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State v. Alexander (12/18/2015) ap-2481

State v. Alexander (12/18/2015) ap-2481

                                                                                            NOTICE
  

                    The text of this opinion can be corrected before the opinion is published in the       

                   Pacific Reporter                     .     Readers are encouraged to bring typographical or other                                                        

                   formal errors to the attention of the Clerk of the Appellate Courts:    



                                                            303 K Street, Anchorage, Alaska  99501  

                                                                               Fax:  (907) 264-0878  

                                                                  E-mail:  corrections@ akcourts.us  



                                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                     



STATE OF ALASKA,          

                                                                                                        Court of Appeals Nos. A-11423 & A-11433
                                       

                       Petitioner & Cross-Respondent,                                                             Trial Court No. 3AN-09-11088 CR
                                        



                                               v.  

                                                                                                                                          O P I N I O N
  

                                                                                                                                                                     

THOMAS HENRY ALEXANDER,                     



                       Respondent & Cross-Petitioner.                                                               No. 2481 - December 18, 2015
  

                                                                                                                                                                                   



                               Petition  for  review  from  the  Superior  Court,  Third  Judicial  

                                                                                                                                                          

                               District, Anchorage, Gregory Miller, Judge.  

                                                                                                                   



                               Appearances: Diane L. Wendlandt, Assistant Attorney General,  

                                                                                                                                                         

                               Office  of  Special  Prosecutions  and Appeals,  Anchorage,  and  

                                                                                                                                                                    

                               Michael   C.   Geraghty,   Attorney   General,   Juneau,   for   the  

                                                                                                                                                                   

                               Petitioner. Sharon Barr, Assistant Public Defender, and Quinlan  

                                                                                                                                                           

                                Steiner,  Public  Defender,  Anchorage,  for  the  Respondent.  

                                                                                                                                                                              

                               Gordon L.  Vaughan,  Vaughan & DeMuro,  Colorado  Springs,  

                                                                                                                                                        

                               Colorado, for amicus curiae American Polygraph Association.  

                                                                                                                                                



                               Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                                                                                                                          

                               District Court Judge.*  

                                                                                  



                                              

                               Judge MANNHEIMER.  



        *       Sitting   by   assignment    made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                                         


----------------------- Page 2-----------------------

                                                                           The defendant in this case, Thomas Henry Alexander, is facing trial for                                                                                                                                                                                                                                                                                                                          



 sexual abuse of a minor. The superior court has granted Alexander's motion to introduce                                                                                                                                                                                                                                                                                                                                                   



 evidence   that   he   took   a   polygraph   examination,   and   that   the   polygraph   examiner  



 concluded that there was a high likelihood that Alexander was being truthful when he                                                                                                                                                                                                                                                                                                                                                                                           



 denied committing the alleged acts of abuse.                                                                                                                                                                                                         



                                                                           However, the superior court placed two conditions on the admission of this                                                                                                                                                                                                                                                                                                                        



polygraph evidence:                                                                                              First, Alexander must submit to another polygraph examination,                                                                                                                                                                                                                                     



this   one   administered   by   a   qualified   expert   of   the   State's   choosing.     And   second,  



Alexander must take the stand at his trial and submit to cross-examination.                                                                                                                                                                                                                                                                                                                                                  



                                                                           Both parties now seek review of the superior court's decision.                                                                                                                                                                                                                                                                                            The State   



 asks us to reverse the superior court's decision that polygraph evidence is admissible.                                                                                                                                                                                                                                                                                                                                                                                                          



Alexander asks us to vacate the two conditions that the superior court                                                                                                                                                                                                                                                                                                                                       placed on the                                                  



 admission of the polygraph evidence - that he submit to a State-administered polygraph                                                                                                                                                                                                                                                                                                                                                 



 examination   before   trial,   and   that   he   take   the   stand   at   trial   and   submit   to   cross- 



 examination.   



                                                                          For the reasons explained in this opinion, we uphold the superior court's                                                                                                                                                                                                                                                                                                    



rulings - although, as we also explain, we leave the superior court free to re-evaluate                                                                                                                                                                                                                                                                                                                                         



its decision in light of the factual developments in this case since the time the superior                                                                                                                                                                                                                                                                                                                                                        



 court issued that decision.                                                                                                                     



                                      The procedural background of this litigation                                                                                                                                                         



                                                                           Thomas Henry Alexander stands charged with several counts of sexual                                                                                                                                                                                                                                                                                                              



 abuse of a minor.                                                                                        



                                                                           In   preparation   for   trial,   Alexander's   defense   attorney   hired   an   expert,  



Dr. David C. Raskin, to administer a polygraph examination to him.                                                                                                                                                                                                                                                                                                            Based on the results                                                         



                                                                                                                                                                                                                                   -  2 -                                                                                                                                                                                                                              2481
  


----------------------- Page 3-----------------------

of this examination, Dr. Raskin is prepared to testify that there is a high likelihood that                                                                                                                  



Alexander was being truthful when, during the examination, he denied committing the                                                                                                                           



acts of abuse.                       



                                 Alexander's attorney filed a motion requesting an evidentiary hearing, so                                                                                                       



that he might have the opportunity to establish that polygraph testing was based on                                                                                                                            



scientifically valid methodology, and that Alexander's polygraph result should therefore                                                                                                        



be admissible at his trial.                                  Alexander's attorney acknowledged that, forty-five years ago,                                                                                  

                                                 1  the Alaska  Supreme Court announced a total ban on polygraph  

in  Pulakis v. State                           ,                                                                                                                                             



evidence.  But the defense attorney noted that Pulakis was decided under the Frye test  

                                                                                                                                                                                                              



for the admissibility of scientific evidence - a test that was superseded when the Alaska  

                                                                                                                                                                                                      



                                                                                                                                                                                                 2  

Supreme Court adopted the more flexible Daubert test for scientific evidence.  

                                                                                                                                                                                                     



                                 Alexander's attorney argued that, because Alaska now uses the Daubert  

                                                                                                                                                                                                  



test, and because of significant improvements in polygraph science and practice in the  

                                                                                                                                                                                                              



last forty years, polygraph evidence should now be admissible in the courts of Alaska.  

                                                                                                                                                                                                                         



                                 While Alexander's case was being litigated,  a  similar argument for the  

                                                                                                                                                                                                               



admission of polygraph evidence was being offered in another pending criminal case,  

                                                                                                                                                                                                          



Griffith v. State, File No. 3SP-11-103 CR.  The defendant in that case, James Griffith,  

                                                                                                                                                                                                  



was also charged with sexual abuse of a minor, and his attorney also hired Dr. Raskin to  

                                                                                                                                                                                                                 



administer a polygraph examination to him.  As with Alexander, Dr. Raskin concluded  

                                                                                                                                                                                             



that Griffith was being truthful when he denied the sexual abuse.  

                                                                                                                                                                 



         1       476 P.2d 474, 478-79 (Alaska 1970).                                                       



        2        See Daubertv.MerrellDowPharmaceuticals,Inc.,509 U.S. 579;113 S.Ct.2786,125  

                                                                                                                                                                                                              

L.Ed.2d 469 (1993) (announcing a new test for assessing  the  admissibility of scientific  

                                                                                                                                                                                                

evidence under the Federal Rules of Evidence); and State v. Coon, 974 P.2d 386, 395-98  

                                                                                                                                                                                                     

(Alaska 1999) (adopting the Daubert test under the Alaska Rules of Evidence).  

                                                                                                                                                                                           



                                                                                                     - 3 -                                                                                                 2481
  

                                                                                                             


----------------------- Page 4-----------------------

                                                                      The two judges who were assigned to Alexander's and Griffith's cases -                                                                                                                                                                                                                                                                                                          



 Superior   Court Judge Gregory Miller and Superior Court Judge                                                                                                                                                                                                                                                                                         pro tempore                                                             Daniel  



 Schally - decided to hold a consolidated                                                                                                                                                                                                hearing to investigate whether polygraph                                                                                                                             



 evidence met the                                                                          Daubert  standard for the admissibility of scientific evidence.                                                                                                                                                                                                                                                                 At this   



hearing, Dr. Raskin testified for the defendants, and another expert, Dr. William Iacono,                                                                                                                                                                                                                                                                                                                                   



testified for the State.                                                                                          Both experts discussed the current standards and techniques for                                                                                                                                                                                                                                                                 



polygraph   examinations,   and   they   offered   differing opinions                                                                                                                                                                                                                                                                  concerning the                                                                      overall  



reliability of polygraph results.                                                                                                                               



                                                                      Dr. Raskin testified that if polygraph examinations are properly conducted                                                                                                                                                                                                                                                             



using the                                          "control question" technique, one would "conservatively" expect polygraph                                                                                                                                                                                                                                                                                  



 examinations to be 90 percent                                                                                                                                       accurate (or more) in assessing truth-telling and lying.                                                                                                                                                                                                                                        



More specifically, Dr. Raskin pointed to studies which apparently demonstrated that the                                                                                                                                                                                                                                                                                                                                                            



 accuracy rate of polygraph examinations was between 89 and 98 percent.                                                                                                                                                                                                                                                                                                                           



                                                                      In   contrast,   Dr.   Iacono   testified   that   the   better-conducted   studies   of  



polygraph examinations showed that these examinations had accuracy rates of between                                                                                                                                                                                                                                                                                                                                    



 51 percent (essentially, a coin flip) and 98 percent, with average results being about 70                                                                                                                                                                                                                                                                                                                                                           



percent accurate.                                                                           



                                                                      Following this hearing, the two superior court judges issued a joint decision                                                                                                                                                                                                                                                                      



in which they held that "control question" polygraph evidence met the                                                                                                                                                                                                                                                                                                   Daubert  test, and   



that Alexander and Griffith were conditionally entitled to introduce evidence of their                                                                                                                                                                                                                                                                                                                                                    



polygraph results.                                                                             The two conditions that the judges placed on this evidence were:                                                                                                                                                                                                                                                                                                      



 (1)   that   each   defendant   would   be   required   to   submit   to   an   additional   polygraph  



 examination, this one administered by a qualified examiner of the State's choosing, and                                                                                                                                                                                                                                                                                                                                                       



 (2)   that   each   defendant   would   be   required   to   testify   at   trial and                                                                                                                                                                                                                                                                          submit   to   cross- 



 examination.   



