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defining "malice" for "purposes of malicious prosecution" as "an improper purpose, or any purpose other than the legitimate interest of bringing an offender to justice."
Summary of this case from Banks v. CamarilloOpinion
No. 89-1528
Submitted October 3, 1990 —
Decided December 12, 1990.
Evidence — Polygraph examination results are admissible at trial without a stipulation between the parties to show state of mind of police officers who are defending against a claim of malicious prosecution.
O.Jur 3d False Arrest and Malicious Prosecution § 37.
Where polygraph examinations are conducted as part of a police investigation prior to the instigation of criminal proceedings, such evidence is admissible at trial to show the state of mind of police officers who are defending against a claim of malicious prosecution. This is an exception to the general rule that polygraph evidence is not admissible without a stipulation between the parties. ( State v. Souel, 53 Ohio St.2d 123, 7 O.O. 3d 207, 372 N.E.2d 1318, and Brown v. Best Products Co., 18 Ohio St.3d 32, 18 OBR 69, 479 N.E.2d 852, distinguished.)
APPEAL from the Court of Appeals for Summit County, Nos. 13262 and 13271.
Plaintiffs-appellants Gary and Everett Criss brought this action against defendants-appellees Carl Blasdel, Daniel Lance, and Myra Criss, and defendants Springfield Township Police Department and Springfield Township following the unsuccessful prosecution of Gary and Everett Criss for the alleged rape of twelve-year-old, mentally retarded Timothy Criss. The action is to obtain damages for malicious prosecution, false arrest, wanton and willful misconduct, negligence, and infliction of emotional distress.
The relationship between the parties is as follows: Gary Criss is the father of Timothy and David Criss. Everett Criss is Timothy and David Criss's grandfather and Gary Criss's father. Defendant-appellee Myra Criss is Timothy and David Criss's mother. Gary, Myra, Everett, and the two boys lived together in Springfield Township during the time leading up to the prosecutions of Gary and Everett Criss. Defendants-appellees Carl Frank Blasdel and Daniel Lance are officers with the Springfield Township Police Department.
Beginning in March 1983, Timothy Criss was hospitalized for almost two months. He was treated for depression and other emotional problems. While in the hospital, Timothy told his mother and father that a neighbor boy had raped him. After the neighbor boy admitted to having sexual contact with Timothy, Gary Criss reported the rape to defendant-appellee Carl Blasdel. Gary Criss was active in seeking the prosecution of charges against the neighbor boy, which he felt were not proceeding as fast as they should. Officer Blasdel and defendant-appellee Daniel Lance investigated the rape allegations and interviewed Timothy on a number of occasions. During the course of the officers' investigation, Timothy changed his story several times.
On July 22, 1983, Timothy telephoned Officer Blasdel and stated that his father and grandfather, Gary and Everett Criss, had each raped him twice. Timothy then went to the police station and gave a statement to that effect. On July 25, 1983, Myra Criss telephoned Officer Lance and stated that Gary Criss was leaving the jurisdiction. Lance obtained an arrest warrant for Gary and arrested him at his home. David Criss also made a statement on July 25 that his father had attempted to rape him. Myra Criss said that her sons had made similar statements to her.
The grand jury indicted Gary and Everett Criss on August 4, 1983 for raping Timothy and corrupting him with drugs. Gary Criss was also indicted for the attempted rape of David Criss. On August 5, David recanted his previous statement accusing his father of attempted rape. These charges against Gary and Everett were later dismissed.
On August 11 and 24, 1983, Timothy, David, and Myra Criss voluntarily underwent polygraph examinations. Gary Criss also underwent a polygraph examination by a private examiner. The results, according to the examiners, indicated that their statements were truthful, except for some details by Timothy.
On November 14, 1983, the Summit County Grand Jury reindicted Gary and Everett and they went to trial on two counts of rape each. A jury acquitted Gary and Everett on all counts.
Gary and Everett Criss commenced this action against Officers Blasdel and Lance, and Myra Criss on July 10, 1984 in the Court of Common Pleas of Summit County. At trial, defendants-appellees attempted to introduce into evidence the polygraph examination results of Timothy, David, Myra, and Gary as relevant evidence to their defense to the malicious prosecution claim. The trial judge forbade any mention of the polygraph evidence and excluded the polygraph examination results.
The jury found in favor of Gary and Everett, awarding compensatory and punitive damages against defendants-appellees. The total damage award was $35,996 compensatory and $2,714,000 punitive. The trial court granted a motion for remittitur with respect to a portion of the compensatory and punitive damages against the defendant-appellee Myra Criss. The defendant Springfield Township Police Department was dismissed from the action.
