Frye v. United States

VAN ORSDEL, J. Appellant, defendant below, was convicted of the crime of murder in the second degree, and from the judgment prosecutes this appeal.

A single assignment of error is presented for our consideration. In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant. The test is described as the systolic blood pressure deception test. It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject's mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.

In other words, the theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.

Prior to the trial defendant was subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained. The offer was objected to by counsel for the government, and the court sustained the objection. Counsel for defendant then offered to have the proffered witness conduct a test in the presence of the jury. This also was denied.

Counsel for defendant, in their able presentation of the novel question involved, correctly state in their brief that no cases directly in point have been found. The broad ground, however, upon which they plant their case, is succinctly stated in their brief as follows:

The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.

Numerous cases are cited in support of this rule. Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.

The judgment is affirmed.

According to Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum. L. Rev. 1197 (1980), on which the following discussion is based, the Frye test originally envisioned a process whereby the admissibility of a scientific technique would be decided by reference to the stages of its evolution. The technique, after being invented or discovered within a particular field, would be first subjected to rigorous analysis by the scientific community during its "experimental stage." Only after this community "agreed" that the technique was valid ("demonstrable") would evidence of its use be admissible in court. Thus, the way in which the Frye test determined when evidence had reached the point of admissibility was to see if the technique was generally accepted by the relevant scientific community. In the last half century the Frye test was used for determining the admissibility of many types of scientific evidence besides the polygraph. For example, the test was used with voice prints,(1)1 neutron activation,(2)

2 gunshot residue tests,(3)

3 bitemark comparisons,(4)

4 sodium pentothal,(5)

5 ion microprobic analysis,(6)

6 and blood grouping tests.(7)

7 See Giannelli, supra, at 1205-1206.

According to Giannelli, the primary argument raised in favor of the Frye test is that it "assures that those most qualified to assess the general validity of a scientific method will have the determinative voice." United States v. Addison, 498 F.2d 741, 743-744 (D.C. Cir. 1974). Thus, the Frye test assigns to experts the task of determining a test's reliability.

It is therefore best to adhere to a standard which in effect permits the experts who know the most about a procedure to experiment and to study it. In effect, they form a kind of technical jury, which must first pass on the scientific status of a procedure before the lay jury utilizes it in making its findings of fact.

People v. Barbara, 400 Mich. 352, 405, 255 N.W.2d 171, 194 (1977).

Courts have also cited less substantive rationales for the Frye test: The "general acceptance standard" guarantees that "a minimal reserve of experts exists who can critically examine the validity of a scientific determination in a particular case." United States v. Addison, supra, 498 F.2d at 744. By requiring general acceptance by the relevant scientific community, Frye implicitly requires that such a community exists. Another court has suggested that the Frye test "may well promote a degree of uniformity of decision," People v. Kelly, 17 Cal. 3d 24, 31 (1976), because "[i]ndividual judges whose particular conclusions may differ regarding the reliability of particular scientific evidence, may discover substantial agreement and consensus in the scientific community." Id. Another has suggested that "[w]ithout the Frye test or something similar, the reliability of an experimental scientific technique is likely to become a central issue in each trial in which it is introduced, as long as there remains serious disagreement in the scientific community over its reliability." Reed v. State, 283 Md. 374, 388, 391 A.2d 364, 371-372 (1978). Finally, some courts have used the "general acceptance" standard as a check against new techniques because "scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury of laymen." United States v. Addison, supra, 498 F.2d at 741; United States v. Wilson, 361 F. Supp. 510, 513 (D. Md. 1973).

1. 1. See, e.g., Reed v. State, 283 Md. 374, 386, 391 A.2d 364, 381 (1978).

2. 2. See, e.g., United States v. Stifel, 433 F.2d 431, 436, 438, 441 (6th Cir. 1970).

3. 3. See, e.g., State v. Smith, 50 Ohio App. 2d 183, 193, 362 N.E.2d 1239, 1246 (1976).

4. 4. See, e.g., People v. Slone, 76 Cal. App. 3d 611, 623, 143 Cal. Rptr. 61, 68 (1978).

5. 5. See, e.g., Lindsey v. United States, 237 F.2d 893, 896 (9th Cir. 1956).

6. 6. See, e.g., United States v. Brown, 557 F.2d 541, 556-557, 558 (6th Cir. 1977).

7. 7. See, e.g., People v. Alston, 79 Misc. 2d 1077, 1085, 362 N.Y.S.2d 356, 362 (Sup. Ct. 1974).