Polygraph evidence approved by California appellate court

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Polygraph Evidence Approved by California Appellate Court
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The case of People V. Wilkinson was forwarded to me
by Dr. Lou Rovner, the first and former Editor of the
Polygraph Chronicles and by George Baranowski. I
have included an edited version which just deals with
the question of polygraph admissibility. The other
questions of constitutionality of Wilkinson's
conviction and Habues Corpus petition were not
included because of space limitations. If you wish
the complete decision, please e-mail me, and I will
forward it to you.

122 Cal.Rptr.2d 703
2 Cal. Daily Op. Serv. 6704, 2002 Daily Journal
D.A.R. 8382 (Cite as: 122 Cal.Rptr.2d 703)

Court of Appeal, Second District, Division 1,
California.

The PEOPLE, Plaintiff and Respondent,
v. Jaleh WILKINSON, Defendant and Appellant.
In re Jaleh Wilkinson on Habeas Corpus.

Nos. B145982, B154520.

July 25, 2002.

Defendant was convicted in a jury trial in
the Superior Court, Los Angeles County, No. SA
035468, Steven C. Suzukawa, J., of felonious
battery on a custodial officer, and misdemeanor
alcohol-impaired and hit and run driving.
Defendant appealed, and filed habeas corpus
petition. The Court of Appeal, Ortega, J., held
that: (1) prosecutor's decision to charge
defendant with felony rather than misdemeanor
did not intrude on any exclusive judicial
function; (2) statutes proscribing battery on
custodial officer encouraged prosecutors to
arbitrarily subject violators who committed
less egregious conduct to greater punishment
than those committing more serious acts; (3)
defendant was entitled to evidentiary hearing
regarding admissibility of polygraph results;
and (4) defendant was entitled to evidentiary
hearing after making prima facie case of
ineffective assistance of trial counsel.

Reversed in part and vacated with
directions.

Mallano, J., concurred in part and
dissented in part, with opinion.

West Headnotes

[7] Criminal Law k695.5
110k695.5

Defendant was entitled to evidentiary
Kelly/Leahy hearing regarding admissibility of
polygraph results in her prosecution for
felonious battery on custodial officer, and
misdemeanor alcohol-impaired and hit and run
driving, which allegedly indicated her truthful
answers that, on night of arrest, she consumed
no more than five alcoholic drinks, did not
knowingly take any drugs, and did not
intentionally attack custodial officer, despite
rule of evidence prohibiting polygraph evidence
in criminal proceedings, where defendant
offered to prove that reliable polygraph test
demonstrated her truthfulness, and offered
testimony of experts that polygraph
examinations were accepted in scientific
community. West's Ann.Cal.Evid.Code § 351.1;
West's Ann.Cal.Penal Code § 243.1; West's
Ann.Cal.Vehicle Code §§ 23152(a), 20002(a).

[9] Criminal Law k670
110k670

Absent offer of proof that polygraph is now
accepted in scientific community as reliable
technique, polygraph evidence is presumptively
unreliable and inadmissible.

In her appeal, Wilkinson contends, among
other constitutional issues, (III) the trial
court erred in denying her motion to hold an in
limine hearing (Evid.Code, § 402) to determine
the admissibility of her evidence that she
successfully passed a polygraph test. (People
v. Leahy (1994) 8 Cal.4th 587, 34 Cal.Rptr.2d
663, 882 P.2d 321; People v. Kelly (1976) 17
Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240.)
The court relied on Evidence Code section
351.1's absolute prohibition against such
evidence. Wilkinson argues the trial court's
ruling deprived her of due process.

In the appeal, we reject Wilkinson's first
contention, but agree with her second and third
claims. We vacate the judgment, reverse her
section 243.1 conviction, and remand the case
for the trial court to conduct a Kelly/Leahy
hearing to determine the admissibility of
Wilkinson's proffered polygraph evidence.

III
[7] Wilkinson filed a written motion for a
Kelly/Leahy hearing, supported by a declaration
and points and authorities. Wilkinson also
filed nearly 100 pages of supporting documents
as exhibits. Wilkinson made an offer of proof
that she had been examined by a qualified
polygraph expert and had truthfully answered
that, on the night of her arrest, she consumed
no more than five alcoholic drinks, did not
knowingly take any drugs, and did not
intentionally attack the custodial officer.
Wilkinson also proffered the testimony of
experts who, she said, would testify that the
polygraph was now accepted as accurate and
reliable in the scientific community. However,
relying on Evidence Code section 351.1's
absolute exclusion of such evidence, the trial
court denied Wilkinson's motion, and refused to
conduct the hearing.

