On certification to the Superior Court, Appellate Division, whose opinion is reported at 397 N.J. Super. 8 (2007).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This appeal addresses the admissibility of the results of defendant's polygraph exam based on a stipulation entered without counsel. It also addresses defendant's claim that under State v. Guenther, 181 N.J. 129 (2004), he should have been allowed to impeach the credibility of the victim-witness by inquiring into false criminal allegations made by the witness after the underlying accusation.
Defendant, A.O., is an immigrant from Nigeria who lived with his girlfriend, J.I., and her daughter, C.I., since 1998. On April 27, 2001, J.I. called defendant and relayed there was a problem with C.I., who was ten at the time. J.I. asked defendant to come to the Union County Prosecutor's Office. On arrival, defendant found three officers waiting to speak to him.
For the next four hours, the detectives questioned defendant about allegations the girl made in school that defendant had sexually abused her. The police advised defendant of his Miranda rights three separate times. A detective proposed that defendant take a polygraph examination, and he agreed. An assistant prosecutor presented defendant with a standard, five-page polygraph stipulation form, which the assistant prosecutor read out loud to defendant. Defendant initialed each paragraph and signed the stipulation at 11:38 p.m. At the time, defendant was not represented by counsel, was not under arrest, and had not been charged with a crime. In the stipulation, defendant not only agreed to take the polygraph exam but also agreed that the results would be admissible at trial; agreed that the polygraph examiner was an expert; waived any objection to the admissibility of the expert's testimony; and waived the right to call another expert or witness about that evidence.
Detective Sergeant John Kaminskas, a nineteen-year veteran who had previously administered hundreds of polygraph exams, began the examination just before midnight. Kaminskas asked defendant four pertinent questions about whether he had sexually abused C.I., and defendant answered "no" each time. According to Kaminskas, the polygraph revealed "indications of deception" for each response. Defendant was arrested soon afterward.
Approximately one week later, C.I. recanted her allegations against defendant on the day she was to undergo a medical examination. As a result, no exam was performed. Shortly after, DYFS removed C.I. from her home. During the course of the next year, DYFS placed C.I. first in a shelter, and ultimately with an aunt. While living in the shelter, C.I. also accused a DYFS worker of sexually assaulting her, but she recanted several days after the prosecutors interviewed her about the incident.
Defendant was indicted on charges that included first-degree sexual assault. At trial, C.I. testified that defendant committed a number of sexual acts against her, including rape. No physical or medical evidence was introduced to corroborate her testimony. The State introduced the polygraph results and highlighted that evidence throughout the trial. Detective Sergeant Kaminskas testified that he had a 100 percent accuracy rate in the prior 302 tests he had administered, remarking that he "never had a confirmed mistake." In closing arguments, the State underscored that Kaminskas was "100 percent accurate . . . ." In addition, the State presented testimony explaining why C.I. had recanted. It offered evidence that C.I. was not supported by her family, and introduced expert testimony to explain that such victims are more likely to recant.
The defense argued that C.I. fabricated the allegations against defendant because she disagreed with his strict parenting style. In an effort to attack C.I.'s credibility, defense counsel sought to make use of a DYFS report that revealed that C.I. had accused a DYFS worker of sexually assaulting her and later recanted. The State countered with proof that the abuse had actually occurred. After reviewing certain DYFS records in camera, the court found that C.I.'s allegations against the DYFS worker had been substantiated. As a result, the trial judge reasoned that this was not a case of a child "lying about two people." The jury found defendant guilty of first-degree aggravated sexual assault. Defendant was sentenced to eighteen years with a nine-year period of parole ineligibility and to community supervision for life.
The Appellate Division reversed defendant's conviction and remanded for a new trial. State v. A.O., 397 N.J. Super. 8, 27 (App. Div. 2007). The panel held that admitting polygraph results in evidence based on the stipulation defendant signed without a lawyer impinged on defendant's Sixth Amendment right to counsel. In addition, the panel ruled that on remand the trial court should conduct the N.J.R.E. 104 hearing as required by Guenther to determine whether defendant may question witnesses about C.I.'s later abuse allegation against the DYFS worker. The panel explained that the trial court's in camera review of records from DYFS was not an adequate substitute for an N.J.R.E. 104 hearing. In a concurring opinion, one judge urged the Court to bar the use of polygraph evidence altogether, maintaining that it does not make sense to permit the introduction of evidence that is widely considered unreliable simply because the parties agree to its admissibility.
The Supreme Court granted the State's petition for certification. 194 N.J. 446 (2008).
HELD: Polygraph evidence that is based on a stipulation entered into without counsel is inadmissible. A defendant may impeach the credibility of a victim-witness about false allegations made after the underlying allegations were made against the defendant.
1. Under federal law, an accused's Sixth Amendment right to counsel does not attach until adversary judicial proceedings have been initiated against him. Similarly, this Court has held that under the State Constitution, the right to counsel attaches "upon the return of an indictment or like process . . . ." In this case, defendant had not been formally charged at the time he signed the polygraph stipulation. Because the State's investigation was at a preliminary stage when defendant agreed to the stipulation, the Sixth Amendment does not afford him a basis for relief. (pp. 13-16)
2. As a general rule, polygraph results are not admissible in evidence in New Jersey. In State v. McDavitt, 62 N.J. 36, 44 (1972), this Court held that "lie detector testing has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception." This Court's view remains unchanged - the Court has not sanctioned and does not now entertain the admission of polygraph results. In McDavitt, the Court allowed the admission of polygraph results where a defendant told the jury mid-trial that he would take a polygraph test and, after consulting with his attorney, agreed to do so. McDavitt was a case with unusual facts that created a narrow exception to the rule barring polygraph evidence. McDavitt does not offer support for the admission of the stipulated polygraph results in this case. (pp. 16-22)
3. The Court is troubled by more than the prosecution's misplaced reliance on McDavitt and has concerns about certain matters defendant was asked to stipulate to on his own. First, the Court questions defendant's ability to stipulate to the expert's qualifications. Second, the stipulation waives all challenges to the admissibility of the polygraph expert's testimony. Third, the stipulation limits defendant's ability to attack polygraph evidence. Fourth, the stipulation collapses questions about a suspect's voluntary consent with the legal issue of admissibility.
