Ever since the polygraph, or lie detector, test became popular in the first half of the 20th century, questions have been raised about their accuracy and admissibility in court. Essentially, the polygraph test measures physiological responses, such as blood pressure, pulse, skin conductivity and temperature, while a subject undergoes a series of questions. The theory behind this test is that all of these indicators would deviate from their “normal” levels when a person is lying.
As a Colorado Springs criminal attorney, I am here to help you learn more about the process, and help you avoid some common misconceptions about the polygraph test in Colorado.
If you are facing criminal charges in the state of Colorado, you may have been asked to take a polygraph test. Most people are unaware of their rights in Colorado concerning polygraph tests, so I am hoping to shed some light on this, and explain how Colorado’s Criminal Court system views the polygraph.
The first thing you should know is that in Colorado criminal cases, or in an open investigation, taking a polygraph test is not required; it is strictly voluntary.
The problem with the polygraph is its questionable reliability. While a number of studies indicate an 80-95% accuracy rate, a 1997 survey of 421 psychologists estimated an average accuracy rate of only 61%. Needless to say, this level of accuracy would make anyone faced with a criminally relevant polygraph test a little nervous.
Like many other criminal lawyers in Colorado Springs, I am pleased to report that the criminal courts in Colorado have determined that the results of polygraph tests are not sufficiently reliable to be admitted as evidence in a criminal proceeding. Even if you were to fail a lie detector test, the prosecutor cannot mention that fact as evidence against you during a trial. In the event that you refuse to take a polygraph test, the D.A. cannot mention that either, nor can he even use the word "polygraph" during the trial.
This is great news for anyone who has taken a polygraph and failed, but what if you took one and passed? Wouldn’t you want this fact to be mentioned to a jury in court? Well, you cannot do that either, unless you are able to convince the judge and the D.A. to allow it, which rarely happens. You cannot even tell the jury that you were perfectly willing to take one, but the police or the D.A. wouldn’t let you.
If you are facing criminal charges in Colorado Springs, you may wish to skip the polygraph all together. It can still be useful as an investigative tool in some cases, and the District Attorney may be willing to allow it when considering whether to proceed with the prosecution. In a case like this, passing a polygraph could result in a dismissal of the case, rather than continuing with an uncertain trial. Many defendants opt to do this, thinking that even if they fail, the results are inadmissible anyway, but this is where it can get tricky.
While the polygraph results will not be admissible in court, the prosecution can still ask the polygraph operator to be a witness. Rather than being introduced as a polygraph operator, he or she would be introduced as a police investigator. As a witness, the operator could then tell the court anything you said during the narrative portion of the exam. If anything you said during the exam conflicts with your sworn statements, it could come back to haunt you.
Complications like this make it crucial to seek advice from a Colorado Springs criminal attorney with experience in handling these situations. In some cases, where the facts and conditions permit, an experienced criminal lawyer may still recommend taking a polygraph. In order to avoid any confusion, my advice is to decline the test upfront, and then let your attorney advise you on what to do in your particular case.