The motions presented by the State and defendant present issues of first impression for this jurisdiction. The court will first deal with defendant's motions.
Defendant William Christopher is being tried for the murder of William Malone. A polygraph test was given by the State to its principal witness, Lucille Greiner, with her consent. Defendant requests that the questions, answers and the results of the test be made available to him. Secondly, he wants the results of the polygraph test which indicated the witness' answers had been evasive to many questions admitted into evidence for the purpose of attacking the credibility of the witness. The prosecutor chose to reject these results when he called Mrs. Greiner as a State's witness. Defendant was not provided with the information he seeks prior to trial.
The testimony of Mrs. Greiner was detrimental to defendant's case. She indicated that she had seen him on the porch of decedent's property soon after the alleged killing. There can be no question that the law requires the prosecutor to reveal any information which would tend to exculpate a defendant. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Taylor, 49 N.J. 440
(1967); State v. Vigliano, 50 N.J. 51 (1967); State v. Harrison, 119 N.J. Super. 1 (App. Div. 1972). These cases follow the rationale set forth in State v. Vigliano in which the court held:
The primary duty of the State in a criminal prosecution is not to seek convictions; it is to see that justice is done and truth is revealed. [Emphasis supplied]
Under that rationale the prosecutor erred in not making the information available to defendant prior to trial. Therefore, defendant's motion for discovery regarding the polygraph test is granted.
Defendant's motion to have the results of the polygraph test admitted into evidence does not involve the issue of the reliability of the polygraph test itself. Our Supreme Court in State v. McDavitt, 62 N.J. 36 (1972), stated:
Polygraph testing has been developed to such a point of reliability that in a criminal case when the State and the defendant enter into a stipulation to have the defendant submit to a polygraph test and have the results introduced into evidence such stipulation should be given effect.
It is, therefore, apparent that in a proper case the results of the polygraph test are admissible for the limited purpose of indicating that the person tested was not telling the truth at the time of the test. It is for the jury to decide what weight and effect such evidence should be given. In the context of the present case the requirements set out in McDavitt, supra, have been met. Defendant requested the results of the test be admitted into evidence. The prosecutor,, by requesting that the witness take the test and consent to its use for any lawful purpose, has impliedly agreed to its use.
One may argue that the prosecutor's use of a polygraph test did not result in a clear, unequivocal and complete stipulation. However, a reading of United States v. Hart, 344 F. Supp. 522 (D.C. 1972) indicates the contrary. In that instance, a ...