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Polygraph Policy Model for Law Enforcement
By RONALD M. FURGERSON Special Agent/Assistant Section Chief Document Section Laborator; Division Federal Bureau of Investigation Washington, DC
The intense nationwide contro considered written policy for polygraph should adopU The best policy for a par versy surrounding polygraph has usage. That policy, when applied judi ticular department will depend on many caused use of the technique, including ciously and uniformly, will do much to factors and conditions operating within use by law enforcement, to be subject allay fears and charges of polygraph the department. to intense scrutiny. A number of State abuse and help prevent loss of the legislatures,l as well as the Congress technique's availability by legislative GENERAL POLICY of the United States, have passed or action. It will also serve as a ready CONSIDERATIONS are considering bills which impact on source of information for investigators Approval Authority and/or could prohibit certain polygraph and officials who might have questions CD Departmental policy should specify testing in the private sector.2 Sentiment concerning polygraph usage. which individuals in the agency are au for removal of polygraph testing from Incorporated into this article is a thorized to approve particular types of the arsenal of investigative techniques chart designed to assist law enforce polygraph examinations. It is recom available to law enforcement has been ment executives and managers in mended that approval authorities be expressed recently in the media.3 Also, quickly identifying most, if not all, of the designated by title rather than by name the interest in polygraph generated by policy areas that should be addressed to preclude having to change the policy continuing media attention has height for various polygraph applications. If document when a ~<-W incumbent is ap ened the vulnerability of policy admin these policy areas, plus a few items pointed to the position. istrators and polygraph examiners,4 which follow later in tt,is article, are cov The rank/position level which is ap and even municipalities,S to civil/per ered in a department's policy, and if su propriate for approval authority will vary sonnel liability actions from citizens pervisors and examiners adhere to the from department to department, de who believe their rights were violated; policies, use of polygraph will be rea pending on such factors as department that they were examined using un sonable, appropr!~tc:, and defensible. size, structure, and the confidence the professional methods and procedures, The commt~nts which follow de chief policy-making authority of the de or that they suffered emotional scribe certain aspects of the chart. partment has in the officers to exercise damage.6 Numbers appearing in the text corre sound judgment and discretion in the To preclude legitimate criticism of spond to the circled numbers on the use of polygraph. Examples of the level a polygraph program and to promote chart. Remember that the chart sets out of authority which might be appropriate the professional and ethical application areas which should be addressed in de for various investigative applications of the technique, each law enforcement partmental policy. However, suggested are set forth in the chart. Because poly department which uses polygraph policies, examples, etc., contained graph effectiveness is a function of how should have a well-structured, carefully herein are just that and should not be and when the technique is used in the construed as necessarily the best or only policy which a department could or
______June1987 7 •
143916 U.S. Department of Justice National Institute of Justice
This document has been reproduced exactly as received from the person or organization origint'lting it. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the National Institute of Justice. Permission to reproduce this copyrighted material has been ~~a1 Bureau of Investigation •
to the National Criminal Justice Reference Service (NCJRS). Further reproduction outside of the NCJRS system requires permission of the copyright owner.
