AFTER APPEARING BEFORE JOHN TOMASELLO
& REVIEWING CASES THAT HE GOT WRONG
I CAN CONFIRM THAT HE IS A PUBLIC MENACE
Short List of Cases Tomasello has Botched:
1. Houseman v. Dare – Judge Tomasello was overturned after presiding over a dog custody case…
An unmarried man owned a dog and after he dumped his girlfriend she sued for custody
Rather than Dismissing this Case Tomasello presided over a case that ultimately cost the estranged couple over $40,000 in attorney fees… for a dog.
Judge Tomasello allowed Family Court Resources to be deployed for dog welfare rather than addressing the people and children that require the Family Court to resolve conflicts
2. Judge John Tomasello released a Man who solicted sex from a purported Minor Child – because it was a “victimless crime. The man was later convicted. TOMASELLO WAS WRONG AGAIN… ATTEMPTING CHILD RAPE IS A CRIME IN NJ (SEE ARTICLE HERE)
– The County Prosecutor Took the Unusual Approach of Berating Judge Tomasello in the Local Paper
– You Know a Judge is horrible when the local members of the Bar actually say so publicly … its very unusual!
3. Judge John Tomasello Lied about court orders he issued, and presided over a case where the Defendant was ordered not to appear in court… Judge Tomasello failed to recognize that this was a denial of due-process read about that here.
TODAY I PRESENT A FOURTH CASE THAT
JUDGE JOHN TOMASELLO BOTCHED SO BADLY
IT WAS OVERTURNED BY THE APPELLATE AND REMANDED TO A
NOTABLY THE APPELLATE COURT ORDER
INCLUDES JUDGE TOMASELLO’S NAME
DESPITE THE COMMON-PRACTICE OF THE APPELLATE DIVISION
WHEREBY A JUDGE THAT IS OVERTURNED IS NEVER MENTIONED BY NAME
BASICALLY THE APPELLATE COURT WAS
CALLING OUT JUDGE TOMASELLO – BECAUSE THEY WERE OUTRAGED!
READ THE TEXT OF
TOMASELLO DEMONSTRATED A FAILURE
TO UNDERSTAND THE LAW
N.J. Superior Court, Appellate Division
A-6101-02T4; Appellate Division; opinion by Fisher, J.A.D.; decided and approved for publication May 23, 2005. Before Judges Fall, Payne and C.S. Fisher. On appeal from the Law Division, Gloucester County, Indictment No. 02-12-0206. [Sat below: Judge Tomasello.] DDS No. 14-2-0297
I. Defendant was charged with first-degree maintaining or operating a controlled dangerous substance (CDS) production facility (marijuana in an amount greater than 10 plants), in violation of N.J.S.A. 2C:35-4; first-degree possession with intent to distribute CDS (marijuana in an amount greater than 50 plants), in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(a); fourth-degree possession of CDS (marijuana in an amount greater than 50 grams), in violation of N.J.S.A. 2C:35-10(a)(3); and third-degree possession of CDS (methamphetamine), in violation of N.J.S.A. 2C:35-10(a)(1).
After the trial judge denied his motion to suppress, defendant entered a plea of guilty to first-degree maintaining or operating a CDS production facility. The trial judge imposed a sentence of 10 years’ imprisonment, one-third of which defendant must serve before becoming eligible for parole. Monetary assessments were also imposed. Pursuant to the plea agreement, the other counts of the indictment were dismissed.
Held: A warrantless thermal-imaging scan of defendant’s home and the warrantless seizure of utility records regarding the amount of electricity consumed in defendant’s home were illegal. As a result, the judgment of conviction is reversed, the denial of the motion to suppress vacated, and the matter is remanded for consideration, after a hearing, of whether defendant consented to the search of his home and, if so, whether the consent search was so impacted by the prior unlawful police conduct as to require the exclusion of the evidence then seized. Also, the trial judge erred by failing to allow testimony about a polygraph test administered to defendant. Lastly, a different judge is to be assigned to conduct all future proceedings in the trial court.
II. In January 2000, Detective William Peacock, lead investigator for the New Jersey State Police’s Marijuana Eradication Unit, obtained information by way of subpoena that defendant had received four packages of indeterminate size and content from a nearby business that sells plant-growth equipment. Why a subpoena was sought to obtain these records was not revealed at the suppression hearing.
