Polygraph

In general

• As a general matter, Indiana courts look with disfavor on the admission of polygraph examinations into evidence in criminal proceedings.

State v. Wroe, 16 N.E.3d 462, 466 (Ind. Ct. App. 2014), trans. denied

Rationale

• We discourage the admission of polygraph evidence because of the procedure's unreliability combined with its likelihood of unduly influencing a jury's decision.

Majors v. State, 773 N.E.2d 231, 238 (Ind. 2002)(citing Smith v. State, 547 N.E.2d 817, 820 (Ind. 1989))

See Kremer v. State, 514 N.E.2d 1068, 1073 (Ind. 1987), reh’g denied(citing Evans v. State, 489 N.E.2d 942, 947 (Ind. 1986))(“The results of polygraph examinations are inadmissible because their value is highly questionable and the jury may attach undue weight to the result.”)

See also A.H. v. State, 941 N.E.2d 559, 561 (Ind. Ct. App. 2011)(quoting Kimmel v. State, 418 N.E.2d 1152, 1157 (Ind. 1981), cert. denied, 454 U.S. 932 (1981))(“The reasons for this rule are our supreme court's concerns that polygraphs are ‘not sufficiently accurate to mandate [their] admission’ and that juries may ‘give undue weight to a polygraph test's validity.’”)

• Polygraphs are inherently unreliable.

Sauzer-Johnsen v. Sauzer, 544 N.E.2d 564, 569 (Ind. Ct. App. 1989), reh’g denied

See C.T.S. v. State, 781 N.E.2d 1193, 1198 (Ind. Ct. App. 2003), trans. denied(citing Gray v. State, 758 N.E.2d 519, 522 (Ind. 2001))(“In general, polygraph examinations are not admissible as evidence in Indiana because of their inherent unreliability.”)

See also Reid v. State, 372 N.E.2d 1149, 1152 (Ind. 1978)(“[I]n any given case, unreliable results may be produced in a polygraph test by influences that cannot be controlled or compensated for by a competent examiner.”)

Cf. Willey v. State, 712 N.E.2d 434, 441 (Ind. 1999)(“[T]he courts of this state have repeatedly and correctly expressed severe reservations about the reliability of polygraph results.”)

• The problem with evidence concerning a polygraph examination is that it has the potential to cause a jury to make erroneous inferences that prejudice a certain party. Typically, we are faced with a situation where the State or a witness for the State refers to a polygraph examination. In this situation, the jury often infers, sometimes erroneously, that the defendant took the exam and failed it or refused to take the test because he was being untruthful. This inference has a prejudicial impact on the defendant because it causes the jury to view him or her as untruthful. However, here, the defendant referred to a polygraph examination. When the defendant refers to a polygraph exam, the jury is led to infer, perhaps erroneously, that the defendant took the test and passed or was not given the opportunity to take the exam because he was not guilty. This inference causes the jury to view the defendant as truthful, and, thus, has a prejudicial impact upon the State.

Shriner v. State, 829 N.E.2d 612, 619 (Ind. Ct. App. 2005)

Admissibility: General rule

• The results of a polygraph examination, or the offer or refusal to take an examination, are not admissible in a criminal prosecution absent a waiver or stipulation by the parties.

Vega v. State, 656 N.E.2d 497, 501 (Ind. Ct. App. 1995), reh’g denied, trans. denied(citing Houchen v. State, 632 N.E.2d 791, 793 (Ind. Ct. App. 1994))

See Speer v. State, 995 N.E.2d 1, 9 (Ind. Ct. App. 2013), trans. denied(quoting Houchen v. State, 632 N.E.2d 791, 793 (Ind. Ct. App. 1994))(“It is well-settled Indiana law that ‘the results of a polygraph examination, or the offer or refusal to take a polygraph examination, are not admissible in criminal prosecution absent a waiver or stipulation by the parties.’”)

See also Sandifur v. State, 815 N.E.2d 1042, 1046 (Ind. Ct. App. 2004), trans. denied(citing Houchen v. State, 632 N.E.2d 791, 793 (Ind. Ct. App. 1994))(“The law in Indiana is well settled that the results of a polygraph examination, or the offer or refusal to take a polygraph examination, are not admissible in a criminal prosecution absent waiver or stipulation by the parties.”)

