polygraph test in Michigan

2006To determine whether a *631 defendant was prejudiced by the improper reference to a polygraph test, it is useful to consider ■ “[‘1(1) whether defendant objected to and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to bolster a witness’s credibility; and (5) whether the results of the test were admitted rather than merely the fact that a test had been conducted.’ ” [Id. at 98, quoting People v Kiczenski, 118 Mich App 341, 347 ; 324 NW2d 614 (1982), quoting People v Rocha, 110 M

2006To determine whether a *631 defendant was prejudiced by the improper reference to a polygraph test, it is useful to consider ■ “[‘1(1) whether defendant objected to and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to bolster a witness’s credibility; and (5) whether the results of the test were admitted rather than merely the fact that a test had been conducted.’ ” [Id. at 98, quoting People v Kiczenski, 118 Mich App 341, 347 ; 324 NW2d 614 (1982), quoting People v Rocha, 110 M

2025Concern with the polygraph arises because the quality it “attempts to measure—the truthfulness of a witness—is . . . directly related to the essence of the trial process.” People v Ray, 431 Mich 260, 265 ; 430 NW2d 626 (1988) (quotation marks and citation omitted).

2025This prohibition stems not only from the scientific unreliability of polygraph examinations but from the “judicial concern” that jurors “will give disproportionate weight to the results [of polygraph examinations] and consider the evidence as conclusive proof of guilt or innocence.” Ray, 431 Mich at 265 . -8- Schweinsberg’s disputed testimony did not fall within this prohibition on polygraph-related evidence because the testimony was not related to an actual polygraph test.

2019MCL 776.21(5) provides that “[a] defendant who allegedly has committed” CSC “shall be given a polygraph examination or lie detector test if the defendant requests it.” Thus, under MCL 776.21(5), a defendant has an “absolute right to receive a polygraph test once he ma[kes] a request for it.” People v Rogers, 140 Mich App 576, 579 ; 364 NW2d 748 (1985).

2019MCL 776.21(5) provides that “[a] defendant who allegedly has committed” CSC “shall be given a polygraph examination or lie detector test if the defendant requests it.” Thus, under MCL 776.21(5), a defendant has an “absolute right to receive a polygraph test once he ma[kes] a request for it.” People v Rogers, 140 Mich App 576, 579 ; 364 NW2d 748 (1985).

2024See, e.g., People v McGhee, 268 Mich App 600, 631 ; 709 NW2d 595 (2005) (describing a brief reference to a witnesses agreement to submit to a polygraph examination, even though no evidence was presented that an examination had actually been performed, as an “improper reference to a polygraph test” and stating that it is “plain error to present to a jury a reference to taking a polygraph test”). -9- had been conducted. [Id. at 98 (citations omitted), see also People v Whitfield, 58 Mich App 585 ; 228 NW2d 475 (1975).] In this case, defense counsel did not make a contemporaneous objection when t

2024See, e.g., People v McGhee, 268 Mich App 600, 631 ; 709 NW2d 595 (2005) (describing a brief reference to a witnesses agreement to submit to a polygraph examination, even though no evidence was presented that an examination had actually been performed, as an “improper reference to a polygraph test” and stating that it is “plain error to present to a jury a reference to taking a polygraph test”). -9- had been conducted. [Id. at 98 (citations omitted), see also People v Whitfield, 58 Mich App 585 ; 228 NW2d 475 (1975).] In this case, defense counsel did not make a contemporaneous objection when t

2023The polygraph test results may be considered in deciding a motion for a new trial when: (1) they are offered on behalf of the defendant, (2) the test was taken voluntarily, (3) the professional qualifications and the quality of the polygraph equipment meet with the approval of the court, (4) either the prosecutor or the court is able to obtain an independent examination of the subject or of the test results by an operator of the court’s choice, and (5) the results are considered only with regard to the general credibility of the subject. [People v Mechura, 205 Mich App 481, 484 ; 517 NW2d 797

2023The polygraph test results may be considered in deciding a motion for a new trial when: (1) they are offered on behalf of the defendant, (2) the test was taken voluntarily, (3) the professional qualifications and the quality of the polygraph equipment meet with the approval of the court, (4) either the prosecutor or the court is able to obtain an independent examination of the subject or of the test results by an operator of the court’s choice, and (5) the results are considered only with regard to the general credibility of the subject. [People v Mechura, 205 Mich App 481, 484 ; 517 NW2d 797

2018Defense counsel also elicited testimony that defendant asked to take a polygraph test and the investigators did not give him one. “[I]t is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial.” People v Musser, 494 Mich 337, 349 ; 835 NW2d 319 (2013).

2018Defense counsel also elicited testimony that defendant asked to take a polygraph test and the investigators did not give him one. “[I]t is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial.” People v Musser, 494 Mich 337, 349 ; 835 NW2d 319 (2013).

