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Univ. of South Carolina School of Law

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Thursday, August 28, 2014

Where the Truth Lies, Take 2: Florida Defendant Offered Deal: Pass Polygraph, Charges Dropped; Fail Polygraph, Results Admissible

You are charged with murder, and the prosecutor offers you a deal. You take a polygraph test. If you "pass" the polygraph test, the charges against you will drop. If you "fail" the polygraph test, the case will proceed to trial, and the polygraph results will be admissible against you. Would you take the deal? Should the prosecutor be allowed to offer such a deal? Let's take a look at a case out of Coral Springs, Florida.

Gustavo Enamorado Dubon has been charged with first-degree murder in connection with the death of a prominent Coral Springs businessman.

Detectives David Young and Brian Koenig were unknowingly caught on audiotape talking about how they believe...Dubon wasn't really involved in the gruesome murder of Francisco Cuevas.  

Despite that, homicide prosecutor Greg Rossmann said he's going forward with the case.

And now, perhaps in response to the audiotape,

State Attorney Michael Satz has made a rare high-stakes offer to Dubon's attorney to take a lie detector test that, if passed, would free him from jail. But if Dubon fails, it would be used against him at trial.  

Dubon’s attorney, Anne LeMaster, said she hasn't made a final decision about the polygraph.

This is the first I have ever heard of this type of offer, just as my post last month dealt with a first: a plea deal conditioned on the defendant passing a polygraph test. Both of these cases illustrate a trend that is either interesting or disturbing, depending on your bent: the collateral use of polygraph tests in criminal cases. Results from such a test are typically inadmissible, but these two cases show the continuing role that lie detectors play in the American criminal justice system.

This of course begs the question of whether Satz's gambit is permissible under Florida law, and the answer seems to be "yes." As in most jurisdictions, in Florida, the prosecution and defense can agree prior to the administration of a polygraph tests that the results will be admissible, waiving the bar against the admission of such results. Davis v. State, 516 So.2d 963 (Fla.App. 4 Dist. 1986).

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/08/you-are-charged-with-murder-and-the-prosecutor-offers-you-a-deal-you-take-a-polygraph-test-if-you-pass-the-polygraph-test.html

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Comments

Thanks for the post . I couldn’t quite understand , how such deal offered by this prosecutor , could be admissible , regardless of the consent ( and even free will one ) of the defendant .

Since , in Frye v. United States the ruling was clear : has got nothing to do with the consent of one party or another, but rather objective terms prevail : Since , the credibility of that procedure/ machine, are clearly questionable!!

It's correct, that later development (Daubert v. Merrell Dow Pharmaceuticals) suggested that internal tests for new scientific procedures can be introduced and examined, but: in the case of the polygraph, the basic challenge for the reliability of that procedure, still stands.

So how come if you may ……

Thanks

Posted by: el roam | Aug 29, 2014 6:30:34 AM

It is sheer folly for any court to take even one step down the path towards allowing the results of the so-called "lie detector" into evidence! And any attorney who allows his/her client to submit to what amounts to an intense interrogation should be disbarred for malpractice!

I am the only licensed polygraph expert who has ever told the truth about the polygraph, and the truth is, the polygraph is not a "lie detector". I have been telling the truth about the scam called lie detection for almost forty years now in hopes of destroying the dangerous myth of "lie detection". Carl Sagan said, "If it can be destroyed by the truth, it deserves to be destroyed by the truth." I was instrumental in destroying a large part of the polygraph industry by getting most polygraph testing outlawed in the private sector. In 1988, with the passage of the EMPLOYEE POLYGRAPH PROTECTION ACT, administering polygraph tests actually became a federal crime! Even the U.S. Supreme Court refused to admit polygraph results into evidence, and ironically it was the U.S. Justice Department who argued that the polygraph results were not reliable and should not be admitted into evidence! I was a member of the Office of Technology Assessment, (an investigative arm of the U.S. Congress), studying the validity and reliability of the polygraph - our report basically said it was worthless as a "lie detector". I also testified in the U.S. Congress in support of the EPPA. Here is an interesting piece of historical trivia: When I testified in Congress, I put my manual, HOW TO STING THE POLYGRAPH into the Congressional Record, and the Senators and Representatives distributed more copies of my manual between 1984 and 1988 than anyone has ever distributed - including me! They sent them out by the tens of thousands in response to requests from constituents. But, there were exclusions written into the law that allowed the government - local state and federal - to continue to use the polygraph. They attempt to justify these exclusions on the grounds that the government needs this tool to protect national security and the law enforcement officials need it to protect the integrity of the criminal justice system. I have proved the polygraph is not a "lie detector" - the Congress, the Justice Department, the OTA, and all those with any scientific credibility agree with me - so there is no justification for the government to continue to use it on the pretext that it protects our national security or the integrity of the criminal justice system.

It is FOOLISH and DANGEROUS to use the polygraph as "lie detector" - the theory of "lie detection" is nothing but junk science. It is based on a faulty scientific premise. The polygraph operators have the audacity to say that there is such a thing as a "reaction indicative of deception", when I can prove that "lying reaction" is simply a nervous reaction commonly referred to as the fight or flight syndrome. In fact, the polygraph is nothing but a psychological billy club that is used to coerce a person into making admissions or confessions. It is FOOLISH and DANGEROUS for government agencies to rely on the polygraph to "test" applicants, or to conduct any type of investigations relating to national security. It is FOOLISH and DANGEROUS for the criminal justice system to rely on an instrument that has been thoroughly discredited to determine whether or not a person is truthful or deceptive, or to use it to guide their investigations in any way - especially when the results cannot even be used as evidence in a court of law! And it is FOOLISH and DANGEROUS for anyone to believe they will pass their polygraph "test" if they just tell the truth! When you factor in all the damage done to people who are falsely branded as liars by these con men and their unconscionable conduct, this fraud of "lie detection" perpetrated by the polygraph industry should be a federal crime! The protection provided to some people by the EPPA should be extended to protect everyone from this insidious Orwellian instrument of torture! Shame on anyone who administers these "tests" - and shame on the government for continuing to allow this state sponsored sadism!


Posted by: Doug Williams | Aug 29, 2014 11:01:25 AM

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