See also Shriner v. State, 829 N.E.2d 612, 618 (Ind. Ct. App. 2005)(citing Glenn v. State, 796 N.E.2d 322, 325 (Ind. Ct. App. 2003), trans. denied(“Proof of the fact that a polygraph examination was taken or refused is, in the absence of waiver or stipulation, inadmissible in a criminal prosecution.”)

• This rule has been extended to encompass even the mention that a party or a witness took a polygraph examination.

Reese v. State, 452 N.E.2d 936, 938 (Ind. 1983), reh’g denied(citing Vacendak v. State, 340 N.E.2d 352, 357 (Ind. 1976), reh’g denied, cert. denied, 429 U.S. 851 (1976))

See Lahrman v. State, 501 N.E.2d 1109, 1113 (Ind. Ct. App. 1986)(citing Swan v. State, 462 N.E.2d 68, 71 (Ind. 1984))(“Absent some sort of waiver, not even the mention that a polygraph exam was taken will be permitted.”)

Admissibility: Discretion of trial court

• As a general proposition a trial court is given wide discretion in determining the admissibility of evidence. However, it has no discretion to admit evidence of a polygraph examination absent a waiver or stipulation entered into by both parties.

Albrecht v. State, 737 N.E.2d 719, 725 (Ind. 2000), reh’g denied(citing Wright v. State, 593 N.E.2d 1192, 1194-95 (Ind. 1992), cert. denied, 506 U.S. 1001 (1992), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206-07 (Ind. 2007))(emphasis added)

Admissibility: Prerequisites for admission

• [O]ur Supreme Court has held that polygraphs are admissible only when four prerequisites are met:

(1) the prosecutor, defendant, and defense counsel must all sign a written stipulation providing for the defendant's submission to the examination and for the subsequent admission at trial of the results;

(2) the admissibility of the test results must be within the trial court's discretion as it relates to the examiner's qualifications and the test conditions;

(3) the opposing party must have the right to cross-examine the polygraph examiner if his graphs and opinion are offered in evidence; and

(4) the jury must be instructed that, at most, the examiner's testimony tends only to show whether the defendant was being truthful at the time of the examination, and that it is for the jury to determine the weight and effect to be given such testimony.

State v. Wroe, 16 N.E.3d 462, 466 (Ind. Ct. App. 2014), trans. denied(citing Sanchez v. State, 675 N.E.2d 306, 308 (Ind. 1996))

See J.R.T. v. State, 783 N.E.2d 300, 305 (Ind. Ct. App. 2003), trans. denied(citing Wiley v. State, 712 N.E.2d 434, 439 (Ind. 1999))(“[A]dmission of polygraph evidence is permitted where four prerequisites are met: (1) the prosecution, defendant, and defense counsel must all sign a written stipulation providing for the defendant's submission to the examination and for the subsequent admission at trial of the results; (2) notwithstanding that stipulation, the admissibility of the test results is at the trial court's discretion regarding the examiner's qualifications and the test conditions; (3) the opposing party shall have the right to cross-examine the examiner if his or her graphs or opinions are offered into evidence; and (4) the jury is instructed that, at most, the examiner's testimony tends only to show whether the defendant was being truthful at the time of the examination, and that it is for the jury to determine the weight and effect to be given to the examiner's testimony.”)

See also Jackson v. State, 735 N.E.2d 1146, 1152-53 (Ind. 2000)(citing Wiley v. State, 712 N.E.2d 434, 439 (Ind. 1999))(“[A]dmission of polygraph evidence is permitted where four prerequisites are met: (1) the prosecution, defendant, and defense counsel must all sign a written stipulation providing for the defendant's submission to the examination and for the subsequent admission at trial of the results; (2) notwithstanding that stipulation, the admissibility of the test results is at the trial court's discretion regarding the examiner's qualifications and the test conditions; (3) the opposing party shall have the right to cross-examine the examiner if his or her graphs or opinions are offered into evidence; and (4) the jury is instructed that, at most, the examiner's testimony tends only to show whether the defendant was being truthful at the time of the examination, and that it is for the jury to determine the weight and effect to be given to the examiner's testimony.”)

Admissibility: Opening the door to admission

• In some narrow circumstances . . . a party may open the door to admission of polygraph evidence.

