Petition for review from the Superior Court, Third Judicial District, Anchorage, Gregory Miller, Judge. Trial Court No. 3AN-09-11088 CR
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Petitioner.
Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Respondent.
Gordon L. Vaughan, Vaughan & DeMuro, Colorado Springs, Colorado, for amicus curiae American Polygraph Association.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. [*]
The defendant in this case, Thomas Henry Alexander, is facing trial for sexual abuse of a minor. The superior court has granted Alexander's motion to introduce evidence that he took a polygraph examination, and that the polygraph examiner concluded that there was a high likelihood that Alexander was being truthful when he denied committing the alleged acts of abuse.
However, the superior court placed two conditions on the admission of this polygraph evidence: First, Alexander must submit to another polygraph examination, this one administered by a qualified expert of the State's choosing. And second, Alexander must take the stand at his trial and submit to cross-examination.
Both parties now seek review of the superior court's decision. The State asks us to reverse the superior court's decision that polygraph evidence is admissible. Alexander asks us to vacate the two conditions that the superior court placed on the admission of the polygraph evidence - that he submit to a State-administered polygraph examination before trial, and that he take the stand at trial and submit to cross-examination.
For the reasons explained in this opinion, we uphold the superior court's rulings - although, as we also explain, we leave the superior court free to re-evaluate its decision in light of the factual developments in this case since the time the superior court issued that decision.
The procedural background of this litigation
Thomas Henry Alexander stands charged with several counts of sexual abuse of a minor.
In preparation for trial, Alexander's defense attorney hired an expert, Dr. David C. Raskin, to administer a polygraph examination to him. Based on the results of this examination, Dr. Raskin is prepared to testify that there is a high likelihood that Alexander was being truthful when, during the examination, he denied committing the acts of abuse.
Alexander's attorney filed a motion requesting an evidentiary hearing, so that he might have the opportunity to establish that polygraph testing was based on scientifically valid methodology, and that Alexander's polygraph result should therefore be admissible at his trial. Alexander's attorney acknowledged that, forty-five years ago, in Pulakis v. State,  the Alaska Supreme Court announced a total ban on polygraph evidence. But the defense attorney noted that Pulakis was decided under the Frye test for the admissibility of scientific evidence - a test that was superseded when the Alaska Supreme Court adopted the more flexible Daubert test for scientific evidence. 
Alexander's attorney argued that, because Alaska now uses the Daubert test, and because of significant improvements in polygraph science and practice in the last forty years, polygraph evidence should now be admissible in the courts of Alaska.
While Alexander's case was being litigated, a similar argument for the admission of polygraph evidence was being offered in another pending criminal case, Griffi th v. State, File No. 3SP-11-103 CR. The defendant in that case, James Griffith, was also charged with sexual abuse of a minor, and his attorney also hired Dr. Raskin to administer a polygraph examination to him. As with Alexander, Dr. Raskin concluded that Griffith was being truthful when he denied the sexual abuse.
The two judges who were assigned to Alexander's and Griffith's cases - Superior Court Judge Gregory Miller and Superior Court Judge pro tempore Daniel Schally - decided to hold a consolidated hearing to investigate whether polygraph evidence met the Daubert standard for the admissibility of scientific evidence. At this hearing, Dr. Raskin testified for the defendants, and another expert, Dr. William Iacono, testified for the State. Both experts discussed the current standards and techniques for polygraph examinations, and they offered differing opinions concerning the overall reliability of polygraph results.
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.
In contrast, 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.
Following this hearing, the two superior court judges issued a joint decision in which they held that "control question" polygraph evidence met the Daubert test, and that Alexander and Griffith were conditionally entitled to introduce evidence of their polygraph results. The two conditions that the judges placed on this evidence were: (1) that each defendant would be required to submit to an additional polygraph examination, this one administered by a qualified examiner of the State's choosing, and (2) that each defendant would be required to testify at trial and submit to cross-examination.
Following this ruling, the State petitioned us to review and reverse the superior court's holding that polygraph evidence meets the Daubert standard for scientific evidence. The two defendants, Alexander and Griffith, filed cross-petitions asking us to vacate the two conditions that the superior court placed on the admission of their polygraph evidence. We granted the State's petition and the defendants' cross-petitions, and we ordered formal briefing.
