State v. Hill

317 N.E.2d 233, 40 Ohio App. 2d 16, 69 Ohio Op. 2d 9, 1963 Ohio App. LEXIS 1252

• Court: Ohio Court of Appeals
• Decided: April 3, 1963
• Docket: 2721
• Status: Published

Opinions

Sherer, J.

The defendant was tried on three counts of forgery by the Common Pleas Court of Montgomery County without a jury and found guilty by the court on two counts.

The only error assigned and argued in this court is that the court erred to the prejudice of the defendant (1) in admitting, over defendant’s objection, a written stipulation signed by the prosecution and the defendant, wherein it was agreed that defendant was to submit to a “lie detector test” and that the result was to be admitted in evidence, and (2) in permitting the operator of the machine to state his opinions as to the truthfulness of defendant’s answers to questions asked during the test.

It is agreed that the parties entered into such stipulation before the trial and that the parties herein agreed that the examiner was qualified for the purpose of determining whether or not the defendant committed the offenses charged.

The record discloses that counsel for defendant, in his opening statements to the court, evinced an intention to repudiate his agreement and to object to the admissibility of the stipulation and the opinions of the examiner, if offered in evidence. This was understood by the trial court. The record shows that the stipulation was admitted as evidence over the objection of counsel for defendant, and the ■examiner was permitted, over the objection of counsel for defendant, to state his opinion as to the truth of the matters related by defendant to the examiner concerning his involvement in the alleged offenses.

The precise question involved here has not been determined by our Supreme Court or by any Court of Appeals in this state. We have examined the cases cited by counsel and, as is to be expected in matters of this kind, find the courts divided. All begin with a consideration of the case of Frye v. United States (D. C. Cir.), 293 F. 1013. In that case, the syllabus states:

“The systolic blood pressure deception test, based on the theory that truth is spontaneous and comes without' conscious effort, which is reflected in the blood pressure, held not to have such a scientific recognition among psychological and physiological authorities as would justify the courts in admitting expert testimony on defendant’s behalf, deduced from experiments thus far made.”

“While the 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. ’ ’

No appellate court in this country has admitted the results of a polygraph test in evidence in the absence of a stipulation. Many, if not all, of the reported cases bearing upon the question here involved have been expertly summed up by the Supreme Court of Arizona, May 23, 1962, in the case of Arizona v. Valdez, 91 Ariz. 274, 371 P. 2d 894. The headnotes in 371 P. 2d 894 state:

“Although absolute infallibility is not the standard for admissibility of scientific evidence, greater standardization of the instrument, technique and examiner. qualifica tions and endorsement by larger segment of the psychology and physiology branches of science must be obtained before permitting general nse of lie-detector evidence in court, and hence in absence of a stipulation lie-detector evidence should not be received.”

“Although much remains to be done to perfect lie detector as a means of determining credibility, it has developed to a state in which its results are probative enough to warrant admissibility upon stipulation and hence, subject to certain qualifications, polygraphs and expert testimony relating thereto are admissible upon stipulation in criminal cases, and to corroborate other evidence of defendant’s participation in crime charged, and if defendant testifies, such evidence is admissible to corroborate or impeach his own testimony.”

“To render polygraphs and expert testimony relating thereto admissible upon stipulation, county attorney, defendant and his counsel must all sign the written stipulation providing for defendant’s submission to the test and for subsequent admission at trial of graphs and examiner’s opinion thereon on behalf of either defendant or the state.”

“Notwithstanding stipulation, admissibility of lie-detector test results is subject to discretion of trial judge, that is, if trial judge is not convinced that examiner is qualified or that test was conducted under proper conditions he may refuse to accept such evidence.”

“If lie-detector testimony is offered in evidence pursuant to stipulation, opposing party must have right to cross-examine the examiner regarding (a) examiner’s qualifications and training, (b) conditions under which test was administered, (c) limitations of and possibilities for error in technique of polygraphic interrogation, and (d) at discretion of trial judge, any other matter deemed pertinent to the inquiry.”

“If lie-detector evidence is admitted pursuant to stipulation, trial judge should instruct jury that examiner’s testimony does not tend to prove or disprove any element of crime with which a defendant is charged but at most tends only to indicate that at time of examination .defend ant was not telling the truth, and court should also instruct that it is for jury to determine what corroborative weight and effect such testimony should be given.”

The Supreme Court of Michigan, in Stone v. Earp, 331 Mich. 606, 50 N. W. 2d 172, held to the contrary, saying at 611, 50 N. W. 2d at 174:

“We are not unmindful of the fact that at the direction of the trial court, the parties agreed to submit to the tests, but whether by voluntary agreement, court direction, or coercion, the results of such tests do not attain the stature of competent evidence.”

