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Lee v. Martinez
Citations: 96 P.3d 291; 136 N.M. 166; 2004 NMSC 027Docket: 27,915
Court: New Mexico Supreme Court; July 14, 2004; New Mexico; State Supreme Court
Petitioners, defendants in various criminal cases, sought the admission of polygraph examination results as evidence under Rule 11-707(C) NMRA 2004, which allows such evidence at the discretion of a trial judge, provided certain conditions are met. The State opposed this, arguing that the polygraph results did not meet the admissibility standards for expert testimony under Rule 11-702 NMRA 2004. In response, Petitioners filed a Petition for Writ of Superintending Control, requesting the Supreme Court of New Mexico to mandate adherence to Rule 11-707 without requiring separate hearings under Rule 11-702. On April 14, 2003, the Supreme Court granted the Petitioners' request and remanded the cases to the Second Judicial District for an evidentiary hearing regarding the scientific reliability of polygraph evidence, as articulated in previous case law. Following a seven-day evidentiary hearing, the district court issued its Findings of Fact and Conclusions of Law on August 25, 2003. The court determined that polygraph results lacked sufficient reliability to satisfy Rule 11-702, had limited probative value that was outweighed by potential confusion, undue delay, and waste of time under Rule 11-403 NMRA 2004, and were inadmissible under Rule 11-608(B) NMRA 2004, which prohibits using extrinsic evidence to challenge a witness's credibility. Polygraph examination results will not be categorically excluded and can be admitted under Rule 11-702 if the expert is qualified and the examination follows Rule 11-707. District courts are directed to comply with Rule 11-707 when considering the admission of polygraph results, and proponents of such evidence do not need to establish the reliability of the examiner’s testimony in a Daubert/Alberico hearing. The admissibility of polygraph results under Rule 11-403 is not addressed, as the court believes evidence should be evaluated on a case-by-case basis, and the trial judge has discretion to exclude polygraph results based on their probative value versus potential prejudicial effects. However, it would be an abuse of discretion to exclude results solely due to a general disbelief in their reliability. The applicability of Rule 11-608(B), which pertains to character evidence, is not discussed as it was not raised in the petition, but there is an acknowledgment that polygraph results could be considered character evidence under certain circumstances. Additionally, polygraph results may be used to indicate a lack of consciousness of guilt, permissible under Rule 11-404(B). The National Academy of Sciences (NAS) has reviewed polygraph testing validity, providing insights that informed the court's decision regarding the science behind polygraph examinations. The polygraph instrument measures physiological responses believed to intensify during deception, including cardiovascular activity, electrodermal activity, and respiratory changes. A polygraph examination typically involves a series of yes/no questions while the examinee is connected to sensors that record these physiological responses, resulting in a polygraph chart. The underlying theory posits that deceptive answers provoke reactions such as fear or psychological arousal, altering physiological markers compared to baseline measures. Three primary polygraph questioning techniques are identified: 1. **Relevant/Irrlevant Technique**: Involves specific relevant questions about the investigation and unrelated irrelevant questions; deceptive individuals are expected to show stronger responses to relevant questions. 2. **Control Question Technique**: Uses control questions designed to elicit physiological responses from all examinees, allowing comparison with responses to relevant questions. Truthful individuals are expected to react more strongly to control questions, while deceptive individuals are anticipated to respond more to relevant questions. 3. **Guilty Knowledge Test**: Asks questions about details known only to investigators, expecting stronger responses to questions that accurately reflect the event. The document focuses solely on polygraph examinations using the control question technique, as it is the most prevalent method for evidentiary purposes in the pending cases. The relevant/irrelevant technique is excluded due to its lack of numerical scoring, and the guilty knowledge test is not applicable in the discussed cases. Determining the standard of review involves assessing the level of deference to the district court's findings. Generally, expert testimony admissibility is at the trial court's discretion, reviewable only for abuse of discretion. However, due to the procedural context, a heightened standard applies. Judge Knowles acted as a "special master" in a special evidentiary hearing, possessing authority under Rule 1-053 NMRA 2004 to manage evidence and witnesses. Findings of fact from a special master are typically accepted unless clearly erroneous, while conclusions of law are reviewed de novo. The court can adopt, modify, or reject the master's report. The standard for reviewing Judge Knowles' findings of fact is debated; although Rule 1-053 suggests a deferential review, it is argued that these findings are legislative, not adjudicative, leading to a de novo review since they inform the court’s policy on polygraph admissibility. Additionally, the State contends that Rule 11-707 governing polygraph results should be repealed in light of the expert testimony admissibility framework established in Alberico. However, the court hesitates to make such a change without first applying the Daubert/Alberico analysis. Polygraph evidence is subject to Rule 11-702, which governs the admissibility of scientific evidence by ensuring it is