Contrary to popular belief, polygraph examination can be used in certain court proceedings.
Since 1984, when the Oregon Supreme Court decided State v. Brown, court’s in Oregon have been forbidden from allowing the admission of a polygraph test, even if the parties agree to admit the results into evidence, in the course of a civil or criminal trial. But, not every proceeding is a trial.
Polygraphs are routinely used by the courts to determine compliance with conditions of probation. Convicted sex offenders are often asked to confirm that they have not viewed pornography or had unauthorized contact with minors by the administration of a polygraph examination. Many probations for persons on intensive supervision for DUII require the probationer to confirm abstinence from alcohol and drugs by polygraph. Morever, since the Court of Appeals ruled in State v. Hammond that a judge can use a failed polygraph to find a person in violation his or her their probation, a judge can also use a passed polygraph to find a person not guilty of being in violation of his or her probation.
Recently, the Oregon Court of Appeals determined that polygraph results can be admitted in the course of hearing conducted under the Administrative Procedures Act (APA). In Waisanen v. Clatskanie School District, the Court dealt with a teacher who appealed his dismissal for having sexual contact with student some 30 years previously. The former student came forward, reported the incidents and passed a polygraph. The polygraph results were admitted at the teachers termination hearing and the appeal of his termination. The Court of Appeals noted that under the APA evidence that “prudent people rely on in their serious affairs” is admissible. A passed polygraph, in these circumstances, met that standard of admissibility.
Mr. O’Rourke’s experience as an Oregon Criminal Defense Attorney is that polygraph examinations can be useful in defending clients in criminal prosecutions. A polygraph result may not be admissible at trial, but a passed polygraph, conducted by a well trained polygrapher, can do much to influence a District Attorney’s decision to bring charges or not. We have also had success using polygraph results in defending our client’s in probation violation proceedings, as well as in sentencing hearings criminal charges.
By James F. O’Rourke Jr.
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