Phone from police for lie detector test? Here's what you need to know
"Are you willing to take a polygraph test?" It is a question the police apparently also dare to ask over the phone if you are suspected of a crime. Can this be done without a lawyer present or is it an attempt to undermine your rights as a suspect? We looked into it.
If you are ever suspected of a crime, you may be asked if you are willing to take a polygraph test. This is better known as the polygraph. But can you just be asked this question without your lawyer present? We are critical of that.
Being asked to participate in a test
You may have read it before: we are against the use of the polygraph.
It is always important to respect a suspect's rights. One of those rights is the choice of whether to participate in a polygraph test or not. To make sure suspects make that choice consciously, they must sign a consent form where the lawyer can also be present.
We believe this is compromised when you suddenly get a phone call from the police. Are you just going to refuse or refer to your lawyer? Fortunately, any verbal consent is not binding. In fact, you have to sign a pv of consent and you can withdraw a telephone promise. Although police and a judge may not actually draw any consequences from your attitude and choices, they may take them into account in the back of their minds. This is now something human.
We therefore find it problematic if a lawyer cannot already be involved in the initial request for participation.
So is the request for consent already an interrogation?
If the answer to that question is "yes", then all the conditions of an interrogation must be followed anyway.
Only: there is no positive legal definition of an "interrogation". It is not unreasonable to argue that asking to participate in a lie detector test is already part of a purposeful investigation into the truth and therefore an interrogation.
But consent to a DNA test, for example, is not counted as interrogation. Those results have greater probative value and thus greater (legal) consequences than a lie detector test. So if we follow this reasoning, then asking to participate in a polygraph test is not an interrogation.
Still, a lawyer is important even then
A ministerial circular dated 22 April 2022 says it must be clear from the outset that, as a suspect, you have the right to a lawyer. There is a distinction between an initial interview (with first consent) and an interview just before the test starts (with second consent).
From that very first moment, the police should explicitly say that you, as a suspect, have the right to a lawyer. In addition, the procedure described seems to assume that the suspect is physically present. We therefore recommend for both practical and legal reasons that the question of participation in such a test should always be asked in the presence of the lawyer.
In short, are you getting a call to participate in a lie detector test? Just contact your lawyer first!
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