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State v. Sharpe (1/4/2019) sp-7326

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                    

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                      

          corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                    



STATE  OF  ALASKA,                                                 )  

                                                                   )                                       

                                                                         Supreme Court Nos. S-16191/16193/  

          Petitioner and Cross-Respondent,                         )  

                                  

                                                                                               

                                                                         16214/16449 (Consolidated)  

                                                                   )  

          v.                                                       )                                        

                                                                         Court of Appeals No. A-12452  

                                                                   )                                                             

                                                                         Superior Court No. 3PA-14-00877 CR  

JYZYK J. SHARPE,  

                                                                   )  

                                                                   )                         

                                                                         O P I N I O N  

          Respondent and Cross-Petitioner.  

                                                                   )  

                                                                                                             

                                                                   )     No. 7326 - January 4, 2019  

                                                                   )  

                                                                   )  

STATE OF ALASKA,  

                                                                   )                                          

                                                                         Court of Appeals Nos. A-11423/11433  

          Petitioner  and  Cross-Respondent,                       )                                                              

                                                                         Superior Court No. 3AN-09-11088 CR  

                                                                   )  

          v.                                                       )  

                                                                   )  

THOMAS HENRY ALEXANDER,  

                                                                   )  

                                                                   )  

          Respondent and Cross-Petitioner.  

                                                                   )  

                                                                   )  

                                                                   )  

                                                                   )  

JEFFERY K. HOLT,  

                                                                   )                                        

                                                                         Court of Appeals No. A-12219  

                                         Appellant,                )                                                              

                                                                         Superior Court No. 3HO-11-00515 CR  

                                                                   )  

          v.                                                       )  

                                                                   )  

STATE  OF  ALASKA,                                                 )  

                                                                   )  

                                         Appellee.                 )  

                                                                   )  


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

                                                                                                        

                    Petition for Hearing in File Nos. S-16191/16214 from the  

                                                   

                    Court of Appeals of the State of Alaska, on appeal from the  

                                                                                                              

                    Superior Court of the State of Alaska, Third Judicial District,  

                                                              

                    Palmer, Eric Smith, Judge.  



                                                                                                        

                    Petition for Hearing in File Nos. S-16193/16214 from the  

                                                                                      

                    Court of Appeals of the State of Alaska, on appeal from the  

                                                                                                 

                    Superior Court of the State of Alaska, Third Judicial District,  

                                                                           

                    Anchorage, Gregory Miller, Judge.  



                                                                                                          

                    Certified Question in File No. S-16449 from the Court of  

                                                                                                

                    Appeals of the State of Alaska, on appeal from the Superior  

                                                                                                  

                    Court of the State of Alaska, Third Judicial District, Homer,  

                                                    

                    Charles T. Huguelet, Judge.  



                                                                                               

                    Appearances:            Diane  L.  Wendlandt,  Assistant  Attorney  

                                                                                                     

                    General, Office of Criminal Appeals, Anchorage, and Jahna  

                                                                                                       

                    Lindemuth,  Attorney  General,  Juneau,  for  Petitioner  and  

                                                                                                   

                    Cross-Respondent and Appellee State  of  Alaska.   Sharon  

                                                                                                    

                    Barr, Assistant Public Defender, and Quinlan Steiner, Public  

                                                                                    

                    Defender, Anchorage, for Respondents andCross-Petitioners  

                                                                                                   

                    Sharpe  and  Alexander.               Brooke  Berens,  Assistant  Public  

                                                                                            

                    Advocate, and Richard Allen, Public Advocate, Anchorage,  

                                                                                                         

                    for  Appellant  Holt.              Gordon  L.  Vaughan,  Vaughan  &  

                                                                                                 

                    DeMuro, Colorado Springs, Colorado, and Gavin Kentch,  

                                                                                                  

                    Law Office of Gavin Kentch, LLC, Anchorage, for Amicus  

                                                               

                    Curiae American Polygraph Association.  



                                                                                                  

                    Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                        

                    and Carney, Justices.  



                                                 

                    STOWERS, Chief Justice.  



I.        INTRODUCTION  



                                                                                                                                  

                    In each of the three underlying criminal cases in this consolidated appeal,  



                                                                                                                            

the defendant sought to introduce expert testimony by a polygraph examiner that the  



                                                                                                                     

defendant was truthful when he made exculpatory statements relating to the charges  



                                                              -2-                                                        7326
  


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

against him during a polygraph examination conducted using the "comparison question                                                                



technique" (CQT).                    In two of the cases, the superior courts found that testimony based                                                



onaCQTpolygraph examination satisfied the requirements for scientific                                                                 evidence under   

                                                                                       1                                  2   In the third case, the  

                                                                                         and State v. Coon.                                                   

Daubert v. Merrell Dow Pharmaceuticals, Inc.                                                                    



superior court reached the opposite conclusion and found the evidence inadmissible. We  

                                                                                                                                                             



are now asked to revisit the appellate standard of review for rulings on the admissibility  

                                                                                                                                           



of scientific evidence and to determine the admissibility of CQT polygraph evidence.  

                                                                                                                                               



                         Weconcludethat appellatereviewof Daubert/Coon determinations should  

                                                                                                                                                       



be  conducted  under  a  hybrid  standard:                                         the  superior  court's  preliminary  factual  

                                                                                                                                                     



determinations are reviewed for clear error; based on those findings and the evidence  

                                                                                                                                                  



available, whether a particular scientific theory or technique has been shown to be  

                                                                                                                                                              



"scientifically valid" under Daubert and Coon is a question of law to which we apply our  

                                                                                                                                                             



independent judgment; and where proposed scientific evidence passes muster under that  

                                                                                                                                                            



standard,thesuperior court's case-specificdeterminationsand further evidentiaryrulings  

                                                                                                                                                       



are reviewed for abuse of discretion. Applying this standard here, we conclude that CQT  

                                                                                                                                                          



polygraph  evidence  has  not  been  shown  to  be  sufficiently  reliable  to  satisfy  the  

                                                                                                                                                            



Daubert/Coon standard.  

                                                



II.          BACKGROUND  



             A.          State v. Alexander  

                                         



                         Thomas Alexander was charged with multiple counts of sexual abuse of a  

                                                                                                                                                                 



minor.  Before trial, Alexander hired David Raskin, Ph.D., a polygraph examiner, to  

                                                                                                                                                               



administer a CQT polygraph examination.  Based on the polygraph results, Dr. Raskin  

                                                                                                                                                      



concluded that Alexander answered truthfully when he denied committing the acts with  

                                                                                                                                                           



             1           509  U.S.  579  (1993).  



             2           974  P.2d  386  (Alaska   1999).  



                                                                               -3-                                                                             7326  


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

which he was charged.  At Alexander's request, Superior Court Judge Gregory Miller  



held an evidentiary hearing to address the admissibility of the polygraph results. For the  

                                                                                                                                 



purpose of that hearing, Alexander's case was consolidated with an unrelated criminal  

                                                                                                                         



case pending before Superior Court Judge pro tem Daniel Schally because the two cases  

                                                                                                                              

involved similar polygraph testimony by thesamepolygraph examiner, Dr. Raskin.3  The  

                                                                                                                                 



two judges held a joint evidentiary hearing over the course of two days, spanning more  

                                                                                                                              



than ten hours of testimony.  Dr. Raskin testified for the defense in support of admitting  

                                                                                                                       



testimony  about  the  polygraph  results,  while  William  Iacono,  Ph.D.,  a  research  

                                                                                                                        



psychologist at the University of Minnesota, testified for the State in opposition.  Both  

                                                                                                                              



sides also submitted copious evidence in the form of declarations by the two experts,  

                                                                                                                          



scientific studies, treatises, etc.  

                                           



                     The  judges  issued  a  joint  order  for  both  cases  concluding  that  CQT  

                                                                                                                             



polygraph testing satisfies the Daubert/Coon requirements for scientific validity.  The  

                                                                                                                                



judges also concluded that the proposed testimony was not otherwise excluded by the  

                                                                                                                                 



Alaska Rules of Evidence relating to relevance, unfair prejudice, credibility bolstering,  

                                                                                                                     



expert testimony, or hearsay.  Their order held that the polygraph evidence would be  

                                                                                                                                  



admissible, but on the condition that the defendants first testified at their respective trials  

                                                                                                                              



and subjected themselves to cross-examination. Their ruling was also premised on each  

                                                                                                                               



defendant agreeing to sit for a second polygraph test administered by the State, which  

                                                                                                                            



the judges reasoned would mitigate concerns relating to possible bias by a "friendly"  

                                                                                                                      



           3  

                                                                                                                                 

                     The other defendant later pleaded guilty to the charged offense and is not  

                  

a party on appeal.  



                                                                -4-                                                              7326  


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

                          4                                                                                                                                                   5  

examiner  and add additional "guarantees of trustworthiness."                                                                  



                                                            

                   B.                State v. Sharpe  



                                                                                                                                                                                                                               

                                      In a case unrelated to Alexander's, Jyzyk Sharpe was charged with murder  



                                                                                                                                                                                                                                                      

and manslaughter in connection with the death of his girlfriend's two-year-old son.  



                                                                                                                                                                                                                                

Sharpe  also  hired  Dr.  Raskin  to  administer  a  polygraph  examination,  after  which  



                                                                                                                                                                                                                            

Dr. Raskin concluded  that Sharpe answered truthfully when he denied the charges  



                                     

against him.  



                                                                                                                                                                                                                                         

                                      Before trial, the State moved to preclude Sharpe's polygraph evidence and  



                                                                                                                                                                                                                     

Dr.  Raskin's  testimony.                                                   As  in  Alexander's  case,  the  State  argued  that  polygraph  



                                                                                                                                                                                                                         

examinations are not supported by valid science and that additional accuracy problems  



                                                                                                                                                                                                                                      

are presented in the case of a "friendly" polygraph examiner. For those reasons, the State  



                                                                                                                                                                                                                                     

argued that the polygraph testimony should be excluded under Alaska Evidence Rule  



                                                                                                                                                                                                                      

403 because its probative value would be outweighed by risks of unfair prejudice,  



                                                                                                                                                                                 

confusion, delay, and wasted time.  The State also argued that the proposed testimony  



                                                                                                                                                                                                                       

included inadmissible hearsay, that the testimony was inadmissible as expert testimony  



                                                                                                                                                                                                                                         

under Daubert/Coon and under the Alaska Rules of Evidence, and that the testimony was  



                   4                  The "friendly examiner" bias hypothesis was explored at the evidentiary                                                                                                      



hearing.   The hypothesis posits that when a polygraph examiner is hired by the defense                                                                                                                                      

and the test is administered to the defendant without giving the prosecution notice or an                                                                                                                                                    

opportunity to observe, various factors might work together to bias the examination in                                                                                                                                                       

ways favorable to the defendant "passing" the test.                                                                                             The validity of this hypothesis and                                                      

the   extent   to   which   a   "friendly"   examiner   might   affect   the   results   of   a   polygraph  

examination are disputed.                                                    See   PAUL   C. G                              IANNELLI   ET   AL., 1 S                                     CIENTIFIC   EVIDENCE  

  8.03[f], at 460 (5th ed. 2012).                                     



                   5                  It   appears   the   superior   court   was   under   the   belief   that   Alexander   had  



already been subjected to a polygraph examination administered by the Department of                                                                                                                                                          

Corrections.  It was later clarified that no such test had taken place, but Alexander did  

                                                                                                                                                

agree to sit for a State-administered exam.  The parties appear to have proceeded with     

the understanding that doing so was a prerequisite for admitting the polygraph evidence.  

                                                                                                                                                                                                                                                      



                                                                                                                      -5-                                                                                                            7326
  


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

inadmissible character evidence under Evidence Rule 608.                                                                                                                                                             



                                                    No new                           Daubert/Coon  hearing was held; instead, Superior Court Judge                                                                                                                                                                          



Eric Smith relied on the record and evidence presented in Alexander's                                                                                                                                                                                                                     Daubert/Coon  



 evidentiary hearing.                                                             The superior court held that the testimony would be admissible                                                                                                                                                         



pursuant to the same reasoning as in that case.                                                                                                                                      However, the court added the additional                                                                                



limiting instruction that the polygraph examiners - Dr. Raskin and the State's examiner                                                                                                                                                                                                                         



-   could testify only to whether Sharpe "believed what he was saying" and not to                                                                                                                                                                                                                                                         



whether he was "telling the truth"; the court reasoned that the latter would impermissibly                                                                                                                                                                                                  



imply that a polygraph test can reveal whether a statement is objectively accurate.                                                                                                                                                                                                                                                 



                                                     During a second polygraph test, administered for the State by former FBI                                                                                                                                                                                                       



agent Kendall Shull, Sharpe prematurely terminated the examination when Shull asked                                                                                                                                                                                                                                          

                                                                                                                                                           6  against the polygraph test. The State asked the  

 Sharpe if he was using countermeasures                                                                                                                                                                                                                                                                                                 



court to reconsider the admissibility of Dr. Raskin's testimony based on Sharpe's lack  

                                                                                                                                                                                                                                                                                 



of cooperation with the second examination. The court ultimately reaffirmed its original  

                                                                                                                                                                                                                                                                                                                      



decision, ruling that Dr. Raskin's testimony was admissible but that the State could  

                                                                                                                                                                                                                                                                                                                            



present evidence of Sharpe's lack of cooperation in rebuttal.  

                                                                                                                                                                                                            



                           C.                       State v. Holt  

                                                                                    



                                                     Jeffery Holt was charged with five counts of first-degree sexual assault.  

