posted 10-15-2012 09:10 PM         

The cops want an attorney's client to come in for a polygraph, but they won't provide the attorney with the RQs in advance.

The attorney wants his client to take a private polygraph first, but obviously needs the relevant questions the police want to ask.

In my experience, this seems to be a pattern with police polygraphs around here. Is it unique to my neck of the woods (New England)?

Why are the cops so reluctant to provide RQs to a suspect's attorney prior to the test? What's the big deal?

posted 10-15-2012 10:10 PM            

If the guy is charged with stealing a widget from Mr. Smith's garage, then we all probably know the question. If he's charged with rape and hasn't told his side of the story to anybody yet, then I don't know what the question will be.

posted 10-15-2012 10:18 PM         

But why can't the suspect, his attorney, and the cops have a sit-down to discuss the questions?

Once the questions are solidified, then the suspect can undergo a private test.

Whenever I broach that possibility, the cops shoot it down. Why?

posted 10-15-2012 10:53 PM            

I don't know why they'd say no. Maybe it's time. Maybe they want to do it themselves and won't play that game. Maybe they don't have any interest in polygraph. (I understand that is not the case with this case.) Maybe they don't trust the attorney or his or her examiner.

As an investigator, if the suspect was willing to talk, I'd have a conversation. Keep in mind, there is no attorney in the room during a polygraph after the paperwork is completed, and that's different from what you offer. If the prosecutor has the upper hand, expect that to be used to his or her advantage, real or perceived. The defense attorneys do the same. It's one case in many - and all parties (minus the suspect) will have more cases together down the road.

posted 10-15-2012 11:24 PM         

In an EPPA case, the subject get the RQs in writing beforehand.

That's the law.

I would think that the same "advanced notice" standard would be prudent in a criminal case -- especially if the suspect is looking at heavy time.

posted 10-16-2012 07:36 AM            

The standard of proof for employment law, EPPA, is different from, not as strict, as the standard of proof required by criminal law. Applying EPPA standards to a criminal matter would not be prudent at all.

posted 10-16-2012 09:07 AM         

quote:

---

Of course LEAs are suspicious of any attorney requested friendly test and will necessarily piss on any friendly result, as well they should.

---

Piss on any friendly result? As well they should? Why?

The "friendly examiner" hypothesis has been debunked.

Besides, the entire PF file, including continuous video, would be made available for the police to review.

In the case of clear-cut questions, who it is that conducts the test shouldn't matter, right?

Don't the cops view polygraph results as being accurate?

Or is that only when they run the tests?

posted 10-16-2012 09:28 AM            

What attorney would submit the entire file for review if the result was unfavorable to his client? None I have ever tested for!

posted 10-16-2012 09:31 AM         

quote:

---

Yes, only when they run the test and get a confession. Like some private examiners, they think their turds don't smell.

---

NOW we're getting somewhere!

posted 10-16-2012 09:35 AM            

You have at least one examiner here in New England who doesn't want to know what the police know when they don't have to share it. Instead, he will test on whatever issues are relevant based on the information he can get from the defense side of things. Thus, the "inconsistency" in the approach is on both sides.

There have been some bad tests in this area, and some are skeptical of tests proffered by private examiners. I'm not saying that's right, but it is an issue. Just Friday a judge told a defendant he had no interest in hearing about a test done privately by the defense. He said he'd give it more credibility if the person had submitted to a police test - a strange and seeming contradiction since he didn't seem to care for polygraph much anyhow. Nonetheless, that's a concern.

It shouldn't matter who does the test. If the goal is to be neutral and do the test right, then it makes no difference. But that gets us back to your website and using language that contradicts that position (thus making you look biased). That is, it might have something to do with how you are perceived by the police wherever it is you are having this type of problem.

posted 10-16-2012 10:59 AM         

I like a variation of what our polygraph colleague Jim Johnson calls "the two polygraph rule."

For the sake of our discussion, let's call it the "I'll Show You Mine If You Show Me Yours" Rule.

It goes something like this...

Suspect takes a private polygraph. If the result is favorable to the client, the attorney offers the complete file, including video of course, to the authorities for review.

If the authorities decide to run their own polygraph, fine. BUT, if their result is not consistent with the private test, then the police polygraph file must likewise be made fully available for QA review.

This form of mutual QA review strikes me as being prudent and reasonable.

What's wrong with that?

posted 11-09-2012 11:42 PM            

I wouldn't be as interested in learning the RQ's in advance as much as I would want to review a copy of the police report(s) that detail the reported crime. Isn't it only after reviewing the "facts" (police reports, etc.), and pre-test interview when the RQ's should be established? Why presume relevant questions structured before review of reports/evidence and any pre-test are valid and sufficient to render a conclusive opinion?

