Criminal Practice – South Carolina Rules of Evidence – Polygraph Test

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The trial court erred in excluding polygraph evidence, but the error did not affect the jury’s verdict.

We affirmed Defendant’s conviction.

Defendant appealed his murder conviction. The sole issue was whether the trial court erred in refusing to allow Defendant to present evidence that, shortly before he confessed to killing the victim, he had taken a polygraph test, and police told him he had failed. Defendant sought to elicit this evidence to support his defense that his confession was false. The trial court denied the request, ruling Defendant had not demonstrated polygraph tests were reliable or otherwise satisfied the criteria for the admissibility of expert testimony set by Rule 702, SCRE. Turning to Rule 403, SCRE, the trial court further ruled that admitting evidence about what the police told Defendant about the polygraph result would confuse the issues before the jury and also cause unfair prejudice to Defendant because it could “bolster” rather than undermine the truth of his confession. The trial court erred in relying upon Rule 702 to exclude the polygraph evidence. Defendant was not offering scientific evidence about the polygraph, so there was no need to call upon Rule 702. Hirsch, Defendant’s false confession expert, had already been qualified. The reliability of the expert’s opinion or polygraph tests was not at issue. At issue was whether Hirsch should have been allowed to tell the jury that Defendant had taken a polygraph and the police had told him he failed. This issue is controlled by Rule 403, at least under the circumstances here.

As noted, the trial court ruled the evidence about the polygraph would confuse the issues before the jury. We disagreed. Defendant was seeking to prove that he had taken a polygraph test and been told he had failed. This evidence was relevant to a key issue before the jury: whether Defendant’s confession was false. There was little danger that admitting this evidence would confuse the jury into thinking they now had to decide whether Defendant had in fact failed the polygraph or whether polygraph results are reliable. Any lingering risk of confusion could have been reduced by instructing the jury that they were to consider evidence about the polygraph only for the purpose of deciding whether Defendant had taken the polygraph and been told he had failed. Letting the jury hear that Defendant was told he had failed the polygraph would have allowed Hirsch to show how closely the specifics of Defendant’s confession matched the general theory of false confessions. The trial court also mentioned that admitting the polygraph evidence could prejudice Defendant because it tended to bolster rather than cast doubt upon the truth of his confession. Given Defendant’s defense theory and Hirsch’s opinion testimony, we held it was error to exclude evidence that Defendant had been told he had failed the polygraph test. The closer question was whether the error in excluding the evidence prejudiced Defendant to the point of requiring reversal of his conviction. We are persuaded it did not.

Affirmed.

The State v. Kenneth Henry Eastwood (Lawyers’ Weekly No. 010-056-25, 7 pp.) (D. Garrison Hill, J.) Appealed from Orangeburg County Circuit Court (Maite Murphy, J.) Adam Sinclair Ruffin, of Ruffin Law Firm, LLC, of Columbia, for Appellant. Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Melody Jane Brown, and Assistant Attorney General Kaylee Christene Kemp, all of Columbia; and Solicitor David Michael Pascoe, Jr., of Orangeburg, for Respondent. South Carolina Supreme Court