New Mexico Supreme Court Approves Polygraph Evidence

On 9/24/03, we reported on the findings of a New Mexico trial judge assigned by the state's highest court to appraise the reliability of polygraph evidence. After a seven-day hearing, the judge concluded that polygraphy did not pass muster under Daubert.

We now learn that the New Mexico Supreme Court recently reversed that decision. From the unanimous opinion:

Petitioners are defendants in several pending criminal cases who are seeking to have their polygraph examination results admitted into evidence under Rule 11-707(C) NMRA 2004, which states that "the opinion of a polygraph examiner may in the discretion of the trial judge be admitted as evidence as to the truthfulness of any person called as a witness," provided certain conditions are met. In each case the State has opposed the admission of such polygraph evidence on the ground that it fails to satisfy the standard for the admissibility of expert testimony set forth in Rule 11-702 NMRA 2004. On February 10, 2004, Petitioners filed a Petition for Writ of Superintending Control asking this Court to order the district courts to comply with Rule 11-707, rather than conducting a separate Rule 11-702 hearing in each case.

. . . .

We now must consider whether to repeal our Rule 11-707 and hold that polygraph results are per se excluded. For the reasons that follow in this opinion, we do not repeal Rule 11-707. Instead, we hold that polygraph examination results are sufficiently reliable to be admitted under Rule 11-702, provided the expert is qualified and the examination was conducted in accordance with Rule 11-707. Therefore, we exercise our power of superintending control to order the district courts in the pending cases to comply with Rule 11-707 in determining whether to admit polygraph examination results. The proponents of such polygraph evidence are not required to independently establish the reliability of the examiner's testimony in a Daubert/Alberico hearing.

See Lee v. Martinez, No. 27,915 (N.M. Aug. 25, 2004) (corrected Sept. 15, 2004).