Should Criminal Defendants Ever Take a Police Polygraph Exam?

This video describes why a police polygraph test is not protected by the attorney client privilege and that anyone considering taking a lie detector test should hire their own polygraph expert to administer the examination.

In this video, Stephen Gustitis makes clear that a polygraph examination administered by the police is not protected by the attorney client privilege. It also examines four reasons why a criminal suspect should ask their criminal defense attorney to hire a private polygraph expert to administer any lie detector tests. This is the final video in our series on how a polygraph examination can be used to help defend your criminal case. Steve is a Texas Board Certified Criminal Defense Attorney practicing in Bryan-College Station, Texas. He has more than 27 years of experience in the field of criminal law and criminal defense in Brazos County. His videos cover a range of the best defense tactics and criminal defense strategies, including how to use polygraph examinations to help defend your criminal charges.

Anticipating Client Needs Reaps Loyalty

I continuously encourage my staff to anticipate client needs whenever possible. Anticipating needs (and meeting needs before the client expresses them) sends the message we care about them as individuals. When clients know we care they become fiercely loyal to our firm.

Anticipating needs is achieved by simply paying attention and knowing the people we're serving. It's achieved by training each person in the firm to recognize the need for personalized service. Hiring support staff and other criminal defense lawyers based on a few key client-friendly traits such as warmth, empathy, teamwork, and optimism.

We work to align our systems to center on what clients really want from us. We endeavor to never treat anyone the same. Our great service requires custom fitting every day as we work with the special people who've trusted their future with us.

So, if you want to glue clients to your firm, learn to anticipate what they need and provide it before they ask. Thanks, Micah Solomon, for the many insightful tips into developing client loyalty.

Putting Up My Legal Skills for Awhile

One of the easiest ways to alienate a client is to behave like a lawyer all the time. Sometimes criminal defense lawyers simply need to act like regular people to help their clients through difficult times. This is especially true when resolving client-service issues.

When clients point out "service lapses" by their lawyers, we must know how to accept responsibility and apologize. Most of the time the client doesn't need an "analysis of the facts." They don't need us to "allocate responsibility." Rather, they want our empathy. They need us to see their side of the situation. And most importantly, they require us to "man-up."

Regularly taking the client's side is another way to develop long-term client loyalty. Heck, it is just the right thing to do. Make this a habit and clients will forgive our small foibles. Make this a habit and clients will become immune to competitive entreaties from the firm across the street.

It's About the First and Last Thing We Do

According to Micah Solomon, psychological studies show our clients remember the first and last thing we say during a meeting or phone call more vividly than anything else. It's the principles of primacy and recency at work during a customer service encounter. Another way of looking at it is whether we, or our support staff, sound interrupted when the client calls. That's the first thing they hear. Wouldn't it sound better if our voices communicated genuine pleasure to hear from them? At the end of a case, what is the last thing the client hears from us? A form letter advising our legal representation agreement is terminated, or genuine thanks for trusting us to provide them such a valuable service?

Criminal defenses attorneys should assure the first and last elements of our client interactions are well-engineered, since they will stick in the client's memory the longest. What our clients remember first, and last, will go far in developing the client loyalty we can be proud of.

Fast Service is King, But Delay Wins Cases

Fast service impresses clients and fosters client loyalty. Even though clients don't know what's involved in completing our work as criminal defense lawyers, modern clients expect speedier service than previous generations. However, the key tenets of criminal defense work are deny, delay, and defend. So how does the effective defense attorney square the need for speedy service with the necessity of delay in successfully defending a criminal case?

Most importantly is adjusting client expectations at the front end of the representation. The criminal client should be informed how the process of delay works in their favor. How police witnesses lose memory, how prosecutors lose interest, how mitigating facts can be developed over time to favor the client.

Adjusting client expectations, notwithstanding, is never a justification for tardiness in other areas of the representation. For instance, returning phone calls and keeping clients informed of case developments. This is where fast service is king and where improved client loyalty is developed.

In other words, take good care of your clients by responding quickly to their questions. But let them know, up front, the best results in a criminal case often come after long periods of delay.

Failure To Communicate Plea Offers

The criminal defense lawyer's professional responsibility to each client is to timely communicate plea bargain offers made by the prosecutor. When defense attorneys fail to communicate plea offers to clients they commit ineffective assistance of counsel, which can often lead to reversal in a criminal case.

To establish an ineffective assistance of counsel claim the client must, first, prove their lawyer's representation fell below an objective standard of reasonableness. Second, the client must prove the deficient performance resulted in prejudice.

Failure of defense counsel to inform a client of plea offers made by the prosecution is an omission that falls below a standard of professional reasonableness. Furthermore, courts have been unanimous in finding that defense counsel's failure to inform a client of a plea offer constitutes a violation of the person's Sixth Amendment constitutional right to effective assistance of counsel.

