U.S. v. Alexander
| Decision Date | 18 November 1975 |
| Docket Number | No. 75--1424,75--1424 |
| Citation | 526 F.2d 161 |
| Parties | UNITED STATES of America, Appellee, v. Steven John ALEXANDER, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael K. Steenson, St. Paul, Minn., for appellant.
Mel I. Dickstein, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before GIBSON, Chief Judge, HENLEY, Circuit Judge, and VAN PELT, Senior District Judge. *
Defendant, Steven Alexander, was convicted in a non-jury trial of violating 18 U.S.C. App. § 1202(a)(1) (1970) which proscribes possession of a firearm affecting interstate commerce by a convicted felon. He received a two year sentence. The sole issue on this appeal is whether the District Court erred in refusing to admit the results of an unstipulated polygraph examination offered by defendant.
On January 8, 1974, two police officers were directed to investigate a particular automobile in Rochester, Minnesota. As the officers approached the automobile, they observed defendant sleeping in the front seat. Defendant was ordered out of the vehicle and, in the process of raising himself up, the officers alleged that he attempted to conceal a .25 caliber semiautomatic pistol under the seat. After the officers confiscated the pistol, defendant was arrested on the charge of violating § 1202(a)(1) since the arresting officers were aware of his prior felony conviction. Neither the car nor the pistol was registered in defendant's name. At trial, defendant offered in evidence the results of an unstipulated polygraph examination which ostensibly bolstered his contention that he was not in possession of the weapon at the time of his arrest. We thus are afforded a classic confrontation between the accused and a police officer as to a factual occurrence participated in by the accused and witnessed by the officer. After granting the parties time to prepare and submit memoranda in support of their respective positions concerning the admission of the polygraph evidence, the District Court 1 refused to admit the evidence. Defendant filed a timely appeal.
The polygraph technique is based on the premise that an individual's conscious attempt to deceive engenders various involuntary physiological changes due to an acute reaction in the sympathetic parts of the autonomic nervous system. The polygraph machine is an electromechanical instrument which measures and records these physiological fluctuations that are detected with the aid of three basic components: (1) the pneumograph which monitors the respiration rate of the examinee; (2) the cardiosphygmograph which gauges blood pressure and pulse rate; and (3) the galvanometer which measures the galvanic skin reflex or electrodermal response--skin resistance to electrical current (perspiration on the palmar surfaces of the hands will increase the flow of electrical current). Some of the more recent polygraph machines have incorporated a device that detects unobservable muscular activity believed to accompany intentional attempts to control the other responses that are recorded by the polygraph. 2 All of the physiological responses detected by these components are transmitted by a recording pen onto a constantly moving piece of graph paper, a polygram. The function of polygraph practitioners, or polygraphists, is to study and interpret the markings on the polygram and make a determination as to whether the recorded physiological reactions evince the psychological and emotional pressures which normally accompany intentional attempts to deceive. It is clear, therefore that the polygraph does not detect lies, but merely records physiological phenomena which are assumed to be related to conscious deception.
Courts have generally admitted all scientific evidence that may serve as a forensic aid to the judicial process. However, as a predicate to the admission of expert testimony pertaining to such evidence, the scientific principle 'must be sufficiently established to have gained general acceptance in the particular field in which it belongs.' Frye v. United States, 54 U.S.App.D.C. 46, 293 F. 1013, 1014 (1923). 3 The reliability of a scientific technique is one of the most important factors that courts should consider in determining whether that technique is generally accepted in the scientific community. United States v. Franks, 511 F.2d 25, 33 n. 12 (6th Cir.), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 693 (1975). It is the judge's responsibility to initially assess whether there is a sufficient degree of general scientific acceptability to warrant admission of the evidence. United States v. Stifel, 433 F.2d 431, 438 (6th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971). Once a judge concludes that expert testimony is to be permitted, the jury is entitled to review the evidence and accord it such weight as the jury feels is warranted. Feguer v. United States, 302 F.2d 214, 242 (8th Cir.), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110 (1962).
