Sunday, March 29, 2009

New Jersey Thinks Again about the Polygraph Test

The Supreme Court of New Jersey recently declined to completely outlaw the admission of polygraph evidence. However, the NJ Supreme Court retained its rule that in the absence of a stipulation, polygraph evidence is inadmissible. In addition, it held that a stipulation without the advice of counsel is ineffective. Finally, it said that the "next time" a party seeks to introduce polygraph evidence pursuant to a stipulation, the trial court must hold a hearing to determine the reliability of polygraph evidence. See State v. A.O., --- N.J. ----, --- A.2d ----, 2009 WL 529149 (N.J.,March 4, 2009). In reaching these conclusions New Jersey's Supreme Court said (footnotes omitted) the following things:

IV.

We next consider the enforceability of the stipulation in light of the law regarding polygraph evidence and the facts of this case.

A.

As a general rule, polygraph results are not admissible in evidence in New Jersey. State v. Domicz, 188 N.J. 285, 312-13, 907 A.2d 395 (2006); McDavitt, supra, 62 N.J. at 44, 297 A.2d 849; State v. Driver, 38 N.J. 255, 261, 183 A.2d 655 (1962). In 1972, this Court held in McDavitt that "to date ... lie detector testing has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception." 62 N.J. at 44, 297 A.2d 849. We reaffirmed that view recently and noted that "[i]n the more than thirty years since McDavitt, serious questions about the reliability of polygraph evidence remain." Domicz, supra, 188 N.J. at 313, 907 A.2d 395.

There remains a "lack of scientific consensus concerning the reliability of polygraph evidence, which in turn is reflected in the disagreement among state and federal courts concerning the admissibility of such evidence." Id. at 312, 907 A.2d 395 (citing United States v. Scheffer, 523 U.S. 303, 309-12, 118 S.Ct. 1261, 1265-66, 140 L.Ed.2d 413, 419-21 (1998) (reviewing scientific studies showing that accuracy of polygraph tests ranges from 50 to more than 90 percent)). Some studies suggest that the accuracy rate is "little better than could be obtained by the toss of a coin." Scheffer, supra, 523 U.S. at 310, 118 S.Ct. at 1265, 140 L.Ed.2d at 419 (citing Iacono & Lykken, The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in 1 Modern Scientific Evidence § 14-5.3).

Nonetheless, to many citizens who serve on juries, polygraph evidence-- presented by experts and arrayed in scientific language--has an aura of infallibility. That impression "can lead jurors to abandon their duty to assess credibility and guilt" and rely instead on the examiner's expert opinion. Scheffer, supra, 523 U.S. at 314, 118 S.Ct. at 1267, 140 L.Ed.2d at 422. As a result, "the vast majority of states either ban polygraph evidence altogether or do not admit such evidence absent a stipulation between the State and defendant." Domicz, supra, 188 N.J. at 312-13, 907 A.2d 395.

Twenty eight states bar the admission of polygraph evidence outright. ...; see also People v. Angelo, 88 N.Y.2d 217, 644 N.Y.S.2d 460, 666 N.E.2d 1333, 1335 (1996) (polygraph evidence properly excluded where there continues to be no showing that such evidence is generally accepted as reliable by scientific community).

Virtually all the other states to consider the issue--eighteen in total--limit the admission of polygraph evidence to cases where both parties stipulate to its use. ...

Only New Mexico allows the admission of polygraph exam results without stipulation. Lee v. Martinez, 136 N.M. 166, 96 P.3d 291, 306-07 (2004).

Underscoring the widespread skepticism about the polygraph's reliability, four states--Massachusetts, Wisconsin, North Carolina, and Oklahoma--have experimented with allowing the admission of polygraph evidence for a number of years, only to reject the practice and reinstate the traditional rule of inadmissibility. ...

