posted 01-11-2006 12:43 PM            

Under what circumstances, if any, is it permissible to discuss anything learned from the examinee with a person(s) not specified in their "Release?"

END.....

posted 01-11-2006 02:19 PM         

My release does not specify certain individuals to which the results may be released to. The first part of my release states " I have no objection to the use and release of the results of said test by the duly constituted law enforcement authorities to ANY party, unless otherwise specified, for any purpose in connection with ___________________________.

The second part reads "I hearby release the officers of ___, the polygraph examiner, and any other duly authorized agents or officials from any and all liability connected in any way with the test or use of the results thereof".

I release pre-employment polygraph exam info to other police agencies only after I receive a signed waiver from the applicant.

AD

posted 01-11-2006 06:55 PM         

It would depend on what type of test it is, who the client is, who the examinee is (are they one in the same?)and many other factors. A good rule of thumb is to never release the results or the interview content to anyone not approved by the examinee and the client.

posted 01-12-2006 11:18 PM         

It's completely legal and one is morally obligated to pass along criminal admissions made in the interview to the proper authorities. After all, the exam is voluntary, and the examinee should have signed a release waiver.

AD

posted 01-13-2006 01:38 AM            

I believe we'd agree we subject ourselves to civil liability if information is released without authorization by the examinee. It is this concern relative to civil liability that prompted my initial question.

There could be a moral obligation to forward negative information learned. With most agencies I am familiar with (law enforcement, pre-employment) they chose to deal with the examinee only, most often with a "DQ." The examiner is restricted by the policies of the agency. Major issues may be an exception.

Examinees involved in a law enforcement criminal exam with a Release is not a problem. Miranda may become an issue but that's another subject.

In the private sector, release of information is restricted by the client, most often an attorney. Most often what we may see as a "moral obligation" is restricted by a civil legal obligation.

posted 01-14-2006 02:05 AM         

As already commented upon, I also believe the wording of the Release form will be dependent upon whether or not the test is being performed by Law Enforcement or Private examiner. If done by law enforcement-obviously the Miranda warnings should be included- (Law enforcement by statute are required to enforce the laws of their State (or Federal)and investigate crimes; and it is well known that police from one jurisdiction have always shared information with other agencies) Therefore information given by the 'client' relating to a crime committed or information pertaining to criminal activity during the polygraph proceeding can be shared within the law enforcement community. The 'client' has no expectation that the information he gives about a crime will be "kept secret" by the police examiner from other police. The Miranda warnings come into play because he is a 'suspect' and to show a voluntariness of the statements obtained- which may be used 'against him'(self-incrimination). If the 'client'gives information about a crime or criminal activity unrelated to him- it has no impact, although the police may have to testify later if he baulks or recants the information if he is called as a witness to someone else's trial (and he was not a co-defendant or given a 'deal').

Private examiners on the other hand are
'citizens,' they have no obligation by statute to maintain 'confidentiality' nor do they have an obligation to give Miranda Warnings. But- 'clients' have an expectation the information they share will be kept 'private/confidential' and not 'openly' discussed with the examiners friend's and relatives-which falls under a code of ethics (APA for one). Attorneys who utilize polygraph services want to ensure they are not placing their 'client' into the fire from the frying pan- meaning he is truthful to the burglary issue at hand, but admits to two dozen others in the past. Therefore the Attorney wants a 'confidentialty statement' that the examiner will not divulge information obtained to any other person.

However, I believe there are "exceptions to the rule" not unlike a 'client' who tells his therapist he has made plans on killing the wife- or has been molesting his neighbors 5 year-old daughter. There is an obligation "to protect" and which may be required by law depending on your State.

