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Univ. of South Carolina School of Law

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Monday, October 20, 2008

Lie Detector As Sentencing Tool, Take 2: Maryland Inmate Fails Polygraph Test, So His Sentence Won't Be Reduced

Back in August, I wrote about a strange ruling in which a Baltimore County judge gave convicted felon Trent L. Banks a chance to take a lie-detector test as part of the sentencing process.  As I wrote back in August,

     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."

At the time, I cited Ortega v. United States, 270 F.3d 540, 548 (8th Cir. 2001), for the proposition that Judge Daniel's decision was "inconsistent with a consensus among courts against the use of polygraph evidence at the sentencing stage of trial."  And I concluded that:

     Maryland falls within that consensus.  In its 1985 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."

Well, erroneous or not, the polygraph test was administered as part of Banks' attempt to have his prison term reduced.  And what are the facts underlying that attempt?  Well, the facts of Banks' case are somewhat confusing, but basically, Banks was convicted of attempted murder and sentenced to 35 years imprisonment after he shot at his girlfriend and her friend.  The shootings were also a violation of Banks' probation under prior convictions, leading to the imposition of two additional consecutive 5 year terms of incarceration.  Subsequently,

     "[i]n a highly unusual move, Daniels granted Banks’ request in August to take the polygraph in an effort to shave time off his five-year sentences. The judge made clear the results would have no impact on the [attempted] murder conviction and that passing did not automatically equal a sentence reduction."   

Well, Banks hired Thompson, founder and director of the Maryland Institute of Criminal Justice in Millersville, to administer the test, but the test did not produce the results that he desired.  "The examinee did not appear to be truthful," examiner Billy H. Thompson wrote in a test evaluation delivered to Judge Daniels in Baltimore County Circuit Court.  Consequently, Judge Daniels did not have to decide whether to exercise his discretion and reduce Banks' sentence.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2008/10/polygraph---md.html

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