based on valid and objective science and is reliable enough to assist the trier of fact. The analysis acknowledges that if polygraph evidence were exempt from this rule, it would imply that such evidence lacks scientific grounding or reliability, which would be inappropriate. A Daubert/Alberico analysis is deemed necessary to evaluate the admissibility of polygraph evidence, moving away from the outdated "general acceptance" test established in Frye v. United States. The U.S. Supreme Court in Daubert emphasized a more liberal approach to admitting expert testimony, reflecting a modern understanding of jurors' capabilities and the evolving nature of evidence evaluation. Thus, any doubts regarding the admissibility of scientific evidence should favor its inclusion, as per Rule 11-702, which allows experts to provide opinions that assist the trier of fact. Three prerequisites for the admission of expert opinion testimony under Rule 11-702 are identified: (1) the expert must be qualified; (2) the testimony must assist the trier of fact; and (3) the expert may only testify on scientific, technical, or specialized knowledge. While the first two prerequisites are not contested, the district court must assess whether a proposed expert meets the qualifications under Rule 11-707 regarding polygraph results. Polygraph evidence suggesting truthfulness or deception is considered beneficial for jury deliberation. The trial judge must ensure that all scientific testimony is relevant and reliable, with evidentiary reliability being essential for admissibility. Factors to assess scientific reliability include: (1) testability of the theory or technique; (2) peer review and publication; (3) known error rates and operational standards; and (4) general acceptance in the scientific community. These factors are applied to the control question polygraph examination to evaluate its reliability under Rule 11-702. The district court found the polygraph's testability lacking, stating that the hypothesis that it reliably detects deception has not been empirically validated in real-world settings, despite existing laboratory research being insufficient for courtroom admissibility. The National Academy of Sciences (NAS) Report noted that a robust theory is crucial for confidence in polygraph accuracy, especially in diverse situations and against countermeasures. This theoretical foundation is also vital for enhancing the polygraph test and identifying threats to its validity. The NAS Report highlights that theories of polygraph questioning suggest differing physiological responses between deceptive and truthful individuals when comparing reactions to relevant and control questions. Innocent individuals are expected to show a stronger response to control questions, while guilty individuals are anticipated to react more strongly to relevant questions. The report emphasizes the necessity of understanding the psychological states linked to the test questions and their physiological responses for a solid theoretical foundation. However, current polygraph research has predominantly focused on its applicability rather than its underlying science. Petitioners acknowledge the lack of a comprehensive scientific hypothesis explaining the psychophysiological variables in control question polygraphs but argue that such a theory is not essential for admissibility under Rule 11-702. The primary witness for the State noted that emotional turmoil from lying can be detected by polygraphs. Despite criticisms in the NAS Report, it recognizes that basic scientific principles support the diagnostic value of polygraph testing, particularly among naïve examinees, and acknowledges inherent limitations in accuracy while suggesting that a polygraph can still be practically useful. The document references a prior case where the criterion of "refutability" was highlighted in evaluating expert testimony's scientific basis. The defendants contested the accuracy of DNA evidence and thereby conceded that the underlying theory could be tested. Similarly, the State’s acknowledgment that some studies question polygraph accuracy implies that the control question polygraph theory is also testable, supported by the NAS Report's suggestion for improved field research. Consequently, the conclusion is drawn that the control question polygraph examination is indeed testable, countering the district court's erroneous finding, and distinguishing it from untestable endeavors like astrology. The excerpt evaluates the status of control question polygraph examinations in terms of their scientific credibility, focusing on peer review and publication as a key factor in assessing their validity. The district court noted limited peer-reviewed publications on control question polygraphs, concluding that these do not inspire confidence in the test results, particularly due to the effectiveness of counter-measures. The National Academy of Sciences (NAS) Report reviewed 217 polygraph validation studies, identifying 102 as meeting quality criteria, including appropriate documentation, established truth criteria, and blind scoring. Although the NAS Report found that many studies appeared in reputable journals, it criticized their overall research quality as not meeting high scientific standards. The report suggested that the abundance of published studies may be due to their practical relevance rather than their applicability to real-world scenarios. Both Petitioners and the State presented articles on the validity of the control question polygraph, but the focus here is solely on whether these studies underwent peer review, not on their validity. Despite ongoing debates within the scientific community regarding the polygraph's accuracy, this dispute is seen as a matter of weight rather than admissibility. The excerpt concludes that the NAS Report sufficiently demonstrates that the polygraph has undergone peer review and