Attorney's I've worked with instruct their client and the police examiner there is to be no discussion/conversation outside the inquiry of the relevant issue and questions needed to establish an examination.

I don't understand any attorney asking for information for a polygraph. Indicates they are considering possible use of an examination and once the police learn this, and are not approached with (NDI) results in the future, they are likely to presume if an exam was administered it was DI. More often than not they would be correct.

After "Discovery," what information that is in possession of the police that relates to the crime does not have to be shared/disclosed?

Sounds like an ignorant judge that believes police examiners have more credibility or an exam is more credible if administered by police. Back to what I stated earlier, only an incompetent attorney would permit their client to be examined by police without knowing results in advance. This can't be known without an examination by a private examiner.

posted 11-13-2012 09:15 AM            

quote:

---

only an incompetent attorney would permit their client to be examined by police without knowing results in advance. This can't be known without an examination by a private examiner.

---

Why must an attorney be incompetent to allow his or her client to submit to a police test without a private test first? If the examiner is neutral, then it shouldn't matter, should it? What does an attorney do when he or she is court appointed and there is no money for polygraph? I've done many tests in such situations, and the "incompetent" attorneys have seen their clients released and charges dropped. Had they listened to your advice, they would have stayed in jail and who knows what would have happened from there?

I've seen some fail, and in those situations the the attorney usually still finds it helpful to better manage his or her client's case. Sometimes attorneys know their client is going to fail and they want it to occur in front of the prosecutor. Why? Because they know their client is doomed to worse if the client continues to deny a charge for which the likelihood of conviction is high. In other words, accepting responsibility and entering a plea is in the client's best interest.

posted 11-13-2012 06:18 PM            

If police don't know conclusively and without doubt your client committed the crime for which they were arrested, why give police the opportunity to polygraph your client (before YOU know what the results of their examination should be)?

It does matter if police test first and this is very critical as a competent police examiner can and will gather information/evidence against the defendant, the worst of which could be a "DI" examination, admission or confession.

No doubt you are aware that defendants do not always relate honestly to their attorney's. How many defendants have you examined that lied to their attorney relative to facts of a crime in which they were involved?

A defense attorney should not give police/prosecutors any opportunity to learn information ahead of them. In my opinion, to do so is definitely incompetence as the attorney is then not acting in the best interest of their client!

What do you say to your client after they tell you (the defense attorney) they were not involved in the crime for which they were arrested, you believe them, send them to the police (before a private examiner) and the police examiner runs them "DI?" Or worse, police get an admission/confession? Now they have more incentive to pursue the investigation and prosecution. "Oops" doesn't work, neither does "sorry." Just what do you tell the client? How do you explain your incompetence? It's their fault because they lied to you?

No doubt there will be cases where a defendant is not tested by a private examiner and is cleared by a police examiner. All I'm saying is (I believe) it is incompetence on the part of an attorney (with or without funds) to allow a police exam without knowing what the police exam results should be. Too much to risk.

When it comes to doing what is in the best interest of the client I'll use the broadest brush of common sense possible. I don't see any advantage in releasing a client to police without knowing in advance what will or should occur during their contact.

Bill2E - I don't believe a prosecutor can prevent a private examiner from conducting an examination but they can certainly challenge the admissibility of the results.

END.....

[This message has been edited by Poly761 (edited 11-13-2012).]

posted 11-13-2012 11:53 PM            

An attorney should have the case facts from discovery. His examiner should be able to formulate the questions for the examination. The police examiner should not furnish the questions, they may be changed during the pre test interview depending on the nature of the pre test.

The attorney, in my opinion should not let anyone know his client is taking an examination, unless the client is NDI, then he should submit his examiners records to the prosecutor for evaluation.

The original statement you made questioned why police don't give the attorney specific questions they are going to ask.

[This message has been edited by Bill2E (edited 11-13-2012).]

posted 11-14-2012 06:09 PM            

quote:

---

If police don't know conclusively and without doubt your client committed the crime for which they were arrested, why give police the opportunity to polygraph your client (before YOU know what the results of their examination should be)?

---

How do we ever know "conclusively"? Even a passed test doesn't tell us conclusively.

quote:

---

If police don't know conclusively and without doubt your client committed the crime for which they were arrested, why give police the opportunity to polygraph your client (before YOU know what the results of their examination should be)?

---

You seem to think that's bad. I've once got a pre-test confession that resulted in striking language from the indictment. That is, it benefited the defendant. He'd have been fried without it - perhaps federally.

quote:

---

A defense attorney should not give police/prosecutors any opportunity to learn information ahead of them. In my opinion, to do so is definitely incompetence as the attorney is then not acting in the best interest of their client!

