dissenting:
I respectfully dissent from the majority’s conclusion that the limited testimony and the statement concerning polygraph examinations in this case constituted reversible error. The majority errs because its premise — rthat the jury was improperly informed of the results of polygraph examinations — is erroneous.
Proper consideration of the following points requires a judgment contrary to the majority’s: (1) the polygraph evidence in this case was necessitated by defense counsel’s questions, with his knowledge and concession that those questions and their attendant implications rendered the evidence relevant and admissible; (2) neither the polygraph evidence nor the prosecutor’s statement prejudiced defendant and they in no way contributed to her conviction; and (3) the majority’s reliance on People v. Gard (1994), 158 Ill. 2d 191, 632 N.E.2d 1026, is misplaced, because the unique circumstances present in that case were not present here.
NECESSITY OF POLYGRAPH EVIDENCE
In this case, defendant’s counsel insisted upon developing defendant’s theory of continuous and coercive questioning by police, even in the face of the State’s declaration, with the circuit court’s approval, that it intended to rebut the inferences of coercion with evidence of defendant’s voluntary consent to take a polygraph examination. Defendant’s counsel, requesting only that the results of the polygraph not be disclosed, chose to persist in this questioning in order to challenge the voluntariness and thus the credibility of defendant’s later confession. This approach was understandable since the reliability of defendant’s confession presented a significant obstacle to acquittal. The only support for defendant’s attack on the reliability of the confession, however, was defense counsel’s reliance upon the questions put to Detective Boylan; except for the implications from those questions, there was no evidence concerning the defense theory of police misconduct.
Until defense counsel’s cross-examination of Detective Boylan, the State meticulously avoided any reference to polygraph examinations. (272 Ill. App. 3d at 336.) Even after circumstances concerning polygraph examinations were admitted, the results of the examinations were never admitted. Given the court’s admonitions to counsel, counsel’s awareness and acceptance of the consequences of his inquiries, and counsel’s concession that the evidence of defendant’s willingness to take the polygraph was probative of voluntariness (a concession repeated by defense counsel during oral argument before this court), the majority wrongly concludes that the circuit court abused its discretion in admitting circumstances surrounding defendant’s agreement to take the polygraph examination.
It would have been wrong to have allowed the jury the unchallenged impression that defendant had endured prolonged and intensive questioning from a single police officer or more, when that was not true. It was therefore proper to allow the State to counter that defense theory when defendant had consented to a polygraph examination and when hours were spent, not in coercive questioning but in transporting her, in awaiting the availability of an examiner, and in administering the examination. In this context, the words of our supreme court are both poignant and applicable: "To hold otherwise would invite repetition of an improper practice and would defeat the truth-seeking function of a trial.” People v. Whiters (1992), 146 Ill. 2d 437, 443, 588 N.E.2d 1172, 1174-75 (State’s evidentiary response to defendant’s opening statement, which was unsupported by evidence, was appropriate).
The majority asserts that the polygraph evidence was unnecessary because Detective Boylan had already testified "that defendant was voluntarily undergoing interrogation and that she was not being abused in any way” and because the State "could have explained also that one of the reasons her voluntary interrogation took so long was that there were other individuals who were also waiting to be interrogated.” (272 Ill. App. 3d at 344.) The majority’s cure for the tactics of defense counsel is to substitute conclusional statements ("voluntarily undergoing interrogation” and "not being abused in any way”) and a statement that is not credible ("waiting to be interrogated”) with evidence: facts that provide a plausible explanation for the expenditure of time, facts that bolster the State’s theory concerning defendant’s voluntary cooperation with police, and facts that counter the implication of questions that implied that defendant had not been permitted to eat, had not been allowed to use the telephone, had not been allowed to see her family, and had not been allowed to use toilet facilities. (See 272 Ill. App. 3d at 338, 336, 337, 338.) Regrettably, the majority’s decision rewards the defense tactics in this case and invites similar unanswerable behavior in future cases.
As for the evidence of Anthony’s taking a polygraph examination, there was justification for the admission of that evidence as well. As the majority opinion itself shows, defense counsel initiated this area of inquiry by asking Detective Boylan about his knowledge concerning Anthony’s detention and its length, his release from detention, the time of his release, and Detective Boylan’s knowledge of Anthony’s leaving the police station and whether Detective Boylan had caused him to be released. (272 Ill. App. 3d at 339.) Moreover, defense counsel’s objections to the questions that elicited the polygraph evidence, based as they were on the "form” of the questions, conceded the propriety of this evidence and did not satisfy the requirement of specificity necessary to preserve error.
