-
Guilio J. and Edith Conti, Petitioners v. Commissioner of Internal Revenue, RespondentConti v. CommissionerDocket No. 15131-90September 29, 1992, Filed
United States Tax Court *76
Results of petitioners' polygraph examinations will not be considered by the Court in the disposition of this case .To corroborate a cash hoard claim, Ps offered into evidence the results of polygraph tests which were administered to them unilaterally, without notice to respondent.
Held, results of petitioners' polygraph tests are inadmissible.Mark C. Pierce, Robert B. Pierce, andPaul T. Mengel, for petitioners.Dennis C. Driscoll, for respondent.Colvin,Judge .COLVIN*370 Colvin,
Judge: This case is before us on petitioners' offer into evidence of results of polygraph tests and respondent's objection thereto. Both parties called expert witnesses relating to whether polygraphy is generally accepted by the relevant scientific community.
Frye v. United States, 293 F. 1013">293 F. 1013*371 Respondent determined petitioners had a $ 150,000 cash hoard as of December 31, 1985. Petitioners claim that the results of polygraph tests administered to each of them corroborate their claim that they had an $ 800,000 cash hoard.
In this opinion we decide whether the results of polygraph tests administered to petitioners without notice to respondent are admissible. We hold they are not. We will decide the remaining issues in the case by separate opinion.
Unless otherwise indicated, all section references are to the Internal Revenue Code for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
1.
Petitioners and Their Family Petitioners are husband and wife who resided in Birmingham, Michigan, when the petition was filed. Mr. Conti worked for Ford Motor Co. for over 48 years, retiring in 1985. Mrs. Conti is a high school graduate. She handled*78 the family finances, including banking. During the years in issue, petitioners bought, renovated, and sold real estate.
2.
Polygraphy Generally Petitioners offered into evidence results of polygraph examinations in an attempt to corroborate their cash hoard claim. A polygraph examination measures the examinee's physiological reactions to questions. It measures respiration, perspiration, and heartbeat. The polygraph instrument has a pneumograph, which measures respiration, a galvanometer, which measures skin's resistance to electricity, and a cardiosphygmograph, which measures a combination of blood volume, blood pressure, and heart rate.
Respiration is recorded using two rubber tubes around the upper and lower body. Respiration is measured on both the upper and lower body because people breathe differently. Resistance to electricity in the skin is measured by placing electrodes on two finger tips and passing a small electrical *372 current through the fingers. Cardiovascular activity is measured by using a blood pressure cuff.
These measures are simultaneously recorded by pens on a moving paper chart. The examiner marks the chart to indicate when a question has*79 been asked, and when movements such as coughs occur. The respiratory, galvanic, and cardiovascular scores are combined with the three measures and weighted equally.
The polygraph examiner designs the questions based upon the relevant facts and the examinee's background and verbal skills.
Examiners in tests like the ones given to petitioners use three types of questions: irrelevant (e.g., name), control (relating to the subject of the examination, but not the key question), and relevant or critical questions (e.g., did you rob the store?). The polygraph examiner infers from the scores whether the examinee was deceptive or truthful, or whether the test is inconclusive.
Countermeasures can sometimes be employed by an examinee to affect the examinee's physiological responses to polygraph examination questions. Up to 25 percent of deceptive persons pass, and up to 50 percent of truthful persons fail. An honest subject is more likely to fail (a false positive) than a deceptive person is to pass (a false negative).
There is widespread use of polygraph examinations in and out of government.
3.
Petitioners' Polygraph Examinations Without notifying respondent's counsel, petitioners' *80 counsel arranged for petitioners to take polygraph examinations. They were performed by Lawrence Wasser of Wasser Consulting Services, Inc., on August 6, 1990.
Mr. Wasser is a well-qualified polygraph examiner. He has extensive polygraph-related employment experience in and out of government and numerous leadership positions in national and State polygraphy associations.
Petitioners' counsel told Mr. Wasser about this case and gave him copies of petitioners' tax returns for 1985, 1986, and 1987, the notice of deficiency, and the petition.
Mr. Wasser used the zone comparison technique with control questions. He conducted preexamination interview discussions with petitioners, and then developed the control *373 and relevant questions. He discussed the topics of the control questions with petitioners.
Mr. Wasser concluded that the examinations showed both petitioners were not deceptive. After Mr. Wasser advised petitioners' counsel of his conclusion, petitioners' counsel told respondent's counsel that the examinations had been performed, and showed that petitioners were not being deceptive.
OPINION
To corroborate their cash hoard claim, petitioners offered into evidence the*81 results of polygraph examinations which were administered to them unilaterally, without prior notification to respondent. We hold that these polygraph examination results are inadmissible.
1.
Federal Rules of Evidence and the Frye General Acceptance Standard Rule 702 of the Federal Rules of Evidence provides:If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Thus, "Opinion testimony of an expert is admissible if and because it will assist the trier of fact to understand evidence that will determine a fact in issue."
