Com. v. Mendes

Page 35

547 N.E.2d 35

406 Mass. 201

COMMONWEALTH v. Benjamin MENDES (and eight companion cases ¹).

Supreme Judicial Court of Massachusetts Middlesex.

Argued May 2, 1989.

Decided Dec. 11, 1989.

Corinne Hirsch, Asst. Dist. Atty., for the Com.

Carol A. Donovan, Randolph, Committee for Public Counsel Services, for Benjamin Mendes.

Eric I. Zucker, Boston, for Kenneth Rosenberg.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

In this case, we reexamine the admissibility of polygraphic evidence in criminal trials in this Commonwealth. Persuaded both by the failure of the basic theory of polygraphy to have gained general acceptance among physiological and psychological authorities, and by the nearly unanimous rejection of such evidence by courts throughout the United States (at least in the absence of stipulation), we conclude that polygraphic evidence is inadmissible in criminal trials in this Commonwealth either as substantive proof of guilt or innocence or as corroboration or impeachment of testimony.

The defendant Mendes is charged with rape of a child, indecent assault and battery on a child under sixteen, and rape of a child by force. The defendant Rosenberg is charged with rape of a child (two indictments), incest, and indecent assault and battery on a child under fourteen (three indictments). The defendants moved for court-ordered polygraphic examinations. Also, the defendant Mendes filed a motion seeking admission in evidence of the results of his previously court-ordered polygraph test. The motions were heard together by a judge of the Superior Court at an evidentiary hearing that consumed four days.

The judge issued a thorough memorandum in which he discussed the evidence at length, including numerous written studies, and set forth his findings and conclusions. He concluded as follows: "[T]he polygraph is sufficiently reliable to warrant its continued limited admissibility provided that any court-ordered examination is subject to testing by the traditional tools of the adversary system; namely discovery, cross-examination, and rebuttal. Discovery of a defendant's previous polygraph history, his knowledge of countermeasures, and his criminal, social and psychiatric history might provide evidence for meaningful cross examination and a basis for expert rebuttal and surrebuttal testimony. However, in order to give fair and appropriate weight to the results of an individual court-ordered test, the cross-examination of the defendant and the polygraph operator on these issues could be extensive. An expert challenging the test results in rebuttal and another supporting the test results in surrebuttal may cover the same ground and, in fact, parallel the four day hearing conducted by this court. In essence, this Court is concluding that the polygraph is valid, but that the necessary evaluative time and resources may be so substantial, that an appellate authority may, on policy grounds, decide that it is not worth the price." (Emphasis in original.) ² The judge concluded as follows: "With full discovery of the defendant's polygraph history and a broadened line of inquiry at trial concerning this history, the Court finds that the polygraph, although it has not gained general acceptance in the scientific community, is sufficiently reliable for its continued use under the procedures authorized by Commonwealth v. Vitello [, 376 Mass. 426, 381 N.E.2d 582 (1978) ].... Broadening the scope of the in-court inquiry concerning the weight to be given the court-ordered test will place significant burdens on the system which should be addressed by an appellate authority as a matter of policy." ³

The judge allowed each defendant's motion for a court-ordered polygraph examination, subject to conditions, among which are the requirements that the defendant file with the clerk "the results of any prior polygraphy test or tests he has taken along with an affidavit detailing his previous experience with the polygraph," and that those results and affidavit "be made available to the court-ordered polygrapher."

At the Commonwealth's request, the judge reported the following questions of law to the Appeals Court:

"1. Should the polygraph continue to be admissible for the limited purpose of corroborating or impeaching a defendant's trial testimony in view of the validity research and expert opinion since the decision in Commonwealth v. A Juvenile, 365 Mass. 421 [313 N.E.2d 120] (1974)?

"2. If the answer to one above is yes: 'In view of the research and expert opinion, does the taking of a private polygraph examination invalidate a later court-ordered test?'

"3. If the answer to two above is no: 'Can the trial judge order disclosure of the results of a privately retained preliminary test as well as other information concerning previous polygraph knowledge and experience possessed by the defendant?'

"4. If the answer to three above is yes: 'Is this information admissible at trial on the issue of the weight to be given to the court sanctioned test?'

