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Univ. of South Carolina School of Law

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Monday, August 4, 2014

Shaken Baby, Shaken Defendant: Northern District of Mississippi Deems Polygraph-Related Testimony in Child Abuse Case

As is the case in most states, "[n]either the fact that a polygraph test was administered nor the results of any such test are admissible at trial under Mississippi law." But can evidence be presented that a polygraph examination was scheduled but not conducted? That was the question addressed by the United States District Court for the Nothern District of Mississippi in its recent opinion in German v. Streeter, 2014 WL 3699836 (N.D.Miss. 2014).

In Streeter, Cherelle German was convicted of felony child abuse after allegedly shaking a baby. At trial, defense counsel cross-examined Detective Scott Mills, who had testified about an incriminatory statement made by German.

During Detective Mills' cross-examination, in response to Mills' earlier testimony that German had met with Mills and provided a statement, defense counsel asked why German had been in his presence to begin with....At that point, the State requested a bench conference in order to alert the trial court to a possible problem. The State noted that German was present for a scheduled polygraph examination, but "instead of going through with it said I have to tell you something and went and admitted what is contained in the statement."...The prosecutor noted that the State had purposely avoided the subject out of concern that any testimony regarding the scheduled examination might be grounds for a mistrial....Defense counsel argued that he was not seeking testimony that there had been a polygraph examination, but that he was concerned that Mills' testimony on direct examination left the jury with the impression that German had simply come to law enforcement for the purpose of confessing.

In response, the judge held as follows:

He [the prosecutor] is fearful of any testimony about polygraph. But I think if we have a clear understanding that you think it helps your client then I think the usual error that might be associated with discussing polygraph is probably waived by you. I just want to make sure the record is clear because it's not, you know, a mistake or misunderstanding and that this is a deliberate tactical maneuver on your part which is fine. That is your decision. But it has to be relevant and I want you to state for the relevance of it so that I can make sure the record is clear and I can rule on it. What is the relevance of him coming in to show that he came in to be polygraphed rather than he came in to confess.

Thereafter, defense counsel proceeded with the same line of cross-examination, leading the state trial court to find that the defense had waived its objection to mention of the scheduled polygraph exam. On appeal, the state appellate court concluded as follows:

In terms of whether or not it was reversible error for the trial court to allow this evidence into the record, we find that it was not reversible error. After hearing German's trial counsel's reasons for introducing the evidence related to the polygraph test, the trial court stated that it understood that German was trying to establish the nature of the interrogation. "Whenever a defendant makes a calculated, tactical choice and comes out on the losing end, he cannot then shift the burden to the [S]tate or to the trial [court]."...This issue is without merit.

Subsequently, in Streeter, German filed a petition for writ of habeas corpus with the Nothern District of Mississippi but was met with a similar result. According to the court,

In the present case, the testimony elicited established only that a polygraph examination had been scheduled, but not conducted. Counsel was trying to show that German had not simply marched into the police station to confess—and that his ultimate statement that he had shaken the baby was taken out of context and under duress. No one testified that a polygraph examination took place—or that the examiner had come to a conclusion. As such, German cannot show that the State violated one of his constitutional rights.

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/08/as-is-the-case-in-most-states-neither-the-fact-that-apolygraphtest-was-administered-nor-the-results-of-any-such-test-are-a.html

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