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Polygraphy
A Window On The Truth And An End To False Allegations
Brian Johnson
January, 2000
And you will know the truth,
And the truth will make you free.
The Holy Bible - Concordance - Revised Standard Version
New Testament, St. John, Chapter 8, Verse 32
Nowhere in history has the law fouled up a useful tool more dismally than in the case of the polygraph… Lawyers who are essentially ignorant of the true facts of the polygraph technique declaim loudly in open court that the polygraph doesn't work (when it suits their purpose to do so) and judges equally uninformed render opinions which to men and women of science make no sense. Prosecutors will announce one day that John Brown will not be prosecuted because he had "Passed a lie detector test with flying colors," and appear in court the following day to fight tooth and nail to prevent Jim Green, an accused defendant, from even taking such a test. These, obviously, are not public officials sufficiently concerned with justice. F. Lee Bailey (Keeler, 1984)
If and when convincing evidence is produced that reasonably scientific methods of exposing falsehood either in or out of the courtroom are available, these methods should be properly utilized by the legal profession. Lawyers, judges, and law professors know that there is today in our courtroom entirely too much individual perjury and that it is usually difficult, and often impossible, for even an experienced trial lawyer to expose on cross-examination many of the lies of false-swearing witnesses. The legal profession can no longer assume a complacent attitude concerning our present methods of exposing mendacity. William Wicker (Abrams, 1989)
If science bids fair to furnish a fairly effective technique for the
exposure of deception, we should not merely welcome it when it comes
but stimulate and encourage efforts to speed its coming.
C.T. McCormick (Abrams, 1989)
We profess no infallibility for the polygraph technique, properly
employed [it] possesses a degree of accuracy commensurate with, and
even superior to, most of the presently approved forms of evidence,
scientific as well as unscientific, that feature in criminal and civil
trials.
John E. Reid (Abrams, 1989)
It is better that many guilty persons should escape unpunished than
one innocent person should suffer.
John Adams (Abrams, 1989)
Table of Contents
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Polygraphy: A Window On The Truth And An End
To False Allegations
Polygraphy and Judicial Systems
Supreme Court of Canada - 1987
Friendly Polygraph Examiner Hypothesis
Supreme Court of the U.S.A. - 1993
British Columbia Supreme Court - 1995,
Saskatchewan Court of Queen–s Bench – 1996,
Supreme Court of the U.S.A. - 1997Saskatchewan Court of Queen's Bench – 1997
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Polygraphy: A Window On The Truth And An End To False Allegations
Lying, mendacity or deception is increasingly prevalent in North American culture. This development is a reflection of cultural and social degradation. Accordingly, conditions wherein people are not motivated to engage in deception must be based ultimately on deep cultural and social change at the level of our most fundamental values. This is a longer-term process. In the interim, there is considerable value in utilizing tools at our disposal as a society toward stemming the level and degree of deception, particularly with respect to criminal matters.
An expanding body of literature shows, and an increasing number of people believe, that polygraph technology, practices and experience have now culminated in the most valid and reliable form of evidence of deception, next to 'prima facie' evidence such as the actual filming of events!!!
The practice of deception by people in relation to other people is historically widely prevalent and remains so to this day. Disparate forms of deception exist, including those intended for both beneficial and deleterious reasons. A range of beneficial reasons exist including police agency work. Destructive forms are also widespread in various forms, including those relating to family matters. Deception involves an assertion, known or believed to be false by the person giving the assertion, where there is an intention to persuade the audience that the assertion is true.
Lies told in the courtroom by plaintiffs, defendants, and witnesses are widely known to be commonplace. As Abrams declares, …these lies often cannot be exposed by even an experienced trial lawyer, and juries tend to accept lies as factual (Abrams, 1989, p. xvii).
The word 'polygraph' comes from the Greek 'poly' = many, and 'grapho' = to write.
In their book, Theories and Applications in the Detection of Deception, Ben-Shakhar and Furedy state that:
"Polygraphy," "lie detection," and the "detection of deception" are all terms that refer to an application of the science of psychophysiology, which itself employs physiological measures to study and differentiate between psychological processes (Ben-Shakhar & Furedy, 1990, p.vii).
'Polygraph' (as opposed to 'lie detector') is the prevailing terminology because the primary use of the process is now toward the exoneration of innocent suspects (Reid & Inbau, 1977, p. viii).
As stated by Ray H. Bull,
The polygraph is a neutral, accurate scientific measurement device which can display, via ink writing pens onto charts or via a computer's visual display unit, a direct and valid representation of various sorts of bodily activity such as heart rate, blood pressure, respiration and palmar sweating (Bull in Gale, 1988, p.10).
The detection of deception is integrally associated with the detection of individuals who are guilty. The technology employed in this regard is "…that of applied psychophysiology, and the modern polygraph is just such a purported application of psychophysiology" (Ben-Shakhar & Furedy, 1990, p. 2).
Efforts to detect socially destructive and illegal deception, through psycho physiological means, have potentially tremendous benefits for people and their cultures. As Ben-Shakhar and Furedy argue:
If successful, it is a way to bypass the deceiver's ability to voluntarily control behavioral manifestations, and to deal instead with physiological changes (usually controlled by the autonomic nervous system) over which self-control is limited (p.2).
The use of the polygraph in the United States of America (U.S.A.) is extensive and "…evidence derived from the polygraph test is acceptable in certain legal systems and courts in the U.S.A. and elsewhere" (Gale, 1988, p.1). Polygraph examination results were first used in U.S.A. criminal courts in 1972 (Robert Grime in Gale, 1988, p. 141). As of 1989, the results from polygraph testing have been admitted into evidence in 38 states in the U.S.A. On the U.S.A. Federal level, polygraph results have been admitted as evidence in 10 of the 11 circuits, and over ½ of all U.S.A. states have polygraph licensing laws (Abrams, 1989, p. xix). Abrams claims that "the polygraph approach continues to be the most accurate and reliable psychological test that exists, but it is not and never will be infallible" (Abrams, 1989, p. xix).
The most well known antagonist of polygraphy is David Lykken, although even he supports the use of the 'Guilty Knowledge Test' (GKT) method. One of the concerns with polygraph tests is that, while tending to be very accurate in detecting the guilty, errors can occasionally be made regarding falsely accusing the innocent (Gale, 1988, p.4).
History reveals that efforts began as early as 900BC to detect deception through the polygraphic rationale. The idea of a machine to detect deceit may have come from a document published by Daniel Defoe in 1730 titled 'An Effectual Scheme for the Immediate Prevention of Street Robberies and Suppressing All Other Disorders of the Night' (Thornton in Gale, 1988, p. 158). Late 19th century and early 20th century pioneers in the field included Cesare Lombroso (in 1895), Hugo Munsterberg, Vittorio Benuossi (in 1914), William Moulton Marston (in 1917), and Harold E. Burtt. Bunuossi and Marston reported very high accuracy rates using such processes, with Marston reporting a 96% accuracy rate using his method (Ben-Shakhar & Furedy, 1990, p. 3; and, Reid & Inbau, 1977, pp. 2-3).
In late 1920 or early 1921, August Vollmer, chief of the Berkeley Police Department in California, made a request to a John Larson to construct a 'lie detection' apparatus. This device "…was the first true polygraph used for lie-detection purposes" (Gordon Barland in Gale, 1988, p.75). This effort led to the first polygraph school in the USA. As Barland chronicles, writing in 1988,
Today the demand for polygraph examiners has resulted in the creation of over thirty polygraph schools accredited by the 3,000-member American Polygraph Association…
…nearly every police and sheriff's department in America has at least one officer assigned full-time as a polygraph examiner (Barland in Gale, 1988, p. 75).
Later pioneers in the processes and techniques included Leonarde Keeler (in 1926) and John E. Reid (in 1943), who introduced the 'control question' – discussed below.
The International Society for the Detection of Deception was incorporated in Bismarck, North Dakota, on December 30, 1947. The Society's name was later changed to the Academy for Scientific Interrogation. John Reid soon after established a separate organization and these two organizations eventually consolidated into The American Polygraph Association (APA) in 1966 (Keeler, 1984, pp. 177-178). The APA, currently consisting of over 2,000 members, has been the "…national and international representative of the polygraph field in its effort to establish standards of ethical practices, instrumentation, training, and techniques" (Ansley & Abrams, 1980, p. 2).
The Canadian Police College opened its polygraph training course in 1978, patterned after the US Department of Defense Polygraph Institute. In Canada, the polygraph is used most extensively in criminal investigations, and the 'Control Question Technique' (CQT) is the methodology most prevalent (Barland in Gale, 1988, p.78).
