>> Steve Palmer: All right, here we are. Lawyer Talk. Another episode of they don't teach you that in Law School. Uh, and before I tell you what all that means, you can check us out@lawyertalkpodcast.com. comma, all the socials. Isn't that the cool way to say it?

>> Troy Henriksen: Yes, absolutely.

>> Steve Palmer: All the socials. And, uh, so that means Facebook, TikTok, where else?

>> Troy Henriksen: Instagram, YouTube, Insta.

>> Steve Palmer: Check out the insta.

>> Troy Henriksen: You got that one right?

>> Steve Palmer: Yeah, I got that one right. So anyway, check out lawyertalkpodcast.com, where you can check out a backlog of episodes. Uh, uh, we also do a couple other series here, Q and a, where people ask questions and I answer them. That's how Q and a tends to work. Uh, uh, but this series, well, they don't teach you that in Law School. We got Troy here, Troy Hendrickson. And Troy's a law student over at Kaplan University Law and Graduate center. Is it still called law and it's just Kaplan University Law School now?

>> Troy Henriksen: Yep.

>> Steve Palmer: All right. Well, it's changed. So anyway, we got Troy here. He is a second year law student, also works for me upstairs in the, uh, in my law firm, and, uh, doing great work learning. And I realized that there's a lot of stuff they don't teach you in Law School, because the question, and this is not an insult necessarily, to Law School, I'm not casting aspersions on. Well, maybe I am. I don't know. I'm not casting any aspersions intentionally, uh, about this. But I think it's true that there are things that, uh, you learn in Law School, and then there are things that the real world teaches you. And really Law School, for those who really want to understand how it works, you basically learn how to learn, like, you don't just go to Law School and come out with, like, a download of information into your brain about what all the laws in the world are. It doesn't work that way. Um, um, but you learn how to figure out what the law is and what the various issues are, trying to apply the law to different scenarios. So, uh, uh, and then in the real world, you get more of, like, uh, what the, what the law is, and then you, you've got a, the other part of it also is also maybe even more important. So anyway, uh, uh, they don't teach you that in Law School. And you had a question. I don't even know what the question is. I just know the topic. It's polygraphs, lie detector tests. Uh, uh, I know lots. I think. What's the. So what's the question?

>> Troy Henriksen: So I was working on an appeal upstairs, and that's the green Book we've talked about on here before. And if you ever want to check these out, it's on a blog on our, uh, website, Palmer legal defense.

>> Steve Palmer: And so we have a blog. What we. Here's what we do. Um, let's fill in the gaps here. We have a blog where Troy and I go through every week all the legal decisions that are published in Ohio that we get a little Book through. Now, it's online, but we get a little published. We get an email online with all the decisions. We, um, used to call it the green Book here in Ohio. And, uh, you're taking all the criminal cases, breaking them down, particularly the ones where it gets reversed, where there's a mistake made, and they're going back to the trial court level, and we're describing those or talking about those things in our blog. And you can check that out@palmerlegaldefense.com. dot. That's our website upstairs. And of course, if you ever need any trouble, or if you ever get in trouble and you need any help, I can do that, too. So, anyway, you've got, uh, we're going to talk about polygraphs.

>> Troy Henriksen: Yeah. And, I mean, I was going to lead off and ask, like, when do you feel like a polygraph is appropriate, like, for your clients?

>> Steve Palmer: Appropriate? Well, you know, that's such a. I could go on forever here. So when, when do I actually do a polygraph for my clients? I. Look, some people say, don't you want to know if your client's telling you the truth or don't you? Um. Uh, what do you do if your client's lying to you? Well, look, I've got a pretty good nose for that at this point. I mean, I know you've sat in some meetings with me, uh, usually in about a series of 1015 minutes, I can get to the heart of what's going on and sort of expose where I think my client may be shading the truth a little bit one way or another. Polygraphs I don't use for that purpose. I guess that's my long winded way of saying I don't have clients take polygraphs because I don't believe them. But sometimes in a negotiation stage of a case, sometimes, uh, if I'm trying to convince a prosecutor not to pursue something, not to pursue a case, or we just need a reason not to pursue it, I might have a client go take a polygraph and get, uh, a positive result or pass the polygraph. So somebody saying that they're truthful. Um, but there's no hard, fast rule here. And it doesn't mean just because my client passes a polygraph that it's going to change the landscape of the case at all. In fact, we're working on a case out in, ah, one of the Counties out east near Dayton. Wherever the gentleman passed a polygraph early on in the case, he still went to trial, and the prosecutor still prosecuted him. So it doesn't always matter. And which is sort of the point, I think, where we're getting with this is when is a polygraph actually admissible at a trial? Um. Is that what you're talking about?

