Court Finds Offenders Can Be Subject to Voice Analysis to Detect Lies Joel Stashenko New York Law Journal 10-08-2009 Sex offenders can be required to submit to computerized voice stress analysis as part of their post-release supervision to determine if they are telling the truth, a federal court has ruled. Northern District of New York Chief Judge Norman A. Mordue ruled that the technique is analogous to polygraph examinations, which have been accepted by the 2nd U.S. Circuit Court of Appeals as a way to monitor the activities of those under post-release supervision. The 2nd Circuit in United States v. Johnson, 446 F.2d 272 (2006), held that polygraphs were not unreliable, that they could be validly related to the post-release supervision of an offender and that they did not deprive a defendant of his rights under the Fifth Amendment. The same qualities apply to the voice analysis devices, Judge Mordue determined. Judge Mordue, ruling from Syracuse, N.Y., in Gjurovich v. United States_5:01-cr-215, conceded that federal authorities have acknowledged that a "number of sources" have questioned whether computerized voice analysis is reliable. “However, as noted by the 2nd Circuit in Johnson, when confronted with the same arguments about polygraph testing, the reliability of the technology and its admissibility as evidence does not bear much on the therapeutic value of the tool,” Judge Mordue wrote. “Petitioner argues that the use of the CVSA [computerized voice stress analysis] is not reasonably related to the purposes of sentencing. The Court disagrees based on the nature and circumstances of the offense and the history and characteristics of the defendant.” Advocates of voice stress analysis technology say the devices can detect otherwise inaudible voice inflections in responses to questions that can indicate whether a speaker is being truthful. Testimony before Judge Mordue indicated that some 1,800 law enforcement agencies in the United States have the devices available. Most have been manufactured by the National Institute of Truth Verification or NITV, a Palm Beach, Fla. based company that has been producing the devices since 1997. Judge Mordue declined to revoke the terms of Ethan J. Gjurovich's supervised release from federal prison that the U.S. Probation Office sought following Gjurovich's completion of a five year, 10-month sentence for transporting child pornography and possessing child pornography in 2007. The term also included a three-year period of supervised release. The supervision period had required that Gjurovich submit to regular polygraph exams about his activities in the community. In August 2008, the Probation Office of the Northern District of New York sought to modify the terms of his supervision to add the requirement that he also submit to CVSA exams if asked. Officials also requested that Gjurovich be required to participate in a treatment program for sexual disorders. According to Judge Mordue's ruling, officials had become concerned about several aspects of Gjurovich's behavior, including the apparent tampering in April 2007 with software designed to monitor his online activities, his contact with another convicted sex offender and, in May 2007, his use of cocaine. CONTAINMENT APPROACH Gjurovich was sent back to a federal halfway house in 2008 because of his violations. Probation Officer Edward Cardinal contended in an affidavit in the case before Judge Mordue that Gjurovich qualified for the “containment approach” used by federal officers to monitor sex offenders. That approach includes treatment, direct supervision and monitoring by parole officers and the use of “truth verification” instruments such as polygraphs. Judge Mordue wrote that, according to Cardinal, officers believe there is a “dampening effect” involved when offenders are exposed to repeated polygraph exams. That can allow offenders to reduce their physiological reaction to the test and render it ineffective. Cardinal argued that the computerized voice stress analysis, while not used solely to verify offenders' violations, can be effective as part of a supervision strategy for further investigations and deterrence" of proscribed activities. Paul Evangelista, the assistant federal public defender who represented Gjurovich, argued that the scientific evidence so far is “dubious” about the merits of voice testing. He said a U.S. Justice Department study on the voice analysis has shown that people may be more inclined to tell the truth because, knowing there is a machine evaluating their words, they may be exposed if they are lying. “I think what the court accepted is the idea that if you tell someone it could work, then it encourages them to tell the truth,” Evangelista said Wednesday. “We have the lie-detecting dog. If you don't tell the truth, he's going to bite you.” Evangelista said in his research of the case that he could not find another federal court that has ruled on the value of imposing a computerized voice stress analysis requirement on a parolee. Legal Admissibility Lie Detection The results of lie detection examinations are admissible in a court of law if the particular lie detection technique used meets the Daubert standard to the satisfaction of the presiding judge who acts as the gatekeeper of the Federal Rules of Evidence. Recent advances in lie detection technology and lie detection techniques that have been validated by scientific studies published in peer-reviewed journals that meet the Daubert standard should open the field for renewed challenges to rules of inadmissibility. As of 1 May 2009, 18 states have adopted the Daubert standard of admissibility and the judicial door is open for other states to follow. The federal courts and most state courts that adopted the Frye standard have since then, with rare exceptions except for the State of New Mexico, denied admissibility of lie detection results in court. 