Polygraph, Hypnosis
Category > Polygraph, Hypnosis
The erroneous admission of the witness' posthypnotic testimony required reversal.In <i>People v. Shirley</i>, (1982) 31 Cal.3d 18, the court held that the testimony of a witness who has undergone hypnosis for the purpose of restoring his or her memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward. In the instant case the witness had no occasion to identify the defendant until she had been hypnotized. The error required reversal since this was the only direct identification of the defendant.id: 13003
Identification of defendant following a hypnotic session was inadmissible.Victim's photographic lineup and in-court identifications of defendant which postdated her hypnotic sessions were inadmissible under People v. Shirley, (1983) 31 Cal.3d 18. Although the crimes were committed prior to, the rule applied retroactively to this case. This was the only direct identification of defendant at trial and necessitated reversal of the attempted murder and mayhem counts.id: 11399
The detective violated the court's order by referring to the witness' polygraph examination and the combination of this and another error required reversal.The key prosecution witness had taken a polygraph test. The results were inconclusive although the defense maintained the test showed deception. The prosecution's witnesses were ordered not to mention the word "polygraph" in their testimony. However, a detective testified that the witness "agreed to take a polygraph." The testimony directly violated the court's order. The error was significant since the witness's credibility was crucial to the case. It was not mitigated by the absence of a reference to the results of the test. The error in combination with another evidentiary error required reversal of the conviction.id: 16591
Court erred in admitting evidence that a witness took and failed a polygraph before changing his story to incriminate defendant.Over defense objection, the trial court permitted the prosecutor to play the tape recording of a witness' polygraph examination followed by the detective's interrogation of the witness based on the results of the polygraph. The court sought to avoid the statutory ban on polygraph evidence by having jurors focus on the "effect" rather than the "results" of the test. However, it was impossible to separate the effect from the results. The error was prejudicial in light of the weakness of the prosecution's case absent the statement from the witness.id: 16657
Prosecutor's isolated reference to a polygraph in questioning the eyewitness was not prejudicial where the court immediately told the jurors to disregard the question. The prosecutor asked the only witness, on direct examination, whether she had been given a polygraph. She said "yes." While the prosecutor's question may have amounted to misconduct, no prejudice appeared where the court immediately ordered the question stricken and told the jurors to disregard it.id: 17379
Updated 3/5/2024The trial court did not err by restricting defendant’s cross-examination of the polygraph examiner.The prosecution introduced the statements defendant made in a polygraph exam through the testimony of the examiner. Defendant argued this forced him to forego his right of cross-examination as it prevented reference to the polygraph. However, the court placed no limitations on cross-examination, and simply indicated certain questioning about the nature of the statements might lead it to consider admitting a redacted portion of the videotape. Moreover, the witnesses’s brief reference to the “polygraph unit” was cured by the court’s admonition.id: 26840
Limiting defendant’s questioning of an officer did not constitute a waiver of defendant’s protections under section 351.1.A police officer interviewed defendant and administered a polygraph exam. The officer testified about the statement without reference to the polygraph. The defense was warned that if their questions exceeded the limits set by the court, the entire interview might become admissible. Defense counsel’s question about whether defendant asked for a lawyer was not a waiver of the protections offered by Evidence Code section 351.1 (which prohibits references to polygraphs). However, limiting that question was not erroneous because it did not explain defendant’s reference that “we” (he and the kidnap victim) were driving. And the evidence showed deep loss, which might explain the “we” comment.id: 26072
The witness’s fear of a polygraph comment did not violate section 351.1, but the prosecution’s question as to whether the witness would take the test was improper although cured by an instruction.A prosecution witness testified that she lied when she implicated Jones but was telling the truth now that she was implicating defendant and two others. She claimed that her conscience and fear of a polygraph examination prompted her to change her story. She said she never took a polygraph, and when the prosecutor later asked if she would be willing to take one, the defense objected before she answered. The witness’s initial comment about why she changed her mind did not violate Evidence Code section 351.1. The prosecution’s follow up question was improper but the court’s curative instruction adequately addressed the problem.id: 25020
