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Stipulating to lie detector results

If you've got a criminal case where you're thinking of using a polygraph examiner -- and, more significantly, getting the state involved in that -- you definitely want to take a look at the 10th District's decision last week in State v. Madison.   

Although lie detectors once seemed poised to have a profound effect on criminal justice, the law on them has changed very little in the past thirty years.  The lead case on it is still the Ohio Supreme Court's decision in the 1978 case of State v. Souel, which held that a polygraph result is admissible only when the parties stipulate to its admission.

Of course, the other side isn't going to stipulate if they know that the results are going to hurt them, so the normal procedure is to stipulate in advance of the test being taken.  That's what happened in Madison, where the defendant was accused of rape.  The prosecution and defense agreed that both the defendant and the alleged victim would underGO polygraph testing.

As you might guess, the defendant flunked.  (The opinion never mentions how the victim's exam went.)  Madison's still a good read, though, because it answers a number of issues that arise in this context. 

First is the fact that it wasn't just the polygraph itself that was the defendant's problem.   Not only had Madison's test results indicated deceptiveness, but he gave a number of incriminating answers in the interview.  He claimed on appeal that the admission of those answers was improper, and that the examiner should have been limited to testifying about the test results.  The court wasn't buying it; as those familiar with the procedure know, the examiner conducts an extensive pre-testing interview.  The stipulation had expressly mentioned that "the examination process may involve a series of interviews," and the court held this meant that Madison "was on notice that he would be interviewed by law enforcement personnel and the results of the interviews could be used against him."

The second question was the jury instruction for polygraph evidence.  The Souel court had held

If such evidence is admitted the trial judge should instruct the jury to the effect that the examiner's testimony does not tend to prove or disprove any element of the crime with which a defendant is charged, and that it is for the jurors to determine what weight and effect such testimony should be given.

The court didn't have much more trouble with that one.  Since the defense hadn't requested the instruction, the plain error test applied, and the court found that the judge had told the jury something quite similar to that, although it's not clear from the opinion as to whether he told them of it in the jury instructions or at the time the expert testified.

This case may demonstrate the practical perils of the polygraph, as much as the legal issues surrounding its use.  In fact, if the defense lawyer had gotten the full story from the client, it's doubtful that he would have stipulated to a polygraph in the first place; during the interview Madison indicated that

he had oral and anal sex with [J.H.] and that during the oral sex [J.H.] wanted to stop and smoke more crack, but Mr. Madison did not stop.  Mr. Madison claimed he held a box cutter to J.H.'s throat,  but did so during an argument about drugs, not to encourage or force her to have sex with him.

This was obviously a "date rape" situation where the issue of consent -- and the defendant's perception of whether he had consent -- was muddied.  Plus, since the polygraph essentially uses nervousness as a measure of deception, that could have been picked up just through the associated criminal activities the incident had involved.

I've used a polygraph in cases, and I know lawyers who use them with some regularity.  There are some situations where a case can be resolved through a stipulation on its usage, but you've got to pick your spots.  And it's a pretty good idea to have your client submit to an examination or two by your own expert before you go talking to the prosecution about a stipulated test.

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