So, I have chosen to word my Authorization and Limits of Confidentiality Form as such:

Authorization and Limits of Confidentiality

I, (Print Name) ____________,voluntarily agree and consent to a psychophysiological veracity examination for the purpose of assessing the truthfulness of my statements concerning an issue or issues under inquiry. I fully expect: [a] to be treated with respect and dignity throughout the examination; [b] to be permitted to terminate the examination and leave the premises of (Business Name) at any time; [c] to receive an explanation of the polygraph instrument in advance of the collection of chart data; and [d] to know every test question in advance of the examination.

I acknowledge that by consenting to the polygraph examination, I also consent to the use of an audio and/or visual recordings of the examination procedure.

The contents of client interviewing and polygraph testing procedures are considered to be confidential. Verbal information and written records about a client cannot be shared with another party without the written consent of the client and the client’s legal guardian if applicable. Therefore, I do hereby authorize (Business Name) and its employees to collaboratively share and exchange information in preparation for the examination, disclose both orally and in writing verbal disclosures during the polygraph procedure including, but not limited to audio and visual recordings of the examination proceedings, examination results, and opinions to:
[1] ______________
[2] ______________
[3] ______________

However, the following exceptions to confidentiality shall apply:

Duty to Warn and Protect:
When a client discloses intentions or a plan to harm another person, the polygraph professional will report this information to legal authorities to warn the intended victim. In cases in which the client discloses or implies a plan for suicide, the polygraph professional will make reasonable attempts to notify the immediate family of the client and/or the appropriate social service.

Abuse of Children and Vulnerable Adults:
If a client states or suggests that he or she is currently abusing a child (or vulnerable adult) or has recently abused a child (or vulnerable adult), or a child (or vulnerable adult) is in danger of abuse, the polygraph professional will report this information to the appropriate social service and/or legal authorities.

Minors/Guardianship:
Parents or legal guardians of non-emancipated minor clients do [ ] do not [ ] have the right to access the client’s records.

Court Orders:
Polygraph professionals are required to release records of clients when a court order has been placed.

In consideration of and as inducement for (Business Name) to conduct this polygraph examination, I do hereby release and hold free from all harm, liability or damage (Business Name) and its employees. In addition, I knowingly release, waive and forever discharge (Business Name) and its employees from any and all suits, actions, claims, demands, or liability resulting from the examination; including the use and operation of the polygraph instrument and all electronic audio/visual recordings.

I HEREBY CERTIFY that I have read and agree to the aforementioned conditions.

Client:________

By the way, I believe 'What should be added to this form'- is a limitation of time that a Release of information is valid (such as 1 year from the date of signing) before a new Release would be required.

Just my 2-cents;

posted 01-14-2006 09:03 AM         

I like your release but I have got to disagree on your interpretation of Miranda. A Miranda advisement is reuqired when two factors have been met:

1. Questioning by the police or any agent of the police.

2. CUSTODY!

If a "suspect" comes in to take a voluntary test, and is not in custody, no Miranda advisement is required. In California, we use a "Behealer" (sic?) admonishment which advises the suspect that his cooperation is voluntary and he is free to leave at any time.

Giving a Miranda warning when it is not required can cause a talkative suspect to clam up quick!

posted 01-14-2006 11:12 AM         

You are correct. I am a police examiner and I never advise miranda when the criminal exam is a non-custodial exam. I also preface the pre-test interview with "voluntary exam, no warrants for you at this time, and free to leave at any time". Of course if the examinee has been transferred to my office from the jail or is under arrest (custody), miranda is used.

posted 01-14-2006 12:16 PM            

Just for trivia info though, a State of Maine statute requires that a person being tested on a crime - in custody or not - be advised on his constitutional right to remain silent and not incriminate himself - about half of his Miranda rights - even if his attorney is there. The practice is though - in both private and law enforcent tests - to read everybody Miranda. I have never heard of a person backing out at that point. It's probably happened, but I can't think of a case. I think it's all in the presentation, and I think we as examiners are in a better position to get people to waive than some guy who's coming in "cold" off the street. By the time you get to the interrogation stage, you've put some distance between the Miranda issue, which you can then mention more briefly or informally to save a confession that turns the situation into a custodial one, e.g., a murder confession.

posted 01-14-2006 04:41 PM         

Your absolutely right and correct concerning ‘custody.’ Although I would add ‘just exactly when a person becomes in custody’ is arguable from a defense stand point. I think we would agree any limitation on the free movement of an individual places him in ‘custody.’