In applying the scientific acceptability standard to polygraph tests, all United States courts of appeals addressing the issue have excluded the results of unstipulated polygraph tests. These courts reason that the polygraph does not command scientific acceptability and that it is not generally believed to be sufficiently reliable in ascertaining truth and deception to justify its utilization in the trial process. Consequently, they have held that the results of an unstipulated polygraph examination are either per se inadmissible 4 or that the trial court did not abuse its discretion in refusing admission of the test results. 5 Most of these cases manifest rather laconic discussions of why polygraph results should be inadmissible and their stated authority for exclusion is generally Frye v. United States, supra, and its progeny. Frye held that the Marston 'systolic blood pressure deception' test lacked scientific acceptability and thus its results were inadmissible. However, the polygraph used in Frye measured only variations in the examinee's blood pressure and was a relatively unsophisticated precursor to the modern polygraph machine which measures many other physiological responses. The key issue on this appeal is whether the modern polygraph machine and technique have attained sufficient scientific acceptance among experts in polygraphy, psychiatry, physiology, psychophysiology, neurophysiology and other related disciplines to justify the admission of the results of an unstipulated polygraph examination in evidence. 6
In 1964, the Committee on Government Operations of the House of Representatives conducted several days of hearings on the use of polygraphs by the federal government. 7 During the course of the hearings, the Committee heard testimony from preeminent polygraphists, psychiatrists, psychologists, psychophysiologists and other witnesses who were able to attest to the operation and accuracy of polygraphs. In its report, the Committee concluded:
There is no 'lie detector.' The polygraph machine is not a 'lie detector', nor does the operator who interprets the graphs detect 'lies.' The machine records physical responses which may or may not be connected with an emotional reaction--and that reaction may or may not be related to guilt or innocence. Many, many physical and psychological factors make it possible for an individual to 'beat' the polygraph without detection by the machine or its operator. 8
The rationale forwarded by the Committee, as well as by the courts which have discussed the reasons for excluding polygraph evidence, is that there are too many uncontrollable or unascertainable factors which may affect the polygraphist's conclusion as to the veracity or falsity of the examinee's responses. Among the numerous constituents which may individually or collectively operate to result in an inaccurate reading are: (1) the physiological abnormalities of the examinee, which may include high or low blood pressure, respiratory disorders and heart diseases, as well as a state of discomfort or extreme fatigue during the examination; (2) extreme nervousness or emotional tension by an innocent person who may believe that the polygraph will produce an inaccurate and inculpatory result; (3) anger or resentment toward the examiner or the questions asked; (4) inadequate or misleading phrasing of the questions by the examiner; and (5) a mental abnormality of the examinee, which may include psychosis, psychoneurosis or a psychopathic personality. 9
The existence of any of these factors creates either physiological responses or unresponsiveness in the examinee which is unrelated to the truthfulness or falsity of his or her response to a question. Nevertheless the examinee's reactions are transmitted to the polygram and interpreted by the polygraphist. If the existence of these many variables is not detected and controlled, inaccurate or inconclusive results may be reached. The degree of error in polygraph results caused by these and other factors is subject to debate. John Reid, a leading authority on polygraphs, has estimated a nine percent rate of error under optimal testing conditions where the polygraph examination is conducted by competent, experienced polygraphists. 10 Other commentators have estimated a degree of error of 25 percent or more. 11 An accurate ascertainment of error is rendered difficult since the results obtained in a controlled experiment may vary significantly from the results of tests involving actual criminal suspects being tested under more traumatic circumstances. Furthermore, it is often difficult to supply supportive and objective evidence to verify a polygraphist's conclusion as to a subject's veracity since there is no assured way in most cases to determine whether the subject was actually being truthful or deceitful.
Further complicating the problem of reliability that can be affected by extraneous stimuli not...
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