Articles Posted in Criminal Defense

The polygraph is an issue that has been at the center of a great deal of controversy in Michigan.  The polygraph, also known as the “lie detector test,” is a way for law enforcement to gauge whether or not a criminal defendant is telling the truth. The test has been compelling in rape (CSC) cases, and the Michigan Legislature has taken notice with a statute giving the defendant a statutory right to take the test.  MCL 776.21 (5) allows a criminal defendant to have a statutory right to have a polygraph when charged with a CSC. What many fail to realize is that MCL 776.21 (2) explains that a law enforcement officer cannot offer a polygraph to the alleged victim.  We are faced with the question of whether our legislature is looking to preserve the rights of the defendant or if they seek to extend confessions in prosecutions. To discuss this matter more, we turned to several of the top lawyers in the state of Michigan for insight into the issue.

Matthew McManus is the Managing Member of McManus and Amadeo in Ann Arbor, Michigan, and one of the state’s top business attorneys. While the polygraph is a concept born in the criminal law sector, McManus has become a pioneer in advocating for the polygraph in other fields.  McManus stated, “The point of the polygraph is to get to the truth of the matter. In any form of litigation, we are supposed to be telling a story based upon the truth. We find in business settings; this can be helpful. Still, in heated discussions, we need to remember that criminal prosecution can arise at any time, so you need a strong private test to proceed as the risk is lessened.”

Jennifer Kelley is a Senior Associate for McManus and Amadeo. She is known as one of the top divorce lawyers across Michigan. Kelley provided commentary when she said, “We have utilized polygraphs in divorce matters of late. An interesting way to gauge the truth is to see if both parties are willing to engage in a polygraph. When one party is, and the other is not, that can tip the scales, but like Matt (McManus) stated, we need to gauge criminal consequences before enlisting the test. Bill (Amadeo) has always been a big proponent of the polygraph in that area.”

Many times in the field of criminal law there are questions that need to be answered. We have received emails and texts on certain issue which will help people navigate the criminal justice system.  We will provide insight on issues below:

Question I: My son is being investigated for a CSC in Washtenaw County. The Michigan State Police have asked my son to take a polygraph. Should I allow my son to take the test? My son is 16 and has learning disabilities.

Answer:  Washtenaw is in a transition right now. The Brian Mackie regime is close to an end and either Eli Savit or Arianne Slay should take the office in another direction. With that said, under the current administration most people are getting charged with a CSC based on a mere allegation.  There are two prosecutors in that office that are abusing bonds and overcharging. When a young person gets charged it is always a difficult situation for the family but I much rather deal with the charge and fight from there as opposed to submitting a child with disabilities to a police polygraph. You do not have the right to counsel at the polygraph. There is a lot more that goes into this situation but that will provide some insight.

An issue that has been making national news during COVID-19 is the value of the polygraph.  A polygraph exam is known as a “lie detector test.” It is a tool utilized by prosecutors and police officers to find out the truth.  While many view the polygraph exam as a ticket to their freedom, many pitfalls come with the test. To learn more about the polygraph exam, we spoke to several of the top lawyers in Michigan to gain their insight on the issue.

Matthew McManus and is the Managing Member of McManus and Amadeo in Washtenaw County, Michigan. McManus is known as one of the top criminal motion writers and business attorneys in Michigan. When asked about the polygraph, McManus stated, “There are many risks associated with the test. For example, we had a client who suffered from fetal alcohol syndrome. His mental deficiencies did not allow him to comprehend the questions on the test.  It is well established that a defendant’s competency is also at risk, along with their credibility when they take the test.  This causes concern with young people and that with disabilities.”

Jennifer Kelley is a Senior Associate for McManus and Amadeo. She is known as one of the top divorce lawyers in our state. Kelley stated, “We use polygraphs in civil litigation, and it carries a lot more weight.  When we started using the polygraph in our divorce filings, there was a lot of confusion to opposing counsel, but I value the polygraph. Of course, there is a major difference between criminal and civil litigation. This is not a one size fits all scenario.”

The Sentence Agreement is a friend of the criminal defense lawyer.  A sentence agreement is a concept that can take the guessing out of what sentence a defendant will receive when a plea is made. The two types of sentence agreements that are used in the state of Michigan are the Killebrew and the Cobbs Agreement.

At first glance, the terms Killebrew and Cobbs sound like the names of famous baseball players (Ty Cobb and Harmon Killebrew.  The difference between the two agreements can be the difference between freedom and incarceration.  Let’s begin by discussing the less powerful of the two concepts:  The Killebrew Agreement.

The Killebrew Agreement is an agreement between the prosecutor and the defense attorney.  The plea deal will be presented to the sentencing judge after the Presentence Investigation Report (PSI) is completed.  If the judge refuses to follow the agreement, the defendant has a right to withdraw the plea and pursue a trial.

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