State v. Chambers

• Decision Date: 18 October 1977
• Docket Number: No. 32218,32218
• Citation: 240 Ga. 76,239 S.E.2d 324
• Parties: The STATE v. Dempsey Ray CHAMBERS.
• Court: Georgia Supreme Court

Page 324

239 S.E.2d 324

240 Ga. 76

The STATE v. Dempsey Ray CHAMBERS.

No. 32218.

Supreme Court of Georgia.

Oct. 18, 1977.

Rehearing Denied Nov. 1, 1977.

Charles Crawford, Dist. Atty., Cartersville, for appellant.

Ben Lancaster, Cartersville, for appellee.

HALL, Justice.

We granted certiorari in this statutory rape case to consider whether the results of lie detector tests of the defendant and the prosecutrix were properly admitted at trial when it was stipulated between the state and the defendant before the tests that the results would be admissible.

Chambers was convicted of the statutory rape of a young girl and sentenced to 20 years. Polygraph tests were administered to him and to the prosecutrix pursuant to an agreement between the state and the defendant that the results would be admissible whatever they showed. The results were admitted, and the examiner testified that he interpreted the results to mean that Chambers was lying in denying the crime, and the victim was truthful in accusing him. The Court of Appeals reversed the conviction on the ground that under Famber v. State, 134 Ga.App. 112, 213 S.E.2d 525 (1975), polygraph results are inadmissible and without probative value, and thus the victim's charge failed for lack of corroboration. The Court of Appeals correctly noted that doubt has been cast on the continued viability of Famber, see Scott v. State, 238 Ga. 30, 230 S.E.2d 857 (1976) (and dissenting opinions), but it has not heretofore been overruled.

We rule today that upon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have. Famber v. State, supra, is hereby overruled.

The Court of Appeals a few years ago stated the law correctly in Cagle v. State, 132 Ga.App. 227, 207 S.E.2d 703 (1974): "Neither an agreement to take a polygraph, nor the taking of one, constitutes a waiver of a right to object to the admission of its results into evidence, absent an express stipulation of the parties as to its admissibility." 132 Ga.App. at 229, 207 S.E.2d at 705 (emphasis added). See also Scott v. State, 238 Ga. 30, 32, 230 S.E.2d 857 (1976) (dissenting opinion).

Numerous other jurisdictions have now arrived at the conclusion that these results may be admitted by agreement. E. g., Herman v. Eagle Star Ins. Co., 396 F.2d 427 (9th Cir. 1968), affirming, 283 F.Supp. 33 (C.D.Cal.1966); Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120 (1974); State v. Woo, 84 Wash.2d 472, 527 P.2d 271 (1974) (rule recognized); State v. Alderete, 86 N.M. 176, 521 P.2d 138 (1974); State v. McDavitt, 62 N.J. 36, 297 A.2d 849 (1972); State v. Williams, 108 Ariz. 382, 499 P.2d 97 (1972); State v. Rowley, 15 Utah 2d 4, 386 P.2d 126; People v. Houser, 85 Cal.App.2d 686, 193 P.2d 937 (1948); State v. Lowry, 163 Kan. 622, 185 P.2d 147 (1947) (rule recognized). See Annot., Admissibility of Lie Detector Test Taken upon Stipulation that the Result will be Admissible in Evidence, 53 A.L.R.3d 1005 (1973).

We acknowledge that doubt exists as to the complete reliability of lie detector tests, and we share at least a modicum of that doubt. Operators may be unskilled, and results may be ambiguous and subject to arbitrary characterization. Of course, by cross examination counsel may show any vagueness of the electronic indications or any subjectiveness of the examiner's interpretations, as well as exploring conditions other than the subject's untruthfulness which could have produced such responses.

