Matthews, Lora and Morgan.
Defendant Baskerville and one Decker were indicted by a Hudson County grand jury for armed robbery. When the indictment was first listed for trial Decker moved for a severance on the ground that the results of a polygraph examination administered to Baskerville would be introduced into evidence. After ruling that the admissibility of polygraph results was not limited to impeachment purposes only, the trial judge granted the severance. Decker was thereafter acquitted.
In a stipulation dated October 17, 1973 Baskerville, with the advice of his lawyer, agreed to submit to a polygraph examination. The stipulation provided that the examination would be conducted by a qualified examiner to be designated by the State, and that the results of the testing, whether inculpatory or exculpatory, could be introduced as evidence by either party to the stipulation. If in the expert opinion of the designated examiner the results were inconclusive, such results would be inadmissible. Both the State and
defendant reserved the right to refuse to participate in any further testing, and both also reserved the right, at trial, to
The State designated Bruce C. Best as the examiner. After administering the test to defendant, Best was of the opinion that defendant was not giving truthful answers to pertinent questions concerning the robbery.
Prior to trial the State moved to exclude Michael McMahon, an expert witness retained by the defense, from testifying as to his analysis of the ploygraph test administered by Best, the results of which he found to be inconclusive. The trial judge ruled that the proposed testimony of defendant's expert witness as to his interpretation of the polygraph examination should be excluded except insofar "as it may go to the stipulated examiner's background in polygraph training and experience, his qualifications as an expert, the equipment and procedures employed in pretesting and testing Defendant and the nature of the questions asked." Defendant was granted leave to appeal from that order. We elected to consider the merits. R. 2:11-2. Briefs have been filed and we have heard the oral arguments of counsel.
The narrow issue before us on this appeal is one of first impression. We have not been cited to any case which deals with the precise question. The most pertinent decision is State v. McDavitt , 62 N.J. 36 (1972), which held that the results of a stipulated polygraph examination would be admissible into evidence where the stipulation is clear, unequivocal and complete, and where it is entered into with full knowledge on the part of defendant of his right of refusal. McDavitt held that it must also appear that the examiner is fully qualified and that the test is administered
in accord with established techniques. The court in McDavitt noted that there was no "serious challenge to the examiner's evaluation of defendant's physiological responses as indicating deception." 62 N.J. at 46.
Here, such a challenge is being made. Defendant wishes to introduce the testimony of his own expert rebutting the conclusions of Best, the stipulated examiner. Defendant contends that the October 17 stipulation is vague and ambiguous as to this particular point, and that such ambiguity should be resolved against the State, which drafted it.
Defendant points out that the stipulation makes no reference to what extrinsic evidence may be permitted to "explore fully" the examiner's background and training, etc., and that it does not expressly prohibit the defendant from rebutting the conclusions of the state-designated expert. Defendant also contends that his constitutional right to be heard and to present a defense would be violated by excluding his expert's testimony.
The State, on the other hand, argues that defendant agreed on Best as a polygraphist qualified to administer and evaluate the test, and that no such agreement was made with respect to defendant's expert. Moreover, the State asserts that "fairness" should estop defendant from repudiating the results of a test which he voluntarily took in seeking to exculpate himself, and that allowing a defendant to attempt to nullify the test results with his own expert would make submission to a ...