An overview of the reliability of polygraphs and why they are not generally admissible in court, as well as reasons why courts should reconsider admissibility. FREE "Finishing Machine" bonus chapters at the end (a true crime/attorney legal procedural about a road-rage murder case).
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BOOK EXCERPT: Prologue – A Case Study: A Polygraph in Gerald Strebendt's Murder Case
In January of 2014, our client Gerald Strebendt shot and killed David Crofut after a traffic crash on a dark, deserted country road in Springfield, Oregon. The grand jury indicted Gerald with the murder of David Crofut. Gerald steadfastly maintained after the shooting and throughout his case that he had shot Crofut in self-defense, and that when he shot the decedent, he feared for his life.
We (criminal defense attorneys Mike Arnold and Emilia Gardner) represented Gerald in his murder case. In support of his self-defense claim, Gerald voluntarily submitted to a polygraph test conducted by a licensed polygraph examiner. During that test, the examiner asked Mr. Strebendt the following questions regarding Mr. Crofut’s physical threats:
1. Do you remember hearing the decedent verbally threaten to kill you?
2. Did the decedent say “you’re a fucking dead man”?
3. Did the decedent verbally threaten to hurt or harm you?
To each of these questions, Mr. Strebendt answered, “Yes.” The examiner reviewed Gerald's responses and concluded that “no deception was indicated.”
Gerald was telling the truth – at least according to “science.”
It was one thing to ask a client to take a polygraph, and quite another thing to have the client pass it. In most states, including our home state of Oregon, polygraphs are not admissible in a criminal jury trial and are very seldom admissible at any other time. The primary use of a polygraph for criminal defense lawyers is to provide it to the prosecutor in an attempt to convince a prosecutor to dismiss a case, or to agree to a more lenient sentence for a defendant.
We forwarded the polygraph result to prosecutor Bob Lane. We believed Gerald was innocent, and hoped that maybe the polygraph result would start to turn the tide of the case in Gerald's favor. The DA's office couldn't be persuaded of that as of yet, not even with the evidence from the 911 call of Gerald yelling for the decedent to "get back," toxicology results showing that the decedent was drunk, or that the decedent had purposefully rammed the back of Gerald's truck.
Receiving the result did not appear to sway Lane. He did not dismiss the murder charge upon receiving the results. He did not even make an offer to resolve the case with a lesser charge. We went on to file a motion to admit the polygraph at trial, but due to the case precedent in Oregon, that motion was denied. However, one purpose of the motion was to attempt to change the case law in Oregon in favor of admissibility and to continue to put forth Gerald’s narrative that he was innocent of the charge.
The Widespread Acceptance of Polygraphs
While the courts have been slow to accept polygraphs, other government entities have embraced them. Within the scientific community, particularly in the fields of psychology and psychophysiology which are often in the business of credibility assessment, polygraphy has become relatively well accepted. Psychophysiological credibility assessment (also known as “polygraph testing”) has long excited the experimental laboratory and has entered the realm of real-world applications.
The United States government has been, and continues to be, a heavy user of polygraph tests. Many agencies within the federal government utilize polygraphy to investigate crimes and to vet potential and current employees. Some federal agencies that use the polygraph include the following:
END OF EXCERPT
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BOOK EXCERPT: Prologue – A Case Study: A Polygraph in Gerald Strebendt's Murder Case
In January of 2014, our client Gerald Strebendt shot and killed David Crofut after a traffic crash on a dark, deserted country road in Springfield, Oregon. The grand jury indicted Gerald with the murder of David Crofut. Gerald steadfastly maintained after the shooting and throughout his case that he had shot Crofut in self-defense, and that when he shot the decedent, he feared for his life.
We (criminal defense attorneys Mike Arnold and Emilia Gardner) represented Gerald in his murder case. In support of his self-defense claim, Gerald voluntarily submitted to a polygraph test conducted by a licensed polygraph examiner. During that test, the examiner asked Mr. Strebendt the following questions regarding Mr. Crofut’s physical threats:
1. Do you remember hearing the decedent verbally threaten to kill you?
2. Did the decedent say “you’re a fucking dead man”?
3. Did the decedent verbally threaten to hurt or harm you?
To each of these questions, Mr. Strebendt answered, “Yes.” The examiner reviewed Gerald's responses and concluded that “no deception was indicated.”
Gerald was telling the truth – at least according to “science.”
It was one thing to ask a client to take a polygraph, and quite another thing to have the client pass it. In most states, including our home state of Oregon, polygraphs are not admissible in a criminal jury trial and are very seldom admissible at any other time. The primary use of a polygraph for criminal defense lawyers is to provide it to the prosecutor in an attempt to convince a prosecutor to dismiss a case, or to agree to a more lenient sentence for a defendant.
We forwarded the polygraph result to prosecutor Bob Lane. We believed Gerald was innocent, and hoped that maybe the polygraph result would start to turn the tide of the case in Gerald's favor. The DA's office couldn't be persuaded of that as of yet, not even with the evidence from the 911 call of Gerald yelling for the decedent to "get back," toxicology results showing that the decedent was drunk, or that the decedent had purposefully rammed the back of Gerald's truck.
Receiving the result did not appear to sway Lane. He did not dismiss the murder charge upon receiving the results. He did not even make an offer to resolve the case with a lesser charge. We went on to file a motion to admit the polygraph at trial, but due to the case precedent in Oregon, that motion was denied. However, one purpose of the motion was to attempt to change the case law in Oregon in favor of admissibility and to continue to put forth Gerald’s narrative that he was innocent of the charge.
The Widespread Acceptance of Polygraphs
While the courts have been slow to accept polygraphs, other government entities have embraced them. Within the scientific community, particularly in the fields of psychology and psychophysiology which are often in the business of credibility assessment, polygraphy has become relatively well accepted. Psychophysiological credibility assessment (also known as “polygraph testing”) has long excited the experimental laboratory and has entered the realm of real-world applications.
The United States government has been, and continues to be, a heavy user of polygraph tests. Many agencies within the federal government utilize polygraphy to investigate crimes and to vet potential and current employees. Some federal agencies that use the polygraph include the following:
END OF EXCERPT
