State v. Sharpe ( 2019 )

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THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court Nos. S-16191/16193/
Petitioner and Cross-Respondent, ) 16214/16449 (Consolidated)
)
v. ) Court of Appeals No. A-12452
) Superior Court No. 3PA-14-00877 CR
JYZYK J. SHARPE, )
) OPINION
Respondent and Cross-Petitioner. )
) No. 7326 – January 4, 2019
)
STATE OF ALASKA, )
) Court of Appeals Nos. A-11423/11433
Petitioner and Cross-Respondent, ) Superior Court No. 3AN-09-11088 CR
)
v. )
)
THOMAS HENRY ALEXANDER, )
)
Respondent and Cross-Petitioner. )
)
)
JEFFERY K. HOLT, )
) Court of Appeals No. A-12219
Appellant, ) Superior Court No. 3HO-11-00515 CR
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
Petition for Hearing in File Nos. S-16191/16214 from the
Court of Appeals of the State of Alaska, on appeal from the
Superior Court of the State of Alaska, Third Judicial District,
Palmer, Eric Smith, Judge.
Petition for Hearing in File Nos. S-16193/16214 from the
Court of Appeals of the State of Alaska, on appeal from the
Superior Court of the State of Alaska, Third Judicial District,
Anchorage, Gregory Miller, Judge.
Certified Question in File No. S-16449 from the Court of
Appeals of the State of Alaska, on appeal from the Superior
Court of the State of Alaska, Third Judicial District, Homer,
Charles T. Huguelet, Judge.
Appearances: Diane L. Wendtland, Assistant Attorney
General, Office of Criminal Appeals, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Petitioner and
Cross-Respondent and Appellee State of Alaska. Sharon
Barr, Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Respondents and Cross-Petitioners
Sharpe and Alexander. Brooke Berens, Assistant Public
Advocate, and Richard Allen, Public Advocate, Anchorage,
for Appellant Holt. Gordon L. Vaughan, Vaughan &
DeMuro, Colorado Springs, Colorado, and Gavin Kentch,
Law Office of Gavin Kentch, LLC, Anchorage, for Amicus
Curiae American Polygraph Association.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
STOWERS, Chief Justice.
I. INTRODUCTION
In each of the three underlying criminal cases in this consolidated appeal,
the defendant sought to introduce expert testimony by a polygraph examiner that the
defendant was truthful when he made exculpatory statements relating to the charges
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against him during a polygraph examination conducted using the “comparison question
technique” (CQT). In two of the cases, the superior courts found that testimony based
on a CQT polygraph examination satisfied the requirements for scientific evidence under
Daubert v. Merrell Dow Pharmaceuticals, Inc.1 and State v. Coon.2 In the third case, the
superior court reached the opposite conclusion and found the evidence inadmissible. We
are now asked to revisit the appellate standard of review for rulings on the admissibility
of scientific evidence and to determine the admissibility of CQT polygraph evidence.
We conclude that appellate review of Daubert/Coon determinations should
be conducted under a hybrid standard: the superior court’s preliminary factual
determinations are reviewed for clear error; based on those findings and the evidence
available, whether a particular scientific theory or technique has been shown to be
“scientifically valid” under Daubert and Coon is a question of law to which we apply our
independent judgment; and where proposed scientific evidence passes muster under that
standard, the superior court’s case-specific determinations and further evidentiary rulings
are reviewed for abuse of discretion. Applying this standard here, we conclude that CQT
polygraph evidence has not been shown to be sufficiently reliable to satisfy the
Daubert/Coon standard.
II. BACKGROUND
A. State v. Alexander
Thomas Alexander was charged with multiple counts of sexual abuse of a
minor. Before trial, Alexander hired David Raskin, Ph.D., a polygraph examiner, to
administer a CQT polygraph examination. Based on the polygraph results, Dr. Raskin
concluded that Alexander answered truthfully when he denied committing the acts with
1
509 U.S. 579 (1993).
2
974 P.2d 386 (Alaska 1999).
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which he was charged. At Alexander’s request, Superior Court Judge Gregory Miller
held an evidentiary hearing to address the admissibility of the polygraph results. For the
purpose of that hearing, Alexander’s case was consolidated with an unrelated criminal
case pending before Superior Court Judge pro tem Daniel Schally because the two cases
involved similar polygraph testimony by the same polygraph examiner, Dr. Raskin.3 The
two judges held a joint evidentiary hearing over the course of two days, spanning more
than ten hours of testimony. Dr. Raskin testified for the defense in support of admitting
testimony about the polygraph results, while William Iacono, Ph.D., a research
psychologist at the University of Minnesota, testified for the State in opposition. Both
sides also submitted copious evidence in the form of declarations by the two experts,
scientific studies, treatises, etc.
The judges issued a joint order for both cases concluding that CQT
polygraph testing satisfies the Daubert/Coon requirements for scientific validity. The
judges also concluded that the proposed testimony was not otherwise excluded by the
Alaska Rules of Evidence relating to relevance, unfair prejudice, credibility bolstering,
expert testimony, or hearsay. Their order held that the polygraph evidence would be
admissible, but on the condition that the defendants first testified at their respective trials
and subjected themselves to cross-examination. Their ruling was also premised on each
defendant agreeing to sit for a second polygraph test administered by the State, which
the judges reasoned would mitigate concerns relating to possible bias by a “friendly”
3
The other defendant later pleaded guilty to the charged offense and is not
a party on appeal.
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examiner4 and add additional “guarantees of trustworthiness.”5
B. State v. Sharpe
In a case unrelated to Alexander’s, Jyzyk Sharpe was charged with murder
and manslaughter in connection with the death of his girlfriend’s two-year-old son.
Sharpe also hired Dr. Raskin to administer a polygraph examination, after which
Dr. Raskin concluded that Sharpe answered truthfully when he denied the charges
against him.
Before trial, the State moved to preclude Sharpe’s polygraph evidence and
Dr. Raskin’s testimony. As in Alexander’s case, the State argued that polygraph
examinations are not supported by valid science and that additional accuracy problems
are presented in the case of a “friendly” polygraph examiner. For those reasons, the State
argued that the polygraph testimony should be excluded under Alaska Evidence Rule
403 because its probative value would be outweighed by risks of unfair prejudice,
confusion, delay, and wasted time. The State also argued that the proposed testimony
included inadmissible hearsay, that the testimony was inadmissible as expert testimony
under Daubert/Coon and under the Alaska Rules of Evidence, and that the testimony was
4
The “friendly examiner” bias hypothesis was explored at the evidentiary
hearing. The hypothesis posits that when a polygraph examiner is hired by the defense
and the test is administered to the defendant without giving the prosecution notice or an
opportunity to observe, various factors might work together to bias the examination in
ways favorable to the defendant “passing” the test. The validity of this hypothesis and
the extent to which a “friendly” examiner might affect the results of a polygraph
examination are disputed. See PAUL C. GIANNELLI ET AL., 1 SCIENTIFIC EVIDENCE
§ 8.03[f], at 460 (5th ed. 2012).
5
It appears the superior court was under the belief that Alexander had
already been subjected to a polygraph examination administered by the Department of
Corrections. It was later clarified that no such test had taken place, but Alexander did
agree to sit for a State-administered exam. The parties appear to have proceeded with
the understanding that doing so was a prerequisite for admitting the polygraph evidence.
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inadmissible character evidence under Evidence Rule 608.
No new Daubert/Coon hearing was held; instead, Superior Court Judge
Eric Smith relied on the record and evidence presented in Alexander’s Daubert/Coon
evidentiary hearing. The superior court held that the testimony would be admissible
pursuant to the same reasoning as in that case. However, the court added the additional
limiting instruction that the polygraph examiners — Dr. Raskin and the State’s examiner
— could testify only to whether Sharpe “believed what he was saying” and not to
whether he was “telling the truth”; the court reasoned that the latter would impermissibly
imply that a polygraph test can reveal whether a statement is objectively accurate.
During a second polygraph test, administered for the State by former FBI
agent Kendall Shull, Sharpe prematurely terminated the examination when Shull asked
Sharpe if he was using countermeasures6 against the polygraph test. The State asked the
court to reconsider the admissibility of Dr. Raskin’s testimony based on Sharpe’s lack
of cooperation with the second examination. The court ultimately reaffirmed its original
decision, ruling that Dr. Raskin’s testimony was admissible but that the State could
present evidence of Sharpe’s lack of cooperation in rebuttal.
C. State v. Holt
Jeffery Holt was charged with five counts of first-degree sexual assault.
Before trial, Holt hired Dr. Raskin to administer a polygraph examination, after which
6
The term “countermeasures” refers to conscious efforts by an examinee to
manipulate the results of a polygraph examination by altering the physiological
indicators measured by the polygraph. Classes of countermeasures include using drugs
or alcohol to suppress responses to questions; physical techniques such as breath control,
biting one’s tongue, or contracting various muscles to create artificial responses; or
mental techniques such as disassociation or counting backward to either suppress or
create responses. See generally GIANNELLI ET AL., supra note 4 § 8.03[d], at 458-59;
NAT’L RESEARCH COUNCIL, THE POLYGRAPH AND LIE DETECTION 4-5, 139-48 (2003),
https://doi.org/10.17226/10420.
