Id. How it effects the issue of guilt or innocence depends
on the questions asked. Id. If the polygrapher determines
that defendant is being deceptive when, responding to a
direct question, he says he did not commit the crime,
then the expert’s opinion that defendant is lying “may be
considered by the jury as proof that defendant did in fact
commit that crime. In that circumstance the making of
a false statement would be, in itself, evidence of guilt.” Id.
But see State v. Jones, 224 N.J. Super. 527 (App. Div.
1988), where pursuant to an agreement between
defendant and the prosecutor’s office, the results of a
polygraph test were admitted into evidence at trial. At
trial the officer who administered the test testified that
defendant was being truthful when he stated during the
polygraph test that he was not involved in the armed
robbery. The State’s case rested almost entirely on the
victim’s identification of defendant as the perpetrator.
The victim identified defendant from an array of
photographs shortly after the crime and in person during
the trial. Defendant’s testimony that he was at home at
the time the crime was committed was corroborated by
his mother and girlfriend.
At the conclusion of the trial, the trial judge
instructed the jury with respect to the polygraph results
in conformance with the Model Criminal Jury Charge on
Polygraph Evidence, § 4.250 (approved July 11, 1977).
The appellate court ruled that in the context of this case,
the model charge improperly implied that the jury could
find defendant had answered questions deceptively,
when the only evidence presented to the jury was that
defendant had answered truthfully. Also, the charge that
“[t]he [expert’s] opinion is not by itself sufficient
evidence to support a finding of guilt or innocence”
constituted plain error because it erroneously implied
that defendant had a burden to present evidence of his
innocence and that the burden could not be satisfied by
the polygrapher’s opinion alone, but had to be supported
by other evidence.
In a footnote, the Appellate Division also stated that
the model charge in its present form should not be used
in cases in which the polygrapher testifies that defendant
has been truthful in denying complicity in the crime
charged.
- Expert Testimony
Neither the State nor the defendant is unequivocally
bound by the conclusions drawn by the polygraph expert
designated in the stipulation when the stipulation does
not prohibit either of the parties from introducing
extrinsic expert evidence to challenge or refute the
stipulated examiner’s findings. Since the nature of
scientific testimony in general, and polygraphic
testimony in particular, requires the fullest possible
exploration of the expert’s opinion at the trial, and
inasmuch as defendant’s fundamental right to present
witnesses in his favor must be honored, fairness requires
the ability by either party to produce extrinsic expert
witnesses when it is not barred by the terms of the
stipulation. However, while the undesignated expert will
be allowed to testify once his personal knowledge and
expertise have been established, that testimony will be
limited to a refutation of the stipulated examiner’s
evaluation. State v. Baskerville, 73 N.J. 230, 233-34
(1977).The holding in State v. Baskerville, supra, was
predicated upon the fact that the stipulation therein did
not contain a clear and unequivocal provision barring
extrinsic evidence to combat the stipulated examiner’s
findings. At that juncture, the Supreme Court expressly
refrained from deciding whether an unambiguous waiver
of either the right to cross-examine the designated expert
or to submit independent proof of a conflicting expert
opinion would be enforceable. Id. at 234. The Court also
left for another day resolution of the question of whether,
under a similar stipulation containing no explicit waiver,
a defendant might be permitted to introduce evidence of
results of a separate test administered by his own
examiner.In State v. Finn, 175 N.J. Super. 13 (Law. Div. 1980),
the court addressed the first of the two issues left
undecided by the Supreme Court in Baskerville and
determined that, whether or not a waiver was knowingly
and voluntarily made, that part of the stipulation which
precludes defendant from submitting an independent
evaluation of the stipulation polygraph results violates
principles of fundamental fairness and should not be
given effect. The court reasoned that since the process by
which the jury assessed the significance of the polygraph
was by an evaluation of an expert’s interpretation of the
results and his or her conclusions as to defendant’s
truthfulness during the test, and that since that
evaluation by the jury would be the determinative factor
as to the issue of defendant’s innocence or guilt, to enforce
a stipulation preventing defendant from introducing
rebuttal testimony by his own expert would unfairly
deny him the fundamental right to present witnesses and
to establish a defense. Furthermore, the court was
convinced that, owing to the nature of the evidence, in
that polygraph evidence is overvalued and given undue
weight by juries, and the polygrapher is viewed by juries