I N T H E

Indiana Supreme Court

Supreme Court Case No. 23S-CR-163

State of Indiana,

Appellant (Plaintiff below),

–v–

Bryan D. Lyons,

Appellee (Defendant below).

Argued: November 3, 2022 | Decided: June 27, 2023

Interlocutory Appeal from the Lawrence Superior Court

No. 47D01-1707-F1-973

The Honorable John M. Plummer, III, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 21A-CR-2187

Opinion by Justice Molter

Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.
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Molter, Justice.

When police were investigating whether Bryan D. Lyons molested his 

daughter, he agreed with the prosecutor that he would sit for a polygraph 

and that the State of Indiana could offer the results into evidence at trial in 

any resulting prosecution. But on the eve of trial, the deputy prosecutor 

disclosed that she would not do so because she had just learned that when

Sergeant Dan Gress administered the exam years earlier, he had concerns 

about Lyons’ mental state, so he unilaterally changed the exam to a “nonstipulated,” inadmissible investigatory examination. Sergeant Gress had 

omitted those facts when testifying at a prior suppression hearing about

the admissibility of the polygraph examination and Lyons’ related 

statements, and he failed to provide prosecutors his notes reflecting that

change. Based on this late disclosure, the trial court continued the trial and 

released Lyons from custody. And as a discovery sanction for Sergeant 

Gress misleading the parties and the court, the judge suppressed the 

incriminating statements Lyons made to Sergeant Gress immediately after

the exam.

Through an interlocutory appeal, the Court of Appeals affirmed with a 

unanimous, published opinion. The State then requested that we “grant 

transfer and affirm that the exclusion of admissible evidence as a 

discovery violation sanction is just only when that violation has been 

blatant and deliberate or it causes substantial prejudice to the defendant.” 

Pet. to Trans. at 5. We grant transfer today and hold that before excluding 

evidence as a Trial Rule 37 discovery sanction, a trial court must find that

(1) the exclusion is the sole remedy available to avoid substantial 

prejudice, or (2) that the sanctioned party’s culpability reflects an 

egregious discovery violation. The trial court’s order enforced Trial Rule 

37 within those limits, so we too must affirm. 

Facts and Procedural History 

Three days after Lyons’ young daughter reported to her grandmother

that Lyons sexually abused her, Bedford Police Detective Kevin Jones 

interviewed Lyons at the police department. Lyons denied the allegation

and agreed to sit for a polygraph. While polygraph results are generally 
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inadmissible at trial, Lyons, still unrepresented at this point, signed a 

written stipulation with the prosecutor agreeing the results of his

polygraph would be admissible if the State ultimately charged him with a 

crime.

The State and Lyons agreed Sergeant Gress would administer the 

polygraph examination at the Jasper Indiana State Police Post a few days 

later. Detective Jones observed from another room, and Sergeant Gress 

began the examination by reviewing the polygraph waiver and consent 

form with Lyons, which advised him of the voluntary nature of the 

polygraph examination and his constitutional rights under Miranda v. 

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Both Lyons and 

Sergeant Gress signed the document, and based on the executed 

stipulation, Sergeant Gress wrote “stipulated” at the top of the polygraph 

examination form.

Sergeant Gress then questioned Lyons to determine his mental and 

physical suitability for the examination. In response to that questioning, 

Lyons revealed he had been diagnosed with generalized anxiety, attention 

deficit, personality, and bipolar disorders. He also explained he saw 

“spiritual shadows” that spoke to him two or three days before the 

examination. Tr. Vol. II at 60–61. While Lyons confirmed he had “a grasp 

for reality,” Sergeant Gress concluded Lyons was not a suitable candidate 

for an “evidentiary polygraph,” the results of which are admissible in 

court under an agreement between the State and the defendant, so he 

unilaterally converted the examination to an “investigatory” polygraph, 

the results of which are not admissible in court. Id. at 61. Yet Sergeant 

Gress did not change the “stipulation” notation on the polygraph 

examination form to reflect a non-stipulated, investigatory polygraph.

At the end of the examination, Sergeant Gress concluded Lyons’ results 

revealed “significant reactions” to questions about his daughter that were 

“very close to deception.” Id. at 66. Sergeant Gress then interviewed Lyons 

about those reactions, and within minutes Lyons made incriminating 

statements. Once the interview ended, Sergeant Gress scanned his official 

report, the polygraph examination form, and his handwritten notes into a 
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case management system. He placed the original documents in his paper 

file. 

