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State v. Sharpe

Supreme Court of Alaska

January 4, 2019

STATE OF ALASKA, Petitioner and Cross-Respondent,
v.
JYZYK J. SHARPE, Respondent and Cross-Petitioner. STATE OF ALASKA, Petitioner and Cross-Respondent,
v.
THOMAS HENRY ALEXANDER, Respondent and Cross-Petitioner. JEFFERY K. HOLT, Appellant,
v.
STATE OF ALASKA, Appellee.

          Petition for Hearing in File Nos. S-16191/16214 from the Court of Appeals of the State of Alaska, on appeal from the Superior Court No. 3PA- 14-00877 CR of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge.

          Petition for Hearing in File Nos. S-16193/16214 from the Court of Appeals of the State of Alaska, on appeal from the Superior Court No. 3AN-09-11088 CR of the State of Alaska, Third Judicial District, Anchorage, Gregory Miller, Judge.

          Certified Question in File No. S-16449 from the Court of Appeals of the State of Alaska, on appeal from the Superior Court No. 3HO-11-00515 CR of the State of Alaska, Third Judicial District, Homer, Charles T. Huguelet, Judge.

          Diane L. Wendtland, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Petitioner and Cross-Respondent and Appellee State of Alaska.

          Sharon Barr, Assistant Public Defender, and Quinlan Sterner, Public Defender, Anchorage, for Respondents and Cross-Petitioners Sharpe and Alexander.

          Brooke Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for Appellant Holt.

          Gordon L. Vaughan, Vaughan & DeMuro, Colorado Springs, Colorado, and Gavin Kentch, Law Office of Gavin Kentch, LLC, Anchorage, for Amicus Curiae American Polygraph Association.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          STOWERS, CHIEF JUSTICE.

         I. INTRODUCTION

         In each of the three underlying criminal cases in this consolidated appeal, the defendant sought to introduce expert testimony by a polygraph examiner that the defendant was truthful when he made exculpatory statements relating to the charges against him during a polygraph examination conducted using the "comparison question technique" (CQT). In two of the cases, the superior courts found that testimony based on a CQT polygraph examination satisfied the requirements for scientific evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc.[1] and State v. Coon.[2] In the third case, the superior court reached the opposite conclusion and found the evidence inadmissible. We are now asked to revisit the appellate standard of review for rulings on the admissibility of scientific evidence and to determine the admissibility of CQT polygraph evidence.

         We conclude that appellate review of Daubert/Coon determinations should be conducted under a hybrid standard: the superior court's preliminary factual determinations are reviewed for clear error; based on those findings and the evidence available, whether a particular scientific theory or technique has been shown to be "scientifically valid" under Daubert and Coon is a question of law to which we apply our independent judgment; and where proposed scientific evidence passes muster under that standard, the superior court's case-specific determinations and further evidentiary rulings are reviewed for abuse of discretion. Applying this standard here, we conclude that CQT polygraph evidence has not been shown to be sufficiently reliable to satisfy the Daubert/Coon standard.

         II. BACKGROUND

         A. State v. Alexander

         Thomas Alexander was charged with multiple counts of sexual abuse of a minor. Before trial, Alexander hired David Raskin, Ph.D., a polygraph examiner, to administer a CQT polygraph examination. Based on the polygraph results, Dr. Raskin concluded that Alexander answered truthfully when he denied committing the acts with which he was charged. At Alexander's request, Superior Court Judge Gregory Miller held an evidentiary hearing to address the admissibility of the polygraph results. For the purpose of that hearing, Alexander's case was consolidated with an unrelated criminal case pending before Superior Court Judge pro tem Daniel Schally because the two cases involved similar polygraph testimony by the same polygraph examiner, Dr. Raskin.[3] The two judges held a joint evidentiary hearing over the course of two days, spanning more than ten hours of testimony. Dr. Raskin testified for the defense in support of admitting testimony about the polygraph results, while William Iacono, Ph.D., a research psychologist at the University of Minnesota, testified for the State in opposition. Both sides also submitted copious evidence in the form of declarations by the two experts, scientific studies, treatises, etc.

