In the criminal justice system, the prosecutor is obliged with bringing justice. That means, even though someone comes into his or her office complaining of being wronged, the prosecutor has an obligation to try to determine who is at fault and who is telling the truth about an incident. Sometimes, when an accused in a felony case steadfastly proclaims his innocence, the prosecutor suggests the accused undergo a polygraph test. These tests are commonly requested by police in cases involving murder, missing persons, and sexual abuse.
Here are some things you need to know about polygraph tests:
1. The results of any polygraph test are inadmissible in court. I have found polygraph tests to be remarkably accurate, but the courts have, for policy reasons, refused to allow the results of these tests to be admitted into evidence. When polygraph tests are administered, a set of questions are asked by the administrator of the test; the questions and the corresponding answers are recorded, and that record may be introduced into evidence. Although the machine’s indication concerning the truthfulness of those answers may not be admitted into court, the questions and answers are admissible as though the accused were being asked those questions in front of a jury after being sworn in.
2. You can never be made to take a polygraph test. Your refusal to take a polygraph test can never be made known to a jury, no matter how serious the charges are against you. Likewise, your demand to be given a polygraph test to exonerate yourself can never be made known to a jury.
3. Upon the advice of your attorney, you may want to take a polygraph test and give the results of that test to police detectives who suspect you of committing a crime. If you pass the test, there is generally no harm in providing that information to the prosecuting attorney.
4. Passing a polygraph test is no guarantee that charges against you will be dropped. The decision whether to charge you with a crime rests with the prosecuting attorney. I once handled a case in which a confession had been literally beaten out of a client. The client told me he was innocent, and I believed him (to this day I still believe him). The prosecuting attorney suggested he take a polygraph test, using a polygrapher suggested by the prosecutor.
The client took the test, and was specifically asked whether he had engaged in the conduct stated in the criminal complaint the prosecutor had filed against him. He said he had not, and the test results showed “no deception” in his answer. That prosecutor was so convinced of my client’s guilt that she refused to believe the results of the test she requested, refused to lower his bond, and refused to drop the charges. Justice was not done here, but the prosecutor was not required to drop the charges. Since that experience, I have come to insist that my client get the benefit of a dismissal in the event he takes and passes a polygraph test at the request of the prosecutor.
5. Polygraphs used in psychosexual evaluations. Persons convicted of sex crimes will find themselves subjected to a “psycho-sexual evaluation” as part of the process of being sentenced. The defendant has a Fifth Amendment right to refuse to participate in this evaluation, which is the most humiliating evaluation a person could possibly undergo (“Tell me about your entire sexual history during your lifetime, starting at age four, until the present, leaving nothing out.” And that’s just the beginning.) To check the accuracy of responses in a psychosexual evaluation, the psychologist administering the evaluation has the defendant asked questions concerning the candor of his statements while hooked up to the machine. The evaluator uses the results of the polygraph to complete the assessment, and then writes a report.
Since you have a Fifth Amendment right to refuse polygraph tests, the refusal to take the test cannot be used to enhance your sentencing. However, the judges will say that total cooperation during a psychosexual exam will enhance their comfort level in placing you on probation after a time, and if you don’t cooperate (by refusing the polygraph), they can’t give you the benefit of being released into the community earlier, and you may find yourself on probation for many, many years as a result of your decision. Judges walk a constitutional tightrope when they say exercising Fifth Amendment rights does not affect a sentence, but you get a shorter probation (by fifteen years) if you waive that right.
One difficulty in this area of law is that anyone convicted of a sex crime must have their name placed on the state’s sex offender registry. It is a lifetime registration, but in most cases the defendant can petition to be removed from the registry 10 years after sentencing. However, the name cannot be removed unless the defendant proves he passed a sex offender treatment program. No one passes that program without undergoing and passing regular polygraph tests. That means that refusal to participate in the polygraph tests during a sex offender treatment program will prevent the defendant from ever having his name removed from that list.
Allen Browning
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