Scientific Evidence: Frye, Daubert and Polygraph Exams

In New York, in order for either the prosecutor or defense to be allowed to introduce scientific evidence, it must pass what is known as the Frye standard, established by the United States Court of Appeals for the District of Columbia Circuit in 1923 in a that now famous case known as Frye v. United States, found in the federal reports at 293 F. 1013.  The Frye standard requires that scientific evidence presented to the court must be interpreted by the court as "generally accepted" by a meaningful segment of the associated scientific community.  It is the judge's job to make this initial determination regarding any evidence that is sought to be admitted by a party that is stipulated by all parties to be widely accepted as being "generally accepted in the relevant scientific community."

The Frye case arose out of a criminal prosecution sought to introduce the results of a polygraph (lie-detector) test administered to the unfortunate Mr. Frye, clearly a gentleman who was probably guilty of the miscreant acts he was accused of having committed-he did fail the lie-detector test after all.  The trial court was more than happy to permit the prosecution to introduce the results of this examination against him.  The United States Court of Appeals for the District of Columbia Circuit disagreed and reversed the ruling, thus forever establishing the Frye standard, which is the law in the state of New York.*

This issue is constantly being revisited, especially (and ironically) regarding the admissibility of polygraph examinations.  After the Frye decision found that a polygraph examination does not meet the standard of "general acceptance," courts in general will almost never accept polygraph evidence in criminal trials.  Curiously, they are widely used in industry and by the government when there arises a question as to the honesty of employees and while the results are not admissible in court, they are relied upon by the government and other employees to assist in hiring and firing decisions and to determine if an employee is possibly doing things he or she should not be doing.

In the criminal field, I and many other practitioners use polygraph tests to confirm to ourselves that our clients are being honest with us.  We also use them as evidence to submit to prosecutors to prove why my client should either have his case dismissed or be offered a better deal than the prosecutor is otherwise inclined to offer.  In fact, as I write this article, I am waiting for a phone call from an assistant district attorney regarding what will hopefully be a dismissal of the case against my client after I submitted positive polygraph evidence for my client as well as other evidence that tends to point to another person as the real perpetrator.

It is quite curious that while polygraph examination is not admissible as evidence, they are often used and accepted as evidentially valid to work out a fair disposition of a case or to assist in employment decisions. 

* The federal courts and most of the other states have replaced the Frye standard with the Daubert standard, a topic that may be delt with in a future post of this blog.