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Review of Waived Issue: Plain Error – Polygraph Evidence

State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith

Issue: Whether testimonial references to an accepted offer to take a polygraph amounted to plain error.

Holding: Plain error, § 901.03(4), requires “obvious” error, and is reserved for likely violations of basic constitutional right: “Frank identified no basic constitutional right implicated, and he concedes, ‘[t]here is no evidence in the record as to the time separation, if any, between the polygraph examination and the post-polygraph interview …..’ The record does not reveal the circumstances under which Frank made his statements to Thompson. It is not possible to say that admission of the statements was error, much less “plain” error. Any perceived error is merely speculative.” ¶25.

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