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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

POLYGRAPH (019)

State v. Jeffries, 119 Ohio St. 3d 265, 2008-Ohio-3865 – Prior to plea negotiations the defendant took and passed a polygraph. As part of a cooperation agreement with the prosecutor, the results of the test were made known and a copy of her statement turned over. She failed a subsequent polygraph and the deal fell apart. Nonetheless, her statement to the first polygraphist was admissible since it was made prior to the commencement of plea negotiations. Syllabus: "Statements that were not made in the course of plea discussions are not protected by Evid. R. 410, even if the statements were later provided to the state in the course of plea discussions."

State v. Irwin, 184 Ohio App. 3d 764, 2009-Ohio-5271, ¶170-204 -- Motion for new trial should have been granted. Evidence pointed to a confession by another. He denied confessing, and passed a polygraph, but the polygraph should not have been allowed in evidence without a stipulation. Prosecutor backdoored the defense by attaching polygraph results to last minute memo contra. Defense counsel was ineffective for having called the polygrapher, thus placing the results in evidence. Judge should have weighed a jury’s likely assessment of the newly discovered evidence rather than his own.

In re D.S., 111 Ohio St. 3d 361, 2006-Ohio-5851 -- A full disclosure polygraph examination is not a reasonable term of juvenile community control absent evidence it is particularly suited to the facts of the offense. ¶19: "The Fifth Amendment prohibits compelling a person on community control who claims privilege to give answers that might incriminate him in future criminal proceedings. Minnesota v. Murphy (1984), 465 U.S. 420, 426." Reverses In re D.S., 160 Ohio App. 3d 552, 2005-Ohio-1803. privilege.

In re Burton S. (1999), 136 Ohio App. 3d 386 -- Polygraph results favoring the defense were admitted by stipulation, but were discounted by magistrate who found they were inadmissible without giving the parties an opportunity to respond. Reversed.

State v. Sess (1999), 136 Ohio App. 3d 689 -- Police officer was required to take a polygraph test as a part of assignment to a regional narcotics unit. Before the test he admitted that in the past he had planted drugs on a suspect. Since further information concerning this incident was coerced by the threat of losing his job, admissions and further evidence derived from admissions was properly suppressed.

State v. Nasrallah (2000), 139 Ohio App. 3d 722, 727 -- "Inconclusive" polygraph results as to some questions warranted court's refusal to enforce plea agreement of minimum sentence in return for cooperation in investigation.

State v. Olah, 146 Ohio App. 3d 585, 2001-Ohio-1641 -- ¶20-27 -- At a bench trial, polygraph operator testified as to statements by the defendant but not as to test results. Judge presumed to considered testimony only to the extent it was relevant, material and competent.

State v. Blasdell, 155 Ohio App. 3d 423, 2003-Ohio-6392 -- After discussing split of authority, court concludes trial court did not abuse its discretion in refusing to admit testimony that the defendant offered to take a polygraph test.

State v. Smith, Clark App. No. 2003-CA-23, 2004-Ohio-665, ¶43-48 -- Officer testified that the defendant began but did not complete a polygraph after making an incriminating statement. During this testimony the officer's prior written statement concerning these events was introduced. Reversed as plain error prosecutorial misconduct - "a prosecutor should be aware of the requirements for the proper admission of evidence concerning a polygraph examination."

State v. Sharma, 143 Ohio Misc. 2d 27, 2007-Ohio-5404 -- Polygraph results determined to be admissible, notwithstanding the prosecutor's refusal to enter into a stipulation pursuant to State v. Souel (1978), 53 Ohio St. 2d 123. The prosecutor's office on occasion dismisses charges based on polygraph results, and utilizes the same examiners. The court notes the Daubert decision, improvements in polygraphic techniques since Souel was decided, and views the refusal to stipulate as a tactical decision.

State v. Souel (1978), 53 Ohio St. 2d 123 -- Syllabus: "The results of a polygraphic examination are admissible in evidence in a criminal trial for purposes of corroboration or impeachment, provided that the following conditions are observed:" (1) The prosecuting attorney, defendant and his counsel must sign a written stipulation providing for defendant's submission to the test and for the subsequent admission at trial of the graphs and the examiner's opinion thereon on behalf of either defendant or the state."(2) Notwithstanding the stipulation, the admissibility of the test results is subject to the discretion of the trial judge, and if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence."(3) If the graphs and examiner's opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting: "(a) the examiner's qualifications and training; "(b) the conditions under which the test was administered; "(c) the limitations and possibilities for error in the technique of polygraphic interrogation; and "(d) at the discretion of the trial judge, any other matter deemed pertinent to the inquiry. "(4) If such evidence is admitted the trial judge should instruct the jury to the effect that the examiner's testimony does not tend to prove or disprove any element of the crime with which a defendant is charged, and that it is for the jurors to determine what weight and effect such testimony should be given."

State v. Hesson (1996), 110 Ohio App. 3d 845, 857-859 -- Court refuses to create an exception to State v. Souel (1978), 53 Ohio St. 2d 123, allowing evidence that key state's witnesses failed polygraphs.

U.S. v. Scheffer (1998), 523 U.S. 303 -- Ban on admission of polygraph results contained in Military Rule of Evidence 707 does not violate the defendant's right to present a defense as guaranteed by the Fifth and Sixth Amendments.

