Is A Refusal to Take a Polygraph Test Admissible In Texas?

Polygraph tests often take place when a criminal case is under investigation. The police often request a suspect to submit to a polygraph test during an interrogation. Investigators will often use a failed polygraph result as an technique to elicit a confession. Many times a suspect will refuse law enforcement’s request to take a polygraph. Can the fact that a defendant refused to take a polygraph be introduced by the prosecution at trial? The answer is No, and here is why.

Texas law is clear that in criminal trials, polygraph results are not admissible by the state or defense. The reason for this is the tests are unreliable and the test results tend to be unduly persuasive for a jury. Since polygraph test results are inadmissible one would think that the refusal to take a polygraph is inadmissible, and Texas case law clearly states that. If this is an issue in your criminal case the criminal attorney should have Kugler v. State, 902 S.W.2d 594 ready to cite.

In Klugler, the defendant was accused of assaulting a woman in her home. The only witness to identify the defendant was the complainant. The defense attorney was able to establish it was dark during the attack and argued the complainant could not identify her attacker. During the prosecutions case the lead detective gave unresponsive answers that the defendant had been offered and refused a polygraph test. The defense objected and asked for a mistrial which the judge denied. The Court of Appeals reversed the case, because in this case the only witness who could identify the defendant was the complainant and the defendant’s refusal to submit to a polygraph bolstered her identification. The court ruled that the instruction to disregard wasn’t enough to cure the error.

This result doesn’t happen often. In other cases that polygraph tests have come in, testimony the appellate courts have ruled that the mention of the test was harmless error. The mention of a refusal to take a polygraph almost always comes up from an unresponsive answer from a detective. The only steps a criminal attorney can prevent this from occurring is filing a motion asking the court not to allow testimony on this issue until there is a hearing on this issue. The motion should name the detective who asked the defendant to submit to a polygraph and also cover every other witness. The attorney should also request the prosecutor to remind the witness just prior to their testimony to abide by the judge’s ruling.