2017Stated differently, “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641 ; 588 NW2d 480 (1998).

2017Stated differently, “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641 ; 588 NW2d 480 (1998).

2017Moreover, with regard to defendant’s claim that trial counsel failed to allow him to testify, “the ultimate decision whether to testify at trial remains with the defendant.” People v Bonilla-Machado, 489 Mich 412, 419 ; 803 NW2d 217 (2011).

2017Moreover, with regard to defendant’s claim that trial counsel failed to allow him to testify, “the ultimate decision whether to testify at trial remains with the defendant.” People v Bonilla-Machado, 489 Mich 412, 419 ; 803 NW2d 217 (2011).

2017Defendant’s trial counsel argued that “a reasonable bond” was appropriate because defendant had family support, because he was attending college at the time the crimes were committed, because “there’s no physical evidence linking him to this offense,” “[a]nd also, and while this doesn’t have any evidentiary value, and we understand that, he did pass a polygraph.” The prosecutor responded, “tak[ing] exception to counsel’s reference to the polygraph test in this matter as . . . any sort of basis towards a reduction in the bond” and “tak[ing] exception to the fact that defendant passed it as if i

2017Defendant’s trial counsel argued that “a reasonable bond” was appropriate because defendant had family support, because he was attending college at the time the crimes were committed, because “there’s no physical evidence linking him to this offense,” “[a]nd also, and while this doesn’t have any evidentiary value, and we understand that, he did pass a polygraph.” The prosecutor responded, “tak[ing] exception to counsel’s reference to the polygraph test in this matter as . . . any sort of basis towards a reduction in the bond” and “tak[ing] exception to the fact that defendant passed it as if i

2006To determine whether a *631 defendant was prejudiced by the improper reference to a polygraph test, it is useful to consider ■ “[‘1(1) whether defendant objected to and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to bolster a witness’s credibility; and (5) whether the results of the test were admitted rather than merely the fact that a test had been conducted.’ ” [Id. at 98, quoting People v Kiczenski, 118 Mich App 341, 347 ; 324 NW2d 614 (1982), quoting People v Rocha, 110 M

2006To determine whether a *631 defendant was prejudiced by the improper reference to a polygraph test, it is useful to consider ■ “[‘1(1) whether defendant objected to and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to bolster a witness’s credibility; and (5) whether the results of the test were admitted rather than merely the fact that a test had been conducted.’ ” [Id. at 98, quoting People v Kiczenski, 118 Mich App 341, 347 ; 324 NW2d 614 (1982), quoting People v Rocha, 110 M

2008In Rivers v Ex-Cell-O Corp, 100 Mich App 824, 837 ; 300 NW2d 420 (1980), this Court, citing People v Scotts, 80 Mich App 1, 11-13 ; 263 NW2d 272 (1977), stated that “ [i]t is erroneous to bring to the jury’s attention evidence of a refusal to take a polygraph examination.” 2 We note that after the defendant’s trial the Legislature enacted MCL 768.27a, effective January 1, 2006, which therefore is not applicable in this case, but which provides in part: (1) [I]n a criminal case in which the defendant is accused of committing a listed offense against a minor [including criminal sexual conduct],

2008In Rivers v Ex-Cell-O Corp, 100 Mich App 824, 837 ; 300 NW2d 420 (1980), this Court, citing People v Scotts, 80 Mich App 1, 11-13 ; 263 NW2d 272 (1977), stated that “ [i]t is erroneous to bring to the jury’s attention evidence of a refusal to take a polygraph examination.” 2 We note that after the defendant’s trial the Legislature enacted MCL 768.27a, effective January 1, 2006, which therefore is not applicable in this case, but which provides in part: (1) [I]n a criminal case in which the defendant is accused of committing a listed offense against a minor [including criminal sexual conduct],

1982In People v Towns, 69 Mich App 475, 477-478 ; 245 NW2d 97 (1976), this Court said that "a trial *378 court cannot induce a defendant to take a polygraph test with hints of favorable consideration at sentencing”.

1982In People v Towns, 69 Mich App 475, 477-478 ; 245 NW2d 97 (1976), this Court said that "a trial *378 court cannot induce a defendant to take a polygraph test with hints of favorable consideration at sentencing”.

1982"The mere passing reference or mere mention of a polygraph test does not automatically give rise to prejudice necessitating reversal.” People v Murry, 108 Mich App 679, 684-685 ; 310 NW2d 836 (1981).

1982"The mere passing reference or mere mention of a polygraph test does not automatically give rise to prejudice necessitating reversal.” People v Murry, 108 Mich App 679, 684-685 ; 310 NW2d 836 (1981).

