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of sodium pentothal, a tape recording of an interview with the prosecutrix made while under the effect of this drug was received in evidence and replayed to the jury. A conviction ensued, but was reversed on appeal.

The Court of Appeals noted the increasing tendency of the courts to let psychiatrists testify about the credibility of witnesses tendency typified in the second trial of Alger Hiss by the trial judge's reception of a psychiatrist's testimony that he had observed Whitaker Chambers on the witness stand and had concluded that Chambers was a liar." However, in Lindsey, the appellate court reasoned that, even if it were permissible to let the psychiatrist testify as to the prosecutrix's credibility after she had been impeached and to refer to the sodium pentothal test as a basis for his expert opinion, it was, nonetheless, prejudicial error to admit in evidence the verbatim contents of the tape-recorded interview. The prejudice to defendant was heightened by references to the drug a5 a "truth serum” during the psychiatrist's testimony.

In a Florida prosecution for incest, it developed that the prosecutrix had at one time been mentally deranged. To establish her credibility. it was brought out that she had been interviewed by a psychiatrist under sodium amytal and had reiterated the complaint. In reversing the subsequent conviction, the Florida Supreme Court relied on an analogous lie-detector cases and reasoned that, once the truth-serum test was mentioned, defendant either had to cross-examine about the details or be damned by inference from his failure to do so. In effect, the defendant would be subjected to the results of a truth-serum test, even though such results are deemed too unreliable for admission directly into evidence.

The Florida courts have discerned the great difficulty in maintaining any line between mere reference to truth-serum tests and evidence concerning all the details of a truth-serum interview. And with the American jury system, there is always the chance that the twelve lay jurors will not comprehend the unreliability of truth serum and will conclude that it really guarantees truth. In that event, the fairness of the trial will depend on the efficacy of the test—always an imponderable.

For the investigator, truth-serum tests of a prosecuting witness may uncover some mental ailment that impairs his credibility. On the other

" United States v. Hiss, 88 F. Supp. 559 (S.D.N.Y. 1950). " Knight v. State, 97 So.2d 115 (Fla. 1957).

Kaminski v. State, 63 So.ad 339 (Fla. 1952).

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hand, similar tests of a defendant may disclose that he does not have a purported mental disorder, on which he has hoped to hang an insanity defense. In one New York first degree murder prosecution, after the defendant had entered an insanity plea and asked that he be examined as to sanity, he was hospitalized. While in the hospital, he was interviewed under drugs. The New York Court of Appeals ruled that the evidence obtained by administration of the drugs evidence which proved defendant to be a malingerer-could be used at the trial." Having advanced a claim of insanity, defendant was subject to methods, including truth drugs, that are customarily used by the medical pro fession to determine one's mental condition. To some, the authority of this precedent seems weakened by a subsequent New York decision which held inadmissible the defendant's proffered medical testimony about the results of a sodium amytal test as it bore on ability to premeditate. 100

The decisions as to lie detectors follow the pattern of the truth-serum cases. Almost universally, lie-detector evidence is rejected in court as unreliable,101 although one New York trial court did allow the defendant to introduce evidence concerning the results of such a test.103 Moreover, in a California case, the prosecution was allowed to introduce the results of a lie-detector test, since the parties had agreed before trial that any results would be admissible.108

Among the most detailed recent analyses of the lie detector's capabilities is that furnished by the Michigan Supreme Court in People v. Davis.104 There, the defendant was on trial for murdering his wife by running over her with a car, and he sought to introduce evidence that a polygraph test verified his account that it was an accident. A leading

People v. Esposito, 287 N.Y. 389, 39 N.E.2d 925 (1942).

People v. Ford, 304 N.Y. 679, 107 N.E.ad 595 (1992).

