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by Colorado Criminal Defense Lawyer – for Sexual Assault Cases – H. Michael Steinberg
In 1926, the first Polygraph was invented.
Polygraph testing relies on the correlation between changes in blood pressure and heart rate to determine if the subject is lying. The polygraph continuously monitors physical indicators of an individual asked to answer a set of questions. Physical changes in the subject are recorded and evaluated by an examiner who reaches one of three conclusions: the subject was truthful, the subject was deceptive, or the test was inconclusive.
While polygraph examinations are not allowed into evidence in Colorado for most purposes, they still are used in the criminal justice community to achieve certain results
A communication is protected by the attorney-client privilege if it reveals a communication between a client and his or her attorney and the communication was:
(1) made to obtain or deliver legal assistance;
(2) intended by the client to remain confidential.
This privilege can be extended to communications with third parties through the legal theory of “agency.” If an attorney has communications with a third party that are directly related to the provision of legal services for the client, the privilege extends and covers those communications as if they had been made between the attorney and the client. This extension of the privilege is designed to recognize that to provide fully effective legal assistance, attorneys may need to consult with third parties.
If communications are made between the attorney and a third party before an actual relationship has been formed with the third party, these communications may nonetheless be privileged. This would apply if the nature of the communications is directly related to the legal matter at hand.
An attorney’s communications with a prospective expert or consultant regarding the potential ramifications of using the consultant would be privileged even if no formal arrangements ensue.
There is no blanket privilege for all communications between attorney and client. The privilege must be claimed for each specific communication and, in deciding whether the privilege attaches, a trial court must examine each communication independently.
Another privilege that can attach to communications among attorneys, clients, and third parties is the work product privilege. The work product privilege can protect communications, including documents, even if those communications are not directly between the lawyer and client.
The prerequisites for protection under this privilege are similar to those for the application of the attorney-client privilege. There must be an attorney-client relationship extant at the time the communications are made. In addition, the documents must be prepared directly in preparation for litigation, or in the reasonably held belief that litigation is imminent. Finally, there must be an intention that the documents remain confidential.
Polygraphers, if hired by an attorney to assist in the preparation of a case, will be treated as agents of the attorney. Thus, communications with polygraphers will fall within the agency theory of the attorney-client privilege. Nevertheless, there are nuances of this general proposition of which attorneys should be aware.
The use of privately retained polygraphs in plea bargaining – is common. A Colorado criminal defense lawyer will sometimes subject his client to a private polygraph – with successful results – to persuade a District Attorney to – either not file charges – to reach a favorable plea bargain – or even to achieve a dismissal of a case where charges have already been filed.
Under Colorado law, and as a general proposition, communications with a polygrapher hired by an attorney are protected by both the attorney-client and work product privileges, and perhaps even the Sixth Amendment. These protections are subject to waiver and must be guarded accordingly. Consequently, it is important for counsel and experts to obtain specific client consent before disclosure.
One final matter – under federal law – which mandates state compliance or risk the loss of federal funds – the alleged victim of a sexual assault cannot be compelled to take a polygraph. A judge cannot order it. Forcing victims to take a polygraph test violates the federal Violence Against Women Act (VAWA).