19 States admit results of lie detection under stipulation by the parties. The State of New Mexico permits the introduction of lie detection results into evidence without a stipulation, under strict evidentiary rules. It was not until 1993 that the U.S. Supreme Court revisited the Frye standard in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct 2786, 125 L.E.2d 469, 509 U.S. (1993), and issued another landmark decision directly affecting the admissibility of expert testimony, including lie detection results. Under the standard enunciated by the United States Supreme Court in Daubert, which superseded the Frye standard of “general acceptance” test, the court ruled that: the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subject to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The court also stated: Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising “general acceptance” standard, is the appropriate means by which evidence based on valid principles may be challenged. The Supreme Court in Daubert summarized that: “general acceptance” is not a necessary precondition to the admissibility of scientific evidence under the federal Rules of Evidence, but the rules of Evidence – especially Rule 702 – do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands. Therefore lawyers must insure that the lie detection expert they hire has been formally trained in a lie detection technique that has been validated by published peer-reviewed research. Validation requires at least two independent research studies published in peer-reviewed journals. The preference is for field studies rather than laboratory studies, inasmuch as laboratory studies cannot generalize their results to real-world situations. For a detailed explanation of the value of field versus laboratory studies of lie detection techniques, please read “Research” in this website. Lie detection can be used in criminal and civil cases such as Plea Bargaining, Motions to Suppress Evidence, Settlements, Sentencing, Supporting Evidence, Parole and Probation, Arbitration, and Civil Actions. Since the advent of the Daubert decision there has been an increased willingness to accept lie detection results into evidence by court judges without jury, and administrative and post-trial hearings. The defense attorney who intends to introduce lie detection results as evidence in a court of law on behalf of his or her client must realize that the supersedence of the Frye standard in favor of the Federal Rules of Evidence by William Daubert v. Merrill Dow Pharmaceuticals is merely an invitation for forensic psychophysiology to show that it is worthy of acceptance by the court. It therefore behooves the attorney who has such an aspiration to present to the court a most competent and well-prepared lie detection examiner formally trained in a validated lie detection technique, whose expert testimony is preferably preceded by the scientific testimony of a foundation expert, and whose results are confirmed by a qualified quality control reviewer. The following case citations should be of interest to attorneys contemplating the introduction of lie detection results into evidence in a court of law: - United States v. Piccinonna 885 F.2d 1529 (11th Cir. 1989). But see United States v. Henderson (11th Cir. 2005) 409 F.3d 1293, 1303.
- United States v. Posado (5th Cir. 1995) WL 368417 (admission at suppression pre-trial hearing).
- United States v. William Galbreth, 908 F. Supp. 877, 64 USLW 2260, 43 Fed. R. Evid. Serv 585, 4 Oct 1995.
- United States v. Richard Ridling, 350 F. Supp. 90 (E.D. Mich 1972)
- United States v. David Crumby, 895 Fed Supp 1354 (DC AR. 1995).
- United States v. Lee, 315 F.3d 206 (3d Cir. 2003). Lie detection examinations permitted as a condition of federal supervised release at the discretion of the probation officer.
- United States v. Locke, 482 F.3d 764 (5th Cir. 2007). Lie detection as a probation condition permitted in child pornography case.
- United States v. Stoterau , 524 F.3d 988, 1003 (9th Cir. 2008). Lie detection testing as a condition of supervised release does not infringe on a defendant’s Fifth Amendment rights because defendants retain such rights during lie detection examination.
- Ohio v. Sahil Sharma. CR 06-09-3248 (2009). Results admitted over objections. Ohio Appellate Court refused to overturn judge’s ruling.
- People v. Wilkinson (122 Cal.Rprt.2d 703). The California Appeals court recently ruled that expert lie detection foundation testimony must be allowed in criminal trials.
- Ohio v. Sims, 52 Ohio Misc. 31; 369 N.E. 2d 24; (1977).
- State v. Valdez, 371 P.2d 894 (Arizona, 1962).
- State v. Dorsey, 539 P.2d 204 (New Mexico, 1975).
- People v. Kenney, 3 N.Y.S.2d 348, 167 Misc. 51 (Queens County Ct. 1938).
- People v. Daniels, 422 NYS2d. 832, 102 Misc 2d 540 (1979). Admitted over objections.
- People v. Glenn Battle, reported in NY Law Journal 18 Apr 89, Page 26, Col. 3, Justice Lewis Douglass, NYS Supreme Court, Brooklyn, NY. Admitted over objections.
- People v. Vernon, 391 NYS 2d 959 (1977).
- In the matter of Jennifer Meyer and Jessica Meyer, 132 Misc 2d 415, 504 NY.X.2d 358. Admitted over objections.
- Patterson v. State, 633 S. W. 2d 549 (Tex.Cr.App. 1982).
- Kumbo Tire Company, Ltd, et al. v. Patrick Carmichael, 526 U.S. 137 (1999). The court added that a federal judge’s “gatekeeping” role under Rule 702 extends to all expert testimony, not just that deemed scientific. Thus, in federal court, soft-science (experience based) experts are subject to pre-trial Daubert challenges just like data based hard science.
- William Davis v. The People of the State of New York: County of Erie Office of Children and Family Services Administrative Law Judge Proceeding. SCR No. 218608069, Hearing ID No. 43132. Hon. Jerry McGrier, Sr., Administrator Law Judge, 25 March 2009.
