Should The Accused Take a Polygraph?

Criminal defense lawyers represent innocent clients, at least some of the time. I’m not talking about “Not Guilty” clients, or “You can’t prove my client did it” clients, or “Probably guilty, but he deserves a break because ________” clients… I’m talking about actually factually 100% innocent clients. They did not do it – period – end of sentence clients.

Well, why not take a polygraph? That should be the end of it, no? The innocent accused passes, the result is provided to the prosecutor, the charges are dropped.

Not necessarily. First, polygraph results are inadmissible, as they should be. [Public reminder to myself to write a post someday soon about the problems with polygraph results.]

Second, there’s the problem of which polygrapher the State believes. They very often trust their own polygrapher, but not always one that doesn’t get a government paycheck. (Let’s ignore for now that the ‘science’ of polygraphy can lead to two different – opposite – results. As I said, I’ll talk about the problems later.)

Mark Bennett and Stephen Gustitis have weighed in recently on this issue. From Mark:

Any accused who is going to take a polygraph exam should, if only for that reason, first take one from an independent examiner. The exam costs (in Houston) less than $1,000. If the accused fails, the result never goes any farther than the lawyer, who knows that (for whatever reason) the client can't pass a polygraph exam and shouldn't waste his time taking the government's exam.

If the accused passes, however, he may have a result that the prosecutor will accept. If the prosecutor still insists on a police examiner performing the examination, the client knows going in what to expect and knows that he can pass a polygraph examination. He will not be susceptible to the police polygrapher's interrogation tactics.

Absolutely correct. The defense lawyer needs to know beforehand whether his client will pass. An innocent client can fail, and there’s no need to get the Prosecutor to dig their heels in even more.

From Stephen:

Never, never, never take a polygraph examination without first consulting with a highly qualified criminal defense lawyer. If the lawyer suggests you take a polygraph administered by the police, fire that lawyer and hire another. The only polygraph you should take is one given by an expert hired by your lawyer, which protects the results under the attorney/client work product privilege…

I've had many unfortunate people contact me on the phone and explain they had submitted to a police polygraph and failed. My next question is always: "What did you tell them after that?" Rarely is the answer a good one for the accused.

I think the defense attorney needs to know the local culture regarding polygraph results. In some jurisdictions, no polygraph will ever convince a prosecutor to dismiss. Sounds like in Houston, some prosecutors will accept non governmental polygraphs, without requiring a follow up with the State’s ‘expert’.

In Austin, it’s usually going to be a two part process. The defense, as both Mark and Stephen suggest, needs to get their own polygrapher first. Then, after the defendant has been through it once, passed, he is prepped to take one from the State.

Let me add one final thought about ‘prepping’: the defense lawyer needs to warn his client that some State polygraphers, after administering a test where the defendant passed (i.e., answered the questions in a way that shows that he is not guilty), will tell the defendant that he failed.

Yes, the State’s polygrapher outright lies to the defendant, in an effort to convince him that all hope is lost, and that things will be easier now if he just goes ahead and confesses. What’s worse is this: if the guy admits anything, his polygraph result will still be inadmissible at trial…but his confession won’t be.

Bottom line? Innocent people who are even potentially being investigated for criminal activity need to consult lawyers before subjecting themselves to any government interrogation, police, polygrapher, or any other kind. (OK, OK… guilty folks should think twice too.)

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Comments (16) Read through and enter the discussion with the form at the end
Gary Carson - July 7, 2007 11:05 PM

Personally I think the best plan is to just not live in a jurisdiction that has prosecutors so stupid as to be willing to make any decisions at all based on polygraphs or phases of the moon.

Long Beach Defense Attorney - July 10, 2007 10:16 AM

This is true. The other problem with a polygraph is it gives the police a free interrogation of the accused without an attorney present. This can only hurt the case when it goes to criminal court

Dan Ribacoff - April 24, 2008 6:49 AM

I am a polygraph examiner. I agree that you should only take one from an expert your lawyer hires. The polygraph examiner chosen should be one who is respected by prosecutors. Not the cheapest guy you can find. Reputation, skill, unbiased, is what you need to find.

www.NYPolygraphs.com

my peeps - July 26, 2008 2:21 PM

dan ribacoff has been doing polysgraph for less than a year..i would listen to him...get your polygraphs from the attoneys who send you work ...thats smart

'Your Peeps - July 27, 2008 1:36 PM

my peeps can't spell or punctuate.....

David Howard - October 4, 2008 12:23 PM

The FBI uses polygraphs to eliminate suspects.

google: we got nuked on 9/11

David Howard - October 21, 2008 10:43 AM

google: Quadri-Track ZCT

Lies and deception - November 21, 2008 4:31 PM

Polygraph kits avalible online..You Too can become and expert...Learn online too...Great way to make money...Anyone can do it....

David Howard - December 16, 2008 10:25 AM

9/11 Nukes

The spectrum and percentages of cancer are massive. There are at least 4 classifications of blood-cell cancers: leukemia, lymphoma, Hodgkin's and myeloma. There are many more classifications of soft tissue cancers.

There is one thing and only one thing that can cause all these cancers and problems -- RADIATION.

http://en.wikipedia.org/wiki/David_Worby

David Howard - December 18, 2008 11:47 PM

911 Eyewitness - Help find the Truth!

http://www.911eyewitness.com/

the truth - December 29, 2008 3:46 PM

You Too Can Become an Expert,,The same way they did..Buy a good polygraph kit online and learn how to do it..The Money is Great"".Now your an expert..Just do it.Its fun you can even make your family money doing this

Dan Ribacoff - July 11, 2009 9:59 PM

www.newyorkpolygraphs.com for information on lie detection tests also know as polygraph examinations in NY.

Ben Hafez-Amini - November 18, 2010 8:41 PM

Oly in these North American can stupid police make a machine decide where to go. These test are a joke and police already know the answer. If tey like you, you pass everything. If no, you fail. You need to be intelligent and know how to talk or you fail. Police are not smart people.

Lie Detector Test - February 14, 2011 7:13 PM

Polygraph Services Scotland we specialize in polygraph / lie detecting service for business and private clients.

mike lohan - April 19, 2011 2:07 PM

Michael lohan is a convict theif.a fucken asshole looser like his dog shit face mother.women beater and a pervert

Robert - February 11, 2013 9:21 AM

I've been ask to take the test simply because someone said something to the Police. However this person don't know me has never meant me or even seen me. he gave a description of someone that dose not even match myself. I was just wondering if they can make me take this test?

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