People v. Weinstein

156 Misc. 2d 34, 591 N.Y.S.2d 715, 1992 N.Y. Misc. LEXIS 537
CourtNew York Supreme Court
DecidedOctober 8, 1992
StatusPublished
Cited by7 cases

This text of 156 Misc. 2d 34 (People v. Weinstein) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Weinstein, 156 Misc. 2d 34, 591 N.Y.S.2d 715, 1992 N.Y. Misc. LEXIS 537 (N.Y. Super. Ct. 1992).

Opinion

OPINION OF THE COURT

Richard D. Carruthers, J.

Herbert Weinstein stands indicted for the crime of murder in the second degree. The indictment alleges that Weinstein murdered his wife, Barbara, on January 7, 1991. Weinstein allegedly strangled his wife in their 12th floor apartment in Manhattan, and then threw her body from a window to make her death appear to be a suicide.

Weinstein’s attorney has filed notice that the defense at trial will be that Weinstein lacked criminal responsibility for killing his wife due to mental disease or defect. (See, CPL 250.10; Penal Law § 40.15.) Evidence to support this defense includes scans of Weinstein’s brain obtained through positron emission tomography (PET) and the results of skin conductance response (SCR) tests of his autonomic nervous system. The PET scans were obtained after Weinstein’s indictment. The purpose of the scans was to enable neurologists and psychiatrists to study images that depict how Weinstein’s brain functions metabolically in its various regions. In accordance with the applicable protocol, a radioactive substance called flourine-18 deoxyglucose was injected into Weinstein’s body several minutes before each scan was made. In each instance, when this substance reached Weinstein’s brain, it was metabolized, to a point, in the same way that glucose is metabolized. The human brain uses glucose as its energy source. The radioactivity that then was emitted from Weinstein’s brain during the metabolic process was captured by a highly sophisticated monitoring device. The device, in each scan, converted this radioactivity into images that showed how well or ill each region of Weinstein’s brain was performing metabolically. Weinstein’s PET scans confirmed that a cyst exists within the arachnoid membrane, one of the brain’s protective coverings. This arachnoid cyst is an abnormality that was first detected by images of brain structure obtained by an MRI machine. The PET scans also showed metabolic imbalances exist in areas of the brain near the cyst and opposite it.

The SCR test of Weinstein’s autonomic system were per[36]*36formed, also after indictment, at the neurological laboratory of the University of Iowa. The physicians at this laboratory are the first to use SCR tests of the autonomic nervous system as a means of indicating the existence of lesions in the frontal lobes of the brain. During the tests, a machine similar to a polygraph is used to measure a person’s galvanic skin responses while that person is shown a series of photographs depicting scenes ranging in emotional content from the serene to the shocking. Unlike more familiar polygraph tests, SCR tests are not used as a purported means of determining whether a person is telling the truth. Weinstein’s SCR results were consistent with those of tested individuals who were confirmed as having lesions in the frontal lobes of their brains.

PET scans and SCR test results, according to Weinstein’s attorney, are factors that a psychiatrist will rely upon at trial to explain his diagnosis that, due to mental disease or defect, Weinstein was not criminally responsible for the death of his wife. The psychiatrist will explain that his diagnosis is also based upon physical and neuropsychological tests, his interviews of Weinstein, as well as other information available to him. The District Attorney has moved for an order precluding Weinstein’s attorney from offering at trial any testimony or other evidence concerning the PET scans and SCR test results, arguing that PET and SCR technology have not been shown to be sufficiently reliable as diagnostic devices for brain abnormalities so as to warrant the admission of such evidence at the trial of a criminal case. Pursuant to this court’s order, a pretrial hearing was held upon this motion. Many physicians, including neurologists, psychiatrists, and experts in nuclear medicine, testified at this hearing. The court resolves below the issues raised by the District Attorney’s motion.

I.

Almost 70 years ago James Alphonso Frye was tried for murder in Washington, D.C. During the trial his attorney offered as corroboration for Frye’s exculpatory statements the results of a "systolic blood pressure deception test” performed on Frye prior to trial. The trial court refused to admit the test results. Frye was convicted. On appeal, Frye’s principal argument was that the trial court erroneously excluded relevant evidence of a scientific nature. The Circuit Court of Appeals affirmed Frye’s conviction. It held that the trial court’s exclusion of the test results was correct, finding that the systolic [37]*37blood pressure deception test had not gained "general acceptance” among authorities in the fields of physiology and psychology. (Frye v United States, 293 F 1013, 1014 [DC Cir 1923].) The court stated its full holding as follows: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Supra, at 1014.)

The "general acceptance” test of Frye (supra) for the admission of scientific evidence at trial is the standard most often used by courts throughout the United States. (Gianelli, The Admissibility of Novel Scientific Evidence: Frye v United States, a Half-Century Later, 80 Colum L Rev 1197, 1200 [1980].) Those who support continued reliance upon the Frye test argue: it guarantees that in any particular case independent experts will exist who can be called upon to carefully examine a scientific opinion; that it promotes uniformity of judicial decisions with respect to the admission of scientific evidence; and that it protects juries from being misled by expert opinions that may be couched in formidable scientific terminology but that are based on fanciful theories. (See, Note, The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant, 42 Stan L Rev 465, 497 [1990].)

The Frye test is not without detractors. (See, e.g., People v Mooney, 76 NY2d 827, 828 [1990] [Kaye, J., dissenting].) Its critics most frequently argue: that the identification of the appropriate discipline or professional field can be problematical, because many scientific techniques cut across several disciplines; that the percentage of experts in a field who must accept the technique before it can be accorded the status of "general acceptance” is unclear; and that the delay between the introduction of a scientific technique and its recognition as generally accepted prevents reliable evidence from being heard in court. (Giannelli, op. cit., at 1208-1211, 1223-1224.) Perhaps the potential for undue restrictiveness under the Frye test occasions the sharpest criticism. As one court recently noted: "[T]he [Frye rule] has not escaped significant criticism or downright rejection. It has been attacked for its overly [38]*38conservative approach to admissibility and its susceptibility to manipulation in order to exclude novel scientific evidence.” (United States v Jakobetz, 955 F2d 786, 794 [2d Cir 1992].)

The courts of New York, including the Court of Appeals, regularly apply the Frye test in cases involving novel scientific evidence.

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156 Misc. 2d 34, 591 N.Y.S.2d 715, 1992 N.Y. Misc. LEXIS 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-weinstein-nysupct-1992.