The American Association of Police Polygraphists (AAPP) has taken a strong stand in the 1990s to ensure that quality control programs are vigilantly enhanced, and that the use of polygraph technology not be undermined in police investigative work, but rather that its enhanced presence be assertively supported (Editors – The Police Chief, 1990, p.58). In fact, in February of 1990 the International Association of Chiefs of Police (IACP) passed the following resolution:
WHEREAS, the International Association of Chiefs of Police has encouraged
and participated in the development of polygraph testing, and,
WHEREAS, the law enforcement community uses the polygraph as an investigative
aid, and
WHEREAS, the IACP has supported the development of polygraph quality
control standards that would enhance the validity of polygraph examination
procedures, therefore be it
RESOLVED that the IACP will support a quality control procedure for
the polygraph (Editors – The Police Chief, 1990, p.60).
The American Polygraph Association (APA) has assisted the National Policy Center of the International Association of Chiefs of Police to publish a Model Policy on the polygraph. The APA states that,
Every effort has been made by the IACP National Law Enforcement Policy Center staff and advisory board to ensure that this model policy incorporates the most current information and contemporary professional judgment on this issue (APA, Web Site, December, 1998).
The policy can be found on the World Wide Web (the Internet) at: http://www.polygraph.org/policy.htm.
Both the IACP National Law Enforcement Policy Center's Model Policy and their 'Polygraph Examinations - Concepts and Issues Paper' are presented in Appendix A.
To become a member of the APA, a prospective polygraphist member must have graduated from an APA accredited polygraph school, undergo extensive background investigation, and continue with advanced training. As well, they must adhere to the APA's standards of practice and code of ethics which can be found at their Web Site.
In his book, The Complete Polygraph Handbook, Abrams delves into great detail on the psycho physiologic bases of polygraphy, and the prevailing hypotheses seeking to explain why and how polygraphic procedures work. He further details the instrumentation structures, the physical testing format and process, the question construction, the data gathering process, the scoring methodology, and post test interviewing techniques. Abrams acknowledges that coerced polygraph examinations will not work and should not be used, that polygraph examinations should not be administered if it might worsen an existing health condition, that polygraph examinations should not be administered to a pregnant woman, and that polygraphists should be aware of certain psychiatric disorders a prospective examinee may have (Abrams, 1989, pp. 153-154).
Polygraph instruments typically make permanent recordings of the three key physiological patterns of 1) pulse and blood pressure, 2) breathing, and 3) skin resistance. Each of these body functions is strongly affected by the emotional response of stress which forms part of the basis of polygraphic procedures.
The key physiological component of the polygraph process is related to the human autonomic systems. These systems are thoroughly beyond the reach of the conscious human being. As concurred by Ferguson and Miller,
The polygraphist is more concerned with nerve impulses which are handled by the autonomic nervous system where voluntary or conscious control is virtually absent [emphasis added] (Ferguson & Miller, 1973, p. 262).
Both cardiovascular and respiratory systems are composed, in part, of autonomic nerve sub-systems. With respect to the pneumographic tracing component of polygraphs, Ferguson and Miller describe the process:
Efferent nerve impulses leave the emotion-provoking centers in the cerebral cortex and, when they do stimulate the vagus fibers in the respiratory center, breathing movements may temporarily cease or be curtailed to one degree or another. The pneumograph component of the polygraph instrument instantly records any changes from norm in subject's respiration (Ferguson & Miller, 1973, p. 293).
Two forms of criminal polygraphic lie detection exist. The first is the 'Control Question Technique' (CQT), and the second is the 'Guilty Knowledge Test' (GKT), sometimes referred to as the 'Peak Of Tension' (POT) test. Researchers in the polygraphy field refer to the 'sensitivity', the 'specificity', and the 'overall validity' of polygraph examinations. Sensitivity is used to mean the degree to which the guilty are called deceptive. Specificity is used to mean the degree to which the innocent are called truthful, and the overall validity is the average (mean) of the two measures.
In 1947, John E. Reid introduced the CQT, currently used by most polygraphers with a professional affiliation (i.e. belonging to the American Polygraph Association [APA]). The CQT has a 'comparative' question which has some emotional impact, such as 'Did you ever do something you were ashamed of?' This type of question provides some 'face' validity relative to the more neutral 'comparison' questions of an earlier version of the polygraph test called the 'Relevant/Irrelevant Technique' (RIT), which merely used either totally irrelevant or totally relevant questions during an exam. The construction of control questions is critical, and dependent on the skill of the polygrapher. As Barland acknowledges, "to the extent that the required degree of control can be achieved, the test will be accurate" (Barland in Gale, 1988, p.79).
David Lykken first stressed the weakness of the CQT, and offered the alternative GKT in the late 1950s. This method presents several different questions each followed by several unique alternatives respecting information that only the offender, and the authorities and the polygrapher, would know about. If a given criminal investigation allows for the construction of 10 questions of this nature, an innocent suspect will demonstrate their lack of guilty knowledge with a high level of confidence. As he contends, "the specificity of the GKT is its cardinal virtue" (Lykken in Gale, 1988, p. 122). Accordingly, the GKT approach is particularly effective at securing confessions.
Lykken argues that polygraph tests are characteristically stressful, intrusively dehumanizing, inclined to repudiate principles of law and justice, and raise certain ethical questions. These concerns, he argues, are nevertheless not good enough reasons to warrant the disuse of polygraph tests, as many other investigative/legal/judicial procedures also entail such concerns. His belief is that the issue of validity or accuracy is of paramount importance, and should be the "…principal basis for public policy decisions" respecting the use of polygraph testing (Lykken in Gale, 1988, pp. 113-114).
To adequately approach the issue of validity, Lykken asserts that,
The best way of assessing the accuracy of the polygraph test involves selecting a representative sample of polygraph tests administered under real-life circumstances, having the charts independently scored by polygraphers who have only the charts to guide their decisions – blind scoring – and then comparing these scores with 'ground truth' (which subjects really lied and which were truthful) established by some criterion that is independent of the polygraph findings. The four features emphasized in the preceding sentence comprise the essential criteria for a scientifically credible assessment (Lykken in Gale, 1988, p. 116).
Upon examining the few studies which at that time (1988) met all four criteria specified above, Lykken concluded that the CQT was "reasonably accurate" at 84%. Respecting its sensitivity, however, he raises concerns about these studies not being accurate in detecting truthfulness, i.e. its specificity (Lykken in Gale, 1988, p.117). Lykken discusses the issues relating to a specific hypothetical case of criminal activity and concludes:
When one is considering the pros and cons of relying upon (or even permitting) polygraph testing in the particular case, however, especially as it arises within the context of criminal investigation, one is impressed by the uniqueness of that case, by the important ways in which it seems to differ from the small samples of other cases from which the available statistics were derived. It is perhaps for this reason that the criminal courts traditionally depend upon the specifics of the case, rather than upon base rates and statistics, evaluated by the human judgement – not of some polygrapher – but of a jury (Lykken in Gale, 1988, p. 121).
Lykken provides an overview of the GKT polygraph methodology. This methodology "…depends upon cognitive rather than emotional responses…" (Lykken in Gale, 1988, p. 123). Lykken cites eight laboratory studies (the only form available in 1988) which used the GKT method, all eight of which used the electrodermal response (EDR) as the dependent variable, as opposed to employing cardiovascular or respiratory responses as the dependent variables commonly used in the CQT methodology. These studies, conducted over the period from 1959 to 1984, revealed an average sensitivity of 88% and an average specificity of 97%.
Lykken further cites a recent pilot study where two researchers, Farwell and Donchin (1986), adapted the GKT and used the 'odd ball' paradigm relating to the cognitive significance of slow-wave components of the event-related brain potential (ERP) to detect deception. Lykken reports that "in their small pilot study they were able to achieve perfect detection both of 'guilty' and 'innocent' subjects" (Lykken in Gale, 1988, p. 123). Ben-Shakhar and Furedy comment on this methodology as well (Ben-Shakhar & Furedy, 1990, pp. 140-41).
Lykken concludes his position on polygraphs by suggesting that the 'lie-detector test' or polygraph examination is too susceptible to finding innocent individuals guilty. He argues that,
the fact that one of several accusatory questions causes my heart to beat harder, my palms to sweat more, than the other questions do does not necessarily mean that I am guilty of that accusation. The assumptions on which the various forms of lie-detector test are based have only to be articulated to be seen to be implausible… Polygraphic detection of guilty knowledge, based on entirely different and more plausible assumptions, has proved itself in the laboratory and deserves controlled study in the field of criminal investigation (Lykken in Gale, 1988, pp. 124-125).