                                                                                                                                                                                                                                                                                                                      



Before trial, Holt hired Dr. Raskin to administer a polygraph examination, after which  

                                                                                                                                                                                                                                                                                                                            



                           6                         The term "countermeasures" refers to conscious efforts by an examinee to                                                                                                                                                                                                               



manipulate   the   results   of   a   polygraph  examination   by   altering   the   physiological  

indicators measured by the polygraph.                                                                                                                  Classes of countermeasures include using drugs                                                                                                                         

or alcohol to suppress responses to questions; physical techniques such as breath control,                                                                                                                                                                                                                            

biting one's tongue, or contracting various muscles to create artificial responses; or                                                                                                                                                                                                                                                    

mental techniques such as disassociation or counting backward to either suppress or                                                                                                                                                                                                                                                       

create responses.                                                    See generally                                             GIANNELLI ET AL                                                        .,  supra  note 4  8.03[d], at 458-59;                                                                       

NAT 'L  RESEARCH  COUNCIL, T                                                                                          HE  POLYGRAPH AND  LIE  DETECTION  4-5, 139-48 (2003),                                                                                                                                           

https://doi.org/10.17226/10420.  



                                                                                                                                                                     -6-                                                                                                                                                         7326
  


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

Dr. Raskin concluded Holt was being truthful when he denied the charges on the grounds                                                                                                                                                                                                                                                                                                   



that the alleged victim consented to sexual activity.                                                                                                                                                                                                  In lieu of a                                       Daubert/Coon  hearing,  



both parties suggested and the court agreed it                                                                                                                                                                                             could determine the admissibility of                                                                                                                                     



Dr. Raskin's testimony by reviewing the record of the hearing and subsequent order in                                                                                                                                                                                                                                                                                                                                 



Alexander's case.                                                                      The parties also submitted additional scholarly articles on polygraph                                                                                                                                                                                                                   



testing, an audio recording of Holt's polygraph examination, the raw data from that                                                                                                                                                                                                                                                                                                                         



examination, and the prosecutor's recorded interview of Dr. Raskin about the procedure                                                                                                                                                                                                                                                                                          



used in that examination.                                 



                                                                 Superior   Court   Judge   Charles   Huguelet   reviewed   the   evidence   from  



Alexander's case, heard oral argument, and then concluded that polygraph evidence is                                                                                                                                                                                                                                                                                     



not sufficiently reliable to be admitted.                                                                                                                                                      The court further concluded that Dr. Raskin's                                                                                                                                         



testimony   would   in   any   case   be   inadmissible   under   the   evidence   rules   governing  



character evidence, bolstering, and prior consistent statements, as well as under the Rule                                                                                                                                                                                                                                                                                                               



403 balancing test.                                                                           After a jury trial, Holt was convicted of one count of first-degree                                                                                                                                                                                                       



 sexual assault and four counts of second-degree sexual assault; he was sentenced to 28                                                                                                                                                                                                                                                                                                                            



years imprisonment with 8 suspended.                                                                                         



                                D.                              Proceedings In The Court Of Appeals                                                                                                                     



                                                                In Alexander's case, the State filed a petition for review to the court of                                                                                                                                                                                                                                                                           



appeals   challenging   the   conclusion  that   the   proposed   polygraph   testimony   was  



admissible; Alexander filed a cross-petition challenging the conditions that he agree to                                                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                                                 7   In its decision, the  

testify and agree to submit to a State-administered polygraph exam.                                                                                                                                                                                                                                                                                                                                              



court of appeals observed that in accordance with our opinion in Coon, determinations  

                                                                                                                                                                                                                                                                                                                                                        



regarding the validity of scientific evidence are reviewed on appeal only for abuse of  

                                                                                                                                                                                                                                                                                                                                                                                                                     



                                7                               State  v.  Alexander ,  364  P.3d  458,  460  (Alaska  App.  2015).  



                                                                                                                                                                                                          -7-                                                                                                                                                                                                                  7326  


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

                  8  

discretion.   The court expressed concern about applying such a deferential standard and                                                        



suggested that this court should revisit                               Coon   and adopt a more probing standard of                                



             9  

                                   

review.         The court explained:  



                                                                                                                  

                                   As it happened, [Judges Miller and Schally] 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  

                                                                                                                   

                       reacheddiffering conclusionsregardingthescientificvalidity  

                                                                                                                   

                       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.  



                                          

                                   . . . .  



                                                                                                                           

                                   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  

                                                                                                                     [10]  

                                                                                                          

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



Ultimately, applying the abuse of discretion standard of review, the court of appeals  

                                                                                                                                         

affirmed  the  order  admitting  Dr.  Raskin's  testimony.11                                          The  court  also  upheld  the  

                                                                                                                                                



            8          Id.  at 466.   



            9  

                                           

                       Id. at 466, 468.  



            10  

                                                     

                       Id. (emphasis in original).  



            11  

                                  

                       Id. at 471.  



                                                                        -8-                                                                  7326
  


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

conditions on admissibility imposed by the superior court.                                                12  



                                                                                                                                                         

                        In Sharpe's case, the State again filed a petition for review challenging the  



                                                                                                                                                    

ruling admitting Dr. Raskin's testimony; the court of appeals denied the petition based  



                             

on its ruling in Alexander .  



                                                                                                                                           

                        The State filed petitions for hearing to this court in both cases; Alexander  



                                                                                                                                                          

and Sharpe filed a joint cross-petition challenging the requirement that they agree to  

                                                                                                                             13  We granted all  

testify before their respective polygraph evidence could be admitted. 



three petitions and consolidated the cases for briefing.  

                                                                                    



                        Holt appealed his convictions and his sentence to the court of appeals. One  

                                                                                                                                                       



of  Holt's  grounds  for  appeal  was  Judge  Huguelet's  order  excluding  Dr.  Raskin's  

                                                                                                                 



testimony. The court of appeals reasoned that the polygraph issue in Holt's case was the  

                                                                                                                                                         



same as the one in State v. Alexander, and that the trial court's decision "present[ed] the  

                                                                                                                                                         



very problem that [the court] noted when [it] decided Alexander :   the problem that  

                                                                                                                                                       



reasonable judges who heard exactly the same evidence concerning polygraph testing  

                                                                                                                                                  



could rationally reach differing conclusions as to whether polygraph evidence meets the  

                                                                                                                                                         



Daubert test for admission." Because we had already granted review of Alexander's and  

                                                                                                                                                        



Sharpe's cases, the court of appeals severed Holt's polygraph question and certified it  

                                                                                                                                           

to this court, again asking us to revisit the applicable standard of review.14   We accepted  

                                                                                                                                              



certification and consolidated Holt's case with Sharpe's and Alexander's.  

                                                                                                                



            12          Id.  



            13           Sharpe and Alexander are no longer challenging the requirement that they                                                     



submit to a state-administered polygraph exam if requested to do so.                                                    



            14          We are not presented with the other issues and arguments raised in Holt's  

                                                                                                                                                   

initial appeal to the court of appeals, and we do not address them.  

                                                                                                              



                                                                            -9-                                                                     7326
  


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

III.        STANDARD OF REVIEW               



                       Broadly speaking, we review the admission or exclusion of evidence for                                                     



                                   15  

abuse of discretion.                                                                                                                                 

                                         But whether the trial court applied the correct legal rule is a  



                                                                             16  

                                                                                  Similarly, "[w]hen the admissibility of                          

question of law subject to de novo review. 



                                                                                                                                              

evidence 'turns on . . . the correct scope or interpretation of a rule of evidence, we apply  



                                                    17  

                                                                                                                                         

our independent judgment.' "                            Findings of fact underlying a judgment of the superior  



                                                                                                                                            

court are reviewed for clear error, which we will find "if a review of the entire record  



                                                                                                                                    18  

                                                                                                                         

leaves us with a definite and firm conviction that a mistake has been made." 



                                                                                                                                                     

                       In State v. Coon we addressed the applicable standards of review for a  



                                                                                                                             

decision admitting or excluding scientific evidence and concluded that a "determination  

                                                                                                                                 19  However,  

                                                                                                                                       

                                                                                                                      

of reliability under Daubert" is "best left to the discretion of the trial court." 



whether to revisit the standard outlined in Coon is one of the issues raised on appeal and  

                                                                                                                                                 



            15          Timothy W. v. Julia M.                 , 403 P.3d 1095, 1100 (Alaska 2017) (citing                                    State  



v.  Carpenter, 171 P.3d 41, 63 (Alaska 2007)).                      



            16         Id. (citing Carpenter, 171 P.3d at 63).  

                                                                                   



            17         Sanders v.State, 364 P.3d412,419-20(Alaska2015) (cleaned up) (quoting  

                                                                                                                                         

Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 350 (Alaska 2012)).  

                                                                                                                     



            18         Kiva O. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                            

408 P.3d 1181, 1186 (Alaska 2018) (quoting Bigley v. Alaska Psychiatric Inst., 208 P.3d  

                                                                                                                                                

 168, 178 (Alaska 2009)).                       We have not previously stated explicitly what standard of  

                                                                                                                                                    

review applies to findings of fact preliminary to evidentiary rulings. However, under  

                                                                                                                                             

Alaska Evidence Rule 104(b), "[w]hen the relevancy of evidence depends upon the  

                                                                                                                       

fulfillment  of  a  condition  of  fact,  the  court  shall  admit  it  upon,  or  subject  to,  the  

                                                                                                                                                 

introduction  of  evidence  sufficient  to  support  a  finding  of  the  fulfillment  of  the  

                                                                                                                                                 

condition." Thus, the relevant question on appeal is whether there is sufficient evidence  

                                                                                                                                        

in the record to support the necessary factual finding, i.e., whether that finding is clearly  

                                                                                                                                            

erroneous.  



            19         974 P.2d 386, 399 (Alaska 1999).  

                                                                        



                                                                        -10-                                                                  7326
  


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

one which the court of appeals has explicitly urged us to reconsider.                                                                            When deciding   



whether to overrule a prior decision, we will do so only when "clearly convinced that the                                                                                    



rule was originally erroneous or is no longer sound because of changed conditions, and                                                                                     

                                                                                                                                                      20   A previous  

that more good than harm would result from a departure from precedent."                                                                                          



decision may be considered "originally erroneous" if it "proves to be unworkable in  

                                                                                                                                                                              

practice."21  



IV.           DISCUSSION  



              A.            The Daubert/Coon Standard  

                                                                      



                           Under Alaska Evidence Rule 702(a), a qualified expert witness may testify  

                                                                                                                                                                      



to "scientific, technical, or other specialized knowledge" if that knowledge "will assist  

                                                                                                                                                                       



the trier of fact to understand the evidence or to determine a fact in issue."  In Daubert  

                                                                                                                                                                 

                                                                               22  the United States Supreme Court set forth new  

v. Merrell Dow Pharmaceuticals, Inc.,                                                                                                                                     

                                                                       



requirements for admitting scientific evidence under the equivalent Federal Rule of  

                                                                                                                                                                              



Evidence.   Prior to Daubert  the prevailing standard had been established in Frye v.  

                                                                                                                                                                              



 United  States,  under  which  an  "expert  opinion  based  on  a  scientific  technique  is  

                                                                                                                                                                              



inadmissible unless the technique is 'generally accepted' as reliable in the relevant  

                                                                                                                                                                 

scientific community."23                             Daubert concluded that the Frye test was superseded by the  

                                                                                                                                                                            



              20            Young  v.  State,  374  P.3d  395,  413  (Alaska  2016)  (quoting  Pratt  & Whitney  



Canada,  Inc.  v.  Sheehan,  852  P.2d   1173,   1176  (Alaska   1993)).  



              21            Thomas v. Anchorage Equal  Rights  Comm'n,   102 P.3d  937, 943 (Alaska  



2004)  (quoting  Pratt  &   Whitney  Canada,  Inc.,  852  P.2d  at   1176).  



              22            509 U.S. 579 (1993).  

                                                         



              23           Id  at  584 (citing Frye  v.  United States, 293 F.  1013,  1014 (D.C. App.  

                                                                                                                                                                        

 1923)).  



                                                                                     -11-                                                                               7326
  


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

adoption of the Federal Rules of Evidence.                              24  



                                                                                                                                          

                      The new standard laid out in Daubert is two-pronged. First, the court must  



                                                                                                                                   

determine whether the proffered testimony is based on "scientific knowledge," meaning  



                                                                                                                                              25  

                                                                                                                            

that it is "derived by the scientific method" and "supported by appropriate validation" 

-in short, that it is "scientifically valid."26  Second, because Evidence Rule 702 requires  

                                                                                                                                    



that the testimony must "assist the trier of fact to understand or determine a fact in issue,"  

                                                                                                                                      



the  court  must  determine  "whether  the  reasoning  or  methodology  underlying  the  

                                                                                                                                           

testimony . . . properly can be applied to the facts in issue."27  

                                                                                         



                      The Daubert Court also outlined a number of key considerations relevant  

                                                                                                                                    



to the determination of scientific validity, although it noted that these considerations  

                                                                                                                         

were not "a definitive checklist or test."28                             The first question is whether the scientific  

                                                                                                                                  

                                                                                                                     29   The second is  

theory or technique in question can be and has been empirically tested.                                                                        

                                                                                                            

whether the theory or technique "has been subjected to peer review and publication."30  

                                                                                                                         



But the Supreme Court cautioned that publication, including in a peer-reviewed journal,  

                                                                                                                                     



"does  not  necessarily  correlate  with  reliability";  rather,  the  Court  reasoned  that  

                                                                                                                                          



publication and  peer  review is relevant  because "submission to  the scrutiny  of the  

                                                                                                                                            



scientific community is a component of 'good science,' in part because it increases the  

                                                                                                                                            



           24         Id.  at 587.   



           25  

                                 

                      Id. at 590.  



           26  

                                 

                      Id. at 593.  



           27         Id.  at 592-93.   



           28  

                                 

                      Id. at 593.  



