Legal Insider: Upcoming Polygraph? Consider Bringing Legal Counsel

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Melissa L. Watkins, Esq.

Polygraphs are a mysterious notion for individuals considering exploring careers that require high levels of clearance.

For those who have never taken a polygraph, most of the procedures and protocols surrounding them are unknown. And for those who have already participated in one, they likely understand the potential pitfalls that lie in the process.

What many individuals do not know is that most agencies requiring polygraphs have policies in place allowing legal counsel to attend. For instance, the Department of Defense’s policy provides that you “have a right to talk privately with a lawyer before, during, and after the polygraph examination.” Individuals are almost always required to complete a consent form prior to the polygraph examination.

Keep in mind that in most polygraphs, legal counsel is not necessary. However, in a minority of cases, legal counsel may be recommended for individuals that have previously had polygraph issues or who may end up disclosing information that could be adverse.

When is Polygraph Representation a Good Idea

It isn’t always necessary to have legal counsel during a polygraph examination. However, there are a number of situations where it may be a good idea. Such might include:

1. An individual has had a difficult time with earlier polygraph exams and needs reassurance during the examination.
2. If there are unique legal issues that could come up during a polygraph which might require immediate legal advice.
3. An individual has engaged in conduct that could raise criminal liability concerns.

What Can Lawyers Do During a Polygraph?

In certain situations you may want to consider bringing legal counsel to the examination. While legal counsel cannot stop the examination or provide your answers for you, legal counsel can be present for you to speak with before, during breaks, and after the examination. In our experience, it is helpful to have experienced counsel there to discuss the information being disclosed and how to potentially mitigate any concerns when circumstances dictate.

The mere presence of legal counsel also may cause polygraphers to adhere to the normal bounds of polygraph practice. For most agencies, you will arrive at the testing location and would be able to meet with your attorney beforehand. During the examination, your attorney may sit either right outside the examination room, or in a separate room where a video of the ongoing exam would be viewable by the attorney.

Each agency has different polygraph procedures. When needed, at any point during the exam, you would be able to request to speak with your attorney privately to obtain guidance or counsel for your questions or concerns.

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If you are an employee in need of security clearance or polygraph representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook and Twitter.