Yesterday my partner in law (and life), Joel, argued his case in State v. Bryan Lyons before the Indiana Supreme Court. The Court summarized the issues in the case as follows:

“Lyons was accused of child molesting and entered into an agreement with the State to take a stipulated polygraph examination, the results of which would be admissible at trial. During the pre-polygraph screening, and without Lyons’s knowledge, the officer administering the polygraph changed it to non-stipulated due to concerns over Lyons’s mental state. Lyons then made incriminating statements during the post-polygraph interview. On the first day of trial, the Lawrence Superior Court granted a continuance and ultimately suppressed any evidence of Lyons’s post-polygraph statements due to the State’s failure to disclose that the polygraph was non-stipulated. The Court of Appeals affirmed. State v. Lyons, 189 N.E.3d 605 (Ind. Ct. App. 2022), trans. pending. The State has petitioned the Indiana Supreme Court to grant transfer and accept jurisdiction over the appeal.”

The videorecording of the argument can be found here. Many times when watching an argument I can tell where the Court is on a case and how they will likely rule. But not this case.

The Justices seemed in very different places on the case, but their questions focused primarily on what prejudice, if any, Lyons had from the State’s delayed disclosure of the polygraph examiner’s concerns about Lyons’ mental state. The difficulty in articulating prejudice could be, in part, because this is an interlocutory (intermediate) appeal, and the trial has not yet played out.

But looking forward, one can see what is likely to happen. If the trial court’s order is reversed and the State is permitted to use Lyons’ post-polygraph statements at trial, those statements can only come in through the polygraph examiner. How does the jury hear how those statements came about without also knowing a polygraph exam took place? After all, the purpose of a post-polygraph interview is to clarify inconsistent or “deceptive” answers during the exam. The jury will be left wondering how Lyons did on the polygraph exam itself. Given that the defendant would be tried even after the polygraph exam would certainly imply to the jury that he did not “pass” the exam.

But let’s say there is some way the State could present testimony about Lyons’ statements without revealing that a polygraph exam took place. Lyons would still be harmed. Obviously defense counsel would want to cross-examine the polygraph examiner on the examiner’s concerns about Lyons’ mental state when those statements were made. But the State could argue that particular line of questioning opened the door to the State presenting evidence about the polygraph exam. And Lyons is back to the jury knowing about the polygraph exam and assuming, given the State chose to move forward on seeking a conviction, that Lyons “failed” the exam.

The Court did not issue an order denying transfer yesterday, so it appears it is poised to grant transfer and issue a decision. Even if Lyons is not successful on this appeal, he will likely have the opportunity to resurrect these issues. But by that point he may have been convicted, sentenced, and appealing from prison.