Our view remains unchanged. This Court has not sanctioned and does not now entertain the admission of polygraph results. Nor does our holding in McDavitt offer support for the admission of the stipulated polygraph results in this case. That holding addressed very different facts, and we once again decline to "'widen the small aperture of ... McDavitt.' " State v. Baskerville, 73 N.J. 230, 236, 374 A.2d 441 (1977) (quoting State v. Cole, 131 N.J.Super. 470, 471, 330 A.2d 594 (App.Div.1974)); see also Domicz, supra, 188 N.J. at 313, 907 A.2d 395 ("[W]e are not prepared to extend McDavitt to unstipulated polygraph examinations, even in a suppression hearing presided over by a judge.").

McDavitt created a very narrow exception to the rule barring polygraph evidence. In that case, the defendant's conduct before the jury provoked the defensive use of polygraph evidence. During his criminal trial, the defendant testified that, after his arrest, he had offered to take a polygraph test to prove his innocence. McDavitt, supra, 62 N.J. at 41, 297 A.2d 849. The prosecutor objected and was mistakenly overruled. *163 Id. at 41, 43, 297 A.2d 849. With the door thus opened, the prosecutor asked on cross-examination if the defendant would be willing to take a polygraph that day. He was. Id. at 41, 297 A.2d 849. After further discussion outside of the jury's presence, the trial court granted a recess to allow the defendant time to confer with his lawyer. Id. at 42, 297 A.2d 849. Afterward, with the court's approval, the parties stipulated as follows: if the defendant passed the test, the State would not oppose a motion for acquittal; if he failed, the test results would be presented to the jury. Id. at 41-42, 297 A.2d 849.

Those unusual facts gave rise to the exception the Court framed: polygraph results may be admitted in evidence on agreement of the parties if their stipulation is "clear, unequivocal and complete, freely entered into with full knowledge of the right to refuse the test and the consequences involved in taking it." Id. at 46, 297 A.2d 849. In addition, the examiner must be qualified and the test administered in accordance with established techniques. Ibid.

McDavitt neither discussed nor sanctioned a polygraph stipulation agreed to by a suspect alone. McDavitt, therefore, does not offer support for the stipulation used in this case.

B.

We are troubled by more than the prosecution's misplaced reliance on McDavitt and have concerns about certain matters defendant was asked to stipulate to on his own.

First, we question defendant's ability to stipulate to the expert's qualifications. Defendant acknowledges in the stipulation that the polygrapher was an "expert in all phases of both administering polygraph examinations and in the analysis of polygraph chart recordings." How can a suspect, unschooled in the complexities of polygraphy or the credentials needed to administer a valid examination, stipulate to that statement? What factual basis does a suspect possess to form a view of the examiner's expertise? Nothing in the record allays this concern. As the Appellate Division noted, "[i]f this were a consumer contract, we might deem it unconscionable." A.O., supra, 397 N.J.Super. at 23, 935 A.2d 1202.

Second, the stipulation waives all challenges to the admissibility of the polygraph expert's testimony. Although defendant may cross-examine the expert about his or her qualifications, the manner in which the examination was conducted, the expert's opinion, and the possibility of error, the stipulation nonetheless provides for the automatic right of the expert to testify. In other words, even if defense counsel can undermine basic foundational elements of the expert's testimony and establish at trial that the polygrapher was wholly unqualified, the opinion voiced was not well-grounded, or that the possibility of error was great, the stipulation authorizes the expert to present his or her findings to the jury. That practice offends the core purpose of our evidentiary rules. See N.J.R.E. 403, 702.

Third, the stipulation limits defendant's ability to attack the polygraph evidence. While he may cross-examine the State's expert, defendant cannot call another witness on the subject. In other words, another expert, no matter how well qualified, cannot offer a contrary opinion about the test results. From accident reconstruction to blood-sample tests, it is common practice for a party to try to rebut the other side's expert testimony with an expert of its own. To be sure, we have strong reservations about allowing dueling experts to testify about polygraph results because of doubts about the polygraph's reliability in general. See Domicz, supra, 188 N.J. at 314, 907 A.2d 395. But in our adversary system of justice, that legal issue is best addressed by lawyers, not suspects.

