NOTICE
 

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

STATE OF ALASKA, 

Petitioner & Cross-Respondent, 

v. 

THOMAS HENRY ALEXANDER, 

Respondent & Cross-Petitioner. 

Court of Appeals Nos. A-11423 & A-11433
 

Trial Court No. 3AN-09-11088 CR
 

O P I N I O N
 

No. 2481 — December 18, 2015
 

Petition for review from the Superior Court, Third Judicial 

District, Anchorage, Gregory Miller, Judge. 

Appearances: Diane L. Wendlandt, Assistant Attorney General, 

Office of Special Prosecutions and Appeals, Anchorage, and 

Michael C. Geraghty, Attorney General, Juneau, for the 

Petitioner. Sharon Barr, Assistant Public Defender, and Quinlan 

Steiner, Public Defender, Anchorage, for the Respondent. 

Gordon L. Vaughan, Vaughan & DeMuro, Colorado Springs, 

Colorado, for amicus curiae American Polygraph Association. 

Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, 

District Court Judge.* 

Judge MANNHEIMER. 

* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska 

Constitution and Administrative Rule 24(d). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The defendant in this case, Thomas Henry Alexander, is facing trial for 

sexual abuse of a minor. The superior court has granted Alexander’s motion to introduce 

evidence that he took a polygraph examination, and that the polygraph examiner 

concluded that there was a high likelihood that Alexander was being truthful when he 

denied committing the alleged acts of abuse. 

However, the superior court placed two conditions on the admission of this 

polygraph evidence: First, Alexander must submit to another polygraph examination, 

this one administered by a qualified expert of the State’s choosing. And second, 

Alexander must take the stand at his trial and submit to cross-examination. 

Both parties now seek review of the superior court’s decision. The State 

asks us to reverse the superior court’s decision that polygraph evidence is admissible. 

Alexander asks us to vacate the two conditions that the superior court placed on the 

admission of the polygraph evidence — that he submit to a State-administered polygraph 

examination before trial, and that he take the stand at trial and submit to crossexamination. 

For the reasons explained in this opinion, we uphold the superior court’s 

rulings — although, as we also explain, we leave the superior court free to re-evaluate 

its decision in light of the factual developments in this case since the time the superior 

court issued that decision. 

The procedural background of this litigation 

Thomas Henry Alexander stands charged with several counts of sexual 

abuse of a minor. 

In preparation for trial, Alexander’s defense attorney hired an expert, 

Dr. David C. Raskin, to administer a polygraph examination to him. Based on the results 

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of this examination, Dr. Raskin is prepared to testify that there is a high likelihood that 

Alexander was being truthful when, during the examination, he denied committing the 

acts of abuse. 

Alexander’s attorney filed a motion requesting an evidentiary hearing, so 

that he might have the opportunity to establish that polygraph testing was based on 

scientifically valid methodology, and that Alexander’s polygraph result should therefore 

be admissible at his trial. Alexander’s attorney acknowledged that, forty-five years ago, 

in Pulakis v. State, 

1 the Alaska Supreme Court announced a total ban on polygraph 

evidence. But the defense attorney noted that Pulakis was decided under the Frye test 

for the admissibility of scientific evidence — a test that was superseded when the Alaska 

Supreme Court adopted the more flexible Daubert test for scientific evidence. 2 

Alexander’s attorney argued that, because Alaska now uses the Daubert 

test, and because of significant improvements in polygraph science and practice in the 

last forty years, polygraph evidence should now be admissible in the courts of Alaska. 

While Alexander’s case was being litigated, a similar argument for the 

admission of polygraph evidence was being offered in another pending criminal case, 

Griffith v. State, File No. 3SP-11-103 CR. The defendant in that case, James Griffith, 

was also charged with sexual abuse of a minor, and his attorney also hired Dr. Raskin to 

administer a polygraph examination to him. As with Alexander, Dr. Raskin concluded 

that Griffith was being truthful when he denied the sexual abuse. 

1 476 P.2d 474, 478-79 (Alaska 1970). 

2 See Daubertv.MerrellDowPharmaceuticals,Inc.,509 U.S. 579;113 S.Ct.2786,125 

L.Ed.2d 469 (1993) (announcing a new test for assessing the admissibility of scientific 

evidence under the Federal Rules of Evidence); and State v. Coon, 974 P.2d 386, 395-98 

(Alaska 1999) (adopting the Daubert test under the Alaska Rules of Evidence). 

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The two judges who were assigned to Alexander’s and Griffith’s cases — 

Superior Court Judge Gregory Miller and Superior Court Judge pro tempore Daniel 

Schally — decided to hold a consolidated hearing to investigate whether polygraph 

evidence met the Daubert standard for the admissibility of scientific evidence. At this 

hearing, Dr. Raskin testified for the defendants, and another expert, Dr. William Iacono, 

testified for the State. Both experts discussed the current standards and techniques for 

polygraph examinations, and they offered differing opinions concerning the overall 

reliability of polygraph results. 

Dr. Raskin testified that if polygraph examinations are properly conducted 

using the “control question” technique, one would “conservatively” expect polygraph 

examinations to be 90 percent accurate (or more) in assessing truth-telling and lying. 

More specifically, Dr. Raskin pointed to studies which apparently demonstrated that the 

accuracy rate of polygraph examinations was between 89 and 98 percent. 

In contrast, Dr. Iacono testified that the better-conducted studies of 

polygraph examinations showed that these examinations had accuracy rates of between 

51 percent (essentially, a coin flip) and 98 percent, with average results being about 70 

percent accurate. 

