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I am usually using an examiner whose reputation is good enough that when I turn the favorable results over the to the State, it will accept the results. If the results are not favorable I will not inform the State of the exam and will simply refuse the State’s offer, but the results may still be helpful in persuading my client to be realistic about his defense chances.

Polygraph evidence is not admissible in Iowa unless the parties stipulate to its introduction. Favorable polygraph results on a key issue, such as intent to commit a crime, may be enough to persuade the State to dismiss a charge or reduce it to something acceptable. I have had polygraph and psychological exams that were not helpful to my clients that have never left my office.

Robert Fleming
Attorney at Law
148 E. Grand River, Ste. 106, Williamston, MI 48895
517-203-1100
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This is a rather broad question, but here it goes. I would never allow any client to be subjected to voice stress, as that is pure junk science, I do not know of any jurisdiction in which it has passed the Daubert test.

Polygraphs, depending on the integrity and qualifications of the examiner can be helpful. If the Prosecutor is willing to commit to dismissing charges upon my client’s passing a polygraph, I will send him to a private examiner first to be sure he is being truthful with me. If he passes that, I will allow the police test. However, I demand to know the questions prior to the exam, and I limit any post-examination interview.

I cannot think of any situation in which my client would benefit from any of the other tests. The test for self defense in Michigan is what would a reasonable person think, not the defendant’s subjective interpretation so any psychological evaluation would only hurt my client.

Poor eyesight? He thought the intruder was armed but really wasn’t? Maybe if he is real lucky it might help some with an imperfect self-defense argument, but leaves civil liability wide open.

Marksmanship ability? Only in a civil trial to show that my client deliberately shot the intruder, where he intended to shoot him, and that it was not an accident or negligent act. Even then I would rather rely on my client’s testimony that he intended his actions, and force the opponent to prove he was negligent.

However, if I allowed my client to testify at the criminal trial, I would bring an expert to testify that my client acted the way he was trained and that the training was proper.

Further, if I do allow my client to take a private polygraph, I retain the examiner and pay him out of client funds, so that I can assert attorney work product privilege over the results, if anyone does try to discover it in a subsequent civil action.

Mark D. Biller
P. O. Box 159, Balsam Lake, WI 54810
715-405-1001
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In answer to this month’s question: I have used polygraphs successfully in the resolution of cases in the past. First, I want a solid working relationship with a polygrapher who is known to be competent and has credibility with the local law enforcement community. I also want a pre-charging meeting with the prosecutor to ensure that the results will be considered if favorable. I do not offer to share the results if unfavorable. If results are not shared, the prosecutor knows everything he needs to know anyway. If the prosecutor is non-committal about how he would use a result favorable to the defense, I usually do not have my client spend the money.

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