The critical weakness of the GKT approach to polygraphy is that, in Abrams' words,
"…its use is limited to those situations in which only guilty suspects and not innocent suspects have access to specific crime information. Unfortunately, this is a relatively rare occurrence because in most instances this information is readily available through the attorneys involved, the news media, and even the investigating officers (Abrams, 1989, p. 87).
Ferguson and Miller articulate the point that
First and foremost, it must be emphatically stated that the polygraph examiner is not concerned with attempting to differentiate one emotion from another. He is only concerned that a verbal stimulus did provoke an emotion which produced sufficient nerve impulse intensity to create a deviation from norm on the chart. Then he searches for what caused the deviation (Ferguson & Miller, 1973, p. 168).
The key issue in lie detection is to construct the testing conditions so that extraneous reactions can be eliminated, controlled, or explained. Accordingly, if unexplained reactions to a question persist, the only reasonable alternative is that the individual is lying. Barland argues,
Extraneous reactions caused by aural and visual stimuli can be eliminated by conducting the examination in a quiet room free from uncontrolled sights and sounds. Reactions caused by orienting responses (ORs) are controlled by inserting one or more irrelevant questions to absorb the ORs. The effects of habituation can be controlled by reordering the question sequence from one chart to the next in the relevant-irrelevant (RI) test, or by the judicious juxtaposition of control and relevant questions in the control question text (CQT). Reactions caused by random thoughts are easily controlled by repeating the question sequences. By definition, random reactions will be evenly distributed among the various questions and can thus be factored out. Non-random reactions caused by innocent associations to a specific question can be identified by incorporating the subject's explanation into the wording of the questions, and continuing the examination (Barland in Gale, 1988, p79).
Lykken writes:
…the polygraph test depends on fear of detection, it assumes that the guilty person will be relatively more disturbed by the relevant questions while the innocent person will be more disturbed by the control questions (Lykken in Gale, 1988, p.114).
Respecting the standard CQT approach to polygraphy, in order to distinguish truth-teller from liar, a good control/relevant pair of questions must make the truth-teller more fearful of the control question, and the liar more fearful of the relevant question.
Writing as early as 1973 when polygraphy accuracy levels were much
lower than is currently true, Ferguson and Miller write:
Radically claiming that polygraphy is only 80 percent "accurate," the uninformed or misinformed critic fails to take into consideration scientific acknowledgement that no other method of truth verification comes close to even an 80 percent reliability (Ferguson & Miller, 1973, p. 23).
Reid and Inbau, in 1977, argue that,
…the Polygraph technique, properly employed, possesses a degree of accuracy commensurate with, and even superior to, most of the presently approved forms of evidence, scientific as well as nonscientific, that feature in criminal and civil trials (Reid & Inbau, 1977, p. viii).
In 1980 Ansley and Abrams wrote that,
validity is as great as, or greater than any of the other psychological procedures now in use, and the probative value of the test results, long recognized and depended upon by investigative organizations, is now being recognized with greater frequency by the nation's courts (Ansley & Abrams, 1980, p. 32).
Research to determine the validity of polygraph testing is focused on either laboratory or field trials. Many polygraphists maintain that "…laboratory findings have only limited generalizability to field procedures" (Abrams, 1989, p. 181). The electrodermal response (EDR) has consistently shown to be the most effective sensor for polygraph testing (Abrams, 1989, p. 187). There are two main types of errors associated with polygraph testing. The first is false positive where the innocent are inaccurately diagnosed as deceptive, and the second is false negative where the guilty are incorrectly considered to be truthful (Abrams, 1989, p. 187). Abrams cites studies showing the accuracy or validity of the CQT approach to be 87% when inconclusive results are excluded, with reliability rated at 90% (Abrams, 1989, p. 191).
The APA makes the point that inconclusive results are not errors. They address this issue by asserting the following:
To illustrate how the inclusion of inconclusive test results can distort accuracy figures, consider the following example: If 10 polygraph examinations are administered and the examiner is correct in 7 decisions, wrong in 1 and has 2 inconclusive test results, we calculated the accuracy rate as 87.5% (8 definitive results, 7 of which were correct.) Critics of the polygraph technique would calculate the accuracy rate in this example as 70%, (10 examinations with 7 correct decisions.) Since those who use polygraph testing do not consider inconclusive test results as negative, and do not hold them against the examinee, to consider them as errors is clearly misleading and certainly skews the figures (APA, Web Site, December, 1998).
Barland, writing in 1988, contends that:
…both the critics and the proponents of the polygraph are in general agreement that the RI and CQ tests are quite accurate at detecting deception. It is generally believed to be in the range of about 85 to 95 percent (Barland in Gale, 1988, p.81).
Abrams cites the 1987 study by Patrick and Iacono who "…obtained complete accuracy for the guilty and 90 percent correct judgements for the innocent" (Abrams, 1989, p. xviii).
With the development of computerized scoring for the CQT, particularly by Dr. David Raskin at the University of Utah, considerable enhancement to polygraph validity has been accomplished. Raskin argues that computerization "…combines the parameters in a way a human interpreter couldn't do… to render a decision in probability…", thus putting the polygraph "… more in a scientific category" (Ben-Shakhar & Furedy, 1990, p. 5).
Ben-Shakhar & Furedy acknowledge that,
As a consequence of these developments, there is a widespread perception at least in North America that the modern event-related CQT is a scientifically accurate (thought not infallible) test for the detection of deception (Ben-Shakhar & Furedy, 1990, p. 5).
Developments in the 1990s toward computerization of polygraph technology have advanced both the accuracy and the reliability of polygraph testing. Clede points to one firm's machine which is "…a six-channel recorder in which countermeasure movement and blood volume can be recorded along with standard polygraph parameters of cardio, pneumo and galvanic skin response and conductance…. Responses are displayed in real time on the monitor. Questions to be asked are displayed with a visual cue for question pacing. Sensitivity changes, time marks, and artifacts notations can be made during the exam and are recorded automatically on the chart" (Clede, 1992, p. 43).
In a study of actual polygraph cases conducted by a U.S. state Sheriff's office over a three and one-half year period, using confessions by either the accused or someone else who later confessed to the crime as the standard for criminal verification (i.e. the standard for 'ground truth'), the author found that over 98% of the polygraph test results were correct (Putnam, 1994, p.260).
A study examining the issues involved in assessing the validity of polygraph tests was conducted in 1996 by three individuals. They found that "…adequate experimental evaluation is possible but difficult" (Bradley, et. al., 1996, p.1).
In a February 1999 article, a reporter reviewed some recent developments in polygraphy technology, and interviewed a city police polygraph expert. The article points out that,
Measuring those subtle changes is now as accurate as 98 per cent using the new computerized high-tech lie detector, says the Regina Police Service…
[The Computerized Polygraph System] CPS features state-of-the-art computer software, transducers and electronics…
A recent article that appeared in the journal Polygraph looked at results in various tests and found it accurate to 98 per cent…
Although results aren't admissible in criminal courts [emphasis added] in Canada, it's likely one day that will change because of the increased accuracy of CPS (Bartlett, 1999, p. 3).
In the article, Regina City Police Service Sgt. Bernie Eiswirth is quoted:
There is other evidence that's admissible that's not 100 per cent accurate. Witness testimony is known to be between 89-90 per cent. Other expert opinions are not 100 per cent accurate (Bartlett, 1999, p. 3).
An article in a recent issue of the journal 'Polygraph' examined the validity and reliability of polygraphy. The article's abstract states in part:
Researchers conducted 12 studies of the validity of field examinations, following 2,174 field examinations, providing an average accuracy of 98%. Researchers conducted 11 studies involving the reliability of independent analyses of 1,609 sets of charts from field examinations confirmed by independent evidence, providing an average accuracy of 92% (Forensic Research, 1997, pp. 215).
The authors of the above paper assertively make the point in the body of the article:
How valid are these [polygraph] tests? How accurate are examiners at detecting deception and supporting truthful statements? The only practical way to determine accuracy has been to follow up on real cases where the examination was one in which the examinee's deception was confirmed by confession or the examinee's truthfulness was confirmed by someone else's confession. The average accuracy for such studies, conducted since 1980, has been 98% (Forensic Research, 1997, pp. 217).
