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 ...