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Dr. Raskin concluded Holt was being truthful when he denied the charges on the grounds
that the alleged victim consented to sexual activity. In lieu of a Daubert/Coon hearing,
both parties suggested and the court agreed it could determine the admissibility of
Dr. Raskin’s testimony by reviewing the record of the hearing and subsequent order in
Alexander’s case. The parties also submitted additional scholarly articles on polygraph
testing, an audio recording of Holt’s polygraph examination, the raw data from that
examination, and the prosecutor’s recorded interview of Dr. Raskin about the procedure
used in that examination.
Superior Court Judge Charles Huguelet reviewed the evidence from
Alexander’s case, heard oral argument, and then concluded that polygraph evidence is
not sufficiently reliable to be admitted. The court further concluded that Dr. Raskin’s
testimony would in any case be inadmissible under the evidence rules governing
character evidence, bolstering, and prior consistent statements, as well as under the Rule
403 balancing test. After a jury trial, Holt was convicted of one count of first-degree
sexual assault and four counts of second-degree sexual assault; he was sentenced to 28
years imprisonment with 8 suspended.
D. Proceedings In The Court Of Appeals
In Alexander’s case, the State filed a petition for review to the court of
appeals challenging the conclusion that the proposed polygraph testimony was
admissible; Alexander filed a cross-petition challenging the conditions that he agree to
testify and agree to submit to a State-administered polygraph exam.7 In its decision, the
court of appeals observed that in accordance with our opinion in Coon, determinations
regarding the validity of scientific evidence are reviewed on appeal only for abuse of
7
State v. Alexander, 364 P.3d 458, 460 (Alaska App. 2015).
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discretion.8 The court expressed concern about applying such a deferential standard and
suggested that this court should revisit Coon and adopt a more probing standard of
review.9 The court explained:
As it happened, [Judges Miller and Schally] reached
the same conclusion regarding the scientific validity of
polygraph examinations. But, as illustrated by the competing
testimony offered by Dr. Raskin and Dr. Iacono, this is
clearly a matter on which reasonable people can differ — and
on which they do differ.
Thus, the two judges in this case might easily have
reached differing conclusions regarding the scientific validity
of polygraph examinations, even though they heard exactly
the same evidence. And if the two judges had reached
different conclusions, we apparently would have been
required to affirm both of the conflicting decisions under the
“abuse of discretion” standard of review.
....
This essentially means that the scientific validity of
polygraph evidence will never be judicially resolved at an
appellate level: it will remain an open question, and it will
need to be litigated anew each time the issue is raised.[10]
Ultimately, applying the abuse of discretion standard of review, the court of appeals
affirmed the order admitting Dr. Raskin’s testimony.11 The court also upheld the
8
Id. at 466.
9
Id. at 466, 468.
10
Id. (emphasis in original).
11
Id. at 471.
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conditions on admissibility imposed by the superior court.12
In Sharpe’s case, the State again filed a petition for review challenging the
ruling admitting Dr. Raskin’s testimony; the court of appeals denied the petition based
on its ruling in Alexander.
The State filed petitions for hearing to this court in both cases; Alexander
and Sharpe filed a joint cross-petition challenging the requirement that they agree to
testify before their respective polygraph evidence could be admitted.13 We granted all
three petitions and consolidated the cases for briefing.
Holt appealed his convictions and his sentence to the court of appeals. One
of Holt’s grounds for appeal was Judge Huguelet’s order excluding Dr. Raskin’s
testimony. The court of appeals reasoned that the polygraph issue in Holt’s case was the
same as the one in State v. Alexander, and that the trial court’s decision “present[ed] the
very problem that [the court] noted when [it] decided Alexander: the problem that
reasonable judges who heard exactly the same evidence concerning polygraph testing
could rationally reach differing conclusions as to whether polygraph evidence meets the
Daubert test for admission.” Because we had already granted review of Alexander’s and
Sharpe’s cases, the court of appeals severed Holt’s polygraph question and certified it
to this court, again asking us to revisit the applicable standard of review.14 We accepted
certification and consolidated Holt’s case with Sharpe’s and Alexander’s.
12
Id.13
Sharpe and Alexander are no longer challenging the requirement that they
submit to a state-administered polygraph exam if requested to do so.
14
We are not presented with the other issues and arguments raised in Holt’s
initial appeal to the court of appeals, and we do not address them.
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III. STANDARD OF REVIEW
Broadly speaking, we review the admission or exclusion of evidence for
abuse of discretion.15 But whether the trial court applied the correct legal rule is a
question of law subject to de novo review.16 Similarly, “[w]hen the admissibility of
evidence ‘turns on . . . the correct scope or interpretation of a rule of evidence, we apply
our independent judgment.’ ”17 Findings of fact underlying a judgment of the superior
court are reviewed for clear error, which we will find “if a review of the entire record
leaves us with a definite and firm conviction that a mistake has been made.”18
In State v. Coon we addressed the applicable standards of review for a
decision admitting or excluding scientific evidence and concluded that a “determination
of reliability under Daubert” is “best left to the discretion of the trial court.”19 However,
whether to revisit the standard outlined in Coon is one of the issues raised on appeal and
15
Timothy W. v. Julia M., 403 P.3d 1095, 1100 (Alaska 2017) (citing State
v. Carpenter, 171 P.3d 41, 63 (Alaska 2007)).
16
Id. (citing Carpenter, 171 P.3d at 63).
17
Sanders v. State, 364 P.3d 412, 419-20 (Alaska 2015) (cleaned up) (quoting
Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 350 (Alaska 2012)).
18
Kiva O. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
408 P.3d 1181, 1186 (Alaska 2018) (quoting Bigley v. Alaska Psychiatric Inst., 208 P.3d
168, 178 (Alaska 2009)). We have not previously stated explicitly what standard of
review applies to findings of fact preliminary to evidentiary rulings. However, under
Alaska Evidence Rule 104(b), “[w]hen the relevancy of evidence depends upon the
fulfillment of a condition of fact, the court shall admit it upon, or subject to, the
introduction of evidence sufficient to support a finding of the fulfillment of the
condition.” Thus, the relevant question on appeal is whether there is sufficient evidence
in the record to support the necessary factual finding, i.e., whether that finding is clearly
erroneous.
19
974 P.2d 386, 399 (Alaska 1999).
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one which the court of appeals has explicitly urged us to reconsider. When deciding
whether to overrule a prior decision, we will do so only when “clearly convinced that the
rule was originally erroneous or is no longer sound because of changed conditions, and
that more good than harm would result from a departure from precedent.”20 A previous
decision may be considered “originally erroneous” if it “proves to be unworkable in
practice.”21
IV. DISCUSSION
A. The Daubert/Coon Standard
Under Alaska Evidence Rule 702(a), a qualified expert witness may testify
to “scientific, technical, or other specialized knowledge” if that knowledge “will assist
the trier of fact to understand the evidence or to determine a fact in issue.” In Daubert
v. Merrell Dow Pharmaceuticals, Inc.,22 the United States Supreme Court set forth new
requirements for admitting scientific evidence under the equivalent Federal Rule of
Evidence. Prior to Daubert the prevailing standard had been established in Frye v.
United States, under which an “expert opinion based on a scientific technique is
inadmissible unless the technique is ‘generally accepted’ as reliable in the relevant
scientific community.”23 Daubert concluded that the Frye test was superseded by the
20
Young v. State, 374 P.3d 395, 413 (Alaska 2016) (quoting Pratt & Whitney
Canada, Inc. v. Sheehan, 852 P.2d 1173, 1176 (Alaska 1993)).
21
Thomas v. Anchorage Equal Rights Comm’n, 102 P.3d 937, 943 (Alaska
2004) (quoting Pratt & Whitney Canada, Inc., 852 P.2d at 1176).
22
509 U.S. 579 (1993).
23
Id at 584 (citing Frye v. United States, 293 F. 1013, 1014 (D.C. App.
1923)).
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adoption of the Federal Rules of Evidence.24
The new standard laid out in Daubert is two-pronged. First, the court must
determine whether the proffered testimony is based on “scientific knowledge,” meaning
that it is “derived by the scientific method” and “supported by appropriate validation”25
— in short, that it is “scientifically valid.”26 Second, because Evidence Rule 702 requires
that the testimony must “assist the trier of fact to understand or determine a fact in issue,”
the court must determine “whether the reasoning or methodology underlying the
testimony . . . properly can be applied to the facts in issue.”27
The Daubert Court also outlined a number of key considerations relevant
to the determination of scientific validity, although it noted that these considerations
were not “a definitive checklist or test.”28 The first question is whether the scientific
theory or technique in question can be and has been empirically tested.29 The second is
whether the theory or technique “has been subjected to peer review and publication.”30
But the Supreme Court cautioned that publication, including in a peer-reviewed journal,
“does not necessarily correlate with reliability”; rather, the Court reasoned that
publication and peer review is relevant because “submission to the scrutiny of the
scientific community is a component of ‘good science,’ in part because it increases the
24
Id. at 587.
25
Id. at 590.
26
Id. at 593.
27
Id. at 592-93.
28
Id. at 593.
29
Id.
30
Id.