Ferguson and Miller cite many case histories of courts accepting polygraph evidence pertaining to criminal matters, which subsequently resulted in a disposition of innocence, even in many cases where an individual proclaiming their innocence was found guilty by a lower court (Ferguson & Miller, 1973, pp. 19-21).
Ferguson and Miller further chronicle 18 substantive case histories where polygraph examinations either led to the staying of charges or led to exonerations for individuals suspected of a criminal act (Ferguson & Miller, 1973, pp. 115-142).
Reid and Inbau cite seven case histories where both individuals as well as large groups of people were all exonerated because of the judicious use of the polygraph (Reid & Inbau, 1977, pp. 361-363).
A number of books have been written which present numerous case histories of innocent people being cleared by polygraphy, as well as cases of those whose guilt was discovered through polygraphy. Some of these books and authors include Lie Detectors: Their History and Use, by E.B. Block (1977), The Silent Witness: A Polygraphist's Casebook, by C. Gugas (1979), and Lie Detector Man, by E. Keeler (1984).
In his 1998 monumental treatise, James Matte presents a detailed description of polygraphy, its history and its utilization in all respects. The book covers all aspects of the polygraphic manifestation as it has evolved to the current day. Matte makes a strong case for the final and full introduction of polygraph evidence into the court systems, particularly with the new standard of evidence in the U.S.A. – the Federal Rules of Evidence (Matte, 1998). The Web Site for this book is: www.mattepolygraph.com.
In a forward to Matte's book, the U.S.A. attorney Charles M. Sevilla states that:
Dr. James A. Matte's Forensic Psychophysiology Using The Polygraph is the best text on the subject I have seen. For too many years there has been a lack of a single resource for polygraphers, lawyers, judges and scientists to resort to learn about polygraph issues. This book will solve that problem. It contains comprehensive discussions of the history, validation research, as well as test technique, application and interpretation. In future court hearings on polygraph, this will be a tremendous aid in demonstrating validity and overcoming the historic judicial reluctance to admit the evidence.
That reluctance stems from three judicial concerns: 1) the lack of demonstrable polygraph standards in test technique, 2) proven validity, and 3) the impact on the administration of justice if polygraph were admitted. These are legitimate concerns. Previous foundation hearings tended to show wildly variant expert opinions on such fundamental matters a question formulation, test technique and interpretation. The result was lengthy court hearings simply to allow a judge to rule on admission. Courts do not have the time to resolve such scientific disputes in the middle of a trial.
This volume should go far in alleviating concerns over the first two issues. Polygraph has progressed to the point that standardization of test technique is accepted by competent examiners. Indeed, the current advances in computerization would be impossible were there not accepted technique standards. Also, peer-reviewed validity studies abound in the journals of psychophysiologists to show that properly conducted exams will show high degrees of validity. As to the impact on the justice system, with the first two concerns largely met, the courts are now carefully crafting tight rules for admission to insure that valuable court time is not wasted in a confusing battle of the experts.
For the attorney of judge, the chapter on the legal aspects of the polygraph (or psychophysiological veracity test, as the author calls it), contains a review of the recent cases and also a discussion of the factors which should be considered in selecting an examiner. The latter is crucial to meet the three judicial concerns noted above. Simply put, proper examiner selection – one who is properly trained at an accredited polygraph school and who uses the proper test technique – is the key to any hope for judicial acceptance (Matte, 1998, pp.xi-xii).
Matte opens his introduction with the following:
When my first book The Art and Science of the Polygraph Technique was published in 1980, I had great hopes that by the end of that decade, most of the polygraph techniques currently being taught at polygraph schools accredited by the American Polygraph Association would be validated by research studies (Chap.3), polygraph instruments would be computerized with validated algorithms exceeding ninety-eight percent in their accuracy to quantify, analyze and evaluate the physiological data (Chap.13) and the results of aforesaid polygraph examinations would have received judicial notice of acceptance in our courts. Only the latter has not been achieved (Matte, 1998, p.3).
Matte presents a brief overview of the scientific and legal status of polygraph tests, or psychophysiological veracity examinations as he prefers to call them, in his introduction. He cites a study (described above) and writes:
Thus, the aforesaid study supports Reid and Inbau's statement (Chap. 23) that the accuracy of the psychophysiological veracity (PV) examination is commensurate with and even superior to most of the presently approved forms of evidence (Matte, 1998, p.5).
Matte cites a remarkably successful program for the supervision and treatment of convicted sex offenders in the state of Oregon which systematically uses forensic psychophysiologists as one component of the program. Matte discusses the difference between the 'numerical approach' and the 'clinical approach' for the PV examination techniques in Chapter 9. He asserts that had the Central Intelligence Agency (CIA) used the 'numerical' instead of the 'clinical' approach that they would have been able to discover that one of their own agents, Aldrich Ames, was in fact deceptive during the regular PV examinations given to him.
He concludes his introduction by exclaiming:
Society desperately needs this technology as a preventive measure to persuade our young generation that the truth will prevail in our courts which now have the capacity to uncover mendacity and punish the offenders (Chap. 23), and to distinguish habitual career criminals from those who can be safely placed on probation or parole through PV examination monitoring and treatment programs (Chap. 24), and last but not least, to identify the wrongfully accused defendant (Chap. 24)….
This book is dedicated to all people who seek the truth through the art and science of forensic psychophysiology (Matte, 1998, p.8).
In his chapter on the history of truth verification, Matte conveys his view that,
Society is willing to spend billions of dollars in the construction of more prisons, the training and hiring of more guards and more police officers, but nay a penny for the advancement of truth verification which could revolutionize the criminal justice system by requiring its citizenry to tell the truth when under oath or have the lie detected. But societies outside of the United States have picked up the baton in the technological race of truth verification, with fifty-seven countries having some polygraph capability of which eighteen have significant capability in psychophysiological veracity examinations using the polygraph including computerized polygraph systems (Matte, 1998, p.83).
Matte points to a study by Norman Ansley in 1990 which examined the accuracy of polygraph tests. This study, 'The Validity and Reliability of Polygraph Decisions in Real Cases', is summarized in the abstract:
A report on validity from all studies of real cases, conducted since 1980 is presented. Examiner decisions in these studies were compared to other results such as confessions, evidence, and judicial disposition. The ten studies reviewed considered the outcome of 2,042 cases, and the results, assuming that every disagreement was a polygraph error, indicate a validity of 98%. For deceptive cases, the validity was also 98%, and for non-deceptive cases, 97%. The studies were from police and private cases, using a variety of polygraph techniques, conducted in the United States, Canada, Israel, Japan and Poland (Matte, 1998, p. 129).
Among many studies, Matte points to a recent study demonstrating the accuracy of polygraph tests. He states:
An example is the Matte-Reuss Validation Study of the Quadri-Zone Comparison Technique (1989) wherein 122 confirmed real-life cases from a Metropolitan Police Department and Private Polygraph firm were used which consisted of 62 deceptive cases and 53 no deception cases and 7 inconclusive cases of which 5 were solved as innocent and 2 as guilty. The Innocent and the Guilty were reported separately. The Quadri-Zone Comparison Technique correctly identified 91% of the Innocent as Truthful and 9% as Inconclusive, with no errors. It further correctly identified 97% of the Guilty as Deceptive and 3% as Inconclusive, with no errors. Inconclusives excluded, the Quadri-Zone Comparison Technique was 100% accurate in the identification of the Innocent and the Guilty. Inconclusives included, the utility rate was 94% (Matte, 1998, p.114).
Based on his comprehensive research, Matte concludes that,
Based on these studies involving real cases and excluding inconclusive decisions, it appears that field examiners are about 98% accurate in their overall decisions. When they employ control question tests they are more accurate with deceptive (DI) subjects at 99% than they are with truthful (NDI) subjects at 95% (Matte, 1998, p. 139).
The above information reveals that polygraph test results have an astonishing degree of accuracy… an accuracy which does not merely duplicate the validity level of other forms of court admissible evidence – but rather exceeds it! The results from polygraphy tests, as one form of evidence, clearly warrants full introduction, on a regular, systematic basis, into both civil and criminal courts!
Polygraphy and Judicial Systems
The relationship between polygraphy and its proponents on the one hand, and the judicial systems in North America on the other, has been tense. Abrams, writing in 1989 states,
The courts have demanded infallibility, but when the findings for validity were reported to be high, a concern arose that testimony of this nature would influence the jury to the point of usurping its role. This Catch 22 has resulted in little progress being made in the last ten years in having polygraph evidence admitted into testimony (Abrams, 1989, p. xviii).