>> Troy Henriksen: So, yeah. Um, on, um, this appeal, this came out of, uh, I believe it's Hardin County.

>> Steve Palmer: Hardin County.

>> Troy Henriksen: Where's that at?

>> Steve Palmer: Uh, that's up in Kenton, Ohio, I believe, a little bit north of Marion.

>> Troy Henriksen: I think this came out of Hardin County. This gentleman was getting accused of some crimes, and so he decided to come forward with police and say, these accusations are fake. And the police had no idea about the accusations at all yet, so he decided to announce it to him, and he said, I'm willing to take a polygraph.

>> Steve Palmer: So we've got a guy who's accused of committing a crime, and the police don't even know about it yet?

>> Troy Henriksen: Nope.

>> Steve Palmer: So somebody's just saying, you did this, and not only are you so sure that you, the person being accused, didn't do it, you're gonna go prove it. You're gonna go take a polygraph and pass it. And then this guy goes to the police and says, see, look, I m passed a polygraph.

>> Troy Henriksen: Oh, no, no, he didn't pass a polygraph.

>> Steve Palmer: Oh, he flunked.

>> Troy Henriksen: Yeah.

>> Steve Palmer: So he took a polygraph and took his failed polygraph result to the police. The police have him do a polygraph.

>> Troy Henriksen: The police have him do a polygraph. I mean, he just volunteered to do.

>> Steve Palmer: It, and I got you.

>> Troy Henriksen: All right. And the issues on this appeal are a little different, so.

>> Steve Palmer: Well, let's talk about that scenario real quick. A lot of times, the police will offer polygraphs to suspects. So they get people going down this garden, uh, path, get a guy, say he's accused of some sort of sex offense, which I'm guessing this was, um, and they start interviewing the guy, and the guy is telling his story, and he says, I didn't do it. I would never do such a thing. It's such a horrible accusation. Uh, I didn't do it. Well, do you have an alibi. Can you prove it? Usually there's no physical evidence anyway. So it's just a one guy's Word or one gals Word against the guy, or vice versa. Or maybe both guys or both girls. I don't care. Um, and the police say, well, are you willing to take a polygraph? Sometimes they do that just to get a guy talking. Even more. Sometimes they do that just to see what the guy will say. I mean, if he's going to take a poly, you know, I think that if you're willing to take a polygraph, often just your willingness says a little bit about it. Um, but here, apparently, the police offer the guy a poly and he fails. Table that for a second. What if he passes?

>> Troy Henriksen: If he passes? In theory, I imagine they wouldn't pursue a reasonable person. I wouldn't pursue because no chance.

>> Steve Palmer: I mean, I'm not saying no chance, but no hard, fast rule there. So a lot of times a police offer a guy like that a polygraph. He passes, they indict him anyway. It happens all the Time. Our case we're working on is one such scenario.

>> Troy Henriksen: So why do you. Why do you think they do that?

>> Steve Palmer: Why do the police?

>> Troy Henriksen: Yeah. I mean. Cause can't we now use a trial? Here's a past polygraph.

>> Steve Palmer: Uh, no.

>> Troy Henriksen: Okay.

>> Steve Palmer: You cannot. Right? So polygraphs are, generally speaking, not admissible trials. So let's say in this scenario and the scenario we invented, where you're being accused of a sex offense, you go tell the police, nuh uh. I didn't do it. No way. Yeah, but she says so and I say, no. Nuh uh. Uh. Yes. Huh huh. And you say, I'll take a polygraph. And you go and you pass. The police give you a polygraph. They're polygraphists. They use their guy and you pass. Um. Um. You can't go into a courtroom and say, look, jury, I got a past polygraph here. I was telling the truth. It's not admissible. The opposite is also true. Generally speaking, the police cannot go in with a failed polygraph result, or the prosecutor, that is, and say, you must. You can't believe this guy because Troy's a no good rotten liar who can't even pass a polygraph. Mhm.

>> Troy Henriksen: So that. I mean, the main reason they passed the appeal here was, um.

>> Steve Palmer: There are exceptions, though.

>> Troy Henriksen: Yeah. And he. Have you ever taken a polygraph before where there's a pre, during and post. And, um, I fortunately got to go through the training. And, um, I got polygraphed by NCIS agents and everything down Jackson, Florida.

>> Steve Palmer: I mean, uh, this is part of your military.

>> Troy Henriksen: Yeah.

>> Steve Palmer: Okay. Right.