Following this hearing, the two superior court judges issued a joint decision 

in which they held that “control question” polygraph evidence met the Daubert test, and 

that Alexander and Griffith were conditionally entitled to introduce evidence of their 

polygraph results. The two conditions that the judges placed on this evidence were: 

(1) that each defendant would be required to submit to an additional polygraph 

examination, this one administered by a qualified examiner of the State’s choosing, and 

(2) that each defendant would be required to testify at trial and submit to crossexamination. 

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Following this ruling, the State petitioned us to review and reverse the 

superior court’s holding that polygraph evidence meets the Daubert standard for 

scientific evidence. The two defendants, Alexander and Griffith, filed cross-petitions 

asking us to vacate the two conditions that the superior court placed on the admission of 

their polygraph evidence. We granted the State’s petition and the defendants’ crosspetitions, and we ordered formal briefing. 

But while this case was still in its briefing stage, Griffith took a Stateadministered polygraph examination — and he apparently failed the exam. Griffith then 

pleaded guilty, and he withdrew his cross-petition. This leaves Alexander as the only 

defendant in this case. 

The legal background of this litigation: the Daubert test that governs the 

admissibility of scientific evidence 

For most of the twentieth century, the admissibility of scientific evidence 

in American courts was governed by the “general scientific acceptance” test that was first 

announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Frye was, in fact, 

another lie detector case — although the testing machine at issue in Frye was a less 

sophisticated precursor of the modern polygraph; it was a machine that only measured 

a person’s systolic blood pressure. 

The Frye court declared that scientific evidence would be admissible only 

when it was adduced “from a well-recognized scientific principle or discovery” — which 

the court defined as a principle or discovery “sufficiently established [as] to have gained 

general acceptance in the particular field in which it belongs.” Id. at 1014. 

Applying this “general acceptance” test, the Frye court concluded that lie 

detector evidence was not admissible because it had “not yet gained [this level of] 

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standing and scientific recognition among physiological and psychological authorities.” 

Ibid. 

Close to fifty years later, in Pulakis v. State, 476 P.2d 474 (Alaska 1970), 

the Alaska Supreme Court applied the Frye test to polygraph evidence and concluded 

that this type of evidence was still not admissible, because the polygraph still had not 

gained general scientific acceptance as a reliable method of assessing a person’s 

truthfulness. The supreme court emphasized that its ruling was not based on an 

affirmative finding that polygraph testing was in fact unreliable. Rather, the court 

explained, the proponent of the polygraph evidence had failed to offer sufficient proof 

that the polygraph was generally accepted as reliable within the relevant scientific 

community. Id. at 479. Thus, the court declared, “[j]udicial acceptance of polygraph 

tests must await the results of more persuasive experimental proof of reliability.” Ibid. 

But in 1993, the United States Supreme Court abandoned the Frye test. In 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 

L.Ed.2d 469 (1993), the Supreme Court ruled that the Federal Rules of Evidence 

embodied a new test for scientific evidence that superseded Frye. 

Under the Daubert test, the question is no longer whether the scientific 

community has reached a consensus regarding the validity of a scientific discovery or 

technique. Instead, the inquiry now focuses on whether the proposed scientific evidence 

(1) is based on “reasoning or methodology [that] is scientifically valid”, and (2) “whether 

that reasoning or methodology properly can be applied to the facts in issue.” 509 U.S. 

at 592-93, 113 S.Ct. at 2796. 

The Supreme Court offered a non-exhaustive list of factors that courts 

should consider when answering these foundational questions. One of these factors is 

the old Frye test — whether the proposed scientific theory or technique has attained 

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general acceptance in the relevant scientific community. The other factors listed by the 

Court are: 

•	 whether the proposed scientific theory or technique has been (or at least 

can be) empirically tested — that is, whether the theory or technique is 

falsifiable and refutable; 

•	 whether the proposed scientific theory or technique has been subjected to peer 

review and publication; and 

•	 whether the known or potential error rate of the proposed theory or technique 

is within acceptable limits, and whether there are recognized standards and 

protocols to control variations in the application of the technique. 

509 U.S. at 593-94, 113 S.Ct. at 2796-97. The Supreme Court emphasized that any 

inquiry under this test should be a “flexible one” whose basic purpose is to ascertain the 

“scientific validity — and thus the evidentiary relevance and reliability — of the 

principles that underlie the proposed [scientific evidence].” 509 U.S. at 594-95, 113 

S.Ct. at 2797. The Daubert test focuses “on [the] principles and methodology” 

underlying the proposed scientific evidence, 509 U.S. at 595, 113 S.Ct. at 2797, and on 

whether the expert’s conclusions have a sufficient analytical nexus to those underlying 

principles and methodology. General Electric Co. v. Joiner, 522 U.S. 136, 146; 118 

S.Ct. 512, 519; 139 L.Ed.2d 508 (1997). 

The Alaska Supreme Court has adopted the Daubert test as the governing 

test for the admissibility of scientific evidence under Alaska law. State v. Coon, 974 

P.2d 386, 395-98 (Alaska 1999). 

(Our supreme court has rejected the Daubert test as the standard for 

admitting other types of expert evidence: see Marron v. Stromstad, 123 P.3d 992, 1004 

(Alaska 2005). But the parties to the present case agree — and we concur — that 

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polygraph evidence is a type of “scientific” evidence governed by the Daubert test under 

Alaska law.) 