                                                                                                                                                                                                                      -  4 -                                                                                                                                                                                                                2481
  


----------------------- Page 5-----------------------

                                Following this ruling,                              the State petitioned us to review and reverse                                                                   the  



superior   court's   holding   that   polygraph   evidence   meets   the   Daubert   standard   for  



scientific evidence.                             The two defendants, Alexander and Griffith, filed cross-petitions                                                        



asking us to vacate the two conditions that the superior court placed on the admission of                                                                                                              



their polygraph evidence.                                      We granted the State's petition and the defendants' cross-                                                                    



petitions, and we ordered formal briefing.                                                          



                                But while this case was still in                                            its   briefing stage,                       Griffith took a State-                



administered polygraph examination - and he apparently failed the exam.                                                                                                       Griffith then   



pleaded guilty, and he withdrew his cross-petition.                                                                      This leaves Alexander as the only                                       



defendant in this case.                                 



                                                                                                                                                                                     

                The legal background of this litigation:  the Daubert test that governs the  

                                                                               

                admissibility of scientific evidence  



                                                                                                                                                                                       

                                For most of the twentieth century, the admissibility of scientific evidence  



                                                                                                                                                                                                   

in American courts was governed by the "general scientific acceptance" test that was first  



                                                                                                                                                                                                 

announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  Frye was, in fact,  



                                                                                                                                                                                                 

another lie detector case - although the testing machine at issue in Frye was a  less  



                                                                                                                                                                                     

sophisticated precursor of the modern polygraph; it was a machine that only measured  



                                                                                  

a person's systolic blood pressure.  



                                                                                                                                                                                                  

                                The Frye court declared that scientific evidence would be admissible only  



                                                                                                                                                                                              

when it was adduced "from a well-recognized scientific principle or discovery" - which  



                                                                                                                                                                                             

the court defined as a principle or discovery "sufficiently established [as] to have gained  



                                                                                                                                                                                

general acceptance in the particular field in which it belongs."  Id.  at 1014.  



                                                                                                                                                                                                       

                               Applying this "general acceptance" test, the Frye court concluded that lie  



                                                                                                                                                                                                    

detector evidence  was  not  admissible because it had "not yet gained [this level of]  



                                                                                                -  5 -                                                                                           2481
  


----------------------- Page 6-----------------------

 standing and scientific recognition among physiological and psychological authorities."                                                                                                                                                                                                                                                                                                                                                        



Ibid.   



                                                                   Close to fifty years later, in                                                                                                      Pulakis v. State                                                               , 476 P.2d 474 (Alaska 1970),                                                                                       



 the Alaska Supreme Court applied the                                                                                                                                                           Frye  test to polygraph evidence and concluded                                                                                                                                         



 that this type of evidence was still not admissible, because the polygraph still had not                                                                                                                                                                                                                                                                                                                                



 gained   general   scientific   acceptance   as   a   reliable   method   of   assessing   a   person's  



 truthfulness.     The   supreme   court   emphasized   that   its   ruling was                                                                                                                                                                                                                                                                     not   based   on   an  



 affirmative   finding that                                                                                              polygraph   testing was                                                                                            in   fact   unreliable.     Rather,   the   court  



 explained, the proponent of the polygraph evidence had failed to offer sufficient proof                                                                                                                                                                                                                                                                                                                       



 that   the   polygraph   was   generally   accepted   as   reliable   within   the   relevant   scientific  



 community.   Id.  at 479.                                                                                              Thus, the court declared, "[j]udicial acceptance of polygraph                                                                                                                                                                                                    



 tests must await the results of more persuasive experimental proof of reliability."                                                                                                                                                                                                                                                                                                                          Ibid.   



                                                                   But in 1993, the United States Supreme Court abandoned the                                                                                                                                                                                                                                              Frye  test.   In  



Daubert   v.  Merrell Dow Pharmaceuticals, Inc.                                                                                                                                                                                                   , 509 U.S. 579, 113 S.Ct. 2786, 125                                                                                                                                 



 L.Ed.2d   469   (1993),   the   Supreme   Court   ruled   that   the   Federal Rules                                                                                                                                                                                                                                                                                      of   Evidence  



 embodied a new test for scientific evidence that superseded                                                                                                                                                                                                                                          Frye.   



                                                                  Under the                                          Daubert   test,  the question is no longer whether the scientific                                                                                                                                                                                                        



 community has reached a consensus regarding the validity of a scientific discovery or                                                                                                                                                                                                                                                                                                                                        



 technique.   Instead, the inquiry now focuses on whether the proposed scientific evidence                                                                                                                                                                                                                                                                                                     



 (1)  is based on "reasoning or methodology [that] is scientifically valid", and (2) "whether                                                                                                                                                                                                                                                                                                



 that reasoning or methodology properly can be applied to the facts in issue."                                                                                                                                                                                                                                                                                                          509 U.S.   



 at 592-93, 113 S.Ct. at 2796.                                                                                                                     



                                                                   The Supreme Court offered                                                                                                                       a non-exhaustive list of factors that courts                                                                                                                                            



 should consider when answering these foundational questions.                                                                                                                                                                                                                                                        One of these factors is                                                                                     



 the old                            Frye  test - whether the proposed scientific theory or technique has attained                                                                                                                                                                                                                                                                             



                                                                                                                                                                                                          -  6 -                                                                                                                                                                                                     2481
  


----------------------- Page 7-----------------------

general acceptance in the relevant scientific community.                                                                                                                                                                                                    The other factors listed by the                                                                                               



Court are:                                       



                               *	   whether   the   proposed   scientific   theory   or   technique   has   been   (or   at   least  



                                              can   be)   empirically   tested   -   that   is,   whether   the   theory   or   technique   is  



                                              falsifiable and refutable;                                                                                    



                               *	   whether the proposed scientific theory or technique has been subjected to peer                                                                                                                                                                                                                                                                   



                                              review and publication; and                                                                                                   



                               *	   whether the known or potential error rate of the proposed theory or technique                                                                                                                                                                                                                                            



                                              is within acceptable                                                                        limits, and whether there are recognized standards and                                                                                                                                                                                       



                                              protocols to control variations in the application of the technique.                                                                                                                                                                                                                                    



 509 U.S. at 593-94, 113 S.Ct. at 2796-97.                                                                                                                                                            The Supreme Court emphasized that any                                                                                                                                           



inquiry under this test should be a "flexible one" whose basic purpose is to ascertain the                                                                                                                                                                                                                                                                                                



"scientific   validity   -   and   thus   the   evidentiary   relevance   and   reliability   -   of   the  



principles that underlie the proposed                                                                                                                                     [scientific evidence]."                                                                                 509 U.S. at 594-95, 113                                                                             



 S.Ct.   at   2797.     The   Daubert   test   focuses   "on   [the]   principles   and   methodology"  



underlying the proposed scientific evidence, 509 U.S. at 595, 113 S.Ct. at 2797, and on                                                                                                                                                                                                                                                                                                     



whether the expert's conclusions have a sufficient analytical nexus to those underlying                                                                                                                                                                                                                                                                 



principles and methodology.                                                                                                       General Electric Co. v. Joiner                                                                                                                      , 522 U.S. 136, 146; 118                                                                        



 S.Ct. 512, 519; 139 L.Ed.2d 508 (1997).                                                                                                                                                      



                                                             The Alaska Supreme Court has adopted the                                                                                                                                                             Daubert  test as the governing                                                             



test for the admissibility of scientific evidence under Alaska law.                                                                                                                                                                                                                                        State v. Coon                                                        , 974   



P.2d 386, 395-98 (Alaska 1999).                                                                                                                         



                                                             (Our   supreme   court   has   rejected   the   Daubert   test   as   the   standard   for  



admitting other types of expert evidence:                                                                                                                                              see Marron v. Stromstad                                                                                            , 123 P.3d 992, 1004                                                   



 (Alaska 2005).                                                        But the parties to the present case agree - and we concur - that                                                                                                                                                                                                                                              



                                                                                                                                                                                          -  7 -	                                                                                                                                                                                   2481
  


----------------------- Page 8-----------------------

polygraph evidence is a type of "scientific" evidence governed by the                                                    Daubert  test under   



Alaska law.)            



            The superior court's ruling on whether the "control question" technique                                           

                                                                                                                                               

            of polygraph examination meets the Daubert standard for admissibility  



                                                                                                                                             

                        As we explained toward the beginning of this opinion, Alexander's attorney  



                                                                                                                                                     

hired Dr. David Raskin to administer a polygraph examination to Alexander using the  



                                                                                                                                                       

"control question" technique (also known as the "comparison question" technique).  



