January 2014 - Pg 9-Attorney Question
Attorney Question Of The Month
This month’s column completes the topic started last month, drawn from an exchange with an Affiliated Attorney who asked the other Affiliates the following series of related questions–
Would you allow a client who used deadly force in self defense to be administered a polygraph, voice stress analysis, hypnosis, eye examination, blood analysis and/or psychiatric evaluation. When and why?
Would you allow the client to perform a test of shooting or weapon manipulation skill? Are the results of such evaluations presented to the grand jury or admissible at trial in your jurisdiction? Do prosecutors use them in making charging decisions? If you do this kind of testing on your own are the results discoverable by the state in a criminal case? In a civil liability trial?
We were very interested in the questions our Affiliated Attorney from FL outlined, and even more fascinated by the answers submitted by other Affiliated Attorneys. We think you will find their responses instructive, too.
James B. Fleming
Fleming Law Offices, P.A.
P. O. Box 1569, Monticello, MN 55362
That’s not one question; that’s 22 separate questions that are each very difficult to answer, in the absence of a significant amount of additional context.
Polygraph test results are uniformly inadmissible in court across the country. And, interpretation of results is at the mercy of the skills and the mindset of the examiner. Some are pretty good, and some are absolutely horrible, and at best, they are guessing. It is not a “lie detector.” I cannot think of a single situation where I would allow such a thing.
Voice stress analysis? Not if it were to cost me my life. “Voice stress analysis is a fraud. It has zero validity,” said David T. Lykken, a psychology professor emeritus at the University of Minnesota in Minneapolis and author of the book A Tremor in the Blood: Uses and Abuses of the Lie Detector.
A 1996 Department of Defense Polygraph Institute study of the computer voice stress analyzer found that the device performs no better than chance in detecting deception. In other words, guessing or flipping a coin would be as accurate as the test. Based on this study, the Department of Defense, the Central Intelligence Agency and the Federal Bureau of Investigation do not use voice stress tests.
Some jurisdictions still employ the Frye test:
When deciding whether to admit expert scientific testimony, federal judges must consider whether:
1. It is based on a theory or technique that can be and has been tested;
2. Those tests were subject to peer review;
3. The technique has a high known or potential rate of error; and
4. The theory is generally accepted within the scientific community.
States that still employ the Frye test are: California, Illinois, Kansas, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington.
In other jurisdictions, the Frye test has been supplanted by the Daubert test, which is pretty complicated, but resulted in amendment of Rule 702 of the Rules of Evidence, which reads:
“Rule 702. Testimony by Experts: 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
It is this requirement under either test that would likely prevent voice stress tests from being admissible. Experts are split as to whether the technology is reliable.