United States v. Wilson, Crim. No. 72-0341.

Decision Date06 July 1973
Docket NumberCrim. No. 72-0341.
Citation361 F. Supp. 510
PartiesThe UNITED STATES v. Robert Michael WILSON, a/k/a Peter Wilson, et al.
CourtU.S. District Court — District of Maryland

Joseph Kiel, Baltimore, Md., for plaintiff.

Kirk Y. Griffin, Boston, Mass., Harold I. Glaser, Robert G. Carr, Frank B. Cahn, II, Baltimore, Md., for defendants.

MEMORANDUM AND ORDER

JOSEPH H. YOUNG, District Judge.

Under indictment for conspiracy to transport, sell, receive and dispose of goods in interstate commerce — 18 U.S.C. §§ 371, 2314, 2315 (1970)John Calise voluntarily submitted to a privately administered polygraph examination and moved for an order permitting the testimony of polygraph experts. The Court heard testimony on two days relating to the threshold issue of whether the state of the art is sufficiently advanced to hold such evidence admissible. Thereafter, defendant Robert M. Wilson moved orally for permission to take a polygraph examination at government expense. The matter having been held sub curia, counsel has since informed the Court of the death of defendant Calise, leaving open only the motion of defendant Wilson.

Whether the state of the art of polygraphy is sufficiently advanced translates legally to a consideration of relevance, prejudice and to a lesser degree, burden on judicial time. See Proposed Rules of Evidence of United States District and Magistrates Courts, Rule 401, 403 (1972). Otherwise stated, expert evidence which assists the trier of fact will be admitted. Ibid. Rule 702. Such evidence is not objectionable solely because it embraces an ultimate issue. Ibid. Rule 704.

Since polygraphy comprehends physiological and psychological theory, the evaluation of the state of the art must necessarily broaden to include any research on the theoretical aspects of the technique. Equally valuable is the knowledge and research of experienced practitioners in polygraphy, regardless of a lack of training in the underlying conceptual disciplines. Thus, rather than putting the issue in terms of "general acceptance within a particular field" and engaging in an academic dispute as to the particular field in which polygraphy fits, the Court chooses to assess the progress of polygraphy by drawing on contributions from those engaged both in theory and practice. See Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), Medley v. United States, 81 U.S.App.D.C. 85, 155 F.2d 857 (1946), Huntingdon v. Crowley, 64 Cal. 2d 647, 51 Cal.Rptr. 254, 414 P.2d 382 (1966), United States v. Stifel, 433 F.2d 431 (6th Cir. 1970), Coppolino v. State, 223 So.2d 68 (Fla.App.1969), United States v. Raymond, 337 F.Supp. 641 (D. D.C.1972).

It is undisputed that the technique of polygraphy has progressed dramatically since the ruling of inadmissibility in Frye, supra. The voluminous record reflects the improvements in the machines, the gains in knowledge, and the widespread use by the law enforcement and business communities. These advances have prompted qualified admissions in United States v. Ridling, 350 F.Supp. 90 (E.D.Mich.1972) and United States v. Dioguardi, 350 F.Supp. 1177 (E.D.N.Y. 1972) and unqualified admissions in People v. Cutler, No. A176,965 (Cal.Super.1972), Walther v. O'Connell, 72 Misc.2d 316, 339 N.Y.S.2d 386 (1972), and United States v. Zeiger, 350 F.Supp. 685 (D.D.C.1972), reversed per curiam under a local rule permitting interlocutory appeal, No. 72-2065 (D.C.Cir.1972). In United States v. DeBetham, 470 F.2d 1367, the Ninth Circuit affirmed per curiam, the decision of the district judge to deny admissibility based on earlier decisions in that circuit. The Court in United States v. Urquidez, 356 F.Supp. 1363 (C.D.Cal. April 13, 1973) similarly refused to depart from precedent.

