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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
JANUARY TERM 2005
STATE OF FLORIDA,
however, our supreme court declined to review
the certified question. Hardware v. State, 885
So. 2d 387 (Fla. 2004).
In Hardware the third district quashed an order
of the trial court setting a Frye hearing to
determine the admissibility of the polygraph
result. The third district apparently concluded
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
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
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
institutional bias. Ramirez v. State, 810 So. 2d
836, 844 n.13 (Fla. 2001). As Ramirez explains:
[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
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
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
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
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