A couple of weeks later, the State charged Lyons with child molesting, 

a Level 1 felony. The trial court appointed a public defender to represent 

Lyons, and defense counsel moved to suppress the polygraph results and 

related statements to the police. Lyons’ motion argued, among other 

things, that he “was illegally coerced into giving an untruthful statement 

to officers as a result of psychological and mental manipulation,” and “[i]n 

addition to being obtained unconstitutionally, the statements are 

inherently unreliable and therefore should not be admitted as evidence” at 

trial. App. Vol. 2 at 108. Counsel also requested a pre-trial hearing to 

determine whether Lyons’ statements “were voluntary and reliable.” Id.

The trial court set an evidentiary hearing on Lyons’ motion to suppress. 

In preparation, Sergeant Gress reviewed the documents in the case

management system and the video of the polygraph examination. He 

added handwritten notes to the original polygraph examination form in 

his paper file and, remembering he had changed the exam to a nonstipulated polygraph, he wrote “non-stipulated” at the top. But he did not 

scan a copy of the document with his new handwritten notes into the case

management system. Since the prosecutor’s office only had access to those 

documents in the case management system, it was unaware of his paper 

file and new handwritten notes. 

The parties appeared for the hearing on Lyons’ motion, and Sergeant 

Gress was one of the witnesses. As Sergeant Gress testified, he referred to 

his notes. He explained that certain circumstances might lead to a 

determination that a person is not a suitable candidate for a polygraph, 

such as if they suffered from seizures, heart attacks, or mental issues that 

might compromise their ability to understand reality. Sergeant Gress

recalled that Lyons disclosed his mental health diagnoses and that he saw 

spiritual shadows which spoke to him, but Sergeant Gress was

nonetheless “comfortable” having Lyons sit for the test. Tr. Vol. II at 64.

Even though Sergeant Gress testified about the admissible nature of a 

stipulated polygraph, provided a general step-by-step recollection of the 

nearly four-and-a-half hours he spent with Lyons before and after the 
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examination, and relied on his notes while testifying, he never mentioned 

that he had changed the polygraph to a non-stipulated, investigatory 

examination because of his concerns about Lyons’ mental condition. 

After the hearing, and based in part on Sergeant Gress’ testimony, the 

trial court denied Lyons’ motion to suppress. Lyons petitioned for an

interlocutory appeal, which the trial court certified, but the Court of 

Appeals declined jurisdiction.

The trial court set a five-day jury trial to begin on July 19, 2021, which 

was roughly four years after Lyons had been charged and a year after the

hearing on the motion to suppress. As the deputy prosecutor prepared for 

trial, she spoke with Sergeant Gress. For the first time, just a few days 

before trial, Sergeant Gress revealed to the prosecutor that he had 

unilaterally changed the polygraph from a stipulated, evidentiary 

examination to a non-stipulated, investigatory examination based on his 

concerns about Lyons’ mental condition, and he provided a copy of the 

handwritten notes he made in preparation for the suppression hearing, 

which reflected that change. The prosecutor promptly provided this 

information and a copy of the document with Sergeant Gress’ 

handwritten notation to defense counsel. 

In light of these developments, Lyons moved to continue his trial, and

he asked the trial court to suppress his statements related to the polygraph 

examination based on the State’s untimely disclosure of exculpatory 

evidence. Although the jury was present and ready for trial, the trial court 

granted Lyons’ motion for continuance and scheduled a suppression 

hearing. In the meantime, Lyons was released from custody. The trial 

court also asked the State to investigate whether Sergeant Gress had 

committed perjury during the suppression hearing, emphasizing that the 

court found the late disclosure “very troubling” because “Sergeant Gress 

knew what the issues were when he testified” at the suppression hearing.

Id. at 103. The court also explained that it believed “there is a substantial 

likelihood that [the court] has been misled by Sergeant Gress” based on 

the information then available to the court. Id. at 126–27. The court was 

especially concerned that when “law enforcement in general[] keep 
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material evidence from the [p]rosecutor,” “[t]hat’s how innocent people 

wind up in prison.” Id. at 127.