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likelihood that substantive flaws in the methodology will be detected.”31 The third
consideration that the Court found relevant is “the known or potential rate of error, and
the existence and maintenance of standards controlling the technique’s operation.”32 And
finally, although Daubert rejected general acceptance in the scientific community as an
absolute prerequisite to admissibility, the Supreme Court recognized that “[w]idespread
acceptance can be an important factor in ruling particular evidence admissible, and ‘a
known technique which has been able to attract only minimal support within the
community,’ may properly be viewed with skepticism.”33
In 1999 we adopted Daubert as the applicable admissibility standard for
scientific expert testimony under the Alaska Rules of Evidence in State v. Coon.34
B. Polygraph Testing And The Comparison Question Technique
This opinion concerns the admissibility of expert testimony regarding the
results of a polygraph examination, informally known as a “lie detector test.” However,
it does not concern the entire field of polygraph testing; rather, it involves the technique
known as the “comparison question test” or “control question test” (CQT).35 The
following is a summary of the undisputed aspects of CQT polygraph testing.
31
Id.
32
Id. at 594 (internal citations omitted).
33
Id. (quoting United States v. Downing, 753 F.2d 1224, 1238 (3d Cir.
1985)).
34
974 P.2d 386, 393-94 (Alaska 1999).
35
The technique was originally known as the “control question” technique;
“comparison question” is now the preferred term because the technique does not use a
“control” as that term is understood in the scientific community. See GIANNELLI ET AL.,
supra note 4 § 8.02[a], at 437. For simplicity, we refer to the technique primarily by the
shorthand “CQT.”
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In all polygraph examinations, whether the CQT or some other approach
is used, the examinee is connected to a polygraph, an instrument that measures multiple
physiological phenomena: pulse rate, blood pressure, respiration rate, and galvanic skin
response in the hands and fingers.36 It is generally accepted that the polygraph is a
highly sensitive instrument capable of measuring these physiological phenomena.37
The CQT exams Dr. Raskin administered in these cases are a form of
specific-incident polygraph testing, as opposed to a polygraph examination for screening
or background check purposes.38 Screening tests ask about a broad range of conduct,
such as whether the examinee has ever committed a crime or used illegal drugs, but
specific-incident tests, like the ones Dr. Raskin administered, focus on a particular crime,
event, or other occurrence under investigation.39 The CQT examiner asks three types of
questions: “neutral” or “irrelevant” questions (“Is your name Thomas?”), broad
“control” or “comparison” questions (“During the first 35 years of your life, did you ever
engage in a sexual act of which you should be ashamed?”), and specific “relevant”
36
NAT’L RESEARCH COUNCIL, supra note 6, at 12-13; John Synnott et al., A
Review of the Polygraph: History, Methodology and Current Status, 1 CRIME PSYCH.
REV. 59, 62-65 (2015). Galvanic skin response, also known as electrodermal response,
refers to the electrical conductivity of the skin, which is affected by activity in the skin’s
sweat glands. See NAT’L RESEARCH COUNCIL, supra note 6, at 81, 155.
37
See GIANNELLI ET AL., supra note 4 § 8.02[c], at 439.
38
See NAT’L RESEARCH COUNCIL, supra note 6, at 1 (“Polygraph testing is
used for three main purposes: event-specific investigations (e.g., after a crime);
employee screening, and preemployment screening. The different uses involve the
search for different kinds of information and have different implications.”).
39
Id. at 23-24.
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questions (“Did you ever touch G.B.’s breast?”).40 Each comparison question will ask
about a broad category of past conduct, similar to but excluding the specific occurrence
being investigated, and each question will be specifically designed to be ambiguous,
broad, and vague but elicit a “No” answer.41 Because the comparison questions are
broadly worded and address sensitive topics, the examinee is assumed to be deceptive
or at least unsure of his answer.42 The underlying rationale of the CQT is that deceptive
subjects will feel more threatened by the relevant questions and will view the comparison
questions as less important; thus, deceptive subjects will have a stronger physiological
reaction to the relevant questions.43 In contrast, truthful subjects are expected to feel
more threatened by the comparison questions and will have a stronger physiological
reaction than to the truthfully answered relevant questions.44 There are two reasons for
40
See GIANNELLI ET AL., supra note 4 § 8.02[e], at 442-43; NAT’L RESEARCH
COUNCIL, supra note 6, at 254-55; David C. Raskin & Charles R. Honts, The
Comparison Question Test, in HANDBOOK OF POLYGRAPH TESTING 1, 5-27 (Murray
Kleiner ed., 2001).
41
Raskin & Honts, supra note 40, at 15. If the examinee answers a
comparison question affirmatively, indicating that some past event matches the described
conduct, the examiner will elicit an explanation of that event before repeating the
question in a way that excludes the admitted conduct (“Other than what you told me, . . .
did you ever . . . .”). Id. at 16. In a variant of the CQT known as the “directed lie test,”
the examinee is simply instructed to lie to the comparison question and informed that the
results will be inconclusive if there is not a strong enough response. Id. at 23; see also
GIANNELLI ET AL., supra note 4 § 8.02[e], at 444; Synnot et al., supra note 36, at 67-68.
42
See Raskin & Honts, supra note 40, at 15.
43
GIANNELLI ET AL., supra note 4 § 8.02[e], at 441; NAT’L RESEARCH
COUNCIL, supra note 6, at 14-15, 70-71, 255.
44
GIANNELLI ET AL., supra note 4 § 8.02[e], at 441; NAT’L RESEARCH
COUNCIL, supra note 6, at 14-15, 70-71, 255.
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this expectation: first, the sensitive topic of the comparison questions is assumed to
generate a response; second, the examiner will have explained prior to the exam that the
examinee’s reactions to the comparison questions are important to the ultimate test
result.45 Thus, the CQT is based on the premise that the relative magnitudes of the
examinee’s reactions to the relevant and comparison questions are indicative of his
truthfulness or lack thereof when answering the relevant questions.46
The examiner asks the examinee a list of prepared questions multiple
times.47 For each relevant question, the examiner will compare the subject’s reaction to
his reaction to an adjacent comparison question.48 Each measured parameter is given a
numerical score for each question pair, for example from -3 to +3, with a positive
number indicating a stronger reaction to the comparison question and a negative number
indicating a stronger reaction to the relevant question.49 The examiner totals the
numerical scores:50 a high positive overall score is interpreted as indicating a truthful
result; a high negative score is interpreted as indicating deception; a score close to zero,
45
Raskin & Honts, supra note 40, at 15-16.
46
GIANNELLI ET AL., supra note 4 § 8.02[e], at 441; NAT’L RESEARCH
COUNCIL, supra note 6, at 14-15, 70, 255; Raskin & Honts, supra note 40, at 7, 18-21.
47
Raskin & Honts, supra note 40, at 17-18.
48
Id at 7, 19.
49
GIANNELLI ET AL., supra note 4 § 8.02[f], at 445-46; Raskin & Honts, supra
note 40, at 19.
50
Depending on the circumstances and the need for particularized test results,
the scores may be totaled either for the test as a whole or for each relevant question
individually. Raskin & Honts, supra note 40, at 20.
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whether positive or negative, is considered inconclusive.51
As will be explained in further detail below, the main scientific criticisms
of CQT polygraph testing relate to the validity and testability of the assumptions
underlying the technique.
C. The Appellate Standard Of Review For Scientific Evidence Rulings
The first question we must address is what standard of review the appellate
court should apply to appeals from a Daubert/Coon determination made by the trial
court. Our current standard, which the court of appeals urges us to reconsider, is the one
laid out in State v. Coon: abuse of discretion.52
In Coon the superior court held an evidentiary hearing to determine whether
proffered expert testimony on spectrographic voice identification would be admissible
under Frye’s general-acceptance standard; the superior court then admitted the
testimony.53 After an initial appeal, we remanded the case with directions to the superior
court to enter findings of fact and conclusions of law relating to Evidence Rule 703, as
well as detailed findings of fact and conclusions of law under both the Frye and Daubert
standards; the superior court on remand determined the testimony was admissible under
both standards.54 On appeal again we expressly adopted the Daubert standard,55 and we
then considered the superior court’s ruling admitting the evidence under this newly
51
GIANNELLI ET AL., supra note 4 § 8.02[f], at 446; Raskin & Honts, supra
note 40, at 20.
52
974 P.2d 386 (Alaska 1999).
53
Id. at 388.
54
Id. at 389.
55
Id. at 389-98.
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adopted standard.56
The superior court’s conclusion was based on a number of preliminary
findings: it found that the technique of spectrographic voice identification “had been
empirically tested,” that it “had been subjected to peer review and publication,” that
“when properly performed . . . voice spectrography has a known error rate of less than
one percent,” that “when voice spectrography is properly performed by a qualified
person, it has attained widespread acceptance within the relevant scientific community,”
that “the reasoning and methodology underlying [the expert’s] testimony were
scientifically valid,” and that the expert in that case “had properly performed the voice
spectrographic analysis.”57 We examined each of those preliminary findings in turn, and
concluded for each finding that the superior court “did not err” in making it.58 We then
reviewed for abuse of discretion the superior court’s definition of the “relevant scientific
community” and its ultimate determination, in light of its preliminary findings, that the
evidence presented satisfied the Daubert standard.59 We noted that “the majority of the
federal circuits have chosen to apply the abuse of discretion standard when reviewing
district court decisions under Daubert,” and that “the Supreme Court [had] recently
56
Id. at 398-403.
57
Id. at 400.