Defendant’s mere receipt of this equipment ¿ the precise nature of which has not been revealed ¿ led Detective Peacock to somehow suspect that defendant might be growing marijuana in his home. As a result, Detective Peacock obtained a subpoena to compel a power company to turn over records concerning defendant’s residential use of electricity. The record, however, does not disclose what this information revealed.
On cross-examination, defense counsel sought to explore the content of these electrical records, as well as the manner in which they were obtained. He was permitted only a few questions before the trial judge ruled that this information had no bearing on whether defendant voluntarily consented to a search of his home. Defense counsel, in compliance with the trial judge’s directive, asked no further questions regarding the electrical-usage records.
As a result, the record reflects that when deciding to seek defendant’s consent to a search of his home, Detective Peacock knew only that defendant obtained equipment, only identified as plant-growth equipment, in January 2000; that no unusual amount of heat emanated from defendant’s home when a warrantless thermal scan was conducted in May 2000; and that subpoenaed utility records indicated that defendant’s home used electricity to some unknown extent at some unknown time. Detective Peacock conceded that this information would not support the issuance of a search warrant for defendant’s home, but he felt it appropriate to speak to defendant. Consequently, Detective Peacock determined to engage defendant in a “knock and talk.”
On July 27, 2000, Detective Peacock approached defendant’s residence, in the early morning, with four other law enforcement agents, all in plain clothes and all armed. They entered the curtilage of defendant’s home, without consent. In fact, two officers passed through a gate that had been closed to approach the back door, while the other three officers approached the front door.
Detective Peacock acknowledged that the manner in which the officers approached to engage in this “knock and talk” was compatible with how a search warrant would have been executed, the only difference being that the officers did not have a search warrant and would not have obtained a search warrant, from an impartial judge, if sought.
In addition, contrary to Detective Peacock’s testimony that he simply wanted to talk to defendant, the officer at the front door did not merely request that defendant speak with them but instead demanded that defendant speak to them, saying, “We need to speak to you?”
Detective Peacock testified that all five officers then entered defendant’s home through the front door and that he obtained defendant’s consent, as memorialized on a consent form that defendant executed. Once in the home, according to Detective Peacock, defendant readily divulged that there were 40 marijuana plants growing in the basement. The officers’ subsequent search led to the discovery of more than 100 growing marijuana plants in various parts of defendant’s home, as well as numerous plastic bags containing processed marijuana, and a plastic bag containing methamphetamine.
Defendant disputed Detective Peacock’s version, testifying at the suppression hearing that Detective DeBiase knocked on his front door, said he had a search warrant, and promptly entered the home through the front door with two other officers. The officers inside then let Detective Peacock and the fifth officer in through the back door. According to defendant, no one asked his permission to enter or search the home, but, instead, immediately on entering, an officer handcuffed defendant and told him to sit on a couch in the living room, along with his girlfriend, while the officers searched the home. Only approximately one hour later was defendant asked to sign a form (the aforementioned consent form) that he was not permitted to read. Defendant testified that, when presented to him, the consent form was folded in such a way as to preclude his ability to read its contents, an issue that was explored at the hearing, when it was revealed through the testimony of a retired state police officer that the consent form in question was outdated.
In addition, defendant called a polygrapher to testify. Prior to his being sworn, the trial judge sustained the state’s objection, thus precluding the polygrapher’s testimony regarding the results of his examination of defendant relating to the July 27, 2000, events. Defendant also offered the polygrapher’s testimony of prior consistent statements allegedly made by defendant, which the trial judge initially permitted; however, the trial judge soon thereafter sustained the state’s objection that such testimony was barred by N.J.R.E. 607, a ruling defendant has not challenged on appeal.
The trial judge found Detective Peacock’s version credible. He rejected defendant’s argument that the consent form was folded in a way that, when presented for his signature, barred his examination of its content; found insignificant that the consent form was outdated; found Detective Peacock credibly explained why so many officers were present when the ostensible intent of the visit was to simply “knock and talk”; found reasonable the fact that Detective Peacock passed through a gate, entered defendant’s backyard and approached the back door, because the detective believed that was the door more commonly used by the residents; found that defendant invited the officers into his home because it was raining; found that, on entering the home, Detective Peacock was able to detect the smell of unburnt marijuana; and found that defendant volunteered there were marijuana plants in the basement. From these facts, the trial judge concluded that defendant freely and voluntarily consented to the search of the home, and consequently denied defendant’s motion to suppress.
