BACKGROUND MATERIAL ON THE POLYGRAPH

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP62-00631R000400030016-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: December 16, 2016
• Document Release Date: February 15, 2005
• Sequence Number: 16
• Publication Date: February 8, 1957
• Content Type: MFR

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8 February 1957
SUBJECT: Background Material on the Polygraph
The citations listed below may be helpful relative
to the Agency's use of the polygraph.
(a) "Critical analysis of the theory, method and
limitations of the lie-detector"
4.6 Journal of Criminal law, p. 414 (1955)
(b) "Scientific evaluation of the 'lie-detector'
40 Iowa Law Review, pp. 440-58 (1955)
(c) "Polygraphic truth tests" -- symposium
22 Tennessee Law Review, pp. 711-74, 91623 (1953)
(d) "Polygraph lie-detector: its psychological'- basis,
reliability and admissability"
16 Alabama law Review, pp. 209-24 (1953)
(e) "Lie-detector in court"
4 DePaul Law Review, pp. 31-42 (1954)
(f) "Lie-detector -- aid to fact finding"
2 New York Law Student Law Review, pp. 65-73 (1953)
(g) "Legal uses of the lie-detector"
1 St. Louis University Law Review, pp. 299-311 (1951)
(h) "The 'fourth degree' : the lie-detector"
5 Vanderbilt law Review, PP. 549-59 (1952)
(i)
(J)
"Deception detection and the law"
11 University of Pittsburgh Law Review, pp. 210-27 (1950)
"Lie-detector--evidence, discussion and proposals"
29 Cornell law Quarterly, pp. 535-45 (1944)
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(k) "Lies and their detection"
16 Tennessee Law Review, pp. 856-65 (1941)
(1) "Lie-detectors--extra judicial investigations and the courts"
48 West Virginia Law Quarterly, X37-46 (1941)
STATINT
OGC RJB:bb
Dis ribution
tL - Subject
1 - Signer
1 - Chrono
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LU,-DJ TECTCH TESTS ADS? "FR OM Ca" THE VILL" IN OMMAR
An accountant employed by a fi=me a in 043marV was;
accused by his employer of having embesr d 5760- Dew Mgrk
(about $15W) and of frig a bta glary in attempt to Conceal, the
theft. The accused denied the accusations, and to pr his innocence
he offered to take a lietetectc,. test if ore could be arranged. A
test was given bar the American military at the request of the local
public prosecutor, and the results apparently indicated that the
accused was guilty of the affe . Pr cipa 2y on the basis of those
results# the Oqaoyee was convicted of embezzlement and the "sim ton
Of a criminal offense," Upon appeals the Conviction was r"wood by
the Buradesgerichtehof f the highest court of test may, Aaoosrding
to the Supreme Courts basic principles of German criminal law prohibit
the use of lie-detector tests because they encroach Mm the freedom
of the defendant to form a decision and to act according to his own
viii.
The Supra Gou rt,. although admitting that the first duty of a
court in a criminal proceeding is to dater the truth, held that
the search for the truth must be conducted in acco rdanCe with
established legal principles. The accused is a party to, rather than
the object of# a Criminal proceeding, and he cannot be subjected to
any searches or other limitations which are not provided for by law,
Moreover, law enforcement agencies have no greater liberty than the
courts in e.nirg an accused because he has; an inviolable right at
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.very stage of the proceddir s to a eJ hiss a decision with respect
to his answer to the criminal chap, no accused cannot be forced
to cooperate with officials in the Bch for the truth, This
freedom of an accused is based upon principles ct constitutional
law and crix!ri.nel. procedures,, as well as upon the concept that an
individual Is a self-accountable moral personality. Ia ir. ementa
upon this freedom of the will are prohibited regardless of the accuseda's
consent to the violation. it was this right of the accuse d to decide
whether and how to answer every question that the Supra Court held
to be irreconcilable with the application of a lie-detector test.
The reasoning behind the decision is this t During the lie-detector
tests the accused may vol,untariiy give answers to the questions presented;
however, at the same time, his "true" arneweras-and thus the fact of
his "guilt"-...are actually obtained against his will. Such insight
into the soul Of the accused violates his freedom of decision and
action. It must be prohibited in ersmina l proceedings because each
individual has the right to retain an important and ua'enounceable
psychic sphere which in necessary for the maintenance and development
of his personal,itW?