58
Id. at 401-02 (“[T]he trial court did not err in finding on remand that this
technique has been subjected to empirical testing. . . . [T]he trial court did not err in
finding on remand that the technique had been subjected to peer review and
publication . . . . The trial court did not err in finding on remand that the known error rate
. . . was sufficiently low to make this evidence reliable. . . . [W]e do not find that the trial
court clearly erred in making its general acceptance finding . . . .”).
59
See id. (“[W]e conclude that the trial court did not abuse its discretion in
determining the relevant scientific community[,] . . . in ruling that the evidence satisfied
Daubert[,] . . . [or] in finding the voice spectrographic evidence admissible . . . .”).
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approved the abuse of discretion standard in General Electric Co. v. Joiner.”60
Justice Fabe dissented from the court’s opinion. She argued that applying
“an abuse of discretion standard of review to the validity of scientific techniques will
most likely lead to inconsistent treatment of similarly situated claims.”61 This non-
uniformity, she suggested, “must be reconciled at the appellate level. Otherwise,
inconsistent jury verdicts, widely disparate compensation for similar injuries, and
erroneous criminal verdicts will continue to erode public confidence in our justice
system.”62 Justice Fabe explained that “[t]he reliability of scientific evidence does not
change from one case to the next; a scientific method is either reliable or unreliable.”63
For that reason, her dissent advocated reviewing “the question of the validity of scientific
information” de novo, while reviewing for abuse of discretion “a trial judge’s assessment
of the competency of a particular expert witness to render an opinion.”64
Prior to our decision in Coon, a number of commentators had criticized the
federal courts’ abuse of discretion standard and proposed a hybrid standard similar to the
one described in Justice Fabe’s dissent.65 For example, Professor David Faigman argued
60
Id. at 399 (citing cases from the Courts of Appeal for the First, Second,
Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and D.C. Circuits, and citing General Electric
Co. v. Joiner, 522 U.S. 136 (1997)).
61
Id. at 404 (Fabe, J., dissenting).
62
Id. (Fabe, J., dissenting) (quoting Jay P. Kesan, An Autopsy of Scientific
Evidence in a Post-Daubert World, 84 GEO. L.J. 1985, 2037 (1996)).
63
Id. at 404-05 (Fabe, J., dissenting).
64
Id. at 405 (Fabe, J., dissenting).
65
See, e.g., Confronting the New Challenges of Scientific Evidence, 108
HARV. L. REV. 1509, 1528 (1995); David L. Faigman, Appellate Review of Scientific
(continued...)
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in a 1997 law review article that the relevance and reliability of scientific evidence
“involves several layers of scientific work” and that different standards of review should
apply to each.66 According to Faigman, “[w]hen the scientific evidence transcends the
particular case, the appellate court should apply a ‘hard-look’ or de novo review to the
basis for the expert opinion,”67 but “[w]hen the scientific evidence involves facts specific
to the particular case, the appellate court should defer to the trier of fact below.”68
Although all federal circuits have adopted Joiner’s69 abuse of discretion
standard for appellate review,70 a number of state courts have ruled to the contrary and
65
(...continued)
Evidence Under Daubert and Joiner, 48 HASTINGS L.J. 969, 976 (1997); David L.
Faigman et al., Check Your Crystal Ball at the Courthouse Door, Please: Exploring the
Past, Understanding the Present, and Worrying About the Future of Scientific Evidence,
15 CARDOZO L. REV. 1799, 1822 (1994); Michael H. Gottesman, From Barefoot to
Daubert to Joiner: Triple Play or Double Error?, 40 ARIZ. L. REV. 753, 776-80 (1998);
Jay P. Kesan, An Autopsy of Scientific Evidence in a Post-Daubert World,
84 GEO. L.J. 1985, 2038 (1996).
66
Faigman, Appellate Review, supra note 65, at 976.
67
Id.
68
Id.
69
General Elec. Co. v. Joiner, 522 U.S. 136 (1997).
70
See Hughes v. Kia Motors Corp., 766 F.3d 1317, 1331 (11th Cir. 2014);
Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 320 (3d Cir. 2003); Dura Auto.
Sys. of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 617 (7th Cir. 2002); Raskin v. Wyatt
Co., 125 F.3d 55, 65-66 (2d Cir. 1997); United States v. Kayne, 90 F.3d 7, 11 (1st Cir.
1996); Duffee ex rel. Thornton v. Murray Ohio Mfg. Co., 91 F.3d 1410, 1411 (10th Cir.
1996); Benedi v. McNeil-P.P.C., 66 F.3d 1378, 1384 (4th Cir. 1995); Pedraza v. Jones,
71 F.3d 194, 197 (5th Cir. 1995); American & Foreign Ins. Co. v. General Elec. Co., 45
F.3d 135, 137 (6th Cir. 1995); Hose v. Chicago N.W. Transp. Co., 70 F.3d 968, 972 (8th
Cir. 1995); United States v. Chischilly, 30 F.3d 1144, 1152 (9th Cir. 1994); Joy v. Bell
(continued...)
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adopted a stricter standard of review. For example, the New Mexico Supreme Court held
in Lee v. Martinez that the validity of a particular scientific theory is a form of
“legislative fact” not specific to the circumstances of any particular case, and it therefore
applies de novo review to such questions.71 Other states that have adopted a hybrid or
de novo standard of review for Daubert determinations include
Oklahoma,72Washington,73 Kentucky,74 New Hampshire,75 West Virginia,76 and
70
(...continued)
Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C. Cir. 1993).
71
96 P.3d 291, 296 (N.M. 2004).
72
Taylor v. State, 889 P.2d 319, 331-32 (Okla. Crim. App. 1995) (“[A] trial
judge’s decision to admit novel scientific evidence” is subject to “an independent,
thorough review . . . not limited by deference to the trial judge’s discretion”).
73
State v. Cauthron, 846 P.2d 502, 505 (Wash. 1993) (“We review the trial
court’s decision to admit or exclude novel scientific evidence de novo.”), overruled in
part on other grounds by State v. Buckner, 941 P.2d 667 (Wash. 1997).
74
Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004) (explaining that
“findings of fact, i.e. reliability or non-reliability” are reviewed for clear error and
“discretionary decisions, i.e. whether the evidence will assist [the] trier of fact and the
ultimate decision as to admissibility” are reviewed for abuse of discretion).
75
State v. Dahood, 814 A.2d 159, 161 (N.H. 2002) (“Generally, we review
the trial court’s rulings on evidentiary matters, including those regarding the reliability
of novel scientific evidence, with considerable deference . . . . When the reliability or
general acceptance of novel scientific evidence is not likely to vary according to the
circumstances of a particular case, however, we review that evidence independently.”).
76
State v. Beard, 461 S.E.2d 486, 492 n.5 (W. Va. 1995) (explaining that
West Virginia appellate courts review de novo whether “the reasoning or methodology
underlying the testimony is scientifically valid,” but that whether the scientific evidence
“will assist the trier of fact to understand the evidence or to determine a fact in issue” is
reviewed under the abuse of discretion standard).
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Oregon.77 In states that continue to apply the Frye standard of general acceptance, most
apply de novo review on appeal.78
The primary concern raised by jurisdictions applying abuse of discretion
review, as well as by commentators and Justice Fabe’s dissent in Coon, is the potential
for inconsistent rulings in similarly situated cases. Our opinion in Coon dismissed this
concern, finding it unlikely “that the inconsistency will be of such magnitude as to
‘compromise the integrity of the judiciary in the eyes of the public.’ ”79 In light of the
posture of the cases now before us, we may have been too optimistic. If two defendants
offer similar scientific testimony and — after separate evidentiary hearings — one judge
deems the testimony to be scientifically valid while another does not, that could be the
result of differences between the particular cases and differences in the evidence
presented at the hearings. But when the judge in the latter case relied on the evidentiary
hearing from the first, and reached the opposite conclusion based on identical evidence,
it is clear that the difference in outcome cannot be attributed to a difference in the amount
or quality of the evidence.
That is essentially what happened in these cases: the scientific evidence
77
State v. Lyons, 924 P.2d 802, 805 (Or. 1996) (“Notwithstanding the usual
deference to trial court discretion, we review [a] ruling on the admissibility of scientific
evidence de novo.” (emphasis in original) (internal citation omitted)).
78
See, e.g., Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000)
(explaining that under Minnesota’s Frye-Mack standard, “the trial judge defers to the
scientific community’s assessment of a given technique, and the appellate court reviews
de novo the legal determination of whether the scientific methodology has obtained
general acceptance in the scientific community”); Brim v. State, 695 So. 2d 268, 274
(Fla. 1997) (explaining that “[a]ppellate review of a Frye determination will be treated
as a matter of law” and be reviewed de novo).
79
State v. Coon, 974 P.2d 386, 399 (Alaska 1999) (quoting Coon, 974 P.2d
at 404 (Fabe, J., dissenting)).
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Alexander and Sharpe presented was deemed valid and admissible by the judges in their
cases; essentially identical evidence based on the same scientific principles was deemed
unreliable as a matter of law and inadmissible in Holt’s case, even though the trial judge
relied on the very testimony presented at Alexander’s Daubert hearing.80 This raises at
least the appearance of arbitrariness, i.e., the appearance that the outcome of a Daubert
determination in our courts depends more on which judge was assigned to the case than
on the objective application of law to the evidence presented. Regardless of how
accurate this appearance might be, it certainly has the potential to raise serious questions
in the eyes of the public about the integrity of our judicial system, particularly when such
inconsistencies occur in the context of serious criminal proceedings.