On defendants-appellees' appeal, the court of appeals reversed and remanded for a new trial but did not rule on all the assignments of error. This court accepted jurisdiction and remanded to the court of appeals for resolution of the unresolved assignments of error. See Criss v. Springfield Twp. (1989), 43 Ohio St.3d 83, 538 N.E.2d 406. The court of appeals again reversed and remanded to the Summit County Court of Common Pleas for a new trial, holding that it was reversible error to exclude the polygraph evidence. The appellate court also held that the trial judge gave an erroneous instruction on the definition of "malice."
The cause is before this court pursuant to the allowance of a motion to certify the record.
Grisi Riegler and Charles E. Grisi, for appellants.
Nukes Perantinides Co., L.P.A., Paul G. Perantinides, Elizabeth B. Manning and Samuel G. Casolari, Jr., for appellees Springfield Township Police Department, Carl Frank Blasdel and Daniel Lance.
John O. McIntyre, Jr. and Linda Tucci Teodosio, for appellee Myra Criss.
For the reasons which follow, we affirm the judgment of the court of appeals and remand the cause for a new trial.
The primary issue is whether polygraph tests given to witnesses by police officers during the course of a criminal investigation should be admissible to show the officer's state of mind where the officer is the defendant in a malicious prosecution action. Our analysis begins with a discussion of the essential nature of the tort of malicious prosecution.
The tort of malicious criminal prosecution is the right to recover damages for the harm caused to a defendant in a criminal case by the misuse of criminal actions. Trussell v. General Motors Corp. (1990), 53 Ohio St.3d 142, 144, 559 N.E.2d 732, 734; Pope v. Pollock (1889), 46 Ohio St. 367, 368-371, 21 N.E. 356, 356-357; Prosser Keeton, The Law of Torts (5 Ed. 1984) 870, Section 119 ("Prosser"). We recently clarified the elements of a claim of malicious criminal prosecution in Trussell, supra. In order to prevail the plaintiff must prove the following elements: (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused. Id.
The requirement of malice turns directly on the defendant's state of mind. Malice is the state of mind under which a person intentionally does a wrongful act without a reasonable lawful excuse and with the intent to inflict injury or under circumstances from which the law will infer an evil intent. Black's Law Dictionary (6 Ed. 1990) 956. See, also, Page v. Miller (1895), 13 Ohio C.C. 663, 669, 6 Ohio C.D. 676, 680; Adams v. State (1910), 11 Ohio N.P.(N.S.) 11, 13, 25 Ohio Dec. 77, 79; Skarbinski v. Henry H. Krause Co. (C.A. 6, 1967), 378 F.2d 656, 658; Brown v. Monticello State Bank (Iowa 1984), 360 N.W.2d 81, 87; Eaves v. Broad River Elec. Coop., Inc. (1982), 277 S.C. 475, 479, 289 S.E.2d 414, 416. For purposes of malicious prosecution it means an improper purpose, or any purpose other than the legitimate interest of bringing an offender to justice. Black's, supra; Prosser, supra, at 883, Section 119; Hickland v. Endee (D.C.N Y 1983), 574 F. Supp. 770, 778; Sanders v. Daniel Internatl. Corp. (Mo. 1984), 682 S.W.2d 803, 807; Chittenden Trust Co. v. Marshall (1986), 146 Vt. 543, 550, 507 A.2d 965, 970.
The finder of fact, in evaluating a decision to prosecute, needs to know the basis upon which the decision was made. If the basis for prosecution cannot be shown, those who made the decision will appear to have acted with no basis — that is, maliciously. Frequently a police investigation will uncover evidence which may not be admissible in a criminal trial. Yet that inadmissible evidence can and often should be evaluated in deciding whether to prosecute. Examples include the results of a faulty search and seizure, hearsay, technically flawed confessions, and witness statements. Though not admissible in the criminal trial, such evidence may have relevance in showing whether the decision to prosecute was undertaken maliciously.
With this background, we turn to the specific question of whether the trial judge erred in excluding the polygraph examinations and any mention of their results in the present case. As a general rule, polygraph evidence is not admissible at trial absent a stipulation of the parties. State v. Souel (1978), 53 Ohio St.2d 123, 7 O.O. 3d 207, 372 N.E.2d 1318; Brown v. Best Products Co. (1985), 18 Ohio St.3d 32, 18 OBR 69, 479 N.E.2d 852.