Fourth, the stipulation collapses questions about a suspect's voluntary consent with the legal issue of admissibility. In evaluating a waiver of rights, the focus at first is on whether a defendant knowingly and voluntarily entered into the waiver agreement. Next, the focus shifts to whether the results of that waiver may be admitted in evidence. For example, a defendant can knowingly consent to a search, but in doing so does not agree to the admissibility of everything found during the search. The State must still establish that the evidence taken is admissible in accordance with substantive and evidentiary rules. A seized document that would otherwise be inadmissible--whether because the material was irrelevant, prejudicial, privileged, or hearsay--is not cured of its inadmissibility simply because a citizen agreed to its seizure. See, e.g., N.J.R.E. 401, 403, 504, 702. Likewise, defendants may waive their Miranda rights, but they do not stipulate to the admission of all statements that follow. An irrelevant or highly prejudicial comment would still be subject to evidentiary rules that might bar such statements. The same is true for a polygraph exam. A defendant can voluntarily agree to take the test, but its admissibility is a distinctly separate question.

Once properly advised of his rights, defendant could agree to submit to a polygraph. But the ancillary decisions made beyond that choice bear on trial strategy. Defendants typically rely on counsel to object to otherwise inadmissible evidence, attack a witness's expertise, and decide the most effective way to challenge evidence before a jury. See Rules of Professional Conduct 1.2 (allocating authority between lawyer and client). The stipulation here, though, operated to eliminate counsel's role by relying on a suspect's consent.

To avoid that course, a number of other states allow polygraph results by stipulation only upon the approval of defendant's counsel. ... Such an approach is consistent with the holding in McDavitt but was not followed here.

Our "overarching constitutional responsibility [is] to guarantee the proper administration of justice." State v. Williams, 93 N.J. 39, 62, 459 A.2d 641 (1983). "When we perceive ... that more might be done to advance the reliability of our criminal justice system, our supervisory authority over the criminal courts enables us constitutionally to act." State v. Romero, 191 N.J. 59, 74-75, 922 A.2d 693 (2006) (citing N.J. Const. art. VI, § 2, ¶ 3; State v. Delgado, 188 N.J. 48, 62, 902 A.2d 888 (2006)). We do so now to ensure greater fairness at trial and reliability of jury verdicts.

Relying on our supervisory authority, we bar the introduction of polygraph evidence based on stipulations entered into without counsel. We therefore affirm the Appellate Division's decision to reverse defendant's conviction. The conviction rested on the testimony of a young witness who recanted and then withdrew her recantation. No physical or medical evidence corroborated her testimony. To strengthen its case, the State introduced and highlighted the polygraph evidence discussed above and presented it as "100 percent accurate." We agree with the Appellate Division that "the polygraph evidence may well have made the difference between conviction and acquittal in this case." A.O., supra, 397 N.J.Super. at 33-34, 935 A.2d 1202. As a result, admission of the evidence was clearly capable of producing an unjust result, see Rule 2:10-2, and warrants reversal and a new trial.

C.

Judge Weissbard's concurring opinion [in the opinion in this case of New Jersey's intermediate appellate court] encourages us to take one more step: to reverse McDavitt and ban polygraph evidence altogether. He reminds us that the core concern of our evidence rules "is to provide the fact-finder with only reliable and probative evidence." A.O., supra, 397 N.J.Super. at 30, 935 A.2d 1202 (Weissbard, J.A.D., concurring) (citing 1 Wigmore on Evidence § 7a (Tillers rev.1983)); see also Scheffer, supra, 523 U.S. at 309, 118 S.Ct. at 1264, 140 L.Ed.2d at 419. As was true in Domicz, however, we do not have an adequate record to make ultimate findings about the reliability of polygraph evidence at this time. See Domicz, supra, 188 N.J. at 312-13, 907 A.2d 395. Nonetheless, we harbor a number of concerns about McDavitt in light of developments since 1972.

