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2011 Edition of

The Magazine of the Ohio Association of Criminal Defense Lawyers

VINDICATOR

A PRACTICAL APPROACH TO USE OF POLYGRAPH

By William Evans

“You are the embodiment of the information you choose to accept and act upon. To change your circumstances, you need to change your thinking and subsequent actions.” Adlin Sinclair, author and motivational speaker

Sinclair’s view is straightforward: free choice exists and most individuals are capable of changing the environment in which they find themselves. It’s easy enough to see how this view can be seen through the multifaceted prism of our legal system.

The concept of “influence by osmosis” (1) was explained in a recent issue of the Vindicator as a systematic and progressive conditioning of another’s beliefs, thereby causing the other to adopt a disingenuous version of the truth. Many times the “victim” of such “influence by osmosis” is subjected to what is called “ambient information.” (1) That outside information corrupts the recipient’s understanding of the facts of a situation to such a degree that the pure version is destroyed in the process. The process can be subtle – sometimes undectable to most, but the ramifications, particularly in law, can be tremendous.

Think of a bullfrog plunged into hot water. It will jump out of the pot because of the sudden, uncomfortable change in temperature. However, the same bullfrog conditioned in water that gradually increases in temperature will eventually boil to death. Many “victims” of “ambient information” are conditioned in a similar way by being immersed in an environment that subtly becomes toxic over time. “Ambient information” and “influence by osmosis” work much the same way and occur more often in family and criminal law than one might expect.

The vehicle can be non-verbal communication or gossip or any number of things that slowly raise the temperature in the pot. This concept can affect or effect anyone subjected to a potentially protracted criminal, civil or domestic law case. The defendant (or plaintiff) becomes the embodiment of the information they choose to accept. More times than not, it’s human nature to be quick to accept information that casts him or her in a positive or good light. However, information that makes them appear bad or that could adversely affect their future is not easily accepted or, at times, completely disregarded. Then counsel must encourage the defendant to accept reality. This is often a difficult task. Effective counsel includes helping defendants to examine -- and accept -- the reality of their circumstances, which may include jail or prison time, or other adverse consequences associated with bad behavior, irrational decisions, or even mistakes in judgment they don’t particularly want to face.

It is always important to be mindful that the best historian of the facts is a client who actually committed the crime. Innocent clients are poor historians, which is why it is so difficult to disprove a negative. Polygraph testing is an extremely useful tool in the assessment of which type of client you are representing. After all, none of us is a mind reader.

Innocent or guilty, a client must adopt ownership of his or her own defense strategy. The dynamics leading to client’s understanding of the strategy require gaining client control. A successful defense strategy may be to achieve a guilty plea to lesser and included offense(s), or perhaps the client’s acceptance of guilt while positioning himself or herself for a more favorable sentence or consideration by the Parole Board. Getting a client to face the truth, confess wrongdoing and accept responsibility – even in a confidential setting – is not always a simple task for defense counsel.

A confidentially administered polygraph examination assists the defense counsel in encouraging the client to admit the facts necessary to advance a better defense on the client’s behalf, whether it be through a trial, plea bargaining, the investigative process, or just for defense counsel’s own background knowledge. Interestingly, it is not unusual to conduct private/confidential polygraphs to protect counsel from a client’s claims of ineffective assistance of counsel in the event that client is convicted at trial. Notably, a very high percentage of defendants who take a private/confidential polygraph will confess, or provide inculpating admissions, should they not “pass” their polygraph examination. Naturally, those who are truthful, can utilize the results in a defense strategy under the Daubert (2) motion for admissibility of the polygraph examination results absent agreement and stipulation under Souel . (3) Alternatively the results may be admissible under State of Ohio v. Sharma CR 06-09-3248. Each case was cited and briefly discussed in the article, “The Utility and Admissibility of Polygraph Examinations,” in the Winter 2010 Vindicator. (4)

Adlin Sinclair’s quotation is quite relevant when considering client “control.” Simply put, if clients are not willing to admit the truth about their involvement, they may be stuck with less desirable outcomes than had they chosen to accept the truth and admit it to the polygraphist and counsel, allowing for a better defense strategy and perhaps more favorable results.

