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For 21 years, California has prohibited the use of lie detector evidence in any criminal proceeding unless all parties agree to its admission. But on Wednesday, the state Supreme Court signaled that the law could be unconstitutional and that a broad-based ban could become indefensible as the technology grows and gains greater acceptance within the scientific community. “Can we have a statute that does that — to prevent a defendant from providing reliable evidence?” Justice Janice Rogers Brown asked Los Angeles-based Deputy Attorney General Thomas Hsieh during oral arguments. “Is that constitutional?” Chief Justice Ronald George joined in by saying that prohibitions against the use of lie detector evidence assume “the present state of the art.” “Can we just say for all time,” he asked, “that this statute would cause no constitutional problem, despite the development of polygraph science?” The court is being asked to let trial court judges conduct so-called Kelly/Frye hearings to determine the admissibility of polygraph evidence. If it follows through, the court would have to invalidate state Evidence Code Section 351.1, which has been in effect since 1983. That would also put the court at the center of a huge debate over the validity of polygraph results, which many in the scientific community still find unreliable. In an amicus curiae brief, the California District Attorneys Association pointed out that only one-fourth of the psychiatrists and polygraph examiners in a 1997 study believed that lie detector evidence should be admitted in court. In addition, a 2002 study by the National Research Council of the National Academy of Sciences found that polygraphs were far from accurate. “The polygraph remains plagued by doubts and uncertainties, lacking scientific consensus as to both its underlying scientific premises and its reliability,” Sacramento County Assistant Chief Deputy District Attorney Albert Locher wrote for the CDDA. “Consequently, it is rational and constitutional for a state to decide that the evidence should be per se excluded.” The issue before the court arose in the case of Jaleh Wilkinson, who wanted to introduce polygraph evidence to prove that she had consumed no more than five alcoholic drinks and had taken no drugs when Santa Monica police officers arrested her for drunken driving in 1999. Wilkinson maintained that someone had slipped her GHB, better known as the date rape drug. L.A. County Superior Court Judge Steven Suzukawa, citing the state’s Evidence Code, refused to admit the lie detector test. But the Second District Court of Appeal reversed in 2002, saying that the court should have held a so-called Kelly/ Frye test to determine the relevance of the evidence. “If admitted,” Justice Reuben Ortega wrote, “the proffered polygraph evidence would have provided support for the crucial defense evidence.” Relevance played a big role in Wednesday’s discussion, with Brown and George questioning why lie detector evidence should be excluded if it is reasonably reliable. “Simply because you show the evidence is reliable,” Deputy AG Hsieh argued, “does not mean that it is constitutionally required.” Then, George asked, there would be no constitutional problem if the state Legislature declared fingerprint evidence inadmissible? Hsieh responded by saying fingerprints are different because they constitute physical evidence, whereas polygraphs provide nothing more than an examiner’s opinion of the subject’s credibility. The justices’ intent was also signaled somewhat by the few questions lobbed at one of Wilkinson’s lawyers, Anthony Dain, who argued that U.S. Supreme Court Justice Anthony Kennedy had opened the door to the use of polygraph evidence in 1998′s United States v. Scheffer, 523 U.S. 303. Although the court, by a plurality, upheld the per se exclusion of polygraph evidence in a military court martial setting, Kennedy said in a concurrence — joined by Justices Sandra Day O’Connor, Ruth Bader Ginsburg and Stephen Breyer — that there was “much inconsistency” between the government’s use of lie detectors in vital security matters and not in courts. “Some later case,” he wrote, “might present a more compelling case for introduction of testimony.” On Wednesday, Dain, a partner in San Diego’s Procopio, Cory, Hargreaves & Savitch, told the justices that “this case is that more compelling case.” The California Supreme Court, he argued, “is not bound by Scheffer. This court has the ability to find a per se exclusion unconstitutional.” Grabbing onto George’s comment about the admissibility of growing technology, Dain noted that only 15 years ago DNA evidence was not considered reliable. That has changed. “Why can’t we recognize that science changes?” he asked, and that the law always lags behind science in accepting new technology. George, however, did point out that the outcome Dain argued would require a showing that the state’s Evidence Code is unconstitutional — that polygraph evidence is so important and reliable that the legislative dictate can’t stand. “If a statute is unconstitutional, then the first recourse should not be the Legislature,” Dain maintained. “The court can find it unconstitutional.” In a final stand, Deputy AG Hsieh tried countering Dain by arguing that this case is not the “more compelling case” contemplated by Kennedy. “The state of the science hasn’t changed at all,” he said. “It’s still a matter of dispute.” The case is People v. Wilkinson, S111028. A ruling should be handed down within 90 days.

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