Plethysmograph evidence meets the less rigid standard for admissibility in sentencing hearings

In Billips v. Com., the Virginia Court of Appeals, in an opinion by Judge Clements, joined by Judge Kelsey, with Judge Benton dissenting in part, affirmed the sentence imposed by a sex offender in a Tazewell County case. Judge Benton dissented on the issue of whether the Commonwealth failed to meet its burden of proving the reliability of the expert testimony it presented to show the likelihood that the defendant would want to commit other sex crimes. Judge Clements wrote that this evidence was admissible, based in part on the different standard for admissibility when the judge is hearing evidence on sentencing.

The opinion contains some interesting footnotes.

From Judge Clements:

"In Virginia, our Supreme Court specifically refused to adopt the Frye standard in O’Dell v. Commonwealth, 234 Va. 672, 696, 364 S.E.2d 491, 504 (1988), and acknowledged in John v. Im, 263 Va. 315, 322, 559 S.E.2d 694, 698 (2002), that it had not 'considered the question whether the Daubert analysis employed by the federal courts should be applied in our trial courts to determine the scientific reliability of expert testimony.' Thus, as the Supreme Court noted in John, the Spencer evidentiary standard still governs the admission of scientific evidence in Virginia. Id. at 322 n.3, 559 S.E.2d at 698 n.3."

From Judge Benton, who likened the disputed evidence to evidence from a polygraph:

"After decades of debate, the scientific community still has not agreed on the reliability of polygraphs, despite numerous studies on the question. See United States v. Scheffer, 523 U.S. 303, 309 (1998); see also 4 David L. Faigman, David H. Kaye, Michael J. Saks, & Joseph Sanders, Modern Scientific Evidence §§ 40:20 to 40:118, at 571-655 (2005) (discussing and analyzing the two sides of the continuing polygraph debate in the scientific community). While some studies concluded that polygraphs are highly accurate, others reported 50 and 51% accuracy rates. See Scheffer, 523 U.S. at 309 (citing S. Abrams, The Complete Polygraph Handbook 190-91 (1989); William G. Iacono & David T. Lykken, The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in 1 Modern Scientific Evidence § 14-5.3 (1997)); see also 1 John W. Strong, McCormick on Evidence § 206, at 629 (5th ed. 1999) (summarizing the results of various studies conducted on polygraph reliability). One of the serious, lingering concerns about polygraphs is that an individual can “trick” the machine and receive a negative result despite lying. See Strong, supra (explaining the concern that “‘coaching’ and practicing would become more commonplace if the evidence were generally admissible”). “Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams.” Scheffer, 523 U.S. at 312."