Wynn v. State, 7 Div. 946
| Decision Date | 24 August 1982 |
| Docket Number | 7 Div. 946 |
| Citation | 423 So.2d 294 |
| Parties | Henry Joe WYNN v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
Charles Centerfit Hart and Myron K. Allenstein, Gadsden, for appellant.
Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.
Henry Joe Wynn was indicted for robbery in the first degree. The jury found him guilty as charged, and the trial court set sentence at forty-five years in the penitentiary. A motion for a new trial was overruled and this appeal followed.
The appellant was positively identified by Mrs. Donna Jenkins as one of two men who entered the Quick Shop where she was employed, pulled a gun, and demanded all the money in the cash register. Although appellant denied participating in the robbery and presented several alibi witnesses to account for his presence during the time of the robbery in question, the State's evidence fully supported the verdict and there is no contention here to the contrary.
Appellant's primary argument urging reversal raises a question of first impression in Alabama: i.e., whether the results of a lie detector test taken by the accused, and not allowed in evidence, as a matter of law, are admissible upon stipulation of the parties.
Several days prior to trial, appellant, his counsel, and the assistant district attorney agreed in open court that appellant would voluntarily submit to a polygraph test, and all parties stipulated on the record that the "results", whether "favorable or unfavorable" to appellant, "would be admissible" at trial.
After Holliday testified to his background and experience in polygraphy, he gave his opinion that polygraph examinations were "approximately 95% accurate." He then described the procedure used during his examination of appellant, and stated that appellant answered "no" to all four "relevant questions" asked during the test. 1 Holliday analyzed appellant's responses to questions 1, 3, and 4 as "deception indicated." He interpreted appellant's answer to the second question to show "no deception indicated."
His pre-trial stipulation notwithstanding, appellant now maintains that the court should not have admitted any of the polygraph evidence. In the alternative, he claims that the trial judge should have disallowed the testimony of Investigator Holliday and read to the jury the following proposed "Defense Exhibit I": (Vol. 11, R. page 360).
Thus, we must determine whether stipulated polygraph evidence is admissible at all, and, if so, whether the "results" stipulated in this case included all of the evidence later introduced.
We start with the recognition that Alabama, like most other jurisdictions, 2 rejects evidence derived from lie detector tests because the polygraph examination 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.' " Ex parte Dolvin, 391 So.2d 677, 679 (Ala.1980) (quoting Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)). See also Stewart v. State, 398 So.2d 369 (Ala.Cr.App.), cert. denied, 398 So.2d 376 (Ala.1981); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632, cert. denied, 292 Ala. 720, 289 So.2d 644 (1973); Johnson v. State, 46 Ala.App. 725, 248 So.2d 763 (Cr.App.1971).
Although there have been numerous claims to the greater accuracy 3 of the polygraph since the Frye court determined in 1923 that the testing device had not achieved general scientific acceptance, the apparatus still has its critics, 4 and our Supreme Court aptly observed in 1980 that "[T]he lie detector test has not gained the required acceptance in the intervening fifty-seven years," Ex parte Dolvin, 391 So.2d at 679.
Nevertheless, among the jurisdictions which have considered the question whether to allow polygraph evidence that has been stipulated to be admissible, there is a division of authority. See generally Annot., 53 A.L.R.3d 1005 (1973); Note, Admissibility of Polygraph Data When Both Parties Have Stipulated That It Will Be Admissible, 13 Land & Water L.Rev. 613 (1978); Note, 15 Ala.L.Rev. 248 (1962). The majority of courts have allowed the evidence, either upon a theory of waiver or estoppel, 5 or upon the satisfaction of certain conditions. 6 A sizeable minority of jurisdictions, on the other hand, has determined that polygraph evidence is inadmissible at trial under any circumstances. 7
After careful consideration of the reasoning underlying both positions, it is our judgment that stipulated polygraph evidence should be admitted under certain circumstances, as we will set out herein. We acknowledge the validity of the contrary arguments, however, and we will attempt to outline them so that, in the future, parties may be able to arrive at their stipulations with some appreciation of the difficulties involved.
The courts which have rejected lie detector evidence, even when stipulated to be admissible, base their decisions on one or more of the following factors: (A) the polygraph test is based upon an untrustworthy premise; (B) the examiners have too little training, too much discretion, and wide inconsistency in the results; (C) the jury is likely to be over-awed by the examiner's opinion; and (D) although parties may stipulate to facts, they cannot, by agreement, alter the law so as to render inadmissible evidence admissible.
The lie detector is based on the theory that conscious deception produces involuntary responses in the autonomic nervous system, manifested by changes in blood pressure, pulse, respiration, and skin resistance to electric current (known as "Galvanic Skin Reflex"). See generally, J. Reid and F. Inbau, Truth and Deception--The Polygraph ("Lie-Detector") Technique (2d ed.1977). The individual response varies with the state of mind and physical condition of the person being examined, however, and certain characteristics can impair the reliability of the test.
For example, even proponents of the device acknowledge that an innocent but extremely nervous subject might register responses indicating deception. J. Reid and F. Inbau, supra at 216. Conversely, a guilty examinee might be able to "beat" the polygraph because he is unresponsive, has rationalized his offense, has had extensive prior questioning, or does not fear punishment. Id. at 224. The following additional variables can also affect the test results: fatigue; unusually high or low blood pressure; hardening of the arteries; obesity; asthma; allergies; use of drugs or alcohol; use of antiperspirant; and hiccups or coughs. See People v. Adams, 53 Cal.App.3d 109, 125 Cal.Rptr. 518 (1975); J. Reid and F. Inbau, supra at 234-35; Highleyman, The Deceptive Certainty of the "Lie Detector", 10 Hastings L.J. 47, 60 (1958). Those suffering from mental disease or retardation are also prone to register suspect responses. J. Reid and F. Inbau, supra at 247-48.
The "lie detector" cannot detect a lie; it is the examiner who must analyze the subject's responses to the "relevant questions" in comparison with the "control questions" in order to determine physiological changes indicative of lying. The validity of the test results depends to a great extent, therefore, upon the expertise of the examiner. One court has noted that the skill required is more akin to an "art" than a science, United States v. Wilson, 361 F.Supp. 510, 512 (D.Md.1973), and it has been estimated that 80% of all polygraph examiners are unqualified. See Burkey, The Case Against the Polygraph, 51 A.B.A.J. 855, 857 (1965).
The American Polygraph Association requires a college degree and the administration of at least 200 polygraph tests. Annot., 53 A.L.R.3d at 1009. Alabama requires a college degree, or, in lieu thereof, five consecutive years of active investigative experience, plus a six months' internship. Ala.Code § 34-25-21 (1975). Both insist upon graduation from an approved polygraph school.
Assuming that the examiner is qualified, he is, according to one commentator, still capable of error and may even be able to influence the outcome of the test. Skolnik, supra, note 4, at 711. The holding of the Colorado Supreme Court in People v. Anderson, Colo., 637 P.2d 354 (1981), may have been due, in part, to the inability of polygraph examiners to agree.
In Anderson, the defendant took three polygraph tests and obtained three different results. The first, given by a local law enforcement examiner, was "inconclusive." The second, administered by the defendant's own hired expert,...
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