An Insufficient Proffer: Polygraph Evidence Excluded to the Defendant’s Detriment

Ryan Kielczewski, Staff Editor

State v. White, No. 122,039, (Kan. Aug. 5, 2022)

Issue: Did the district court violate White’s right to present a defense when it excluded polygraph evidence?

Answer: No.  When polygraph evidence is inadmissible at trial, a defendant must sufficiently proffer evidence of a coercive polygraph examination to argue on appeal that his right to present that defense was violated.

Facts: Johnny White was charged with two counts of aggravated indecent liberties with a child.  White denied the charges during a polygraph examination.  He failed the polygraph examination because the results suggested he was not responding truthfully.  Law enforcement then questioned White until he confessed.  At trial, the district court excluded any testimony related to the polygraph examination.  Because the district court excluded the polygraph testimony where he denied the charges, the only testimony presented at trial was White’s confession.  Thus, White proffered evidence to show he changed his testimony due to a history of alcoholism and blackouts.  The jury found White guilty on one count, and he was sentenced to life with a 25-year minimum imprisonment.  The Court of Appeals affirmed the conviction.

Discussion: White was prohibited from arguing on appeal that the coercive polygraph examination caused a false confession because he failed to sufficiently proffer evidence of a coercive polygraph examination at trial.  While polygraph evidence has long been inadmissible in Kansas courts, State v. Swint allows some excluded evidence to be admitted if the party seeking admission makes a sufficiently substantive proffer to preserve the issue on appeal.[1]  Additionally, under Kan. Stat. Ann. § 60-405, parties must indicate to the court what evidence is in controversy and subject to exclusion.  Thus, defendants must sufficiently proffer evidence of a defense in order to later argue on appeal that their right to that defense was violated.  At trial, however, White only proffered evidence that his testimony changed from a claim of innocence to an admission of guilt as a result of alcoholism and blackouts.  Indeed, White failed to mention a coercive polygraph examination as a reason for his change in testimony.  Because White’s proffer focused on his history and blackouts rather than the polygraphy examination, he did not argue the polygraph examination caused him to confess.  Accordingly, White could not argue that his right to present the polygraph defense was violated.  The district court did not err in excluding evidence of the polygraph examination.

Key Authorities: State v. Shively, 999 P.2d 952, 962 (Kan. 2000) (holding that absent stipulation, polygraph examinations are inadmissible at trial); State v. Swint, 352 P.3d 1014, 1022 (Kan. 2015) (holding that a party must sufficiently proffer the substance of excluded evidence to preserve the issue for appeal; Kan. Stat. Ann. § 60-405 (2021).

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[1] 352 P.3d 1014, 1022 (Kan. 2015).