Commonwealth v. Vitello , 376 Mass. 426 ( 1978 )

Quirico, J.

(concurring in the result). In deciding the case of Commonwealth v. A Juvenile, 365 Mass. 421 (1974), this court with three Justices dissenting, said at 426 that "if a defendant agrees in advance to the admission of the results of a polygraph test regardless of their outcome, the trial judge, after a close and searching inquiry into the qualifications of the examiner, the fitness of the defendant for such examination, and the methods utilized in conducting the tests, may, in the proper exercise of his discretion, admit the results, not as binding or conclusive evidence, but to be considered with all other evidence as to innocence or guilt.”

In the present case the defendant agreed in advance to such a test and the admission of the results thereof. The trial judge made the required "close and searching inquiry” and then exercised his discretion by admitting evidence of the test results as part of the Commonwealth’s case in chief. In doing so he rejected the contention of the defendant that such evidence may be admitted only for the limited purpose of impeaching the defendant and therefore only after he has testified. The judge imposed no limitations on the purposes for which the jury might consider the evidence.

Four of the Justices conclude that the judge committed error in admitting the evidence as part of the Commonwealth’s case in chief, and they conclude further that the test results would be admissible for the limited purpose of impeaching the defendant if he testified. That is the view expressed in the opinion by Justice Liacos. Justice Kaplan states his concurrence therewith in a separate opinion, but "with misgivings as to whether the analysis would not justify rather more stringent limitations.”

Two of the Justices who joined in the court’s opinion in Commonwealth v. A Juvenile, supra, dissent in the present case, expressing the view that the defendant, having stated in writing before taking the test "that he agrees to allow the results of his polygraph examination to be admitted into evidence even if the results are unfavorable to him, and he waives his right against self-incriminatian,” should be held bound by his agreement.

I concur with the conclusion that it was error for the judge to admit the. polygraph test results in evidence and with the order that judgment be reversed and a new trial ordered. However, I do not concur with the further conclusion that at any new trial the test results would be admissible even for the limited purpose of impeaching the defendant if he should testify. The reasons for my position are the same as those stated in my dissenting opinion, in which I was joined by Justices Reardon and Kaplan, in Commonwealth v. A Juvenile, supra at 441, and those stated by Justice Kaplan in his dissenting opinion, in which Justice Reardon and I joined in the same case, at 452.

The door to the admissibility of evidence of polygraph test results was opened by this court, by a majority of one, in Commonwealth v. A Juvenile, supra, notwithstanding the following statement by the court, at 425 of that opinion: “In Commonwealth v. Fatalo, [346 Mass. 266 (1963)], we held that the results of polygraph tests were not admissible as evidence in a criminal case because the test had not yet achieved general acceptance by the scientific community as a reliable method for determining whether an individual is telling the truth. While not establishing universal scientific approval of a demonstration of infallibility as prerequisites to admissibility of polygraph test results, we felt that the results could not be admitted until the 'substantial doubts which presently revolve about the polygraph test’ were resolved. 346 Mass, at 270.... Although we acknowledge that... scientific and legal developments [since the Fatalo decision] indicate that the polygraph is making progress in a hoped for evolution toward complete evidentiary recognition, we nevertheless are unwilling to say at this time that the standard in the Fatalo case has been met and that the polygraph test results should henceforth be subject to the same rules of evidence applicable to other forms of acceptable expert scientific evidence.” Again, in deciding the present case, the court says, supra at 430-431, "Although the instant case and the Moynihan case indicate that the time has come to elaborate on the holding of A Juvenile, we emphasize that this is not an appropriate occasion to reexamine the type of factual questions presented to and considered by this court in Fatalo and A Juvenile. Specifically, no evidence has been submitted on the question of the scientific reliability or acceptability of the polygraph method. Rather, we accept as current and valid the finding of the court in A Juvenile that the 'general acceptance’ standard of Fatalo has not yet been achieved.”

Thus, fifteen years after the decision in Fatalo, and four years after the decision in A Juvenile, this court, in the opinion by Justice Liacos, still accepts "as current and valid the finding of the court in A Juvenile that the 'general acceptance’ standard of Fatalo has not yet been achieved.” Since "no evidence has been submitted [in the present case] on the question of the scientific reliability or acceptability of the polygraph method,” it necessarily follows, in my opinion, that the evidence of polygraph tests was improperly admitted and that the defendant is entitled to a new trial.

The opinion by Justice Liacos contains a long and scholarly discussion of the limitations which should be placed on the use of this type of evidence. I do not disagree with the discussion, but I doubt its applicability to the present case in view of the total absence of evidence that the testimony in question meets the Fatalo test for admissibility. I am not content with simply limiting the purposes for which such evidence, if admitted, may be considered by the fact finders. I would (a) urge instead the reconsideration of our holding in A Juvenile, and (b) renew the suggestion that a study be undertaken by competent persons, under the auspices of the judiciary, the bar, the Legislature, or other appropriate bodies, to investigate and report on the question whether polygraph tests and the interpretation of the results thereof meet the Fatalo test, i.e., whether they have achieved general acceptance by the scientific community as a reliable method for determining whether an individual is telling the truth. Until that is attempted, I would not continue to hold out hope to defendants in criminal cases that there is any short cut to our approval of the use of polygraph test evidence, even for the limited purpose of impeachment or corroboration of testimony by the defendant.