publication. Additionally, the analysis transitions to the rate of error associated with the control question polygraph, where the district court found the potential rate of error to be vague and unreliable, leading to concerns about the representation of confidence levels in test results due to unknown base rates. Polygraph validation studies indicate a median accuracy index of 0.86 in laboratory settings, with a range of 0.81 to 0.91. The controlled question test has a median accuracy of 0.85 (range 0.83 to 0.90), while field studies report a median accuracy of 0.89 (range 0.711 to 0.999). The NAS Report concludes that for naive examinees, polygraphs can detect deception at rates significantly higher than random guessing. However, the State challenges the validity of these high accuracy rates, expressing concern that laboratory results may not reflect real-life conditions where stakes are higher. The NAS Report posits two hypotheses: one suggesting that polygraph accuracy could be lower in real-life scenarios, and another indicating that fear of false accusation may lead to emotional responses that confuse true deception with innocence, possibly increasing false-positive rates in field conditions. The NAS Report identifies several unresolved issues affecting polygraph accuracy: the impact of individual physiological and psychological differences on results, the influence of examiner expectations on test outcomes, and the limited research on the effects of drugs on polygraph validity. Furthermore, while some studies suggest countermeasures can reduce detection of deception, the NAS Report acknowledges the lack of comprehensive studies on countermeasures in detection contexts. Overall, the report emphasizes the need for further research to better understand these variables and their implications for polygraph accuracy. In Anderson, the court evaluated the error rates associated with DNA profiling, acknowledging concerns about the accuracy of such processes. However, it concluded that deficiencies in error rate calculations pertained to the weight of the evidence rather than its admissibility. Similarly, while polygraph results are not definitive, studies indicate their effectiveness in detecting deception is significantly above chance levels. Testimony presented suggests the accuracy of polygraphs is comparable to various medical diagnostic techniques. Opponents of polygraph evidence have opportunities to challenge its validity through cross-examination. The State claimed the unknown error rate of polygraph evidence relates to an unknown base rate, defined as the proportion of truthful individuals in a population. The base rate does not reflect polygraph accuracy but indicates the percentage of truthful subjects. Although the true base rate is unknowable, it is crucial for understanding the confidence one can place in polygraph results. Two scenarios were presented to illustrate how base rates affect polygraph results. In the first scenario, with a 50% base rate and 90% polygraph accuracy, the test would correctly identify 90 individuals, resulting in a mix of accurate and inaccurate identifications. In the second scenario, with only 10% of subjects being truthful, the likelihood of a passed polygraph indicating actual truthfulness diminishes significantly, demonstrating the critical nature of the base rate in interpreting polygraph results. A passed polygraph examination can have varying levels of reliability depending on the context, with a 90% accuracy rate in one example and only 50% in another. The base rate of truth-tellers versus deceivers cannot be determined beforehand, but it does not affect the polygraph's accuracy; it influences the confidence in interpreting the results. Even with a lower base rate, a passed polygraph increases the likelihood of a subject being truthful from 10% to 50%. The unknowable base rate allows for challenges to the polygraph results through cross-examination. Regarding standards for polygraph administration, the district court found insufficient standards beyond those in Rule 11-707. In New Mexico, practicing polygraphy for compensation requires a license under the Private Investigators and Polygraphers Act, with specific qualifications including age, education, and absence of certain criminal convictions. Applicants must complete a recognized polygraph examiner course and pass competency assessments or have equivalent licensure from another jurisdiction. Additionally, Rule 11-707(B) mandates that expert witnesses on polygraph results must have at least five years of relevant experience or equivalent academic training. A polygraph expert must complete a minimum of 20 hours of continuing education in polygraph examinations within the year preceding the examination, as stipulated in Rule 11-707(B)(3). The regulations establish stringent standards for both the conduct of polygraph examinations and the admissibility of their results. Under Rule 11-707(C), polygraph results can be admitted as evidence at the discretion of the trial judge, provided that: (1) the examiner is qualified, (2) the examination followed established protocols, (3) the examiner was informed about the examinee’s background, (4) at least two relevant questions were asked, and (5) a minimum of three charts were recorded. Additionally, Rule 11-707(E) mandates that both the pretest interview and the actual testing be fully recorded. The standards provided in Rule 11-707 are considered more comprehensive than those in other jurisdictions, as noted by commentators. The American Polygraph Association (APA) has also established similar protocol standards, requiring examiners to assess the examinee’s fitness for testing and to use calibrated, APA-approved instruments. Examiners must conduct a thorough pretest interview, ask clear and balanced questions, collect adequate charts, and maintain precise and clear documentation. The conclusion is that