We explained in Coon that “the premise that the scientific validity of a
technique is a legal issue which does not turn on case-sensitive facts” fails to “adequately
take account of the reality of the judicial process and the variable state of science.”81 We
quoted with approval the New Mexico Supreme Court’s reasoning that the idea that
appellate courts are best suited to rule on the validity of a scientific theory or technique
assumes “that the record on appeal contains all of the relevant, most recent data
concerning the scientific method” and that “there is always a reservoir of scientific
literature that an appellate court might independently reference in a de novo review.”82
We also expressed concern about making determinative rulings at all, again noting the
New Mexico Supreme Court’s reasoning that “the state of science is not constant; it
80
An evidentiary hearing in which the judge considers the admissibility of
expert testimony is also known as a Daubert hearing, and will be hereafter referred to as
such.
81
Coon, 974 P.2d at 399.
82
Id. (quoting State v. Alberico, 861 P.2d 192, 205 (N.M. 1993)).
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progresses daily.”83 We explained that “[t]he principal reason for adopting the Daubert
standard is to give the courts greater flexibility in determining the admissibility of expert
testimony, so as to keep pace with science as it evolves,” and concluded that abuse of
discretion review “best comports with these aims.”84
We do not take these concerns lightly: the record on appeal is limited to
the testimony and exhibits in the superior court’s case file,85 so there is a non-negligible
risk that reviewing the validity of scientific evidence de novo could lead us or the court
of appeals to decide a case involving the admissibility of scientific evidence based on
incomplete information. But the superior court is also limited to the testimony and
evidence presented at the hearing. And appellate courts will often have more time than
trial courts to mitigate that risk through careful study of secondary sources such as
scientific treatises and surveys of academic literature in the relevant field.
Overturning a prior appellate decision requires showing that the decision
was either “originally erroneous or is no longer sound because of changed conditions.”86
If an appellate court has made a Daubert determination and then new scientific research
becomes available, or if a litigant identifies research that the appellate court overlooked,
the trial court would be justified in holding an evidentiary hearing to make a complete
record and rule in the alternative. The appellate court would then have the ability to
reconsider admissibility under Daubert and Coon. In either case, presenting this new or
overlooked evidence is no more of a burden on litigants than the burden they would
83
Id. (quoting Alberico, 861 P.2d at 205).
84
Id.
85
Alaska R. App. P. 210(a).
86
Young v. State, 374 P.3d 395, 413 (Alaska 2016) (quoting Pratt & Whitney
Canada, Inc. v. Sheehan, 852 P.2d 1173, 1176 (Alaska 1993)).
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otherwise have to present relevant evidence at an original Daubert hearing.
In short, Coon’s fears that de novo review of Daubert determinations would
result in the law of scientific evidence becoming set or stagnant and unchanging appear
somewhat exaggerated. However, for the reasons discussed above, de novo review will
not necessarily allow appellate courts to decide once and for all time whether a particular
technique is scientifically valid, as the court of appeals seems to hope. Nonetheless,
adopting a less deferential standard of review on appeal would allow trial courts and
parties to avoid repeatedly relitigating the validity of scientific evidence, saving the court
and parties the time, effort, and cost of a Daubert hearing — at least absent new or
previously overlooked research and evidence. It would also ensure that the admissibility
of scientific evidence is consistent throughout the courts of this state.
For these reasons, we agree with the court of appeals — and with the
dissent in Coon — that a more probing standard of review is warranted in an appeal from
a Daubert determination.87 As explained above, our decision in Coon reviewed the
preliminary findings underlying the superior court’s application of the Daubert standard
— whether the technique had been tested, whether it had been subject to publication and
peer review, etc. — for clear error, but reviewed the court’s ultimate determination of
reliability for abuse of discretion.88 Going forward, we will instead apply our
independent judgment to the question whether — based on the evidence presented and
87
This approach is consistent with our standard of review in a number of
other contexts. For example, we have explained in the context of reviewing a denial of
a motion to suppress evidence that although “[t]he trial court’s findings of fact will not
be disturbed unless they are clearly erroneous,” the question “[w]hether the trial court’s
findings support its legal conclusions is a question we answer with our independent
judgment.” State v. Wagar, 79 P.3d 644, 650 (Alaska 2003) (quoting State v. Joubert,
20 P.3d 1115, 1118 (Alaska 2001)).
88
Coon, 974 P.2d at 400-02.
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the scientific literature available — the technique or theory underlying the proposed
expert testimony is sufficiently reliable to satisfy Daubert and Coon.89
In sum, we will limit our independent review to the broad question whether
the underlying scientific theory or technique is “scientifically valid” under the first prong
of the Daubert analysis.90
D. Admissibility
1. Alaska’s case law on polygraph testing
Although we have not previously addressed the admissibility of polygraph
evidence under Daubert and Coon, a discussion of our pre-Daubert case law on the
subject provides useful context and perspective. In 1970 we concluded in Pulakis v.
State that polygraph evidence offered in a criminal trial is generally inadmissible.91
Pulakis was convicted of larceny after a jury trial.92 At trial the prosecution introduced
testimony from a police polygraph examiner that Pulakis underwent two polygraph
examinations and that, in the examiner’s opinion, “the examinations revealed that
deceptive answers were given to four crucial questions.”93 Pulakis challenged his
89
Whether the evidence being offered is ultimately admissible will also
depend on case-specific factors, including whether the evidence is helpful to the trier of
fact, whether the relevant scientific theory or technique “properly can be applied to the
facts in issue,” and whether the proposed expert testimony satisfies or runs afoul of other
evidentiary rules. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-95 (1993);
see also Alaska R. Evid. 702. These questions generally fall within the discretion of the
trial court, and we will review them accordingly.
90
Daubert 509 U.S. at 592-95.
91
476 P.2d 474, 478-79 (Alaska 1970).
92
Id. at 474-75.
93
Id. at 477.
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conviction on appeal, arguing that admitting the polygraph testimony was plain error.94
Citing Frye, as well as language from some of our previous opinions, we observed that
“[t]he general rule is that the results of polygraph tests are not admissible in evidence.”95
We explained that “judicial antipathy” to polygraph evidence had not diminished
significantly since Frye was decided in 1923, and that court decisions considering the
issue “reflect a high degree of sensitivity to the numerous potential sources of error in
the ascertainment of deception through polygraph examinations.”96 We concluded that
the “central problem regarding admissibility is not that polygraph evidence has been
proved unreliable, but that polygraph proponents have not yet developed persuasive data
demonstrating its reliability.”97 We therefore held that, although we were “not prepared
to say whether polygraph examiners’ opinions are reliable[,] . . . the results of polygraph
examinations should not be received in evidence over objection.”98 However, we
ultimately upheld Pulakis’s conviction because he had waived objection to the evidence
at trial and we did not “find polygraph tests so demonstrably unreliable as to require a
finding of plain error.”99
After we decided Pulakis, several cases in the court of appeals dealt not
with the admissibility of polygraph evidence directly, but rather with the admissibility
94
Id. at 476.
95
Id. at 477 (quoting Gafford v. State, 440 P.2d 405, 410 (Alaska 1968)).
96
Id. at 478.
97
Id. at 479.
98
Id.99
Id. at 479-80.
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of references in other testimony to a party’s willingness to submit to a polygraph test.100
The court of appeals noted that “[d]espite its unreliability, polygraph evidence might be
perceived by the jury as a complete answer to questions of credibility” and “could also
lull the jury into a false sense of security and result in the jury failing to carefully
scrutinize conflicting witness testimony.”101 Similarly, the court of appeals was
concerned that “a jury may conclude that a witness’s willingness to take a polygraph test
is circumstantial evidence that the witness is telling the truth,” and therefore concluded
that even references to polygraph tests should be either inadmissible or subject to
significant limiting instructions.102
The court of appeals first considered the admissibility of polygraph test
results in Haakanson v. State.103 In that case the court was asked to reconsider Pulakis
and find polygraph testimony admissible in light of alleged changes in polygraph
technology and increased “acceptance among polygraph examiners of the polygraph’s
reliability to show truthfulness.”104 The court of appeals applied Frye’s general
acceptance standard: it concluded that for purposes of that analysis, the relevant question
could not be limited to the acceptance of polygraph testing among polygraph examiners;
rather, the court decided that under our decision in Contreras v. State, the “relevant
scientific community” includes the “professions which have studied and/or utilized [the
technique] for clinical, therapeutic, research and investigative applications” and
100
See, e.g., Willis v. State, 57 P.3d 688 (Alaska App. 2002); Leonard v. State,
655 P.2d 766 (Alaska App. 1982).
101
Leonard, 655 P.2d at 770; see also Willis, 57 P.3d at 692.
102
Willis, 57 P.3d at 692; see also Leonard, 655 P.2d at 771.
103
760 P.2d 1030 (Alaska App. 1988).
104
Id. at 1031-32.
