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Attorneys for Joseph Collins, the Mayer Brown partner who was indicted for his role in the alleged financial fraud at failed commodities brokerage Refco, are battling with federal prosecutors over whether results from a polygraph taken by Collins should be admitted into evidence for the lawyer’s trial. Attorneys at Cooley Godward Kronish who are representing Collins said in a court filing that they asked him in June to take a polygraph test after federal prosecutors claimed to have evidence Collins helped Refco conceal $1.1 billion in company debt. The defense hired Barry Colvert, a former FBI agent, to give Collins the exam. “Colvert reported to me that Collins had not only passed the examination, but had done so with flying colors,” Cooley Godward attorney Jonathan Bach said in the June 27 filing. The defense attorneys gave a copy of the report to the prosecutors and said that Collins was willing to submit to an additional government polygraph test, but prosecutors argued in an Aug. 1 court filing that the results shouldn’t be accepted as evidence partly because the government wasn’t notified of the exam and didn’t have a chance to participate in it. The prosecutors also argued that the tests are unreliable and that the results may unfairly prejudice the jury. The U.S. Attorney’s Office for the Southern District of New York filed the indictment of Collins last December, charging him with conspiracy to commit securities fraud, wire fraud and bank fraud and making misstatements to auditors, among other charges. The case is being handled by Judge Leonard Sand of the Southern District of New York. U.S. v. Collins, No. 07-1170. Collins is on leave from the law firm. While the results of polygraph exams have been accepted as evidence in courts on occasion in recent years, it’s still not a widely accepted form of evidence. In 1998, the U.S. Supreme Court, in U.S. v. Scheffer, determined that there’s no consensus on the reliability of polygraph results and left it up to federal judges to decide whether to accept such evidence. Federal prosecutors said in their filing opposing the acceptance of the results as evidence that “it has long been the rule of the Second Circuit that polygraph evidence is not admissible.” Collins’ lawyers countered in a filing that the 2d U.S. Circuit Court of Appeals has not barred polygraphs and that a hearing is required to determine the admissibility of the results, which they say are “reliable” and “relevant.”

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