But the failure to advise the client of the offer is not quite enough to obtain a reversal. The client must also show they were harmed by the lawyer's unprofessional conduct. In other words, the client must further prove they would have accepted the plea offer had it been communicated. Luckily, the courts have not required defendants prove the trial court would have accepted the plea bargain to establish harm. Only that the defendant missed the opportunity of accepting such a bargain and presenting it to the trial court for consideration.

If you find out your lawyer failed to communicate a plea offer to you, contact new defense counsel immediately. Relief might be available and you need to discuss the matter with an informed and experienced criminal defense lawyer as soon as possible.

Client Communications

Brian Cuban, a Dallas attorney and brother of Dallas Mavericks owner Mark Cuban, had a cynical appraisal of client communications this week on his "Brian Cuban's Blog. After reading Brian's post, I wondered if he had any clients after his 20 years of practicing law. He was commenting on this post on Tom Kane's Legal Marketing Blog.com which advocated lawyers should be smart by making it convenient for both clients and prospects to reach them when necessary. This is what Brian said:

It is a time tested and well accepted position that 98 percent of attorneys don't give a shit about who can get a hold of them and for the most part actually go to great lengths to keep people from getting a hold of them unless of course the person is calling about their unpaid bill or the call will generate a substantial billable rate. If the call will not generate a fee you have as much chance of talking to the attorney as Johnny Cochran rising from the dead. Client goodwill is something only mused about in terms of what you could have done after the client has told you to F*** off and/or files a grievance with the State Bar. Not that you will learn anything when you send the next client's call to voice-mail.

The golden rule from what I have seen is that a client is just a means to an end with no form substance or history unless a payment is late or a trial is about to start.... Other than that all phone calls are unnecessary time wasting annoyances. Client service is for sales people. We attorneys are not sales people, we are highly educated and skilled professionals who are above client service small talk. You come to us for results, dog us when we don't get them and forget about us after we come through. Doesn't this justify the fact that I don't give a shit about you the client? Right? Of course right!

Well, I can't add anything to that! Other than wondering whether Brian had any clients, I also wondered why he would muse over posts at a legal marketing blog? I guess just looking for cannon fodder for his next post.

What Would Your Mother Think?

Recently, several student-athletes have run afoul of the criminal law. In December 2007 two Texas A&M football players, Yemi Babalola and Brandon Joiner were suspended indefinitely after their arrests for robbery and drug offenses. In August 2007 a former Bryan High School basketball player, Michael Young, was sentenced to life in prison for stabbing a local woman 42 times.

Nothing hurts more than seeing a promising athlete's career fade-to-black because they were not responsible enough to work hard, play fair, keep clean, and stay out of trouble. Criminal defense lawyer, Micheal Taheri, featured in an article in the "Buffalo News," offered a simplistic, yet unique method of encouraging his client athletes to stay clear of law enforcement:

Amherst attorney Michael S. Taheri looks at all these incidents, shakes his head, and offers a simple piece of advice for student-athletes everywhere.

“In any given situation, I tell them to ask themselves, ‘Would my mother be proud of me if she saw what I am doing at this moment?’ If you look at your actions from that perspective, it can keep you out of a lot of trouble.”

“I try to explain to them that the things they do in their high school years can have serious ramifications for them years down the road. When they apply for sports scholarships, many colleges ask them right up front, ‘Have you ever been convicted of a crime?’

“When they hit the job market, a lot of employers ask the same question. A DWI or drug conviction at age 17 can hurt you down the road.”

About student-athletes, Taheri also commented:

“Every year, I see more and more of them getting into trouble. Every year, I see situations where outstanding student- athletes who have the potential to be scholarship players, or even potential pros, throw it all away for drugs or alcohol.”

Student-athletes, especially the most accomplished ones, are highly visible in their schools, often popular and often faced with many temptations, including opportunities to attend parties where drugs and alcohol are available.

Top student-athletes are sometimes coddled and often put on a pedestal by American society. But society also subjects the young athletes to extreme pressures — including the pressure to succeed, and peer pressures that lead some into illegal conduct.

Although not confined to the student-athlete, there are several common criminal trouble spots facing young people, especially in a college town where temptations abound:

• A DWI arrest can cost an athlete and his parents plenty. Fines imposed by a judge, alcohol evaluation and counseling, various state fees, increased insurance costs and legal fees can put them in a financial hole for years.
  

• Obtaining alcohol for anyone younger than 21 can result in criminal prosecutions for providing alcohol to a minor, endangering the welfare of a minor, or other crimes.

• Possessing marijuana or other drugs can result in both driver's license suspensions and jail time.

