James Ewinger reports for the Cleveland Plain Dealer in “Judge OKs Lie Detector Tests in Sex Case”:
With a Summit County judge’s decision to admit lie-detector evidence, a New York law student may end up setting legal precedent even before he takes a bar exam.
Sahil Sharma, 26, is charged with a single count of sexual battery stemming from an incident last summer. His defense is that there was mutually consensual contact.
That defense is not unusual, but the fact that he took the polygraph tests and passed them all is.
Kirk Migdal, his defense attorney, asked Judge Judith Hunter to throw the case out or admit the polygraph tests.
Hunter’s opinion, which was finding its way to the lawyers Tuesday, said the case stands, but so do the polygraphs.
Summit County Prosecutor Sherri Bevan Walsh said her office will appeal the decision.
That comes as no surprise to Migdal, because he said Walsh has fought him every step since Sharma was indicted in September, refusing to consider the polygraphs even though he says her office uses them, too.
Migdal offered to have his client take a test in which both sides would agree to accept the outcome – no matter what – before it was administered.
Under Ohio law, this is called a stipulated polygraph and it generally is the only way that the tests are admitted as evidence.
But Migdal said the prosecutors refused because the victim did not want the test to go forward.
Brad Gessner, chief assistant of the prosecutor’s criminal division, said they generally oppose polygraphs in sex cases where consent is the defense.
In such a case, a defendant may honestly believe that consent was given and answer truthfully, even if there was no consent.
So as Sharma sits at home in New York studying for the bar exam there, he has a chance to make new law here.
Professor J. Dean Carro of the University of Akron School of Law said Tuesday that Hunter made “a groundbreaking decision.” In allowing the tests, Hunter is predicting that the Ohio Supreme Court will affirm her decision, Carro said.
The practice has been that polygraphs are not admissible at trial, said Cleveland attorney Gordon Friedman, adjunct professor of criminal procedure at Cleveland State University’s John Marshall College of Law.
The exception is the stipulated form of the test.
But polygraph tests have long been recognized as a useful investigative tool for weeding out bad cases before they are indicted, Friedman said.
If a defendant passed three tests the prosecutor “has a real dilemma because that is profound,” Friedman said.
The legal scholars said the judge would have to instruct jurors that the polygraph test is a gauge of credibility.
Hunter wrote that the jurors would be told that such a test does not prove or disprove any element of the crime, and that it is up to the jury as to how much weight they will give the evidence.
Admission of the tests also would require the polygraph operators to be questioned and cross-examined in open court, and the defendant himself would have to testify.
To reach this Plain Dealer reporter:
jewinger@plaind.com, 216-999-3905