In State v. Bohner, 210 Wis. 651, 246 N. W. 314, and in LeFevre v. State, 8 N. W. 2d 288, the Supreme Court of Wisconsin came to the same conclusion. In State v. Trimble, 68 N. M. 406, 362 P. 2d 783, the Supreme Court of New Mexico held likewise. In the Bohner case, the court said at 658, 246 N. W. at 317:

“The present necessity for elaborate exposition of its theory and demonstration of its practical working in order to convince the jury of its probative tendencies, together with the possibility of attacks upon the soundness of its underlying theory and its practical usefulness, may easily result in a trial of the lie detector rather than the issues in the cause.”

In Commonwealth v. McKinley, 118 Pa. Super. 610, 123 A. 2d 735, it is said that the reason most commonly assigned for the exclusion of such evidence is the contention that the lie detector has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. Headnote 13 of 123 A. 2d 735 states:

“In view of fact that results of lie detector tests are inadmissible and precluded from consideration by jury because unwarranted inferences are likely to be drawn as to guilt or innocence of one accused of crime, mere offer or refusal to undergo such test is also properly excluded from jury’s consideration for the same reason.”

In 24 Fed. Probation 36, Richard O. Arthur, Director of Scientific Lie Detector Inc., N. Y. City, in 1960, said:

“It is only as reliable and valuable as the examiner. It must be remembered that there are few truly competent examiners — the results can be interpreted only by an expert.”

The court in State of Arizona v. Valdez, supra, at 283, 371 P. 2d at 900, said:

“Although much remains to be done to perfect the lie-detector as a means of determining credibility we think it has been developed to a state in which its results are probative enough to warrant admissibility upon stipulation.”

This case also points out, at pages 897 and 898, the scientific objections to the acceptance of the use of this technique in the diagnosis of deception.

In Henderson v. State, 94 Okla. Crim. 45, 230 P. 2d 495, the Criminal Court of Appeals of Oklahoma discussed lie detector tests and some of the cases in other courts which dealt with the subject, including State v. Lowry, 163 Kan. 622, 185 P. 2d 147, 150.

Quoting from the Lowry case, the court stated the following, at 53, 230 P. 2d at 504:

“The practical effect of the admission of this testimony was to constitute a mechanical device — as reported by the operator — a sort of witness in absentia on the question of the defendant’s guilt or innocence.

“In no case cited by appellee or found in our own research has a court of last resort sanctioned the admission of such testimony. Nor has any trial court, as far as we are aware, admitted testimony, over objection, as to the result of such tests upon a complaining witness. The ultimate, logical result of doing so would be to have such tests made upon all witnesses for the purpose of helping the jury determine their credibility.

• “Cogent reasons in support of this attitude of the courts readily suggest themselves. In the first place, the vital function of cross-examination would be impaired. The operator, appearing as a witness to report and interpret the results of the test, might be questioned as to his qualifications, experiénce, Ms methods,’ and on similar matters, and that is about all. But the machine itself — conceding the comparatively high percentage record as to accuracy and reliability claimed for it — escapes all cross-examination. There is no persuasive analogy here with such tests as fingerprinting which have a strictly physical basis, clearly demonstrable. It is not contended that the lie detector measures or weighs the important psychological factors. Many innocent but highly sensitive persons, would undoubtedly show unfavorable physical reactions, while many guilty persons, of hardened or less sensitive spirit, would register no physical indication of falsification. This the trained operators of course understand, and proceed upon the basis of a large percentage of error. But it seems quite too subtle a task of evaluation to impose upon an untrained jury.”

“ ‘First, a party might produce only those tests which were favorable to himself, and his opponent would not be able to examine him under the lie-detector, nor to cross-examine him should he refuse to take the stand. Second, it would be difficult for the opposing counsel to expose an incompetent or dishonest expert and to cross-examine him concerning the tests, because the lie-detector is not adquatelv standardized as to instrument, manner of conducting tests, qualifications of examiners, and interpretation of the records. [29 Cornell L. Q. 535 (1944).]’ ”

The court in Henderson, at 54, 230 P. 2d at 505, quotes Fred Inbau, professor of law at Northwestern University, an associate of Dr. Keeler, who is credited with having perfected the polygraph, as admitting that the tests have “ ‘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. [Boston U. L. R. (Apr. 1946).]’ ”