• Even consensual sexual conduct with an individual under age 17 can result in a criminal prosecution. An athlete who is 17 years or older, having sex with a 16- year-old, could potentially be prosecuted, even if the girl misrepresented her age.

• A student who sends nude images of a minor over the Internet could be prosecuted under tough federal and State child pornography laws.

• Harmful hazing activities — such as forcing a teammate to drink large amounts of alcohol — could constitute a crime be punishable by up to a year in prison, or longer.

Student athletes face many pressures in our culture to perform. But Helping Parents Parent is part of the job of the criminal defense lawyer. If we can help save even one, the effort is well worth it.

Client Out of Control? Give Him a Polygraph.

Let me preface my comments by saying any criminal defense lawyer who allows their client to take a polygraph examination administered by the prosecutor's expert is bordering on malpractice. The only polygraph a client should take is one administered by a polygraph examiner hired by the defense team. This makes the examiner subject to the attorney/client privilege and protects the results (good or bad) with the attorney work-product doctrine. With that said, sometimes it is good when a client takes and fails the test.

Client control and management is often a challenge even among the most experienced defense lawyers. After 18 years of criminal law practice, 14 of which as a defender, some of my clients remain unmanageable, or at least difficult to handle. That's ok, though. Over the years I've learned some tricks of the trade, one of which is the lie detector test.

Many clients refuse to face reality. Reality in the form of hard, indisputable facts, confessions, physical evidence. Prosecutors make offers to settle cases based upon this evidence, but often the client ignores this reality and insists upon a plan of action leading to inevitable failure. Sometimes the client insists upon a claim of innocence despite a mountain of contrary evidence.

In rides the polygraph examiner - from the client's point of view a neutral expert. The client knows the examiner is there only to get the facts. The client knows the examiner is not his advocate, does not negotiate for him, and does not care whether he is telling the truth. But the client also knows if he's lying there's a good chance he'll get caught. And once caught, the client knows he'll need to face reality. Ah . . . much better!

I'm amazed how much more manageable an unruly client becomes after he fails a polygraph. Moreover, the family feels better (assuming we decide to tell them) because their loved-one's claims have been fully investigated and given their proper due. The client is now in a better frame of mind to evaluate offers to settle, trial strategies, etc. I don't imply we roll over for the prosecutor, by any means. But at least the client has a proper grip on their case and can make better, more informed decisions about how to proceed.

So, is your client out of control? Consider giving them a polygraph. If they pass - great - hit the prosecutor over the head with it. If they don't pass, don't worry either. Sometimes the polygraph is for the client's benefit, not the prosecutor's.

Adjusting Client Expectations

Shawn Matlock posted here about the "The Business of Winning." He made some important points about the practical aspects of the criminal justice system including the reality of plea bargaining. Shawn stated: "There are degrees of winning, and there are degrees of losing. A win for one client is a loss for another. Every case is different. Every client is different." Earlier this summer, Mark Bennett posted here about "winning," as well. Mark stated: "If 'losing' means having a jury convict a client, then any lawyer who tries criminal cases, loses cases. The lawyer who has never had a client convicted by a jury hasn't tried enough criminal cases."

Identifying and managing the expectations of our clients and potential clients should be a normal part of our client intake systems. A satisfied client is one who's realistic expectations about their case have been met, or exceeded. Consequently, criminal defense lawyers must be in the business of realigning any unreasonable expectations of our clients, both outcome oriented and service oriented. What Shawn and Mark were doing in their posts was exercising the important skill of adjusting client expectations. In other words, these experienced lawyers were "under-promising" but "over-delivering."

This client management truth was best illustrated in the original Star Trek science fiction T.V. series. Scotty, the Enterprise's chief engineer, constantly under-promised but always over-delivered when getting Captain Kirk and the ship out of trouble. In every engineering crisis, because of the constraints of time, resources or physics, Scotty would declare a solution impossible. But he'd always deliver just what the Captain needed, just when he needed it, to save the ship and crew.

If we want our clients to be satisfied we must help them develop realistic expectations. To exceed their expectations they must have a reasonable outlook on what can be achieved in the defense of their criminal case. This should be a normal part of the criminal defense lawyer's client intake process.

Tell Your Lawyer the Truth

The worst mistake the new criminal defense client can make is not telling your lawyer the truth. Of course say nothing to the police before consulting a lawyer. But before your lawyer can help solve your problem he needs to know the true facts . This means both the good and the bad. Encouraging the client to be truthful is often a challenge since clients tend to believe their lawyers will think less of them if they know what really happened. Not true! Also, don't forget your conversations with a criminal defense lawyer are protected. Even the most sensitive information you tell your lawyer must remain confidential.