• H ••• each law enforcement department which uses polygraph • should have a well-structured, carefulIy considered written policy for polygraph usage." •
investigative process, it is critical that stances-·weighing the exigen the approval authority be an experi cies of the situation against enced, mature investigator who has a the improved capability of the proven record of investigative insight. technique to fully resolve For particular routine polygraph issues resulting from greater applications, it may be preferable to au investigative thoroughness. thorize examinations by use of a stand 3) Verify that there is reasonable ing order or as a matter of departmental cause to believe the person policy, For example, if a department re to be examined has knowledge quires that all applicants be poly of or was involved in the graphed, considerable administrative matter under investigation, Special Agent Furgerson time will be saved by a standing order or is withholding information prescribing the conduct of the examina relevant to the investi- tions and setting forth how and at what gation, Dragnet-type screening stage in an applicant's processing the of large numbers of suspects examination is to be administered. should be avoided. 4) Consideration should also Approval Criteria be given to the following: When authorizing an examination, -Age factor (a waiver must the approval authority should: be obtained fre:-r: a parent or 1) Determine that investigation guardian if a minor is ex by other means has been amined); as thorough as circumstances -Known physical or mental reasonably permit. Poly- abnormalities; graph effectiveness and accuracy -Ensuring full security for are greatest w"en relevant an examinee in custody; issues and the examinee's ~mowl -Ensuring pending prosecution edge of the matter under is not jeopardized; and investigation have been narrowly -Results of any prior polygraph defined and well-defined. examinations afforded the 2) Insure that the proposed exam examinee. inee has been interviewed Although he may not be the final and that consistent with the "approv;>.l duthority" for polygraph ex circumstances of the case, the aminations, the examiner must make development of additional the ultimate determination concerning information by means of poly the suitability of an individual for poly graph is essential and timely graph testing. Persons who are not for further conduct of the inves sufficiently sound physically or mentally tigation. Use of polygraph should not be afforded a polygraph ex should not be a "last resort" amination. Prior to testing, the person effort to salvage a case. The de to be examined should have had ade cision as to when polygraph quate food and rest. The examinee should be used in the investiga should not, at the time of the examina tive process must be based tion, be under the adversA :;:iects of al on individual case circum- cohol, narcotics, drugs, stimulants, or sedatives. During the pretest interview, the examiner should determine whether the person to be examined is presently • 8 FBI Law Enforcement Bulletin ______W' diii&IIU A T lUI
• " ... the examiner must make the ultimate determination concerning the suitability of an individual for polygraph testing."
r~ceiving or has in the past received satisfy the examiner's curiosity. Histor addressed from a policy standpoint, medical or psychiatric treatment or con ically, the failure of examiners to ex namc.:y, applicant testing, internal in sultation. ercise good judgment in the matters vestiQati(1n.s, criminalilaw enforcement If the examinee exhibits symptoms they discuss with examinees has been Investigations, examinations conducted of mental or physical fatigue, narcotics a primary source of criticism concerning as a service to other agencies, and I3X addiction or the influence of intoxicants, polygraph.8 lt is Important. therefore, aminations of convicted subjects. If a mental disorder, etc .• the polygrapn that departmental policy identify those polygraph is not permitted in certain sit examination should no! be conducted if. issues which are not to be addressed uations by a department, departmental in the examiner's opinion, the condition unless they are (in a particular case) di policy should state this specifically. This would inhibit the individual's ability to rectly relevant to the investigation. Re will preclude the possibility of having an respond or otherwise cause the individ ligious beliefs or affiliations, beliefs and examination administered inadvertently ual to be an unfit candidate for exam opinions regarding social matters (e.g .