People v. Adams

• Decision Date: 19 November 1975
• Docket Number: Cr. 26780
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Warren ADAMS, Defendant and Appellant.

Page 518

125 Cal.Rptr. 518

53 Cal.App.3d 109

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Warren ADAMS, Defendant and Appellant.

Cr. 26780.

Court of Appeal, Second District, Division 5, California.

Nov. 19, 1975.

Hearing Denied Feb. 11, 1976.

Law offices of Barry Tarlow, Barry Tarlow, Los Angeles, Garza, Kassel & Jordan, and Donald W. Jordan, Jr., San Bernardino, for defendant and appellant.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Head, App. Div., and Donald J. Kaplan, Deputy Dist. Atty., for plaintiff and respondent.

HASTINGS, Associate Justice.

Defendant Robert Warren Adams was convicted in the municipal court of violating Vehicle Code, section 23101, subdivision (a) and Penal Code, section 17, subdivision (b)(4) (injuring another person by driving an automobile while under the influence of intoxicating liquor). His conviction was affirmed by the appellate department of the superior court. This appeal is before us by order of this court filed April 14, 1974, wherein it was ordered that the cause be transferred to this court for hearing and decision pursuant to Rule 62, subdivision (a), California Rules of Court.

STATEMENT OF THE CASE

Three witnesses testified that they saw defendant, or a male person answering his description, drive an automobile into and injure a pedestrian. Three other witnesses testified that the automobile was driven by defendant's wife.

Defendant, at the behest of his attorney, took a self-imposed polygraph test approximately 18 days after the accident, which was administered by Mr. Chris Gugas, an experienced polygraph examiner. Prior to commencement of trial by jury, defendant moved the court for an order admitting in evidence at trial, the testimony of Mr. Gugas on the results of said test, and requested an opportunity to first present evidence to lay a sufficient foundation to show that such evidence should be properly admitted. At that time defendant conceded that the only issue at the trial itself would be whether he or his wife was driving the vehicle at the time it struck the pedestrian in a crosswalk.

The court held an evidentiary foundational hearing in advance of the trial and took extensive evidence from expert witnesses concerning the theory and practice of polygraph testing in general, and of the procedure used in this specific test. In a learned and detailed memorandum opinion, the court concluded that it was satisfied that the evidence produced at the foundational hearing was sufficient to prove that the Frye ¹ test of general acceptance had been met with respect to polygraph evidence testimony. The court, however, excluded the polygraph evidence, primarily on the ground of Stare decisis, stating that all California appellate court decisions to date had ruled that polygraph testimony was inadmissible.

ISSUE

Defendant contends that the trial court erred in refusing to admit into evidence the proffered polygraph test results.

DISCUSSION

It is undeniable that to date the great majority of appellate decisions in all jurisdictions have ruled polygraph evidence to be inadmissible. California opinions are with the majority. In 1957, in People v. Carter, 48 Cal.2d 737, on page 752, 312 P.2d 665, on page 674, our California Supreme Court specifically stated that: 'Liedetector tests do not as yet have enough reliability to justify the admission of expert testimony based on their results.' (Citing People v. Wochnick, 98 Cal.App.2d 124, 126--128, 219 P.2d 70 and People v. Porter, 99 Cal.App.2d 506, 510--511, 222 P.2d 151.) In 1959, in People v. Jones, 52 Cal.2d 636, on page 653, 343 P.2d 577, on page 588, the court said: 'The courts have consistently held that whether the test is a polygraph test, or a . . . sodium pentothal test, the results are not such as to be admissible for or against the defendant because of a lack of scientific certainty about the results.' And in People v. Thornton (1974), 11 Cal.3d 738, 763--764, 114 Cal.Rptr. 467, 484, 523 P.2d 267, 284, the court states: 'Defendant next contends that it was error for the trial court to exclude evidence to the effect that he had taken a polygraph test to prove his innocence. He realizes that the results of such a test are not admissible evidence in a court of law (see People v. Jones (1959) ( supra), 52 Cal.2d 636, 653, 343 P.2d 577) (fn. omitted), but he contends that evidence of his Willingness to take such a test should be admissible as 'a badge of innocence.' We rejected a similar contention in People v. Carter (1957) (supra), 48 Cal.2d 737, 312 P.2d 665. There a former suspect in the crime for which defendant was on trial made a statement that he, the suspect, had been willing to take a lie detector test in the matter. The statement was admitted into evidence, thereby raising 'the implication . . . that defendant had refused to take a lie detector test and that his refusal furnished some evidence of guilty knowledge.' (48 Cal.2d at p. 752, 312 P.2d 674.) We held that the admission of the statement was error, reasoning that because lie detector tests themselves are not considered reliable enough to have probative value, 'a suspect's willingness or unwillingness to take such a test is likewise without enough probative value to justify its admission. The suspect may refuse to take the test, not because he fears that it will reveal consciousness of guilt, but because it may record as a lie what is in fact the truth. A guilty suspect, on the other hand, may be willing to hazard the test in the hope that it will erroneously record innocence, knowing that even if it does not the results cannot be used as evidence against him.' (48 Cal.2d at p. 752, 312 P.2d 674.) This reasoning is applicable to the instant contention; the proffered evidence was properly excluded.' (Emphasis added.) ²

