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Polygraph Examinations: Are They Admissible In Court?

The polygraph examination (i.e., lie detector test), because of its perceived reliability issues, remains a controversial subject. In 1923, the D.C. Circuit Court in Frye v. United States upheld a trial court's decision to exclude a polygraph test the defendant sought to introduce at trial to support his murder defense. In affirming the trial court's decision, the court ruled the polygraph test had "not yet gained such standing and scientific recognition among physiological and psychological authorities." Still today, most courts throughout the county follow this trend of excluding polygraph test results from a trial under all circumstances. This is known as the per se exclusion rule.

A minority of jurisdictions however, including Ohio, admit polygraph examinations under limited circumstances. In Ohio, if the all parties, including the defendant, defense attorney, and the prosecutor agree in advance to the admissibility of the results, the court may be inclined to admit them. This is referred to as a stipulation, which occurs before the defendant takes the polygraph examination.The polygraph examination (i.e., lie detector test), because of its perceived reliability issues, remains a controversial subject. In 1923, the D.C. Circuit Court in Frye v. United States upheld a trial court's decision to exclude a polygraph test the defendant sought to introduce at trial to support his murder defense. In affirming the trial court's decision, the court ruled the polygraph test had "not yet gained such standing and scientific recognition among physiological and psychological authorities." Still today, most courts throughout the county follow this trend of excluding polygraph test results from a trial under all circumstances. This is known as the per se exclusion rule. A minority of jurisdictions however, including Ohio, admit polygraph examinations under limited circumstances. In Ohio, if the all parties, including the defendant, defense attorney, and the prosecutor agree in advance to the admissibility of the results, the court may be inclined to admit them. This is referred to as a stipulation, which occurs before the defendant takes the polygraph examination.

Specifically, the Ohio Supreme Court in State v. Souel ruled that polygraph evidence was admissible under the following conditions:

(1) The prosecutor, defendant, and defense counsel must sign a written stipulation providing the defendant will take the polygraph test and its results will be admitted to trial;

(2) The admission of the test results are subject to the discretion of the judge; if the judge is not convinced the polygraph examiner is qualified or the test was conducted under proper conditions, the judge may refuse to admit the test results;

(3) Opposing counsel has the right to cross-examine the polygraph examiner at trial concerning her qualifications and training, the conditions under which the polygraph test was given, the limitations and possibilities of error concerning the polygraph test results, and any other matter the judge deems pertinent; and

(4) If the test results are admitted, the trial judge must instruct the jury the examiner's testimony does not tend to prove or disprove any element of the crime with which the defendant was charged, and that they must determine what weight and effect such testimony should be given.

Typically, pursuant to a polygraph stipulation in Ohio, if the results return favorably for the defendant the prosecutor will dismiss the criminal charges. If, however, the results return unfavorably for the defendant the prosecutor has the ability to introduce the unfavorable results to the jury. Clearly, while the polygraph stipulation can be extremely favorable to the criminal defendant, it also presents significant risk.

Interestingly, in State v. Sharma, the Summit County Common Pleas Court in its 2007 decision allowed the defendant charged with sexual battery to introduce favorable polygraph test results in the absence of a stipulation. The court held that given recent significant advancements in polygraph technology, the Sixth and Fourteenth Amendments justified the admission of the non-stipulated polygraph evidence when it is satisfied experts have demonstrated the polygraph is reliable and where Souel's requirements of examiner cross-examination and limited jury instructions are used.

One can only assume polygraph science has advanced even more since Sharma. While Ohio courts are not all bound by Sharma, it would not be surprising to see more courts admit polygraph results in the absence of a stipulation where the court is satisfied with the reliability of the test and ensures the Souel requirements are followed.

At Rittgers & Rittgers we work closely with specific polygraph experts during the investigation phase of certain cases. Even when they are not introduced at trial, polygraphs can be used during plea negotiations. They can also be a helpful tool during an investigation before charges are filed. 

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