As observed, the trial judge precluded defense counsel’s inquiries into the legality of the warrantless search of electrical-usage records and did not determine whether such a search required a warrant. Although defendant attempted to assert that the prior searches were unlawful and tainted the consent allegedly given by defendant to a physical search of his home, the trial judge mistakenly failed to consider or decide those issues.
III. Contrary to the trial judge’s ruling, the sufficiency of defendant’s alleged consent to the search of his home may very well have been impacted by any prior illegal searches. Because, contrary to the trial judge’s approach, evidence obtained from a consent search of a home will be excluded if it results either directly or indirectly from illegal police conduct, it must be initially considered whether the officers conducted any prior unlawful searches.
A. Detective Peacock subpoenaed information that defendant purchased plant-growth equipment from a business located in Williamstown. The record does not reveal what this equipment consisted of or why its purchase piqued the detective’s interest, but there is no dispute that this equipment could be used to grow marijuana plants indoors. It is also conceded that it is lawful to purchase or possess such equipment and that it may be used to grow plants that may be lawfully grown. What prompted the police to compel the turnover of this information regarding defendant’s purchase of plant-growth equipment is unknown.
Defendant has not questioned on appeal the lawfulness of the seizure of that evidence.
B. Armed with information that defendant obtained plant-growth equipment, Detective Peacock then conducted, without a warrant, a thermal scan of defendant’s residence in May 2000.
On June 11, 2001, slightly more than one year later, the Supreme Court of the United States held that thermal scanning constitutes a “search” within the meaning of the Fourth Amendment and that such a search of a home may not be conducted in the absence of a warrant. Kyllo v. United States, 121 S.Ct. 2038 (2001). The unlawfulness of such a search, even if not previously announced, should have been understood by law enforcement officials in New Jersey. As Kyllo held, thermal scannings of residences represent “the search of the interior of homes ¿ the prototypical and hence most commonly litigated area of protected privacy.” Id. at 2043.
Kyllo‘s holding, even when defendant’s home was thermally scanned a year earlier, was predictable, because a warrantless thermal scan unreasonably intrudes into and tends to reveal, albeit in a very general way, what occurs within the interior of the home ¿ the “chief evil” the federal and state constitutions were designed to combat. State v. Cassidy, 179 N.J. 150, 159-60 (2004). While such a scan, in and of itself, may reveal nothing more than the greater emanations of heat from particular areas of a structure, the Fourth Amendment’s shield from unreasonable governmental intrusions into the home is not restricted to only those things some would describe as “intimate.”
The Court’s holding in Kyllo, despite the division within the Court itself, was predictable and should not only be applied prospectively.
Although prior to Kyllo a majority of courts had determined that a thermal scan of a structure from a public thoroughfare did not constitute a search, a substantial minority had held to the contrary. Regardless of this imbalance, courts have interpreted the scope of rights granted by Article I, paragraph 7 of the New Jersey Constitution more broadly than courts have interpreted the Fourth Amendment, as more fully discussed later in this opinion.
C. The thermal scan in May 2000 suggested that no unusual or uncommon amount of “waste heat” was escaping from defendant’s home, and, according to the record, Detective Peacock only knew that defendant had purchased lawful plant-growth equipment in January 2000. With this limited and innocuous information, Detective Peacock obtained a subpoena to compel the power company’s records relating to the usage of electricity in defendant’s home as well as other similarly sized homes for comparison purposes. The state acknowledges that the police did not have probable cause to obtain a warrant for the production of these records, but nevertheless argues that such records are fair game and may be searched and seized regardless of the absence of a warrant based on probable cause because citizens have no legitimate expectation of privacy in such records.
Article I, paragraph 7 protects individuals from warrantless searches of a utility’s records regarding the usage of electricity in an individual’s home. The wording of Article I, paragraph 7 is “taken almost verbatim from the Fourth Amendment.” State v. Johnson, 68 N.J. 349, 353 n.2 (1975). Notwithstanding, our courts have recognized that in many instances Article I, paragraph 7 provides greater rights to an accused than the Supreme Court of the United States has found in the Fourth Amendment.
