polygraph test in Pennsylvania

2025“The rule in Pennsylvania is that reference to a [polygraph] test or the result thereof which raises inferences concerning the guilt or innocence of a defendant is inadmissible.” Commonwealth v. Cain, 369 A.2d 1234, 1241 (Pa. 1977); see also Commonwealth v. Chester, 587 A.2d 1367, 1376 (Pa. 1991) (stating that, results of a polygraph test have been repeatedly and consistently held to be inadmissible for any purpose), cert. denied, 502 U.S. 959 (1991); Commonwealth v. Saunders, 125 A.2d 442, 445 (Pa. 1956) (stating that, reference to a polygraph test, or its results, “is not judicially acceptab

2013Commonwealth v. Saun ders, 386 Pa. 149 , 125 A.2d 442, 445-46 (1956) (holding that because a polygraph test is not judicially acceptable, it is obvious that neither a professed willingness nor a refusal to submit to such a test should be admitted because a defendant’s willingness is merely a self-serving act or declaration which obviously could be made without any possible risk).

2000Unlike Upchurch, supra, the present case contained numerous, direct references to the polygraph test and lacked any precautions by the trial court to assure the proper usage of such polygraph references by the jury. ¶ 28 The remaining cases used in our comparison are Commonwealth v. Brinkley, 505 Pa. 442 , 480 A.2d 980 (1984), and Commonwealth v. Miller, 497 Pa. 257 , 439 A.2d 1167 (1982).

2000Unlike Upchurch, supra, the present case contained numerous, direct references to the polygraph test and lacked any precautions by the trial court to assure the proper usage of such polygraph references by the jury. ¶ 28 The remaining cases used in our comparison are Commonwealth v. Brinkley, 505 Pa. 442 , 480 A.2d 980 (1984), and Commonwealth v. Miller, 497 Pa. 257 , 439 A.2d 1167 (1982).

2019Next, we assess the resulting prejudice, considering “whether such reference, considered in the light of the circumstances of the case, cause[d] an inference to arise as to the defendant’s guilt or innocence.” Id. - 21 - J-A18005-19 Appellant acknowledges that the prosecutor’s question did not specifically refer to a polygraph test, but nonetheless alleges that the prosecutor deliberately solicited this testimony anyway through his own negligence.

2013While this Court has refined the law relating to lie detector references by explaining that every reference to a lie detector test may not be prejudicial and warrant the grant of a new trial, see Commonwealth v. Fortenbaugh, — Pa. —, 69 A.3d 191, 195 (2013) (holding that not every mention of a polygraph is prejudicial or worthy of a mistrial), the Saunders holding regarding the general inadmissibility of a defendant’s willingness to take a polygraph test remains undisturbed.

2025“Whether or not [a plaintiff’s] claim can succeed is irrelevant; [i]t is the existence of the remedy, not the success of the statutory claim, which determines preemption.” Jacques v. Akzo International Salt, 18 See, e.g., Highhouse v. Avery Transportation, 660 A.2d 1374, 1378 (Pa. Super. 1995) (recognizing a public policy exception where at-will employee was fired for the filing of a workers’ compensation claim); Kroen v. Bedway Security Agency, 633 A.2d 628, 633 (Pa. Super. 1993) (refusal to submit to a polygraph test); Mikhail v. Pennsylvania Organization for Women in Early Recovery, 63 A.3d

2024Agency, 633 A.2d 628 (Pa. Super. 1993) - 18 - J-A22023-23 (holding that an employee was wrongfully discharged in violation of public policy where employee refused to submit to a polygraph test and state statute barred such testing); Owens v. Lehigh Valley Hosp., 103 A.3d 859 (Pa. Cmmwlth. 2014) (employee could assert wrongful discharge in violation of public policy embodied in Workers’ Compensation Act where she alleged termination in retaliation for benefits claim filed with employer rather than state board, which qualified as engagement in protected activity); Roman v. McGuire Mem’l, 127 A.3

2025“Whether or not [a plaintiff’s] claim can succeed is irrelevant; [i]t is the existence of the remedy, not the success of the statutory claim, which determines preemption.” Jacques v. Akzo International Salt, 18 See, e.g., Highhouse v. Avery Transportation, 660 A.2d 1374, 1378 (Pa. Super. 1995) (recognizing a public policy exception where at-will employee was fired for the filing of a workers’ compensation claim); Kroen v. Bedway Security Agency, 633 A.2d 628, 633 (Pa. Super. 1993) (refusal to submit to a polygraph test); Mikhail v. Pennsylvania Organization for Women in Early Recovery, 63 A.3d

2020Applying this standard, Pennsylvania courts have found actionable exceptions where the employee was terminated for filing a claim for worker’s compensation benefits, Shick v. Shirey, … 716 A.2d 1231 ([Pa.] 1998); for filing a claim for unemployment benefits, Highhouse v. Avery Transportation, … 660 A.2d 1374 ([Pa. Super.] 1995); for failing to submit to a polygraph test where a statute prohibited employers from so requiring, Kroen v. Bedway Security Agency, Inc., … 633 A.2d 628 ([Pa. Super.] 1993); for complying with a statutory duty to report violations to the Nuclear Regulatory Commission, F

