Matthews, Gaulkin and Shebell, J.s.c., t/a. The majority opinion of the court was delivered by Gaulkin, J.A.D. Shebell, J.s.c. t/a (dissenting).
The Union County Prosecutor brings this interlocutory appeal from an order dated April 30, 1982 suppressing the results of a polygraph examination taken by defendant. Judge McKenzie found that defendant did not have "full knowledge" of the consequences of submitting to a polygraph and stipulating that the results of the test would be admissible in court.
Defendant was arrested at the scene of a fire and charged with criminal trespass. A second individual, Julio Rojas, was also taken into custody and charged with arson. Defendant offered to take a polygraph to clear himself. The results of the lie-detector test, taken three days later, were unfavorable to him and defendant was indicted for arson. Prior to the test, defendant signed a stipulation, by which he agreed to submit to a polygraph examination and further agreed that the results of the test, if conclusive one way or the other, would be admissible in evidence at trial on behalf of either defendant or the State. The five-page stipulation identified Julio Rojas as the "defendant" and recited at length the rights and undertakings of "defendant." It was signed, however, by Powell as "defendant."
While the stipulation was explained in some detail to defendant, we are persuaded, as was Judge McKenzie, that the
State failed to show that defendant had "full knowledge" of the consequences of such a stipulation, as required by State v. McDavitt, 62 N.J. 36, 46 (1972). Defendant was offered the opportunity to consult with counsel, but " McDavitt contemplates much more than a Miranda -type . . . warning and waiver situation." State v. Smith, 142 N.J. Super. 575, 579 (App.Div.), certif. den., 72 N.J. 465 (1976). Polygraph results are admissible in evidence only upon "a specific, clear, unequivocal and complete meeting of minds and agreement between the State and an individual that an agreed polygraph testing will be received in evidence upon an offer by either party, irrespective of the result." Id.
Whether these requirements were met in this case is primarily a factual determination. Judge McKenzie observed that defendant "appear[ed] to be of low intelligence" and that he was "very slow in his verbalization of his ideas, both in the quickness of his response and also in his saying, in his verbalization of the answers." He noted the technical defect in the stipulation which named Rojas as the defendant. Judge McKenzie also found that defendant's prior experience and "street knowledge" led him to believe that polygraph results were not admissible, notwithstanding the prosecutor's statement that they were. Based on all these circumstances, Judge McKenzie concluded that, although defendant "did voluntarily waive counsel," he executed the stipulation "without actual knowledge of the consequence of the polygraph examination. . . ." That factual finding is adequately supported by the record. State v. Johnson, 42 N.J. 146, 162 (1964).
In finding that the stipulation is not enforceable against defendant, we do not hold that the State has a burden to show that a defendant believes what he is told. The focus is not on what defendant believed, but on what defendant understood. Judge McKenzie's factual determinations support and justify
the conclusion that a clear and unequivocal meeting of the minds was not shown in this case.
The April 30, 1982 order is affirmed.
Shebell, J.S.C. t/a (dissenting).
I am constrained to disagree with the result reached by my colleagues. I am unable to support their exclusion of the polygraph results which were given after a knowing and intelligent waiver by defendant of his right to ...