these standards ensure the admissibility of expert testimony regarding the control question polygraph technique. For polygraph expert evidence to be admissible under Rule 11-707, the examination must be conducted by a qualified examiner and adhere to the detailed standards established by the APA to ensure accuracy in truthfulness detection. While general acceptance is not a prerequisite for admissibility under Rule 11-702, it is a factor considered by the court. The district court found that control question polygraph tests lack significant acceptance in the scientific community, particularly given the technique's age. The parties referenced four surveys assessing psychologists' opinions on polygraph examinations: the Gallup Survey (1984), Amato Survey (1993), Iacono Survey (1997), and Honts Survey (2002). The district court deemed the Iacono survey the most reliable, concluding that control question polygraph examinations do not have general acceptance. The Gallup Survey indicated that 61% of respondents viewed the polygraph as a useful diagnostic tool when considered with other information, while 32% deemed its usage questionable, and only 3% found it entirely useless. The Amato Survey, replicating the Gallup findings, showed 60% support for the polygraph as a useful tool, 37% considering its usage questionable, and 2% dismissing it as useless. In 1997, two surveys assessed scientific opinions on polygraphy. The first, the Iacono Survey, involved the Society of Psychophysiological Research, with 195 of 216 members responding. Among those with an opinion, only 36% supported the control question technique's scientific validity, while 77% endorsed the guilty knowledge test. The second group surveyed was the American Psychological Association's Division 1 Fellows, with 168 usable responses from 249 questionnaires. Here, only 30% validated the control question technique, and 72% supported the guilty knowledge test. In 2002, a paper presented at the American Psychology Law Society (APLS) meetings referenced two additional surveys: one from APLS and another from SPR. Out of 205 APLS members, 55 responded, and 38 out of 366 SPR members responded. Among respondents, 96% of APLS members and 91% of SPR members believed polygraph studies in peer-reviewed journals utilized generally accepted scientific methods. Additionally, over half of the respondents found polygraph evidence as useful or more useful than several psychological assessments and believed that admitting polygraph results could enhance the accuracy of judicial verdicts. The ongoing debate over the validity of the control question polygraph examination is highlighted by these surveys. Dr. William Iacono, who conducted the Iacono Survey, supported the State at a hearing, while Dr. Charles Honts, who oversaw the Amato Study and testified for the Respondents, has frequently opposed Dr. Iacono in discussions regarding polygraph admissibility. The excerpt notes previous collaborations of both experts in the field of polygraph research. The control question polygraph examination is not universally accepted or rejected by the scientific community, leading to its limited impact in the Alberico/Daubert analysis. Nonetheless, it is deemed sufficiently reliable under Rule 11-702. While acknowledging potential issues such as countermeasures and examiner biases, the opinion emphasizes that doubts regarding admissibility should favor inclusion. Opponents of polygraph evidence should rely on cross-examination and rebuttal rather than exclusion. The document highlights that government officials often utilize polygraph results in law enforcement decisions, indicating a practical acceptance of their reliability even in contexts where such evidence may not be admissible in court. Numerous cases support the use of polygraphs for establishing probable cause, in disciplinary matters, and as conditions of probation. A blanket exclusion of polygraph evidence is viewed as imprudent, echoing sentiments from previous legal rulings. Rule 11-707 remains in effect, requiring district courts in ongoing cases to adhere to its guidelines when assessing the admissibility of polygraph examination results. Proponents of polygraph evidence need not demonstrate the reliability of the examiner’s testimony under Rule 11-702. The Chief Justice and other justices concurred with this order. In a related case involving Petitioners Kevin Lee and Respondents Hon. Lourdes Martinez, the court is tasked with providing findings of fact and conclusions of law as directed by a Supreme Court Order. The court has compiled a comprehensive overview of the legal status of polygraph examinations in state and federal courts, along with an explanation of the polygraph process, to aid the reviewing court. Notable references include the 2003 National Academy of Sciences publication "The Polygraph and Lie Detection" and articles from Faigman’s "The Law and Science of Expert Testimony," which discuss both supportive and critical perspectives on polygraph research. The evaluation of the standards from State v. Alberico and State v. Anderson highlights key issues, including the existence and testability of the underlying theory, the influence of base rates on test reliability, peer review status, known error rates, community acceptance of the test, and adherence to recognized scientific principles. These factors are critical in determining the probative value versus the prejudicial effect of polygraph testimony. Findings of fact will be organized by relevant factors. A polygraph examination integrates interrogation with physiological measurements, capturing an examinee's heart rate, blood pressure, respiration rate and depth, and skin electrical activity while posing yes-or-no questions. Key components include a blood pressure cuff, electrodes for electrodermal activity, pneumographs for breathing, and a cardiosphygmograph for heart fluctuations. The