ROMINGER LEGAL
Florida Case Law & Florida Court Opinions - Florida Law
Need Legal Help?
NOT FINDING WHAT YOU NEED? -CLICK HERE
This court case was taken from the Florida Court's web site. Search our site for more cases - CLICK HERE

LEGAL RESEARCH
COURT REPORTERS
PRIVATE INVESTIGATORS
PROCESS SERVERS
DOCUMENT RETRIEVERS
EXPERT WITNESSES

 

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

 
Web Rominger Legal

Legal News - Legal Headlines

 

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JANUARY TERM 2005

STATE OF FLORIDA,
however, our supreme court declined to review

the certified question. Hardware v. State, 885
Appellant,
So. 2d 387 (Fla. 2004).


v.
In Hardware the third district quashed an order

of the trial court setting a Frye hearing to
CHRISTOPHER THOMPKINS,
determine the admissibility of the polygraph

result. The third district apparently concluded
Appellee.
that because our supreme court had held that

these tests were inadmissible, Davis v. State,

520 So. 2d 572 (Fla. 1988), trial courts should
CASE NO. 4D04-3708
not go so far as conducting a Frye hearing. We


disagree. First, the fact that this test was not

scientifically reliable in 1988, when Davis was
Opinion filed January 26, 2005
decided, does not mean that it will never gain

sufficient scientific recognition in the future.
Petition for writ of certiorari to the Circuit
Second, we think that the Florida Supreme Court
Court for the Seventeenth Judicial Circuit,
is more likely to reconsider the polygraph in a
Broward County; Paul L. Backman, Judge; L.T.
case in which there has been a Frye hearing
Case No. 03-10194 CF10A.
establishing that it has been accepted

scientifically.
Charles J. Crist, Jr., Attorney General,

Tallahassee, and Heidi L. Bettendorf, Assistant
In this case the polygraph proponent did not
Attorney General, West Palm Beach, for
establish scientific reliability under Frye. The
appellant.
only testimony was from two people who earn a

living by giving polygraph tests. Frye requires
Charles I. Kaplan of the Law Offices of
more than the testimony of an expert who has a
Kaplan & Singhal, P.A., Fort Lauderdale, for
personal stake in the theory or is prone to an
appellee.
institutional bias. Ramirez v. State, 810 So. 2d

836, 844 n.13 (Fla. 2001). As Ramirez explains:
KLEIN, J.


[G]eneral scientific recognition requires the
The state seeks certiorari review of a pretrial
testimony of impartial experts or scientists. It
ruling that the result of a polygraph test given to
is this independent and impartial proof of
a victim witness would be admitted in evidence.
general scientific acceptability that provides
The test indicated that the testimony that the
the necessary Frye foundation.
defendant had sexually assaulted her was not

truthful. We have jurisdiction under State v.
Id. at 851. In Kaminski v. State, 63 So. 2d 339
Pettis, 520 So. 2d 250 (Fla. 1988), and grant the
(Fla. 1952), our supreme court quoted from Frye
petition.
as follows:


The trial court entered the order after holding
We think the systolic blood pressure
a hearing under Frye v. United States, 293 F.
deception test has not yet gained such
1013 (D.C. Cir. 1923). Not long before that, the
standing and scientific recognition among
third district had certified as a question of great
physiological and psychological authorities
public importance the admissibility of polygraph
as would justify the courts in admitting
results in State v. Narval Hardware, 868 So. 2d
expert testimony deduced from the
574 (Fla. 3d DCA 2004). Subsequently,
discovery, development, and experiments

thus far made. Frye v. United States, 54
remains extremely polarized about the reliability
App.D.C. 46, 293 F. 1013, 1014, 34 A.L.R.
of polygraph techniques." Id. at 1265. Even
145.
Justice Stevens, the sole dissenter, appeared to

recognize that polygraph evidence would be
Kaminski, 63 So. 2d at 340. See U.S. v.
admissible only in courts which followed
Alexander, 526 F.2d 161, 164 n.6 (8th Cir.
Daubert v. Merrill-Dow Pharmaceuticals, 509
1975) ("Some commentators have posited the
U.S. 579 (1993), Scheffer, 523 U.S. at 322
argument that the polygraph need only attain
(Stevens, J., dissenting).
general acceptance among the polygraph

operators themselves to satisfy the test for
We grant the petition and quash the order
admissibility.... This position must be
admitting the polygraph test results.
rejected.... Experts in neurology, psychiatry and

physiology may offer needed enlightenment
WARNER and TAYLOR, JJ., concur.
upon the basic premises of polygraphy.").


