McFarland, J.d.c. (temporarily assigned).
[115 NJSuper Page 214] After a trial by jury on April 22, 26, 27, 1971, defendant was convicted of contributing to the delinquency of a minor. He is a married man with five children by his wife. He has also fathered three children by the complaining witness, Maude Watkins. He is over 40 years old and has no criminal convictions except a recent plea in New York to a similar charge. He proclaims his innocence as to both the New York and New Jersey charges.
On May 3, 1971 the prosecutor, in support of a motion to revoke defendant's release in custody of the probation department, submitted the sworn affidavit of Maude Watkins that defendant had threatened her life. After accepting (without allowing cross examination) defendant's testimony and that of one other witness for him, the court remanded defendant to the Hudson County jail pending sentence. Defendant himself added to his strong denial of the charge an offer to submit to a lie detector test. The polygraph examination was held and, in the opinion of the examiner, defendant is telling the truth in stating that he did not threaten Maude Watkins. It follows that Maude Watkins is not telling the truth.
Defense counsel then made a formal motion for judicial acceptance of the polygraph test in post-conviction matters before the court. The prosecutor, who had never consented to the use of the test, objects, contending this would be contrary to law. He does acknowledge the usefulness of the polygraph as an investigatory tool, and also the qualifications of the examiner, Sergeant John Lyng, who performs most of his tests for the Jersey City Police Department in investigations that take place before arrest or charge.
For reasons not material to this opinion, the court refuses to release defendant before the required Menlo Park examination, so that the sole question remaining is whether the court can accept the polygraph report in its presentence consideration.
The Supreme Court of New Jersey does not hesitate to admit evidence obtained through the use of scientific aids, State v. Walker , 37 N.J. 208 at 215 (1962) citing cases regarding radar, fingerprints, blood grouping. The court does not give the same judicial recognition to a polygraph examination. It sums up its position as follows:
We do not now express any opinion as to whether the results of a lie detector test should under all circumstances, be excluded in criminal cases. It is enough for us to say that in the circumstances of the present case the trial court did not err in its ruling. [at 217]
The situation in State v. Walker was an offer to submit to a polygraph test during the heat of a jury trial, provided the results could be used in evidence. What the trial judge banned was a forced imposition on the prosecutor of evidence that both he and the court might believe was of no benefit and would prejudice the jury.
Certain prosecutors have confidence in polygraph tests and are quite willing to allow the result of a polygraph to determine whether they should prosecute or dismiss, and such a stipulation has been held valid and enforceable. Butler v. State , 228 So. 2d 421, 36 A.L.R. 3d 1274 (Fla. App. 1969). In that case defendant and the state, shortly after the initial indictment, agreed that he would take a polygraph test and each party would rely on the test results. The initial indictment was nolle prossed on the basis of the test, but defendant was later reindicted and convicted. This conviction was set aside in Butler.
It is quite reasonable that counsel and trial courts be either proponents or opponents of polygraphs. The judicial use of opinions based upon polygraph examinations should not usurp the constitutional right of all parties to have a fair, unprejudiced jury trial.
Our courts have decided that a defendant may not tell the jury that he offered to submit to a lie detection test if the State would stipulate that the results would be evidential, State v. Peetros , 45 N.J. 540 (1965); the prosecutor may not refer to defendant's failure to submit to a polygraph, State v. Driver , 38 N.J. 255 (1962); State v. LaRocca , 81 N.J. Super. 40 (App. Div. 1963); a defendant who submitted to the test but not its admissibility was prejudiced by testimony indirectly showing the result thereof, State v. Arnwine , 67 N.J. Super. 483 (App. Div. 1961); the result of a lie detector test of a witness being brought ...