United States v. Urquidez, Crim. No. 11314 (WPG).

• Decision Date: 13 April 1973
• Docket Number: Crim. No. 11314 (WPG).
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Lydia Frances URQUIDEZ, Defendant.

356 F. Supp. 1363

UNITED STATES of America, Plaintiff, v. Lydia Frances URQUIDEZ, Defendant.

Crim. No. 11314 (WPG).

United States District Court, C. D. California.

April 13, 1973.

William D. Keller, U. S. Atty., Eric A. Nobles, Chief Crim. Div. by Jan L. Handzlik and Richard Kirschner, Assistant U. S. Attys., Los Angeles, Cal., for plaintiff.

John K. Van de Kamp, Federal Public Defender by Alan L. Isaacman, Deputy Federal Public Defender, Los Angeles, Cal., for defendant.

MEMORANDUM AND ORDER GRANTING MOTION TO STRIKE EVIDENCE

WILLIAM P. GRAY, District Judge.

This case is a criminal prosecution for two sales of heroin to an agent of the United States Bureau of Narcotics and Dangerous Drugs, acting in an undercover capacity. The defendant, a young woman, has admitted the sales but raises the defense of entrapment. She contends and has testified that, before the agent made his first request that she obtain heroin for him, he had sexual intercourse with her in order to increase his attraction to her and thus make her more likely to accede to his request. The agent has denied any such conduct.

Defense counsel advised the court that the defendant had taken a polygraph (lie detector) test and that the results confirmed the truth of her testimony. Defense counsel thereupon requested that the court receive evidence concerning such test and its results. The Government opposed the motion, and added that it could present a polygrapher who would testify that the subject test did not support the defendant's truthfulness.

In view of the nature of this rather novel and significant entrapment issue, the complete lack of evidence thereon, other than the contradictory testimony of the two individuals, and the fact that a jury had been waived, this court concluded that a favorable opportunity was presented to consider whether polygraphic evidence should properly be received in furtherance of resolving this evidentiary conflict. The court's willingness to consider such matters was enhanced by its awareness of the recent decision of the Court of Appeals in United States v. De Betham, 470 F.2d 1367 (9th Cir. 1972). In that case, the refusal of the trial judge to receive evidence concerning a polygraphic test was affirmed as not being an abuse of discretion, and also because it appeared that the trial judge would not have believed the defendant irrespective of the polygraph test. However, the court expressly declined to hold that polygraphic evidence is "never admissible."

Accordingly, with the full cooperation of counsel, this court spent three full days hearing testimony by qualified experts concerning the nature and functioning of the polygraph instrument, the technique of administering a lie detector test, the validity of the test administered to this defendant, and the meaning of the results derived therefrom. In addition, the court has read and considered (pursuant to stipulation) proffered exhibits in the form of published articles on various aspects of polygraphy, as well as transcripts of the testimony of certain experts at the trial in the above-mentioned De Betham case.

All of the polygraphic evidence was received by this court subject to a later ruling upon the Government's motion to strike. For reasons hereinafter set forth, the motion to strike is now granted.

In Commonwealth v. Fatalo, 346 Mass. 266, 191 N.E.2d 479 (Mass.1963), the Supreme Court of Massachusetts upheld the trial court in having rejected all evidence concerning a lie detector test. In referring to an offer of proof by the defendant, which the prosecution opposed, the opinion stated:

"It is precisely this sort of controversy which creates the danger that on the introduction of such evidence a trial could descend into a battle of experts on the probative value of the polygraph test rather than a determination of the guilt or innocence of a defendant. The end result, in all likelihood, would be confusion instead of enlightenment." (Pp. 480-481).

This is precisely what occurred here. The most obvious conclusion that resulted from the three days of testimony is that there are many variables, other than the ultimate question of truth or falsity, that can influence the results of a polygraph test. There are also many areas in which "experts" can disagree as to the appropriateness of the way in which the test is given and as to how the results should be interpreted. Some of the controverted issues in these proceedings will be listed and summarized below, for illustrative purposes. First, however, a few introductory comments are indicated concerning the nature of the polygraph instrument and the procedure for its use in testing.

The word, "polygraph," means multiple charts or graphs. The function of the polygraph device is to measure and record certain involuntary physiological responses of an individual that result from his mental reactions as he answers carefully prepared series of questions. The most commonly used polygraph machines note in graphic form the changes in blood pressure, respiration, and the amount of perspiration emitted by the palms of the hands (galvanic skin response).

Polygraphic testing is conducted upon the impressively supported and presumably valid assumptions, among others, that (a) the extent of a person's polygraphically recorded arousal is affected by the extent to which he believes the question to be of significant relevance and importance to him; (b) in answering a particular question, a lie causes a greater arousal than does the telling of the truth; (c) the detection of a lie occurs when a person gives disparate physiological responses to questions that would be expected to elicit equivalent responses from an innocent person.

The procedure for carrying out the polygraphic examination begins with a pre-test interview between the examiner and the subject. The purposes of such interview include enabling the examiner to gain the confidence of the subject, to cause the latter to believe that the test will reveal a lie, and to motivate him to participate seriously and wholeheartedly in the testing process.

In order to enhance such belief and...