Summary
In Ober, we held that the State's questioning of a witness during trial regarding whether the victim had been asked to take a polygraph test constituted reversible error.
Summary of this case from State v. RomanOpinion
No. 84-440
Decided May 6, 1985
1. Evidence — Polygraph Tests — Admissibility The results of a polygraph test are not admissible as evidence of guilt or innocence in criminal trials.
2. Evidence — Polygraph Tests — Admissibility Since the rule of inadmissibility of the results of polygraph tests is based upon the unreliability of such tests, as well as the danger that a jury will rely upon them to establish the truth or falsity of a witness' statements, it is error to refer to polygraph tests at a criminal trial.
3. Evidence — Polygraph Tests — Admissibility At a criminal trial by jury, question by prosecutor to police officer as to whether the officer had requested the victim to take a polygraph test constituted reversible error, since such an attempt to bolster the State's witness by a reference to a polygraph test was not harmless beyond a reasonable doubt.
Stephen E. Merrill, attorney general (Tina Schneider, attorney, on the brief and orally), for the State.
James J. Fitzpatrick, of Portsmouth, by brief and orally, for the defendant.
MEMORANDUM OPINION
The defendant was convicted on two counts of aggravated felonious sexual assault. RSA 632-A:2 (Supp. 1983). He appeals the Superior Court's (Bean, J.) denial of his motions for a mistrial and for a directed verdict.
During the trial by jury, the prosecutor asked a police officer whether the officer had requested the victim to take a polygraph test. The defendant objected and moved for a mistrial. The trial court denied the motion and instructed the jury to disregard the question. If we fail to reverse this conviction, we risk creating the impression that such a reference to a polygraph test is error, but not reversible error.
[1, 2] We have consistently held that the results of polygraph tests are not admissible as evidence of guilt or innocence in criminal trials. State v. French, 119 N.H. 500, 503, 403 A.2d 424, 426, cert. denied, 444 U.S. 954 (1979); State v. Stewart, 116 N.H. 585, 588-89, 364 A.2d 621, 623-24 (1976); State v. LaForest, 106 N.H. 159, 160-61, 207 A.2d 429, 430-31 (1965). This rule of inadmissibility is based upon the unreliability of such tests, as well as the danger that a jury will rely upon them to establish the truth or falsity of a witness' statements. State v. French, supra at 503, 403 A.2d at 426. Accordingly, it is error to refer to such a test.
A question asking whether a victim has been asked to take a polygraph test cannot produce admissible evidence. Furthermore, if the jury speculates from such a question that the victim was not asked to take a polygraph test, the victim's credibility will be enhanced. Because the prosecutor's attempt to bolster the State's witness by a reference to a polygraph test was, therefore, not harmless beyond a reasonable doubt, State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976), we must reverse and remand for a new trial.
The defendant also argues that denial of his motion for a directed verdict was error because the prosecution introduced insufficient evidence to prove sexual penetration. We have reviewed the evidence presented at trial and find that this argument is without merit.
Reversed and remanded.