This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Donna Rae Goodchild,
Filed August 5, 2003
Martin County District Court
File No. K101814
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103; and
Terry W. Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County Attorney, 923 North State Street, Suite 103, Fairmont, Minnesota 56031 (for appellant)
Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, Minnesota 55113-3724 (for respondent)
Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this pretrial appeal, appellant State of Minnesota challenges the district court’s ruling allowing the questioning of Goodchild and the victim as to whether each was offered and agreed to take polygraph tests. The state claims that this ruling has critically impacted the pending trial, and, accordingly, reversal is warranted. We agree that the district court erred in ruling the polygraph evidence admissible but, because the state has failed to show that the error satisfies the critical-impact standard, we affirm.
On November 24, 2001, respondent Donna Rae Goodchild assaulted her husband, D.G. (the victim), by punching, hitting, scratching, and eventually “tearing open his scrotum,” requiring a suture to repair the open wound. Goodchild claimed she acted in self-defense. The state charged Goodchild with third-degree assault and domestic assault.
On December 26, 2001, the Martin County Attorney sent a letter to Goodchild’s attorney discussing the possibility of Goodchild taking a polygraph test. The letter stated that Goodchild could take a polygraph test if it were conducted by a representative from the Bureau of Criminal Apprehension. The letter further stated that the results of the polygraph would not be admissible at trial, nor would the county attorney make any promises regarding dismissal of the case. Rather, the test results would be “taken into consideration.”
Prior to trial, the district court held a hearing to decide the parties’ motions in limine. The state sought to suppress, among other things, any mention of polygraph testing by Goodchild or the victim. Goodchild sought, among other things, to submit testimony that the state offered each party the opportunity to submit to polygraph testing and whether they each agreed to it. The district court ruled from the bench and later in a written order that it would accept testimonial evidence from Goodchild and the victim of: (1) whether a polygraph was offered; and (2) whether each agreed to submit to testing. The district court specifically prohibited testimony as to whether the test results corroborated either party’s respective theory of the case. This pretrial appeal follows.
The state argues that the district court’s decision critically impacts the pending trial because polygraph testimony will unduly influence the jury. Specifically, the state argues that the jury will be unduly prejudiced by hearing testimony that Goodchild submitted to a polygraph test, but the victim either refused the test, or, for whatever reason, never submitted to one. We agree that the district court’s ruling was in error, but we affirm its decision because the state failed to satisfy the critical-impact standard because it has ample, independent evidence to prosecute Goodchild for third-degree assault and domestic assault.
The “critical impact” standard of review applies in pretrial appeals by the state. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987).
In order to prevail in an appeal from a pretrial order, the state must show clearly and unequivocally that the district court erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.
State v. Jones, 518 N.W.2d 67, 69 (Minn. App. 1994), review denied (Minn. July 27, 1994). Thus, in order to prevail, the state must “clearly and unequivocally” show both that the district court erred by ruling the polygraph testimony admissible and that the error will have a critical impact on the state’s ability to prosecute the defendant successfully. State v. Zanter,535 N.W.2d 624, 630-31 (Minn. 1995).
The threshold issue of whether a suppression order satisfies the critical-impact standard does not require that the order “render the available proof insufficient as a matter of law, or so weak as to effectively destroy a successful prosecution.” State v. Edrozo, 578 N.W.2d 719, 723 (Minn. 1998) (citation omitted). Rather, the standard is that the state may appeal a pretrial suppression order “where the effect is to seriously impede, although not to completely foreclose, continuation of the prosecution.” Joon Kyu Kim, 398 N.W.2d at 551 (quotation omitted). The procedural posture of this case is unique because here, the evidence was admitted, not suppressed. But the same critical-impact standard applies. See, e.g., State v. Barsness, 473 N.W.2d 828, 828 (Minn. 1990) (applying critical-impact standard to appeal from order denying state’s motion to exclude defense evidence); Jones, 518 N.W.2d at 70 (adopting position in Barsness and applying critical-impact standard to admission of defense evidence).
We turn then to critical-impact analysis. Minnesota law is unanimous in the area of polygraph testing—generally, evidence of polygraph testing, that is, results of an actual test, or whether an individual submitted to, or refused to submit to such a test, are inadmissible in civil and criminal trials alike. State v. Opsahl, 513 N.W.2d 249, 253 (Minn. 1994); State v. Perry, 274 Minn. 1, 12, 142 N.W.2d 573, 580 (1966); State v Sullivan, 360 N.W.2d 418, 422 (Minn. App. 1985), review denied (Minn. Apr. 12, 1985). Polygraph test results are inadmissible against a criminal defendant because “such tests have not been proved completely reliable.” Perry, 274 Minn. at 12, 142 N.W.2d at 580 (citation omitted). Moreover, “that such a test was taken or refused by a defendant cannot be brought to the jury’s attention either directly or indirectly.” Id. (citation omitted). When a conviction rests solely on circumstantial evidence, the “erroneous admission” of polygraph evidence “might well be enough to tip the scales against [her].” State v. Kolander, 236 Minn. 209, 222, 52 N.W.2d 458, 465 (1952).
