United States v. DeBetham, Crim. No. 12929.

• Decision Date: 08 September 1972
• Docket Number: Crim. No. 12929.
• Citation: 348 F. Supp. 1377
• Parties: UNITED STATES of America, Plaintiff, v. Bruce Eugene DeBETHAM, Defendant.
• Court: U.S. District Court — Southern District of California

348 F. Supp. 1377

UNITED STATES of America, Plaintiff, v. Bruce Eugene DeBETHAM, Defendant.

Crim. No. 12929.

United States District Court, S. D. California.

September 8, 1972.

Harry D. Steward, U. S. Atty., Stephen G. Nelson, Catherine A. Chandler, Asst. U. S. Attys., San Diego, Cal., for plaintiff.

Federal Defenders of San Diego, Inc., by Charles M. Sevilla, San Diego, Cal., for defendant.

MEMORANDUM OPINION

GORDON THOMPSON, Jr., District Judge.

The defendant stands charged with the unlawful possession of a controlled substance, in violation of 21 U.S.C. § 844. The charge stems from the defendant's apprehension at the Mexican-American border on December 4, 1971, while driving a car belonging to his co-defendant Charles Bland in which 5 grams of heroin were found. Bland testified at trial that he and the defendant had agreed to go to Mexico to buy the heroin and subsequently planned in common to introduce the substance into the United States. The defendant testified on his own behalf, asserting that his meeting with Bland in Mexico was mere chance and that he had no knowledge of the presence of narcotics in the car.

In support of his contention that he lacked knowledge of the heroin in the car, the defendant proffered as evidence the results of certain polygraph, or "lie detector," examinations to which he had submitted himself. If admitted, they would presumably indicate that the defendant was not attempting to deceive the polygraph examiner when he answered carefully prepared questions relative to the material issues in the case. The government opposed the admission of such evidence, contending that since 1923, when Frye v. United States, 54 U. S.App.D.C. 46, 293 F. 1013 (1923), was decided, all federal precedent has been to the contrary.¹

The court in Frye found that the lie detection technique sought to be used by the defendant, the Marston systolic blood pressure deception test, had not achieved "general acceptance in the particular field in which it belongs." 54 U.S.App.D.C. 46, 293 F. at 1014. More specifically, the court held:

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. 54 U.S. App.D.C. 46, 293 F. at 1014.

In the instant case, this Court held several hearings in order to afford both parties adequate opportunity to present expert testimony bearing on the reliability and acceptance of the modern polygraphic interrogation technique. The Court had in mind the fact that, although the "general acceptance" test of Frye, supra, is regularly cited as the controlling rationale,² almost no appellate court has been given the opportunity to review a trial record that contained foundational evidence that might satisfy that test.³ The result has been almost universal rejection of unstipulated polygraph evidence,⁴ occasionally without any stated reason therefor. For example, two recent Ninth Circuit cases, United States v. Sadrzadeh, 440 F.2d 389 (1971), and United States v. Salazar-Gaeta, 447 F.2d 468 (1971), each upheld the trial court's rejection of polygraph results offered by the defendant, although it is not at all clear from the decisions whether they were premised on unreliability or lack of general acceptance or some collateral policy reason. Sadrzadeh stated flatly, "We find the proffer of a lie detector test was properly rejected." 440 F.2d at 390. Salazar-Gaeta was equally cryptic, citing Sadrzadeh as authority.

At the same time the Tenth Circuit in United States v. Wainwright, 413 F.2d 796 (1969), recently indicated that the door might not be forever closed to polygraph evidence, were its proponents to offer "relevant expert testimony relating to the probative value of such evidence," so as to "supply the condition noted by Wigmore that before such evidence be admitted an expert testify `that the proposed test is an accepted one in his profession and that it has a reasonable measure of precision in its indications.' 3 Wigmore on Evidence (3d Ed. 1940) § 990." 413 F.2d at 803.⁵

In view of the foregoing, this Court was of the opinion that the time was ripe to make a careful review of the premises underlying the general rejection of unstipulated polygraph evidence, and that the defendant, if able to do so, should be permitted to lay a foundation to establish the reliability and acceptance of the polygraphic technique so that either this Court or those entrusted with appellate review would be able to make a truly informed decision regarding this most controversial issue.