The superior court’s ruling on whether the “control question” technique 

of polygraph examination meets the Daubert standard for admissibility 

As we explained toward the beginning of this opinion, Alexander’s attorney 

hired Dr. David Raskin to administer a polygraph examination to Alexander using the 

“control question” technique (also known as the “comparison question” technique). 

This was apparently Alexander’s second polygraph test. According to 

pleadings filed by the defense, Alexander also passed an earlier test administered by a 

polygraph examiner who often worked as an independent contractor for the Department 

of Corrections (but who, in this case, was working privately for Alexander’s attorney). 

But when this earlier examiner was unwilling to turn over the raw data from the 

examination, the defense retained Dr. Raskin. 

Dr. Raskin asserted (based on the results of his examination) that, in his 

“scientific and professional opinion”, Alexander was speaking truthfully when he denied 

the allegations of sexual abuse. Dr. Raskin added that “[his] confidence in these 

conclusions exceeds 90 percent”, and he declared that he holds this opinion “to a 

reasonable degree of scientific certainty.” 

Dr. Raskin made similar assertions with respect to his testing of James 

Griffith — i.e., that there was a greater than 90 percent certainty that Griffith was 

speaking truthfully when he denied committing the charged sexual abuse. 

The superior court heard the competing testimony of Dr. William Iacono, 

who declared that polygraph examinations, even when properly run, do not yield this 

level of certainty. 

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The court also heard extensive evidence pertaining to the practice and 

scientific validity of the “control question” polygraph examination technique — the 

technique used by Dr. Raskin when he examined Alexander and Griffith. 

The theory behind the “control question” form of polygraph testing is that 

a person’s physiological reactions to “relevant” questions — questions that relate directly 

to the alleged crime — will differ from their reactions to deliberately vague or openended “control” questions. These control questions are formulated so that they raise 

ethical issues that pose difficulties for most people — questions such as, “Have you ever 

stolen something of significant value?” or “Have you ever lied to gain a personal 

advantage?” 

The theory or assumption behind this technique is that an innocent person 

will have greater emotional difficulty answering this sort of “control” question — and 

will therefore demonstrate more pronounced physiological reactions when answering 

these control questions — compared to the straightforward, honest denials that an 

innocent person will be able to offer when answering direct questions about the facts of 

the alleged crime. Conversely, the theory goes, a guilty person’s physiological reactions 

will be more pronounced when they are called on to answer questions about the alleged 

crime, while their reactions will be more subdued (in comparison) when they are 

answering the control questions. 3 

With respect to the scientific validity of polygraph examination in general, 

Dr. Raskin and Dr. Iacono agreed on the validity of the basic scientific theory that 

underlies all polygraph testing: the theory that most people will normally exhibit physiological reactions when they say things that they believe to be false. The two experts also 

See William G. Iacono and David T. Lykken, “The Case Against Polygraph Tests”, 

in Modern Scientific Evidence: The Law and Science of Expert Testimony (David Faigman 

et alia, editors, 2009), pp. 342, 344-46. 

– 9 – 2481
 

3 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

agreed that modern polygraph machines are capable of detecting and accurately 

measuring some of these physiological responses. 

But the two experts vigorously disagreed as to whether it was possible to 

accurately discern, from the physiological data collected during a polygraph examination, whether a person was being truthful in their answers during the exam. As we 

explained earlier, Dr. Raskin put the accuracy rate of a well-conducted polygraph 

examination at somewhere between 89 and 98 percent, while Dr. Iacono testified that the 

accuracy rate was considerably lower — somewhere close to 70 percent, on average. 

The two experts also disagreed concerning the degree to which a person’s 

physiological responses (and, thus, the test results) can be influenced by the manner in 

which the examiner phrases the questions, and by the manner in which the examiner 

personally interacts with the person who is taking the test. 

Dr. Raskin and Dr. Iacono also debated whether there was a reliable, 

standardized method of evaluating or “scoring” polygraph results — or whether, instead, 

the outcome of a polygraph examination depended to an unacceptable degree on the 

examiner’s method of scoring the results. 

Finally, Dr. Raskin and Dr. Iacono disagreed on the extent to which the 

accuracy of polygraph testing could be undermined if test-takers employed countermeasures to mask their physiological responses to the questions — for instance, by 

surreptitiously biting their tongue, or by mentally performing difficult mathematical 

calculations while they were taking the exam. 

After hearingthis evidence, Judge Miller and Judge Schally both concluded 

that polygraph evidence qualified for admission under the Daubert test. 

The two judges found that the “control question” form of polygraph 

examination had been empirically tested and subjected to extensive peer review, as 

demonstrated by the various studies published in professional journals. 

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The judges acknowledged that expert opinion was substantially divided on 

the issues of whether the “control question” technique of polygraph examination yielded 

an acceptable accuracy rate, and whether there were recognized standards and protocols 

that could control the variations among examination techniques and practitioners. 

The judges pointed out that Dr. Raskin and Dr. Iacono disagreed as to the 

achievable accuracy rate of a properly conducted “control question” polygraph 

examination — with Dr. Raskin putting the expectable accuracy rate at 89 to 98 percent, 

while Dr. Iacono declared that the accuracy rate was significantly lower: on average, 

close to 70 percent. 

