Jennifer Nelson for www.theindianalawyer.com

Four 7th Circuit Court of Appeals judges believed that a man who had evidence admitted at trial of his refusal to take a polygraph test deserves a new trial. The 7th Circuit Thursday denied rehearing David Resnick’s case en banc.

Resnick was convicted of child abuse and firearms charges, which he appealed to the 7th Circuit. In May, a split panel affirmed those convictions. At issue in the Thursday order is the majority’s holding that admitting Resnick’s refusal to take a polygraph was not plain error.

“We have never before held that the refusal to take a polygraph implicates the Fifth Amendment. Moreover, Resnick’s refusal to take a polygraph was mentioned only once by each side during the closing, the evidence against him was very strong and his defense did not depend on his credibility because he did not take the stand at trial,” Chief Judge Diane Wood wrote in the May decision.

Judge William Bauer dissented in the matter, and was one of the four judges who dissented from the denial of rehearing en banc. The other three were Judges Richard Posner, Joel Flaum and Michael Kanne.

“A polygraph is an instrument designed to determine whether the person examined is telling the truth. But polygraphs are not reliable truth-telling tools, and determining credibility is the jury’s duty,” the dissenting judges wrote. “The introduction of and comment on evidence that a suspect refused to take a polygraph test signals to the jury that polygraph evidence is reliable, though it is not, and that the suspect’s refusal to talk evidences consciousness of guilt when courts have consistently held that this is an impermissible inference.”

Allowing that evidence “infected the trial and rendered it unfair, no matter how ‘overwhelming’ the evidence against” Resnick, they continued. “Such tactics should not be tolerated. Reversal would send the right signal; this affirmance sends the wrong one. Resnick deserves a new trial.”

The case is United States of America v. David A. Resnick, 14-3791