EvidenceProf Blog

No Lie: Court Of Appeals Of New Mexico Finds Prosecutor Can't Comment On Defendant's Failure To Take Polygraph

As I have noted, in most U.S. jurisdictions, polygraph evidence is per se inadmissible. In somewhere between 12-20 jurisdictions, polygraph evidence is admissible only if the prosecution and defense stipulate that polygraph evidence will be admissible before the defendant takes a polygraph test. Finally, in New Mexico, polygraph evidence is admissible even without a prior stipulation. But, as the recent opinion of the Court of Appeals of New Mexico in State v. Solis, 2012 WL 4434153 (N.M.App. 2012), the situation in New Mexico really isn't that different than the situation in the stipulation states.

In Solis, Evon Solis was charged with embezzlement in excess of $500 but not more than $2500. Officer Fuller, who helped investigate the possible embezzlement, testified on behalf of the State. He testified that he interviewed Defendant on November 15, 2007, and read Defendant her Miranda rights. Defendant signed a form, waiving her Miranda rights. During Officer Fuller's testimony, the following exchange took place:  

State: Did you arrange any further appointments with her?  

Officer Fuller: Yes, I did.... I had asked [Defendant] if she would agree to a polygraph examination there at the Hobbs police department. She stated that she would. I advised her that I would contact her ... and set a time and date. She was notified of the time and date, which was  December 11, 2007....  

State: Did she show up for her appointment?  

Officer Fuller: No, she did not.  

State: Were you able to get ahold of her after that point?

 Officer Fuller: I don't remember if we contacted her or not. Shortly thereafter, a warrant was issued for her arrest.  

State: Did she try to contact you? ...  

Officer Fuller: Not that I recall. She may have, but I do not recall her making any contact or attempt.

The Court of Appeals of New Mexico found that this testimony was improper as it constituted impermissible comment on Solis' right to remain silent.

This is consistent with New Mexico law first established in State v. Gutierrez, 162 P.3d 156 (N.M. 2007). In Gutierrez, the Supreme Court of Mexico noted that many other jurisdictions have precluded the prosecution from commenting on a defendant's refusal to submit to a polygraph exam:

Many other jurisdictions have held the type of comment at issue in this case to be an improper comment on a defendant's right to silence in violation of the Fifth Amendment. See United States v. Stackpole, 811 F.2d 689, 694–95 (1st Cir.1987) (stating that admission of a tape and transcript indicating defendant refused to take a polygraph test was error but holding the error to be harmless); United States v. Kiszewski, 877 F.2d 210, 216–17 (2d Cir.1989) (analyzing the prejudice of admission of a government witness's statement that the defendant refused to submit to a polygraph test but ultimately finding harmless error); United States v. Murray, 784 F.2d 188, 188–89 (6th Cir.1986) (holding that deliberate “mention of a polygraph test introduced serious error into this record” and, therefore, remanding for a new trial because the error was not harmless beyond a reasonable doubt); Bowen v. Eyman, 324 F.Supp. 339, 341 (D.Ariz.1970) (holding that testimony regarding the defendant's refusal to submit to a polygraph test was “constitutionally impermissible” as a violation of the defendant's right to silence under the Fifth Amendment); see also Melvin v. State, 606 A.2d 69, 71–72 (Del.1992) (holding that “polygraph examinations are testimonial for purposes of the Fifth Amendment and, therefore, are subject to an individual's protection against self-incrimination” and noting that “[e]vidence that an individual refused to submit to a polygraph test is no more permissible than forcing an accused to submit to a polygraph examination and then using the results against him or her”); State v. Driver, 38 N.J. 255, 183 A.2d 655, 658–59 (1962) (holding that prosecutor's repeated reference in opening statement to defendant's refusal to submit to a polygraph test “possess[ed] such horrendous capacity for prejudice against the defendant as to constitute plain error”); Kugler v. State, 902 S.W.2d 594, 597 (Tex.Ct.App.1995) (reversing and remanding for a new trial where “the testimony that revealed appellant's refusal to submit to a polygraph examination was unduly persuasive and cannot be cured by an instruction to disregard”).

The New Mexico Supremes then joined the chorus:

We now adopt this line of reasoning and hereby hold that prosecutorial comment on a defendant's refusal to submit to a polygraph test is an impermissible comment on a defendant's right to silence in violation of the Fifth Amendment.

Therefore, while New Mexico does not require the defense to stipulate to the admissibility of a polygraph exam before it is taken, the defense remains free to refuse a polygraph, with the prosecution not being able to comment on the refusal. 