However, the judges concluded that even if Dr. Iacono’s figures were closer 

to the truth, the accuracy rate for the “control question” form of polygraph examination 

was still in line with the accuracy rates of other commonly admitted forms of scientific 

evidence — evidence such as fingerprint analysis, handwriting analysis, and eyewitness 

testimony. 4 

Moreover, both Dr. Raskin and Dr. Iacono agreed that, to the extent 

“control question” polygraph examinations yield inaccurate results, the inaccurate result 

was more likely to be a false positive than a false negative. That is, a “control question” 

polygraph examination is more likely to falsely indicate that a truthful person is being 

deceptive, rather than falsely indicating that a deceptive person is being truthful. Thus, 

The court cited one study establishing that fingerprint evidence was 100% accurate, 

polygraph testing 95% accurate, handwriting analysis 94% accurate, and eyewitness 

testimony 64% accurate. See Jan Widacki & Frank Horvath, An Experimental Investigation 

of the Relative Validity and Utility of the Polygraph Technique and Three Other Common 

Methods of Criminal Identification, 23 J. Forensic Sciences 596, 596-600 (1978). See also 

United States v.Scheffer,523 U.S. 303, 334 n. 24 (1998) (Stevens, J., dissenting) (discussing 

this study). The superior court acknowledged, however, that Dr. Iacono had estimated 

polygraph accuracy rates to be considerably lower, 51-98%, with an average of 70%. 

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4 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

a polygraph examination was more likely to falsely inculpate an innocent person than to 

falsely exculpate a guilty person. 

As to whether there are recognized standards and protocols to ensure an 

acceptable level of uniformity in the administration of polygraph examinations, the 

judges noted that there are published protocols and training criteria for polygraph 

examiners, including those used by the FBI, the National Security Council, and other 

agencies. (The judges also found that Dr. Raskin had followed established protocols 

when he administered his polygraph examination to Alexander.) 

In their decision, the judges discussed the problem of the “friendly 

examiner” — i.e., the recognized problem that a person’s physiological responses during 

the test can be different, or can be interpreted differently, if the examination is 

administered by an expert who has been retained by the person being tested. 

The judges concluded that this problem remained unresolved with respect 

to Griffith, but the judges mistakenly concluded that there was no “friendly examiner” 

problem with respect to Alexander — because the judges believed (falsely) that 

Alexander had already submitted to a polygraph examination administered by an expert 

employed by the State. In fact, as we already explained, Alexander had taken another 

polygraph examination that was administered by someone who often worked as a 

contractor for the Department of Corrections — but, in Alexander’s case, this polygraph 

examiner was hired by Alexander’s attorney. 

On the issue of counter-measures — i.e., strategies that a person can use to 

mask their physiological responses during the test — the judges acknowledged that 

Dr. Raskin’s own study showed that the accuracy rate of a polygraph examination can 

be reduced by as much as 50 percent if the person taking the test is trained in the use of 

counter-measures. The judges also noted the State’s claim that a person can be 

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5 

effectively trained in the use of counter-measures in less than half an hour, based on 

information that is readily available on the Internet. 

However, the judges concluded that the efficacy of counter-measures must 

be overblown, given that so many state and federal government agencies (including 

agencies of the State of Alaska) spend substantial amounts of money each year on 

polygraph testing. 5 

In any event, the two judges ultimately concluded that the potential use of 

counter-measures went to the weight of polygraph results, not to the admissibility of 

those results under the Daubert standard. The judges also concluded that if the issue of 

counter-measures was raised in a particular case, the trial judge could address this issue 

by evaluating the evidence under Alaska Evidence Rule 403 — to see if the possibility 

In their decision, the judges mentioned a letter which stated that, as of 1997, the 

federal government employed 500 polygraph examiners and spent approximately $25 million 

a year on examiner salaries. See also Kenneth S. Broun et alia, McCormick On Evidence 

(7th ed. 2013), § 206, Vol. 1, p. 1205 & n. 34 (noting the “explosive growth of polygraphy 

in American government and business”). 

Although government reliance on polygraph examinations may be widespread, we 

note that the federal government has criminally prosecuted people for teaching other people 

how to use polygraph counter-measures. See “Indiana man accused of teaching people to 

beat lie detector tests faces prison time”, an article that appeared in the Washington Post on 

August 31, 2013. This article can be found at: 

http://www.washingtonpost.com/local/indiana-man-accused-of-teaching-people-to-be 

at-lie-detector-tests-faces-prison-time/2013/08/31/a7cbe74a-08ea-11e3-9941-6711ed6 

62e71_story.html 

The fact that the federal government has actively pursued criminal prosecutions 

against people who offer to train others in these counter-measures suggests that the federal 

government knows — or at least believes — that the available polygraph counter-measures 

are effective. 

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of counter-measures outweighed the purported probative value of the polygraph evidence 

under the facts of that specific case. 

Regarding the remainingDaubert factor — whether polygraph examination 

has attained general acceptance in the relevant scientific community — the judges 

concluded that Alexander had failed to establish this factor. However, given their 

findings on the other Daubert factors, the judges concluded that this lack of general 

scientific acceptance was not fatal to the admission of polygraph evidence. 

In sum, the two judges ruled that the “control question” form of polygraph 

examination satisfied the threshold requirement for admissibility under the Daubert test. 

That is, the judges ruled (1) that this evidence is based on scientifically valid reasoning 

and methodology, and (2) that this reasoning and methodology could properly be applied 

to the facts of Alexander’s case. 

However, as we have already explained, the judges placed two restrictions 

on a defendant’s ability to introduce this evidence: the defendant must submit to an 

independent polygraph examination administered by an expert chosen by the State, and 

the defendant must take the stand at trial and submit to cross-examination. 

