also State v. Melvin, 65 N.J. 1 (1974); State v. LaRocca, 81
N.J. Super. 40, 46-47 (App. Div. 1963). Such references
are not only inadmissible but may also necessitate a
reversal if they occur. State v. Driver, 38 N.J. at 262; State
v. Clark, 128 N.J. Super. 120; State v. Arnwine, 67 N.J.
Super. at 498-99; State v. Parsons, 83 N.J. Super. at 436.
But see State v. Melvin, 65 N.J. 1 (after emphasizing that
the Court’s conclusion was confined to the peculiar
factual context presented therein, in light of the
overwhelming evidence of defendant’s guilt, the
Supreme Court held that defendant was not prejudiced
by the inference that the result of the polygraph
examination was unfavorable to him). But see, State v.
Harvey, 151 N.J. 117, 205–06 (1997)(on specific facts of
case, reference to an unindicted suspect’s polygraph
results did not constitute reversible error, when reference
came in response to defendant’s attack on the conduct of
the police murder investigation, trial court immediately
sustained the defendant’s objection and instructed the
jury to disregard the reference to the polygraph results,
and any prejudice to defendant was minimal).
III. STIPULATION
A. General
In 1972, the Supreme Court relaxed the rule of total
exclusion and carved out a very narrow exception whereby
the results of a polygraph test may be introduced at a
criminal trial, if, prior to the test, defendant and the
prosecutor have entered into a proper stipulation, i.e.,
judicial admission, to that effect. The Court reasoned
that polygraph testing had been developed to such a
point of reliability to warrant admission under these
limited circumstances. State v. McDavitt, 62 N.J. 36
(1972); see State v. Reyes, 237 N.J. Super. 250 (App. Div.
1989)(only way to admit results of polygraph
examination is for State and defendant to enter into
stipulation; stipulation must, however, be clear,
unequivocal and complete); State v. Capone, 215 N.J.
Super 497 (App. Div. 1987)(without a stipulation, a
polygraph examination is not admissible); State v.
Christopher, 149 N.J. Super. 269 (App. Div. 1977).
B. Criteria
“It must appear that the 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.” State v. McDavitt, 62
N.J. at 46. It must also appear that the examiner is
qualified and the test administered in accordance with
established polygraph techniques, and the trial judge
must make an affirmative finding to this effect. State v.
McDavitt, supra; State v. South, 136 N.J. Super. 402 (App.
Div. 1975), certif. denied, 69 N.J. 387 (1976).“[T]he stipulation not only must demonstrate
clearly defendant’s certain awareness of all the
consequences involved in taking the polygraph test but it
must, as well, commit the State to its reciprocal
obligation to permit the results to be received in evidence
irrespective of the outcome of the test. The surest way to
accomplish these ends is to include among its provisions
a specific agreement that the results of the testing as
expressed in the opinion of experts, whether inculpatory
or exculpatory, may be introduced as evidence by either
party to the stipulation.” State v. Smith, 142 N.J. Super.
575, 580 (App. Div. 1976), certif. denied, 72 N.J. 465
(1977).See also State v. Hollander, 201 N.J. Super. 453, 477
(App. Div. 1985) (where the court refused to interpret
the consent form signed by defendant, authorizing the
disclosure of the polygraph results and the use of what
was said, as a stipulation because it did not specifically
mention the use of the results as evidence).In determining whether defendant fully understands
the consequences of submitting to a polygraph test and
stipulating that the results of the test will be admitted
into evidence, defendant’s subjective belief is not
relevant. The State only has the burden of showing that
defendant “understands” the ramifications of the
stipulation and not that he “believes” it. State v. Powell,
98 N.J. 63 (1984).In the same way that defendant is completely free to
either enter into a stipulation to submit to or to refuse to
take the test, the prosecutor is free to refuse to agree to a
polygraph examination. See State v. Cole, 131 N.J. Super.
470 (App. Div. 1974), certif. denied, 68 N.J. 135 (1975).See State v. McMahon, 217 N.J. Super. 182 (Law Div.
1986), where following defendant’s entry into a valid
pretrial stipulation with the State regarding a State-
administered polygraph examination, under which
either party was entitled to submit as evidence the results
of the examination and the testimony of the
administering State polygraph expert, but which
prohibited the opposing party from introducing another
polygraph expert or the results of another polygraph
examination, defendant was bound by the terms of the
stipulation by the principle of fundamental fairness.
Thus, he could not bar admission of the State-
administered polygraph examination results which were