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specifically excludes “those whose involvement with [the technique] is strictly limited
to that of practitioner.”105 Applying that standard, the court of appeals concluded that
there was “considerable controversy over the reliability of polygraphs as a scientific
process,” and that “Haakanson ha[d] not established that there [was] a consensus among
the experts regarding the reliability of the polygraph technique.”106 The court of appeals
also expressed “concern[] about the disproportionate impact polygraph evidence may
have on a jury.”107 Citing its previous concerns about polygraph testimony being
“perceived by the jury as a complete answer to questions of credibility” and its potential
to “lull the jury into a false sense of security,” the court of appeals held that “[a]ny
evidence which has such great potential to mislead or prejudice the jury should be
excluded unless its probative value clearly outweighs the prejudice.”108 The court of
appeals found the “probative value of polygraph evidence [to be] insubstantial because
the polygraph has not been proven reliable”; thus, the polygraph evidence in that case
was inadmissible.109
2. Polygraph evidence under Daubert in other states
Other jurisdictions that apply the Daubert test have also rejected evidence
based on the CQT method. For example, in State v. Porter the Connecticut Supreme
Court adopted Daubert as the relevant standard for scientific evidence and upheld its
105
Id. at 1034 (quoting Contreras v. State, 718 P.2d 129, 135 (Alaska 1986)).
106
Id. at 1035.
107
Id.
108
Id. (quoting Leonard v. State, 655 P.2d 766, 770 (Alaska App. 1982)).
109
Id.-29- 7326
traditional per se ban on admitting polygraph evidence.110 Jurisdictions that have
adopted Daubert and maintain a per se exclusion of polygraph evidence include Idaho,111
West Virginia,112 Hawaii,113 Vermont,114 the District of Columbia,115 and the Court of
Appeals for the Fourth Circuit.116 In United States v. Scheffer the Supreme Court held
110
State v. Porter, 698 A.2d 739, 742 (Conn. 1997).
111
State v. Perry, 81 P.3d 1230, 1235-36 (Idaho 2003) (concluding that
polygraph evidence is “useful to bolster [the examinee’s] credibility but do[es] not
provide the trier of fact with any additional information” and that it is inadmissible
“because it does not assist the trier of fact to understand the evidence or to determine a
fact in issue”).
112
State v. Beard, 461 S.E.2d 486, 492-493 (W. Va. 1995) (“Despite
Appellant’s noteworthy efforts at trying to elevate the image of polygraph results, we
remain convinced that the reliability of such examinations is still suspect and not
generally accepted within the relevant scientific community. Therefore, any speculation
that our position . . . regarding polygraph admissibility is in question due to the
Daubert/Wilt rulings is put to rest today.” (emphasis in original) (footnote omitted)).
113
State v. Okumura, 894 P.2d 80, 94 (Haw. 1995) (reaffirming Hawaii’s per
se exclusion of polygraph evidence), abrogated on other grounds by State v. Cabagbag,
277 P.3d 1027, 1038-39 (Haw. 2012).
114
Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 46 A.3d 891, 897-901 (Vt.
2012) (affirming denial of Daubert hearing on polygraph reliability on grounds that even
assuming polygraph evidence satisfies Daubert it is still inadmissible under Rule 403).
115
See Rowland v. United States, 840 A.2d 664, 673-74 (D.C. 2004) (citing
Proctor v. United States, 728 A.2d 1246, 1249 (D.C. 1999) and Peyton v. United States,
709 A.2d 65, 65 (D.C. 1998)) (excluding polygraph testimony). The D.C. Court of
Appeals only recently adopted Daubert, see Motorola Inc. v. Murray, 147 A.3d 751,
756-57 (D.C. 2016), and it does not appear to have since heard a case involving
polygraph testimony.
116
See United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th. Cir. 2003). In
addition, the Sixth Circuit has held that, although it “has never adopted a per se
(continued...)
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that a per se rule excluding polygraph evidence does not infringe on the constitutional
rights of an accused to present evidence in his defense;117 implied in the Court’s
reasoning is the corollary conclusion that such a rule is also not inconsistent with
Daubert.118 According to one treatise on scientific evidence, a majority of states still
followed this “traditional rule” of excluding polygraph evidence as of 2012, when
Alexander’s evidentiary hearing took place.119 The superior court in Alexander’s case
surveyed polygraph admissibility in “all 50 states and the federal circuits” at the time of
the hearing and found that “30 jurisdictions still have a per se ban, 17 admit polygraph
results based upon stipulation, and 12 leave the decision to the trial court’s discretion on
a case-by-case basis.”
Of the jurisdictions that allow polygraph evidence based on the judge’s
discretion, New Mexico is a notable example. Unlike the Alaska Evidence Rules, the
New Mexico Rules of Evidence (NMRE) specifically address polygraph examinations.
Under NMRE 11-707, the opinion of a polygraph examiner “as to the truthfulness of a
person’s answers in a polygraph examination may be admitted” if a number of specific
116
(...continued)
prohibition on the introduction of polygraph evidence,” it “generally disfavor[s]
admitting the results of polygraph evidence” because “the results of a polygraph are
inherently unreliable.” United States v. Thomas, 167 F.3d 299, 308 (6th Cir. 1999).
Furthermore, the Sixth Circuit has “repeatedly held that ‘unilaterally obtained polygraph
evidence is almost never admissible under Evidence Rule 403.’ ” Id. at 309 (quoting
United States v. Sherlin, 67 F.3d 1208, 1216 (6th Cir. 1995), and citing Wolfel v.
Holbrook, 823 F.2d 970, 973-75 (6th Cir. 1987); Barnier v. Szentmiklosi, 810 F.2d 594,
597 (6th Cir. 1987)).
117
523 U.S. 303, 317 (1998)
118
See id at 309-12.
119
See GIANNELLI, ET AL., supra note 4 § 804[b], at 465 & n.173.
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criteria regarding the examiner’s qualifications and the test procedure are met.120 In Lee
v. Martinez the New Mexico Supreme Court held that when the expert’s qualification
and the examination meet this rule’s standards, “polygraph examination results are
sufficiently reliable to be admitted” under the Daubert standard and NMRE 11-702 —
New Mexico’s equivalent to Alaska Evidence Rule 702.121 However, the court also
concluded that NMRE 11-707 only makes polygraph evidence admissible subject to the
discretion of the trial judge’s balancing of probative value against unfair prejudice.122
3. The Daubert factors, applied
Both the Supreme Court in Daubert and our court in Coon explained that
the listed factors should not be seen as a determinative checklist, but that the standard is
a flexible one.123 Because the Daubert factors are a good starting point, and the superior
court started with them in Alexander, these factors will be discussed in turn here.
i. Empirical testing
The first relevant question is whether CQT polygraphy can be, and has
been, empirically tested. The superior court in Alexander found that “the hypotheses
underlying the polygraph can be and ha[ve] been tested repeatedly, including tests by
both Drs. Raskin and Iacono.” In light of the record before us and the scientific literature
available, this finding is at least partly erroneous.
120
N.M. R. Evid. 11-707 (2018).
121
96 P.3d 291, 293-94 (N.M. 2004).
122
Id. at 294.
123
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594-95 (1993) (“The
inquiry envisioned by Rule 702 is, we emphasize, a flexible one . . . . The focus, of
course, must be solely on principles and methodology, not on the conclusions that they
generate.”); State v. Coon, 974 P.2d 386, 395 (Alaska 1999) (“The factors identified in
Daubert provide a useful approach . . . . Other factors may apply in a given case.”).
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It is true that Dr. Raskin and Dr. Iacono both testified about a number of
studies — conducted by them and others — that have tested the practical application of
CQT polygraphy. But one central criticism that Dr. Iacono’s testimony raised was the
lack of studies testing the psychological hypotheses that serve as the underlying premise
of polygraph testing. For a CQT polygraph test to yield reliable inferences about
deception,124 it must be the case that (1) deception on relevant and comparison questions
produce different psychological states; (2) these psychological states produce measurably
different physiological responses; (3) these physiological responses include the ones that
the polygraph instrument measures; (4) these physiological responses are unlikely to
arise from causes other than deception; (5) the scoring system captures the physiological
differences relevant to deception; and (6) examiners accurately assign conclusions of
deception or honesty to certain score values when they interpret scores.125 Many of these
assumptions and hypotheses appear not to have been tested; even more important, some
may not be readily testable.
In particular, CQT polygraph examinations are based on the theory that
while a truthful person will respond more strongly to the comparison questions, a
deceptive person will have a stronger reaction to the relevant questions. Dr. Iacono
criticized this as an unfounded assumption, arguing for example that a truthful person
might react strongly to the relevant questions due to the implications of a false
accusation, while a guilty person outside of laboratory studies might have a reduced
124
This is the concept of criterion validity, or the degree to which an empirical
measure actually “matches a phenomenon that the test is intended to capture.” NAT’L
RESEARCH COUNCIL, supra note 6, at 31.
125
See id. at 67.
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reaction to the relevant questions due to the phenomenon of habituation.126 On those
grounds, Dr. Iacono concluded that “the CQT has . . . a weak theoretical foundation.”
He testified that this underlying theory has not been properly tested, in part because
laboratory studies cannot duplicate all of the considerations that might be relevant in the
field — like habituation or a truthful examinee reacting to the relevant questions out of
fear of being falsely accused — and in part because field studies have difficulties
establishing the “ground truth” of whether an examined person was actually lying.