Requiring polygraph exams as a condition of probation didn’t violate the Fifth Amendment since defendant retained the right not to have incriminating answers used against him in future proceedings.Defendant was convicted of certain sex offenses and placed on probation. The probation condition requiring him to submit to polygraph examinations as part of a sex offender management program did not impermissibly infringe on his Fifth Amendment privilege against self-incrimination because he retained the right not to have any incriminating answers used against him in a pending or future criminal proceeding.id: 24922
The trial court did not err by denying the capital defendant funds for a polygraph test to be used as mitigating evidence at the penalty phase.Defendant argued the judge overseeing the funding request erred by denying him funding to obtain a polygraph expert to administer him a polygraph exam that he could have used as mitigating evidence at his capital trial. The court’s ruling was not improper because the results of a polygraph test would have been inadmissible under Evidence Code section 351.1.id: 24803
The trial court erred by admitting evidence that a witness took a polygraph test and was told he lied about certain things. The trial court erred by failing to exclude evidence that a witness was given a polygraph exam regarding his knowledge of a murder and that the examiner informed him he had answered certain questions falsely. However, the error was harmless where defendant suffered no prejudice from any unreasonable impression of credibility the test results might have bestowed on the witness’s identification of defendant as the killer.id: 22417
The trial court did not err by allowing the testimony of a witness who had been subjected to hypnosis but not actually been hypnotized. The defense moved to exclude the testimony of a witness because of the use of hypnosis on the witness. He participated in five interviews where the interviewer tried to hypnotize him. However, the trial court found the witness had not actually been hypnotized despite the repeated attempts to do so. There was no error in allowing the witness to testify.id: 21692
Any error in limiting defense counsel’s questioning of the prosecution’s experts at the SVP trial with defendant’s polygraph results was harmless.Defendant argued the trial court erred at his sexually violent predator trial by limiting defense counsel’s ability to question the prosecutor’s expert witnesses with regard to the administration and results of a polygraph examination that was administered as a part of his treatment. Evidence Code section 351 does not discuss the use of polygraph evidence in civil proceedings. However, the court did not decide whether error took place here because there was no reasonable probability the jury would have reached a different result if the court had permitted defense counsel to question the experts about the polygraph report.id: 20988
Polygraph results are inadmissible at the penalty phase of a capital case.The trial court did not err in excluding the results of defendant’s polygraph test at the penalty phase of his capital case. id: 20411
Court did not err in refusing to admit the favorable polygraph results in support of appellant's new trial motion.The trial court properly excluded the minor's post-trial effort to admit evidence of a favorable polygraph in support of a new trial motion. Contrary to appellant's claim, Evidence Code section 351.1 excluding the test results did not violate due process or deny the benefit of compulsory process. There is no support for the claim that polygraph evidence is competent and crucial enough that its absence would significantly impair the defendant's ability to mount a defense.id: 11647
The trial court did not err in denying defendant a Kelly/Frye hearing on the admissibility of polygraph evidence.Defendant argued the trial court erred in denying her a Kelly/Frye hearing regarding the admissibility of polygraph evidence to support her claim that she had unknowingly and involuntarily ingested drugs. However, in light of the categorical prohibition on the admission of polygraph evidence in Penal Code section 351.1, the court did not err in declining to hold the hearing.id: 18023
Periodic polygraph testing may be imposed as a condition of probation if the questions are properly limited.Periodic polygraph testing as a condition of probation is not per se invalid. However, the order imposing a polygraph condition must limit the questions allowed to those relating to the successful completion of the stalking therapy program and the crime of which defendant was convicted. Moreover, payment of the costs of the testing shall not be included as a condition of probation. Before defendant can be made to pay some or all of the costs of the polygraph testing, the court must conduct a hearing to determine his ability to pay, and the amount to be paid.id: 16989