Wyrick v. Fields (1982), 459 U.S. 42 -- If the defendant has waived his right to have an attorney present at the polygraph examination and it is clear that he understood his rights to stop questioning and to speak with attorney at any time, Miranda rights do not have to be repeated before questioning him about the results of the polygraph. Compare United States v. Jackson (8th Cir. 1982), 690 F. 2d 147.

State v. Crouse (1987), 39 Ohio App. 3d 18, 20-21 -- State is not precluded from pursuing a case where the complaining witness has failed a polygraph.

Wood v. Bartholomew (1995), 516 U.S. 1 -- Opinion somewhat cryptically addresses when the fact that a prosecution witness took a polygraph test must be disclosed as Brady material. Procedural context makes opinion of little use at the initial trial stage. In postconviction proceedings, in measuring the effect of a failure to disclose, focus is upon likely use counsel would have made of the information.

State v. Davis (1991), 62 Ohio St. 3d 326, 341 -- Polygraph results from examination of state's witnesses are not among the reports of examination and tests which must be disclosed in discovery. Might be otherwise if were Brady material.

State v. Manning (1991), 74 Ohio App. 3d 19, 25-26 -- Homicide victim had passed a polygraph test regarding molestation of stepdaughter and results were known to defendant. Results were admissible to show her state of mind at the time of the shooting, in order to rebut her claim of self-defense.

State v. Post (1987), 32 Ohio St. 3d 380, 385 -- Though defendant's confession to a polygraph operator retained by defense counsel was initially protected by attorney-client or work product privilege, disclosure to cellmate that he had made a confession destroyed the privilege. Case may be cited for the proposition that the attorney-client privilege applies to the results of a polygraph test conducted at the behest of counsel. See State v. Cherukuri (1992), 79 Ohio App. 3d 228. 231.

State v. Wernet (1996), 108 Ohio App. 3d 737 -- An arson suspect confessed, but later recanted, claiming he had confessed because he was tired and wanted to end the interrogation. When the defendant was tried for the same arson, the other suspect's confession was introduced when the first suspect exercised his Fifth Amendment privilege and became unavailable as a witness. Held that the defense should have been allowed to introduce evidence that the first suspect had been told he failed a polygraph, since that served to refute his claim he confessed only because he was tired. What the suspect had been told was relevant, not the actual results of the test.

State v. Boyd (1996), 110 Ohio App. 3d 13 -- Court erroneously barred cross-examination of polygraph operator concerning possibilities of error in the technique of polygraphic interrogation. Advance stipulation went only to admissibility. Any advance stipulation restricting cross would violate public policy of this state permitting consideration of polygraph results only under specific conditions.

State v. Hegel (1964), 9 Ohio App. 2d 12 -- Headnote: "The admission of testimony pertaining to a defendant's refusal to submit to a polygraph test constitutes prejudicial error."

State v. Hill (1987), 37 Ohio App. 3d 72 -- When mention of witness having taken polygraph comes out during cross-examination by defense, cannot complain, since any error was invited. Also see State v. Woodruff  (1983), 10 Ohio App. 3d 326.

State v. Collins (1977), 60 Ohio App. 2d 117 -- At pp. 121-123 and headnote 3: "A reference by a state's witness to the fact that 'there were polygraphs given' will not be held prejudicial where it does not appear to whom such tests were given and does not appear as to what results were obtained."

State v. Levert (1979), 58 Ohio St. 2d 213 -- Compulsory process provisions in state and federal constitutions do not compel admission of polygraphic results in the absence of a stipulation. Also see State v. Whitmeyer (1984), 20 Ohio App. 3d 279.

State v. Pickens (1996), 109 Ohio App. 3d 147 -- Failed polygraph accepted as basis for expelling defendant from diversion program. Diversion agreement included submission to polygraph on request.

State v. Mootispaw (1996), 110 Ohio App. 3d 566 -- Absent any other evidence of defendant's complicity in theft, deceptive responses to polygraph questions is insufficient to establish guilt.

State v. Jaroszyk (1973), 39 Ohio App. 2d 35 -- Results of a polygraph test do not constitute newly discovered evidence as test could have been conducted before trial. Compare United States v. Ridling (E.D. Mich. 1972), 350 F. Supp. 90.

Brown v. Best Products Inc. (1985), 18 Ohio St. 3d 32 -- Polygraph test results are inadmissible in civil proceedings absent agreement by the parties. Test of the plaintiff is not admissible to show malice on the part of the defendant. Also see Zanesville v. Sheets (1987), 38 Ohio App. 3d 24.

Criss v. Springfield Township (1990), 56 Ohio St. 3d 82 -- Polygraph test results admissible when police officers were tested during an investigation and later wish to use results in their defense of a wrongful prosecution action to show state of mind at time prosecution was undertaken.

State, ex rel. Leis, v. Kraft (1984), 10 Ohio St. 3d 34 -- State may immediately appeal grant of defense motion that defendant take a polygraph test at state expense.

State, ex rel. Parker, v. Court of Common Pleas of Cuyahoga County (1980), 61 Ohio St. 2d 351 -- Appeal and not prohibition is remedy for county prosecutor's failure to honor city prosecutor's promise not to prosecute if the defendant passed a polygraph examination.

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