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

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Thursday, August 28, 2008

Lie Detector As Sentencing Tool?: Maryland Judge Allows Defendant To Take Polygraph Test As Part Of Sentencing Process

In a strange ruling which I think is clearly contradictory to Maryland precedent, a Baltimore County judge has given convicted felon Trent L. Banks a chance to take a lie-detector test as part of the sentencing process.  According to Judge Lawrence R. Daniels, "[t]he appellate courts say it can't come in [as evidence] as proof of guilt or innocence, and I certainly agree that the state shouldn't be able to say, 'He failed a polygraph so you should find him guilty on that basis.'"  Judge Daniels noted, however, that private employers, the military, the federal government and even local prosecutors' offices routinely use lie-detector tests.  According to Judge Daniels, "They use them as an investigatory tool. I'm just using it as a sentencing tool."

This is an interesting conclusion, but one that is inconsistent with a consensus among courts against the use of polygraph evidence at the sentencing stage of trial.  See, e.g. Ortega v. United States, 270 F.3d 540, 548 (8th Cir. 2001).  And Maryland falls within that consensus.  In its1985 opinion in Johnson v. State, 495 A.2d 1 (Md. 1985), the Court of Appeal of Maryland dealt with a case where a reference was made to a polygraph test at a sentencing proceeding, and the trial judge overruled an objection to the reference.  On appeal, the court found that this was error, citing to its 1984 opinion in Guesferid v. State, 480 A.2d 800, 803 (Md. 1984), for the proposition that "[t]here is no longer any doubt that in this State, the results of a lie detector test, as well as the fact of taking such a test, are inadmissible at trial."  At first glance, I'm a bit confused by the facts of the Banks case, so I will look into them some more before doing a more detailed post on the case.  But as I see things now, Judge Daniels' decision is clearly erroneous.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/08/polygraph-sente.html

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