                                                                                                                                                       

                        This was apparently Alexander's second polygraph test.                                                     According to  



                                                                                                                                                         

pleadings filed by the defense, Alexander also passed an earlier test administered by a  



                                                                                                                                      

polygraph examiner who often worked as an independent contractor for the Department  



                                                                                                                                                             

of Corrections (but who, in this case, was working privately for Alexander's attorney).  



                                                                                                                                                     

But  when  this  earlier  examiner  was  unwilling to  turn  over  the  raw  data  from  the  



                                                                                    

examination, the defense retained Dr. Raskin.  



                                                                                                                                                      

                        Dr. Raskin asserted (based on the results of his examination) that, in his  



                                                                                                                                                

"scientific and professional opinion", Alexander was speaking truthfully when he denied  



                                                                                                                                                 

the  allegations  of  sexual abuse.                             Dr.  Raskin  added  that  "[his]  confidence  in  these  



                                                                                                                                                        

conclusions  exceeds  90  percent",  and  he  declared  that  he  holds  this  opinion  "to  a  



                                                                            

reasonable degree of scientific certainty."  



                                                                                                                                               

                        Dr.  Raskin made similar assertions with respect to his testing of James  



                                                                                                                                                   

Griffith -  i.e.,  that there was  a  greater than 90 percent certainty that Griffith was  



                                                                                                                                      

speaking truthfully when he denied committing the charged sexual abuse.  



                                                                                                                                              

                        The superior court heard the competing testimony of Dr. William Iacono,  



                                                                                                                                                     

who declared that polygraph examinations, even when properly run, do  not yield this  



                                  

level of certainty.  



                                                                         -  8 -                                                                   2481
  


----------------------- Page 9-----------------------

                                                               The   court also heard extensive evidence pertaining to the practice and                                                                                                                                                                                                                                                         



 scientific   validity   of   the   "control question"                                                                                                                                                         polygraph   examination   technique   -   the  



technique used by Dr. Raskin when he examined Alexander and Griffith.                                                                                                                                                                                                                                                                                



                                                               The theory behind the "control question" form of polygraph testing is that                                                                                                                                                                                                                                                         



a person's physiological reactions to "relevant" questions - questions that relate directly                                                                                                                                                                                                                                                                                      



to the alleged crime - will differ                                                                                                                                from their reactions to deliberately vague or open-                                                                                                                                                                  



ended "control" questions.                                                                                                      These control questions are formulated so that they raise                                                                                                                                                                                                   



ethical issues that pose difficulties for most people - questions such as, "Have you ever                                                                                                                                                                                                                                                                                                     



 stolen   something of                                                                          significant   value?"   or   "Have   you   ever   lied   to   gain   a   personal  



advantage?"   



                                                               The theory or assumption behind this technique is that an                                                                                                                                                                                                               innocent  person  



will have greater emotional difficulty answering this sort of "control" question - and                                                                                                                                                                                                                                                                                                           



will therefore demonstrate more pronounced physiological reactions when answering                                                                                                                                                                                                                                                                                  



these   control questions                                                                                       -   compared   to   the   straightforward,   honest   denials   that   an  



innocent person will be able to offer when answering direct questions about the facts of                                                                                                                                                                                                                                                                                                                 



the alleged crime.                                                                Conversely, the theory goes, a                                                                                                              guilty  person's physiological reactions                                                                                                   



will be more pronounced when they are called on to answer questions about the alleged                                                                                                                                                                                                                                                                                              



crime,   while   their   reactions   will be                                                                                                                               more   subdued   (in   comparison)   when   they   are  



                                                                                                                                                        3  

answering the control questions.                                                                                                                              



                                                               With respect to the scientific validity of polygraph examination in general,  

                                                                                                                                                                                                                                                                                                                                                                               



Dr.  Raskin and Dr.  Iacono agreed  on the validity of the basic scientific theory that  

                                                                                                                                                                                                                                                                                                                                                                                                



underlies all polygraph testing:  the theory that most people will normally exhibit physio- 

                                                                                                                                                                                                                                                                                                                                                                                



logical reactions when they say things that they believe to be false.  The two experts also  

                                                                                                                                                                                                                                                                                                                                                                                                 



                3              See   William G. Iacono and David T. Lykken, "The Case Against Polygraph Tests",                                                                                                                                                                                                                                                                     



in  Modern Scientific Evidence: The Law and Science of Expert Testimony                                                                                                                                                                                                                                                                      (David Faigman   

et alia                       , editors, 2009), pp. 342, 344-46.                                                                                                                   



                                                                                                                                                                                               -  9 -                                                                                                                                                                                         2481
  


----------------------- Page 10-----------------------

 agreed   that   modern   polygraph   machines   are   capable   of   detecting   and   accurately  



measuring some of these physiological responses.                                                                                                                                                                                                            



                                                                    But the two experts vigorously disagreed as to whether it was possible to                                                                                                                                                                                                                                                                                            



 accurately discern, from the physiological data collected during a polygraph examina-                                                                                                                                                                                                                                                                                                               



tion,   whether   a person was being truthful in their answers during the exam.                                                                                                                                                                                                                                                                                                                              As we   



 explained   earlier,   Dr.   Raskin   put   the   accuracy   rate   of   a   well-conducted   polygraph  



 examination at somewhere between 89 and 98 percent, while Dr. Iacono testified that the                                                                                                                                                                                                                                                                                                                                            



 accuracy rate was considerably lower - somewhere close to 70 percent, on average.                                                                                                                                                                                                                                                                                                                                                              



                                                                    The two experts also disagreed concerning the degree to which a person's                                                                                                                                                                                                                                                        



physiological responses (and, thus, the test results) can be influenced by the manner in                                                                                                                                                                                                                                                                                                                                                 



which the examiner phrases the questions, and by the manner in which the examiner                                                                                                                                                                                                                                                                                                                    



personally interacts with the person who is taking the test.                                                                                                                                                                                                                                          



                                                                    Dr.   Raskin and Dr.                                                                                    Iacono also debated whether there was a reliable,                                                                                                                                                                          



 standardized method of evaluating or "scoring" polygraph results - or whether, instead,                                                                                                                                                                                                                                                                                                                      



the outcome of a polygraph examination depended to an unacceptable degree on the                                                                                                                                                                                                                                                                                                                                                   



 examiner's method of scoring the results.                                                                                                                                                                        



                                                                    Finally, Dr. Raskin and Dr.                                                                                                                   Iacono disagreed on the extent to which the                                                                                                                                                                       



 accuracy of polygraph testing could be undermined if test-takers employed counter-                                                                                                                                                                                                                                                                                                                      



measures to mask their physiological responses to the questions -                                                                                                                                                                                                                                                                                              for instance,                                                          by  



 surreptitiously   biting their                                                                                                       tongue,   or   by   mentally   performing difficult                                                                                                                                                                                    mathematical  



calculations while they were taking the exam.                                                                                                                                                                                          



                                                                    After hearingthis evidence, Judge Miller and Judge Schally both concluded                                                                                                                                                                                                                                                     



that polygraph evidence qualified for admission under the                                                                                                                                                                                                                                         Daubert  test.    



                                                                    The   two   judges   found   that   the   "control question"                                                                                                                                                                                                                form   of   polygraph  



 examination had been                                                                                                empirically tested and subjected to extensive peer review,                                                                                                                                                                                                                                                         as  



demonstrated by the various studies published in professional journals.                                                                                                                                                                                                                                                                                               



                                                                                                                                                                                                            -   10 -                                                                                                                                                                                                          2481
  


----------------------- Page 11-----------------------

                                                                       The judges acknowledged that expert opinion was substantially divided on                                                                                                                                                                                                                                                                                                      



 the issues of whether the "control question" technique of polygraph examination yielded                                                                                                                                                                                                                                                                                                                                      



 an acceptable accuracy rate, and whether there were recognized standards and protocols                                                                                                                                                                                                                                                                                                                            



 that could control the variations among examination techniques and practitioners.                                                                                                                                                                                                                                                                                                                                                      



                                                                       The judges pointed out that Dr. Raskin and Dr. Iacono disagreed as to the                                                                                                                                                                                                                                                                                                   



 achievable   accuracy   rate   of   a   properly   conducted   "control   question"    polygraph  



 examination - with Dr. Raskin putting the expectable accuracy rate at 89 to 98 percent,                                                                                                                                                                                                                                                                                                                                



while Dr. Iacono declared that the accuracy rate was significantly lower:                                                                                                                                                                                                                                                                                                                       on average,   



 close to 70 percent.                                                                                    



                                                                      However, the judges concluded that even if Dr. Iacono's figures were closer                                                                                                                                                                                                                                                                                     



 to the truth, the accuracy rate for the "control question" form of polygraph examination                                                                                                                                                                                                                                                                                                          



was still in line with the accuracy rates of other commonly admitted forms of scientific                                                                                                                                                                                                                                                                                                                            



 evidence - evidence such as fingerprint analysis, handwriting analysis, and eyewitness                                                                                                                                                                                                                                                                                                                   



                                                         4  

 testimony.     



