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Univ. of South Carolina School of Law

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Sunday, November 29, 2009

True Lies: Ohio Defendant Acquitted Despite Evidence Of Failed Polygraph Test Being Presented To Jury

As I have noted before on this blog, "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." A large part of the reason polygraph results are usually deemed inadmissible is because courts fear that jurors presented with a defendant's failed polygraph test will automatically find the defendant guilty and jurors presented with a defendant's passed polygraph test will automatically find that defendant not guilty. A recent case out of Ohio indicates otherwise. In that case, a man was charged with raping and molesting a former girlfriend's daughter, and the defense and the prosecution agreed that the defendant would take a polygraph test with the results being admissible at trial. The defendant's gamble appeared to be a losing bet as he failed the polygraph. Surprisingly, however, the jury still found that defendant not guilty. And that makes me wonder: Are polygraph results as persuasive as courts think them to be?

The defendant in the Ohio case was 30 year-old Christian Rios, who could have been sentenced to life imprisonment if found guilty. According to an article on the case, Rios' taking of the polygraph test was allowed pursuant to

a little-used Ohio statute [which] says [that] jurors can be provided the results if both the defense and prosecution agree to it before a trial starts and before the test is given. The judge still has the discretion to ban the results.   

Indeed, the statute is so little-used that I couldn't even find it. I did find a Supreme Court of Ohio opinion, State v. Souel, 372 N.E.2d 1318 (Ohio 1978), authorizing the practice, but that opinion makes no reference to a statute. Apparently, in defense circles in Ohio, the practice of taking a polygraph under these circumstances is called "'Take a poly for a nolle,' which rhymes with 'dolly.' A nolle prosequi is Latin for a dismissal." 

According to the article, though, when a defendant passes a polygraph under this practice, the usual outcome is not a dismissal but the defendant accepting a favorable plea bargain. Meanwhile, when a defendant fails a polygraph test, the usual result is a conviction, but that wasn't the case with Rios, with the main problem for the prosecution being that the jury simply didn't believe the testimony of the ex-girlfriend. This meant that, despite the judge telling the jurors about the result of Rios' failed polygraph, he is now a free man.

This case has made me wonder whether courts should rethink their positions on polygraph results generally. If defendants passing polygraphs in Ohio usually reach plea deals, this tells me that they are not confident that they will be acquitted even when that evidence is presented to the jury. And, as Rios' case makes clear, a failed polygraph test does not always result in a conviction. Now, this is mostly anecdotal evidence, but I wouldn't be surprised if an empirical study revealed that jurors don't trust polygraph results as much as courts think that they do. Maybe I will do such a study some day.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2009/11/polygraphhttpwwwdispatchcomlivecontentlocal_newsstories20091128polygraphart_art_11-28-09_b1_fofqaj2htmlsid10.html

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Comments

Real nice.. Much appreciated. Always loved this type of stuff...

Posted by: Syd Bousketi | Jan 28, 2010 7:26:08 PM

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