         The judges issued a joint order for both cases concluding that CQT polygraph testing satisfies the Daubert/Coon requirements for scientific validity. The judges also concluded that the proposed testimony was not otherwise excluded by the Alaska Rules of Evidence relating to relevance, unfair prejudice, credibility bolstering, expert testimony, or hearsay. Their order held that the polygraph evidence would be admissible, but on the condition that the defendants first testified at their respective trials and subjected themselves to cross-examination. Their ruling was also premised on each defendant agreeing to sit for a second polygraph test administered by the State, which the judges reasoned would mitigate concerns relating to possible bias by a "friendly" examiner[4] and add additional "guarantees of trustworthiness."[5]

         B. State v. Sharpe

         In a case unrelated to Alexander's, Jyzyk Sharpe was charged with murder and manslaughter in connection with the death of his girlfriend's two-year-old son. Sharpe also hired Dr. Raskin to administer a polygraph examination, after which Dr. Raskin concluded that Sharpe answered truthfully when he denied the charges against him.

         Before trial, the State moved to preclude Sharpe's polygraph evidence and Dr. Raskin's testimony. As in Alexander's case, the State argued that polygraph examinations are not supported by valid science and that additional accuracy problems are presented in the case of a "friendly" polygraph examiner. For those reasons, the State argued that the polygraph testimony should be excluded under Alaska Evidence Rule 403 because its probative value would be outweighed by risks of unfair prejudice, confusion, delay, and wasted time. The State also argued that the proposed testimony included inadmissible hearsay, that the testimony was inadmissible as expert testimony under Daubert/Coon and under the Alaska Rules of Evidence, and that the testimony was inadmissible character evidence under Evidence Rule 608.

         No new Daubert/Coon hearing was held; instead, Superior Court Judge Eric Smith relied on the record and evidence presented in Alexander's Daubert/Coon evidentiary hearing. The superior court held that the testimony would be admissible pursuant to the same reasoning as in that case. However, the court added the additional limiting instruction that the polygraph examiners-Dr. Raskin and the State's examiner - could testify only to whether Sharpe "believed what he was saying" and not to whether he was "telling the truth"; the court reasoned that the latter would impermissibly imply that a polygraph test can reveal whether a statement is objectively accurate.

         During a second polygraph test, administered for the State by former FBI agent Kendall Shull, Sharpe prematurely terminated the examination when Shull asked Sharpe if he was using countermeasures[6] against the polygraph test. The State asked the court to reconsider the admissibility of Dr. Raskin's testimony based on Sharpe's lack of cooperation with the second examination. The court ultimately reaffirmed its original decision, ruling that Dr. Raskin's testimony was admissible but that the State could present evidence of Sharpe's lack of cooperation in rebuttal.

         C. State v. Holt

         Jeffery Holt was charged with five counts of first-degree sexual assault. Before trial, Holt hired Dr. Raskin to administer a polygraph examination, after which Dr. Raskin concluded Holt was being truthful when he denied the charges on the grounds that the alleged victim consented to sexual activity. In lieu of a Daubert/Coon hearing, both parties suggested and the court agreed it could determine the admissibility of Dr. Raskin's testimony by reviewing the record of the hearing and subsequent order in Alexander's case. The parties also submitted additional scholarly articles on polygraph testing, an audio recording of Holt's polygraph examination, the raw data from that examination, and the prosecutor's recorded interview of Dr. Raskin about the procedure used in that examination.

         Superior Court Judge Charles Huguelet reviewed the evidence from Alexander's case, heard oral argument, and then concluded that polygraph evidence is not sufficiently reliable to be admitted. The court further concluded that Dr. Raskin's testimony would in any case be inadmissible under the evidence rules governing character evidence, bolstering, and prior consistent statements, as well as under the Rule 403 balancing test. After a jury trial, Holt was convicted of one count of first-degree sexual assault and four counts of second-degree sexual assault; he was sentenced to 28 years imprisonment with 8 suspended.

