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§ 904.01, Relevance – Consciousness of Innocence — Polygraph Test Offer, Made by Counsel

State v. Gregg A. Pfaff, 2004 WI App 31
For Pfaff: Rex Anderegg

Issue/Holding:

¶26. While a polygraph test result is inadmissible in Wisconsin, see State v. Dean, 103 Wis. 2d 228, 279, 307 N.W.2d 628 (1981), an offer to take a polygraph test is relevant to an assessment of the offeror’s credibility and may be admissible for that purpose. State v. Hoffman, 106 Wis. 2d 185, 217, 316 N.W.2d 143 (Ct. App. 1982). An offer to take a polygraph test is relevant to the state of mind of the person making the offer-so long as the person making the offer believes that the test or analysis is possible, accurate, and admissible. State v. Santana-Lopez, 2000 WI App 122, ¶4, 237 Wis. 2d 332, 613 N.W.2d 918.

¶28. The threshold question in this case is whether Pfaff’s agreement to submit to a polygraph test at the request of his attorney constitutes an “offer” to take a polygraph test. We addressed this issue in the civil case of Neumann v. Neumann, 2001 WI App 61, ¶64, 242 Wis. 2d 205, 626 N.W.2d 821.3 There, the appellant argued that the trial court erred in excluding evidence that he had offered to take a polygraph test. In rejecting this argument, we stated,

[A]s Neumann acknowledged at oral argument, he did not offer to take a polygraph examination. Instead, law enforcement asked him to take the examination and he agreed. Neumann contends that even though law enforcement suggested the test, his willingness to take the test should still be admissible under the same reasoning applied in Hoffman.

Neumann, 242 Wis. 2d 205, ¶64. Thus, an agreement to submit to a polygraph test at the suggestion or request of another is not an offer within the meaning of Hoffman.

¶29. We see no reason to create an exception to this rule where, as here, the request or suggestion for the polygraph test comes from the defendant’s attorney….

¶31. We conclude that Pfaff’s agreement to submit to a polygraph test at the request of his attorney was not a “offer” to take a polygraph test within the meaning of the established case law. We uphold Judge Haughney’s ruling excluding Pfaff’s proffered testimony.

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