Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
MATTHEW EDWARD BILLIPS OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 062180 November 2, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In a case of first impression, this appeal questions the
admissibility of opinion evidence based upon plethysmograph
testing at a sentencing proceeding.
Facts and Proceedings
Matthew Edward Billips, then a juvenile, was charged with
two counts of forcible sodomy of a child under the age of 13
years, and one count of soliciting a child to commit sodomy.
The juvenile and domestic relations district court certified
the case to the circuit court, where Billips was found guilty
of all three offenses in a jury trial. The circuit court
continued the case for a presentence evaluation. By the time
of trial, Billips had attained his majority.
The circuit court, before sentencing, ordered a
presentence report containing a psychosexual evaluation
pursuant to Code § 19.2-300. At the initial sentencing
hearing, defense counsel objected to the presentence report
and to the testimony of a licensed clinical social worker who
explained the report, on the grounds that the report was based
in part on inadmissible polygraph test results, and also was
based in part on plethysmograph1 testing. Defense counsel
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 court sustained the defense objection to any
testimony based on polygraph testing, but not to
plethysmograph testing. The court ordered a new risk
assessment report excluding any consideration of polygraph
testing, but ruled that the plethysmograph results could
remain a part of the report.
At the final sentencing proceeding, the circuit court,
over the defendant’s objection, considered a revised risk
evaluation report and heard the testimony of a licensed
clinical social worker who had participated in preparing it.
The report stated that Billips had been subjected to a “penile
plethysmograph assessment” to evaluate the presence or absence
of “deviant sexual arousal.” The report further stated:
“Research has demonstrated that deviant sexual
arousal is one of the best indicators of risk to
sexually re-offend. As used by our agency, the
penile plethysmograph is designed to measure sexual
responsiveness to a variety of stimuli. Males and
females ranging in age from infant to adult are
1
A “plethysmograph” is “an instrument for determining and
registering variations in the size of an organ or limb and in
the amount of blood present or passing through it.” Webster’s
Third New International Dictionary 1740 (1993).
2
represented in the stimuli. Visual stimuli are
accompanied by audio stimuli describing behavior
across a range of different sexual activity.”
The report concluded that Billips’ responses to various
scenarios, including those involving children, placed him “in
the highest re-offense risk category.”
Billips specifically objected to the report's continued
inclusion of the plethysmograph test results and the witness's
testimony in that regard by stating:
[U]nless the Commonwealth first establishes - unless
the Court first makes a threshold finding of fact
with respect to reliability of the scientific method
used to support that based upon Spencer vs.
Commonwealth, 238 VA 275[; t]here [has] been
absolutely no evidence presented regarding the
scientific methodology supporting that, its
reliability.
The circuit court again overruled Billips' objection and
then imposed sentences of life imprisonment for each of the
sodomy convictions and five years confinement on the
solicitation conviction. Billips appealed his sentences to
the Court of Appeals, which affirmed the sentences in a
published opinion, Billips v. Commonwealth, 48 Va. App. 278,
630 S.E.2d 340 (2006). We awarded him an appeal limited to
his assignment of error concerning the admission of evidence
based on plethysmograph testing.
3
Analysis
In Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609
(1990), we adopted the following rule governing the
admissibility of scientific evidence:
We have declined to adopt the “Frye test” in
Virginia. 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 test results.
Id. at 97, 393 S.E.2d at 621 (citations omitted).
The Court of Appeals held the Spencer rule inapplicable
here because a “relaxed standard of admissibility [applies] at
sentencing hearings” and concluded that, at the sentencing
stage, all that is required is that the proffered evidence
bear “some indicia of reliability.” Billips, 48 Va. App. at
300, 305, 630 S.E.2d at 351, 354. The Court of Appeals found
such indicia of reliability in the testimony of the probation
officer and the licensed clinical social worker who had
prepared Billips’ presentence report. 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. The Court of Appeals noted that
4
Billips had offered no evidence at the sentencing hearing to
support his contention that the plethysmograph testing method
was unreliable, and held that no threshold finding of
reliability was necessary and that the admission of the
evidence was within the circuit court’s discretion.
