New Jersey Court Rejects Uncounseled Polygraph Stipulations

Gannett correspondent Michael Rispoli reports for the Asbury Park Press in “Conviction overturned due to polygraph test”:

A New Jersey appellate court on Tuesday reversed the sexual molestation conviction of a Union County man due to the unreliability of a lie detector test given to him before he was charged with the crime.

The defendant, known as A.O. in court documents, was convicted of sexually assaulting his girlfriend’s 9-year-old daughter in 2001. The prosecution’s case relied heavily upon A.O.’s failed polygraph test, which he took after the allegations were lodged, without a defense attorney involved. A.O. was arrested and charged after the failed test, but the daughter recanted her accusation before reaffirming it a year later.

Since the reliability of polygraph tests is still debated in the scientific field, the appellate court found it “fundamentally unfair to permit an uncounseled defendant to stake his fate on what may be the equivalent of a coin toss.”

“Because the polygraph evidence may well have made the difference between conviction and acquittal in this case, the conviction must be reversed and the matter remanded for retrial,” wrote Appellate Judge Susan L. Resiner in the court’s opinion.

Union County Prosecutor’s Office spokeswoman Eileen Walsh said the office would be appealing the decision, but would not comment further on the court’s decision.

The ruling could have statewide implications. In a separate opinion that concurred with the main 34-page decision, Appellate Judge Harvey Weissbard urged the state Supreme Court to “take the next, logical step, barring the use of polygraph evidence entirely.”

Weissbard said the problem with a polygraph is “not just that it is unreliable, but . . . so inherently prejudicial.”

The Court’s decision, including Judge Weissbard’s separate opinion, may be downloaded here (125 kb PDF).

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