-CM

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

No Pregnant Pause: Illinois Court Rejects Defendant's Attempt To Analogize Home Pregnancy Tests To Polygraph Tests

As I noted in my post on Tuesday, in most jurisdictions, polygraph evidence is per se inadmissible. The conventional wisdom is that polygraph results are a lot less reliable than people, including jurors, think them to be. So, does the same logic apply to home pregnancy tests? That was what the defendant claimed in People v. Prather, 2012 WL 5295801 (Ill.App. 2 Dist. 2012). So, how did the court rule?

In Prather, Clarence Prather was charged wuth two counts of aggravated battery (victim pregnant), one count of obstructing justice, and two counts of domestic battery.  Prior to trial, the State filed a motion in limine seeking permission for the alleged victim (B.R.) to testify that she had used a home pregnancy test kit and had shown the positive result to the defendant.

Among other arguments, "Prather compare[d] home pregnancy tests to polygraph ("lie detector") tests, the results of which may not be used as evidence." The Appellate Court of Illinois, Second District, disagreed, concluding that

The supreme court has explained that polygraph tests pose a special danger because they suggest to jurors that they need not make their own credibility determinations (because the polygraph will tell them who is lying), but the tests are not sufficiently accurate and reliable to prove guilt or innocence....By contrast, home pregnancy tests do not purport to "testify" about the credibility of defendants or others, and thus do not encourage the jurors to abdicate making their own credibility assessments. Although the defendant argues that home pregnancy tests might have a tendency to over-persuade a jury in excess of their actual reliability, they are no different from other forms of scientific evidence or test results in that regard, and their reliability may be challenged at trial in the same manner. Accordingly, there is no basis for extending the per se bar against polygraph evidence to home pregnancy tests.

-CM

Dog Day Afternoon: Supreme Court Oral Arguments Today In Jardines & Harris

Today, the Supreme Court will hear oral arguments in the two drug sniffing dog cases: Jardines v. State, 73 So.3d 34, 49 (Fla. 2011) and Harris v. State, 71 So.3d 756 (Fla. 2011). Here was my blog post about theamici brief in Jardines: Jardines post. And here was my blog post about the amici brief in Harris: Harris post.

-CM

EvidenceProf Blog's 6th Annual Halloween Movie Pick

Earlier this year, The Weinstein Company released the schlocktastic "Piranha 3DD" in theaters. The film, scripted by Marcus Dunstan and Patrick Melton and directed by John Gulager, was a reunion of sorts, coming seven years after their collaboration on the horror movie, "Feast." "Feast" was the product of the third season of the late, great "Project Greenlight," the show in which neophyte screenwriters and directors were given the chance to become the next Matt Damon and Ben Affleck. 

The third season of "Project Greenlight" was its last, with the attempt to shift to genre filmmaking in the wake of the financial failures of "Stolen Summer" and "The Battle of Shaker Heights" being unsuccessful, but the PGL franchise has several lasting legacies: Shia LaBeouf. Chris Moore. "Project Runway," Dunstan and Melton went on to pen the last four "Saw" movies. And who's to say that Affleck didn't learn a thing or two about what not to do as a director from the show before helming such well received productions as "Gone Baby Gone," "The Town," and "Argo."

Many are calling "Argo" the Oscar favorite this year. That film concerns a 1980 joint CIA-Canadian secret operation to extract six fugitive American diplomatic personnel out of revolutionary Iran. Specifically, the operation consisted of the creation of the titular fake science fiction film as a cover for sneaking operatives into Iran and sneaking American hostages out. Here's an idea: How about reteaming Gulager, Melton, and Dunstan to make the fake science fiction movie into an actual movie? Sure, it's sci-fi and not horror, so it's not quite in their wheelhouse, but with the success and publicity of "Argo," you'd have to think that an actual "Argo" movie could do quite well.

As for  "Feast," well, I can't recommend it for the reasons stated in the review below (from my days reviewing DVDs), but I wholeheartedly recommend all three seasons of "Project Greenlight." 

Feast

(The Weinstein Company, 10.17.2006)

At the opening to the third (and final) season of Project Greenlight, the Dimension Films representatives threw in the creative towel. After the commercial wipeout of the series' first two films (Stolen Summer and The Battle of Shaker Heights), they decided to aim for the lowest common denominator and greenlight a horror-comedy script that everyone from Wes Craven to Matt Damon recognized was neither scary nor funny. Their reasoning was that the horror genre was hot and that even critical trash could become box office treasure. What they failed to realize is that horror comedies almost never do well commercially and that a horror film approved for the masses by studio heads, but hated by the Master of Horror, isn't likely to connect with anyone. 

