Polygraph Tests: Polygraph Examinations Are Inadmissible In Court
Interviewer: What if someone believes themselves to be innocent? They’ve gone through this investigation process. What about polygraph? Would a polygraph be helpful?
Paul Cramm: I don’t know that a polygraph would be helpful. Typically, polygraph examinations are inadmissible in court. They do not satisfy the standard for admissibility here in Kansas at least. I don’t know that a polygraph examination will help us in a case where the forensic evidence will tell the story. If the prosecution says, “I can verify traffic to and from a known child pornography site, and this IP address, and this account,” but if no images are found on any device in the home, I don’t know that you really need a polygraph test to push the point. I think that if the clearly unlawful images depicting prepubescent children are found on the client’s computer, then the issue is whether or not the client was the one responsible for surfing, browsing, accessing, and downloading. That would be an issue of who else in the house has access to the computer equipment.
Perhaps a polygraph examination, if the client passes with flying colors, may help pretrial in negotiating their case with the prosecutor. I think at that point, the prosecutor’s curiosity will only increase as to other persons who reside at or have visited this resident, and maybe by submitting to a polygraph examination and professing our innocence, we have to prepare family, friends, loved ones, acquaintances, and anyone else who’s been in the home to be subject to scrutiny and investigation.
Admissibility of Evidence
Interviewer: Intense stuff. Would these cases always end up going to a jury trial?
Paul Cramm: Frequently these cases will be resolved without a jury trial. Frequently these cases will be resolved on the issue of admissibility of the evidence and Fourth Amendment search and seizure issues. Issues with foundation regarding the forensic evidence that we find that there are significant defense issues, as far as the integrity, foundation, and admissibility of the forensic evidence.
If the evidence is going to be admissible, and if the evidence depicts really troublesome images, there must be a very strong back defense as to that specific defendant – that person accessing and downloading the images – in order to justify taking a case like that to trial. I think that, by and large, most of these cases will be resolved or negotiated prior to trial.
Witnesses at Trial
Interviewer: If it were to go to trial, what witnesses are going to be utilized for that?
Paul Cramm: Clearly, we’ll want to call our independent examiner from Guardian Digital Forensics to testify. Clearly the prosecution will present a technician from their regional forensics computer lab. That person will also testify. The case agent will testify to any observations, discussions, and statements made during execution of the search warrant used to seize the equipment. If we have the client who professes their innocence as to the actual access and downloads, it may be that the client takes the witness stand, looks the jurors in the eye, and tells them, “I don’t know who used my computer, but I assure you, I did not download these images.” That may be important, and it may be valuable. That’s something we’d have to decide on a case-by-case basis.
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