posted 04-21-2008 02:58 PM            

Sorry. It has been a long time since I posted and wanted to make sure the post would go through before I typed it all out.

Last week I was in court for a much anticipated trial involving a full confession I obtained from a man who had repeatedly molested his step-daughter for a number of years approximately 25 years ago. The entire exam, confession, and taking of the statement was on videotape. I had been informed by the Solicitor's Office that the local Defense Bar had been holding meetings with the specific topic being how to challenge me specifically and how to challenge the confessions that have been obtaining. It appears that they came up with a unique strategy and they were able to get a judge to buy into it. Here is what the defense attorney did:

In pre-trail motions in the Judge's chambers the defense stated that they wanted to show the entire video to the jury and that the defense had the right to use all evidence available to defend the case. The video, obviously, was submitted as evidence and what we thought was convincing and compelling evidence. Since the defense wanted to present the video this placed the judge in a unique position. In SC, as in most states, nothing about polygraphs can be mentioned during trial or an immediate mistrial is the likely outcome. The judge, knowing that he cannot allow the video to be played to the jury, yet also knowing that he cannot allow the defense the argument that they were denied use of all evidence available to defend, was placed between the proverbial rock and a hard place. So, the strong spined judge decided to strongly advise the Solicitor's Office to plead the case out since he was "inclined to not allow the videotape as evidence" which would mean that the confession, both oral on tape and written, would not be admitted either. I trust that this strikes you all the same as it did me and that you are now finding it difficult to get your jaw up off the floor! So the case was pleaded down tremendously and the defense attorney has now managed to lay the ground work for a precedent, at least in South Carolina, for a unique approach that could conceivably render the confessions obtained from polygraphs, at least those on video, to be useless.

This is still early and I will be meeting with the Solitor and his staff this week to determine how we are going to proceed from here. It is possible that they may recommend that I stop videotaping my exams. I am a big proponent of videotaping interviews because I believe it forces investigators to become better interviewers and I am very comfortable in having any of my interviews evaluated for ethical and constitutional violations, but at the same time I do not want to lose cases because I am going above and beyond the requirements by videotaping. Your comments would be appreciated and I will advise how we choose to move forward.

Danny Morgan

posted 04-21-2008 03:44 PM         

In California this would not be a problem. The entire polygraph can be admitted into evidence if BOTH sides agree to it. Given your scenario, our prosecutors would gladly agree to let the video come into evidence.

My polygraph confessions have always come in as evidence because we redact any reference to the polygraph. I have had cases reviewed by both the state and US Supreme courts that contained information/confessions obtained as part of a polygraph exam. The confessions have always been admitted.

Ted

posted 04-21-2008 03:48 PM            

Lets see. I think the legal-technical phraseology is something like…….”You gotta be shittin’ me! That gutless f*** of a judge!”.....There, I feel better.

I’m in North Carolina. We haven’t run into that yet, but if that is what it comes to, I would stop video taping.

posted 04-21-2008 07:30 PM            

If this tactic works, then why stop there. Why not introduce statements and other evidence that you've already had suppressed and then argue for a mistrial?

posted 04-22-2008 08:28 AM            

This defense attorney is notorious for trying anything and willing to say or do anything in court to win. Knowing that meetings by the defense bar had been held with me and my confessions as the topic of interest, I believe that this was a well planned maneuver on the defense part. This tactic allowed him to put the Solicitor's Office in a defensive position when he had absolutely nothing to work with. He was smart enough not to go for the whole enchilada though. He knew that it served his purpose just to get the Solicitor's Office to cave a little on this one when he was in such a weak position. He did not have to force the judge into ruling in his favor; merely getting him leaning in his favor served his purpose. I believe that it was a well calculated initial move with other moves planned for the future to build on this one.

We will be meeting to decide how to respond to this. At this point, no precedent has been set just yet. We hope to keep this from getting to that point. The Solicitor's Office has told me that they would be interested in knowing more about other State's handling of polygraph, as far as stipulated tests being admitted and how that works, so that they could have some argument points. I am going to suggest that they put one of their overworked and underpaid clerks on the task of researching and compiling info. I will welcome any direct links that would be helpful for them to find information.

posted 04-22-2008 09:51 AM            

RC, that is how we already do things as far as testimony. We have a Jackson vs. Denoe (sp?) hearing for admissability of the confession first. If the judge rules that the confession is admissable then we proceed and I only testify to what the defendant told me (w/o mentioning polygraph). As far as I can tell, in this particular case, the defense wanted the jury to see the client as an old man who was in pain from a recent leg injury and then try to argue that his client was not mentally able to give a "voluntary" confession. This argument was completely without merit. I had thoroughly vetted the subject prior to testing and, knowing that everything I am doing and saying is being videotaped, was very careful to make sure that the entire interview process was done in such a way that his physical and mental state was not going to be a problem at trial. Still, the defense can argue anything they want to and in this case it was about the only avenue he had to argue.

Although that makes this particular case unique, how many of our examinees (who eventually prove to be lying) come in with some type of complaint about sleep, pain, medical conditions, etc.? I can see this particular line of argument as reason for "wanting" the jury to see the tape as being something that most defense attorneys will figure out a way to bring up.

posted 04-24-2008 01:19 PM            

The case is out of Milwaukee and basically the ruling stated that there must be a clear seperation of the polygraph from the confession (Voluntariness) So long and short is once the exam is done we take a break "I'm off to Score the charts, Polygraph Portion is Over" (one of the requirements,time seperation) and out of the polygraph suite into the interview room where all I say to the DI person is "what do you think" usual response is "I Passed" and I then just go into the classic Reid Interview with "Our investigation shows that you haven't been truthful regarding this issue..."

In reading the initial post I couldn't help but ask Was the confession obtained in the same room as the Poly equipment? and or Did the interview entail, you failed the polygraph and we need to talk about the truth?