                                                                      Moreover,  both  Dr.  Raskin  and  Dr.  Iacono  agreed  that,  to  the  extent  

                                                                                                                                                                                                                                                                                                                                                                                                                                 



 "control question" polygraph examinations yield inaccurate results, the inaccurate result  

                                                                                                                                                                                                                                                                                                                                                                                                                                      



was more likely to be a false positive than a false negative.  That is, a "control question"  

                                                                                                                                                                                                                                                                                                                                                                                                                 



polygraph examination is more likely to falsely indicate that a truthful person is being  

                                                                                                                                                                                                                                                                                                                                                                                                                                      



 deceptive, rather than falsely indicating that a deceptive person is being truthful.  Thus,  

                                                                                                                                                                                                                                                                                                                                                                                                                                 



                  4                 The court cited one study establishing that fingerprint evidence was 100% accurate,                                                                                                                                                                                                                                                                                               



polygraph   testing   95%   accurate,   handwriting   analysis   94%   accurate,   and   eyewitness  

 testimony 64% accurate.                                                                                                     See  Jan Widacki & Frank Horvath,                                                                                                                                         An Experimental Investigation                                                            

 of the Relative Validity and Utility of the Polygraph Technique and Three Other Common                                                                                                                                                                                                                                                                                                                               

Methods of Criminal Identification                                                                                                                                              , 23 J. Forensic Sciences 596, 596-600 (1978).                                                                                                                                                                                         See also   

  United States                                                      v.Scheffer                                           ,523 U.S. 303, 334 n. 24 (1998) (Stevens, J., dissenting) (discussing                                                                                                                                                                                                             

 this   study).     The   superior   court   acknowledged,   however,   that   Dr.   Iacono   had estimated   

polygraph accuracy rates to be considerably lower, 51-98%, with an average of 70%.                                                                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                   -   11 -                                                                                                                                                                                                                 2481
  


----------------------- Page 12-----------------------

  a polygraph examination was more likely to falsely inculpate an innocent person than to                                                                                                                                                                                                                                                                                                                                                                                     



  falsely exculpate a guilty person.                                                                                                                                                 



                                                                          As to whether there are recognized standards and protocols to ensure an                                                                                                                                                                                                                                                                                                                          



  acceptable   level of                                                                                      uniformity   in   the   administration   of   polygraph   examinations,   the  



judges   noted   that   there   are   published   protocols   and   training   criteria   for   polygraph  



  examiners, including those used by the                                                                                                                                                                                  FBI, the National Security Council, and other                                                                                                                                                                                    



  agencies.    (The judges also found that Dr. Raskin had followed established protocols                                                                                                                                                                                                                                                                                                                                              



 when he administered his polygraph examination to Alexander.)                                                                                                                                                                                                                                                                                                



                                                                           In   their   decision,   the   judges   discussed   the   problem   of   the   "friendly  



  examiner" -                                                             i.e., the recognized problem that a person's physiological responses during                                                                                                                                                                                                                                                                                                   



 the   test   can   be   different,   or   can   be   interpreted   differently,   if   the   examination   is  



  administered by an expert who has been retained by the person being tested.                                                                                                                                                                                                                                                                                                                                                        



                                                                           The judges concluded that this problem remained unresolved with respect                                                                                                                                                                                                                                                                                                



 to Griffith, but the judges mistakenly concluded that there was no "friendly examiner"                                                                                                                                                                                                                                                                                                                                          



 problem   with   respect   to   Alexander   -   because   the   judges   believed   (falsely)   that  



 Alexander had already submitted to a polygraph examination administered by an expert                                                                                                                                                                                                                                                                                                                                                                  



  employed by the State.                                                                                                         In fact, as we already explained, Alexander had taken another                                                                                                                                                                                                                                                  



 polygraph   examination   that   was   administered   by   someone   who   often   worked   as   a  



  contractor for the Department of Corrections - but, in Alexander's case, this polygraph                                                                                                                                                                                                                                                                                                                                          



  examiner was hired by Alexander's attorney.                                                                                                                                                                                                           



                                                                           On the issue of counter-measures -                                                                                                                                                                  i.e., strategies that a person can use to                                                                                                                                                       



 mask their                                                   physiological responses during the test - the judges acknowledged that                                                                                                                                                                                                                                                                                                                               



 Dr. Raskin's own study showed that the accuracy rate of a polygraph examination can                                                                                                                                                                                                                                                                                                                                                                                 



 be reduced by as much as 50 percent if the person taking the test is trained in the use of                                                                                                                                                                                                                                                                                                                                                                                   



  counter-measures.     The   judges   also   noted   the   State's   claim   that   a   person   can   be  



                                                                                                                                                                                                                              -   12 -                                                                                                                                                                                                                           2481
  


----------------------- Page 13-----------------------

effectively trained in the use of counter-measures in less than half an hour, based on                                                                                                                                                                                                                



information that is readily available on the Internet.                                                                                                                                



                                               However, the judges concluded that the efficacy of counter-measures must                                                                                                                                                                         



be overblown,                                        given that so many state and federal government agencies (including                                                                                                                                                     



agencies of the State                                                         of   Alaska) spend substantial amounts of money each year on                                                                                                                                                            



                                                                5  

polygraph testing.                                                   



                                               In any event, the two judges ultimately concluded that the potential use of  

                                                                                                                                                                                                                                                                                                         



counter-measures  went  to the weight of polygraph results, not to the admissibility of  

                                                                                                                                                                                                                                                                                                        



those results under the Daubert standard.  The judges also concluded that if the issue of  

                                                                                                                                                                                                                                                                                                         



counter-measures was raised in a particular case, the trial judge could address this issue  

                                                                                                                                                                                                                                                                                                



by evaluating the evidence under Alaska Evidence Rule 403 - to see if the possibility  

                                                                                                                                                                                                                                                                             



            5           In their decision, the judges mentioned a letter which stated that, as                                                                                                                                                                      of   1997, the   



federal government employed 500 polygraph examiners and spent approximately $25 million                                                                                                                                                                                                 

a year on examiner salaries.                                                                    See also                         Kenneth S. Broun                                              et alia                 ,  McCormick On Evidence                                  

(7th ed. 2013),  206, Vol. 1, p. 1205 & n. 34 (noting the "explosive growth of polygraphy                                                                                                                                                                                  

in American government and business").                                                                                                  



                        Although government reliance                                                                              on   polygraph examinations may be widespread, we                                                                                                                    

note that the federal government has criminally prosecuted people for teaching other people                                                                                                                                                                                               

how to use polygraph counter-measures.                                                                                                    See  "Indiana man accused of teaching people to                                                                                                                

beat lie detector tests faces prison time", an article that appeared in the Washington Post on                                                                                                                                                                                                          

August 31, 2013.                                           This article can be found at:                                                         

            http://www.washingtonpost.com/local/indiana-man-accused-of-teaching-people-to-be  

            at-lie-detector-tests-faces-prison-time/2013/08/31/a7cbe74a-08ea-11e3-9941-6711ed6  

            62e71_story.html  



                        The  fact  that  the  federal  government  has  actively pursued criminal  prosecutions  

                                                                                                                                                                                                                                                                     

against people who offer to train others in these counter-measures suggests that the federal  

                                                                                                                                                                                                                                                                                         

government knows - or at least believes - that the available polygraph counter-measures  

                                                                                                                                                                                                                                                    

are effective.  

                                               



                                                                                                                                              -  13 -                                                                                                                                           2481
  

                                                                                                                                                               


----------------------- Page 14-----------------------

 of counter-measures outweighed the purported probative value of the polygraph evidence                                                                                                                                                                                                                                                                                                                                                                                                



under the facts of that specific case.                                                                                                                                                                                      



                                                                                 Regarding the remaining                                                                                                                           Daubert  factor - whether polygraph examination                                                                                                                                                                                 



has   attained   general acceptance                                                                                                                                                                    in   the   relevant   scientific   community   -   the   judges  



 concluded   that   Alexander   had   failed   to   establish   this   factor.     However,   given   their  



 findings on the other                                                                                                          Daubert   factors,   the   judges concluded that this lack of general                                                                                                                                                                                                                                                                                         



 scientific acceptance was not fatal to the admission of polygraph evidence.                                                                                                                                                                                                                                                                                                                                                                                         



                                                                                 In sum, the two judges ruled that the "control question" form of polygraph                                                                                                                                                                                                                                                                                                                    



 examination satisfied the threshold requirement for admissibility under the                                                                                                                                                                                                                                                                                                                                                                              Daubert  test.  



That is, the judges ruled (1) that this evidence is based on scientifically valid reasoning                                                                                                                                                                                                                                                                                                                                                                                      



 and methodology, and (2) that this reasoning and methodology could properly be applied                                                                                                                                                                                                                                                                                                                                                                                                         



to the facts of Alexander's case.                                                                                                                                                                   



                                                                                 However, as we have already explained, the judges placed two restrictions                                                                                                                                                                                                                                                                                                                



 on a defendant's ability to introduce this evidence:                                                                                                                                                                                                                                                                         the defendant must submit to an                                                                                                                                                             



independent polygraph examination administered by an expert chosen by the State, and                                                                                                                                                                                                                                                                                                                                                                                                                                 



the defendant must take the stand at trial and submit to cross-examination.                                                                                                                                                                                                                                                                                                                                                                                         



                                          The standard of review that applies to our assessment of the                                                                                                                                                                                                                                                                                                                               superior  

                                         court's decision   



                                                                                 Under the former                                                                                         Frye  test, when an appellate court answered the question                                                                                                                                                                                                                                      



 of whether a particular type of scientific analysis or methodology had gained general                                                                                                                                                                                                                                                                                                                                                                                                        



 acceptance within the relevant scientific community, the appellate court's answer was                                                                                                                                                                                                                                                                                                                                                                                                                            



treated as authoritative until a later litigant succeeded in demonstrating that the scientific                                                                                                                                                                                                                                                                                                                                                                                        



 community's attitude toward the evidence had changed.                                                                                                                                                                                                                                    



                                                                                  See   Van Meter v. State                                                                                                                    , 743 P.2d 385, 387-88 (Alaska App. 1987), where                                                                                                                                                                                                                        



this   Court   upheld   a   trial   judge's   refusal   to   hold   an   evidentiary   hearing   on   the  



                                                                                                                                                                                                                                                     -   14 -                                                                                                                                                                                                                                                    2481
  


----------------------- Page 15-----------------------

 admissibility of polygraph evidence:                                                                             we reached this conclusion because the defendant                                                                              



 made no offer of proof that the scientific community's attitude toward polygraph testing                                                                                                                                                                  



 had changed since the Alaska Supreme Court decided                                                                                                                  Pulakis.   See also Nelson v. Jones                                                                     ,  



 781 P.2d 964,                                   968 & n.                         5 (Alaska 1989) (declaring that "legal authority from other                                                                                                                 



jurisdictions"   was   a   proper   source   of   information   for   assessing the                                                                                                                                          admissibility   of  



 scientific evidence under the                                                            Frye  test).   