I've borrowed from Scott Greenfield to emphasize the importance of clients telling their lawyers the truth:

Most effective defense lawyers start with the assumption that their client is guilty. Not because he necessarily is, but because it allows him to detach himself from the emotion of the case to step back and assess the case, the evidence, the jurisprudence, from a neutral perspective. It matters far less what the defendant has to say about his case then what the prosecution has to say. They put on their evidence, and we must determine what we can do about it.

Sometimes defendants are innocent. Far more often, they are guilty. At least of something. And sometimes they lie to their lawyers about it, and about the facts that surround it. If we accept and adopt those lies, we end up the dumb guy in the room, operating from a position of ignorance. This helps no one, especially our client. Without knowing what we really have to confront, we cannot be effective.

It's difficult for many defendants to appreciate that their lawyer doesn't care whether they are factually guilty or not. Many believe that if they insist on their innocence, we will work harder or care more. Not only is this wrong, but it's dangerous. The only real weapon a defense attorney has is information. If the information is wrong, then he's shooting blanks. Feed your lawyer baloney and that's what he will work with. But at the end of the day, the client will have to live with the outcome.

Even though Scott was writing about the dangers of being a zealot, as a prosecutor or defense lawyer, his advice on telling your lawyer the truth holds true for every situation. In short, if you feed your lawyer garbage, you'll get garbage out and you'll have to live with the outcome. So come clean with your criminal defense attorney. We will not think less of you, rather we will respect your courage and do a better job defending your case.

Keeping Clients Informed

I was in Austin this past week attending a conference on Texas criminal appeals practice. While listening to speaker after speaker, I was again reminded of the importance of staying informed of the ever changing landscape of criminal law while continuously looking for ways my clients can benefit from new legal developments.

A new rule of appellate procedure requires defense counsel to advise clients of their right to file petitions for discretionary review with the Texas Court of Criminal Appeals. The new rule requires defense counsel to explain to the client they have the right to file for review on their own and what upcoming deadlines exist. Our office has been providing this service to clients for years, well before there was an official rule requiring it.

In 2004 a new procedure became available for clients to seal their records of successfully completed deferred adjudication. This procedure was called Non-Disclosure and we immediately set out to contact our former clients who were eligible to take advantage of this new law. Many clients benefited from this new procedure and were thankful we took time to contact them.

Keeping clients informed is an all important service. It takes time and effort - but the pay off is a well informed client who can make better informed decisions about their case.

Helping Parents Parent

A young man called the office today asking whether we had summer internship positions available. The young man was a freshman at Texas A&M University and was interested in studying law in the future. It was obvious he was "cold calling" attorneys out of the phonebook in hopes of getting lucky with a summer job. The young man seemed sincere so I thought I'd spend some time getting to know him.

I explained, in times gone by, the successful job hunter would prepare their resume first and then draft an appropriate cover letter to prospective employers. The cover letter and resume would be addressed to a specific person, mailed, and then followed up a few days later with a phone call inquiring about job openings. With this method, I explained, the employer would have their resume in hand and already know something of their background and experience. Although more labor intensive, I encouraged the aspiring job hunter to take such an approach. It would prove much more rewarding in the long run, was more professional, and revealed an important element of style.

Many of our clients are much like this young man - just starting out in life - but needing strong direction during a very uncertain time of crisis. In addition to sound legal advice we offer these young people, many of our clients appreciate the touch of mentoring we can also provide. Remarkably, the parents of these clients often call to express thanks for helping them direct their child during a time when their child did not want direction. In these situations, helping parents parent is our privilege and we take it very seriously.

I thoroughly enjoyed talking with this young man. I could tell he took my advice to heart and might even try the old-school approach to finding a job. I wish him luck and hope he calls again.

Empathy Breeds Success

Assisting clients toward a successful resolution of their criminal case requires great empathy. Understanding client needs, both short and long term, means a criminal lawyer must walk a mile in their client's shoes while maintaining objective professionalism. Trouble comes when the lawyer fails to invest empathy in their client's case, thereby failing to view the case from the client's perspective.

When criminal defense lawyers empathize with their clients they are better equipped to offer encouragement and sound legal advice. Recently, I accepted the case of a gentleman who had recently terminated his relationship with a prior attorney because the attorney had not maintained good communications. Our first objective was to demonstrate empathy for the client by promptly responding to his questions, returning his phone calls, and becoming aggressive in our motions practice. After a short period of time the client was noticeably more confident and appreciative of the effort being invested in his case. Remarkably, the tenor of his letters became hopeful as he recognized someone understood his point of view. All that was needed was empathy.

Walking in the client's shoes can consume a lot of time. It also takes a focused effort and a willingness to invest a bit of ourselves in each of the clients we accept. In the long run empathy pays off - certainly for the client- but also for the lawyer since we know we left nothing on the table at the end of the day.