A defendant can voluntarily agree to take a polygraph test, but its admissibility is a distinctly separate question. Defendants typically rely on counsel to object to otherwise inadmissible evidence. The stipulation here operated to eliminate counsel's role by relying on the suspect's consent. To avoid that course, a number of other states allow polygraph results by stipulation only upon the approval of defendant's counsel. Such an approach is consistent with the holding in McDavitt but was not followed here. Relying on the Court's supervisory authority to advance the reliability of the criminal justice system, the Court bars the introduction of polygraph evidence based on stipulations entered into without counsel. The Court agrees with the Appellate Division here that the polygraph evidence may well have made the difference between conviction and acquittal in this case. As a result, admission of the evidence clearly was capable of producing an unjust result and warrants reversal and a new trial. (pp. 22-27)
4. The concurring judge in the Appellate Division encourages the Court to reverse McDavitt and ban polygraph evidence altogether. At this time, there is not an adequate record to make ultimate findings about the reliability of polygraph evidence. In light of developments since 1972, the Court does question McDavitt's continued wisdom. The next time a party seeks to introduce stipulated polygraph evidence, agreed to by both sides, that evidence should be admitted only if the parties can first establish its reliability at an N.J.R.E. 104 hearing. (pp. 27-30)
5. The Court next reviews whether Guenther should be extended to allegations made after the underlying accusation. The Attorney General properly conceded that it should. The Court agrees. Guenther recognizes that a witness's prior false criminal allegations may be relevant to the witness's credibility. That logic applies with equal force to false criminal allegations made soon after the primary allegation. On remand, the trial court should conduct the N.J.R.E. 104 hearing Guenther requires and make the necessary findings. (pp. 30-32)
Judgment of the Appellate Division is AFFIRMED and MODIFIED and the matter is REMANDED for a new trial.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in CHIEF JUSTICE RABNER's opinion.
The opinion of the court was delivered by: Chief Justice Rabner
Four hours after learning that police suspected him of raping his girlfriend's ten-year-old daughter, defendant sought to clear his name by agreeing to take a lie-detector test.
Though polygraph evidence is generally inadmissible, defendant, without counsel, signed a stipulation before submitting to the exam in which he not only agreed to take the test but also (1) agreed that the polygraph examiner was an expert at his craft, (2) waived any objection to the admissibility of the expert's testimony, (3) waived the right to call another expert or witness about that evidence, and (4) agreed that the results of the polygraph exam would be admissible at trial. Those decisions would ordinarily have been made with the help of a lawyer.
Defendant failed the exam. As a result, otherwise inadmissible polygraph evidence was introduced against him at trial based on consent he alone provided. In a case that rested on the testimony of the accuser, with no medical or physical evidence to corroborate her words, defendant was convicted.
The sweeping waiver of trial rights in this case, without the assistance of a lawyer, compromises the integrity of the criminal trial process. Our obligation to advance the sound administration of justice, and our continuing doubts about the reliability of polygraph evidence, warrant the exercise of the Court's supervisory authority to bar the admission of polygraph evidence based on stipulations entered into without counsel. We therefore affirm and modify the judgment of the Appellate Division, which reversed the conviction on this ground for different reasons.
In addition, we address State v. Guenther, 181 N.J. 129 (2004), which permits a defendant, in carefully limited circumstances, to impeach the credibility of a victim-witness by inquiring into prior false criminal allegations the witness made. We now hold that false allegations made after the underlying accusation may also be relevant for impeachment purposes.
Defendant sought to impeach the victim with evidence that she falsely accused an employee of the Division of Youth and Family Service (DYFS) of sexual abuse shortly after making allegations against the defendant. Because Guenther was decided after defendant's trial, the trial court did not have the benefit of that ruling in evaluating defendant's argument. We agree with the Appellate Division that, on remand, the trial court should conduct an N.J.R.E. 104 hearing in the manner outlined in Guenther to evaluate whether the proposed impeachment evidence may be used at a new trial.
Defendant A.O. is an immigrant from Nigeria who lived with his girlfriend, J.I., and her daughter, C.I., since 1998. Late in the afternoon on April 27, 2001, J.I. called defendant and relayed that there was a problem with C.I. At the time, the girl was ten years old. J.I. asked defendant to come to the Child Advocacy Center of the Union County Prosecutor's Office. On arrival, he found three police officers waiting to speak with him.
For the next four hours, the detectives questioned defendant about allegations the girl had made in school earlier that day. According to a classmate and a school official, the girl had said that defendant was "doing sex to her," "abusing her," and forcing her to engage in sexual acts.
During the course of the interview, the police advised defendant of his Miranda rights three separate times, the first at 6:40 p.m. At around 11 p.m., after repeatedly denying the accusations, defendant asked the officers how he could prove his innocence. A detective proposed that he take a polygraph examination, and defendant agreed. An assistant prosecutor then met with defendant and gave him a standard, five-page polygraph stipulation form used by the Union County Prosecutor's Office. The prosecutor reviewed the form with defendant for about half an hour. The prosecutor read the form aloud to ...