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State v. Smith

Decided: July 1, 1976.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARGY ELLEN SMITH, DEFENDANT-APPELLANT



Fritz, Seidman and Milmed. The opinion of the court was delivered by Fritz, P.J.A.D.

Fritz

[142 NJSuper Page 576] A substantial question in the matter before us, in which defendant appeals from her conviction on jury trial for embezzlement (N.J.S.A. 2A:102-5), relates to the admissibility of a polygraph examination to which defendant submitted herself. She contends that her timely objection to testimony relating to the polygraphic testing was erroneously overruled. The State argues that the polygraph results were admissible by virtue of a "release," previously prepared, evidently by the police authorities, and submitted to defendant before she had obtained counsel, and application of the doctrine of State v. McDavitt , 62 N.J. 36 (1972). We are satisfied that the "release" failed to incorporate an essential element of the McDavitt criteria

whereby the polygraphic evidence should have been excluded, and we reverse.

Prior to McDavitt polygraph evidence was simply inadmissible in a criminal case. Rejection was based on the failure of the procedure to attain "scientific acceptance as a reliable and accurate means of ascertaining truth or deception." State v. Driver , 38 N.J. 255, 261 (1962); see State v. Melvin , 65 N.J. 1 (1974). Suggestions appeared that the results might be different upon a showing of "a high degree of recognition" of the "reliability" of such "scientific aids." State v. Walker , 37 N.J. 208, 215 (1962), cert. den. 371 U.S. 850, 83 S. Ct. 89, 9 L. Ed. 2d 86 (1962).

The breakthrough came in McDavitt where it was said:

This Court will take judicial notice of the fact that polygraph testing is used extensively by police and law enforcement agencies, government agencies and private industry for investigative purposes. McCormick, Evidence , (2d ed. 1972), § 207, p. 507. Its growing use as a scientific tool cannot be doubted. "The Truth about Lie Detectors in Business," The New York Times , Oct. 29, 1972, § 3 at 3, col. 1. * * * [62 N.J. at 45]

The prior rule of exclusion was relaxed to the extent that

The Supreme Court was aware, however, that scientific acceptance of polygraph testing is in its infancy and that much remains to be proved. Accordingly, it directed that, prior to admission of evidence relating to the polygraph examination

The title of the piece of paper on the first page is New Jersey State Police Polygraph Unit, State Police, Flemington, date Thursday, January 24, 1974. I hereby voluntarily request and authorize Louis Jasmine, polygraphist, to interview me with respect to the following criminal investigation: moneys missing from the Ditschman Motor Sales Company, Inc. I understand that Louis Jasmine, polygraphist, is an officer of the New Jersey State Police. I also request and authorize Louis Jasmine, polygraphist, to conduct a polygraph examination upon me and if necessary to interview me following the polygraph examination.

I further specifically waive any and all rights to privacy that I have and may have with respect to the interview and to the taking of the polygraph examination. The following are my constitutional rights. By signing my name at the bottom of this form I acknowledge that I have read fully these rights and understand them. One, I have the right to remain silent and do not have to say anything at all. Two, anything I say to Louis Jasmine, polygraphist, during either the interviews or the polygraph examination can be used against me in a court of law. Three, I have the right to talk to a lawyer before I submit to the interviews and the polygraph examination. Four, if I cannot afford a lawyer the Court will appoint one to respresent [ sic ] me without cost to me. I do not have to answer any questions or submit to the polygraph examination until a lawyer is appointed and advises me.

Five, I understand that I have the right to stop the polygraph examination at any time. I understand that I can stop answering questions at any time.

Page two, I fully understand the above statement of my rights. I am willing to answer all questions and make any statements I may want to give. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me. I understand that anything I say to Louis Jasmine, polygraphist, whether during the interview or the polygraph examination can be used against me in a court of law. I hereby authorize the New Jersey State Police to disclose both orally and in writing the results and opinions of the polygraph examination and statements made by me to all interested persons.

I further understand that such results may prove unfavorable to me. Fully understanding this I release forever, hold free from all harm, liability or damage to me as a result of the polygraph examination, results and opinions the State of New Jersey together with its officers, employees. I request that the ...


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