Revisiting the Admissibility of Polygraph Evidence After Daubert
| Publication year | 1996 |
| Pages | 65 |
1996, February, Pg. 65. Revisiting the Admissibility of Polygraph Evidence After Daubert
Imagine that your client has been arrested for burglary in Colorado. During the ensuing interrogation, the lead detective goes so far as to promise that a successful polygraph test will result in dismissal of the charge. Your client decides to submit to the polygraph examination and is deemed to have answered truthfully in denying any participation in the burglary. However, the charges are not dismissed, and the prosecution goes forth.(fn1)
In 1981, the Colorado Supreme Court adopted a per se rule of inadmissibility for polygraph evidence.(fn2) The intervening years, however, have brought numerous changes in the technology of polygraph testing, the accreditation standards for those administering polygraph examinations and the legal framework underlying the Colorado court's 1981 decision. This article examines cases involving the admissibility of polygraph evidence since Daubert v. Merrell Dow Pharmaceuticals, Inc.(fn3) and re-examines the viability of Colorado's People v. Anderson(fn4) decision.
Before discussing the changes taking place relative to polygraph admissibility, it is important to have a basic understanding of its history. The beginning point of such a discussion must be the seventy-year-old, two-page decision in Frye v. United States.(fn5)
During defendant Frye's trial for second-degree murder, the defense offered the testimony of a scientist who had conducted a "systolic blood pressure deception test"---a very early predecessor to the polygraph test. The trial court sustained the prosecution's objections and refused to permit the scientist to testify. The Court of Appeals for the District of Columbia affirmed the trial court's decision and in the process created what has become known as the Frye rule, or "general acceptance test."
In short, the Frye rule provided that before novel scientific evidence is admissible, it must "have gained general acceptance in the particular field in which it belongs."(fn6) Courts have historically relied on the Frye test in determining that polygraph evidence should not be admitted because, for one reason or another, polygraph testing lacked general acceptance as a scientific tool.(fn7)
In 1993, the U.S. Supreme Court ended Frye's reign in the federal courts. Daubert(fn8) involved a suit against a pharmaceutical company to recover damages for birth defects linked to the company's antinausea drug, Bendectin. The specific legal issue addressed was what standard to apply in determining whether an expert could testify regarding the causal connection between the birth defects and the ingestion of Bendectin.(fn9) The Court concluded that the adoption of Rule 702 of the Federal Rules of Evidence ("Fed. R. Evid.") superseded, and replaced, the Frye general acceptance test.(fn10) Under the two-part relevancy analysis of Fed. R. Evid. 702, the question is no longer one of general scientific acceptance, but rather one of whether the expert testimony would assist the trier of fact.
Daubert's repercussions have been felt in a variety of areas, including the area of polygraph admissibility. Relying on Daubert, several federal courts have reconsidered their per se inadmissible rules against polygraph admissibility. Where polygraph evidence was once considered per se inadmissible, several courts now have the discretion to permit its admission.
An example of Daubert's effect on polygraph admissibility is the Fifth Circuit's decision in United States v. Posado,(fn11) which involved the conviction of three individuals on federal cocaine charges. At a suppression hearing in that case, the district court summarily refused to permit polygraph evidence supporting the defendants' contention that they had not consented to a search of their luggage. On appeal, the court noted that polygraph evidence traditionally had been per se inadmissible in the Fifth Circuit. The court concluded, however, that in light of the Daubert decision, the admissibility of polygraph evidence had to be addressed pursuant to the two-part relevancy analysis of Fed. R. Evid. 702.(fn12)
The Fifth Circuit stated that the first question to ask in determining the admissibility of polygraph evidence is whether the proffered evidence possesses sufficient evidentiary reliability to be admissible as "scientific, technical, or other specialized knowledge."(fn13) The second question to determine is whether the proffered evidence is relevant in the sense that it
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