Majors v. State, 773 N.E.2d 231, 238 (Ind. 2002)

See Shriner v. State, 829 N.E.2d 612, 619 (Ind. Ct. App. 2005)(citing Majors v. State, 773 N.E.2d 231, 238 (Ind. 2002))(“[W]e have also stated that in some narrow circumstances, a party may open the door to admission of polygraph evidence.”)

• [The defendant’s] statements could mislead the jury into thinking that his truthfulness was verified by a polygraph examination, when in fact there was evidence that its results were inconclusive. Such testimony further concealed his failure to pass a polygraph examination when questioned in 1985. . . . Once the defendant opened the door to the proscribed evidence he waived any objection to the admission of the the [sic] polygraph results. The trial court did not err in permitting the State to present the polygraph results in rebuttal.

Willoughby v. State, 552 N.E.2d 462, 469 (Ind. 1990)

Prerequisites for admission: In general

• A stipulation entered into by a defendant and the State before a polygraph examination is a binding contract.

State v. Wroe, 16 N.E.3d 462, 466 (Ind. Ct. App. 2014), trans. denied(citing Willey v. State, 712 N.E.2d 434, 440 (Ind. 1999))

See Kochersperger v. State, 725 N.E.2d 918, 925 (Ind. Ct. App. 2000)(“The stipulation is a contract between the State and [the defendant].”)

• Therefore, contract law principles control the use and interpretation of such stipulations.

State v. Wroe, 16 N.E.3d 462, 466 (Ind. Ct. App. 2014), trans. denied(citing Willey v. State, 712 N.E.2d 434, 440 (Ind. 1999))

See Kochersperger v. State, 725 N.E.2d 918, 925 (Ind. Ct. App. 2000)(citing Willey v. State, 712 N.E.2d 434, 440 (Ind. 1999))(“As such, contract principles control its use and interpretation . . . .”)

• [The defendant’s] claim that the State's failure to consent to admission of the results denied him a fair trial is unavailing. The State is not required to stipulate to the admission of polygraph results.

Albrecht v. State, 737 N.E.2d 719, 725 (Ind. 2000), reh’g denied(citing Hestand v. State, 491 N.E.2d 976, 979 (Ind. 1986))(emphasis added)

Prerequisites for admission: Signing a written stipulation

• A waiver or stipulation must be written and signed by both parties to be enforceable.

Patterson v. State, 532 N.E.2d 604, 606 (Ind. 1988)(citing Helton v. State, 479 N.E.2d 538, 539 (Ind. 1985))

• There is no question that [the defendant’s] polygraph results were properly admitted into evidence. The letters from [the defendant’s] counsel and from the prosecutor's office make it clear that [the defendant’s] agreements to take a polygraph test and to allow the results to be admitted at trial were tied to the testing of and admissibility of the results of the [polygraph] tests of [two witnesses]. In a case such as this, where the parties clearly intend that the results of all three polygraph results be admissible into evidence, we find that the absence of signature by [the defendant] or his counsel on the witnesses' Stipulation does not render inadmissible the polygraph test results of the witnesses.

Hovenden v. State, 721 N.E.2d 1267, 1271 (Ind. Ct. App. 1999), reh’g denied, trans. denied

• [The defendant] makes much of the fact that his stipulation was not signed by defense counsel because he had no representation at that time and argues that the first prerequisite . . . was therefore not met. However, [the defendant] was fully advised of his right to counsel prior to executing the stipulation . . . and waived such right by signing the advice of rights form provided by Detective Thompson. [The defendant] chose to sign the stipulation without counsel and does not contend on appeal that his waiver of the right to counsel was involuntarily or unknowingly made. Thus, he cannot now complain that his right to have counsel present when he signed the stipulation was impinged upon, nor can he challenge the validity of the stipulation for lack of defense counsel's signature.

Kochersperger v. State, 725 N.E.2d 918, 922-23 (Ind. Ct. App. 2000)

Prerequisites for admission: Discretion of the trial court

• [W]here the parties have stipulated to the admissibility of the results, as here, they may be admitted in the trial court's discretion.

Wine v. State, 637 N.E.2d 1369, 1375 (Ind. Ct. App. 1994), trans. denied(citing Owens v. State, 373 N.E.2d 913, 914 (Ind. Ct. App. 1978))

See Rynerson v. City of Franklin, 669 N.E.2d 964, 970 (Ind. 1996)(citing Sauzer-Johnsen v. Sauzer, 544 N.E.2d 564, 568 (Ind. Ct. App. 1989), reh’g denied)(“The trial court has discretion to admit polygraph results where there is a valid stipulation.”)

