by Anthony W. Accurso

The Supreme Court of Indiana upheld evidentiary suppression of a defendant’s polygraph results and inculpatory statements made after the test, where the examining officer failed to disclose (until the eve of trial) his determination that the defendant’s mental state made him unsuitable to sit for a polygraph.

Bedford Police were notified in 2017 that the daughter of Brian D. Lyons made allegations that he sexually abused her. During the investigation and before he was represented by counsel, Lyons agreed to sit for a polygraph and “signed a written stipulation with the prosecutor agreeing the results of his polygraph would be admissible if the state ultimately charged him with a crime.”

Sergeant Dan Gress conducted the polygraph, including an assessment of Lyons’ mental state, in which “Lyons revealed he had been diagnosed with generalized anxiety, attention deficit, personality, and bipolar disorders” and explained that “he saw ‘spiritual shadows’ that spoke to him two or three days before the examination.” Based on these disclosures, Gress determined that Lyons was not a suitable candidate for an “evidentiary polygraph” (whose results are admissible into evidence per agreement between the prosecution and the defendant) and unilaterally converted the exam into an “investigatory polygraph,” the results of which are not admissible in court.

Gress then administered the exam, in which he “concluded Lyons’ results revealed ‘significant reactions’ to questions about his daughter that were ‘very close to deception.’” When asked about those results, “within minutes Lyons made incriminating statements.”

After the exam, Gress uploaded scanned copies of his official report, the polygraph exam form, and his handwritten notes into the state’s case management system (which is available to prosecutors). Importantly, he failed to change the “stipulated” notation on the exam form to “non-stipulated” before scanning the documents into the system. He made the changes to the form and included more detail in his handwritten notes a few weeks later in preparation for a pretrial hearing but failed to scan the modified documents into the case management system.

The pretrial hearing related to whether Lyons’ statements made during and after the polygraph should be suppressed. Despite the questioning during the hearing directed to Gress, by both the State and defense counsel, dealing almost exclusively with Lyons’ mental state, Gress “never mentioned that he had changed the polygraph to a non-stipulated, investigatory examination because of his concerns about Lyons’s mental condition.”

The trial court denied the motion to suppress, and the case moved toward trial. However, on the eve of trial, four years after the investigation began and one year after the motion to suppress, the prosecutor interviewed Gress and learned that he had unilaterally changed the exam from stipulated to non-stipulated based on Lyons’ mental state. The prosecutor promptly informed defense counsel and the court.

The trial court granted a defense motion to delay the trial and ordered the State to investigate whether Gress had committed perjury at the earlier suppression hearing. The trial court wrote that it found the late disclosure “troubling,” noting that when “law enforcement in general[] keep material evidence from the [p]rosecutor … [t]hat’s how innocent people wind up in prison.”

The trial court then held a hearing on a renewed suppression motion. Finding Gress’ explanations not credible, the court sanctioned the “egregious discovery violation” by excluding “any and all evidence generated or acquired by S[ergeant] Dan Gress.”

The State appealed the suppression order, but the Court of Appeals affirmed the order in a unanimous published opinion, explaining “[i]t is easy to imagine a scenario in which Lyons entered into a plea agreement with the state before ever finding out that the polygraph results would not have been admissible in a trial.” The Indiana Supreme Court granted review.

On appeal, the Court examined the trial court’s order sanctioning the State for its discovery violation for abuse of discretion, such that reversal is only appropriate “if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or if the trial court misinterpreted the law.” Wright v. Miller, 989 N.E.2d 324 (Ind. 2013).

The Court noted that for discovery violations, “we exclude evidence only if (a) that is the sole remedy available to avoid substantial unfair prejudice, or (b) the discovery violation was intentional, flagrant, in bad faith, or otherwise reprehensible.” Wiseheart v. State, 491 N.E.2d 985 (Ind. 1986). The Court stated that when considering sanctions for violations of discovery obligations, “the primary factors which a trial court should examine are whether the breach was intentional or in bad faith and whether substantial prejudice has resulted.” Id.

Even though the trial court postponed the trial, avoiding direct prejudice, the Court explained that the trial court could still “reasonably conclude that excluding evidence is necessary to deter egregious discovery misconduct.” The Court stated that “the purpose of sanctioning discovery violations is not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Whitaker v. Becker, 960 N.E.2d 111 (Ind. 2012).

Based on the facts in the record, the Court supported the trial court’s conclusion that Gress acted in a manner that was “grossly misleading or demonstrates bad faith,” even if his testimony did not rise to the level of perjury. Thus, the Court held that the trial court’s order to suppress the evidence in question as a discovery sanction was not an abuse of discretion.

Accordingly, the Court affirmed the trial court’s order. See State v. Lyons, 211 N.E.3d 500 (Ind. 2023).   

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