Criminal Sexual Conduct cases in Michigan (“CSC”) are a very unique type of case. As a Michigan CSC Defense Attorney, one question our office receives is “I’m innocent. Should I take a polygraph?” I’ll be clear at the outset – my general answer is NO. Of course, there are exceptions to every rule, and in this article, we will discuss the ins and outs of this very important decision regarding polygraphs in CSC cases.
First and foremost, if you are facing Criminal Sexual Conduct charges in Michigan and you are considering the possibility of taking a polygraph (also called a “lie detector test”), you must know that this evidence is absolutely inadmissible at trial. Under Michigan law, polygraph results cannot be used in a criminal trial. That means that even in the best case scenario where you pass, you won’t be able to use that in your defense against the charges. Neither the polygraph results, nor even the fact that you took or were willing to take a polygraph examination in the first place can be heard by the judge or jury trying your case, and if either a Prosecutor or Criminal Defense Attorney mentions the word “polygraph,” your case is on the pathway to a mistrial – back to square one.
If you have been accused of CSC, the issue of taking a polygraph may arise in one of two ways: 1) you and your defense lawyer may want you to take one on your own; or 2) you may be offered one by law enforcement during their investigation of the case, or later on by Prosecutors after CSC charges have been brought.
Let’s take a look at the first scenario: “Should I take A private polygraph when I am facing CSC charges? I’m innocent, and I want this case to go away as quickly as possible.“
We definitely understand the reasoning behind this thought process. And many times, a Criminal Sexual Conduct Defense Attorney will encourage their clients to take a polygraph to try and prove their innocence. The theory is that even though the polygraph result is not admissible at trial, hopefully the passing results can be given to the Prosecution so that they will recognize your innocence and drop the charges. But not so fast! That’s typically not how it goes…
Let’s imagine that you and your Defense Attorney have done some research and found a licensed polygraph examiner who is the best of the best. He or she is former law enforcement and is someone who is likely to be respected by the Prosecutors Office. You go and take the test, and your pass with flying colors. The polygraph examiner authors a special report detailing their findings and concluding that in their opinion, you were being truthful when you said that you did not commit the alleged act of Criminal Sexual Conduct.
Note: the one advantage to taking a private polygraph is that if you fail, the result can most likely be kept private between you, your Defense Attorney, and the polygraph examiner.
Your attorney takes an original signed copy of the polygraph examiner’s report and delivers it to the Prosecutor. “See, my client is innocent. He passed the polygraph. Now would you please drop these charges?”
But they don’t drop the charges. The Prosecutor smiles, shakes her head and says “Well, we don’t want to see an innocent person go to prison anymore than you do.” Of course, we all know that this is a lie. She goes on to say “Our office has a policy not to blindly except private polygraphs from Defense Attorneys. If your client wants to take a polygraph with our approved polygraph examiner, we’d be willing to consider it. We can set up the appointment anytime, just let me know…”
Because you already passed one polygraph, the inexperienced Defense Attorney submits you for a polygraph examination with someone from the local Police Department, Sheriff’s Office, Michigan State Police, or US Secret Service. You show up for the exam, and the cop administering it seems very friendly. The interview begins with casual talk before the test begins. The examiner asked some questions “just to get a feel for the case and see what the accusations are about.” He asks about some of the facts of the case and even some things that have nothing to do with it. He makes you feel very comfortable about being honest. Knowing that it has nothing to do with the actual questions, you happen to admit – agreeing with the examiner of course – that when you were 18, you dated a 15-year-old for about a week without realizing how young she was [insert your own example here]. You and the examiner have a friendly discussion about how easy it is to get falsely accused of CSC and “caught up in this kind of a mess.”
When the polygraph exam begins, the examiner begins to read you your rights, just like a police interrogation (“you have the right to remain silent, anything you say…”). The examiner asks basically the exact same questions that the private polygraph examiner did…in addition to about two hours of additional questioning, which turns into a harsh interrogation at times. You feel like you’re on “The First 48.” When it finally ends, the examiner says “Well, I’ll just close my findings to the Prosecutors Office and you’ll get a copy of my report. I’ve got to review the data. Thanks for coming in.” Great, all of this will be over soon, right?
Fast forward a week or so and your Defense Attorney is opening up the office mail. He opens up an envelope from the government’s polygraph examiner or Prosecutor’s Office. A wave of shock falls over him as he reads the conclusion of the report: “Deception indicated.” What? How could this be? It was the same case, the same machine, the same accusation. But that’s not all…
On top of the report with this awful conclusion, there’s another piece of paper. It’s a separate report regarding the “interview” that the examiner conducted with the client. Must have something to do wth all those other questions he was asking. It states that the polygraph examiner has reviewed the police reports and witness statements, and that you supposedly made statements that were inconsistent with other things you supposedly said before. Overall, the polygraph examiner believes that you are lying.
If that’s not enough, there’s another sentence in there that reads “during the course of the interview, the client disclosed that he had previously committed an act of Criminal Sexual Conduct for which he was never charged – sexual relations with a minor, which constitutes Criminal Sexual Conduct, 3rd Degree, MCL 750.520d – a 15 year felony. The last sentence reads “a copy of these documents has been sent to the County Prosecutor’s Office.”
What the hell happened here? How have you gone from essentially feeling like you’ve been proven innocent to suddenly becoming not only a liar, but apparently a child molester who got away with it?
The Prosecutor calls your Defense Attorney and “apologetically” informs him that they definitely won’t be dismissing the charges, and in fact there won’t be any plea deals at all in this case. Although the polygraph results, or even the fact that a polygraph was given, won’t be admissible at trial, the “statement” that was given during what you believed was just additional discussion is potentially admissible in court. But wait a minute – that report misconstrues everything you said. Is there a video of the room that would prove that the polygraph examiner inaccurately recorded your words? Nope, sorry. “We don’t record those…”
Obviously, you see the problem here. Even if you pass a polygraph, it’s not going to help you in court. Even if you pass with flying colors, the Prosecutor isn’t under any obligation to do anything, unless they enter into a written contract to that effect – which they generally won’t. Prosecutors are simply unwilling to consider the polygraph results of an independent examiner without sending someone for an exam with one of “their people.” And “their people” don’t always reach the same conclusions. In fact, they hardly ever do. As a result of this whole mess and the incompetence of the inexperience attorney, your situation can get much much worse and it could lead to you being wrongfully convicted of Criminal Sexual Conduct.
Of course, there are ways to prevent some of these problems. The Defense Attorney can approach the Prosecutor in the beginning and offer to agree on a mutually agreeable polygraph examiner. But that still doesn’t mean if you pass they need to drop the CSC case. It still doesn’t help you in trial. The examination can be audio and/or video recorded to prevent the abuse of your words. Your attorney and the Prosecutor can agree on a very specific question set, and that no statements during the exam are admissible in court. These things can solve some of the problems, and it is true that polygraph examinations have indeed lead to CSC charges being dropped under certain circumstances . . .
But in my opinion, as a Criminal Sexual Conduct Defense Attorney, it seems that the very marginal benefit that there is to gain by taking a polygraph, weighed against the extreme risk if things go wrong, dictates that it’s a complete waste and possibly a dangerous risk. So if you’re considering taking a polygraph examination, choose wisely and think very, very hard before opening up your pocketbook and writing that $500-$1000 check.