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Wow, I am now disturbed.
Judge Cochran isn't a student.
Fascinating that you aren't belittling her for how she obviously doesn't know how much she doesn't know.
Wow, I am now disturbed.
No, because Judge Cochran didn't argue some of the riduculous points that vy65 did. Cochran's dissent was primarily the "slippery slope" argument. (Funny how so many liberals reject that out of hand, except when they agree with the position.) It's not a bad argument. When I first read that the witness said that he based his position solely on the failed polygraphs, that was my first thought as well. I am often su ious of slippery slopes.
Slippery slope arguments get shot down very often, when they do not have the weight of law behind them. This one didn't. Cochran has a point, and she is right to worry about the use of laws being extended to trials. She was just wrong on the law this time.
A lot of people have been conditioned to believe that any time a defense lawyer loses, there must be some kind of malfeasance on the part of the government. They're just as bad as the tinfol-hat people on the right.
So what you really want is a good old-fashioned left-handed circle jerk. As long as everyone is stroking in the same direction, you like the interaction. Sorry I made you go all emo and .
BTW - am I a third-stringer, bandwagoner, or a snarky little in this scenario?
huh?
In this case, the State presented nothing concerning the scientific reliability of polygraph testing as a general proposition, nor did it provide any information concerning the particular polygraph tests in this case. We do not know who administered these five tests that appellant purportedly "failed," what the specific questions were, (28) or how and why the operator determined that appellant had "failed" the tests.
The State argues that it did not really introduce the polygraph test results as substantive evidence, just as the basis for Mr. Strain's expert opinion and his decision to discharge appellant from the treatment program. But Mr. Strain discharged appellant from the treatment program based solely upon the polygraph results. He repeatedly stated that he had no other reason. The "fact" that appellant "failed" the polygraph tests was the sole basis of his expert opinion and decision. And those tests were not shown to have any scientific reliability or validity.
Although an expert may base his opinion, at least in part, on otherwise inadmissible evidence, it must nonetheless be reliable inadmissible evidence. Rule 705(c) explicitly requires the trial judge to exclude an expert opinion "[i]f the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion[.]" (29) The purpose of that provision is to ensure that the expert's opinion is adequately based on reliable sources before he gives that opinion. (30) Here, the sole "fact" that the expert relied on was polygraph testing, and if that testing was scientifically unreliable the expert cannot give his opinion. (31) Appellant exhaustively explained that problem to the trial judge. (32) The trial judge responded that the polygraph evidence was "not being used as evidence, It is the basis for [Mr. Swain's] decision for discharge, as I understand where we're going." Yes, the results of unspecified polygraph tests by an unnamed polygraph operator asking unknown questions under unclear cir stances formed the sole basis for Mr. Swain's opinion, his resulting discharge of appellant from the treatment program, and appellant's subsequent probation revocation. These results, standing by themselves, are not scientifically reliable facts or sufficient data to support Mr. Swain's opinion under Rule 705. (33) Defense counsel specifically asked for a Daubert hearing; he should have received one.
It is possible that the State could have called sufficient experts discussing the scientific reliability of both the general principles and methods of polygraphy and the specific implementation of those principles in the five polygraphs that appellant "failed" to support the underlying facts and data for Mr. Swain's opinion. But it did not do so. It is the State, as the proponent of the expert's opinion, that must show, by clear and convincing evidence, that the facts and data underlying the expert's opinion are sufficiently reliable to form the basis for his opinion. (34)
The State asserts that this is just a motion to revoke probation hearing before a judge and therefore the normal rules of scientific reliability and Rules 702-705 do not apply. The Texas Rules of Evidence do, however, generally apply at a hearing to revoke probation, (35) and no court should admit or consider scientifically unreliable evidence. (36)
We addressed a similar issue in Hernandez v. State, (37) concerning the admissibility of expert testimony concerning the results of an "ADx analyzer" in a probation-revocation hearing. In that case, unlike the present one, the test operator appeared at the hearing and testified, so at least the defense could question him about his experience, qualifications, and the general scientific basis for the testing procedure. (38) Nonetheless, we held that the State had failed to offer any evidence at the revocation hearing of the scientific reliability of the ADx analyzer and that the trial judge therefore abused his discretion in admitting testimony concerning the test. (39) The fact that the trial judge had previously relied on such "ADx analyzer" testimony from this same witness was insufficient to show that the testing procedure was a reliable methodology for determining whether a person has traces of marijuana in his body. (40) The trial judge could not revoke the defendant's probation for purportedly using marijuana based upon the expert's testimony concerning a test that the State failed to show was scientifically reliable. (41)
The same is true in this case. But here the State asserts that the scientific reliability of evidence may be even one step further removed. It argues that, "[w]hile polygraph results are inadmissible, it was permissible for Mr. Strain to utilize them as a basis to form an opinion that Appellant should be discharged from the sex offender program." That logic leads down a very steep and slippery slope-not only "revocation by polygraph" but also "revocation by an expert's reliance on unreliable science." Applying that logic to Hernandez, the probation officer could have testified that Hernandez had failed an "ADx analyzer" test and therefore his probation should be revoked, obviating the need for any evidence of any reliability of any scientific testing or any testimony from the actual tester, simply because a probation officer would reasonably rely on these tests. That logic would also allow a trial judge to revoke a person's probation based upon the expert testimony of a police officer who testified that police officers reasonably rely on polygraph tests and that the officer charged the probationer with a new crime based on a failed polygraph concerning that new crime.
You think vy is leftist?
How about you acknowledge his transcript from the case he posted and quit extending your same arguments regardless of it.
Sorry... should I have said right-handed circle-jerk? I've dealt with him. His argument is totally non-sequitir. Nobody suggests that polygraphs are reliable enough to use in a trial. But this wasn't a trial. I have no interest in arguing with something that is beside the point. (And for the record, dumb , he posted that after my comment. Maybe you believe that you are psychic... I don't.)
If you have anyting of value, bring it up.
But you never do.
Hes passed the bar. Have you?
But you are suggesting that polygraphs are to be supported by the court in other court sponsored activites. Who do you think is the authority in the probation department?
However slight it may be, the back pedal is duly noted.
Judge: "this is a slippery slope"Cochran has a point, and she is right to worry about the use of laws being extended to trials. She was just wrong on the law this time.
Messageboard slappy: "this is not a slippery slope"
Rofl
lol dealt with. Didn't know you're way of dealing with me was by not responding to caselaw that shows you're full of .
If polygraphs are unreliable (as you admit), why does a change in setting from trial to administrative hearing make them reliable and/or admissible?
I'd also not have any interest in arguing a point that was wrong and had been shown to me to be wrong.
You guys are looking at it backwards.
The rules of evidence are used for trials and were applied for this hearing.
What is to stop these rules from being applied to any trial or hearing involving a polygraph?
^ That.
I know this question has been beaten to a pulp, but I have a different take on it.
GSH, what if the expert witness said the SOLE REASON he had for revoking the probation was because the defendant wore a blue shirt to his parole meeting? Would that be acceptable or not?
That was an homage to another poster
And very well timed, might I say.
I can't verify this, but I believe other experts in the field in Texas generally rely on the wearing of purple/gold shirts as grounds for discharge from treatment.
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