In 1923, an individual (James Alphonso Frye) convicted of murder rescinded his confession, and was tested using an early version of the polygraph that showed he was being truthful (Frye v. United States). He then appealed to the U.S.A. Court of Appeals for the District of Columbia which affirmed his conviction, thereby setting a precedent for the courts to reject polygraph results as admissible evidence in court. However, polygraphy results were eventually accepted into evidence in many states. In Abrams' words,
Despite continuing arguments involving the accuracy of the polygraph technique, there is ample evidence of its accuracy. Moreover, the theory underlying the method is sound and accepted by the scientific community. When a technique has become firmly established and validity in both of these areas exists, the courts should take judicial notice and should be concerned with the qualification of the expert, whether proper procedures were employed, and the condition of the instrumentation used. If these requirements are met, this testimony should be as readily admitted into evidence as other scientific data are (Abrams, 1989, pp. 204-205).
Reid and Inbau present the key historical rulings in the U.S.A. relating to court admissibility of polygraphy evidence (Reid & Inbau, 1977, pp. 310-314). The first appellate court to admit testimony from polygraph tests was a California Court of Appeals in 1948 (People v. Houser) (Ansley & Abrams, 1980, p. 12). Subsequent admissibility was decided in Iowa in 1960, and Arizona in 1962. A trend was thus set in the U.S.A. for admissibility of polygraph evidence, and in some cases even over objection and without prior stipulation.
Reid and Inbau's research led to findings of court sanctioned admissibility of polygraphy evidence. They state that
a more modern view will accord judicial recognition upon the general acceptance by specialists within a profession or field of science, even though the group as a whole may be completely unfamiliar with the instrument or technique (Reid & Inbau, 1977, p. 309).
In Oregon, polygraphy is not admitted into the courts on either a stipulated or unstipulated basis, in part because of the undue delays resulting from challenges to the accuracy of the testing (Abrams, 1989, p. 205). Abrams expresses his views in the following passage:
Although there is solid evidence for the high level of validity that exists, the court's dilemma is to sort through the data. There are actually few critics of polygraphy, but they have managed to make themselves heard, and objections will continue to be based on the assumption that the polygraph approach lacks adequate validity. The facts are that it is not infallible; there are errors made. There is also a tendency to err in the direction of false positives when control question techniques are employed. Still, it remains one of the most accurate – if not the most accurate – psychological tests in existence (Abrams, 1989, p. 207).
While the tendency among those unprincipled lawyers in the legal community, based on an objective self-interest, is to oppose polygraph evidence admissibility in the court system, a few lawyers have supported this important evidence. R. David Broiles, who in 1973 was with a law firm in Fort Worth, Texas, states that one polygrapher has "…saved me many hundreds of hours in fruitless investigation and pursuit of my client's dreams, fantasies or just plain lies". He complements this by arguing that,
If the courts are never convinced as to the admissibility of these tests, then lawyers should be. Nothing can save you more time in investigative work. Nothing can be more valuable to you than talking honestly with your client. Even if you never sought to introduce the results of one of these tests, you should take it upon yourself in fulfilling your duty to your client in adequate representation of his cause to use these tests. You also owe it to yourself to understand this important scientific advance (Ferguson & Miller, 1973, pp. x-xi).
F. Lee Bailey has exclaimed, "polygraphy – that is the finest kind of clearance anyone can get" (Ferguson & Miller, 1973, p. 14).
Ferguson and Miller espouse the position that,
…through polygraphy there is a much higher degree of accuracy not only in assisting to bring the guilty to the bar of justice but also for protection of the innocent.
Is it not true that prosecuting attorneys, with all the power at their disposal, are supposed to do everything within that power to protect the innocent?
To every judge, juror, prosecuting and defense attorney, who are only men and women, also vehemently swayed by personal and political desires and prejudices, we can only say that justice is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together (Ferguson & Miller, 1973, p. xx).
Ferguson and Miller point out that,
the notion of proof is a misnomer which does not exist. Proof occurs in theory when a jury finds one way or another. If they are mistaken, the fact is none the less proof. All that we have is evidence – information that goes through a filter called the trial judge and then may be considered by the triers of fact (Ferguson & Miller, 1973, p. 13).
They further argue that,
The person who avoids trial through polygraphy enjoys as good a reputation as the one charged with paternity enjoys when he is cleared by a blood test, which shoots right through the trial system and locks up the case with a fixed result (Ferguson & Miller, 1973, p. 14).
Concerns have been expressed that the polygraph may usurp or supplant the role of the jury. In fact, it would be the jury's duty to:
1. determine what corroborative weight should be given to the polygraph evidence in court; and,
2. determine what affect should be given to the polygraph evidence in court.
These guidelines would be true with any results or evidence secured from a scientific tool used in an investigation, such as the Breathalyzer, or DNA evidence.
In Ferguson and Miller's words,
Juries will not slavishly follow the polygraph as though it were the last word in every question of credibility. They will evaluate it just as they would an x-ray skiagraph or an electroencephalogram.
If these things could be agreed upon by responsible lawyers and the polygraph technique utilized in a responsible fashion, it would jack the accuracy of our criminal justice system well into the high nineties among the cases that now go awry (Ferguson & Miller, 1973, pp. 15-16).
In an important commentary, Ferguson and Miller contend that in many instances a prosecutor could state,
"all right, this guy has cleared polygraphy by four different experts who came up with the same results. I'm satisfied they all can't be mistaken, so he didn't do it." If the prosecutor would then dismiss the case and let the people understand he is willing to do that for every citizen, polygraphy would rise in public esteem and the truth about its fairness, objectivity and high reliability would come out (Ferguson & Miller, 1973, p. 16).
Respecting the issue of the relative importance and weight to be ascribed to the polygraph during trial, Reid and Inbau write,
In any jury trial where the test results are admitted in evidence the court should, of course, instruct the jury that they should not consider the Polygraph examiner's opinion as conclusive, but that they are privileged to consider the opinion along with all the other evidence in the case and to give that opinion whatever weight and effect they think it reasonably deserves (Reid & Inbau, 1977, p. 367).
Reid and Inbau, writing in 1977, analyze the prevailing forms of evidence permitted into the court system and conclude that subject to a few cautionary conditions,
it is our view, therefore, that the results of a competently conducted Polygraph examination should be accepted as evidence without the requirement of a preexamination agreement and stipulation… (Reid & Inbau, 1977, p. 365).
Writing in 1980, Ansley and Abrams convey the points that,
police officials agree that tremendous savings in manpower and money have resulted from the use of the polygraph technique to pinpoint criminal suspects and to clear innocent persons…
It cannot be emphasized too strongly that thousands and thousands of Americans have been released from police custody and spared public scorn and prosecution because their innocence has been verified by the polygraph (Ansley & Abrams, 1980, p. 3).
In 1973, P. Ash surveyed a group of individuals in three fields and found that "…76 percent [of psychologists], 59 percent [of sociologists], 96 percent [of prosecutors], and 75 percent [of defense attorneys]" favored the use of polygraphs in criminal investigations, and similar percentages of the same groups favoured the admission of polygraph evidence into courts upon stipulation (Abrams, 1989. p. 209).
According to Abrams, with an average of 67% of the above groups indicating polygraph results should be allowed into court on a stipulated basis, and with 63% of the members of the Society for Psychological Research viewing polygraphs as a useful diagnostic tool to measure truth and deception, "if the Frye standard is to be employed, these findings should argue in favor of polygraph admissibility" (Abrams, 1989, p. 209).
In the introductory chapter to Keeler's 1984 book, Lie Detector Man, F. Lee Bailey writes,
Nowhere in history has the law fouled up a useful tool more dismally than in the case of the polygraph… Lawyers who are essentially ignorant of the true facts of the polygraph technique declaim loudly in open court that the polygraph doesn't work (when it suits their purpose to do so) and judges equally uninformed render opinions which to men and women of science make no sense. Prosecutors will announce one day that John Brown will not be prosecuted because he had "Passed a lie detector test with flying colors," and appear in court the following day to fight tooth and nail to prevent Jim Green, an accused defendant, from even taking such a test. These, obviously, are not public officials sufficiently concerned with justice (Keeler, 1984, p. xi).
Writing in 1989, Abrams concludes:
The pendulum is expected to swing away from civil rights and in the direction of tougher laws and longer sentences. The costs of crime – not only in losses, victimization, and the housing of these people, but the costs of trials – are overburdening the public. It is believed that these factors will inevitably force the recognition of polygraphy (Abrams, 1989, p. 212).