But while this case was still in its briefing stage, Griffith took a State-administered polygraph examination - and he apparently failed the exam. Griffith then pleaded guilty, and he withdrew his cross-petition. This leaves Alexander as the only defendant in this case.
The legal background of this litigation: the Daubert test that governs the admissibility of scientific evidence
For most of the twentieth century, the admissibility of scientific evidence in American courts was governed by the "general scientific acceptance" test that was first announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Frye was, in fact, another lie detector case - although the testing machine at issue in Frye was a less sophisticated precursor of the modern polygraph; it was a machine that only measured a person's systolic blood pressure.
The Frye court declared that scientific evidence would be admissible only when it was adduced "from a well-recognized scientific principle or discovery" - which the court defined as a principle or discovery "sufficiently established [as] to have gained general acceptance in the particular field in which it belongs." Id. at 1014.
Applying this "general acceptance" test, the Frye court concluded that lie detector evidence was not admissible because it had "not yet gained [this level of] standing and scientific recognition among physiological and psychological authorities." Ibid.
Close to fifty years later, in Pulaki s v. State, 476 P.2d 474 (Alaska 1970), the Alaska Supreme Court applied the Frye test to polygraph evidence and concluded that this type of evidence was still not admissible, because the polygraph still had not gained general scientific acceptance as a reliable method of assessing a person's truthfulness. The supreme court emphasized that its ruling was not based on an affirmative finding that polygraph testing was in fact unreliable. Rather, the court explained, the proponent of the polygraph evidence had failed to offer sufficient proof that the polygraph was generally accepted as reliable within the relevant scientific community. Id. at 479. Thus, the court declared, "[j]udicial acceptance of polygraph tests must await the results of more persuasive experimental proof of reliability." Ibid.
But in 1993, the United States Supreme Court abandoned the Frye test. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court ruled that the Federal Rules of Evidence embodied a new test for scientific evidence that superseded Frye.
Under the Daubert test, the question is no longer whether the scientific community has reached a consensus regarding the validity of a scientific discovery or technique. Instead, the inquiry now focuses on whether the proposed scientific evidence (1) is based on "reasoning or methodology [that] is scientifically valid", and (2) "whether that reasoning or methodology properly can be applied to the facts in issue." 509 U.S. at 592-93, 113 S.Ct. at 2796.
The Supreme Court offered a non-exhaustive list of factors that courts should consider when answering these foundational questions. One of these factors is the old Frye test - whether the proposed scientific theory or technique has attained general acceptance in the relevant scientific community. The other factors listed by the Court are:
• whether the proposed scientific theory or technique has been (or at least can be) empirically tested - that is, whether the theory or technique is falsifiable and refutable;
• whether the proposed scientific theory or technique has been subjected to peer review and publication; and
• whether the known or potential error rate of the proposed theory or technique is within acceptable limits, and whether there are recognized standards and protocols to control variations in the application of the technique.
509 U.S. at 593-94, 113 S.Ct. at 2796-97. The Supreme Court emphasized that any inquiry under this test should be a "flexible one" whose basic purpose is to ascertain the "scientific validity - and thus the evidentiary relevance and reliability - of the principles that underlie the proposed [scientific evidence]." 509 U.S. at 594-95, 113 S.Ct. at 2797. The Daubert test focuses "on [the] principles and methodology" underlying the proposed scientific evidence, 509 U.S. at 595, 113 S.Ct. at 2797, and on whether the expert's conclusions have a sufficient analytical nexus to those underlying principles and methodology. General Electric Co. v. Joiner, 522 U.S. 136, 146; 118 S.Ct. 512, 519; 139 L.Ed.2d 508 (1997).
The Alaska Supreme Court has adopted the Daubert test as the governing test for the admissibility of scientific evidence under Alaska law State v. Coon, 974 P.2d 386, 395-98 (Alaska 1999).
(Our supreme court has rejected the Daubert test as the standard for admitting other types of expert evidence: see Marron v. Stromstad, 123P.3d992, 1004 (Alaska 2005). But the parties to the present case agree - and we concur - that polygraph evidence is a type of "scientific" evidence governed by the Daubert test under Alaska law.)
The superior court's ruling on whether the "control question" technique of polygraph examination meets the Daubert ...