6.14Polygraph Examinations¹

A.Polygraph Examinations for Defendants Charged With CSC Offenses

A person who allegedly committed one of the offenses prohibited by MCL 750.520b (CSC-I), MCL 750.520c (CSC-II), MCL 750.520d (CSC-III), MCL 750.520e (CSC-IV), or MCL 750.520g (assault with intent to commit CSC),² must be given a polygraph examination (lie detector test), if he or she requests it. MCL 776.21(5).

“MCL 776.21(5) extends the right to demand a polygraph examination only to a defendant ‘who allegedly has committed’ an enumerated criminal-sexual-conduct violation.” People v Phillips, 469 Mich 390, 396 (2003). “Because the statute does not otherwise provide for a time limit within which to exercise the right, under the clear and unambiguous language of MCL 776.21(5), the right is lost only when the presumption of innocence has been displaced by a finding of guilt, i.e., when an accused is no longer ‘alleged’ to have committed the offense.” Phillips, 469 Mich at 396. In Phillips, the defendant asserted his right to a polygraph examination during jury deliberations, and the Supreme Court concluded that the defendant’s motion was timely because “he was still alleged to have committed the offense[.]” Id. However, failure to grant a defendant’s timely request does not require a new trial unless it is more probable than not that the error was outcome-determinative. Id. at 396-397.

A defendant’s statutory right to a polygraph examination does not include the right to have the examination tape-recorded. People v Manser, 250 Mich App 21, 32 (2002), overruled on other grounds by People v Miller, 482 Mich 540, 561 n 26 (2008).³ Furthermore, information that a defendant did not receive a tape-recorded polygraph examination is inadmissible at trial because it is “not relevant to any material fact but only to a collateral legal matter[.]” Manser, 250 Mich App at 32.

A defendant has the right to have counsel present during a polygraph examination and during any questioning following the examination when the examination occurs after the Sixth Amendment right to counsel has attached. People v Leonard, 125 Mich App 756, 759 (1983); Wyrick v Fields, 459 US 42, 46 (1982).⁴ However, a defendant may waive the right to have counsel present at a polygraph examination, and this waiver may extend to the defendant’s right to counsel at any post-examination questioning. Leonard, 125 Mich App at 760; Wyrick, 459 US at 46-47. See also People v McElhaney, 215 Mich App 269, 274-277 (1996).

B.Victims of CSC Offenses and Polygraph Examinations

Under MCL 776.21(2), “[a] law enforcement officer shall not request or order a victim to submit to a polygraph examination or lie detector test.” Additionally, MCL 776.21(2) prohibits a law enforcement officer from informing a victim of the option of taking a polygraph examination or lie detector test, unless the victim asks about such a test. MCL 776.21(2). “A law enforcement officer shall inform the victim when the person accused of a crime specified in [MCL 776.21(1)(b)] has voluntarily submitted to a polygraph examination or lie detector test and the test indicates that the person may not have committed the crime.” MCL 776.21(3).

C.Admissibility of Results

“[T]estimony concerning a defendant’s polygraph examination is not admissible in a criminal prosecution.” People v Kahley, 277 Mich App 182, 183 (2007). “It is plain error for the jury to be presented with the results of a polygraph examination.” Id. However, the error does not necessarily require reversal. Id. at 183-184. In Kahley, reversal was not required because (1) “reference to defendant’s refusal to take a polygraph examination was brief,” (2) “the reference to defendant’s refusal was not repeated,” (3) “the prosecutor did not argue that defendant was guilty because he had refused to take a polygraph examination,” (4) “defendant himself later testified that he asked to take a polygraph test but was never given one,” and (5) “defendant confessed to the crime.” Id. at 184.