Opinion
Cr. 6063
7-11-1958
PEOPLE v. SCHIERS.
PEOPLE
v.
SCHIERS.
July 11, 1958.
Dissenting Opinion Aug. 7, 1958.
PER CURIAM.
Hearing denied.
CARTER, TRAYNOR and SCHAUER, JJ., dissenting.
CARTER, Justice.
I dissent from the order denying a hearing in this case.
Rule on appeal 29(a) declares: 'A hearing in the Supreme Court after decision by a District Court of Appeal will be ordered (1) where it appears necessary to secure uniformity of decision or the settlement of important questions of law * * *.' (Emphasis added.) A hearing of the case should have been granted for both reasons because the prosecution introduced evidence of a lie detector test before the jury.
Officer Belle was the last witness in the prosecution's case in chief. He was asked: 'Did you at any time ask him (defendant) about the benzedrine showing up blood on his skin?' Belle related an interview with defendant. During this he said: 'On the night of February 12th, we had taken him to the Police Administration Building and gave him a lie detector test and told him that the test indicated that he was lying and asked him if he could explain that, and he said, 'No, there was something wrong with the machine.'
'When we first asked him to take the test, he was agreeable to take it. So Lietenant (sic) Putty explained the test to him and asked him to pick out a card with a number on it, and when he was asked what the number was, he was to lie about it and the machine indicated he was lying.
'So Mr. Schiers felt that the test was a fair one and agreed to take it. We told him that the test indicated that he was lying, and he said that he couldn't understand it, even though he believed it was accurate when they showed him the experiment. He couldn't understand why it indicated that he was lying when they asked the questions about the murder of his wife.' (Emphasis added.)
The trial judge ordered the noon recess at this point. Upon resumption of the trial the judge admonished the jury 'not to consider or even recall' Belle's testimony regarding the lie detector. The District Court of Appeal held that the admonition obliterated the error. An admonition may cure minor errors. But to hold that an egregious and shocking attack upon the integrity of an accused is blotted out of a juror's mind by a mere incantation is as fictional as John Doe. People v. Lyons, 47 Cal.2d 311, 303 P.2d 329; People v. Aragon, 154 Cal.App.2d 646, 316 P.2d 370; People v. Wochnick, 98 Cal.App.2d 124, 219 P.2d 70. This error surpasses that in Lyons.
This 'error' was deliverately committed at the end of the prosecution's case. Behind it were the prestige of science, the glamour of a modern scientific testing device, with the immense publicity given the 'lie detector' in mass communication media. See, People v. Aragon, supra, 154 Cal.App.2d at page 658, 316 P.2d at page 378. No expert testified to the accuracy of the instrument, nor was the jury permitted to draw its own inferences from the questions asked during the test and the reactions of the instrument. The interpreter of the test may have been anybody, although this requires extensive training. In fact, Belle did not testify to the test results; he merely testified that defendant was told it was unfavorable to him, leaving an obvious inference to the jury. A poll of jurors who sat in a case in which lie detector evidence was received (People v. Kenny, 167 Misc. 51, 3 N.Y.S.2d 348) shows they were greatly influenced by the evidence. I, therefore, conclude that the admonition was impotent before such powerful testimony. People v. Aragon, supra, 154 Cal.App.2d 646, 316 P.2d 370; People v. Wochnick, supra, 98 Cal.App.2d 124, 219 P.2d 70.
One would be credulous indeed to believe the prosecutor was surprised by Belle's revelation (see, People v. Aragon, supra, 154 Cal.App.2d 659, 316 P.2d 379). Both knew that such evidence is inadmissible. The theory of separation of powers enjoins the judiciary to restrain the excesses of the executive (Montesquieu, Spirit of Laws, Book 5, ch. 10; Book 6, ch. 6; The Federalist No. 48; see, Griswold, The Fifth Amendment Today, p. 76, which indicates these fears are justified. Contra: Vyshinsky, The Law of the Soviet State, p. 498: 'The bonds joining court and prosecutor's office are of the closest possible character and they act united by an indissoluble and organic bond.'). By this decision the California judiciary invites repetition of such open debauchery of basic fairness to the discredit of bench and bar. In my opinion it amounts to a denial of due process of law.
