A common question is "Do I have a right to a polygraph if I'm accused of Criminal Sexual Conduct in Michigan?"
Under Michigan law, most sexual offenses fall into the category of crimes called Criminal Sexual Conduct (CSC). There are four "degrees" of CSC in Michigan:
- First Degree Criminal Sexual Conduct, punishable by up to life
- Second Degree Criminal Sexual Conduct, punishable by up to 15 years
- Third Degree Criminal Sexual Conduct, punishable by up to 15 years
- Fourth Degree Criminal Sexual Conduct, punishable by up to 2 years
There are also other related charges within this category, including:
- Assault With Intent to Commit Criminal Sexual Conduct Involving Sexual Penetration, punishable by up to 10 years
- Assault With Intent to Commit Criminal Sexual Conduct in the Second Degree, punishable by up to 5 years
Michigan has a special law about polygraphs (or "lie detector" tests) in Criminal Sexual Conduct cases, MCL 776.21. The text of this law states as follows:
"Sec. 21. (1) As used in this section:
(a) "Law enforcement officer" means a police officer of a county, city, village, township, or this state; a college or university public safety officer; a prosecuting attorney, assistant prosecuting attorney, or an investigator for the office of prosecuting attorney; or any other person whose duty is to enforce the laws of this state.
(b) "Victim" means a person who is a victim of a crime under sections 520b to 520e and 520g of Act No. 328 of the Public Acts of 1931, being sections 750.520b to 750.520e and 750.520g of the Michigan Compiled Laws.
(2) A law enforcement officer shall not request or order a victim to submit to a polygraph examination or lie detector test. A law enforcement officer shall not inform a victim of the option of taking a polygraph examination or lie detector test unless the victim inquires concerning such a test or as provided by subsection (3).
(3) A law enforcement officer shall inform the victim when the person accused of a crime specified in subsection (1)(b) has voluntarily submitted to a polygraphic examination or lie detector test and the test indicates that the person may not have committed the crime.
(4) Subsections (2) and (3) apply only to a polygraph examination or lie detector test which is requested, ordered, or given in regard to a person being a victim.
(5) A defendant who allegedly has committed a crime under sections 520b to 520e and 520g of Act No. 328 of the Public Acts of 1931, shall be given a polygraph examination or lie detector test if the defendant requests it."
So here's what this means in plan English...
- In a Michigan Criminal Sexual Conduct matter, police and prosecutors cannot ask or make the alleged victim to take a polygraph (or "lie detector test") regarding them being a victim. They also cannot even tell an alleged victim about the option of taking a polygraph unless they ask about it.
- The language of this law does not necessarily create a "right," but it does say that if a Defendant accused of Criminal Sexual Conduct requests to take a polygraph or lie detector test, they "shall" be given it. If they take it and it indicates that they may not have committed the crime, police or prosecutors must tell the alleged victim about that fact. As you can see, this might be a situation where an alleged victim may want to inquire about taking a polygraph of their own, and as stated above, police and prosecutors can then discuss that option with them.
- This law applies to the four Degrees of CSC listed above, as well as the two additional charges of Assault With Intent to Commit CSC Involving Sexual Penetration and Assault With Intent to Commit CSC in the Second Degree.
But even understanding this law, if you are accused of Criminal Sexual Conduct in Michigan, the fact that you may have a right to ask for a polygraph or "lie detector test" doesn't necessarily mean that you should, even when you are completely innocent. Polygraphs have not met the standard of scientific reliably to be accepted as evidence in criminal trials in Michigan, and even if you "pass," the process can potentially cause issues.
Giving a polygraph means making statements, and that is in contravention to your Fifth Amendment right to remain silent and not have your silence used against you. This article is not an attempt to offer legal advice or to decide the issue for anyone, because whether or not a polygraph is a wise decision or not is something a person accused of CSC must discuss with only their attorney who will evaluate all of the specific facts and circumstances.
If you are charged with Criminal Sexual Conduct in Michigan, contact Prain Law, PLLC at (248) 731-4543 or using our online Contact Form. We specifically concentrate our practice on defending those of Michigan CSC charges and a limited few other assaultive charges. You can visit our website to read bout Attorney Brian J. Prain's many Jury Trial Verdicts of NOT GUILTY of Criminal Sexual Conduct.