State v. Valdez

Decision Date23 May 1962
Docket NumberNo. 1254,1254
Citation91 Ariz. 274,371 P.2d 894
PartiesSTATE of Arizona, Plaintiff, v. Fernando E. VALDEZ, Defendant.
CourtArizona Supreme Court

Charles N. Ronan, Maricopa County Atty., Henry Zalut, Deputy County Atty., for plaintiff.

Charles S. Pizzo and Gerald A. Pollock, of Phoenix, for defendant.

UDALL, Vice Chief Justice.

Defendant was tried for and convicted of possession of narcotics. Pursuant to a written stipulation entered into by defendant, his counsel and the county attorney before trial defendant submitted to a polygraph (lie-detector) examination. The stipulation also provided that the results of such examination would be admissible at the trial. Accordingly, the polygraph operator was permitted, over objection by defendant to testify to the results of the examination (unfavorable to defendant) at defendant's jury trial. After the jury returned a verdict or guilty and before sentence was entered, the trial court, pursuant to Rule 346 of the Arizona Rules of Criminal Procedure, 17 A.R.S., 1 certified the following question to this court:

'In a criminal case, if prior to trial the defense attorney, on behalf of his client and with his client's consent, and the deputy county attorney agree in a written stipulation that the results of a polygraph test, to be taken by the defendant, will be admissible as evidence at the trial, on behalf of either the State of Arizona or the accused, may the trial court admit the results of the test over the objection of defense counsel?'

Because any case involving admissibility of lie-detector evidence would be one of first impression in Arizona and also because of the particular disposition herein of the question certified the following observations and review of the authorities are set forth for the guidance of the Bar.

The polygraph or lie-detector is a pneumatically operated device which simultaneously records changes in a subject's blood pressure, pulse, respiration rate and depth, psychogalvanic skin reflex (skin resistance to electrical current) and, in some cases, muscular activity. 2 'The basis for the use of the so-called lie-detector * * * is the hypothesis that conscious deception can be deduced from certain involuntary physiological responses in the same manner as physicians diagnose various disceases. The thesis is that lying engenders emotional disturbances which are transumuted into tangible bodily manifestations.' 3 The machine itself reflects and records only the subject's physiological responses to the questions propounded by the operator. He then interprets the polygraph (meaning, literally, 'many pictures') and determines whether the subject is lying.

I Admissibility in General

The first reported American case involving admissibility of lie-detector evidence was Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 34 A.L.R. 145 (1923). Frye, convicted of murder in the second degree, appealed alleging as his sole assignment of error the trial court's refusal to allow an expert to testify as to the results of a systolic blood pressure test to which Frye had submitted. In affirming the conviction and in upholding the trial court's refusal of the proffered testimony the Circuit Court observed:

'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.

'We think the systolic blood pressure deception test has 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.' 4

Ten years later the Supreme Court of Wisconsin reached the same result in State v. Bohner, 210 Wis. 651, 246 N.W. 314, 86 A.L.R. 611 (1933). Bohner's conviction for robbery was affirmed and it was held that the trial judge had correctly excluded defendant's offer of lie-detector results. The Wisconsin court added the following:

'We are not satisfied that this instrument, during the ten years that have elapsed since the decision in the Frye Case, has progressed from the experimental to the demonstrable stage.' 210 Wis. at 658, 246 N.W. at 317.

And the judicial attitude toward lie-detector evidence expressed in Bohner has not changed markedly in the numerous cases decided since 1933. Thus, in 1961 a New Jersey appellate court was correct in pointing out:

'* * * that there is not a single reported decision where an appellate court has permitted the introduction of the results of a polygraph or liedetector test as evidece in the absence of a sanctioning agreement or stipulation between the parties.'