In a comparatively recent work, Lie Detection and Criminal Interrogation (2 Ed. 1948), Professor Inbau states that the factors which occasion the chief difficulties in the diagnosis of deception by the lie detector technique are: (1) nervousness experienced by a subject who is innocent and telling the truth regarding the offense in question but who is nevertheless affected by fear induced by the mere fact that suspicion or accusation has been directed against him, and particularly so in instances where the subject has been extensively interrogated or perhaps physically abused by investigators prior to the time of the interview and testing by lie detector examiner; (2) physiological abnormalities such as excessively high or excessively low blood pressure, diseases of the heart and respiratory disorders; (3) mental abnormalities, such as feeble mindedness, psychoses or insanities and psyehoneuroses and psvchopathia as among so-called “peculiar” or “emotionally unstable persons,” unresponsiveness in a lying or guilty subject because of lack of fear of detection, apparent ability to consciously control responses by means of certain mental sets of attitudes, a condition of “sub shock” or adrenal exhaustion at the time of the test, rationalization of the crime in advance of the test to such an extent that lying about the offense arouses little or no emotional disturbance and unopposed muscular response which produces ambiguousness or misleading indications in the blood pressure tracing. The possibility that one who is innocent might react as one guilty because of fear is particularly persuasive with us. It is argued that the margin of error in the use of the apparatus is small. That may be true where tests were made by recognized experts but it is not safe to say that such would be the case if every police department in the country should send one or two officers to a training institute for thirty days and then proclaim them to be experts. We believe that the cause of justice is best served by proceeding with extreme caution in such a doubtful area — that it is better that a few of the guilty escape their just deserts than to put to death one who is innocent.

In Ohio, R. C. 2945.03 imposes a positive duty upon the trial court in a criminal case to control all proceedings therein and to limit the introduction of evidence and the argument of counsel to relevant and material matters with a view to expeditious and effective ascertainment of the truth regarding the matters in issue. The terms “relevant” and “material” were defined in Weinstock v. United States (D. C. Cir.), 231 F. 2d 699, 701.

Headnote 3 of that case states:

“As used in respect to evidence, ‘material’ has wholly different meaning from ‘relevant’; and ‘relevant’ means to relate to the issue, while ‘material’ means to have probative weight that is reasonably likely to influence tribunal in making determination required to be made.”

Our Supreme Court, in Barnett v. State, 104 Ohio St. 298, 306, quotes two definitions of “relevant” evidence as follows:

“Any matter of fact, the effect, tendency, or design of which, when presented to the mind, is to produce a persuasion concerning the existence of some other matter of fact — a persuasion either affirmative or dis-affirmative of its existence.”

“All the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved.”

In Whiteman v. State, 119 Ohio St. 285, the court said at 288:

“It has been said that relevancy is that which conduces to the proof of a pertinent hypothesis.. Again, it is said that the word ‘relevant,’ as applied to the admission of evidence, means that any two facts to which it is applied are so related to each other that according to the common course of events one of them, taken by itself or in connection with other facts, proves or renders probable the past, present or future existence or nonexistence of the other.”

We conclude that the results of a lie detector test do not constitute “relevant” and “material” evidence within the meaning of R. C. 2945.03. We do not consider it logical and reasonable to hold, as in the Arizona case, supra, that such evidence has probative value when offered under a stipulation that it may be received, but that it has no probative value without such stipulation.

We conclude that the action of the trial court admitting, over defendant’s objections, the results of a lie detector test was erroneous for the following reasons:

(1) The defendant withdrew his consent to the introduction of such evidence at the outset of the trial before any evidence was taken.

(2) There was no showing that the police officer who conducted the test was qualified to give the test and interpret the results.

(3) There is no showing that psychological and physiological authorities have aecorded scientific recognition to such tests as a reliable and accurate means of ascertaining truth or deception.

(4) The results of the tests and the opinion of the operator of the machine are not relevant and material to the issues in the ease and are not admissible even with a stipulation such as is claimed here.

(5) The submission of the stipulation to the court constitutes an unwarranted interference with the duty of the trial court as set forth in R. C. 2945.03.

It appears to us that the submission of the results of such a test and the opinion of the operator of the machine under a stipulation which admits the qualifications of the operator to conduct the test and interpret the results, as a sort of “short form” process, deprives the trial court and the jury, in a jury case, of any real appreciation of the probative value of the test, if any. Even though an accused and the prosecution be willing to take their chances with it and the court approves, yet the jury is apt to be misled and confused. The people of this state have rights in a criminal case that should not be bartered away via a stipulation that assigns probative value to evidence which in reality has none because the scientific experts have not yet accepted it as a reliable and accurate means of ascertaining truth or deception.

While we believe that the trial court erred as we have set forth, we do not consider the error prejudicial. We have carefully examined the record here and conclude that the other evidence establishes the guilt of the defendant beyond a reasonable doubt and to a moral certainty. The judgment of the common pleas court will, therefore, be affirmed. R. C. 2945.83, State v. Phillips, 90 Ohio App. 44.

Judgment affirmed.

Crawford, J,, concurs.