"THE BASIC CONCEPT
"Freedom of the will" is an important concept in Germn criminal
law and procedure. It signifies the notion of hmnan dignity and respect
for hunnn rights. The basic explanation of the individual's relation
to society in that human rights are not regarded as a privilege granted
by society; rather, the individual is an integral part of a social
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orb iah is
o, and not the regulator
L's rights, his position and as purpose in that society,
German ].avya believe that an intbute understa ng of the coMpte
freedom of the will, freedom of the personality and the physical
freedom of the individual is a pre-requisite to ux srstsxzti.ng the
self, Although the law is regarded as an
ever-growir g boo ch des to reflect the intellectual progress
or stagnation of a particular genlration* the concept of a free will
is recognized as a permanent and basic principle of the criminal law.
Apart from the histo ricals philosophical and m tical aspects
sources of the
protection afforded the human pearsonal ty are the Constitution of the
Federal Republic of tans&W and the present Code of Criminal Procedure.
The Constitution guarantees the dignity of the individoarlf the
right to free development of his personality and the physical safety
of his person, and these rights can be listed only as provided by
lava. The 'broad constitutional safeguards reaffirm principles which
governed the German legal arywtem prior to 1933s but which was
e ampleete3y disregarded by the %xi regime.
A more specific provision conch the eeo od uation of an accused
in set forth in Section 236 of the Code of Criminal, Procedure vh1o
literally trans ated, provides s
At the beginaddagg of the a xamdnation they accused must be
iMtGVM*d as to the nature of the punishable act at which
he is accusedo The accused must be asked whether he wants
to mow aaytbiN with respect to the accusations.
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win and personality ooef the accused., Uvweevarr# this once
scope of the protection which is to be given to the freeds of the
X""" # this provision of the Code adequately creme the byroad
As inters ted by the courts and most authorities on criminal
stasis nation pretorrod to lea
Coders literaI y translated? provident
Constitution end Codes were considered unlamful. Section 136a of the
mdthods of interrogation which, under mare general provisions of the
legislature enacted Section 136a of the Code to prohibit xpooificaI37
sible doubt with reaped
to limitations in examining detai red persone j there fcro# the
The freedom of the accused to form a decision and the
redo to act according to his own will sK 11 not be
impaired by ill-treatment. fatigue, bodU7 invasion, use
of drugs, torture's deceptions or hypanoeeis. Force can
be used only to the extent permitted by the law of
provided
criminal procedu . The threat of msas s not
for IV the law of criminal procedures and the promise
of a zeon'u egal1y provided advantage are prohibited.
Pteasnr+es which impair the memory and j rant of the
accused are not all,c d.
The p ohibitiors of paragraph 1 and paragraph 2 shall
be in force without regard to the consent of the accused.
TestimoxW received by offeagdirg agaimt those prohibitions
shall not be utilized even in the ass. where the accused
conaenta to its use
AS X) RI SS
CAF TM VM"
The broad so" of the laws p testing the dignity and free will.
of the individual obviously raises vaW doubts as to the legality of the
application of lie-detector tests. Hoaeerever, the problem was not
discussed by German legal writers until "truths tests" and Lie.
detector tech ues were made available to the regular law ?rd errant
agencies after World War 11?
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Both practices were Wised with raterease, to the questions
of whether and to what extoUt the body of the accused could be
utilized to elicit facts wtthl* his knowledge and thsrety ascertain
the truth and arrive at a just vqOAA regarding the can at hand.
The conolusiors reached ooncceurixTg the locality of admiwistaring
truth eerim tests were considered to be equally applicable with
respect to the legali of l so d tictor tests. Both means of
interrogating an accused,, in the opinion of most Owman authorities,
represented illegal attempts to circumvent the right of the accused
not to express himself with respect to the criminal charge.
The advocates of lie-detector testing, on the other hand,
advanced the argwant that such *silent comwdcatiom s" may lawfully
be evaluated as evidence. Their reasoning was that lie-det ctor
recordings are observations of the external appearamses of the accused
which are noticeable in a m e exact form than whe* the accused is
observed without an instrumental aid. Section 81a of the Code, which
authorizes an oxamin. tion of the body of the accused to establish
facts which are relevant to the p eedinsgs, was cited as the Iegal
basis for lie-detector tests am when the accused objects to the
test, Since the questiom1mg during the tout was thought not to
impair the accused$s faraedcm to act according to his am vi. i,
Sections 136 and 136. of the Code wrote not viewed as prohibitions
against lie-detector tests.