The standard of review that applies to our assessment of the superior 

court’s decision 

Under the former Frye test, when an appellate court answered the question 

of whether a particular type of scientific analysis or methodology had gained general 

acceptance within the relevant scientific community, the appellate court’s answer was 

treated as authoritative until a later litigant succeeded in demonstrating that the scientific 

community’s attitude toward the evidence had changed. 

See Van Meter v. State, 743 P.2d 385, 387-88 (Alaska App. 1987), where 

this Court upheld a trial judge’s refusal to hold an evidentiary hearing on the 

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admissibility of polygraph evidence: we reached this conclusion because the defendant 

made no offer of proof that the scientific community’s attitude toward polygraph testing 

had changed since the Alaska Supreme Court decided Pulakis. See also Nelson v. Jones, 

781 P.2d 964, 968 & n. 5 (Alaska 1989) (declaring that “legal authority from other 

jurisdictions” was a proper source of information for assessing the admissibility of 

scientific evidence under the Frye test). 

But under Daubert, every trial judge’s decision regarding the admissibility 

of a particular form of scientific evidence is reviewed for abuse of discretion. See 

General Electric Co. v. Joiner, 522 U.S. 136, 146; 118 S.Ct. 512, 519; 139 L.Ed.2d 508 

(1997). The Alaska Supreme Court has likewise declared that, under Alaska law, 

appellate courts must employ the “abuse of discretion” standard of review when they 

review trial judges’ rulings on the admissibility of scientific evidence. Coon, 974 P.2d 

at 398-99. 

A “standard of review” is the legal rule that specifies how much deference 

an appellate court must give to a decision made by a lower 

court. 6 And the “abuse of discretion” standard of review is quite deferential: under this 

standard, an appellate court is authorized to reverse a trial judge’s decision only if the 

trial judge’s reasons for reaching that decision “are clearly untenable and 

unreasonable”. 7 

Although we are bound by the supreme court’s decision on this point of 

law, the facts of the present case illustrate the problems that can be created by applying 

an “abuse of discretion” standard of review to rulings on the admissibility of scientific 

evidence. 

6 Booth v. State, 251 P.3d 369, 372 (Alaska App. 2011). 

7 Sylvia L. v. Office ofChildren’s Services,343 P.3d425,430-31 (Alaska2015);Bailey 

v. Lenord, 625 P.2d 849, 854 (Alaska 1981). 

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As we explained earlier, the present case originally involved two defendants 

(Alexander and Griffith), and the superior court decision that we are reviewing was 

issued jointly by two judges — two judges who held a combined evidentiary hearing, 

and who heard exactly the same testimony concerning the scientific validity and 

reliability of “control question” polygraph examinations. 

As it happened, these two judges reached the same conclusion regarding 

the scientific validity of polygraph examinations. But, as illustrated by the competing 

testimony offered by Dr. Raskin and Dr. Iacono, this is clearly a matter on which 

reasonable people can differ — and on which they do differ. 

Thus, the two judges in this case might easily have reached differing 

conclusions regarding the scientific validity of polygraph examinations, even though 

they heard exactly the same evidence. And if the two judges had reached different 

conclusions, we apparently would have been required to affirm both of the conflicting 

decisions under the “abuse of discretion” standard of review. 

That is, we would have been forced to tell Alexander and Griffith that one 

of them would be allowed to introduce the results of Dr. Raskin’s polygraph 

examination, while the other one would be prohibited from doing so — and that the only 

reason their cases were being treated differently was the identity and viewpoint of the 

judge making the decision. 

This result seems illogical and unfair — and in her partial dissent in Coon, 

Justice Dana Fabe advocated another approach to this problem. 

As Justice Fabe pointed out, there are two prongs to the Daubert test. The 

first prong is “whether the reasoning or methodology underlying the [proposed expert] 

testimony is scientifically valid”, while the second prong is “whether that reasoning or 

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methodology properly can be applied to the facts in issue [in the particular case].” Coon, 

974 P.2d at 403. 8 

Justice Fabe proposed that different standards of review should apply to 

these two prongs: an appellate court would not defer to a trial court’s decision regarding 

the scientific validity of the principles and methodology involved (i.e., the appellate court 

would decide this matter de novo), but the appellate court would defer (using an 

“abuse of discretion” standard) to the trial court’s decision as to whether the proposed 

scientific theory or technique could properly be applied to the facts of the particular case. 

Ibid. 

As Justice Fabe noted, “[t]he determination of whether a general scientific 

proposition or process is reliable should not vary from case to case or from judge to 

judge.” Ibid. The Coon majority apparently agreed with this proposition — because the 

majority opinion also declared that “[t]he abstract validity of a scientific technique 

should not vary from court to court”. Coon, 974 P.2d at 399. 9 

But the Coon majority nevertheless rejected the notion that we should have 

one uniform rule of decision regarding the validity of particular scientific theories or 

principles. The majority offered two rationales for this conclusion — i.e., for its 

endorsement of allowing inconsistent trial court rulings on the same issue. 

The majority’s first rationale was that the level of advocacy will vary from 

case to case: 

[While the] abstract validity of a scientific technique should 

not vary from court to court, ... [the manner in which this] 

validity is communicated will often vary from presentation to 

presentation. Some experts are more skillful and more 

8 Quoting Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97. 

9 Quoting State v. Alberico, 861 P.2d 192, 205 (N.M. 1993). 

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well-informed than others[,] just as some lawyers are more 

skillful and more well-prepared than others. 

