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The Polygraph: A Underutilized And Useful Defense Tool Applied To The Right Charges And Set Of Facts

The Polygraph is routinely ignored as a defensive tool because test results are generally not admissible in court. So what?

Most prosecutors avoid the use of polygraph tests like a plague, because favorable polygraph test results of an accused will almost always weaken the prosecution case provided the test is done correctly and can be verified on paper by the State’s expert. Polygraph test results are inadmissible as evidence in a criminal trial, except by agreement, however they are gaining strength in jurisdictions willing to entertain the notion that they valid test results are probative of the truth to an acceptable level of certainty in the scientific community.

For a truly innocent person, favorable polygraph test results - going to the substance of the crimes they are charged with committing, will invariably take the wind out of the prosecution's sail, and add a big question mark to the prosecution's case: Who is telling the truth? It can create speculation that can rise to the level of doubt. On moral grounds, the prosecutor should at least feel compelled to investigate the case further to determine whether the wrong person is being prosecuted.

Even if you don't believe in polygraph testing, it is interesting to note that people who are afraid of taking a polygraph test generally won't take the test. The correlation is that person knows they cannot pass the polygraph test because they have a guilty mind. The fact is that an innocent person will generally welcome an opportunity to prove they are telling the truth, where a guilty person will resist testing in some way. Oftentimes a guilty person's reaction when asked to take a polygraph opens a window to their mind for a moment. Is the person receptive to testing, or does the person exhibit an immediate insecurity, become defensive, or cite reasons why testing is a bad idea? The mere fact that one is unwilling to take a polygraph test should be an indicator that a person may not be telling the truth, or are that they are hiding what they know the truth to be, which is equally important.

Although the use of polygraph testing in not for every defense case, it does have it’s place and it underutilized as a defense tool in an array of possible fact patterns. Here are a few possible defense cases where the use of a polygraph might make a huge difference:

1. An arrest made on a photo lineup where the defendant tells you they are innocent; 2. A grand theft or fraud case where the defendant tells you that they had no knowledge that others were swindling or stealing. 3. An arrest based on a ‘he said’ ‘she said’ situation; 4. To buttress an alibi that cannot be corroborated any other way; 5. Any case where criminal intent is paramount and the defendant tells you they didn’t know.

It is a defense tool and you should consider using it in the proper case to get a leg up on your opponent-the prosecutor’s office.

But, you can’t just hire any polygrapher and expect to gain ground with the prosecutor’s office, because even in the world of polygraphy the test must be properly conducted and can be independently verified after the fact by other experts to ensure it was conducted properly. In that regard, hire the best polygrapher that you can find; hire the polygrapher that taught the prosecutor’s polygraphers how to take polygraphs. That way the results that you obtain will not be questioned after the fact, as they came from a well known respected polygrapher in your community to begin with. It is unnecessary to advise the prosecutor’s office in advance that your client, the defendant, plans to take or has taken a polygraph with your own polygrapher. Once the test is taken and the results are in favorable to the defendant you can now provide those positive results to the prosecutors office. Then sit back and watch the reaction that you get.

Actual Case Study:

The Author once had an opportunity to represent a gentleman that was an officer of a United States based conglomerate involved in fraud. The company re-sold life insurance policies to investors based upon a fraudulent viatical scam. The company was making hundreds of millions of dollars fraudulently, due to fictitious life expectancy certificates for insureds that formed the basis of the scam. In other words, purchasing a million dollar policy that insures someone whose life expectancy is 3 months for $500,000 may seem like a great investment, where purchasing a million dollar policy that insures someone who will live another 20 years is ridiculous. You get the picture.

The United States Attorneys Office prosecuted all of the officers of the corporation involved in this viatical scam, including the Author’s former client, who was in charge of an entire state, yet only making $100,000.00 per year in salary, with normal fringe benefits. Of course, the client said that they had no idea that the company was stealing money based upon a life expectancy scheme to defraud investors.

Bingo. Polygraph. This gentleman took a polygraph with one of the best polygrapher’s available and passed with flying colors on the primary issue that he had ‘no knowledge’ that others were involved in a scheme to defraud. The polygraph results were provided to the United States and after much screaming and yelling the case against the defendant was dropped completely.

You should consider polygraph testing as a tool in your defense arsenal to be used on occasion where the fit to the facts of your particular case screams for a polygraph. The worst thing that could happen is that the test results do not yield a meaningful test result for one reason or another.

This article is for informational and educational purposes only and should not be construed as constituting legal advice. It was written to provoke critical thinking on the subject matter presented only. In fact it is not legal advice and was written by a non-attorney. You should consult with your attorney to determine the best course of action to take on your case.

Copyright 2018 All Right Reserved, by Joseph J. Pappacoda, JD, Senior Litigation Paralegal, GhostWriter Paralegal, Chartered, Fort Lauderdale, Florida