State v. Porter

• Decision Date: 24 June 1997
• Docket Number: No. 15363,15363
• Citation: 241 Conn. 57,698 A.2d 739
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Christian E. PORTER.

Page 739

698 A.2d 739

241 Conn. 57

STATE of Connecticut v. Christian E. PORTER.

No. 15363.

Supreme Court of Connecticut.

Argued Sept. 24, 1996.

Decided May 20, 1997.

Supplemental Dissenting Opinions filed June 24, 1997.

M. Hatcher Norris, Hartford, with whom, on the brief, were Joel M. Ellis, Peter W. Soulsby, Marlborough, and Lee A. Gold, Legal Intern, for appellant (defendant).

Kevin T. Kane, State's Attorney, with whom, were Lisa Herskowitz, Deputy Assistant State's Attorney, and, on the brief, William R. Jay, Certified Legal Intern, for appellee (State).

Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT, KATZ, PALMER and McDONALD, JJ.

BORDEN, Justice.

The issues in this certified appeal are: (1) whether Connecticut should adopt as the standard for the admissibility of scientific evidence the standard set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and (2) whether Connecticut should abandon its traditional per se rule that polygraph evidence is inadmissible at trial. The defendant, Christian E. Porter, appeals from the judgment of the Appellate Court affirming his conviction for arson in the first degree in violation of General Statutes § 53a-111 (a)(4). The defendant claims that: (1) the Appellate Court incorrectly concluded that the trial court properly denied his request for an evidentiary hearing regarding the admissibility of polygraph evidence; and (2) in light of the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 579, 113 S.Ct. 2786, this court should reconsider its test for determining the admissibility of scientific evidence, which is currently based on Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and should conclude that polygraph evidence is admissible under the Daubert test. We conclude that Daubert provides the proper threshold standard for the admissibility of scientific evidence in Connecticut. We also conclude, however, on the basis of our own independent examination of the extensive literature and case law regarding polygraph evidence, that polygraph evidence should remain per se inadmissible in Connecticut trials, and consequently that an evidentiary hearing was not necessary to evaluate the reliability of such evidence. Accordingly, we affirm the judgment of the Appellate Court.

The following facts and procedural history are undisputed. The defendant's home in Norwich was destroyed by a fire on July 20, 1992. The defendant was subsequently charged with two counts of arson in the first degree in violation of § 53a-111 (a)(3) and (4). ¹

Before trial, the defendant retained Leighton Hammond, a polygrapher, to conduct a polygraph examination to determine whether the defendant was telling the truth when he claimed that he had no guilty knowledge of, and had not participated in, the burning of his home. The defendant did not give the state advance notification of the examination. The pertinent test questions asked of the defendant were: (1) "Did you set fire to your home?"; (2) "Did you tell even one lie, in your statement to the Norwich Police?"; and (3) "Do you know for sure, if any person deliberately set fire to your home?" In the opinion of Hammond, the defendant was telling the truth when he answered "no" to each of these questions.

The defendant then moved that the trial court admit the results of the polygraph examination. After a hearing, the trial court denied the defendant's motion, stating that it was not the place of a trial court to reconsider Connecticut's traditional per se ban on the admissibility of polygraph evidence.

Following a jury trial, at which the defendant did not testify, he was convicted of arson in the first degree in violation of § 53a-111 (a)(4). ² The defendant appealed from the judgment of conviction to the Appellate Court claiming, inter alia, that the trial court improperly had refused to admit the favorable results of his polygraph examination and further improperly had refused to allow him to make an evidentiary offer of proof on the polygraph results. State v. Porter, 39 Conn.App. 800, 801, 668 A.2d 725 (1995). The Appellate Court affirmed the trial court's judgment, concluding that "[t]he trial court, like this court, is bound by the Connecticut precedent which bars the admission of polygraph results.... Because an evidentiary hearing would have been a nugatory undertaking, the trial court was not required to grant the defendant's motion for an evidentiary offer of proof." (Citation omitted.) Id., at 803, 668 A.2d 725. This certified appeal followed. ³

I

The Daubert

Standard

The defendant argues that Connecticut should adopt the federal test for the admissibility of scientific evidence, as set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. ⁴ We agree that, when read and applied correctly, Daubert provides the proper approach to the threshold admissibility of scientific evidence.

A

We begin with a general examination of the Frye and Daubert standards for the admission of scientific evidence. The standard enunciated in Frye v. United States, supra, 293 F. 1013, was predominant in both state and federal courts for the seventy years from its formulation until the decision in Daubert in 1993. Frye itself was a lie detector case; indeed, it was the first appellate case in the United States to address the admissibility of lie detector examination results. In Frye, the defendant appealed from his murder conviction on the grounds that the trial court had improperly disallowed expert testimony that he had passed a "systolic blood pressure deception test," the precursor of the modern polygraph examination. ⁵ See J. McCall, "Misconceptions and Reevaluation--Polygraph Admissibility After Rock and Daubert," 1996 U. Ill. L.Rev. 363, 367 (1996).

In considering the defendant's claim in Frye, the Court of Appeals for the District of Columbia first determined that "general acceptance" in the scientific community was a precondition to the admissibility of any scientific evidence. Frye v. United States, supra, 293 F. at 1014. "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. The court affirmed the trial court's exclusion of the systolic blood pressure evidence because the blood pressure device had "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." Id. Subsequently, Frye and its "general acceptance" standard were expressly adopted by a number of state and federal courts. See, e.g., United States v. Alexander, 526 F.2d 161 (8th Cir.1975); Pulakis v. State, 476 P.2d 474 (Alaska 1970); see generally P. Giannelli, "The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later," 80 Colum. L.Rev. 1197, 1205 (1980).

In 1993, however, the federal standard for the admissibility of scientific evidence changed as a result of the decision of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. In Daubert, the court held that RULE 702 OF THE FEDERAL RULES OF EVIDENCE⁶, which was enacted in 1975, had superseded the Frye test. Id., at 587, 113 S.Ct. at 2793-94. The court concluded that "[n]othing in the text of [rule 702] establishes 'general acceptance' as an absolute prerequisite to admissibility.... That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials." (Citations omitted.) Id., at 588-89, 113 S.Ct. at 2794.

Instead, a federal trial court has a responsibility to determine, pursuant to rule 702, whether the proffered evidence will "assist the trier of fact." Id., at 589, 113 S.Ct. at 2795. This entails a two part inquiry: "whether the reasoning or methodology underlying the [scientific theory or technique in question] is scientifically valid and ... whether that reasoning or methodology properly can be applied to the facts in issue." Id., at 592-93, 113 S.Ct. at 2796. In other words, before it may be admitted, the trial judge must find that the proffered scientific evidence is both reliable and relevant.

More specifically, the first requirement for scientific evidence to be admissible under rule 702 is that the subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted "in the methods and procedures of science"; id., at 590, 113 S.Ct. at 2795; and is "more than subjective belief or unsupported speculation." ⁷ Id. This requirement "establishes a standard of evidentiary reliability"; id.; as, "[i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity." (Emphasis in original.) Id., at 590-91 n. 9, 113 S.Ct. at 2795 n. 9.

The court listed four nonexclusive factors for federal judges to consider in determining whether a particular theory or technique is based on scientific knowledge: (1) whether it can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, including the existence and maintenance of standards controlling the technique's operation; and (4) whether the technique is, in fact, generally...