRA 2004. Third, the district court cited authority for the proposition that polygraph testimony is inadmissible under Rule 11-608(B) NMRA 2004, which generally provides that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility... may not be proved by extrinsic evidence."

{4} We now must consider whether to repeal our Rule 11-707 and hold that polygraph results are per se excluded. For the reasons that follow in this opinion, we do not repeal Rule 11-707. Instead, we hold that polygraph examination results are sufficiently reliable to be admitted under Rule 11-702, provided the expert is qualified and the examination was conducted in accordance with Rule 11-707. Therefore, we exercise our power of superintending control to order the district courts in the pending cases to comply with Rule 11-707 in determining whether to admit polygraph examination results. The proponents of such polygraph evidence are not required to independently establish the reliability of the examiner's testimony in a Daubert/Alberico hearing.

{5} We do not address the admissibility of the polygraph results in the pending cases under Rule 11-403 because it would be inappropriate for this Court to categorically exclude any type of evidence under that rule. See Ohlson v. Kent Nowlin Const. Co., 99 N.M. 539, 542, 660 P.2d 1021, 1024 (Ct.App. 1983)

("There is, and can be, no fixed rule delineating relevant and irrelevant evidence. The problem must be decided on a case-by-case basis."). Furthermore, Rule 11-707(C) specifically provides that the admissibility of polygraph results is subject to "the discretion of the trial judge." We believe that the district court in its discretion may properly exclude polygraph results when the probative value of such results "is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." Rule 11-403. However, it would be an abuse of discretion for the district court to apply Rule 11-403 to exclude polygraph results that were conducted in accordance with Rule 11-707 if the district court's reasons for excluding the evidence are grounded in a general disbelief in the reliability of polygraph results or a general hostility toward polygraph evidence.

{6} We also decline to address the applicability of Rule 11-608(B) because the issue was not raised in the Petition for a Writ of Superintending Control and was not extensively briefed by the parties. However, we note that Rule 11-608(B) deals with character evidence. Rule 11-707(C) states that "the opinion of a polygraph examiner may... be admitted as evidence as to the truthfulness of any person called as a witness." (Emphasis added.) If, as Rule 11-707(C) seems to allow, polygraph results are offered as character evidence, then Rule 11-707 may very well act as an exception to Rule 11-608(B). Furthermore, polygraph results are not necessarily character evidence; the evidence may be offered as evidence of the examinee's lack of consciousness of guilt, which would be admissible under Rule 11-404(B) NMRA 2004. See State v. Martinez, 1999-NMSC-018, l 29, 127 N.M. 207, 979 P.2d 718

("[C]onsciousness of guilt, like intent or motive, constitutes a permissible use of other acts or wrongs under Rule 11-404(B).").

At any rate, we need not decide the issue in this opinion.

I. THE POLYGRAPH EXAMINATION

{7} The National Academy of Sciences ("NAS"), a private, non-profit society of distinguished scientists and engineers that advises the federal government on scientific and technical matters, recently conducted a review of the validity of polygraph testing. The published report of the NAS provides a detailed description of the various polygraph testing techniques, sets forth the basic scientific theories underlying the polygraph examination, and objectively reviews the scientific literature on the reliability of polygraph examinations. See National Research Council of the National Academies, The Polygraph and Lie Detection (2003), available at http://www.nap.edu/open-book/XXXXXXXXXX/html [hereinafter "NAS Report"]. The NAS Report contributed greatly to our understanding of the underlying science of the polygraph examination and was immensely helpful to our resolution of the issues in this case. In this section, we rely heavily on the NAS Report in describing the modern polygraph examination.

{8} The polygraph instrument records "physiological responses that are believed to be stronger during acts of deception than at other times." Id. at 13. These physiological responses include cardiovascular activity, electrodermal activity (electrical conductance at the skin surface), and respiratory activity. See id. at 286-89 (describing in detail the physiological processes measured by the polygraph). In general, a polygraph examination consists of "a series of yes/no questions to which the examinee responds while connected to sensors that transmit data on these physiological phenomena by wire to the instrument, which uses analog or digital technology to record the data." Id. at 13. "[T]he record of physiological responses during the polygraph test is known as the polygraph chart." Id. The polygraph examination is based on the theory that "a deceptive response to a question causes a reaction â ? such as fear of detection or psychological arousal â ? that changes respiration rate, heart rate, blood pressure, or skin conductance relative to what they were before the question was asked." Id.

{9} Three different polygraph questioning techniques have been developed. First, in the "relevant/irrelevant" technique, the examinee is asked two different types of questions â ? "the relevant questions are typically very specific and concern an event under investigation"; whereas, "[t]he irrelevant questions may be completely unrelated to the event and may offer little temptation to deceive." Id. at 14. A deceptive person is expected to have a stronger physiological response to the relevant questions than to the irrelevant questions. Id. Second, in the "control question technique" or "comparison question technique," instead of coupling the relevant questions with irrelevant questions, the irrelevant questions are replaced with control questions "intended to generate physiological reactions even in nondeceptive examinees." Id. An example of a control question might be, "Have you ever lied to a friend?" Truthful examinees are expected to experience stronger physiological...