When a defense attorney takes on a capital case, one piece of ammunition that can sway the court is the polygraph examination. While the polygraph examination is believed to not be admissible, there are misconceptions about how and when to use the test. Today, we will break apart the concept of the polygraph and explain how the exam can be the difference between incarceration or freedom.
We start with an understanding of what the polygraph is. If we were to look up the term in Black’s Law Dictionary, we learn that a polygraph is defined as: a machine designed to detect and record changes in physiological characteristics, such as a person’s pulse and breathing rates, used especially as a lie detector. In essence, the polygraph is a key to tell the prosecution if a defendant is telling the truth and while the test is not admissible as a general rule, there are major exceptions that a strong criminal defense attorney should be aware of.
To begin, the polygraph may not be admissible at trial without a stipulation from all parties but it can be used by defense counsel to argue for a new trial and also can play a vital role at sentencing. More importantly, the polygraph can carry a great deal of leverage in the pretrial stages which can set the tone for the outcome of the case.
Scott Grabel is the founder of Grabel and Associates which has gained a reputation as the top criminal defense firm in the state of Michigan. Grabel has a great deal of expertise with polygraphs and added insight on the topic. When asked, Grabel stated, “The polygraph is one of the most beneficial tools that a defense lawyer can use. When an attorney walks into a Pre-Trial Conference with a polygraph that their client has passed, it will generally carry a great deal of weight. While the concept of the polygraph can be beneficial, the polygraph examiner that you use will be essential. There are a lot of examiners that truly should not be in the business and there are others that are the leaders in their field. Credibility is essential when presenting your test to the prosecution.”
Perhaps the most credible polygraph examiner in the industry is Shawn Loughrige from SPL Investigative Services. Loughrige has been an examiner for over 24 years and ran the Michigan State Police Polygraph Unit for 15 years. When asked about the polygraph, Loughrige stated, “A polygraph examination, when administered properly and according to researched validated techniques and methodology is an incredible and cost effective tool for the criminal justice system. It provides a direct line to the truth based on fact in question-specific issues. The polygraph truly allows for the system to litigate and negotiate for justice without the pain and cost of long trials and drawn out investigations.”
Matthew McManus is the Managing Member of Ann Arbor Legal in Ann Arbor, Michigan. McManus runs a firm that does both criminal and civil defense. When asked about the polygraph, McManus was quoted as saying, “The first thing that you need to know is that nobody that is guilty is going to pass a Shawn Loughrige polygraph. It’s just not going to happen. I also feel that Neil Myers provides a very clean test and is well-respected. On that note, as valuable as the polygraph is in criminal litigation, it can also be utilized in civil matters with amazing results. Before ever allowing a client to take a state polygraph you have to present a private polygraph from the likes of Loughrige or Myers and then proceed from there.”
Grabel went on to add, “Our firm has practiced in other states and while Michigan provides a great deal of value in the polygraph, states such as Ohio take an even more inclusive view on the issue.”
To echo the commentary of Scott Grabel, we see that the Ohio Supreme Court in State v. Seoul ruled that polygraph evidence was admissible under the following conditions:
(1) The prosecutor, defendant, and defense counsel must sign a written stipulation providing the defendant will take the polygraph test and its results will be admitted to trial;
(2) The admission of the test results are subject to the discretion of the judge; if the judge is not convinced the polygraph examiner is qualified or the test was conducted under proper conditions, the judge may refuse to admit the test results;
(3) Opposing counsel has the right to cross-examine the polygraph examiner at trial concerning her qualifications and training, the conditions under which the polygraph test was given, the limitations and possibilities of error concerning the polygraph test results, and any other matter the judge deems pertinent; and
(4) If the test results are admitted, the trial judge must instruct the jury the examiner’s testimony does not tend to prove or disprove any element of the crime with which the defendant was charged, and that they must determine what weight and effect such testimony should be given.
While the general consensus is that a polygraph is inadmissible at trial and this is not a topic that will come up on the Michigan or Ohio Bar Exam, a valued polygraph examiner and a solid test can make all of the difference in the outcome a hotly contested matter.
William Amadeo is a partner at the law firm of Ann Arbor Legal in Ann Arbor, Michigan and a Senior Associate at Grabel and Associates in Lansing, Michigan. In addition to his duties in the field of litigation, he is the owner of BAT Tutoring and a staff writer for “The Chronicle News” and a widely published author. Amadeo can be reached at Williamamadeo@Grabellaw.com.