Polygraphs: to do or not to do?

There is a common misconception out there that I have consistently (about 100% of the time) encountered in criminal defendants (or soon-to-be criminal defendants) that (1) taking a polygraph/ “lie detector test” can prevent their being charged with a crime if they “pass”; and (2) that if they fail the test, the results are not admissible in court.

Let me quickly and humanely put these myths to rest.  If you take a polygraph test in West Virginia, your local Andy Griffith Sheriff, or your local friendly West Virginia State Police officer will NOT be giving you the test.  They will be bringing in a professional conviction machine in to convict you.  What I mean is this.  There are various state police officers who specialize in giving polygraphs.

The investigating officer, wherever he may be, convinces a gullible suspect into proving that he is innocent by taking a polygraph.  The expert then arrives, and has the suspect sign various papers, saying that he or she understands his rights (the right to remain silent, the right to an attorney, etc.) as well as the polygraph process.  Then the suspect is asked various questions.  Of course, the suspect fails.  The the expert polygrapher/interrogator asks, “why do you think you failed?”  Then everything the suspect says thereafter, the officer puts into his official report and thereafter testifies to at the trial, if necessary.  In all likelihood, the trial never took place because the anticipated testimony of the polygrapher was enough to force a plea.

So understand this: the results of the polygraph indeed are not admissible against you.  However, everything you say “can and will be used against you in a court of law.”  It’s a trick.  It’s not about the results, they are irrelevant.  If the cops weren’t convinced you were guilty you wouldn’t be there.  It’s all about obtaining a statement from you.

I have lost clients before because I refused to allow them to take polygraphs.  They think that they can take them and pass them and prevent charges from ever being filed against them.  The cops tell them, don’t listen to that attorney, I want to help you, he’s going to get you charged.  Then guess what, they do it anyways and convict themselves.

Don’t say I didn’t warn you.

– John H. Bryan, West Virginia Attorney.

Foundation of a false confession

Grits For Breakfast (hat tip: Simple Justice) posted on an insightful discussion by the Texas Court of Criminal Appeals’ Criminal Justice Integrity Unit (hey, we need one of those in West Virginia….) on false confessions and their proposed causes.  Grits notes that 

most police interrogation training in the United States is based on the so-called “Reid method,” which teaches there are three stages to the process of questioning suspects: Behavior analysis, the interview, and the interrogation.


Much of the behavioral analysis taught by Reid and Associates amounts to “faux psychology,” said [Richard] Leo (San Francisco academic presenting to the above said group), about how guilty and innocent people behave that doesn’t stand up to scholarly rigor. Police are taught to believe these methods are so reliable that officers become “human lie detectors,” but excessive confidence in their ability to read deception cues can cause police to inadvertently assume guilt. That can directly lead to the more critical mistake: Moving too quickly from interview to an interrogation.

This guy is a perfect example of this.  For years I have been watching all of those cold case murder investigation shows.  In many, many of them, there is one central detective that was originally on the case, who was convinced that so and so committed the crime – despite the evidence.  Detectives are trained to believe that they can be human lie detectors, and it becomes personal to them – so much so that they start to have tunnel vision.  Then, 30 years later you see the case on some show, and you think, how could they focus on that person when it was obviously the other person?  It works the same way with false confessions.  Some “interviewees” can actually be convinced that they did have something to do with the crime.  Others can be tricked into confessing some guilt or sorrow regarding the victim, which can be portrayed as a confession.

I think John Grisham’s book, “The Innocent Man” should be required reading for criminal defense attorneys.  It will blow your mind how in one small town, so many people could be convicted of false confessions using the same flawed tactics by investigators.  Specifically, when you take an overbearing interrogator and match that person with a guarded, feeble, shy, and honest “interviewee,” the chances rise dramatically that the innocent “interviewee” will says something incriminating.  Meanwhile the real guilty person is long gone.

 – John H. Bryan, West Virginia Attorney.

Don’t talk to the police

I came across a great video lecture from a law professor posted on the Georgia Criminal Law Blog that everyone should watch – attorneys and laypersons alike.

Don’t talk to the police, at any time, under any circumstances. Period.

The latter half of the video features a cop telling “the other side of the story,” and was the subject of a previous post by Scott Greenfield, titled “One Lecture By a Cop with Many, Many Lessons,” who commented that this displayed some revealing insight into the practice and procedure of police “interviewers.”

– John H. Bryan, West Virginia Attorney

Charged With a Crime in WV? Keep Your Mouth Shut and Call a Lawyer…

A troubling trend is emerging in West Virginia. According to my own experience, and to those of some of my colleagues, State agencies, such as ABC (alcohol beverage control commission) are beginning to become actively involved in criminal cases, such as by trying to assist law enforcement in obtaining statements from suspects or defendants.

For instance, if someone who has an alcohol license is charged with a crime, they will suspend the alcohol license in “the interest of public safety.” Then, to get it back, they request a statement of why you are innocent of the charges. Undoubtedly that statement would end up right in the prosecutor’s file and would be used against you at trial. And if you don’t give the statement, your license remains suspended and you lose the income with which you were depending on to pay for your defense. Many times, the crime charged doesn’t have anything to do with selling alcohol or actual safety of the general public, they are just hassling you. And they can. Your only recourse is to request a hearing before the ABC Commissioner, and then to appeal that decision to the Kanawha County Circuit Court, and then to the WV Supreme Court of Appeals. By the time an arbitrary decision is overturned, you have gone out of business.

Something else they have been doing: if someone is charged with a crime involving consuming alcohol – for instance DUI, they will request the persons help in obtaining information on the establishment where the alcohol was bought or consumed. They trick you into believing that by helping them find out information about this establishment, that it will help your case, or that it will remain confidential. In reality, the statement gets forwarded to the investigating officer or prosecutor that same day.

Moral of the story? If you have been charged with a crime, or even investigated regarding a crime, keep you mouth shut and call a lawyer.

– John H. Bryan, West Virginia Attorney.