A few weeks later, the trial court held another suppression hearing to 

determine whether Lyons’ rights were violated because the State failed to

timely disclose that Sergeant Gress “had made a unilateral determination 

that the polygraph stipulation was invalid” after Lyons revealed he had 

recently seen shadows on the wall which spoke to him just days before the

examination. App. Vol. 3 at 14. At that hearing, Sergeant Gress 

acknowledged that when he testified at the previous suppression hearing

he understood that questions from the State, defense counsel, and the 

court were all directed at Lyons’ mental state during the polygraph; that 

he referred to his notes during that testimony; and that he never 

mentioned during his testimony that he had unilaterally changed the 

polygraph examination from stipulated to non-stipulated. He testified that 

he assumed the prosecutor was aware of the change because, when he 

changed the exam from stipulated to non-stipulated, he instructed 

Detective Jones to inform the prosecutor. 

Detective Jones also testified at the hearing, but his recollection was 

much different. He did not recall Sergeant Gress informing him of a 

decision to change the examination to a non-stipulated investigatory 

exam, and he believed he likely would have remembered it if that had 

happened. In fact, Detective Jones did not recall any time in his career 

when a polygraph examiner switched an exam from a stipulated

evidentiary examination to a non-stipulated investigatory examination, 

and he was unsure what he would do in those circumstances. He 

explained that, at a minimum, he would contact the prosecutor’s office for 

guidance because the stipulation is an agreement between the prosecutor 

and the defendant, and the police are not a party.

Following the hearing, the court entered a detailed order sanctioning 

the State for its discovery violation by “excluding any and all evidence 

generated or acquired by S[ergeant] Dan Gress,” including Lyons’ 

agreement to take a polygraph, the polygraph, and the post-polygraph 

interview. Id. at 17. After the trial court certified the State’s motion for 

interlocutory appeal, the Court of Appeals accepted jurisdiction and 
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affirmed. State v. Lyons, 189 N.E.3d 605, 607 (Ind. Ct. App. 2022). In a 

published opinion, a unanimous Court of Appeals explained it was 

“unconvinced by the State’s argument that the discovery violation 

resulted in no significant prejudice to Lyons’s defense because the 

argument fails to acknowledge the broader implications that pretrial 

discovery violations may have on a case.” Id. at 611. For example, the 

court explained, “[i]t is easy to imagine a scenario in which Lyons entered 

into a plea agreement with the State before ever finding out that the 

polygraph results would not have been admissible in a trial.” Id.

The State then petitioned our Court for transfer, which we now grant, 

vacating the Court of Appeals’ opinion. Ind. Appellate Rule 58(A). 

Standard of Review

Trial courts maintain broad discretion to manage discovery, and that 

includes sanctioning parties to enforce discovery rules and orders. 

Williams v. State, 714 N.E.2d 644, 649 (Ind. 1999). “We presume that the 

trial court will act in accord with what is fair and equitable in each case, 

and thus we will only reverse if the trial court’s decision is clearly against 

the logic and effect of the facts and circumstances before the court, or if 

the trial court has misinterpreted the law.” Wright v. Miller, 989 N.E.2d 

324, 330 (Ind. 2013) (quotations omitted). 

Discussion and Decision

The issue before us is whether the trial court abused its discretion by 

excluding the State’s evidence as a discovery sanction. We conclude the 

trial court did not because it based its sanction on a finding that Sergeant 

Gress misled the court, and that finding is reasonably supported by the 

record.

Trial Rule 37 authorizes courts to impose sanctions for discovery 

violations through “such orders in regard to the failure as are just,” Ind. 

Trial Rule 37(B)(2), including orders prohibiting a party “from introducing

designated matters in evidence,” T.R. 37(B)(2)(b); see also Fields v. State, 679 
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N.E.2d 1315, 1319 (Ind. 1997).

1 For sanctions addressing a party’s late 

disclosure of evidence, our cases have long recognized three governing 

principles: (1) we generally treat late disclosures the same whether the 

State or the defendant committed the discovery violation; (2) the two 

typical remedies are to continue the trial or to exclude the evidence; and 

(3) we exclude evidence only if (a) that is the sole remedy available to 

avoid substantial unfair prejudice, or (b) the discovery violation was 

intentional, flagrant, in bad faith, or otherwise reprehensible. Wiseheart v. 

State, 491 N.E.2d 985, 988–92 (Ind. 1986);

2 see also Armstrong v. State, 499 

N.E.2d 189, 191 (Ind. 1986) (discussing the exclusion of evidence for 

discovery violations which are “flagrant and deliberate,” “misleading,” or 

in “bad faith”); Thompson v. State, 492 N.E.2d 264, 274 (Ind. 1986)

(discussing violations which are “grossly misleading” or “demonstrate[]

bad faith”).