data, recorded on a polygraph chart, reflects physiological responses believed to indicate deception, as they tend to intensify when a subject lies due to fear of detection or psychological arousal. Polygraph tests serve three main purposes: preemployment screening for law enforcement or government roles, screening of current employees in national security, and investigating specific incidents like criminal cases. Tests conducted by police are adversarial, whereas privately administered tests by defense counsel are termed "friendly." If a client passes a friendly test, results may be presented as evidence in hearings. Three primary questioning techniques exist in polygraph examinations: the relevant-irrelevant test (RIT), the guilty knowledge test (GKT), and the control question test (CQT). The CQT is most commonly used in criminal investigations. Under Rule 11-707 NMRA 2003, tests using any of these techniques are admissible if they meet specified criteria. The CQT assesses whether an examinee is lying about specific incident-related questions by comparing responses to relevant questions against control questions. Due to discomfort from the blood pressure cuff, a limited number of approximately ten questions are asked per chart, and Rule 11-707 mandates at least three charts per examination. A pre-test interview occurs before the CQT to discuss the test process, review questions, and address the examinee's medical history, which can last from 30 minutes to over 2 hours. Innocent examinees are expected to respond more strongly to control questions than to relevant questions, while guilty examinees are expected to react more strongly to relevant questions. Relevant questions directly pertain to the alleged crime, such as whether the examinee robbed a bank, while control questions are vague and relate to common experiences, designed to elicit untruthful responses from innocent individuals. For instance, a control question could ask if the examinee ever took something that did not belong to them. Innocent individuals typically answer relevant questions truthfully but may lie or be uncertain about their answers to control questions, whereas guilty individuals are anticipated to show greater distress when answering relevant questions due to their deceit. The polygrapher's skill lies in crafting effective control and relevant questions to differentiate between truthful and deceptive responses. There are variations in the control question technique, including the "directed-lie" test, where examinees are instructed to lie to control questions, making them easier to standardize. Scoring for polygraph tests involves comparing responses to relevant and control questions, with a range of scores from +3 (indicating truthfulness) to -3 (indicating deception). Total scores determine the classification of the examinee: scores of +6 or higher suggest truthfulness, -6 or lower indicate deception, and scores between +5 and -5 are inconclusive. The scoring system can yield scores from approximately +30 to -30. Historically, polygraph evidence was deemed inadmissible due to a lack of general acceptance in the field, as established in Frye v. United States. However, the standards for admissibility changed with the Daubert ruling, which set new criteria for scientific evidence. Many states, including New Mexico, have adopted standards regarding the admissibility of polygraph evidence, particularly following the case State v. Alberico. However, advocates for polygraph use have faced challenges in courts adhering to pre-Daubert standards or those that have integrated Daubert principles. A total of 27 states and the District of Columbia apply a per se exclusion rule against polygraph evidence for all purposes, as seen in cases like Pulakis v. State and People v. Anderson. These jurisdictions exclude both the results and any offers or refusals to take polygraph tests, justifying their decisions on grounds of the polygraph's unproven validity and reliability, as well as its lack of acceptance in the scientific community. A primary concern is the prejudicial effect such evidence could have in jury trials, which is considered to outweigh its potential probative value. Additionally, four states—Massachusetts, North Carolina, Oklahoma, and Wisconsin—previously allowed polygraph evidence but have reverted to a per se ban, citing risks of jury confusion and overstepping the jury's role. Furthermore, since the introduction of polygraph evidence on stipulation, no adequate standards have emerged to assist trial courts in evaluating such evidence, leading to concerns that the burden on courts may surpass any evidentiary benefits. Currently, 17 states permit the use of polygraph evidence only when there is prior agreement from all parties involved. In various states, stipulation regarding polygraph tests typically means both parties agree beforehand that the results will be admissible, while also allowing the adversely affected party to cross-examine the polygraph examiner and challenge the evidence. Appellate decisions do not universally assert that stipulated evidence gains probative value or reliability, although some courts believe stipulation enhances reliability by increasing the examinee's anxiety and promoting impartial examiner selection. A few states permit stipulated polygraph results under specific conditions, such as North Dakota and Ohio, which restrict admission to post-trial or corroborative use. Louisiana and Michigan allow polygraph evidence without stipulation solely in post-trial contexts, while South Carolina has shifted the admissibility decision to trial judges based on established evidentiary rules. In federal courts, the ruling in United States v. Scheffer determined that a military court's blanket exclusion of polygraph evidence does not infringe on a defendant's rights to present a defense. However, this decision lacks broad precedential weight due