Coon, 974 P.2d at 399. 10 

The majority’s observation is undoubtedly true: expert witnesses have 

varying degrees of knowledge, insight, and articulateness — just like the lawyers who 

offer the experts’ testimony, or the lawyers who cross-examine them. But one of the 

main goals of our judicial system is to have the law apply equally to all people. And the 

point of having rules is to try to ensure that the outcome of litigation does not wholly 

turn on which side has the better expert witness or the better lawyer. 

The majority’s second rationale for endorsinginconsistent trialcourt rulings 

is that “the state of science is not constant; it progresses daily.” Ibid. But this is an overstatement. While it may be true that scientific knowledge “progresses daily”, the pace 

of change is far less rapid when it comes to the validity of underlying scientific theories 

and methodology. 

Moreover, appellate courts have always acknowledged the potential for 

fundamental change in scientific understanding, even when those courts were issuing 

rulings of general applicability under the Frye test. For instance, when the Alaska 

Supreme Court ruled in Pulakis that polygraph evidence was not admissible in Alaska, 

the supreme court was careful to emphasize that it was not saying that polygraph 

evidence could never be admitted in Alaska, but only that “[j]udicial acceptance of 

polygraph tests must await the results of more persuasive experimental proof of [their] 

reliability.” 11 

10 Quoting State v. Alberico, 861 P.2d 192, 205 (N.M. 1993). 

11 Pulakis, 476 P.2d at 479. 

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As things stand now — that is, under the “abuse of discretion” standard of 

review mandated by Coon — our decision in the present case will not resolve the 

question of whether polygraph testing has sufficient scientific validity to be admissible 

in the courts of Alaska. Even though we are affirming the superior court’s ruling in 

Alexander’s case, our decision only stands for one narrow proposition: that given the 

evidence presented at the pre-trial hearing in this particular case, it was not clearly 

unreasonable for the judge to conclude that polygraph testing had sufficient scientific 

validity to satisfy the Daubert test. 

Our decision does not bind judges who face this issue in future cases — 

even if those judges are presented with exactly the same evidence that was presented in 

this case. Indeed, if those judges were to reach the opposite conclusion (i.e., if they were 

to decide that polygraph evidence does not satisfy the Daubert test), we would probably 

be required to affirm their decisions too. 

This essentially means that the scientific validity of polygraph evidence will 

never be judicially resolved at an appellate level: it will remain an open question, and 

it will need to be litigated anew each time the issue is raised. 

(See Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000), where the 

Minnesota Supreme Court points to this problem as one of the principal defects in the 

Daubert rule.) 

For all of these reasons, we urge the Alaska Supreme Court to revisit this 

issue — and to adopt the approach advocated in Justice Fabe’s partial dissent in Coon. 

Why we affirm the superior court’s rulings 

Under the Daubert test, when a litigant offers scientific evidence, a trial 

judge must answer two questions: (1) whether the reasoning or methodology underlying 

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the proposed evidence is scientifically valid, and (2) whether this reasoning or 

methodology can properly be applied to the issues raised in the particular case. 

In the present case, the superior court had to answer these two questions 

with specific regard to the “control question” form of polygraph examinations. The court 

answered the first question “yes” — finding that the reasoning or methodology 

underlying the “control question” form of polygraph examination was scientifically 

valid. The court answered the second question with a conditional “yes” — finding that 

the reasoning or methodology of the “control question” form of polygraph examination 

could properly be applied to the factual issues raised in Alexander’s case if the defendant 

submitted to a State-administered polygraph examination before trial, and also submitted 

to cross-examination at trial. 

The scientific validity of the reasoning or methodology underlying 

the “control question” form of polygraph examination 

With regard to the scientific validity of the “control question” form of 

polygraph examination, we have already described the evidence presented to the superior 

court. There is little dispute that most people will normally exhibit physiological 

reactions when they say things that they believe to be false. There is also little dispute 

that modern polygraph machines are capable of detecting and accurately measuring some 

of these physiological responses. The real issue is whether the “control question” 

technique is a valid method of eliciting physiological responses that can be meaningfully 

compared and analyzed to distinguish (1) people who believe they are telling the truth 

from (2) people who believe they are lying. 

(To clarify, a person’s physiological responses do not show whether the 

person is giving answers that are actually true, or that are actually false. Rather, the 

theory behind polygraph examinations is that the person’s physiological responses reveal 

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the person’s state of mind — the person’s belief as to whether their answers are true or 

false.) 

The evidence was conflicting as to whether the physiological responses 

elicited by a “control question” polygraph examination can be meaningfully compared 

and analyzed to distinguish (1) people who believe they are telling the truth from 

(2) people who believe they are lying. As we have explained, Dr. Raskin and Dr. Iacono 

offered competing assessments of the accuracy of the “control question” technique. Dr. 

Raskin testified that the accuracy rate could be as high as 98 percent, while Dr. Iacono 

testified that the accuracy rate could be as low as 51 percent (i.e., no more accurate than 

chance). 

Thus, if we are scrupulous in applying the “abuse of discretion” standard 

of review to the superior court’s resolution of this issue, it is obvious that we would have 

to affirm the superior court’s answer regardless of whether that answer was “yes” or 

“no”. Reasonable judges could differ as to whether the evidence in this case established 

the first prong of the Daubert test. That being so, we hold that the superior court did not 

abuse its discretion when, in the present case, it ruled that the first prongwas established. 

