COMMONWEALTH vs. ANGELO M. FATALO.

SPIEGEL, J. These are appeals under G. L. c. 278, Section 33B, from convictions of assault and battery and assault and battery by means of a dangerous weapon. The trial was held before a judge of the Superior Court, the defendant having waived his right to a trial by jury.

There are three assignments of error, [Note 1] each of which relates solely to polygraph tests. We condense the pertinent evidence referred to by the defendant in his brief.

One Joseph F. McAdams was assaulted in his apartment by four men on August 23, 1961, and again on September 4,

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1961. He later identified the defendant as one of his assailants. On the day of his arrest the defendant requested of the "investigating officers" that he be given a "`lie-detector' test so that he might demonstrate his innocence." No test was given until after the first trial. [Note 2] In January of 1962, while the defendant was in prison, he was given a polygraph test.

Assignments of error numbered 1 and 2 are based on the denial on December 7, 1962, of the defendant's pre-trial motions by a judge of the Superior Court other than the judge who presided at the trial of the cases, which began on January 16, 1963. In view of our subsequent discussion on the issue of the admissibility in evidence of the results of polygraphs tests we see no point in treating with the denial of the defendant's pre-trial motions. It is sufficient to state that there was no error in the denial.

The defendant made an extended offer of proof the substance of which recited the qualifications of several alleged experts, and included the "history, reliability, and use" of the polygraph, a general dissertation on the effectiveness of "lie-detector" tests, and the results of polygraph tests administered to two witnesses and to the defendant.

There is hardly a device which has caused greater controversy among "experts," lawyers, physicians, psychologists, government officials, and the public in general than the polygraph or "lie-detector" as it is colloquially characterized. The question of the admissibility of the results of a "lie-detector" test is one of first impression for this court. Such tests have been described and their judicial history chronicled by the courts of many other States. An excellent opinion for such purposes is State v. Valdez, 91 Ariz. 274. See 23 A. L. R. 2d 1308; A. L. R. 2d, Supp. Serv. (1960), 1998-1999, and subsequent Supplements. It was stated, with accuracy, in State v. Arnwine, 67 N. J. Super. 483, 495, that "there is not a single reported decision where an appellate court has permitted the introduction of the

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results of a polygraph or lie-detector test as evidence in the absence of a sanctioning agreement or stipulation between the parties." Over the years, appellate courts have repeated the reason given in the 1923 landmark case of Frye v. United States, 293 Fed. 1013 (Ct. App. D. C.). In rejecting a predecessor of the "lie-detector" for evidentiary purposes that court said: "We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." Ibid. 1014. The controversy in scientific and legal circles swirling around the polygraph test continues without abatement. In addition to the existing plethora of writings on the subject, well documented articles continue to appear which raise grave doubts as to the scientific reliability of the polygraph tests. See Highleyman, The Deceptive Certainty of the "Lie Detector," 10 Hastings L. J. 47 (1958); Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection, 70 Yale L. J. 694 (1961). A recent and particularly devastating article on the untrustworthiness of the test is titled "Don't Trust the Lie Detector," Harv. Bus. Rev. (1962), 127, by Sternbach, Gustafson and Colier, two of whom are scientists. [Note 3] Numerous other authorities taking an unfavorable view of the "lie-detector" are referred to in the cases cited above. The questions and doubts raised by these sources go, not only to the techniques employed in the administration of the tests, but to the very premises and assumptions upon which they rest. "Emotional unresponsiveness," "[a]bility to `beat' the machine," "[p]hysiological abnormalities," "[m]ental abnormalities," "[n]ervousness or extreme emotional tension," "[t]he misleading nature of available statistics," and the "conflict and disagreement among the

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examiners and authorities" [Note 4] are some of the variables which vitiate the alleged effectiveness of the tests and thus militate against their admissibility in evidence.

The defendant, in his offer of proof, would have a polygraph examiner testify that "he is now able to reach a definite conclusion in better than 95% of cases tested." The accuracy of this statistic is very much in dispute. [Note 5] It is precisely this sort of controversy which creates the danger that on the introduction of such evidence a trial could descend into a battle of experts on the probative value of the polygraph test rather than a determination of the guilt or innocence of a defendant. The end result, in all likelihood, would be confusion instead of enlightenment.

Judicial acceptance of a scientific theory or instrument can occur only when it follows a general acceptance by the community of scientists involved. When supported by substantial authority establishing scientific reliability, this court has not hesitated to accept the benefits of science. Blood tests excluding paternity were held admissible in Commonwealth v. Stappen, 336 Mass. 174, and held conclusive as to nonpaternity in Commonwealth v. D'Avella, 339 Mass. 642. Both opinions contain substantial documentation attesting to the acceptance of blood tests as a scientific

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fact. Scientific evidence as to the amount of alcohol in an individual's blood is a further example. Commonwealth v. Capalbo, 308 Mass. 376, 380. Evidence of fingerprints and evidence of ballistics are additional illustrations. In each instance judicial acceptance followed general scientific recognition, a recognition which, patently, has not yet been accorded the polygraph test. We do not hold that such recognition must be universal or that the test must be proven infallible, but rather that the substantial doubts which presently revolve about the polygraph test must be removed. The trial judge properly excluded all evidence concerning the "lie-detector."

Judgments affirmed.