>> Troy Henriksen: And so one thing I thought was kind of crazy was they had me plant a bomb in a server room. It was a fake bomb. But then I went off the charts for being a terrorist on the polygraph, and I was like, this is kind of crazy. It's like, almost like some, like, voodoo witch science or something, that I can just fail that easily, even though I'm obviously telling the truth.

>> Steve Palmer: Well, it's a. If you talk to people who are experts in polygraphs, you've hit right on the head of the pitfalls of these things, because it's a lot of. It's about the questions they ask you and how they ask you. Um, and if you get there, a lot of people sort of get thinking about things, and they get in their own way, and they can end up failing. Failing a polygraph. I think polygraphs are. Can be very reliable. They can be very unreliable. And that's why, generally speaking, they're not admissible in court, because, you know, you just don't know. And I've had clients that come to me later and say, look, I failed a polygraph, and I don't think you were wrong. We did this, but I failed a polygraph. Um, and I always ask, well, who did the test and what were the questions? Because you can ask questions in a way, even if a guy, uh, didn't do it or is telling the truth, I should say, uh, he'll fail, because, like, your situation, they had you do something that got you thinking how that was like, uh, that was terrorism. Then if you start lying about it now, you're lying to yourself, and that can trip things up. I'm no expert in polygraphs. I just know that it's. It's, uh, all in the questions, you know?

>> Troy Henriksen: And during the pre. His. The pre is where they ask you questions beforehand, and it's not. You're hooked up. It's just. So if you have any questions over the questions, the lawyer in this case was late, didn't show up, and he did. The polygraph failed. And then afterwards, while the lawyer's outside, um, they interrogate him on the results and get him to have a confession. And then that was the part he actually went on. The appeal was. It was not, like, voluntary or knowingly.

>> Steve Palmer: Um. All right, so did they. Did the part. Did the prosecutor at trial use the polygraph results?

>> Troy Henriksen: Yes.

>> Steve Palmer: So the jury got to hear that this guy failed a polygraph at trial.

>> Troy Henriksen: Yes. They showed the video of the polygraph being done?

>> Steve Palmer: Yeah. So that's. Look, generally speaking, there are all sorts of problems with that one. The results of a polygraph are generally. Are not admissible. The big exception is something called a stipulated polygraph. A stipulated polygraph would be where I take you, my client, and I go to the prosecutor, and I say, guess what? My client's willing to do a stipulated polygraph. And you're thinking, what the hell's a stipulated polygraph? Stipulation means we're going to agree. It's like an agreement. We're going to agree that you can use mister prosecutor or miss prosecutor, the results of my client's polygraph. Um, if he flunks. But if he passes, you're going to dismiss the case. So you're, like, saying, I'm pushing all in, okay? You're. You're in the world series of poker, and you're all in on one hand. So if you pass the polygraph, you, um, you, uh, walk away. If you flunk, not only do you not walk away, you still get prosecuted, and you're letting them use the polygraph in court. A lot of times, prosecutors won't agree to this, and I've never done one. I've never, never done it, and, uh, I don't know that I ever would. Um, because then you run into problems like this where a prosecutor may even say, well, look, has your client ever taken a polygraph before on this case? So, you know, what we would naturally want to do is try to lay off the risk here a little bit. Take a peek under the cards and say, well, I know he's going to pass because he passed one already for me. Um, so sometimes prosecutors aren't cool with that. And the first question I'll ask you, if you've taken a polygraph before on this case, and if you flunk that part of it, you're done. So, you know, there's, uh, there's some problems with it, and the risk of a jury hearing that you failed a polygraph is pretty significant. I would be curious to know the basis that the court let this result come into evidence in this case.

>> Troy Henriksen: Well, now that you mentioned, I do remember that they did stipulate at the beginning.

>> Steve Palmer: All right, so it was a stipulated polygraph.

>> Troy Henriksen: Mm hmm.

>> Steve Palmer: There's. All right, so what it was then the guy went in, took a polygraph, and said, uh, and put all his chips in the middle and came up snake eyes, right?

>> Troy Henriksen: Yeah.

>> Steve Palmer: Right. He hit on 16 or whatever, right. So anyway, so he lost. Now what the real issue here is a right to counsel issue during an interrogation. 6th amendment. For those scholars out there, like you, a young law student, the 6th amendment guarantees everybody a right to counsel. And a right to counsel means that you have a right to have an attorney present after the. After the instigation of formal adversarial proceedings. Is this ringing a bell in here in this case?

>> Troy Henriksen: A little bit, yeah, a little bit.

