By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
Police will often call people under investigation and ask them to submit to a polygraph. Today I’ll cover some of the broader issues but you should absolutely consult an experienced criminal attorney directly prior to making your decision to submit to a polygraph or not. This is because the factual scenarios and variables are countless — and if the police are investigating you then the stakes are high.
If I pass the Polygraph, They’ll Drop the Investigation, Right?
Hopefully. Remember passing or failing a polygraph is not admissible in Court. Even though you may pass, the police are not legally bound to let the case go. Again, every scenario is different so even with a passing polygraph, the police may still have sufficient evidence to charge you and they may still be convinced you’ve done something wrong. Also, police have the job of dealing with alleged victims who pressure them over the phone on a daily or hourly basis. Police may decide to keep going with the case, albeit half-heartedly.
Even where police promise they’ll drop the charges if you pass they aren’t bound by that promise. Also keep in mind that deception is a legitimate law enforcement tactic. Experienced criminal defense lawyers in your community may know whether the agency you are dealing with has a reputation for being trust-worthy or whether they’ve got a reputation of tricking people they investigate.
Is the Lie Detector Test Fair?
Again, maybe or maybe not. Some polygraph examiners have better reputations than others. Resources on the internet have wildly opposing views. It is possible for some polygraph tests to consist of unfair “do you still beat your wife?” or “do you turn down drugs very often?” questions that are designed to fail you. Then again, sometimes the results come out just fine.
Things You may not be Considering
Taking a polygraph exam for the police is no different than coming into the station voluntarily and giving a statement. The only thing inadmissible will be the fact you made the statements while taking the polygraph and the results of the polygraph. It will be fully admissible in Court and may educate the police on facts they may not already have and/or give them an admission of a fact the suspect but can’t prove.
Are there any Alternatives?
There are several. First is that if you say no to a polygraph it may not necessarily mean that an investigation will result in charges being filed. This is for the reason that police need to have evidence of every element of the offense charged to establish probable cause to have an arrest warrant issued. If they don’t have enough evidence then they can’t go forward.
Second, you can allow the police to charge you and deal with the prosecuting agency instead of the police. The dynamics of these relationships is different everywhere, but generally speaking you and your lawyer may get the chance to deal with a different set of people who may be more sympathetic your side of the story without a lie detector test.
Third is that you can hire your own private polygrapher and conduct your own test. The positive of this is that you can eliminate unfair questions and if the result is bad, it is considered work-product and therefore privileged under the Texas Rules of Evidence. The down side is that (depending on the reputation of the polygrapher), the police or prosecutor may not accept the results, the process is more expensive, and if you tell the police you’re doing a polygraph on your own and you never get back with them about the results — they’ll assume you took it an failed it.
Being asked to take a polygraph by the police puts you in an extremely difficult spot. Sometimes in life we have bad choices and worse-choices… no good choices. You should always consult an attorney directly as that attorney can assist you in managing and evaluating the variables unique to every case.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice for any specific case you should directly consult with an attorney.