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Polygraph examinations are crucial for today´s sophisticated attorneys. The polygraph can be used as a tool to determine if your client is truthful in their account of the facts that surround the issue at hand and if these results are favourable, may even encourage the prosecution to drop their charges against your client.
Attorneys often utilize the polygraph instrument and the results of polygraph examinations. Once a defendant is represented by counsel, especially in a serious offence, it is common for the attorney to ask his or her client to take a private polygraph examination. If the results of this examination indicate deception, the ¨prosecution¨ does not learn of this and, in fact, the entire examination results are protected from pre-trial discovery. However, if the defendant produces truthful results, the prosecuting attorney is among the first to be informed.
If an attorney’s client is determined to show signs of truthfulness during the polygraph examination, the prosecuting attorney may request a copy of the examiner's written report to determine exactly what questions were asked of the defendant. The questions asked of the defendant should directly address the issue under investigation and not allow for rationalization or specific denials. The prosecutor may also review the test structure, perhaps with another polygraph examiner, to determine if the test was conducted properly based upon the standard guidelines and procedures that must be followed for each type of examination given. If there is a question with regards to the original polygraph results, the defendant could be requested to submit to a second examination under the scrutiny of the prosecution, or the prosecutor could arrange for a second examiner to evaluate the subject's polygraph charts to check the reliability of the first decision.
Prosecutors may take into consideration the results of polygraph examinations. A prosecutor has nothing to lose, and a great deal to gain, by offering a criminal suspect a polygraph examination with the understanding that the results will be "considered" in making a decision. In the event the suspect is reported as telling the truth, the prosecutor should seriously review the evidence against the suspect and consider the possibility that the police misinterpreted evidence or overlooked other possible suspects. This is especially true when the evidence against a defendant is circumstantial or based on an eyewitness or victim's account.
A prosecutor has a responsibility not only to the crime victim but also to make every reasonable effort to not charge an innocent person with a crime. A polygraph examination, when conducted by a competent examiner, offers highly accurate results which, in most cases, support the police investigation. In those instances when a defendant does produce truthful polygraph results, the prosecutor should re-evaluate the evidence or strongly consider the probability that the defendant is innocent. In cases where a victim's statements are suspicious or as a result of a suspect being truthful in a polygraph examination, and where not prohibited by law, a prosecutor should consider asking the victim to take a polygraph examination. In addition to pre-trial applications, polygraph results are used with increased frequency in pre-sentence investigations and as a condition of probation.
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