Here, Goodchild framed her argument in terms of witness credibility because the case ultimately turns on Goodchild’s testimony against that of the victim. The district court agreed and ruled that Goodchild’s attorney could elicit testimonial evidence from Goodchild and the victim as to whether the state offered each witness a polygraph test and whether each witness agreed to the test. The district court also ruled, however, that neither the results of the test nor whether the results supported either party’s theory of the case was admissible into evidence.
After examining Minnesota case law, we conclude that the district court erred by ruling Goodchild’s attorney could elicit testimonial evidence at trial as to Goodchild’s and the victim’s polygraph testing, or the lack thereof. See, e.g., Opsahl, 513 N.W.2d at 253 (holding prosecutor’s failure to redact numerous mentions of erroneous polygraph test results was error, though not reversible, where grand jury was presented sufficient independent incriminating evidence); cf. Perry, 274 Minn. at 12, 142 N.W.2d at 580 (prohibition extends to direct or indirect reference of whether defendant took or refused to take polygraph test); Kolander, 236 Minn. at 222, 52 N.W.2d at 465 (holding admission of defendant’s testimony that he refused to submit to polygraph test or truth serum, characterizing each as “hokus pokus,” was reversible error).
Although the district court erred in ruling the polygraph testimony admissible, we nevertheless affirm because the state has not met the requisite critical-impact standard. See, e.g., Jones, 518 N.W.2d at 70 (holding state failed to show court clearly and unequivocally erred in admitting defense evidence thus no critical impact).
In a typical appeal from a pretrial order, we would analyze critical impact from the standpoint of whether the suppressed evidence reduces the likelihood of a successful prosecution. In doing so, the Minnesota Supreme Court has noted that to fully appreciate the impact that suppressing the evidence at issue will have on the state’s case, we must consider the state’s evidence as a whole. Zanter, 535 N.W.2d at 631. Although here, the question is whether the admitted evidence will reduce the likelihood of a successful prosecution, we see no reason not to apply the same basic critical-impact analysis. Thus, to fully appreciate the impact that admitting the challenged testimony will have on the state’s case, we still must consider the state’s evidence as a whole. Id.
In so doing, we do not believe the state has demonstrated that the admission of the polygraph testimony will seriously impede Goodchild’s prosecution. Indeed, looking at the state’s evidence as a whole reveals that the state has an abundance of compelling, independent evidence to support a successful prosecution, including: (1) the police officers’ testimony that they interviewed the victim at the hospital and noticed that he had dried blood, bruising, and discoloration in the left-eye area of his face and that his scrotum had been ripped open. The officers observed that the injury to the scrotum was semi-circle shaped, in the shape of a person’s finger; (2) the victim told the officers he pushed and struck Goodchild and that respondent grabbed him by the scrotum and ripped it; (3) Goodchild told the officers that the victim hit her in the face, chipping her tooth, and that she acted in self-defense. The officers, however, observed no visible injuries on her; and (4) the officers seized bloody clothing, including a pair of shorts, from the Goodchild home and the blood on the clothing was particularly heavy in the genital area. Unlike Kolander and Zanter, this is not a case where a conviction rests solely on circumstantial evidence and where polygraph evidence might “tip the scales” for or against Goodchild. To the contrary, the state has strong direct and circumstantial evidence—wholly unrelated to the polygraph testimony—with which to pursue this prosecution.
Based on these facts, the state has not demonstrated that admission of the polygraph testimony would have a critical impact on its prosecution of this case.
 Goodchild’s attorney claims the victim was offered a polygraph test by the state but he refused. But an attorney’s arguments are not evidence. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980); State v. Bright, 471 N.W.2d 708, 712 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991). The state, however, does obliquely acknowledge in its memorandum supporting its motion in limine that “there were discussions” between the parties about having the victim take a polygraph test, but that “never occurred.”
 A narrow exception to the ban against polygraph testing exists with respect to coerced confessions. State v. Riley, 568 N.W.2d 518, 527 (Minn. 1997); State v. Schaeffer, 457 N.W.2d 194, 197 (Minn. 1990). A coerced confession is not at issue here—Goodchild readily admits she assaulted the victim, but argues that she acted in self-defense.