• contrary to the "intentions" of manage ination. integration. abortion, unions, political ment. If certain types of examinations A mental disorder could cause the preferences, etc.). and information con are conducted only on rare occasions examinee te !ose ~ontact with reality or cerning sexual opinions and practices or as an exception to general proce become violent during the test, and an are examples of areas which should be dures, the Written policy should be spe examinee experiencing physical dis avoided. cific as to the situations wherein use of comfort, disabilities, or defects may suf polygraph could be approved. fer abnormal physiological reactions to Use of Polygraph Examination Re the test. If the examiner has any doubt sults APPLICANTS concerning the ability of an examinee to @ Departmental policy should recog It has been well-documented that safely undergo examination, an opin nize that polygraph is not a perfect in polygraph is highly useful in the appli ionfstatement should be obtained from vestigative process and that polygraph cant investigation process, and many the examinee's physician before pro results, both examiner opinions follow law enforcement agencies use it roU • 10 ceeding with the test. ing chart evaluation and (even) con tinely for such purposes. During a re Finally, polygraph examinations fessions and admissions obtained from cent survey of National Academy stu should be given only to individuals who examinees, are subject to error. There dents at the FBI Academy, about 50 freely and without threat or coercion fore, results should be considered in percent indicated that their depart consent in writing to be examined and the context of a complete investigation. ments used polygraph during the appli who cooperate with and follow the ex They should not be relied upon to the cant investigation process. Its use is aminer's instructions during the exam exe/usion of other evidence or used as predicated on its value in helping to in ination process. the sole means of resolving questions sure the suitability of applicants for law of verity. Absent prior stipulated agree enforcement work (history of criminal or Issues ment with a defendant and his counsel, other disqualifying behavior as defined ® Matters discussed with examinees polygraph examiner opinions as to truth by department policy) and for verifying during the polygraph interview and or deception, based upon interpretation the accuracy and completeness of in questions asked during the actual test of polygraph charts, are not intended formation furnished on application ing must be scrupulously limited to the for use as evidence in criminal, civil, or forms or statements of personal history matter under investigation and items administrative courts. Statements, ad or during interviews. 11 It is also believed strictly pertaining to the actual conduct missions, confessions, etc., made by polygraph serves as a useful deterrent of the examination. The examiner must examinees during a polygraph exam to those seeking to penetrate law en avoid any suggestion of impropriety or ination are normalh' .admissible.9 forcement departments for untoward appearance that any part of the exam purposes. ination process is being used to elicit TYPE INVESTIGATION @) Departmental policy should be unrelated personal information or to There are basically five types of clear as to which classes of applicants polygraph usage which are common in are, or may be, required to submit to law enforcement and which should be
• June 1987 I 9 'M 5 • "w ItHWWiSW *NIl. EYJiiflI'6l'MI&UUP me ifA445A&i 1m • "Managers should be aware of polygraph limitations and use good judgment in evaluating and making investigative and personnel decisions based on polygraph findings."
pre-employment polygraph examina Generally, it is preferable that puly Criminal Investigation Involving tions. Employment application literature graph be used only for those areas of Departmental Officer or Employee and application forms should specify if interest which cannot be explored (Voluntary) a polygraph examination will be. or may effectively by other means, e.g., thor If an officer or employee becomes be, required during application process ough background investigation, appro involved as a subject or witness in a ing and that the purpose of the exam priate records checks, and medical ex criminal investigation wherein prosecu ination will be to verify the accuracy and aminations and psychometric testing or tion is the objective, he or she should thoroughness of information furnished. psychiatric interviews.12 This is consist be treated the same as any other cit While this procedure is useful in alerting ent with the philosophy that polygraph izen, insofar as possible use of poly applicants to the use of polygraph. it should be a complement to, and not a graph is concerned (given only if the also insures uniform application of the substitute for, other investigative tech employee freely volunteers to take the technique and acts as a deterrent niques. or in this case. for traditional examination). This is necessary to pro against the SUbmission of false/in personnel selection methods. tect the employee's constitutional rights complete information by applicants. If Questions concerning the appli and permit use of any statements or ad successful completion of a polygraph is cant's basic honesty would be appropri missions made during the examination a necessary prerequisite for employ ate. As with polygraph examinations to be entered into evidence. In these ment according to departmental policy, conducted for other purposes, ques situations, as