Polygraph tests or lie detector tests have a muddled public image due to distortions from media representations, so it is vital to know what these tests mean in the real world. When the police arrest an individual, they have a legal obligation to instruct the arrestee of his or her rights, one of which is the right to remain silent: “Anything you say can and will be used against you in a court of law.” A polygraph test is simply a means for the police to question a suspect in a very controlled, high-pressure environment. An individual who waives his or her right to silence and agrees to a polygraph test could face serious legal issues as a result.
The police have the right to ask you questions after an arrest, and you have the right to remain silent and the right to an attorney. A good rule of thumb that most defense lawyers would recommend is to say nothing without legal representation. If you face a wrongful accusation, it is worth speaking up and making your case, but it is also important to remember that the police may use misspoken words or things said in passion against you. Waiting for an attorney to represent you is ultimately the best course of action to avoid wrongful charges and unjust punishment.
If the police insist on a polygraph test for a suspect, his or her attorney may agree to a supervised polygraph test conducted by a neutral third party and submit the results to the police. However, for several reasons, this rarely happens. Primarily, polygraph tests are not 100% reliable and are therefore inadmissible as evidence in a trial. The police simply prefer to secure polygraph transcriptions to lock a suspect into a story. Additionally, a supervised polygraph administered by a third party will likely entail supervision from both the defense and the district attorney’s office, and these two parties will rarely come to mutually agreeable terms for a polygraph.
In previous years, American employers sometimes had the option of conducting polygraph tests on job applicants. However, this trend became discriminatory and abusive and the federal Employee Polygraph Protection Act essentially banned the practice for most employers. Additionally, most states have adopted laws preventing employers from requesting or demanding polygraph tests from applicants or employees except in some high-risk fields.
The Employee Polygraph Protection Act only allows employers to conduct polygraph tests in certain industries. For example, a position that requires handling drugs or high-profile security may allow employers to conduct polygraph tests of applicants or employees. An employer must provide the subject of an employment-related polygraph test no less than 48 hours’ notice of the test and provide the subject with reasonable suspicion as grounds for the test. Essentially, the employer must have some proof that the subject of the test is somehow involved with a job-related criminal act.
When an individual submits to an authorized polygraph test, he or she can provide a list of off-limits topics. For example, the subject may require the tester refrain from asking any questions about the subject’s sexual orientation, political affiliation, or relationship status. The subject will also need to sign a statement covering the terms and conditions of the test and an explanation of the subject’s legal rights and how the employer will use the results of the test.
An employment attorney can be a great resource for questions about an employment-related polygraph test and a defense attorney can advise an arrestee concerning a polygraph related to a criminal matter. Anyone facing a polygraph test should consult with an attorney as soon as possible before agreeing to the test or signing any documentation related to the test.