Thank You For Submiting Feedback!
By enacting Cal. Evid. Code § 351.1, the legislature abrogated the Kelly/Frye rule with respect to the admission of polygraph evidence in criminal cases. The legislature enacted § 351.1 to overrule the then recently decided appellate court decision in Witherspoon, which had criticized the routine application of the Frye test to exclude polygraph evidence and had suggested that such evidence could be admitted if the proponent made a showing of admissibility under certain provisions of the Evidence Code. Thus, in adopting § 351.1, the legislature effectively codified the rule set forth in the pre-Witherspoon California cases involving polygraph evidence, namely that such evidence is categorically inadmissible in the absence of the stipulation of all parties.
In the early morning hours of February 27, 1999, a motorist observed Wilkinson driving erratically on a street in the City of Santa Monica. Wilkinson’s vehicle crossed over the center divider, struck a parked car, and continued down the street, swerving between lanes. Wilkinson eventually stopped her car at a curb and placed her head on the front passenger seat. After the motorist telephoned the police, officers responded and tapped on the window of Wilkinson’s parked car, whereupon Wilkinson looked at one of the officers and drove off. The police gave chase for three blocks before defendant stopped. Wilkinson, who smelled strongly of alcohol and exhibited slurred speech, indicated she had consumed some drinks but not many. She could not complete a field sobriety test and did not respond when told she was required to submit to a blood or breath test for alcohol. Officers transported Wilkinson to the police station. She was belligerent during booking and resisted a patsearch. At one point, Wilkinson grabbed a custodial officer's arm with both hands, causing a visible welt. When taken to a holding cell, Wilkinson charged at an officer and yelled, kicked, and banged at the door. After the police reminded Wilkinson that she would have to submit to a blood or breath test, defendant covered her ears, stated “I can't hear you,” and began running around inside the cell. An officer testified Wilkinson appeared to be under the influence of alcohol but not of drugs. She was thus charged by information with the offenses of battery on a custodial officer, a felony, and with driving a vehicle under the influence of alcohol and failing to stop at the scene of an accident, both misdemeanors.
In her defense, Wilkinson testified that she met a man who offered to buy her a drink, which she accepted. The man then invited her to meet at a restaurant, where defendant waited for three hours to no avail. At the restaurant, Wilkinson consumed three alcoholic beverages over the course of three hours while she waited for the man, but he never arrived. She left her drink several times to use the restroom and to smoke a cigarette outside. She eventually left the restaurant, driving away without feeling any signs of intoxication. The next thing she remembered was waking up in jail, with no recollection of her encounter with the officers. After her release from custody, defendant filed a police complaint alleging she had been drugged. A toxicologist, testifying on behalf of the defense, expressed the opinion that on the night in question Wilkinson was under the influence of alcohol and gamma hydroxy butyrate (hereafter GHB), commonly known as a “date rape” drug, basing his opinion on a review of the police report and a videotape of Wilkinson’s conduct in the holding cell.
Prior to trial, Wilkinson sought admission of evidence establishing that she had submitted to a polygraph examination and that, in the opinion of the polygraph examiner, she had “passed” the exam, responding truthfully (in the negative) to queries regarding whether she knowingly consumed more than five drinks on the night in question, knowingly ingested GHB or any other drug, or knowingly attacked an officer in a detention cell. Thus, Wilkinson requested a Kelly/Frye hearing, making an offer of proof that the polygraph examination technique employed by the examiner had been generally accepted in the scientific community and that the examiner employed proper procedures in administering the test. The trial court declined to hold an evidentiary hearing, citing Evidence Code section 351.1. The jury convicted Wilkinson as charged, and the trial court placed defendant on formal probation for three years. The Court of Appeal reversed Wilkinson’s convictions, determining by a two-to-one vote that the statutory scheme pertaining to battery on a custodial officer violates equal protection principles, and unanimously concluding that the trial court erred by failing to hold a Kelly/Frye hearing regarding the admissibility of Wilkinson’s proffered polygraph evidence.
