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State v. Community Distributors Inc.

Decided: April 3, 1974.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
COMMUNITY DISTRIBUTORS, INC., DEFENDANT-APPELLANT



For affirmance -- Acting Chief Justice Jacobs, Justices Hall, Sullivan, Pashman and Clifford and Judges Conford and Collester. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The Monmouth County Court, in an opinion reported at 123 N.J. Super. 589 (1973), upheld the defendant's conviction of violations of N.J.S.A. 2A:170-90.1. The defendant appealed to the Appellate Division and we certified before argument there. R. 2:12.

The defendant Community Distributors, Inc., trading as Drug Fair, operates a chain of drugstores in New Jersey. In the course of its business operations it requested that various employees including Harold Cohen, Isabelle Bayer and Matilda Nipps take or submit to polygraph (lie detector) tests. Harold Cohen was employed by the defendant in April 1971 and took the test shortly thereafter. His employment was terminated in December without apparent reason and there was no evidence to relate the termination to the results of the test. Isabelle Bayer was employed in October 1971 and took the test during the following month. Her employment was terminated immediately upon conclusion of the test and on the basis of its results. Matilda Nipps was reemployed in September and took the test in October 1971. Her employment was terminated in December for reasons unrelated to the test. Each of the named employees signed a form captioned "Consent To Taking A 'Lie Detector' Test"; it stated that "Drug Fair has not influenced, requested, or required me to take this lie detector test as a condition of employment or continued employment." However, the defendant entered into a stipulation of facts in the County Court which explicitly acknowledged that "all tests were given at the request of the employer."

The defendant was charged in the Freehold Township Municipal Court with violations of N.J.S.A. 2A:170-90.1 which declares that "Any person who as an employer shall influence, request or require an employee to take or submit to a lie detector test as a condition of employment or continued employment, is a disorderly person." L. 1966, c. 114, effective June 17, 1966. After conviction, the defendant appealed to the Monmouth County Court where it contended that (1) the statute is unconstitutional in that "it deprives defendant of the ability to protect its property" and thereby violates "due process"; (2) the defendant should be exempt from the statute "since it is in the business of dispensing narcotics and dangerous drugs"; and (3) the defendant did not violate the statute since "the lie detector tests were not given as a condition of employment and continued employment." 123 N.J. Super. at 592-593. Each of these contentions was rejected by the County Court which adjudged "on trial de novo" that the defendant was guilty as charged. Before us the defendant has renewed its contentions that the statute is "unconstitutional as applied" and that, in any event, the defendant did not violate the statute "in that it did not give the lie detector tests as a condition of employment."

The polygraph is a device that measures and records involuntary body responses to stress. These may include changes in blood pressure, pulse and respiration as well as skin responses. Their interpretation may lead the examiner to conclude that the subject's answers were truthful, untruthful or inconclusive. While there may be differing views as to the current state and reliability of the art, no one seems to question that for the test to be at all acceptable it must be conducted under carefully controlled circumstances and the examiner must be a person sufficiently trained and skilled in the interpretation of the test results. See Reid and Inbau, Truth and Deception: The Polygraph ("Lie Detector") Technique (1966); United States v. De Betham, 348 F. Supp. 1377

(S.D. Cal. 1972), aff'd, 470 F.2d 1367 (9 Cir.), cert. denied, 412 U.S. 907, 93 S. Ct. 2299, 36 L. Ed. 2 d 972 (1973); United States v. Ridling, 350 F. Supp. 90 (E. D. Mich. 1972); cf. State v. Arnwine, 67 N.J. Super. 483 (App. Div. 1961); Skolnick, "Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection," 70 Yale L.J. 694 (1961).

Much of the current polygraph controversy, national as well as local, centers around evidential issues in criminal proceedings. See Note, "The Emergence of the Polygraph at Trial," 73 Colum. L. Rev. 1120 (1973); "Recent Developments -- United States v. Ridling: The Polygraph Breaks the 'Twilight Zone,'" 23 Catholic U.L. Rev. 101 (1973). In our own State we have had many decisions which have declined to receive the results of polygraph tests in criminal proceedings even though it convincingly appeared that the tests had been taken voluntarily. In State v. Royster, 57 N.J. 472, 485, cert. denied, 404 U.S. 910, 92 S. Ct. 235, 30 L. Ed. 2 d 182 (1971), we noted that "[t]he results of polygraph tests are still judicially viewed as unreliable and therefore inadmissible in evidence." See State v. Driver, 38 N.J. 255, 261 (1962); State v. Cary, 49 N.J. 343, 351 (1967), s.c., 53 N.J. 256 (1969), s.c., 56 N.J. 16 (1970); State v. Kavanaugh, et al., 52 N.J. 7, 15 n. 2, cert. denied, sub nom., Matzner v. New Jersey, 393 U.S. 924, 89 S. Ct. 254, 21 L. Ed. 2 d 259 (1968). More recently in State v. McDavitt, 62 N.J. 36 (1972), we did sustain the admission by consent of the results of a polygraph test though we took pains to caution that the stipulation of consent must be "freely entered into" and the examiner must be "qualified and the test administered in accordance with established polygraph techniques." 62 N.J. at 46. In 1973 a "Report Of The New Jersey Supreme Court's Committee On Criminal Procedure On Polygraph Tests" was submitted to us and was considered at a Judicial Conference. A majority of the Committee suggested that even if the reliability of polygraph test results is accepted there may be policy considerations dictating their

exclusion from criminal proceedings except where stipulated as in McDavitt, supra, 62 N.J. 36.

We are not now called upon to pursue the issue insofar as it relates to criminal proceedings for here we are concerned strictly with an employer-employee context rather than a criminal context. There is no judicial control when an employer subjects his employee to a lie detector test and there is no licensing or other objective method of assuring expertise and safeguard in the administration of the test and the interpretation of its results. Nor is there any assurance of true voluntariness for the economic compulsions are generally such that the employee has no realistic choice. Organized labor groups have often expressed intense hostility to employer requirements that employees submit to polygraph tests which they view as improper invasions of their deeply felt rights to personal privacy and to remain free from involuntary self-incrimination. See United States v. De Betham, supra, 348 F. Supp. at 1390; The 'Lie Detector', Guilty Until 'Proven' Innocent (Published by AFL-CIO Maritime Trades Department Feb. 12, 1970); cf. Hermann, "Privacy, The Prospective Employee, and Employment Testing: The Need to Restrict Polygraph and Personality Testing," 47 Wash L. Rev. 73, 126 (1971); Falick, "The Lie Detector and the Right to Privacy," 40 N.Y. State Bar J. 102, 103 (1968); Comment, "The Polygraph in Private Industry: Regulation or Elimination?" 15 Buffalo L. Rev. 655, 663-64 (1966); Note, "Lie Detectors in Private Employment: A Proposal for Balancing Interests," 33 Geo. Wash. L. Rev. 932, 937 (1965).

Many industrial contracts have embodied clauses against polygraph tests and many states have legislatively prohibited their industrial use. To date at least fourteen states have such legislation. See Alaska Stat. § 23.10.037; Labor Code of California, § 432.2; Conn. Gen. Stat. Ann. § 31-51g; Del. Code Ann. tit. 19, § 705; Hawaii Rev. Stat. §§ 378-21, 378-22; Idaho Code §§ ...


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