Polygraph Test in California Criminal Cases
When it comes to the polygraph test most people are thinking about it the way they see it on TV, where people are taking polygraph tests and it’s very accurate and it’s fair. When it comes to real life though polygraph tests from a criminal defense standpoint; at least from my standpoint, having practiced criminal defense now for twenty-five years, I think the polygraph tests are absolutely worthless. In fact, they’re not admissible into evidence in any criminal case and they never will be because of their unreliability.
Law Enforcement Use of Polygraph Test
However, law enforcement and even the prosecutors still utilize polygraph tests. A lot of times in criminal cases, there will be evidence that someone committed a crime. There will be evidence that they didn’t commit the crime, or maybe it’s a weak case.
Someone’s claiming something, but they don’t really have any proof to back it up. A lot of times law enforcement and even prosecutors will say, okay, let’s do a polygraph test and if the person can pass the polygraph test then we will not charge them with any crime.
If the person doesn’t pass the polygraph test a lot of times they will charge them with a crime. But the bottom line is, no matter what happens with the polygraph test, it is not admissible in a criminal case.
The reason it’s not admissible because it is subject to outside circumstances interfering with the result. It’s not reliable and the bottom line is, courts have held time-and-time again, in any criminal case in Los Angeles, California and all over the nation that polygraph tests are not admissible.
What Are The Problems With Polygraph Tests?
One of the biggest problems with the polygraph test is that usually when the test is being done, it’s being done in a police-dominated environment.
Questions that are being asked that are outside the control of the defense attorney and the person that has to answer the questions. So, a lot of times people are already feeling anxious and nervous – whether they’re guilty or not.
I don’t like polygraph tests. I almost never have my client take them, only on very rare extreme cases would I allow a client to take a polygraph test. Again, the bottom line is this – if the person is very nervous and they’re in a police-dominated environment somewhere in Los Angeles County, a lot of times that can affect the result. If that’s going to affect the result, then what’s the point of doing the polygraph test? So, I don’t’ like them and I don’t typically use them.
When Will You Get Involved With A Polygraph Test As A Criminal Defense Attorney?
What I will do if the case is a close call, it’s a weak case and the police are asking for a polygraph test – or even if the prosecutors want a polygraph test – my strategy is I have some polygraph people that I use that are respectable, know what they’re doing, are not obviously going to make the client feel uncomfortable and are going to conduct the test in a fair manner.
So, we will have my polygraph person do the test, ask the same questions that the prosecutor or police are going to ask, and if the client passes the test then we turn that result over to the police/prosecutors and say, here you go.
My client has taken a polygraph test. He’s taken it with a polygraph examiner who either used to work for law enforcement or who worked for the FBI. He’s passed the test and so now you can go ahead and dismiss the case or not file the case in the first place. There’s no need for us to take one of your tests.
Sometimes they’ll do that. Sometimes they’ll accept it, depending on if they feel confident with the polygraph examiner and the questions that were asked. Other times they won’t accept it, but then maybe you do take the test because if you can pass the test with a good defense polygraph examiner who has probably worked for the prosecution at some point, then you should be able to pass the polygraph test with whoever the prosecutor will bring at you.
The only issue is going to be what I mentioned earlier – you’re going to probably be in a police-dominated environment. It’s not going to be controlled. The client may be nervous and there’s a lot of outside factors that can impact them, but I’ve had federal cases where the bottom line is that the client passed our test but didn’t pass the fed’s polygraph examiner’s test and basically the prosecutor just kind of countered that as a push. So, it really didn’t hurt or help the definite. It can never be used against the defendant.
Lawyer to Review Circumstances of Your Case
So, the bottom line is this – if you’re contemplating a polygraph test – if the police are trying to get you to take a polygraph test, you have to sit down with somebody like me who has been doing this for a long time. We’ll talk about the circumstances of the case.
We’ll talk about the questions that can be used and get the strategy together. If the polygraph test is going to help you, then we’ll use my expert, my polygraph examiner to do the test and if we do not like the polygraph test I’m just going to tell law enforcement or the prosecutors, no we’re not taking a polygraph test. They’re not admissible in court and they’re not reliable. I don’t really find any value in them.
The bottom line is, we’re going to handle it the way that’s best for you. That’s why you hire your own criminal defense attorney. Whenever you’re talking about an unreliable testing device like a polygraph, you have to be talking to a criminal defense attorney who has done it a long time, knows how to deal with these types of cases, knows how to use polygraph results and knows when to tell the prosecutors and police no, that’s not going to work for my client.
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