People v. Barbara

• Decision Date: 13 June 1977
• Docket Number: No. 15,15
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph BARBARA, Jr., Defendant-Appellant. Jan. Term. 400 Mich. 352, 255 N.W.2d 171
• Court: Michigan Supreme Court

Page 171

255 N.W.2d 171

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph BARBARA, Jr., Defendant-Appellant.

No. 15 Jan. Term.

400 Mich. 352, 255 N.W.2d 171

Supreme Court of Michigan.

June 13, 1977.

L. Brooks Patterson, Pros. Atty., Oakland County by T. S. Givens, Deputy Appellate Counsel, Pontiac, Research Asst. Thomas D. Brooks, for plaintiff-appellee.

Norman L. Zemke, Southfield, for defendant-appellant.

WILLIAMS, Justice.

"What is truth?" asked Pilate in the trial of Jesus. John 18:38. Today the polygraph really poses the same question. In the intervening nineteen hundred years, everything from trial by ordeal to jury trial has been used to try to establish truth.

This case requires us to determine whether polygraph evidence which heretofore has not been admissible at trial may be used to assist a judge in determining whether to grant a motion for a new trial. (For a description of how a polygraph and a polygraph test work, please see the appendix.)

The Michigan test presently applied to determine the admissibility of polygraph testimony is that which we enunciated in People v. Becker, 300 Mich. 562, 566, 2 N.W.2d 503 (1942), and repeated with approval in People v. Davis, 343 Mich. 348, 370, 72 N.W.2d 269 (1955), that there be:

"testimony offered which would indicate that there is at this time a general scientific recognition of such (polygraph) tests. Until it is established that reasonable certainty follows from such tests, it would be error to admit in evidence the result thereof."

In Becker and in Davis we concluded that "the results of such tests have not, as yet, reached the statute of evidence admissible in a court of law". 343 Mich. 370, 72 N.W.2d 281.

This follows the traditional test used in other jurisdictions, which, as originally set forth in Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013, 1014 (1923), requires:

"(W)hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."

The Frye court, finding no such "standing and scientific recognition among physiological and psychological authorities" did not admit testimony based on the tests. 293 F. 1014.

In this case defendant, who seeks to introduce into evidence the results of polygraph tests, has presented distinguished testimony as to the improved nature of the polygraph itself, the reliability of polygraph operators and the claimed accuracy of polygraph tests. While it is apparent that advances have been made in the state of the art, the fact of the matter is that all submitted testimony was given by polygraph operators, polygraph teachers or others connected with the use of polygraphs.

What defendant/appellant made a strong case of showing was that those whose business So unless Michigan changes from its traditional Davis/Frye rule, polygraph tests are still not admissible in evidence. We have declined to make such a change for the following reasons:

is the use or operation of polygraphs have confidence in the tests. There was no testimony by disinterested and impartial experts "in the particular field (physiological and psychological) in which it belongs" (Frye test), and thus no demonstration of "general scientific recognition of such (polygraph) tests" (Michigan rule).

(1) The Frye test remains the accepted standard for the admission of polygraph testimony in most jurisdictions.

(2) Serious questions still remain concerning the state of the art of the polygraph.

(3) Even if the Frye requirements were satisfactorily met, serious policy questions remain to be resolved.

However, the question of whether the polygraph may be used to assist the judge in determining whether to grant a motion for a new trial is another matter. Less formal evidentiary requirements are commonly found at the post-conviction motion, and matters such as affidavits which may not be admissible at trial may be used to assist the judge to determine whether the request for a new trial has merit. Polygraph tests permitted in this context would be merely used to buttress the credibility of new witnesses, the evidentiary value of whose testimony satisfies traditionally strict criteria for ordering a new trial. Thus, the polygraph examination would not itself be evidence, either at the post-conviction motion or at the trial itself, should one be granted.

On this basis, and within carefully drawn and defined limitations, we hold that a judge may use, in his discretion, polygraph tests and testimony offered by defendant only to help determine whether to grant a post-conviction motion for a new trial.

Remanded for further action pursuant to this opinion.

I FACTS

In 1969, defendant Joseph Barbara, Jr., was convicted by a jury of extortion from Delores Lazaros, wife of Peter Lazaros. Both Peter and Delores Lazaros testified at trial. Delores Lazaros testified that defendant Barbara came to her home while her husband was in prison, and raped her and extorted money from her by threatening the lives of her husband and son. She also said she told no one about this until her husband returned from prison because she feared for his safety. At that time, Mrs. Lazaros and her husband informed the authorities.