Courts treat defendants and the State the same because “the office of 

criminal discovery in Indiana is reciprocity,” the discovery rules must “be 

fairly balanced between the State and the defendant,” and the discovery 

rules are “most effective” through equal treatment. Wiseheart, 491 N.E.2d 

at 990. Courts exclude evidence only as a last resort because that remedy 

frustrates a trial’s truth-seeking function. Id. Thus, “[w]hile sanctions for 

failure to comply with discovery are within the trial court’s discretion, the 

primary factors which a trial court should examine are whether the breach 

was intentional or in bad faith and whether substantial prejudice has 

resulted.” Id. at 988. 

1 Criminal Rule 21 provides that Indiana’s “rules of trial and appellate procedure shall apply 

to all criminal proceedings,” so long as they do not conflict with any other rules from our 

Court. Ind. Crim. Rule 21; see also Minges v. State, 192 N.E.3d 893, 899 (Ind. 2022) (noting the 

amendment to Criminal Rule 21, effective March 1, 1997, which incorporated the trial rules 

into the criminal rules). 

2 At oral argument, defense counsel argued Wiseheart does not apply because it predates our

amendment to Criminal Rule 21 incorporating Trial Rule 37 into our criminal rules. But we 

have continued to embrace these governing principles long after we published amended 

Criminal Rule 21 in 1997. Cain v. State, 955 N.E.2d 714, 718 (Ind. 2011); Rohr v. State, 866 

N.E.2d 242, 245 (Ind. 2007); S.T. v. State, 764 N.E.2d 632, 635–36 (Ind. 2002); Warren v. State, 725 

N.E.2d 828, 832–33 (Ind. 2000); Fields v. State, 679 N.E.2d 1315, 1319 (Ind. 1997).
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Here, the State acknowledges its disclosure to Lyons that Sergeant 

Gress had unilaterally changed the polygraph examination to a nonstipulated, investigatory polygraph based on concerns about Lyons’ 

mental condition was exceedingly late under the local rules governing 

discovery and was therefore a discovery violation. But it argues any 

prejudice was cured by releasing Lyons from custody and continuing the 

trial. As for the trial court’s concern that the State was on the cusp of 

admitting the polygraph at trial, and the Court of Appeals’ concern that 

Lyons could have been misled into pleading guilty, the State argues these

sorts of “hypothetical” prejudice are not enough to exclude evidence. Pet. 

to Trans. at 14.

We agree with that much. When considering whether an order 

excluding evidence is the sole remedy to avoid substantial prejudice, a

court can only consider real—not hypothetical—prejudice. And 

continuing the trial in this case cured the prejudice to Lyons. But the trial 

court did not base its sanction solely on prejudice to Lyons; it also 

concluded that Sergeant Gress’ conduct amounted to an egregious 

discovery violation. 

The State acknowledges a trial court may exclude evidence where the 

“discovery violation was blatant and deliberate.” Id. at 5. That is because 

“[a] trial judge has the responsibility to direct the trial in a manner which 

facilitates the ascertainment of truth, ensures fairness, and obtains 

economy of time and effort commensurate with the rights of both society 

and the criminal defendant.” Armstrong, 499 N.E.2d at 191. And “the 

purpose of sanctioning discovery violations is not merely to penalize 

those whose conduct may be deemed to warrant such a sanction, but to 

deter those who might be tempted to such conduct in the absence of such 

a deterrent.” Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012) (quotations 

omitted). So even when there is no remaining prejudice, a trial court may 

reasonably conclude that excluding evidence is necessary to deter

egregious discovery misconduct.

That is what the trial court concluded here. In particular, the court 

found that Sergeant Gress intentionally “misled” all the parties and the 

court. App. Vol. 3 at 14. The court based its conclusion on Sergeant Gress’ 
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acknowledgment that when he testified in the first suppression hearing, 

he understood that defense counsel, the prosecutor, and the trial court 

were all asking him questions about Lyons’ mental state during the 

polygraph examination, and that was a key focus of the hearing. 

