Should a Defendant Agree to a Pre-Charge Polygraph Examination?

In Unforgiven, Gene Hackman's character, a town marshal, interrogates Morgan Freeman with a whip. The marshal confronts Freeman's character with purported guilt. When his coconspirators lies don't match his lies, says Hackman, he's going to hurt Freeman, "and not gentle like before. But bad."

Despite nearly universal rejection of polygraph junk science in the courts, some law enforcement officers still ask interrogation targets to take polygraph, or, so-called “lie detector” tests. The objective is a confession-- not the truth.

Law enforcement in the State of Iowa has a checkered past of using polygraph examinations oppressively to extract confessions. State v. Franks, 239 N.W.2d 588, 590 (Iowa 1976). In Franks, a prosecuting attorney exchanged the promise to refrain from filing a trial information for the Defendant’s consent to  take and “pass” a polygraph examination.

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The Court recounted that the promise went something like this: “Larry, if that's the case why don't you take the polygraph and I won't even have to file an Information if you don't know anything about it.” But it got worse from there.

The polygraph was a prop in a devious interrogation, which the Court found coercive and involuntary irrespective of the technology. Id. The prosecutor refrained from charging the defendant to deny him counsel, invited the unrepresented defendant to take a polygraph to avoid a charge, and the polygrapher detective promised probation for a confession and threatened a twenty year prison sentence if the Defendant did not confess. Id. The Iowa Supreme Court understandably reversed and remanded for a new trial. Id.

Similarly, the Iowa Supreme Court has affirmed a lower court ruling suppressing a confession after a rigorous “hard” polygraph examination was a factor in confronting the defendant with his purported guilt. State v. Cullison, 227 N.W.2d 121, 129 (Iowa 1975). In Cullison, the facts and circumstances—including sleep deprivation and a six hour polygraph exam—were so egregious that the court held that the use of a prolonged polygraph exam, while not per se coercive, must be a factor in determining whether a confession was coerced. State v. Cullison, 227 N.W.2d at 129.

Notably, the Cullison court queried whether the “release” the defendant signed was designed to indemnify the detectives for their treatment of the defendant:

 

“This instrument contained another waiver of Miranda rights but its main purported purpose was to release the Pottawattamie county attorney and his employees (Babbitt, the polygraph officer was one) from all liability for the results of the polygraph examination.”

Cullison, 227 N.W.2d at 128.

Perhaps the lawsuit protection was wise, as the Court pointed out:

“The physical and psychological tensions exerted on [the defendant] were demonstrated by his condition when the interrogation ended. The officers were alarmed; he was immediately hospitalized.” Cullison, 227 N.W.2d at 129.

The Cullison polygraph interrogation was nine and a half hours straight—six and a half hours of which was the so-called polygraph exam. Id.

 
In Franks and Cullison, polygraphs were a prop for interrogations, designed to confront defendants with purported “knowledge” of their guilt. In both cases, the court found that the extraction was inherently coercive and, thus, both unreliable and unconstitutional.
 
But there is another good reason not to take a polygraph examination—if a defendant “passes,” the prosecutor can prohibit the jury from ever seeing the result. In State v. Conner, a defendant offered evidence of his own expert polygraphers to show that he was not being deceptive when asked specific questions. The State moved to limit the introduction of that evidence. The Court agreed that it could not be offered unless the prosecution stipulated, or, agreed, to its introduction.  State v. Conner, 241 N.W.2d 447, 457 (Iowa 1976).

So, in short, polygraph exams in the State of Iowa are mostly props useful only to interrogators and useless to defendants who wish to “prove” their innocence.

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