Suppose however the police have enough ‘physical evidence’ to obtain an arrest warrant for an individual or make arrest on probable cause without a warrant- BUT the police choose not to; instead the police make an effort to obtain a ‘statement’ from the suspect (either alibi, denial or admission) and interview the ‘suspect’ in their own home regarding the crime. The police tell the ‘suspect’ he is not under arrest to further the interview process and therefore the ‘suspect’ is not ‘in custody’ and Miranda is not given. The police do not make an immediate ‘arrest’ and leave the residence although they know however an arrest warrant is forthcoming based on the ‘physical evidence’ at a later date (since there was no custody- no Miranda required). One of the issues will become did the police officer interfere with the ‘free movement’ of the ‘suspect’ in his own home.

On the other hand, if the police go to the home with the preconceived notion they intend to make an arrest ‘without a warrant on probable cause’ and tell the ‘suspect he is not under arrest just to get an interview-then I would argue the ‘suspect’ was in a ‘constructive custody’ and Miranda is needed.

I speculate the same type of situation can occur in the police station- a ‘suspect’ voluntarily comes to take a polygraph, led through a maze of hallways into a room. There he is told he is not under arrest and free to go- therefore no Miranda is given- yet he cannot arbitraily get up and walk around the police station unattended to get coffee, candy etc. The ‘suspect’ gives verbal statements of alibi, denial, or admision during the pre or post test interview, walks out of the polygraph office and gets arrested down the hall by the detective who bases his arrest on probable cause as the result of other evidence. I highly suspect the defense attorney will present a very good case to have the ‘statements’ given to the examiner suppressed at trial.

“Giving a Miranda warning when it is not required can cause a talkative suspect to clam up quick,” I understand your concern and reasoning- as I’ve ‘been there and done that’- but I would also say I’ve learned giving Miranda was not as much of a henderance as I once thought. Kinda depends on how much rapport was truely established with the ‘suspect’ prior to giving Miranda.

In Court it boils down to which one, the prosecutor or defense, that can present the best arguement and not necessarily the truth of the matter.

Obviously you go with what your Prosecutor feels is the best course of action to prevent suppression of the statement or grounds for an appeal at some future time.

posted 01-14-2006 09:17 PM            

While you have a well-worded Release, in my opinion you identify too much. This is a serious issue but I'll add what is intended to be a small bit of humor - I'd be afraid to breathe much less talk after reviewing the release! No doubt you've been successful with it or would not be using it.

Regarding LE tests, Miranda alone (may)scare off an examinee but if a LE exam, the examiner probably is not the first person to contact/interview the examinee. I can't recall a LE criminal exam where a suspect/examinee was not "Mirandized" before they arrived for a criminal exam. I don't believe there is an obligation for an examiner to "Mirandize" an examinee if this has already been done by an Investigator or other LE personnel.

I would not add all the admonishments identified in your release, to many "hooks" for an examinee to hang onto in refusing the exam. LE or private exam, I'm only interested in conducting the exam regarding the issue(s) and then securing an admission/confession if "DI." While I will attempt to obtain (all) pre-test information that could impact the exam, I believe it's my first responsibility to deal with the issue(s) that prompted the exam request.

During the pre-test interview I will downplay any information learned about other acts the examinee admits to. I'll do as best as I can to structure my questions to ensure other acts will not contaminate my question(s). I will only inquire about and pursue as much information about any prior act to ensure I will be using solid question(s) pertaining to the issue under investigation. I will pursue all (other) issues during post-test & after the immediate issue has been resolved.