At the outset of this inquiry it is important to delimit the actual issue before this Court, so as to clarify what is and what is not decided here. The question presented by the facts of the instant case is whether, absent a stipulation by the parties, the Court sitting without a jury may receive in evidence the results of a polygraph examination offered by the defendant in a criminal case. Thus, we are not concerned with the admission of polygraph evidence in a jury trial, or in a civil trial, or where the parties have stipulated as to admissibility. Nor do we decide whether the results of a polygraph test should be admitted to bolster or impeach the testimony of witnesses other than the defendant. In short, the extension of this opinion beyond its factual setting is not at all encouraged.⁶

I

As noted previously, the primary articulated reason for rejecting polygraph evidence has been its alleged failure to achieve "general acceptance" in the scientific community. In Frye v. United States, supra, where this standard of admissibility was first applied to instrumental lie detection in 1923, the court listed by name what it felt to be the relevant fields of science from which the Marston systolic blood pressure deception test was required to secure approval: to wit, physiology and psychology. If the functioning and basic theory of the modern polygraph technique are analyzed, this still appears to be a logical starting point, since the technique draws upon both of these disciplines to a great extent.

Summarized and simplified, the polygraph is an electromechanical instrument which simultaneously measures and records certain physiological changes in the human body, which it is believed are involuntarily caused by an examinee's conscious attempts to deceive an interrogator while responding to a carefully prepared set of questions.⁷ Commonly, the machine records three items of information: (1) rate and depth of respiration, (2) blood pressure and pulse rate, and (3) galvanic skin response (G.S.R.). The latter is a measurement of increased sweating of the palmar surfaces of the hand. Some newer machines even incorporate a device that detects muscular contractions that might otherwise escape the notice of the examiner and thus clandestinely distort the blood pressure reading.⁸

From a review of the evidence and scientific authorities, it appears that physiologists as a group have no real quarrel with the polygraph as an instrument for measuring and recording certain physiological responses of the human body. For example, Dr. Hard, a pyschophysiologist presented by the government, testified that the three-channel polygraph is a useful tool for studying physiological changes, though he expressed doubts as to whether any conclusions about deception could be derived therefrom. Even Professor Skolnick, a legal scholar who has written in opposition to the admission of polygraph evidence on scientific grounds, admits that:

The recordings of blood pressure, pulse, respiration, and skin resistance produced by the polygraph may be assumed accurate, if the mechanism has sufficiently rigorous specifications and is in proper order.⁹

However, there appears to be no such general agreement among psychologists as to the validity of the psychological theory underlying the polygraphic technique. For instance, Dr. Raskin, the only psychologist who appeared to testify in support of the defendant's motion, could not state unequivocally that the polygraphic lie detection technique enjoyed the general recognition of his profession. In fact, in a recently published paper, Dr. Raskin himself concedes:

The lie detection technique was developed pragmatically by the field users, with the theoretical underpinnings following later. Even now, there exists no generally accepted theory which adequately explains all of the phenomena.¹⁰

Thus, although it appears that psychologists and psychophysiologists are currently engaged in pertinent studies and experiments which may ultimately lead to the scientific verification of the underlying psychological hypothesis of the polygraph,¹¹ no conclusive findings have been brought to the Court's attention which would warrant a holding that the Frye test of admissibility, as interpreted by subsequent decisions, has finally been satisfied after almost half a century.¹²

II

However, the above conclusion need not preclude further inquiry into Frye itself. Admittedly, that decision has been read to establish a simple but uniquely rigorous test for the admissibility of polygraph evidence, namely, general acceptance by the physiological and psychological communities.¹³ But a closer analysis of Frye suggests that the court there did not intend to carve out a special test of admissibility for the Marston lie detector test which would be more rigorous than that applied to any other type of scientific evidence.

Frye v. United States is a relatively short opinion, occupying less than two full pages of the Federal Reporter. In that case the Court of Appeals of the District of Columbia had before it the sole question of whether it was error to exclude the results of a lie detector test offered by the defendant in a criminal jury trial. After a discussion of the theory behind the Marston...