                                           But under                       Daubert, every trial judge's decision regarding the admissibility                                                                                             



 of a particular                                form   of scientific evidence is reviewed for abuse of discretion.                                                                                                                                               See  



 General Electric Co. v. Joiner                                                                , 522 U.S. 136, 146; 118 S.Ct. 512, 519; 139 L.Ed.2d 508                                                                                                             



 (1997).     The   Alaska   Supreme   Court   has   likewise   declared   that,   under   Alaska   law,  



 appellate courts must employ the "abuse of discretion" standard of review when they                                                                                                                                                                             



 review trial judges' rulings on the admissibility of scientific evidence.                                                                                                                                                 Coon, 974 P.2d                       



 at 398-99.                        



                                          A "standard of review" is the legal rule that specifies how much deference                                                                                                                             



 an               appellate                                court                   must                    give                 to             a            decision                              made                        by               a            lower  

                    6   And the "abuse of discretion" standard of review is quite deferential:  under this  

 court.                                                                                                                                                                                                                                                             



 standard, an appellate court is authorized to reverse a trial judge's decision only if the  

                                                                                                                                                                                                                                                                     



 trial   judge's                                reasons                        for             reaching   that                                    decision                       "are                clearly                    untenable                           and  

                                                                                                                                                                                                                                                                

 unreasonable". 7  

                                                            



                                          Although we are bound by the supreme court's decision on this point of  

                                                                                                                                                                                                                                                                        



 law, the facts of the present case illustrate the problems that can be created by applying  

                                                                                                                                                                                                                                                     



 an "abuse of discretion" standard of review to rulings on the admissibility of scientific  

                                                                                                                                                                                                                                                   



 evidence.  

                                



           6         Booth v. State                             , 251 P.3d 369, 372 (Alaska App. 2011).                                                                                   



           7          Sylvia L. v. Office ofChildren's Services,343 P.3d425,430-31 (Alaska2015);Bailey  

                                                                                                                                                                                                                                                             

 v. Lenord , 625 P.2d 849, 854 (Alaska 1981).  

                                                                                                                                        



                                                                                                                               -  15 -                                                                                                                           2481
  

                                                                                                                                              


----------------------- Page 16-----------------------

                                                                            As we explained earlier, the present case originally involved two defendants                                                                                                                                                                                                                                                                                  



  (Alexander and Griffith),                                                                                                                      and the superior court decision that we are reviewing was                                                                                                                                                                                                                                                                     



  issued jointly by two judges - two judges who held a combined evidentiary hearing,                                                                                                                                                                                                                                                                                                                                                                    



  and   who   heard   exactly   the   same   testimony   concerning   the   scientific   validity   and  



 reliability of "control question" polygraph examinations.                                                                                                                                                                                                                                                                 



                                                                            As it happened, these two judges reached the same conclusion regarding                                                                                                                                                                                                                                                                                               



 the scientific validity of polygraph examinations.                                                                                                                                                                                                                                  But,  as illustrated by the competing                                                                                                                 



 testimony offered by Dr.                                                                                                                          Raskin and                                                            Dr.   Iacono,   this is clearly a matter on which                                                                                                                                                                                        



 reasonable people can differ - and on which they                                                                                                                                                                                                                                            do  differ.    



                                                                             Thus,   the   two   judges   in   this   case   might   easily   have   reached   differing  



  conclusions regarding the scientific                                                                                                                                                                     validity of polygraph examinations,                                                                                                                                                                                even though   



 they heard exactly the same evidence.                                                                                                                                                                                           And if the two judges had reached different                                                                                                                                                                        



  conclusions, we apparently would have been required to affirm both of the conflicting                                                                                                                                                                                                                                                                                                                                                    



  decisions under the "abuse of discretion" standard of review.                                                                                                                                                                                                                                                                                          



                                                                             That is, we would have been forced to tell Alexander and Griffith that one                                                                                                                                                                                                                                                                                                                          



  of   them   would   be   allowed   to   introduce   the   results   of   Dr.   Raskin's   polygraph  



  examination, while the other one would be prohibited from doing so - and that the only                                                                                                                                                                                                                                                                                                                                                                                     



 reason their cases were being treated differently was the identity and viewpoint of the                                                                                                                                                                                                                                                                                                                                                                                            



judge making the decision.                                                                                                                               



                                                                             This result seems illogical and unfair - and in her partial dissent in                                                                                                                                                                                                                                                                                                               Coon,  



 Justice Dana Fabe advocated another approach to this problem.                                                                                                                                                                                                                                                                                                         



                                                                            As Justice Fabe pointed out, there are two prongs to the                                                                                                                                                                                                                                                           Daubert  test.   The  



  first prong is "whether the reasoning or methodology underlying the [proposed expert]                                                                                                                                                                                                                                                                                                                                                                      



 testimony is scientifically valid", while the second prong is "whether that reasoning or                                                                                                                                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                    -   16 -                                                                                                                                                                                                                                 2481
  


----------------------- Page 17-----------------------

methodology properly can be applied to the facts in issue [in the particular case]."                                                       Coon,  



                              8  

 974 P.2d at 403.                 



                       Justice Fabe proposed that different standards of review should apply to  

                                                                                                                                                   



these two prongs:  an appellate court would not defer to a trial court's decision regarding  

                                                                                                                                      



the scientific validity of the principles and methodology involved (i.e., the appellate court  

                                                                                                                                             



would  decide  this  matter  de  novo),  but  the  appellate  court  would  defer  (using an  

                                                                                                                                                 



"abuse of discretion" standard) to the trial court's decision as to whether the proposed  

                                                                                                                                      



 scientific theory or technique could properly be applied to the facts of the particular case.  

                                                                                                                                                       



Ibid.  



                       As Justice Fabe noted, "[t]he determination of whether a general scientific  

                                                                                                                                       



proposition or process is reliable  should not vary from case to case or from judge to  

                                                                                                                                                  



judge."  Ibid.  The Coon majority apparently agreed with this proposition - because the  

                                                                                                                                                 



majority  opinion  also  declared  that  "[t]he  abstract  validity  of  a  scientific  technique  

                                                                                                                                     



                                                                                                            9  

 should not vary from court to court".  Coon, 974 P.2d at 399.  

                                                                                                                



                       But the Coon majority nevertheless rejected the notion that we should have  

                                                                                                                                              



one uniform rule of decision regarding the validity of particular scientific theories or  

                                                                                                                                                  



principles.           The  majority  offered  two  rationales  for  this  conclusion  -  i.e.,  for  its  

                                                                                                                                                 



 endorsement of allowing inconsistent trial court rulings on the same issue.  

                                                                                                                                 



                       The majority's first rationale was that the level of advocacy will vary from  

                                                                                                                                              



case to case:  

                         



                         

                        [While the] abstract validity of a scientific technique should  

                                                                                                                    

                       not vary from court to court, ... [the manner in which this]  

                                                                                                                        

                       validity is communicated will often vary from presentation to  

                                                                                                                            

                       presentation.              Some  experts  are  more  skillful  and  more  

                                                                                                                      



      8     Quoting  Daubert , 509 U.S. at 593-94, 113 S.Ct. at 2796-97.                                         



      9  

                                                                                                               

            Quoting State v. Alberico, 861 P.2d 192, 205 (N.M. 1993).  



                                                                               

                                                                      -  17 -                                                                2481
  


----------------------- Page 18-----------------------

                        well-informed than others[,] just as some lawyers are more                                         

                        skillful and more well-prepared than others.                                    



Coon, 974 P.2d at 399.                     10  



                        The majority's observation is undoubtedly true:   expert witnesses have  

                                                                                                                                                   



varying degrees of knowledge, insight, and articulateness - just like the lawyers who  

                                                                                                                                                    



offer the experts' testimony, or the lawyers who cross-examine them.  But one of the  

                                                                                                                                                      



main goals of our judicial system is to have the law apply equally to all people.  And the  

                                                                                                                                                       



point of having rules is to try to ensure that the outcome of litigation does not wholly  

                                                                                                                                                



turn on which side has the better expert witness or the better lawyer.  