in all other law enforce all literature concerning employment tions used for applicant examinations ment applications, it is recommended opportunities should indicate this fact. must be reasonable and as unobtrusive that no adverse inference be drawn Those departments which do not as possible and should be such as from a subject's refusal to submit to an use polygraph as a routine procedure would be appropriate in any personnel! examination. Adverse inferences may during applicant processing may elect applicant interview situation, or which be drawn in administrative inquiries and to use it only in those instances when could be asked on the department's internal investigations, but refusal to questions concerning the applicant's personnel application form. submit to examination in these situa suitabiiity for &mployment arise during tions should not constitute the sole the background investigation. Poly INTERNAL INVESTIGATIONS basis for disciplinary action. ® graph can be very valuable when prob Polygraph is often useful in inves lems of conflicting information develop tigations involving law enforcement Internal Investigation/Administrative and other investigative techniques are agency personnel. The majority of Inquiry (Required) ineffective in resolving the matter. De these uses occur in situations set forth Polygraph can be highly useful in partments using polygraph in this man on the accompanying chart. investigations involving an employee's ner should include language in their conduct where prosecution is not the ul polygraph policy and/or hiring policy Personnel Security/Integrity timate objective. For reasons of fair which clearly provides for the use of Program ness and to preclude allegations that polygraph on a case-by-case basis as Polygraph is used by some depart polygraph is being used to coerce or in required to resolve background inves ments to insure an employee's suit timidate an employee, or to otherwise tigation issues. ability for initial or continued assign single them out for "special treatment," Once a department decides to use ment to selected special duties, e.g., departmental policy should specify polygraph as part of its applicant proc vice, narcotics. IIl,~,ilgence, organized those types of situations which could essing, policy should be established to crime. etc. 13 It is essential that such ex result in an employee being required to define clearly the purpose of the exam aminations be administered under a submit to a polygraph examination. It is ination and the specific issues to be ad consistent, uniform policy to demon best if the policy requires the existence dressed during polygraph testing. Great strate that fairness, not favoritism, is in of a substantial objective basis (not just care should be exercised in this area to volved in these critical selections. The a vague suspicion or intuition) to be ensure that polygraph is used wisely. examination should be concerned only lieve that the employee was involved in with the officer's freedom from "com a serious violation of law or departmen- promise" or some other type of coer cive influence prior to and/or during the sensitive assignment.
'. 10 Fallaw Enforcement Bulletin ______• mIlE :nan atlB He us fA,A iiLGIlUNllMGldlM up
tal regulation. The types of forbidden It should be noted that just be of examinations. The examiner must activities or situations which might re cause a person making an allegation have impeccable creden!ials as an ex sult in a requirement for a polygraph ex "fails" a polygraph examination, based aminer and be respected for his compe amination should be specified in the upon the examiner's interpretation of tence, integrity, and high ethical stand policy. Examples of such situations are the polygraph charts, the rossibility still ards. set forth in the sidebar. ® exists that there was an element of truth Objectivity and accuracy will be in the allegation. It is possible that an promoted and ethical considerations Person Making Allegation accuser, by either exaggerating the na satisfied by use of an eXaminer who is If a citizen or another departmental ture and extent of an employee's not more than slightly acquainted with employee makes an allegatiol1 of mis wrongdoing, or by lying about or deny employees being tested. It is even pre conduct against an employee, poly ing personal il1volvement in the wrong ferable that examiners not know the ac graph may be useful in determining if doing, may be found deceptive during cused employee or the person lodging there is any SUbstance to the allegation. the polygraph examination, while actu the allegation.14 To accomplish this, Of course, if it is possible to establish ally furnishing some truthful and accu smaller departments may use an exam the veracity of the allegation by other rate information about the employee's iner from another department or means, that course should be followed. wrongdoing. agency,'5 or even to contract for the But, as is often tile case, when a se It is also possible that an accuser services of a commercial examiner. rious allegation is made and other ave may honestly