Tuesday, October 27, 2009
There's an odd dichotomy under the Federal Rules of Evidence and state counterparts. Evidence of polygraph test results are per se inadmissible (except in New Mexico) unless both sides stipulate to their admission before the test is taken. Conversely, according to some courts, in some circumstances, a defendant can introduce evidence that he volunteered to take a polygraph test to prove his innocent state of mind. As the recent opinion of the Court of Appeals of Indiana in Nugent v. State, 2009 WL 3415318 (Ind.App. 2009), noted, however this opens the door for the prosecution to present evidence calling into question just how willing the defendant was to take the test.
In Nugent, Terry Wayne Nugent appealed his convictions for two counts of sexual misconduct with a minor and one count of sexual misconduct with a minor. At trial, "Nugent introduced the subject of polygraphs by asking Detective Hunnicutt about his request that Nugent submit to a polygraph. Later, on direct examination, Nugent testified that he had been willing to take a polygraph and was still willing to take a polygraph." Subsequently, the State questioned Nugent about his out of court statements that he was afraid to take a polygraph." After the court overruled Nugent's objection to the question, "Nugent then admitted that he had told two people on separate occasions that he was afraid to take a polygraph examination."
Nugent thereafter appealed, claiming that the State violated his fundamental rights by cross-examining him regarding his willingness to take a polygraph test. The Court of Appeals of Indiana began by laying out the basics of the polygraph analysis, noting that
Our supreme court has explicitly discouraged the admission of polygraph evidence because of the procedure's unreliability combined with its likelihood of undue influence upon a jury's decision....This is why the “[p]roof of the fact that a polygraph examination was taken or refused is, in the absence of waiver or stipulation, inadmissible in a criminal prosecution.”...“A defendant is prohibited from stating he offered to take a polygraph test and the State is equally prohibited from referring to such a test.”...However, a party may “open the door” to the admission of evidence regarding polygraphs in some narrow circumstances.
The problem for Nugent, according to the court, was that it found that when a defendant is allowed to open the door and present evidence that he volunteered to take a polygraph test, the door remains open, meaning the prosecution can respond with "evidence that he may not have been as willing as he claimed." Therefore, the court concluded that "because Nugent first presented the testimony that he was willing to take a polygraph examination, the State was fully justified to elicit an admission from Nugent that he had told two persons that he was afraid to take a polygraph examination."