State v. Blosser

• Decision Date: 11 December 1976
• Docket Number: No. 48157,48157
• Citation: 221 Kan. 59,558 P.2d 105
• Parties: STATE of Kansas, Appellant, v. Jerry L. BLOSSER, Appellee.
• Court: Kansas Supreme Court

Page 105

558 P.2d 105

221 Kan. 59

STATE of Kansas, Appellant, v. Jerry L. BLOSSER, Appellee.

No. 48157.

Supreme Court of Kansas.

Dec. 11, 1976.

Syllabus by the Court

1. In the absence of stipulation between the parties the results of a polygraph examination are not admissible in evidence.

2. The results of a polygraph examination, as used above, consist of the examiner's opinion based upon his interpretation of the data shown by the polygraph.

3. The fact that incriminating statements are made by a defendant during the course of a polygraph examination does not of itself render such statements inadmissible. They are admissible where found to be voluntarily made.

4. That incriminating statements were made during the course of a polygraph examination is a factor which may be considered on the issue of voluntariness but such fact does not of itself made the statements inadmissible.

James L. Hargrove, Deputy County Atty., argued the cause, and Curt T. Schnieder, Atty. Gen., Wallace F. Davis, County Atty., and Brett Coonrod, legal intern, were with him on the brief for appellant.

Allyn M. McGinnis, El Dorado, argued the cause and was on the brief for appellee.

HARMAN, Commissioner:

This is an interlocutory appeal by the state from an order suppressing evidence of oral incriminating statements made by the defendant during the course of a polygraph examination.

On June 20, 1975, a complaint was filed against Jerry L. Blosser charging him with the rape, kidnapping and felonious assault of a seventeen year old girl. On July 18, 1975, defendant Blosser, accompanied by his attorney, went to the office of the Butler county sheriff for the purpose of undergoing a polygraph examination respecting the charges. There was no agreement as to the use of the results or disposition of the charges. The test was to be conducted by Thomas b. Lyons, special agent and polygraph examiner for the Kansas bureau of investigation who, about a year previously, had given defendant a polygraph examination when he was involved in a similar situation. After the examiner assured himself that defendant was aware of his constitutional rights defendant's counsel left the room where the examination was to be given. During the preexamination preparation or questioning by Mr. Lyon and before defendant had been connected to the machine, defendant stated that he had restrained the girl from leaving his truck and had had forcible intercourse with her. He also said he had had intercourse with other girls in similar situations but they did not bring complaints against him. Later Lyon attached the machine to defendant and conducted the polygraph examination.

Defendant was held for trial and an information charging him with the offenses was filed. On the morning of his trial in district court, immediately after the jury had been sworn, defendant orally moved to suppress the evidence of his oral admissions to the polygraph examiner. The trial court held a hearing on this belated motion out of the presence of the jury, at which Lyon was the only witness, and it sustained the motion on the ground defendant's statements were 'part and parcel of the polygraph examination'.

Immediately following the court's ruling the state indicated its desire to appeal from the ruling. After considerable discussion between the parties and the court as to how they should proceed, defendant's counsel and defendant personally agreed that the jury might be dismissed, a ruling on the point would be obtained from this court, and thereafter that upon retrial before another jury defendant would waive any right to plead former jeopardy. In effect the parties agreed that the trial court should declare a mistrial in the jury proceeding. This appeal ensued.

The modern polygraph is intended to reflect changes in the examinee's blood pressure or pulse rate, respiration rate and depth and galvanic skin response while undergoing questioning. It is used on the theory that conscious lying causes these changes. From the physiologic manifestations shown on the machine the operator comes to a conclusion or opinion as to whether the examinee is telling the truth or is being deceptive in answers to relevant questions. Despite advances which have been made in the field it remains established in Kansas, and virtually every jurisdiction, that, in the absence of stipulation between the parties, the results of a polygraph examination are not admissible in evidence (State v. Watkins, 219 Kan. 81, 547 P.2d 810). The reason for their rejection is that the polygraph or lie detector is not an instrument which automatically and unerringly discloses a lie by the person being tested. It cannot be said to be completely accurate because of the human elements involved-the psychological and emotional makeup of the examinee and the competence of the examiner in conducting the test and evaluating the results (see Anno.: Evidence-Deception Tests, 23 A.L.R.2d 1306; Anno.: Polygraph-Stipulation of Admissibility, 53 A.L.R.3d 1005; State v. Lowry, 163 Kan. 622, 185 P.2d 147).

Here we are not concerned with the results of a polygraph examination-the examiner's opinion based upon his interpretation of the data shown by the machine-but rather with oral statements made by the examinee during the course of the examination. We have never ruled on this matter directly but have touched it by way of dicta. In State v. Lowry, supra, the operator who conducted a lie detector test upon the defendant and the complaining witness was permitted, over defendant's objection, to testify as to the results of the tests and give his interpretation of such results on questions bearing directly upon defendant's guilt or innocence. There was no stipulation concerning the results of the test. After discussing the use of lie detectors and their shortcomings this court concluded the results were inadmissible absent a...