to the divided opinions of the Court. While most federal appellate courts do not have a strict rule against polygraph admissibility, they generally leave it to trial courts' discretion, often excluding such evidence based on Daubert standards or Rule 403 considerations. The excerpt addresses the admissibility of polygraph evidence in court, emphasizing that there is no per se exclusionary rule against such evidence. It highlights the necessity for polygraph evidence to meet the standards set forth in Rule 702 (regarding expert testimony) and Rule 403 (concerning the balancing of probative value against prejudicial effect). Various case precedents are cited, indicating that while a full Daubert analysis is not required for polygraph evidence, the factors from Daubert can still be useful for assessing reliability within the Rule 403 framework. Most federal district courts remain hesitant to admit polygraph evidence, with an exception noted in United States v. Galbreth, where the court allowed such evidence based on its reliability as determined by expert testimony. However, the ruling in Galbreth is considered of limited significance because the charges were ultimately dismissed before the polygraph evidence could be presented to a jury, rendering the ruling unappealable and largely dicta. The excerpt summarizes the cautious approach courts have taken regarding polygraph admissibility, reflecting a broader reluctance to integrate such evidence into trials. The court in Galbreth addressed concerns related to polygraph tests but only referenced select studies, leading to an incomplete understanding of their effectiveness and potential prejudicial effects. In contrast, a more comprehensive review of the polygraph literature suggests greater uncertainty. Experts Dr. Raskin and Dr. Honts scored Galbreth's polygraph results favorably, while the Government's expert, Dr. Barland, found the results inconclusive. A pivotal question in the case was whether Galbreth knowingly underreported income, and if Dr. Raskin were to testify, he would affirm that Galbreth's responses were consistent with a truthful outcome. Raskin's testimony would focus on testing procedures and results, not on asserting Galbreth's truthfulness directly, thus addressing substantive inquiries related to guilt or innocence. The judge would allow cross-examination of Dr. Raskin and the introduction of the Government's expert to counter his testimony. Notably, there was no provision for the Government to administer a polygraph to Galbreth. In comparison, in United States v. Crumby, polygraph evidence was admitted under strict conditions, highlighting the overwhelming prejudicial nature of specific responses regarding the defendant's guilt. While Crumby allowed limited introduction of polygraph results, the prosecution did not contest Dr. Raskin's testimony on error rates, and the decision overlooked studies questioning polygraph validity. Both Galbreth and Crumby represent exceptions to the federal rule against admitting polygraph evidence. The admissibility of polygraph test results is critically assessed through various scientific criteria, particularly under Rule 702. Key considerations include: 1. **Validity Measurement**: The validity of polygraph results is essential for their admissibility, with several definitions sourced from PALD. 2. **Decision Theory**: This scientific method applies statistics to predict test utility amid uncertainty. 3. **Reliability Types**: - **Test-Retest Reliability**: Consistency of results under the same conditions. - **Inter-Rater Reliability**: Consistency of conclusions among different examiners. 4. **Validity Definitions**: - **Measurement Validity**: A test is valid if it accurately measures what it intends to measure. - **Criterion Validity**: This relates to the test’s accuracy in identifying truthfulness or deception. - **Construct Validity**: This assesses how well theories explain test performance, bolstering confidence in the test's accuracy. 5. **Test Results Interpretation**: - **Positive Result**: Indicates deception; a false positive occurs if the test suggests deception when the subject is truthful. - **Negative Result**: Indicates no deception; a false negative occurs if the test suggests no deception when the subject is lying. 6. **Decision Threshold**: The cutoff point for categorizing results into positive or negative is crucial, as incorrect thresholds can lead to false outcomes. 7. **Base Rates**: Understanding the prevalence of truth-tellers versus deceivers in a population is vital for assessing the reliability of diagnostic tests and impacts the test’s overall utility. These elements collectively inform courts about the admissibility of polygraph evidence, emphasizing that base rates and error rates are significant but not exclusive factors to consider under Rule 11-403 NMRA 2003. Information that may slightly influence the probability of a consequential fact can be deemed inadmissible under Rule 11-403 NMRA 2003 if the confidence in that information is low. Confidence levels in decision-making relate to the error rate and base rate; in the context of polygraphs, accuracy is determined by two factors: the likelihood of a positive result if deception exists, and the likelihood of a negative result if there is no deception. For example, in medical diagnoses like strep throat, seasonal impacts mean that low base rates can diminish the reliability of test results despite high accuracy. In polygraph applications, understanding the base rate is crucial. For instance, if the prevalence of spies is very low (1 in 10,000), even a highly accurate polygraph test may yield many false positives. The National Academy of Sciences (NAS) emphasized this concern, noting that with a 90% accuracy rate in a population with a low base rate of deception, the test would wrongly classify many as deceptive while only a small fraction would actually