Parker v. Commissioner, 86 T.C. 547">86 T.C. 547This Court applies the rules of evidence applicable in trials without jury in the U.S. District Court for the District of Columbia. Sec. 7453. These include the Federal Rules of Evidence.
Snyder v. Commissioner, 93 T.C. 529">93 T.C. 529Logan Square Auto Mart, Inc. v. Commissioner, 291 F.2d 136">291 F.2d 136T.C. Memo. 1960-6 . However, as discussed below, petitioners' polygraph examinations would not be admissible under precedents of the U.S. Court of Appeals for the District of Columbia, or the Sixth Circuit, the circuit to which this case is appealable.In the Court of Appeals for the District of Columbia a scientific test must be generally accepted in the particular field *374 in which it belongs to be admissible.
Frye v. United States, 293 F. 1013">293 F. 1013Frye, a murder prosecution, the court refused to admit results of a systolic blood pressure test, a precursor to the polygraph test. The court stated:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized*83 scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. [Frye v. United States, supra at 1014We disagree with petitioners' assertion that the standard enunciated in
Frye v. United States, supra , should be rejected because it is outdated. The Court of Appeals for the District of Columbia and the Court of Appeals for the Sixth Circuit continue to apply theFrye standard of general acceptance in the relevant scientific community for admission of scientific evidence.Novak v. United States, 865 F.2d 718">865 F.2d 718United States v. Shorter, 809 F.2d 54">809 F.2d 54United States v. Brady, 595 F.2d 359">595 F.2d 359United States v. Brown, 557 F.2d 541">557 F.2d 541United States v. Addison, 498 F.2d 741">498 F.2d 741United States v. Stifel, 433 F.2d 431">433 F.2d 431Frye requirement of general acceptance in the relevant scientific field assures that those most qualified to assess the general validity and reliability of a scientific method have the determinative voice.United States v. Shorter, supra at 60United States v. Addison, supra at 744We applied the
Frye standard inPacella v. Commissioner, 78 T.C. 604">78 T.C. 604Frye standard.The court in
United States v. Bursten, 560 F.2d 779">560 F.2d 779
*85 *375 Among these are the distrust of the accuracy of results based upon a nexus between autonomic discharge and veracity, this skepticism being fueled by disagreement among experts in the field. Also, judges loathe the spector [sic] of trial by machine, wherein each man's sworn testimony may be put to the electronic test. Finally, there exists the apprehension that jurors will abdicate their responsibility for determining credibility, and rely instead upon the assessment of a machine.The proponent must show that the techniques or procedures involved are "reliable and sufficiently accurate."
United States v. Brown, supra at 556Peteet v. Dow Chemical Co., 868 F.2d 1428">868 F.2d 1428United States v. Brown, supra .United States v. Franks, 511 F.2d 25">511 F.2d 25Deciding credibility of witnesses and weight of testimony is the province of the trial court. It is our task to decide the credibility of any lay or expert witness based upon objective facts, the reasonableness of the testimony, the consistency of the statements made by the witness, and, in some cases, the demeanor of the witness.
Quock Ting v. United States, 140 U.S. 417">140 U.S. 417Wood v. Commissioner, 338 F.2d 602">338 F.2d 60241 T.C. 593">41 T.C. 593 (1964);Pinder v. United States, 330 F.2d 119">330 F.2d 119Concord Consumers Housing Cooperative v. Commissioner, 89 T.C. 105">89 T.C. 105Friedman v. Commissioner, T.C. Memo 1992-89">T.C. Memo. 1992-89Petitioners assert that evidence of general acceptance in the appropriate scientific community may be found in a 1983 Gallup organization survey of a random sample of members of the Society*87 for Psychophysiological Research. Sixty percent of those responding to the survey believed polygraph testing is a useful diagnostic tool when considered with other available information. This poll does not prove general acceptance in the appropriate scientific community as required by
Frye. Dowd v. Calabrese, 585 F. Supp. 430">585 F. Supp. 430Dowd v. Calabrese, supra at 432United States v. Williams, 583 F.2d 1194">583 F.2d 1194Frye criteria as shown by the testimony of expert witnesses, Drs. Frank Horvath and Stanley Abrams for petitioners and Dr. William Iacono for respondent. The experts estimated a range of polygraph accuracy from 51 to as high as 98 percent, depending on a wide variety of factors. Petitioners argue that there was substantial agreement between all experts who testified as to the general reliability of polygraphy, thus meeting theFrye standard. We disagree. Likewise, petitioners read too much into Dr. Iacono's affirmative response to their question on cross-examination: "In other words, is it [polygraphy] a tool that could be used in determining with some degree of reliability truth or deception?" As an example of usefulness, Dr. Iacono said that a polygraph examination may induce some people to confess to wrongdoing. Dr. Iacono also said that the accuracy of a polygraph test is based on faulty theoretical assumptions. The faulty assumptions are: (1) The examiner can formulate questions that the examinee will answer deceptively; (2) all innocent examinees will be more disturbed by the control than by the relevant questions; (3) all deceptive*89 examinees will be more disturbed by the relevant than by the control questions; and (4) polygraph testing is objective.Petitioners argue that the widespread use of polygraph examinations by government agencies and business shows they are reliable. We disagree. We do not believe that wide-spread use of polygraph testing in business and government shows that polygraph testing enjoys general acceptance by the relevant scientific community. Instead, we believe there continues to be a bona fide debate in that community about polygraph accuracy. Therefore, we conclude that petitioners have not shown us that results of polygraph examinations *377 are sufficiently established to have gained general acceptance in the relevant scientific community.
