When will the P300-CTP be admissible in U.S. Courts? J.Peter Rosenfeld & John Meixner Northwestern University.

Admissibility issues: zAny scientific expert testimony offered by a party in either a civil or criminal case must be evaluated by the judge as to its reliability. zin all federal courts and in the majority of state courts, 3 the judge assesses reliability under the Daubert standard, derived from the United States Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals (1993).

Daubert Standard: 4 criteria: z(1) “whether [the theory or technique] can be (and has been) tested,” z (2) “whether the theory or technique has been subjected to peer review or publication,” z (3) “the known or potential rate of error,” (in the field---the rub.) z(4) the “general acceptance” of the technique

Frye Standard zIn a minority of state courts, a different (and much simpler) standard is followed, derived from the nearly 100-year-old case Frye v. United States (1923). Under the Frye standard, any scientific evidence that is to be admissible “must be sufficiently established to have gained general acceptance in the particular field in which it belongs” (Frye, 1923). (Like Daubert #4)

A second kind of standard… zAny testimony that solely assesses the credibility of other witnesses competes with the role of the jury, which has been given the role of determining the credibility of the witnesses. za court might rule inadmissible a polygraph expert whose testimony essentially amounts to a statement that one of the other witnesses was or was not lying.

For example… zThis view was espoused in the United States Supreme Court’s most recent polygraph decision, United States v. Scheffer (2003), in which the Court barred a defendant’s attempt to admit ANS polygraph-based control question test evidence indicating that he was truthful.

Thus…. zThe principal opinion, written by Justice Clarence Thomas, focused on “[p]reserving the court members’ core function of making credibility determinations in criminal trials,” (p. 312– 313) stating plainly that “the jury is the lie detector.” (p. 313).

Regardless of whether the standard is a good one….. zThus, the way the CIT is represented to judges will determine whether it is ruled inadmissible as impinging on the role of the jury. zWhile the CQT and its variants are truly credibility assessment tests in that they make claims about whether the tested individual was truthful or deceptive, the CIT makes no such claim.

Instead-- z. The CIT provides substantive evidence of whether an individual recognizes information that is relevant to the legal question at hand, and leaves the credibility assessment itself to the jury. While this information may undermine the credibility of a witness indirectly, it is no different than any other piece of evidence offered at trial, such as the presence of a fingerprint that may undermine the defendant’s denial of guilt.

OK, we can do that… z…and the main remaining problem is determining error rate in the field, which involves a test on real detainees. This leads to a Catch 22: zIRBs essentially forbid work on prisoners, who are considered a vulnerable consideration. Thus no grants.