State v. Johnson marks the first step in New Jersey search-and-seizure jurisprudence beyond the basic rights guaranteed by the Fourth Amendment. Ibid. (“[U]ntil now [Article I, paragraph 7] has not been held to impose higher or different standards than those called for by the Fourth Amendment.”) Two years earlier, Schneckloth v. Bustamonte, 93 S.Ct. 2041 (1973), held that knowledge of the right to refuse consent to a search is only one factor in determining the voluntariness of consent. State v. Johnson specifically rejected that approach in interpreting Article I, paragraph 7 and held that, in such circumstances, the state has the burden of proving by clear and positive evidence that consent was voluntarily given, including proof that the accused had knowledge of the right to refuse consent. 68 N.J. at 353-54. Since the Supreme Court’s 1975 departure from Schneckloth, the scope of Article I, paragraph 7 has been found to expand beyond the parameters of the Fourth Amendment in many instances.
Guided by these frequent departures from what State v. Hempele, 120 N.J. 182, 197 (1990), referred to as the Fourth Amendment’s “floor of constitutional protection” ¿ in guaranteeing, through the application of the state constitution, the full realization of our liberties ¿ as a matter of first impression, there is a legitimate expectation of privacy in electrical-usage records maintained by a power company.
Four other courts have specifically decided the issue, three of which have held there is no legitimate expectation of privacy in such records. See Samson v. State, 919 P.2d 171 (Alaska Ct. App. 1996); People v. Dunkin, 888 P.2d 305 (Colo. Ct. App. 1994), cert. denied, sub nom., Smith v. Colorado, 115 S.Ct. 2251 (1995); State v. Kluss, 867 P.2d 247 (Idaho Ct. App. 1993). The decisions of these three courts were based on either the Fourth Amendment or their own state constitutions, and were generated by an approach inconsistent with the scope of Article I, paragraph 7.
Instead, the court aligns its decision with In re Maxfield, 945 P.2d 196 (Wash. 1997), the only case that has found a reasonable expectation of privacy in such records, because Washington’s search and seizure jurisprudence is far more akin to our own.
1. The fact that the records in question were created or are in the possession of some third person, and not the accused, is not the sine qua non for determining the scope of Article I, paragraph 7, as suggested by the state. The state’s position is grounded on United States v. Miller, 96 S.Ct. 1619, 1624 (1976), which held that the Fourth Amendment “does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”
Miller‘s linking of the legitimate expectation of privacy with third person access to information has not been followed in staking out the boundaries of Article I, paragraph 7. For example, State v. Hunt, 91 N.J. 338, 347 (1982), found no great significance in the fact that the telephone company and some of its employees were aware of the telephone numbers dialed by an individual. Instead, the Court held that the availability of access by others is not alone determinative of a legitimate expectation of privacy. Similarly, State v. Hempele held that garbage “does not lose constitutional protection merely because it is handed over to a collector.” 120 N.J. at 209. State v. McAllister, 366 N.J. Super. 251, 264 (App. Div.), certif. granted, 180 N.J. 151 (2004), found a legitimate expectation of privacy in a bank’s records concerning an accused’s account even though the bank’s employees had access to those records. In each of these examples courts departed from the lesser scope of privacy interests recognized in the Fourth Amendment analysis contained in Miller.
2. The usage of electricity tends to reveal what occurs within the home. Indeed, much of what has been said about the illegitimacy of a warrantless thermal scan (designed to determine whether certain areas of a structure were relatively hot when compared to the rest of the home or neighboring homes) is applicable to the finding of a legitimate expectation of privacy in information maintained by a power company as to the usage of electricity.
Instead of finding that any information about what occurs within the home is subject to protection, the Idaho court in Kluss, quoted with approval by the Colorado court in Dunkin, held that there is no legitimate expectation of privacy in electrical-usage records because those courts believed that such records do not identify any intimate activities of the accused.
This assertion that “waste heat” does not provide intimate details of what occurs within an accused’s home does not comport with Kyllo‘s interpretation of the Fourth Amendment or New Jersey’s own search-and-seizure jurisprudence.
3. This conclusion as to the reasonable expectation of privacy in electrical-usage records is not contrary to what has been held, at least inferentially, in State v. Jones, 179 N.J. 377 (2004), and State v. Sullivan, 169 N.J. 204 (2001). Those decisions dealt with the level of reliability in an informant’s tip of criminal activity. State v. Sullivan determined that a particular tip was reliable as to the name and location of an alleged drug dealer because, among other things, the informant’s tip was corroborated by utility records that identified the owner of the premises in question.
