Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Michael McLaughlin
Deputy Attorney General
Indianapolis, IN

Appellant (Defendant below),

                       v.
                        

                       STATE OF INDIANA,
         Appellee (Plaintiff below  ).

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)    Supreme Court No.
)    55S00-9808-CR-428
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In reviewing a challenge to a jury instruction, “this Court considers whether the instruction correctly states the law, whether there was evidence in the record to support the giving of the instruction, and whether the substance of the tendered instruction is covered by other instructions ... .” Sherwood v. State, 702 N.E.2d 694, 698 (Ind. 1998). Defendant argues under the second prong that the evidence was insufficient to support the trial court giving the accomplice liability instructions. See footnote The State finds the requisite evidence in testimony that Defendant was at the VFW post when the murders were committed, had returned to the post to give Thacker a ride, and was spotted later that evening with an amount of cash similar to the amount taken from the post. Appellee’s Br. at 12-14.

This evidence supports the trial court’s instructions. Defendant’s conduct – indeed, his theory of the case – created at least an inference that if he did not kill the victims himself, he aided Thacker in the murders. Defendant was acquainted with Thacker as the two had previously worked together. Witnesses saw Defendant have a brief conversation with Thacker early in the evening on the night of the murders. As previously noted, Defendant came to the VFW post around the time of the murders with the stated purpose of giving Thacker a ride. Finally, Thacker testified that Defendant had previously asked Thacker to join him in performing armed robberies. This evidence is sufficient to support the instru ctions on accomplice liability. See, e.g., Echols v. State, 722 N.E.2d 805, 807 (Ind. 2000) (“A defendant’s mere presence at the crime scene is insufficient to establish accomplice liability. By itself, a defendant’s lack of opposition to the crime is also insufficient to establish accomplice liability. Nonetheless, both of these factors may be considered in conjunction with a defendant’s course of conduct before, during, and after the crime, and a defendant’s companionship with the one who commits the crime.”); Wisehart v. State, 693 N.E.2d 23, 51 n.32 (Ind. 1998) (finding sufficient evidence to support instruction on accomplice liability where two police officers testified that “‘it was a possibility’ that [defendant] did not act alone in committing the crime.”); McQueen v. State, 711 N.E.2d 503, 506 (Ind. 1999) ( “With evidence supporting the inference that either of the McQueens could have been the actual killer with the other aiding in the crime, we find the trial court justified in giving an instruction on accessory liability.”). See footnote

Huffman v. State, 543 N.E.2d 360, 375 (Ind. 1989) (citing Chambers, 410 U.S. at 302), overruled in part on other grounds, Street v. State, 567 N.E.2d 102 (Ind. 1991).

    The United States Supreme Court has recently employed this analysis to uphold a similar per se exclusion of polygraph results in military courts. United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 110 L.Ed.2d 413 (1998). The defendant in that case argued that Military Rule of Evidence 707 – which explicitly excludes the results of a polygraph test See footnote – unconstitutionally pr evented him from mounting a defense. The Court disagreed, phrasing its analysis in terms of balancing interests:
A defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. A defendant’s interest in presenting such evidence may thus “‘bow to accommodate other legitimate interests in the criminal trial process.’” As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not “arbitrary” or “disproportionate to the purposes they are designed to serve.” Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.

Id. at 308 (citations omitted). The Court then identified the government interests in excluding polygraph results as “ensuring that only reliable evidence is introduced at trial, preserving the court members’ role in determining credibility, and avoiding litigation that is collateral to the primary purpose of the trial.” Id. at 309. See footnote The Court concluded that these interests ou tweighed the defendant’s limited interest in presenting what it deemed to be inherently unreliable evidence:
Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams. Individual jurisdictions therefore may reasonably reach differing conclusions as to whether polygraph evidence should be admitted. We cannot say, then, that presented with such widespread uncertainty, the [government] acted arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence.

Id. at 312. Moreover, the Court made clear that the defendant’s interest in the polygraph evidence was also undercut by the fact that the defendant was able to present “all the relevant details of the charged offense from the perspective of the accused, and the Rule did not preclude him from introducing any factual evidence.” Id. at 317.

    We hold that even if Scheffer is not controlling precedent here, See footnote its analysis of the r eliability of polygraph test results demonstrates that Indiana’s per se exclusion is neither “arbitrary” nor “disproportionate” to the State’s interest in a fair trial. See id. at 309. Defendant argues that the reliability of polygraph tests has improved sufficiently since Perry to warrant their admission into evidence. He cites numerous academic articles as well as federal cases that have admitted polygraph results. See footnote He also notes that law enforcement officials often rely on polygraph tests in their investigations. The authority Defendant cites, however, only goes to show the depth of disagreement as to the reliability of polygraph tests. As Scheffer pointed out:
[T]here is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques. Some studies have concluded that polygraph tests overall are accurate and reliable. Others have found that polygraph tests assess truthfulness significantly less accurately – that scientific field studies suggest the accuracy rate of the ‘control question technique’ polygraph is ‘little better than could be obtained by the toss of a coin’ ... .

Id. at 309-10 (citations omitted). This well-documented disagreement among the experts undermines the reliability of polygraph test results and validates the State’s interest in excluding such results without a stipulation. Defendant’s limited interest in putting on unreliable evidence does not outweigh the State’s interest in ensuring that its trials are fair.