NOTE: While the case of United States v. Edward G. Scheffer, 41 MJ 683 (AF Ct. Crim App 1995) and 423 U.S. 303 (1998) upheld the presidential ban on the admissibility of lie detection results in military courts, its position can be successfully challenged in that it permitted States to ban lie detection by statute due to the uncertainty of lie detection validity which has since been rectified with significant scientific validation studies published in peer-reviewed journals. Furthermore, the results of lie detection tests can still be admitted as character evidence as was permitted in United States v. Crumby (d. Ar. 1995) 895 F. Supp. 1354 wherein the mental state of the defendant was avoided (U. S. v. Campos, 217 F.3d 707 (9th Cir. 2000). Below is an excellent critique of the United States v. Campos decision in a law review. ARTICLE: THE SIGNIFICANCE (IF ANY) FOR THE FEDERAL CRIMINAL JUSTICE SYSTEM OF ADVANCES IN LIE DETECTOR TECHNOLOGY Jeffrey Bellin* 80 Temp. L. Rev. 711, 726-727 (2007) B. Lie Detector Evidence and the "Ultimate Issue" Prohibition of Rule 704 Courts have also ruled that expert testimony regarding certain lie detector results is inadmissible under Federal Rule of Evidence 704(b) because the testimony encompasses the "ultimate issue." 64 As explained below, this objection, even if valid, is narrow in scope and consequently should not prove to be a significant obstacle to the future admission of lie detector evidence. As originally drafted, Federal Rule of Evidence 704 was intended to abolish the common law doctrine that prohibited testimony on the "ultimate issue," a prohibition deemed by the drafters of the rule to be "unduly restrictive, difficult of application, and generally serving only to deprive the trier of fact of useful information." 65 In 1984, after a mentally disturbed individual attempted to assassinate President Reagan and a deranged fan murdered John Lennon, Congress passed the Insanity Defense Reform Act of 1984, 66 which, among other things, added a new subsection to Rule 704 in order to "constrain psychiatric testimony on behalf of defendants asserting the insanity defense." 67 The added subsection of Rule 704 states in full that: No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact [*725] alone. 68 Despite arguments to the contrary, a number of circuits have interpreted Rule 704(b) to extend beyond the testimony of psychiatric or mental health experts "to all expert witnesses." 69 The Ninth Circuit has subsequently applied this prohibition in two cases in which lie detection experts intended to testify with respect to the defendants' answers to questions that indicated the absence of criminal intent. 70 Even assuming that Rule 704(b) properly applies to the testimony of all experts, proponents of lie detector expert testimony should have little difficulty avoiding its prohibitions, for a variety of reasons. First, the vast majority of lie detector evidence will not pertain to the "mental state or condition" of the defendant and consequently will not trigger the application of Rule 704(b). Rather, the more common use of lie detector evidence will be to establish the credibility of statements regarding objective facts - for example, a defendant's statement that he was not present at the scene of the crime or that he did not engage in a physical act that forms the basis of the crime charged. 71 Second, even where the dispute at trial revolves around an issue of intent - such as whether a killing was premeditated or committed in self-defense - lie detector evidence can be introduced without any direct inquiry into a "mental state or condition." A defendant can disprove his intent in the same manner the prosecutor will try to prove it - circumstantially. 72 The questioning presented [*726] from the lie detector examination will, again, solely concern objective facts, but in this case, those facts will be offered to disprove the requisite criminal intent. For example, if the defense seeks to prove that the defendant acted in self-defense, there is no need for the expert to inquire directly as to the defendant's "intent." Rather the expert could ask whether the victim had a weapon, whether the victim threatened to kill the defendant, who struck the first blow, and so on. 73 By showing the absence of criminal intent solely through circumstantial evidence of objective facts, the expert's testimony avoids any conflict with Rule 704(b). 74 Third, contrary to the Ninth Circuit's analysis, a lie detector expert can, in fact, testify with respect to the veracity of a defendant's answer to an inquiry as to intent without violating the ultimate issue prohibition of Rule 704(b). 75 This is because there is a distinction between an expert's opinion that the defendant truthfully stated he acted with a certain intent (e.g., in self-defense), and the expert's (perhaps prohibited) opinion that the defendant did, in fact, act with that intent. As the Ninth Circuit itself has explained in another context, the prohibition in Rule 704(b): does not bar testimony supporting an inference or conclusion that a defendant does or does not have the requisite mental state, "so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony." 76 Even the most sophisticated lie detector technology will not enable an expert to testify as to a defendant's past intent. Instead, the most an expert can [*727] say is that when the defendant voiced an innocent intent, lie detector technology indicated that the defendant was truthful. The ultimate issue of the defendant's intent does not "necessarily follow" from this testimony. 77 Rather, as the prosecution will no doubt argue, the test could be flawed, or the defendant may have "fooled" the test or deluded himself, and thus, even if the expert's testimony regarding the test is credited, the jury could still conclude that the defendant possessed the requisite criminal intent. 78 Thus, the exceedingly narrow significance of Rule 704(b) in the lie detector context is, at most, that a lie detector expert is not permitted to testify directly as to the veracity of a defendant's response to a question such as, "what was your intent?" And, as discussed above, even the exclusion of that testimony under the rule is legally questionable. |