Like Peter Berg's The Rundown, Feast opens in a bar with freeze frame graphics giving us the vital stats on its patrons. The bar, The Beer Trap, is a desert watering hole populated by the likes of Henry Rollins' surprisingly keyed down motivational speaker, Balthazar Getty's misogynist prick, Krista Allen's trick-turning single mom, and Jason Mewes's...Jason Mewes. Eric Dane's Hero and Navi Rawat's Heroine soon appear and tell them that they accidentally crashed into a Skekses-like creature and that its parents have descended upon the bar for revenge. What follows is copious amounts of gore, surprisingly sparse humor, and blurry, zoomed-in, sped-up action scenes that are utterly impossible to follow.

It's clear that neophyte scribes Marcus Dunstan and Patrick Melton tried to fuse Assault on Precinct 13 with the second half of From Dusk Till Dawn to create a horror/comedy/action hybrid, but their script is plagued by a litany of stodgy characters who died on the page long before they die on the screen. Worse, Mewes, the only actor capable of spinning comic gold out of the writers' trite quips, is killed off in the first few minutes and center stage is ceded to Rawat (The O.C.), another studio concession, who kills every scene with her leaden delivery. The pacing of the film is also bizarrely off-kilter with a flurry of action at the very beginning, followed by horror and action beats that only randomly crop up in fits and starts.

Gulager was touted as a sort of directorial idiot savant on Project Greenlight 3, but there's little in the finished product to suggest a personal stamp on the material, which, to his credit, seems to have died a death by a thousand cuts. What's left is a film that dances about its limited budget with two left feet and drowns in a horrible heavy metal soundtrack.

The disc features an 88-minute, unrated version of the film with a murky 2.40:1 anamorphic widescreen transfer and Dolby Digital 5.1 sound. Gulager, the writers, 2 producers, and creature designer Gary J. Tunnicliffe (Candyman) contribute a commentary track which, like the film, is plagued by too many people with too little to say. We also get about 7 minutes of worthless deleted scenes, 3 minutes of humorless outtakes, a promo for the awful soundtrack, and some decent featurettes on the making of the movie (11 minutes) and its creature effects (about 9 minutes). My advice: pass on Feast and wait for the release of PGL3 on DVD.

-CM 

Which Lie Did I Tell? Texas Case Reveals That Polygraph Results Are Admissible In Probation Revocation Proceedings

As I have noted on several occasions, polygraph evidence is per se inadmissible in the vast majority of jurisdictions in the United States. Only New Mexico allows for the admission of polygraph evidence without the prior stipulation of the parties. Moreover, about a dozen states allow for the admission of polygraph evidence based upon a prior stipulation by the prosecution and defense. In these jurisdictions, polygraph results will be admissible if both sides stipulate to admissibility before the defendant takes the polygraph test.

The above, however, refers to the (in)admissibility of polygraph evidence at trial. Can a court, however, place a condition on probation pursuant to which the probationer must submit to periodic polygraph examinations and have his probation revoked if he either (a) fails to submit to such examinations; or (b) fails one of these examinations?

Here's a story and news clip about Melissa Williams being given an eight year prison sentence for violating the terms of her probation. Williams was out on probation after being convicted in 2008 for having an improper relationship with a 17 year-old. According to the article,

In Wednesday's probation hearing, Lisa Page, a supervision officer for Angelina County's probation department, argued that there was enough evidence to revoke her probation. Those little things included accessing the Internet without supervision, possession of pornography, having direct contact with a child under 17 without supervision, possession of alcohol, and association with a known felon.  However, the biggest issue was the fact that Williams failed three separate polygraph exams while she was taking classes at a rehab center in the Houston area. (emphasis added)

Such a result is not surprising. Courts across the country consistently find that judges can impose such polygraph conditions as conditions of probation. For instance, in Hoeppner v. State, 918 N.E.2d 695 (Ind.App. 2009), the Court of Appeals of Indiana found that it was permissible

to require that Hoeppner submit to [polygraph] examinations, the results of which may be used in future probation revocation proceedings. We acknowledge Hoeppner's concern that the clause seems to deprive him of due process rights by stating that positive results will constitute a probation violation, seemingly removing the State's obligation to prove that a violation has, in fact, occurred.

Recently, in Leonard v. State, 2012 WL 715981 (Tex.Crim.App. 2012), a lower court initially found that polygraph evidence is admissible in the somewhat similar context of community-supervision revocation hearings:

The Court fully understands the general inadmissibility of polygraphs; however, the Court feels that there is a distinction between admitting polygraphs outright to show that someone did or did not tell the truth and using them—considering them as the basis of an expert opinion as to whether someone poses a danger and a risk to this community, which is the Court's understanding of what the policy consideration at issue in this case is, is secret keeping and whether it can and should be allowed.

