The stipulation exception to nonadmissibility was first established by the Supreme Court 33 years ago in State v. McDavitt, 62 N.J. 36 (1972). Despite the great technological advances made in the three decades since McDavitt was decided, the legal issues surrounding the admissibility of polygraph test results, absent a stipulation by the parties, remain unsettled. One thing is clear, however, until the Supreme Court says otherwise, the only way to bring directly before a jury the results of a polygraph test is for the parties to stipulate to its admissibility.

Held: A defendant can cross-examine a state’s witness on the results of a polygraph test, where the stipulation of admissibility is only between the witness and the state.

It is beyond dispute that the results of the polygraph test directly undermine Arias’s overall credibility and casts a shadow of doubt over a material area of her testimony; to wit, whether and to what extent she was involved in striking the victim with a metal pipe. The magnitude of the prejudice caused by the exclusion of this evidence can best be appreciated when considered in the context of the jury’s fact-finding function. Based on the court’s “false in one, false in all” charge, the jury was entitled to disregard Arias’s entire account of events if it found any material aspect of her testimony to be false or otherwise not worthy of belief. Although Arias was aggressively cross-examined on the various statements she gave to law enforcement investigators, the trial court’s ruling arguably deprived defendants of one of the most potent impeachment weapons available.

The state’s stipulation of admissibility of Arias’s test results constitute more than a contractual relationship between the stipulating parties. The stipulation represents the state’s affirmative acceptance of the test results as a trustworthy indicator of the witness’s credibility or lack thereof. It also operates as a waiver of any objections the state could have made based on the scientific unreliability of the polygraph.

In implicit recognition of this preclusive effect, the state here assumed complete control over the test’s procedures. The state selected the individual who administered the test and chose the topic and format of the questions that were submitted to the witness. Under these circumstances, once Arias took the stand as a witness for the prosecution, defendants’ constitutional right of confrontation transformed the results of her state-administered polygraph test into a proper subject of defense counsels’ cross-examination.

Independent of these constitutional concerns, permitting the state to disavow the results of Arias’s polygraph test, by limiting the scope of the stipulation’s applicability to exclude these defendants, would violate basic notions of fundamental fairness. As that doctrine has evolved, fundamental fairness is invoked to protect a citizen against the unjust and arbitrary actions of the state.

Here, the state’s position, agreeing to the admission of the polygraph test results against Arias if she had gone to trial, but objecting to the admission of the same test results when she is called as a state’s witness, is disingenuous and inordinately driven by a seeming desire to gain a tactical advantage in this contest. While a prosecutor operates in the same adversarial environment as defense counsel, a prosecutor’s function is not to win the case, but to ensure that justice be done.

V. Also, the trial court committed reversible error by not sua sponte charging the jury on passion/provocation manslaughter, in light of testimony that the victim had violently attacked Castagna and Arias, both friends of Morales.

While discussing charging the jury on the offenses of murder, aggravated manslaughter and reckless manslaughter, the trial judge remarked that “in this case there is only reckless manslaughter or manslaughter as a lesser included offense,” and that “passion/provocation is not in this case.” None of the defendants objected or requested that the jury be charged as to passion/provocation manslaughter. It is therefore reviewed under the plain-error standard.

Plain error will result in a reversal only if it is “clearly capable of producing an unjust result.” R. 2:10-2. Reversal will occur only if the error led the jury to a result it otherwise might not have reached.

Here, Morales argues that the trial court should have charged passion/provocation manslaughter because, viewing the evidence in the light most favorable to the defense, this case involved a group of people, including Morales, who had responded to Grant’s “violent attack” on Arias, who fell against the cigarette machine in the bar when Grant hit her, and on Castagna, who fell like “a sack of potatoes” in the street in front of the bar when Grant struck her.

There was evidence presented from which a jury could find that Morales was told about Grant assaulting these two women. From this there is a rational basis to conclude that there was no opportunity for a reasonable person in Morales’s position to have cooled off.

As Grant ran for his life, the evidence shows that the mob reached a state of frenzy. Once it reached the victim, the mob mercilessly beat and kicked the helpless Grant, as he attempted to shield himself from the blows. Under these circumstances, a rational jury could have found that Morales, as one of those caught up in these events, did not have an opportunity to cool off. It is also the jury’s function to determine whether Morales’s attack against Grant was a response proportionate to the force allegedly used against Arias and Castagna.

VI. D’Amico contends that he received ineffective assistance of counsel when, during his opening statements, his trial counsel called him a “criminal,” told jurors that he was “guilty,” and promised jurors that he would testify in his own defense. D’Amico also argues that his counsel was ineffective when he failed to object to the state’s request that he demonstrate for the jury, by kicking the hollow witness-stand stair, the alleged manner in which he kicked Grant.

