Opinion
No. 60 MAP 2012
10-30-2013
COMMONWEALTH OF PENNSYLVANIA, Appellee v. A.R., Appellant
[J-144-2012][M.O. - EAKIN, J.]
Appeal from the Order of the Superior
Court at No. 382 EDA 2009 dated
January 15, 2010, reargument denied
March 23, 2010, affirming the judgment
of sentence of the Chester County
Court of Common Pleas, at No. CP-15-
CR-0002052-2006, dated January 5,
2009
CONCURRING OPINION
MR. JUSTICE SAYLOR
I join the majority opinion, except for footnote 6.
As recognized by the majority, polygraph results are generally inadmissible in Pennsylvania courts. See Majority Opinion, slip op. at 6. The reason is straightforward: such "evidence" is considered unreliable. Nevertheless, I agree that this type of information may be admissible at a violation-of-probation hearing for a relevant, ancillary objective, provided that, in context, it is clear that it is not being offered for its truth. In this regard, I would take the opportunity to comment on the rule as developed by the Superior Court, which is a principal reason we allowed appeal. See Commonwealth v. A.R., 616 Pa. 469, 50 A.3d 122 (2012) (per curiam) (granting allocatur to address, inter alia, whether the Superior Court's "enumerated conditions of admissibility [were] appropriate"), quoted in Majority Opinion, slip op. at 4.
See United States v. Scheffer, 523 U.S. 303, 309, 118 S. Ct. 1261, 1265 (1998) (referencing learned treatises and concluding that "there is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques."); see also id. at 312, 118 S. Ct. at 1266 ("[T]here is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams."). Perhaps the technology has improved in recent years, but it is impossible for this Court to discern the existence of any such developments on the record before us. More generally, to the extent a proponent of polygraph evidence might seek its admission by claiming that newer technology is more trustworthy, such a claim would be subject to vetting according to recognized standards pertaining to novel scientific evidence, most notably, the standard articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which held that scientific evidence must gain the general acceptance of the relevant expert community to be admissible. See Grady v. Frito-Lay, Inc., 576 Pa. 546, 555, 839 A.2d 1038, 1043-44 (2003). See generally Betz v. Pneumo Abex, LLC, 44 A.3d 27, 53 (2012) (indicating that, for purposes of assessing whether a Frye hearing is warranted, a broad meaning should be given to the term "novel" as it describes the scientific evidence in question).
A review of the intermediate court's opinion reflects that it makes two essential legal points: (1) because the "degree of proof necessary to achieve revocation of an offender's probation is far less than that required to sustain a criminal conviction," polygraph evidence may be admitted as "supportive proof of a violation," Commonwealth v. A.R., 990 A.2d 1, 6 (Pa. Super. 2010); and (2) the results of a polygraph test may not comprise the sole basis for the revocation, or reveal uncharged criminal conduct, or be used to investigate separate crimes. See id. at 7.
I would expressly disapprove the first of these items. Unless and until polygraph evidence is judicially established to be reliable, it has no probative value regardless of the evidentiary burden involved. See generally Turner v. Commonwealth, 685 S.E.2d 665, 667 (Va. 2009) ("Polygraph test results fall far short of the 'demonstrably reliable' hearsay evidence that may be admitted under [the] 'relaxed' standards [applicable to revocation-of-probation hearings]." (quoting United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982))). It is worth noting in this respect that this Court has previously applied the prohibition within the civil context, where the same preponderance standard obtains as in the violation-of-probation setting. See, e.g., Civil Svc. Comm'n of Phila. v. DeVito, 404 Pa. 354, 360, 172 A.2d 161, 164 (1961).
On the other hand, I find at least a portion the second proposition articulated by the Superior Court to have salience for purposes of the present dispute. Specifically, I agree that polygraph test results may not comprise the sole basis for the revocation. Because a reasonable apprehension of the underlying context is necessary to understand how the polygraph results fit into the overall proffer advanced by the Commonwealth in support of its request for revocation - and because an understanding of that context is necessary to conclude that the polygraph results are not being (inappropriately) offered for their truth - it logically follows that polygraph evidence cannot comprise the sole basis for revocation. That being the case, instead of deciding not to reach this issue, see Majority Opinion, slip op. at 7 n.6, I would expressly approve this latter aspect of the Superior Court's opinion. Accordingly, and as noted, I disassociate myself from footnote 6 of the majority opinion.
I express no opinion as to whether polygraph results may be introduced if they reveal uncharged criminal conduct, or are ultimately used to investigate separate crimes. These factors are not implicated by the events of this case.
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Madame Justice Todd and Mr. Justice McCaffery join this concurring opinion.