Determining ground truth presents practical problems that are difficult, perhaps even
impossible, to overcome, meaning that true accuracy rates may not be empirically
verifiable. Dr. Iacono testified that many field studies focus on criminal cases and use
confessions to determine ground truth, but noted that this is problematic because whether
or not a defendant passes or fails a polygraph exam affects how likely he is to
subsequently confess.127
126
The term “habituation” refers to a “decline in responsiveness to a stimulus
due to repeated exposure.” Habituation, AMERICAN HERITAGE DICTIONARY (5th ed.
2014). In the context of a polygraph test administered to a criminal defendant, this
phenomenon could influence the test results because the relevant questions on the test
are directed at the same conduct the defendant has already been accused of and charged
with: “[I]f the individual has discussed the crime at length or on numerous occasions,
they may have become habituated to talking about the case and no arousal is detected.”
Erin M. Oksol & William T. O’Donohue, A Critical Analysis of the Polygraph, in
HANDBOOK OF FORENSIC PSYCHOLOGY 601, 621 (William O’Donohue & Eric Levensky
eds., 2003); see also Lee v. Martinez, 96 P.3d 291, 318 (N.M. 2004).
127
Confessions may also be unreliable measures of ground truth for other
reasons. The Innocence Project reports that of the more than 360 DNA exoneration
cases in the United States, roughly 28% involved a false confession in the initial
conviction. DNA Exonerations in the United States, INNOCENCE PROJECT (2017),
https://www.innocenceproject.org/dna-exonerations-in-the-united-states/ (last visited
Oct. 16, 2018). It is not possible to infer the overall rate of false confessions from this
(continued...)
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Several studies and surveys of polygraph research have reached similar
conclusions. For example, a 2003 review of the scientific evidence on polygraphy by
the National Research Council concluded that “[p]olygraph research has not developed
and tested theories of the underlying factors that produce the observed responses.”128
Similarly, a more recent survey of academic literature concluded that “[i]t appears
unlikely that the proponents of the CQT will be able to reconcile the theoretical flaws of
their technique in the foreseeable future.”129 Although there have been numerous studies
testing the practical applications of the comparison question technique, our review of the
record and the available academic literature reveals no studies actually testing the
underlying psychological theories. Ultimately, given the fact that certain assumptions
of polygraph testing not only are untested, but may be functionally untestable, we
conclude that this factor weighs decidedly against admitting polygraph testimony as
scientific evidence.
ii. Peer review
The superior court in Alexander found that CQT polygraphy has been the
subject of various publications, many of which were peer reviewed. This finding is
amply supported by the record, and the State does not suggest otherwise. However, as
the Supreme Court explained in Daubert, the mere fact of publication in a peer-reviewed
journal is not itself probative of a technique’s validity; rather, peer review and
“submission to the scrutiny of the scientific community” is relevant because “it increases
127
(...continued)
data, but it is enough to raise questions about how accurately confessions establish
ground truth.
128
NAT’L RESEARCH COUNCIL, supra note 6, at 2.
129
Synnott et al., supra note 36, at 76.
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the likelihood that substantive flaws in the methodology will be detected.”130 As
discussed above, the published studies on CQT testing have been subject to substantial
scrutiny, and a vigorous debate has arisen about substantive flaws in the theoretical
underpinnings of the technique. Notwithstanding this debate, which has been ongoing
for decades,131 the practice of CQT polygraph testing does not appear to have developed
in any significant way. Most of the studies cited by Dr. Raskin in support of the
technique are from the 1980s and 1990s, with some dated as far back as the late 1970s;
and although the superior court’s Daubert hearing was conducted in 2012, Dr. Raskin
did not cite to any studies published more recently than 2003.132 Thus, although studies
regarding CQT polygraphy have been published in peer-reviewed journals, it does not
appear that this has resulted in the kind of refinement and development that makes
publication and peer review relevant to a Daubert analysis. For this reason, although the
superior court in Alexander did not clearly err in finding that polygraph testing has been
the subject of publication and peer review, we give this finding little weight.
iii. Acceptable error rate
The superior court in Alexander found that the error rate of CQT polygraph
testing is “sufficiently reliable” to be acceptable. The court reasoned that the studies
cited by Dr. Raskin showed an accuracy rate of 89% to 98%, while those cited by
Dr. Iacono had accuracy rates from 51% to 98%, with an average of 71%. Dr. Raskin
130
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594-95 (1993).
131
See United States v. Scheffer, 523 United States 303, 309-10 (1998) (citing
sources debating the validity of CQT polygraphy dating to the late 1980s).
132
Again, 2003 was the year the National Research Council concluded that
polygraph research had not developed or tested the psychological theories assumed to
underlie the physical responses the polygraph measures. NAT’L RESEARCH COUNCIL,
supra note 6, at ii, 2.
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estimated that the overall accuracy rate of CQT polygraph testing was around 90%. The
court recognized a number of concerns that might affect the accuracy rate of polygraph
exams in practice, including the “friendly examiner” hypothesis and the possibility of
examinees using countermeasures to “beat” the test. But the court concluded that these
concerns “are already built in to the error rate” and are relevant to the weight the jury
should assign to the testimony, not to admissibility.
As a preliminary matter, the superior court appears to have misunderstood
Dr. Iacono’s testimony. As discussed above, Dr. Iacono criticized each study he
discussed, testifying that the accuracy rates reported in those studies were either invalid
or not applicable to practical applications of the CQT technique in the field; he concluded
that “it’s not possible to accurately estimate the error rate of the controlled question test
when it’s used in real life applications.” The court’s conclusion that the various concerns
discussed are “already built in to the error rate” has no support in the record: while
individual studies may have tested specific variables such as countermeasures, neither
expert cited any laboratory study that controlled for all of them.
Dr. Iacono also testified that field studies on polygraph testing are
unreliable and often “contain a bias of potentially serious magnitude toward
overestimating the accuracy” of the test. A typical study, according to Dr. Iacono, would
look at cases where the defendant took a polygraph test and later confessed; in such
cases, the polygraph chart would be blindly rescored and then compared to the
confession. But Dr. Iacono testified that failing a polygraph test often pressures a
defendant into confessing, while passing the test substantially decreases the chance of
a confession. As such, he explained, field studies are subject to a substantial selection
bias: a case is most likely to end up in the study only if the defendant failed a polygraph
test and subsequently confessed. When the study then rescores the polygraph chart, Dr.
Iacono testified that it is not surprising the results exceed 90% accuracy.
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In addition to potential flaws in the perceived accuracy rates of CQT tests,
the empirical basis for polygraph examinations suffers from another fault: the lack of a
reliable “base rate.”133 In the three cases currently before this court, each defendant was
said to have passed his polygraph test; the relevant question for the factfinder is whether,
given this fact, the defendant was likely truthful or whether the test was a false negative.
To determine this likelihood, more information is required; specifically, information
about the base rate of deceptive and truthful subjects.
The lack of a reliable base rate estimate was the underlying reason for the
Connecticut Supreme Court upholding its traditional per se ban on admitting polygraph
evidence in State v. Porter.134 Noting “wide disagreement” about the accuracy rates for
“a well run polygraph exam,” the court decided that, even if the estimates of polygraph
proponents were accepted, the technique would still be “of questionable validity.”135 The
court cited a field study by Dr. Raskin indicating a sensitivity of 87% and a specificity
of 59%:136 “In other words, 13 percent of those who are in fact deceptive will be labeled
133
The “base rate” refers to the probability “of the target condition in the
population or in the sample at hand — for security screening, this might refer to the
proportion of spies or terrorists or potential spies or terrorists among those being
screened.” NAT’L RESEARCH COUNCIL, supra note 6, at 46. A sample population of
criminal suspects, for example, may have a higher base rate of deceivers than other
sample populations. Id. at 47.
134
698 A.2d 739, 766-69 (Conn. 1997).
135
Id. at 764, 766.
136
“There are two distinct aspects to accuracy. One is sensitivity. A perfectly
sensitive indicator of deception is one that shows positive whenever deception is in fact
present: it is a test that gives a positive result for all the positive (deceptive) cases; that
is, it produces no false negative results. The greater the proportion of deceptive
examinees that appear as deceptive in the test, the more sensitive the test. Thus, a test
(continued...)
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as truthful . . . [and] 41 percent of subjects who are, in fact, truthful will be labeled as
deceptive.”137 The court further reasoned that, even if a test is accurate, its probative
value as scientific evidence depends on its “predictive value” — the likelihood “that a
person really is lying given that the polygraph labels the subject as deceptive” and the
likelihood “that a subject really is truthful given that the polygraph labels the subject as
not deceptive.”138 This predictive value, the court explained, depends not only on the
accuracy of the test but also “on the ‘base rate’ of deceptiveness among the people tested
by the polygraph.”139 Because the Porter court found a “complete absence of reliable
data on base rates,” it concluded that it had no possible way of assessing the test’s
probative value.140 With that in mind, the court concluded that even if polygraph
136
(...continued)
that shows negative when an examinee who is being deceptive uses certain
countermeasures is not sensitive to deception. The other aspect of accuracy is
specificity. An indicator that is perfectly specific to deception is one that always shows
negative when deception is absent (is positive only when deception is present). It
produces no false positive results. The greater the proportion of truthful examinees who
appear truthful on the test, the more specific the test. Thus, a test that shows positive
when a truthful examinee is highly anxious because of a fear of being falsely accused is
not specific to deception because it also indicates fear.” NAT’L RESEARCH COUNCIL,
supra note 6, at 38.
