posted 01-20-2008 08:00 PM         

Ask the PO if he lets his drug testing clients pee in a cup at home a week before the test!

posted 01-20-2008 11:23 PM            

First, why can't the investigation targets be agreed on in advance, with the understanding that the examiner and the examinee may adjust the exact language at the time of the test? If a PO or investigator makes a referral for a polygraph, it would not be viewed as problematic for the PO or investigator to inform the examiner of the investigation targets and even discuss the matter in detail. Isn't this simply a referral from a team consisting of the magistrate, PO and attorney?

Certainly the presence of an attorney in the room would be a serious departure to normal procedure. It would be a substantial distraction to the subject, who is expected to attend to the stimulus in an authentic and undistracted manner. It would also potentially limit the natural and authentic review and discussion of the issues. On the other hand, I know that some law enforcement agencies cannot test juveniles without the parent present. Its not ideal, but I s'pose that rules is rules.

Second, how much does the attorney know about the polygraph? Are we imagining that it's still possible to assume the attorney is naive about the polygraph? Like most other professions, defense attorneys have their own email lists and discussion forums. Do you anticipate the attorney will be responsive or unresponsive/negatively-responsive to discussion about the value of not telegraphing the targets to the client?

Also, the subject is on probation, but this sounds like something other than a routine post-conviction test. Is there an incident or allegation under investigation? Is there a revocation or violation complaint in progress? Or, is this an issue of denial around the instant offense, or some other form of investigation for risk assessment purposes?

I know there must be more context to this case. It sounds like something that could turn into a very sticky situation.

r

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"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)

posted 01-21-2008 12:03 AM            

If the attorney won't agree to it, than he has no intention of his client being tested and he knows full well that you would or any examiner would refuse his physical presence during a test. Could also be a stalling technique. Regardless, I have long found attorneys to be far less interested in the actual test as they are in the additional billing unit$ (hour$.)

The most contentious area regarding attorney-monitored tests is usually the consent to polygraph form---where the lawyer will request some minor alterations to the document. That is when the attorney will attempt to evoke confidence in his client over the attorney's legal savvy----the closest thing to a dog and pony show to appear "busy" and "valuable" to the client. I always allow them some spotlight without visible argument in order to keep appearances with the cient for reasons of interrogative/ examiner trust.

posted 01-21-2008 10:33 AM            

There are alternatives. In some areas it is not uncommon for POs and treatment providers to observe a polygraph through electronic video. Often, then recording itself is enough, and more often than not the simple presence of a recording is enough to alleviate concerns or problems. Do you record exams Psydoc? Perhaps the attorney could be permitted to review the recording afterward.

In this case, the polygraph, as you have described it, sounds like a stipulated evidentiary test, and not a garden-variety PCSOT polygraph.

Also, is there any forethought to QA with the test? Or, do you at least know who the attorney's expert will be opposing counse

For the sake of argument, lets assume the attorney is not just billing everything possible, but actually working to protect his client's rights and liberties. While we're at it, lets assume that we like our legal system as it is, in which even accused or guilty persons have rights, including rights to representation, accurate legal proceedings, and solution-focused consequences or sentences. This would include an assumption that we want the attorney to do a good job, and that the attorney is simply attempting to do a good job for his client.

What then?

We might assume that the attorney simply wants the opportunity to protect his clients rights, and that might include an opportunity to terminate the polygraph before it is complete. Video solves that problem, without immediate interpersonal interference, and would allow the attorney to prevent the development of evidence that is contrary to his client's interest while allowing the process to proceed if it appears that will not occur. Termination of an exam, while annoying to the examiner, has no real affect on the accuracy of other legal proceedings. If we allow PO an therapists to observe polygraphs when they refer clients for testing, why would we not permit an attorney or even a magistrate to observe the test? To do otherwise would be to concede that the polygraph is not actually a scientific test, and is only useful as some other form of information gathering. If its not a test, then we'd better be prepared to lose the long game.

Why couldn't the targets be clarified and agreed upon in advance, with the understanding that the exact language will be adjusted by the examiner and examinee at the time of the test? The attorney, if he is not already aware, should be advised that all polygraphs are challenging, and that it is not uncommon that examiners may cause even truthful persons to feel bad about themselves as a result of challenges to integrity that occur in the course of trying to administer a proper and fair test.

Another thing to think about in forensic testing, is that objectivity of the evaluator is obviously important. So, is this one of your own therapy clients? Ebvan mentioned before about how even investigators who are polygraph examiners will refer to other examiners regarding investigations in which they are actively involved. It is not uncommon for therapists of long-term clients, especially forensic therapy clients, to refer to other professionals for objective assessment of progress.

r

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"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)