In State v. Jones, 358 N.J. Super. 420, 428 (App. Div. 2003), the Appellate Division alluded to this fact in distinguishing Sullivan, and when the Supreme Court reversed the Appellate Division’s judgment in Jones, it also referred extensively to the circumstances in Sullivan and the fact that the officer in Sullivan had corroborated the informant’s tip by “review[ing] utility records to confirm that the telephone number provided by the informant matched the telephone number of the apartment in the multi-unit building where the controlled buys were purportedly made.” 179 N.J. at 391. Nowhere in any of those opinions may it be ascertained by what authority the police officer was permitted to examine the utility records. Moreover, there is a distinct difference between a warrantless review of utility records to ascertain the name of an occupant of property, on the one hand, and a review of records relating to the usage of power, on the other.
4. There is a legitimate expectation of privacy in electrical-usage records maintained by a power company that precludes the intrusion of law enforcement in the absence of a warrant. Ultimately, there is no philosophical distinction to be drawn between the purpose behind excluding evidence obtained from a warrantless thermal scan of a residence and excluding evidence derived from a warrantless search of a utility’s records as to electrical usage in an accused’s home.
Such a determination may, at times, be affected by policy reasons. For example, in Hunt, the Court noted that “New Jersey has had an established policy of providing the utmost protection for telephonic communications,” and referred to the Legislature’s criminalization of wiretapping as early as 1930 in a statute since superseded by the Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34. See 91 N.J. at 345. Neither party has provided any guidance as to the legislatively recognized existence, or lack of existence, of an expectation of privacy in electrical-usage records. Indeed, the Open Public Records Act, N.J.S.A. 47:1A-1 to -13, merely begs the question by stating that “a public agency [such as a public utility] has a responsibility and an obligation to safeguard from public access a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy.” N.J.S.A. 47:1A-1.
For the reasons indicated, a search warrant is required for utility records that reveal the amount of electricity used in an individual’s home. Because Detective Peacock obtained such records by way of a subpoena, and not by way of a warrant issued by an impartial judge, this search was unlawful.
IV. Having determined that the police had previously engaged in unlawful searches during their investigation of defendant, the Court remands for further proceedings regarding defendant’s motion to suppress in order that there may be consideration of the impact of these prior constitutional violations on the state’s contentions that defendant consented to the search of his home on July 27, 2000, and that the results of that search are admissible.
As is apparent, the proceedings on remand must not be limited solely to a determination as to the taint of the prior unlawful searches on the consent that the trial judge found was given. Instead, it must again be considered whether consent was given ¿ and given voluntarily ¿ because at the prior hearing the trial judge did not permit the full (or any) use of the prior unlawful searches nor did he consider how that unlawful conduct called into question the credibility of the state’s version of the July 27, 2000, events.
On remand, the judge should consider but not necessarily be limited to weighing the impact of the prior unlawful police conduct (1) on the credibility of the police version of the alleged consent search, (2) on the legitimacy of the manner in which the police sought consent, and (3) on whether the police had a reasonable suspicion that would justify seeking defendant’s consent to a search of his home. In addition, even if it is found after such an examination that defendant freely and voluntarily consented to the search of his home, the judge must also consider whether that consent was tainted by the prior unlawful conduct.
In weighing the circumstances eventually revealed at the future suppression hearing, the judge must first determine how the prior unlawful conduct impacts on the credibility of the police version of what occurred on July 27, 2000. In determining whether consent was requested or given, the judge should weigh whether the prior unlawful conduct might suggest that consent was not lawfully obtained. The judge is entitled to doubt the likelihood that the officers acted in a constitutionally permissible manner on July 27, 2000, when they did not so act on prior occasions. And while a strict application of N.J.R.E. 404(b) (stating that evidence of prior wrongs, although admissible for other purposes, “is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith”) might suggest the preclusion of the officers’ prior wrongful acts, it is well-established that the rules of evidence do not apply at suppression hearings. N.J.R.E. 104(a).
Therefore, evidence of prior unlawful searches is relevant not only to a consideration of whether the search of defendant’s home constitutes the “fruit of the poisonous tree,” as more fully discussed later in this opinion, but also in analyzing whether the unlawfulness of the search in question is suggested by the unlawfulness of prior searches.
Second, the trial judge mistakenly rejected the significance of the fact that the officers, by passing through a gate and entering defendant’s backyard, had entered the curtilage of defendant’s home without consent, without a warrant and without probable cause. Although the federal and state constitutional prohibitions on unreasonable searches and seizures do not “bar all police observation” and have “never been extended to require law enforcement officers to shield their eyes when passing by a home,” and, for example, have not been found to bar a warrantless aerial observation of a fenced-in backyard, California v. Ciraolo, 106 S.Ct. 1809, 1812 (1986), there are limits to the extent to which the police may make a warrantless entry into the curtilage of an individual’s home. On remand, the judge may consider whether the warrantless intrusion by Detective Peacock and another officer into the gated backyard of defendant’s property transgressed defendant’s expectation of privacy and how, if unlawful, it may impact on the credibility of the state’s contention that the police acted lawfully when seeking defendant’s consent to a search of his home. By the same token, the judge should permit and consider any other evidence the state may seek to offer to justify the manner in which they approached defendant’s home.
