Matthew Edwards Billips committed several sex offenses involving young children when he was 18 years old. He was convicted of those offenses in a jury trial and the court “ordered a presentence report containing a psychosexual evaluation pursuant to Code § 19.2-300.”
At sentencing, Billips objected to the presentence report because it “was based in part on inadmissible polygraph test results, and ... plethysmograph testing.” He “argued that the plethysmograph was ‘conceptually similar’ to the polygraph in that both allow an operator to draw inferences from the body’s physical responses to emotional stimuli.”
The sentencing court sustained Billips’ objection “to any testimony based on polygraph testing, but not to plethysmograph. The court ordered a new risk assessment report excluding any consideration of polygraph testing, but ruled that the plethysmograph result could remain in ... the report.”
Over Billips’ objection, the sentencing court considered the plethysmograph results and sentenced Billips to life imprisonment. Billips appealed, arguing that the plethysmograph results were unreliable, inadmissible and should not have been considered.
The Virginia Supreme Court explained that it had held in Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609 (1990) that “when scientific evidence is offered, the court must make a threshold finding of fact with respect to the reliability of the scientific method offered....” It then concluded that the Court of Appeals had erred in holding that the Spencer rule was inapplicable because a relaxed standard of admissibility applied in sentencing hearings. Although Spencer involved scientific evidence offered in the guilt phase, the Court “said nothing there to limit the applicability of its rule to that phase alone. Rather, the Spencer rule applies to the use of scientific evidence in judicial proceedings generally.”
The Supreme Court observed that in Billips’ case “neither witness qualified as an expert in the field of plethysmograph testing and the circuit court made no threshold finding of fact that the system was reliable.” Moreover, the lower court faulted Billips for failing to offer “evidence at the sentencing hearing to support his contention that the plethysmograph testing method was unreliable.”
The Supreme Court held that “as with any evidence requiring a preliminary foundation, the burden of making a prima facie showing of that foundation rests upon the proponent of the evidence, subject to the opponent’s opportunity for cross-examination and refutation.” Accordingly, “the Court of Appeals erred in reversing that burden, requiring Billips to introduce evidence of unreliability instead of requiring that the Commonwealth first make out a prima facie case of the reliability of the scientific method offered.”
Ultimately, the Virginia Supreme Court concluded that “the plethysmograph evidence, lacking in foundation, was inadmissible in the sentencing proceeding” and that the error was not harmless. The case was remanded for re-sentencing. See: Billips v. Commonwealth of Virginia, 274 Va. 805, 652 S.E.2d 99 (Va. 2007).
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Related legal case
Billips v. Commonwealth of Virginia
|Cite||652 S.E.2d 99 (Va Sct 11-2-07)|
|Level||State Supreme Court|