believe he is being factual To protect the confidentiality of in nues for substantiating its truthfulness in what he is reporting, and yet be to ternal investigations and prevent further are not available, polygraph may be the tally mistaken. Because polygraph is embarrassment and extraneous psy only viable alternative. only useful in determining the exam chological stress to an officer, consid While polygraph has potential ap inee's perception of the truth, and not eration should be given to having tr.e plication for testing both the accuser actual or "ground truth" as polygraph examination conducted at a site where and the subject of the allegation, expe researchers say, the accuser may clear the testing will not be apparent to fellow rience has demonstrated the ad the polygraph as "non-deceptive" with employees. Use of an offsite location, visability of testing the accuser first. the result that the polygraph findings when needec, will prevent rumors and Frequently, persons who are making are misleading. Managers should be unnecessary damage to an employee's spurious allegations out of revenge, aware of polygraph limitations and use reputation. jealousy, or for whatever motive will re good judgment in evaluating and mak fuse to be tested or will admit during ing investigative and penwnnel deci LAW ENFORCEMENT APPLICATION testing that the allegations were un sions based on polygraph findings. Be The primary use of polygraph in founded. When an accuser does con cause an element of uncertainty the law enforcement community is for sent to testing, the polygraph process is normally exists concerning polygraph investigations of criminal violations. All valuable in that it helps to narrow the is chart interpretation and the exact na the general policy considerations dis sues and eliminate exaggerations and! ture of an examinee's psycho cussed above apply to these applica or partial truths. Another reason for physiological responses to questions, it tions, including policy on approval au testing the accuser first is that it often is always recommended that if at all thority and criteria, limitations on issues permits resolution of the matter without possible, no decisions be made solely to be addressed, and use of polygraph having to unnecessarily subject a val on the basis of an examiner's inter results and examiner conclusions. ued employee to an examination. It is pretation of polygraph charts. CD One area deserving special com unfortunate that there will be situations ment is the use of polygraph to verify in where examination of the employee will Examiner Selection in Internal formation furnished by citizens and in be the only viable means for the em Investigations formants, especially those whose ployee to demonstrate his innocence ® FOi' obvious reasons, it is important reliability has yet to be established or is and clear his name. Yet, it is fortunate that examiners chosen to work internal that there isa means. investigation cases be selected with special care. There should never be a compromise concerning the quality of the examiner selected for these types
• June 1987 11 • H ••• department policy should also include provisions for establishing that polygraph examinations were taken freely and vo;untarily."
suspect. Consideration should be given request polygraph assistance for one of lion of polygraph results and examiner to establishing a policy that requires their investigations or in connection conclusions. A briefing is especially crit polygraph be considered prior to signifi with some type of personnel action. ical for noninvestigative agencies cant commitments of manpower or fi There is generally no reason why the whose officials may have no basic un nancial resources solely on the basis of support should not be given, provided derstanding of the investigative process unsubstantiated information furnished the requested examination meets the and the proper role of polygraph. by citizens or informants. This can be standards for approval set forth in the especially useful in matters involving al policy of the department furnishing the POST-CONVICTION EXAMINATIONS legations against prominent individuals support. ® Following their convictions, but and public officials whose reputations In those situations where poly prior to sentencing, the examination of could be unduly tarnished by the mere graph support fpr particular applica defendants may be very useful. Exam existence of an investigation. Fre tions, e,g., applicant processing, is fur ination results may legitimately influ quently, the use of polygraph for such nished on a routine basis, an ence sentencing and be helpful in a "verification" or "confirmation" pur interdepartmental memorandum of un number of post-con'/iction investigative -, poses will disclose there is no basis for derstanding is appropriate. It should de· activities. Examples of particularly good i. the allegations or that they were grossly scribe the terms of the agreement and uses of polygraph in post-conviction cir exaggerated or distorted. In either the responsibilities of each department. cumstances are contained in the side case, valuable investigative time will For polygraph support requests or bar. have been saved and possible embar a nonroutine nature, it is useful for the The use of polygraph following a rassment to a citizen of the department requesting agency to formalize re trial. however, should normally be lim will have been prevented. quests in writing on a case-by-case ited to legitimate, continuing investiga An interesting application of poly basis. Requests should set forth the na tive interests. Except. under the most graph is to aid in establishing "probable ture of the investigation/inquiry and compelling circumstances, such as -.'