Political motivations and machinations play a large role in the acceptance of polygraph results as evidence in court systems. As Abrams recounts in reference to one such investigative determination,
It is important to recognize that political motivations can strongly bias investigations of this nature (Abrams, 1989, p. 6).
Abrams writes further,
If polygraphy were ever eliminated, it would not be because science has demonstrated that it is an invalid technique but rather because of the self-serving motives of those who ignore and distort facts for their own aims (Abrams, 1989, p. 7).
Abrams believes that, because of the increased awareness among scientists of polygraphy and an increased interest in polygraphy among those already involved forensic fields, the likelihood of courtroom admissibility of polygraph testimony will increase.
In this vein, Ben-Shakhar and Furedy present the following observation:
It may seem quite plausible to think that whenever the polygraph is denied evidential status in the criminal courts (as occurred, for example, in the 1987 Supreme Court decision in Canada), the influence of the polygraph is thereby diminished. The grain of truth in this belief is that the scientific status of the procedure is, indeed, decreased, and hence professional polygraph associations are displeased by such developments.
However, there are grounds for suggesting that the indirect influence of the polygraph may actually increase when its direct-evidence use is denied. In the hands of police interrogators, the polygraph becomes an even more useful confession-inducing instrument, because the events occurring during the polygraph 'test' are no longer subjected to critical scrutiny by defense counsel, since the procedure is no longer deemed relevant. This leaves the police polygrapher even more freedom to ply the 'psychological rubber hose' in the privacy of the one-on-one situation demanded by the polygraph, knowing that it is not likely that what goes on during the confession-inducing phase of the examination will ever be critically examined by the defense (Ben-Shakhar & Furedy, 1990, p. 143).
This comment, aside from being derogatory toward police services and police officers, objectively acts as a supporting statement for the sanctioning of polygraphy examination results into the court systems. It does so first, because if polygraphy is deemed permissible for police investigative purposes, this evidence should be treated like any other piece of evidence, all kinds of which (prima facie, collaborative, collateral, witness testimony, hearsay, statements/lies) are allowed into the court system. With many polygraphers and related organizations now demonstrating polygraphy accuracy levels of well over 90%, this form of (potential) court room evidence exceeds the accuracy levels of many other currently admissible forms of evidence.
Secondly, the quote above supports the entry of polygraphy evidence into the court system in the indirect sense that, if police services are inclined to misuse their power through polygraphy techniques (as the authors allege), then there is some urgency that the court systems finally be forced, through legislation, to accept rigorously secured polygraphy evidence during trial, so that polygraphy utilization and processes can be yet further refined, legitimized and respected by the community.
In their 1985 book, Justice and the Polygraph, Ansley and Pumphrey chronicle 172 polygraph cases from U.S.A. history, ranging from 1972 through to 1985. These case histories present an exceptionally compelling series of thoroughly documented accounts of the polygraph being used as the basis to exonerate innocent individuals, and to identify those who were guilty of a crime. In their opening statements, the authors make the following revelation:
The criminal justice system in the United States does not promise an accurate trial, only a fair trial. Moreover, anyone who goes to trial suffers considerably, even if found innocent. Lawyers are expensive, there is the trauma of booking and jail, and the humiliation of the publicity of the arrest and trial. Since the early 1920's when the polygraph began to play a significant role in criminal investigations, many persons owe the avoidance of arrest, or trial, and even probable conviction, to polygraph examinations. In addition, some falsely accused persons have been freed from prison because of polygraph examinations. In other cases, the results of polygraph examinations were not the sole reason for the accurate outcome of a case, but the use of the polygraph was a significant factor in the decision making. Among the difficult cases for juries and judges are those in which there is no evidence other than the eyewitness identification of one person, who may also be the victim. The outcome of these cases depends on who the jury believes, the witness or the defendant. Sometimes the witnesses have made an honest mistake. In other cases, they have personal reasons to deliberately lie (Ansley & Pumphrey, 1985, p.1).
Supreme Court of Canada - 1987
In a 1987 case and decision, the Supreme Court of Canada ruled that
polygraph evidence related to a criminal proceeding would not be allowed
into the court (R. v. Beland, 1987, 2 S.C.R. 398, File No. 18856).
The presiding justices were Chief Justice Robert George Brian Dickson,
Justice Jean Beetz, Justice Gerard V. La Forest, Justice Antonio Lamer,
Justice Gerald Eric Le Dain, Justice William Rogers McIntyre, and
Justice Bertha Wilson. Five of these Justices formed the majority
and deciding judgement, however, two of the Justices dissented on
the merits.
These two were Justice Lamer and Justice Wilson. Delivered by Wilson, the dissenting decision conveyed a powerful and cogent set of reasons why polygraph examination results should be deemed admissible in criminal court. Justice Lamer was, until December 1999, the Chief Justice of the Supreme Court of Canada. Their argument can be found in Appendix C.
Friendly Polygraph Examiner Hypothesis
Charles Honts has conducted research on a key objection to the admissibility of polygraph testing results into the courts. This objection is called the 'friendly polygraph examiner hypothesis' (FPEH). The nature of this hypothesis is that if a given examinee to a polygraph exam knows that the results of the examinee's test will only be admitted into court if it shows the examinee to be truthful, the threat posed and the related level of fear experienced during the crime-relevant question will be reduced and accordingly, will result in more likelihood that the examinee will pass the test. Honts cites 16 studies and a broad range of actual field case data which conclusively show that the hypothesis is without basis. His conclusion is that,
1. the FPEH does not make sense in the context within which confidential comparison question tests are actually conducted;
2. predictions of the FPEH find no support in laboratory data where the effects should be the strongest; and,
3. predictions of the FPEH find no support in field data of confidential and non-confidential comparison question tests.
The Friendly Polygraph Examiner Hypothesis is completely without logical or empirical support and should be abandoned as a reason for opposing the use of defense offered of polygraph examination in courts of law (Honts, 1997, p. 5).
Supreme Court of the U.S.A. - 1993
In March of 1993, a family in the U.S.A. brought a suit against Merrell
Dow Pharmaceuticals, Inc. which alleged that the two children's birth
defects were caused by the mothers' prenatal ingestion of Bendectin,
a prescription drug marketed by Merrell Dow. The District Court and
the Court of Appeals granted summary judgment to the respondent (Merrell
Dow), and determined that the evidence submitted by the plaintiff
did not meet the applicable "general acceptance" standard
for the admission of expert testimony. The Court of Appeals even cited
the Frye v. United States case chronicled earlier in this paper. However,
upon hearing this case, the Supreme Court of the United States held
that "the Federal Rules of Evidence, not Frye, provide the standard
for admitting expert scientific testimony in a federal trial"
(Daubert v. Merrell Dow Pharmaceuticals, No. 92-102, 509 U.S. 579
(1993)). This decision has far reaching implications, in the U.S.A.
at least, for the court room admissibility of polygraph examination
evidence.
Matte chronicles the U.S.A. Supreme Court on this decision:
The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals summarized that "'general acceptance' is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the rules of Evidence – especially Rule 702 – do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands" (Matte, 1998, p. 559).
A recent article in the Polygraph journal noted that,
…all [U.S.A.] federal jurisdictions and the 24 states that employ the Federal Rules of Evidence are reevaluating admissibility of polygraph results in light of the 1993 Supreme Court decision of Daubert v. Merrell Dow Pharmaceuticals. The trend appears to be one of greater admissibility. It also appears that courts are setting standards for admissibility, standards that are often taken from APA publications (Forensic Research, 1997, pp. 216).
British Columbia Supreme Court - 1995
In March of 1995, the British Columbia Supreme Court ruled polygraph
evidence admissible into the civil (family law) courts in a case involving
child custody and access (C. (R.M.) v. C. (J.R.) - R.M.C. v. J.R.C.
- 12 R.F.L. (4th) 440 - Judgment – March 10, 1995; Judge, Edwards
J.). In the judgment, four other Canadian cases ranging between 1986
and 1991 were cited which either deemed as relevant and admitted polygraph
evidence, or lent clear support to the admissibility of polygraph
evidence into the court system.
