From the time that polygraph tests were first used in law enforcement, in the 1920s, they have been a staple of pop culture - plot twists involving lie detectors have shown up in movies, television cop shows and crime novels for decades. And this time the polygraph is at the center of a murder case that we recently reviewed here at the Supreme Court of Ohio.
The case began in December 2001, when a body was discovered in a park in Painesville, Ohio. A few hours after the discovery, Jennifer L. Jeffries called 9-1-1 to report that she and the deceased had been the victims of a robbery. Unlike the TV shows, where the murders are wrapped up later the same day, this case remained unsolved for over a year and a half as the police department investigated the death without pursuing an indictment.
In October 2002, while the investigation was ongoing, an assistant public defender arranged for Jeffries to submit to a polygraph test with an independent polygraphist to test a "new story" she was telling regarding the murder. This version exonerated Jeffries of any knowledge of or responsibility for the murder and identified her husband as the killer.
Jeffries submitted a written statement to the polygraphist and then took the test. Neither the written statement nor the results of the polygraph test were provided to the state at that time.
In May 2003, Jeffries and her attorneys signed a cooperation agreement with Lake County prosecutors. The agreement was to grant her immunity on all charges related to the murder. But before entering into the agreement, an assistant public defender informed the state that Jeffries had previously passed a polygraph test and described some of the questions that had been asked. The statement that Jeffries had submitted to the polygraphist was also provided to the state.
The agreement required Jeffries to cooperate with prosecutors and submit to a polygraph to confirm her truthfulness. But she failed this polygraph test and then fled the jurisdiction, so the agreement became void. Consequently, she was indicted on several charges arising from the murder.
Before her trial, her attorney asked the court to suppress the statement that she had made to the polygraphist. The court denied the request. She was subsequently convicted of trafficking in cocaine; tampering with evidence; involuntary manslaughter; complicity to robbery; and murder. The last three charges carried a firearm specification, which means additional prison time.
But when the court of appeals reviewed her case, it reversed the conviction. The court of appeals held that the trial court had abused its discretion by not suppressing the statement to the polygraphist.
How did the court of appeals arrive at this decision? The holding was based on the court's conclusion that the statement was made in the course of plea negotiations. Why is that significant? To answer that, we have to take a look at one of the rules that govern evidence in criminal and civil trials.
The specific rule of evidence in question is Evid.R. 410. Certain subsections of Evid.R. 410 cover what is not allowed as evidence against a defendant in a civil or criminal proceeding, including "any statement made in the course of plea discussions in which counsel for the prosecuting authority or for the defendant was a participant and that do not result in a plea of guilty or that result in a plea of guilty later withdrawn."
According to the court of appeals' interpretation of that rule, when the state requested a copy of the October 2002 statement and polygraphist's report, and Jeffries complied, it was essentially a plea negotiation.
When the case came before us, we saw things a bit differently. We determined that the language of Evid.R. 410 makes it clear that the rule protects statements that were originally made in the course of plea discussions - not statements that were made prior to plea negotiations and later provided to the state.
In past cases we have held that in order for statements to be protected by the rule it is necessary that "at the time of the statements, the accused had a subjective expectation that a plea was being negotiated."
In a 1995 case, called State v. Frazier, we concluded that the subjective belief of the accused must have been "reasonable under the circumstances." That case thus stands for the principle that Evid.R. 410 protects the statements of an accused when, at the time the statements were originally made, the accused had both a subjective and an objectively reasonable expectation that a plea was being negotiated.
The Frazier case does not stand for the principle that Evid.R. 410 protects the statements of an accused when, at the time the statements were provided to the state by the accused or her attorney, the accused had an expectation that a plea was being negotiated.
As Chief Justice Thomas J. Moyer wrote in the majority opinion, "A defendant cannot protect existing statements by providing them to the prosecution in the course of plea discussions.
"The statement at issue here was made far in advance of plea discussions, and there is no evidence that Jeffries believed that her statement to the polygraphist was made in the course of plea discussions. Indeed, the court of appeals recognized that the parties 'were not engaged in active plea negotiations in October 2002' and that Jeffries 'may not have had a subjective expectation that her counsel was preparing for a plea negotiation at the time the statement was given.'
"That conclusion," Chief Justice Moyer wrote, "should have directed the court of appeals to simply apply the plain words of the rule to the facts in the record and affirm the judgment of the trial court. That the statement was later provided to the prosecution in the course of plea discussions is irrelevant. Jeffries's statement was not protected by Evid.R. 410."
Therefore, by a seven-to-zero vote, we reversed the judgment of the court of appeals.
EDITOR'S NOTE: The case referred to is State v. Jeffries, 119 Ohio St.3d 265, 2008-Ohio-3865. Case No. 2007-1478. Decided Aug. 7, 2008. Majority opinion written by Chief Justice Thomas J. Moyer.