. briefly describe the investigation con when ordered by a judge, post-convic \ cause" where a warrant is sought and part or all of the basis for its issuance is ducted to that point. The polygraph ex tion examinations should not address predicated on infOimation furnished by aminer can be briefed on specific de issues such as the veracity or guilt of an informant or witness of unknown re tails by an official of the requesting the defendant concerning the basic trial liability.16 Polygraph, in this situation, agency most familiar with the case. The issue. Polygraph's proper role is not to can add weight to the probable cause formal request should also specify the usurp the function of the trial process. documentation. issue(s) to be addressed, any special When polygraph is used as part of a In view of the inherently stressful precautions or instructions to be ob plea or pre-sentencing agreement, the nature of polygraph examinations, it is served, and the type of examination re terms of the agreement should be care 1 recommended that departmental policy port desired. The exact questions to be fully documented and approved by the j prohibit the use of polygraph for the asked and their wording should be left judge, defense attorney, prosecutor, dragnet-type "screening" of large num to the discretion of the polygraph exam and the defendant. bers of suspects in criminal investiga iner. tions. Likewise, the use of polygraph as When another department re MISCELLANEOUS an expedient substitute for logical in quests polygraph support for the first CONSIDERATIONS vestigation by conventional methods time, or when new requesting offfcials Polygraph Consent Forms should be forbidden. Limiting polygraph make their initial requests for support. In addition to whatever method is usage in this manner will do much to they should be furnished a copy of the used for adVising examinees of their improve its effectiveness.17 instructions in force at the examining constitutional rights, department policy agency so there will be no misunder should also include provisions for es POL YGRAPH ASSISTANCE TO standing regarding the policy followed tablishing that polygraph examinations OTHER AGENCIES when conducting an examination. It were taken freely and voluntarily. This Occasionally, other departments, would also be wise for the examiner to law enforcement and otherwise, may brief officials from the requesting agency concerning polygraph theory, limitations and capabilities. and evalua-
12 " FBI Law Enforcement Bulletin ______• 1I-__WII"lIt1.iIII_Ili·IIII' __i'li'l!t1IIIlIiiII!&L •••• ___ SB'II .....II .. II1lIl.i!lll!liliRIIrYfJIiIiB_- '.MUg'S.... L&
can probably best be accomplished unlll the examinee either tests non sons, it is highly useful to have the case with a preprinted form developed in co deceptive or the eXaminer concludes officer present to witness the polygraph operation with the department's legal that deception is the only apparent rea interview. counsel. Consultation with legal coun son for ttle noted reactions to relevant Experience has also taught that sel is important to insure that all legal questions. Under normal circum witnesses, while of great value, should requirements, including pertinent judi stances, there is no requirement that not be physically present in the poly cial precedents from recent court deci each retesting and/or interview phase graph room during the examination sions, have been satisfied. As a mini be preceded by additional rights ad process. The examiner must establish mum, a polygraph consent form should visements. However, any deviation rapport with the examinee in an emo establish that the examinee realizes from normal circumstances, such as a tionally charged atmosphere. This can that the examination Is to be taken significant delay between phases, normally be accomplished best in a freely and voluntarily, that it will be dis should trigger consideration as to the one-on-one situation with no one else continued at any time at the request of advisability of reminding examinees of present in the room. Further, deceptive the oxaminee, and that the examinee their constitutional rights. 