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Although law enforcement officials have been using polygraphs for decades, most judges are still reluctant to admit polygraph results as evidence in criminal cases. Forty years after they were first used in the criminal justice system, lie-detector tests still only play a peripheral role in the criminal justice system. Ever since the Supreme Court held in U.S. v. Scheffer, 523 U.S 303 (1998), that polygraph tests are so unreliable that courts may have a per se rule barring their admissibility, courts have shied away from admitting polygraph results. Many jurisdictions, such as California, have enacted legislation that makes polygraph evidence inadmissible in criminal proceedings unless all parties agree to its admissibility. See Calif. Evid. Code � 351.1; People v. Hinton, 126 P.3d 981, 1020 (Calif. 2006) (upholding per se rule excluding lie-detector evidence because of unreliability of polygraph evidence). Other jurisdictions go even further and do not allow the parties to waive by stipulation the inadmissibility of polygraph-related evidence. See, e.g., State ex rel. Kemper v. Vincent, 2006 WL 1320134, at 4 (Mo. May 16, 2006) (unpublished). Courts have recognized peripheral polygraph use Yet polygraphs have not completely disappeared from the criminal justice landscape. In the past year, courts have recognized the peripheral use of polygraph examinations by defense counsel and prosecutors. For example, courts may allow counsel to introduce evidence that the defendant took a polygraph and was misled as to its results to explain the circumstances under which a defendant made a statement to the police. In the recent case of State ex rel. Kemper v. Vincent, supra, Sandra Kemper was charged with arson and first-degree murder. The state’s case rested in large part on a confession elicited from Kemper after police told her that she had failed a polygraph test. In fact, Kemper had actually passed the polygraph. The defense sought to introduce the results of that examination under the “rule of completeness.” The trial court granted the request and its decision was upheld. The Missouri Supreme Court held that “[t]he polygraph test and results are admissible because they form the circumstances surrounding the confessions that are the basis of the State’s case.” Id. at 4. “The credibility of a confession is a matter for the jury, and evidence of the circumstances surrounding the confession is essential in order to assess credibility.” Crane v. Kentucky, 476 U.S. 683, 688-89 (1986). Thus, while polygraph evidence is generally inadmissible, it may be admitted to explain the conditions in which an alleged confession was provided. See also People v. Kogut, 805 N.Y.S.2d 789, 791 (2005). However, the mere fact that a defendant was told that he had failed a polygraph examination does not make the defendant’s confession involuntary. Even if a defendant provides a statement because he is told that he has “failed” the polygraph, the court may still find that the defendant’s will was not overborne and the statement was voluntary. See U.S. v. Dupris, 422 F. Supp. 2d 1061, 1066-67 (S.D. 2006). Polygraph test results may also creep into a case through other reports provided to the court. In Sanchez v. State, 2006 WL 1119291, at 3 (Texas App. April 28, 2006) (unpublished), the state petitioned the court for revocation of the defendant’s probation. The defendant had been placed on probation after pleading guilty to three counts of aggravated sexual assault of a child and three counts of indecency with a child. In the punishment hearing following the court’s finding that the defendant had violated the conditions of his community supervision, the court considered a presentence investigation (PSI) report submitted by the government. In that report, there was mention of the defendant’s polygraph test results. Because the defendant failed to object to the PSI report, the Texas Court of Appeals held that the defendant had waived any error in the court considering the polygraph results. Thus, while polygraph results generally should not be considered by the court, they can find their way into proceedings through other reports that the court may consider. Similarly, mention of polygraph testing may make its way into a case through inadvertent remarks by a witness. So long as the witness does not mention the results of the polygraph examination, and the inadvertent comment is corrected by a jury instruction to disregard the polygraph evidence, comments about polygraph testing will not necessarily lead to a mistrial in a case. See, e.g., Montgomery v. State, 2006 WL 1102693 (Texas App. March 23, 2006). There are other subtle ways that polygraph information may be injected into a case. For example, in Norman v. State, 2006 WL 760544 (Ga. Ct. App. 2006), the testifying officer mentioned in his testimony that he had received the defendant from another officer who was a polygraph technician. Although this testimony implied that a polygraph exam had been taken, the court held that “the mere fact that the jury is apprised that a lie detector test may have been taken is not prejudicial