Should I Take a Polygraph Test to Prove My Innocence?

People falsely accused of crimes want to prove their innocence. They want to fight back. They want the truth to come out as soon as possible. One attractive solution for some is taking a polygraph test.

Polygraphs have been beneficial in proving innocence, but sometimes they don’t make a difference. Other times the results can be catastrophic.

Using Polygraph Results in Court

The attorneys at Berry Law have successfully used polygraph tests in several different types of cases, the most common being sexual assault and child pornography cases. The use of polygraphs in these situations has been successful because the falsely accused citizen who took the test passed and the defense attorney was able to convince the prosecutor that the results were valid, corresponding with other facts supporting the accused’s argument that he or she did not commit the crime.

However, passing a polygraph does not mean a criminal case will go away. A defendant passing the polygraph does not always convince the prosecutor that the accused is innocent. There are even situations in which a criminal defense attorney will provide a prosecutor with the polygraph and the prosecutor will not consider it. After all, polygraphs are generally not admissible in court (yet).

When Not to Take a Polygraph Test

As stated above, polygraph tests can go horribly wrong. This often occurs when the accused takes a polygraph test with police without first consulting an attorney. In some instances, law enforcement uses this suggestion as a ruse to interrogate the accused.

In one case that Berry Law handled, law enforcement convinced a defendant to take a polygraph. When the defendant arrived, he was strapped to a machine and believed that he would receive a polygraph. However, the questioning escalated quickly from a typical polygraph setting to a full-on interrogation. In other instances, law enforcement will incorrectly conduct a polygraph, resulting in the accused failing because correct safeguards and procedures were not used.

Are Polygraph Tests Admissible Evidence?

The science behind polygraphs appears to be getting better. Due to rapid technological advances, the use of scientific evidence in court is expanding rapidly. Government agencies rely on polygraphs, and courts are starting to reconsider them, too.

Furthermore, the legal standard by which scientific evidence has evaluated by the courts has changed.

The Old Frye standard for determining the admissibility of scientific evidence was replaced by the Daubertstandard in 1993. Nebraska has since adopted the Daubert standards. However, the Nebraska Supreme Court has yet to rule as to whether a polygraph would be admissible under the new Daubert standard.

However, other states have ruled that under the scientific evidence standards in Daubert, polygraph tests may be allowed. Most states have yet to allow polygraphs, and others only allow polygraph evidence if the defendant testifies.

The issue of admissibility of a polygraph goes beyond the Daubert challenge in Nebraska. If the polygraph survives the Daubert challenge and is found to be scientifically reliable by the Nebraska courts, the next issue will be whether a polygraph would be inadmissible on other grounds. One of the strongest arguments to keep the polygraph out of court is that it invades the province of the jury. To a lesser degree, there may also be an argument that allowing the polygraph evidence would be unfairly prejudicial against the prosecution.

The Future of Polygraph Testing

While the polygraph has generally been considered “junk science” by courts, the perception of the validity of the science behind the polygraph is becoming more accepted. Whether polygraphs will be allowed in Nebraska in the future has yet to be determined.

Regardless of current admissibility of polygraphs in Nebraska courts, in some instances they still may be used to convince a prosecutor not to file charges or dismiss charges if there is other evidence supporting the defendant’s innocence.

If you have been falsely accused of a crime and think you want to take a polygraph, contact the attorneys at Berry Law to discuss your options.

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