unfavorable to him, or submit as evidence the results of
a prior unstipulated favorable polygraph examination, or
introduce testimony of his own polygraph expert
regarding the results of the State’s polygraph
examination. In this case, defendant had counsel
regarding the stipulation, and it was defendant who first
requested the State-administered polygraph.
C. Applicability
- Witnesses
Stipulation as to the results of a polygraph test apply
with equal effect to the testing of witnesses as well as
defendants and so a valid stipulation entered into
between the prosecutor and defendant should be
enforced whether it applies to a witness or a defendant.
The stipulation implies the belief of each party that the
testimony of the witness is important and that the
polygraph examination may be beneficial to either party
in the search for the truth. The provisions of the
stipulation act as a waiver of Evidence Rule 20, which
normally prohibits the introduction of evidence merely
to support the credibility of a witness. State v. Taylor, 139
N.J. Super. 301, 304-05 (App. Div. 1976).
In the absence of an explicit stipulation, the results of
a polygraph test administered to a state witness by the
State prior to trial is not admissible at trial, even if the
polygraph evidence is exculpatory in nature. The fact
that the prosecutor requested the witness to submit to the
polygraph test provides no basis from which an inference
can be drawn that the State consented to the admission
of the test results. State v. Christopher, 149 N.J. Super.
269, 275 (App. Div.), certif. denied, 75 N.J. 24 (1977).
- Juveniles
Polygraph examinations cannot be lawfully adminis-
tered to juveniles without the consent of both the juvenile
and his or her parents. State in the Interest of J.P.B., 143
N.J. Super. 96, 104 (App. Div. 1976).
- Sixth Amendment
In State v. Sloan, 226 N.J. Super. 605 (App. Div.
1988), defendant was not denied effective assistance of
counsel where defense counsel failed to subject him to a
lie-detector pre-test before defendant submitted,
pursuant to a stipulation, to a lie-detector test. Since
defendant did not establish that he told defense counsel
he was indeed guilty of the crimes charged, defendant’s
complaint in essence is that his trial counsel relied on
defendant’s own representations. Counsel’s reliance on
his client’s representation to him about an event
witnessed only by defendant and the victim does not
constitute deficient performance under Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), and State v. Fritz, 105 N.J. 42 (1987).In State v. Reyes, 237 N.J. Super. 250, the court held
that defendant’s Sixth Amendment right to counsel had
not attached at time he entered into a stipulation to make
results of polygraph examination admissible at trial,
although defendant was in custody based on his arrest for
unrelated charge at time he signed stipulation and
investigation had focused on him; defendant had not
been formally charged when he signed the stipulation,
and was not formally charged until he gave inculpatory
statement following polygraph examination. State v.
Reyes, 237 N.J. Super. at 263-65. Furthermore, the Reyes
court concluded that even though absence of counsel may
be factor to consider in determining whether defendant
knowingly and intelligently entered into polygraph
stipulation, counsel’s presence is not a nonwaivable
condition. Id.- In Conjunction with Interrogation
In the federal case of United States v. Zhang, __ F.
Supp. 2d __, 1999 WL 61416 (D.N.J. 1999), aff’d 216
F.3d 1077 (3d Cir. 2000), a five hour polygraph exam
was conducted on defendant. The court found that
defendant’s confession was the product of “police
overreaching” under all the circumstances, given the
length and intensity of his interrogation coupled with the
untrue threat that Secret Service now had powerful
polygraph evidence that would convict him at trial.D. Permissible Uses- Jury Instructions
Where polygraph test results are admitted into
evidence, the jurors should be instructed that they are not
direct proof of a defendant’s guilt or innocence of the
crime charged but rather opinion evidence by an expert
to be accorded the appropriate weight and effect as
determined by the jury. State v. McDavitt, 62 N.J. 36, 47
(1972).A defendant’s failure on a polygraph test is not “ipso
facto the equivalent of his guilt;” State v. Baskerville, 73
N.J. 230, 235 (1977). However, such failure is probative
of the issue of guilt or innocence and can be considered,
with other evidence in the case, as bearing on that issue.