cdTOCtest

as a purveyor of scientific truth, cross-examination alone
was insufficient to protect defendant’s right to a fair
hearing. Id. at 17-18. The court, therefore refused to
enforce the objectionable, paragraph of the stipulation
and permitted defendant’s expert witness to testify. Such
testimony was, however, limited to an interpretation and
evaluation of the state-administered polygraph. Id. at 19.

In State in the Interest of B.N., 167 N.J. Super, 370 (J.
& D.R. Ct. 1979), the court addressed the second issue
left unresolved by the Supreme Court in Baskerville and
held that absent a clear and unequivocal provision barring
the use of the results of a private polygraph, such results
will be admissible to refute the results of the stipulated
polygraph, upon a showing that the unstipulated tests
were rendered according to established standards by an
examiner with established knowledge and expertise in
accordance with Evidence Rule 19 (now Evidence Rule
702). State in the Interest of B.N., supra, at 375. The court
reasoned that the criminal defendant’s right to present
witnesses to testify in his favor is guaranteed by the Sixth
and the Fourteenth Amendments and should not be
defeated in the absence of a clear and unequivocal waiver.
Id. at 373 (citing Baskerville). Fundamental fairness
requires that the testimony offered to refute the
stipulation evaluation may include the results of an
independent private polygraph test. Ibid.

3. Relation to Miranda Rights

Subjecting defendant to polygraph tests (with his
consent) does not impugn the voluntariness of his
confession. State v. Morton, 155 N.J. 383, 451 (1998)
(Immediately before testing defendant, the police
reissued Miranda warnings and defendant signed a
polygraph waiver form. Because the officers adequately
informed defendant of his rights regarding the polygraph
tests, the tests did not render his confession involuntary
or coerced.) See, State v. Gerald, 113 N.J. 40 (1988).

4. Appeals

Inmate appealing prison disciplinary decision does
not necessarily have the right to a polygraph test. See,
Johnson v. New Jersey Department of Corrections, 298 N.J.
Super. 79 (1997)(citing N.J.A.C. 10A:3-7.1c). But cf.
Engel v. New Jersey Department of Corrections, 270 N.J.
Super. 176 (App. Div. 1994) (in criminal disciplinary
proceeding, when only evidence against defendant was an
uncorroborated confidential informant’s claims, and that
informant’s successful polygraph test, then defendant
entitled to subject himself to polygraph test, as well). In
the Department of Corrections context, while the use of

polygraphs to investigate disciplinary charges is

specifically sanctioned by N.J.A.C. 10A:3-7.1, the

administration of a polygraph test still falls within the

discretion of the Superintendent. Counterman v. Fauver,

__ F. Supp.2d __, 1989 WL 200954,*4-*6 (D.N.J.

1989); Muhammad v. Beyer, __F. Supp.2d __, 1988 WL

59966 (D.N.J. 1988).

In court martial proceedings, a per se rule against

admission of polygraph evidence did not violate the Fifth

or Sixth Amendment rights of accused. United States v.

Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413

(1998)(Military Rule of Evidence 707 makes polygraph

evidence inadmissible in court-martial proceedings).

IV. DISCOVERY

The State has a duty to furnish a defendant with

polygraph evidence that is exculpatory in nature under

the principles enunciated in such cases as Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d. 215

(1963), and State v. Vigliano, 50 N.J. 51 (1967). United

States v. Sourlis, 953 F. Supp. 568 (D.N.J. 1996); State v.

Christopher, 149 N.J. Super. 269, 275 (App. Div.), certif.

denied, 75 N.J. 224 (1977).

V. EMPLOYER REQUIRING LIE DETECTOR

TEST-DISORDERLY PERSONS OFFENSE

A. Statute

N.J.S.A. 2C:40A-1 provides in pertinent part that

any person who as an employer shall influence, request or

require an employee or prospective employee to take or

submit to a lie-detector test as a condition of employment

or continued employment, commits a disorderly persons

offense. Employers and employees legally involved in the

manufacture, distribution or dispensing of controlled

dangerous substances are exempted from the statute.

Any employee or prospective employee who is required to

take a lie detector test as a precondition of employment

or continued employment shall have the right to be

represented by legal counsel. A copy of the report

containing the result of the lie detector test shall be in

writing and be provided, upon request, to the individual

who has taken the test. Information obtained from the

test shall not be released to any other employer or person.

The employee or prospective employee shall be informed

of his right to present to the employer the results of an

independently administered second lie detector

examination prior to any personnel decision being made

in his behalf by the employer.