(Nor would the court have abused its discretion if it had ruled the opposite.) 

Whether the “control question” form of polygraph examination can 

properly be applied to the resolution of the factual issues in this 

case 

This brings us to the second prong of Daubert — whether “control 

question” polygraph evidence can properly be applied to the resolution of the issues that 

the jury will have to decide at Alexander’s trial. 

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This second question is significantly more complex than the first. The fact 

that particular scientific evidence passes the Daubert test for scientific validity does not 

mean that the evidence can or should be admitted in judicial proceedings. 

Here, the superior court was required to consider not only the reliability and 

accuracy rates of “control question” polygraph results, but also the potential that jurors 

would be confused by the polygraph evidence, or would misunderstand its significance, 

or would use the polygraph evidence for improper purposes, or would otherwise be led 

astray by this evidence. That is, the judge was required not only to assess the scientific 

validity of this evidence, but also to assess the evidence under Evidence Rule 403 and 

Evidence Rule 705(c). 

Indeed, the great majority of appellate courts who employ the Daubert test 

for scientific evidence have ruled that, despite its arguable scientific validity, polygraph 

evidence is inherently so prejudicial to the fairness of a criminal trial that it is not 

admissible, or that it is admissible only upon the express stipulation of the parties. 12 

These appellate courts have essentially ruled that, given the difficulties presented by 

polygraph evidence, it is always an abuse of discretion for a trial judge to admit this 

evidence (or, in some jurisdictions, to admit this evidence without the express stipulation 

of the parties). 

12 In general, see the appellate decisions listed in State v. A.O., 965 A.2d 152, 161-62 

(N.J. 2009). In A.O., the New Jersey Supreme Court noted that twenty-eight states 

completely ban polygraph evidence, while another eighteen states allow the admission of 

polygraph evidence only if both parties stipulate to its use. See also State v. Porter, 698 A.2d 

739, 758-59 (Conn. 1997) (continuing to ban polygraph evidence even after Connecticut’s 

adoption of the Dauberttest);Fagan v.State, 894 So.2d 576, 580 (Miss. 2004) (holding that, 

even under the Daubert test, polygraph results continue to be inadmissible); United States 

v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003) (same). 

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We also note that, even though polygraph evidence might satisfy the 

Daubert test for scientific validity, jurisdictions may nonetheless enact statutes or 

evidentiary rules that prohibit the use of this evidence. 

In UnitedStates v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 

(1998), the United States Supreme Court upheld a military rule of evidence that 

categorically excluded polygraph evidence in court-martial proceedings. The Court 

concluded that, given the current lack of consensus regarding the reliability of polygraph 

results, a categorical exclusion of polygraph evidence was a “rational and proportional 

means of advancing the legitimate interest in barring unreliable evidence”: 

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. 

Individual jurisdictions therefore may reasonably reach 

differing conclusions as to whether polygraph evidence 

should be admitted. We cannot say, then, that presented with 

such widespread uncertainty, the President acted arbitrarily 

or disproportionately in promulgating a per se rule excluding 

all polygraph evidence. 

Id., 523 U.S. at 312, 118 S.Ct. at 1266. The Court further concluded that this categorical 

exclusion of polygraph evidence did not abridge an accused’s constitutional right to 

present a defense. Id., 523 U.S. at 315-17, 118 S.Ct. at 1267-69. 

Because of the significant difficulties posed by polygraph evidence, we 

have given serious consideration to the decisions from these other jurisdictions, and to 

the option of adopting a judicial rule of exclusion like the ones adopted in the majority 

of Daubert states — essentially, a rule declaring that the potential of polygraph evidence 

for creating unfair prejudice always outweighs its probative value. 

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We are nevertheless troubled by the possibility that, in some criminalcases, 

an exculpatory polygraph result might be the only realistic way for a defendant to 

establish a reasonable doubt as to their guilt. And (as we are about to explain), we are 

convinced that the particular solution adopted by the superior court in Alexander’s case 

provides adequate safeguards against the dangers of unfair prejudice. 

Under the “abuse of discretion” standard of review, the question we must 

answer is whether the superior court acted unreasonably when it concluded that the 

dangers posed by polygraph evidence could be adequately negated by (1) requiring 

Alexander to submit to a State-administered polygraph and (2) requiring Alexander to 

take the stand at his trial and submit to cross-examination. 

The first condition imposed by the superior court — that Alexander should 

not be allowed to introduce the results of Dr. Raskin’s polygraph examination unless 

Alexander submits to a polygraph examination administered by an expert of the State’s 

choosing — conforms to a familiar legal principle: Whenever a litigant (whether in civil 

or criminal litigation) seeks to offer an expert’s evaluation of some aspect of the litigant’s 

mental or physical condition, the court is empowered to require the litigant to submit to 

a similar evaluation by an independent expert. 13 

The second condition imposed by the superior court — that Alexander 

should not be allowed to introduce the results of Dr. Raskin’s polygraph examination 

unless Alexander takes the stand at trial and submits to cross-examination — is more 

unusual, but we conclude that it is nonetheless justifiable under Evidence Rules 403 and 

705(c). 

13 See Alaska Civil Rule 35 and Alaska Criminal Rule 16(c)(5); AS 12.47.070; Lewis 

v. State, 195 P.3d 622 (Alaska App. 2008), Nelson v. State, 874 P.2d 298 (Alaska App. 

1994). 

