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Courtroom Status of the Polygraph

NCJ Number
Akron Law Review Volume: 14 Issue: 1 Dated: (Summer 1980) Pages: 133-153
J A Turlik
Date Published
20 pages
The legal status and various uses of the polygraph available to the criminal attorney are discussed, with an emphasis on Ohio law.
The judicial regulation of the polygraph began in 1923, when the Circuit Court for the District of Columbia held in Frye v. United States that polygraphic evidence is not generally admissible at trial. Although there have been numerous attacks on the rationale of 'Frye,' the case has, with rare exceptions, been followed in Ohio and throughout the Nation. Ohio Courts of Appeal have held that exclusion of polygraph evidence will be the rule in Ohio until its proponents can show an advancement in the reliability of polygraph diagnosis, or until counsel can show its 'scientific recognition and public acceptance.' 'Frye' has been narrowly interpreted so that it does not preclude every courtroom use of the polygraph. Before approaching the court or the prosecutor concerning the polygraph, a wise criminal attorney will first have the test administered secretly to the client. Although not conclusive, it is likely that the accused will pass a second test if a first test is passed. A probable cause hearing is the first point of a criminal proceeding at which polygraphic evidence could be presented in court. Polygraph evidence may also be used at bond hearings as a justification that the defendant has no fear of returning to court. Citing the general rule of inadmissibility at trial, courts have generally not been receptive to the introduction of polygraphic evidence at suppression hearings. The major exception to the 'Frye' rule is when both parties stipulate to the admission of polygraph evidence. A polygraph-induced confession is admissible in Ohio, so long as it is voluntarily, knowingly, and intelligently made. Even after the trial has ended, there are still times when the polygraph may become an issue. Some judges will, prior to sentencing, extend an opportunity to the defendant to take a polygraph test. By making this offer, the judge raises an inference that guilt has not been established beyond a reasonable doubt. The defendant may also wish to use polygraphic evidence when petitioning the court for a new trial. Such evidence, however, may be rejected, as it has been in an Ohio Appeals Court, on the ground that it is not newly discovered and could have been pursued at the time of the trial. A total of 159 notes are listed.