Attorney / Client Testing
 

In the majority of privately arranged polygraph examinations in criminal cases the process begins with an appointment made by or through an attorney.  One exception to this general rule involves situations in which a client has been charged with a sexual offense and is undergoing an evaluation through a Certified Sex Offender Treatment Provider (CSOTP).  In these situations, it is the CSOTP that usually makes arrangements for testing.  Another exception would be a situation in which allegations of sexual misconduct have been leveled at the client in a family court matter when those allegations have not led to the filing of a criminal charge.  (Additional information about these cases can be found under “Testing Individuals with Pending or Filed Criminal Charges Involving Sexual Misconduct” and “Testing Individuals Against Whom Allegations of Sexual Misconduct Have Been Made, but No Criminal Charges are Pending”.)

Potential problems when testing is done in an “information vacuum”

When pre-test information made available to the examiner is limited or sketchy, it is likely that additional session time will be needed by the examiner to obtain pertinent information from the test subject him or herself.  A session that would otherwise take as little as ninety minutes, might well take up to three hours.  This can be more problematic when the test subject has difficulty communicating with others,  In that kind of a situation, It could become necessary to schedule a second appointment to complete the interview and test process.

In addition, when pre-test information is sparse, there is the risk that the test issue and related questions best suited to strengthening an attorney’s case might be missed.  Resolving an issue later deemed to be of lesser importance by the prosecuting attorney would not be helpful. The individual making a referral for testing should expect to be asked to furnish available reports and other relevant information to be reviewed by Mr. Podoll several days in advance of the test session.

Decisions on a test issue and test questions

Attorneys often propose issues they’d like to have addressed, and sometimes recommend specific test questions. It is important to understand that there are some issues that do not lend themselves very well to polygraph testing.  Some issues and some of the questions recommended to address a particular issue may have to be altered, and at times, discarded in favor of an alternative issue or alternative question. This would be necessary if research has yet to demonstrate that valid test results can be obtained with a particular type of question or issue of concern.  Mr. Podoll will discuss these matters with the attorney to reduce the possibility of confusion and unfulfilled expectations.   NOTE: Please read information under “Tests Issues – Screening Exams vs. Diagnostic Exams”.

What should an attorney tell their client about the test?

Although some examiners handle this situation in a different manner, Mr. Podoll strongly encourages attorneys to refrain from any pre-test conversation with their client about what specific issues or questions the client can expect to be asked during testing.  Such pre-test emphasis on specific questions is seen as a factor that very well could enhance the chances of obtaining an unfavorable test result (a “false positive” finding, ie. declaring the truthful person to be untruthful).  It is best if the client is told that all they have to do to pass the test is to tell the truth.

The test subject will not be asked any surprise questions

All test questions are discussed with the client before the time of actual testing. Most examiners, whether police and private, can be expected follow essentially the same test procedures.

Positive test results obtained by a private examiner are typically accepted by prosecuting attorneys

In most cases, the accuracy of a favorable test outcome obtained by a private examiner will not be called into question by the prosecuting attorney.  As a result, it is unlikely that the client will be asked to participate a follow-up re-test done by a police examiner. It is not unusual, however, for the prosecuting attorney to ask that the private examiner’s charts, questions, and scoring data be reviewed by a police examiner.

It is critical to know whether the client’s story is accurate and complete

Accused persons are often frightened about the potential deleterious consequences that the allegations made against them might have on important aspects of their lives should they fail to prevail in court.  Their careers, relationships with others, and their personal liberty may be at stake.  As a result, it is not too surprising to find that clients will often lie about or attempt to minimize what their involvement may have been in the situation alleged when questioned by their attorney.   

Attorneys need to know if their client has distorted or withheld information from them. A good defense cannot be developed if that defense is built on bad information.  Polygraph interview information along with the test results themselves can be expected to yield information that is likely to be of great help in weighing the value of the information previously provided by the client. 

Open court is not the place to discover that there has been critical relevant information that the client has been withholding. The time to obtain additional reliable information from a client is through polygraph testing done at the early stages of working on a case. 

It is important to remember that, while examination results and associated interviews conducted in this manner are confidential and protected by attorney-client privilege, this information can be released to another party at your discretion.

