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October 21, 2007
Polygraph Results Unlikely To Form Basis For Brady Violation in Pennsylvania Case
Calvin Harris was convicted of murdering his wife Michele in June in Pennsylvania. Since this conviction, there have been several twists and turns in the case, including a farmer, Kevin Tubbs, coming forward and claiming that he saw Michele Harris with another man well after police allege that Calvin Harris killed her and disposed of her body.
There are plenty of reasons to question Tubbs' testimony, including his wife's recent allegation that Tubbs expected to be paid in exchange for his testimony. What interests me, however, is how Tubbs' testimony relates to potentially exculpatory evidence that the prosecution failed to disclose to defense counsel before trial.
The police conducted polygraph tests on several individuals, including Stacy W. Stewart, when investigating Michele Harris' death, but Stewart was allegedly eliminated as a suspect early in the investigation. The police did not disclose the fact that they tested Stewart to defense counsel before trial; instead, defense counsel only learned of the test when talking with a newspaper reporter after trial (according to Stewart's mother, Stewart passed the polygraph test).
What is interesting about Tubbs' claim is that the man he claimed was with Michele Harris after her alleged death fits Stewart's description. Defense counsel has thus claimed that a new trial is warranted because the polygraph test results had to be disclosed as "material" evidence under Brady v. Maryland.
The problem that defense counsel faces is that polygraph test results are generally inadmissible. Furthermore, since the Supreme Court's decision in Wood v. Bartholomew, 516 U.S. 1 (1995), courts have split as to whether inadmissible evidence can ever form the basis for a Brady violation. And in Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa. 2005), the Supeme Court of Pennsylvania joined the ranks of courts finding that "inadmissible evidence cannot be the basis for a Brady violation."
As I've argued before, I think that courts coming to this conclusion are acting improperly. Instead, I think that inadmissible evidence can be "material" and constitute Brady evidence either when it could be used at trial (for instance, to impeach a witness) or when it could directy lead to admissible evidence (defense counsel could have interviewed Stewart).
October 21, 2007 | Permalink
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I am a defense attorney in Minnesota, and this may be an issue in a case I have. Does anyone have good Eighth Circuit cases or Minnesota cases finding a Brady violation for failure to disclose a failed polygraph of a state's witness?
Posted by: Dave Shamla | Oct 23, 2007 5:03:49 PM
Unfortunately, the case law will not help you. In Madsen v. Dormire, 137 F.3d 602 (8th Cir. 1998), the Eighth Circuit Court of Appeals dealt with the prosecutor's failure to disclose that the forensic chemist who performed a serology test which implicated the defendant was incompetent to testify. The court found that this "evidence" was similar to polygraph tests in that both were inadmissible and "not evidence at all." The Eighth Circuit thus appears to hold that the prosecutor's failure to disclose inadmissible evidence cannot form the basis for a Brady violation.
Posted by: Colin Miller | Oct 24, 2007 7:36:40 AM