The Polygraph Motion: When Defense Counsel Goes on the Attack

One concept that seems to be lost among the criminal law field is the power that the polygraph examination (AKA lie detector) can have on the court. While the law states that the polygraph is not admissible in court, many attorneys seem to lose sight of the power that a passed test can have on the outcome of a criminal trial. For years, we have understood that the polygraph is inadmissible at trial but there are other aspects of the litigation process that allow the test to play a vital role in the outcome of a contested criminal matter. With that stated, the purpose of this article is to determine if the alleged victim should be subjected to a polygraph? iStock_000025943007_XXXLarge-2-300x200

When we look at the Michigan Legislature, we see that MCL 776.21 (5) allows for a criminal defendant a statutory right to have a polygraph when charged with a CSC. What many fail to realize is that MCL 776.21 (2) explains that a law enforcement officer cannot offer a polygraph to the alleged victim. While the law presents information stating the lie detector does not play a role in the questioning of the complaining witness, we learn that there are exceptions to the general rule.

Scott Grabel is the founder of Grabel and Associates and has built a firm that is known as the strongest criminal defense firm in the state of Michigan. When asked about the polygraph of the complaining witness Grabel stated, “This is the point of criminal law when you are definitely in the deep end of the pool. The law is clear that the officer cannot offer a lie detector to the complaining witness but we often see that the prosecutor will not inform the party that they can take a polygraph. If you are truly a victim of a crime, why would you not take a polygraph to prove your case? We still live under the mantra that someone is deemed innocent until proven guilty and that gets lost on officers of the court at times.”

Matthew McManus is the Managing Member of Ann Arbor Legal in Ann Arbor, Michigan and his team is known for being very aggressive in the criminal law sector. McManus provided commentary when he stated, “People forget that the polygraph is something that can be utilized at sentencing and there is an authority that a defendant can introduce the results in a motion for a new trial should the case reach the Michigan Court of Appeals (People v. Mechura, 205 MI, App 481, 1984). To ask the complaining witness is something that is unusual but can be highly effective. When we view this from a global point of view, it is the prosecution that has to prove their case, why are they not willing to make their victim take a lie detector?”

Jeremy Tatum is the founder of Tatum Law, PLLC in Saginaw, Michigan and has quickly developed a reputation as a top criminal defense attorney. When asked about having the complaining witness take a polygraph, Tatum was quoted as saying, “We are involved in a capital case right now where we are debating this very issue. The prosecution seems thrown off that we have even brought this up in our discussions but the reality is that if we are seeking the truth and the Michigan State Police have expended resources for a polygraph unit, why should we not explore the option for both defendants’ and the complaining witness?”

Many lawyers will tell you that to make a request of the complaining witness to take a polygraph is highly unusual and extremely aggressive and due to that, most will shy away from the concept. While the motion for a polygraph of the complaining witness may appear to be aggressive, we have to ask one key question: When someone’s facing life in prison, is there any option that should not be explored? Criminal law is not for the faint of heart and if our job is to protect the constitutional rights of our client, aggression can only be viewed in a positive light in these circumstances and there should be no stone left unturned.

William C. Amadeo is a partner at the law firm Ann Arbor Legal in Ann Arbor, Michigan, a Senior Associate for Grabel and Associates in Lansing, Michigan and “Of Counsel” for the Law Offices of Timothy McIlwain in New Jersey. Amadeo holds bar cards in Michigan and New Jersey and has also practiced law in California and the Federal Court System. In addition to his legal duties, Amadeo owns BAT Tutoring in Lansing, Michigan and is a staff writer for “The Chronicle News” and other media outlets across the web. Amadeo can be reached at Williamamadeo@Grabellaw.com.