HOW TO APPROACH AND PREPARE THE CLIENT FOR TESTING

Ensure that the client gets a good night’s sleep prior to testing and avoids using intoxicants. If on medication, he or she should continue taking it as prescribed. Advise that the use of barbiturates, amphetamines, hallucinogens or similar drugs is readily detected by an astute polygraphist and deemed a counter-measure tactic. You should also advise that test anxiety and nervous tension is normal in most examinees and that those feelings will not have a negative impact on test results.

Do not go into technical detail about how the polygraph works. Generally, discussion of such matters will only confuse the person. It is, however, appropriate for counsel to explain that the polygraph records a variety of response(s) that cannot be controlled, such as heart rate and blood pressure. Do not elaborate further. Allow the polygraphist to explain the involuntary nervous system responses and the recording parameters. If you’re not accompanying your client to the polygraph suite, advise him that it is appropriate and customary to sign a waiver and release form before the testing; everything is confidential and privileged.

HELPING THE POLYGRAPHIST PREPARE FOR TESTING

A written synopsis of case facts, police reports, newspaper clippings or other documents will assist in structuring proper test questions. By providing this information to the polygraphist well before the test, time will be saved in explaining the case.

Provide the polygraphist with information about any of the client’s health concerns and psychological disorders. These conditions do not necessarily preclude accurate polygraph testing, but they should be made known to the examiner before the test.

Always tell the polygraphist whether your client has undergone prior polygraph testing. The polygraphist should also be advised of anything else, such as unrelated guilt feelings the client may have, that could affect results.

Provide the polygraphist with the prosecutor’s version of facts as well as your client’s. It is important the polygraphist know both sides in detail so that the appropriate test and methodology and test questions can be used during the examination. Full disclosure is necessary. The polygraphist will be fully prepared and counsel’s presence will not be necessary. All preliminary material can be handled over the telephone.

THE POLYGRAPH PROCEDURE AND ITS USE

Procedurally, most polygraph examinations are somewhat similar, although test question formats vary slightly. The polygraph examination will begin with a pre-test interview and explanation of testing procedures, as well as the polygraph device and its attachments. The examination will take 2 to 3 hours and include a series of tests lasting about 4-5 minutes each. The “dialogue phases” of the polygraph examination are a critical component to a well structured examination.

During the pre-test interview, the polygraphist will complete a biographical questionnaire and gather information about client’s personal history and physical/psychological condition. During this interview, the polygraphist will also attempt to resolve inconsistencies in the client’s version of fact(s), enabling the polygraphist to comprehend the client’s version while insuring an accurate evaluation of the test’s results. Counsel may observe and could compare statements given to the polygraphist with the one(s) given during private consultation. Besides evaluating the statements for consistency, the counsel can use this portion of the interview to assess how well the client will stand up under cross examination at a later date.

In conclusion, private/confidential polygraph testing has virtually no “down side;” to the client, and may greatly assist in the “theory of defense.” In fact, guilty or innocent, the process will advance the case, posturing it for more efficient closure.

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Works Cited

1. To the author’s knowledge, this is the first use of these terms relative to human

behavior/condition.

2. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir.1995); 509 U.S.

579 (1993).

3. State v. Souel (1978), 54 Ohio St. 2d 123, 372 N.E. 2d 1318, 1323-24 (Ohio 1978).

4. Evans, William., “The Utility and Admissibility of Polygraph Examinations.” 15,

Vindicator, Winter 2010.

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Mr. Evans is a neutral expert, with law enforcement agencies, defense and prosecuting attorneys forming his client base. He was first certified as a law enforcement polygraphist at the National Training Center of Polygraph Science and later trained for computerized polygraph testing at the Department of Defense Polygraph Institute; is currently certified by the American Polygraph Association for post conviction sex offender testing through the Maryland Institute of Criminal Justice. He has lectured nationally, and internationally on the topic of polygraph, and is adjunct faculty in the Department of Criminal Justice, University of Akron. He owns Poly-Tech Associates, Inc. and can be reached at (330) 434-2344; www.polytechassoc.com.

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