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There are two aspects of polygraph evidence that present the greatest 

potential for confusion and misuse. The first of these is the danger that jurors may be 

overly swayed by the evidence; they may view it as having a degree of scientific rigor 

and infallibility that it does not possess. This danger can be effectively countered by the 

first condition imposed by the superior court — i.e., having the opposing side present the 

results of its own independent polygraph examination — as well as by allowing the 

opposing side to present expert testimony that points out the potential weaknesses and 

deficiencies of polygraph examination procedures and techniques. 

But the second danger posed by polygraph evidence is harder to deal with. 

This second danger arises from the fact that expert testimony describing the results of a 

polygraph examination will invariably include a recitation of out-of-court statements 

made by the person who was examined. These out-of-court statements will ordinarily 

consist of the person’s assertions about what did or did not happen, coupled with 

assertions about what the person knew (or did not know) at the time, or what the person 

intended (or did not intend) to do. 

Technically, perhaps, these out-of-court statements could be admissible for 

a non-hearsay purpose, since they serve as part of the basis for the polygraph examiner’s 

opinion. See Alaska Evidence Rule 703, which states that expert witnesses are normally 

allowed to testify about the underlying data or information that provides the basis for 

their opinion, even when that underlying information would not otherwise be admissible 

— i.e., even though it would not otherwise survive a hearsay objection or a challenge 

based on the witness’s lack of personal knowledge. 14 

14 See also Edward J. Imwinkelried and James R. McCall, Issues Once Moot: The Other 

Evidentiary Objectionsto the Admission of Exculpatory Polygraph Examinations,32 Wake 

Forest LawRev. 1045, 1072-74 (Winter 1997) (analyzing this issue under the nearly identical 

provisions of Federal Evidence Rule 703). 

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But when a polygraph expert describes the statements that a defendant 

made during the examination (as part of the expert’s analysis of the defendant’s 

polygraph results), it will often be impossible for jurors to treat the defendant’s 

statements as merely the factual data underlying the polygraph expert’s opinion. Instead, 

the jurors will use the defendant’s statements for an improper hearsay purpose — as 

substantive evidence of the truth of the factual matters asserted by the defendant in those 

out-of-court statements. 

We addressed this general problem (expert testimony that relies on 

otherwise inadmissible evidence) in Borchgrevink v. State, 239 P.3d 410, 419 (Alaska 

App. 2010), and Vann v. State, 229 P.3d 197, 208-09 (Alaska App. 2010). 15 In those 

cases, we noted that Alaska Evidence Rule 705(c) offers a way for trial judges to deal 

with this issue — by giving judges the general authority to prohibit an expert witness 

from testifying about the data or information that underlies their opinion whenever “the 

danger that [this underlying data or information] will be used for an improper purpose 

outweighs [its] value as support for the expert’s opinion”. 

But in the context of polygraph evidence, if a court were to exclude all 

evidence of the examinee’s out-of-court statements to the polygraph examiner, this 

would essentially destroy the evidentiary value of the polygraph examiner’s testimony. 

In Alexander’s case, the superior court hit upon a different solution — one 

that allows Dr. Raskin to fully describe how he conducted the polygraph examination, 

and to fully explain his interpretation of the test results, while at the same time solving 

15 See also Guerre-Chaley v. State, 88 P.3d 539, 543-44 (Alaska App. 2004), and the 

Commentary to Alaska Evidence Rule 705(c), which identify the problem as the possibility 

that the jury “might ... use the facts or data [recited by the expert witness] as the basis for an 

independent judgment on issues in [the] case”. 

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the problem that the jury will likely use Alexander’s out-of-court statements for 

prohibited hearsay purposes. 

Even though the jury may inevitably view Alexander’s out-of-court 

statements to Dr. Raskin as substantive proof of the matters asserted in those statements, 

this will make little difference to the jury’s consideration of the case if Alexander takes 

the stand at trial, makes those same assertions in front of the jury, and is cross-examined. 

The superior court therefore ruled that if Alexander wishes to present Dr. Raskin’s 

testimony, Alexander must take the stand and submit to cross-examination. 

We conclude that the superior court’s resolution of this matter was a 

reasonable exercise of the court’s discretion under Evidence Rules 403 and 705(c), and 

we therefore uphold this aspect of the superior court’s ruling. 

Concluding matters 

For the reasons explained in this opinion, we conclude that the superior 

court did not abuse its discretion when it ruled that the polygraph evidence offered in this 

case meets the threshold test for scientific evidence established in Daubert. We further 

conclude that the superior court did not abuse its discretion when it ruled that Alexander 

can introduce the exculpatory polygraph evidence only if he submits to a Stateadministered polygraph examination, and only if he takes the stand and submits to crossexamination at his trial. 

Although we are affirming the superior court’s ruling in Alexander’s case, 

we wish to clarify that the superior court has the authority to re-examine its ruling if it 

sees fit. We say this because of the developments that occurred after the superior court 

issued its ruling. As we have explained, while this appellate case was still in its briefing 

stage, the other defendant involved in this litigation, James Griffith, took a State­

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administered polygraph examination. Despite Dr. Raskin’s testimony that there was a 

90 percent chance (or better) that the exculpatory results of his examination of Griffith 

were accurate, Griffith apparently failed the State-administered polygraph examination. 

Following this second polygraph exam, Griffith pleaded guilty, and he subsequently 

withdrew from this case. 

We express no opinion as to whether the superior court should re-assess its 

decision in light of these developments, and we do not retain jurisdiction of this case. 

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