D’Amico’s trial counsel made the following remarks in the course of his opening statement to the jury:

But the bottom line is, and it’s not easy to say it, my client is a criminal. He dishonored the badge. You are going to find him guilty of probably one or maybe two counts of misconduct and of obstruction of justice. My client is going to testify that he assaulted Bennett Grant. He kicked him. He didn’t stomp him. He didn’t cause his death. We’ll talk about that later. He kicked him once in the back of the leg or by his butt. He’s done as a police officer. He’s done as a citizen. He’s a criminal. He is going to get on the stand and take responsibility for his acts. You will judge what crimes he is guilty of. So you can forget about the presumption of innocence or the assumption of innocence on the misconduct because he is guilty of which count you will determine or which counts, maybe even multiple counts.

Also as part of his opening statement, D’Amico’s counsel advised the jury that his client was part of the mob that chased down Grant “for the purpose of assaulting him.” Notwithstanding this remarkable concession, counsel further indicated that D’Amico would take the stand as a witness and admit kicking Grant, but deny that his purpose in doing so was to cause his death or inflict serious bodily injury.

In order to fully appreciate the prejudice caused by these remarks, the court must consider them in the context of the charges against D’Amico. In addition to the homicide charges involving murder and aggravated manslaughter, D’Amico was also charged, as a police officer, with two counts of second-degree official misconduct and one count of fourth-degree obstruction of a law enforcement investigation. Thus, defense counsel’s opening statements to the jury conceded D’Amico’s guilt as to all of the charges involving his status as a police officer.

The damage does not end here. In addition to leaving his client exposed to significant penal consequences, counsel’s highly inflammatory, unequivocally prejudicial characterization of D’Amico as a “criminal,” whose life as both a “police officer” and a “citizen” was over, could have only served to critically undermine D’Amico’s credibility as a witness in his own defense. Stated differently, it seems obvious that a rational juror would look with distrusting eyes on a witness whose own lawyer has labeled him criminal and a disgrace to his position as a police officer. These attacks on D’Amico’s character served only to weaken counsel’s defense strategy of persuading the jury that his client’s admittedly criminal conduct did not cause Grant’s death.

Once D’Amico took the stand as a witness, counsel made good on his opening-statement promises to the jury, by eliciting from his client the following key concessions: (1) D’Amico, along with the rest of the mob, ran after Grant, as the latter attempted to escape from his pursuers; (2) this chase included pursuing Grant as he jumped over a fence in a futile effort to elude his attackers; and (3) once they reached the hapless Grant, D’Amico and the rest of the mob began kicking him as he laid on the ground. Counsel attempted to counteract the damage caused by these highly prejudicial admissions by soliciting from D’Amico a series of self-serving declarations.

However, this situation is not equivalent to the case of a lawyer and a client who knowingly adopt a high-risk strategy, designed and intended to juxtapose a negative against a positive, (the so-called “I may be a corrupt cop who kicked this helpless victim, but I’m no killer” defense), thereby theoretically enhancing a defendant’s credibility on the central issue in the case. In such a situation, which is akin to invited error, a defendant will not be rescued from the negative, but otherwise reasonably foreseeable consequences, of pursuing such a “go for broke” strategy.

Here, by contrast, in conceding that D’Amico chased Grant as part of the mob, and with the expressed purpose of kicking him, counsel linked his client to the aggregate violence perpetrated by the assaulting mob, thereby assisting the state in establishing the principal part of its theory of causation: that Grant’s death was caused by the cumulative effect of the blows he received. Counsel’s remarks, as an introduction of his ill-conceived overall defense plan, served only to cast his client in the negative light of criminality, without the commensurate positive result ordinarily created by the juxtaposition.

Defendants Castagna’s, Morales’s and D’Amico’s convictions are reversed, and their cases are remanded for a new trial.

� Digested by Steven P. Bann

[The slip opinion is 55 pages long.]

For appellants: Josephine Castagna � Jean D. Barrett (Ruhnke & Barrett); Jean P. Morales � Stephen W. Kirsch, Assistant Deputy Public Defender (Yvonne Smith Segars, Public Defender); Thomas J. D’Amico � Alan L. Zegas (Zegas and Mary Frances Palisano on the brief). For respondents � Steven J. Kaflowitz, Assistant Prosecutor (Theodore J. Romankow, Union County Prosecutor; Kaflowitz and Patricia L. Cronin on the briefs in A-4471-01 and A-6863-01). Appellant Jean P. Morales filed a pro se supplemental brief.