Grace v. State ( 1972 )

CATES, Judge

(concurring).

I consider that investigator Riddle’s discussion with Grace regarding the infallibility of the polygraph (lie detector) test was-an improper inducement to Grace’s inculpatory admission.

The mere voluntary taking of such a test standing alone should not taint the confession. Duncan v. State, 278 Ala. 145, at 171, 176 So.2d 840. However, the result of a test is not admissible against objection. Kaminski v. State, Fla., 63 So.2d 339; Wilcutt v. State, 41 Ala.App. 25, 123 So.2d 193.

But the agreement to submit thereto should not be motivated in any degree by a “statement” that a so-called exonerative outcome would dismiss the prosecution. See Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948.

I think the following quotation from Commonwealth v. Fatalo, 346 Mass. 266, 191 N.E.2d 479, is reflective of the reluctance of appellate courts to approve the admissibility of the results of polygraph testing:

“There is hardly a device which has caused greater controversy among ‘experts,’ lawyers, physicians, psychologists, government officials, and the public in general than the polygraph or ‘lie-detector’ as it is colloquially characterized. The question of the admissibility of the results of a ‘lie-detector’ test is one of first impression for this court. Such tests have been described and their judicial history chronicled by the cottrts of many other States. An excellent opinion for such purposes is State v. Valdez, 91 Ariz. 274, 371 P.2d 894. See 23 A.L.R.2d 1308; A.L.R.2d, Supp.Serv. (1960), 1998-1999, and subsequent Supplements. It was stated, with accuracy, in State v. Arnwine, 67 N.J.Super. 483, 495, 171 A.2d 124, 131, that ‘there is not a single reported decision where an appellate court has permitted the introduction of the results of a polygraph or lie-detector test as evidence in the absence of a sanctioning agreement or stipulation between the parties.’ Over the years, appellate courts have repeated the reason given in the 1923 landmark case of Frye v. United States, 54 App.D.C. 46, 293 F. 1013. In rejecting a predecessor of the ‘lie-detector’ for evidentiary purposes that court said: ‘We think the systolic blood pressure deception test 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.’ Ibid. 293 F. 1014. The controversy in scientific and legal circles swirling around the polygraph test continues without abatement. In addition to the existing plethora of writings on the subject, well documented articles continue to appear which raise grave doubts as to the scientific reliability of the polygraph tests. See Highleyman, The Deceptive Certainty of the ‘Lie Detector,’ 10 Hastings L.J. 47 (1958) ; Slcolnick, Scientific Theory and Scientific Evidence: An Analysis of • Lie-Detection, 70 Yale L.J. 694 (1961). A recent and particularly devastating article on the untrustworthiness of the test is titled ‘Don’t Trust the Lie Detector,’ Harv.Bus.Rev. (1962), 127, by Sternbach, Gustafson and Colier, two of whom are scientists. Numerous other authorities taking an unfavorable view of the ‘lie-detector’ are referred to in the cases cited above. The questions and doubts raised by these sources go, not only to the techniques employed in the administration of the tests, but to the very premises and assumptions upon which they rest. ‘Emotional unresponsiveness,’ ‘[ajbility to “beat” the machine,’ ‘[pjhysiological abnormalities,’ ‘[mjental abnormalities,’ ‘[njervousness or extreme emotional tension,’ ‘[t]he misleading nature of available statistics,’ and the 'conflict and disagreement among the examiners and authorities’ are some of the variables which vitiate the alleged effectiveness of the tests and thus militate against their admissibility in evidence.” (footnotes omitted).

In the instant case the State was not bound by any statement of the investigator. A grand jury could have indicted Grace without regards to the opinion of the polygraph operator that he was innocent. Grace could not have put that opinion before the trial jury over objection.

Under Butler v. State, Fla.App., 228 So. 2d 421, 36 A.L.R.3d 1274, an agreement by both parties approved by the trial judge was enforceable. Conversely without such solemnities the general rule of inadmissibility prevails.

The editor of the Anno. 41 A.L.R.3d 1369 says at 1373:

“No completely reliable physiological or psychological truth and deception test presently exists. The lie detector, for instance, is a scientific instrument which records certain physiological phenomena, such as changes in the pulse rate and blood pressure, on the theory that if a person answering questions is telling a lie, he will undergo ascertainable physiological changes not detectable if he is telling the truth; but on occasion, as is well known, it would appear that excitable individuals being subjected to a lie detector test undergo similar physiological changes, even when they are telling the truth. Similarly, the injection of a ‘truth serum’ and the use of hypnosis tend to deprive a subject of his self-control and willpower and inhibit his ability to construct barriers to telling the truth; but it is also known that they sometimes induce subjects to engage in fanciful or exaggerated versions of what the subject may incorrectly feel to be the truth. Therefore, it cannot be said that any of these tests unerringly and automatically require a subject to state only the exact truth.” (footnotes omitted).

Considering the fallibility factor in polygraph examination and the failure to obtain a binding agreement approved by the trial judge, I think Grace was improperly induced into self-incrimination.

Under this view I would not reach the question of malice vel non.

For the above reason I vote to reverse the conviction.