Third, the judge should consider whether the police had sufficient information from which to seek defendant’s consent to the search of his home. To seek consent for such a search, the officers’ existing, lawfully obtained information must have been sufficient to generate a reasonable and articulable suspicion that criminal activity was occurring within.
Lastly, even if the judge determines on remand that defendant freely and voluntarily gave his consent to a search of his home, and even if the judge determines on remand that the police had a reasonable and articulable suspicion to seek defendant’s consent to that search notwithstanding the exclusion of the unlawfully obtained evidence, the judge must determine whether that consent search was tainted by the prior unlawful police conduct. The trial judge viewed the law enforcement activities that preceded the alleged consent search to be irrelevant. This was a mistake.
Whether a consent search cleanses the taint of prior illegal searches and seizures is not always clear. However, there is no doubt that a mere finding that the subsequent consent was free and voluntary is not alone sufficient to avoid the impact of the “fruit of the poisonous tree” doctrine. If we were to accept the trial judge’s view that defendant’s purported consent rendered irrelevant the prior unlawful police conduct, we would undermine the purposes of that doctrine. Such a holding would have a tendency to allow the police to conduct illegal searches and seizures with impunity, knowing that consent might later be readily forthcoming when the accused is confronted by police, armed with knowledge illegally obtained, and thereby absolve the police of the impact of their prior unlawful conduct. Such an approach, if adopted, would eviscerate the exclusionary rule’s deterrent effect.
V. In his supplemental brief, defendant argues that the trial judge erred by barring testimony about the results of a polygraph examination performed on defendant, including, supposedly, the expert’s opinion that defendant’s contention that he did not consent to the search was truthful.
The trial judge summarily refused to permit this testimony because he considered it irrelevant, and ultimately inadmissible. The judge also ruled that this testimony encroached on the ultimate issue to be decided, and that it constituted a waste of time. These four reasons given by the trial judge were insufficient to justify the exclusion of this testimony.
A. The judge was required, in part, to determine whether defendant consented to the search of his home, which turned on the “swearing contest” between Detective Peacock and defendant about what actually occurred on July 27, 2000. Since the polygraph testimony related, no matter how imperfectly, to the truthfulness of defendant’s version, it comported with N.J.R.E. 401’s broad standard of what is relevant.
B. The trial judge also summarily excluded the polygraph testimony because he believed it was inadmissible. This was also erroneous. State v. McDavitt, 62 N.J. 36, 46 (1972), held that polygraph testing had developed to such a point of reliability that the results could be admitted into evidence in a criminal matter if both the state and defendant so stipulated.
Polygraph testing is designed to demonstrate that the person tested was or was not truthful in answering certain questions based on measured changes in blood pressure, pulse, thoracic and abdominal respiration, and galvanic skin response. The polygraph as a device for detecting truthfulness is based on the assumption that changes in these physical conditions indicate an increase in stress consistent with deception. In a nonjury setting the admission of this type of evidence, when a proper foundation has been laid, is not limited by McDavitt‘s stipulation requirement.
In weighing the admissibility of such evidence in the present circumstances, the judicial system recognizes that cases are already adjudicated through the use of “lie detectors.” If the court was to allow a fact finder to detect whether a witness is lying or telling the truth based on observations of demeanor ¿ thus permitting the fact finder to consider among many other things whether, while testifying, the witness breathed heavily, perspired, spoke haltingly, avoided eye contact, gestured excessively, or gave off the unpleasant “odor of mendacity” (Williams, “Cat On A Hot Tin Roof,” Act III (1955)), then it should follow that measurable physiological occurrences during the answering of questions, such as changes in pulse rate, blood pressure, respiration or perspiration, may be probative of a witness’s credibility.
Here, while the parties did not enter into such a stipulation, the circumstances are distinguishable from McDavitt, chiefly because McDavitt considered the use of polygraph evidence at a trial, before a jury, to determine defendant’s guilt. Thus, in weighing the applicability of this stipulation