This case breaks the uniformity of California decisions holding that an admonition to ignore the prosecution's evidence of lie detector tests is powerless. People v. Aragon, supra; People v. Wochnick, supra. The facts in the Wochnick case are identical with the instant one. These cases appear irreconcilable. People v. Carter, 48 Cal.2d 737, 312 P.2d 665, held that the results of lie detector tests are not judicially recognized as accurate and therefore are not probative. After reversal, Carter was retried and acquitted. People v. Porter, 136 Cal.App.2d 461, 288 P.2d 561, affirmed the refusal of the trial court to permit defendant to take a lie detector test because such evidence had been held inadmissible in California criminal prosecutions. People v. Houser, 85 Cal.App.2d 686, 193 P.2d 937, affirmed a conviction based on such testimony because defendant stipulated to it in writing and expressly waived his privilege against self-incrimination. Twenty-one reported cases from other states have passed upon the admissibility of evidence of various 'lie detector' devices to gauge the veracity of an accused. Not one appellate court has approved admission of such evidence. It was admitted as evidence on behalf of a defendant (People v. Kenny, supra, 167 Misc. 51, 3 N.Y.S.2d 348), and was admitted for the sole purpose of proving a confession voluntary in Tyler v. United States, 90 U.S.App.D.C. 2, 193 F.2d 24. In only five of the twenty-one cases was it offered by the prosecution. In the others it was offered by the defense. California now becomes the first jurisdiction to affirm a successful prosecution employing lie detector evidence.
Since the error was prejudicial because of its impact on the jury, the judgment of conviction should be reversed even though other evidence clearly established defendant's guilt. The testimony in issue violated defendant's privilege against self-incrimination (Cal.Const. art. I, § 13) and his right to a fair trial (U.S.Const. Fourteenth Amendment; Cal.Const. art. I, § 13). When constitutional liberties are impaired, article VI, section 4 1/2, is powerless to cure the error. People v. Sarazzawski, 27 Cal.2d 7, 161 P.2d 934, citing opinion of Sloss, J., in People v. O'Bryan, 165 Cal. 55, 130 P. 1042.
The privilege against self-incrimination extends to informal proceedings. People v. Simmons, 28 Cal.2d 699, 172 P.2d 18; Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568. Whether forcing a suspect to submit to a lie detector test violates this privilege has not received judicial scrutiny. In People v. Trujillo, 32 Cal.2d 105, 194 P.2d 681, this court held that only testimonial evidence was privileged, relying upon Wigmore, Evidence, section 2263, for this interpretation. Is evidence of a lie detector test testimonial? In Trujillo, the court said testimonial means evidence from one's own lips (32 Cal.2d at page 112, 194 P.2d at page 685). Wigmore, however, contended the privilege existed only in formal proceedings where this form of expression is alone practical. In an out of court situation, other forms of communication must be included, for example, written records. United States v. Wheeler, D.C., 149 F.Supp. 445. Holmes used the term communication, which is broader. Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 54 L.Ed. 1021. Wigmore defined testimonial evidence as '* * * the assertions of human beings regarded as the basis of inference to the propositions asserted by them. * * *' All other evidence is circumstantial. Wigmore, The Science of Judicial Proof (3d ed. 1937), p. 12. This would seem to mean that a fact observable to anyone, such as a person's footprint, his appearance, his handwriting, or his blood type, is circumstantial. But if one must rely on another's assertions to establish a fact it is testimonial. For example, did X shoot Y outside the interrogator's presence? The memory and perception of X are relied upon for a response. This is true when a lie detector is used, although it is not necessary for the accused to make a verbal reply to a question to produce a reaction in the machine. Inbau, Self-Incrimination (1st ed.), pp. 67-68. In essence, although the device records only objective physiological data, the ultimate source of that data is the nervous system of the accused. This was the rationale of the holding in People v. Harper, 115 Cal.App.2d 776, 779, 252 P.2d 950. The machine is a new and artificial method of communicating thought.
