Polygraph Examinations: Admissibility and Privilege Issues

• Publication year: 2002
• Pages: 69
• Citation: Vol. 31 No. 11 Pg. 69

31 Colo.Law. 69 Colorado Lawyer 2002.

2002, November, Pg. 69. Polygraph Examinations: Admissibility And Privilege Issues

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69

Vol. 31, No. 11, Pg. 69

The Colorado Lawyer
November 2002
Vol. 31, No. 11 [Page 69]

Specialty Law Columns
Criminal Law Newsletter
Polygraph Examinations: Admissibility And Privilege Issues
by Jon N. Banashek, J. Keith Collins

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers and judges to provide information about case law legislation, and advocacy affecting the prosecution, defense and administration of criminal cases in Colorado state and federal courts.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 449-0092; Morris Hoffman, a judge for the Second Judicial District Court, Denver

About The Authors:

This article was written by Jon N. Banashek, Boulder, a partner with Banashek & Talkington, LLP, with a practice focusing on criminal defense and civil litigation - (303) 473-0000, jb@bt-lawfirm.com; and J. Keith Collins, Deputy District Attorney, Boulder County - (303) 441-3844.

A version of this article originally appeared in the Boulder County Bar Association Newsletter (April 2002). Reprinted with permission.

This article addresses admissibility standards as well as issues regarding polygraph evidence and attorney-client privilege and waiver of work product privilege.

Controversy has surrounded the use of the polygraph since its invention in 1926. Polygraph testing relies on the correlation between changes in blood pressure and heart rate to determine if the subject is lying. The polygraph continuously monitors physical indicators of an individual asked to answer a set of questions. Physical changes in the subject are recorded and evaluated by an examiner who reaches one of three conclusions: the subject was truthful, the subject was deceptive, or the test was inconclusive.

This article examines admissibility standards for polygraph evidence. It discusses cases that address evidentiary issues, reliability of polygraph evidence, and legal evaluations involved in determining whether polygraph evidence should be admitted. Finally, the article addresses issues involved in attorney-client privilege and waiver of work product privilege as they relate to polygraph evidence.

Admissibility - The
New Standard

New Mexico currently is the only state that allows the admission of polygraph evidence in a criminal trial without stipulation by both parties.1 Polygraph evidence has been inadmissible in Colorado for more than two decades.2 However, in 2001, in the case of People v. Shreck, the Colorado Supreme Court announced new standards to determine the admissibility of scientific evidence.3

The new test set forth in Shreck requires the application of both C.R.E. 702 and C.R.E. 403. These new standards for determining the admissibility of scientific evidence replaced the long-standing Frye test.4 Shreck outlines a two-tiered analysis that governs the admission of scientific evidence.5 The analysis "focuses on the reliability and relevance of the proffered evidence....."6

First, the court must determine the reliability and validity of the scientific evidence. The courts should focus on the reliability of the scientific principles on which the witness relies, and on whether the witness is a qualified expert in such matters.7 Trial courts are further instructed that their "inquiry should be broad in nature and consider the totality of the circumstances of each specific case."8 Although the courts are encouraged to consider a wide range of factors, an analysis of the factors enumerated in Daubert v. Merrell Dow Pharmaceuticals, Inc.9 is not expected in every case.10

Next, the court must determine if the proffered scientific evidence would assist the jury in its duty as finder of fact. If the court finds that the scientific evidence is reliable and useful, the second prong of the analysis requires the court to "ensure the probative value of the evidence is not substantially outweighed by unfair prejudice."11 To date, no Colorado appellate court has reexamined the admissibility of polygraph evidence under the new standards announced in Shreck.12

Reliability

In 1998, the U.S. Supreme Court assessed the reliability of polygraph evidence in U.S. v. Scheffer.13 The Court found polygraph evidence unreliable, stating: "[T]here is simply no consensus that polygraph evidence is...