Did the trial court err in declining to hold a Kelly/Frye hearing regarding the evidence proferred by Wilkinson?
United States v. Scheffer noted that “the scientific community remains extremely polarized about the reliability of polygraph techniques.” With respect to the reliability of the “control question technique” employed in the present case, Scheffer observed that studies ran the gamut from showing an 87 percent accuracy rate to a rate “ ‘little better than could be obtained by the toss of a coin,’ that is, 50 percent.” This disagreement in the scientific community in turn has been reflected “in the disagreement among state and federal courts concerning both the admissibility and the reliability of polygraph evidence.” Wilkinson cannot persuasively contend that between the time of the Scheffer decision and her trial, a span of two and one-half years, the deep division in the scientific and legal communities regarding the reliability of polygraph evidence, as recognized by Scheffer, had given way to a general acceptance that would render the categorical exclusion of polygraph evidence “so arbitrary or disproportionate that it is unconstitutional.” Indeed, defense counsel conceded at oral argument that the disagreement within the scientific community regarding the reliability of polygraph evidence had not been significantly altered in that time period. Further, Wilkinson’s offer of proof in the trial court regarding the reliability of polygraph evidence consisted of a publication of the APA that outlined the studies and briefing presented in the Scheffer case—materials which the United States Supreme Court expressly considered and cited in Scheffer in concluding there existed no scientific consensus on the reliability of polygraph evidence in general and the control question technique in particular. Likewise, the legal authorities cited by defendant in the trial court as indicative of a “major reevaluation of the admissibility of polygraph evidence by the federal courts” all predate the Scheffer decision and, in any event, did not consider the constitutionality of a categorical exclusion of polygraph evidence. In light of the continuing division of opinion regarding the reliability of polygraph evidence, as recognized by Scheffer, the California Legislature has not acted “arbitrarily or disproportionately in promulgating [and retaining] a per se rule excluding all polygraph evidence.”
Wilkinson contends the polygraph evidence she proffered was “critical to her defense” and thus exclusion of this evidence deprived her of the constitutional right to present a defense, citing Rock v. Arkansas and Chambers v. Mississippi. In Rock, the United States Supreme Court concluded that a per se rule excluding all hypnotically refreshed testimony infringed upon the defendant's constitutional right to testify, where the rule prevented the defendant from testifying regarding the circumstances underlying the charged killing, including whether it was accidental. The court in Chambers held that the defendant's constitutional right to present a defense was impaired by Mississippi's “voucher” rule, which prevented the defendant from impeaching a defense witness whom he alleged had committed the charged killing, coupled with application of the hearsay rule to exclude testimony that the witness had confessed to three persons. These decisions do not assist defendant. Scheffer distinguished Rock and Chambers, finding that “unlike the evidentiary rules at issue in those cases, [the rule excluding polygraph evidence] does not implicate any significant interest of the accused.” The use of polygraph evidence proposed at Wilkinson’s trial was indistinguishable from that proposed in Scheffer. Wilkinson sought the admission of polygraph evidence to bolster her testimony that she was not under the influence of alcohol prior to leaving the restaurant and driving home, and to corroborate evidence suggesting that her subsequently inebriated state (which led to her erratic driving and assault of a custodial officer) could have been caused by someone placing a drug in the drinks she consumed at the restaurant. Similarly, the airman in Scheffer sought to introduce polygraph evidence to bolster his claim of “ ‘innocent ingestion’ ” of drugs. Scheffer held that the exclusion of such evidence did not abridge the defendant's right to present a defense, because the defendant was not prevented from presenting “the relevant details of the charged offense from the perspective of the accused” or from “introducing any factual evidence.” Wilkinson in the present case testified to her version of the events and presented the testimony of a toxicologist and a police officer in support of her claim of having been drugged. As in Scheffer, defendant “was barred merely from introducing expert opinion testimony to bolster [her] own credibility.”