[8][9] "Evidence Code section 351.1 states
that 'the results of a polygraph examination,
the opinion of a polygraph examiner, or any
reference to an offer to take ... or [the]
taking of a polygraph examination, shall not be
admitted into evidence in any criminal
proceeding, including ... post conviction ...
hearings, ... unless all parties stipulate to
the admission of such results.' Defendant,
recognizing the facial applicability of this
statute, argues that barring him from
presenting favorable mitigating polygraph
evidence at the penalty phase violates his
federal constitutional right to have the
penalty phase jury consider all 'relevant
mitigating evidence.' [Citations.] In support,
he cites several cases in which the United
States Supreme Court held the application of
state evidentiary rules governing the
admissibility of evidence was inconsistent with
the federal constitutional right to due
process, to compulsory process, and to testify
on one's own behalf. [Citations.] []
Defendant, however, failed to present an offer
of proof that polygraph evidence was generally
accepted in the scientific community. We have
previously *711 held that such an offer of
proof is necessary to preserve the issue for
appeal. [Citation.]

"Absent an offer of proof that the polygraph
is now accepted in the scientific community as
a reliable technique, the evidence was
presumptively unreliable and inadmissible."
Having failed to make the proper offer of
proof, defendant is in no position to assign
error in the trial court's ruling.'
[Citations.]" (People v. Fudge (1994) 7 Cal.4th
1075, 1122, 31 Cal.Rptr.2d 321, 875 P.2d 36.)

Later, the Supreme Court applied the Fudge
holding to polygraph evidence offered during
trial of charged crimes. (People v. Jackson
(1996) 13 Cal.4th 1164, 1212-1213, 56
Cal.Rptr.2d 49, 920 P.2d 1254.)

The trial court erred in not conducting a
hearing. Wilkinson made a sufficient offer of
proof to entitle her to a Kelly/Leahy hearing.
Indeed, we do not see what more such an offer
would need to meet the threshold required to
convene such a hearing. Wilkinson offered to
prove that a reliable polygraph test
demonstrated she truthfully said she had
consumed no more than five drinks and no drugs,
and did not intentionally attack the officer.
She also offered testimony of experts in the
field that polygraph examinations are now
accepted in the scientific community.

Moreover, we cannot say the error was
harmless. Although Wilkinson testified to the
same facts, the prosecution argued she was
lying and knowingly consumed more alcohol
and/or drugs, thus making her volitionally
impaired. If admitted, the proffered polygraph
evidence would have provided support for the
crucial defense evidence. Indeed, the Attorney
General argues only that any error was harmless
because Wilkinson would not have been able to
prove scientific acceptability, not that the
evidence, if admitted, would not have affected
the outcome.

Thus, we vacate the judgment and remand for
the trial court to conduct a Kelly/Leahy
hearing regarding Wilkinson's offer of proof.
Our holding should not be construed to suggest
how the court should rule at such a hearing.
Evidence Code section 351.1 was enacted because
such evidence was deemed unreliable in the
scientific community. We hold only that
Wilkinson's offer of proof was sufficient to
entitle her to a hearing.

DISPOSITION

In the appeal, we reverse Wilkinson's
felony conviction under section 243.1. We
vacate Wilkinson's two misdemeanor convictions
and remand for the trial court to conduct a
Kelly/Leahy hearing to determine the
admissibility of Wilkinson's proffered
polygraph evidence.

First, the court is to conduct the habeas
petition hearing. If the court grants the
petition, entitling Wilkinson to a new trial,
the court then is to conduct the Kelly/Leahy
hearing to determine if Wilkinson's polygraph
evidence is admissible at the new trial, at
which Wilkinson can be tried for violating
section 243, subdivision (c)(1), or 243,
subdivision (b), and the two misdemeanors
vacated above.

Alternatively, if the court denies the
habeas petition, it then is to conduct the
Kelly/Leahy hearing. If the court concludes
the evidence is inadmissible, the court is to
reinstate the two misdemeanor convictions
vacated above, and conduct a new trial on the
section 243, subdivision (c)(1) or 243,
subdivision (b) charge. If the court concludes
the polygraph evidence is admissible, the court
is to grant Wilkinson a new trial on the
section 243, subdivision (c)(1) or section 243,
subdivision (b) charge, and the two
misdemeanors vacated above, at which the
polygraph evidence will be admitted.

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