State v. Sharpe, 010419 AKSC, A-12452

Docket Nº:A-12452, A-l 1423, A-11433, A-12219
Opinion Judge:STOWERS, CHIEF JUSTICE.
Party Name:STATE OF ALASKA, Petitioner and Cross-Respondent, v. JYZYK J. SHARPE, Respondent and Cross-Petitioner. STATE OF ALASKA, Petitioner and Cross-Respondent, v. THOMAS HENRY ALEXANDER, Respondent and Cross-Petitioner. JEFFERY K. HOLT, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Diane L. Wendtland, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Petitioner and Cross-Respondent and Appellee State of Alaska. Sharon Barr, Assistant Public Defender, and Quinlan Sterner, Public Defender, Anchorage, for Resp...
Judge Panel:Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
Case Date:January 04, 2019
Court:Supreme Court of Alaska
 
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STATE OF ALASKA, Petitioner and Cross-Respondent,

v.

JYZYK J. SHARPE, Respondent and Cross-Petitioner.

STATE OF ALASKA, Petitioner and Cross-Respondent,

v.

THOMAS HENRY ALEXANDER, Respondent and Cross-Petitioner.

JEFFERY K. HOLT, Appellant,

v.

STATE OF ALASKA, Appellee.

Nos. A-12452, A-l 1423, A-11433, A-12219

Supreme Court of Alaska

January 4, 2019

Petition for Hearing in File Nos. S-16191/16214 from the Court of Appeals of the State of Alaska, on appeal from the Superior Court No. 3PA- 14-00877 CR of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge.

Petition for Hearing in File Nos. S-16193/16214 from the Court of Appeals of the State of Alaska, on appeal from the Superior Court No. 3AN-09-11088 CR of the State of Alaska, Third Judicial District, Anchorage, Gregory Miller, Judge.

Certified Question in File No. S-16449 from the Court of Appeals of the State of Alaska, on appeal from the Superior Court No. 3HO-11-00515 CR of the State of Alaska, Third Judicial District, Homer, Charles T. Huguelet, Judge.

Diane L. Wendtland, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Petitioner and Cross-Respondent and Appellee State of Alaska.

Sharon Barr, Assistant Public Defender, and Quinlan Sterner, Public Defender, Anchorage, for Respondents and Cross-Petitioners Sharpe and Alexander.

Brooke Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for Appellant Holt.

Gordon L. Vaughan, Vaughan & DeMuro, Colorado Springs, Colorado, and Gavin Kentch, Law Office of Gavin Kentch, LLC, Anchorage, for Amicus Curiae American Polygraph Association.

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

OPINION

STOWERS, CHIEF JUSTICE.

I. INTRODUCTION

In each of the three underlying criminal cases in this consolidated appeal, the defendant sought to introduce expert testimony by a polygraph examiner that the defendant was truthful when he made exculpatory statements relating to the charges against him during a polygraph examination conducted using the "comparison question technique" (CQT). In two of the cases, the superior courts found that testimony based on a CQT polygraph examination satisfied the requirements for scientific evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc.1 and State v. Coon.2 In the third case, the superior court reached the opposite conclusion and found the evidence inadmissible. We are now asked to revisit the appellate standard of review for rulings on the admissibility of scientific evidence and to determine the admissibility of CQT polygraph evidence.

We conclude that appellate review of Daubert/Coon determinations should be conducted under a hybrid standard: the superior court's preliminary factual determinations are reviewed for clear error; based on those findings and the evidence available, whether a particular scientific theory or technique has been shown to be "scientifically valid" under Daubert and Coon is a question of law to which we apply our independent judgment; and where proposed scientific evidence passes muster under that standard, the superior court's case-specific determinations and further evidentiary rulings are reviewed for abuse of discretion. Applying this standard here, we conclude that CQT polygraph evidence has not been shown to be sufficiently reliable to satisfy the Daubert/Coon standard.

