Sisson v. State , 181 Ga. App. 784 ( 1987 )

Birdsong, Chief Judge.

The appellant, Gregory Sisson, was indicted for and convicted of two counts of child molestation. The State offered in evidence the results of a polygraph examination of the appellant, including the opinion of the examiner and the charts upon which he based his opinion. The examiner was a detective for the City of Roswell and had been a polygraph examiner for two years. He had attended a school accredited by the State of Georgia which included a “minimum of 320 hours of classroom study,” and then interned for six months under a person approved by the State Board of Polygraph Examiners. In his opinion, the appellant “was not being truthful” in giving negative responses to questions regarding commission of the offenses charged.

Counsel for the appellant advised the court that his client had successfully passed two polygraph examinations before he consented for him to enter into a stipulation with the district attorney for “admission of the results of the polygraph examination in evidence” at his trial. Appellant’s counsel offered the opinion testimony of two expert witnesses, based on the same charts used by the State’s expert. The trial court refused to admit the testimony of the defense experts. That denial is enumerated as error. Held:

The stipulation entered into between the district attorney and the appellant provided, inter alia, that the State “consented] for the admission of the results of the polygraph examination in evidence at the trial of Defendant on the above charges. . . .” Appellant’s first witness, Dr. Leland Peacock, was Professor of Psychology at the University of Georgia and Chairman of the Psychology Department. His impressive credentials are too extensive to enumerate, but suffice it to say that in addition to his bachelor’s, master’s, and doctorate in Psychology and Physiology, he has been involved in experimentation and research of the polygraph for more than 30 years. His use of a polygraph involved electronic instrumentation involving as many as sixteen different channels of physiological responses recorded upon the graph. The usual “field polygraph,” commonly used by licensed polygraph examiners in Georgia, will have either three or four channels recording “respiration” (breathing), “galvonic skin response” (perspiration), and “cardiovascular” (heart rate and blood pressure) responses. Because of the lack of higher education of the average polygraph examiner, field polygraphs “have to be relatively easy to operate because of this lack of bio-medical electronics sophistication on the part of the user. [The machines] sometimes get carried around in the trunk of a patrol car or whatever, so they have to be pretty rugged and easy to operate . . . and what you lose when you build a rugged and easy to operate instrument ... is sensitivity and accuracy.”

The doctor was very definitive and convincing that “[t]here is no lie detector. . . . No, sir, it cannot detect lies. ... It cannot detect deception. . . . What it can do is assess the degree of emotional arousal. Not the kind of emotion, not whether it’s anger or deception or fear or hatred or disgust, but just general emotional arousal.” The professor also delineated design defects of the “field polygraph” in the underinflated blood pressure cuff, and the so-called automatic adjustment to the galvonic skin response. The doctor cited the continuous study of one particular scientist in this field who devoted his life to determining whether a polygraph could distinguish between one type of emotion and another, such as fear and deception. “[A]t the end of his career, [he] came to the conclusion that you cannot identify a specific emotional state from a pattern of physiological changes” such as those measured by a polygraph. Of great interest was his testimony that only three controlled studies have been conducted on actual criminal cases in which the guilty person was known by a corroborated confession and the innocent parties were known by a corroborated confession. In those three controlled studies, in which the results were subjected to peer review, the maximum validity of the polygraph examination was 63 to 72 percentile. However, what he found so perplexing was not the lack of consistency or accuracy in determining the guilty party, but the fact that “from 38 to 55 percent of the innocent people were called guilty.” It was his opinion that “an innocent person would be better off flipping a coin rather than relying on a polygraph test to establish his innocence.” His opinion, based on the polygraph chart made by the State’s expert, was that “you can’t tell from this kind of record whether the subject is being deceptive or not.” The trial court permitted appellant to perfect the record by letting the remaining expert state his opinion that “there’s no deception indicated on these charts.”