We do not agree with the reasoning of the Court of
Appeals. Although Spencer was a case in which scientific
evidence was offered at the guilt phase of a capital murder
trial, we 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. Advancements in the sciences continually outpace
the education of laymen, a category that includes judges,
jurors and lawyers not schooled in the particular field under
consideration. Consequently, there is a risk that those
essential components of the judicial system may gravitate
toward uncritical acceptance of any pronouncement that appears
to be “scientific,” and the more esoteric the field, the more
difficult it becomes for laymen to greet it with skepticism.
That tendency has given rise to frequent complaints of “junk
science” in the courts.2 To guard against that risk, we
continue to require a “threshold finding of fact with respect
2
See, e.g., Peter W. Huber, Galileo's Revenge: Junk
Science in the Courtroom 206-09 (1991).
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to the reliability of the scientific method offered,” subject
only to the exceptions in Spencer, quoted above. See Spencer,
240 Va. at 97, 393 S.E.2d at 621.
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.
Here, 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." The plethysmograph evidence, lacking foundation,
was inadmissible in the sentencing proceeding.
The error is not harmless in this case. The record is
devoid of any evidence of the reliability of plethysmograph
testing and we cannot say with assurance that the trial
court's sentencing decision was unaffected by the test
results. We adhere to the United States Supreme Court's test
for nonconstitutional harmless error in criminal cases: "[I]f
one cannot say, with fair assurance . . . that the judgment
was not substantially swayed by the error, it is impossible to
conclude that substantial rights were not affected . . . . If
so, or if one is left in grave doubt, the conviction cannot
stand." Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d
6
728, 731-32 (2001) (quoting Kotteakos v. United States, 328
U.S. 750, 764-65 (1946)).
Conclusion
For the reasons stated above, we will reverse the
judgment appealed from, insofar as it pertains to sentencing,
and remand the case to the Court of Appeals with direction to
remand the case to the circuit court for resentencing
consistent with this opinion.3
Reversed and remanded.
JUSTICE KINSER, with whom JUSTICE AGEE joins, concurring.
I concur in the result reached by the majority for two
reasons. First, the Court of Appeals erred in placing on the
defendant the burden of making a prima facie showing that the
scientific method at issue is reliable. As the proponent of
the evidence at issue, the Commonwealth had that burden in
this case. Second, the Commonwealth failed to establish any
indicia of scientific reliability for the penile
plethysmograph testing. Thus, it was error to admit evidence
concerning the results of such testing. That error, which was
not harmless, requires that the judgment of the Court of
Appeals be reversed and that this case be remanded to the
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circuit court for a new sentencing hearing.∗ In my view, it is
therefore not necessary in this appeal to determine whether
the rule established in Spencer v. Commonwealth, 240 Va. 78,
393 S.E.2d 609 (1990), governs the admissibility of scientific
evidence in the sentencing phase of a bifurcated criminal
trial.
The majority’s holding is particularly troublesome to me
because, in this case, we are concerned only with the
admissibility of evidence contained in a pre-sentence report
prepared in accordance with the provisions of Code §§ 19.2-299
and –300. Such a pre-sentence report is considered only by a
trial court in its sentencing decision. See Code §§ 19.2-299,
-300, and -301. The majority applies the evidentiary rule set
forth in Spencer even though there is a relaxed standard
governing admissibility of evidence contained in a pre-
sentence report. See O’Dell v. Commonwealth, 234 Va. 672,
701, 364 S.E.2d 491, 508 (1988) (court may consider hearsay
evidence contained in pre-sentence report). But, because I
3
The judgment of the Court of Appeals pertaining to
Billips' guilt is not before this Court and is unaffected by
our decision.
∗
The Commonwealth should not be permitted to introduce
evidence regarding the scientific reliability of the penile
plethysmograph at the new sentencing hearing. See Richardson
v. United States, 468 U.S. 317, 330 (1984) (“When the
prosecution has failed to present constitutionally sufficient
evidence, it cannot complain of unfairness in being denied a
second chance [to present such evidence.]”)
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conclude that it is not necessary for the Court to decide the
question whether Spencer applies either in the limited context
of this case or in the sentencing phase of a criminal trial, I
would leave both issues for another case in which those issues
are necessary for resolution of the matters before the Court.
For this reason, I respectfully concur.
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