NOT FINAL UNTIL DISPOSITION OF ANY
The testimony in this record, which came only
TIMELY FILED MOTION FOR
from persons who administer polygraph tests, is
REHEARING.
insufficient to establish the general scientific
recognition required by Frye as interpreted by
Kaminski and Ramirez.

The defendant relies heavily on United States
v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989),
an en banc opinion of the eleventh circuit in
which the majority receded from its per se rule
precluding admissibility of polygraph tests. We
are unable to determine from the majority
opinion in Piccinonna if there had been a Frye
hearing in which experts had testified as to the
general acceptance of the polygraph in the
scientific community. Judge Johnson, joined by
three other members of the court, wrote a
dissent, citing a substantial amount of
information to support his point that the
scientific community "remains sharply divided
on the reliability of the polygraph." 885 F. 2d at
1537 (Johnson, J. dissenting).

Of more recent vintage than Piccinonna is
United States v. Scheffer, 523 U.S. 303 (1998),
in which the issue was whether, in a military
court marshal proceeding, a rule excluding
polygraph evidence violates the Sixth
Amendment right to present a defense under
Chambers v. Mississippi, 410 U.S. 284 (1973).
In an eight-to-one decision the Court held that
the rule did not violate the defendant's
constitutional rights. That opinion also cites a
substantial amount of information leading the
Court to conclude that "the scientific community

2

Ask a Lawyer

 

 

FREE CASE REVIEW BY A LOCAL LAWYER!
|
|
\/

Personal Injury Law
Accidents
Dog Bite
Legal Malpractice
Medical Malpractice
Other Professional Malpractice
Libel & Slander
Product Liability
Slip & Fall
Torts
Workplace Injury
Wrongful Death
Auto Accidents
Motorcycle Accidents
Bankruptcy
Chapter 7
Chapter 11
Business/Corporate Law
Business Formation
Business Planning
Franchising
Tax Planning
Traffic/Transportation Law
Moving Violations
Routine Infractions
Lemon Law
Manufacturer Defects
Securities Law
Securities Litigation
Shareholder Disputes
Insider Trading
Foreign Investment
Wills & Estates

Wills

Trusts
Estate Planning
Family Law
Adoption
Child Abuse
Child Custody
Child Support
Divorce - Contested
Divorce - Uncontested
Juvenile Criminal Law
Premarital Agreements
Spousal Support
Labor/Employment Law
Wrongful Termination
Sexual Harassment
Age Discrimination
Workers Compensation
Real Estate/Property Law
Condemnation / Eminent Domain
Broker Litigation
Title Litigation
Landlord/Tenant
Buying/Selling/Leasing
Foreclosures
Residential Real Estate Litigation
Commercial Real Estate Litigation
Construction Litigation
Banking/Finance Law
Debtor/Creditor
Consumer Protection
Venture Capital
Constitutional Law
Discrimination
Police Misconduct
Sexual Harassment
Privacy Rights
Criminal Law
DUI / DWI / DOI
Assault & Battery
White Collar Crimes
Sex Crimes
Homocide Defense
Civil Law
Insurance Bad Faith
Civil Rights
Contracts
Estate Planning, Wills & Trusts
Litigation/Trials
Social Security
Worker's Compensation
Probate, Will & Trusts
Intellectual Property
Patents
Trademarks
Copyrights
Tax Law
IRS Disputes
Filing/Compliance
Tax Planning
Tax Power of Attorney
Health Care Law
Disability
Elder Law
Government/Specialty Law
Immigration
Education
Trade Law
Agricultural/Environmental
IRS Issues

 


Google
Search Rominger Legal


 


LEGAL HELP FORUM - Potential Client ? Post your question.
LEGAL HELP FORUM - Attorney? Answer Questions, Maybe get hired!

NOW - CASE LAW - All 50 States - Federal Courts - Try it for FREE


 


Get Legal News
Enter your Email


Preview

We now have full text legal news
drawn from all the major sources!!

ADD A SEARCH ENGINE TO YOUR PAGE!!!

TELL A FRIEND ABOUT ROMINGER LEGAL

Ask Your Legal Question Now.

Pennsylvania Lawyer Help Board

Find An Attorney

TERMS OF USE - DISCLAIMER - LINKING POLICIES

Created and Developed by
Rominger Legal
Copyright 1997 - 2010.

A Division of
ROMINGER, INC.