Question:

In criminal cases, when people voluntarily agree to submit to a polygraph, are they allowed to have their attorney present?

If not, why not?  People are allowed to have lawyers present during questioning, why not during a poly quiz?

TC

T.M. Cullen wrote on May 3^rd, 2008 at 7:38pm:

Question: In criminal cases, when people voluntarily agree to submit to a polygraph, are they allowed to have their attorney present? If not, why not?  People are allowed to have lawyers present during questioning, why not during a poly quiz? TC

Different organizations will have their own policy.  But, generally, if there is an observation room, I can’t think of a reason why an attorney can not be in the observation room.  But, the attorney would not be permitted in the actual room where the test is being administered.  The reason is this.  The person taking the test needs to pay attention to the examiner, not the attorney.  If the examinee is non-deceptive and has been wrongly accused or charged with a crime, the examiner is trying to successfully get that examinee through the test.  If the attorney is present in the same room, that is in itself a distraction and would not be permitted.  Agencies will have their own protocol in this regard.

My rules are this:  The attorney can be present for the test, but once the examinee is released to me for the test the attorney can not have any contact or conversation with the examinee until after the “charts” are collected.  The attorney is made aware of that before the test starts.  Any violation of that rule and the test is stopped and my report reflects the attorney interfered with the test and it could not be completed.  The examinee is free to terminate the test at any time.  If the examinee requests to speak with his lawyer during the pre or in-test phase, that request is obviously granted, but the test is stopped due to outside interference.  

Usually, what happens with my tests for defense lawyers is they will be at my office initially, speak with their client, and once the client is turned over to me, the lawyer leaves the building.  I stipulate with the attorney that if their client shows deception on the test, I will not interrogate or ask any incriminating questions, but merely send the client on their merry way.  If they are non-deceptive, I send them on their merry way.

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But, the attorney would not be permitted in the actual room where the test is being administered.  The reason is this.  The person taking the test needs to pay attention to the examiner, not the attorney.

I can see that an attorney present when the charts are being collected, would be a distraction.  But what about during the pre-test and post test interrogations?

If the examiner makes false claims about the accuracy of the test (98% accurate...etc), and informed attorney would be on the spot to advise his/her client that such claims amount to nothing more than speculation and that NO evidence exists to back the claim.

If an informed attorney is present after the charts are collected, the examiner would be much less likely to "brow beat" the client.  For example:

"Mr. Examiner you keep saying my client is showing deception regarding THAT question.  You've asked if there is anything bothering him, or something that he is not disclosing.  My client has REPEATEDLY answer "no" to your questions.  Can we move on?"

As for having the undivided attention of the suspect, is that equally as true during a regular interrogation?  Yet attorneys are allowed to be present to advise his/her client of their rights.


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If the examinee is non-deceptive and has been wrongly accused or charged with a crime, the examiner is trying to successfully get that examinee through the test.  If the attorney is present in the same room, that is in itself a distraction and would not be permitted.

Again, equally true of a regular interrogation.  Isn't  the detective just trying to get at the facts?  "Just answer our questions Mr. Suspect, tell the truth, and you got nothing to worry about."  If the suspect is innocent and nondeceptive, isn't the detective just trying to "get him through". Attorneys are allowed then, and are just as much of a distraction.

TC

You asked why and I explained it to you.  You asked about a polygraph examination, not a standard police interview/interrogation.  They are two completely different processes.  Don’t try to change the substance of the original question.

Those are my rules and I explained why.  I’m sure other examiners have similar rules.  My rules are not open for discussion or negotiation.  We are not there to debate in the pre-test how accurate the test is with the attorney.  That is interference with the matter at hand.  It will not be tolerated and can be disadvantageous to the attorney’s client.  Smart lawyers are aware of that.  If the client or lawyer do not like the rules, they may go on their merry way.  

Maybe I wasn’t clear.  I do not interview the client at the end of the test when the test is administered to an examinee who is represented by a defense attorney and when the defense attorney requests the test.  The test results help the defense attorney, regardless of the results.  Your question has been answered.    

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You asked why and I explained it to you.  You asked about a polygraph examination, not a standard police interview/interrogation.  They are two completely different processes.  Don’t try to change the substance of the original question.

The pretest INTERVIEW and post test INTERROGATION of a polygraph are very similar to a standard police interview/interrogation.  That was my point and is not "changing the subject". And when did I say I was talking about private polygraphers hired by a defense attorney?  My original question was "when criminal suspects VOLUNTEER to take a polygraph".  Suspects don't volunteer to submit to LE agency tests?


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That is interference with the matter at hand.  It will not be tolerated and can be disadvantageous to the attorney’s client.

Not letting the examiner get away with grossly overstating the accuracy of test (95-98% is typically claimed) would be disadvantageous to the suspect?  No, it would be disadvantageous to the examiner/interrogator!  Maybe polygraphers just do not want an attorney present if he is going to lie about the accuracy of the test. Or otherwise try to befuddle the suspect.

 Note the brow-beating experienced by Ken Jones by a lying State Police polygrapher and detective during his PTI.  If anyone needed an attorney then it was this kid.  BTW, why was a detective present for a post test interrogation (part of the polygraph process)?  I am not asking you in particular, just asking in general.


TC