The admissibility and reliability of polygraph evidence in police disciplinary proceedings

Supreme Court Case

Supreme Court Decision in Re Waterman, 910 2D (N.H. 2006)

The Case

The case addressed in this section of the report is that of Supreme Court case In Re Waterman, 910 A.2d 1175 (N.H. 2006). In this case, Tracy Waterman, working as a trooper for the New Hampshire State Policy was informed on August 29, 3003 that Vicky Lemere, the wife of one of Waterman's fellow troopers, informed Lieutenant Nedeau, one of Waterman's supervisors, that Waterman made threatening remarks about her supervising officers. Lamere alleged that Waterman stated she would 'like to put a bullet in Lieutenant Nedeau's head' and would 'like to deck Sergeant McCormack' if they yelled at her." (Webster, 2007, p.1)

Facts of the Case

Webster's report on this case states that an internal investigation was initiated by the State Police (Division) in which a number of witnesses were interviewed "including Lamere and Waterman." (Webster, 2007, p.1) It is reported that during the investigation that Waterman denied having made the threats. Since the investigators found Lemere to be more believable than Waterman, it was suggested that Waterman be subjected to a polygraph examination. This examination was authorized by the Division Director, Colonel Gary Sloper. It is reported by Webster that Waterman accompanied by her attorney arrived for the polygraph examination but refused to take the test.

III. Submit to the Test or Be Terminated

The investigating officer then informed Waterman that refusal to take the polygraph examination constituted the violation of a direct order and that Waterman could be disciplined "up to and including dismissal." (Webster, 2007, p.1) Waterman received a memo from Sloper stating his intention to dismiss her for "willful insubordination for failing to take the polygraph examination." (Webster, 2007, p.1) Waterman and her attorney attended a meeting with Sloper on the 23rd of September and was dismissed on the 24th of September. The termination was appealed by Waterman to the Personnel Appeals Board (PAB).

V. Supreme Court Decision

The Supreme Court held that police officer must be above suspicion of violation of the laws that he is sworn to enforce...and must perform his duty to investigate crime and maintain the public trust, questions concerning the propriety of his conduct must be resolved promptly." (Facts as explained in the N.H. Supreme Court Decision, In re Waterman, 910 A.2d 1175 (N.H. 2006), Id. At 1178 quoting Eshelman v. Blubaum, 560 P.2d 1283, 1285 (Ariz. 1977) cited in Webster, ) The Court is reported to have adopted the Arizona Supreme Court's reasoning in the case Eshelman v. Blubaum in which the court held that a police officer must submit to a polygraph examination upon penalty of dismissal if (1) there are reasonable grounds for demanding such a test; (2) the answers are not used in any subsequent criminal prosecution; and (3) the questions relate specifically and narrowly to the performance of the police officer's official duties. (Webster, 2007, p.1)

In addition, it is reported that the court "…also implicated that failure to submit to an ordered polygraph violates the officer's sworn duty to cooperate with the investigation of a crime. Further, the court reconciled the reliability of polygraph examinations by reasoning that although courts have found the tests to be inadmissible as evidence, they are reliable enough to be utilized as a tool for internal departmental investigations." (Webster, 2007, p.1) In the application of the Eshelman test, it is reported that the court found "that the grounds for the order were reasonable because Waterman's credibility was in question and the Division did not have authority to question Lemere." (Webster, 2007, p.1) Furthermore, there was an existing division regulation in place that required division member to "…submit to examination, supporting the reasonableness of the order." (Webster, 2007, p.1) As well the court explained that prior to interviewing a division member that a "Garrity warning must be given which provides that neither 'self-incriminating statements, nor the fruits thereof' will be used against an employee in any criminal proceeding. Thus, there was a protection in place preventing the use of answers given during the polygraph in a subsequent criminal proceeding, fulfilling the second element of the test." (Webster, 2007, p.1) The final prong was not analyzed by the court since Waterman, by refusing to submit to the polygraph, had created an impossibility for the Court "to know whether the questions were narrowly tailored to the performance of her duties. Additionally, there was no further information that would lead to an admission and the polygraph was the only option for investigators. Based on this reasoning the court upheld the PAB's decision and Tracy Waterman was out of a job." (Webster, 2007, p.1)