specially concurring:
Evidence about polygraph testing is generally inadmissible in courts in Illinois. Jefferson, 184 Ill. 2d at 497, 705 N.E.2d at 62. In addition, the prosecutor had a duty to tell State witnesses never to mention polygraph examinations. Lewis, 269 Ill. App. 3d at 527, 646 N.E.2d at 308.
I do not agree with the majority’s belief that to so admonish the witnesses is difficult. The majority states:
“That sometimes can be difficult to do. What response should the witness make if defense counsel specifically asks whether defendant was requested to submit to a polygraph examination? What response should the witness make if defense counsel asks whether the prosecutor told the witness not to mention certain facts during cross-examination?” 312 Ill. App. 3d at 897.
Certainly no defense attorney would elicit testimony about a polygraph refusal; and if defense counsel were to ask whether the prosecutor told the witnesses not to mention certain facts, he would open the door to the admission of that refusal, as well as possible sanctions from the court.
However, I agree with the majority that no per se rule exists to ban the admission of polygraph evidence. In this case, Beggs’ polygraph statement was responsive to defense counsel’s question, bad faith was not shown, and the trial court did all it could to cure any potential prejudice by striking the testimony and giving the appropriate cautionary instruction to the jury.
Moreover, Beggs’ statement did not concern an absolute refusal but rather described defendant’s physical condition at the police station after a hospital visit. Defense counsel sought to establish and did establish defendant’s condition of ill-being, his cooperativeness with police, and his consistent denial of gun possession. Beggs described a very tired man who was falling asleep and finally said he wasn’t interested in taking a polygraph at that time, presumably because he was too tired. This reference does not directly impinge on defendant’s credibility. Nor was this information elicited in contravention of a court ruling on a motion in limine since no such motion was made.
This testimony was stricken and the jury admonished as follows: “Ladies and Gentlemen *** Officer Beggs, in his testimony, made reference to a polygraph examination which I’m sure you know that’s a lie detector test.
It is the law of Illinois that the lie detector tests or polygraph tests are not sufficiently reliable to be used to — uh — for a |j]ury to decide any issue in the case. So, evidence regarding polygraphs, taking one, refusing to take one, anything to do with polygraph tests, is just not admissible. It doesn’t have sufficient proof ability as evidence to be of any assistance to the Q]ury.
Therefore, I am striking Officer Beggs’ statements regarding the polygraph and instructing you to disregard those in this case.”
The trial court did its best to unring the bell — if in fact a bell was rung. See People v. Keene, 169 Ill. 2d 1, 20, 660 N.E.2d 901, 911 (1995); People v. Ranstrom, 304 Ill. App. 3d 664, 674-75, 710 N.E.2d 61, 69 (1999); People v. Buress, 259 Ill. App. 3d 217, 224, 630 N.E.2d 1143, 1147 (1994). The defendant cannot show the jury was so influenced and prejudiced that he did not receive a fair trial. Moreover, the evidence of defendant’s guilt was so overwhelming in this case that defendant cannot now claim that his “guilt could be directly inferred from the polygraph testimony.” This court cannot say that the trial court abused its discretion in denying a mistrial. The trial court determined that this testimony had no prejudicial effect on the jury. Therefore, I specially concur in the majority’s affirmance.