But the true question is: Should this evidence be within the scope of the privilege? Certainly it must be excluded until it is generally regarded as accurate. It is not now so regarded. People v. Davis, 343 Mich. 348, 72 N.W.2d 269, 281; Henderson v. State, 94 Okl.Cr. 45, 230 P.2d 495, 501; Sell, 'Deception Detection and the Law,' 11 U.Pitt.L.Rev. 210; 39 Cal.L.Rev. 439, 440 (citing Kiracofe, JAG J. 56 (June, 1948)). Contra: Inbau, 'The Lie Detector,' 26 B.U.L.Rev. 264. But assuming it is 100% accurate evidence of these tests should be held within the privilege because its use violates the policy foundations of the privilege. Inbau, Self-Incrimination, pp. 67-68; Green, 'Can Science Legally Get the Confession,' 21 A.B.A.J. 808; Silving, 'Testing of the Unconscious,' 69 Harv.L.Rev. 683; 37 Harv.L.Rev. 1138. These are expounded in Wigmore, Evidence, §§ 2250-51; Griswold, The Fifth Amendment Today; and Chafee, The Blessings of Liberty, pp. 184-209. Briefly they include these policies:
1. To stimulate law enforcement agencies to discover independent evidence to uncover offenders rather than resort to the inquisitorial examination of many persons.
2. To keep individuals free from police investigation and meddling unless there is probable cause to believe one has broken the law. See Butler, J., Sinclair v. United States, 279 U.S. 263, 292, 49 S.Ct. 268, 73 L.Ed. 692.
3. To preclude inquisitions into a person's private life by local 'tyrants' for the purpose of 'ensnarement.' See, also, Despres, 'Legal Aspects of Drug-Induced Statements,' 14 U.Chi.L.Rev. 600, 607.
4. Dependence upon confession at trials.
5. Assuming the detector becomes 100% accurate and its results are admissible, the jury will become vestigial and the defendant will no longer be a 'party' since he cannot make a realistic defense. The real case will be decided not in open court but in the laboratory. See: Silving, 'Testing the Unconscious,' 69 Harv.L.Rev. 683, 701; Kaganiec, 'Lie-Detector Tests and 'Freedom of the Will' in Germany,' 51 Nw. U.L.Rev. 446.
The lie detector is offensive to the traditions of our law. Germany's highest court reversed a conviction obtained with the aid of lie detector evidence. It held that it violated the principal of the Constitution that 'Man's dignity is inviolate.' Reported by Silving, op. cit. supra, 688. The historical antecedent of this Constitution is remarkably like that which produced the privilege in our own tradition. On April 10, 1958, Pope Pius XII condemned the use of narcoanalysis and lie detectors by police to extract confessions from suspects as illicit. Address to 13th International Congress of Applied Psychology reported by Professor G. Zilboorg, M.D., in America, June 7, 1958, p. 308.
Although Schiers consented to the test in the instant case, he cannot be held to have waived his immunity. Belle testified that the police convinced Schiers of the machine's accuracy. Assuming he was guilty, he did waive the privilege. Assuming he is innocent, he did not. It was observed that the machines are not fully accurate, particularly without expert operation. McCormick, Evidence, p. 373. An innocent man, convinced of the device's accuracy, would anticipate a favorable result, not an involuntary admission of guilt. He cannot be held to have waived his privilege against an untruth. Incriminating evidence obtained by deceit is within the privilege (United States v. Wheeler, D.C., 149 F.Supp. 445; People v. Leyra, 302 N.Y. 353, 98 N.E.2d 553). Of course, no one but Schiers knows if he killed his wife.
