State v. Ober

Memorandum Opinion

The defendant was convicted on two counts of aggravated felonious sexual assault. RSA 632-A:2 (Supp. 1983). He appeals the Superior Court’s (Bean, J.) denial of his motions for a mistrial and for a directed verdict.

During the trial by jury, the prosecutor asked a police officer whether the officer had requested the victim to take a polygraph test. The defendant objected and moved for a mistrial. The trial court denied the motion and instructed the jury to disregard the question. If we fail to reverse this conviction, we risk creating the impression that such a reference to a polygraph test is error, but not reversible error.

We have consistently held that the results of polygraph tests are not admissible as evidence of guilt or innocence in criminal trials. State v. French, 119 N.H. 500, 503, 403 A.2d 424, 426, cert. denied, 444 U.S. 954 (1979); State v. Stewart, 116 N.H. 585, 588-89, 364 A.2d 621, 623-24 (1976); State v. LaForest, 106 N.H. 159, 160-61, 207 A.2d 429, 430-31 (1965). This rule of inadmissibility is based upon the unreliability of such tests, as well as the danger that a jury will rely upon them to establish the truth or falsity of a witness’ statements. State v. French, supra at 503, 403 A.2d at 426. Accordingly, it is error to refer to such a test.

A question asking whether a victim has been asked to take a polygraph test cannot produce admissible evidence. Furthermore, if the jury speculates from such a question that the victim was not asked to take a polygraph test, the victim’s credibility will be enhanced. Because the prosecutor’s attempt to bolster the State’s witness by a reference to a polygraph test was, therefore, not harmless beyond a reasonable doubt, State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976), we must reverse and remand for a new trial.

The defendant also argues that denial of his motion for a directed verdict was error because the prosecution introduced insufficient evidence to prove sexual penetration. We have reviewed the evidence presented at trial and find that this argument is without merit.

Reversed and remanded.