Infomation on a polygraph and why people are advised to lawyer up during a criminal investigation. (NOTE: Jason fully cooperated against the advice of counsel. Although he “passed” the polygraph he continued to fully cooperate with everything the police asked of him )
“Mr. Zailo and his friend were under intense police scrutiny. However, Mr. Zailo was cooperative with police,” said Sgt. Horsley. “He also partook in a polygraph exam, and he passed.
“Based on forensic evidence, timeline of communications, witness testimony, video surveillance, we know he’s not the killer,” said Sgt. Horsley. “Was he perhaps somehow involved in the planning? Well he successfully passed a polygraph and he successfully took part in all these interviews with us. So at this point in time he’s not considered a suspect.”
The Truth Is Out There
Detective Frank Wozniak, one of the Toronto Police Service’s two forensic polygraph examiners, says it is customary to treat everyone coming in for a test as a truthful person.
Det. Wozniak may look at the way someone answers a question, his or her tone of voice, choice of words and facial expressions, but the polygraph instrument is taking into account those things that few people can control — their physiological reactions.
Still, some people can train themselves to fool the instrument by disassociating themselves from what is happening. They use what are called countermeasures, and “there’s a whole raft of these [that]people can employ if they’ve studied those techniques,” the detective says. However, part of a polygraph examiner’s training is to learn to recognize countermeasures and to use other measures to thwart the countermeasures.
Det. Wozniak is confident he’s never been fooled by a client. “If a person is out there and they’ve committed a crime, and if they come in and they lie about that, they’re going to be caught. There’s no doubt about it. I’m going to catch them lying.”
Unless the police have a court order, taking a lie-detector test is voluntary.
Although the results are not admissible in court, the information gathered during pretest and post-test interviews is. “If you confess after a polygraph test is done, that is admissible.”
If police ask to participate in a polygraph (or “lie-detector”) test, should someone do it?
In the course of our practice, it is common for individuals under investigation to ask whether they ought to participate in a police lie detector test. Although every situation is different, the answer to 99.9% of inquiries is “no, absolutely not.” From there, we provide clients with specific legal advice on how to properly respond to the police request so as not to harm their interests or expose themselves to unnecessary risk. Although there may be circumstances where it’s in the individual’s interest to participate, those occasions are extremely rare, unique, and nuanced.
When a person is under investigation, it is CRITICAL for that person to obtain proper legal advice from a lawyer who specializes in criminal law immediately and before there is any agreement or refusal to participate in a polygraph examination. Failure to do so could have lasting, severe, and irreparable consequences that are explained further below. The importance of obtaining specific legal advice from a properly qualified lawyer at this stage cannot be stressed enough. If police have reached the stage of requesting a polygraph test, they are treating it seriously; any person requested to participate ought to as well.
A “polygraph examination” is more commonly known as a “lie detector” test. Requests by police to participate in such examinations can come at ANY TIME. Request to participate are most frequent at the beginning of an investigation when police are trying to obtain evidence and develop a theory of the case. A criminal charge is not required for police to make such a request. For that matter, police are not required to even consider that person a “suspect”. However, it would be counterintuitive and rare that police would waste their time and expense on obtaining polygraphs from people they are not interested in. Put it this way, if police felt a person was telling the truth, why would they need a lie detector? As a matter of common sense, would you ask someone to participate in a lie detector test if you believed them?
Therefore, when people are requested to participate in such examinations, they are almost always suspects or “persons of interest” – even if the police insist they are not. When police say a person is not a “suspect” it may be just another way of saying there is not enough evidence to consider them as one. However, once a person completes a polygraph test that may all change – indeed, that is probably the point. It is very common for police to lack the grounds to arrest someone until after someone has completed a polygraph examination, even in instances where a person “passes” the test or vehemently denies their guilt.
If a person is innocent, there is no obligation to prove it to police.
Often times, people who see themselves as innocent feel they should participate to quickly clear their name. It’s human nature to want people, and police, to believe they did not do anything wrong. This human desire towards exoneration does not serve the person/suspect well under police investigation.
If one knows they are innocent, that should be enough for peace of mind. Trying to convince police to reverse their suspicions exposes oneself to considerable risk with little, to any benefit. As indicated below, even if a person “passes” a polygraph examination, that result isn’t admissible in court to prove innocence anyway. Further “passing” a lie detector test is not conclusive to police and the investigation will continue as they see fit – except now police have a statement that may become relevant to impeach credibility at a later date.
If you’re guilty…well do we need to say more?
In addition to the reasons set out in this paper, it should be obvious to any person who is guilty of a crime that it is not in their interest to participate in a lie detector test. This is the same whether a person is guilty to the full extent to which the police are alleging, or even if the person feels they are only partially guilty. A person seeking to set the record straight on their degrees of guilt is rarely favourable to their interests, and rarely changes the police view on how guilty that person is. Invariably, this type of approach just serves to dig a person deeper and deeper into legal problems and lies.
A suspect is never obligated to give any statement to the police, even upon arrest. In almost all instances, lawyers will advise a person not to make a statement to police if they are under investigation for myriad reasons. Since a polygraph examination requires questions and answers, it too is a statement and the same principles against self-incrimination apply.
People who seek to exonerate themselves through their exculpatory statements will invariably provide facts and omissions that may later serve to impeach their own credibility. This is because the more people talk the more likely it is for these facts and omissions will appear exaggerated, incorrect, misstated, or unreliable to police. Those inevitable shortcomings will then be exploited under cross-examination at trial. Even people who seek to tell nothing but the truth can look incredible under a skilled cross-examination. Offering any sort of statement provides the examiner the means to craft skillful impeachments and cross-reference every fact to hard evidence that may contradict a person’s version of events.
Fortunately, under Canadian law, silence, or refusal to participate in a police investigation is not admissible to prove a person’s guilt. Silence is not evidence and it cannot be cross-examined upon – it’s as simple as that.
Polygraphs are limited in their reliability:
The reliability of polygraph testing is of considerable debate and controversy that is far too in depth to explore in this short article. Suffice to say that the science is not perfect (or we would not have a need for courts and trials). The inherent unreliability in this sort of testing simply means that passing means very little to police and is not in any way determinative in police believing in a person’s innocence. On the other hand, FAILURE often adds to suspicions and conclusions of guilt of the investigators.
Regardless of their admissibility, polygraphs still serve as very useful investigative tool for police. When a suspect is confronted with failed polygraph results, they often offer a confession.