See, e.g., State v. Casale, 150 Me. 310, 110 A.ad 588 (1954); Hawkins v. State, 222 Miss. 753, 77 So.2d 263 (1955); People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); State v. Pusch, 77 N.D. 860, 46 N.W.2d 508 (1950); People v. Porter, 136 Cal. App.2d 461, 288 P.2d 561 (1955); State v. Lowry, 163 Kan. 622, 185 P.ad 147 (1947); 23 A.L.R.2d 1306 (1950); Conrad, The Federal Courts Break with Tradition, 21 F.R.D. 199 (1957); Koffler, The Lie Detector A Critical Appraisal of the Technique as a Potential Undermining Factor in the Judicial Process, 3 N.Y.L.F. 123 (1957). However, one court has upheld dismissal of a police officer who refused to comply with an order to complete a polygraph test. McCain v. Sheridan, Cal.ad - 324 P.2d 923 (1958).

People v. Kenny, 167 Misc. 51, 3 N.Y.S.2d 348 (Queens County Ct. 1938).

People v. Houser, 8s Cal. App.2d 686, 193 P.2d 937 (1948). See also Parker v. Friendt, 99 Ohio App. 329, 118 N.E.2d 216 (1954).

343 Mich. 348, 72 N.W.2d 269 (1955).

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criminal investigator, Dr. Lamoyne Snyder, testified for the defendant about the high reliability of the polygraph when properly operated and its widespread use. The court, however, cited authority to the effect that the instrument was by no means infallible and observed that many lie detector experts do not advocate the admissibility of polygraph results under current conditions. Among the other problems that bothered the court was whether, if the evidence were allowed as to one witness, it would have to be as to all-with the result that the case might be tried in the laboratory of the polygraph expert, instead of in the courtroom.

As with the truth serum, the prior use of a lie detector does not vitiate a subsequent voluntary confession;105 indeed, in light of the suggestibility attributed to the recipient of a "truth serum,” it would seem far easier to show that a confession following a lie-detector test was voluntary than would be true after an interview under drug influence. Also, as with truth serum results, the question arises of whether a witness's mention of a lie-detector test is improper.108 On the other hand, the lie detector does not have the same significance for investigation of mental ailments that truth serum docs.

Both as to the lie detector and the truth serum, American courts have not warmly embraced the European-fostered view that under no circumstances can such investigative devices be used, because to probe a suspect's mind invades his "dignity,” even if done with his consent. 107 In America, apparently the investigator is free to use such tests on a willing suspect, and probably the test results would be received in evidence if the courts were satisfied of their reliability.

This approach, it is submitted, is, in the long run, more consistent with a true balance of values. If an accused wants to take a lie detector

Henson v. State, 159 Tex. Crim. 647, 266 S.W.2d 864 (1953). See also Commonwealth ex rel. Riccio v. Dilworth, 179 Pa. Super. 64, 115 A.2d 865 (1955), Henderson v. State, 94 Okla. Crim. 45, 230 P.2d 495, 23 A.L.R.2d 1292 (1951); Webb v. State, - Tex. Crim. – 291 S.W.2d 331 (1956) (where apparently polygraph results were unfavorable for the prosecution). But c.f. People v. Sims 399 Ill., 69 N.E.2d 336 (1946). Where a polygraph shows a defendant to be lying and he confesses, it is often difficult to keep results from a jury while proving the voluntariness of the confession. Tyler v. United States, 193 F.2d 24 (D.C. Cir. 1954); Gasway v. State, 157 Tex. Crim. 647, 248 S.W.2d 942, ceri. denied, 344 U.S. 87+ (1952); Lecks v. State, 95 Okla. Crim. 326, 245 P.2d 764 (1952); People v. Aragon, 154 Cal. App.ad 646, 316 P.2d 370 (1957).

Compare Kaminski v. State, 63 So.2d 339 (Fla. 1952), with State v. Shepperd, 100 Ohio App. 345, 128 N.E.ad 471 (1955), af'd, 165 Ohio St. 293, 135 N.E.ad 340 (1956), ceri. denied, 352 U.S. 910 (1956).