NO PREJUDICE FROM POLYGRAPH EVIDENCE
Although there was no explicit evidence about polygraph results, the majority asserts that the evidence about defendant’s polygraph, followed immediately by her arrest, improperly communicated to every juror that defendant either confessed during the polygraph examination or had failed it. An analysis of what the jury heard, however, belies those notions.
There was neither direct nor indirect evidence that defendant had confessed during, or even immediately after, the polygraph examination. The evidence was that after taking the examination, defendant implicated Tyrone and helped police apprehend him. It was not until after she was confronted with the discrepancies between her own and Tyrone’s accounts, and after she had talked to Tyrone, sometime later and totally unrelated to the polygraph examination, that she confessed her own involvement.
There also was neither direct nor indirect evidence that defendant had failed the polygraph examination. The evidence was that before the examination she said that she suspected Anthony of having taken the gun; afterwards, she said that "Tyrone had told her that he had her gun and that he shot McCoy.” (272 Ill. App. 3d at 329.) This change of versions, combined with the other information known to police, is precisely what led to her arrest — justifiably so, as the majority properly holds. (272 Ill. App. 3d at 336.) The evidence thus showed that she gave conflicting information about the gun. Both versions could not be true. Just as the majority concludes that the change of stories justified defendant’s arrest, the jury could have reached the same conclusion. No one would necessarily conclude that these inconsistent statements derived from the polygraph examination or, more important, that the statement concerning Tyrone — true or false — was related to any theory of defense, especially when, independent of the polygraph, defendant later conceded that she had been lying.
Furthermore, although there was no evidence that Anthony had passed his polygraph examination, any possible inference that he had done so did not mean that defendant was guilty of murder. Anthony’s polygraph had its relevance only in relation to whether he stole the gun, something defendant initially told the police, but a fact unrelated to her theory of defense at trial. Although the jury might have concluded that Anthony had no involvement in the offense — a reasonable conclusion since neither the State nor defendant claimed he did — that fact in no way implicated defendant in the murder.
As for the State’s argument, there was no explicit statement that Anthony had passed the polygraph examination or that defendant had failed it. Even if the jury inferred that Anthony had passed the polygraph regarding his knowledge of the gun, that fact did not implicate defendant in the murder. Given defense counsel’s questioning, which justified the inquiry concerning both Anthony’s and defendant’s polygraph examinations, the Statement’s argument was factual; it was based upon the evidence.3
GARD DISTINGUISHED
In applying plain error in this case, the majority correctly points out that in Gard our supreme court found that the admission of the polygraph evidence in that case constituted reversible error, despite overwhelming evidence of the defendant’s guilt. In Gard, however, as in People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070, there was explicit evidence concerning the results of a polygraph examination — something not present in this case. What the majority neglects to point out, moreover, is that in Gard, the "polygraph evidence was very much a part of [the] defendant’s trial,” and references to polygraph testing were "casual and commonplace, virtually ubiquitous.” (Gard, 158 Ill. 2d at 203, 632 N.E.2d at 1032.) By contrast, in this case, the polygraph references were few, occurring only during the redirect examination of Detective Boylan and the single isolated incident during the State’s closing argument. Accordingly, the polygraph evidence was not a significant part of defendant’s trial.
More important, however, is the fact that in Gard the polygraph evidence referred to prior statements by a key prosecution witness and indicated that "that which [he] spoke until and during his polygraph examination was false; that which he spoke once advised by police that he had failed the polygraph examination was true.” (Gard, 158 Ill. 2d at 203-04, 632 N.E.2d at 1032.) The court therefore concluded that the polygraph evidence became the "lodestar by which the jury was invited to measure truth,” because it implied that the witness’ trial testimony was true because it was consistent with his statements after being informed that he failed the polygraph examination. (Gard, 158 Ill. 2d at 203-04, 632 N.E.2d at 1032.) The court further noted that the polygraph evidence suggested that the other evidence that was consistent with the witness’ testimony was "necessarily true.” Gard, 158 Ill. 2d at 204, 632 N.E.2d at 1032.
In contrast to Gard, the polygraph evidence at issue here was not pervasive and did not serve as a lodestar for measuring truth. Because the facts present in Gard so thoroughly distinguish that case from this one, its holding should not be applied here. The holding of the supreme court in People v. Melock (1992), 149 Ill. 2d 423, 599 N.E.2d 941, is more akin to the facts presented by this case.
