A junior member of the military is accused by another military member of sexual assault. Witnesses state and cell phone videos capture the two flirting and engaging in what appears to be consensual physical contact. Video shows them going into a barracks room. Twenty minutes later, video shows the pair leaving the barracks room – everything looks fine. An hour later, the alleged victim reports to her friends that she was sexually assaulted in that barracks room. Her friends call base police, who call NCIS. NCIS apprehends the suspect and interrogates him – the suspect waives his rights and tells a detailed account of consensual sex in that barracks room. The NCIS special agents asks the sexual assault suspect if he was willing to take a polygraph. The suspect immediately and confidently says “yes.”
Four months later, at a different base, in a conference room, a trained NCIS special agent polygrapher shakes hands with the sexual assault suspect as he enters the room. This is all on video. The polygrapher explains how the polygraph process works – there is a series of yes/no questions that will be asked. The suspect again waives his rights and the polygrapher runs through these questions – they include, “Did the [alleged victim] tell you to stop during sexual intercourse?,” “Did the [alleged victim] tell you ‘no’ during sexual intercourse?,” “Did the [alleged victim] your chest with her hands during sexual intercourse?” After 20 minutes of talking about how this will be no big deal and after this the sexual assault suspect will be cleared (aka “building rapport”), the sexual assault suspect is hooked up to the polygraph machine and asked some “control questions” such as “Is today Friday?” to reportedly give the polygrapher a baseline. Then the polygrapher starts asking the relevant questions. He runs through the questions and then turns off the machine and disconnects the machine from the sexual assault suspect. He pulls his chair within a foot of the suspect. He then informs the suspect there are some problems with his answers. That the machine is telling him that he is holding back and they need to talk about it so they can get things back on track. It escalates to the polygrapher telling the suspect he is lying and needs to come clean. The suspect’s denials are ignored. And after a short period of time, the suspect admits that the alleged victim said “no” and “stop” during sex and that he did not stop having sex. These admissions become the focal point for the Article 120, UCMJ general court-marital charges against the suspect. He now faces life in prison, a dishonorable discharge, and lifetime sexual offender registration.
I have seen this scenario play itself out on many occasions. For prosecutors, confessions are powerful evidence of guilt. Though false confessions do occur and there is empirical evidence supporting so, juries struggle to believe they are not true.
Should the sexual assault suspect have agreed to take the polygraph?
Under these circumstances, the answer is no. The suspect should have not agreed to take the polygraph. Without the confession made during the polygraph, it is doubtful the suspect would have ever been charged with sexual assault.
The suspect went into the room with the polygrapher naive about the process and the goal of the NCIS polygraph. The goal was not to exonerate the suspect. The goal was place the suspect in a position where he could be interrogated. Polygraphers are the most well-trained interrogators in law enforcement. The polygraph process, from the moment the suspect enters the room, is designed to put psychological pressure and coercion on the suspect in order to induce a confession, regardless of what the polygraph machine may or may not show.
Polygraph results themselves are not generally admissible at any trial – however, the statements made during polygraphs are generally admissible. So if the suspect had actually passed the polygraph under the polygraph machines technical parameters, those results are admissible.
Should any suspect ever agree to take the polygraph?
Yes, but only after consultation with an experienced attorney and with the attorney present (in the same building at least) during the test. Despite the primary use of the polygraph as an interrogation tool, an “exculpatory polygraph” will be considered by law enforcement and prosecutors in the decision whether to charge crimes. If other evidence points to innocence and the suspect “passes” a polygraph, law enforcement and prosecutors use the polygraph to corroborate the other evidence of innocence.
Do you ever recommend to your clients that he or she take a polygraph?
On the rare occasion, I have recommended that clients take a polygraph under certain conditions. These include my physical presence in the building, presence during the pre-polygraph interview, and agreement that no post-polygraph interview will take place. The evidence in the case must also indicate that without the exculpatory polygraph, there is a reasonably likelihood that the client will be charged and face a trial.
There is substantial risk in moving forward with a polygraph even with the parameters set forth above. If the results of the polygraph show deception, or the client employs any measures to defeat the polygraph, law enforcement and the prosecutor will reach the conclusion that the suspect committed the offense and should be charged, even though the results of the polygraph aren’t admissible.
NO SUSPECT SHOULD EVER AGREE TO A POLYGRAPH BY LAW ENFORCEMENT WITHOUT HAVING THE ASSISTANCE OF A TRAINED CRIMINAL DEFENSE LAWYER.
Attorney Patrick Korody is a former Navy JAG who specialized in military justice including NCIS investigations and courts-martial. During law school, he worked at NCIS Headquarters Legal in Washington, DC. During his decade of active duty in the Navy JAG, Mr. Korody worked closely with NCIS as a military prosecutor and zealously challenged their investigations, tactics, and credibility as a defense counsel. Mr. Korody has earned a reputation as one of the most knowledgeable and zealous military law lawyers in the country. He is also qualified as a death penalty trial lawyer and handles complex state and federal criminal defense in and around Jacksonville, FL.