EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, July 13, 2012

No Lie: California Case Reveals The State Has A Specific Rule Banning The Admission Of Polygraph Results

As I have noted before, New Mexico is the only United States jurisdiction that makes polygraph evidence presumptively admissible barring a prior stipulation by the parties. That said, in most jurisdictions, there is not a specific rule of evidence deeming polygraph results per se inadmissible; instead, courts in most jurisdictions simoly deem such results inadmissible under a variety of evidentiary rules. As the recent opinion in People v. Wherry, 2012 WL 2528304 (Cal.App. 1 Dist. 2012), makes clear, however, California does have a specific rule of evidence dealing with polygraph results.

In Wherry, Clifton Wherry, Jr. and Dwight Campbell were both convicted of felony murder, which occurred during the robbery of an armored truck Wherry was driving. Before trial,

Wherry moved to suppress his confession to police, claiming it was involuntary because Sergeant Jones threatened him with the death penalty and promised him a two-year prison deal if he confessed. In support of his motion to suppress, Wherry sought to introduce the results of a polygraph test he took, which he maintained supported his claim Jones offered him a two-year deal. The court denied his motion....

After he was convicted, Wherry appealed, claiming, inter alia, that the exclusion of the polygraph results violated his right to present a defense. The Court of Appeal, First District, Division 1, California, disagreed, initially noting that the polygraph results were inadmissible under California Evidence Code Section 351.1(a), which provides that

Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.

The court then noted that "[t]he California Supreme Court has repeatedly held section 351.1 does not violate a criminal defendant's constitutional rights." Finally, the court found that its opinion was consistent with United States v. Scheffer, 523 U.S. 303 (1998), which found that Military Rule of Evidence 707's per se ban on the admissibility of polygraph results did not violate the defendant's right to present a defense.



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