Prerequisites for admission: Test conditions and the examiner’s qualifications

• [The defendant] argues that the exam was conducted under improper conditions, thus making the results inherently unreliable. Specifically, he argues that the examination was conducted by a law enforcement official, who could not be expected to conduct a fair and impartial exam. Hudson, a certified polygraph examiner, conducted [the defendant’s] examination. Hudson was also the Sheriff of Boone County, but was in no way connected to the investigation being conducted by Conservation Officer Hutchins or the Parke County Sheriff's Department. . . . Hudson testified at length at the motion to suppress hearing and at the trial about his procedures in administering polygraph examinations. The examination consisted of relevant and control questions. He reviewed the questions with [the defendant] before the test began, giving [the defendant] the opportunity to object to the questions. [The defendant] did object to one of the questions, and Hudson reworded the question so that [the defendant] could answer it honestly. Further, Hudson testified that in administering a polygraph, his duty is to the examinee to ensure that the test results are accurate. [The defendant] points to no conduct on the part of Hudson that would call into question his integrity in administering the test. We see nothing in this procedure to undermine our confidence in the test results.

Davies v. State, 730 N.E.2d 726, 738 (Ind. Ct. App. 2000), reh’g denied, trans. denied, cert. denied, 532 U.S. 945 (2001)

Prerequisites for admission: Right of the opposing party to cross-examine the polygraph examiner

• We agree that where the results of the polygraph examination are offered into evidence[,] the opposing party has the right to cross-examine the examiner as to:

“a. the examiner's qualifications and training;

“b. the conditions under which the test was administered;

“c. the limitations of and possibilities for error in the technique of polygraphic interrogation; and

“d. at the discretion of the trial judge, any other matter deemed pertinent to the inquiry.”

Taylor v. State, 409 N.E.2d 1246, 1250 (Ind. Ct. App. 1980), reh’g denied(quoting Owens v. State, 373 N.E.2d 913, 915 (Ind. Ct. App. 1978))

Prerequisites for admission: Form and contents

• [T]here is no requirement that the latter three prerequisites be incorporated into the stipulation outlined in the first one; the latter three were observed at trial and so met the requirements . . . .

Davidson v. State, 558 N.E.2d 1077, 1086 (Ind. 1990)

See Jackson v. State, 735 N.E.2d 1146, 1153 (Ind. 2000)(citing Davidson v. State, 558 N.E.2d 1077, 1086 (Ind. 1990))(“There is no requirement that prerequisites (2) and (3) be incorporated into the stipulation.”)

See also State v. Wroe, 16 N.E.3d 462, 468 (Ind. Ct. App. 2014), trans. denied(citing Jackson v. State, 735 N.E.2d 1146, 1153 (Ind. 2000))(“While it is true that the Stipulation does not explicitly state that the trial court would retain discretion regarding the admissibility of the polygraph, our Supreme Court has held that a stipulation is not required to make an explicit statement in this regard.”)

Reference to polygraph examinations: In general

• Reference to a polygraph in most cases should not be permitted.

Carter v. State, 512 N.E.2d 158, 165 (Ind. 1987)(citing Swan v. State, 375 N.E.2d 198, 201 (Ind. 1978))

• “A defendant is prohibited from stating he offered to take a polygraph test and the State is equally prohibited from referring to such a test.”

Shriner v. State, 829 N.E.2d 612, 618 (Ind. Ct. App. 2005)(quoting Couch v. State, 527 N.E.2d 183, 185 (Ind. 1988))

Reference to polygraph examinations: Grounds for a mistrial

• In general, a reference to a polygraph examination without an agreement by both parties is inadmissible and grounds for error.

Myers v. State, 887 N.E.2d 170, 191 (Ind. Ct. App. 2008), reh’g denied, trans. denied(citing Glenn v. State, 796 N.E.2d 322, 325 (Ind. Ct. App. 2003), trans. denied)(emphasis added)

Shriner v. State, 829 N.E.2d 612, 619 (Ind. Ct. App. 2005)(quoting Glenn v. State, 796 N.E.2d 322, 325 (Ind. Ct. App. 2003), trans. denied)

• We also have held that to admit facts that indicate a witness has taken a polygraph test is error.