Statute prohibiting the use of polygraph evidence at trial applies to the penalty phase of a capital trial.Defendant argued that the trial court denied him due process at the penalty phase, by ruling that he had taken or was willing to take a lie detector test. He argued that Evidence Code section 351.1 is inapplicable at the penalty phase of a capital trial. However, the rationale behind the statute is fully applicable to the sentencing phase of a capital trial.id: 16793
There was no due process violation in excluding evidence of defendant's willingness to take a polygraph test.Defendant argued that the trial court's exclusion of evidence of his willingness to take a polygraph test violated his right to due process. However, exclusion under Evidence Code section 341.1 of defendant's offer to take a polygraph test at most prevented presentation of evidence that might have bolstered his credibility. He was not foreclosed from effectively challenging the prosecution's case or from presenting crucial exculpatory evidence.id: 13004
Witness was not hypnotized where his recollection was not different after the session.Defendant argued the court prejudicially erred in admitting the testimony of a witness who had been hypnotized. However, the court found the witness had not been hypnotized where he did not have any different recollection after the session.id: 13005
A witness who has undergone hypnosis may testify to events which were related prior to the hypnotic session.A witness who has undergone hypnosis is not barred from testifying to events which the court found were recalled and related prior to the hypnotic session. Moreover, Evidence Code section 795 dealing with prehypnotic evidence became effective on January 1, 1985. The regulatory provisions of that section are prospective only and will not apply to the retrial in the instant case.id: 12997
Barring defendant from presenting favorable mitigating polygraph evidence at the penalty phase was not improper where defendant made no showing the evidence was reliable.Defendant challenged the exclusion of evidence at the penalty phase that he successfully passed a polygraph examination. He recognized the facial applicability of Evidence Code section 351.1 which prohibits such test results, but argued that barring him from presenting favorable mitigating polygraph evidence at the penalty phase violated his constitutional right to have the penalty phase jury consider all relevant mitigating evidence. However, the evidence was not highly relevant to the question of proper punishment because there was no showing the polygraph evidence was reliable.id: 12998
Court did not err in admitting testimony of witnesses as to what they recalled and related to others prior to their being hypnotized.Defendant argued the trial court erred in permitting two witnesses to testify at trial because each had been hypnotized during the police investigation following the victim's disappearance. A witness who previously has been hypnotized may not testify concerning matters recalled under hypnosis. However, the witness' testimony regarding the composite sketch she helped create prior to the hypnotic session was properly admitted. The second witness' testimony was also confined to matters she had recalled and related to others prior to her hypnosis with the exception of the answer of the question regarding the exact date a photograph was taken. Eliciting testimony regarding this date was not prejudicial.id: 12999
Court properly excluded expert testimony as to defendant's mental state where the opinion was based on statements defendant made while under hypnosis.Defendant proposed to introduce the testimony of a psychologist and an expert in the field of post traumatic stress disorder (PTSD). The trial court properly excluded from evidence an opinion by the expert as to whether the defendant was suffering a PTSD <197> induced flashback at the time of the crime because such opinion was based in significant part on statements made by defendant while under hypnosis.id: 13000
Polygraph evidence was inadmissible where the defendant failed to show enhanced reliability and acceptance in the scientific community.Defendants argued the trial court erred in excluding polygraph results. However, defense counsel did not make the requisite offer of proof that advancement in the scientific technique has enhanced its reliability and acceptance in the scientific community, and that such advances warranted admission of the previously excluded polygraph evidence.id: 13001
Polygraph results showing the People's witness to be untruthful were inadmissible where defendant failed to offer to show their acceptance in the scientific community.Three days after the victim's death, a prosecution witness was given a polygraph examination. The officer who administered the test concluded the witness was deceptive in his responses to several questions, including a negative response to a question asking if he had killed the victim. At trial, the defense moved to admit the results of the examination. The motion was denied because defendant did not offer to prove that the polygraph had been accepted in the scientific community as a reliable technique. Although the prosecution has a duty to inform the defense of polygraph results that cast doubt on the credibility of a prosecution witness, the existence of this duty does not make the results admissible.id: 13002
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245