I’ve Been Investigated by Law Enforcement in a Sex Abuse Case Involving a Minor. Should I Ever Take a Police Polygraph, in This Matter or in Any Other Similar Case?

Key Takeaways:

• While the general consensus is that it’s unwise to take a police polygraph test, it can be helpful in certain cases where an innocent defendant is being accused of sex abuse of a minor. These charges are serious enough that they require proactive rather than simply defensive action.
• You should only take a police polygraph test under certain circumstances (if you passed a private polygraph test, if it will be dispositive in your case, if the prosecutor and the detective can be trusted) and only with certain understandings (never to submit to post-polygraph questioning; to remember that they may be lying to you if they tell you your results failed or were inconclusive; always to ask for your lawyer if you are at all unsure if something is above-board).
• 99% of the time, if you are charged with child molestation against your own child in Oakland County, Michigan, there will be a No-Contact Order put in place immediately and automatically. In extremely rare cases with open-minded Judges, supervised visitation may be allowed at a DHSS or CPS facility. Otherwise, you will be restricted from seeing and interacting with the child.

I am the outlier on this issue, because I say yes, there are instances where you should take a police polygraph test. I believe that every case is unique and has to be judged based on the unique set of facts and circumstances that are part of that case. Therefore, I believe that any hard and fast rule—for example, “Never take a police polygraph test”—is a bad idea.

If you are factually innocent, if you did not do the crime that you are being accused of, there are several ways that a polygraph test might actually help your case.

First of all, even being criminally charged with an allegation of something like criminal sexual conduct in the first degree for sexually assaulting a minor is going to be a scarlet letter. That’s going to be something that can affect your ability to stay married, to see your kids, to keep your job, and to keep your standing in the community. In this way, just the allegation itself can be devastating. It’s devastating enough that if you are factually innocent—if you did not do the crime you are being accused of doing—it’s worth trying to avoid having the accusation stick to you as much as possible.

If you’re factually innocent, I believe that a pre-charged strategy for defending that case requires you not to be defensive or defending of those accusations, but rather to be proactive and to try to show that you didn’t do what you are being accused of doing. It’s important to remember that when dealing with accusations this serious, you’re not just trying to win the case at trial: you’re trying to avoid the charges to begin with.

When I have a client who is factually innocent and they sit down and they give me a thorough debrief of the case, what they say happened, and what their understanding of the allegations are, and they are adamant they didn’t do it, that they are factually innocent, I will frequently send them for a private polygraph. That polygraph test, by statute in Michigan, is privileged. Therefore, the only people that know it’s going to happen are me, the client and the polygraph examiner. That polygraph examiner will do a private test.

The results of the test often determine whether or not I advise the defendant to take a police polygraph test. If the defendant passes the private polygraph test, then I have something to really think about when it comes to whether or not they should be taking a police test.

If they fail or they’re inconclusive on the private polygraph test, then taking a police test is probably not an idea that’s going to work. It’s a tactic we can dismiss so that we can go try something else.

But if the defendant passes the private test, if they have a compelling story to tell, then it may be worth it for them to take the police polygraph test.

I will be especially likely to consider a police polygraph test for a client if I’m working with a detective and perhaps a prosecutor who I trust. Sometimes, policemen/detectives and prosecutors just want the collar and the win, and they aren’t especially concerned with the details of how they get it. If the detective and prosecutor we’re working with, on the other hand, are trustworthy, and are people who I think are actually motivated to get it right and not just charge a case so they can close it and get it off their desk, then we are more likely to proceed with a police test.

Of course, this depends on if I can assume the person, because they passed the private polygraph test, has a decent or better than average chance of passing the police polygraph test. If I do, then I’ll tell them something like, “Look, it’s your call. I don’t see the downside here. So if this is something that you want to do, then let’s take the police polygraph test.”

I am always very, very careful to prepare my client in the event that they do take the police polygraph tests, I trust the detective or the prosecutor working the case. For example, I explain to my client that if the police tell you that you failed the polygraph, they may be lying to you. As such, I explain that it is essential to shut up and not to engage in what is called post-test questioning. Post-test questioning is when the police are going to try to elicit a confession from you, and if you’re a defendant, it’s important that you don’t let them do it.

If they tell you that the polygraph test is inconclusive, the same thing applies: shut up, and do not engage in post-test questioning. You are only to answer the test questions. When they tell you the test questions are over, the test is over.

I will also always be present if and when my client takes a police polygraph test. It is understood that I cannot be in the room during the test itself, as they don’t allow that. But I’ll be in the building. I’ll be in the next room over, or in the hallway outside the room. That way, if my client thinks that something’s going on that doesn’t seem right, they can tell the police or the polygraph technician to stop the test and let you speak to your lawyer. If they don’t let you talk to me, then you know something definitely wrong is going on, but I will be there to make sure nothing wrong does happen.

I want to repeat that every case is different, and every case has to be judged on the unique and individual circumstances of that case. However, under the unique and individual circumstances that we just discussed, if all those boxes get checked, then yes, I think taking a police polygraph test can work to your advantage.

For more information on Child Sex Abuse Law in Michigan, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.