be spies. This issue extends to criminal contexts. Assuming a 90% guilty base rate and 90% accuracy, of 100 defendants, the test would show 81 out of 90 guilty defendants as deceptive, while only 9 would pass. However, the focus would be on the 9 passed tests, which could mislead a jury about the innocence of some accused individuals. Therefore, although the confidence level from this testing scenario is only 50%, it still suggests a slight improvement in determining the probability of a fact. Petitioners counter these illustrations by arguing that the base rate is inherently unknowable, as defendants are presumed innocent, thus challenging the application of collective assumptions. They also reference Rule 11-401 NMRA 2003, which allows evidence if it makes a consequential fact more or less probable, asserting that even a 50% confidence level reflects a notable improvement over pre-test probabilities. Confidence in a population's denial of culpability shifts significantly after a polygraph test, moving from 90% likelihood of dishonesty to only 50%, suggesting increased probability of truthfulness. This change is crucial in assessing the relevance of polygraph evidence. The court highlights the importance of base rates in evaluating polygraph reliability, noting that if such evidence is admissible, it would be misleading to claim a 90% accuracy or truthfulness rate. Experts Dr. Raskin and Dr. Honts support the idea that in the absence of a known base rate, a 50% assumption should be made, but juries typically assess their own base rates based on other evidence. The court agrees that the actual base rate in any specific case is uncertain and that assuming a 50% rate is just as unreliable as other assumptions. It argues for the prohibition of stating accuracy percentages in court to avoid jury confusion and misrepresentation of the polygraph's probative value. The document further discusses the "rate of error in operation" of polygraph tests, asserting that reliable accuracy can only be established through systematic testing of the procedure. It states that no scientific theory substantiates polygraph accuracy, and while Dr. Honts proposes a hypothesis regarding comparison question tests, it lacks sufficient justification. The court concludes that physiological responses measured by polygraphs do not definitively indicate lies; instead, these responses can stem from various emotions unrelated to deception, indicating a lack of a singular physiological indicator of lying. The polygraph assesses psychological and physiological responses, including those that can be consciously controlled. In a comparison question test, differing responses to relevant and comparison questions are measured to evaluate truthfulness. Comparison questions, which are not predetermined, can either involve directed lies or probable lies, with pre-test procedures designed to create a belief in the test's effectiveness. There are no established standards for these procedures or question formulation. Most accuracy claims for polygraphs stem from laboratory tests, where subjects follow instructions that may involve simulated theft, followed by immediate polygraph testing. In contrast, field tests rely on the accuracy of past polygraph examinations, which can only be validated against known objective truths, typically determined by confessions. If no confession occurs, the test results cannot be assessed for accuracy, effectively dismissing the results. This poses a significant limitation, as guilty subjects are unlikely to confess after passing a polygraph, and innocent subjects who fail are also unlikely to admit to crimes they did not commit. Thus, field studies do not yield a reliable error rate, and the absence of confessions skews the assessment of polygraph effectiveness. Falsely confessed innocent individuals can skew accuracy figures in field studies, leading to a distorted error rate. Experimental field studies, which manipulate variables in real-life polygraph examinations, are considered the most compelling; however, none are found in the literature on polygraph validity. Peer-reviewed publications represent the highest level of research, yet no specific incident field investigations exist at this level. Field test results indicate that polygraphs may effectively elicit confessions, though their validity remains unproven. Anecdotal evidence suggests confessions occur in polygraph settings, but no scientific evidence directly assesses their utility compared to alternative interrogation methods, such as a bogus pipeline. Without a theoretical framework to explain polygraph effectiveness, its reliability across varied contexts is limited. Most polygraph results in New Mexico are presented by defendants, who face distinct pressures and circumstances compared to lab settings, such as significant delays, differing motivations, and the presence of friendly examiners. Additionally, defendants may exploit countermeasures due to this familiarity. A laboratory study by Dr. Iacono attempted to simulate real-life stressors by incentivizing prisoners with group payments based on performance, revealing inherent issues in typical lab studies. At the end of a polygraph test, the administrator compensated participants without revealing their identities. The accuracy of the test dropped significantly from 94% to 72%, despite using the same population group. Iacono implemented a group contingency threat, causing participants to worry about the test results. This study, published in The Journal of Applied Psychology, illustrates the potential issues that arise when critical variables are altered. There is a notable lack of studies addressing variations in polygraph settings, particularly the "friendly polygraph" scenario, which lacks the adversarial context typical of law enforcement tests. The Rosenthal Effect, recognized in psychology, suggests that researchers may unintentionally