Wednesday, November 10, 2010

In Texas, Object -- Over and Over -- to Polygraph Test Results

Polygraph test results were admitted in a probation revocation proceeding. In an "unpublished" memorandum opinion, a Texas Court of Appeals said that polygraph test results are inadmissible in such a hearing. Gardner v. State, No. 02-09-00360-CR (Tex. App. -- Fort Worth Dec. 4, 2010):
Polygraph results are generally inadmissible for all purposes. Nesbit v. State, 227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 2007); Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985) ("Even if the State and the defendant agree and stipulate to use the results of a polygraph at trial, we have held the testimony to be inadmissible."), cert. denied, 474 U.S. 1110 (1986); Russell v. State, 798 S.W.2d 632, 635 (Tex. App.-Fort Worth 1990, no pet.) ("The results of polygraph examinations are excluded due to their inherent unreliability and tendency to be unduly persuasive."); see Reed v. State, 48 S.W.3d 856, 864 (Tex. App.-Texarkana 2001, pet. ref'd) ("[P]olygraph evidence is inadmissible at a bench trial as well as at a jury trial.")
However, the Court of Appeals for Fort Worth held that appellant Gardner had waived his claim of error because Gardner had failed to object to each and every (successful) attempt of many attempts by the state to introduce polygraph evidence:
However, a defendant must assert a proper, timely objection to the admission of polygraph results to preserve error. Jasso v. State, 112 S.W.3d 805, 813-14 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (explaining that the "standard set by our high court for the timely assertion of objections is both demanding and unforgiving"); see Graham v. State, 3 S.W.3d 272, 285 (Tex. App.-Fort Worth 1999, pet. ref'd). To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999). Also, with some exceptions that do not apply to this case, to preserve error, a party must continue to object each time the objectionable evidence is offered or obtain a running objection to the evidence. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). Thus, a trial court's erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). This rule applies whether the other evidence was introduced by the defendant or the State. Id. Although appellant objected to the first portion of the community supervision officer's testimony that mentioned the results of appellant's polygraph tests and objected to a question in the middle of his own testimony, he did not object to every question or answer that disclosed the results, and he did not obtain a running objection to the polygraph evidence. His trial counsel also elicited some of the evidence. Nonetheless, appellant argues that his first objection preserved error relating to all of the polygraph testimony because "[f]urther objections were useless as counsel could assume the trial court would make the same ruling in each instance." But in Leday, the court of criminal appeals stated,
In requiring an objection every time the objectionable evidence is offered, we are in a minority of courts which do not follow the general rule that the repetition of an objection is needless when the court's ruling has indicated that an objection to such evidence will definitely be overruled. See Wigmore on Evidence § 18 (Peter Tillers rev. 1983). Our rule which requires objection to every offer is sometimes called "the `futility rule'; that is, despite ruling of judge that evidence is admissible, party must keep making futile objections on pain of waiver." 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice & Procedure § 5039 n. 11.1 (Supp. 1998) (citing Texas cases). We have found that the general application of this rule has not proven to be burdensome for defense counsel in many cases.
Id. at 717-18 (emphasis added and footnote omitted); see Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (relying on Leday to overrule an evidentiary issue); see also Long v. State, 10 S.W.3d 389, 399 (Tex. App.-Texarkana 2000, pet. ref'd) (explaining that the requirement of objecting each time inadmissible evidence is offered "remains true with regard to testimony regarding polygraph examination results").

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