         D. Proceedings In The Court Of Appeals

         In Alexander's case, the State filed a petition for review to the court of appeals challenging the conclusion that the proposed polygraph testimony was admissible; Alexander filed a cross-petition challenging the conditions that he agree to testify and agree to submit to a State-administered polygraph exam.[7] In its decision, the court of appeals observed that in accordance with our opinion in Coon, determinations regarding the validity of scientific evidence are reviewed on appeal only for abuse of discretion.[8] The court expressed concern about applying such a deferential standard and suggested that this court should revisit Coon and adopt a more probing standard of review.[9] The court explained:

As it happened, [Judges Miller and Schally] reached the same conclusion regarding the scientific validity of polygraph examinations. But, as illustrated by the competing testimony offered by Dr. Raskin and Dr. Iacono, this is clearly a matter on which reasonable people can differ-and on which they do differ.
Thus, 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 under the "abuse of discretion" standard of review.
This essentially means that the scientific validity of polygraph evidence will never be judicially resolved at an appellate level: it will remain an open question, and it will need to be litigated anew each time the issue is raised.[10]

         Ultimately, applying the abuse of discretion standard of review, the court of appeals affirmed the order admitting Dr. Raskin's testimony.[11] The court also upheld the conditions on admissibility imposed by the superior court.[12]

         In Sharpe's case, the State again filed a petition for review challenging the ruling admitting Dr. Raskin's testimony; the court of appeals denied the petition based on its ruling in Alexander.

         The State filed petitions for hearing to this court in both cases; Alexander and Sharpe filed a joint cross-petition challenging the requirement that they agree to testify before their respective polygraph evidence could be admitted.[13] We granted all three petitions and consolidated the cases for briefing.

         Holt appealed his convictions and his sentence to the court of appeals. One of Holt's grounds for appeal was Judge Huguelet's order excluding Dr. Raskin's testimony. The court of appeals reasoned that the polygraph issue in Holt's case was the same as the one in State v. Alexander, and that the trial court's decision "present[ed] the very problem that [the court] noted when [it] decided Alexander, the problem that reasonable judges who heard exactly the same evidence concerning polygraph testing could rationally reach differing conclusions as to whether polygraph evidence meets the Daubert test for admission." Because we had already granted review of Alexander's and Sharpe's cases, the court of appeals severed Holt's polygraph question and certified it to this court, again asking us to revisit the applicable standard of review.[14] We accepted certification and consolidated Holt's case with Sharpe's and Alexander's.

         III. STANDARD OF REVIEW

         Broadly speaking, we review the admission or exclusion of evidence for abuse of discretion.[15] But whether the trial court applied the correct legal rule is a question of law subject to de novo review.[16] Similarly, "[w]hen the admissibility of evidence 'turns on... the correct scope or interpretation of a rule of evidence, we apply our independent judgment.' "[17] Findings of fact underlying a judgment of the superior court are reviewed for clear error, which we will find "if a review of the entire record leaves us with a definite and firm conviction that a mistake has been made."[18]

         In State v. Coon we addressed the applicable standards of review for a decision admitting or excluding scientific evidence and concluded that a "determination of reliability under Daubert” is "best left to the discretion of the trial court."[19] However, whether to revisit the standard outlined in Coon is one of the issues raised on appeal and one which the court of appeals has explicitly urged us to reconsider. When deciding whether to overrule a prior decision, we will do so only when "clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent."[20] A previous decision may be considered "originally erroneous" if it "proves to be unworkable in practice."[21]

         IV. DISCUSSION

         A. The Daubert/Coon Standard

         Under Alaska Evidence Rule 702(a), a qualified expert witness may testify to "scientific, technical, or other specialized knowledge" if that knowledge "will assist the trier of fact to understand the evidence or to determine a fact in issue." In Daubert v. Merrell Dow Pharmaceuticals, Inc., [22] the United States Supreme Court set forth new requirements for admitting scientific evidence under the equivalent Federal Rule of Evidence. Prior to Daubert the prevailing standard had been established in Frye v. United States, under which an "expert opinion based on a scientific technique is inadmissible unless the technique is 'generally accepted' as reliable in the relevant scientific community."[23] Daubert concluded that the Frye test was superseded by the adoption of the Federal Rules of Evidence.[24]

         The new standard laid out in Daubert is two-pronged. First, the court must determine whether the proffered testimony is based on "scientific knowledge," meaning that it is "derived by the scientific method" and "supported by appropriate validation"[25]-in short, that it is "scientifically valid."[26] Second, because Evidence Rule 702 requires that the testimony must "assist the trier of fact to understand or determine a fact in issue," the court must determine "whether the reasoning or methodology underlying the testimony ... properly can be applied to the facts in issue."[27]

