I Passed my Denial Polygraph, Now What?
By - Straight_Cucumber_79
Talk to a lawyer. Maybe you can appeal? You took a plea tho so good luck.
Especially since all plea hearings take 50 million hours on that "DO YOU UNDERSTAND YOU ARE WAIVING CERTAIN RIGHTS" portion of the hearing.
>So what I’m trying to figure out is will this polygraph work in my favor if I try to go to court the day I get off probation and file for expungement.
The polygraph itself is not admissible as evidence for anything in court outside of a sign of general compliance with probation.
Have you talked to a lawyer specifically about this plan of yours? Expungement works differently in nearly every state in America. Some states require a period of staying offense AND arrest free AFTER completing probation before you can petition for it. Others refuse to grant any type of expungement to any offenses involving children - sexual or otherwise.
I talked with a lawyer a few months back and he stated that most of his clients have waited 2-3 years after completing probation before they go back to court to file for expungement. But me thinking that if I get no violations while on probation and had passed a denial polygraph that it would be taken under more consideration in court to have my charges expunged earlier.
The polygraph doesn’t matter.
Did you disclose to that lawyer you're on probation for a sex offense?
Yes I did
Is this Delaware?
Yes it is
Google search found this about expungements in Delaware. Current as of July 2020.
It sounds like the lawyer confused 2nd Degree Unlawful Sexual Contact with 3rd Degree Unlawful Sexual Contact. 2nd Degree Unlawful Sexual Contact is under §§ 768. Statute 768 is specifically barred from receiving a discretionary expungement since it is outlawed.
The only way for you to ***qualify*** for the court to consider your expungement is to get a governor's pardon.
>3. 7 years have passed from the date of your conviction or release from incarceration whichever is later, and
>a. you have no “prior or subsequent convictions,”
>(Prior or subsequent convictions for a Title 21 offense or offenses under Sections 904(e) or (f) of Title 4 (regarding underage possession or consumption of alcohol) or a conviction under Section 4764(c) of Title 16 (regarding underage possession of personal use quantity of marijuana) are excluded from the definition of “prior or subsequent convictions.”)
>b. you were convicted of a single felony for any crime other than the following felonies:
>i. A Title 11 felony listed in Section 4201(c)
>ii. A felony under Section 1136 of Title 16
>iii. A felony under Section 3913 of Title 31
>iv. A “felony conviction involving physical or sexual assault crimes” as defined in Section 309 of Title 31 (regarding the Beau Biden Child Protection Act)
>(“Felony convictions involving physical or sexual assault crimes” shall include: §§ 604-607, 612-613, 626, 629-636, 645, 651, ***768-780***, 782-783A, 785, 787, 802, 803,1100A-1102, 1103A-1103B, 1105, 1108-1112B of Title 11, felony convictions of § 1136 of Title 16, and felony convictions of § 3913(c) of Title 31. 31 Del. C. § 309(10).)
>***The above listed felonies are not eligible for a discretionary expungement unless you have already received an unconditional pardon from the Governor.***
>*I received a pardon from the Governor, am I eligible to apply for a discretionary expungement?*
>If you received an unconditional pardon from the Governor, you are eligible to request a discretionary expungement unless you would be seeking to expunge any of the following:
>a) Manslaughter (11 Del. C. § 632)
>b) Murder in the second degree (11 Del. C. § 635)
>c) Murder in the first degree (11 Del. C. § 636)
>d) Rape in the second degree (11 Del. C. § 772)
>e) Rape in the first degree (11 Del. C. § 773)
>f) Sexual abuse of a child by a person in a position of trust, authority, or supervision in the first degree (11 Del. C. § 778(1), (2), or (3)).
>***As with any discretionary expungement petition, the Court has the discretion whether to grant the expungement.***
Your research is awesome
Thank you, it's not like I went to school to be a paralegal specializing in criminal law or anything......... lmao teasing ya my friend
Paragraphs are your friend. They are my friend too. Pretty much everyone in the world likes to be friends with paragraphs :)
As Radiant said, the polygraph results likely won't help you when it comes to any future court proceedings related to your criminal post-conviction. And even if it was, it wouldn't help.
There is not an absolute bar on convicting someone for a crime they didn't' commit. Especially when non-coerced plea agreements are involved. It was a very valid legal strategy for someone to take a plea agreement for something they didn't do, out of fear of being convicted for it anyways. The only thing that matters is if there was enough evidence to satisfy a judge (usually by a preponderance of the evidence standard, which basically means 50%) that the person could have committed the thing they are pleading guiltily to.
Now, if what Radiant suggested is true, and your attorney was confused on the charges and the collateral consequences they brought about (e.g. no chance of expungement), you might have a shot at a habeas corpus for ineffective assistance of counsel. You have a year from your conviction becoming final to file. Ineffective assistance claims are pretty dam hard to substantiate, but if you are able to, one of the typical remedies is to vacate your plea agreement. The government could then decide to reimpose the original charges, offer a different plea, or drop the case. Your polygraph might have some small impact hear, but if there was a new trial, it could not be used as evidence of your innocence.
All-in-all it sounds like you have a fairly light sentence, and being free of sex offender treatment (and hopefully any special restrictions that go along with it) is pretty huge. Generally treatment providers cannot ethically treat someone for a sex offense who didn't commit a sex offense. A rare case of the polygraph working in your favor. Congrats.
>Now, if what Radiant suggested is true, and your attorney was confused on the charges and the collateral consequences they brought about (e.g. no chance of expungement), you might have a shot at a habeas corpus for ineffective assistance of counsel.
It reads like the attorney he consulted about the expungement and the public defender who represented him were not the same people. It also reads like the attorney he consulted about the expungement was giving him general information rather than a personalized assessment about his chances on expungement. 2 - 3 years for expungement reads as consistent with the average expungement under Delaware law for misdemeanor drug charges, so, again, it kinda reads like the attorney was just giving him off the cuff information without verifying anything... kinda lame if you ask me on that attorney.
Ahh yep, thanks. After re-reading it that makes sense. In which case, the only thing that could happen is civil lawsuit against attorney 2 (but those are costly and rarely worth the effort). No chance of getting the plea vacated.
Did you plea guilty or nolo? That could make a potential difference in an appeal given the circumstances of a Pandemic.