WV Criminal Lawyer

Police Misconduct, Civil Rights Law

Polygraphs: to do or not to do?

There is a common misconception out there that I have consistently (about 100% of the time) encountered in criminal defendants (or soon-to-be criminal defendants) that (1) taking a polygraph/ “lie detector test” can prevent their being charged with a crime if they “pass”; and (2) that if they fail the test, the results are not admissible in court.

Let me quickly and humanely put these myths to rest.  If you take a polygraph test in West Virginia, your local Andy Griffith Sheriff, or your local friendly West Virginia State Police officer will NOT be giving you the test.  They will be bringing in a professional conviction machine in to convict you.  What I mean is this.  There are various state police officers who specialize in giving polygraphs.

The investigating officer, wherever he may be, convinces a gullible suspect into proving that he is innocent by taking a polygraph.  The expert then arrives, and has the suspect sign various papers, saying that he or she understands his rights (the right to remain silent, the right to an attorney, etc.) as well as the polygraph process.  Then the suspect is asked various questions.  Of course, the suspect fails.  The the expert polygrapher/interrogator asks, “why do you think you failed?”  Then everything the suspect says thereafter, the officer puts into his official report and thereafter testifies to at the trial, if necessary.  In all likelihood, the trial never took place because the anticipated testimony of the polygrapher was enough to force a plea.

So understand this: the results of the polygraph indeed are not admissible against you.  However, everything you say “can and will be used against you in a court of law.”  It’s a trick.  It’s not about the results, they are irrelevant.  If the cops weren’t convinced you were guilty you wouldn’t be there.  It’s all about obtaining a statement from you.

I have lost clients before because I refused to allow them to take polygraphs.  They think that they can take them and pass them and prevent charges from ever being filed against them.  The cops tell them, don’t listen to that attorney, I want to help you, he’s going to get you charged.  Then guess what, they do it anyways and convict themselves.

Don’t say I didn’t warn you.

- John H. Bryan, West Virginia Attorney.

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October 9, 2009 - Posted by | Statements

6 Comments »

  1. Have you tried having a client polygraphed by a private polygrapher instead of the State’s?

    Comment by markwbennett | October 11, 2009 | Reply

  2. Mark,

    Many times I have offered to use an out-of-state private polygrapher (oftentimes the in-state polygraphers are ex-state police), or even an FBI polygrapher. Someone totally removed. They have refused every time, all-the-while acting offended that somebody would even question the integrity of their official polygraphers.

    Comment by johnbryanlaw | October 12, 2009 | Reply

  3. I am one of those examiners (i.e. a police examiner), but I’m in Maine. I’ve never seen a person charged (or not had charges dropped) whom I concluded was truthful. Our prosecutors use polygraph routinely in the circumstances you say are a fiction in your neck of the woods. Some attorneys have their clients tested privately first; others, usually for financial reasons, don’t. If the examiner is doing the job (as the neutral investigator in search of the truth) that he or she should be, then it shouldn’t matter whether he or she works for the State or the defense.

    Of course, it’s your job as an attorney to make sure you’re sending only the innocent folks to the State’s examiner. If not, sure the interview could be a problem. What I’ve seen (generally speaking) is that the folks I get for tests (with defense attorneys involved) are for defendants the attorneys feel pretty good about. That is, the attorneys say there is something different about their (the people that allow to submit to a State polygraph) denials than those of most of their other clients who say they are not guilty. (Of course, there’s always a question of the integrity of the prosecution witnesses in these cases too.)

    Comment by Barry Cushman | October 13, 2009 | Reply

  4. Barry,

    Thank you for your comment. Let me ask you, have you ever testified against someone you examined pursuant to the cooperation or request of their attorney?

    Comment by johnbryanlaw | October 13, 2009 | Reply

    • I’m sorry I didn’t reply earlier. I stumbled across this searching for something else. (Isn’t Google wonderful?) I’ll hit the button to notify me of new comments this time.

      No, I have never testified against somebody in that situation.

      I did have one case in which a subject confessed to a burglary / theft before the test began. After consulting with his attorney, he admitted he didn’t want to get convicted of the theft because there was a gun in the safe he stole during the burglary, and he didn’t want to risk federal charges. (He had already agreed to enter pleas to robbery and another burglary, which is why his attorney thought he was telling the truth about the burglary.) I tested on whether he knew there was a gun in the safe when he took it. He passed and the gun language was stricken from the indictment. He entered a plea to that lesser charge. (The gun enhanced the crime by one class.)

      Did his confession hurt him? I don’t think so. The case was pretty solid before he admitted it. Did the polygraph help him? Of course it did. That’s about the closest I came to ever having anything worth testifying about – and the reason for my war story.

      By the way, I don’t agree with the “sandbag” approach to polygraph. That is, if a subject represented by counsel “fails,” I tell the attorney first, and he or she can decide if further discussions will take place. In fact, I’ve had attorneys send in their clients alone (but available by phone).

      Comment by Barry Cushman | January 29, 2010 | Reply

  5. have you every heard of a person with criminals charges taking a polygraph and passing it and the judge not allowing it to be used in the case. The person accussing also took a polygraph and failed and the judge would not allow it either.

    Comment by carol | March 20, 2012 | Reply


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