         The Daubert Court also outlined a number of key considerations relevant to the determination of scientific validity, although it noted that these considerations were not "a definitive checklist or test."[28] The first question is whether the scientific theory or technique in question can be and has been empirically tested.[29] The second is whether the theory or technique "has been subjected to peer review and publication."[30]But the Supreme Court cautioned that publication, including in a peer-reviewed journal, "does not necessarily correlate with reliability"; rather, the Court reasoned that publication and peer review is relevant because "submission to the scrutiny of the scientific community is a component of 'good science,' in part because it increases the likelihood that substantive flaws in the methodology will be detected."[31] The third consideration that the Court found relevant is "the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation."[32] And finally, although Daubert rejected general acceptance in the scientific community as an absolute prerequisite to admissibility, the Supreme Court recognized that "[widespread acceptance can be an important factor in ruling particular evidence admissible, and 'a known technique which has been able to attract only minimal support within the community,' may properly be viewed with skepticism."[33]

         In 1999 we adopted Daubert as the applicable admissibility standard for scientific expert testimony under the Alaska Rules of Evidence in State v. Coon[34]

         B. Polygraph Testing And The Comparison Question Technique

         This opinion concerns the admissibility of expert testimony regarding the results of a polygraph examination, informally known as a "lie detector test." However, it does not concern the entire field of polygraph testing; rather, it involves the technique known as the "comparison question test" or "control question test" (CQT).[35] The following is a summary of the undisputed aspects of CQT polygraph testing.

         In all polygraph examinations, whether the CQT or some other approach is used, the examinee is connected to a polygraph, an instrument that measures multiple physiological phenomena: pulse rate, blood pressure, respiration rate, and galvanic skin response in the hands and fingers.[36] It is generally accepted that the polygraph is a highly sensitive instrument capable of measuring these physiological phenomena.[37]

         The CQT exams Dr. Raskin administered in these cases are a form of specific-incident polygraph testing, as opposed to a polygraph examination for screening or background check purposes.[38] Screening tests ask about a broad range of conduct, such as whether the examinee has ever committed a crime or used illegal drugs, but specific-incident tests, like the ones Dr. Raskin administered, focus on a particular crime, event, or other occurrence under investigation.[39] The CQT examiner asks three types of questions: "neutral" or "irrelevant" questions ("Is your name Thomas?"), broad "control" or "comparison" questions ("During the first 35 years of your life, did you ever engage in a sexual act of which you should be ashamed?"), and specific "relevant" questions ("Did you ever touch G.B.'s breast?").[40] Each comparison question will ask about a broad category of past conduct, similar to but excluding the specific occurrence being investigated, and each question will be specifically designed to be ambiguous, broad, and vague but elicit a "No" answer.[41] Because the comparison questions are broadly worded and address sensitive topics, the examinee is assumed to be deceptive or at least unsure of his answer.[42] The underlying rationale of the CQT is that deceptive subjects will feel more threatened by the relevant questions and will view the comparison questions as less important; thus, deceptive subjects will have a stronger physiological reaction to the relevant questions.[43] In contrast, truthful subjects are expected to feel more threatened by the comparison questions and will have a stronger physiological reaction than to the truthfully answered relevant questions.[44] There are two reasons for this expectation: first, the sensitive topic of the comparison questions is assumed to generate a response; second, the examiner will have explained prior to the exam that the examinee's reactions to the comparison questions are important to the ultimate test result.[45] Thus, the CQT is based on the premise that the relative magnitudes of the examinee's reactions to the relevant and comparison questions are indicative of his truthfulness or lack thereof when answering the relevant questions.[46]

         The examiner asks the examinee a list of prepared questions multiple times.[47] For each relevant question, the examiner will compare the subject's reaction to his reaction to an adjacent comparison question.[48] Each measured parameter is given a numerical score for each question pair, for example from -3 to , with a positive number indicating a stronger reaction to the comparison question and a negative number indicating a stronger reaction to the relevant question.[49] The examiner totals the numerical scores:[50] a high positive overall score is interpreted as indicating a truthful result; a high negative score is interpreted as indicating deception; a score close to zero, whether positive or negative, is considered inconclusive.[51]

         As will be explained in further detail below, the main scientific criticisms of CQT polygraph testing relate to the validity and testability of the assumptions underlying the technique.