II. BACKGROUND

A. State v. Alexander

Thomas Alexander was charged with multiple counts of sexual abuse of a minor. Before trial, Alexander hired David Raskin, Ph.D., a polygraph examiner, to administer a CQT polygraph examination. Based on the polygraph results, Dr. Raskin concluded that Alexander answered truthfully when he denied committing the acts with which he was charged. At Alexander's request, Superior Court Judge Gregory Miller held an evidentiary hearing to address the admissibility of the polygraph results. For the purpose of that hearing, Alexander's case was consolidated with an unrelated criminal case pending before Superior Court Judge pro tem Daniel Schally because the two cases involved similar polygraph testimony by the same polygraph examiner, Dr. Raskin.3 The two judges held a joint evidentiary hearing over the course of two days, spanning more than ten hours of testimony. Dr. Raskin testified for the defense in support of admitting testimony about the polygraph results, while William Iacono, Ph.D., a research psychologist at the University of Minnesota, testified for the State in opposition. Both sides also submitted copious evidence in the form of declarations by the two experts, scientific studies, treatises, etc.

The judges issued a joint order for both cases concluding that CQT polygraph testing satisfies the Daubert/Coon requirements for scientific validity. The judges also concluded that the proposed testimony was not otherwise excluded by the Alaska Rules of Evidence relating to relevance, unfair prejudice, credibility bolstering, expert testimony, or hearsay. Their order held that the polygraph evidence would be admissible, but on the condition that the defendants first testified at their respective trials and subjected themselves to cross-examination. Their ruling was also premised on each defendant agreeing to sit for a second polygraph test administered by the State, which the judges reasoned would mitigate concerns relating to possible bias by a "friendly" examiner4 and add additional "guarantees of trustworthiness."[5]

B. State v. Sharpe

In a case unrelated to Alexander's, Jyzyk Sharpe was charged with murder and manslaughter in connection with the death of his girlfriend's two-year-old son. Sharpe also hired Dr. Raskin to administer a polygraph examination, after which Dr. Raskin concluded that Sharpe answered truthfully when he denied the charges against him.

Before trial, the State moved to preclude Sharpe's polygraph evidence and Dr. Raskin's testimony. As in Alexander's case, the State argued that polygraph examinations are not supported by valid science and that additional accuracy problems are presented in the case of a "friendly" polygraph examiner. For those reasons, the State argued that the polygraph testimony should be excluded under Alaska Evidence Rule 403 because its probative value would be outweighed by risks of unfair prejudice, confusion, delay, and wasted time. The State also argued that the proposed testimony included inadmissible hearsay, that the testimony was inadmissible as expert testimony under Daubert/Coon and under the Alaska Rules of Evidence, and that the testimony was inadmissible character evidence under Evidence Rule 608.

No new Daubert/Coon hearing was held; instead, Superior Court Judge Eric Smith relied on the record and evidence presented in Alexander's Daubert/Coon evidentiary hearing. The superior court held that the testimony would be admissible pursuant to the same reasoning as in that case. However, the court added the additional limiting instruction that the polygraph examiners-Dr. Raskin and the State's examiner - could testify only to whether Sharpe "believed what he was saying" and not to whether he was "telling the truth"; the court reasoned that the latter would impermissibly imply that a polygraph test can reveal whether a statement is objectively accurate.

During a second polygraph test, administered for the State by former FBI agent Kendall Shull, Sharpe prematurely terminated the examination when Shull asked Sharpe if he was using countermeasures6 against the polygraph test. The State asked the court to reconsider the admissibility of Dr. Raskin's testimony based on Sharpe's lack of cooperation with the second examination. The court ultimately reaffirmed its original decision, ruling that Dr. Raskin's testimony was admissible but that the State could present evidence of Sharpe's lack of cooperation in rebuttal.

C. State v. Holt

Jeffery Holt was charged with five counts of first-degree sexual assault. Before trial, Holt hired Dr. Raskin to administer a polygraph examination, after which Dr. Raskin concluded Holt was being truthful when he denied the charges on the grounds that the alleged victim consented to sexual activity. In lieu of a Daubert/Coon hearing, both parties suggested and the court agreed it could determine the admissibility of Dr. Raskin's testimony by reviewing the record of the hearing and subsequent order in Alexander's case. The parties also submitted additional scholarly articles on polygraph testing, an audio recording of Holt's polygraph examination, the raw data from that examination, and the prosecutor's recorded interview of Dr. Raskin about the procedure used in that examination.

Superior...

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