POLYGRAPH TESTING can be a useful tool for helping your client, not just to prove that he or she didn't commit a crime, but in a variety of situations.

In 1997, the American Polygraph Association published a compendium of research studies on the validity and reliability of polygraph examinations conducted since 1980. Twelve studies of validity, totaling 3,174 real cases,¹ revealed an average accuracy of 98 percent.

The modern polygraph is far more accurate than the news media would have us believe. In 1993, the U.S. Supreme Court left the door to admissibility ajar when it forsook the Frye Standard in favor of a new standard in Daubert v. Merrell Dow Pharmaceuticals.²

The following are some of the many situations in which you might want to consider using a polygraph examination to help your client:

An offer from the prosecution to drop the charges if your client passes a police polygraph test.

Would the prosecutor be making this offer if she had a strong case? Why not ask a private polygraphist to test your client first? Although results of your client's police polygraph test may be inadmissible, incriminating statements he makes to a police polygraph examiner during the course of that examination are admissible.

Some skeptics have suggested that the private examiner, being a "friendly examiner," would conduct a test your client might pass even if he were guilty. The "friendly examiner" hypothesis was debunked by research long ago.

Another notion that was disproved was that psychopaths could fool the polygraph because they allegedly have no conscience. A classic study conducted during the 1970s pitted the lying abilities of diagnosed psychopaths against that of college sophomores. The sophomores proved to be better liars than the psychopaths were, but neither group was successful in fooling the polygraph.

Under no circumstances should your client submit to a so-called "voice stress test." These devices have historically gone by a variety of different names, such as psychological stress evaluators, voice stress analyzers and the latest, computer voice stress analyzers. The problem with voice stress is that there is no published research that shows this "technology" really works. Independent studies reveal voice stress to be no more accurate than flipping a coin.

When your client refuses to consider a generous plea bargain offer.

Suppose the case against your client is overwhelming, but she refuses to see it that way. Perhaps as a result of beating a previous rap, your client becomes convinced of her ability to walk again. A polygraph examination may help convince her to accept a plea.

However, if your client actually passes the polygraph test, you suddenly have one of the best bargaining tools on your side - the truth.

Kids get expelled from school for a lot of different reasons these days. Often the only witnesses against the client are other kids. Principals and school boards will often listen to polygraph results favorable to your client.

When your client becomes embroiled in domestic litigation.

The polygraph has helped settle disputes about child custody and visitation, revealed the truth regarding accusations of physical and sexual abuse, dispelled allegations of marital infidelity and facilitated payments of insurance claims.

When your business client suffers a loss to his business caused by employee theft, sabotage or vandalism.

Some people think the Employee Polygraph Protection Act of 1988 closed the door completely on testing of employees in the private sector. There are many situations, however, in which your business client can ask an employee to take a polygraph test. These include instances in which an employee had access to what was stolen and the employer has a "reasonable suspicion" that the employee was the one who stole it.

For example: A computer storeowner discovered an expensive laptop missing from a secure area accessible to employees only, but she had no basis for "reasonable suspicion" of any specific employee. One of the employees reported seeing a brand-new laptop of the same make and model at a co-worker's home recently. The owner reasoned this must be her stolen laptop. She allowed employees to buy merchandise at a 30 percent discount, so it was unlikely that the suspect had purchased the computer elsewhere. During his polygraph examination, the suspect admitted to "borrowing the computer to take it home and try it out." He brought the computer back and handed it to his employer. She handed him his pink slip.

When your client says, "I didn't do it. I'll take a polygraph test!"

Think about this statement. Your client has just verbalized a specific unsolicited denial accompanied by a spontaneous offer to undergo the dreaded lie detector test. Do you think he might a have a good shot at passing the test?

Other uses for polygraph testing in criminal cases.

According to James Matte, Ph.D., in his book "Examination and Cross Examination of Experts in Forensic Psychophysiology Using the Polygraph,"³ the polygraph has also been used to support motions to suppress evidence, effect settlements, disprove unfavorable evidence in sentencing reports, support psychiatric examinations, aid in state and federal arbitration, and to monitor sex offenders as a condition of their parole or probation. Polygraph results have even been used at bond hearings to argue for OR release.

Diogenes' lantern has reappeared as the modern polygraph instrument. The truth is a mighty weapon to have on your side when you practice law. Attorneys who utilize polygraph testing will uncover new and exciting opportunities to better serve their clients.

To learn more about polygraph testing or to find a certified polygraph examiner near you, visit the American Polygraph Association's web site at www.polygraph.org.

REFERENCES

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer