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more impact on that person and on others than when the same information comes from other sources.

78 Although the compelling of a handwriting or voice sample does not involve many of the abuses from which the privilege against selfincrimination seeks to free the citizen, probably there is a sufficient residuum to justify the decisions which have applied the privilege in this context. This is all the more so, since in modern American society it is usually possible to obtain a specimen of a suspect's handwriting by checking various official files and registries.co

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"TRUTH DRUGS" AND "LIE DETECTORS." In the popular press, among the more publicized instrumentalities for the detection of criminals are the so-called "truth serum”-drugs such as scopolamine, sodium amytal, and sodium pentothal—and the "lie detector,” or polygraph, which seeks to discover deception by means of graphs recording physical responses associated with the answering of questions concerning a crime. In addition to its use in criminal investigation, the lie detector has been utilized by some private concerns and by several “sensitive” government agencies in screening employes. *1

Although both lie-detector and truth-serum results have generally been rejected as evidence in the United States, chiefly because of a claimed lack of reliability, the most vigorous denunciation of these investigative devices seems to have come from European sources. For example, after the use of drugs by French physicians to detect a malingerer, the Council of the Bar Association of the Court of Appeal of Paris adopted a resolution condemning the judicial use of narco analysis.82 This resolution emphasized that use of "truth serum”

"It is believed that psychiatrists would agree that sometimes admissions from a patient's own lips of certain past incidents can be a significant aspect of psychotherapy. Also, whether or not confession is good for the soul, certain theologians obviously place great emphasis on it.

However, Professor Inbau, an outstanding expert in this area, seems to disagree. See INBAU, SELF-INCRIMINATION 46 (1950).

E.s., an application for a driver's license signed by the suspect can often be located. Also, frequently a handwriting specimen can be obtained by a ruse or strategemapparently permissible police tactics in this setting.

"Sve People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); Highleyman, The Deceptie Certainty of the "Lie Detector," 19 Hastings L.J. 47 (1958); see also L'nited States v. Haynes, 9 U.S.C.M.A. 792, 27 C.M.R. 60 (1958).

" Sec Gaugnicur, The Judicial Use of Psycho-Narcosis in France, 39 J. Crim. L., C. & P.S. 663 (1949).

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might involve violation of the physician-patient privilege and would constitute "an unbearable blow to the principle of inviolability of the human person.” Furthermore, the statements and admissions of a person “which had been obtained under the influence of a pharmodynamic product, would be deprived of any probatory value in the legal

sense.”

The German Supreme Court in 1954 ruled on evidence obtained by a lie detector test which apparently had been administered with the defendant's consent. The use of such evidence led to reversal of the

88 conviction because, apart from the usefulness of the polygraph in crime detection and the dependability of the scientific principles on which it rests, the court considered that it contradicted the inviolability of human dignity as guaranteed by the German Constitution. Although the trial court could properly consider conscious and unconscious revelations on the part of the accused during the course of the trial, the scientific invasion of the accused's soul by means of the polygraph contradicted his right to freedom of decision and exercise of will.

A recent law review article expands the same concept and argues that to use truth serum or lie detectors, even with the consent of the accused, involves an invasion of the accused's personality and should never be allowed. Under the concepts presented in that article, it would contravene due process even to use the truth drugs or the lice detector prior to trial-much less to introduce the results of such tests in court. The consent of the person being tested would not alter the result, nor would the fact that the tests were used on a prosecuting witness instead of on the defendant. Presumably, if such tests should not be used even to exonerate an innocent accused with his own consent, it would be equally illegal to use them for screening employees and the like.

In the American cases, it generally has been the defendant who has attempted to use the results of truth serum or polygraph tests. As applied to such cases, the views just discussed would exclude the result of such tests, irrespective of their reliability. On the other hand, the focus of the American courts has been on the reliability or unreliability of the test—and this, in turn, implies an unwillingness to rule that the

Decision of First Criminal Senate, German Supreme Court from District Court oi Zweibruckens B.G.H. St. 332, No. 78 (Feb. 16, 1954).

“Silving, Testing of the Unconscious in Criminal Cases, 69 HARV, L. Rev. og (1956).

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evidence resulting from such tests must be held inadmissible in order to vindicate man's "dignity."

Apparently, it is thought that an accused's dignity will be better preserved by protecting him from an unjust conviction and possible death or confinement than by forbidding the probing of his unconscious mind. After all, if psychiatrists are allowed to probe the unconscious with drugs in preserving a patient from disease, is it so much worse to probe someone's unconscious to protect him from injustice!

One of the most recent instances of a defendant's effort to introduce in evidence truth-serum results occurred in State v. Sinnott.85 The defendant, who was accused of sodomy with a thirteen-year-old child, called as a witness a psychiatrist who had examined him twice prior to trial—the second time with the aid of sodium pentothal, a truth drug.

The doctor proposed to testify that, in his opinion, Sinnott was not a sex pervert; but the evidence was excluded. The New Jersey appellate courts considered the offered testimony to be a form of character evidence, and yet not evidence that complied with the usual rules governing character evidence. To admit such evidence would, among other things, present the problem of the manner in which the prosecution could undertake rebuttal. Would it be permissible for the prosecution to rebut with evidence concerning specific acts of misconduct, or with testimony from any doctors who might consider the defendant to be a sex deviate?

In so far as the use of truth serum was concerned, the unreliability of results obtained thereby was emphasized in the Sinnott case. 86 Not every person tells the truth under the influence of drugs; many fabricate or indulge in fantasy, and frequently the subject is quite suggestible. Danger exists, therefore, that a truth-serum interview may be simply an opportunity for a defendant to make to a psychiatrist self-serving state

a ments that are not subject to cross-examination. Then, if the psychiatrist is allowed to present his expert opinion and explain the basis therefor, these same statements may be repeated to the jury-at this point, surrounded by the atmosphere of credence created by their having been made under the influence of a "truth serum."

