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7th Circuit Affirms Combined Convictions Against Child Abuser

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By Jonathan R. Tung, Esq. on May 16, 2016 7:53 AM

A divided Seventh Circuit affirmed both child abuse and felony gun use convictions against admitted abuser David Resnick in a split decision that implicates the admissibility of polygraph information -- or rather, evidence of the defendant's refusal to submit to a polygraph.

But although the affirmation may strike many as being the proper outcome, the Fifth Amendment implications the opinion raises should really give even the most casual reader pause.

Abuse of Children

David Resnick, a truck driver, took the nine-year old son of a family friend on a road trip, in which he repeatedly showed the boy child pornography and sexually abused him. Afterwards, the victim said, Resnick pulled out a gun after the two of them had pulled over and threatened the boy to keep the abuse a secret of he would "kill [him] and [his] family."

Resnick did not stop at the first boy. Instead, he invited his first victim and another little boy to a "pool party" where the second boy was also abused by Resnick. After the second told his mother what had happened, Resnick eventually pleaded guilty to child pornography charges in Florida. Meanwhile, a separate federal district court hearing further facts against Resnick convicted him of various child abuse and pornography crimes as well crimes involving the possession and use of a firearm during the commission of a felony.

On Polygraphs

On appeal, the Seven Circuit focused on the court's admission of polygraph evidence -- or rather admission of Resnick's refusal to submit to a polygraph test.

Resnick had earlier refused to undergo a polygraph test; and indicated that lie-detector tests can easily be "manipulate[d]" to the operator's desired outcome. At trial, evidence that Resnick had refused to undergo a polygraph was itself introduced. This may have been considered by the jury when it returned a guilty verdict on all counts.

The majority held that the attorneys in the case made only slight references to Resnick's refusal to submit to the lie-detector test and that the circumstantial evidence against him was very strong when accounting for the totality of the circumstances. Because the body of evidence was so strong against him, Resnick did not -- indeed, could not -- meet the need to show a "specific showing of prejudice" that substantially harmed his rights in court. If Resnick had to blame anyone, he had only himself to look to. At least, this is the view of the majority.

Dissent Sees Fifth Amendment Violation

But the dissent took another view that looks to be less complicated and more respectful of Fifth Amendment rights against self incrimination. The majority declared, rather paradoxically, that it had never before ruled that a refusal to take a polygraph implicated the Fifth Amendment. But this is somewhat strange since the refusal to submit to a polygraph had been quite possibly used by the jury to support a guilty verdict. That is, the refusal was used as self-incriminating evidence.

This is exactly the reasoning adopted by the dissent. It would be legal ballet to find that a refusal to submit to a lie detector cannot be a case of self-incrimination, and yet use that very refusal as evidence to sentence a man to heavy criminal penalties. Surely, this point deserves greater scrutiny and dialogue -- even more than what is currently being held.

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