New York Appellate Court – Appellate Division of the Supreme Court of New York, Fourth Department Decided February 11, 2010.
Summary: Defendant appeals from a judgment convicting him following a nonjury trial of rape in the first degree (Penal Law § 130.35 ) and rape in the second degree (§ 130.30 ). Contrary to the contention of defendant, Supreme Court properly refused to suppress the statements that he made to the police after he had waived his Miranda rights and voluntarily submitted to a computer voice stress analysis (CVSA) test. “Here, no impression that the [CVSA] test was omniscient was foisted upon defendant” (People v Tarsia, 50 NY2d 1, 11), and the use of the CVSA test as an interview tool did not provoke an involuntary confession. Indeed, although defendant made statements that may be construed as inculpatory, he consistently denied the charges. Defendant consented to the court’s determination that the police would be permitted to testify at trial with respect to those statements without reference to the CVSA test, and we thus conclude that he waived his contention on appeal that such testimony should have been suppressed because it violated the “rule of completeness” (see generally People v Backus, 67 AD3d 1428, 1429). In any event, that contention is without merit. The use of the CVSA test as an interview tool did not constitute exculpatory evidence and was not necessary to provide a complete narration of defendant’s inculpatory statements (see generally People v Harris, 249 AD2d 775, 777).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. To read the full decision click here.
Ohio Court of Appeals – Delaware County, Ohio, Fifth Appellate Division Decided February 3, 2010.
Summary: Defendant appeals his conviction on two counts of sexual imposition, one count of unlawful sexual conduct with a minor, and four counts of sexual imposition. Appellant was suspected of improperly touching children and when asked to take a CVSA examination by Deputy Sheriff Bessinger of the Delaware County Sheriff’s Dept., Appellant agreed. Appellant drove himself to the Sheriff’s Dept., was given a written Miranda form, and tested by CVSA Analyst Paul Mills. During the interview, Appellant admitted to a number of the allegations. Appellant was later indicted and convicted of all of the allegations. Appellant then filed an appeal based on the fact that the court erred in allowing his admissions admitted at trial, among other things.
The Court of Appeals affirmed the lower courts decision and denied Appellant’s appeal. To read the full decision click here.
US Federal Chief Judge Supports Use of CVSA – Northern District of New York, October 1, 2009.
Summary: Court decision upheld the use of the CVSA for offenders under the supervision of U.S. Probation in the Northern District of New York. Highlights of the case are depicted in the October 8, 2009, New York Law Journal article,”Court Finds Offenders Can Be Subject to Voice Analysis to Detect Lies.” As the decision and article indicate, the CVSA has become a useful tool in the supervision of high risk offenders. Read more.
Supreme Court of Wisconsin Upholds CVSA Confession – The Supreme Court of Wisconsin has upheld the conviction of Keith Davis for first-degree sexual assault of a child and his sentence of twenty years in prison (Case No. 2006AP1954-CR). Mr. Davis was suspected of sexually assaulting a child and was asked by Green Bay Police Detective James Swanson to take a CVSA exam concerning the allegations. Mr. Davis agreed and took the CVSA. The CVSA was administered by Det./Analyst Buenning of the Green Bay P.D. Following the CVSA exam, Det. Buenning explained the CVSA charts to Mr. Davis and explained that the CVSA indicated that he had been deceptive on the relevant questions concerning the child molestation. Det. Swanson then continued the interview. During the course of the interview with Det. Swanson, Mr. Davis admitted that he had lied and in fact, did sexually molest the child.
After his conviction, Mr. Davis filed an appeal and asked for a new trial on the grounds that the admissions should have been suppressed. In its opinion, the court found that “Voice stress analysis and polygraph testing have been used by law enforcement for years” and “Similar to polygraph testing, a voice stress analysis is based upon the theory that an individual undergoes certain physiological changes when being deceitful.” “As a result, when being subjected to voice stress analysis, these changes can presumably be monitored and interpreted.” “We see no reason at this time to treat these two methods of ‘honesty testing’ differently.”
Mr. Davis is now serving his twenty-year sentence. To read the full opinion please click here
California Judge Orders Admission of CVSA – California, Chula Vista P.D. – Analyst/Det. Sgt. John Stires reports that during a therapy session, two sisters (12 years-old and 9 years-old) disclosed sexual abuse by a family member. Chula Vista Police detectives were notified. The sisters and their brother (11 years old) were brought to Children’s Hospital for forensic interviews. The children disclosed numerous acts of child molestation and inappropriate acts by their 29 year-old-stepfather. Detectives from the Family Protection Unit developed probable cause and arrested the suspect. After a lengthy interview the suspect continued to deny the allegations and agreed to a VSA exam. Detective Sergeant J. Stires from the Violent Crimes Unit conducted the examination. The suspect completed the exam and analysis of the second chart clearly showed deception indicated. In a post-exam interview the suspect made several admissions to Detective Stires. The F.P.U. detectives were then able to obtain a detailed confession from the suspect that resulted in seventy- seven charges being filed. The suspect’s defense attorney filed a motion to suppress the confession based on alleged deception and offers of leniency by the detectives. The defense also submitted a report by an “expert witness” (Thomas Streed, Ph.D., Forensic Consultation International) alleging the CVSA was used as a “stress inducing tool to compel” the suspect to confess resulting in a coerced statement. The Superior Court Judge reviewed the video tape of the interview and CVSA examination. Defense and Prosecution then argued the case with testimony by the detectives and the suspect. The Judge denied the motion to suppress and placed several limitations on proposed testimony by the “expert witness” for the upcoming jury trial. The defense then asked that the entire CVSA exam with the confession be admitted into trial. The judge agreed. The accused then decided to accept a plea deal that included 18 years in state prison.
NJ Appellate Court Upholds Admission of Confession Obtained Using CVSA – In a case decided June 7, 2007, the NJ Superior Court, Appellate Division, confirmed that the admission of a confession obtained utilizing the CVSA by the trial judge was correct. Attorney’s for the Appellant had argued that, among other things, the subject had “succumbed to a truth verification examination,” a test not shown to be scientifically reliable, which the police used to “overpower (him) by telling him that the test administered showed that he was untruthful,” thus causing him to confess. The court stated that “The CVSA examination was used solely as an investigative tool by the police and the State made no attempt to admit the results at trial. Defendant signed a consent form to take the CVSA examination and acknowledged that he understood the form. Defendant was asked if he had any questions about the examination and he stated that he did not. Additionally, the results were not fabricated, instead, they were administered by a trained and certified examiner (Det. Killane, Perth Amboy P.D.) who compared his conclusions with those of two other trained and certified examiners. Thus, under the totality of the circumstances defendant’s decision to make the confessions following the CVSA examination was voluntary and not coerced. Based on our review of the entire record, we perceive no sound basis to disturb the judge’s decision to admit defendant’s confessions.”
This was an important decision. To read the entire opinion, including highlighted areas concerning the CVSA click here
Ohio Court Orders CVSA Results Admitted – Aug 18, 2008, Office of the Prosecuting Attorney, Darke Co., Ohio, – In what is believed to be the first case in Ohio, the results of a stipulated CVSA exam were admitted into court. The case involved an individual that was accused of sexual molestation. The individual denied the act and agreed to a stipulated CVSA exam. The subject failed that exam and subsequently confessed. His attorney then filed a motion to suppress the confession because they were obtained using the CVSA. The court then denied his motion and ordered both the results and the confession admitted. Following that decision, the individual pled guilty as charged.