         C. The Appellate Standard Of Review For Scientific Evidence Rulings

         The first question we must address is what standard of review the appellate court should apply to appeals from a Daubert/Coon determination made by the trial court. Our current standard, which the court of appeals urges us to reconsider, is the one laid out in State v. Coon: abuse of discretion.[52]

         In Coon the superior court held an evidentiary hearing to determine whether proffered expert testimony on spectrographic voice identification would be admissible under Frye's general-acceptance standard; the superior court then admitted the testimony.[53] After an initial appeal, we remanded the case with directions to the superior court to enter findings of fact and conclusions of law relating to Evidence Rule 703, as well as detailed findings of fact and conclusions of law under both the Frye and Daubert standards; the superior court on remand determined the testimony was admissible under both standards.[54] On appeal again we expressly adopted the Daubert standard, [55] and we then considered the superior court's ruling admitting the evidence under this newly adopted standard.[56]

         The superior court's conclusion was based on a number of preliminary findings: it found that the technique of spectrographic voice identification "had been empirically tested," that it "had been subjected to peer review and publication," that "when properly performed ... voice spectrography has a known error rate of less than one percent," that "when voice spectrography is properly performed by a qualified person, it has attained widespread acceptance within the relevant scientific community," that "the reasoning and methodology underlying [the expert's] testimony were scientifically valid," and that the expert in that case "had properly performed the voice spectrographic analysis."[57] We examined each of those preliminary findings in turn, and concluded for each finding that the superior court "did not err" in making it.[58] We then reviewed for abuse of discretion the superior court's definition of the "relevant scientific community" and its ultimate determination, in light of its preliminary findings, that the evidence presented satisfied the Daubert standard.[59] We noted that "the majority of the federal circuits have chosen to apply the abuse of discretion standard when reviewing district court decisions under Daubert," and that "the Supreme Court [had] recently approved the abuse of discretion standard in General Electric Co. v. Joiner"[60]

         Justice Fabe dissented from the court's opinion. She argued that applying "an abuse of discretion standard of review to the validity of scientific techniques will most likely lead to inconsistent treatment of similarly situated claims."[61] This non-uniformity, she suggested, "must be reconciled at the appellate level. Otherwise, inconsistent jury verdicts, widely disparate compensation for similar injuries, and erroneous criminal verdicts will continue to erode public confidence in our justice system."[62] Justice Fabe explained that "[t]he reliability of scientific evidence does not change from one case to the next; a scientific method is either reliable or unreliable."[63]For that reason, her dissent advocated reviewing "the question of the validity of scientific information" de novo, while reviewing for abuse of discretion "a trial judge's assessment of the competency of a particular expert witness to render an opinion."[64]

         Prior to our decision in Coon, a number of commentators had criticized the federal courts' abuse of discretion standard and proposed a hybrid standard similar to the one described in Justice Fabe's dissent.[65] For example, Professor David Faigman argued in a 1997 law review article that the relevance and reliability of scientific evidence "involves several layers of scientific work" and that different standards of review should apply to each.[66] According to Faigman, "[w]hen the scientific evidence transcends the particular case, the appellate court should apply a 'hard-look' or de novo review to the basis for the expert opinion, "[67] but "[w]hen the scientific evidence involves facts specific to the particular case, the appellate court should defer to the trier of fact below."[68]

         Although all federal circuits have adopted Joiner's[69] abuse of discretion standard for appellate review, [70] a number of state courts have ruled to the contrary and adopted a stricter standard of review. For example, the New Mexico Supreme Court held in Lee v. Martinez that the validity of a particular scientific theory is a form of "legislative fact" not specific to the circumstances of any particular case, and it therefore applies de novo review to such questions.[71] Other states that have adopted a hybrid or de novo standard of review for Daubert determinations include Oklahoma, [72]Washington, [73] Kentucky, [74] New Hampshire, [75] West Virginia, [76] and Oregon.[77] In states that continue to apply the Frye standard of general acceptance, most apply de novo review on appeal.[78]

         The primary concern raised by jurisdictions applying abuse of discretion review, as well as by commentators and Justice Fabe's dissent in Coon, is the potential for inconsistent rulings in similarly situated cases. Our opinion in Coon dismissed this concern, finding it unlikely "that the inconsistency will be of such magnitude as to 'compromise the integrity of the judiciary in the eyes of the public.' "[79] In light of the posture of the cases now before us, we may have been too optimistic. If two defendants offer similar scientific testimony and-after separate evidentiary hearings-one judge deems the testimony to be scientifically valid while another does not, that could be the result of differences between the particular cases and differences in the evidence presented at the hearings. But when the judge in the latter case relied on the evidentiary hearing from the first, and reached the opposite conclusion based on identical evidence, it is clear that the difference in outcome cannot be attributed to a difference in the amount or quality of the evidence.

