People v. Tarsia

• Decision Date: 01 April 1980
• Citation: 427 N.Y.S.2d 944,405 N.E.2d 188,50 N.Y.2d 1
• Parties: , 405 N.E.2d 188 The PEOPLE of the State of New York, Respondent, v. Joseph TARSIA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 944

427 N.Y.S.2d 944

50 N.Y.2d 1, 405 N.E.2d 188

The PEOPLE of the State of New York, Respondent, v. Joseph TARSIA, Appellant.

Court of Appeals of New York.

April 1, 1980.

Remo A. Allio, Endicott, for appellant.

Patrick D. Monserrate, Dist. Atty. (Patrick H. Mathews, Binghamton, of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

On this appeal, in the face of the trial strategy adopted by the defendant, we conclude that it was not error to admit testimony concerning the defendant's submission to a voice stress evaluation test or a tape recording of the test questions and answers. Additionally, we hold that defendant's oral and written inculpatory statements were not rendered involuntary as a matter of law merely because they followed upon his participation in the test.

After a trial by jury, Joseph Tarsia was convicted of an attempt to murder his estranged wife (Penal Law, §§ 110.00, 125.25 subd. 1), and the judgment entered thereon has since been affirmed by the Appellate Division, 67 A.D.2d 210, 415 N.Y.S.2d 120. The operative facts follow.

On December 7, 1975, defendant's wife, while standing in the doorway of her farmhouse, was struck by what was later determined to be a deer slug fired from a .20 gauge shotgun. Shortly thereafter, when police were already on the scene, defendant emerged from the woods behind the house, where he claimed he had been hunting. He carried a rifle with a spent shell casing still in the chamber; the weapon, however, was incapable of firing the round that injured the wife. Defendant manifested complete surprise when told that his wife had been shot. Except to mention that he had seen two other hunters in the woods, he denied any knowledge of how the shooting had occurred.

Ten days later, defendant was questioned again, this time in connection with what the police described to him as a "possible violation of shooting". After he had been advised of, and had waived, his Miranda rights, he persisted in denying any involvement in the incident. However, when the detective suggested a means by which he could put to rest any suspicion, especially on the part of the victim's family, that he was responsible for the shooting, defendant agreed to submit to a voice stress evaluation test, which was arranged for January 28, 1976 at one o'clock.

At the appointed time defendant arrived at the local police department, again was advised of his rights and again waived them, this time in writing. He thereupon was interviewed by one Lieutenant Gaul, who familiarized him with the test procedures and administered the test. Because its results fed the examiner's suspicions about defendant's veracity, Gaul questioned Tarsia further about several details of his story. Soon after this, in a cathartic outburst, defendant admitted shooting his wife. He subsequently made one oral and two written confessions during the balance of his session with the police, which lasted until nearly midnight.

Tarsia now contends, as he did unsuccessfully in a pretrial suppression hearing, that the techniques employed by the examiner incidental to the administering of the voice stress test overbore his will to such a degree that his confessions must be deemed involuntary and, thus, inadmissible to prove his guilt. Additionally, he argues that the totality of the circumstances, but chiefly the nearly 11 hours that elapsed between the hour he arrived to take the test and the time his final statement was taken, vitiated the confessions. Finally, defendant alleges as reversible error the introduction of Lieutenant Gaul's testimony describing the administration of the test as well as the subsequent replaying to the jury of the tape-recorded interview, an integral part of the procedure. The Appellate Division rejected all of these contentions (67 A.D.2d 210, 415 N.Y.S.2d 120). We believe its decision was correct.

Inasmuch as its alleged misuse furnishes much of the basis for defendant's appeal, some description of the test is in order. Its purpose, like that of the polygraph or "lie detector", is to measure certain physiological manifestations of stress which commonly are thought to accompany untruthful or evasive answers. While a polygraph records changes in respiration, blood pressure, heart rate and the skin's resistance to electric current (see People v. Leone, 25 N.Y.2d 511, 513, 307 N.Y.S.2d 430, 255 N.E.2d 696; Scientific and Expert Evidence in Criminal Advocacy (Cederbaums and Arnold eds.), ch. 10, pp. 221-222), the theory of the voice stress test is that the utterance of false responses causes involuntary nervous reactions which are manifested by inaudible frequency modulations in the human voice detectable with the aid of a device known as the voice stress evaluator (Moenssens and Inbau, Scientific Evidence in Criminal Cases (2d ed.), § 15.13, pp. 638-639). The procedure followed in the present case illustrates in greater detail how the instrument is utilized.

