[167 NJSuper Page 371] Defendant's motion requires this court to decide whether, under a polygraph stipulation essentially identical to that under consideration in State v. Baskerville , 73 N.J. 230 (1977), a defendant may introduce evidence of results of a separate test administered by his own examiner.
This issue was expressly left undecided in Baskerville, supra at 234, and apparently is one of first impression.
The juvenile defendant in this case was charged with inflicting malicious damage on several cemeteries in Cumberland County. On December 18, 1978 the juvenile underwent a polygraph examination administered by his own expert. No stipulation with the prosecutor was entered into as to this polygraph test. On January 8, 1979 the juvenile, with the advice of his lawyer, agreed to submit to a polygraph examination pursuant to a stipulation essentially identical to that in Baskerville, supra , reprinted at 236-238.
The juvenile seeks two-fold relief: (1) to allow defendant's expert at trial to testify as to his conclusions and evaluations of data obtained from the stipulated polygraph examination, and (2) to allow the introduction of evidence of the results of the polygraph administered by his own expert.
As to the use of defendant's expert to testify as to his conclusions and evaluations of data obtained from the stipulated examination, State v. Baskerville, supra , is dispositive. There, confronted with a virtually identical stipulation, the Supreme Court held that the stipulation does not unequivocally bind defendant to the designated examiner's test results, 73 N.J. at 233; that fairness requires that defendant be permitted to refute the designated examiner's evaluation, Id. , and that there was insufficient evidence of a knowing and intelligent waiver by defendant of his Sixth Amendment right to call witnesses to testify in his favor. Id. Defendant's expert will be allowed to testify once his personal knowledge and expertise have been established pursuant to Evid. R. 19. Id. at 234. The scope of testimony will be limited to a refutation of the stipulated examiner's evaluation.
The second part of defendant's motion is, by contrast, more perplexing. A search of the case law of this and other jurisdictions indicates that the issue presented is of first impression.
In State v. Baskerville our Supreme Court specifically stated:
We leave for another day resolution of the question of whether, under a stipulation similar to the instant agreement, a defendant might be permitted to introduce evidence of results of a separate test administered by his own examiner. [at 234]
A criminal defendant's right to present witnesses to testify in his favor is a fundamental right guaranteed by the Sixth Amendment as incorporated into the Fourteenth Amendment's Due Process Clause. Washington v. Texas , 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1977). Certainly this right should not be defeated in the absence of a clear and unequivocal waiver. State v. Baskerville, supra. The ...