137
Porter, 698 A.2d at 766.
138
Id.139
Id. at 766-67 (footnote omitted).
140
Id. at 768. As the Porter court described, “[t]he base rate is important
because it can greatly accentuate the impact of the false positive and false negative rates
arising from any given specificity and sensitivity values.” Id. at 767 n.53. For example,
“[i]f one assumes base rates progressively higher than 50 percent, then, by definition, the
number of deceptive examinees increases and the number of honest examinees
(continued...)
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evidence satisfies the Daubert standard, which it assumed without deciding, the
probative value of such evidence is very low and substantially outweighed by its
prejudicial effects.141
As in Porter, the record before us is devoid of reliable data about the base
rate of deceptiveness among polygraph examinees outside of lab tests; we also have not
found such data in academic literature. Absent some reliable estimate of this base rate
there is no way to estimate the reliability of polygraph results, and thus no way to
determine whether any particular accuracy rate is acceptable. We conclude that the
superior court clearly erred in finding the error rate of CQT polygraph testing to be
“sufficiently reliable.” Accordingly, this factor weighs against admitting polygraph
evidence.
iv. Standards for operation
Under Daubert the court should consider “the existence and maintenance
of standards controlling the technique’s operation.”142 The superior court in Alexander
found “that although there is no single published protocol that all polygraphers must
follow, that nonetheless there are published protocols and training criteria” that are
sufficiently utilized so as to be considered standard. Additionally, the court found there
was no indication that “Dr. Raskin did not properly administer the two exams.”
Standards do control some aspects of polygraph testing and many states
140
(...continued)
decreases.” Id. Thus, “even holding specificity and sensitivity rates constant, as the base
rate increases the number of false negatives (the labeling of deceptive subjects as
truthful) also rises and the number of false positives (the labeling of truthful subjects as
deceptive) falls.” Id.
141
Id. at 768-69
142
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594-95 (1993).
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also have statutes governing polygraph test administration, examinees’ privacy rights,
and licensing of examiners.143 To describe the standards for administration of
polygraphs, Dr. Raskin pointed to New Mexico Evidence Rule 11-707 as providing
“clear standards for tests to be offered as evidence” and described the rule as “a superior
model for national standards.” He also referenced standards adopted by national
polygraph organizations and standards imposed by government agencies.
Rule 11-707 provides that a polygraph examiner’s opinion testimony is
admissible if the examiner is qualified, the scoring method used is “generally accepted
as reliable by polygraph experts,” the examiner was informed of relevant information
regarding the examinee prior to the exam, two or more relevant questions were asked,
three or more charts were taken, and the exam was recorded.144 However, what
constitutes a “generally accepted” scoring method is not further defined. A “relevant
question” is simply defined as “a clear and concise question which refers to specific
objective facts directly related to the purpose of the examination and does not allow
rationalization in the answer.”145 Even if we were to conclude that these standards are
sufficient to “control[] the technique’s operation,”146 Rule 11-707 is not a national
standard. As both the court in Alexander and Dr. Raskin acknowledged, there is no one
“controlling” industry standard and there may be great differences in “generally accepted
principles.”
143
See, e.g., La. Stat. Ann. §§ 37:2831-2854 (2018); Me. Rev. Stat. tit. 32, §§
7351-7390 (2018); Nev. Rev. Stat. Ann. §§ 648.183-.199 (West 2017); Or. Rev. Stat.
Ann. §§ 703.010-.310 (West 2018); Vt. Stat. Ann. tit. 26, §§ 2901-2910 (2018).
144
N.M. R. Evid. 11-707(C).
145
Id. 11-707(A)(4).
146
Daubert, 509 U.S. at 594.
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It is clear that some aspects of the test lack standards, or at least consistent
standards. Specifically, the formulation and ordering of questions,147 the conducting of
the pretest interview,148 the choice of scoring system,149 and the evaluation of the
examinee’s demeanor150 leave much to the examiner’s discretion. While the superior
court’s finding regarding CQT protocols was not clearly erroneous, we conclude that the
lack of clear controlling standards for CQT administration weighs against its
admissibility.
v. General acceptance
The superior court found that the record is “inconclusive as to whether there
is general acceptance within the relevant scientific community.” The State argues that
CQT polygraphy has not gained general acceptance, while the defendants appear to
argue primarily that “inconclusiveness on this factor goes to the weight and not the
admissibility of the evidence.”
147
See Synnott et al., supra note 36, at 68 (“The number of total questions
asked, the order in which . . . questions are placed and whether any or all questions are
repeated . . . [depend] on the situation, examiner’s preference and the school the
examiner subscribes to.”).
148
Id. at 67 (“[D]epending on the situation, examiner’s personal preferences
and the ‘polygraph school’ the examiner subscribes to, . . . [much of] the pre-test
interview can vary greatly . . . . [and it] can last anywhere between 30 min and 2 h
. . . .”).
149
Id. at 68 (describing examiner discretion to set cut-off points for numerical
scoring systems and outlining several types of computerized scoring systems).
150
See NAT’L RESEARCH COUNCIL, supra note 6, at 16 (“[T]he polygraph
examiner is likely to form impressions of the examinee’s truthfulness, based on the
examinee’s demeanor . . . . These impressions are likely to affect the conduct and
interpretation of the examination and might, therefore, influence the outcome and
the validity of the polygraph examination.”).
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Both Dr. Raskin and Dr. Iacono testified about a variety of surveys
regarding the acceptance of polygraphy. Dr. Iacono also testified about a number of
scientific publications that conclude polygraph examinations are unreliable. Based on
a review of this evidence and literature, it appears that the parts of the scientific
community who regularly utilize polygraphy have — perhaps unsurprisingly — widely
accepted the technique, while the broader scientific community views the technique more
skeptically.151
In light of this record and the scientific literature, the superior court’s
finding that it is “inconclusive” whether polygraphy is generally accepted is not clearly
erroneous. But as the Supreme Court noted in Daubert, “ ‘a known technique which has
been able to attract only minimal support within the community’ may properly be viewed
with skepticism.”152 The Supreme Court’s comment appears particularly apt in this case.
Given the decades-long debate over the validity of polygraph evidence, the apparent lack
of development in the technique as a response to that debate, and the apparently
lackluster support for the technique outside the community of practicing polygraph
examiners, we conclude that this factor also weighs against admitting polygraph
evidence.
vi. Other relevant factors
As noted above, both Daubert and Coon recognize that other factors than
151
We note that under Contreras v. State, 718 P.2d 129, 135 (Alaska 1986),
the “relevant scientific community” for a general acceptance analysis excludes “those
whose involvement with [the technique] is strictly limited to that of practitioner.” This
would not exclude those who, like Dr. Raskin, both conduct research into polygraph
testing and administer polygraph examinations. But it would exclude those who do only
the latter.
152
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594 (1993) (quoting
United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)).
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those discussed above may be relevant in some cases. For example, Coon briefly
mentions the possibility of “ ‘independent’ research funded by tobacco companies”
carrying with it “the danger of a hidden litigation motive.”153 This is a relevant
consideration in this case. Dr. Raskin, who testified at the Daubert hearing in favor of
admitting polygraph evidence, is himself a practicing polygraph examiner and has
financial ties to one manufacturer of polygraphs, earning royalties from the sale of
polygraph machines he invented. Many of the studies cited as approving polygraph
testing as scientifically valid were performed by Dr. Raskin or by other practicing
examiners, and a number of the studies were published in polygraph industry
publications. While we do not entirely discount this research and have examined it on
its merits, we recognize that the polygraph industry has an obvious financial interest in
confirming polygraph testing as valid and promoting its use and admissibility in court.
vii. Conclusion
In light of each of the factors discussed above, we conclude that on the
evidence before us, CQT polygraph testing has not been shown to satisfy the standard
for scientific evidence set forth in Daubert and Coon. We reiterate what we said in
Pulakis: “polygraph proponents have not yet developed persuasive data demonstrating
its reliability.”154 Absent such data, we are unconvinced that the opinion of polygraph
examiners amounts to “scientific, technical, or other specialized knowledge” that “will
assist the trier of fact to understand the evidence or to determine a fact in issue,” as
required under Evidence Rule 702. Our opinion here does not mean that CQT polygraph
testing will never be sufficiently reliable to pass muster as scientific evidence, but absent
substantial evidence demonstrating that CQT polygraph testing produces reliable results
153
State v. Coon, 974 P.2d 386, 395 (Alaska 1999).
154
Pulakis v. State, 476 P.2d 474, 479 (Alaska 1970).
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based on sound, verifiable science, the results of CQT polygraph examinations cannot
be admitted in evidence over objection.
V. CONCLUSION
We REVERSE the judgment of the court of appeals affirming the superior
court’s order admitting Alexander’s polygraph evidence. We REVERSE the superior
court’s order admitting Sharpe’s polygraph evidence. We AFFIRM the superior court’s
order excluding Holt’s polygraph evidence. We REMAND Alexander’s and Sharpe’s
cases to the superior court for further proceedings consistent with this opinion relating
to their respective criminal charges. We also REMAND Holt’s case to the court of
appeals for further proceedings as appropriate on Holt’s remaining points of appeal. We
do not retain jurisdiction.
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