Attorney's I have conducted exams for want to know if their client was in any way involved in the crime(s) for which they were arrested. If, one or more exams are required to resolve an issue; and if the client is "NDI," then the attorney may consider allowing the client to submit to a LE exam. Theory: Results by one competent examiner should be the same as the second competent examiner covering the same issue(s). If allowed to be administered a LE exam, attorney(s) will not likely allow LE personnel to question their client about crimes other than the issue(s)under investigation. Of course, as we know, all private exam work conducted for an attorney is protected by the "attorney-client" privilege.

Regarding Miranda. I will disagree with your comment stating "- a suspect comes in - voluntary test - no Miranda advisement is required." A "suspect" may be free to leave at any time (but) they are still a "suspect." It is my understanding Miranda is always required if you hope you use any statements made by a "suspect."

If a person is not suspected of involvement in a crime why would anyone in LE request a criminal exam? As true with most Investigators, I would never "Mirandize" until I'm confident I've reached the point in an investigation/interview indicating I'm likely dealing with a suspect. Might as well "Mirandize" at this point. If not, chances are good whatever is learned can't be used for prosecution. I'd rather "lose" the interview than the case because I did not comply with the Miranda requirement. Of course other evidence could be obtained to secure a conviction but what good is an inadmissible statement?

As we know the law regarding Miranda is the same across all our States? Obviously, this question deals primarily with LE but why examine without the examinee having been read and waived their rights? Exam results are not likely to be admitted, but I believe a pre-test or post-test admission/confession (after Miranda) has a very good chance at being used to prosecute.

Referring to the 2d para (1-14 @ 4:41). If I'm accurate about when Miranda is required I don't believe the Court would look favorably on a decision NOT to arrest in order to use a ruse to obtain a statement. LE may be walking a fine line in your example. If there's enough to arrest, in my opinion the person is a suspect and should be questioned after Miranda.

I don't believe the issue will deal with free movement of the invididual. I believe the issue will be whether or not the inidividual was a suspect in a crime. And, (if) a suspect were they "Mirandized" prior to questioning.

Thanks to all of you.

END.....

posted 01-14-2006 09:23 PM         

You PUNK! You can't bow out of this! Miranda is Federal Law and it does not vary from state to state. Even if your state makes a ruling, it would have to comply with Miranda V Arizona. I am too damn tired tonight to engage with you on this topic but I WILL BE BACK IN THE MORNING!

PS: I will see you in Maine!

All my love

posted 01-15-2006 03:01 AM            

I found and read some of the "Beheler Admonishment" in a CA POST Telecourse and an opinion of a San Diego DDA in a Legal Update dated 12-28-05, (both located via "Google"). I also contacted a CA examiner.

CUSTODY for Miranda exists, as you've indicated, if a person is formally arrested, freedom of movement restrained and is aware of this lack of freedom or reasonably believes it exists.

As you indicate CUSTODY is the issue. San Diego DA article stated "RULE: Telling a criminal suspect that he is not under arrest and is free to terminate an interrogation (MAY), emphasis added, eliminate the need for a Miranda admonishment and waiver."

Depending on case/circumstances and the use of the word "may" in the preceding paragraph I'd likely still opt for Miranda. As the Investigator I contacted indicated it could save a lot of grief. I understand this technique is used primarily in lower level cases.

posted 01-15-2006 08:45 AM            

What varies is what constitutes a tort (for somehow passing on private information, slander, libel, etc., the original purpose of this thread). You're right, Miranda is a federal court ruling, and all must follow it. Each state can be MORE restrictive than Miranda, and some are, but they can not be less restrictive. For example, my New York friends from polygraph school tell me the law there (which I haven't researched) is much more restrictive. A person can "lawyer up" while not in custody, something most police officers everywhere believe, but it's not the case in most states.

"Custody" varies from state to state as well, so you've got to know what that means in your state too. Is a guy in "custody" when attached to the instrument? You can argue it both ways. Who wins is a matter for the courts in each state to decide.

