United States v. Ridling

• Citation: 350 F. Supp. 90
• Decision Date: 06 October 1972
• Docket Number: Crim. A. No. 46732.
• Parties: UNITED STATES of America, Plaintiff, v. Richard RIDLING, Defendant.
• Court: U.S. District Court — Western District of Michigan

350 F. Supp. 90

UNITED STATES of America, Plaintiff, v. Richard RIDLING, Defendant.

Crim. A. No. 46732.

United States District Court, E. D. Michigan, S. D.

October 6, 1972.

David J. Cook, Sp. Atty., Laurence Leff, Atty. in Charge, Dept. of Justice, Detroit, Mich., for plaintiff.

Robert S. Harrison, of Harrison, Friedman & Roberson, Detroit, Mich., for defendant.

MEMORANDUM OPINION

JOINER, District Judge.

This is a perjury case. The Defendant is alleged to have made statements under oath before a Grand Jury which he knew were false. He has pleaded not guilty. As a part of his defense, he has indicated his intention to offer testimony of one or more polygraph experts who, he asserts will testify that, as a result of their tests, it is their opinion that he is telling the truth when he makes the statements that are alleged to be the basis for this indictment. The Court ordered a pretrial evidential hearing on the admissibility of the tests and the opinions of the polygraph experts. Under the circumstances indicated in this Opinion and subject to the conditions stated, the evidence will be admitted at the trial of this case.

The Court has heard evidence in this case from persons who are experts in the use of polygraphs to establish the value and reliability of the results of the tests. The evidence includes the following:

1. The basic theory of the polygraph.

2. The reliance on the polygraph by government agencies.

3. The reliance on the polygraph by private industry.

4. The comparative reliability of the polygraph and other scientific evidence such as fingerprint and ballistic evidence.

5. The opinions of the experts as to whether polygraph evidence would be a valuable aid in connection with the determination of the issues such as the one facing the Court in this case and in the administration of justice.

The evidence supports the statements set out in this Memorandum.¹

The polygraph is a scientific device that measures and records a number of involuntary body responses to stress. It measures and records blood pressure changes, pulse changes, respiration changes, as well as changes in the skin's resistance to electricity. It appears that the sophistication of these measurements is constantly improving and that it is likely devices will be developed for use in the future to measure other involuntary body responses to stress.

The polygraph is based on the principle that the autonomic nervous system will respond to stressful conditions and that sympathetic parts of that system will respond involuntarily. These parts of the system are not controllable. Their reaction is automatic. It is well established that the sympathetic part of the autonomic nervous system causes internal organs of the body, the heart, the breathing apparatus, the perspiration glands, the stomach and others to change their activity when placed under stress, as for example, when confronted by an emergency. The polygraph measures some of the results of this automatic response to stress. Current versions of the device measure changes in the activity of some of these internal organs, for example, the changes in the blood pressure, pulse, respiration, and the sweat gland activity.

A lie is an emergency to the psychological well being of a person and causes stress. Attempts to deceive cause the sympathetic branch of the autonomic nervous system to react and cause bodily changes of such a magnitude that they can be measured and interpreted.

There are three types of interpretations that can be given a well conducted examination:

1. The subject is willingly not telling the truth.

2. The subject is telling the truth as he sees it.

3. The test is inconclusive, e. g. the examiner cannot tell if the subject is or is not telling the truth.

Not more than 6% of well conducted tests result in this third conclusion, and a number of them can be tested effectively on retest.

For a test to be successful, it is important that the examination be conducted under controlled circumstances, that the subject cooperate with the expert, that appropriate scientific methods be used in connection with the questioning of the subject, that the subject understands the meaning of the questions as they are asked, that the recording device or polygraph be in good operating condition and be connected properly and that a person skilled in the interpretation of the polygraph charts make the interpretation of the test results.

There is in this country a reasonably well developed group of persons who consider themselves to be experts in the use of the polygraph. They have recently organized into national and state organizations to exchange ideas and to improve themselves. In some ways, they are looked down upon by members of the psychiatric and psychological societies. In part this comes from the limited educational background of many of the polygraph examiners and the mechanical and technical approach to their limited area of their expertise. However, the scientific psychological basis for the polygraph examination is well established.

