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.
- 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).
- 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.