People v. Brownsky

• Citation: 35 Misc.2d 134,228 N.Y.S.2d 476
• Parties: The PEOPLE of the State of New York v. John BROWNSKY, Defendant.
• Decision Date: 22 May 1962
• Court: New York Court of General Sessions

Page 476

228 N.Y.S.2d 476

35 Misc.2d 134

The PEOPLE of the State of New York v. John BROWNSKY, Defendant.

Court of General Sessions, New York County.

May 22, 1962.

Frank S. Hogan, Dist. Atty. (by Edward M. Davidowitz, New York City, of counsel), for the People.

John Brownsky, defendant in pro per.

THOMAS DICKENS, Judge.

This 'Motion to show cause,' brought by defendant, aims at gaining judicial sanction for a voluntary 'lie-detector' test of himself, as the means of establishing his innocence. For the attainment of this end, defendant makes the following allegations in his petition:

'Petitioner asks that this court order the District Attorney of the County of New York, State of New York, to show cause why Petitioner should and has been denied to take a Polygraph test or to be questioned under Sodium Pentathol [sic].

'Petitioner has stipulated that if any test, showed him to be guilty of the crime with which he is charged the results could with his consent be used in court against him.'

Defendant is under prosecution on a pending indictment of four counts charging respectively robbery in the first degree, grand larceny in the first degree, assault in the second degree, and carrying a dangerous weapon.

Little need be said by me on the subject of 'lie-detector' tests. Judicial precedents have already provided informative discussion. These precedents, as they stand now in their view on the law of the subject, hold out no hope for the successful outcome of this motion, which I need now consider only so far as the question of allowing a 'lie-detector' test is concerned.

Our own Court of Appeals in People v. Forte, 279 N.Y. 204, 18 N.E .2d 31, 119 A.L.R. 1198, rearg. denied 279 N.Y. 788, 18 N.E.2d 870, had this to say regarding a move made in the trial court by defendant's attorney for the reopening of the case after completion of the trial, so as to permit defendant, therein, to undergo a 'lie-detector' test (279 N.Y., at p. 206 bottom, 18 N.E.2d at p. 32):

'We cannot take judicial notice that this instrument is or is not effective for the purpose of determining the truth. Can it be depended upon to operate with complete success on persons of varying emotional stability? The record is devoid of evidence tending to show a general scientific recognition that the pathometer possesses efficacy. Evidence relating to handwriting, finger printing and ballistics is recognized by experts as possessing such value that reasonable certainty can follow from tests. Until such a fact, if it be a fact, is demonstrated by qualified experts in respect to the 'lie detector,' we cannot hold as matter of law that error was committed in refusing to allow defendant to experiment with it.'

See also People v. Dobler, 29 Misc.2d 481, 215 N.Y.S.2d 313, and Richardson on Evidence (8th Ed.), p. 375.

Judicial notice, either way, as to the effectiveness of this kind of instrument, being barred by the holding in the Forte case, supra, I look to the petition for 'evidence tending to show a general scientific recognition that the pathometer [or polygraph] possesses efficacy.' I find none.

From the case of Lindsey v. U. S. of America, 9 Cir., 237 F.2d 893, 895 bottom, 16 Alaska 268, a case...