Miranda and the Polygraph Test

How many times must police give Miranda warnings? The case law is a little unclear, but a recent Superior Court decision earlier this month suggests that a suspect should be advised of his right to consult with an attorney both prior to a polygraph test and again before a post-polygraph interview is conducted. 

In Commonwealth v. Hill, the defendant was advised of his Miranda rights before police commenced a polygraph test.  He signed a waiver of these rights and he was given a polygraph. The defendant’s attorney was present at the onset of the test, but left the police station before the test ended, and did not return.  Additionally, the attorney did not consult with his client before the post-polygraph interrogation began, nor did he advise his client of what to do should an interview ensue after the test. The attorney was not present for the interview, and police began the interrogation without re-advising the defendant of his right to consult with an attorney.

It is well settled that a defendant may validly waive his/her rights to counsel, so long as it is done knowingly and voluntarily.  However, what is the scope of that waiver in connection with a polygraph test?  The Superior court found that Hill clearly waived his Miranda rights prior to the polygraph examination, but it was unclear whether he was waiving his rights with respect to any other examination that would occur post-polygraph.

The Superior Court, after concluding that there is no controlling Pennsylvania law, adopted a factors test set fourth in the First Circuit Court of Appeals.  These factors include: 1) who requested the polygraph examination, 2) who initiated the post-poly-graph questioning, 3) whether the signed waiver clearly specifies that it applies to post-polygraph questioning or only to the polygraph test, and 4) whether the defendant has consulted with an attorney.

The Court held that the record was unclear and remanded the case.  For a full recitation of the facts and the court’s opinion, go here: Commonwealth v. Hill.