>> Steve Palmer: I don't know. Maybe I got the reasoning right, maybe wrong. Um, there's two amendments at issue. One is going to be the fifth amendment and a Miranda issue. The other is going to be the 6th amendment and a right to counsel issue. So this guy had a lawyer, and the police went on and interrogated this guy without his lawyer present. That violates the 6th amendment right to counsel. It can also be that that type of interrogation that produces confessions or statements, there's also arguments to exclude those, exclude or prevent the prosecutor from using those statements at trial. So this is like a Miranda issue. If I interrogate you, you're, uh, in custody, and, uh, I don't read you your rights first, and I violate Miranda, the remedy isn't dismissal of the case, but your confession or the statements get thrown out of court. The prosecutor's not allowed to use them. Same is sort of true with right to counsel violation. So whatever, whatever road you used to get to that point, the argument would be the prosecutor wasn't allowed to use that post polygraph interrogation either because they violated the fifth amendment or Miranda, uh, or the 6th amendment, because the guy had a lawyer and was, uh, denied his right to an attorney during the interrogation. Am I right? I mean, what. How did the court rule?

>> Troy Henriksen: Um, they just, um, ordered a new trial on it, so they just reversed it.

>> Steve Palmer: But they reversed it. So by reverse, what we're talking about is the court said this is a big enough mistake that we're gonna send it back and get a new trial, because irrespective. And that's. It's interesting. So, irrespective of the polygraph, that the guy failed. Um, the jury got to hear that. Um, but hearing the confession afterwards was enough to tip the scales beyond fairness, uh, I guess, is what the court was saying. Yeah. All right, so they reversed, um. Well, look, I tell you, and they don't teach you this stuff in Law School in the real world, practical approach, because polygraphs are a great tool for us as practicing lawyers sometimes. Um. Ah, a lot of lawyers use them regularly. I've used a polygraph for purposes of a sentencing hearing in federal court before, um, and, uh, then it's, I'm not using it at trial. I'm using it for mitigation. Where there was a question about my client, whether he was the ringleader of a big drug operation, and he said he wasn't. They said he was. He passed a polygraph and said, look, we're all sort of in it together. There wasn't really a ringleader. And that changed the sentencing parameters in federal court. I was able to use a polygraph to help bolster that argument. Um, and that's sort of a creative, unique way of using polygraphs. And again, the other way would be if I'm trying to. If I sense that the police are sort of teetering on the edge of whether they're going to actually charge my client. Um, and that happens in a couple of different ways. And again, in Law School, you don't have this experience. A detective will call and say, hey, I understand you're representing, uh, Joe blow. I'm like, yeah, I got Joe blow. He's my client. What's going on? Well, we want to ask him some questions, because a young female that he met a couple weeks ago at the bars is accusing him of date rape. And, um, I'm like, look, detective, I don't let my clients talk to the police. No hard feelings. Um, but sometimes I might reconsider that if you tell me what's really going on. And most of the Time, the police are like, well, counsel, you know, if we only have her side of the story to go on, and we don't have his side of the story to go on, we'll just have to act on her. And I'll be like, yeah, no, I'm not. I'm not falling for that trap. But sometimes they'll say, look, I know that's your normal position. I know that that's what lawyers always do. I'm telling you, counsel, this is a little bit different. Uh, there's a lot of questions about. This might, uh, help him a lot if he comes and sort of shares his side of story, or maybe if he passes a polygraph, might change what we're doing. Every now and then, I'll entertain that. And that's based on experience, which you don't have in Law School because you haven't been doing it long enough. Your gut, which is based on experience, which you don't have because you haven't been doing it long enough. And, um, uh, how much brass you have, you know, do you. Do you have the courage to say, I'll do it, and, uh, that is why criminal defense shortens lives. Right? So we've chosen a profession that causes so much stress. I've been up since 02:00 this morning working on stuff and worrying about decisions like this. But anyway, they don't teach you that stuff in Law School, but we teach it right here on lawyertalkpodcast.com dot. Uh, if you've got a topic or if you happen to be a law student, uh, leave a comment on one of these wherever@lawyertalkpodcast.com. on the socials, on the instas.

>> Troy Henriksen: The instas. Yeah, that insta.

>> Steve Palmer: The double t's.

>> Troy Henriksen: The double t's.

>> Steve Palmer: Is that TikTok? Leave, uh, us a comment. Troy will ask the question, and we'll cover it right here. All sorts of other good stuff happen at Lawyer Talk two. We've got the q and a series. Um, we've got breakdown on bigger stuff and a big backlog of episodes. Believe or not, I've had the show for a long time. But, uh, anyway, they don't teach you that in Law School. Lawyer Talk, off the record, on the air, at least until now.