43 N.J. Super. 1, 127 A.2d 424 (1956), af'd, 24 N.J. 408, 132 A.2d 298 (1957).

Great reliance was placed on the conclusions reached in Dession et al., Drug. Induced Revelation and Criminal Investigation, 62 YALE L.J. 315 (1953), an article often cited by the courts in connection with truth serum problems.

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Rejected by the New Jersey courts was the reasoning of People v. Jones, 87 a California decision on which Sinnott had especially relied. There, the facts were almost identical, and it was ruled that a psychiatrist should have been allowed to testify on the basis of two interviews with Jones-one under sodium pentothal—that the defendant was not a sex deviate and was incapable of forming a lustful intent. In so far as the truth-serum interview was concerned, the California court emphasized that its results were not being used to show the truth of defendant's assertion, but instead simply to show the basis for the expert's opinion.

Of some interest to the comparative lawyer is State v. Lindemuih, ** where, in rejecting truth-serum evidence offered by the defendant in a murder case to show that he did not kill the deceased, the New Mexico Supreme Court relied on an article concerning French experience with psychonarcosis. Oklahoma also considers truth serum results to be inadmissible-even where the defendant is willing, prior to the taking of the test, to be bound by the results.80

A military case presents an interesting factual variant. A naval officer was convicted by a court-martial on a charge of having raped a navy nurse. At the trial, he asserted that he suffered from alcoholic amnesia with respect to the crucial time period. Subsequently, however,

, he was examined by a psychiatrist who utilized a truth serum, and the transcript of the interview was attached to a petition for new trial submitted to the Court of Military Appeals. Needless to say, this transcript portrayed events in a way that was highly favorable to the defendant-although not to the prosecutrix. The petition was rejected, the court noting that a truth-serum interview is unreliable because of the ability of many subjects to lie despite the drug, and the tendency of others to be highly suggestible and engage in fantasy. In a subsequent case, however, the court did uphold the right of certain military officials, in reviewing a court-martial conviction, and in their unlimited

* 42 Cal.ad 219, 266 P.2d 38 (1954). See also Curran, Expert Psychiatric Evidence of Personality Traits, 103 U. Pa. L. Rev. 999 (1955); Falknor & Steffen, Evidence of Character: From the Crucible of the Community to the Couch of the Psychiatrist,” 102 U. PA. L. Rev. 980 (1954); Note, 42 Calif. L. Rev. 880 (1954).

56 N.M. 257, 243 P.2d 325 (1952).

Henderson v. State, 94 Okla. Crim. 45, 230 P.zd 495 (1951), 23 A.L.R.2d 1292. Cf. State v. Hudson, 289 S.W. 920 (Mo. 1926); Orange v. Commonwealth, 191 Va. 423, 61 S.E.2d 267 (1950); People v. Cullen, 37 Cal.2d 614, 234 P.2d 1 (1951).

United States v. Bourchier, s U.S.C.M.A. 15, 17 C.M.R. 15 (1954). Cf. People V. McNichol, 100 Cal. App.ad 554, 224 P.ad 21 (1950), which involved amnesia.

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discretion, to consider truth-serum and lie-detector data that might be favorable to an accused." To this extent, then, probing the unconscious has been approved in military investigations.

In some instances, truth serum has been used by police in investigations. Among the best-known cases is that of William Heirens, who was apprehended in the course of a burglary and subsequently was interviewed while drugged. The interview revealed Heirens' commission of several murders and other crimes. As part of an agreement entered to avoid a death sentence, the defendant pleaded guilty to several crimes; but later, he tried to upset the conviction in a proceeding under the Illinois Post-Conviction Hearing Act. Although the questioning of Heirens under sodium pentothal and with a lie detector-in each instance without his consent-was denounced as a flagrant violation of his rights, the Supreme Court of Illinois considered that the plea of guilty was not the product of these tactics and so was valid."

Sometimes a confession will follow the testing of an accused under truth serum. In such instances, the confession will, nonetheless, be received in evidence if the court concludes that it was not the product of the drugged interview. However, it can be inferred from a case involving a parallel situation that the United States Supreme Court will examine the facts carefully through the spectacles of "due process" to assure that there is absolutely no causal connection between the truth. serum revelations and the ultimate confession."

In the investigation of sex offenses, it has been recommended by some that the prosecutrix be examined under a truth serum or with a lie detector. Lindsey v. United States,es involves an interesting attempt by the Government to use in evidence the results of such examination. The defendant, who was being prosecuted for statutory rape and sodomy allegedly committed on his adopted daughter, sought to impeach her by proof of some previous inconsistent statements. To rehabilitate her, the prosecution called a psychiatrist to testify that, on the basis of various tests, he was convinced that she was not a liar but instead a normal girl and was telling the truth about the incidents with the defendant. After the witness explained the operation and reliability

United States v. Massey, s U.S.C.M.A. 514, 18 C.M.R. 138 (1955). "People v. Heirens, 4 I11.2d 131, 122 N.E.ad 231 (1954).

Henson v. State, 159 Tex. Crim. 647, 266 S.W.2d 864 (1953).

Leyra v. Denno, 347 U.S. 556 (1954), (confession following interview by one learned in hypnosis; the transcript of the interview is an appendix to the Court's opinion and resembles interviews in the course of narcoanalysis).

*237 F.2d 893 (9th Cir. 1956); see also Note, 1959 U. ILL. L.F. 138 (1957).

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