January 2014 - Pg 10-Attorney
The federal Justice Department’s National Institute of Justice, has issued an opinion that voice stress tests are said to be “no better than flipping a coin when it comes to detecting deception.” As for hypnosis, eye examination, blood analysis and/or psychiatric evaluation, under what circumstances would be the real question, and how would it be at all relevant?
If the ultimate question is whether the client acted, based upon a reasonable fear of imminent death or crippling injury, and if so, whether his/her actions in employing deadly force were a reasonable response to the apprehension of that danger, I would have to know the goal behind a request for any of these tests and would likely not agree to the State conducting such tests even if they were to request them.
How a judge would react to a motion to compel such tests is impossible to answer, and the idea brings up a whole host of Constitutional issues. I can think of a lot more situations where results from such tests could be used to damage the client’s self-defense claims than I can think of situations where they would assist.
A test of shooting or weapon manipulation skill? I would never suggest such a thing. I cannot imagine a prosecutor who would attempt to request it. Again, the results of such a test are simply not relevant to the issues a jury is going to have to decide. And what if the client were to take a test and demonstrate superior skills? What then? Proves nothing useful, and gives a prosecutor the opportunity to suggest to a jury that the client should have “shot to disarm,” or “shot to wound.” Defense counsel would object, and an experienced judge would call you to the bench and ask, “What the hell were you thinking when you agreed to such a test?” A judge new to the bench may well overrule the objection. They are not gods. They continually make evidentiary ruling mistakes. That is why we have appellate courts.
Are the results of such evaluations presented to the grand jury or admissible at trial in your jurisdiction? There’s no universal answer. Depends on the circumstances. Polygraph and voice stress analysis? No, they are not. Our Minnesota courts have ruled that they do not meet the Frye test.
Do prosecutors use them in making charging decisions? Not in my experience, but again it would all depend upon the context involved, and the individual prosecutor, as well as the availability of other evidence.
If you do this kind of testing on your own are the results discoverable in a criminal case? In a civil liability trial?
If you do this kind of testing, the results are always discoverable in one way or another. In a criminal case, the Rules of Criminal Procedure would require disclosure to the prosecution. In a civil case, the Rules of Civil Procedure require disclosure if an inquiry is made, and an inquiry is always going to be made. In either case, failure to make full and complete disclosure can land counsel and their client in a whole lot of serious trouble.
John J. Wolfe
Wolfe Law Office
337 4th Ave. S., Clinton, IA 52732
I have used polygraph and psychological evaluations in some cases. In most cases they are exams performed by my expert and under attorney client privilege. They are not discoverable and will only be turned over to the State if it benefits my client. In some cases the polygraph has been suggested by the State and I arrange for an exam before agreeing to one by the State.