2020Applying this standard, Pennsylvania courts have found actionable exceptions where the employee was terminated for filing a claim for worker’s compensation benefits, Shick v. Shirey, … 716 A.2d 1231 ([Pa.] 1998); for filing a claim for unemployment benefits, Highhouse v. Avery Transportation, … 660 A.2d 1374 ([Pa. Super.] 1995); for failing to submit to a polygraph test where a statute prohibited employers from so requiring, Kroen v. Bedway Security Agency, Inc., … 633 A.2d 628 ([Pa. Super.] 1993); for complying with a statutory duty to report violations to the Nuclear Regulatory Commission, F

2016This Court explained: Pennsylvania courts have found actionable exceptions where the employee was terminated for filing a claim for worker’s compensation benefits, Shick v. Shirey, 552 Pa. 590 , 716 A.2d -4- J-A11002-16 1231 (1998); for filing a claim for unemployment benefits, Highhouse v. Avery Transportation, 443 Pa.Super. 120 , 660 A.2d 1374 (1995); for failing to submit to a polygraph test where a statute prohibited employers from so requiring, Kroen v. Bedway Security Agency, Inc., 430 Pa.Super. 83 , 633 A.2d 628 (1993); for complying with a statutory duty to report violations to the Nuc

2013The Superior Court agreed, finding the instant case “more closely mirror[ed]” Commonwealth v. Watkins, 750 A.2d 308 (Pa.Super.2000), because here, as in Watkins, there were multiple direct and indirect references to the polygraph test, and the references were not inadvertent.

2013In Watkins , there were multiple, deliberate references to the polygraph test. “[T]he Commonwealth directly referenced the polygraph test in its opening argument, on direct examination and in its closing argument.” Watkins , at 317.

2000Unlike Upchurch, supra, the present case contained numerous, direct references to the polygraph test and lacked any precautions by the trial court to assure the proper usage of such polygraph references by the jury. ¶ 28 The remaining cases used in our comparison are Commonwealth v. Brinkley, 505 Pa. 442 , 480 A.2d 980 (1984), and Commonwealth v. Miller, 497 Pa. 257 , 439 A.2d 1167 (1982).

2000Unlike Upchurch, supra, the present case contained numerous, direct references to the polygraph test and lacked any precautions by the trial court to assure the proper usage of such polygraph references by the jury. ¶ 28 The remaining cases used in our comparison are Commonwealth v. Brinkley, 505 Pa. 442 , 480 A.2d 980 (1984), and Commonwealth v. Miller, 497 Pa. 257 , 439 A.2d 1167 (1982).

2025Riccio v. Dilworth, 115 A.2d 865, 866 (Pa. Super. 1955); Commonwealth v. A.R., 990 A.2d 1, 6 (Pa. Super. 2010), aff’d, 80 A.3d 1180 (Pa. 2013).

2025“The general rule in this Commonwealth is that any reference to a polygraph test that raises an inference concerning the guilt or innocence of a defendant is inadmissible at trial.” Commonwealth v. A.R., 990 A.2d 1, 6 (Pa. Super. 2010) (emphasis and citation omitted).

2025“Whether or not [a plaintiff’s] claim can succeed is irrelevant; [i]t is the existence of the remedy, not the success of the statutory claim, which determines preemption.” Jacques v. Akzo International Salt, 18 See, e.g., Highhouse v. Avery Transportation, 660 A.2d 1374, 1378 (Pa. Super. 1995) (recognizing a public policy exception where at-will employee was fired for the filing of a workers’ compensation claim); Kroen v. Bedway Security Agency, 633 A.2d 628, 633 (Pa. Super. 1993) (refusal to submit to a polygraph test); Mikhail v. Pennsylvania Organization for Women in Early Recovery, 63 A.3d

2020Applying this standard, Pennsylvania courts have found actionable exceptions where the employee was terminated for filing a claim for worker’s compensation benefits, Shick v. Shirey, … 716 A.2d 1231 ([Pa.] 1998); for filing a claim for unemployment benefits, Highhouse v. Avery Transportation, … 660 A.2d 1374 ([Pa. Super.] 1995); for failing to submit to a polygraph test where a statute prohibited employers from so requiring, Kroen v. Bedway Security Agency, Inc., … 633 A.2d 628 ([Pa. Super.] 1993); for complying with a statutory duty to report violations to the Nuclear Regulatory Commission, F

2009Co., 721 F.2d 894, 898 (3d Cir.1983) (holding that public policy was violated where the employee was discharged for refusal to participate in a lobbying effort); Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3rd Cir.1979) (applying Pennsylvania law and finding a public policy violation for firing a worker for refusing to submit to a polygraph test, when a statute forbid such testing).

2009Co., 721 F.2d 894, 898 (3d Cir.1983) (holding that public policy was violated where the employee was discharged for refusal to participate in a lobbying effort); Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3rd Cir.1979) (applying Pennsylvania law and finding a public policy violation for firing a worker for refusing to submit to a polygraph test, when a statute forbid such testing).