                                                                                                                            



                        The majority's second rationale for endorsinginconsistent trialcourt rulings  

                                                                                                                                                 



is that "the state of science is not constant; it progresses daily." Ibid.  But this is an over- 

                                                                                                                                                  



statement.  While it may be true that scientific knowledge "progresses daily", the pace  

                                                                                                                                                    



of change is far less rapid when it comes to the validity of underlying scientific theories  

                                                                                                                                              



and methodology.  

                                  



                        Moreover,  appellate courts have always acknowledged the potential for  

                                                                                                                                                      



fundamental change in scientific understanding,  even when those courts were issuing  

                                                                                                                                                



rulings of general applicability under the Frye  test.                                           For instance,  when  the  Alaska  

                                                                                                                                               



Supreme Court ruled in Pulakis that polygraph evidence was not admissible in Alaska,  

                                                                                                                                               



the  supreme  court  was  careful to  emphasize  that  it  was  not  saying that  polygraph  

                                                                                                                                         



evidence could  never  be admitted in Alaska,  but only that "[j]udicial acceptance of  

                                                                                                                                                        



polygraph tests must await the results of more persuasive experimental proof of [their]  

                                                                                                                                                 

reliability." 11  

                         



      10    Quoting  State v. Alberico                  , 861 P.2d 192, 205 (N.M. 1993).                           



      11  

                                                 

            Pulakis , 476 P.2d at 479.  



                                                                                  

                                                                        -  18 -                                                                    2481
  


----------------------- Page 19-----------------------

                                                                         As things stand now - that is, under the "abuse of discretion" standard of                                                                                                                                                                                                                                                                                                                  



 review   mandated   by   Coon   - our decision in the present case will not resolve the                                                                                                                                                                                                                                                                                                                                                                       



  question of whether polygraph testing has sufficient scientific validity to be admissible                                                                                                                                                                                                                                                                                                                              



 in the courts of Alaska.                                                                                                          Even though we are affirming the                                                                                                                                                                    superior court's ruling in                                                                                                     



 Alexander's case, our decision only stands for one narrow proposition:                                                                                                                                                                                                                                                                                                                           that given the                                                



  evidence presented at the                                                                                                                     pre-trial hearing in this particular case,                                                                                                                                                                                      it was not clearly                                          



 unreasonable for the judge to conclude that polygraph testing had sufficient scientific                                                                                                                                                                                                                                                                                                                                         



 validity to satisfy the                                                                                         Daubert  test.    



                                                                         Our decision does not bind judges who face this issue in future cases -                                                                                                                                                                                                                                                                                                                   



  even if those judges are presented with exactly the same evidence that was presented in                                                                                                                                                                                                                                                                                                                                                                              



 this case.                                         Indeed, if those judges were to reach the opposite conclusion (                                                                                                                                                                                                                                                                     i.e., if they were                                             



 to decide that polygraph evidence does not satisfy the                                                                                                                                                                                                                                    Daubert  test), we would probably                                                                                                      



 be required to affirm their decisions too.                                                                                                                                                                                



                                                                         This essentially means that the scientific validity of polygraph evidence will                                                                                                                                                                                                                                                                                                        



 never be judicially resolved at an appellate level:                                                                                                                                                                                                                      it will remain an open question, and                                                                                                                                              



 it will need to be litigated anew each time the issue is raised.                                                                                                                                                                                                                                                                   



                                                                          (See  Goeb v. Tharaldson                                                                                                             , 615 N.W.2d 800, 814 (Minn. 2000), where the                                                                                                                                                                                                     



 Minnesota Supreme Court points to this problem as one of the principal defects in the                                                                                                                                                                                                                                                                                                                                                                          



 Daubert  rule.)   



                                                                         For all of these reasons, we urge the Alaska Supreme Court to revisit this                                                                                                                                                                                                                                                                                                           



 issue - and to adopt the approach advocated in Justice Fabe's partial dissent in                                                                                                                                                                                                                                                                                                                                                               Coon.   



                                       Why we affirm the superior court's rulings                                                                                                                                                     

   



                                                                         Under the Daubert  test, when a litigant offers scientific evidence, a trial  

                                                                                                                                                                                                                                                                                                                                                                                                                                                     



judge must answer two questions: (1) whether the reasoning or methodology underlying  

                                                                                                                                                                                                                                                                                                                                                                                                                         



                                                                                                                                                                                                                          -   19 -                                                                                                                                                                                                                        2481
  


----------------------- Page 20-----------------------

the   proposed   evidence   is   scientifically   valid,   and   (2)   whether   this   reasoning   or  



methodology can properly be applied to the issues raised in the particular case.                                                                                                                                                                                                                                                                                                                                                                                                                                 



                                                                                     In the present case, the superior court had to answer these two questions                                                                                                                                                                                                                                                                                                                                      



with specific regard to the "control question" form of polygraph examinations. The court                                                                                                                                                                                                                                                                                                                                                                                                                                        



 answered   the   first   question   "yes"   -   finding   that   the   reasoning   or   methodology  



underlying the                                                                                "control question"                                                                                                          form   of   polygraph   examination   was   scientifically  



valid.   The court answered the second question with a conditional "yes" - finding that                                                                                                                                                                                                                                                                                                                                                                                                                                                 



the reasoning or methodology of the "control question" form of polygraph examination                                                                                                                                                                                                                                                                                                                                                                                               



 could properly be applied to the factual issues raised in Alexander's case                                                                                                                                                                                                                                                                                                                                                                                  if  the defendant   



 submitted to a State-administered polygraph examination before trial, and also submitted                                                                                                                                                                                                                                                                                                                                                                                                          



to cross-examination at trial.                                                                                                                                                       



                                                                                      The scientific validity of the reasoning or methodology underlying                                                                                                                                                                                                                                                                                          

                                                                                     the "control question" form of polygraph examination                                                                                                                                                                                                                      



                                                                                     With regard to the scientific validity                                                                                                                                                                                                      of   the "control question" form of                                                                                                                                                                             



polygraph examination, we have already described the evidence presented to the superior                                                                                                                                                                                                                                                                                                                                                                                                                       



 court.     There   is   little   dispute   that   most   people   will   normally   exhibit   physiological  



reactions when they say things that they believe to be false.                                                                                                                                                                                                                                                                                                                             There is also little dispute                                                                                            



that modern polygraph machines are capable of detecting and accurately measuring some                                                                                                                                                                                                                                                                                                                                                                                                                                          



 of   these   physiological responses.                                                                                                                                                                                    The   real issue                                                                                         is   whether   the   "control question"   



technique is a valid method of eliciting physiological responses that can be meaningfully                                                                                                                                                                                                                                                                                                                                                                                      



 compared and analyzed to distinguish (1) people who believe they are telling the truth                                                                                                                                                                                                                                                                                                                                                                                                                                          



 from (2) people who believe they are lying.                                                                                                                                                                                                                                      



                                                                                     (To clarify, a person's physiological responses do not show whether the                                                                                                                                                                                                                                                                                                                                                                                



person is giving answers that are                                                                                                                                                                                 actually  true, or that are                                                                                                                                      actually   false.    Rather, the   



theory behind polygraph examinations is that the person's physiological responses reveal                                                                                                                                                                                                                                                                                                                                                                                                                                  



                                                                                                                                                                                                                                                               -  20 -                                                                                                                                                                                                                                                               2481
  


----------------------- Page 21-----------------------

the person's state of mind - the person's                                                                                                                                                                                              belief  as to whether their answers are true or                                                                                                                                                                                                 



false.)  



                                                                           The evidence was conflicting as to whether the physiological responses                                                                                                                                                                                                                                                                                           



elicited by a "control question" polygraph examination can be meaningfully compared                                                                                                                                                                                                                                                                                                                                                        



and   analyzed   to   distinguish   (1)   people   who   believe   they   are   telling the                                                                                                                                                                                                                                                                                                                                          truth   from  



(2)  people who believe they are lying.                                                                                                                                                                         As we have explained, Dr. Raskin and Dr. Iacono                                                                                                                                                                                              



offered competing assessments of the accuracy of the "control question" technique.                                                                                                                                                                                                                                                                                                                                                                                            Dr.  



Raskin testified that the accuracy rate could be as high as 98 percent, while Dr. Iacono                                                                                                                                                                                                                                                                                                                                                                     



testified that the accuracy rate could be as low as 51 percent (                                                                                                                                                                                                                                                                          i.e., no more accurate than                                                                                                      



chance).  



                                                                           Thus, if we are scrupulous in applying the "abuse of discretion" standard                                                                                                                                                                                                                                                                                               



of review to the superior court's resolution of this issue, it is obvious that we would have                                                                                                                                                                                                                                                                                                                                                                             



to affirm the superior court's answer regardless of whether that answer was "yes" or                                                                                                                                                                                                                                                                                                                                                                                                   



"no".   Reasonable judges could differ as to whether the evidence in this case established                                                                                                                                                                                                                                                                                                                                             



the first prong of the                                                                                           Daubert  test.   That being so, we hold that the superior court did not                                                                                                                                                                                                                                                                                         



abuse its discretion when, in the present case, it ruled that the first prongwas                                                                                                                                                                                                                                                                                                                                                  established.   