           29         Id.  



           30         Id.  



                                                                     -12-                                                               7326
  


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

                                                                                                                                      31  

likelihood that substantive flaws in the methodology will be detected."                                                                     The third   



consideration that the Court found relevant is "the known or potential rate of error, and                                                               

                                                                                                                                                 32  And  

theexistenceandmaintenanceofstandardscontrolling                                                 thetechnique's              operation."               



finally, although Daubert rejected general acceptance in the scientific community as an  

                                                                                                                                                          



absolute prerequisite to admissibility, the Supreme Court recognized that "[w]idespread  

                                                                                                                                     



acceptance can be an important factor in ruling particular evidence admissible, and 'a  

                                                                                                                                                          



known  technique  which  has  been  able  to  attract  only  minimal  support  within  the  

                                                                                                                                                        

community,' may properly be viewed with skepticism."33  

                                                                                



                        In 1999 we adopted Daubert as the applicable admissibility standard for  

                                                                                                                                                         



                                                                                                                                                  34  

scientific expert testimony under the Alaska Rules of Evidence in State v. Coon.  

                                                                                                                                        



            B.          Polygraph Testing And The Comparison Question Technique  

                                                                                                                            



                        This opinion concerns the admissibility of expert testimony regarding the  

                                                                                                                                                         



results of a polygraph examination, informally known as a "lie detector test." However,  

                                                                                                                                             



it does not concern the entire field of polygraph testing; rather, it involves the technique  

                                                                                                                                            

known  as  the  "comparison  question  test"  or  "control  question  test"  (CQT).35  

                                                                                                                                                      The  



                                                                                                                               

following is a summary of the undisputed aspects of CQT polygraph testing.  



            31          Id.  



            32          Id.  at 594 (internal citations omitted).            



            33          Id.   (quoting   United   States   v.   Downing,   753   F.2d   1224,   1238   (3d   Cir.  



 1985)).  



            34          974 P.2d 386, 393-94 (Alaska 1999).  

                                                                                 



            35          The technique was originally known as the "control question" technique;  

                                                                                                                                           

"comparison question" is now the preferred term because the technique does not use a  

                                                                                                                                              

"control" as that term is understood in the scientific community.  See GIANNELLI ET AL                                                                     .,  

                                                                                                                             

                                                                                                                                                         

supra note 4  8.02[a], at 437. For simplicity, we refer to the technique primarily by the  

                    

shorthand "CQT."  



                                                                           -13-                                                                     7326
  


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

                             In all polygraph examinations, whether the CQT or some other approach  



is used, the examinee is connected to a polygraph, an instrument that measures multiple  

                                                                                                                                                                       



physiological phenomena: pulse rate, blood pressure, respiration rate, and galvanic skin  

                                                                                                                                                                                

                                                                           36     It is generally accepted that the polygraph is a  

response in the hands and fingers.                                                                                                                                                   

                                                           

highly sensitive instrument capable of measuring these physiological phenomena.37  

                                                                                                                                                                                   



                             The CQT exams Dr. Raskin administered in these cases are a form of  

                                                                                                                                                                                   



specific-incident polygraph testing, as opposed to apolygraph examinationfor screening  

                                                                                                                                                                     

or background check purposes.38                                           Screening tests ask about a broad range of conduct,  

                                                                                                                                                                      



such as whether the examinee has ever committed a crime or used illegal drugs, but  

                                                                                                                                                                                 



specific-incident tests, like the ones Dr. Raskin administered, focus on a particular crime,  

                                                                                                                                                                            

event, or other occurrence under investigation.39   The CQT examiner asks three types of  

                                                                                                                                                                                    



questions:                 "neutral"  or  "irrelevant"  questions  ("Is  your  name  Thomas?"),  broad  

                                                                                                                                                                           



"control" or "comparison" questions ("During the first 35 years of your life, did you ever  

                                                                                                                                                                                



engage in a sexual act of which you should be ashamed?"), and specific "relevant"  

                                                                                                                                                                  



              36            NAT 'L  RESEARCH  COUNCIL,  supra  note 6, at 12-13; John Synnott et al.,                                                                               A  



Review of the Polygraph: History, Methodology and Current Status                                                                                  , 1 C     RIME  PSYCH.  

REV. 59, 62-65 (2015).                             Galvanic skin response, also known as electrodermal response,                                                    

refers to the electrical conductivity of the skin, which is affected by activity in the skin's                                                                              

sweat glands.                  See  NAT 'L  RESEARCH  COUNCIL,  supra  note 6, at 81, 155.                                                      



              37            See  GIANNELLI ET AL.,  supra  note 4  8.02[c], at 439.                                                             



              38            See NAT 'L  RESEARCH  COUNCIL,  supra  note 6, at 1 ("Polygraph testing is   



used   for   three   main   purposes:     event-specific   investigations   (e.g.,   after   a   crime);  

employee screening, and preemployment screening.                                                                    The different uses involve the                               

search for different kinds of information and have different implications.").                                                   



              39            Id. at 23-24.  

                                         



                                                                                        -14-                                                                                 7326
  


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

                                                                                                         40  

questions ("Did you ever touch G.B.'s breast?").                                                              Each comparison question will ask                                    



about a broad category of past conduct, similar to but excluding the specific occurrence                                                                           



being investigated, and each question will be specifically designed to be ambiguous,                                                                             

                                                                                               41     Because the comparison questions are  

broad, and vague but elicit a "No" answer.                                                                                                                                         



broadly worded and address sensitive topics, the examinee is assumed to be deceptive  

                                                                                                                                                                      

or at least unsure of his answer.42   The underlying rationale of the CQT is that deceptive  

                                                                                                                                                                      



subjects will feel morethreatened by the relevant questions and will viewthe comparison  

                                                                                                                                                                  



questions as less important; thus, deceptive subjects will have a stronger physiological  

                                                                                                                                                             

reaction to the relevant questions.43                                           In contrast, truthful subjects are expected to feel  

                                                                                                                                                                                  



more threatened by the comparison questions and will have a stronger physiological  

                                                                                                                                        

reaction than to the truthfully answered relevant questions.44                                                                     There are two reasons for  

                                                                                                                                                                                    



              40             See  GIANNELLI ET AL                        .,  supra  note 4  8.02[e], at 442-43; N                                      AT 'L  RESEARCH  



COUNCIL,  supra   note   6,   at   254-55;   David   C.   Raskin   &   Charles   R.   Honts,   The  

Comparison Question Test                                   ,   in   HANDBOOK OF                        POLYGRAPH   TESTING   1, 5-27 (Murray                            

Kleiner ed., 2001).        



              41             Raskin  &  Honts,  supra  note  40,  at  15.                                                    If  the  examinee  answers  a  

                                                                                                                                                                                       

comparisonquestionaffirmatively, indicating that somepast event matches thedescribed  

                                                                                                                                                                      

conduct,  the  examiner  will  elicit  an  explanation  of  that  event  before  repeating  the  

                                                                                                                                                                                   

question in a way that excludes the admitted conduct ("Other than what you told me, . . .  

                                                                                                                                                                                         

did you ever . . . .").  Id. at 16.  In a variant of the CQT known as the "directed lie test,"  

                                                                                                                                                                               

the examinee is simply instructed to lie to the comparison question and informed that the  

                                                                                                                                                                                    

results will be inconclusive if there is not a strong enough response.  Id. at 23; see also  

                                                                                                                                                                                 

GIANNELLI ET AL                      .,  supra  note 4  8.02[e], at 444; Synnot et al.,                                              supra  note 36, at 67-68.             



              42             See  Raskin & Honts,                         supra  note 40, at 15.                         



              43             GIANNELLI   ET   AL.,  supra   note   4      8.02[e],   at   441;   NAT 'L   RESEARCH  



COUNCIL,  supra  note 6, at 14-15, 70-71, 255.                                          



              44             GIANNELLI   ET   AL.,   supra   note   4      8.02[e],   at   441;   NAT 'L   RESEARCH  



COUNCIL,  supra  note 6, at 14-15, 70-71, 255.                                          



                                                                                         -15-                                                                                  7326
  


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

this expectation:   first, the sensitive topic of the comparison questions is assumed to                                                                  



generate a response; second, the examiner will have explained prior to the exam that the                                                                 



examinee's reactions to the comparison questions are important to the ultimate test                                                                    

           45    Thus, the CQT is based on the premise that the relative magnitudes of the  

result.                                                                                                                                                 



examinee's reactions to the relevant and comparison questions are indicative of his  

                                                                                                                                                        

truthfulness or lack thereof when answering the relevant questions.46  

                                                                                                         



                        The examiner  asks the examinee a list of prepared  questions  multiple  

                                                                                                                           

times.47   For each relevant question, the examiner will compare the subject's reaction to  

                                                                                                                                                           

his reaction to an adjacent comparison question.48                                          Each measured parameter is given a  

                                                                                                                                                            



numerical score for each question pair, for example from  -3 to +3, with a positive  

                                                                                                                                               



number indicating a stronger reaction to the comparison question and a negative number  

                                                                                                                                                

                                                                                                         49     The  examiner  totals  the  

indicating  a  stronger  reaction  to  the  relevant  question.                                                                                         

                                                                                        

numerical scores:50                  a high positive overall score is interpreted as indicating a truthful  

                                                                                                                                                



result; a high negative score is interpreted as indicating deception; a score close to zero,  

                                                                                                                                                     



            45          Raskin  &  Honts,  supra  note  40,  at   15-16.  



            46          GIANNELLI   ET  AL.,   supra   note   4      8.02[e],   at   441;   NAT 'L   RESEARCH  



COUNCIL,  supra  note  6,  at   14-15,  70,  255;  Raskin  &  Honts,  supra  note  40,  at  7,   18-21.   



            47          Raskin  &  Honts,  supra  note  40,  at   17-18.  



            48          Id  at  7,   19.  



            49          GIANNELLI ET  AL.,  supra  note  4    8.02[f],  at  445-46;  Raskin  &  Honts,  supra  



note  40,  at   19.  



            50          Depending  on  the circumstances and the need for  particularized  test  results,  



the   scores  may be  totaled   either   for  the  test   as   a  whole   or   for   each  relevant   question  

individually.   Raskin  &  Honts,  supra  note  40,  at  20.  



                                                                           -16-                                                                     7326
  


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

whether positive or negative, is considered inconclusive.                                  51  



                                                                                                                            

                     As will be explained in further detail below, the main scientific criticisms  



                                                                                                                       

of  CQT  polygraph  testing  relate  to  the  validity  and  testability  of  the  assumptions  



                         

underlying the technique.  



                                                                                                                            

           C.         The Appellate Standard Of Review For Scientific Evidence Rulings  



                                                                                                                             

                     The first question we must address is what standard of review the appellate  



                                                                                                                                     

court should apply to appeals from a Daubert/Coon determination made by the trial  



                                                                                                                                      

court. Our current standard, which the court of appeals urges us to reconsider, is the one  



                                                                        52  

                                                                             

laid out in State v. Coon: abuse of discretion. 



                                                                                                                               

                     In Coon thesuperior courtheldanevidentiary hearing to determinewhether  



                                                                                                                          

proffered expert testimony on spectrographic voice identification would be admissible  



                                                                                                                                     

under  Frye 's  general-acceptance  standard;  the  superior  court  then  admitted  the  



                 53  

testimony.                                                                                                                     

                     After an initial appeal, we remanded the case with directions to the superior  



                                                                                                                                        

court to enter findings of fact and conclusions of law relating to Evidence Rule 703, as  



                                                                                                                              

well as detailed findings of fact and conclusions of law under both the Frye and Daubert  



                                                                                                                                   

standards; the superior court on remand determined the testimony was admissible under  

                        54   On appeal again we expressly adopted the Daubert standard,55  and we  

                                                                                                                                       

both standards. 



then considered the superior court's ruling admitting the evidence under this newly  

                                                                                                                                 



           51         GIANNELLI  ET  AL.,  supra note 4    8.02[f], at  446; Raskin & Honts,  supra  



note  40,  at  20.  



           52         974  P.2d  386  (Alaska   1999).  



           53        Id.  at  388.  



           54        Id.  at  389.  



           55        Id.  at  389-98.  



                                                                  -17-                                                             7326
  


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

                                   56  

adopted standard.                       



                                                                                                                                                     

                           The superior court's conclusion was based on a number of preliminary  



                                                                                                                                                                   

findings:  it found that the technique of spectrographic voice identification "had been  



                                                                                                                                                                     

empirically tested," that it "had been subjected to peer review and publication," that  



                                                                                                                                                                    

"when properly performed . . . voice spectrography has a known error rate of less than  



                                                                                                                                                          

one percent," that "when voice spectrography is properly performed by a qualified  



                                                                                                                                                   

person, it has attained widespread acceptance within the relevant scientific community,"  



                                                                                                                                                                 

that  "the  reasoning  and  methodology  underlying  [the  expert's]  testimony  were  



                                                                                                                                                                  

scientifically valid," and that the expert in that case "had properly performed the voice  

                                                  57  We examined each of those preliminary findings in turn, and  

                                                                                                                                                                      

spectrographic analysis." 

concluded for each finding that the superior court "did not err" in making it.58                                                                           We then  

                                                                                                                                                                    



reviewed for abuse of discretion the superior court's definition of the "relevant scientific  

                                                                                                                                                           



community" and its ultimate determination, in light of its preliminary findings, that the  

                                                                                                                                                                       

                                                                                                    59   We noted that "the majority of the  

evidence presented satisfied the Daubert standard.                                                                                                                     

                                                                                  



federal circuits have chosen to apply the abuse of discretion standard when reviewing  

                                                                                                                                                         



district court decisions under Daubert," and that "the Supreme Court [had] recently  

                                                                                                                                                            



             56           Id.  at 398-403.   



             57  

                                       

                          Id. at 400.  



             58           Id. at 401-02 ("[T]he trial court did not err in finding on remand that this                                       



technique has been subjected to empirical testing. . . . [T]he trial court did not err in                                                                                

finding  on  remand  that  the  technique  had  been  subjected  to  peer  review  and  

                                                                                                                                                                    

publication . . . . The trial court did not err in finding on remand that the known error rate  

                                                                                                                                                                      

 . . . was sufficiently low to make this evidence reliable. . . . [W]e do not find that the trial                                                                    

court clearly erred in making its general acceptance finding . . . .").  