Expert testimony must be relevant.
Fed. R. Evid. 401 . Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.Fed. R. Evid. 401 . Petitioners argue that polygraph results are more reliable than not, and thus are relevant underrule 401 of the Federal Rules of Evidence. However, *90 not all relevant evidence is admissible. For example, even though relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.Fed. R. Evid. 403 . "[P]olygraph evidence should not be admitted, even for limited purposes, unless the trial court has determined that the 'probative value of the polygraph evidence outweighs the potential prejudice and time consumption involved in presenting such evidence.'"United States v. Miller, 874 F.2d 1255">874 F.2d 1255Brown v. Darcy, 783 F.2d 1389">783 F.2d 1389Frye standard is not met and that the polygraph tests are not admissible underrule 702 of the Federal Rules of Evidence , we need not decide whether they are also inadmissible underrule 403 of the Federal Rules of Evidence. 2.
Unilateral Polygraph Testing Even if polygraph testing were generally accepted in the appropriate scientific community, the results*91 here would be inadmissible. That is because petitioners arranged unilaterally to take the polygraph tests without informing respondent. Mr. Wasser concluded the test showed petitioners' cash hoard claim was truthful. Petitioners then reported the results to respondent. While results of polygraph tests may be admissible by stipulation of the parties, admission of polygraph tests administered unilaterally are not admissible.
Wolfel v. Holbrook, 823 F.2d 970">823 F.2d 970Barnier v. Szentmiklosi, 810 F.2d 594">810 F.2d 594Poole v. Perini, 659 F.2d 730">659 F.2d 730Dowd v. Calabrese, supra at 431State v. Dean, 103 Wis. 2d 228">103 Wis. 2d 228United States v. Piccinonna, 885 F.2d 1529">885 F.2d 1529In
United States v. Tucker, 773 F.2d 136">773 F.2d 136
The lie detector*92 does not peer into the mind; it is a test of (relative) anxiety, and if the person taking the test has nothing to lose and everything to gain, he may not be anxious and his passing the test may prove nothing. Whatever the force of this doubt, it is readily allayed by agreeing to allow the government to put the test results, whatever they may be, into evidence if it wants; and a defendant who refuses to make such an agreement is in a poor position to challenge the district court's exercise of its discretion to refuse to admit the results.Similarly, the court in
Dowd v. Calabrese, supra at 433Finally, in
State v. Dean, 307 N.W.2d at 637
encourages discussion and eventual agreement with regard to not only the general subject of the reliability of polygraph testing but also more specific*93 subjects such as the qualifications required of the examiner, the designation of the examiner, the phrasing of the test questions, and the specification of the conditions under which the test is to be given.We note that the U.S. Court of Appeals for the District of Columbia has recently said that
Frye involved a criminal trial, and declined to decide whetherFrye 's "general acceptance" requirement should be limited to criminal cases, and a less demanding standard, such as "substantial acceptability" applied in civil cases.Kropinski v. World Plan Executive Council-U.S., 853 F.2d 948">853 F.2d 948We conclude that the results of the polygraph examinations of petitioners are not admissible. We need not decide whether the procedures used in the actual examinations of petitioners were reliable.
*379 Upon due consideration of the foregoing,
Results of petitioners' polygraph examinations will not be considered by the Court in the disposition of this case .Footnotes
1. This Court has not previously considered the admissibility of polygraph examination results where taxpayers have attempted to show that they meet the criteria in
Frye v. United States, 293 F. 1013">293 F. 1013Malandro v. Commissioner, T.C. Memo. 1989-135Rossmann v. Commissioner, T.C. Memo. 1984-231Grosshandler v. Commissioner, 75 T.C. 1">75 T.C. 1Parker v. Commissioner, T.C. Memo 1976-225">T.C. Memo. 1976-225National Home Products, Inc. v. Commissioner, 71 T.C. 501">71 T.C. 501Barrier v. Commissioner, T.C. Memo. 1983-258Estate of Vella v. Commissioner, T.C. Memo. 1982-73Reno Turf Club, Inc. v. Commissioner, T.C. Memo. 1979-381↩2. We do not reject the
Frye standard as inUnited States v. Piccinonna, 885 F.2d 1529">885 F.2d 1529
Document Info
Docket Number： Docket No. 15131-90
Citation Numbers： 99 T.C. 370, 1992 U.S. Tax Ct. LEXIS 76, 99 T.C. No. 20
Judges： Colvin
Filed Date： 9/29/1992
Precedential Status： Precedential
Modified Date： 10/19/2024