Liar, Liar: Will Kansas Now Allow For Polygraph Evidence to be Admitted?

According to State v. Shively, 999 P.2d 952, 957 (Kan. 2000).

In most states polygraph evidence is either per se inadmissible in trials or is only admissible by stipulation, see United States v. Scheffer, 523 U.S. 303, 311, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), and State v. Porter, 241 Conn. 57, 124-25, 698 A.2d 739 (1997), cert. denied 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). Polygraph evidence has long been inadmissible in criminal trials in Kansas absent a stipulation by the parties. See State v. Lassley, 218 Kan. 758, 760, 545 P.2d 383 (1976).

But is that all about to change in the Sunflower State?

According to a recent article in The Dodge Globe,

Attorneys in the Brock Cunningham murder case made their final arguments regarding a motion to admit polygraph tests.

Cunningham was charged with first-degree murder and child abuse after the death of 3-year-old Natalie Pickle, who was under the care of Cunningham when she supposedly jumped off a bed and sustained head injuries that ultimately led to her death. Doctor’s later deemed her injuries to possibly have been caused by blunt force trauma to the head.

After 3 days of testimony by three experts, Judge Leigh Hood will be making a final decision on whether polygraph tests taken and passed by Cunningham, will be admitted into the case.

“Since 1947, the state of Kansas has not allowed polygraph tests to be admitted,” Hood said. “But due to changes currently being made across the country, I will be taking it under advisement.”

The 1947 case referenced in the article is State v. Lowry, 185 P.2d 147 (1947), which deemed polygraph results inadmissible eight years after the release of “The Wizard of Oz.” 

I’m not aware of any new wave of evidence indicating that polygraph evidence is any more reliable than previously thought. What I do (now) know is that Kansas changed its test for admitting scientific evidence last year. Specifically, it replaced the old Frye test with the more modern Daubert test. Under the Frye test, a court solely considers whether the technique or technology at issue has general acceptance in the relevant expert community. Meanwhile, under the Daubert test, the judge can consider a variety of factors, such as 

whether the “technique can be (and has been) tested,” “[w]hether it has been subjected to peer review and publication,” the “known or potential rate of error,” “whether there are standards controlling the technique’s operation,” and “whether the…technique enjoys general acceptance within a relevant scientific community.”

It will be interesting to see how the judge applies this new test to this old technology.

-CM