Powers v. Carvalho

• Decision Date: 22 September 1971
• Docket Number: Nos. 1247-A,s. 1247-A
• Citation: 109 R.I. 120,281 A.2d 298
• Parties: Lee William POWERS v. Jack CARVALHO (Three Cases). ppeal, 1248-Appeal and 1249-Appeal.
• Court: Rhode Island Supreme Court

Page 298

281 A.2d 298

109 R.I. 120

Lee William POWERS v. Jack CARVALHO (Three Cases).

Nos. 1247-Appeal, 1248-Appeal and 1249-Appeal.

Supreme Court of Rhode Island.

Sept. 22, 1971.

John F. McBurney, William J. Burke, Jr., Pawtucket, for plaintiff.

Blais, Cunningham, Thayer, Gagnon & Ross Ronald R. Gagnon, Henry J. Blais III, Pawtucket, for defendant.

OPINION

ROBERTS, Chief Justice.

These are three civil actions instituted in April of 1956 in which the plaintiff seeks to recover damages from the defendant in an action for assault and battery, an action for slander, and an action for false imprisonment. The three cases were tried together to a jury in the Superior Court in 1969, and verdicts were returned for the plaintiff in the amount of $2,000 in the action for assault and battery, in the amount of $20,000 in the action for slander, and in the amount of $3,000 in the action for false imprisonment. Thereafter, the plaintiff moved that he be granted an additur in the action for assault and battery, and the defendant moved for a new trial in all three of the actions. Subsequently, the defendant waived his motion for a new trial in the assault case, and the trial justice denied the plaintiff's motion for an additur in that case. The trial justice then ordered that new trials be granted in the action for slander and the action for false imprisonment unless the plaintiff filed a remittitur in the action for slander for all of the verdict in excess of $3,000. Both parties thereafter prosecuted appeals to this court.

These cases arose out of an incident in 1956 in which defendant, who owns and operates a retail liquor store in Pawtucket, was assaulted by an intruder in an apparent attempt to perpetrate robbery of the premises. The plaintiff was subsequently taken into custody by the police, apparently at the suggestion of defendant. The plaintiff was held under investigation for two days. He was first placed in lineup and was identified by defendant as the man who had struck him. Thereafter, plaintiff was viewed by people who had witnessed the alleged robbery, neither of whom identified him as the suspect. Subsequently, during interrogation by the police in the presence of defendant, plaintiff denied the attempted robbery and was struck in the face by defendant. He was thereafter discharged from custody by the police and subsequently brought these three actions against defendant.

It appears that during the course of the investigation by the police, plaintiff was given a lie detector test by the state police. In his opening statement to the jury, counsel for plaintiff twice referred to the fact that plaintiff had taken the lie detector test and that the results thereof had exonerated him. ¹ Counsel for defendant, at the close of the opening statements, moved that this reference to the fact that a lie detector test had been taken and had apparently been negative in result would not have been admissible in evidence, was prejudicial to defendant, and moved that the case be passed. The court denied this motion, holding that statements of counsel are not evidence and that he would instruct the jury that such statements of counsel were not evidence and were not to be considered in reaching a verdict.

Subsequently, during the course of trial, plaintiff testified that he had been asked by the police if he would take a lie detector test and that he had agreed to do so. He further testified that he had been taken to a state police barracks where the test was administered and he was asked a lot of questions during that time. No objection was made by counsel for defendant to the admission of this evidence at the time, but the following morning counsel for defendant moved that the case be passed because plaintiff had testified in narrative form that he had been taken to state police headquarters and given a lie detector test. The defendant argued that the fact that evidence as to the lie detector test was before the jury and that there was testimony that there had been no prosecution on plaintiff was susceptible of an inference that the test had found plaintiff to be innocent of the charge and, therefore, was highly prejudicial to defendant. The court denied the motion to pass, saying that it would give a special instruction during its charge to the jury, if so requested.

In this court defendant argues that the trial court's denial of his motions to pass the case because of references to lie detector tests on two occasions constituted reversible error. The antecedent question, then, is whether in this state evidence as to the taking of a lie detector test or as to the results of such a test was admissible in evidence. The overwhelming weight of authority is that evidence of the results of polygraph or lie detector tests, so called, is inadmissible and in most of such jurisdictions evidence as to the taking or refusal to take such a test is likewise inadmissible. The view taken by a substantial majority of jurisdictions is aptly stated in State v. LaForest, 106 N.H. 159, 207 A.2d 429, where the court, referring to such lie detector tests, said at 160, 207 A.2d at 430: 'Nevertheless the results of these tests have been rejected by the courts as evidence of guilt or innocence of the accused by the overwhelming weight of judicial authority on the ground that these tests have not yet attained sufficient scientific acceptance as an accurate and reliable means of ascertaining truth or deception.'

Many of the jurisdictions which follow the rule stated in LaForest holding as inadmissible the results of such tests hold also that any evidence as to the taking or refusal to take such tests is likewise excluded. Typical of these cases is State v. Perry, 274 Minn. 1, 142 N.W.2d 573. There the Minnesota court stated what might be described as the rule of total inadmissibility. The court said at 12, 142 N.W.2d at 580: 'It is well settled that the results of a lie detector test are inadmissible in evidence against an accused because, up to the present at least, such tests have not been proved completely reliable; and, in extension of this rule, that evidence that such a test was taken or refused by a defendant cannot be brought to the jury's attention either directly or indirectly.' See also State v. Carnegie, 158 Conn. 264, 259 A.2d 628; State v. Emory, 190 Kan. 406, 375 P.2d 585; Rawlings v. State, 7 Md.App. 611, 256 A.2d 704; Henderson v. State, 94 Okla.Cr. 45, 230 P.2d 495; Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442; State v. Britt, 235 S.C. 395, 111 S.E.2d 669.

This court has not yet been confronted with the question of whether the results of a lie detector test properly may be admitted into evidence. This court has never been hostile to the proof of fact by evidence relating to scientific tests or experiments. In State v. Nagle, 25 R.I. 105, 54 A. 1063, a medical examiner testified that, in his opinion, a gunshot wound above the ear of the deceased was not self-inflicted. He testified, in support of this opinion, as to experiments that he had made with a pistol resulting in his conclusion that the wound that caused death could not have been self-inflicted. This court held that such evidence would be admissible to corroborate the opinion of an expert, saying that '* * * whenever the opinion of a person is deemed to be relevant, the grounds on which such opinion is based are also deemed to be relevant.' Id. at 113, 54 A. at 1066.

Later, in State v. Gregoire, 88 R.I. 401, 148 A.2d 751, evidence of tests concerning the use of an instrument known as an alcometer designed to show the alcoholic content of the breath of a person charged with the operation of a motor vehicle while under the influence of intoxicating liquor was rejected by this court. The rejection rested on two grounds, primarily, that no ...