Saskatchewan Court of Queen's Bench – 1996
In January of 1996, the father of a child, whose mother alleged child abuse, undertook a polygraph examination. The father passed the polygraph test, strongly supporting his contention that he, in fact, did not engage in any abuse of his daughter. Subsequent to his passing the polygraph exam, Saskatchewan Social Services removed a ban on his access to his child. The court, during the trial to determine custody and access, was not required to rule on the admissibility of the polygraph evidence because counsel for the mother of the child agreed to admit the evidence. The Judge in the trial placed some weight on the fact that the father was willing to undertake the polygraph exam. In the words of the Judge,
…I am prepared to place some weight on the fact that E.Z. was prepared to undergo a polygraph test (Saskatchewan Reports; 139; (1996)-139 S.R.; p. 278; 1994 Q.B. No. 228; K.M.S. v. E.Z.; Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina; Dawson, J.; January 29, 1996;).
Supreme Court of the U.S.A. - 1997
In 1997 the U.S.A. Supreme Court heard a case (U.S. v. Scheffer) which dealt with the issue of the admissibility of polygraph results. A U.S.A. airman sought to introduce polygraph evidence that demonstrated support of his testimony that he did not knowingly use drugs. A military judge ruled against the admissibility and the Air Force Court of Criminal Appeals affirmed this decision. However, the U.S.A. Court of Appeals for the Armed Forces reversed the lower court's decision in a 3 to 2 vote, stating "[a] per se exclusion of polygraph evidence offered by an accused to rebut an attack on his credibility… violates his Sixth Amendment right to present a defense" (United States v. Scheffer (96-1133), 44M. J. 442, reversed). In a March, 1998 decision, the U.S.A. Supreme Court chose to reverse the Court of Appeal's decision, and rule to disallow the polygraph evidence as admissible in Court.
In a partially concurring opinion in this case, Justice Kennedy, supported by Justices O'Connor, Ginsburg, and Breyer, argues that:
Neither in the federal system nor in the military courts, then, is it convincing to say that polygraph test results should be excluded because of some lingering concern about usurping the jury's responsibility to decide ultimate issues (United States v. Scheffer (96-1133), 44M. J. 442, reversed).
Justice Stevens filed a dissenting opinion (with 50% more narrative than the majority decision itself filed by Justice Thomas) in which he presents a thorough examination of the history and arguments of courtroom polygraph results admissibility. He concludes,
The Government's concerns would unquestionably support the exclusion of polygraph evidence in particular cases, and may well be sufficient to support a narrower rule designed to respond to specific concerns. In my judgment, however, those concerns are plainly insufficient to support a categorical rule that prohibits the admission of polygraph evidence in all cases, no matter how reliable or probative the evidence may be. Accordingly, I respectfully dissent (United States v. Scheffer (96-1133), 44M. J. 442, reversed).
Justice Stevens points to four studies of the reliability of polygraph tests which place mean accuracy levels at 90%, 90.5%, 97.5%, and 87% respectively. He also cites a study, which excluded 'inconclusive' results from each test, showing a polygrapher resolving 95% of cases correctly, with finger printing, handwriting and eyewitness approaches resolving 100%, 94%, and 64% of cases correctly. When 'inconclusive' results were included, the polygrapher was more accurate than the other three methods with a 90% resolution of the cases, compared to 85% for handwriting, 35% for the eyewitness, and only 20% for the fingerprinting expert (United States v. Scheffer (96-1133), 44M. J. 442, reversed).
Saskatchewan Court of Queen's Bench – 1997
In November of 1997, the father of a girl was accused of child abuse. The father requested a polygraph examination and passed, demonstrating that he did not abuse his daughter. The Judge, during trial for custody and access, was not required to determine the weight given to the polygraph test results, however, the father's willingness to have the test played a considerable role in the Judge's decision. In the Judge's words,
I need not make any determination on the weight that should be given to the polygraph examination. However, it speaks well of W.C. that he was sufficiently sure of his own innocence to put it to the test of a procedure that he believed would determine the truth of his statements (Saskatchewan Reports; 161; (1998) – 161 S.R.; p. 87; 1995 FLD No. 322; Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert; Rothery, J.; November 5, 1997).
Matte reviews a wide range of court cases in the U.S.A. where polygraph test result admissibility was at issue, especially those cases heard during the 1980s and 1990s (Matte, 1998, pp. 554 – 563). Beginning in the 1980s, courts have increasingly supported the admissibility of polygraph test results as evidence. These rulings have stipulated or evoked such commentary as the following three examples:
Also admitted in evidence in Gadson's request for a new trial was the result of a psychophysiological veracity (PV) examination of Gadson which reflected Gadson as non-deceptive to the relevant questions relating to the shooting of the victim, whether he was at the scene of the crime when the victim was shot and whether he had conspired with anyone to shoot the victim. On 13 April 1994, the Michigan Court of Appeals remanded a request by Gadson to file a motion for a new trial to the Recorder's Court for the City of Detroit. Upon hearing the evidence from new witnesses and the results of the PV examination, Gadson's motion for a new trial was granted. The polygraph (PV exam) evidence was admissible in this situation under a state precedent, People v. Mechura, 205 MA 474 (1994) which affirmed the first ruling on the use of PV examination results in a motion for a new trial, People v. Barbara, 400 Mich. 352, 25 N.W.2d 171 (Mich. 1977) (Michigan… 1995) (Matte, 1998, p. 560).
The District Court found a significant increase in polygraph reliability in recent years, and said it is now sufficiently reliable to be admitted as scientific evidence under Rule 702, in accordance with the Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (Matte, 1998, p. 563).
In his decision, Judge Little said that lie detector tests, while not infallible, have a good record of accuracy when administered by licensed testers and are now widely used in industry and government (Matte, 1998, p. 563).
In his book, Matte identifies and lists a set of criteria for court acceptance of polygraph techniques (Matte, 1998, p. 564). He notes that,
A committee has been formed under the auspices of the American Society for Testing and Materials (ASTM) to promulgate standards in the discipline of Forensic Psychophysiology Using The Polygraph. Sub-committees are developing standards in research, instrumentation, quality control, examiner education/training, standardization and ethics (Matte, 1998, p. 564).
Polygraph examinations have transcended their previous role as mere interrogation tools. In Matte's words,
A psychophysiological veracity (PV) examination, when properly conducted in accordance with the standards of the American Polygraph Association by a competent, expert forensic psychophysiologist, is no longer merely an interrogation tool, but a validated scientific procedure which has demonstrated a high degree of reliability in identifying truthful and deceptive examinees (Matte, 1998, p. 581).
With respect to the approach which policing agencies take to the administration of polygraph tests to suspects, Matte concludes that,
Forensic psychophysiology provides the criminal justice system with a tool that significantly enhances its ability to identify the Guilty and exonerate the Innocent. The modern psychophysiological veracity examination with proper safeguards should have its rightful place within the criminal justice system. This will happen only when those who administer the test willingly submit it to the scrutiny of all parties involved. But defense attorneys should not expect those law enforcement and prosecuting agencies entrenched in a non-access policy to voluntarily provide the defense access to their PV examinations without some legal prodding. Thus defense attorneys have a responsibility to those clients who may benefit from a police PV examination to seek court orders compelling those police agencies to afford their client adequate and fair representation (Matte, 1998, p. 590).
In Appendix H of his book, Matte details a 'Model Polygraph Licensing Act'. This proposed legislation, designed specifically for the State of New York, represents a substantive example of the type of legislation which North American jurisdictions could and should use as the basis of their own polygraph licensing legislation.
As early as 1964, evidence of the utility of polygraphy in court respecting family matters has been presented. Specifically,
In the American Bar Association Journal, Vol. 50, No. 12, December 1964, Roger Alton Pfaff, Presiding Judge, Consolidated Domestic Relations and Conciliation Court, Los Angeles County, California (now retired) wrote: "Since March, 1962, Los Angeles Superior Court has been utilizing the polygraph in domestic relations cases, first in child custody, and later in paternity cases. Attorneys were so satisfied with the results that now they, not the judge, suggest use of polygraphy".
On the basis of a study made of 312 consecutive paternity cases handled at the Chicago laboratories of John E. Reid & Associates, 93 percent of 589 tested parties admitted to the polygraphist that they had committed perjury when testifying in court.
This suggests that any jury/judge without polygraphy has an almost impossible task in deciding what is the truth (Ferguson & Miller, 1973, p. 19).
In a recent journal article, it was noted that polygraph results were admitted into court in the mid-1990s, and weighed as evidence during a custody case in Saskatchewan (Bartlett, 1999, p. 3).
