EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, January 17, 2008

Trial And Error: Judge Declares Mistrial After Defense Attorney Asks Prosecution Witness About Polygraph Results

Judge Kelly Cottrill declared a mistrial and assessed all court costs to attorney Michael Bryan in the trial of Randy Dillon after Bryan committed one of the biggest courtroom errors a lawyer can commit:  asking a witness whether she failed a polygraph test.  Dillon was on trial for attempted murder, rape, kidnapping, burglary, and gross sexual imposition in connection with the abduction of then 14 month-old Miah Beatty.  On direct examination, Miah's mother had testified, inter alia, that she put her baby girl to bed only to discover her missing around 4:00 A.M. the next morning.  During cross-examination, Bryan, a partner in the Ohio law firm Stubbins, Watson & Erhard, attempted to discredit her testimony by asking, "Isn't it true you flunked a lie detector test?"

Assistant Prosecutor Ron Welch immediately shot from his seat and loudly objected to the question.  The judge sustained the objection and the prosecution's subsequent motion for a mistrial, noting that it would be impossible to "unring the bell."  Furthermore, Cottrill chimed that it was beyind his comprehension how Bryan could have been unaware that his question was impermissible.  As Prosecutor Michael Haddox noted, polygraph results are only admissible when both parties have agreed prior to the polygraph being given that the results will be entered into a trial. See, e.g., State v. Sharma, 875 N.E.2d 1002 (Ohio Com.Pl. 2007).

I'm unaware of any empirical studies on the results of these joint stipulation polygraph cases, and I think that the results would be fascinating.  Obviously, when both sides agree before the polygraph is taken that its results will be admissible, they each feel somewhat confident in the outcome.  So, whose confidence is more often misplaced?  In the majority of cases, is the prosecution burned by a string of answers deemed to be truthful, or are defendants shocked when their responses display indications of deception/stress?

I'm also curious as to how the public perception of the polygraph test might be altered in the wake of Fox's new, endlessly promoted game show "The Moment of Truth."  I also wonder whether the show might actually lead to any criminal prosecutions.  The show is apparently derived from a similar Columbian game show, which was canceled after one contestant admitted to hiring a hit man to kill her husband.



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