                                                                                                                              



             59            See id. ("[W]e conclude that the trial court did not abuse its discretion in  

                                                                                                                                                                         

determining the relevant scientific community[,] . . . in ruling that the evidence satisfied  

                                                                                                                                                            

Daubert [,] . . . [or] in finding the voice spectrographic evidence admissible . . . .").  

                                                                                                                                                             



                                                                                  -18-                                                                            7326
  


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

approved the abuse of discretion standard in                                         General Electric Co. v. Joiner                           ."60  



                                                                                                                                                    

                         Justice Fabe dissented from the court's opinion.  She argued that applying  



                                                                                                                                                             

"an abuse of discretion standard of review to the validity of scientific techniques will  

                                                                                                                                            61   This non- 

                                                                                                                                                           

                                                                                                                            

most likely lead to inconsistent treatment of similarly situated claims." 



uniformity,  she  suggested,  "must  be  reconciled  at  the  appellate  level.                                                               Otherwise,  

                                                                                                                                              



inconsistent  jury  verdicts,  widely  disparate  compensation  for  similar  injuries,  and  

                                                                                                                                                            



erroneous  criminal  verdicts will continue to  erode public confidence in  our  justice  

                                                                                                                                                       

system."62            Justice Fabe explained that "[t]he reliability of scientific evidence does not  

                                                                                                                                                              

change from one case to the next; a scientific method is either reliable or unreliable."63  

                                                                                                                                                                     



For that reason, her dissent advocated reviewing "the question of the validity of scientific  

                                                                                                                                                   



information" de novo, while reviewing for abuse of discretion "a trial judge's assessment  

                                                                                                                                               

of the competency of a particular expert witness to render an opinion."64  

                                                                                                                     



                         Prior to our decision in Coon, a number of commentators had criticized the  

                                                                                                                                                               



federal courts' abuse of discretion standard and proposed a hybrid standard similar to the  

                                                                                                                                                              

                                                                        65  For example, Professor David Faigman argued  

one described in Justice Fabe's dissent.                                                                                                               

                                                           



             60          Id.  at 399 (citing cases from the Courts of Appeal for the First, Second,                                                  



Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and D.C. Circuits, and citing                                                           General Electric   

Co. v. Joiner            , 522 U.S. 136 (1997)).         



             61          Id. at 404 (Fabe, J., dissenting).  

                                                                



             62          Id.  (Fabe, J., dissenting) (quoting Jay P. Kesan, An Autopsy of Scientific  

                                                                                                                                             

Evidence in a Post-Daubert  World, 84 GEO. L.J. 1985, 2037 (1996)).                                                 

                                                                          



             63          Id.  at  404-05  (Fabe,  J.,  dissenting).  



             64          Id.  at  405  (Fabe,  J.,  dissenting).  



             65          See,  e.g.,   Confronting   the   New   Challenges   of   Scientific   Evidence,   108  



HARV.   L.   REV.   1509,   1528  (1995);  David  L.  Faigman, Appellate  Review  of  Scientific  

                                                                                                                                          (continued...)  



                                                                              -19-                                                                        7326
  


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

in a 1997 law review article that the relevance and reliability of scientific evidence                                                                                                



"involves several layers of scientific work" and that different standards of review should                                                                                                  

                                 66    According to Faigman, "[w]hen the scientific evidence transcends the  

apply to each.                                                                                                                                                                                      



particular case, the appellate court should apply a 'hard-look' or de novo review to the  

                                                                                                                                                                                                    

basisfor theexpert opinion,"67  but "[w]hen the scientific evidence involvesfacts specific  

                                                                                                                                                                                         

to the particular case, the appellate court should defer to the trier of fact below."68  

                                                                                                                                                                                                  



                                                                                                                                                         69  

                               Although all federal circuits have adopted Joiner 's                                                                           abuse of discretion  

                                                                                                                                                                                    

standard for appellate review,70  a number of state courts have ruled to the contrary and  

                                                                                                                                                                                                   



                65              (...continued)  



                                                                                                         ASTINGS   L.J. 969, 976 (1997); David L.                                                    

Evidence Under  Daubert  and  Joiner, 48 H 

Faigman et al.,                    Check Your Crystal Ball at the Courthouse Door, Please: Exploring the                                                                                            

Past, Understanding the Present, and Worrying About the Future of Scientific Evidence                                                                                                                    ,  

            ARDOZO  L. R                    EV. 1799, 1822 (1994); Michael H. Gottesman,                                                                       From   Barefoot   to  

 15 C 

Daubert  to  Joiner: Triple Play or Double Error?                                                                , 40 A        RIZ. L. R          EV. 753, 776-80 (1998);                 

Jay    P.    Kesan,    An    Autopsy    of    Scientific    Evidence    in    a    Post-Daubert                                                                                            World,  

 84 G       EO. L.J. 1985, 2038 (1996).                    



                66             Faigman,  Appellate  Review,  supra  note  65,  at  976.  



                67             Id.  



                68             Id.  



                69              General  Elec.  Co.  v.  Joiner,  522  U.S.   136  (1997).  



                70             See  Hughes  v.  Kia  Motors  Corp.,  766  F.3d 1317,   1331  (11th  Cir.  2014);  



 Calhoun  v.  Yamaha  Motor  Corp.,  U.S.A.,  350  F.3d  316,  320  (3d  Cir.  2003);  Dura  Auto.  

Sys. of Indiana, Inc. v. CTS  Corp., 285 F.3d 609, 617 (7th Cir. 2002);  Raskin v. Wyatt  

 Co.,   125  F.3d  55,  65-66  (2d  Cir.   1997);   United  States  v.  Kayne,  90  F.3d  7,   11  (1st  Cir.  

 1996);  Duffee  ex  rel.  Thornton  v.  Murray  Ohio  Mfg.  Co.,  91  F.3d  1410,  1411  (10th  Cir.  

 1996);  Benedi  v.  McNeil-P.P.C.,  66  F.3d  1378,  1384  (4th  Cir.  1995);  Pedraza  v.  Jones,  

71  F.3d  194,  197  (5th  Cir.  1995);  American  &  Foreign  Ins.  Co.  v.  General  Elec.  Co.,  45  

F.3d  135,  137  (6th  Cir.  1995);  Hose  v.  Chicago  N.W.  Transp.  Co.,  70  F.3d  968,  972  (8th  

Cir.   1995);   United  States  v.  Chischilly,  30  F.3d   1144,   1152  (9th  Cir.   1994);  Joy  v.  Bell  

                                                                                                                                                                           (continued...)  



                                                                                                 -20-                                                                                          7326
  


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

 adopted a stricter standard of review. For                            example, the NewMexico                       Supreme Court held  



 in   Lee   v.   Martinez   that  the   validity   of   a   particular   scientific   theory   is   a   form   of  



 "legislative fact" not specific to the circumstances of any particular case, and it therefore                                          

                                                                         71   Other states that have adopted a hybrid or  

 applies de novo review to such questions.                                                                                             



 de       novo          standard             of       review           for        Daubert              determinations                   include  

                                                                                                                                      

 Oklahoma,72Washington,73                         Kentucky,74             New   Hampshire,75                   West   Virginia,76               and  

                                                                                                                                               



            70          (...continued)  



                                                                                                 

Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C. Cir. 1993).  



            71          96 P.3d 291, 296 (N.M. 2004).              



            72          Taylor v. State, 889 P.2d 319, 331-32 (Okla. Crim. App. 1995) ("[A] trial  

                                                                                                                                                

judge's  decision  to  admit  novel  scientific  evidence"  is  subject  to  "an  independent,  

                                                                                                                                

 thorough review . . . not limited by deference to the trial judge's discretion").  

                                                                                                                  



            73          State v. Cauthron, 846 P.2d 502, 505 (Wash. 1993) ("We review the trial  

                                                                                                                                                

 court's decision to admit or exclude novel scientific evidence de novo."), overruled in  

                                                                                                                                  

part on other grounds by State v. Buckner , 941 P.2d 667 (Wash. 1997).  

                                                                                                                               



            74         Miller  v.  Eldridge,  146  S.W.3d  909,  915  (Ky.  2004)  (explaining  that  

                                                                                                                                                

 "findings of fact, i.e. reliability or non-reliability"  are reviewed for clear error and  

                                                                                                                                                

 "discretionary decisions, i.e. whether the evidence will assist [the] trier of fact and the  

                                                                                                                                                  

ultimate decision as to admissibility" are reviewed for abuse of discretion).  

                                                                                                                



            75          State v. Dahood, 814 A.2d 159, 161 (N.H. 2002) ("Generally, we review  

                                                                                                                                           

 the trial court's rulings on evidentiary matters, including those regarding the reliability  

                                                                                                                                       

 of novel scientific evidence, with considerable deference . . . .  When the reliability or  

                                                                                                                                                    

 general acceptance of novel scientific evidence is not likely to vary according to the  

                                                                                                                                                  

 circumstances of a particular case, however, we review that evidence independently.").  

                                                                                                                         



            76          State v. Beard, 461 S.E.2d 486, 492 n.5 (W. Va. 1995) (explaining that  

                                                                                                                                                

 West Virginia appellate courts review de novo whether "the reasoning or methodology  

                                                                                                                                

underlying the testimony is scientifically valid," but that whether the scientific evidence  

                                                                                                                                        

 "will assist the trier of fact to understand the evidence or to determine a fact in issue" is  

                                                                                                                                                    

 reviewed under the abuse of discretion standard).  

                                                                      



                                                                        -21-                                                                  7326
  


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

                77  

Oregon.             In states that continue to apply the                              Frye  standard of general acceptance, most                             

apply de novo review on appeal.                               78  



                          The primary concern raised by jurisdictions applying abuse of discretion  

                                                                                                                                              



review, as well as by commentators and Justice Fabe's dissent in Coon, is the potential  

                                                                                                                                                     



for inconsistent rulings in similarly situated cases.  Our opinion in Coon dismissed this  

                                                                                                                                                               



concern, finding it unlikely "that the inconsistency will be of such magnitude as to  

                                                                                                                                                                  

                                                                                                                                      79  In light of the  

'compromise the integrity of the judiciary in the eyes of the public.' " 

                                                                                                                                                                



posture of the cases now before us, we may have been too optimistic.  If two defendants  

                                                                                                                                                 



offer similar scientific testimony and - after separate evidentiary hearings -one judge  

                                                                                                                                                            



deems the testimony to be scientifically valid while another does not, that could be the  

                                                                                                                                                                



result  of  differences  between  the  particular  cases  and  differences  in  the  evidence  

                                                                                                                                                    



presented at the hearings.  But when the judge in the latter case relied on the evidentiary  

                                                                                                                                                 



hearing from the first, and reached the opposite conclusion based on identical evidence,  

                                                                                                                                                    



it is clear that the difference in outcome cannot be attributed to a difference in the amount  

                                                                                                                                                        



or quality of the evidence.  

                                                    



                          That is essentially what happened in these cases:  the scientific evidence  

                                                                                                                                                     



             77          State v. Lyons             , 924 P.2d 802, 805 (Or. 1996) ("Notwithstanding the usual                                              



deference to trial court discretion, we review [a] ruling on the admissibility of scientific                                                         

evidence  de novo                 ." (emphasis in original) (internal citation omitted)).                          



             78          See,  e.g.,  Goeb  v.  Tharaldson,  615  N.W.2d  800,  814  (Minn.  2000)  

                                                                                                                                                         

(explaining that under Minnesota's Frye-Mack  standard, "the trial judge defers to the  

                                                                                                                                                                

scientific community's assessment of a given technique, and the appellate court reviews  

                                                                                                                                                       

de novo the legal determination of whether the scientific methodology has obtained  

                                                                                                                                                     

general acceptance in the scientific community"); Brim v. State, 695 So. 2d 268, 274  

                                                                                                                                                    

(Fla. 1997) (explaining that "[a]ppellate review of a Frye determination will be treated  

                                                                                                                                                         

as a matter of law" and be reviewed de novo).  

                                                                            



             79          State v. Coon, 974 P.2d 386, 399 (Alaska 1999) (quoting Coon, 974 P.2d  

                                                                                                                                                             

at 404 (Fabe, J., dissenting)).  

                                 



                                                                               -22-                                                                         7326
  


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

Alexander and Sharpe presented was deemed valid and admissible by the judges in their                                                                                             



cases; essentially identical evidence based on the same scientific principles was deemed                                                                                   



unreliable as a matter of law and inadmissible in Holt's case, even though the trial judge                                                                                      

                                                                                                                                                         80    This raises at  

relied on the very testimony presented at Alexander's                                                               Daubert  hearing.                                                   



least the appearance of arbitrariness, i.e., the appearance that the outcome of a Daubert  

                                                                                                                                                                         



determination in our courts depends more on which judge was assigned to the case than  

                                                                                                                                                                                  



on  the  objective  application  of  law to  the  evidence  presented.                                                                           Regardless  of  how  

                                                                                                                                                                                 



accurate this appearance might be, it certainly has the potential to raise serious questions  

                                                                                                                                                                       



in the eyes of the public about the integrity of our judicial system, particularly when such  

                                                                                                                                                                                  



inconsistencies occur in the context of serious criminal proceedings.  

                                                                                                                         



                             We explained in  Coon that "the premise that the scientific validity of a  

                                                                                                                                                                                        



technique is a legal issue which does not turn on case-sensitive facts" fails to "adequately  

                                                                                                                                                                  

take account of the reality of the judicial process and the variable state of science."81   We  

                                                                                                                                                                                    



quoted with approval the New Mexico Supreme Court's reasoning that the idea that  

                                                                                                                                                                                   



appellate courts are best suited to rule on the validity of a scientific theory or technique  

                                                                                                                                                                      



assumes  "that  the  record  on  appeal  contains  all  of  the  relevant,  most  recent  data  

                                                                                                                                                                                 



concerning the scientific method" and that "there is always a reservoir of scientific  

                                                                                                                                                                       

literature that an appellate court might independently reference in a de novo review."82  

                                                                                                                                                                                             



We also expressed concern about making determinative rulings at all, again noting the  

                                                                                                                                                                                     



New Mexico Supreme Court's reasoning that "the state of science is not constant; it  

                                                                                                                                                                                        



               80            An evidentiary hearing in which the judge considers the admissibility of                                                                                  



expert testimony is also known as a                                        Daubert  hearing, and will be hereafter referred to as                                                      

such.  



