2.13Polygraph

A.Admissibility of Polygraph Examination or Results at Trial

Evidence that a polygraph examination was taken or refused, or the results of a polygraph examination are not admissible in a criminal prosecution or a civil trial. People v Barbara, 400 Mich 352, 364 (1977); People v Kahley, 277 Mich App 182, 183 (2007).

The exclusion of polygraph evidence is based on the basic rationale that polygraphs have not gained the required degree of acceptance or standardization among scientists. Barbara, 400 Mich at 364.; People v Ray, 431 Mich 260, 265 (1988). Exclusion of polygraph results is also based “upon the judicial estimate that the trier of fact will give disproportionate weight to the results and consider the evidence as conclusive proof of guilt or innocence.” Ray, 431 Mich at 265.

Notwithstanding this policy of exclusion, statements made by a defendant before, during, or after the administration of a polygraph examination are not excludable per se. Ray, 431 Mich at 268. “Current procedures designed to test the voluntariness of such statements are adequate to insure that a statement that is unreliable or obtained without a knowing and intelligent waiver of a defendant’s rights will not be used at trial.” Id.

The mere mention of a polygraph test may not require a mistrial. People v Nash, 244 Mich App 93, 98 (2000). The court should consider the following factors in determining whether mention of a polygraph is ground for a mistrial:

“(1) whether defendant objected and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to bolster a witness’s credibility; and (5) whether the results of the test were admitted rather than merely the fact that a test had been conducted.” Nash, 244 Mich App at 98 (quotation marks and citations omitted).

If evidence of a polygraph test is admitted or improper argument is made about it, the court should immediately instruct the jury to disregard the evidence and inform the jury of the unreliability of such tests. See People v Ranes, 63 Mich App 498, 501-502 (1975).

1.Mention of Polygraph Required Reversal

When, during a bench trial, the prosecutor mentioned a defendant’s polygraph examination, a copy of which was filed with the court, and the judge questioned the officer regarding the number of polygraph tests he had performed in the past, the conviction was reversed because the prosecutor’s injection of the polygraph testing and results was unfairly prejudicial to the defendant’s case, even though the trial court found it had not been influenced by this information. People v Smith, 211 Mich App 233, 234-235 (1995) (concluding that this was unfairly prejudicial “because it provided supposedly scientific evidence of defendant’s lack of credibility”).

Referencing a key prosecution witness’s polygraph during direct examination seriously affected the fairness of the trial and required a reversal. People v Nash, 244 Mich App 93, 95, 101 (2000) (defendant was prejudiced where “the reference to the polygraph test was brought out by the prosecutor, not as a matter of defense strategy, and . . . the key prosecution witness, who was involved in the crime and was the crucial witness against the defendant, gave a responsive answer to the prosecutor’s question that was posed with the intent of bolstering the witness’ credibility and was later repeated before the jury during deliberations”). Id.

2.Mention of Polygraph Did Not Require Reversal

“[R]eversible error does not exist where the polygraph reference is unsolicited, no mention is made of the results, and where the court gives a complete cautioning instruction.” People v Ranes, 63 Mich App 498, 502 (1975). See Section 2.13(A) for information on cautionary instructions.

A witness’s reference to conducting a “specialized interview” with the defendant was not considered improper or inadmissible because there was no specific reference to the fact that the interview was in fact a polygraph examination. People v Triplett, 163 Mich App 339, 342-344 (1987), remanded on other grounds 432 Mich 568 (1989).¹ In addition, another witness’s testimony that was interrupted mid-sentence by the court before the witness could mention the polygraph results was neither improper nor inadmissible because there was no specific reference to the fact that the defendant had failed the polygraph examination. Triplett, 163 Mich App at 342-344 (furthermore, neither witness “deliberately attempted to inform the jury that defendant had failed his polygraph examination”).

A police officer’s testimony that the defendant refused to take a polygraph examination did not require reversal because the officer’s reference was singular and brief; the prosecutor did not argue that the defendant’s failure to take a polygraph examination was evidence of the defendant’s guilt; the defendant himself testified that he asked to take a polygraph test but was never given one; and the defendant confessed to the crime. People v Kahley, 277 Mich App 182, 183-184 (2007).

B.Admissibility of Polygraph Examination or Results at Sentencing

“[A] trial judge should not broach the subject of polygraph examinations nor induce defendant to take the examination for sentencing purposes.” People v Towns, 69 Mich App 475, 478 (1976). A defendant’s presentence report should not contain the results of a polygraph examination unless the defendant consents to their inclusion, and a trial judge should not consider polygraph-examination results when sentencing a defendant. People v Allen, 49 Mich App 148, 151-152 (1973). The integrity of a judge who claims he or she “only relied on trial evidence in sentencing” is unquestioned, but “the danger of [the trial judge’s] being influenced is too grave to ignore.” Towns, 69 Mich App at 478. The defendant must be resentenced by a second judge with access only to a presentence investigation report that is void of any information regarding a polygraph test. Id. at 479.

C.Exception to Inadmissibility: Motions for New Trial² and to Suppress Evidence

Polygraph results may be admissible in support of a motion for new trial. People v Barbara, 400 Mich 352, 412 (1977). In addition, the court has discretion to admit polygraph results in support of a motion to suppress illegally seized evidence. People v McKinney, 137 Mich App 110, 114-117 (1984). In exercising its discretion to decide whether to admit polygraph evidence during a postconviction hearing for a new trial or in support of a motion to suppress, the evidence must meet the following conditions:

(1) the results are offered on the defendant’s behalf;

(2) the test was taken voluntarily;

(3) the professional qualifications of the polygraph examiner must be approved;

(4) the quality of the polygraph equipment must be approved;

(5) the procedures employed must be approved;

(6) either the prosecutor or the court may obtain an independent examination of the subject by an operator of the court’s choice, or the independent operator is permitted to review the original data with the original operator, or both;

(7) the results must be considered only with regard to the general credibility of the subject;

(8) any affidavits or testimony by the test operator must be a separate record and must not be used at a subsequent trial; and

(9) the judge granting a new trial may not sit as trier of fact in the new trial. However, he or she may preside in a subsequent jury trial. A substitute judge can have no knowledge of the polygraph examination or its results. McKinney, 137 Mich App at 117.

See People v Mechura, 205 Mich App 481 (1994), for an example of proper use of polygraph evidence in the context of a motion for a new trial based on newly discovered evidence.

D.Right to Counsel

See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 4, for information on the right to counsel.

E.Defendant’s Right to Polygraph

A defendant accused of committing a criminal sexual conduct offense has the right to request a polygraph examination. MCL 776.21(5). See the Michigan Judicial Institute’s Sexual Assault Benchbook, Chapter 6, for more information on polygraph tests in criminal sexual conduct cases.

F.Polygraph Examiners Privilege

There is a statutory privilege that applies to polygraph examiners. MCL 338.1728. Information obtained by a polygraph examiner during an examination conducted at the request of an attorney is subject to the attorney-client privilege. In re Petition of Delaware, 91 Mich App 399, 406-407 (1979). See Section 1.9 for information on privilege.