In Souel, supra, this court adopted procedural safeguards as a prerequisite to the admission of polygraph evidence in a criminal trial for purposes of impeachment or corroboration. We did so because the reliability and accuracy of polygraph examinations are open to question. Appellants urge that because appellees did not follow the requirements established in Souel, the polygraph evidence must be excluded in the case before us.
The procedures we adopted in Souel were as follows: (1) a written stipulation signed by the parties and providing for defendant's submission to the test and its subsequent admission at trial, (2) the right of the opposing party to cross-examine the polygraph examiner regarding his or her qualifications, the conditions under which it was administered, and the possibility of error, and (3) a limiting instruction to the jury that the examiner's testimony does not tend to prove or disprove any element of the crime with which the defendant is charged and that the jury should determine the weight and effect of his testimony. In addition to these procedures we determined that the admission of the test results is subject to the discretion of the trial court, who may refuse to accept the polygraph evidence if he is not convinced of the examiner's qualifications or the conditions under which the test was conducted. Id. We adopted these requirements in order to "insure control over what is generally recognized as the single most important variable affecting the accuracy of the polygraph test results, viz.[,] the polygraph examiner." Id. at 133, 7 O.O. 3d at 212, 372 N.E.2d at 1323. With this procedural foundation in place, we determined that the polygraph results would have a probative value in determining whether an examinee was deceptive during interrogation. Id. at 133, 7 O.O. 3d at 212, 372 N.E.2d at 1323-1324.
We disagree. The circumstances of the present case are distinguishable from Souel. In Souel a criminal defendant requested a polygraph examination after pleading not guilty to charges of aggravated murder and aggravated robbery. Id. at 124, 7 O.O. 3d at 207, 372 N.E.2d at 1319. Although he had signed a written stipulation agreeing to its admission, prior to trial the defendant moved to suppress the results of his polygraph. Id. at 124-125, 7 O.O. 3d at 207-208, 372 N.E.2d at 1319-1320. In contrast to Souel, the circumstances here do not involve a proceeding in which polygraph test results are being offered for the purpose of corroborating or impeaching testimony at trial. Instead, the police officers in the instant case seek to defend against a claim of malicious prosecution by presenting the jury with evidence of the investigation they conducted and the information they had before them when they decided to prosecute. The ultimate issue is the state of mind of the police officers in their determination of probable cause to prosecute Gary and Everett Criss. Thus, the concern we expressed in Souel is not present here. Although the case law is scant, the Supreme Court of Kentucky has drawn the same distinction and has come to the same conclusion. Holdaway Drugs, Inc. v. Braden (Ky. 1979), 582 S.W.2d 646, 650.
Appellants also contend that our decision in Brown v. Best Products Co. (1985), 18 Ohio St.3d 32, 18 OBR 69, 479 N.E.2d 852, stands for the proposition that, in a claim of malicious prosecution, polygraph test evidence is not admissible to show malice or state of mind in the initiation or continuation of criminal prosecutions, in the absence of a stipulation between the parties. Upon comparison of the facts in the present case with those in Brown, we find significant differences.
The requirement of a stipulation between the parties as a predicate to the admissibility of polygraph results, as set forth in Souel, does not work in a malicious prosecution case. The rule will not work because the polygraph examinations are part of another case — the underlying criminal case. Thus, the polygraph examinations will be taken before the parties align themselves in the malicious prosecution action; indeed, before the cause of action arises. To adhere to Souel in such cases would mean that polygraph evidence would never be admissible.
Brown involved a claim of conspiracy to maliciously prosecute and falsely imprison, in which the plaintiff attempted to introduce her own polygraph test results, in which she had maintained her innocence, as proof of the defendant's malice in pursuing criminal charges against her. Id. at 35, 18 OBR at 73, 479 N.E.2d at 856. As in Souel, the difference between Brown and the case at bar is that in Brown a party attempted introduction of her own polygraph test results to buttress the truth of her testimony at trial. Here, Officers Blasdel and Lance sought to introduce polygraph evidence to show that the determination of probable cause to prosecute was based upon something more than spite or whim. The officers have not offered polygraph test results to corroborate their own trial testimony.
Appellants make an interesting argument when they urge that, even if probative, the polygraph evidence is too prejudicial for consideration by a jury. In essence, this is an argument that the polygraph evidence is too relevant. If polygraph evidence is so potent that it would cause the ordinary person to accept it against other evidence, it would seem that the officers who considered and proceeded on the basis of polygraph results should be able to offer that as evidence that they did not act maliciously.
