January 2014 - Pg 12-Attorney
I also insist that the examination take place at the polygrapher’s shop, not in the cops’ base camp, and I make sure I can be present for the examination. While I have never been allowed in the room when the exam takes place, by being on site I can make sure the cops are not there to attempt an accusatory pre-exam interrogation which could produce a false result. I have had prosecutors dismiss cases or amend charges through the use of a polygraph. I have also had them ignore results favorable to my client. The net result has been on the positive side.
I have no experience with the other listed types of examinations. Again, I believe that a level of trust with the examiner is important, and I have never encountered examiners in these areas. I would consider a psychological or psychiatric evaluation under the “attorney work product” doctrine if I believed it would benefit my client. I do not believe that any type of shooting or weapon manipulation skill test would be advisable in that I do not believe the conditions of surprise, pressure and adrenaline load can be replicated in a controlled setting.
Lastly, I would make sure that anything I did would be adequately cloaked in the attorney work product doctrine so it would not be discoverable if I did not want to disclose it.
John P. Sharp
Sharp & Harmon, Attorneys at Law
984 Clocktower Dr., Springfield, IL 62704
As to whether we would allow a client who uses deadly force in self defense to be administered a polygraph, as a general rule I believe the answer would be no. Many variables can affect the outcome of a polygraph. An “inconclusive” result also would not be dispositive of the situation. Polygraphs are not admissible in court in Illinois and many other jurisdictions, the same with voice stress analysis or hypnosis.
An eye examination may be something you would consider depending on the time of the incident (day or night, morning or evening) to determine a client’s visual acuity. If a client claimed the deceased had a weapon, how good is his or her sight to be able to make such a determination? But you may not wish to share that with the prosecutor.
Blood analysis is something the officers on scene may seek immediately if your client appears impaired or under the influence. Any psychiatric evaluation would depend on all the factors present in the case, and whether or not you would assert an applicable defense.
Having the client perform a shooting test or test of weapon manipulation still may be something we would want to know, but not necessarily share with the prosecutor. All of these issues should be examined case by case, situation by situation.
The results of such evaluations for the most part would not be presented by the defense to the grand jury. The grand jury is the tool of the prosecution.
A prosecutor may very well factor in the result of a polygraph or other test, even if not admissible in court, in determining whether or not to charge someone. Remember, “inconclusive” doesn’t mean your client passed. A prosecutor may deem “inconclusive” to mean lack of truthfulness.
If you do the testing on your own and would seek to use any of the results at trial, it would be discoverable. The courts in Illinois issue a discovery order, specifying certain things that must be turned over. Absent the material being covered in the order, it would be on a case by case basis.
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