However, despite some problems posed by polygraphs, McCormick warned more than 20 years ago that "We cannot in our hearts be so confident of the reliability of the present system of resolving conflicts in testimony by impeachment, cross-examination and inferences from demeanor, that we can afford to reject scientific aid in the task." McCormick, Evidence § 174 (1954 Ed.). A more recent writer has phrased this thought in more urgent language: "If the judicial system is to fulfill its duty of searching for truth and maintaining integrity, it must commence a war against perjury. The war cannot be won with weapons restricted to cross-examination, inferences from demeanor, and other relics from the crossbow era of Henry II. * * * there is no tenable reason why qualified polygraphers should not be welcomed by courts confronting credibility questions; clearly, polygraphy 'appears to have something valuable to add to the administration of justice.' " Tarlow, Admissibility of Polygraph Evidence in 1975, 26 Hastings L.J. 917, 920-921 (1975). (Footnotes omitted).

Once it has been decided to admit polygraph evidence, it becomes necessary to decide what kind of evidence it is. As was true at Chambers' trial, such evidence usually has two parts. One part is the actual graphs made by the machine showing the subject's physical responses to questions. The other part is the opinion of the examiner as to what those responses indicate.

Authorities are in some disagreement in characterizing this evidence. In Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court found it difficult to say whether it was more like testimonial evidence (that is, "testimony" by the one subjected to the test), or physical evidence. A Massachusetts court in Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120 (1974) said it was testimonial evidence and that "the trial judge, . . . may . . . admit the results, not as binding or conclusive evidence, but to be considered with all other evidence as to innocence or guilt." 313 N.E. at 124. It is sometimes said, for example, that "Polygraph evidence is introduced as expert opinion testimony." Note, Pinocchio's New Nose, 48 N.Y.U.L.Rev. 339, 361 (1973). McCormick treats it as scientific evidence. McCormick, Evidence § 207 (1972 Ed.); accord, Tarlow, Polygraph, 26 Hastings L.J. 917 (1975). One federal court concluded that it was generally opinion evidence, but could sometimes be direct evidence on the point of the examinee's belief in his answer: "Since this is a perjury case, the issue is was the defendant lying? The opinion of the polygraph examiner based on a properly conducted examination is more than character evidence, it is direct evidence on this point and may be offered by either side regardless of whether the accused takes the stand or puts his character in issue." United States v. Ridling, 350 F.Supp. 90, 98 (E.D.Mich.1972). (Emphasis added). "Whether the polygraph test results are admitted in a criminal or civil case, the judge should instruct the jury that they should consider the test results along with the other evidence, but that the opinion of the examiner as to whether the subject gave truthful or deceptive responses is not conclusive and should be only given whatever weight they think it deserves." Note, The Role of the Polygraph in Our Judicial System, 20 S.C.L.Rev. 804, 824 (1968).

In a context different from the instant case, a Washington court has admitted polygraph evidence for corroboration: "While all courts are not in complete agreement, we are persuaded that the better rule is that the results of a polygraph test are admissible for the purpose of corroboration under (certain circumstances) . . ." State v. Ross, 7 Wash.App. 62, 497 P.2d 1343, 1347 (1972).

It is a question of corroboration which is presently before us, and it has long been the law in Georgia that only slight circumstances can suffice to corroborate the accusation of a rape victim.

"In a prosecution for rape, corroborating evidence need not be of itself sufficient to convict the accused. Slight circumstances may be sufficient corroboration. (Citations.) * * * 'Therefore, if there be any corroborative evidence at all, this court will not pass upon its probative value, since the verdict of the jury under proper instructions has resolved that issue.' (Citations)." Johnson v. State, 239 Ga. 116, 117-118, 236 S.E.2d 65, 66 (1977).

It is not necessary in this opinion to answer all questions which future cases may present. It suffices to decide this case that the polygraph results were at least some evidence, though not direct evidence, of Chambers' guilt. The Court of Appeals erred in ruling that polygraph results are always inadmissible and without probative value. Accord, Cullin v. State, Wyo., 565 P.2d 445, 449 (1977); State v. Sims, (1977) 369 N.E.2d 24 (Cuyahoga, Ohio, Common Pleas Court). The polygraph results were adequate to provide the corroboration of the victim's testimony required by Code Ann. § 26-2018.

We note that in a different case in which the only evidence of guilt is defendant's performance on a lie detector test, the state's case would not meet the stringent test which is applied by Code Ann. § 38-109 to circumstantial evidence: "To warrant a conviction on...