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11/25/75 PEOPLE v. REAGAN

November 25, 1975

PEOPLE
v.
REAGAN



J. W. Fitzgerald, J. T. G. Kavanagh, C. J., and Williams and Levin, JJ., concurred with Fitzgerald, J. Lindemer, J., took no part in the decision of this case. M. S. Coleman, J. (dissent).

SYLLABUS BY THE COURT

Opinion of the Court

1. -- Prosecuting Attorneys -- Agreement -- Polygraph Examination -- Nolle Prosequi.

The prosecutor's office, in entering into an agreement whereby a prosecution for assault with intent to do great bodily harm less than murder and torturing a child would be dismissed if the defendant passed a polygraph examination, gave a pledge of public faith which became binding when the examination was passed and the nolle prosequi order was approved by the trial Judge.

2. -- Prosecuting Attorneys -- Polygraph Examination -- Judicial Notice.

Judicial notice may be taken of the fact that polygraph use by prosecutors' offices, principally prior to the issuance of a complaint, is not uncommon; however, ordinarily, Dispositional use of polygraph test results should not occur after judicial proceedings have been instituted.

3. -- Prosecuting Attorneys -- Bargaining -- Consideration.

The standards of commerce do not govern, and should not govern, the administration of criminal Justice, and analogy to contract law is inappropriate; the concept of "consideration" has no place in determining whether a bargain between the prosecution and a defendant is binding.

4. District and Prosecuting Attorneys -- Nolle Prosequi.

The prosecutor alone has the power to seek an order of nolle prosequi.

5. -- District and Prosecuting Attorneys -- Polygraphs -- Nolle Prosequi -- Discretion -- Record.

The nature of an agreement by which a prosecutor agreed to dismiss a prosecution if the defendant passed a polygraph examination should have been stated by the prosecutor on the record before the trial court and, in considering the prosecution request for an order of nolle prosequi, the court should have exercised informed discretion in deciding whether the prosecution acted within its authority in seeking the order.

6. -- Prosecuting Attorneys -- Polygraph Examination -- Public Policy.

It was within the power of the prosecutor to enter into an agreement whereby a prosecution would be dismissed if the defendant passed a polygraph examination, and the contention that the agreement per se is against public policy is rejected; the trial Judge and the prosecutor, in entering the nolle prosequi, were the appointed arbiters of public policy and a pledge of public faith gave force to the agreement.

Dissenting Opinion

Coleman, J.

7. -- Prosecuting Attorneys -- Nolle Prosequi -- Agreement.

A prosecutor may rectify an improvident consent to an order of nolle prosequi after preliminary examination and binding over to circuit court where the defendant has risked nothing in making an agreement that the case would be dismissed if the defendant passed a polygraph test, at worst the defendant would remain in the same legal posture if the prosecutor is allowed to withdraw his consent, and the prosecution has not gained an unfair advantage.

The opinion of the court was delivered by: Fitzgerald

E. J. Reagan was charged with assault with intent to do great bodily harm less than murder and with torturing a child. The prosecutor's office agreed to dismiss the prosecution if defendant passed a polygraph examination. Defendant passed the examination and, pursuant to the agreement, the prosecutor sought an order of nolle prosequi, which was approved by the trial court. The prosecutor's office then reinstated the prosecution, having obtained information that the polygraph examination may have been unreliable. Defendant was tried in the Genesee Circuit Court, Donald R. Freeman, J., and convicted on both charges. The Court of Appeals, J. H. Gillis, P. J., and R. B. Burns and R. H. Campbell, JJ., reduced the minimum sentence and affirmed (Docket No. 14609). Defendant appeals. Held:

1. The prosecutor's office, in entering the agreement with defendant, gave a pledge of public faith which became binding when the nolle prosequi order was approved by the trial Judge.

2. The nature of the agreement should have been stated by the prosecutor on the record before the trial court, and the court, in considering the prosecution request for an order of nolle prosequi, should have exercised informed discretion in deciding whether the prosecution acted within its authority in seeking entry of the order.

3. It was within the power of the prosecution to enter into the agreement; the contention that the agreement per se is against public policy is rejected.

Conviction reversed and defendant discharged.

Coleman, J., Dissented on the grounds that the defendant had risked nothing by the agreement to take the test. He remained in the same legal posture when the prosecutor rescinded his agreement to dismiss the prosecution, and the prosecution has not gained an unfair advantage.

The principal issue on this appeal concerns the binding effect of an agreement, entered into by defendant and the Genesee County Prosecutor's office, to dismiss the prosecution if defendant passed a polygraph examination. Defendant passed the polygraph examination. Pursuant to the agreement, the prosecutor sought an order of nolle prosequi. Such an order was approved by the trial court. The prosecutor's office then reneged on the acknowledged "agreement" and reinstituted prosecution, having obtained information indicating that the polygraph examination of defendant may have been unreliable. Defendant was subsequently convicted of child torture and assault with intent to do great bodily harm less than murder. We conclude that the prosecutor's office, in entering into the agreement with defendant, gave a pledge of public faith which became binding when the nolle prosequi order was approved by the trial Judge. Defendant is discharged.

I.

Defendant was initially arrested and charged with assault to do great bodily harm less than murder and torturing a child. *fn1 After a duly conducted preliminary examination he was bound over to the Genesee County Circuit Court for trial. On May 17, 1971, he was arraigned on the charges and stood mute. A plea of not guilty was accordingly entered on his behalf.

In July of 1971 defendant, through the initiative of his counsel, submitted to and passed a privately conducted polygraph examination. Subsequently negotiations were entered into with the Genesee County Prosecutor's office and an agreement was reached whereby if defendant passed a polygraph examination given by the Michigan State Police, his prosecution would be dismissed. On September 10, 1971, a polygraph examination of defendant was ...


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