Alaska Court of Appeals Deems Polygraph Evidence Admissible (or Not?)

In unrelated cases, Thomas Henry Alexander and James Griffiths were charged with sexual abuse of a minor. 1/ They each hired David Raskin, an emeritus professor of psychology at the University of Utah, to conduct a polygraph examination. Dr. Raskin determined that “there is a high likelihood” that Alexander and Griffith were truthful when they denied committing the crimes. He stated that his “confidence in these conclusions exceeds 90 percent.”

At a consolidated hearing on whether polygraph evidence meets the state's standard for the admissibility of scientific evidence

"Dr. Raskin testified that if polygraph examinations are properly conducted using the “control question” technique, one would “conservatively” expect polygraph examinations to be 90 percent accurate (or more) in assessing truth-telling and lying. More specifically, Dr. Raskin pointed to studies which apparently demonstrated that the accuracy rate of polygraph examinations was between 89 and 98 percent."

Of course, there is more than one “accuracy rate” that affects the probative value a polygraph finding. Both the sensitivity and specificity of the classifications must be considered. Presumably, Dr. Raskin testified that both the probability that a subject will be classified as deceptive when engaged in deception (the sensitivity) and the probability that a subject will be classified as truthful when not engaged in deception (the specificity) were in the 0.89 to 0.98 range.

The state countered with testimony from another psychologist, William Iacono, Distinguished McKnight University Professor at the University of Minnesota:

"Dr. Iacono testified that the better-conducted studies of polygraph examinations showed that these examinations had accuracy rates of between 51 percent (essentially, a coin flip) and 98 percent, with average results being about 70 percent accurate."

The two superior court judges decided to admit the evidence but only if each defendant submitted to an additional polygraph examination by an examiner of the State's choosing and testified submit to cross-examination at trial. They

"concluded that even if Dr. Iacono's figures were closer to the truth, the accuracy rate for the “control question” form of polygraph examination was still in line with the accuracy rates of other commonly admitted forms of scientific evidence—evidence such as fingerprint analysis, handwriting analysis, and eyewitness testimony."

Treating eyewitness testimony as a form of scientific evidence is odd, and one would hope that the specificity (true negative) rate of fingerprint and handwriting analysis is closer to Dr. Raskin’s understanding of polygraph specificity than to Dr. Iacono’s. And, when Griffith took the state-administered polygraph examination, he “apparently failed the exam” and then pleaded guilty.

The court of appeals upheld the admission of Dr. Raskin’s testimony. But it complained that under the “quite deferential” abuse-of-discretion standard that it was required to use,

"the two judges in this case might easily have reached differing conclusions regarding the scientific validity of polygraph examinations, even though they heard exactly the same evidence. And if the two judges had reached different conclusions, we apparently would have been required to affirm both of the conflicting decisions ... ."

Because this result would be “illogical and unfair,” the opinion urged the Alaska Supreme Court to revisit the issue of the standard of review for Daubert rulings—and to declare that on appeal, a method’s scientific validity must be determined de novo rather than only for an abuse of discretion.

Although the de novo rule is appealing and has a substantial following in the state courts, the problem of conflicting rulings on polygraph evidence can be handled another way. Even though there is at least a modicum of probative value to some polygraph testing,

"opening up the matter to the discretion of the trial courts—without providing more detailed standards than the usual balancing prescription—could lead to untoward results. ... Whether polygraph testimony should be admitted is doubtful, but if it is to be received, clear standards should be developed as to whether such testimony is admissible solely for impeachment purposes, how important the testimony must be in the context of the other evidence in the case for admissibility to be warranted, what level of training and competence examiners should have, what precautions should be taken against deceptive practices on the part of examinees, and what procedures would be best to give an independent or opposing expert a meaningful opportunity to view or review the examination and analysis. When all is said and done, the game simply does not seem worth the candle. A categorical rule of exclusion for polygraph results is a logical and defensible corollary to the general principles of relevancy." 3/

Notes

1. State v. Alexander, Nos. A–11423, A–11433, 2015 WL 9257270 (Alas. Ct. App. Dec. 18, 2015).
   
2. In State v. Coon, 974 P.2d 386, 395–98 (Alaska 1999), Alaska adopted the scientific-soundness standard articulated in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
   
3. McCormick on Evidence § 206(A) (7th ed. 2013). See also State v. Porter, 698 A.2d 739, 768-69 (Conn. 1997) ("admission of the polygraph test would be highly detrimental to the operation of Connecticut courts, both procedurally and substantively. ... [A]ny limited evidentiary value that polygraph evidence does have is substantially outweighed by its prejudicial effects. We therefore reaffirm our per se rule against the use of polygraph evidence in Connecticut courts."); Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 46 A.3d 891, 901 (Vt. 2012) (because the "limited, if not absence of, probative value is substantially outweighed by risks of confusion, delay, and time wasted on collateral issues related to variables in administration of the polygraph[, t]here was no error in the trial court's per se exclusion of polygraph evidence under Rule 403[, and] the trial court was not required to conduct a Daubert hearing to assess its reliability under Rule 702."). Being founded in part on the reasonable judgment that the evidence uniformly is low in probative value, the "per se" rule constitutionally can be applied to exclude evidence that a defendant in a criminal case passed a polygraph test. United States v. Scheffer, 523 U.S. 303 (1998); Porter, 698 A.2d at 777-79; People v. Richardson, 183 P.3d 1146, 1194-95 (Cal. 2008).

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