         That is essentially what happened in these cases: the scientific evidence Alexander and Sharpe presented was deemed valid and admissible by the judges in their cases; essentially identical evidence based on the same scientific principles was deemed unreliable as a matter of law and inadmissible in Holt's case, even though the trial judge relied on the very testimony presented at Alexander's Daubert hearing.[80] This raises at least the appearance of arbitrariness, i.e., the appearance that the outcome of a Daubert determination in our courts depends more on which judge was assigned to the case than on the objective application of law to the evidence presented. Regardless of how accurate this appearance might be, it certainly has the potential to raise serious questions in the eyes of the public about the integrity of our judicial system, particularly when such inconsistencies occur in the context of serious criminal proceedings.

         We explained in Coon that "the premise that the scientific validity of a technique is a legal issue which does not turn on case-sensitive facts" fails to "adequately take account of the reality of the judicial process and the variable state of science."[81] We quoted with approval the New Mexico Supreme Court's reasoning that the idea that appellate courts are best suited to rule on the validity of a scientific theory or technique assumes "that the record on appeal contains all of the relevant, most recent data concerning the scientific method" and that "there is always a reservoir of scientific literature that an appellate court might independently reference in a de novo review."[82]We also expressed concern about making determinative rulings at all, again noting the New Mexico Supreme Court's reasoning that "the state of science is not constant; it progresses daily."[83] We explained that "[t]he principal reason for adopting the Daubert standard is to give the courts greater flexibility in determining the admissibility of expert testimony, so as to keep pace with science as it evolves," and concluded that abuse of discretion review "best comports with these aims."[84]

         We do not take these concerns lightly: the record on appeal is limited to the testimony and exhibits in the superior court's case file, [85] so there is a non-negligible risk that reviewing the validity of scientific evidence de novo could lead us or the court of appeals to decide a case involving the admissibility of scientific evidence based on incomplete information. But the superior court is also limited to the testimony and evidence presented at the hearing. And appellate courts will often have more time than trial courts to mitigate that risk through careful study of secondary sources such as scientific treatises and surveys of academic literature in the relevant field.

         Overturning a prior appellate decision requires showing that the decision was either "originally erroneous or is no longer sound because of changed conditions."[86]If an appellate court has made & Daubert determination and then new scientific research becomes available, or if a litigant identifies research that the appellate court overlooked, the trial court would be justified in holding an evidentiary hearing to make a complete record and rule in the alternative. The appellate court would then have the ability to reconsider admissibility under Daubert and Coon. In either case, presenting this new or overlooked evidence is no more of a burden on litigants than the burden they would otherwise have to present relevant evidence at an original Daubert hearing.

         In short, Coon's fears that de novo review of Daubert determinations would result in the law of scientific evidence becoming set or stagnant and unchanging appear somewhat exaggerated. However, for the reasons discussed above, de novo review will not necessarily allow appellate courts to decide once and for all time whether a particular technique is scientifically valid, as the court of appeals seems to hope. Nonetheless, adopting a less deferential standard of review on appeal would allow trial courts and parties to avoid repeatedly relitigating the validity of scientific evidence, saving the court and parties the time, effort, and cost of a Daubert hearing - at least absent new or previously overlooked research and evidence. It would also ensure that the admissibility of scientific evidence is consistent throughout the courts of this state.

         For these reasons, we agree with the court of appeals - and with the dissent in Coon-that a more probing standard of review is warranted in an appeal from a Daubert determination.[87] As explained above, our decision in Coon reviewed the preliminary findings underlying the superior court's application of the Daubert standard -whether the technique had been tested, whether it had been subject to publication and peer review, etc. - for clear error, but reviewed the court's ultimate determination of reliability for abuse of discretion.[88] Going forward, we will instead apply our independent judgment to the question whether - based on the evidence presented and the scientific literature available - the technique or theory underlying the proposed expert testimony is sufficiently reliable to satisfy Daubert and Coon.[89]

