Black Robes, White Coats: The Puzzle of Judicial Policymaking and Scientific Evidence

Notes

181 chapter 2 — clues to judicial behavior 1. FRE 702 states that scientific evidence must be found to be “reliable and relevant” to be admissible. chapter 4 — lie detection 1. The common application of this strategy was the placement of a tack in the subject’s shoe. During questioning the subject would push down on the tack to increase physiological response. 2. “Several companies market a computerized polygraph, and such polygraphs use an algorithm developed either by Raskin and John C. Kirchner, Ph.D., or by Johns Hopkins University. The software uses the algorithm to evaluate the physiological data gathered. Davis used a Stoelting computerized polygraph with the Raskin-Kircher algorithm. After the test is completed, the polygraph charts are evaluated to determine if the pattern of physiological reactions indicates truthfulness or deception to the relevant questions. This is done by systematically comparing the strength of reactions to the relevant and control questions to determine if the reactions were consistently stronger to one or the other. Critiques about the subjective nature of polygraph scoring often center on the possibility that individual examiners may assign different scores to the same tests. Computerized scoring aims at diminishing this subjective element. The Raskin-Kircher computerized polygraph system records the data, and then the computer program analyzes the data and provides a score. The results are expressed in terms of the probability that the subject was truthful or deceptive in answering the relevant questions” (State v. Shivley 999 P.2d 952 [Kan. 2000], 958). 3. The discussion in this section borrows heavily from a thorough analysis by the Connecticut Supreme Court in State v. Porter 698 A.2d 739 (1997). 4. Post-conviction relief has also led defendants to embrace DNA evidence. In all other aspects of criminal processing, however, especially those cases reaching state supreme courts, DNA evidence was supported by the prosecution. 5. These cases were collected using a state-by-state LexisNexis search of all high court cases containing the phrase “lie detector” or the word “polygraph.” Each case was then N O T E S briefly read (using the KWIC function in Lexis) to isolate wherein the court ruled on the validity/reliability and admissibility of the science used in polygraph analysis. Cases in which a court merely cited precedent were not included in the analysis. These cases do not represent significant revisiting of the question and are usually brief dismissals of a polygraph question raised amid a range of issues on appeal. Thus, only cases where the court agreed to review the question again or for the first time are included. These cases are not a sample; they compose the complete picture of court activity. 6. By comparison, federal appellate courts grant trial judges more leeway to admit, especially in the wake of Daubert. The majority of federal courts of appeals do not have a per se rule that polygraph evidence is inadmissible at trial. Only the fourth and the DC court maintain a per se rule of inadmissibility. 7. “To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques” (United States v. Scheffer [1998], 1265). 8. It is true that DNA evidence has been advocated by defendants in post-conviction relief proceedings. This occurred, however, only after the scientific validity of the evidence was established in other contexts. When it came to trial court evidence, the prosecution was the only party introducing DNA evidence. chapter 5 — syndrome evidence 1. Variants on BWS were also searched. These included: battered wife syndrome, battered spouse syndrome, and spousal abuse syndrome. 2. This point is discussed in Giannelli and Imwinkelried (1993, 258). Legal scholars have understood the problematic nature of treating syndrome evidence in a manner similar to lab science. 3. Multivariate analysis of syndrome evidence was attempted in several iterations with no success. The small number of cases likely prevented satisfactory generation of results. notes 182 ...