               81            Coon, 974 P.2d at 399.  

                                                                      



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

                                                                                                                                                       



                                                                                         -23-                                                                                   7326
  


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

                                  83  

progresses daily."                     We explained that "[t]he principal reason for adopting the                                                    Daubert  



standard is to give the courts greater flexibility in determining the admissibility of expert                                                             



testimony, so as to keep pace with science as it evolves," and concluded that abuse of                                                                            

discretion review "best comports with these aims."                                               84  



                          We do not take these concerns lightly:  the record on appeal is limited to  

                                                                                                       

the testimony and exhibits in the superior court's case file,85  so there is a non-negligible  

                                                                                                                                         



risk that reviewing the validity of scientific evidence de novo could lead us or the court  

                                                                                                                                                            



of appeals to decide a case involving the admissibility of scientific evidence based on  

                                                                                                                                                                 



incomplete information.   But the superior court is also limited to the testimony and  

                                                                                                                                                              



evidence presented at the hearing.  And appellate courts will often have more time than  

                                                                                                                                                              



trial courts to mitigate that risk through careful study of secondary sources such as  

                                                                                                                                                                 



scientific treatises and surveys of academic literature in the relevant field.  

                                                                                                                                              



                          Overturning a prior appellate decision requires showing that the decision  

                                                                                                                                                      



                                                                                                                                                                  86  

was either "originally erroneous or is no longer sound because of changed conditions."                                                                                 

                                                                                                                                            



If an appellate court has made a Daubert determination and then new scientific research  

                                                                                                                                                      



becomes available, or if a litigant identifies research that the appellate court overlooked,  

                                                                                                                                               



the trial court would be justified in holding an evidentiary hearing to make a complete  

                                         



record and rule in the alternative.  The appellate court would then have the ability to  

                                                                                                                                                                  



reconsider admissibility under Daubert and Coon. In either case, presenting this new or  

                                                                                                                                                                  



overlooked evidence is no more of a burden on litigants than the burden they would  

                                                                                                                                                          



             83          Id.  (quoting  Alberico ,  861  P.2d  at  205).  



             84          Id.  



             85          Alaska  R.  App.  P.  210(a).  



             86           Young  v.  State,  374  P.3d  395,  413  (Alaska  2016)  (quoting  Pratt  &  Whitney  



Canada,  Inc.  v.  Sheehan,  852  P.2d   1173,   1176  (Alaska   1993)).  



                                                                               -24-                                                                         7326
  


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

 otherwise have to present relevant evidence at an original                                                                                                                                                                                                                     Daubert  hearing.  



                                                                In short,                              Coon's fears thatdenovoreviewof                                                                                                                                  Daubert  determinations would  



 result in the law of scientific evidence becoming set or stagnant and unchanging appear                                                                                                                                                                                                                                                                                               



  somewhat exaggerated. However, for the reasons discussed above, de novo review will                                                                                                                                                                                                                                                                                                               



 not necessarily allow appellate courts to decide once and for all time whether a particular                                                                                                                                                                                                                                                                         



 technique is scientifically valid, as the court of appeals seems to hope.                                                                                                                                                                                                                                                                           Nonetheless,  



 adopting a less deferential standard of review on appeal would allow trial courts and                                                                                                                                                                                                                                                                                                              



 parties to avoid repeatedly relitigating the validity of scientific evidence, saving the court                                                                                                                                                                                                                                                                                               



 and parties the time, effort, and cost of a                                                                                                                                                            Daubert  hearing - at least absent new or                                                                                                                                                          



 previously overlooked research and evidence. It would also ensure that the admissibility                                                                                                                                                                                                                                                                 



 of scientific evidence is consistent throughout the courts of this state.                                                                                                                                                                                                                                  



                                                                For these reasons, we agree with the court of appeals - and with the                                                                                                                                                                                                                                                                   



 dissent in                                   Coon  - that a more probing standard of review is warranted in an appeal from                                                                                                                                                                                                                                                                     

                                                                                                                          87             As explained above, our decision in  Coon reviewed the  

 a  Daubert   determination.                                                                                                                                                                                                                                                                                                                                                                          



 preliminary findings underlying the superior court's application of the Daubert standard  

                                                                                                                                                                                                                                                                                                                                                                               



 - whether the technique had been tested, whether it had been subject to publication and  

                                                                                                                                                                                                                                                                                                                                                                                                      



 peer review, etc. - for clear error, but reviewed the court's ultimate determination of  

                                                                                                                                                                                                                                                                                                                                                                                                            

 reliability  for  abuse  of  discretion.88                                                                                                                                                     Going  forward,  we  will  instead  apply  our  

                                                                                                                                                                                                                                                                                                                                                                                                   



 independent judgment to the question whether - based on the evidence presented and  

                                                                                                                                                                                                                                                                                                                                                                                                     



                                87                              This approach is consistent with our standard of review in a number of                                                                                                                                                                                                                                                                     



 other contexts.                                                        For example, we have explained in the context of reviewing a denial of                                                                                                                                                                                                                                                              

 a motion to suppress evidence that although "[t]he trial court's findings of fact will not                                                                                                                                                                                                                                                                                                            

 be disturbed unless they are clearly erroneous," the question "[w]hether the trial court's                                                                                                                                                                                                                                                                                           

 findings support its legal conclusions is a question we answer with our independent                                                                                                                                                                                                                                                                       

judgment."   State v. Wagar                                                                                                      , 79 P.3d 644, 650 (Alaska 2003) (quoting                                                                                                                                                               State v. Joubert                                                            ,  

 20 P.3d 1115, 1118 (Alaska 2001)).                                                                                                                                         



                                88                              Coon, 974 P.2d at 400-02.  

                                                                                                                                                      



                                                                                                                                                                                                   -25-                                                                                                                                                                                         7326
  


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

the scientific literature available - the technique or theory underlying the proposed                                                                                                                



                                                                                                                                                                                89  

expert testimony is sufficiently reliable to satisfy                                                                          Daubert  and  Coon.  



                                  In sum, we will limit our independent review to the broad question whether  

                                                                                                                                                                                                         



the underlying scientific theory or technique is "scientifically valid" under the first prong  

                                                                                                                                                                                                               

of the Daubert analysis.90  

                                                                   



                 D.               Admissibility  



                                                                                                                                           

                                   1.              Alaska's case law on polygraph testing  



                                                                                                                                                                                                    

                                  Although we have not previously addressed the admissibility of polygraph  



                                                                                                                                                                                                                     

evidence under Daubert  and  Coon, a discussion of our pre-Daubert  case law on the  



                                                                                                                                                                                                                         

subject provides useful context and perspective.  In 1970 we concluded in Pulakis v.  



                                                                                                                                                                                                                         91  

                                                                                                                                                                                                                                

State  that polygraph evidence offered in a criminal trial is generally inadmissible. 

Pulakis was convicted of larceny after a jury trial.92                                                                               At trial the prosecution introduced  

                                                                                                                                                                                                  



testimony from a police polygraph examiner that Pulakis underwent two polygraph  

                                                                                                                                                                                                   



examinations  and  that,  in  the  examiner's  opinion,  "the  examinations  revealed  that  

                                                                                                                                                                                                                   

deceptive  answers  were  given  to  four  crucial  questions."93                                                                                                 Pulakis  challenged  his  

                                                                                                                                                                                                                     



                 89               Whether   the   evidence   being   offered   is   ultimately   admissible   will   also  



depend on case-specific factors, including whether the evidence is helpful to the trier of                                                                                                                              

fact, whether the relevant scientific theory or technique "properly can be applied to the                                                                                                                             

facts in issue," and whether the proposed expert testimony satisfies or runs afoul of other                                                                                                                      

evidentiary rules.                            Daubert v. Merrell Dow Pharm., Inc.                                                              , 509 U.S. 579, 592-95 (1993);                              

see also             Alaska R. Evid. 702.                                   These questions generally fall within the discretion of the                                                                               

trial court, and we will review them accordingly.                                             



                 90               Daubert 509 U.S. at 592-95.  

                                                                                        



                 91               476 P.2d 474, 478-79 (Alaska 1970).  

                                                                                                                 



                 92               Id. at 474-75.  

                                                 



                 93               Id. at 477.  

                                                 



                                                                                                          -26-                                                                                                   7326
  


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

                                                                                                                                                    94  

conviction on appeal, arguing that admitting the polygraph testimony was plain error.                                                                    



                                                                                                                                                 

Citing Frye, as well as language from some of our previous opinions, we observed that  



                                                                                                                                                    95  

                                                                                                                                  

"[t]he general rule is that the results of polygraph tests are not admissible in evidence." 



                                                                                                                                   

We  explained  that  "judicial  antipathy"  to  polygraph  evidence  had  not  diminished  



                                                                                                                                                  

significantly since Frye was decided in 1923, and that court decisions considering the  



                                                                                                                                          

issue "reflect a high degree of sensitivity to the numerous potential sources of error in  

                                                                                                                 96   We concluded that  

                                                                                                                                                 

the ascertainment of deception through polygraph examinations." 



the "central problem regarding admissibility is not that polygraph evidence has been  

                                                                                                                                               



proved unreliable, but that polygraph proponents have not yet developed persuasive data  

                                                                                                                                                 

demonstrating its reliability."97   We therefore held that, although we were "not prepared  

                                                                                                                                        



to say whether polygraph examiners' opinions are reliable[,] . . . the results of polygraph  

                                                                                                                                      

                                                                                                                        98    However,  we  

examinations  should  not  be  received  in  evidence  over  objection."                                                                         

                                                                                                     



ultimately upheld Pulakis's conviction because he had waived objection to the evidence  

                                                                                                                                        



at trial and we did not "find polygraph tests so demonstrably unreliable as to require a  

                                                                                                                              

finding of plain error."99  

                             



                       After we decided Pulakis, several cases in the court of appeals dealt not  

                                                                                                                                                  



with the admissibility of polygraph evidence directly, but rather with the admissibility  

                                                               



            94         Id.  at 476.
   



            95         Id.  at 477 (quoting              Gafford v. State            , 440 P.2d 405, 410 (Alaska 1968)).
              



            96
        Id. at 478.  

                                  



            97         Id. at 479.  

                                  



            98         Id.  



            99         Id. at 479-80.  

                                  



                                                                        -27-                                                                  7326
  


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

                                                                                                                                                        100  

of references in other testimony to a party's willingness to submit to a polygraph test.                                                                       



                                                                                                                                                         

The court of appeals noted that "[d]espite its unreliability, polygraph evidence might be  



                                                                                                                                                      

perceived by the jury as a complete answer to questions of credibility" and "could also  



                                                                                                                                             

lull the jury into a false sense of security and result in the jury failing to carefully  

                                                                                101    Similarly,  the  court  of  appeals  was  

                                                                                                                                                     

scrutinize  conflicting  witness  testimony." 



concerned that "a jury may conclude that a witness's willingness to take a polygraph test  

                                                                                                                                                       



is circumstantial evidence that the witness is telling the truth," and therefore concluded  

                                                                                                                                          



that  even  references  to  polygraph  tests  should  be  either  inadmissible  or  subject  to  

                                                                                                                                                         

significant limiting instructions.102  

                                    



                        The court of appeals first considered the admissibility of polygraph test  

                                                                                                                                                       

                                                      103   In that case the court was asked to reconsider Pulakis  

results in Haakanson v. State.  

                                                                                                                                                



and  find  polygraph  testimony  admissible  in  light  of  alleged  changes  in  polygraph  

                                                                                                                                          



technology and increased "acceptance among polygraph examiners of the polygraph's  

                                                                                                                                       

                                                              104      The  court  of  appeals  applied  Frye 's  general  

reliability  to  show  truthfulness."                                                                                                          

                                     



acceptance standard: it concluded that for purposes ofthat analysis, the relevant question  

                                                                                                                                              



could not be limited to the acceptance of polygraph testing among polygraph examiners;  

                                                                                                                                          



rather, the court decided that under our decision in  Contreras v. State, the "relevant  

                                                                                                                                            



scientific community" includes the "professions which have studied and/or utilized [the  

                                                                                                                                                      



technique]  for  clinical,  therapeutic,  research  and  investigative  applications"  and  

                                                                                                                                                     



            100         See, e.g.      ,  Willis v. State        , 57 P.3d 688 (Alaska App. 2002);                            Leonard v. State              ,  



655 P.2d 766 (Alaska App. 1982).                   



            101         Leonard, 655 P.2d at 770; see also Willis, 57 P.3d at 692.  

                                                                                                                         



            102          Willis, 57 P.3d at 692; see also Leonard, 655 P.2d at 771.  

                                                                                                                         



            103         760 P.2d 1030 (Alaska App. 1988).  

