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Univ. of South Carolina School of Law

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Friday, February 12, 2010

Liar, Liar: Court Of Appeals Notes That Polygraph Related Statements Can Be Admitted Even If Polygraph Results Cannot

It is well established (except in New Mexico) that the results of a polygraph exam are inadmissible at trial, barring a stipulation by both sides that such results will be admissible before the test is taken. But what about statements made by an individual in connection with a polygraph exam? For instance, what happens if an individual fails a polygraph exam and thereafter makes incriminatory statements? Should those statements also be deemed inadmissible? According to the recent opinion of the Court of Appeals of Virginia in Lee v. Southside Virginia Training Center, 2010 WL 342592 (Va.App. 2010), the answer is "no."

In Lee

A trainee co-worker saw [Josephine] Lee physically abuse several residents on October 10 and 11, 2007, and, apparently on October 12, reported the incidents. An investigation opened. Lee denied any incidents of abuse and had "no objection" to taking a polygraph exam. After the test, and being advised of her failure, she signed a written statement acknowledging that she had, in fact, abused at least one resident. On December 27, 2007, Lee was given a written notice advising her of the termination of her employment with Southside Virginia Training Center. This notice further advised Lee of her right to appeal the decision pursuant to the state grievance procedure. Lee appealed. The Department of Employment Dispute Resolution appointed a hearing officer to conduct a grievance hearing in Lee's case.  

At the hearing, "Lee's written admission she had abused at least one resident was admitted into evidence;" "[t]he polygraph examiner did not testify, and neither the results nor an analysis of the polygraph examination were introduced in evidence." The hearing officer subsequently determined that the abuse occurred and that the termination was justified, prompting Lee's appeal.

Lee's first claim was that two Virginia statutes prohibit the admission of polygraph exam results, but the Court of Appeals of Virginia found 

that neither statute prohibits the use of a polygraph examination as an investigative tool involving actions by state employees. Rather the "analysis" of any polygraph test is inadmissible in state grievance proceedings. As noted, here neither the testimony of the examiner nor the results or analysis of the examination was offered in evidence before the hearing officer.

Lee's second claim was that "'it logically follows...' that Lee's written statement, which was produced subsequent to the examination, was inadmissible 'like the Fourth Amendment's exclusionary rule....'" The court again disagreed, finding that "the remedy of exclusion for evidence obtained in violation of the constitution applies only to criminal cases, not to civil cases."  Moreover, the court found that

Even in criminal cases, where the analysis or results of polygraph examinations are uniformly inadmissible, our Supreme Court has drawn a distinction between the analysis or results of a polygraph examination and statements made to a polygraph operator....Other jurisdictions to consider this question have reached similar conclusions.  

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/02/statements-to-polygraph-examinerlee-v-southside-virginia-trainingcenternot-reported-in-se2d-2010-wl-342592vaapp2010.html

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Comments

In recent years, polygraph tests have been admitted in criminal trials in several states, including Ohio, Idaho, Florida and Wyoming. In all cases, the admissibility was not stipulated. The courts were persuaded to admit the tests on the basis of hundreds of research studies, as well as the fact that most informed scientists support the use of polygraph testing. When a polygraph test is conducted properly, it meets and exceeds all of the Daubert and Frye criteria.

Louis Rovner, Ph.D.
PolygraphReality.wordpress.com

Posted by: Louis Rovner, Ph.D. | Feb 13, 2010 5:30:03 PM

The FBI uses polygraphs to eliminate suspects. Google "Quadri-Track ZCT"

Posted by: David Howard | Feb 26, 2011 8:24:38 PM

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