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.”
William Amadeo is a Partner at McManus and Amadeo and a Senior Associate for Grabel and Associates and is known as one of the top criminal defense lawyers across Michigan. When asked about the polygraph, Amadeo stated, “If you are going to use the polygraph, you need to know your audience. I would never have a client take a police test until I had them take a private test with Andrew Longuski (www.propolygraphllc.com). Longuski ran the Michigan State Polygraph Unit for many years, and his private test is the best on the market. If they pass with Longuski, I’ll set up the test with the police, but only after I speak to the prosecutor or if I’m in a pre-charge scenario. In the pre-charge, we want to knock the charge out if possible, if, in post-adjudication, we are looking for a dismissal. Still, suppose the prosecuting office will not dismiss with a passed test. In that case, there is no reason to subject your client to 4 hours of police questioning without the right to counsel. You need to understand your audience. That is something that Scott Grabel instilled in me when I started my criminal defense career. Of course, the fact that the alleged victim/complaining witness is not subject to one is disturbing. It shows the legislature did not have the best of intentions with MCL 776.21. Suggesting that the victim take a polygraph may not go over well with the prosecutor, but facing 25 to life in the Michigan Department of Corrections generally doesn’t go over well with me.”
Scott Grabel is the founder of Grabel and Associates (www.Grabellaw.com) and is known as having one of the top criminal defense teams across Michigan and in the federal court system. Grabel added his thoughts when he said, “Sometimes you need to make a record that you have a passed polygraph, and you would offer the complaining witness the chance to take a private polygraph with anyone of their choosing. When you get that aggressive, you need to be certain of your fact pattern. We have a job to fight for our clients; going at a CSC gently will not get the job done.”
A critical factor in realizing the polygraph’s topic is that the defendant does not have a right to counsel at the test. It would be illegal for a prosecutor to offer the complaining witness a police test. While the polygraph is a powerful and respected tool, having a lawyer that understands the ins and outs is essential to protecting your freedom.