The Frye standard (Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 ) was superseded in 1993 by the U.S. Supreme Court which revisited the Frye standard in Wiliam Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct 2786, 125 L.E.2d 469, 509 U.S. (1993), and issued another landmark decision directly affecting the admissibility of expert testimony, including results of psychophysiology veracity (PV) examinations using the polygraph.
Under the standard enunciated by the United States Supreme Court in Daubert, which superseded the Frye standard of “general acceptance” test, the court ruled that:
The trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Thus under the Daubert standard, there would appear to be several factors which must be addressed for the advocate attempting to lay a foundation for the admission of a PV examination.
The defense attorney who intends to introduce PV examination results as evidence in a court of law on behalf of his or her client must realize that the supersedence of the Frye standard in favor of the Federal Rules of Evidence by William Daubert v. Merrell Dow Pharmaceuticals is merely an invitation for forensic psychophysiology to show that it is worthy of acceptance by the court. It therefore behooves the attorney who has such an aspiration to present to the court a most competent and well-prepared forensic psychophysiology expert, whose expert testimony is preceded by the scientific testimony of a foundation expert, and whose results (of the PV examination) are confirmed by a qualified quality control reviewer. An excellent text including a model transcript for use by the attorney at law and his/her foundation expert in preparation for the foundation expert’s testimony in court is found in “Examination and Cross-Examination of Experts in Forensic Psychophysiology Using the Polygraph” by James Allan Matte, available at www.amazon.com.
There are numerous areas where the defense attorney can use PV examination results. Whenever there is a factual dispute regarding a distinctive issue, the PV examination may be used to prove or disprove essential elements of his/her client’s version of the incident or matter. This includes civil as well as criminal cases. The following are some of the areas where the PV examination is frequently used. Plea Bargaining, Motions to Suppress, Settlements, Sentencing, Supporting Evidence, Parole and Probation, Arbitration, and Civil Actions.