In Melock, our supreme court held that a defendant may introduce evidence concerning the taking of a polygraph examination for the limited purpose of determining the reliability and credibility of a confession. The court recognized the risk of prejudice to the defendant, but státed that "the importance of permitting the jury to weigh the effects of every motivating circumstance surrounding the obtention of [the] defendant’s confession outweighs the importance of avoiding the possible prejudice.” Melock, 149 Ill. 2d at 465, 599 N.E.2d at 960.
To be sure, the issue addressed in Melock was whether the defendant could introduce evidence concerning a polygraph examination. Nevertheless, the Melock principle, that such evidence is admissible to determining the reliability and credibility of a confession, applies also to this case, where defendant’s own tactics invited the evidence. Indeed, the defendant’s desire to introduce such evidence in Melock is indistinguishable from the actions of defendant which necessitated the evidence in this case.
Our supreme court in People v. Triplett (1967), 37 Ill. 2d 234, 226 N.E.2d 30, and the appellate court in People v. Jackson (1990), 198 Ill. App. 3d 831, 556 N.E.2d 619, gave approval to explicit evidence that a defendant had failed a polygraph examination when such evidence was relevant to the factual question of the voluntariness of that defendant’s confession. In Melock, the supreme court said, "we can agree with Jackson and Triplett on the value of limited admissibility of polygraph evidence in special circumstances.” (Melock, 149 Ill. 2d at 463, 599 N.E.2d at 959.) The court then expressed reservation about the "broader holding” of Jackson, and implicitly Triplett, that the State could introduce such evidence to rebut a defendant’s assertion about a coerced confession. The majority refers to this reservation in its opinion (272 Ill. App. 3d at 344), but neglects to mention that what the court was referring to was the explicit disclosure of the results of polygraph examinations. The supreme court’s approval of limited admissibility of polygraph evidence (i.e., the facts and circumstances of such evidence) in special circumstances is clear from its holding in Melock-, from its specific statement, as quoted above, in discussing Triplett and Jackson-, and from its reliance in Melock on People v. Lettrich (1952), 413 Ill. 172, 108 N.E.2d 488, another case that establishes the principle.
There is no basis for the application of plain error in this case. Justification for plain error cannot be found in either of our State’s two sound principles concerning polygraph examinations: (1) results of polygraph examinations are inadmissible under all circumstances (e.g., Gard, Baynes, but the "broad holdings” of Triplett and Jackson might furnish one exception), and (2) evidence and questions concerning the fact and circumstances of polygraph examinations, though generally improper, are proper under some circumstances (e.g., Me-lock, Triplett, Lettrich, Jackson).
We have been called upon to weigh the propriety of evidence concerning the voluntary taking of a polygraph examination to offset questions containing serious negative implications and having no evidentiary support. The principle provided by Melock adequately covers this case and should have been applied.
The majority’s concern over the integrity and reputation of the judicial process does not dictate the result it reaches here. That concern should have resulted in affirmance.
Risking redundancy to ensure clarity, particularly in view of the majority’s rejoinder to this dissent ie.g., "We have not the organs to perceive ***” (272 Ill. App. 3d at 343)), I offer the following.
Reduced to its essence, the majority’s basis for reversal is summarized as follows: "an inference was perversely created by both Boylan’s testimony and the prosecutor’s summation: Anthony was given a lie detector test, after which he was free to go home and not charged with anything; defendant was given a lie detector test, after which she was arrested and indicted for murder. The jury would have to be off on some other spinning planet to miss it.” (272 Ill. App. 3d at 343.) But what could the jury not miss? The strongest possible argument regarding Anthony’s polygraph examination was that, if he passed it, he did not take the gun or, possibly, that he knew nothing of the murder — facts defendant did not and does not dispute. Thus, the strongest inference that can be drawn from Anthony’s passing the polygraph examination in no way implicated defendant in the murder.
As for "the pernicious inference, plainly and unmistakably before [the jury] that defendant failed the polygraph examination” (272 Ill. App. 3d at 342), the most damaging inference that can be drawn from defendant’s taking the polygraph examination was that it may have inspired her to change her statement that Anthony had taken the gun to the statement that Tyrone had done so. Thus, the strongest inference that can be drawn from defendant’s failing the polygraph examination related only to her change of stories regarding the gun. Her later statements, unrelated to the polygraph examination, rendered the gun statements disingenuous. There simply was no plain and unmistakable inference that defendant had failed the polygraph examination or that it in any way implicated her in the murder.