Post-arrest, post polygraph answers to police questioning were outside of Miranda waiver signed for polygraph examination/ counsel ineffective for failing to move to suppress post-polygraph statements that were outside of scope of waiver of counsel

Commonwealth v. Hill, 2012 PA Super 56, 3/1/2012 (24 pages)

Mr. Hill was convicted of aggravated assault, conspiracy, and related offenses. Mr. Hill and an accomplice broke into a family’s home, threatened the children with a baseball bat, and the accomplice raped the mother. The father managed to subdue the rapist and ran outside to pursue Mr. Hill, who was sitting in a car. The father chased the car but the car turned around and tried to run the father off of the road.

Two weeks later a detective asked Mr. Hill, who was 17 years old, to meet him at the police station. When he, and soon after his parents, arrived, the detective presented them with a two part form, the top of which was labeled “Constitutional Rights (Adults)” and the bottom “Waiver of Rights Miranda Warnings.”   The parents signed the top part of the form, but Mr. Hill did not sign the form at all. However, according to the detective, all three agreed that Mr. Hill could be interviewed with a lawyer. After the interview Hill was arrested, and three days later, an information was filed. The parents then retained an attorney.

The next day Mr. Hill was taken from the prison to the police station where his attorney told him he was going to be administered a polygraph exam and that he should tell the truth.  The attorney helped formulate the questions that would be asked during the exam. Two detectives, but not the attorney, were present when the exam was given. Before it started, outside of the presence of his attorney, Mr. Hill agreed to sign a Miranda waiver form, which was lost before trial. Mr. Hill’s attorney left the police station before the polygraph exam was completed. After the exam, the original detective interviewed Mr. Hill alone, asking questions that were not part of the set of those formulated with Mr. Hill’s attorney. During this interview Mr. Hill confessed and provided details of the crime. Mr. Hill thereafter went to trial, was convicted, and saw his convictions affirmed by the appellate courts.

Mr. Hill thereafter filed a PCRA petition, and it was dismissed. After a tortured history getting an appeal to the Superior Court, that Court reversed the dismissal, finding that trial counsel was ineffective for failing to file a motion to suppress the post-polygraph confession.

Mr. Hill had been arrested and charged, so 6th Amendment protections of the right to counsel had attached. Whether a defendant has waived Sixth Amendment rights is dependent upon the facts of a particular case.  The Superior Court now tread upon fresh ground in Pennsylvania state caselaw— whether a waiver of 6th Amendment rights for a polygraph examination carried over to a post examination interview. The Court considered a number of federal cases, including United States v. Johnson, 816, F.2d 918 (3d Cir. 1987), and concluded that a waiver of the right to counsel during a polygraph examination does not necessarily carry over to a post-exam interview. One thing that hampered the Court’s ability to determine whether there had been a valid waiver that extended to the post-exam interview was the loss of the pre-exam waiver Mr. Hill signed. One of the detectives stated that Mr. Hill only signed the standard Miranda warnings given to suspects prior to a polygraph interview, but that the waiver had the word “polygraph” inserted several times.  There was no evidence that anything was said about questioning after the interview. Mr. Hill had no opportunity to speak with counsel after the exam and prior to the post-exam interview. The lower court’s finding that the post-exam interview was part of the polygraph process was error. Absent proof that Mr. Hill knew that he was waiving counsel for anything but answers in response to questions asked during the polygraph exam, there was no valid waiver for those answers. Trial counsel was ineffective for failing to move to suppress the statements. Therefore, the dismissal of the PCRA petition was reversed.

The opinion can be found here.

Picture of old polygraph machine from Cocktail Party Physics.


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