                                                                              



            104         Id. at 1031-32.  

                                   



                                                                           -28-                                                                    7326
  


----------------------- Page 29-----------------------

specifically excludes "those whose involvement with [the technique] is strictly limited                                                          



                                          105  

to that of practitioner."                                                                                                          

                                                 Applying that standard, the court of appeals concluded that  



                                                                                                                                             

there was "considerable controversy over the reliability of polygraphs as a scientific  



                                                                                                                                                  

process," and that "Haakanson ha[d] not established that there [was] a consensus among  

                                                                                                                   106  The court of appeals  

                                                                                                                                                 

the experts regarding the reliability of the polygraph technique." 



also expressed "concern[] about the disproportionate impact polygraph evidence may  

                                                                                                                                                      

have  on  a  jury."107                  Citing  its  previous  concerns  about  polygraph  testimony  being  

                                                                                                                               



"perceived by the jury as a complete answer to questions of credibility" and its potential  

                                                                                                                                              



to "lull the jury into a false sense of security," the court of appeals held that "[a]ny  

                                                                                                                                                  



evidence which has such great potential to mislead or prejudice the jury should be  

                                                                                                                                                         

excluded unless its probative value clearly outweighs the prejudice."108                                                              The court of  

                                                                                                                                                          



appeals found the "probative value of polygraph evidence [to be] insubstantial because  

                                                                                                                                                



the polygraph has not been proven reliable"; thus, the polygraph evidence in that case  

                                                                                                                                                                

was inadmissible.109  

         



                        2.          Polygraph evidence under Daubert in other states  

                                                                                                                          



                        Other jurisdictions that apply the Daubert test have also rejected evidence  

                                                                                                                                              



based on the CQT method.  For example, in State v. Porter the Connecticut Supreme  

                                                                                                                                              



Court adopted Daubert  as the relevant standard for scientific evidence and upheld its  

                                                                                                                                                          



            105         Id.  at 1034 (quoting                Contreras v. State              , 718 P.2d 129, 135 (Alaska 1986)).
                



            106         Id.  at 1035.
   



            107         Id.
   



            108         Id.  (quoting  Leonard v. State                      , 655 P.2d 766, 770 (Alaska App. 1982)).
                      



            109         Id.
  



                                                                           -29-                                                                     7326
  


----------------------- Page 30-----------------------

                                                                                                                   110  

traditional   per   se   ban   on   admitting   polygraph   evidence.                                                      Jurisdictions   that   have  

adopted  Daubert  and maintain a per se exclusion of polygraph evidence include Idaho,                                                                               111  



                             112                   113                     114                                                    115  and the Court of  

                                                                                 the District of Columbia,                                                           

West Virginia,                     Hawaii,              Vermont,                                              

            

                                                             116  In  United States v. Scheffer the Supreme Court held  

Appeals for the Fourth Circuit.                                                                                                                                  



             110          State v. Porter              , 698 A.2d 739, 742 (Conn. 1997).                      



             111          State   v.   Perry,   81   P.3d   1230,   1235-36   (Idaho   2003)   (concluding   that  



polygraph evidence is "useful to bolster [the examinee's] credibility but do[es] not                                                                               

provide the trier of fact with any additional information" and that it is inadmissible                                                           

"because it does not assist the trier of fact to understand the evidence or to determine a                                                                              

fact in issue").     



             112          State  v.  Beard,  461  S.E.2d  486,  492-493  (W.  Va.  1995)  ("Despite  

                                                                                                                                                      

Appellant's noteworthy efforts at trying to elevate the image of polygraph results, we  

                                                                                                                                                                    

remain  convinced  that  the  reliability  of  such  examinations  is  still  suspect  and  not  

                                                                                                                                                                   

generally accepted within the relevant scientific community. Therefore, any speculation  

                                                                                                                                                    

that  our  position  .  .  .  regarding  polygraph  admissibility  is  in  question  due  to  the  

                                                                                                                                                                   

Daubert/ Wilt rulings is put to rest today." (emphasis in original) (footnote omitted)).  

                                                                                                                                                   



             113          State v. Okumura, 894 P.2d 80, 94 (Haw. 1995) (reaffirming Hawaii's per  

                                                                                                                                                                    

se exclusion of polygraph evidence), abrogated on other grounds by State v. Cabagbag,  

                                                                                                                                                    

277 P.3d 1027, 1038-39 (Haw. 2012).  

                                                               



             114          Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 46 A.3d 891, 897-901 (Vt.  

                                                                                                           

2012) (affirming denial of Daubert hearing on polygraph reliability on grounds that even  

                                                                                                                                                                 

assuming polygraph evidence satisfies Daubert it is still inadmissible under Rule 403).  

                                                                                                                                                                



             115          See Rowland v. United States, 840 A.2d 664, 673-74 (D.C. 2004) (citing  

                                                                                                           

Proctor v. United States, 728 A.2d 1246, 1249 (D.C. 1999) and Peyton v. United States,  

                                                                                                                                                             

709 A.2d 65, 65 (D.C. 1998)) (excluding polygraph testimony).   The D.C. Court of  

                                                                                                                                                                     

Appeals only recently adopted Daubert, see Motorola Inc. v. Murray, 147 A.3d 751,  

                                                                                                                           

756-57  (D.C.  2016),  and  it  does  not  appear  to  have  since  heard  a  case  involving  

                                                                                                                                                      

polygraph testimony.  

                      



             116          See United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th. Cir. 2003).  In  

                                                                                                                                                                      

addition,  the  Sixth  Circuit  has  held  that,  although  it  "has  never  adopted  a  per  se  

                                                                                                                                                                     

                                                                                                                                               (continued...)  



                                                                                 -30-                                                                           7326
  


----------------------- Page 31-----------------------

that a per se rule excluding polygraph evidence does not infringe on the constitutional     



                                                                                                        117  

rights   of     an   accused   to   present   evidence   in   his   defense;                                                             

                                                                                                              implied  in  the  Court's  



                                                                                                                                               

reasoning  is  the  corollary  conclusion  that  such  a  rule  is  also  not  inconsistent  with  

                118   According to one treatise on scientific evidence, a majority of states still  

Daubert .                                                                                                                                        



followed this "traditional rule" of excluding  polygraph  evidence as of 2012,  when  

                                                                                                                                             

Alexander's evidentiary hearing took place.119  The superior court in Alexander's case  

                                                                                                                                                



surveyed polygraph admissibility in "all 50 states and the federal circuits" at the time of  

                                                                                                                                                    



the hearing and found that "30 jurisdictions still have a per se ban, 17 admit polygraph  

                                                                                                                                      



results based upon stipulation, and 12 leave the decision to the trial court's discretion on  

                                                                                                                                                   



a case-by-case basis."  

                           



                       Of the jurisdictions that allow polygraph evidence based on the judge's  

                                                                                                                                          



discretion, New Mexico is a notable example.  Unlike the Alaska Evidence Rules, the  

                                                                                                                                                  



New Mexico Rules of Evidence (NMRE) specifically address polygraph examinations.  

                                                                                                                                                         



Under NMRE 11-707, the opinion of a polygraph examiner "as to the truthfulness of a  

                                                                                                                                                     



person's answers in a polygraph examination may be admitted" if a number of specific  

                                                                                                                                          



            116        (...continued)  



                                                                                                                                   

prohibition  on  the  introduction  of  polygraph  evidence,"  it  "generally  disfavor[s]  

                                                                                                                                                  

admitting the results of polygraph evidence" because "the results of a polygraph are  

                                                                                                                                                         

inherently unreliable."   United States v. Thomas, 167 F.3d 299, 308 (6th Cir. 1999).  

                                                                                                                                      

Furthermore, the Sixth Circuit has "repeatedly held that 'unilaterally obtained polygraph  

                                                                                                                                        

evidence is almost never admissible under Evidence Rule 403.' "  Id. at 309 (quoting  

                                                                                                                                                    

 United  States  v.  Sherlin,  67  F.3d  1208,  1216  (6th  Cir.  1995),  and  citing  Wolfel  v.  

                                                                                                                                                

Holbrook, 823 F.2d 970, 973-75 (6th Cir. 1987); Barnier v. Szentmiklosi, 810 F.2d 594,  

                         

597 (6th Cir. 1987)).  



            117        523 U.S. 303, 317 (1998)  

                                                         



            118        See id at 309-12.  

                                        



            119        See GIANNELLI, ET AL., supra note 4  804[b], at 465 & n.173.  

                                                                                                                          



                                                                        -31-                                                                  7326
  


----------------------- Page 32-----------------------

                                                                                                                                                                                                             120  

criteria regarding the examiner's qualifications and the test procedure are met.                                                                                                                                     In  Lee  



v.  Martinez  the New Mexico Supreme Court held that when the expert's qualification                                                                                                                 



and the examination meet this rule's standards, "polygraph examination results are                                                                                                                                           



 sufficiently reliable to be admitted" under the                                                                          Daubert  standard and NMRE 11-702 -                                                                   

                                                                                                                                                          121        However, the court also  

New Mexico's equivalent to Alaska Evidence Rule 702.                                                                                                                                                                       



concluded that NMRE 11-707 only makes polygraph evidence admissible subject to the  

                                                                                                                                                                                                                               

discretion of the trial judge's balancing of probative value against unfair prejudice.122  

                                                                                                                                                                                                   



                                    3.                The  Daubert  factors, applied   



                                    Both the Supreme Court in                                               Daubert  and our court in                                           Coon  explained that   



the listed factors should not be seen as a determinative checklist, but that the standard is                                                                                                                                      

                                     123  Because the Daubert factors are a good starting point, and the superior  

a flexible one.                                                                                                                                                                                                  



court started with them in Alexander , these factors will be discussed in turn here.  

                                                                                                                                                                                                           



                                                     i.                Empirical testing  

                                                                                                     



                                    The first relevant question is whether CQT polygraphy can be, and has  

                                                                                                                                                                                                                             



been, empirically tested.  The superior court in Alexander  found that "the hypotheses  

                                                                                                                                                                                                        



underlying the polygraph can be and ha[ve] been tested repeatedly, including tests by  

                                                                                                                                                                                                                               



both Drs. Raskin and Iacono." In light of the record before us and the scientific literature  

                                                                                                                                                                                                               



available, this finding is at least partly erroneous.  

                                                                                                       



                  120               N.M. R. Evid. 11-707 (2018).                                



                  121  

                                                                                                              

                                    96 P.3d 291, 293-94 (N.M. 2004).  



                  122  

                                                   

                                   Id. at 294.  



                  123              Daubert v. Merrell Dow Pharm., Inc.                                                                , 509 U.S. 579, 594-95 (1993) ("The                                              



                                                                                                                                                                                                                                

inquiry envisioned by Rule 702 is, we emphasize, a flexible one . . . . The focus, of  

course, must be solely on principles and methodology, not on the conclusions that they                                                                                                                                     

generate.");  State v. Coon                                          , 974 P.2d 386, 395 (Alaska 1999) ("The factors identified in                                                                                               

Daubert provide a useful approach . . . .  Other factors may apply in a given case.").  

                                                                                                                                                                                                            



                                                                                                              -32-                                                                                                       7326
  


----------------------- Page 33-----------------------

                               It is true that Dr. Raskin and Dr. Iacono both testified about a number of                                                                                            



studies - conducted by them and others - that have tested the practical application of                                                                                                               



CQT polygraphy.                            But one central criticism that Dr. Iacono's testimony raised was the                                                                                    



lack of studies testing the psychological hypotheses that serve as the underlying premise                                                                                               



of polygraph                     testing.     For   a CQT polygraph                                           test to          yield  reliable   inferences about   

                        124 it must be the case that (1) deception on relevant and comparison questions  

deception,                                                                                                                                                                          



producedifferentpsychologicalstates;(2)thesepsychological states producemeasurably  

                                                                                                                                                                                



different physiological responses; (3) thesephysiological responses include the ones that  

                                                                                                                                                                                                  



the polygraph instrument measures; (4) these physiological responses are unlikely to  

                                                                                                                                                                                                     



arise from causes other than deception; (5) the scoring system captures the physiological  

                                                                                                                                                                           



differences relevant to deception; and (6) examiners accurately assign conclusions of  

                                                                                                                                                                                                     

                                                                                                                                                                  125  Many of these  

deception or honesty to certain score values when they interpret scores.                                                                                                                      

                                                                                                                                                   



assumptions and hypotheses appear not to have been tested; even more important, some  

                                                                                                                                                                                              



may not be readily testable.  

                                                                  



                               In particular, CQT polygraph examinations are based on the theory that  

                                                                                                                                                                                                 



while  a  truthful  person  will  respond  more  strongly  to  the  comparison  questions,  a  

                                                                                                                                                                                                      



deceptive person will have a stronger reaction to the relevant questions.   Dr. Iacono  

                                                                                                                                                                                         



criticized this as an unfounded assumption, arguing for example that a truthful person  

                                                                                                                                                                                          



might  react  strongly  to  the  relevant  questions  due  to  the  implications  of  a  false  

                                                                                                                                                                                              



accusation, while a guilty person outside of laboratory studies might have a reduced  

                                                                                                                                                                                     



                124            This is the concept of                           criterion validity                      , or the degree to which an empirical                        



measure actually "matches a phenomenon that the test is intended to capture."                                                                                                            NAT 'L  

RESEARCH  COUNCIL,  supra  note 6, at 31.                                                



                125            See id. at 67.  

                                                      



                                                                                                -33-                                                                                          7326
  


----------------------- Page 34-----------------------

                                                                                                                                                                                                                                                                                                         126  

reaction to the relevant questions due to the phenomenon of habituation.                                                                                                                                                                                                                                           On those   



grounds, Dr. Iacono concluded that "the CQT has . . . a weak theoretical foundation."                                                                                                                                                                                                                                                                           



He testified that this underlying theory has not been properly tested, in part because                                                                                                                                                                                                                                     



laboratory studies cannot duplicate all of the considerations that might be relevant in the                                                                                                                                                                                                                                                     



field - like habituation or a truthful examinee reacting to the relevant questions out of                                                                                                                                                                                                                                                          



fear   of   being   falsely   accused   - and                                                                                                               in   part   because   field   studies  have   difficulties  



establishing the "ground truth" of whether an examined person was actually                                                                                                                                                                                                                                                          lying.   



Determining ground truth presents practical problems that are difficult, perhaps even                                                                                                                                                                                                                                                   



impossible,   to   overcome,  meaning   that   true   accuracy   rates   may   not   be   empirically  



verifiable.   Dr. Iacono testified that many field studies focus on criminal cases and use                                                                                                                                                                                                                                                    



confessions to determineground truth, but noted that this is problematic because whether                                                                                                                                                                                                                                    



or   not   a   defendant   passes   or   fails   a   polygraph   exam   affects   how   likely   he   is   to  

 subsequently confess.                                                                  127  



                           126                        The term "habituation" refers to a "decline in responsiveness to a stimulus                                                                                                                                                                                     



due to repeated exposure."                                                                                      Habituation, A                                                     MERICAN   HERITAGE   DICTIONARY   (5th ed.   

