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 VOLUME 4 - CHAPTER 25
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25.10 Polygraph

    25.10.1 Polygraph Evidence: Sample Instructions For Favorable And Unfavorable Polygraph
    25.10.2 Cautionary Instructions Regarding Witness’ Stricken Reference To Polygraph Examination

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 VOLUME 4 - CHAPTER 25

RATIONALE: Polygraph evidence may be admitted by stipulation. If it is it may be appropriate to caution the jury on the use of that evidence.

POINTS AND AUTHORITIES: Some jurisdictions permit the admission of polygraph examination based on stipulation of the parties. (E.g., Ohio [State v. Souel (OH 1978) 372 NE2d 1318, 1321]; California [Evidence Code § 351.1].) Additionally, polygraph evidence may be admissible under the Eighth Amendment in the penalty phase of capital trials.  (See FORECITE National™ 303.7.3 [Death Penalty: Lingering Or Residual Doubt As Mitigation].)

    In cases where polygraph evidence is admitted, it may be appropriate to give a limiting or cautionary instruction. (See e.g., State v. Chambers (GA 1977) 239 SE2d 324, 326.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 5.3].

See Capital Punishment Handbook [4.8.2.10a. Polygraph Evidence: Authorities].

    You are not bound by the polygraph evidence in any way. You may accept or reject all or part of the evidence. The credibility and weight, if any, to be given such evidence is a matter solely for you to decide.

    [The polygraph examiner’s opinion can only be used to indicate whether, at the time of the polygraph examination, the defendant believed that he/she was telling the whole truth.]

    You must find the defendant not guilty if the polygraph evidence, when considered in light of all the other evidence, leaves you with a reasonable doubt as to the defendant's guilt. 

    You are not bound to accept the opinion of a polygraph examiner as to whether or not a person was telling the truth.  The testimony of a polygraph examiner merely indicates that, at the time the examiner questioned the person, the examiner formed the opinion that the person was not telling the truth.  Ultimately it is up to you to evaluate whether or not the person was telling the truth.

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RATIONALE: When a witness improperly refers to having taken a polygraph examination, a special admonition may be appropriate to counter the jurors’ natural curiosity and inclination to speculate about such evidence.

POINTS AND AUTHORITIES: See Glenn v. State (Ind. Ct. App. 2003) 796 NE2d 322; see also, generally FORECITE National™ 24.3.3.3 [Excluded Or Stricken Matters Are Not Evidence].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

See 1st Circuit Pattern Jury Instructions - Criminal 3.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.06.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.04.

See also 7th Circuit Federal Jury Instructions - Criminal 1.06.

See also 9th Circuit Model Jury Instructions - Criminal 1.4.

See also 9th Circuit Model Jury Instructions - Criminal 3.7.

    During the trial I struck witness ______’s reference to a polygraph examination. You must completely ignore this stricken matter. Do not even think about it. Do not speculate about it. This matter is not evidence, and you are bound by your oath not to let it influence your decision in any way.

[Adapted from 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.04 [Evidence Defined] ¶ 4 (1991).]

    A suggestion has been made that the witness took a polygraph examination, yet there has been no suggestion as to what the subject matter of the polygraph test was. Because scientific research has found that polygraph tests are not reliable, they are inadmissible. I instruct you to disregard the last comment made by the witness.

[Glenn v. State (Ind. Ct. App. 2003) 796 NE2d 322.]