         In sum, we will limit our independent review to the broad question whether the underlying scientific theory or technique is "scientifically valid" under the first prong of the Daubert analysis.[90]

         D. Admissibility

         1. Alaska's ease law on polygraph testing

         Although we have not previously addressed the admissibility of polygraph evidence under Daubert and Coon, a discussion of our pre-Daubert case law on the subject provides useful context and perspective. In 1970 we concluded in Pulakis v. State that polygraph evidence offered in a criminal trial is generally inadmissible.[91]Pulakis was convicted of larceny after a jury trial.[92] At trial the prosecution introduced testimony from a police polygraph examiner that Pulakis underwent two polygraph examinations and that, in the examiner's opinion, "the examinations revealed that deceptive answers were given to four crucial questions."[93] Pulakis challenged his conviction on appeal, arguing that admitting the polygraph testimony was plain error.[94]Citing Frye, as well as language from some of our previous opinions, we observed that "[t]he general rule is that the results of polygraph tests are not admissible in evidence."[95]We explained that "judicial antipathy" to polygraph evidence had not diminished significantly since Frye was decided in 1923, and that court decisions considering the issue "reflect a high degree of sensitivity to the numerous potential sources of error in the ascertainment of deception through polygraph examinations."[96] We concluded that the "central problem regarding admissibility is not that polygraph evidence has been proved unreliable, but that polygraph proponents have not yet developed persuasive data demonstrating its reliability."[97] We therefore held that, although we were "not prepared to say whether polygraph examiners' opinions are reliable[, ]... the results of polygraph examinations should not be received in evidence over objection."[98] However, we ultimately upheld Pulakis's conviction because he had waived objection to the evidence at trial and we did not "find polygraph tests so demonstrably unreliable as to require a finding of plain error."[99]

         After we decided Pulakis, several cases in the court of appeals dealt not with the admissibility of polygraph evidence directly, but rather with the admissibility of references in other testimony to a party's willingness to submit to a polygraph test.[100]The court of appeals noted that "[d]espite its unreliability, polygraph evidence might be perceived by the jury as a complete answer to questions of credibility" and "could also lull the jury into a false sense of security and result in the jury failing to carefully scrutinize conflicting witness testimony."[101] Similarly, the court of appeals was concerned that "a jury may conclude that a witness's willingness to take a polygraph test is circumstantial evidence that the witness is telling the truth," and therefore concluded that even references to polygraph tests should be either inadmissible or subject to significant limiting instructions.[102]

         The court of appeals first considered the admissibility of polygraph test results in Haakanson v. State[103] In that case the court was asked to reconsider Pulakis and find polygraph testimony admissible in light of alleged changes in polygraph technology and increased "acceptance among polygraph examiners of the polygraph's reliability to show truthfulness."[104] The court of appeals applied Frye's general acceptance standard: it concluded that for purposes of that analysis, the relevant question could not be limited to the acceptance of polygraph testing among polygraph examiners; rather, the court decided that under our decision in Contreras v. State, the "relevant scientific community" includes the "professions which have studied and/or utilized [the technique] for clinical, therapeutic, research and investigative applications" and specifically excludes "those whose involvement with [the technique] is strictly limited to that of practitioner."[105] Applying that standard, the court of appeals concluded that there was "considerable controversy over the reliability of polygraphs as a scientific process," and that "Haakanson ha[d] not established that there [was] a consensus among the experts regarding the reliability of the polygraph technique."[106] The court of appeals also expressed "concern[] about the disproportionate impact polygraph evidence may have on a jury."[107] Citing its previous concerns about polygraph testimony being "perceived by the jury as a complete answer to questions of credibility" and its potential to "lull the jury into a false sense of security," the court of appeals held that "[a]ny evidence which has such great potential to mislead or prejudice the jury should be excluded unless its probative value clearly outweighs the prejudice."[108] The court of appeals found the "probative value of polygraph evidence [to be] insubstantial because the polygraph has not been proven reliable"; thus, the polygraph evidence in that case was inadmissible.[109]