(Nor would the court have abused its discretion if it had ruled the opposite.)                                                                                                                                                                                                                                                                                                                                                           



                                                                             Whether the "control question" form of polygraph examination can                                                                                                                                                                                                                                                                                              

                                                                         properly be applied to the resolution of the factual issues in this                                                                                                                                                                                                                                                                                            

                                                                           case  



                                                                           This   brings   us   to   the   second   prong   of   Daubert   -   whether   "control  



question" polygraph evidence can properly be applied to the resolution of the issues that                                                                                                                                                                                                                                                                                                                                                                                     



the jury will have to decide at Alexander's trial.                                                                                                                                                                                                                        



                                                                                                                                                                                                                                  -  21 -                                                                                                                                                                                                                                  2481
  


----------------------- Page 22-----------------------

                                                                 This second question is significantly more complex than the first.                                                                                                                                                                                                                                                  The fact   



that particular scientific evidence passes the                                                                                                                                                                   Daubert  test for scientific validity does not                                                                                                                                                 



mean that the evidence can or should be admitted in judicial proceedings.                                                                                                                                                                                                                                                                                         



                                                                 Here, the superior court was required to consider not only the reliability and                                                                                                                                                                                                                                                                



 accuracy rates of "control question" polygraph results, but also the potential that jurors                                                                                                                                                                                                                                                                                                        



would be confused by the polygraph evidence, or would misunderstand its significance,                                                                                                                                                                                                                                                                                



or would use the polygraph evidence for improper purposes, or would otherwise be led                                                                                                                                                                                                                                                                                                                             



 astray by this evidence.                                                                                          That is, the judge was required not only to assess the scientific                                                                                                                                                                                                



validity of this evidence, but also to assess the evidence under Evidence Rule 403 and                                                                                                                                                                                                                                                                                                                       



Evidence Rule 705(c).                                                                                         



                                                                 Indeed, the great majority of appellate courts who employ the                                                                                                                                                                                                                                      Daubert  test  



 for scientific evidence have ruled that, despite its arguable scientific validity, polygraph                                                                                                                                                                                                                                                                                  



 evidence   is   inherently   so   prejudicial to                                                                                                                                                  the   fairness   of   a   criminal trial that                                                                                                                                      it   is   not  



                                                                                                                                                                                                                                                                                                                                                                                                                                 12  

 admissible,   or   that it is admissible only upon the express stipulation of the parties.                                                                                                                                                                                                                                                                                                                                          



These appellate courts have essentially ruled that,  given the difficulties presented by  

                                                                                                                                                                                                                                                                                                                                                                                                                  



polygraph  evidence, it is always an abuse of discretion for a trial judge to admit this  

                                                                                                                                                                                                                                                                                                                                                                                                             



 evidence (or, in some jurisdictions, to admit this evidence without the express stipulation  

                                                                                                                                                                                                                                                                                                                                                                              



of the parties).  

                                                                         



                 12              In general, see the appellate decisions listed in                                                                                                                                                                       State v. A.O.                                                , 965 A.2d 152, 161-62                                                  



 (N.J.   2009).     In   A.O. ,   the   New   Jersey   Supreme   Court   noted   that   twenty-eight   states  

completely ban polygraph evidence, while another eighteen states allow the admission of                                                                                                                                                                                                                                                                                                                              

polygraph evidence only if both parties stipulate to its use.                                                                                                                                                                                                       See also State v. Porter                                                                                       , 698 A.2d              

739, 758-59 (Conn. 1997) (continuing to ban polygraph evidence even after Connecticut's                                                                                                                                                                                                                                                                         

adoption of the                                                      Daubert test); Fagan v.State                                                                                                        , 894 So.2d 576, 580 (Miss. 2004) (holding that,                                                                                                                                                    

even under the                                                      Daubert  test, polygraph results continue to be inadmissible);                                                                                                                                                                                                                              United States   

v.  Prince-Oyibo , 320 F.3d 494, 501 (4th Cir. 2003) (same).                                                                                                                                                                                                                       



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----------------------- Page 23-----------------------

                                                                     We   also   note   that,   even   though   polygraph   evidence   might   satisfy   the  



Daubert   test   for   scientific   validity,   jurisdictions   may   nonetheless   enact   statutes   or  



 evidentiary rules that prohibit the use of this evidence.                                                                                                                                                                                                                              



                                                                     In  UnitedStates v. Scheffer                                                                                                         , 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413                                                                                                                                                                                 



 (1998),   the   United   States   Supreme   Court   upheld   a   military   rule   of   evidence   that  



 categorically   excluded   polygraph   evidence   in   court-martial proceedings.                                                                                                                                                                                                                                                                                                            The   Court  



 concluded that, given the current lack of consensus regarding the reliability of polygraph                                                                                                                                                                                                                                                                                                              



results, a categorical exclusion of polygraph evidence was a "rational and proportional                                                                                                                                                                                                                                                                                                     



 means of advancing the legitimate interest in barring unreliable evidence":                                                                                                                                                                                                                                                     



                                                                       

                                                                     Although the degree of reliability of polygraph evidence may                                                                                                                                                                                                                                 

                                                                      depend upon a variety of identifiable factors, there is simply                                                                                                                                                                                                                 

                                                                     no   way   to know in a particular case whether a polygraph                                                                                                                                                                                                    

                                                                      examiner's conclusion is accurate, because certain doubts and                                                                                                                                                                                                                                   

                                                                     uncertainties                                                              plague                                      even                               the                       best                           polygraph                                                     exams.  

                                                                     Individual    jurisdictions    therefore    may    reasonably    reach  

                                                                      differing   conclusions   as   to   whether   polygraph   evidence  

                                                                      should be admitted.                                                                                We cannot say, then, that presented with                                                                                                                                                 

                                                                      such widespread uncertainty, the President acted arbitrarily                                                                                                                                                                                                   

                                                                      or disproportionately in promulgating a                                                                                                                                                          per se                                   rule excluding   

                                                                      all polygraph evidence.                                            



Id. , 523 U.S. at 312, 118 S.Ct. at 1266.                                                                                                                                                            The Court further concluded that this categorical                                                                                                                                                



 exclusion of polygraph evidence did not abridge an accused's constitutional right                                                                                                                                                                                                                                                                                                                                                             to  



present a defense.                                                                             Id. , 523 U.S. at 315-17, 118 S.Ct. at 1267-69.                                                                                                                                                                                                       



                                                                     Because of the significant difficulties posed by                                                                                                                                                                                                          polygraph evidence,                                                                                          we  



have given serious consideration to the decisions from these other jurisdictions, and to                                                                                                                                                                                                                                                                                                                                                        



 the option of adopting a judicial rule of exclusion like the ones adopted in the majority                                                                                                                                                                                                                                                                                                                      



 of  Daubert  states - essentially, a rule declaring that the potential of polygraph evidence                                                                                                                                                                                                                                                                                                                  



 for creating unfair prejudice always outweighs its probative value.                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                -  23 -                                                                                                                                                                                                              2481
  


----------------------- Page 24-----------------------

                                                               We are nevertheless troubled by the possibility that, in some criminalcases,                                                                                                                                                                                                                                             



an   exculpatory   polygraph   result   might   be   the   only   realistic   way   for   a   defendant   to  



establish a reasonable doubt as to their guilt.                                                                                                                                                                   And (as we are about to explain), we are                                                                                                                                          



convinced that the particular solution adopted by the superior court in Alexander's case                                                                                                                                                                                                                                                                                                      



provides adequate safeguards against the dangers of unfair prejudice.                                                                                                                                                                                                            



                                                              Under the "abuse of discretion" standard of review, the question we must                                                                                                                                                                                                                                                       



answer is whether the superior court acted unreasonably when it concluded that the                                                                                                                                                                                                                                                                                                                 



dangers posed by polygraph evidence could                                                                                                                                                                           be   adequately negated by (1) requiring                                                                                                            



Alexander to submit to a State-administered polygraph                                                                                                                                                                                                              and (2) requiring Alexander to                                                                                                        



take the stand at his trial and submit to cross-examination.                                                                                                                                                                                                                   



                                                               The first condition imposed by the superior court - that Alexander should                                                                                                                                                                                                                                             



not be allowed to introduce the results of Dr. Raskin's polygraph examination unless                                                                                                                                                                                                                                                                                                 



Alexander submits to a polygraph examination administered by an expert of the State's                                                                                                                                                                                                                                                                                              



choosing - conforms to a familiar legal principle: Whenever a litigant (whether in civil                                                                                                                                                                                                                                                                                                        



or criminal litigation) seeks to offer an expert's evaluation of some aspect of the litigant's                                                                                                                                                                                                                                                                              



mental or physical condition, the court is empowered to require the litigant to submit to                                                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                        13  

a similar evaluation by an independent expert.                                                                                                                                                                                 



                                                               The second condition imposed by the superior court - that Alexander  

                                                                                                                                                                                                                                                                                                                                                                   



 should not be allowed to introduce the results of Dr. Raskin's polygraph examination  

                                                                                                                                                                                                                                                                                                                                                          



unless Alexander takes the stand at trial and submits to cross-examination - is more  

                                                                                                                                                                                                                                                                                                                                                                                        



unusual, but we conclude that it is nonetheless justifiable under Evidence Rules 403 and  

                                                                                                                                                                                                                                                                                                                                                                                                  



705(c).  

                                    



                13             See  Alaska Civil Rule 35 and Alaska Criminal Rule 16(c)(5); AS 12.47.070;                                                                                                                                                                                                                                                                               Lewis  



v.   State, 195 P.3d 622 (Alaska App. 2008),                                                                                                                                                             Nelson v. State                                                           , 874 P.2d 298 (Alaska App.                                                                                

 1994).   



