Legal Corner: Can I Ask for My Attorney During a Polygraph?
By Savannah . . . Question: During a polygraph, can I still avoid self-incrimination by saying, “I request that my attorney respond to that particular question”?
Answer: The instinct is correct, but those words ask for the wrong protection. Two different rights are involved. The Sixth Amendment right to have a lawyer present applies to police questioning while you are in custody. A polygraph taken as a condition of probation or supervised release is usually not custody, so that protection usually does not apply. No lawyer can answer for you, and asking for one will not stop the questions.
What you want is the Fifth Amendment privilege against self-incrimination, and it does not work on its own. The Supreme Court has held that a person on probation who answers without claiming the privilege cannot argue later that his answers were forced. If you say something unclear, including asking for your lawyer, a court may decide you never claimed the right at all. To claim it, say so plainly: “I invoke my Fifth Amendment right against self-incrimination and decline to answer that question.”
Before you use those words, though, be sure the question calls for them. The privilege covers only questions where a truthful answer could expose you to a new criminal charge, usually for an offense you were never charged with. It does not cover the offense you were already convicted of or questions that could only get you in trouble with your probation officer, such as missing curfew. Claiming it on a question it does not cover gains you nothing and marks you as uncooperative.
Remember, too, that invoking the privilege does not happen in isolation. Your refusal will be recorded and reported to your probation officer, who will want to know what it concerned. Refusing one question out of thirty tells everyone which subject you did not want to discuss; you may protect the answer and still give away the topic. Expect closer attention afterward: more testing, stricter conditions, a setback in your treatment program. Courts have held that your supervision cannot be revoked for the invocation itself, but that protection is narrower than it sounds. It does nothing for a revocation that grows out of the closer scrutiny your refusal invites, and in practice that is the more likely path.
Your state’s law also matters here. Some states protect these disclosures. In West Virginia, for example, what you say during a full disclosure or sexual history polygraph cannot be shared with law enforcement without your consent or used in the state’s courts, unless it concerns a plan to commit a future crime. W. Va. Code § 62-11D-2(e)(2). Many states have no such protection. If your answers already cannot be used to prosecute you, the Fifth Amendment may add nothing, and refusing may be treated as plain noncompliance. If there is no protection and a truthful answer could expose you to a new charge, that is when the privilege matters most.
In short, asking for your attorney is not claiming the Fifth Amendment. If you want the privilege, claim it in plain words. But whether you should claim it depends on your state’s law, your treatment program, and facts about your case that no article can know. Do not work it out in the polygraph room. Write to the public defender’s office in the county where you were sentenced, or to a criminal defense attorney licensed in your state, before your examination.
