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Univ. of South Carolina School of Law

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Friday, November 2, 2012

Caught In A Lie?: Court Of Appeals Of Indiana Finds Polygraph Evidence Admissible Pursuant To Stipulation

The Indidana State Police open an internal investigation against a police officer. As part of the investigation, the Superintendent of the Indiana State Police orders the officer to submit to a polygraph examination. At the beginning of the examination, the officer signs a document acknowledging "any statement, information or evidence which is gained by reason of this interview can and will be used against [me] in any departmental disciplinary proceeding." At a subsequent disciplinary proceeding, should the results of the polygraph test be admissible? According to the recent opinion of the Court of Appeals of Indiana in Decker v. Whitesell, 2012 WL 4846573 (Ind.App. 2012), the answer is "yes."

In Whitesell, the facts were as stated above, with Robert Decker being the police officer. Decker was being investigated for (a) drinking on the job, and (b) trying to get the owner of the bar and grill where he allegedly drank to get rid of recordings showing him drinking. During the polygraph exam, Decker was asked whether he requested the owner to get rid of the recordings, Decker answered "no," and the polygraph examiner "determined that Decker's answer was not truthful." 

After the Indiana State Police Board determined that the polygraph results would be admissible, Decker appealed, first claiming "that his consent [to the polygraph] was invalid because it was coerced by the threat of further disciplinary charges if he failed to cooperate." The Court of Appeals of Indiana disagreed, finding

guidance on this point in Temperly v. State, 933 N.E.2d 558 (Ind.Ct.App.2010)....In that case, Temperly was taken to a hospital for treatment following an automobile accident, and he said that he had drunk beer before the accident. At the hospital, an officer asked Temperly to consent to a chemical blood test. The officer advised Temperly that if he refused to consent, his driving privileges would be suspended for a year, and if he had a prior conviction for operating while intoxicated, his suspension would be extended by an additional year and he could be charged with an infraction. Temperly signed a consent form, and he was later charged with operating while intoxicated. He was convicted and sought appellate review.

On appeal, Temperly argued that his consent to the chemical blood test was invalid because it was coerced by the threat of his license being suspended and the threat of being charged with an infraction. A panel of this Court noted that the officer had not made any threats but instead had simply explained the penalties if Temperly refused to consent. The Court reasoned that mere advisement of penalties was not sufficiently coercive to render Temperly's consent invalid and upheld his conviction.

The court then found the case before it to be analogous, concluding that

Here, Whitesell's letter ordered Decker to submit to a polygraph examination and advised that refusal to submit to the examination or failure to cooperate during the examination could result in "[d]epartmental charges that could result in your dismissal from the Department."...The form that Decker signed at the polygraph examination also advised him that failure to answer questions could subject him to disciplinary charges that could result in termination. However, the form further informed Decker that he was "entitled to all of the rights and privileges guaranteed by laws and the Constitution of the State of Indiana and the Constitution of the United States, including the right not to be compelled to incriminate [himself]."... Under these circumstances, as in Temperly, we conclude that Decker was advised of his options and the consequences of his choices. The advisements that refusal to cooperate could result in additional disciplinary charges did not invalidate his signed consent. Therefore, the Board did not abuse its discretion by admitting the polygraph test results into evidence at the hearing.

Decker's second argument was that "in signing the form, he did not stipulate that the polygraph report would be admissible as evidence." The court again disagreed, finding that

The essence of a stipulation of admissibility is that a party agrees that polygraph evidence "may be used in evidence by either party."...Here, Decker acknowledged that any evidence from the polygraph examination would be used against him in disciplinary proceedings. This acknowledgement is an adequate stipulation.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/11/polygraph-decker-v-whitesellslip-copy-2012-wl-4846573-tableindapp2012.html

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Comments

The Employee Polygraph Protection Act outlawed the use of the poolygraph in private industry, but allowed its use on police officers, and other government employees.

This insidious Orwellian instrument of torture should be completely outlawed. It is a sick joke. It doesn't work and I have proved it. Go to this url: http://www.youtube.com/watch?feature=player_detailpage&v=ROhp2aS9pQU

This classic CBS 60 MINUTES investigative report proves the polygraph does not detect lies!

Posted by: Doug Williams | Nov 3, 2012 5:58:39 AM

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