Brown v. State, 587 N.E.2d 111, 113 (Ind. 1992)(citing Conn v. State, 535 N.E.2d 1176, 1180 (Ind. 1989))

• Here, though free to examine [the witness] about the other conditions of his plea agreement, the prosecutor should have made no mention of the provision requiring [the witness] to take a polygraph test at the State's request. That questioning was colorable cause for a mistrial.

Lay v. State, 659 N.E.2d 1005, 1013 (Ind. 1995), reh’g denied

• It was the State's witness, Officer William Jones, who introduced the comment which caused the mistrial. Officer Jones' introduction of the word polygraph into testimony created the requisite prejudice necessary to terminate the first trial. References to polygraph exams, without stipulation of both parties, are inadmissible in Indiana.

Willoughby v. State, 660 N.E.2d 570, 576 (Ind. 1996)(citing Moore v. State, 369 N.E.2d 628, 620 (Ind. 1977))

• Here, after [the defendant] mentioned a lie detector test during his testimony, [the defendant’s] counsel did not make a motion asking that the trial court declare a mistrial. In fact, [the defendant] could not have made such a motion because he was the one who introduced this evidence. The State could have made a motion for a mistrial because [the defendant’s] comment about the lie detector test was prejudicial to its case, but it did not do so.

Shriner v. State, 829 N.E.2d 612, 618 (Ind. Ct. App. 2005)

Reference to polygraph examinations: Remedies aside from declaring a mistrial

• Generally, when the trial court admonishes the jury to disregard inadmissible evidence regarding a polygraph examination, the prejudicial impact of that evidence may be sufficiently mitigated.

Shriner v. State, 829 N.E.2d 612, 619 (Ind. Ct. App. 2005)(citing Glenn v. State, 796 N.E.2d 322, 325 (Ind. Ct. App. 2003), trans. denied)

See Myers v. State, 887 N.E.2d 170, 191 (Ind. Ct. App. 2008), reh’g denied, trans. denied(citing Sherwood v. State, 702 N.E.2d 694, 698 (Ind. 1998), reh’g denied)(“[W]hen the trial court admonishes the jury to disregard the inadmissible evidence, the prejudicial impact of the evidence may be sufficiently mitigated.”)

• A mistrial is an extreme remedy and should only be used when no other curative measure will rectify a situation.

Shriner v. State, 829 N.E.2d 612, 618 (Ind. Ct. App. 2005)(citing Glenn v. State, 796 N.E.2d 322, 325 (Ind. Ct. App. 2003), trans. denied)

• The question of whether a defendant was so prejudiced that the admonition could not cure the error is one that must be determined by examining the facts of the particular case.

Myers v. State, 887 N.E.2d 170, 191 (Ind. Ct. App. 2008), reh’g denied, trans. denied(citing Williams v. State, 755 N.E.2d 1128, 1132 (Ind. Ct. App. 2001), trans. denied)

• For more information about mistrials and the discretion of the trial court to declare a mistrial, please review Mistrial.

Applicability to juvenile proceedings

• [The defendant] also argues that the rule regarding the admissibility of polygraph examinations that applies in criminal proceedings may not also apply to juvenile delinquency proceedings. However, polygraph examinations are inadmissible because of their inherent unreliability, and this reasoning applies regardless of whether the proceedings involve adult criminals or juveniles.

C.T.S. v. State, 781 N.E.2d 1193, 1198 n. 6 (Ind. Ct. App. 2003), trans. denied

Relationship to the defendant’s right to present a defense

• Earlier this year in Hubbard we gave extended treatment to a defendant's claim that our rule against the use of polygraph evidence conflicted with his constitutional right to present a defense. We reaffirm that analysis and again conclude that the “defendant's limited interest in putting on unreliable evidence does not outweigh the State's interest in ensuring that [only reliable evidence is introduced at trial].”

Gray v. State, 758 N.E.2d 519, 522 (Ind. 2001)(quoting Hubbard v. State, 742 N.E.2d 919, 924 (Ind. 2001), cert. denied, 534 U.S. 869 (2001))

• The State does not have the duty to prove the defendant's innocence; nor is it required to give a polygraph examination upon request. The mere refusal to give such does not indicate that the State “stifled” the defendant's efforts to prove his innocence.

Helton v. State, 402 N.E.2d 1263, 1265 (Ind. 1980)