The test, which lasted but five minutes, first called upon Gaul, as the tester, to familiarize Tarsia with a prearranged series of questions concerning the shooting in order to avoid his misunderstanding them when he thereafter would be asked to answer each of them with a simple "yes" or "no". Included were so-called "irrelevant" questions (for example, "Are you presently wearing a hat?"), whose design was to elicit nonstress or "normal" responses for use as standards of comparison. Typical of the relevant queries which focused on the defendant's role in the episode under investigation were "Do you suspect someone of shooting your wife?" "Do you know who shot your wife?" and "Did you shoot your wife?"; to each, defendant responded in the negative. A tape of the responses, recorded as they were given, was then played through the stress evaluator, which, in turn, produced a chart reflecting the relative degree of stress under which each answer was given, heavy stress presumably indicating an untruthful response.

Unlike the polygraph, whose reliability as a determinant of truth or falsity has been the object of scientific testing during its much longer history, the voice stress evaluator has only come on the market in the last decade, during which it has had not only far less time but also far fewer occasions in which to prove itself. Yet, attempts to demonstrate that the polygraph is possessed of scientific certainty have been held too indecisive to warrant judicial acceptance (People v. Leone, supra, p. 517, 307 N.Y.S.2d 430, 255 N.E.2d 696; Pereira v. Pereira, 35 N.Y.2d 301, 306-307, 361 N.Y.S.2d 148, 319 N.E.2d 413; see, generally, 3A Wigmore, Evidence (Chadbourn rev. ed.), § 999; Use of Polygraphs as "Lie Detectors" by the Federal Government, H.Rep.No.198, 89th Cong., 1st Sess., p. 1). Not surprisingly, then, in light of the limited opportunities for judicial appraisal of proofs submitted in support of the accuracy of the voice stress test, with its kindred reliance upon manifestations of a mixture of physical and emotional reactions, that device has fared no better in the courts (see State v. Schouest, 351 So.2d 462, 468-469 (La.); Smith v. State, 31 Md.App. 106, 120, 355 A.2d 527, 536 ("(a) lie detector test by any other name is still a lie detector test")). In any event, the People in the present case having failed to challenge these determinations or to make any attempt to prove any advance in the test's acceptance in the scientific community, we confine ourselves to observing that, unlike the degree of equivocation that exists regarding the reliability of the polygraph (see People v. Leone, supra, 25 N.Y.2d pp. 514-516, 307 N.Y.S.2d 430, 255 N.E.2d 696), authorities on voice stress analysis tend to agree that test is not reliable (see Moenssens and Inbau, Scientific Evidence in Criminal Cases (2d ed.), § 15.14; Link, Detection Through Voice-Analysis, 3 Military Police Law Enforcement J., pp. 38, 40).

This said, we now consider the contention that the trial court should not have allowed Lieutenant Gaul to describe his administering of the voice stress test. In this connection, it should be made clear that the lieutenant did no more than present a word picture of his preliminary interview with the defendant, as well as recite the questions he had put, the answers he had received and the substance of the ensuing interview in which he had engaged the defendant. For practical purposes, he did not communicate the evaluator's recording nor his own interpretation of the data it produced. And, other than that these may have been included in his part of the colloquy that surrounded the giving of the test, he did not characterize defendant's answers as true or false.

We specifically note too that the propriety of this testimony and of the tape-playing episode must both be evaluated in the perspective of the trial strategy mounted by defendant's counsel. Apparently convinced that a successful defense hung on the possibility of overcoming the seemingly insuperable handicap created by the three sets of admissions, he elected early on to candidly concede the making of the confessions. Obviously, he hoped to shift the decisive focus of the trial onto his contention that the criminal charges, and the confessions on which they so heavily depended, were produced by psychological pressures which drew their strength from a highly suspect and invidious pseudo-scientific device. To that end, the role of the test as the lynchpin of the defense of involuntariness was to be stressed throughout the trial in an attempt to correlate it with the graduation of the confession from one which started, in the first statement, with Tarsia's specific denial of intent to kill and, as the argument went, culminated, under pressure of the police activity, in one in which he was willing to say that he intended to kill.

So, when the District Attorney in his opening briefly alluded to the defendant's voluntary submission to the stress test, defense counsel...