Walther v. O'Connell
| Decision Date | 12 December 1972 |
| Citation | 339 N.Y.S.2d 386,72 Misc.2d 316 |
| Parties | Jacob WALTHER, Plaintiff, v. Helen O'CONNELL, and Alfred O'Connell, Defendant. |
| Court | New York City Court |
Michael Goldenthal, Long Island City, for plaintiff.
John A. Dwyer, Ridgewood, for defendant.
The facts in this case are clear and uncontroverted. Plaintiff alleges that between June, 1969 and May, 1970 he loaned the defendant $1,010. He claims that only $100 of this loan has been repaid and brings this action to recover the remaining $910. Plaintiff offered proof to show where he obtained the money he alleges to have loaned to the defendant. The defendant denies ever having received this money and claims that she never asked the defendant to loan her any money. The alleged loan was oral, and no witnesses were present.
The Court is faced with the problem of determining which party is telling the truth and which party is committing perjury. Perjury consists of willfully, knowingly, absolutely, and falsely swearing, in a matter material to the issue or point in question, in a judicial proceeding, by a person to whom a lawful oath or affirmation is administered by the Court.
Even the wisdom of a King Solomon would be tried in deciding a case such as this. However, this Court has the benefit of the aid of polygraph tests given by a noted expert. This case presents an ideal situation for the use of such tests. The testimony before the court is diametrically opposed. There is no doubt in the Court's mind that one of the parties is lying.
In view of this, the Court ordered both parties to submit to a lie detector test. The parties, through their attorneys, then consented to taking the test.
The plaintiff and defendant were examined separately at the Lie Detection Laboratories, Inc. by Dr. Thomas J. McShane, who found that plaintiff had given the sum of money in question to the defendant. He further found that the defendant Helen O'Connell was purposely uncooperative and her behavior was that ordinarily associated with persons anxious about guilt or involvement being revealed.
This Court has carefully reviewed the report of the polygraph tests and has decided to admit in evidence the results of these tests as the testimony of an expert witness. The opinion testimony of any expert witness may be rejected if, after careful consideration of all the evidence in the case, expert and other, the Court disagrees with the opinion. In other words, the Court is not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony. Such an opinion is subject to the same rules concerning reliability as the testimony of any other witness. It is given to assist the Court in reaching a proper conclusion and is entitled to such weight as the Court finds the expert's qualifications in his field warrant and must be considered by the Court, but is not controlling upon it.
The admissibility of polygraph tests was discussed and rejected by the Court of Appeals in People v. Leone, 25 N.Y.2d 511, 307 N.Y.S.2d 430, 255 N.E.2d 696, 1969. However, this case is distinguishable from the case at bar. In the Leone case the Court held inadmissible the results of a polygraph test and cited the inexperience of the operator of the machine as a major reason for its decision. The Court stated at page 516, 307 N.Y.S.2d at page 433, 255 N.E.2d at page 699:
'Moreover, opponents of the machine...
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...11, 475 F.2d 1280 (1972); Commonwealth v. A Juvenile, 313 N.E.2d 120 (Mass.1974); State v. Dorsey, supra; Walther v. O'Connell, 72 Misc.2d 316, 339 N.Y.S.2d 386 (1972) (civil case). See also United States v. DeBetham, 348 F.Supp. 1377 (S.D.Cal.1972), aff'd, 470 F.2d 1367 (9 Cir. 1972), cert......
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