influence experiment outcomes to align with their theories, highlighting the need for independent replication of results. This effect can also impact polygraph examiners, as their pre-test knowledge and interaction with subjects can sway their judgments about guilt. The court noted that juries might disregard polygraph results, as shown by Dr. Honts' observations in New Mexico. The risks associated with the Rosenthal Effect are heightened due to the absence of standardized practices in polygraph testing. There are no requirements for test subjects to be drug-free, although certain drugs may not affect control question tests. However, some studies indicate that substances like alcohol could alter responses in a control question format, necessitating further research. Additionally, emotional triggers affecting polygraph readings are unpredictable, complicating the understanding of how drugs might influence specific emotional responses. There are no established guidelines for the types of questions used in tests, nor are there restrictions on testing individuals with mental health issues. Research indicates that psychopaths do not have a distinct advantage in defeating polygraph tests compared to non-psychopaths. Guidelines for formulating relevant questions in polygraph tests are often misinterpreted by practitioners; for example, Dr. Raskin argues that intent should not be a relevant question, yet finds no issue with questioning the sexual intent behind touching a victim. In New Mexico, there are currently no licensing or blind proficiency testing requirements for polygraph examiners. Covert counter-measures—simple techniques like biting the tongue or flexing toes—can artificially influence physiological responses during the test, with studies showing that even minimal training can significantly increase the likelihood of false results. While there is general scientific consensus on the effectiveness of counter-measures, further investigation is needed. A notable study highlighted that inmates given brief instruction on counter-measures prior to polygraph exams overwhelmingly reported guilt yet passed the tests. Experienced examiners reportedly could not detect these counter-measures in laboratory settings, although there are no well-conducted studies assessing their effectiveness in real-world scenarios with sophisticated subjects. The literature suggests that specific instance polygraph tests can discern truth from deception better than chance but acknowledges variability in accuracy. Concerns arise regarding the population of test subjects in New Mexico, as they may not be "untrained in counter-measures." Additionally, recent developments in computer scoring of polygraph results rely on assumptions that may not hold true in real-world contexts, such as the base rate of deception among tested subjects, leading to questions about the validity of these scoring algorithms. Computer scoring of polygraph tests yields a confidence level expressed as a percentage likelihood of the test subject’s truthfulness, such as 93.3%. However, this representation lacks scientific backing and fails to address issues related to base rates. The relevant scientific community includes The Society for Psychophysiological Research and the American Psychological Association’s Division One, which has assessed the validity of polygraph examinations through four surveys. The most credible of these is Dr. Iacono's survey published in The Journal of Applied Psychology, noted for its high response rate and clarity compared to other surveys criticized by Dr. Honts for their methodology. The Iacono survey indicated that 36% of respondents supported the scientific soundness of control question tests, versus 22% for directed lie tests and 77% for guilty knowledge tests. A significant majority believed that adversarial tests are harder to pass, with 99% acknowledging the potential effectiveness of counter-measures. Only 17% felt laboratory study results should hold substantial weight over field studies. Iacono’s findings align with the National Academy of Sciences (NAS) view that claimed high accuracy in polygraph results is rarely supported by empirical research. Control question polygraph tests are not widely accepted in the scientific community, which is notable given the long history of the polygraph's use. Conclusions of law assert that polygraph results lack a comprehensive theoretical foundation, and the hypothesis that the test can reliably detect deception remains unproven through field research. Existing laboratory studies are inadequate for court admissibility due to methodological concerns. The reliability of test results is further compromised by vague error rates and misrepresentations of confidence levels due to the neglect of base rates. Current standards, as outlined in Rule 11-707 NMRA 2003, are deemed insufficient to ensure reliability. Control question polygraph tests lack acceptance in the scientific community due to their reliance on outdated techniques not grounded in established scientific principles. The tests do not provide reliable conclusions based on reasonable probability, and the risk of counter-measures undermines their effectiveness. While some studies suggest a link between polygraph results and the probability of a fact, the overall probative value is significantly diminished by the potential for confusion, delay, and inefficiency, rendering such evidence inadmissible under Rule 11-403 NMRA 2003. Case law, including US v. Piccinonna, has established that evidence of passing a polygraph is considered extrinsic evidence related to a witness's credibility and is inadmissible under Rule 11-608 B. Additionally, the subjective nature of polygraph testing prevents reliable repeatability, violating a key principle of the scientific method, and thus, polygraph results are deemed insufficiently reliable for admissibility in New Mexico courts.