The predominant reason cited by the cases for denying its admissibility is that the polygraph has not yet met the criterion set forth in Frye v. United States (see fn. 1 Supra). ³ Frye was decided in 1923 and unquestionably substantial progress has been made in improving the equipment and operator techniques used in administering the test. Accordingly, polygraphers, attorneys, psychologists and physiologists have mounted an energetic campaign ⁴ in our courts to obtain rulings that the polygraph is now generally accepted under the Frye test. On the other hand, other professionals in the same fields adamantly argue that, although the polygraph has demonstrated its value in the investigative field, the results of its tests should not be admitted as evidence in a court trial. Recent decisions in other jurisdictions illustrate that the courts have been variously influenced by both sides of the argument. These decisions competently detail the pros and cons of the issue, with generous footnotes that identify the works of the experts in the field. To prevent duplication and a lengthy opinion, we cite and briefly report on some of these cases without repeating the voluminous data that will be of value to researchers interested in the problem.

In most Federal courts, polygraph evidence remains inadmissible. The latest case, to out knowledge, summarizing the substantive reasons for refusing admittance is United States v. Wilson (D.C.1973), 361 F.Supp. 510. The court cites the Frye test but chooses not to base its decision solely on the issue of the 'general acceptance' rule. Instead, it assesses the progress of polygraphy by drawing on contributions from those engaged both in its theory and practice and concludes, 'even assuming relevance, the degree of which is speculative, the substantial prejudicial consequences compel denial of the motion' (to admit the evidence). (Supra at 514.)

However, in United States v. Ridling (D.C.1972), 350 F.Supp. 90, 93, a perjury prosecution case, the court admitted polygraph evidence of a court-appointed polygrapher because '(a) per jury case is based on 'willfully' or 'knowingly' giving false evidence. The experts all agree that the polygraph examination is aimed exactly at this aspect of truth.' And in United States v. DeBetham (D.C.1972), 348 F.Supp. 1377, the court, after an exhaustive summary of both sides of the issue, stated that its conclusions might warrant admissibility, but denied admission primarily on the rule of Stare decisis. ⁵

The latest State jurisdictional case to come to our attention is State v. Dorsey (1975), 88 N.M. 184, 539 P.2d 204. Here the court reversed a criminal conviction that had held polygraph evidence to be inadmissible. ⁶

DISPOSITION

Based solely on the facts of the instant case and the state of the law in California on this issue, we therefore, for the reasons hereinafter stated, conclude that the results of the polygraph test administered to defendant should not have been admitted.

We disagree with the trial court that, except for the rule of Stare decisis, the evidence here was admissible. Although failure to meet the 'general acceptance' test spelled out in Frye is the primary reason given by the courts in denying admissibility of polygraph evidence, many experts on the subject believe the most important ground for denying admissibility has been the lack of proven reliability. ⁷ Andre A. Moenssens, author of Chapter II of Legal Admissibility of the Polygraph, states on page 18: '(I)t is submitted that General acceptance is not a proper test for admissibility. The eminent authority on evidence, Professor McCormick, suggests that 'General scientific acceptance is a proper condition upon the courts taking judicial notice of scientific facts, but not a criterion for the admissibility of scientific evidence.'

Furthermore, General acceptance is not necessarily a proper test since it does not invariably equate with reliability. A better test for admissibility of novel scientific test results should require proof of reliability. General acceptance in a scientific community may, to some extent, be circumstantial evidence of...