Accordingly, the court finds that it was error to allow an inference to the jury that the defendant might be a convicted criminal. Bearing such conclusion in their minds, the members of the jury could easily have been prejudiced in their attitude towards the defendant.
At the time of defendant’s trial, polygraph tests had not been proven to be reliable as held in People v Leone. At bar, the People called their polygraph expert as a witness, but questioned him as to other matters, specifically ignoring any question with regard to the polygraph examination he had administered to the defendant. As a result of improper cross-examination, defense counsel elicited from him only that the defendant had voluntarily submitted to taking a polygraph examination. Thereafter, the People were permitted not only to put the graphs resulting from such examination and the witness’ explanation thereof into evidence, but they were also permitted to have their witness offer his opinion as to whether the defendant was telling the truth when he denied having committed the crime with which he was charged.
In support of affirmance, the People argue that by merely establishing that the defendant had voluntarily submitted to the polygraph examination, defense counsel created an inference in the jury’s mind that the results thereof were beneficial to the defendant’s case and that the People were deliberately hiding them.
The People contend that evidence of the results of such an examination should be permitted into evidence in order that such inference may be rebutted. While the court agrees with the point of view urged by the People, it considers that the County Court permitted them too much latitude in this respect, and that permitting the witness to offer his opinion as to the defendant’s veracity during the examination was so prejudicial as to require that the defendant be given a new trial at which such evidence should not be permitted. The court opines that defense counsel should not have been permitted to question the witness with regard to the polygraph test in the first instance. Robbery was not an issue.
Richardson, Evidence (9th ed.), § 159 states that in any prosecution for sex crimes where the issue of consent is raised, the reputation and the moral character of the complainant is of great interest and is a permissible area of investigation and questioning for the defense. In view of the admission of the Assistant District Attorney to the County Court that the complainant was involved in a prosecution which led to the conviction of others for crimes including prostitution, and the statements of witnesses confirming this, the court ponders that it was also error for the County Court to refuse to permit defense counsel the opportunity to investigate the files of that prosecution and to examine the Assistant District Attorney involved therein by refusing to issue the requested subpoenas.