As a matter of first impression, the Court of Criminal Appeals of Texas then agreed with this conclusion.

Do I agree? I don't know. If what's good for the goose is good for the gander, then what's bad for the goose is bad for the gander. If polygraph results are too unreliable to be used to place a defendant behind bars for committing a crime, why are they good enough to be used to place a probationer behind bars for eight years for violating a condition of probation?

-CM

It Was 20 Years Ago Today: Documents Created On October 29, 1992 Are Now "Ancient" Documents

The other day, as we were toggling through the various music channels in our U-verse package, my wife and I came upon the "Classic Alternative" station. A song came on, possibly from Nirvana, and my wife expressed surprise that something from the early 1990s would be classified as "classic." The evidence analogue to this reaction can be found in Federal Rule of Evidence 803(16) and Federal Rule of Evidence 901(b)(8).

Federal Rule of Evidence 803(16) provides an exception to the rule against hearsay for

Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.

Meanwhile, Federal Rule of Evidence 901(b)(8) provides for authentication under the following circumstances:

Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 20 years old when offered.

So, as in the recent case, WRR Environmental Services, Inc. v. Admiral Ins. Co., 2012 WL 3904364 (E.D.Wis. 2012), a document is now "ancient" if it was created in 1983. And so is a document created in 1991 (such as the liner notes to "Nevermind") or most of 1992. Next year, In Utero will be 20 years' old. It is odd to think of anything from the early 1990s as "classic." It is even odder to think of that same thing as ancient.

-CM

I Rest My Case, Take 6: Eastern District Of Michigan Applies Rule 614(b) Test To Rule 614(a)

In a series of five posts, I have addressed the question of whether judges should be able to use their power under Federal Rule of Evidence 614(a) and state counterparts to call additional witnesses after both parties have rested. One of the reasons that I have written these posts is that I wonder whether courts should be able to call witnesses after both parties have rested, particularly in a criminal case. Another reason, however, is the simple lack of much precedent at all about whether and when judges can exercise their Rule 614(a) power either after or after the parties have rested. In United States v. Flores, 702 F.Supp.2d 794 (E.D.Mich. 2010), the Eastern District of Michigan noted this gap in precedent and attempted to fill the void. So, how did it do?

In Flores, Alberto Flores was charged with some type of conspiracy, and the judge attempted call his co-defendant, Shahin Judeh, pursuant to Federal Rule of Evidence 614(a), which provides that

The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.

Unfortunately, the case doesn't give any details on the nature of the conspiracy or Judeh's proposed testimony, but what we do know is that Flores objected to the judge calling him as a witness. According to the court,

As Defendant points out, Rule 614(a) provides neither explicit standards nor general signposts for ensuring that a court remains on the permissible "judicial" side of this line, and the case law likewise fails to shed much light on this precise question. Nonetheless, this same potential danger of improper judicial "advocacy" is equally present when a court exercises its authority under Rule 614(b) to interrogate a witness called by one of the parties. In either event, the court's involvement poses the risk of an "appearance of partiality which can easily arise if the judge intervenes continually on the side of one of the parties."...Along the same lines, the Fourth Circuit has emphasized that "[t]rial judges are not backstop counsel, entitled to step in whenever a point may be more eloquently delivered or a tactical misstep avoided."...

Yet, as illustrated by the abundant case law addressing a trial court's authority under Rule 614(b) to question witnesses, this mere potential for abuse does not dictate that a court altogether refrain from exercising this authority; it merely imposes upon the court an obligation to proceed with care when doing so.

The court then found that

Applying this analogous case law here, it is clear that an abstract potential for abuse is not enough to defeat the Court's authority under Rule 614(a) to call a witness. Rather, the Court must proceed carefully when exercising this authority, and must ensure that it acts consistently with its judicial role. As explained in the February 10 order, the Court has determined that"“its fact-finding obligations, as well as the interests of justice, will best be served by calling Mr. Judeh as a witness pursuant to Rule 614(a)."...In so ruling, the Court is confident that it has not abandoned its judicial role and become an advocate for either party. To the contrary, the Court views this ruling as part and parcel of its obligation to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... make the interrogation and presentation effective for the ascertainment of the truth."..."It is neither possible nor desirable for district judges to sit back and observe trials as nonchalant spectators."...Rather, "[i]t is the very function of the trial court to establish the facts as clearly and completely as possible."

-CM