Polygraph And Other Tests

Scarlet Letter

Being accused of a sex crime is such a scarlet letter, and many of my clients even lose their jobs the moment they are charged. They are supposed to be presumed innocent, but employers do not care about that. Spouses move out, relationships get destroyed, and family law courts will prevent defendants from even seeing their own children, or will order visitations to be supervised. Preventing the client from being charged is incredibly important, and in some ways has even more value as winning the case at trial.

Private Polygraphs

In working with defendants accused of a sexual offense, I frequently consider the use of private polygraph examinations that are attorney-client protected as one potential tool to help in defending my client. If a story can be subjected to a polygraph test (and not every story can), then there is no downside to taking a private polygraph test; if the defendant passes the test, then the results can be sent to the police and prosecutor, and if the defendant fails the test, the results will be protected by attorney-client privilege, meaning they will not be disclosed.

Polygraph Tests Administered By The Police

People need to be very careful when it comes to polygraph tests administered by the police, because these tests are not designed to get to the truth; they are designed to help police obtain confessions and get convictions as a result of those confessions.

If someone is going to take a police polygraph test, they need to involve their lawyer, because certain ground rules will need to be set, including an agreed-upon set of questions. There also has to be an agreement to a no post-test interview.

While the lawyer won’t be allowed in the room where the polygraph test is being conducted, they can be in the building and available to speak with their client at any point. The client needs to know that even if they pass the test, the police will likely tell them that they failed, with the express purpose of trying to obtain a confession. The client needs to be able to end the polygraph test immediately, and speak to their attorney.

Other Tests

In the early part of a case, there are a wide range of other tests and procedures that should be employed by an attorney defending a sex crimes case. For example, several different types of medical tests can be helpful. A lawyer can send their client for a sex offender risk assessment. Many defendants charged with certain sex crimes involving the internet, such as internet solicitation and child pornography, have autism spectrum disorder, so an evaluation for autism can be extremely important.

In some cases, certain medical tests can be supportive, such as an erectile dysfunction test, or other tests that are unique to the defendant’s genitalia and could ultimately show an accusation to be false. It’s very important for defendants to work with their lawyers in determining which tests may be useful.

A List Of Witnesses, And A Private Investigator

It is important to compose a list of witnesses, which in many ways, should be done in conjunction with developing a timeline. As an example, many alleged date rape or college campus sex offenses are said to have happened at a bar, party, or campus event. The earlier the accused creates a list of the people who were there and who can be interviewed by a private investigator, the better. In almost every case, I use a private investigator in order to obtain as much or more information as the police. In order to do this, the private investigator needs to know who to talk to.

The list should include the name, address, phone number, and place of employment of every potential witness. It should also include a brief summary of their testimony, as well as a personal biography in order to answer one of the most overlooked questions on a witness list, which is “Who is this witness, and how do they relate to all of the other players?” and “Why should the private investigator and lawyer talk to this witness?” If a witness is the alleged victim’s best friend or family member, that also needs to be documented.

The defendant needs to connect the dots of all of the interpersonal connections in a case, and get the list to their lawyer. The private investigator can then speak to any and all witnesses, potentially even before the police do, which would be invaluable.

Communication With The Police

It is extremely important for the defense attorney to open a line of communication with the police to let them know that the client is fully cooperative with the investigation, and is willing to provide whatever assistance is necessary, such as a DNA sample, fingerprints, a voice exemplar, etc. Consistent with my overarching philosophy of aggressively defending these cases and establishing the client’s innocence, it is not unheard of for me to allow a client to speak to the police.

If I have the right case and a client who has a good and believable story to tell, then I will consider the idea of agreeing to a police interview. The story must be defensible, and preferably corroborated by independent evidence such as text messages, voicemails left by the victim, Snapchat or Facebook posts, etc. I also want to know whether my client can pass a private polygraph test on this story. When all that lines up, I will sometimes agree to l accompany a client to the police station to be questioned by the police and provide a statement.

This is a decision that is individualized and must be made on a case-by-case basis. It may be the best decision for the client, assuming I have the right case, the right story, and open-minded detectives and prosecutors who are actually interested in getting to the truth rather than just getting a conviction.