1976Others concern the attempts of the prosecutor to ask a prosecution witness if he or she took a polygraph test to verify his or her present testimony, People v Brocato, 17 Mich App 277, 291-292 ; 169 NW2d 483 (1969), People v Lawson, 48 Mich App 662 ; 211 NW2d 96 (1973).

1976Others concern the attempts of the prosecutor to ask a prosecution witness if he or she took a polygraph test to verify his or her present testimony, People v Brocato, 17 Mich App 277, 291-292 ; 169 NW2d 483 (1969), People v Lawson, 48 Mich App 662 ; 211 NW2d 96 (1973).

1976The Supreme Court of this state has consistently held that neither the fact of the taking of a lie-detector test nor the results of such a test are admissible in evidence, People v Frechette, 380 Mich 64 ; 155 NW2d 830 (1968), People v Davis, 343 Mich 348 ; 72 NW2d 269 (1955), People v Becker, 300 Mich 562 ; 2 NW2d 503 (1942).

1971When scientific research and experimentation have developed concepts beyond the point of speculation to the point of demonstrated probability, courts will listen to evidence of such matters on the ground that they are no longer dubious theories but creditable propositions.” The general principles as to the qualification of a new “expertise” to be considered as the basis for ex *458 pert testimony have been stated several times in recent cases dealing with new arts or sciences : 6 People v. Becker (1942), 300 Mich 562, 566 , refusing admission of a polygraph test: “Until it is established that

1974Similarly, in every case where the credibility of a witness was being tested and where either by design or inadvertence either the witness or the police have sought to bolster the testimony being given by the disclosure of the fact of a polygraph test and its results, this Court has reversed, People v Sinclair, 21 Mich App 255 ; 175 NW2d 893 (1970); People v Leroy Goodwin, 40 Mich App 709 ; 199 NW2d 552 (1972); People v Lawson, 48 Mich App 662 ; 211 NW2d 96 (1973).

1974Similarly, in every case where the credibility of a witness was being tested and where either by design or inadvertence either the witness or the police have sought to bolster the testimony being given by the disclosure of the fact of a polygraph test and its results, this Court has reversed, People v Sinclair, 21 Mich App 255 ; 175 NW2d 893 (1970); People v Leroy Goodwin, 40 Mich App 709 ; 199 NW2d 552 (1972); People v Lawson, 48 Mich App 662 ; 211 NW2d 96 (1973).

2021Upon obtaining access to a telephone, defendant contacted her attorney and informed him of what transpired. [Id. at 336.] The trial court granted the defendant’s motion to suppress her statements on the ground that defense counsel’s addendum “negated any agreement concerning the polygraph test.” Id. at 337 .

2019In People v McKinney, 137 Mich App 110, 115-117 ; 357 NW2d 825 (1984), this Court held that polygraph test results may also be considered in deciding motions to suppress, but the same requirements outlined in Barbara must be met.

2019In People v McKinney, 137 Mich App 110, 115-117 ; 357 NW2d 825 (1984), this Court held that polygraph test results may also be considered in deciding motions to suppress, but the same requirements outlined in Barbara must be met.

2019Thus, although the redactions did create periods of silence before and after defendant’s use of a racial slur in reference to the complainant, the redaction was for a proper purpose, not for the improper purpose of arousing prejudice in the jurors against defendant. “[P]rosecutorial misconduct cannot be predicated on good-faith efforts to admit evidence.” People v Noble, 238 Mich App 647, 660 ; 608 NW2d 123 (1999).

2019Thus, although the redactions did create periods of silence before and after defendant’s use of a racial slur in reference to the complainant, the redaction was for a proper purpose, not for the improper purpose of arousing prejudice in the jurors against defendant. “[P]rosecutorial misconduct cannot be predicated on good-faith efforts to admit evidence.” People v Noble, 238 Mich App 647, 660 ; 608 NW2d 123 (1999).

2016“A mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial.” People v Haywood, 209 Mich App 217, 228 ; 530 NW2d 497 (1995) (citations omitted). “[I]t is a bright-line rule that reference to taking or passing a polygraph test is error.” People v Nash, 244 Mich App 93, 97 ; 625 NW2d 87 (2000).

2016“A mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial.” People v Haywood, 209 Mich App 217, 228 ; 530 NW2d 497 (1995) (citations omitted). “[I]t is a bright-line rule that reference to taking or passing a polygraph test is error.” People v Nash, 244 Mich App 93, 97 ; 625 NW2d 87 (2000).

2015People v Ackerman, 257 Mich App 434, 449 ; 669 NW2d 818 (2003). 1 While defendant argues that the prosecutor failed to offer him a polygraph test until one year following his arrest, he does not argue that he requested a polygraph test.

2015People v Ackerman, 257 Mich App 434, 449 ; 669 NW2d 818 (2003). 1 While defendant argues that the prosecutor failed to offer him a polygraph test until one year following his arrest, he does not argue that he requested a polygraph test.