                                                                                                                                                                                            -  24 -                                                                                                                                                                                           2481
  


----------------------- Page 25-----------------------

                                                                                       There   are   two aspects of polygraph evidence that present the greatest                                                                                                                                                                                                                                                                                                                                                      



potential for confusion and misuse.                                                                                                                                                                                                  The first of these is the danger that jurors may be                                                                                                                                                                                                                                                                 



 overly swayed by the evidence; they may view it as having a degree of scientific rigor                                                                                                                                                                                                                                                                                                                                                                                                                                                    



 and infallibility that it does not possess.                                                                                                                                                                                                              This danger can be effectively countered by the                                                                                                                                                                                                                                            



 first condition imposed by the superior court -                                                                                                                                                                                                                                                        i.e., having the opposing side present the                                                                                                                                                                                                   



results of its own independent polygraph examination                                                                                                                                                                                                                                                                                                               -   as well as by allowing the                                                                                                                                                  



 opposing side to present expert testimony that points out the potential weaknesses and                                                                                                                                                                                                                                                                                                                                                                                                                                                         



 deficiencies of polygraph examination procedures and techniques.                                                                                                                                                                                                                                                                                                                                                                      



                                                                                      But the second danger posed by polygraph evidence is harder to deal with.                                                                                                                                                                                                                                                                                                                                                                                                              



 This second danger arises from the fact that expert testimony describing the results of a                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



polygraph examination will invariably include a recitation of out-of-court statements                                                                                                                                                                                                                                                                                                                                                                                                               



made by the person who was examined.                                                                                                                                                                                                                               These out-of-court statements will ordinarily                                                                                                                                                                                           



 consist   of   the   person's   assertions   about   what   did   or   did   not   happen,   coupled   with  



 assertions about what the person knew (or did not know) at the time, or what the person                                                                                                                                                                                                                                                                                                                                                                                                                                      



 intended (or did not intend) to do.                                                                                                                                                                                       



                                                                                       Technically, perhaps, these out-of-court statements could be admissible for                                                                                                                                                                                                                                                                                                                                                                                      



 a non-hearsay purpose, since they serve as part of the basis for the polygraph examiner's                                                                                                                                                                                                                                                                                                                                                                                                         



 opinion.   See Alaska Evidence Rule 703, which states that expert witnesses are normally                                                                                                                                                                                                                                                                                                                                                                                                                        



 allowed to testify about the underlying data or information that provides the basis for                                                                                                                                                                                                                                                                                                                                                                                                                                                            



their opinion, even when that underlying information would not otherwise be admissible                                                                                                                                                                                                                                                                                                                                                                                                                 



-   i.e., even though it would not otherwise survive a hearsay objection or a challenge                                                                                                                                                                                                                                                                                                                                                                                                              

based on the witness's lack of personal knowledge.                                                                                                                                                                                                                                                                                         14  



                       14                  See also                                             Edward J. Imwinkelried and James R. McCall,                                                                                                                                                                                                                                         Issues Once Moot: The Other                                                                                                                       



Evidentiary Objectionsto the Admission of Exculpatory Polygraph Examinations                                                                                                                                                                                                                                                                                                                                                                                                                                      ,32 Wake              

 Forest LawRev. 1045, 1072-74(Winter 1997) (analyzing this issue under the nearly identical                                                                                                                                                                                                                                                                                                                                                                                                                           

provisions of Federal Evidence Rule 703).                                                                                                                                                                                                                          



                                                                                                                                                                                                                                                                   -  25 -                                                                                                                                                                                                                                                                    2481
  


----------------------- Page 26-----------------------

                                    But when a polygraph expert describes the statements that a defendant                                                                                                      



made   during   the   examination   (as   part   of   the   expert's   analysis   of   the   defendant's  



polygraph   results),   it   will   often   be   impossible   for   jurors   to   treat   the   defendant's  



statements as merely the factual data underlying the polygraph expert's opinion.                                                                                                                                    Instead,  



the jurors                   will use the defendant's statements for an improper hearsay purpose - as                                                                                                                               



substantive evidence of the                                              truth  of the factual matters asserted by the defendant in those                                                                                   



out-of-court statements.   



                                    We   addressed   this   general   problem   (expert   testimony   that   relies   on  



otherwise inadmissible evidence) in                                                              Borchgrevink v. State                                       , 239 P.3d 410, 419 (Alaska                             

                                                                                                                                                                                                            15      In those  

App. 2010), and                               Vann v. State                        , 229 P.3d 197, 208-09 (Alaska App. 2010).                                                                                              



cases, we noted that Alaska Evidence Rule 705(c) offers a way for trial judges to deal  

                                                                                                                                                                                                                              



with this issue - by giving judges the general authority  to  prohibit an expert witness  

                                                                                                                                                                                                                     



from testifying about the data or information that underlies their opinion whenever "the  

                                                                                                                                                                                                                               



danger that [this underlying data or information] will be used for an improper purpose  

                                                                                                                                                                                                                    



outweighs [its] value as support for the expert's opinion".  

                                                                                                                                                             



                                    But in the context of polygraph evidence, if a court were  to  exclude all  

                                                                                                                                                                                                                                    



evidence  of the examinee's out-of-court statements to the polygraph examiner,  this  

                                                                                                                                                                                                                                



would essentially destroy the evidentiary value of the polygraph examiner's testimony.  

                                                                                                                                                                                                             



                                    In Alexander's case, the superior court hit upon a different solution - one  

                                                                                                                                                                                                                                 



that allows Dr. Raskin to fully describe how he conducted the polygraph examination,  

                                                                                                                                                                                                       



and to fully explain his interpretation of the test results, while at the same time solving  

                                                                                                                                                                                                                       



          15      See also                Guerre-Chaley v. State                                        , 88 P.3d 539, 543-44 (Alaska App. 2004), and the                                                                         



Commentary to Alaska Evidence Rule 705(c), which identify the problem as the possibility                                                                                                                       

that the jury "might ... use the facts or data [recited by the expert witness] as the basis for an                                                                                                                                   

independent judgment on issues in [the] case".                                                                          



                                                                                                             -  26 -                                                                                                         2481
  


----------------------- Page 27-----------------------

the   problem   that   the   jury   will   likely   use   Alexander's   out-of-court   statements   for  



prohibited hearsay purposes.                                                                                                                            



                                                                      Even   though   the   jury   may   inevitably   view   Alexander's   out-of-court  



 statements to Dr. Raskin as substantive proof of the matters asserted in those statements,                                                                                                                                                                                                                                                                                                            



this will make little difference to the jury's consideration of the case if Alexander takes                                                                                                                                                                                                                                                                                                                                          



the stand at trial, makes those same assertions in front of the jury, and is cross-examined.                                                                                                                                                                                                                                                                                                                                                                       



The superior court therefore ruled that if Alexander wishes to present Dr.                                                                                                                                                                                                                                                                                                                                    Raskin's  



testimony, Alexander must take the stand and submit to cross-examination.                                                                                                                                                                                                                                                                                                                               



                                                                      We   conclude   that   the   superior   court's   resolution   of   this   matter   was   a  



reasonable exercise of the court's discretion under Evidence Rules 403 and 705(c), and                                                                                                                                                                                                                                                                                                                                                       



we therefore uphold this aspect of the superior court's ruling.                                                                                                                                                                                                                                                                



                                    Concluding matters   



                                                                      For the reasons                                                                      explained in this opinion, we conclude that the superior                                                                                                                                                                                                   



court did not abuse its discretion when it ruled that the polygraph evidence offered in this                                                                                                                                                                                                                                                                                                                                                  



case meets the threshold test for scientific evidence established in                                                                                                                                                                                                                                                                              Daubert .   We further   



conclude that the superior court did not abuse its discretion when it ruled that Alexander                                                                                                                                                                                                                                                                                                                  



can   introduce   the   exculpatory   polygraph   evidence   only   if   he   submits   to   a   State- 



 administered polygraph examination, and only if he takes the stand and submits to cross-                                                                                                                                                                                                                                                                                                                                        



 examination at his trial.                                                                                                 



                                                                      Although we are affirming the superior court's ruling in Alexander's case,                                                                                                                                                                                                                                                                                       



we wish to clarify that the superior court has the authority to re-examine its ruling if it                                                                                                                                                                                                                                                                                                                                                             



 sees fit.                               We say this because of the developments that occurred after the superior court                                                                                                                                                                                                                                                                                                               



issued its ruling.                                                                   As we have explained, while this appellate case was still in its briefing                                                                                                                                                                                                                                                           



 stage,   the   other   defendant   involved   in   this   litigation,   James   Griffith,   took   a   State- 



                                                                                                                                                                                                                  -  27 -                                                                                                                                                                                                                 2481
  


----------------------- Page 28-----------------------

administered polygraph examination.                                                                                                                                                                                                           Despite Dr. Raskin's testimony that there was a                                                                                                                                                                                                                                                                   



 90 percent chance (or better) that the exculpatory results of his examination of Griffith                                                                                                                                                                                                                                                                                                                                                                                                                              



were accurate, Griffith apparently failed the State-administered polygraph examination.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



Following this second polygraph exam,                                                                                                                                                                                                                            Griffith pleaded guilty,                                                                                                                                  and   he subsequently   



withdrew from this case.                                                                                                                                         



                                                                                      We express no opinion as to whether the superior court should re-assess its                                                                                                                                                                                                                                                                                                                                                                                         



decision in light of these developments, and we do not retain jurisdiction of this case.                                                                                                                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                                  -  28 -                                                                                                                                                                                                                                                                    2481
  

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