Tice argment that lie-detector test rec. L we only a now
method of observing involuntary external expressions was net with the
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argmeent that the recordings disclose the otherwise concealed psychic
structure of the accused and that they are an actual attempt to
discover what might be present only in the unconsciousness of the
accused. XWA authorities adopted this latter view and disapproved
of any nethod of obtaining e'essions which are not noticeable to
the a iner himself. under Ws views the lie-detector disclosure of
secret physiological reactions, followed by the exeminor's evaluations
becomes the equivalent of an involuntary com> cation. And obtain
ceeeenunications regardless of whether the accused is willing to make
them violates his right to decide whether he wants to answer the
criminal charge. The opponents of lie-detector tooting have several
grounds for refutiz the not that the tests are authorised under
Section 81a of the Code as an "examination of the body of the accused."
Thus, one group argued that the intent of the legislature in
enacting section 81a was to allow only proof of the physical condition
of the body of the accused Anothd group argued that section 136a
controls to prohibit the use of lie-detector tests inasmuch as the
perobibitions of that section were meant to be illustrative of unlawful
practices rather than an all inclusive listing. A third group opposing
the use of lie-detector tests argued that even if sections 136 and 136aa,
were not directly controlling? the application of Ito-detector tests
would be prohibited by the fundamental principles of criminal law which
recognise the right of an aodused to remain silent without fear of
thereby incurring legal disadvantages.
The prevailing view which considers the use of lie4detector tests
to be unlawful is in h orU with Article One of the Federal Coxastitu.
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 t of ** *c, ld to 6"d& Aotbw bw to
A mot of
4t
It-
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tv the
imi,jd al hinSelf as wall as wino a ,- the w
a type at L
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s e c t i o 69 W o }, UOY b e l l s " that # rule is
irospraention of direct
Saws of the *utborities
riot person te. ppe+-sec
dst"wim with the aid at lie-de
such parsatiees as first questio
owe that they eansat be used in a ti t at witnesses in
view of the 24Neited application pt- sctii
More* transl d,, provIdess
the Cogs which?
Persons other than r mused, id eu try see wituesesso can
be sea id- without AWr consent o y *$n it, is necessary
for a~rres Qiaeeam~at of t tru* whothsr on. their body eadst
positive signs or otfe64* at s abilmal 6au
However, other's favoring the *6900contend that their um results
only in obtaiird. 'mare oblectiv ssiaxw of the wdtme s' reactions
to particular question and that this is a fa~, ?+ h ncrsafl is
considered in detearni.niieg the truthfulness of the witness. The
even against his drill it n cessary, ii suppctsd the tact that the
witz*sa! =like the socused,, is obliged to tell the tom.
COELUSI01R
Of course? the decision of the Sup row Covert is maepted a s u
legal realityi h $ advocates of the aoOi al Qp9roaeh
which considers the rights! the individual in relation to the
wolf-'bairg of es + maintain that' the dedisiof is based mpon
argnsnt that *vitro" shov*,, be sub,
of sestio a l36 S4,10& tf
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id eu of
of
frsedcN of the i sideal to the extsii , af, ancuft the
ire Of
Pubus interest itt . 1 ftd'c+ t j *tirtai 11*LUi g the
1iadtatiolr to
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 880 TULANE LAW REVIEW [Vol. XXXIII
public expense, 12 the Uniform Act appears to be constitutionally
sound. It benefits from a device entitling witnesses to a hearing
before the forwarding judge, which procedure seems adequate to
prevent unreasonable and abusive application. The strength of the
Uniform Act lies in its effective means of securing material evi-
dence from unwilling and evasive witnesses who would otherwise
be unavailable. The interests of justice are best served when the
complete truth is before the court. EDGAR H. DRUM
EVIDENCE - ADMISSIBILITY OF LIE DETECTOR EVIDENCE - At
the trial in which defendant was convicted of second degree mur-
der, the prosecution's witness, a police officer, testified that he had
informed the defendant during pre-trial investigation that a lie
detector test indicated he was lying. The trial court granted de-
fendant's motion to strike the testimony and instructed the jury
to disregard it. The District Court of Appeal held that insertion
of lie detector evidence in a criminal proceeding is not prejudice
constituting reversible error if the trial judge has given the jury
proper instructions to disregard the evidence. People v. Schiers,
324 P.2d 981 (Cal. App. 1958). A petition to the California Su-
preme Court was denied per curiam with three dissents. People v.