2014).    In the context of a polygraph test administered to a criminal defendant, this                                                                                                                                                                                                                                                     

phenomenon could influence the test results because the relevant questions on the test                                                                                                                                                                                                                            

are directed at the same conduct the defendant has already been accused of and charged                                                                                                                                                                                                                                      

with:  "[I]f the individual has discussed the crime at length or on numerous occasions,                                                                                                                                                                                

they may have become habituated to talking about the case and no arousal is detected."                                                                                                                                                                                                                                                                          

Erin M. Oksol & William T. O'Donohue,                                                                                                                                            A Critical Analysis of the Polygraph                                                                                                                         ,   in  

HANDBOOK OF  FORENSIC  PSYCHOLOGY  601, 621 (WilliamO'Donohue                                                                                                                                                                                                                           &Eric Levensky               

eds., 2003);                                    see also Lee v. Martinez                                                                            , 96 P.3d 291, 318 (N.M. 2004).                                                                                                    



                           127                        Confessions may also be unreliable measures of ground truth for other  

                                                                                                                                                                                                                                                                                                                                      

reasons.  The Innocence Project reports that of the more than 360 DNA exoneration  

                                                                                                                                                                                                                                                                                                           

cases  in  the  United  States,  roughly  28%  involved  a  false  confession  in  the  initial  

                                                                                                                                                                                                                                                                                                                                  

conviction.                                           DNA  Exonerations  in  the  United  States,  INNOCENCE   PROJECT   (2017),  

                                                                                                                                                                                                                                  

https://www.innocenceproject.org/dna-exonerations-in-the-united-states/   (last   visited  

Oct. 16, 2018).                                                It is not possible to infer the overall rate of false confessions from this                                                                                                                                                                                                   

                                                                                                                                                                                                                                                                                                       (continued...)  



                                                                                                                                                                      -34-                                                                                                                                                              7326
  


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                             Several studies and surveys of polygraph research have reached similar                                                                        



 conclusions.   For example, a 2003 review of the scientific evidence on polygraphy by                                                                                               



the National Research Council concluded that "[p]olygraph research has not developed                                                                                



                                                                                                                                                                                     128  

 and tested theories of the underlying factors that produce the observed responses."                                                                                                        



 Similarly,  a more recent survey  of academic literature concluded  that "[i]t appears  

                                                                                                                                                                         



unlikely that the proponents of the CQT will be able to reconcile the theoretical flaws of  

                                                                                                                                                                                      

their technique in the foreseeable future."129  Although there have been numerous studies  

                                                                                                                                                                            



testing the practical applications of the comparison question technique, our review of the  

                                                                                                                                                                                    



record  and  the  available  academic  literature  reveals  no  studies  actually  testing  the  

                                                                                                                                                                                   



underlying psychological theories.  Ultimately, given the fact that certain assumptions  



 of polygraph testing not  only  are untested, but may be functionally  untestable, we  

                                                                                                                                                                                   



 conclude that this factor weighs decidedly against admitting polygraph testimony as  

                                                                                                                                                                                     



 scientific evidence.  

                      



                                           ii.            Peer review  

                                                                      



                             The superior court in Alexander found that CQT polygraphy has been the  

                                                                                                                                                                                    



 subject of various publications, many of which were peer reviewed.   This finding is  

                                                                                                                                                                                      



 amply supported by the record, and the State does not suggest otherwise.  However, as  

                                                                                                                                                                                      



the Supreme Court explained in Daubert, the mere fact of publication in a peer-reviewed  

                                                                                                                                                           



journal  is  not  itself  probative  of  a  technique's  validity;  rather,  peer  review  and  

                                                                                                                                                                                 



 "submission to the scrutiny of the scientific community" is relevant because "it increases  

                                                                                                                                                                       



               127           (...continued)  



                                                                                                                                                                       

 data, but it is enough to raise questions about how accurately confessions establish  

                  

 ground truth.  



               128           NAT 'L  RESEARCH  COUNCIL,  supra  note 6, at 2.                                                 



               129           Synnott et al., supra note 36, at 76.  

                                                                                                  



                                                                                         -35-                                                                                  7326
  


----------------------- Page 36-----------------------

                                                                                                                                                             130  

the   likelihood   that   substantive   flaws   in   the   methodology   will   be   detected."                                                                      As  



discussed above, the published studies on CQT testing have been subject to substantial                                                                 



scrutiny, and a vigorous debate has arisen about substantive flaws in the theoretical                                                                 



underpinnings of the technique.                                  Notwithstanding this debate, which has been ongoing                                       

                        131 the practice of CQT polygraph testing does not appear to have developed  

for decades,                                                                                                                                            



in  any significant way.                            Most of the studies cited  by  Dr.  Raskin in  support of the  

                                                                                                                                                                     



technique are from the 1980s and 1990s, with some dated as far back as the late 1970s;  

                                                                                                                                                               



and although the superior court's Daubert hearing was conducted in 2012, Dr. Raskin  

                                                                                                                                                      

did not cite to any studies published more recently than 2003.132   Thus, although studies  

                                                                                                                                                              



regarding CQT polygraphy have been published in peer-reviewed journals, it does not  

                                                                                                                                                                     



appear that this has resulted in the kind of refinement and development that makes  

                                                                                                                                                              



publication and peer review relevant to a Daubert analysis. For this reason, although the  

                                                                                                                                                                      



superior court in Alexander did not clearly err in finding that polygraph testing has been  

                                                                                                                                                                   



the subject of publication and peer review, we give this finding little weight.  

                                                                                                                                         



                                        iii.         Acceptable error rate  

                                                                                           



                           The superior court in Alexander found that the error rate of CQT polygraph  

                                                                                                                                                        



testing is "sufficiently reliable" to be acceptable.  The court reasoned that the studies  

                                                                                                                                                              



cited by Dr. Raskin showed an accuracy rate of 89% to 98%, while those cited by  

                                                                                                                                                                      



Dr. Iacono had accuracy rates from 51% to 98%, with an average of 71%.  Dr. Raskin  

                                                                                                                                                      



             130          Daubert v. Merrell Dow Pharm., Inc.                                        , 509 U.S. 579, 594-95 (1993).                 



             131          See United States v. Scheffer                           , 523 United States 303, 309-10 (1998) (citing                               



                                                                                                                                      

sources debating the validity of CQT polygraphy dating to the late 1980s).  



             132          Again, 2003 was the year the National Research Council concluded that  

                                                                                                                                                                    

polygraph research had not developed or tested the psychological theories assumed to  

                                                                                                                                     

underlie the physical responses the polygraph measures.  NAT 'L  RESEARCH  COUNCIL,  

                                                                                                                    

                                      

supra note 6, at ii, 2.  



                                                                                  -36-                                                                           7326
  


----------------------- Page 37-----------------------

                                                                                                                                

estimated that the overall accuracy rate of CQT polygraph testing was around 90%. The  



                                                                                                                      

court recognized a number of concerns that might affect the accuracy rate of polygraph  



                                                                                                                                  

exams in practice, including the "friendly examiner" hypothesis and the possibility of  



                                                                                                                              

examinees using countermeasures to "beat" the test.  But the court concluded that these  



                                                                                                                               

concerns "are already built in to the error rate" and are relevant to the weight the jury  



                                                           

should assign to the testimony, not to admissibility.  



                                                                                                               

                    As a preliminary matter, the superior court appears to have misunderstood  



                                                                                                                                 

Dr.  Iacono's  testimony.                As  discussed  above,  Dr.  Iacono  criticized  each  study  he  



                                                                                                                           

discussed, testifying that the accuracy rates reported in those studies were either invalid  



                                                                                                                      

or not applicable to practical applications of the CQT technique in the field; he concluded  



                                                                                                                                 

that "it's not possible to accurately estimate the error rate of the controlled question test  



                                                                                                                        

when it's used in real life applications." The court's conclusion that the various concerns  



                                                                                                                             

discussed are "already built in to the error rate" has no support in the record:  while  



                                                                                           

individual studies may have tested specific variables such as countermeasures, neither  



                                                                                          

expert cited any laboratory study that controlled for all of them.  



                                                                                                                                

                     Dr.  Iacono  also  testified  that  field  studies  on  polygraph  testing  are  



                                                                                                                         

unreliable  and   often   "contain  a  bias  of  potentially  serious  magnitude  toward  



                                                                                                                            

overestimating the accuracy" of the test. A typical study, according to Dr. Iacono, would  



                                                                                                                              

look at cases where the defendant took a polygraph test and later confessed; in such  



                                                                                                                                

cases,  the  polygraph  chart  would  be  blindly  rescored  and  then  compared  to  the  



                                                                                                                                   

confession.   But Dr. Iacono testified that failing a polygraph test often pressures a  



                                                                                                                                  

defendant into confessing, while passing the test substantially decreases the chance of  



                                                                                                    

a confession.  As such, he explained, field studies are subject to a substantial selection  



                                                                                                                      

bias:  a case is most likely to end up in the study only if the defendant failed a polygraph  



                                                                                                                                 

test and subsequently confessed.  When the study then rescores the polygraph chart, Dr.  



                                                                                                  

Iacono testified that it is not surprising the results exceed 90% accuracy.  



                                                               -37-                                                          7326
  


----------------------- Page 38-----------------------

                              In addition to potential flaws in the perceived accuracy rates of CQT tests,                                                                          



the empirical basis for polygraph examinations suffers from another fault:                                                                                          the lack of a            

                                           133   In the three cases currently before this court, each defendant was  

reliable "base rate."                                                                                                                                                                  



said to have passed his polygraph test; the relevant question for the factfinder is whether,  

                                                                                                                                                                             



given this fact, the defendant was likely truthful or whether the test was a false negative.  

                                                                                                                                                                                                 



To determine this likelihood, more information is required; specifically, information  

                                                                                                                                                                     



about the base rate of deceptive and truthful subjects.  

                                                                                                                        



                              The lack of a reliable base rate estimate was the underlying reason for the  

                                                                                                                                                                                         



Connecticut Supreme Court upholding its traditional per se ban on admitting polygraph  

                                                                                                                                                                         



                                                           134  

evidence in State v. Porter.                                      Noting "wide disagreement" about the accuracy rates for  

                                                                                                                                                                                         



"a well run polygraph exam," the court decided that, even if the estimates of polygraph  

                                                                                                                                                                         

                                                                                                                                                                                135  The  

proponents wereaccepted, the technique would still be "ofquestionablevalidity."                                                                                                        

                                                                                                                                                            



court cited a field study by Dr. Raskin indicating a sensitivity of 87% and a specificity  

                                                                                                                                                                       

                  136   "In other words, 13 percent of those who are in fact deceptive will be labeled  

of 59%:                                                                                                                                                                         

       



               133            The "base rate" refers to the probability "of the target condition in the                                                                                 



population or in the sample at hand - for security screening, this might refer to the                                                                                                   

proportion   of   spies   or   terrorists   or   potential   spies   or   terrorists   among   those   being  

screened."   NAT 'L  RESEARCH   COUNCIL,  supra  note 6, at 46.                                                                         A sample population of     

criminal suspects, for example, may have a higher base rate of deceivers than other                                                                                                

sample populations.                           Id.  at 47.   



               134            698 A.2d 739, 766-69 (Conn. 1997).  

                                                                                                 



               135           Id. at 764, 766.  

                                                      



               136            "There are two distinct aspects to accuracy. One is sensitivity. A perfectly  

                                                                                                                                                                            

sensitive indicator of deception is one that shows positive whenever deception is in fact  

                                                                                                                                                                                       

present:  it is a test that gives a positive result for all the positive (deceptive) cases; that  

                                                                                                                                                                                       

is,  it  produces  no  false  negative  results.                                                   The  greater  the  proportion  of  deceptive  

                                                                                                                                                                         

examinees that appear as deceptive in the test, the more sensitive the test.  Thus, a test  

                                                                                                                                                                                       

                                                                                                                                                                 (continued...)  



                                                                                           -38-                                                                                     7326
  


----------------------- Page 39-----------------------

as truthful . . . [and] 41 percent of subjects who are, in fact, truthful will be labeled as                                                              



                     137  

deceptive."                                                                                                                                  

                            The court further reasoned that, even if a test is accurate, its probative  



                                                    

value as scientific evidence depends on its "predictive value" - the likelihood "that a  



                                                                                                                                                         

person really is lying given that the polygraph labels the subject as deceptive" and the  



                                                                                                                                                          

likelihood "that a subject really is truthful given that the polygraph labels the subject as  

                            138   This predictive value, the court explained, depends not only on the  

                                                                                                                                                        

not deceptive." 



accuracy of the test but also "on the 'base rate' of deceptiveness among the people tested  

                                                                                                                                                    

by the polygraph."139   Because the Porter court found a "complete absence of reliable  

                                                                                                                                                



data on base rates," it concluded that it had no possible way of assessing the test's  

                                                                                                                                                    

probative  value.140                  With  that  in  mind,  the  court  concluded  that  even  if  polygraph  

                                                                                                                                           



            136         (...continued)  



                                                                                                                                                

that  shows   negative  when  an  examinee  who  is  being  deceptive  uses  certain  

                                                                                                                                                          

countermeasures  is  not  sensitive  to  deception.                                            The  other  aspect  of  accuracy  is  

                                                                                                                                                   

specificity.  An indicator that is perfectly specific to deception is one that always shows  

                                                                                                                                                          

negative when  deception is absent (is positive only when deception is present).   It  

                                                                                                                                                      

produces no false positive results. The greater the proportion of truthful examinees who  

                                                                                                                                                

appear truthful on the test, the more specific the test.  Thus, a test that shows positive  

                                                                                                                                                           

when a truthful examinee is highly anxious because of a fear of being falsely accused is  

                                                                                                             AT 'L  RESEARCH   COUNCIL,  

not specific to deception because it also indicates fear."  N 

                              

supra note 6, at 38.  