"5. If the answer to one above is yes: 'Do special circumstances such as the nature of the offense charged, the criminal and psychiatric history of the defendant, or the use of alcohol or drugs at the time of the events invalidate the test?' "

We granted the Commonwealth's application for direct appellate review. For the reasons stated below, we answer the first question "no; evidence that a defendant has taken a polygraphic examination, or testimony as to the results of such an examination is inadmissible at a criminal trial." Thus, we need not answer the remaining questions. We vacate the order allowing the defendants' motions for court-ordered polygraph tests.

In Commonwealth v. Fatalo, 346 Mass. 266, 191 N.E.2d 479 (1963), we first addressed the question whether the results of a polygraph test should be admissible in evidence at a criminal trial. In answering that question in the negative, we adopted the rule articulated in the landmark case of Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), that, "while courts will go a long way in admitting expert testimony deduced from a well-recognized 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." In rejecting an early predecessor of polygraphy, the Frye court stated: "We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." Id. In Fatalo, supra, 346 Mass. at 270, 191 N.E.2d 479, we, too, concluded that the polygraph test had not yet been accorded general scientific recognition, and that, therefore, the trial judge had properly excluded such evidence.

"The requirement, as in the Frye and Fatalo cases of general acceptance in the scientific community assures that those most qualified to assess the general validity of a scientific method will have the determinative voice. See United States v. Addison, 498 F.2d 741, 743-744 (D.C.Cir.1974)." Commonwealth v. Lykus, 367 Mass. 191, 202, 327 N.E.2d 671 (1975). Those most qualified are not judges, but rather are scientists with special knowledge who are most familiar with the method or theory in question. Id. at 203, 327 N.E.2d 671. "Judicial acceptance of a scientific theory or instrument can occur only when it follows a general acceptance by the community of scientists involved." Id. at 196, 327 N.E.2d 671, quoting Commonwealth v. Fatalo, supra 346 Mass. at 269, 191 N.E.2d 479. In determining whether general acceptance by the appropriate scientific community has occurred, "we may properly consider not only the testimony of experts in the record before us but also articles written by experts and the conclusions of other courts." Commonwealth v. Kater, 388 Mass. 519, 527, 447 N.E.2d 1190 (1983). See Commonwealth v. Whynaught, 377 Mass. 14, 17-18, 384 N.E.2d 1212 (1979).

We have applied the Frye rule not only in the polygraphy context, see Fatalo, supra, but in numerous other contexts as well. The rule is imbedded in our law. See, e.g., Commonwealth v. Gomes, 403 Mass. 258, 265-266, 270, 526 N.E.2d 1270 (1988) (electrophoresis in blood-grouping analysis); Commonwealth v. Beausoleil, 397 Mass. 206, 215, 490 N.E.2d 788 (1986) (human leukocyte antigen [HLA] testing in paternity cases); Commonwealth v. Kater, supra 388 Mass. at 531-534, 447 N.E.2d 1190 (hypnotically aided testimony); Commonwealth v. Whynaught, supra 377 Mass. at 18, 384 N.E.2d 1212 (radar speedmeter); Commonwealth v. Lykus, supra 367 Mass. at 205, 327 N.E.2d 671 (spectrographic voice analysis). Apparently, the Chief Justice would have us abandon that long-standing rule. We are not persuaded to do so.

More than a decade after our decision in Fatalo, which was based on our acceptance of the Frye rule, we deviated from the Frye rule. In Commonwealth v. A Juvenile, 365 Mass. 421, 429, 313 N.E.2d 120 (1974), we stated that, "despite very significant progress in recent years," polygraphy was still insufficiently reliable to satisfy the Fatalo requirements for general admissibility. Nevertheless, the court, with three Justices dissenting, concluded "that polygraph testing has advanced to the point where it could prove to be of significant value to the criminal trial process if its admissibility initially is limited to carefully defined circumstances designed to protect the proper and effective administration of criminal justice." Id. 365 Mass. at 425, 313 N.E.2d 120. We subsequently observed in Commonwealth v. Vitello, 376 Mass. 426, 442, 381 N.E.2d 582 (1978), that "we recognized in A Juvenile that failure to achieve the standard of general acceptance need not freeze the evidentiary development of the...