Schiers, 320 P.2d 1 (Cal. 1958).
Since the first reported case on the subject in 1923, results of
52It has been held that defendants may avail themselves of the provisions
of the Uniform Act and require witnesses to attend and testify. However, the
Uniform Act being indefinite on the point, the same courts have held that
the statute does not authorize courts to procure the attendance of witnesses
for the defendant at the expense of the public. The defendant must apparently
pay these expenses himself. Vore v. State, 158 Neb. 222, 63 N.W.2d 141
(1954) ; State v. Fouquette, 67 Nev. 505, 221 P.2d 404, cert. denied, 341 U.S.
932 (1950) ; State v. Blount, 200 Ore. 35, 264 P.2d 419, cert. denied, 341 U.S.
932 (1950).
'Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923). Ten years later
Wisconsin followed the Frye case. State v. Bohner, 210 Wis. 651, 246 N.W.
314 (1933). In 1938, however, New York admitted the results 3 ~fY S at ometer
test conducted on behalf of the defendant. People v. Kenny,
Chi: Kent L. Rev. 269, 86 U. Pa. L. Rev. 903 (1938). See Summers, Science
Can Get the Confession, 8 Ford. L. Rev. 334 (1939). In the same year another
New York court held evidence obtained by lie detector inadmissible, without N
31 mentioning the Kenn'! case. Peo v. Forte, (939),37 Mich. L. 279 1839), 25 Va. L.
(1938), 24 Cornell L.Q. 434
Rev. 492 (1939), 27 Ill. B.J. 308 (1939). People v. Becker, 300 Mich. 562, 2
N.W.2d 503 (1942), held lie detector tests showing that defendant killed de-
ceased in self-defense inadmissible. In LeFevre v. State, 242 Wis. 416, 8
N.W.2d 288 (1943), 1943 Wis. L. Rev. 430, lie detector tests were not admitted
even though the district attorney and defendant had stipulated thatch 6results
could be used in evidence. Contra, People v. Houser, 85 Cal. App. 2d 2, 193
3);
. 937 (1948). For other cases Kaminski g v. Statet63 So. d 339 (Fla. 48
Cal
Stated 737, 312 P.2d 665 ; v. Welke, 342 Mich.
State v. . Lowry, 163 163 Kan. 622 6.2, , 1 185 P.-d 147 (1947) ; People
 lie detector tests have generally been excluded from evidence. The
exclusion, which applies to civil as well as criminal cases,' is based
on the theory that the lie detector has not gained sufficient scien-
tific recognition to warrant acceptance of the tests as competent
legal evidence 2 In civil cases admission of such evidence is im-
proper, but usually does not constitute reversible error. In criminal
cases, however, admission, whether urged by state or defendant,"
constitutes reversible error which cannot be corrected by an ad-
monition to the jury to disregard the testimony." This rule obtains
whether the evidence relates to results of," or conversations about,
lie detector tests which indicate that the accused was lying.? Al-
though People v. Houser' made an exception to the general exclu-
sionary rule by admitting such evidence if the parties have stipu-
lated that test results should be admissible on behalf of either
prosecution or defense, the exception is apparently recognized in
only a minority of jurisdictions." No other exceptions are made to
admit lie detector evidence.""
164, 68 N.W.2d 759 (1956) ; State v. Kolander, 236 Minn. 209, 52 N.W.2d 458
(1952) ; State v. Cole, 354 Mo. 181, 188 S.W.2d 43 (1945) ; Boeche v. State,
161 Neb. 368, 37 N.W.2d 593 (1949); State v. Pusch, 77 N.D. 860, 46 N.W.2d
508 (1950); Henderson v. State, 230 P.2d 495 (Okla. 1951); Commonwealth
v. Saunders, 386 Pa. 149, 125 A.2d 442 (1946) ; see Inbau & Reid, Lie Detection
and Criminal Interrogation 127 (3d ed. 1953).
