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State v. McMahon

Decided: March 18, 1986.

THE STATE OF NEW JERSEY
v.
MICHAEL MCMAHON, DEFENDANT



Lechner, Judge.

Lechner

The defendant moves before trial to prevent the State from using a stipulated polygraph or in the alternative to permit defendant to submit the results of a prior unstipulated polygraph and to offer the testimony of a polygraph expert retained by defendant. The issues presented are novel in that no reported decision has been brought to the attention of the Court nor have I been able to discover a reported decision on point.*fn1 For the reasons to be set forth, the motion is denied in all respects.

The defendant was charged in a single count indictment with a first degree robbery (N.J.S.A. 2C:15-1). On January 14, 1986, an investigator employed by the Office of the Public Defender administered a polygraph examination to defendant. In the opinion of this expert, the defendant answered truthfully when he stated he was not involved in the robbery. Thereafter defendant, through his attorney, initiated a campaign of six to eight weeks in duration, including the filing of a motion, to compel the Prosecutor of Union County to agree to administer a polygraph examination to defendant pursuant to a stipulation. As a result of these efforts, defendant, his attorney and the

prosecutor agreed a polygraph examination would be administered to defendant.

With the assistance of his attorney, defendant entered into a detailed six page stipulation concerning the polygraph examination to be administered by a polygraphist employed by the Prosecutor. It is conceded defendant was represented by counsel at every point with regard to the stipulation -- from the request for the polygraph examination through the completion of the examination. There is no claim either counsel or defendant failed to carefully review the stipulation. There is no claim the Assistant Prosecutor misled the defendant with regard to the stipulation or its ramifications. There is no claim counsel failed to explain the contents of the stipulation to defendant or that defendant failed to understand the document. In point of fact, the stipulation clearly and unequivocally provided, among other things, that:

1. The results of the examination would be admissible on behalf of either the Prosecutor or defense irrespective of the outcome of the examination.

2. The party offering the polygraph expert would be allowed to fully develop his expertise notwithstanding the agreement and acknowledgement of his expertise in the administration and analysis of the polygraph examination.

3. The opposing party expressly waived all objection to the admissibility of the expert testimony but reserved the right to cross-examine the expert as to his qualifications, the manner of testing, and the possibility of error.

4. Neither party would have the right to introduce another polygraph expert.

5. The stipulation related only to the examination noted therein. The results of any other polygraph examination are not admissible unless covered by a stipulation.

In paragraph 9 of the stipulation, defendant conceded he had taken a prior polygraph examination administered by the Office of the Public Defender.

Following the administration of the polygraph examination on February 28, 1986, the polygraphist on behalf of the Union County Prosecutor's Office opined that the defendant was deceptive when he denied his involvement in the robbery. Thereafter, both the polygraphist for the Public Defender and for the Prosecutor met and agreed as to the ...


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