My point is only that I haven't found people to be as scared of it (Miranda) as I would expect them to be (in a polygraph situation), perhaps for the reasons somebody gave above.

posted 01-15-2006 10:38 AM         

First of all, I think we should all agree to blame Jack for this whole Miranda thing. After all, it was "Miranda V Arizona".

Miranda is the most over used law that I know of. On the same hand, you can never go wrong for giving a Miranda advisement even if one is not required.

There is nothing preventing a state from passing a law that reinforces Miranda. I would think if a prosecutor appealed to the federal ruling it would take precedent over any state law.

You are all correct that custody is not physical. It is a state of mind. If a reasonable persons "thinks" he is in custody, then he is and Miranda would apply.

Telling a suspect that he is free to leave when you really plan to arrest him does not get you around Miranda. In California, we have learned to bifricate Miranda. We will advise a suspect that he has the right to remain silent. If he invokes, we stop the advisement at that point. This leaves him open for another approach at a later time because he has not asked for a "lawyer". Once the "L word" is used, all communication must cease.

Miranda does not apply to a private polygraph or pre-employment examination regardless of who is administering the examination.

I did a pre-employment polygraph exam yesterday in which the applicant admitted to current criminal activity. He was dumb enough to provide a written statement(to help his background investigator better understand his situation). That statement was sent to his agency and was used as the basis for a search warrant. No Miranda was ever required or given because he was never in "custody" either physically or mentally.

I guess we could go on for hours about this but there is nothing worse than a bunch of polygraph guys trying to be lawyers! Fortunately for me, I work in a shark tank full of prosecutors and I let them make the legal calls. Bottom line is, if in doubt, go ahead and give the Miranda advisement.

On a side note, poor Jesus Miranda was stabbed to death in a bar fight in I beleive 1976. The statement of his killer was tossed out of court for.......you got it...a violation of Miranda. Go figure!

Stay safe!

posted 01-15-2006 11:29 AM            

I found it interesting in the Beheler case, on appeal, the defense argued "a threat of a polygraph examination converted the interview into an arrest situation." Testifying officers denied they threatened the subject in this manner. The 9th Circuit Court of Appeal stated such a threat alone would not convert the situation into one requiring Miranda.

My point is this. If (I) were involved in law enforcement and I thought Miranda might apply or could apply, I'd forget all the concerns about the Behler admonishment. I'd Mirandize. Bad enough you have to go verbatim regarding Miranda, advisement and response. I see too many landmine's surfacing when trying to explain how a suspect understood (all) the Behler requirements. But, this is me, or is it this is I!

On your side note was Jesus any relation to Ernest?

END.....

posted 01-15-2006 12:15 PM            

Anwer in Maine: He wasn't in custody until you placed him under arrest for the warrant (providing you did nothing else that would make a reasonble person who is not guilty of a crime think his freedom of movement had been restrained). (We have case law on that particular situation.) How many couldn't get away with that one?

A more restrictive state law can't and won't trump a federal law unless the federal law (inclduding case law) states the local / state law can't be more restrictive. That is why I can have a person in a situation here that would be custodial (as far as the courts are concerned) for Miranda purposes, but not custodial for Miranda purposes in some other state.

Miranda says custody + interrogation = need a valid waiver, but each state defines the particulars of "custody" and "interrogation" differently as long as they are consistent with Miranda and other relevant case law.

Don't forget, if somebody is charged with a crime already and you want to talk to him about it, his right to counsel attaches automatically, which means you need a waiver to talk to him about that particular crime (LE only, of course) even if he's not in custody. That's the Fellers decision. It's the Sixth Amendment verison of the Miranda Fifth Amendment issue.

posted 01-15-2006 01:22 PM         

You are correct...it was Ernesto and not Jesus! Also...I agree that this is a healthy exchange-I was just smarting off about the lawyers!