Suppress Polygraph Results

Unless otherwise indicated, all indented material is copied directly from the court’s opinion.

Decisions of the Tennessee Supreme Court

State v. McCaleb, No. E2017-01381-SC-R11-CD, 582 S.W.2d 179, 186 (Tenn. 2019).

Although this matter arises from the Defendant’s motion to suppress [ his polygraph test results], the trial court’s grant of that motion was grounded on an evidentiary ruling rather than on a constitutional basis. Therefore, the appropriate standard of review on direct appeal is whether the record clearly demonstrates that the trial court abused its discretion in ruling the evidence inadmissible. See, e.g., Regions Bank v. Thomas, 532 S.W.3d 330, 336 (Tenn. 2017); State v. Davis, 466 S.W.3d 49, 61 (Tenn. 2015).

This Court has described the abuse of discretion standard of review as follows:

The abuse of discretion standard of review envisions a less rigorous review of the lower court’s decision and a decreased likelihood that the decision will be reversed on appeal. It reflects an awareness that the decision being reviewed involved a choice among several acceptable alternatives. Thus, it does not permit reviewing courts to second-guess the [trial court] … or to substitute their discretion for the [trial] court’s. The abuse of discretion standard of review does not, however, immunize a lower court’s decision from any meaningful appellate scrutiny.

Discretionary decisions must take the applicable law and the relevant facts into account. An abuse of discretion occurs when a court strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary decision. A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.

To avoid result-oriented decisions or seemingly irreconcilable precedents, reviewing courts should review a [trial] court’s discretionary decision to determine (1) whether the factual basis for the decision is properly supported by evidence in the record, (2) whether the [trial] court properly identified and applied the most appropriate legal principles applicable to the decision, and (3) whether the [trial] court’s decision was within the range of acceptable alternative dispositions.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citations omitted).

We emphasize that the abuse of discretion standard of review does not permit an appellate court to substitute its judgment for that of the trial court. State v. Harbison, 539 S.W.3d 149, 159 (Tenn. 2018). Rather, “[b]ecause, by their very nature, discretionary decisions involve a choice among acceptable alternatives, reviewing courts will not second-guess a trial court’s exercise of its discretion simply because the trial court chose an alternative that the appellate courts would not have chosen.” White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999). Accordingly, if the reviewing court determines that “reasonable minds can disagree with the propriety of the decision,” the decision should be affirmed. Harbison, 539 S.W.3d at 159.

…

A brief review of our rulings regarding the admissibility of proof about polygraph examinations also will be helpful to our resolution of the matter before us. As we emphasized in State v. Damron,

Tennessee courts have held repeatedly that polygraph test results, testimony concerning such results, and testimony concerning a defendant’s willingness or refusal to submit to a polygraph test are inadmissible. State v. Pierce, 138 S.W.3d 820, 826 (Tenn. 2004) (citing cases). This general rule stems from relevancy and reliability concerns. Tennessee Rule of Evidence 402 provides that “[e]vidence which is not relevant is not admissible.” Because polygraph evidence is not considered reliable, it is irrelevant. Pierce, 138 S.W.3d at 826. Therefore, polygraph evidence, which includes polygraph test results, testimony concerning such results, and testimony concerning a defendant’s willingness or refusal to submit to a polygraph test, is not admissible. Id.

151 S.W.3d 510, 515-16 (Tenn. 2004) (footnote omitted); see also, e.g., State v. Sexton, 368 S.W.3d 371, 409 (Tenn. 2012) (reiterating that “polygraph evidence is inadmissible” because polygraph results “are inherently unreliable” and, therefore, irrelevant); State v. Torres, 82 S.W.3d 236, 252 n.20 (Tenn. 2002) (stating that polygraph test results and the circumstances surrounding the taking of a polygraph are not admissible because “[p]olygraph results are inherently unreliable and inadmissible”); State v. Hartman, 42 S.W.3d 44, 60 (Tenn. 2001) (reaffirming that polygraph “results are inherently unreliable and not admissible to establish the defendant’s guilt”); State v. Land, 681 S.W.2d 589, 592 (Tenn. Crim. App. 1984) (expressing concern that polygraph evidence “is dangerous in that it could easily convict the innocent or acquit the guilty”).

In addition to being unreliable, the results of polygraph examinations also suffer, perhaps counterintuitively, from a simultaneous “tendency to be unduly persuasive.” Banda v. State, 727 S.W.2d 679, 681 (Tex. Ct App. 1987). Thus, various courts have expressed concern that “juries might use evidence about polygraphs, a test viewed by courts as unreliable, as highly relevant and persuasive regarding a person’s credibility as related to the defendant’s guilt.” Odom v. State, No. 09-14-00070-CR, 2015 WL 7300603, at *5 (Tex. Ct. App. Nov. 18, 2015) (not designated for publication), discr’y review refused (Tex. Apr. 24, 2016); see also, e.g., United States v. Alexander, 526 F.2d 161, 168 (8th Cir. 1975) (“Based upon the presentment of this particular form of scientific evidence [i.e. a polygraph test], present-day jurors, despite their sophistication and increased educational levels and intellectual capacities, are still likely to give significant, if not conclusive, weight to a polygraphist’s opinion as to whether the defendant is being truthful or deceitful in his response to a question bearing on a dispositive issue in a criminal case.”); People v. Anderson, 637 P.2d 354, 361 (Colo. 1981) (en banc) (stating that, “[b]ecause of its aura of scientific infallibility, we believe that jurors are likely to give significant, if not conclusive, weight to a polygrapher’s opinion as to whether the accused was truthful in his response to a question regarding a dispositive issue in a criminal case”), abrogated on other grounds by People v. Shreck, 22 P.3d 68, 74-77 (Colo. 2001) (en banc); People v. Logan, 954 N.E.2d 743, 752-53 (Ill. Ct. App. 2011) (“The general rule in Illinois is to preclude introduction of evidence regarding polygraph examinations and their results because: (1) the evidence is not sufficiently reliable to establish guilt or innocence; and (2) the quasi-scientific nature of the polygraph examination may cause the trier of fact to give it undue weight, despite its lackof reliability.” (citing People v. Jefferson, 705 N.E.2d 56 (Ill. 1998))); State v. Grier, 300 S.E.2d 351, 360 (N.C. 1983) (“We are also disturbed by the possibility that the jury may be unduly persuaded by the polygraph evidence.”).

While this Court reiterated in Damron the long-standing rule that proof of polygraph exam results is not admissible, we went on to hold that voluntary statements made in conjunction with a polygraph exam might be admissible. Damron, 151 S.W.3d at 517. Significantly, this Court did not confront in Damron the issue of a criminal defendant seeking to adduce proof about the polygraph exam in order to cast doubt on the veracity of his post-polygraph statements. Therefore, we now note two caveats with respect to this Court’s broad statements in Damron.

Decisions of the Tennessee Court of Criminal Appeals