Virginia Supreme Court Rules Insufficient Foundation Provided by Commonwealth to Permit Plethysmograph Testing Conducted as Part of Psychosexual Evaluation to Be Admitted into Evidence at Sentencing Hearing

By Hafemeister, Thomas L. | Developments in Mental Health Law, January 2008 | Go to article overview

Virginia Supreme Court Rules Insufficient Foundation Provided by Commonwealth to Permit Plethysmograph Testing Conducted as Part of Psychosexual Evaluation to Be Admitted into Evidence at Sentencing Hearing


Hafemeister, Thomas L., Developments in Mental Health Law


As new techniques and technologies emerge that will purportedly help judges and juries resolve various legal issues, courts must determine whether testimony based on these new approaches is sufficiently reliable to permit them to be introduced into evidence.

For seventy years, from 1923 to 1993, the federal courts largely relied on a test articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), that focused on whether the method, theory, or technology in question had "gained general acceptance in the particular field in which it belongs." This case focused on an early prototype of the polygraph, called the systolic blood pressure deception test, which had been promoted at the time as one of several types of "cutting-edge" lie-detection technologies. The court in Frye determined that the test had not yet been "generally accepted" in the scientific community and refused to admit test results into evidence.

The United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), augmented Frye with a number of other factors that federal courts are to consider in determining whether such information is sufficiently reliable to be admitted into evidence. These factors include (1) whether the underlying science of the proposed evidence has been or can be tested, (2) whether the scientific theory or technique has been subjected to peer review, (3) whether accuracy rates for the proposed evidence are known, and (4) whether the theory or technique had gained general acceptance by the relevant scientific community (the Frye test).

Daubert, however, is only binding on the federal courts, with each state free to adopt its own rules regarding the admissibility of what is asserted to be scientific information into evidence. Virginia is one state that has not embraced fully either Frye or Daubert and has adopted its own approach. The Virginia Supreme Court pronounced the following rule governing the admissibility of scientific evidence in Spencer v. Commonwealth, 240 Va. 78, 97, 393 S.E.2d 609, 621 (1990):

 
   When scientific evidence is offered, the 
   court must make a threshold finding of fact 
   with respect to the reliability of the 
   scientific method offered, unless it is of a 
   kind so familiar and accepted as to require 
   no foundation to establish the fundamental 
   reliability of the system, such as fingerprint 
   analysis; or unless it is so unreliable that 
   the considerations requiring its exclusion 
   have ripened into rules of law, such as "lie-detector" 
   tests; or unless its admission is 
   regulated by statute, such as blood-alcohol 
   tests. 

In a case of first impression before the Virginia Supreme Court, the court was asked to address the admissibility at a sentencing proceeding of testimony based upon plethysmograph testing. The defendant in the case, a juvenile at the time, had been charged with forcible sodomy of a child under the age of 13. After being transferred out of juvenile court and tried as an adult, the defendant was found guilty. The trial court then ordered a presentence report containing a psychosexual evaluation pursuant to Virginia Code [section] 19. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Virginia Supreme Court Rules Insufficient Foundation Provided by Commonwealth to Permit Plethysmograph Testing Conducted as Part of Psychosexual Evaluation to Be Admitted into Evidence at Sentencing Hearing
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.