if no inference as to the result is raised.” Id. at 1. There may also be passing references in a case to a witness’s taking of a polygraph. For example, in Johnson v. State, 2006 WL 728401 (Ark. March 23, 2006), the prosecution’s witness in a murder trial mentioned that he had taken a lie-detector test. The defendant moved for a mistrial, but the motion was denied. Although the appellate court recognized that mention of polygraph examinations could have the effect of improperly bolstering a witness’s testimony, it held that no mistrial was required, especially if there was no mention of how the witness scored on the polygraph test. Yet despite these occasional cases where the courts permit reference to polygraph examinations, courts will still reverse cases if the state impermissibly injects multiple references to a defendant’s polygraph examination to prove that the defendant was aware of her guilt. For example, in People v. Washington, 842 N.E.2d 1193, 1198-1201 (Ill. App. Ct. 2006), the prosecution made multiple references to the defendant’s polygraph examination during its case-in-chief to explain the circumstances under which the defendant provided statements to the police. First, the detective testified that en route to a polygraph exam, the defendant asked several questions about how the polygraph worked. Then, on cross-examination of the defendant, the prosecutor asked whether the defendant made her inculpatory statement right after the officer said, “Let’s take you for a lie-detector test.” Finally, the prosecutor argued in closing argument that the defendant made her inculpatory statement while en route to the polygraph examination because at that point she “starts thinking this lie’s not going to make it.” Id. at 1199. The Illinois Appellate Court reversed the defendant’s conviction. Noting that the general rule in Illinois, as in many jurisdictions, is that evidence of polygraph examinations and their results are not admissible because they are not sufficiently reliable and may carry too much weight with the trier of fact, the court held that the state had crossed the line in its offensive use of the polygraph evidence. Importantly, the Illinois Appellate Court noted that the defendant had not opened the door to the introduction of testimony regarding the scheduled polygraph test. Prosecutors are not allowed to anticipate that a defendant may claim her confession was involuntary as an excuse to admit polygraph evidence. To permit this approach would be to “allow the State to create a straw man only to knock him down.” Id., quoting, People v. Jackson, 202 N.E.2d 278, 283 (Ill. 2002). While states may be able to refer to polygraphs to defend the voluntariness of a confession they wish to admit, they may not use such references as an offensive weapon in a criminal trial. New Mexico, Georgia switch course on polygraphs Recently, there have been indications of a slight trend toward permitting limited uses of polygraph evidence. New Mexico and Georgia have recently changed course and admitted polygraph evidence. See Bolton v. Berghuis, 164 F.3d Appx. 543, 548 (6th Cir. 2006); State v. Gutierrez, 117 P.3d 953 (N.M. 2005). More significantly, courts are beginning to hold that polygraphs may be relied upon to determine whether a defendant is abiding by conditions of supervised release. See, e.g., U.S. v. Johnson, 2006 U.S. App. Lexis 10925 (2d Cir. May 1, 2006). In Johnson, the 2d U.S. Circuit Court of Appeals held that submission to polygraph testing is a lawful condition for supervised release. Recognizing that other circuits have found a salutary purpose of allowing polygraph testing in this context, the court held that polygraph examinations-although not necessarily reliable enough to prove guilt beyond a reasonable doubt-were reliable enough to monitor supervised release. In U.S. v. Scheffer, supra, the U.S. Supreme Court noted that polygraphs have an accuracy rate of 50% to 87%. Thus, while they may not be reliable enough to serve as evidence of guilt, they can be used as a therapeutic tool. Even their bottom range of reliability still shows that polygraph results are “more-likely-than-not” true. This standard satisfies the court’s interests in monitoring a defendant on supervised release. As the Johnson court stated, “[t]he polygraph can help penetrate deception and encourage an offender to confront his own motivations and behaviors. These outcomes further sentencing objectives such as rehabilitation and deterrence.” Id. at 12. While polygraph tests are still a long way from being accepted as evidence in criminal cases, they have not disappeared from the scene. Courts do not want to use them to influence jurors’ decisions on key credibility issues in a case. See, e.g., State v. Grauberger, 2006 WL 1147765 (Minn. Ct. App. May 2, 2006) (defendant barred from introducing polygraph results to prove he was more credible than the victim). But polygraph tests still may be used if they serve a more benign role in a case. Laurie L. Levenson is a professor of law, William M. Rains fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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