EvidenceProf Blog

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

Friday, October 17, 2008

To Tell The Truth: Idaho Case Reveals That Polygraph Test Results Are Admissible With A Stipulation

Most people know the general rule that polygraph test results are inadmissible (except in New Mexico), but fewer people know that there are several situations in which they can be admitted, as is illustrated by a current case in Idaho.  Tyrah Brea Brown and her husband, Keith, are charged with first-degree murder and grand theft by possession of stolen property in connection with the killing of Leslie Carlton Breaw and the theft of a $56,000 escrow check belonging to him. The Browns have maintained that: (1) the check was given to her Keith as payment for paralegal services he provided to Breaw; and that (2) Breaw sexually assaulted Tyrah, with Breaw being shot in the struggle over a gun after Breaw opened fire on Keith during a confrontation over the alleged rape of his wife.

And, after Tyrah was charged, she wanted to prove that these 2 claims were true, so she submitted to a polygraph test conducted by polygrapher Ted Ponticelli.  Pontecelli asked five questions, such as whether Tyrah was lying about Breaw sexually assaulting her, whether she shot Breaw, whether she was present when the shooting occurred, and whether she conspired to shoot Breaw or steal his money.  Tyrah answered "No" to each question, and Ponticelli said in his report that the responses to the questions were "consistent with truthful answers."  The results of Ponticelli's were later confirmed by a third-party polygrapher agreed upon by the prosecution and the defense.

What this means, according to an article on the case, is that these results will be admissible should Tyrah's case reach trial because "[t]he results of polygraph exams can be admissible in Idaho criminal courts if the state, the defense and the court agree to their admission."  This is indeed a correct statement of the law because, as noted by the Supreme Court of Idaho in State v. Perry, 81 P.3d 1230, 1235 (Idaho 2003), "polygraph evidence may be admissible in instances where the parties stipulate to the admission of the evidence,...in probation revocation hearings,...and in other informal hearings where the rules of evidence do not apply,...at the discretion of the trial court or presiding official."

Thus, in Idaho, as in most states, if you are a criminal defense attorney and have every reason to believe that your client is telling the truth and would pass a polygraph test, you should attempt to get the prosecution to stipulate that the results of a polygraph test taken by your client will be admissible at trial.  Of course, if you have the slightest doubt, it might be better to keep Pandora's Box closed



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I wonder how this information would be presented, and if there are any special instructions to the jury regarding polygraph evidence.
Are jurors given any guidance as to how to weigh the evidence? Will a polygraph expert have to testify as to the reliability of the technique? Are the polygraph answers treated as prior consistent statements and only allowable after the witness/defendant has been impeached, or can the defense introduce this during the direct examination (which would seemingly be impermissible bolstering)?
I didn't find answers in the Idaho criminal jury instructions or court rules (but my search was perfunctory -- just a text search of "polygraph").

Posted by: nitpicking paralegal | Oct 18, 2008 8:00:47 AM

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