This Court is not aware of any decision in the Supreme Court, the Court of Appeals for the Fourth Circuit, or the United States District Court for the District of Maryland which decides the question. Appropriately, the parties have elicited testimony and supplied transcripts of testimony of the leading experts in the world. The record includes transcripts of the trials in Dioguardi, Zeiger and DeBetham, supra, People v. Lazaros, CR-6237 (Mich.Cir. 1970), and United States v. Captain Ernest Medina (unreported court-martial Aug. 19, 1971). In addition, it contains excerpts from Reid and Inbau, Truth and Deception (1966), the amicus appellate brief of the California Association of Polygraph Examiners in DeBetham; Joseph F. Kubis, Studies in Lie Detection, Forham University, 1972; and the "Moss Committee" report, "Use of Polygraphs as `Lie Detectors' by the Federal Government," H.Rep. 198, 89th Congress, 1st Session (Tenth Report by the Committee on Gov't. Operations, March 22, 1965).

Since the material, although representing divergent points of view, is often redundant, the sensible approach is to analyze the propositions advanced in favor of and opposed to admissibility.

The reported opinions need not be burdened with another detailed description of the mechanics involved. It is sufficient to note that the polygraph in issue includes cardiosphigmographic, pneumographic and galvanic components. The theory is that conscious deception causes an acute reaction in the sympathetic nervous system, translated chemically into higher rates of pulse, blood pressure, breathing and skin resistance. The machine is designed to record simultaneously the pattern of response to relevant and irrelevant questions. In addition, the examiner includes "control" questions, to which deception is anticipated, to determine reactability. A fair statement is that while studies conducted by private and governmental organizations assess the validity and reliability of the technique at 70% to 95%, the systematic research relating to the validity of polygraphy is still in its formative period and is ongoing.

A study of the theory and process of the polygraphy examination reveals complexities not present in the fields of fingerprint, handwriting, voiceprint, ballistics and neutron activation analysis, all of which are based on the identity or behavior of physical phenomena. The experts and studies differ as to the capability of the polygraph industry to cope with these complexities, but none would dispute their existence. The distinction is that polygraphy, albeit based on a scientific theory, remains an art with unusual responsibility placed on the examiner. The acquainting of the examiner with the subject matter is often a source of improper suggestion, conscious or subconscious. The preparation of the test and discussion with the examinee of the polygraph procedure furnishes additional opportunity for improper subjective evaluation.

The experts are in accord that the examiner must carefully watch for signs of psychosis, extreme neurosis, psychopathology, drunkenness and drugs, any of which might preclude a successful examination. While the "control" question is a built-in check on the subject's reactability, speculation survives that a portion of the population, sometimes called "pathological liars," can "beat" the machine. Since reactability is a matter of degree, it would appear that the danger of prejudice from subtle, undetected psychological conditions is not imaginary.

The construction of the examination further proliferates controversy. Experts disagree on the effectiveness of an examination which lacks a galvanic component. The formulation of test questions, the pacing, the interspersing of relevant with irrelevant and "control" questions, the making of mechanical adjustments, and the number of charts taken — all add to the...

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28 cases
  • People v. Barbara
    • United States
    • Michigan Supreme Court
    • June 13, 1977
    ...Inbau & Reid, The Lie-Detector Technique: A Reliable and Valuable Investigative Aid, 50 ABA J. 470, 472 (1964). United States v. Wilson, 361 F.Supp. 510, 513-514 (D.Md.1973). Most studies have been performed by polygraphers, with few psychological or other scientific studies available on th......
  • State v. Dean
    • United States
    • Wisconsin Supreme Court
    • July 6, 1981
    ...inherently involved in such a process." United States v. Urquidez, 356 F.Supp. 1363, 1367 (C.D.Cal.1973). See also United States v. Wilson, 361 F.Supp. 510 (D.Md.1973). As we have previously said, we can see merit in the position that the burden imposed on the trial court to determine wheth......
  • Barefoot v. Estelle
    • United States
    • U.S. Supreme Court
    • July 6, 1983
    ...States v. Alexander, 526 F.2d 161, 168 (CA8 1975). See United States v. Amaral, 488 F.2d 1148, 1152 (CA9 1973); United States v. Wilson, 361 F.Supp. 510, 513 (Md.1973); People v. King, 266 Cal.App.2d 437, 461, 72 Cal.Rptr. 478, 493 9. Other purportedly scientific proof has met a similar fat......
  • Reed v. State
    • United States
    • Maryland Court of Appeals
    • September 6, 1978
    ...from polygraph evidence since they 'are much more susceptible to controlled experimental verification.' United States v. Wilson, (361 F.Supp. 510, 513 (D.Md.1973)). Some have concluded that testimony bearing on the identification of individuals or their psychiatric condition should be admit......
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