Defendant's claim of appeal was rejected by the Court of Appeals. People v. Barbara, 23 Mich.App. 540, 548, 179 N.W.2d 105 (1970). We denied leave to appeal. 383 Mich. 803 (1970). The United States District Court granted defendant's writ of habeas corpus, but was reversed by the Sixth Circuit Court of Appeals. Barbara v. Johnson, 449 F.2d 1235 (C.A. 6, 1971). Defendant is now before our Court appealing denial of his motion for a new trial.

The basis for defendant's request for a new trial was his claim that Lazaros lied. To support this, defendant offered two new witnesses and evidence of polygraph tests passed by himself and one of two new witnesses.

Albert Spadafore, although not called to testify at the original trial, reported he had been ready to tell an untrue version supporting Lazaros' story, under instructions from Lazaros. There was some question as to whether Spadafore had indeed told the "untrue version" in another unrelated trial involving Lazaros.

Theodore Metropoulos, a cousin of Lazaros, testified through an interpreter that Lazaros told him his wife was not raped. He said Lazaros admitted making up the story "because this was the only way to get out of the cursed jail or prison." Metropoulos said he had successfully taken a polygraph examination. He also explained that he came forward with his story at this time The trial court refused to accept the polygraph tests in evidence but gave counsel permission to make a special record concerning the polygraph examinations given to Metropoulos and defendant. Proceedings in a 1970 case involving Peter Lazaros in Oakland Circuit Court were made part of this special record. In that case, Lazaros' defense counsel F. Lee Bailey undertook to lay a foundation for admissibility of the polygraph evidence and to qualify Lynn Marcy as a polygraph expert.

because he had learned that defendant had been sentenced to a long prison term.

Marcy was also Barbara's polygraph witness in the case at bar. Marcy presented the results of the tests made on Barbara and on Metropoulos. He concluded that Barbara was not guilty of either rape or extortion and testified as to the procedures used, ¹ indicating that accuracy of the polygraphic examination under circumstances as given is in excess of 99 percent. The same procedure was used on Metropoulos, with the addition of an interpreter, and Marcy concluded that Metropoulos also was telling the truth.

The court observed that Lazaros had sent letters indicating that he, too, had passed a polygraph examination.

The motion for a new trial was denied. The court held, first, that Michigan law prevents the admission into evidence of polygraph examinations, even in a post-conviction proceeding.

The judge also ruled that, in any event, the testimony did not constitute sufficient newly-discovered evidence to warrant granting a new trial, first, because Spadafore's testimony was never part of the original trial and further, since he admitted being prepared to testify falsely, the trial court could not now rely on his testimony. In addition, although Metropoulos' testimony "clearly tended to discredit the testimony of Peter Lazaros, his own cousin", it did not discredit that of the complainant, Delores Lazaros. Since the conviction was primarily based on Delores Lazaros' testimony, and the alleged attack took place while her husband was in prison, the court was not satisfied that the purported new evidence would render a different result probable on retrial.

The Court of Appeals denied leave. We granted leave to appeal January 25, 1974. 391 Mich. 761 (1974).

II STANDARDS FOR A NEW TRIAL

Before a court will grant a new trial because of newly-discovered evidence,

"(I)t must be shown that the evidence itself, not merely its materiality, was newly-discovered; that it is not cumulative; that it is such as to render a different result probable on a retrial of the cause; and that the party could not with reasonable diligence have discovered and produced it at trial." People v. Clark, 363 Mich. 643, 647, 110 N.W.2d 638, 640 (1961).

Where such evidence, however, takes the form of witnesses' recantation testimony, it has been traditionally regarded as suspect and untrustworthy. People v. Smallwood, 306 Mich. 49, 58, 10 N.W.2d 303 (1943); People v. Jimmerson, 30 Mich.App. 147, 149, 186 N.W.2d 37 (1971); People v. Bersine, 48 Mich.App. 295, 299, 210 N.W.2d 501 (1973); 58 Am.Jur.2d, New Trial, § 175, p. 391. Generally, too, where the new evidence is useful only to impeach a witness, it is deemed merely cumulative. Kube v. Neuenfeldt, 353 Mich....