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DOWD v. CALABRESE

April 26, 1984

John M. Dowd, Plaintiff
v.
Samuel Ray Calabrese, Defendant; William M. Kramer, Plaintiff v. Samuel Ray Calabrese, Defendant; William M. Kramer, Plaintiff v. James A. Drinkhall, et al., Defendants; John M. Dowd, Plaintiff v. James A. Drinkhall, et al., Defendants; James A. Drinkhall, Plaintiff v. William M. Kramer, Defendant



The opinion of the court was delivered by: GREENE

The Dow Jones defendants *fn1" request that the Court admit polygraph evidence in the forthcoming trial of this libel action. The request is opposed by plaintiffs.

 According to the Dow Jones motion, Wall Street Journal reporter Jim Drinkhall was given two separate polygraph examinations in December 1980. The questions asked of him on these examinations related to the truth and accuracy of his interviews with plaintiffs Kramer and Dowd and with certain of his confidential sources. According to the defendants, both polygraph examiners concluded that Drinkhall's answers were truthful, and they ask the Court to rule that these polygraph results are admissible in evidence.

 I

 The Court of Appeals for this Circuit held in Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (D.C. Cir. 1923), a decision widely followed in the United States, that polygraph evidence is not admissible, and that it may be admitted only if and when it is "sufficiently established to have gained general acceptance in the particular field in which it belongs." *fn2" Defendants claim that surveys they have commissioned demonstrate that the Frye test has now been met. Before examining the factual accuracy of that assertion and the information underlying it, it is appropriate to recapitulate briefly the state of the law generally on the admissibility of polygraph evidence.

 The great weight of judicial authority in the United States still is, sixty years after Frye, as opposed to the admission of such evidence as the Court of Appeals was at that time, and for the same reasons. *fn3" Indeed, contrary to defendants' claim that during recent years courts have begun to rule that such evidence may be admitted, *fn4" the fact is that, as a leading text *fn5" puts it,

 
the trend favoring admissibility of polygraph evidence that some commentators detected a decade ago now seems to have been reversed by a number of significant state decisions.

 Moreover, every single federal court of appeals which has considered the issue has ruled against admissibility *fn6" and the Court of Appeals for this Circuit likewise continues to adhere to the Frye principle. *fn7"

 It is against this background that defendants' claim of the alleged reliability and general acceptance of the results of polygraph examinations in the scientific community must be evaluated. *fn8"

 II

 The polygraph records and measures certain involuntary bodily responses, e.g., blood pressure, pulse rate, respiration, and skin resistance to electricity. The theory of polygraph examinations is that these physiological responses can be analyzed to determine the individual's subjective state of mind. Thus, acceptance of the polygraph test requires in the first instance an acceptance of two premises: (1) that there are generally-existing relationships between lying, emotions, and measurable physiological changes, and (2) that measures cannot be taken to affect these relationships. It is not clear that even these basic premises are correct. *fn9"

 It is because of these intangible and subjective factors -- which exist notwithstanding the polygraph's aura of scientific precision -- that the courts have been reluctant to accord to polygraph test results the kind of scientific, and hence legal, acceptability that defendants are advocating in these cases.

 Defendants claim that they have overcome these difficulties and objections by a survey of psychophysiologists they commissioned which was conducted by the Gallup Organization, Inc. According to that survey, 61 percent of the individuals questioned considered a professionally-administered polygraph test to be at least a "useful diagnostic tool when considered with other available information" in interpreting whether a subject is or is not telling the truth. ...


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