Police not required to warn suspect of consequences of refusing field sobriety test.

State v. Farrow, 2016 VT 30 (filed March 11, 2016).

ROBINSON, .J. This case calls upon us to consider the admissibility of evidence of defendant's decision not to complete a field sobriety exercise as requested by a police officer in the context of an answer to a question we left open in a prior decision: Under the Vermont Constitution, is a defendant's refusal or failure to perform voluntary field sobriety exercises admissible if the defendant was not advised at the time of the refusal that evidence of a refusal to perform the exercises may be admissible in court? We conclude that the refusal evidence is admissible without regard to whether police advised the individual that a refusal to perform the exercises could be admitted as evidence in court. Because we reject defendant's argument to the contrary on this point, as well as her arguments that on the record in this case the evidence in question was irrelevant and unduly prejudicial, we affirm.


Defendant challenges the trial court's admission of the video recording and the trooper's testimony concerning defendant's conduct and ultimate cessation of the MRT on the basis of the Vermont Rules of Evidence According to defendant, in light of the absence of any evidence supporting the validity of the exercise in the first place, and the presence of many explanations for her decision to stop the exercise, the evidence in question proved nothing, and its admission was prejudicial because it suggested otherwise to the jury. We conclude that the trial court did not abuse its discretion in admitting the evidence to show that defendant discontinued her participation in the exercise because: (1) the evidence may have some probative value in showing consciousness of guilt, and (2) especially given its instructions to the jury, the trial court could reasonably conclude that the prejudicial effect of the evidence did not substantially outweigh its probative value.


Defendant's appeal raises a question that this Court has previously left unresolved: whether the Vermont Constitution requires—as a prerequisite to use of the individual's refusal as evidence in court—that an officer advise an individual that refusal to perform a field sobriety exercise may be admitted as evidence of consciousness of guilt. We reject defendant's Fourth Amendment argument. It is well established that police may, without a warrant but upon reasonable suspicion, ask a driver to perform field sobriety exercises. To the extent defendant is arguing that the Fourth Amendment, and its Vermont Constitution analog in Chapter 1, Article 11, nevertheless require some sort of warning to an individual asked to perform field sobriety exercises, she makes no argument linking those constitutional provisions to the claimed warning requirement.


Defendant argues that the protections against compelled self-incrimination in the Vermont Constitution extend to nontestimonial evidence because Article 10 provides that a person cannot be compelled to "give evidence against oneself," whereas the Fifth Amendment provides that a person cannot be compelled to be "a witness against himself." The logic of defendant's argument might support a conclusion that evidence of an individual's refusal to perform an exercise is inadmissible in court—an issue we do not revisit here. But defendant does not provide a logical connection between Article 10, as she understands it, and a requirement that an individual be warned. We emphasize that the strength of our holding on this point is limited by the vagueness of defendant's arguments on appeal.

Polygraph evidence is per se inadmissible under Rule 403.

Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 2012 VT 18 (Burgess, J.)

Following a jury trial, defendants R. Brown & Sons, Inc., a scrap metal hauling company, and its principal, Robert Brown (both referred to as hauler), were found liable for breach of contract, common law fraud, trespass, breach of the implied covenant of good faith and fair dealing, Each of these claims stemmed from hauler’s commercial dealings with plaintiff Rathe Salvage, Inc., a scrap metal salvage yard where hauler would crush cars and transport the scrap for sale to steel mills. Hauler now appeals, arguing that the case should be remanded due to the trial court’s refusal to conduct a Daubert hearing on the admissibility of hauler’s polygraph, or lie detector, testing before excluding such evidence from trial. We affirm .

The admissibility of polygraph evidence is one of first impression in Vermont. Hauler argues that the trial court erred by refusing to admit expert testimony about the results of a polygraph examination. The court denied hauler’s motion to convene a Daubert hearing, so called, for purposes of determining the underlying reliability of polygraphy. Concerned that the point of hauler’s polygraph examiner was to tell the jury “what and who should be believed,” the court ruled that even if polygraph results could satisfy Daubert admissibility standards, it was nevertheless precluded as an impermissible infringement on the jury’s province to determine credibility. The trial court’s exclusion of the polygraph results is sustainable on per se grounds founded in Vermont Rule of Evidence 403.

We hold that polygraph examination results are redundant to, and an unnecessary influence, on a jury’s responsibility to judge witness credibility or party liability, and that any probative value is substantially outweighed by risks of confusion, delay, and time wasted on collateral issues related to variables in administration of the polygraph. In so holding, we assume, without deciding, that polygraphy is sufficiently reliable for admissibility under Daubert.

The probative value of the polygraph results, at least in theory, rests on the expert’s ability to assess physiological responses of the subject as consistent with either truthfulness or deception. If, as we assume, polygraphy is generally accepted as accurate and reliable, the polygraph cannot but usurp the jury’s lie detecting function. Polygraph results are per se intrusive upon the jury’s prerogative. Per se exclusion is also supported by our holdings against expert opinions on ultimate legal issues or credibility in litigation. See Reiss v. A.O. Smith Corp., 150 Vt. 527, 530-32, 556 A.2d 68, 70-72 (1988) (explaining that notwithstanding authority under Vermont Rule of Evidence 704 to present opinion evidence that “embraces an ultimate issue to be decided by the trier of fact,” it was error to allow testimony on ultimate questions of law equivalent to “should [defendant] lose?”).  Similarly, Rule 702 is no license for expert opinion on the truthfulness of a witness or guilt or innocence of a defendant. See State v. Gokey, 154 Vt. 129, 139-40, 574 A.2d 766, 771 (1990) (reserving those issues for the jury). The polygraph expert’s opinion in this case vouching for hauler’s denial of fraud would amount to an opinion confirming hauler’s veracity and the legal insufficiency of Rathe Salvage’s fraud claim against him. As it was error in Reiss to admit an opinion that a defendant was liable for negligence in its installation of a propane tank regulator, so it would have been error to allow a polygraph expert to testify, in effect if not explicitly, that a fraud defendant was innocent of fraud.

There was no error in the trial court’s per se exclusion of polygraph evidence under Rule 403. Because polygraphy is inadmissible under Rule 403, the trial court was not required to conduct a Daubert hearing to assess its reliability under Rule 702.