---

Again, you seem to think admissions are bad. My intern did a test several weeks ago while I, the defense attorney and the prosecutor watched. The defense attorney - very well known and respected - bet the client would fail. She did. He didn't let her say much after, but he used the test to better manage the case. That is, he knew the prosecutor was after a bigger fish. She could maintain her story and fry on her own (an admission wasn't needed to win the case), or she could wake up and cooperate and save herself. It was a calculated decision on the part of the attorney, and for any of us - untrained as lawyers - to decide it's incompetence is, in my humble opinion, wrong. However, if you want to file a complaint with the board of overseers of the bar, I'll give you the information. I can tell you how it will turn out though....

quote:

---

When it comes to doing what is in the best interest of the client I'll use the broadest brush of common sense possible. I don't see any advantage in releasing a client to police without knowing in advance what will or should occur during their contact.

---

You're begging the question. What you've essentially said is that it's in the best interest of the client because it's common sense that it's in the best interest of the client.

quote:

---

I don't believe a prosecutor can prevent a private examiner from conducting an examination but they can certainly challenge the admissibility of the results.

---

posted 11-14-2012 08:22 PM            

Regarding whether or not we know, conclusively, a client committed a crime, my point and bottom line to my statement is WHY give police a chance to gather incriminating information against the client if you haven't interviewed, interrogated or examined the client (first)?

You can add to the issue with circumstances all you want; and yes, there can and likely will be circumstances that suggest changing from an established standard, i.e., no police test before a private test. But, in my opinion; and we obviously have a difference in professional opinion regarding this issue, the percentage when a police exam occurs first should be very low.

You, and the attorney's you deal with apparently choose to work in what I consider a "loose" manner that puts the client's neck on the line. Yes, I do believe it's "bad," as you state, to allow police the opportunity to examine a client before a private examination. The private exam is protected as work product, no protections for the client with police.

Again, what do you tell the client you turned over to police after they've obtained information they can use against the client? Information that could have been learned had the client's attorney worked first. If the client seeks counsel from another attorney do you believe they may hear the words "incompetent" or "malpractice" as they relate to the initial attorney?

While I understand we all have our ways of dealing with issues, I don't understand why a police examiner wouldn't test after a private exam, especially if they find a "fatal flaw" with the exam that benefits police. If I were a police examiner I'd advise the prosecutor about the "flaw," say nothing to the private examiner/attorney and take advantage of this knowledge. I would structure what should be a solid test and hopefully obtain solid exam results. The results might not be what a prosecutor was looking for despite the previous "flaw" but the exam is hopefully completed with a defensible opinion.

Admissions can be "bad," especially if you were not aware in advance they were going to be made to a police examiner/investigator. I'm referring to issues where the client goes to police before you know exactly what they will be saying. How in the world can you possibly believe the client is not in jeopardy in a situation such as this?

It appears you work in quite a different environment than I experienced. In my experience with defense attorney's, primarily in CA, it would be a cold day in hell before they would permit a prosecutor to view an ongoing examination of a defendant? The video and charts, should the defense attorney choose to release them, should work fine when reviewed by a competent examiner. As I previously stated, most, if not all, would (not) want a prosecutor to know an exam was being administered.

END.....

posted 11-14-2012 10:58 PM            

I recall one test for which the examinee was tested by a private examiner first. I got the test, which was terrible. I scored the test for kicks, but I had no faith in the results, and it scored as DI. I called the examiner to ask what was going on, and I recall him saying something like he gave the guy "a pass" on that question but thought it was a little concerning. I then called the attorney - I didn't keep it a secret - I couldn't, in good conscious, do that to him. I let him know the problems with the test and my conclusion. I told him I had no faith in the test because it wasn't done correctly and the questions were not appropriate. I told him I'd gladly test his client, but I was concerned that his private test might have given him a false sense of security. He thanked me and I never heard from him again. My point - I never met the guy and I still had damaging information, which I had to explain to the prosecutor (as did the defense attorney). The only other test I can recall was one that a private examiner did that was inconclusive, and the attorney didn't want to spend the time on yet another and then still have to submit to a police exam.

So, the left coast sounds like a place we on the right coast wouldn't do so well. It is routine practice to speak to people with their attorneys. Heck, I've called attorneys for suspects before, and they come into the station - pro bono. Some people are afraid of the police but have info we need, and sometimes an attorney they trust can broker a deal for both of us. An attorney's job isn't always to make sure his client gets off, but to protect his rights and challenge the State's evidence or theory. And sometimes it's his job to get his or her client to wake up and smell the coffee, and it's not always wise for the first interrogation to take place when his client is on the stand, if you know what I mean.

posted 11-15-2012 07:17 PM            

Sometimes the attorney's are there for the test, sometimes not. The investigating officers are in contact with the attorney, in order to set up the test. The attorneys usually give them instructions, if they are not at the test, not to talk to the clients once the test is finished, i.e. no interrogation if there is a DI result.