Other ways that a polygraph test may help your case

A positive test outcome and other information obtained during a pre-test interview that puts your client in a favorable light, can be helpful in any case that revolves around a factual dispute between two parties. Criminal cases, civil cases, insurance disputes, bankruptcy law, marital and family law, sex abuse allegations, real estate law would be some examples of the kinds of situations in which this kind of factual dispute is found.

In criminal cases in which neither party has a particularly strong case, a positive test outcome and information that puts your client in a favorable light may tip the scales in your favor. When, for example, you have reason to believe that the prosecutor may have doubts about the reliability of a key witness, positive test findings can provide the kind of leverage needed to negotiate a favorable plea agreement or to have the prosecutor dismiss the charge altogether. Even in those cases in which the prosecutor seems to have every confidence in the reliability of a key witness, your client can be examined directly about specific alleged behaviors that are the centerpiece of the prosecutor’s case.  A test result that indicates that your client is being truthful when denying involvement in those behaviors may well serve to erode the prosecutor’s confidence. 

In the same way, factual disputes between two parties over some circumstance in civil cases can frequently be resolved through the use of polygraph testing.

Bottom Line: Any forensic information that calls into question the credibility of one of the parties and weakens that party’s case would be an important tool to have when filing decisions are to be made, or when plea negotiations are to be joined. 

It is important to note that, in cases in which the critical issue to be resolved is what an individual’s intent or motivation may have been for engaging in some particular behavioral act, polygraph testing may not be as helpful.  Each case would have to be evaluated on it’s own merits in order to determined if there is some case fact or facts pertaining to some observable concrete behavior that could reasonably correlate with the issue of intent or motivation. 

Testing should be done sooner rather than later

Clearly, the time to schedule the client for testing is while the prosecuting attorney is still weighing the information provided by those investigating the case for them in order to determine whether a charge should be filed or not.  That information may be seen as weighing a lot less if the client’s side of the story is shown to be accurate by corroborating forensic evidence. If charges have been filed, positive polygraph test findings might well prompt the prosecuting attorney to amend or even dismiss the charge.

Arguments against having your client tested by an examiner employed by the police or by some other governmental agency 

Argument One: Because the interpretation of test data involves the element of subjectivity, it would be unwise to have your client tested by an examiner employed by the police or other governmental agency unless you know the examiner, know him/her to be experienced, and are confident that the examiner will be impartial.

Argument Two: If the prosecutor chooses the examiner, you run two related risks.  You risk not knowing what questions will be put to your client during the pre-test interview and during the time of actual testing.  You risk having your client’s responses to those questions revealed in a way that could prove harmful to your case.  In essence, you would be allowing the prosecuting attorney to conduct discovery about your case directly from your client.

Argument Three:  Because police examiners are typically highly skilled interrogators, there is the risk that the police examiner will elicit information from your client that is damaging to your case.  While the opinion of the examiner regarding the test results is generally not admissible in court, everything that your client discloses to examiner during the session is most certainly admissible.

Choosing an Examiner

As indicated above, any private polygraph examiner that you choose should have good credentials in terms of training and education, in terms of experience, and in terms of the reputation they have in the community for impartiality, honesty and experience.

The examiner that you choose should be willing, at your request, to make the pre-test materials, the polygraph charts, and all other test materials available to the police or government examiner for their review if the prosecuting attorney asks for such a review.

Protecting the confidentiality of the examination

Unlike the work done by an examiner employed by the police of other governmental agency, absolutely everything relating to an evaluation that Mr. Podoll completes is considered confidential; an attorney-client work product. If the examination has not been previously identified as an attorney-client work product, Mr. Podoll will ask you to provide a letter making this stipulation before the examination is scheduled.

Nothing about an examination Mr. Podoll has completed will be released to anyone else without your prior written permission.   Others inquiring as to whether Mr. Podoll has conducted an examination with your client, will be told that this is the kind of information examiners are not at liberty to share with them.

Scheduling an appointment.

If you prefer to have your client tested at your office or in a closed setting such as juvenile or adult detention, phone or e-mail Mr. Podoll to set up the appointment.  Otherwise, it is more practical to have your client contact Mr. Podoll by phone after decisions have been made about the issue or issues to be targeted in testing, and perhaps about the tentative questions to be used when exploring that issue.  The client and Mr. Podoll will then chose an appointment time and date.  Your client and/or your client’s parent/guardian will be sent a map along with typed directions to the office Mr. Podoll uses.  Your client and/or your client’s parent/guardian will also receive a document with answers to the questions most people have about what polygraph testing is like.