McDavitt recognized that "lie detector testing has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception," but concluded that the "art of polygraph testing had developed to a point that its results were probative enough to warrant admissibility upon stipulation." 62 N.J. at 44, 297 A.2d 849. As support for that finding, McDavitt cited to two criminal trial courts that had conducted extensive hearings on the reliability of polygraph tests and found that the results were "now generally accepted by authorities in the field and ... capable of producing highly probative evidence in a court of law when properly used by competent, experienced examiners." Id. at 45, 297 A.2d 849. The Court cited specifically to United States v. Ridling, 350 F.Supp. 90 (E.D.Mich.1972), and United States v. Zeiger, 350 F.Supp. 685 (D.D.C.1972). Zeiger, however, was reversed summarily. See United States v. Zeiger, 475 F.2d 1280 (D.C.Cir.1972). And Ridling was later criticized by its own and one other circuit court for its treatment of polygraph evidence. United States v. Alexander, 526 F.2d, 161, 166 (8th Cir.1975); United States v. Frogge, 476 F.2d 969, 970 (5th Cir.1973).

Furthermore, as discussed above, after 1972 four states allowed the admission of polygraph evidence for a number of years but reversed course because of questions about reliability among other reasons. See Commonwealth v. Mendes, supra, 547 N.E.2d at 41; Dean, supra, 307 N.W.2d at 653; Grier, supra, 300 S.E.2d at 359-60; Fulton, supra, 541 P.2d at 872; see also Porter, supra, 698 A.2d at 775-76.

Recent social science studies cast doubt on the reliability of polygraph evidence as well. See Scheffer, supra, 523 U.S. at 309-10, 118 S.Ct. at 1265, 140 L.Ed.2d at 419-20 (reviewing social science evidence); Porter, supra, 698 A.2d at 759-68 (same); NRC Study, supra, at 323-53 (2003) (reviewing 194 separate studies of polygraph testing).

Those studies explain that polygraphy relies on two assumptions: (1) that deception triggers certain emotional states; and (2) that those emotional states produce specific, measurable physiological changes in the body. Porter, supra, 698 A.2d at 759. As certain empirical evidence has shown, however, there is substantial variation in how individuals respond physiologically when they are lying or telling the truth, and the responses that humans produce in such situations are not specific to either deception or truth-telling. Id. at 760 (citations omitted); NRC Study, supra, at 212-13. The inherent ambiguities in such responses, which arise from individual variations in the subject's cardiovascular, electrodermal and respiratory activity, often make it difficult for a test administrator to determine if the examinee is lying, nervous, tired, or simply trying to game the system. NRC Study, supra, at 4, 13-17, 216, 286-90.

As the Supreme Court [of the United States] observed, "there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams." Scheffer, supra, 523 U.S. at 312, 118 S.Ct. at 1266, 140 L.Ed.2d at 421. Even more troubling, "to the extent that the polygraph errs, studies have repeatedly shown that the polygraph is more likely to find innocent people guilty than vice versa." Id. at 333, 118 S.Ct. at 1276, 140 L.Ed.2d at 433-34 (Stevens, J., dissenting).

Compounding these questions about reliability is the fact that many lay people tend to view polygraph evidence as bordering on infallible. Id. at 314, 118 S.Ct. at 1267, 140 L.Ed.2d at 422 (majority opinion); A.O., supra, 397 N.J.Super. at 33, 935 A.2d 1202 (citations omitted). Thus, potentially unreliable polygraph evidence may receive undue weight and distract jurors from judging the credibility of witnesses directly.

Such concerns raise questions about the continuing wisdom of McDavitt. Because we lack a factual record, we cannot fully address those issues today. However, a proper record will have to be developed in the trial court the next time a party seeks to introduce stipulated polygraph evidence, agreed to by both sides. That evidence should be introduced only if the parties can first establish its reliability at an N.J.R.E. 104 hearing.

END OF OPINION

Notes by Peter Tillers:

1. The Supreme Court of New Jersey is unwilling to extend the principle of party autonomy to allow the outcome of a trial to be determined or affected by the equivalent of a coin toss -- even if the parties so stipulate. Hurrah for the Supreme Court of New Jersey!

2. When a trial court considers the question of the reliability of polygraph testing in the next New Jersey case in which a party seeks to introduce polygraph evidence pursuant to a stipulation, it is unlikely that the trial court will find that polygraph evidence is "reliable" even if the test is administered under ideal conditions.

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