State v. Brown

Decision Date10 July 1984
PartiesSTATE of Oregon, Respondent on review, v. Alvin Harold BROWN, Petitioner on review. SC C81-04-32024; SC A22491; SC S30146.
CourtOregon Supreme Court

Marc D. Blackman, of Ransom, Blackman & Simson, Portland, argued the cause for petitioner on review. With him on the brief was Diane L. Alessi, Portland.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. JONES, Justice.

On April 3, 1981, the victim in this case was approached by a man whom she did not know. After brief conversation, the man pulled her into the bushes and raped and sodomized her. The encounter lasted approximately 45 minutes. The next day, and again on April 8, the victim identified the defendant, Alvin Brown, as the perpetrator of the crimes by picking his photograph out of a photographic display. The defendant was then arrested and arraigned.

After retaining counsel, the defendant submitted to two polygraph examinations conducted by a private polygraph examiner, Kenneth Simmons, who specializes in criminal defense polygraphy. Simmons reported to defense counsel that his first polygraph examination of the defendant on April 13 produced inconclusive results. Simmons testified:

"A. * * * [T]here were three relevant questions, two relevant questions, did you have sexual intercourse with [the victim] about April 3rd and did you have any sexual contact with [the victim] about April 3rd scored truthful.

"The one question, the only question that went the other direction is did you force [the victim] to have sex with you about April 3rd.

"Q. [by the prosecutor]: And, that scored to the deceptive side?

"A. Right."

On April 21, this same examiner conducted what he called a "peak of tension" examination to determine if the defendant had knowledge of the events surrounding the reported rape. Examiner Simmons concluded that the defendant did not know about the specific details of the crime. The examiner purported to have information that was not available to the defendant concerning a dog, that the rapist had told the victim that he was in the Navy, and that he was driving a red Datsun pickup. After "passing" the second test by the criminal defense specialist, the defendant agreed to take a third polygraph test conducted by a police specialist. However, the defendant refused to stipulate to the admissibility of any results of the police-conducted test prior to submitting to that examination.

Officer Arthur Bell, polygraph examiner for the Portland Police Bureau, conducted the third polygraph examination with the defendant on May 6, 1981. Officer Bell noted that the defendant appeared nervous and admitted that he had worked all day and that the evening before he had smoked marijuana and consumed beer. The defendant was asked specific questions by the examiner which included whether he forced the victim into having sex on April 3, 1981. Polygraph examiner Bell, after finding the results of the test were inconclusive, noted that there was a great lacking in the degree of responsiveness shown in the tracings, stating:

"* * * [T]he result on scoring is a very low total, and an evaluation score which does not reach criterion levels necessary for a conclusive call regarding truthfulness. It is my opinion that there is more evidence of truthfulness demonstrated in this examination than otherwise, but due to any number of factors present during this examination; including lack of rest, use of drugs, alcohol, repeated testing [this is his third on the same issue], personality * * * he does not seem to be very sensitive in any particular part of the exam series."

Prior to trial, the state moved to exclude any reference by the defendant or the state to any and all polygraph examinations taken by the defendant. Following a prolonged hearing, during which three experts testified regarding the polygraph in general and defendant's examinations, the trial court ruled the evidence inadmissible. The defendant was convicted of rape in the first degree and sodomy in the first degree and appealed the convictions to the Court of Appeals, 64 Or.App. 747, 669 P.2d 1190, which held that, in the absence of a stipulation, polygraph examinations are not admissible, citing State v. Green, 271 Or. 153, 531 P.2d 245 (1975), and State v. Bodenschatz, 62 Or.App. 606, 662 P.2d 1, rev.

den. 295 Or. 446, 668 P.2d 382 (1983). We allowed review to address the defendant's contention that "[t]he defendant should have been allowed to introduce evidence regarding his submission to and truthful completion of polygraph examination."


The term "scientific" as we use it in this opinion refers to evidence that draws its convincing force from some principle of science, mathematics and the like. Typically, but not necessarily, scientific evidence is presented by an expert witness who can explain data or test results and, if necessary, explain the scientific principles which are said to give the evidence its reliability or accuracy. See Lilly, An Introduction to the Law of Evidence 400 (1978). 1

Prior to the enactment of the Federal Rules of Evidence in 1975 (and prior to the enactment of the Oregon Evidence Code in 1982), most federal and state courts facing the problem of the admissibility of scientific evidence relied on a test having its genesis in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The Frye test, as it has become known, provides that before a court may admit scientific evidence the scientific principle "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. at 1014. In this opinion we review the extensive history of the Frye test, evaluate alternative tests adopted by our Court of Appeals and other states, and abandon these special tests in favor of resolving the problems of admissibility of scientific evidence by relying on traditional evidence law as codified in the Oregon Evidence Code.

The door was left open by the Oregon Legislature and the writers of the Oregon Evidence Code for this court to adopt a new approach to the admissibility of scientific evidence. The commentary to OEC 702 states:

"The Legislative Assembly leaves for judicial decision the standard to be used in determining the admissibility of novel scientific evidence. * * *"

In response, we adopt traditional admissibility standards for expert testimony as set forth in our Oregon Evidence Code.

Justice Mark McCormick of the Supreme Court of Iowa, in his thesis Scientific Evidence: Defining a New Approach to Admissibility, 67 Iowa L.Rev. 879, 880 (1982), contends:

"Four principal benefits can be achieved by abrogating special rules governing admissibility of scientific evidence and substituting traditional analysis. First, the admissibility judgment keeps judicial attention riveted on concepts judges are trained to employ. Second, the admissibility decision can be readily adapted to the characteristics of the evidence and the circumstances in which it is offered. Third, the traditional inquiry sharpens analysis without the distractions and collateral issues that can arise with special rules. Fourth, the single approach for all evidentiary issues fosters procedural simplicity and uniformity. * * *"

Under the traditional approach, expert testimony is subject to two main constraints. First, expert testimony must be relevant under OEC 401:

" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

Second, expert testimony must provide some assistance to the trier of fact under OEC 702:

"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill Under the Oregon Evidence Code and traditional evidence law, expert testimony is admissible if it is relevant under OEC 401 and will help the trier of fact in deciding a disputed issue. To be helpful, the subject of the testimony must be within the expert's field, the witness must be qualified, and the foundation for the opinion must intelligibly relate the testimony to the facts. If these conditions are satisfied, the testimony will be excluded only if it is unduly prejudicial, repetitive, or falls under some other exclusionary provision as provided in OEC 403:

experience, training or education may testify thereto in the form of an opinion or otherwise."

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence."

In applying OEC 401, 702 and 403, this court must identify and evaluate the probative value of the evidence, consider how it might impair rather than help the factfinder, and decide whether truthfinding is better served by exclusion or admission.

This case and the case of State ex rel Gerttula v. Hunnicutt, --- Or. ---, 687 P.2d ---- (decided this date), present questions which do not turn on the facts of the specific case and are not settled by the trial court's decision. See M. McCormick, supra, 67 Iowa L.Rev. at 882. This court, although informed by the trial record and assisted by the trial court's determination, accepts the legislature's invitation as expressed in the quoted commentary and lays down a general rule that unstipulated polygraph evidence is inadmissible under any provision of the Oregon Evidence Code.



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