This blog will discuss polygraph examinations in criminal sexual conduct cases.  Specifically, in criminal sexual conduct cases, a defendant must be given a polygraph at his or her request.  This is not to say it is advisable to do so; always request and speak to an attorney first before taking a polygraph test.
Although not admissible at trial, a polygraph may be detrimental in other ways.  If a defendant submits to a polygraph, the police generally require that a lawyer may not be present in the examination room, and the examiner will ask detailed questions before and after the actual polygraph that are admissible at trial.  A skilled criminal defense attorney can help navigate this potentially tricky water.
In a recent Michigan Court of Appeals case, People v. Daniel Roger Corder, II, polygraph examinations were discussed.  The Defendant was convicted of criminal sexual conduct third degree and on appeal contended the Michigan State Police violated his Sixth Amendment rights when he was deprived of counsel during his polygraph examination.
The defendant in that case requested a polygraph interview.  When he arrived for the examination, the officer gave him a polygraph waiver form explaining his rights.  The officer read the form to the defendant, who said he understood the waiver, and the defendant signed the waiver.  The form stated:

I understand that the polygraph test and the questioning, before and after, cannot be conducted with a lawyer actually present in the examination room, and I am willing to waive his or her presence. However, I fully understand that I have the right to talk with and have the assistance of a lawyer at any time during the polygraph test or questioning and that I may stop the test or questioning at any time and exercise that right.

The Court discussed Miranda warnings prior to waiver of right to counsel at a polygraph exam.  The Court stated that giving Miranda warnings prior to examination is sufficient to establish the waiver as knowing and intelligent.
The Court also discussed whether conditioning the polygraph exam on defendant’s waiver of counsel presence rendered the waiver involuntary.  First of all, the waiver is not valid if the waiver is coerced.
To determine whether a waiver is coerced, a court looks at several factors:

  1. duration of defendant’s detention and questioning;
  2. age, education, and experience of the defendant;
  3. unnecessary delay of arraignment;
  4. the defendant’s mental and physical state;
  5. whether the defendant was threatened or abused;
  6. any promises of leniency.

In this case, the waiver was not coerced.  There was no intimidation, coercion, or deceit.  Defendant was not questioned for an extensive period.  His physical and mental states were fine.  He was not threatened or abused.  There was no indication of involuntary waiver.  Further, despite Defendant’s argument that he had to choose between his right to counsel and his right to a polygraph examination, this was done as a result of his free will – he was not required to take a polygraph nor would it be admissible in court.
As you can see, taking the police polygraph examination can be dangerous.  If you or a loved one are facing charges of criminal sexual conduct and you are considering submitting to a polygraph examination, feel free to contact our office to discuss your options.

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