The FX show, The People v. O.J. Simpson: American Crime Story, featured a scene in which Simpson was polygraphed in a test arranged by his lawyers.
Obviously, this polygraph test was to be for their use only, and performed by an operator they hired, but it presented a number of interesting issues that could be rolled over, and over, and over, again.
First of all, why would the results of that lie detector test be for the use of their client’s defense only? Even if this was a civil case, this certainly would fall within the purview of attorney-client privilege and attorney work product. It would thereby be beyond the scope of any discovery and disclosure sought by the opposition. However, in a criminal case, polygraph test results are inadmissible evidence in most, if not all, jurisdictions. The only jurisdictions I have heard of their use in, as admissible evidence, is in military courts. Prosecutors cannot compel a criminal suspect or defendant to take a lie detector test any more than they can compel a criminal defendant’s testimony against himself in contravention of the Fifth Amendment’s privilege against self-incrimination. This right to remain silent includes being hooked-up to a voodoo machine.
Somewhere in the triangulation of a defendant’s right to remain silent, difficulties in a polygraph examiner qualifying as an expert witness, and the province of the jury as trier of fact, any polygraph test results would generally be inadmissible under the Rules of Evidence. It is up to the jury to judge the credibility of a witness, as trier of fact, rather than leaving that to Madam Tarot’s Princess Czarina Pravda Dynamo which, with its spooky electrodes, wires, and graphs, might be more at home on the Midway of the Arkansas State Fair next to the ever-distorting Hall of Mirrors, and the no less shocking, Three-Headed Sorority Girl.
So why, in the show, did they have their client submit to such a test? Maybe they wanted to see what they were dealing with. In the show, Simpson is portrayed as having a bad reaction upon hearing the results. This is a cautionary note as to why attorneys should not allow clients to be polygraphed by the police. The result might not be as desired and the reaction to that result might not be, as well.
What about admissions made during the course of a private polygraph exam, if any? Would those tie the hands of a defense attorney later in terms of putting on contrary evidence, if so desired? Would that contrary evidence then be perjured testimony that the attorney was then aware of? These problems can be avoided by a defense attorney never asking the client if he did “it,” so to speak. Usually clients will claim they did not do “it,” especially if they are seeking a trial or a better plea deal. The ones who admit or hedge “it,” are more likely amenable to a plea agreement, if one is offered, or negotiated, to their satisfaction. Ultimately, there will have to be a admission in the course of a felony plea agreement before the Court for the Court to accept the same. Furthermore, probation officers will not look kindly on the probation prospects of a defendant who waffles on their guilt. They view it as not accepting responsibility which diminishes the likelihood of a successful conclusion of the probationary period.
But what of an Alford Plea, you say? Nolo Contendere? You nattering nabobs of negativity, those are beyond the purview of this article which is not a legal dissertation, but merely a friendly discussion of things that can and do happen in television shows and real life. Like Three-Headed Sorority Girls. But that couldn’t happen in real life because, well, no sorority would take them. BOOM! Take that PC Patrol and Make America Great Again. And there certainly could not be a television show featuring a Three-Headed Sorority Girl; no FX show would stoop so low. BOOM!
So why is law enforcement so enamored with lie detector tests? They know they can’t use the results in court. The prosecutor’s certainly know they can’t get the results in as evidence. What then is the appeal?
The appeal is leverage and pressure. On Investigation Discovery’s fantastic Homicide Hunter: Lt. Joe Kenda, a great episode I saw recently explained just that. In fact, according to the fabulous Detective Kenda, leverage and pressure were the only reasons they ever hooked a suspect up to the all singing, all dancing, divining machine. If law enforcement can get an unsophisticated and unrepresented suspect or defendant to submit to a lie detector test, this increases the pressure and leverage on that person. The mere request to take the lie detector test puts pressure and leverage on the defendant or suspect. It puts him in a no-win situation. Law enforcement implies, or outright states, that the suspect must be guilty if he does not submit to a polygraph much like they do if he won’t talk to them without an attorney present. The suspect begins to worry about this perception on top of worries as to whether the polygraph will find him out, or misread him, on top of worries as to whether he can beat to polygraph.
The average person would find a lie detector test to be intimidating for a non-criminal matter. Now, add to that the fact that the police are suspecting a person of a crime and are questioning him. Then they are requesting that be backed-up by a lie detector test. The heart and soul of the Fifth Amendment is the privilege against self-incrimination which means a defendant does not have to testify in their own defense or, indeed, give any testimony at all. Viewed in light of the Fifth Amendment, a polygraph request is not quite sporting, if not outright cheating, in the context of a criminal case.
So where does that leave us in the real world as opposed to the world of TV or the special Purgatory of a world like the FX show, The People v. O.J. Simpson: American Crime Story.
Well, in a real world some years back, as a criminal defense attorney with a ton of cases in a hillbilly jurisdiction, a place where you were just as likely to see a Confederate Flag as Old Glory, a few times client’s disregarded my advice to not agree to take the lie detector test. They were just so sure they would be proven innocent. So what happened? Well, I never saw anybody pass the lie detector test given by law enforcement.
And who was the expert that gave that all-important lie detector test? Well, I guess I can say his name wasn’t Deputy Sheriff Billy Bob, because I think I would have remembered that. But it was given by a regular county Deputy Sheriff that was the K-9 Officer, too. And the guy who bought the used police car I saw on the side of the highway into that Hee-Bil-E county I said I would never go back to unless I was under subpoena. Yep, he fixed it up real nice, put a brand new police light rack on the top and brought it up to speed. The Deputies a-way-down-in-that-holler provided their own vehicles, you see. And I don’t know if he was in any way connected to the police car I saw completely totaled, and totaled, and did I say totaled, sitting way out in the weeds, way down some lightly traveled county road that not too many people would see, that so obviously had been rolled, and rolled, and rolled, at speed. No, I do not know that and have no reason to think so, really. Just making conversation.
Would I take a lie detector test on all that? Well, the answer is “no” because it is inadmissible evidence, why am I having to testify anyway? am I under subpoena? am I a criminal defendant? if so, my Fifth Amendment right against self-incrimination attach, does that thingy really even work? is this a seismograph? is this ‘lectro-shock? who are you Mr. Operator? it just doesn’t feel right, and it’s just not sporting.
And I will take a lie detector test on that. Let me just hold my hand out here while you tickle my palm and I’ll say goo-goo without laughing. Ha ha, but you could never pass that test in seventh grade, either.