Discussing Lyons’ mental condition specifically, Sergeant Gress testified at 

that hearing that Lyons did not say “anything different that [Sergeant 

Gress had not] heard from twenty-five percent of [the] people that take a 

test,” and Sergeant Gress confirmed he “felt comfortable giving [Lyons] a 

polygraph examination.” Tr. Vol. II at 64. Sergeant Gress also testified 

polygraphs are admissible in court if the defendant and the prosecutor

stipulate to their admissibility. Yet Sergeant Gress never divulged that he

had unilaterally changed the polygraph to a non-stipulated, inadmissible

investigatory examination based on his concerns about Lyons’ mental 

condition, and he never provided the prosecutor his notes to the same 

effect, until roughly a year later on the eve of trial.

The State downplays this as a case of misfeasance rather than 

malfeasance. But that is not what the trial court concluded. Instead, the 

trial court concluded that Sergeant Gress’ misleading omissions were so 

egregious that the State should undertake a perjury investigation. And the 

trial judge explained to the State: 

I hope that the Prosecutor understands that this is not a 

personal ruling against the State but it is a professional decision 

that the Court [makes] to protect the rights of the accused, to 

make sure that the trial has integrity, to make sure that the 

lawyers have integrity in this court, to make sure that we don’t 

have false testimony presented at any time in this court, 

especially by people as powerful as Sergeant Gress. And I 

would hope that the prosecutors understand that ruling 

because the integrity of these proceedings is—means 

everything.

Id. at 127. 

From the trial court’s perspective, part of what made this an egregious 

discovery violation warranting the exclusion of Lyons’ statements to 
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Sergeant Gress was the highly unusual context for both the statements 

and Sergeant Gress’ subsequent omissions. Lyons, who was not 

represented by counsel, signed the stipulation around the same time he 

believed shadows were speaking to him. The court credited the testimony 

of a defense polygraph expert concluding “that when a polygraph 

examiner determines in the pre-polygraph interview that the examinee 

has mental issues to such an extent as to render the stipulation invalid, the 

polygraph examiner should immediately terminate the encounter and end 

the meeting.” App. Vol. 3 at 15. After all, as the court explained, Sergeant 

Gress “changing the terms of the contract unilaterally without the 

permission of the prosecutor or the Defendant frustrated the entire 

purpose of the Defendant meeting with [Sergeant] Gress.” Id. at 17. And 

“but for the Defendant entering into the stipulated agreement (i.e. the 

contract), he would have never spoken to [Sergeant] Gress.” Id.

While the State has not concluded Sergeant Gress’ omissions rose to the

level of perjury, it has acknowledged its own frustration and concerns

with Sergeant Gress’ failure to timely share information with the 

prosecutors. Sergeant Gress’ only explanation was that he was relying on 

Detective Jones to relay to the prosecutor that the polygraph was no 

longer a stipulated evidentiary exam, but Detective Jones testified he does

not recall any such conversation. Just the opposite, Detective Jones does 

not recall any point in his career—including this incident—when a 

polygraph examiner informed him that the examiner was changing a 

stipulated, evidentiary exam to a non-stipulated, investigatory exam. And 

counting on Detective Jones to relay the information to the prosecutor still 

does not explain why Sergeant Gress omitted this critical fact from his 

own testimony at the first suppression hearing, which was all about his 

polygraph examination.

In sum, our prior cases have explained that trial courts may exclude the 

State’s evidence when a discovery violation is “grossly misleading or 

demonstrates bad faith.” Thompson, 492 N.E.2d at 274. Because the trial 

court found that level of culpability here, and the record supports (even if 

it does not compel) that conclusion, the trial court did not abuse its 

discretion. See, e.g., Whitaker, 960 N.E.2d at 117 (holding that the trial court 

did not abuse its discretion by excluding evidence when a party provided
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“false and misleading” responses to discovery requests); Cameron v. State, 

274 Ind. 436, 444, 412 N.E.2d 1194, 1199 (1980) (“Where the violation is 

grossly misleading or demonstrates bad faith, exclusion of the evidence 

may be required.”).

Conclusion 

For these reasons, we affirm the trial court’s Order excluding the State’s 

evidence as a discovery sanction.

Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur. 

A T T O R N E Y S F O R A P P E L L A N T

Theodore E. Rokita 

Attorney General of Indiana 

Angela Sanchez

Jodi Kathryn Stein

Andrew Kobe

Office of the Attorney General 

Indianapolis, Indiana 

A T T O R N E Y F O R A P P E L L E E

Joel C. Wieneke

Wieneke Law Office, LLC

Brooklyn, Indiana