A testimonial reference to a request that a criminal defendant take a polygraph test is not enough to warrant a mistrial, the state Supreme Court has ruled.
The justices in Commonwealth v. Fortenbaugh were unanimous that Jack W. Fortenbaugh II — convicted of sexually abusing his stepdaughter — had failed to demonstrate that the prosecution's reference to a polygraph test prejudiced him enough to vacate his jury conviction of rape and other related offenses. The court, however, appeared to split on how close of a call this case was as to whether the child molester was prejudiced by an audio CD in which he was asked to take a polygraph, which are generally considered poor evidence.
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