107 This view is presented by Silving, supra note 84. .

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or truth-serum test to exonerate himself and if it is shown that the results will be reliable, is it really consistent with the "dignity” of the individual to say that he is not qualified to make such a choice, and that instead the state has chosen that such tests shall not be performed? This argument as to "dignity” will be especially unpersuasive to a man who, by reason of an unjust conviction, is either executed or confined in prison. And how is the "dignity" of society served by the infliction of punishment upon innocent persons by reason of the exclusion of evidence that would tend to show innocence?

So long as any emphasis is placed by the criminal law on mens rea, the courts will be confronted with a problem of determining the accused's state of mind.108 Moreover, so long as insanity-which embraces both the conscious and unconscious mind-constitutes a defense, the courts must, to some extent, probe beyond the conscious mind of the defendant. Nor is all of this probing done by the consent of the defendant. For instance, he may be under observation, although he is unaware of it. And some of the defendant's actions that reveal his true state of mind are performed by him involuntarily. In short, day in and day out, judges and juries must, in fact, examine both the conscious and unconscious mind of a criminal defendant-often at times and in ways to which he has not specifically consented. Therefore, when a lie detector or truth serum is used to accomplish this examination in a more accurate and scientific way, it seems rather incongruous to say that an invasion of the defendant's “dignity" has taken place.

Indeed, many European judges who criticize the lie detector or truth serum would probably observe with great interest the behavior of an accused during his trial and would feel perfectly free to draw inferences from such behavior.109 In some instances, these inferences might rely on the same sort of physical reactions that are involved in the operations of a lie detector.110 These judges are not deemed to have improperly invaded the accused's mental processes. Yet, in these instances, the accused has not consented to the drawing of inferences from his behavior (unless his presence in the courtroom, which is often required by law, is considered to be such a consent), whereas a suspect

For discussions of mens rea, sec JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW ch. s (1947); CLARK & MARSHALL, Law of CRIMES ch, 3 (sth ed. 1952).

See the German decision, note 83 supra. 110

Quercia v. United States, 289 U.S. 466 (1933), involved the situation of a judge who not only believed that persons who wring their hands are liars, but also informed the jury to the same effect.

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who consents to a lie-detector test has willingly agreed to have inferences, favorable or adverse, drawn from his physical reactions. The latter, rather than the former, situation would seem more in accord with the protection of an accused's "dignity.”

Also, it has been protested that to admit lie-detector or truth-serum evidence would destroy the right to a public trial, since the result of the trial is really predetermined in the examiner's office. If this be so, how can the trial of a defendant who pleads partial or total insanity be considered public? There the verdict will generally hinge on the testimony of psychiatrists who have examined the defendant extensively in their private offices long before the trial. Indeed, quite a few cases hinge on events that took place in a laboratory far away from judges or jury.111 And many an accused has been convicted because of a pretrial confession that was not prepared under public scrutiny. In short, the admission in evidence of lie-detector or truth-serum results would not destroy the defendant's right to a public trial any more than do many other types of evidence accepted in every court.

Perhaps the reliability of truth serum and polygraph will never be great enough to warrant judicial use of their results, even under the prevalent American approach to the problem. However, even today, their accuracy seems sufficient to justify pretrial use by investigators; and there seems to be no valid reason to discourage such use in the hands of qualified persons. The skill of the user of such investigative devices is so important to their accuracy that clearly not every investigator should be turned loose with a lie detector or truth serum. Indeed, some have suggested that as a prerequisite to admitting polygraph results in court, a licensing requirement should be adopted for the operators in order to assure their possession of minimal qualifications. Truth serum should be restricted in use to physicians and clinical pychologists; injections by others might even be considered to involve a battery, or perhaps the unauthorized practice of medicine.

In the unlikely event that the goal of infallibility were reached with either the lie detector or truth serum, it might then be urged that even an accused should be involuntarily subjected thereto. The rationale of any such suggestion would be that the privilege against self-incrimination and the right to due process are designed only to avoid an innocent man's convicting himself out of his own lips. For federal investigators, it seems

11 This is true with reference to blood tests, fingerprint comparisons, ballistic evidence, analyses of urine specimens, and many other types of scientific tests that play a prominei it part in modern criminal law administration.

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