Frequently Asked Questions

Can a polygraph exam be admitted in court? 

A very common question we receive from people on probation or otherwise under court supervision is whether a polygraph exam’s results in admissible in court.  The short answer is that it can sometimes be admitted in court.  The basic rule in Oregon is that a polygraph may not be used in court for any court hearing that is subject to the Oregon Evidence Code – even if all the parties to the case ask together to have the evidence introduced.  However, not all court hearings are subject to the Oregon Evidence Code.  Most probation violation and prison disciplinary proceedings will allow polygraph results to be introduced.  Also, special court programs such as the Washington County Domestic Violence Deferred Sentencing Program will require a polygraph exam as part of the court process.  However, when introduced, they are not to be relied upon as the sole basis for any conclusion but rather as corroborating evidence. 

Also, polygraph exams can be used in negotiations.  If we believe that a good result from a polygraph will convince a prosecutor to dismiss an allegation or otherwise improve our negotiating position, we will often have a client perform a polygraph in secret.  If the exam is favorable to our cause, we can then offer it to the other side.  If the exam is unfavorable, then only we and our client know that the exam ever took place.

Insanity Defenses

For most criminal cases in Oregon, the prosecution must show that the accused’s actions were done intentionally, knowingly, recklessly, or negligently.  This is referred to as a person’s ‘mental state.’  Often such questions as ‘why did it happen’ or ‘what did he know and when did he know it’ are of critical importance in a case.  Rarely, but occasionally, the accused’s reasons for doing something were due to the impact of mental health disorders.  When we assert in a trial that a person isn’t really responsible for what they did due to a psychological factor, Oregon does not call this a claim that a person is ‘not guilty.’  Oregon calls this ‘guilty except for insanity.’ 

When we assert this defense, we must file with the court a special notice raising the defense of ‘mental disease or defect.’  This means that we are arguing that our client would not have done the actions for which he or she has been charged if he or she had not been suffering from a psychological ailment at the time of the act. 

We only recommend this defense when we feel confident that we will be able to prove this defense.  However, trials are never guaranteed and even the best defenses sometimes lose.  Therefore, there are always risks involved with a trial. 

Even if we win the trial with this defense, there is still another concern.  A defense victory, when our defense is “mental disease or defect,” is not like a defense victory where the defense is that our client just did not do the crime.  With this defense, the court can still impose requirements on our client even if we win.  This is because our defense is that our client couldn’t control what happened, so the court wants to make sure that the illness our client was suffering from will not cause a danger to himself/herself or others. 

The court could do any of the following things.  First, the court could just discharge our client.  That would mean that the court finds that our client is no longer affected by a mental disease or defect and does not need any supervision to make sure that he or she remains safe.  Therefore, the court’s involvement ends. 

Second, the court could commit our client to the Psychiatric Security Review Board’s (PSRB) jurisdiction and commit our client to the state hospital.  This would mean that the court finds that our client currently suffers from the mental disease or defect and that he or she poses a substantial threat of danger. 

Third, the court could order a conditional release.  This would mean that the court finds that our client currently suffers from the mental disease or defect but that he or she does not pose a threat to others because the illness is being adequately controlled with supervision and treatment.  The PSRB could require an evaluation and treatment, but under this conclusion our client would generally not be required to enter a hospital. 

There is one other issue that it is important for our clients to understand.  When we assert this defense, we are waiving our client’s right to keep his or her mental health records private.  The prosecutor gets to see our records and the prosecutor even gets to ask our client to do an independent evaluation.  Doctors at the Oregon State Hospital provide that evaluation.  This is because both the defense and the prosecution get to see the evidence the other side wishes to use at the trial.

Lawyer Trust Account

A trust account is essentially a bank account where we hold other people’s money.  If we receive a retainer for a client before we have done the work, we will deposit that money into this segregated bank account.  Should we receive money from a settlement, we will similarly place that money into this segregated account.  Additionally, should a client ever pay on a debt to us, but pay more than we are due, we will deposit all the money into this account and then withdraw the amount that is due to us.

Example:  If client give us a $100 initial retainer, we will put that $100 into the trust account.  Later, after we have worked on that client’s behalf, we will prepare an invoice.  If that invoice is for $120, we will take $100 from the trust account and apply it to the invoice and send the client a request to pay us the remaining $20.  If that client then pays us $20 or less, we will apply it directly to the money owed.  If, however, the client pays $50, we will put all $50 into the trust account and then withdraw $20 to apply it to the outstanding bill, thus leaving $30 in the trust account. 

Whenever our office issues an invoice to a client who has any money in a trust account, we send a report to our client showing all transactions that have occurred with that trust account.  From that report, our clients can see all financial transaction associated with their account – fees we paid to investigators, to the court, to custody evaluators and to ourselves.  Also, when a trust account has funds remaining after we have completed our work we issue a refund to the client of that money left in the account and include a report of all transactions.

Failure to pay child support prosecutions

Sometimes the district attorney, the attorney general or a custodial parent will prosecute a person for failing to pay a child support obligation.  Although a tremendous number of issues can be involved in these cases, there are some common questions we will ask when we represent a person being prosecuted for not paying child support.  When you come to speak with us about your situation, some of the questions we ask you will usually include the following:

Are you employed? 

      If so, are you being garnished for child support? 

If so, how much is garnished from each paycheck and how often do you receive pay?

Have you been paying any support other than through garnishments?

If so, have you been using a check or money order and can you give us the cancelled checks?

If you are unemployed, have you been applying for work?

If so, please list where you applied, when you applied and how you applied (mailed résumé, online application, submitted written application)

Are you disabled?

      If so, have you applied for SSI (disability)?

If so, please bring us a copy of the SSI decision on your claim.

If so, do you have an attorney in that process and who is that attorney?

If denied SSI, have you appealed and who is your attorney for that appeal?

Do you have a doctor’s written opinion about your disability, if so, bring us a copy.

Do you have any other child support obligations and/or garnishments?

Have you ever modified the support amount or considered?