State v. Arnwine, 67 N.J.Super. 483, 495, 171 A.2d 124, 131 (1961). 5 Consistent with

this approach appellate courts have reversed convictions in cases where lie-detector results unfavorable to defendants were placed before the juries inferentially. E. g., State v. Arnwine, supra; People v. Wochnick, 98 Cal.App.2d 124, 219 P.2d 70 (1950). Further, it is uniformly held that a defendant is not permitted to introduce evidence of his willingness to take a lie-detector test. E. g., Commonwealth v. Saunders, 386 Pa. 149, 156-57, 125 A.2d 442, 445-46 (1956). Nor can a defendant's refusal to submit to polygraphic interrogation be shown by the state directly, State v. Kolander, 236 Minn. 209, 52 N.W.2d 458 (1952), or indirectly, People v. Carter, 48 Cal.2d 737, 752, 312 P.2d 665, 674 (1957). 6

But judicial reluctance to recognize generally the worth of lie-detector evidence in the court room has not been due to mere inertia. For, in affirming a first degree rape conviction, the Oklahoma Criminal Court of Appeals quoted from two leading authorities the following "* * * factors which occasion the chief difficulties in the diagnosis of deception by the lie-detector technique * * *.'

"(1) Emotional tension--, 'nervousness'--experienced by a subject who is innocent and telling the truth regarding the offense in question, but who is nevertheless affected by

"(a) fear induced by the mere fact that suspicion or accusation has been directed against him, and particularly so in instances where the subject has been extensively interrogated or perhaps physically abused by investigators prior to the time of the interview and testing by the lie-detector examiner; and

"(b) a guilt complex involving another offense of which he is guilty.

"(2) Physiological abnormalities, such as

"(a) excessively high or excessively low blood pressure;

"(b) diseases of the heart;

"(c) respiratory disorders, etc.

"(3) Mental abnormalities, such as

"(a) feeblemindedness, as in idiots, imbeciles, and morons;

"(b) psychoses or insanities, as in manic depressives, paranoids, schizophrenics, paretics, etc.;

"(c) psychoneuroses, and psychopathia, as among so-called 'peculiar' or 'emotionally unstable' persons--those who are neither psychotic nor normal, and who form the borderline between these two groups.

"(4) Unresponsiveness in a lying or guilty subject, because of

"(a) lack of fear of detection;

"(b) apparent ability to consciously control responses by means of certain mental sets or attitudes;

"(c) a condition of 'sub-shock' or 'adrenal exhaustion' at the time of the test;

"(d) rationalization of the crime in advance of the test to such an extent that lying about the offense arouses little or no emotional disturbance;

"(e) extensive interrogation prior to the test.

"(5) Unobserved muscular movements which produce ambiguities or misleading indications in the blood pressure tracing."

Henderson v. State, 94 Okl.Crim. 45, 51-52, 230 P.2d 495, 501-02, 23 A.L.R.2d 1292, cert. denied, 342 U.S. 898, 72 S.Ct. 234, 96 L.Ed. 673 (1951). 7 And in addition to the above enumerated scientific shortcomings of the polygraph technique the following objections to the unrestricted use of its results in the court room have been registered:

(1) The supposed tendency of judges and juries to treat lie-detector evidence as conclusive on the issue of defendants' guilt. See Highleyman, The Deceptive Certainty Of The 'Lie Detector', 10 Hastings L.Rev. 47 (1958); Kleinfeld, The Detection of Deception--A Resume, 8 Fed.B.J. 153 (1947).

(2) Lack of standardization of test procedure, (Burack, A Critical Analysis Of The Theory, Method, And Limitations Of The 'Lie Detector', 46 J.Crim.L., C. & P. S., 414 (1955); Koffler, The Lie Detector--A Critical Appraisal Of The Technique As A Potential Undermining Factor In The Judicial Process, 3 N.Y.L.F. 123 (1957)), examiner qualifications and instrumentation. 8

(3) Difficulty for jury evaluation of examiners' opinions.

Finally, it appears '* * * that at the present time the technique is not an 'accepted' one among the scientists whose approval is a prerequisite to judicial recognition.' Inbau and Reid, Lie Detection and Criminal Interrogation, (3rd ed. 1953) at 130. See also Cureton, A Consensus As To The Validity Of Polygraph Procedures, 22 Tenn.L.Rev. 728, 739-41 (1953). Of course absolute infallibility is not the standard for admissibility of scientific evidence. But at this time it seems wise to demand greater standardization of the instrument, technique and examiner qualifications and the endorsement by a larger segment of the psychology and physiology branches of science before permitting general use of lie-detector evidence in court. Accordingly, in the absence of a stipulation liedetector evidence should not be received in an Arizona court for the present.

II Admissibility Upon Stipulation

The first reported decision involving stipulated...

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