Appellants counter by arguing that the admission of polygraph evidence gives unwarranted and improper credibility to (or impeachment of) the testimony of the polygraph examinee. We are satisfied that an instruction from the trial court can direct the jury to consider the evidence only as it relates to defendants' state of mind and not as proof that the witness-examinee was lying or telling the truth.
Accordingly, we hold that where polygraph examinations are conducted as part of a police investigation prior to the instigation of criminal proceedings, such evidence is admissible at trial to show the state of mind of police officers who are defending against a claim of malicious prosecution. This is an exception to the general rule that polygraph evidence is not admissible without a stipulation between the parties. Thus, Officers Blasdel and Lance were entitled to put before the jury the polygraph evidence which they considered in deciding to prosecute.
Likewise, Myra Criss is entitled to have the polygraph evidence of Timmy and David Criss admitted in her defense. The polygraph evidence is relevant to show Myra's state of mind in furthering the prosecution of Gary and Everett Criss. Myra Criss was aware that the boys had each taken a polygraph examination and she was aware that the results indicated no deception on their part. This is relevant to her contention that she did not act maliciously.
The admissibility of the polygraph test results concerning Myra Criss herself presents a more complicated issue. Because she is both a defendant and an examinee, the introduction of her polygraph test results raises the concerns addressed in Brown. Myra Criss's polygraph test and results are relevant to a determination of the police officers' state of mind on the issue of malice.
But Myra Criss is not entitled to support her trial testimony by showing that she passed a lie detector test. A decision must be made as to whether an instruction limiting the relevancy of the Myra Criss polygraph evidence could be effective. In making this decision, the probative value of the purpose for which the evidence would be admitted must be weighed against the danger of prejudice from improper consideration of the evidence by the jury. These difficult decisions should be made in the first instance by the trial judge. They lie within the sound discretion of the trial judge and must be made in the context of the totality of circumstances presented by each specific case.
Finally, appellants argue that the polygraph evidence would confuse the jury about whether Gary and Everett Criss are guilty or innocent of raping Timothy even though they were acquitted at a criminal trial. We do not find this argument persuasive. Acquittal does satisfy one of the three essential elements of a malicious prosecution claim, specifically, that there was a termination of the prosecution in favor of the accused. Trussell, supra, syllabus. However, an acquittal does not establish a defendant's innocence but only shows the prosecution's failure to prove the criminal defendant's guilt beyond a reasonable doubt. But, the quantum of evidence which indicates that the defendant did the acts for which he was charged is always an issue in malicious prosecution. Accordingly, evidence should not be excluded in a malicious prosecution trial simply because such evidence may also be relevant to the determination of guilt or innocence in the underlying criminal trial.
Applying the analysis we have made to the case before us, we find that the trial court erred when it excluded reference to the polygraph examinations and their results insofar as such evidence relates to the malicious prosecution claim based on the November 14, 1983 indictments. We therefore affirm the judgment of the court of appeals which reversed and remanded for a new trial.
Plaintiffs-appellants have alleged two claims of malicious prosecution against defendants-appellees. They base their first claim on the August 4, 1983 indictments and their second claim on the November 14, 1983 indictments. Because the polygraph examinations, which were taken on August 11 and 24, were not before the police officers when they commenced criminal proceedings resulting in the August 4 indictments, that polygraph evidence can have no relevance to the officers' state of mind for the first malicious prosecution claim. However, the verdict and judgment did not apportion damages between claims arising before and after the polygraph examinations. Therefore a new trial on both claims is required.
Appellants also contend that the appellate court erred when it held that the trial court's jury instructions on the issue of punitive damages were reversible error because they did not comply with Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174. Preston had not been decided at the time this case was tried. Even so, the instructions, taken as a whole, might survive appellate challenge; but it is unnecessary for us to address this issue in light of our holding.
Judgment affirmed.
MOYER, C.J., HOLMES, WRIGHT and RESNICK, JJ., concur.
SWEENEY and DOUGLAS, JJ., dissent.
I dissent. I would reverse the judgment of the court of appeals and reinstate the verdict of the jury, as remitted, and the judgment of the trial court.
My concern is twofold. Once again, a majority of this court condones the taking away of a jury verdict. The continued judicial erosion of this most precious right is both alarming and discouraging. In addition, the changing of the law by the majority on the admissibility of results of polygraph examinations creates needless confusion, an unfair retroactive application of the law and a dangerous precedent.
SWEENEY, J., concurs in the foregoing dissenting opinion.