Case Law on Experts in Criminal Law Polygraphs Part 2

Leonard the next case. I forget the exact facts of Leonard but Leonard was on probation for sex offense and he was required to take polygraphs and he objected to that and he failed the polygraph obviously and they revoked his probation and he objected the polygraphs are unreliable. And therefore, inadmissible! And the court of criminal appeals when they first heard it, they said by I think it was 5 to 4 decision they ruled against Leonard and what they said was, “Yea polygraphs have been generally held to be unreliable but this is probation revocation, it’s not trial before jury so it’s different and we’re going to admit polygraph”. the rehearing was granted and the court turned around in a 5 to 3 decision with one judge not participating, the court turned its decision around and said that, “Look! We’ve been saying for 60 years unwaveringly that polygraphs are unreliable and therefore admissible and we’re still saying the same thin g”. They’re not admissible because they’re not reliable and it doesn’t matter if its probation before judge or trial before jury, they’re not coming in”.

The state tried an alternative attack. And they used rule703 which I’ve been troubled by for a long time but it’s well established law that rule 703 says that, “If experts relay on evidence that is commonly relied upon by experts in that field, they can use it to formulate their opinion even though the evidence is not admissible before the jury or before the trial court. The expert can use inadmissible evidence” and the state felt back on that, they said “Well! Even if polygraph evidence is inadmissible, the expert can use it to formulate the opinion that this guy is a pervert and he needs to be revoked”. The court of criminal appeals said this and it’s perhaps is a useful decision for dealing with 703. Rule 703 is not a conduit for admitting opinion based on evidence that would not meet Rule 702’s reliability requirement. So if the state tries to get under the guy’s Rule 703 evidence and you can make case that it’s unreliable, it’s not going to come in! The courts said, “We’re not asked to determine today whether we can require probation it is to take polygraphs, we’re simply saying that requiring them to take a polygraph does not justify admitting legally unreliable evidence”. It’s a pretty strong opinion.

There’s another polygraph case, they asked Dansby, “Do you have any more victims?” he was on probation and his probation officer asked him “Do you have any more victims?” Dansby, his lawyer had a thoughtfully told him if they ask you any questions like that “Take the Firth” and he did and so they instituted revocation proceedings. He refused to answer so they discharged him from the treatment program, you’ve ever heard this before and now once he’s discharged from the treatment program, they got nothing to do but revoke his probation so said the state, we didn’t revoke him because he’s refused to take a polygraph or because he refused to, because he relied on firth of mammoth, that would be wrong. We’ve revoked him because he was discharged from the program. The court of criminal appeals quite sensibly I think it look, the question here is “Was his discharged from sex offender treatment, a product of his invocation of the Fifth Amendment privilege?” And they said “he was and we hold that the court of appeals erred to conclude that it was not”.

So the court said that because he was effectively discharged from the program for taking his fifth. His revocation was reversed. So what’s going on with experts? That’s what’s going on with the experts in my opinion, you recognize that guy? Morton, the guy who was in prison for 25 years for murder which was conclusively proven that he didn’t do. So here’s what’s going on I think, trial judges I think are going to allow more and more expert testimony and scientific evidence. For fear that by keeping it out, we’re going to be wrongfully convicting people. That rule is going to work both ways though of course, more scientific evidence is going to come in when we needed but it’s also going to come in against us. Deal with the double edges, deal too with the science, bio mechanics and EMIT and blood draws. We’re having to deal a lot with a pretty complicated stuff and stuff that I think we didn’t think we were going to have to deal with back when I started practicing law number of years ago. Well! We’re going to have to start doing it. Make sure you know how to get the experts you need to file the motion particularly when you’re people are into indigent, can’t pay and then I think we can safely say, at least right now for the court polygraphs are not coming in. You know that could change in 2014 just like that though.

Francisco Hernandez

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