            137         Porter, 698 A.2d at 766.              



            138         Id.  



            139         Id. at 766-67 (footnote omitted).  

                                                                    



            140         Id.   at 768.          As the       Porter   court described, "[t]he base rate is important                         



because it can greatly accentuate the impact of the false positive and false negative rates                                                           

arising from any given specificity and sensitivity values." Id. at 767 n.53. For example,  

                                                                                                                                              

"[i]f one assumes base rates progressively higher than 50 percent, then, by definition, the  

                                                                                                                                                         

number  of  deceptive  examinees  increases  and  the  number  of  honest  examinees  

                                                                                                                           

                                                                                                                                     (continued...)  



                                                                           -39-                                                                     7326
  


----------------------- Page 40-----------------------

evidence   satisfies   the   Daubert   standard,   which  it  assumed   without   deciding,   the  



probative   value   of   such   evidence   is   very   low   and   substantially   outweighed   by   its  

prejudicial effects.        141  



                                                                                                                             

                    As in Porter, the record before us is devoid of reliable data about the base  



                                                                                                                               

rate of deceptiveness among polygraph examinees outside of lab tests; we also have not  



                                                                                                                              

found such data in academic literature.  Absent some reliable estimate of this base rate  



                                                                                                                                

there is no way to estimate the reliability of polygraph results, and thus no way to  



                                                                                                                               

determine whether any particular accuracy rate is acceptable.   We conclude that the  



                                                                                                                                

superior court clearly erred in finding the error rate of CQT polygraph testing to be  



                                                                                                                    

"sufficiently reliable."   Accordingly, this factor weighs against admitting polygraph  



evidence.  



                                                                 

                              iv.       Standards for operation  



                                                                                                                 

                    Under Daubert the court should consider "the existence and maintenance  

                                                                              142   The superior court in Alexander  

                                                                                                                    

of standards controlling the technique's operation." 



found "that although there is no single published protocol that all polygraphers must  

                                                                                                                            



follow, that nonetheless there are published protocols and training criteria" that are  

                                                                                                                               



sufficiently utilized so as to be considered standard.  Additionally, the court found there  

                                                                                                                            



was  no  indication  that  "Dr.  Raskin  did  not  properly  administer  the  two  exams."  

                                                                                                                       



                    Standards do control some aspects of polygraph testing and many states  

                                                                                                                           



          140       (...continued)  



                                                                                                                             

decreases." Id.  Thus, "even holding specificity and sensitivity rates constant, as the base  

                                                                                                                                

rate  increases  the  number  of  false  negatives  (the  labeling  of  deceptive  subjects  as  

                                                                                                                                 

truthful) also rises and the number of false positives (the labeling of truthful subjects as  

                             

deceptive) falls."  Id.  



          141       Id. at 768-69  

                              



          142       Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594-95 (1993).  

                                                                                                                  



                                                              -40-                                                         7326
  


----------------------- Page 41-----------------------

also have statutes governing polygraph test administration, examinees' privacy rights,   



                                                               143  

and   licensing   of   examiners.                                                                                                                                              

                                                                         To  describe  the  standards  for  administration  of  



                                                                                                                                                          

polygraphs, Dr. Raskin pointed to New Mexico Evidence Rule 11-707 as providing  



                                                                                                                                                                     

"clear standards for tests to be offered as evidence" and described the rule as "a superior  



                                                                                                                                                                    

model  for  national  standards."                                      He  also  referenced  standards  adopted  by  national  



                                                                                                                                       

polygraph organizations and standards imposed by government agencies.  



                                                                                                                                                                                  

                            Rule 11-707 provides that a polygraph examiner's opinion testimony is  



                                                                                                                                                                   

admissible if the examiner is qualified, the scoring method used is "generally accepted  



                                                                                                                                                             

as reliable by polygraph experts," the examiner was informed of relevant information  



                                                                                                                                                                        

regarding the examinee prior to the exam, two or more relevant questions were asked,  

                                                                                                                                          144      However,  what  

                                                                                                                                                  

three  or  more  charts  were  taken,  and  the  exam  was  recorded. 



constitutes a "generally accepted" scoring method is not further defined.  A "relevant  

                                                                                                                                                                  



question" is simply defined as "a clear and concise question which refers to specific  

                                                                                                                                                                     



objective facts directly related to the purpose of the examination and does not allow  

                                                                                                                                                     

                                                               145  Even if we were to conclude that these standards are  

rationalization in the answer."                                                                                                                                                

                                

sufficient to  "control[] the technique's operation,"146   Rule 11-707 is  not a national  

                                                                                                                                                                    



standard.  As both the court in Alexander and Dr. Raskin acknowledged, there is no one  

                                                                                                                                                                              



"controlling"industry standard and theremaybegreat differencesin "generallyaccepted  

                                                                                                                                                                    



principles."  



              143            See, e.g.        , La. Stat. Ann.  37:2831-2854 (2018); Me. Rev. Stat. tit. 32,                                                                



7351-7390 (2018); Nev. Rev. Stat. Ann.  648.183-.199 (West 2017); Or. Rev. Stat.                                                                                          

Ann.  703.010-.310 (West 2018); Vt. Stat. Ann. tit. 26,  2901-2910 (2018).                                                                                            



              144           N.M. R. Evid. 11-707(C).  

                                                            



              145           Id.  11-707(A)(4).  

                                    



              146           Daubert, 509 U.S. at 594.  

                                                                          



                                                                                      -41-                                                                                 7326
  


----------------------- Page 42-----------------------

                               It is clear that some aspects of the test lack standards, or at least consistent                                                                 



                                                                                                                                                        147  

standards.   Specifically, the formulation and ordering of questions,                                                                                                                             

                                                                                                                                                               the conducting of  

                                                   148                                                                            149   and  the  evaluation  of  the  

                                                          the  choice  of  scoring  system,                                                                                                    

                                                                                                                

                           

the  pretest  interview, 

                                                   150  leave much to the examiner's discretion.  While the superior  

examinee's demeanor                                                                                                                                                                 

                            



court's finding regarding CQT protocols was not clearly erroneous, we conclude that the  

                                                                                                                                                                                                 



lack  of  clear  controlling  standards  for  CQT  administration  weighs  against  its  

                                                                                                                                                                           



admissibility.  

                                  



                                              v.             General acceptance  

                                                                                   



                               Thesuperior court found that therecord is"inconclusiveas to whether there  

                                                                                                                                                                                            



is general acceptance within the relevant scientific community."  The State argues that  

                                                                                                                                                                                               



CQT polygraphy has not gained general acceptance, while the defendants appear to  

                                                                                                                                                                                                  



argue primarily that "inconclusiveness on this factor goes to the weight and not the  

                                                                                                                                                                                               



admissibility of the evidence."  

                                              



               147             See   Synnott et al.,                      supra  note 36, at 68 ("The number of total questions                                                  



asked, the order in which . . . questions are placed and whether any or all questions are                                                                                                       

repeated   .   .   .   [depend]   on   the   situation,   examiner's   preference   and   the   school   the  

examiner subscribes to.").                       



               148            Id. at 67 ("[D]epending on the situation, examiner's personal preferences  

                                                                                                                                                                            

and the 'polygraph  school'  the examiner subscribes  to, . .  .  [much  of] the pre-test  

                                                                                                                                                                                     

interview can vary greatly . . . . [and it] can last anywhere between 30 min and 2 h  

                                                                                                                                                                                                    

. . . .").  

       



               149            Id. at 68 (describing examiner discretion to set cut-off points for numerical  

                                                                                                                                                                                 

scoring systems and outlining several types of computerized scoring systems).  

                                                                                                                                                               



               150             See NAT 'L   RESEARCH   COUNCIL,   supra   note 6, at 16 ("[T]he polygraph                                                                      

                                         

examiner is likely to form impressions of the examinee's truthfulness, based on the                                                                                                            

examinee's demeanor . . . . These impressions are likely to affect the conduct and                                                                                                            

interpretation of the examination and might, therefore, influence the outcome and                                                                                                   

the validity of the polygraph examination.").                       



                                                                                               -42-                                                                                        7326
  


----------------------- Page 43-----------------------

                                   Both   Dr.   Raskin   and   Dr.   Iacono   testified   about   a   variety   of   surveys  



regarding the acceptance of polygraphy.                                                                      Dr. Iacono also testified about a number of                                             



scientific publications that conclude polygraph examinations are unreliable.  Based on                                       



a   review   of   this   evidence   and   literature,   it   appears   that   the   parts   of   the   scientific  



community who regularly utilize polygraphy have - perhaps unsurprisingly - widely                                                                                                                                 



acceptedthetechnique,                                        whilethebroader scientificcommunityviews thetechniquemore                                                                                                 

skeptically.151  



                                   In light of this record and the scientific literature, the superior court's  

                                                                                                                                                                                                                



finding that it is "inconclusive" whether polygraphy is generally accepted is not clearly  

                                                                                                                                                                                                                  



erroneous. But as the Supreme Court noted in Daubert, " 'a known technique which has  

                                                                                                                                                                                                                           



been able to attract only minimal support within the community' may properly beviewed  

                                                                                                                                                                                                                 

                                              152  The Supreme Court's comment appears particularly apt in this case.  

with skepticism."                                                                                                                                                                                                      

              



Given the decades-long debate over the validity of polygraph evidence, the apparent lack  

                                                                                                                                                                                                                         



of  development  in  the  technique  as  a  response  to  that  debate,  and  the  apparently  

                                                                                                                                                                                                      



lackluster support for the technique outside the community of practicing polygraph  

                                                                                                                                                                                                        



examiners,  we  conclude  that  this  factor  also  weighs  against  admitting  polygraph  

                                                                                                                                                                                                       



evidence.  



                                                     vi.              Other relevant factors  

                                                                                                                 



                                   As noted above, both Daubert and Coon recognize that other factors than  

                                                                                                                                                                                                                        



                  151              We note that under                                 Contreras v. State                               , 718 P.2d 129, 135 (Alaska 1986),                                         



the "relevant scientific community" for a general acceptance analysis excludes "those                                                                                                                             

whose involvement with [the technique] is strictly limited to that of practitioner."                                                                                                                                  This  

would not exclude those who, like Dr. Raskin, both conduct research into polygraph                                                                                                                      

testing and administer polygraph examinations. But it would exclude those who do only                                                                                                                                   

the latter.   



                  152              Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594 (1993) (quoting  

                                                                                                                                                                                                             

 United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)).  

                                                                                                                                                      



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those discussed above may be relevant in some                                            cases.    For example,                 Coon   briefly  



mentions the possibility of " 'independent' research funded by tobacco companies"                                                 

                                                                                                               153   This  is  a  relevant  

carrying   with   it   "the   danger   of   a   hidden   litigation   motive."                                                          



consideration in this case.  Dr. Raskin, who testified at the Daubert hearing in favor of  

                                                                                                                                                    



admitting  polygraph  evidence,  is  himself  a  practicing  polygraph  examiner  and  has  

                                                                                                                                                 



financial ties to one manufacturer of polygraphs, earning royalties from the sale of  

                                                                                                                                                   



polygraph machines he invented.  Many of the studies cited as approving polygraph  

                                                                                                                                     



testing as scientifically valid were performed  by  Dr.  Raskin or by other practicing  

                                                                                                                                     



examiners,  and  a  number  of  the  studies  were  published  in  polygraph  industry  

                                                                                                                                        



publications.  While we do not entirely discount this research and have examined it on  

                                                                                                                                                   



its merits, we recognize that the polygraph industry has an obvious financial interest in  

                                                                                                                                                    



confirming polygraph testing as valid and promoting its use and admissibility in court.  

                                                                                                                                             



                                   vii.        Conclusion  



                       In light of each of the factors discussed above, we conclude that on the  

                                                                                                                                                  



evidence before us, CQT polygraph testing has not been shown to satisfy the standard  

                                              



for scientific evidence set forth in Daubert  and  Coon.   We reiterate what we said in  

                                                                                                                                                    



Pulakis :  "polygraph proponents have not yet developed persuasive data demonstrating  

                                                                                                                               

its reliability."154           Absent such data, we are unconvinced that the opinion of polygraph  

                                                                                                                                      



examiners amounts to "scientific, technical, or other specialized knowledge" that "will  

                                                                                                                                               



assist the trier of fact to understand the evidence or to determine a fact in issue," as  

                                                                                                                                                   



required under Evidence Rule 702. Our opinion here does not mean that CQT polygraph  

                                                                                                                                      



testing will never be sufficiently reliable to pass muster as scientific evidence, but absent  

                                                                                                                                             



substantial evidence demonstrating that CQT polygraph testing produces reliable results  

                                                                                                                                            



            153        State v. Coon           , 974 P.2d 386, 395 (Alaska 1999).                



            154        Pulakis v. State, 476 P.2d 474, 479 (Alaska 1970).  

                                                                                                     



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based on sound, verifiable science, the results of CQT polygraph examinations cannot                                                                                                                                                                                                                                                                          



be admitted in evidence over objection.                                                                                                                                                                                                                                                      



V.                                              CONCLUSION  



                                                                                                We REVERSE the judgment of the court of appeals affirming the superior                                                                                                                                                                                                                                                                                                                                                                                                        



 court's order admitting Alexander's polygraph evidence.  We REVERSE the superior   



 court's order admitting Sharpe's polygraph evidence. We AFFIRM the superior court's                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    



 order excluding Holt's polygraph evidence.                                                                                                                                                                                                                                                                                We REMAND Alexander's and Sharpe's                                                                                                                                                                                                             



 cases to the superior court for further proceedings consistent with this opinion relating                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



to their respective criminal charges.                                                                                                                                                                                                                                     We also REMAND Holt's case to the court of                                                                                                                                                                                                                                                                                                    



 appeals for further proceedings as appropriate on Holt's remaining points of appeal. We                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



 do not retain jurisdiction.                                                                     



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