The 'confession' via the lie detector was so unfairly obtained and presented as to taint the entire proceeding within the test prescribed in Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. Although it was not the usual confession expressed vocally or in writing, it was tantamount to one. Belle in effect told the jury that Schiers' perception and memory caused a physical reaction recorded by the lie detector, and that it indicated Schiers' verbal denial of guilt was a lie. If the jury believed the instrument to be accurate as Belle tacitly implied it was, they must have interpreted it as an acknowledgment of guilt. It made precisely the same impression on the jury as a confession. Defendant, without counsel, was convinced that the detector was an accurate device. There is no evidence that an expert administered the test. There is no statement that the machine indicated Schiers was lying, although Belle's chronicle conveyed to the jury this impression. Belle only said Schiers was told the machine showed he was lying. This is often done to 'break down' a suspect to confession. The impact on the jury was that the questions asked during the test, the verbal replies, and the infallible lie detector bared Schiers' consciousness and revealed guilt. An innocent defendant relying on the device would expect it to exculpate him, not condemn him. If Belle was deceitful, the officers did not tell Schiers the true results, or the test was inconclusive, as about 20% of them are. See, Inbau, 'The Lie Detector,' 26 B.U.L.Rev. 264, 268. 'Voluntary' confessions obtained after such tests are admissible. State v. DeHart, 242 Wis. 562, 8 N.W.2d 360; Webb v. State, Tex.Cr.App., 291 S.W.2d 331; Henson v. State, 159 Tex.Cr.R. 647, 266 S.W.2d 864; Commonwealth v. Hipple, 333 Pa. 33, 3 A.2d 353; Tyler v. U.S., 90 U.S.App.D.C. 2, 193 F.2d 24. Contra: People v. Sims, 395 Ill. 69, 69 N.E.2d 336 .) However, Schiers has always maintained his innocence. Evidence obtained by misrepresentation is constitutionally excludable (United States v. Wheeler, supra, 149 F.Supp. 445. The sum total of fairness and trustworthiness in this sort of evidence, when impressed upon a jury, is on a par with the old shell game.
Further, no expert appeared to testify to the precautions taken to insure the accuracy of the test or to interpret the machine's reactions. The jury did not hear the questions asked Schiers, his answers, or the degree to which the test was conclusive or what inferences could be drawn from the test. The jury was only told that the lie detector found Schiers guilty. Defense counsel, properly fearing the effect on the jury of the reiteration of this evidence, did not cross-examine on this point.
For these reasons a hearing should have been granted and the judgment of the trial court reversed.
SCHAUER, J., concurs. --------------- 1 Lack of training increases the incidence of error precipitously. McCormick, Evidence 373 (1954). 2 This is the only such poll found. Defendant was found innocent. To the question: 'Was the 'lie detector' testimony, in your opinion, conclusive proof of the innocence or guilt of Kenny?' six answered 'yes,' four 'no.' Two jurors did not respond to the poll. Forkosch, 'The Lie Detector and the Courts,' 16 N.Y.U.L.Q.Rev. 202, 228-229 (1938-1939). 3 Accord: Wigmore, 'Professor Muensterberg and the Psychology of Testimony,' 3 Ill.L.Rev. 399, 420; Sell, 'Deception Detection and the Law,' 11 U.Pitt.L.Rev. 210, citing for same point 28 Ill.B.J. 308. Cases in accord: Henderson v. State, 94 Okl.Cr. 45, 230 P.2d 495, 502, 23 A.L.R.2d 1292; Boeche v. State, 151 Neb. 368, 37 N.W.2d 593, 597. Some writers disagree: McCormick, 'Deception Tests and the Law of Evidence,' 15 Cal.L.Rev. 484, 520. He analogizes a polygraph, which measures physiological factors, to footprints and other objective evidence. But truth serum tests are inadmissible since the accused's very words are to be used against him. Inbau, 'Scientific Evidence in Criminal Cases,' 24 J.Crim.L. & Cr., 1140, 1151. But he says diagnoses must be accepted with utmost caution and reservation. 'The Lie Detector,' 26 B.U.L.Rev. 264. He says the courts are justified in excluding such evidence, op. cit. 271. He agrees with McCormick on truth serium tests. Inbau doubts that the courts will accept the analogy to 'physical' evidence and rule lie detector tests are not privileged. Self-Incrimination, p. 67. 4 Inbau, 'Scientific Evidence in Criminal Cases,' 24 J.Crim.L. & Cr., 1140, reports certain banks give periodic lie detector tests to employees and a background detector test for prospective employees (1144). He also reports a successful inquisition in a dormitory theft case (1146). See, also, McCain v. Sheridan, 160 Cal.App.2d 174, 324 P.2d 923. Loyalty tests and general 'criminal examinations' are conceivable in the near future. For a critique, see Orwell, 1984. 5 Chafee says the lie detector is so complex and the testing and interpretational methods so specialized, that a jury may have to undergo an I.Q. test before it is permitted to draw inferences from evidence of the tests. 'The Progress of the Law, 1919-21,' 35 Harv.L.Rev. 302, 309. 6 The instrument is not in the examinee's view during the test.