For young criminal defense attorneys learning the ropes, “who should polygraph my client” is a familiar question. There are limited exceptions to this rule but, generally, defense attorneys should not permit their client to submit to a polygraph examination administered by the police. The best reason is results of the police administered polygraph, including pre- and post-polygraph interviews with the client, are not protected by the attorney/client privilege. Only when the polygrapher is hired by the lawyer and made part of the defense team are the results privileged. See TEX R. EVID 503. Just like any other expert hired by the defense, the polygrapher’s file is confidential and cannot be revealed to anyone without the express consent of the client. That’s the principal rationale for refusing a polygraph administered by the cops. But there are also several strategic reasons, as well.
Rarely does a detective ask the complainant to submit to a polygraph examination. Rather, the citizen accused is asked (sometimes bullied) into submitting. The test results depend upon the questions asked, the skill of the polygraph operator, the polygrapher’s integrity, and the guilt/innocence of the suspect. Significantly, all these variables are out of your control. Now consider the potential results of a police administered polygraph. Three possible outcomes exist.
First, the suspect may pass the test. Obviously a good outcome. Since many criminal investigations are “she said . . . he said” type cases, police officers struggle to ascertain the “truth” to assist them in making recommendations to prosecutors deciding which cases to charge and which cases to refuse. Moreover, prosecutors are loathe to let guilty people go free. They endeavor to avoid charging mistakes. Consequently, they may look for an objective measure to help them decide whether to pull the trigger on an arrest warrant or criminal indictment. This is where the passed polygraph examination may give them comfort and an easy out. With that said, even a passed polygraph never assured a person would not be arrested, be charged with, or confess to a crime.
Second, the suspect may “fail” the police administered test. Oops! I said “fail” since a polygrapher may inform the suspect they failed the examination (even though they passed) to induce a confession. Yes, the police can lie to encourage confessions. See Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997)(deception does not necessarily make a confession involuntary) The police now have profound interrogation leverage. Now the detective believes the suspect is guilty. Now the prosecutor believes the suspect is guilty and may sleep better knowing they indicted a person who failed a polygraph. Beyond this, countless admissible confessions have followed a failed polygraph test.
Lastly, a polygraph may be inconclusive. In my experience an inconclusive result can be just as bad as failing. The inconclusive test result gives the police no objective assurances of the suspect’s truthfulness and can also be used to cajole a confession.
Now consider the benefits of a polygraph administered by your hired expert. It’s preferable to employ a trusted polygrapher. It may take leg-work but hiring a respected operator will eliminate the credibility issue with police and prosecutor when your client passes the test. Furthermore, everything said between the polygrapher and your client is confidential. The lawyer can spend time with the polygrapher and tailor the questions related to any possible defenses. You also have control over the polygrapher’s interaction with your client. When your client passes the test you decide (with the client’s permission) when the positive results are revealed to the authorities. If the police want a confirmation polygraph from their own expert you may feel better, although reluctant, about allowing the client to submit to a second examination. If the results of the test are inconclusive you have the option of repeating the test without fear the polygrapher will attempt to extract a confession from your client. Finally, if the client fails the polygraph examination you simply bury the test results within the confines of the attorney/client privilege. You also have the option of repeating the test anticipating better results.
So the question of who should polygraph our clients, then, is a no-brainer. Our hired expert does it. As a result, we control the process and the aftermath. When things go bad . . . well, it’s like it never even happened. Conversely, if things go favorably we can announce it from the rooftops and trust the prosecutor will take the easy out. Good luck.
(“Off the Back” featured in the “Voice For The Defense” October 2014)
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.
“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.