2For criminal cases see note 1 supra. The first reported appellate case on
the admissibility of lie detector test results in a civil case was Stone v. Earp,
331 Mich. 606, 50 N.W.2d 172 (1951) (admission of results improper but not
reversible error) ; accord, Gideon v. Gideon, 153 Cal. App. 2d 541, 314 P.2d
11011 (1957)1 cert. denied, 356 U.S. 902 (1958); McCain v. Sheridan, 824 P.2d
923 (Cal. Dist. Ct, 1958) (dictum); Parker v. Friendt, 99 Ohio App. 329, 118
N.E.2d 216 (1954).
'Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923); People v. Carter
48 Cal.2d 737, 312 P.2d 665 (1957) ; State v. Lowry, 163 Kan. 622, 185 P.2d
147 (1947) ; see Hardman, Lie Detectors, Extra-Judicial Investigations and the
Courts, 48 W. Va, L. Rev. 37 (1941).
"The majority of cases arise when the defendant attempts to admit favor-
able results. See, e.g., People v. Parrella, 158 Cal. App. 2d 140, 322 P.2d 83
(1958) ; People v. Spigno, 156 Cal, App. 2d 279, 319 P.2d 458 (1957) ; People
v. Porter 136 Cal. App. 2d 461, 288 P.2d 561 (1955) ; Parker v. State, 164 Neb.
614, 83 14.W.2d 347 (1957); LeFevre v. State, 242 Wis. 416, 8 N.W.2d 288
(1943), 1943 Wis. L. Rev. 430.
'People v. Wochnick, 98 Cal. App. 2d 124, 219 P.2d 70 (1950) (admission
of lie detector examiner's testimony regarding conversation with defendant
about results of test constituted reversible error although trial judge instructed
jury to disregard the testimony).
"State v. Lowry, 163 Kan. 622, 185 P.2d 147 (1947).
7People v. Aragon, 154 Cal. App. 2d 646, 316 P.2d 370 (1957).
885 Cal. App. 2d 682, 193 P.2d 937 (1948).
sLeFevre v. State, 242 Wis. 416, 8 N.W.2d 288 (1943). See also State V.
Lowry, 163 Kan. 622, 185 P.2d 147 (1947). Three unreported Wisconsin cases
admitted results of lie detector tests upon stipulation of the parties. See 1943
Wis. L. Rev. 430, 435. For a full discussion of the examination involved in one
of the cases see Inbau, Detection of Deception Technique Admitted as Evi-
dence, 26 J. Crim. L., C. & P.S. 262 (1935). For argument in favor of admit-
ting the evidence on parties' stipulation see Spier, It Helps Judge and Jury, 30
Mich. St. B.J. 12 (1951).
'?However, confessions made after lie detector tests are considered volun-
tary and are admitted in evidence if otherwise competent. Tyler v. United
States, 193 F.2d 24 (1951) ; People v. Hills, 30 Cal. 2d 694, 185 P.2d 11 (1947) ;
Pinter v. State, 203 Miss. 344, 34 So.2d 723 (1948); Commonwealth v. Jones,
 Although the District Court of Appeal held that jurors are pre-
sumed to heed a strong admonition, which dissipates the harm
done by admission of lie detector evidence,1' the dissent by the
three California Supreme Court justices points out that "This case
breaks the uniformity of California decisions holding that an ad-
monition to ignore the prosecution's evidence of lie detector tests
is powerless."12 The case is important because it departs from
both California and predominant national precedent."
Evidence admitted at trial is not regarded as completely re-
liable. It must be weighed by the trier of fact. Although the lie
detector is not 100% accurate, there is authority to support the
view that it is just as efficient and accurate as some presently
accepted methods of determining facts.14 The principal lie detector
in use is the polygraph.'-' Some polygraph examiners claim that
results obtained by diagnostic processes are almost 95%fo accurate."
Taking into consideration the inadequate examiner, however, some
authorities have estimated that the percentage of error may be as
high as 25%.17 The presence of determinable inaccuracies has not,
841 Pa. 541, 19 A.2d 389 (1941); Webb v. State, 291 S.W.2d 331 (Tex. Crim.
App 1956); State v. DeHart, 242 Wis. 562, 8 N.W.2d 360 (1943), 1943 Wis.