1988In DeVito v. Civil Service Commission, 404 Pa. 354, 359-60 , 172 A.2d 161 , 164 (1961), our Supreme Court stated, where this issue was raised: Nowhere in the City Charter, the City Ordinances, the Civil Service Regulations, or the Po lice Department regulations is there a provision which authorizes the Police Commissioner or the Civil Service Commission, expressly or by implication, to force a city employee to submit to a polygraph test.

1987In DiVito v. Civil Service Commission of the City of Philadelphia, 404 Pa. 354 , 172 A.2d 161 (1961), it was held that a Philadelphia police officers refusal to submit to a polygraph test did not constitute just cause for dismissal.

1986Next, appellant argues that a mistrial should have been declared after a Commonwealth witness testified about a polygraph test. 2 In Commonwealth v. Camm, 443 Pa. 253 , 277 A.2d 325 (1971), the Pennsylvania Supreme Court held that any reference to a polygraph examination which raises an inference concerning either guilt or innocence of an accused is inadmissible.

1986Next, appellant argues that a mistrial should have been declared after a Commonwealth witness testified about a polygraph test. 2 In Commonwealth v. Camm, 443 Pa. 253 , 277 A.2d 325 (1971), the Pennsylvania Supreme Court held that any reference to a polygraph examination which raises an inference concerning either guilt or innocence of an accused is inadmissible.

1989Appeal of McMullin, 41 Pa. Commonwealth Ct. 474 , 401 A.2d 572 (1979).

1985In support of this contention they refer us to McMullin Appeal, 41 Pa. Commonwealth Ct. 474 , 401 A.2d 572 (1979), wherein we made the following observation: If the employing agency may require submissipn to a polygraph test as a condition of continued employment, then it surely can dismiss an employee on the basis of test results.

1989Appeal of McMullin, 41 Pa. Commonwealth Ct. 474 , 401 A.2d 572 (1979).

1985In support of this contention they refer us to McMullin Appeal, 41 Pa. Commonwealth Ct. 474 , 401 A.2d 572 (1979), wherein we made the following observation: If the employing agency may require submissipn to a polygraph test as a condition of continued employment, then it surely can dismiss an employee on the basis of test results.

2025“The rule in Pennsylvania is that reference to a [polygraph] test or the result thereof which raises inferences concerning the guilt or innocence of a defendant is inadmissible.” Commonwealth v. Cain, 369 A.2d 1234, 1241 (Pa. 1977); see also Commonwealth v. Chester, 587 A.2d 1367, 1376 (Pa. 1991) (stating that, results of a polygraph test have been repeatedly and consistently held to be inadmissible for any purpose), cert. denied, 502 U.S. 959 (1991); Commonwealth v. Saunders, 125 A.2d 442, 445 (Pa. 1956) (stating that, reference to a polygraph test, or its results, “is not judicially acceptab

2015See Laird, 605 Pa. at 150-52 , 988 A.2d at 625-26 ; Chester, 526 Pa. at 586-89 , 587 A.2d at 1371-72 .

2014While Justice Saylor is correct that appellee's invocation of his right to counsel prohibited police-initiated interrogation in counsel’s absence, in my view, appellee clearly initiated the contact — which, as noted above, was one continuous interaction with law enforcement — by volunteering, with the assistance of counsel, to take a polygraph test — he "evinced a willingness and a desire for a generalized discussion about the investigation!!,]” see Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 , 103 S.Ct. 2830 , 77 L.Ed.2d 405 (1983). .

2014While Justice Saylor is correct that appellee's invocation of his right to counsel prohibited police-initiated interrogation in counsel’s absence, in my view, appellee clearly initiated the contact — which, as noted above, was one continuous interaction with law enforcement — by volunteering, with the assistance of counsel, to take a polygraph test — he "evinced a willingness and a desire for a generalized discussion about the investigation!!,]” see Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 , 103 S.Ct. 2830 , 77 L.Ed.2d 405 (1983). .

2015In so holding, the court considered “relevant facts” articulated by other federal courts examining this question, including “who requested the polygraph examination; who initiated the post-polygraph questioning; whether the signed waiver clearly specifies that it applies to post-polygraph questioning or only to the polygraph test; and whether the defendant has - 15 - J-S53015-15 consulted with counsel.” Id. at 111 (citing Wyrick v. Fields, 459 U.S. 42, 47 (1982) (per curiam); United States v. Johnson, 816 F.2d 918 , 921 n.4 (3d Cir. 1987); United States v. Gillyard, 726 F.2d 1426 , 1427–29 (9t

2014The court identified the four LeonDelfis factors as: “ ‘who requested the polygraph examination; who initiated the post-polygraph questioning; whether the signed waiver clearly specifies that it applies to post-polygraph questioning or only to the polygraph test; and whether the defendant has consulted with counsel.’ ” Hill, 42 A.3d at 1094, quoting Leon-Delfis, 203 F.3d at 111 .