19 examinees are more likely to tell the may refuse to answer any particular truth when confr~d with examination question during the examination. Monitoring/Recording Polygraph results if the case~fficer, before whom In designing a polygraph consent Examinations the examinee has previously main form (or a consent to interview with While there is no absolute require tained a facade of truthfulness and co polygraph form, which may be a more ment that polygraph examinations must operation during previous interviaws, is appropriate name), it is also useful to be monitored, experience has demon not present. Being alone with the impar include wording which indicates that the strated that significant benefits may be tial and objective examiner presents an examinee is consenting to an "interview derived from this practice. There are no optimum opportunity for the examine~ j with polygraph" or that the polygraph appreciable drawbacks to such wit to be candid regarding the issue with .:;l examination is an interview process nessing. minimal damage to his self-esteem and "'i• which includes the use of a polygraph In attaching the polygraph compo pride. J nents, examiners must make physical f instrument. The purpose is to preclude Necessary Witnessing of examina l misunderstanding concerning the na contact with examinees when placing tions can generally take place free of •i ,, ture of the examination process, which components to their fingers, arms, and outside interfer€tnce or distraction by includes pretest and post-test interview! the brea~t area of their bodies. With use of one-way windows and sound re interrogation phases as well as the ac female uAaminees, it is advisable to producing (monitoring) eqUipment. tual testing phase. The component have a witness to this procedure to as Some situations, however, involve phases of the polygraph process are sure that the examiner's conduct was space limitations and physical condi described adequately elsewhere. 18 entirely proper. tions which mitigate in favor of closed What is critical to understand is that fol When an examinee is believed to circuit television for witnessing. lowing indications of "deceptive" re have been less than candid during poly While, given certain conditions, it sponses during the conduct of the test graph testing, an attempt is normally may be possible for witnessing! ing phase, it is normal and proper for made to elicit truth through questioning monitoring to be accomplished legally the examiner to attempt to determine and persuasive reasoning. Confessions without the knowledge of examinees, the nature of any problems the exam or incriminating admissions are often there is generally no compelling reason inee had in responding to the test ques made by examinees as a result of this why that practice would be advisable. tions. If sensible and adequate reasons approach. These confessions and ad Experience has shown that advising ex for the observed reactions are given by missions are sometimes later retracted, aminees of Ihe presence of witnesses the examinee, additional tests may be changed, or denied. During the course on monitoring devices prior to the ex conducted to verify that the examinee of examinations, examinees also fre amination has not inhibited or impacted has indeed been candid. The test-inter quently make subtle, but significant, ad adversely on the examination process. view-retest process continues justments to previous statements made during the investigation. For these rea-
______June 1987 I 13 - u FF 2S &
• Ii••• experience has demonstrated that significant benefits may be derived from [monitoring polygraph examinations}.
of policy, that such witnessing be ac complished by witnesses located out side the polygraph suite, and that all such witnessing be conducted with the prior knowledge of examinees. Policy should also specify that witnesses are to be limited to those with a legitimate interest in the investigation and/or those who will serve as government wit nesses to the examination process. The 1ecording of examinations may be advisable or required in some situa tions.
Examiner Competence As examiner competence is of pri j mary importance in the operation of a successful polygraph program, it is rec ~ ommended that departments establish j minimum (certification) standards for their examiners. The following are sug gested: "\ '··i -Graduation from a reputable , . '. polygraph school (The American 1 ,I Polygraph Association I accredits polygraph schools 1 Witness observes polygraph examination through which (ldhere to prescribed curric l one-way window. ",I ula and instructor reqUirements); -Participaticm in periodic retraining 1, The notification on witnessing/monitor herein, and yet have none of the disad £":;minars/courses at established ing of examinations can be accom vantages which may be associated with intervals-preferably not to ex plished during execution of the advice recording. As with any other interview ceed 2 years; and of rights and polygraph consent proc or interrogation situation, many things , -Conducting a minimum number "I ess. are said which would be misleading In establishing departmental pol when viewed only in the context of in of examinations annually (The FBI requires its examiners to con "I icy, administrators should also r.onsider formation captured on a recording. De I whether polygraph examinations, or pending on examiner competence and