2013-03-22 / Columnists

Sullivan’s Court

Q. I have been following the Jodi Arias murder trial for the past few weeks and last summer closely followed the Casey Anthony trial. I am curious why in legal thrillers in the movies and on TV, the “suspects” usually take lie detector tests, but in these nation-gripping trials, the tests are never used? A. Allow me to applaud you on an excellent observation! The results of a “lie detector” test, more formally referred to as a polygraph, are not admissible. The simple reason is that the test is unreliable. The reasoning behind this rule began 90 years ago, so let’s go there...

In 1923, a federal court was presented with a case, Frye vs. United States. The case involved a young man named James Frye who shot and killed a physician in Washington, D.C. Seven months later, Frye committed another crime and upon his arrest confessed to the murder of the doctor. At trial Frye came up with an alibi and claimed the confession was coerced. (Sidebar: Urban legal legend has it that Frye told his lawyer that he only confessed in hopes that he could collect the reward money). At the time of the trial he testified that he had been with a female friend when the crime was committed.

The defense attorney could not find any witnesses to support Frye’s alibi, so he asked an expert to test Frye. The expert claimed he could determine if a person was lying or not by performing a ‘Systolic Blood Pressure Truth Test’. He would ask questions while taking the witnesses’blood pressure. When the defense attorney tried to put the expert on the stand to testify that Frye had told the truth about his alibi, the Judge refused to allow it. The judge ruled that an expert’s opinion based on a scientific technique is admissible only where the technique is “generally accepted as reliable” in the scientific community. This particular expert’s “science” (junk science really!) was a very crude and raw method of ascertaining if someone was lying or not.

The trial lasted four days and Frye didn’t stand much of a chance and was convicted after three hours of deliberation. Oddly enough, the judge allowed the argument as to the admissibility of the test results to take place in front of the jury. Thus, the jurors were aware that the expert’s test corroborated Frye’s testimony of innocence. Instead of finding Frye guilty of first degree murder, a crime that called for the death penalty, they found him guilty of murder in the second degree, an offense that brought a life sentence with the option of parole. As for Frye, he was paroled after just 18 years. He died at the age of fiftyeight. If it hadn’t been for the judge’s error in allowing the legal argument to take place in front of the jury, he may have died a lot sooner!

Science changes very fast and the courts are usually slow to catch up. As you read this there is a robot in an FBI lab analyzing hundreds of DNA samples with speed and accuracy that would take a human months; researchers are devising techniques to extract fingerprints off of every surface known and even when those prints are covered over by other fingerprints; an audio-based GPS system will soon be able to alert local law enforcement to a precise location where a gun is fired instantly.

The courts and the law will have to confront and deal with each of these scientific developments in time. However, as new science makes solving crimes easier, advancements in science pose serious challenges as well.

For example, scientists in Israel have discovered a way to fabricate DNA evidence. This will create huge problems for law enforcement who rely so heavily on DNA evidence. Modern cleaning products contain larger amounts of chemicals, which, while very effective cleaners, also destroys the proteins in blood which is used to match blood samples.

I wish the science we see on the big and little screens were available and as reliable as Hollywood makes them appear to be. It would make trials much more interesting and perhaps yield more competent results. All in all, we still have the greatest system in the World, even though polygraphs tests are still not admitted in our courts.

You can e-mail your questions for Keith Sullivan to SullivansCourt@gmail.com

Keith Sullivan is a partner with Sullivan & Galleshaw, LLP, an adjunct law professor and a lecturer for the national bar exam. He is also a Deputy Commissioner for the NYS Athletic Commission. Keith can be seen providing legal analysis on various television networks such as FOX News, CNN, HLN, NBC and MSNBC.

Sullivan’s Court provides general legal information only. It is not intended as legal advice and does not create an attorney-client relationship.

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