The issue posited by these facts is whether it is reversible error for a trial court to refuse to permit appellant’s expert witnesses to state their opinion to the jury as to what the State’s polygraph charts indicate to them. Those charts were admitted in evidence by the State and three different experts arrived at three different conclusions as to what they showed. And, the trial court denied the jury the opportunity to hear appellant’s expert’s opinions of “the results of the polygraph examination,” which was stipulated by the parties to be admissible.

Although our Supreme Court has stated “that doubt exists as to the complete reliability of lie detector tests, and [they] share at least a modicum of that doubt,” they held “that upon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have.” (Emphasis supplied.) State v. Chambers, 240 Ga. 76, 77 (239 SE2d 324). “The results” of a lie detector test can be interpreted to be (1) the charts resulting from a graphing of the responses of the person tested, and/or (2) the opinion of an expert based on those charts. In the instant case, the trial court took the position that only the opinion of the operator of the polygraph was stipulated to be admissible and absent a stipulation of admissibility of the opinions of the appellant’s experts, their testimony would not be admissible. We find this interpretation of Chambers and the written stipulation of the parties in this case, to be too restrictive.

It is the legislated intent of this state that “[t]he object of all legal investigation is the discovery of truth.” OCGA § 24-1-2. And, the trial court is required to weigh in the balance the rights of the State and the defendant to obtain the truth. Montgomery v. State, 156 Ga. App. 448, 451 (275 SE2d 72). In Sabel v. State, 248 Ga. 10, 17-18 (282 SE2d 61), U. S. cert. den. 454 U. S. 973, our Supreme Court held that under “the due process requirements of Patterson [v. State, 238 Ga. 204 (232 SE2d 233)] and Barnard [v. Henderson, 514 F2d 74 (5th Cir. 1975)] ... [a] criminal defendant on trial for his liberty is entitled on motion timely made to have an expert of his choosing, bound by appropriate safeguards imposed by the court, examine critical evidence whose nature is subject to varying expert opinion. . . . Whether the evidence is ‘critical’ is discussed in White v. Maggio, 556 F2d 1352, 1356 (5th Cir. 1977), and depends upon whether a specific or general request was made.” Implicit within this holding is that such an expert may testify as to his opinion after examination of such “critical evidence.”

In the case at the bar, a specific request was made to admit the testimony of appellant’s experts as to the interpretation of “the re-suits of a lie detector test,” as stated in the stipulation. No one would doubt that “the results of a lie detector test” are subject to “varying opinion.” Here three experts who examined the same charts arrived at three different opinions. We should emphasize that Dr. Peacock did not testify that the results of the test were “inconclusive.” This court has held that such testimony would be without probative value even though the parties stipulated the results would be admissible. Porterfield v. State, 150 Ga. App. 303, 304 (257 SE2d 372). However, we have also held that where one test is “inconclusive” and a second test is deemed to be “deceptive” that the “inconclusive” test is admissible for impeachment, and as tending to show the polygraph is not infallible, and for the purpose of raising a reasonable doubt of defendant’s guilt. Lawson v. State, 162 Ga. App. 579 (292 SE2d 421). Dr. Peacock’s testimony can be interpreted only as his opinion that there is no such machine as a “lie detector,” and such tests indicate only emotional responses, and the type of emotion is not identifiable by the physiological responses recorded by a polygraph. Thus, his opinion that “you can’t tell from this kind of record whether the subject is being deceptive or not,” is translatable to an opinion that the State’s expert is wrong if he says this graph shows “deception.”