L. Rev. 430. See 6 Stan. L. Rev. 172-74 (1953). Some writers have expressed
the opinion that confessions obtained after subjecting defendant to lie de-,
tector tests are a violation of his right of privacy and of his constitutional
privilege. See Note, 44 Harv. L. Rev. 842 (1931). Contra, 8 Wigmore, Evi-
dence 379 n.1, 384 (3d ed. 1940).
"People v. Schiers, 324 P.2d 981, 986 (Cal. 1958).
12People v. Schiers, 329 P.2d 1, 3 (Cal.1958) (dissenting opinion).
1SSee note 1 supra. State v. Kolander, 236 Minn. 209, 52 N.W.2d 458 (1952)
(where conviction rested on circumstantial evidence, admission of evidence
that defendant refused to take lie detector test was prejudicial error). Com-
pare Tyler v. United States, 193 F.2d 24 (D.C. Cir. 1951), where defendant's
confession following the test and a statement which the examiner made to
defendant that the lie detector indicated defendant was lying were both ad-
mitted. The trial court instructed the jury that the evidence was not admitted
to show defendant was lying, but merely as bearing upon the question whether
the confession was in fact voluntary. The appellate court affirmed the con-
viction: "With the court's clear and positive instruction to the jury, holding
the evidence within proper bounds, and the presumption that the instruction
was followed by the jury, we are not warranted in assuming that any prejudi-
cial results followed from the incident." Id. at 31. It is contended, however,
that limiting instructions in general have a negligible effect. See, e.g., Frank-
furter, Law and Politics 167 (1939); Comment, 8 Stan. L. Rev. 451, 456
(1956).
1?See note 1S infra.
15For a detailed description of the Keeler polygraph see Keeler, A Method
for Detecting Deception, 1 Am. J. Pol. Sci. 38 (1930) ; Hensley, The Lie De-
tector in Action, 3 Tex. B.J. 482 (1940).
16This estimate is from a five year study involving 4,280 criminal suspects.
The examiners were unable to arrive at a definite opinion in four per cent of
the cases. See Inbau & Reid, Lie Detection and Criminal Interrogation 111-12
(3d ed. 1953). A subsequent study of 8,450 subjects resulted in a similar per-
centage breakdown. See Harmon & Arthur, The Utilization of the Reid Poly-
graph by Attorneys and the Courts, 2 Crim. L. Rev. (N.Y.) 12, 26 (1955).
17See People v. Davis, 343 Mich. 348, 371, 72 N.W.2d 269, 282 (1955);
Langley, The Polygraph Lie Detector: Its Physiological Basis, Reliability and
Admissibility, 16 Ala. Law. 209, 223 (1955) ; Trovillo, Scientific Proof of Cred-
ibility, 22 Tenn. L. Rev. 743, 758-59 (1953).
 however, prevented appeals to the courts for the admission of test
results in evidence."Although many legal writers continue to
agree with the exclusion of such evidence because of possible inac-
curacies,19 some maintain that the force of the objection is lessened
when it is pointed out that the evidence would not be conclusive
proof when admitted. The fallacy in this contention is that as lie
detectors become more accurate, the trier of fact is more likely to
be influenced by what it may come to consider a mechanically in-
fallible result.20
Previous cases have not considered objections other than lack
of scientific recognition ;21 but that does not mean that other objec-
tions do not exist. The dissent in the principal case concluded that
results of lie detector tests were within the privilege against self-
incrimination granted by the California Constitution.22 To bring
the results within the privilege, such tests would have to be classed
as testimonial because the privilege extends only to testimonial
evidence.23 Although experts have argued that lie detector recorda-
tions do not constitute testimonial utterances,24 the dissent in the
noted case disagreed. It might be argued that examinees who vol-
untarily consent to the test waive the constitutional privilege
against self-incrimination.25 Some even contend that a compulsory
test would not violate the privilege 211
The dissent in the instant case also apparently presents the
first judicial consideration of excluding such evidence for lack of
1959] NOTES
18McCormick, Evidence ? 174, at 372 (1954) ; see Inbau & Reid Lie De-
tection and Criminal Interrogation 127 (3d ed. 1953) ; Streeter & 1#elli, The
"Fourth Degree": The Lie Detector, 5 Vand. L. Rev. 549 (1952) ; Wicker, The
Polygraphic Truth Test and the Law of Evidence, 22 Tenn. L. Rev. 711 (1953).
