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