We find such evidence to be “critical.” The Supreme Court, in Sabel, supra, referenced White for guidance upon any issue of “criticality” of evidence. The court, in White, concluded that “critical evidence” is not synonymous with “dispositive,” nor did it mean the “most important” evidence, “[ijnstead, it denotes . . . evidence having substantial probative force.” 556 F2d at 1357. “Critical evidence, for purposes of the due process clause, is evidence that, when developed by skilled counsel and experts, could induce a reasonable doubt in the minds of enough jurors to avoid a conviction.” Id. at 1357-1358. The State must have considered the results of this lie detector test as “having substantial probative force” and “critical” to their case, which essentially was a credibility issue, i.e., the credibility of the child who said the defendant committed the acts, versus the credibility of the appellant who denied commission of the acts. The testimony of the child may have been corroborated by evidence of an abrasion at the entrance to her vagina. But the doctor testified the abrasion could have been caused by a finger, either by the defendant or by the child herself. There was testimony that the child had been observed on two occasions, masturbating or playing with herself. We are unable to conclude, as a matter of law, that the testimony of appellant’s expert that the polygraph results showed he was telling the truth when he denied commission of these offenses, could not have induced a reasonable doubt in at least one juror, to avoid a conviction.

The U. S. Supreme Court recognizes that when a state brings its judicial power to bear upon a criminal defendant, “it must take steps to assure that the defendant has a fair opportunity to present his defense. . . . [Fundamental fairness entitles indigent defendants to an adequate opportunity to present their claims fairly within the adversary system. . . .” Ake v. Oklahoma, 470 U. S. 68 (106 SC 1087, 84 LE2d 53, 62). Although this appellant was not indigent, he should have the same opportunity to present his defense within the adversary system. Merely because a party stipulates to admissibility of testimony or evidence, does not deny that party the right to contest the accuracy of that testimony or evidence. For example, if a defendant stipulated that a State Crime Lab ballistics expert would testify that a bullet was fired from a particular weapon, such stipulation would not prevent the defendant from presenting his own expert’s testimony that the same bullet was not fired from that weapon. Admissibility does not equate to incontestability. When the State made a polygraph examination relevant to a defendant’s criminal culpability, as in this case, the testimony of an opposing expert may well be critical to defendant’s ability to present an adequate defense. Hence, whether the defendant was telling the truth during the polygraph examination was therefore a critical issue, particularly in a one-on-one situation. And the polygraph results would be a “significant factor” in the resolution of this issue. As the court in Barnard v. Henderson, supra, observed, “the only means by which the defendant can defend against expert testimony by the State is to offer expert testimony of his own. . . . Fundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing . . . examine a piece of critical evidence whose nature is subject to varying expert opinion.” Id. at 746. And, as stated before, the right to examine the evidence carries with it the concomitant right of the expert to testify as to his findings, for such right to examine would indeed be an empty gesture if the expert is not permitted to testify.

We conclude that the procedure authorized by Sabel is enhanced when a defendant’s experts are permitted to examine and testify as to the accuracy of “the results of the polygraph examination.” If the “results of the polygraph examination” administered by the State’s expert are not subjected to this adversarial process, then the opinion of a State expert who routinely conducts tests for the State would be untouchable. “Even the most dedicated trial judges are bound to overlook meritorious cases without the benefit of an adversary presentation.” Bounds v. Smith, 430 U. S. 817, 826 (97 SC 1491, 52 LE2d 72). We also find a salutory effect upon the procedure set forth in Sabel, by permitting the polygraph examiner’s graphs to be subjected to the scrutiny of another expert. Not only is the accuracy of the expert’s opinion as to a controversial test procedure reviewed, but the State’s expert will know that his conclusions will be subjected to peer review and he cannot cavalierly arrive at a conclusion of “deception” without an adequate foundation being depicted in the graphs.

Decided January 27, 1987 Rehearing denied February 16, 1987

Hence, unless the agreement between the parties expressly excludes examination of a defense expert, we find no reasons in logic or law which would forbid examination and testimony by a defendant’s expert of the results of the polygraph examination. Although such result may not have been anticipated by the State in the instant case, the agreement did not forbid the result we reach. Since the “results of the polygraph examination” were stipulated to be admissible and that stipulation was honored, the defendant was entitled to present his expert’s testimony on the graphs which the State admitted in evidence.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.