Metropolitan News-Enterprise


Monday, May 11, 2009


Page 1


Court Upholds Use of Fake Polygraph Test to Obtain Confession


By SHERRI M. OKAMOTO, Staff Writer


A 17-year old gang member’s admission that he was present at the scene of a murder after police told him he had failed a polygraph test in which he had denied any involvement in the crime was not a coerced confession, even though the police had administered a fake test, the Third District Court of Appeal ruled Friday.

Affirming the decision of Sacramento Superior Court Judge Lloyd G. Connelly, the panel upheld Darious Mays’  first-degree murder conviction, with a lying-in-wait special circumstance and personal firearm discharge enhancement, in the published portion of its opinion.

Mays was charged with shooting and killing Sheppard Scott while Scott and his girlfriend were waiting in their car to order food at a Jack in the Box drive-through.


Camera Image


Surveillance cameras at a nearby AM/PM mini mart did not capture images of the shooting, but did capture images of two individuals wearing gray and orange, and showed one of them pointing at Scott’s vehicle as it passed through the AM/PM parking lot on its way to Jack in the Box. 

When questioned by police about his possible involvement in the crime, Mays denied being present at the restaurant or being the person depicted in surveillance camera footage.

He repeatedly asked for a lie detector test, and police detectives administered a fake test, placing body patches connected to wires on Mays, pretending to administer a lie detector test, and fabricating written results.

After the detectives showed Mays the purported results and told him he had failed the test, Mays admitted he was present at the shooting, and he was the person wearing the gray sweatshirt in the AM/PM footage. But he said he knew nothing about the shooting in advance and did not participate. 

Mays told police during the taped interview, which was later played for the jury, that the perpetrator was the person in orange, whom he claimed to have just met that day and threatened him after the shooting.

He later filed a motion to suppress his statements, but the trial court denied his motion and the videotaped interview was shown to the jury.


Involvement Denied


At trial, Mays reverted to his prior claim of denying involvement at all, insisting that he had not been present when Scott was killed. He claimed he had lied to the police because he felt defeated after supposedly failing the polygraph test and just said what he thought the police wanted to hear. 

The jury found Mays guilty and he was sentenced to life in prison without the possibility of parole, plus a consecutive term of 25 years to life for the gun enhancement. 

Writing for the appellate court, Justice Rick Sims explained that psychological ploys and tricks by police during the process of an interrogation do not render a resultant confession involuntary unless the tactics employed were so coercive that they were likely to produce a false confession.

Sims also cited People v. Brown (1981) 119 Cal.App.3d 116, which held that if defendant takes a lie detector test willingly, “neither the fact it was given nor the fact that the defendant was told by the test giver it revealed in his opinion that defendant was not telling the truth, inherently demonstrates coercion.”

Noting that polygraph tests were designed to elicit the truth and that the police had information from witnesses linking Mays to the crime, Sims reasoned that the use of a mock polygraph test was not likely to produce a false confession from Mays.

“Moreover, we know the trickery was not particularly coercive because, even after the police showed defendant the fake test results, defendant continued to deny involvement in the crime,” Sims added, concluding that Mays’ ability to admit being present, while steadfastly denying participation, demonstrated that his will was not overborne by the police ruse. 


Courts Split


Acknowledging a split among state courts as to whether police fabrication of tangible evidence to cause a suspect to confess is coercive per se, Sims declined to apply such a rule in a situation where the fabricated evidence was the result of the suspect’s request to take a polygraph.

“We have no occasion to consider a situation where the police, not the defendant, initiate a demand that defendant take a polygraph,” Sims said.

Joined by justices Harry Hull and M. Kathleen Butz, Sims deferred to the trial court’s determination that a witness was unavailable to testify and her condition warranted a conditional examination and declined to find error in the admission of the witness’s videotaped testimony.

Although the state had not sought the death penalty and capital punishment cannot be imposed on defendants who were minors at the time of their offense, the panel also considered and rejected Mays’ argument that conditional examinations were statutorily prohibited in death penalty cases.

In the unpublished portion of the opinion, the panel rejected Mays’ claim that the prosecutor had improperly used a peremptory challenge to excuse a black prospective juror and that the police had violated his right to counsel.

The case is People v. Mays, 09 S.O.S. 2632.


Copyright 2009, Metropolitan News Company