         2. Polygraph evidence under Daubert in other states

         Other jurisdictions that apply the Daubert test have also rejected evidence based on the CQT method. For example, in State v. Porter the Connecticut Supreme Court adopted Daubert as the relevant standard for scientific evidence and upheld its traditional per se ban on admitting polygraph evidence.[110] Jurisdictions that have adopted Daubert and maintain a per se exclusion of polygraph evidence include Idaho, [111]West Virginia, [112] Hawaii, [113] Vermont, [114] the District of Columbia, [115] and the Court of Appeals for the Fourth Circuit.[116] In United States v. Scheffer the Supreme Court held that a per se rule excluding polygraph evidence does not infringe on the constitutional rights of an accused to present evidence in his defense;[117] implied in the Court's reasoning is the corollary conclusion that such a rule is also not inconsistent with Daubert.[118] According to one treatise on scientific evidence, a majority of states still followed this "traditional rule" of excluding polygraph evidence as of 2012, when Alexander's evidentiary hearing took place.[119] The superior court in Alexander's case surveyed polygraph admissibility in "all 50 states and the federal circuits" at the time of the hearing and found that "30 jurisdictions still have a per se ban, 17 admit polygraph results based upon stipulation, and 12 leave the decision to the trial court's discretion on a case-by-case basis."

         Of the jurisdictions that allow polygraph evidence based on the judge's discretion, New Mexico is a notable example. Unlike the Alaska Evidence Rules, the New Mexico Rules of Evidence (NMRE) specifically address polygraph examinations. Under NMRE 11-707, the opinion of a polygraph examiner "as to the truthfulness of a person's answers in a polygraph examination may be admitted" if a number of specific criteria regarding the examiner's qualifications and the test procedure are met.[120] In Lee v. Martinez the New Mexico Supreme Court held that when the expert's qualification and the examination meet this rule's standards, "polygraph examination results are sufficiently reliable to be admitted" under the Daubert standard and NMRE 11-702 - New Mexico's equivalent to Alaska Evidence Rule 702.[121] However, the court also concluded that NMRE 11 -707 only makes polygraph evidence admissible subject to the discretion of the trial judge's balancing of probative value against unfair prejudice.[122]

         3. The Daubert factors, applied

         Both the Supreme Court in Daubert and our court in Coon explained that the listed factors should not be seen as a determinative checklist, but that the standard is a flexible one.[123] Because the Daubert factors are a good starting point, and the superior court started with them in Alexander, these factors will be discussed in turn here.

         i. Empirical testing

         The first relevant question is whether CQT polygraphy can be, and has been, empirically tested. The superior court in Alexander found that "the hypotheses underlying the polygraph can be and ha[ve] been tested repeatedly, including tests by both Drs. Raskin and Iacono." In light of the record before us and the scientific literature available, this finding is at least partly erroneous.

         It is true that Dr. Raskin and Dr. Iacono both testified about a number of studies - conducted by them and others - that have tested the practical application of CQT polygraphy. But one central criticism that Dr. Iacono's testimony raised was the lack of studies testing the psychological hypotheses that serve as the underlying premise of polygraph testing. For a CQT polygraph test to yield reliable inferences about deception, [124] it must be the case that (1) deception on relevant and comparison questions produce different psychological states; (2) these psychological states produce measurably different physiological responses; (3) these physiological responses include the ones that the polygraph instrument measures; (4) these physiological responses are unlikely to arise from causes other than deception; (5) the scoring system captures the physiological differences relevant to deception; and (6) examiners accurately assign conclusions of deception or honesty to certain score values when they interpret scores.[125] Many of these assumptions and hypotheses appear not to have been tested; even more important, some may not be readily testable.

         In particular, CQT polygraph examinations are based on the theory that while a truthful person will respond more strongly to the comparison questions, a deceptive person will have a stronger reaction to the relevant questions. Dr. Iacono criticized this as an unfounded assumption, arguing for example that a truthful person might react strongly to the relevant questions due to the implications of a false accusation, while a guilty person outside of laboratory studies might have a reduced reaction to the relevant questions due to the phenomenon of habituation.[126] On those grounds, Dr. Iacono concluded that "the CQT has ... a weak theoretical foundation." He testified that this underlying theory has not been properly tested, in part because laboratory studies cannot duplicate all of the considerations that might be relevant in the field - like habituation or a truthful examinee reacting to the relevant questions out of fear of being falsely accused - and in part because field studies have difficulties establishing the "ground truth" of whether an examined person was actually lying. Determining ground truth presents practical problems that are difficult, perhaps even impossible, to overcome, meaning that true accuracy rates may not ...


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