Warren Farrell, in his book The Myth of Male Power, assertively argues that:
…if we retain laws against date rape, then we must use DNA tests and lie-detector tests whenever possible; they must be monitored by a neutral party and given a second time when in doubt. Lie-detector tests are not perfect, but it usually takes special training to fool them – training few college students and date rape litigants have had. To eliminate them as one admissible piece of evidence is to eliminate the single biggest protection men have against their own lives being raped (Farrell, 1993, p. 366).
Matte adds his voice to those who advocate for an expanded use of the polygraph in family law matters. He states:
PV examination results can be used to resolve paternity suits, effect marital reconciliation, settle child custody and visitation right disputes, and determine the veracity of accusations often made in domestic relation cases (Matte, 1998, p. 579).
Clearly, a much more assertive and judicious utilization of the polygraph must be made by all levels of the justice system. For example, policing services should be required to ask both parties, who are presenting a black and white discrepancy respecting a domestic violence event (where there is no clear evidence identifying a guilty party), if they would be willing to undertake a polygraph examination. Whichever party agrees, or if both agree, they should be provided the opportunity to undertake a polygraph test. Assuming the severity of the situation warrants it, the party which the polygraph examination shows to be deceptive - or if only one party agrees to take the exam and the results show them to be truthful, then the other party - should be arrested and charged.
It is quite clear that the results from polygraph examinations should be fully admissible in both the civil and criminal court systems.
Were the public to be made aware of the accuracy of the polygraph, and if new police procedure policies for its assertive use were established, the rates of false allegation could be expected to diminish very considerably.
Polygraphy has a long and distinguished history in North America. Its use in various venues has increased systematically since the 1920s. It has furthered the cause of justice over and over again as the above references clearly testify. As the scientific rigour of polygraphy has expanded, so too has the increased recognition of its full potential to further justice in society.
The political battles, toward securing the admissibility of polygraph evidence into the court system, have been long and hard – this battle is almost finally won as conveyed above. The expansion of jurisdictions which either permit polygraph evidence or permit discussion of its employment in relation to the issue at hand, has substantively increased over the past few decades. This entry into the court systems is growing, in part because both law enforcement bodies and the public are recognizing the many benefits of this development. Among those benefits are the reduction of false allegations, the quick discovery of truth, and, importantly, the reduction to taxpayers of the cost of the judicial system – a system which tends to be largely designed to enrich the legal community and the judiciary. This is particularly true with respect to the family law realm where the lucrative 'divorce industry' is wreaking its profound havoc with people's lives, while simultaneously rendering obscene profits to an inexcusable and unprincipled family-law legal community.
With the introduction into the courtrooms of polygraph examination evidence, the innocent in family-related disputes have much to gain, and only liars and the divorce industry will lose. The time is NOW to assertively advocate for polygraphy, to push its use over the few remaining barriers, and to ensure polygraph evidence is brought fully into both civil and criminal courts, right alongside all other admissible forms of evidence – much of which is less accurate than polygraph evidence!
Compelling evidence now exists supporting the expanded use of polygraphy in law enforcement procedures and in the court systems. People who do not support polygraph admissibility into the court systems, both civil and criminal, most certainly have a selfish, objective, vested interest in keeping this form of evidence suppressed – they include liars, and unethical, unprincipled lawyers and judges! Let's stop the abuse, end the lying, and allow the truth to prevail now!
Stan Abrams The Complete Polygraph Handbook; 1989;
Norman Ansley Quick Reference Guide to Polygraph Admissibility Licensing Laws and Limiting Laws; 12th ed.; American Polygraph Association; 1987;
Norman Ansley The Validity and Reliability of Polygraph Decisions in Real Cases; 1990;
Norman Ansley & Stan
Abrams The Polygraph Profession; American Polygraph Association; 1980;
Norman Ansley &
M. Garwood 'The Accuracy and Utility of Polygraph Testing'; Department of Defense, Washington, D.C.; 1984;
Norman Ansley &
Janet Pumphrey Justice and the Polygraph: A Collection of Cases; 1985;
Stan Bartlett 'The whole truth, and nothing but'; Regina Free Press; February 7, 1999.
Gershon Ben-Shakhar &
John J. Furedy Theories and Applications in the Detection of Deception – A Psychophysiological and International Perspective; 1990;
E.B. Block Lie Detectors: Their History and Use; 1977;
M.T. Bradley & M.E. Black 'A Control Question Test Oriented Towards Students'; Perceptual Motor Skills Vol. 87, 691-700; 1998;
M.T. Bradley, M.E. Cullen
& S.B. Carle 'Control Question Tests by Police and Laboratory Polygraph Operators on a Mock Crime and Real Events'; Polygraph, Vol. 25, No. 1, 1-14; 1996;
M.T. Bradley, V.V. MacLaren
& M.E. Black 'The Control Question Test In Polygraphic Examinations With Actual Controls For Truth'; Perceptual Motor Skills Vol. 83, 755-762; 1996;
Bill Clede 'A Quantum Leap in Polygraphy'; Law and Order; November, 1992;
Editor(s) 'Legislative Analysis: Polygraphs In Law Enforcement: Quality Control for the Future'; The Police Chief; June, 1990;
L.A. Farwell & E. Donchin 'Can the P300 be Used in the Detection of Deception?'; Society for Psychophysiological Research; Montreal, Quebec; October, 1986;
Warren Farrell Women Can't Hear What Men Don't Say: Destroying Myths, Creating Love; 1999;
Warren Farrell The Myth of Male Power; 1993;
Robert J. Ferguson &
Allan L. Miller The Polygraph in Court; 1973;
Forensic Research, Inc. 'The Validity and Reliability of Polygraph Testing'; Polygraph, Vol. 26 (4) pp. 215-239; 1997;
Anthony Gale The Polygraph Test – Lies, Truth and Science; 1988;
C. Gugas The Silent Witness: A Polygraphist's Casebook; 1979;
Charles R. Honts 'Is It Time to Reject the Friendly Polygraph Examiner Hypothesis (FPEH)?'; Paper presented at the meetings of the American Psychological Society; May 24, 1997;
Eloise Keeler The Lie Detector Man: The career and cases of Leonarde Keeler; 1984;
David T. Lykken A Tremor in the Blood: Uses and Abuses of the Lie Detector; 1981;
David T. Lykken 'The Validity of Tests: Caveat Emptor'; Jurimetrics 27: 263-70;
Rene J. Marin Admissibility of Statements (Ninth Edition); Release No. 3, January 1999; pp. 9-1 to 9-18.1; Published by Canada Law Book Inc.;
James Allan Matte Forensic Psychophysiology Using The Polygraph: Scientific Truth Verification – Lie Detection; 1998;
James Allan Matte 'Validation Study on the Polygraph Quadri-Zone Comparison Technique'; Doctoral dissertation presented to Columbia Pacific University; Published in Research Abstract, LD 01452, Vol. 1502, 1989, (228 pages) University Microfilm International, Ann Arbor, MI.; June 1989;
James Allan Matte The Art and Science of the Polygraph Technique; 1980;
Hilary McLaughlin 'High-Tech Lie Detecting'; The Leader Post – Weekender; January 16, 1999;
Office of Technology
Assessment 'Scientific Validity of Polygraph Testing: A Research Review and Evaluation – A Technical Memorandum'; Washington, D.C. – OTA-TM-H-15; November, 1983;
C.J. Patrick & W.G.
Iacono 'Validity and Reliability of the Control Question Polygraph Test: A Scientific Investigation'; Psychophysiology 24: 605-06; 1987;
Richard Putnam 'Field Accuracy of Polygraph in the Law Enforcement Environment'; Polygraph, Vol. 23, No. 3, 260; 1994;
D.C. Raskin 'The Polygraph in 1986: Scientific, Professional and Legal Issues Surrounding Application and Acceptance of Polygraph Evidence'; Utah Law Review, 1: 29-74; 1986a;
D. Raskin & J. Kircher 'The Validity of Lykken's Criticisms: Fact or Fancy?'; Jurimetrics, 27:271-7; 1987;
John E. Reid &
Fred E. Inbau Truth and Deception – The Polygraph ("Lie-Detector") Technique; 1977;
Berkeley Rice 'The New Truth Machines'; Psychology Today; June, 1978;
Vergil L. Williams, Joe
Morrison & Joanne
Terrell 'Advocating Alternative Sentencing: A Polygraph Examiner Role in the Political Economy of Alternative Sentencing'; Polygraph, V22, No.2, 150-163; 1993;
A.W. Whitworth 'Polygraph or CVSA: What's the Truth About Deception Analysis?'; Law and Order; November, 1993;