In some cases, the stars align, and there is a legitimate chance at preventing charges from being made in the first place. This possibly is extremely important, and carries enough value to justify the risk of allowing the other side to preview the defense — especially if the defense is an obvious one, and there are positive and collaborating facts supporting that defense (for example, selfies, texts, or other evidence which shows that the accuser provided consent and was not incapacitated).

Compiling Evidence

All of the relevant evidence that calls the allegation into question needs to be compiled, and then a decision reached about whether to send it to the prosecutor, with the goal of causing them to hesitate and plant a seed of doubt in their mind about their ability to win at trial and prove the case beyond a reasonable doubt. The prosecutor is not going to charge a case if they do not think they can prove it beyond a reasonable doubt in court, and this will mean the client is one step closer to the possibility of no charges being filed in the first place.

The following should be its own section, titled “Beginning to Establish a Defense,” or something like that:

Establishing a Defense – the Beginning

How Does The Identity Of The Reporting Party Influence A Case?

Step one is to understand what kind of sex crime case this is, who is the alleged victim, and if it is different than the victim who is reporting the offence. Every case is unique, but there are basic similarities. If the accuser is known to the defendant and vice versa, then a mistake of identity will be an impossible defense. If the accuser is a 10-year-old girl, then consent cannot be used as a defense. If the accuser is a boyfriend, girlfriend, or ex-spouse, that will impact the way the case moves forward. The identity of the reporting party and the relationship between accuser and accused definitely impacts a case.

Steps To The Proper Defense Against A False Accusation

Prior to the charging decision, there is the initial phase, which involves the client interview, the use of the private investigator, and the private polygraph test. The goal is for the attorney to fully explore and vet the client’s story and ultimate defense to the charges. After the client is charged, there the focus moves to the pretrial preparation phase, which ends with the holding of the preliminary exam and probable cause determination. That is when the attorney and the client fully review, deconstruct, explore, research, and vet the prosecutor’s allegations and the accuser’s story. Next, there is the trial preparation phase, where the client, the defense lawyer, and the rest of the defense team take both sets of stories, and determine the best way to present a defense that will lead to the client’s acquittal at trial. Finally, it all comes together in the trial itself.

Step One: Determining The Client’s Story And Version Of The Events, AKA Start To Develop The Defense

The first phase is very important, because the more that is accomplished during this phase, the more power or persuasiveness there is behind the defense; this makes everything else fall into place easier and more powerfully. It is during this phase that the client and I will identify the basic defense that will be used so, that I have a good idea of where the case is going from the very start.

With that said, the defense is certainly subject to change during the second stage, after the charging decision. This is because the police reports, witness statements, and other discovery from the prosecutor may contain unanticipated information. However, without a general idea of the best defense from the very onset, I will not be able to set up a good private polygraph test, recommend whether my client should be interviewed by the detective, identify which witnesses to interview, compile corroborating evidence, or help establish a timeline.

The Three Most Common Defenses

The first and most obvious defense to a sex crime accusation is that nothing happened – either nothing at all occurred between the accuser and accused, or at a minimum no sexual activity took place. At the heart of this defense is that the accuser is lying, or at least is mistaken. In most such cases, the jury expects to hear a reason why the complaining witness would make this up, or be mistaken, before they will buy into such a defense. This makes potential ulterior motivation to make such a charge extremely important. Is the complaining witness a jilted es-wife or girlfriend? Did the defendant somehow wrong the complainant, and this is her way to get back at him? Is this a way for a child or teenager to get attention? Is the allegation being made in the context of a bitter divorce or child custody battle? The most difficult alternate motivation cases surround those where the complaining witness actually believes what they’re saying – such as in cases where there was a suggested or implanted memory (which is discussed in detail later).

The second defense to a sex offense is that the victim has misidentified the guilty party. In other words, there may have been a sexual assault, but the person being accused was not the one who committed it. Of all of the defenses, this is usually the most straightforward. However, as always, the devil can be found in the details. Why is the complaining witness wrong about the identity of her assailant? What were the circumstances of her that led her to pick out the wrong person? Was she intoxicated or otherwise incapacitated? It becomes extremely important to supply the jury with an incredible explanation to answer this critical question.

