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Leftwich v. State

The reliability of the penile plethysmograph exam which measures a subject's response to visual and aural stimuli has not been scientifically proven.

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Christopher Allen Leftwich was convicted of molesting his seven-year-old step-daughter. Following the denial of his motion for new trial, Leftwich filed this appeal. In his sole assertion of error, Leftwich contends that the trial court erred in refusing to permit a defense expert to testify about certain tests results obtained during a penile plethysmograph examination. After carefully reviewing the basis for the trial court’s evidentiary ruling, we affirm.

The rules governing the admission of scientific evidence were set forth in considerable detail in Harper v. State.1 In its role as gatekeeper, a trial court must decide whether the procedure or technique at issue has reached a scientific stage of verifiable certainty.2 In making this determination, the trial court may take judicial notice that the scientific procedure has been recognized in other jurisdictions as being established with verifiable certainty.3 Based on evidence presented to the trial court by the parties including expert testimony, the court may also decide that a procedure or technique has reached a “scientific stage of verifiable certainty.”4 The decision as to whether a procedure has reached the requisite standard of verifiable certainty and scientific reliability is a matter within the discretion of the trial court.5

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