Where the Truth Lies, Take 2: Florida Defendant Offered Deal: Pass Polygraph, Charges Dropped; Fail Polygraph, Results Admissible

You are charged with murder, and the prosecutor offers you a deal. You take a polygraph test. If you “pass” the polygraph test, the charges against you will drop. If you “fail” the polygraph test, the case will proceed to trial, and the polygraph results will be admissible against you. Would you take the deal? Should the prosecutor be allowed to offer such a deal? Let’s take a look at a case out of Coral Springs, Florida.

Gustavo Enamorado Dubon has been charged with first-degree murder in connection with the death of a prominent Coral Springs businessman.

Detectives David Young and Brian Koenig were unknowingly caught on audiotape talking about how they believe…Dubon wasn’t really involved in the gruesome murder of Francisco Cuevas.  

Despite that, homicide prosecutor Greg Rossmann said he’s going forward with the case.

And now, perhaps in response to the audiotape,

State Attorney Michael Satz has made a rare high-stakes offer to Dubon’s attorney to take a lie detector test that, if passed, would free him from jail. But if Dubon fails, it would be used against him at trial.  

Dubon’s attorney, Anne LeMaster, said she hasn’t made a final decision about the polygraph.

This is the first I have ever heard of this type of offer, just as my post last month dealt with a first: a plea deal conditioned on the defendant passing a polygraph test. Both of these cases illustrate a trend that is either interesting or disturbing, depending on your bent: the collateral use of polygraph tests in criminal cases. Results from such a test are typically inadmissible, but these two cases show the continuing role that lie detectors play in the American criminal justice system.

This of course begs the question of whether Satz’s gambit is permissible under Florida law, and the answer seems to be “yes.” As in most jurisdictions, in Florida, the prosecution and defense can agree prior to the administration of a polygraph tests that the results will be admissible, waiving the bar against the admission of such results. Davis v. State, 516 So.2d 963 (Fla.App. 4 Dist. 1986).

-CM