Several major schools in the country offer courses in the giving of polygraph tests and the reading of polygraph results. Several different refinements to the technique of polygraph testing having to do with the specific order in which the questions are put to the subject have been developed by the experts. Opinions differ as to which of these techniques is best. Nothing, however, in the different techniques cast doubt upon the basic theory behind the polygraph. Experts assert that the record of one polygraph examination can be interpreted satisfactorily by another expert so long as that second expert knows the particular technique used in questioning the subject.

Police departments throughout the United States, various parts of the Government of the United States and industry utilize polygraph test results in their day to day operations. Experts testified that the reliability of the opinion of a qualified polygraph expert was higher than the opinions of ballistics experts and as high as the opinions of fingerprint experts.

All experts agreed that polygraph evidence would be a valuable aid in connection with determining the kinds of issues involved in this case and in the process of administering justice.

Although polygraph testimony is sometimes referred to as experimental and scientific evidence, McCormick on Evidence, 2d Ed. 1972, page 505, the evidence in reality is opinion evidence. The interrogation must be carefully arranged and supervised. The polygraph recordings must be interpreted. Only a person skilled in this art and science is qualified to interpret the results and that interpretation is stated in the form of an opinion.

At the beginning it must be noted that this, among all possible cases, is the best case for testing the admissibility of polygraph testimony. A perjury case is based on "willfully" or "knowingly" giving false evidence. The experts all agree that the polygraph examination is aimed exactly at this aspect of truth. A subject, they say, may be honestly mistaken as to a fact and, if he answers according to his honest belief, the operator will interpret the results as being a truthful answer.

Judicial opinions pertaining to the admission of polygraph testimony seem all to point toward exclusion, Marks v. United States, 260 F.2d 377 (10th Cir. 1958); Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923); Sadowy v. Fay, 189 F.Supp. 150 (S.D.N.Y.1960); People v. York, 174 Cal.App.2d 305, 344 P.2d 811 (1959); People v. Jones, 52 Cal.2d 636, 343 P.2d 577 (1959); People v. Boney, 28 Ill.2d 505, 192 N.E.2d 920 (1963); State v. Bohner, 210 Wis. 651, 246 N.W. 314 (1933); People v. Becker, 300 Mich. 562, 2 N.W.2d 503 (1942); Hawkins v. State, 222 Miss. 753, 77 So.2d 263 (1955); State v. Hollywood, 138 Mont. 561, 358 P.2d 437 (1960); Parker v. State, 164 Neb. 614, 83 N.W.2d 347 (1957); State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961); State v. Emery, 27 N.J. 348, 142 A.2d 874 (1958); Looper v. State, 381 P.2d 1018 (Okl.Cr.1963); Commonwealth ex rel. Hunter v. Banmiller, 194 Pa.Super. 448, 169 A.2d 347 (1961); Grant v. State, 213 Tenn. 440, 374 S.W.2d 391 (1964); Placker v. State, 171 Tex.Cr. R. 406, 350 S.W.2d 546 (1961); Davis v. State, 165 Tex.Cr.R. 456, 308 S.W.2d 880 (1958); Zupp v. State, 283 N.E.2d 540 (Ind.1972).

Although these opinions are entitled to great weight in considering the matter at this time, they are not persuasive insofar as they are predicated on the unreliability of the polygraph. This is a question to be determined in each case, United States v. Wainwright, 413 F.2d 796 (10th Cir. 1969). Techniques improve. The evidence in this case indicates that the techniques of the examination and the machines used are constantly improving and have improved markedly in the past ten years.

The historical process of developing the admissibility of opinions interpreting scientific evidence is a simple one.

Someone has an idea and a theory, e. g. that no two fingerprints are the same and that fingerprints can be analyzed, measured and catalogued; that alcohol in blood can be used to determine intoxication; that voices can be recorded, charted and analyzed to provide a means of comparison for the purpose of identification; that the principles of radar can be used to measure speed of vehicles. This and other persons develop the idea and theory until it has some acceptance.

When opinions interpreting the results are first offered in Court, the underlying premises require a great deal of proof, as well as does the proper use of these premises, the necessary controls used in the specific cases and the appropriate qualifications of the expert. On proper proof, the evidence becomes admissible. The attention of the Courts at this point seems to be directed at the proper qualification of an expert witness, including testimony, establishing the underlying theory.²

Finally, the underlying principles and...