A motion to file polygraph evidence in defense of Brock Cunningham and a series of anonymous tips caused a temporary stir in the proceedings.
The attorney representing Brock Cunningham against the state's accusation of the murder and abuse of 3-year-old Natalie Pickle filed a motion to admit two polygraph, or "lie detector," exams in defense of his client on Friday, July 25.
Daniel Monnat filed the extensive motion supporting the admission of two polygraph exams alongside expert testimony supporting the validity of the tests and an argument for the admissibility of the tests under a recent change in the Kansas evidentiary standards.
Polygraph exams measure small physiological changes that may occur when an interviewee is lying, including blood pressure spikes and palm sweating. The machines are widely used by local, state and federal law enforcement agencies during employment interviews alongside other interviewing techniques.
An anonymous tipster called the Globe and other media outlets, including KWCH, Monday, saying that the motion had been filed and the results of the tests were beneficial to Cunningham's case.
When a reporter sought the contents of the court file containing the motion to admit polygraph evidence, Monday, Ford County Attorney Natalie Randall filed for an emergency sealing order. That order was approved later that day by Judge Van Hampton and both parties were called for a hearing.
Randall's argument was that the release of information regarding the polygraph test results was a form of extrajudicial litigation, that is, trial by media, without the state knowing the method or the results of the examination. That public disclosure could make it difficult to seat an impartial jury in the trial scheduled for January.
The court found that a limited order sealing the motion to admit evidence and a second preventing the attorneys from discussing the motion did not unduly damage Cunningham's ability to receive fair legal counsel. The court issued the order due to the potential risk of the information contaminating the jury pool.
Monnat objected, arguing that the order violated his client's First, Sixth and Fourteenth Amendment rights, that is, free speech, defendant's rights and equal protection under the law. He also claimed violations against his clients Kansas Bill of Rights Section 10 and Section 11 rights, or fair trial and the freedom of speech guarantees.
Judge Leigh Hood heard the arguments on July 30 and dissolved the sealing orders. He also told the two attorneys that they know their profession's ethical obligations and if either is concerned about the actions of the other, they should contact the Kansas Bar Association.
Randall requested that if the polygraph exams are admitted as evidence, that the video recordings of the entire sessions be made available to the prosecution.
"The defendant filed a motion on Friday to admit polygraph information. In the past, the state has requested those be turned over to us in full. The polygraph had not been turned over to the state, which filed a motion to compel them to turn them over," Randall said Thursday.
"The state is very interested in seeing the entirety of the examination," Randall added.
The decision to admit the polygraph exams will be made during the pre-trial hearing on October 1 and October 2.
Before July 1, Kansas's position on the admissibility of polygraph examinations was limited by the "Frye Standard" set in the 1923 federal trial Frye v. United States. That standard only allowed scientific expert testimony to be admitted only if the technique was generally accepted in the relevant scientific community.
Frye was overturned in 1993 with the Daubert v. Merrell Dow Pharmaceutical decision. The federal court ruled the limitations set by the Frye Standard could not coexist with the Federal Rules of Evidence.
Now, the judge may act as the gatekeeper based on several criteria set in Daubert and related decisions and may allow polygraph exams as evidence.
Hood also informed the attorneys that they should begin considering a questionnaire to send to potential jurors prior to gathering a pool. Earlier this month, Randall requested a bump in the county budget to account for potential difficulty in seating an impartial jury in January.