Dean Wicker urges the courts to re-examine the statement originating in the
Frye case that the lie detector has not gained such standing and scientific
recognition as to justify the admission of its results, because that statement
was made at a time when the lie detector was in its infancy.
19Gardner, Book Review, 10 Stan. L. Rev. 189, 194 (1957); Highleyman,
The Deceptive Certainty of the `Lie Detector," 40 Iowa L. Rev. 440 (1955).
See also Silving, Testing of the Unconscious in Criminal Cases, 69 Harv. L.
Rev. 683 (1956).
20Levitt, Scientific Evaluation of the "Lie Detector," 40 Iowa L. Rev. 440
457 (1955): "Considering the tremendous weight that testimony obtaine1
with a lie detector would carry in the courtroom it is doubtless well that the
courts have thus far been hypercautious about admitting it."
21See note 3 supra.
22People v. Shiers, 329 P.2d 1, 3, 4 (Cal. 1958).
29Holt v. United States, 218 U.S. 245 (1910).
24Hardman, Lie Detectors: Extra-Judicial Investigation and the Courts, 48
W. Va. L. Rev. 37, 39 (1941) ; "Such an objection, . . . seems untenable, for
... the privilege applies only to compelled testimony as distinguished from
non-testimonial evidence, and ... recordations of the lie detector do not con-
stitute a testimonial utterance within the meaning of the privilege. " See
also Inbau, Self-Incrimination 66 (1950) ; McCormick, Deception-Tests and the
Law of Evidence, 15 Calif. L. Rev. 484 (1927); Note, 37 Harv. L. Rev. 1138
(1924).
YSSee People v. Houser, 85 Cal. App. 2d 686, 193 P.2d 937 (1948).
2eSee note 24 supra.
 due process. It is possible that lack of due process could prohibit
admissibility of lie detector evidence under both the fifth and four-
teenth amendments. This objection has been suggested as the
strongest ground for excluding results of such tests 2T
The hearsay rule would perhaps have provided another ground
for excluding the lie detector evidence in the instant case. The
testimony by the prosecution's witness related to an out-of-court
statement used to prove the fact asserted.28 It would not come with-
in the admissions exception because it was not a statement made
by the defendant 28 Furthermore, the prosecution should be
estopped from arguing that the test results were admissions be-
cause admissions are definitely testimonial. Such an argument
might lend efficacy to the self-incrimination objection.
EVIDENCE - ADVERSE SPOUSAL TESTIMONY IN FEDERAL COURTS
- Defendant was convicted of a violation of the Mann Act for
transporting a girl from Arkansas to Oklahoma for immoral pur-
poses. Defendant's wife appeared voluntarily as a government wit-
ness and, over his objection, was permitted to testify. The convic-
tion was upheld by the United States Court of Appeals and the
United States Supreme Court granted certiorari. Held, that both
common law precedent and the public interest in promoting do-
mestic harmony preclude admission of testimony by one spouse
against the other even when the witness spouse wishes to testify.
Hawkins v. United States, 358 U.S. 74 (1958).1
At common law neither husband nor wife could appear as a wit-
ness for or against the other in any civil or criminal action.2 On
27Silving, supra note 19.
28"Hearsay evidence is testimony in court or written evidence, of a state-
ment made out of court, such statement being offered as an asertion to show
the truth of matters asserted therein, and thus resting for its value upon the
credibility of the out-of-court asserter." McCormick, Evidence ? 226 (1954).
29"Admissions are the words or acts of a party-opponent, or of his predeces-
sor or representative, offered as evidence against him." Id., ? 239.
iJustice Stewart concurred with the majority on the issues presented, but
indicated that he might have dissented had different arguments been used.
The government argued that the privilege against adverse spousal testimony
should vest in the witness and not the defendant, and that the wife, though
she could not be compelled to do so, could voluntarily testify against her hus-
band. The record indicated, however, that her testimony was not wholly vol.
untary since she had been imprisoned and released on $3000 bond conditioned
upon her appearance as a witness for the United States.
2Jones, Evidence ? 798 (5th ed. 1958) ; 2 Underhill, Criminal Evidence ? 342
(5th ed. 1956) ; 3 Wharton, Criminal Evidence ? 764 (12th ed. 1965).