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.)