The third defense, and probably the most common for date rape, campus sexual assault, or relationship sex crimes, is that the accuser gave consent to the sexual activity. While consent as a defense to a sexual assault charge is a simple and straightforward idea in theory, in practice it is in many ways the most nuanced and complicated. For starters, despite the well-established burden on the State to prove the accused guilt beyond a reasonable doubt, the law says that a defendant must raise the issue of consent and present some evidence to support it at trial. After the defense comes forward with evidence of consent, the burden then switches back to the prosecutor to prove lack of consent beyond a reasonable doubt. Of course, since most date rape, campus sexual assault, and relationship sex crimes occur in a private setting, consent nearly always comes down on some level to a “he said, she said” situation. Therefore, collaborating evidence becomes critically important. Did the SANE rape kit examination show any injury to the complainant’s body, anus, or any part of the vagina? Is there any evidence of force, violence, or struggle? Are there any eyewitnesses to how the two parties were acting earlier in the day, before the assault took place? Are there texts or emails between them after the alleged incident. And finally, who testifies more consistently, credibly, and believably at trial? These questions will determine whether the defendant is convicted or acquitted in a consent case.

Alternative Motivation

In every case, the Defense must explore the idea that there could be an alternative motivation for the allegation. For example, a date rape allegation might have been made because of a bad breakup, a child molestation allegation might have been made during a bitter divorce, or a 15 or 16-year-old could make an allegation in order to seek revenge or attention. However, one of the most overlooked factors is false or implanted memory. But that is a whole separate topic, that we will cover next.

Step Two: Evaluating The Police And Prosecutor’s Case

The evaluation of the police and prosecutor’s case is a two-step process. Everything needs to be compared internally to check for consistency, such as whether the various witness statements are consistent with each other and with the alleged victim’s statement. It also needs to be determined whether the forensic interview recording is consistent with what the police and the prosecutors say within that reporting.

The police and prosecutor’s case must be evaluated through the prism of everything else that is out there that could potentially lead to impeachment material inconsistencies, as well as possible motives to lie, and the potential for false memory formation.

Evidence Is Key

One of the biggest mistakes in defending these cases is to not have all of the available information, which must be read with an experienced eye. The defense attorney needs to determine whether there is anything missing that should be there based on the information contained in the police report and audio or videotaped witness statements, including the statement made by the alleged victim.

It is becoming increasingly common for witness statements to be videotaped, and obviously controlled phone calls are recorded. If the defendant gives a statement to the police, then it will likely be recorded on video by the police, and it is important to obtain the recordings themselves, not just a summary of the interview. If it was audiotaped, then the audio recording should be obtained, and if it was videotaped, then the video should be obtained.

When it comes to a sex offense case, every piece of possible evidence is key, because it is only by making sure that everything is there that the case can truly be evaluated. Even one missing audiotape or videotape could make an enormous difference in the case.

Under Brady, the police and the prosecutor not only have an obligation to turn over all exculpatory information (i.e., information that would tend to establish the innocence of the defendant), but an affirmative duty to look for it.

The defense attorney needs to let the prosecutor and police know that they are going to fight, and look for information even if the prosecutor or police deny that it exists. Again, this can be done through the filing of Freedom of Information Act requests and subpoenas.

If there are text exchanges between the alleged victim and an independent witness on the defendant’s side, then the independent witness can get those texts from their cell phone provider. If they cannot, then a subpoena can be used to obtain them, and the same goes for call records between the client and alleged victim to determine whether and when the two parties spoke.

The process of examining discovery is not just about reviewing the evidence that is provided by the prosecutor, but making sure that there is nothing missing, and that no stone has been left unturned. This is because the devil is in the details. It is so easy to make a false accusation, and not so easy to show that it is false, or to prove a negative, so every bit of information needs to be acquired. It is impossible to know the value of information until that information has been obtained.

Impeachment Material

The goal is to make sure that there are no surprises at trial. The private investigators should be doing social media searches on the victim and the victim’s family to determine whether they are posting things that are consistent with having been sexually assaulted, or consistent with the statement they gave during the police investigation.

These days, it is very easy to acquire impeachment material, which are inconsistent statements made by a witness. This is because of how often people post comments on social media sites, like Snapchat, Instagram, Facebook, Twitter, and TikTok.

For more information, a free case strategy session is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.