State v. Alderete , 86 N.M. 176 ( 1974 )

OPINION

SUTIN, Judge.

Defendant was convicted and sentenced for possession of heroin in violation of § 54-11-23, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, 1973 Supp.). Defendant appeals. We affirm.

A. The results of polygraph examinations were not admissible in evidence.

Defendant moved the court that the results of polygraph (lie detector) examination be admitted in evidence. The State objected because the results were hearsay and the polygraphist was not qualified to testify as an expert.

Defendant tendered the testimony of a polygraphist and the results of his examination. The trial court denied the tender.

We agree with the State’s objection that the polygraphist was not qualified to testify. The polygraphist did not produce his polygraph records in court. Only the results were presented. Neither did the testimony establish that the polygraphic test was accepted as a scientific principle in the expert’s profession.

(1) Qualifications of a polygraphist

The establishment of the qualifications of a polygraphist is very burdensome. “The Polygraphy Act does not apply to research in the fields of medicine or psychology.” Section 67-31A-10, N.M.S.A.1953 (Repl.Vol. 10, pt. 1, 1973 Supp.). For qualifications of a psychologist, see “Professional Psychologist Act,” Sections 67-30-1 to 67-30-17, N.M.S.A.1953 (Repl.Vol. 10, pt. 1, 1973 Supp.).

The Polygraphy Act does not contain qualifications sufficient to meet the test under consideration. The recommended standards have been set by Reid and Inbau, Truth and Deception (1966), 235. These standards have been accepted in the courts. United States v. DeBetham, 348 F.Supp. 1377, 1386 (D.C.Cal.1972), aff’d 470 F.2d 1367 (9th Cir. 1972), cert. denied 412 U.S. 907, 93 S.Ct. 2299, 36 L.Ed.2d 972 (1973).

The trial court said:

In the Court’s opinion, a qualified examiner can be adequately identified without consuming more court time than is presently necessary to qualify any physician or psychiatrist; and an incompetent examiner can be discovered through the ordinary diligence expected of counsel in preparation for cross-examination. Definite standards of examiner qualifications have been recommended for this purpose. For example, Reid and Inbau propose that:

Before permitting the results to be admitted as evidence in any case, however, the courts should require the following: (1) That the examiner pos-

sess a college degree. (2) That he has received at least six months of internship training under an experienced, competent examiner or examiners with a sufficient volume of case work to afford frequent supervised testing in actual case situations.

(3) That the witness have at least five years’ experience as a specialist in the field of polygraph examinations.

(4) That the examiner’s testimony be based upon polygraph records that he produces in court and which are available for cross-examination purposes.

Effective cross-examinations could be based upon such standards, as well as upon the particular examiner’s testing technique and reputation for competence and integrity. Nor should the importance of the last mentioned subject be underestimated in this regard, since the natural desire to protect his most essential reputation, which would be on trial in every case, would necessarily render every examiner most cautious in his diagnoses.

Psychology and physiology are important aspects in qualifying an examiner. The polygraphist did not qualify within the boundaries of the above standards. The results of the examination were not admissible in evidence.

(2) The polygraphic test is now accepted as a scientific principle. Admission is within discretion of trial court.

To date, New Mexico follows the exclusion rule. Evidence of a polygraph examination is not admissible over objection. State v. Chavez, 80 N.M. 786, 787, 461 P. 2d 919 (Ct.App.1969); 82 N.M. 238, 478 P.2d 566 (Ct.App.1970); Chavez v. State, 456 F.2d 1072 (10th Cir. 1972); State v. Varos, 69 N.M. 19, 363 P.2d 629 (1961); State v. Trimble, 68 N.M. 406, 362 P.2d 788 (1961); Annot., 53 A.L.R.3d 1005, 1010 (1973). It may be admitted by stipulation. State v. Turner, 81 N.M. 450, 455, 468 P.2d 421 (Ct.App.1970); State v. Turner, 81 N.M. 571, 576, 469 P.2d 720 (Ct.App.1970).

Trimble, supra, stated, 68 N.M. at page 407, 362 P.2d at page 788, “Presently, the question [on admission of a polygraph test] requires a negative answer.” [Emphasis added]. This means that courts of review must wait until polygraphy is accorded general scientific recognition by psychologists and physiologists. See State v. Lindemuth, 56 N.M. 257, 273, 274, 243 P.2d 325 (1952). “Certain scientific principles are now used in evidence that were not formerly admissible. But such principles were not used until their validity was demonstrated and accepted. Ballistic tests are now admissible . . . . ” State v. Sneed, 76 N.M. 349, 354, 414 P.2d 858, 861 (1966). The results of blood tests are admissible. State v. Sweat, 78 N.M. 512, 514, 433 P.2d 229 (Ct.App.1967). Tests on LSD pills are admissible. State v. Mosier, 83 N.M. 213, 216, 490 P.2d 471 (Ct.App.1971).

We can no longer say “[t]hat poly-graphic evidence is never admissible.” United States v. DeBetham, 470 F.2d 1367 (9th Cir. 1972), supra; United States v. Urquidez, 356 F.Supp. 1363 (D.C.Cal.1973). The State and the defendant can waive their rights to the exclusion of polygraphic evidence. State v. Chavez, 82 N.M. 238, 478 P.2d 566, supra.

We have held that it was in the discretion of the trial court to admit testimony of an experiment, although it was not scientifically accurate. State v. Rose, 79 N.M. 277, 442 P.2d 589 (1968), cert. denied 393 U.S. 1028, 89 S.Ct. 626, 21 L.Ed.2d 571 (1968).

Scientific recognition of polygraphic tests has now arrived. A proper foundation for the testimony must first be established. The polygraphist must be qualified as an examiner. The proposed test must be accepted in his profession. The proposed test must show that it has a reasonable measure of precision in its indications. When this foundation is laid, the admission in evidence of a polygraphic test is within the discretion of the trial court. United States v. Alvarez, 472 F.2d 111, 113 (9th Cir. 1973); United States v. DeBetham, supra; United States v. Lanza, 356 F.Supp. 27, 30 (D.C.Fla.1973); United States v. Urquidez, supra; United States v. Chastain, 435 F.2d 686, 687 (7th Cir. 1970); United States v. Wainwright, 413 F.2d 796 (10th Cir. 1969), cert. denied 396 U.S. 1009, 90 S.Ct. 566, 24 L.Ed.2d 501 (1969); Dabrowski, The Polygraph Revisited : An Argument For Admissibility, 4 Suffolk U.L.Rev. 111 (1969); Kaplan, The Lie Detector: An Analysis Of Its Place In The Law Of Evidence, 10 Wayne L.Rev. 381 (1964).

This rule is fair to the State and the defendant. Each should have the right to rely on the examination. If the poly-graphic test is reliable as to the guilt of the accused, it is equally reliable as to the innocence of the accused. We should no longer deny the State the right to exercise this privilege when a defendant voluntarily submits to the examination. The lie detector test must be voluntary because to compel a person to submit to testing to determine his guilt or innocence, whether willed or not, evokes the spirit and history of the Fifth Amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, 916 (1966).

Affirmed.

It is so ordered.

WOOD, C. J., specially concurring. LOPEZ, J., specially concurring.