duct a minimum of 48 per year J to retain certification). .j portions of the polygraph examination the availability of witnesses who have ; process, should be recorded. Occa received special instruction, recording , Quality Control sionally, good judgment and/or circum of the testing phase of the examination stances, such as a court order, may dic process could be beneficial by provid01- Experience has shown the value of tate the advisability of or require ing a method whereby use of physical quality control as an integral part of law recording. In most situations, however, countermeasures by the examinee enforcement polygraph usage. In such the advantages which would accrue might be better detected. a program, polygraph charts and docu fmm recording (either audio or video or Therefore, with regard to witness mentation are reviewed "in the blind" both) are available through routine wit ing/monitoring, it is recommended that by another senior and well-qualified ex- nessing/monitoring as recommended absent circumstances which make 'I impossible or impracticable, polygraph (continued p. 19) examinations be witnessed as a matter
I '. 14 FBI Law Enforcement Bulletin ______, ______Z
II•••IIIIIIlUIIIIIIlIl •••••• II&!iIl_lIlIJll&illltlIlllIUUf811211111IU illl~!i_IIII."•• fl'ft5lll1lllI!lJI;lIIl1i11'lll!ii_.il!iilil!!il ItlI!!I611.UlIW•••• Ulllllla •••• III1.· •• III"1II •••• _
• H ••• examiner competence is of primary importance in the operation of a successful polygraph program .... "
botham. Defending Law Enlorcemenl Officers Agamst Personaillabihty in Consfltutlonal Tort Litigation:' FBI Law Enforcement Bulletin. vol. 54, No.4. April 1985. pp 24-31. & No.5, May 1985, pp. 25-31. SA munlclpahty may also be named as a delendant In an action under 42 U.S.C. sec. 1983 charging a consfltutlonal viola lion only where the Individual law enforcement officer'S conduct was the result 01 a custom. policy. or practice of the muniClpahty. For a diScussion 01 municipal habllity ariSing from constltu· honal tort hhga!lon, see. Daniel L. Schofield, "Law Enlorcement and f30vernment Llabllily: An AnalysIS 01 Recent Section 1983 Liligatlon." FBI Law enforcement Bulletm. vol. 50, No.1, January 1981, pp. 26- 31- 6Accordlng to a "News· Lines" article. U.S. News And World Report, p. 77. April 1, 1985. 'Polygraph tests can cause emollonal damage, the Minnesota Court 01 Appeals declared in affirming a lower court's S60.000 award against a bank. After depOSits were missed, two tellers were asked to take lie delector lests. One began having nightmares In whicn the polygraph turned into an electric chair. She also was unable to work with money. Psychiatrists testified that the test had led to post-traumatfc- stress syndrome •. _." 7For a comprehensive and instructive example of a polygraph program policy statement and Implementing instructl;;W.. see, D6partrrent 01 Defense (DOD) PolygrMI'· P'ogram Directive, Number 5210.48. December 24, 1984, ",~Ich estabGJhed basic DOD policy lor polygraph usage, and DOC Polygraph Program Regulation Number 5210.48-R. January 1985. The regulation. which implemented the polygraph policy. specifies Ihe circumstances under which the polygraph mayor shaff be used, prescribes procedures lor conducting examinations, and establisheS standards lor the selection. Iralning, and supsrvlslan of DOD polygraph oxamlners. The dtrective and regulation were published In Polygraph Law Reporter, vol. 8, No. I, March 1985. ".nd No.2, June 1985. respectively, Norman Ansley ed .• (Severna Park, MD.: American Poly· graph AssociaUon). For anolher treatment of this subject area. see, Richard O. Arthur. "Recommended Law-Enforcement Polygraph Rules & Regulations," The Journal of Polygraph ScIence, vol. 21, No.3, Novem· ber-December 1986. The Journal Is published by and available through the National Training Center of Lie Detection. Inr.. 200 West 57th Streel. New York. NY 10019. sSee, e.g .. Stephen Budlansky. "Lie Dptectors," aminer to insure that they substantiate Footnotes The Atlantic. vol. 254, No.4, October 19M, p. 40, , Norman Ansley. QUIck Reference GUIde 9James K. Murphy, "The Polygraph Technique the conclusion of the testing examiner to Polygraph Admissibility. ucensing Laws. and Past and Present." FBI Law Enforcement Bullel/n, as to truth or deception. Departments umlflng Laws. 11 th ed. (Severna Park. MD: Amencan vol. 49, No.6. June 1980, p. 4. Also, sae, Polygraph Polygraph Ass()(;iatlon, 1987). Law Reporter. Norman Ansley erl., (Severna Perk, too small to est.ablish their own quality 2H.R. 1524. "Employee Polygraph Prolection MD.: American Polygraph AsSOCiation) for abst,acts control program may be able to avail Act." 99th Cong., 2d Sess. (1986) and S. 1815. of Federal and State cases wherein Issues related • Polygraph Protection Act 01 1985." 99th Cong •• 1st to admissibility of polygraph, or other forms of truth ver· themselves of such a program through Sess. (1985). If enacted these bills would prohibit Ificatlon. are addressed. cooperation with another department. If private sector employers Irom admimstenng polygraph ,oBllly Dickson. "Pre·Employment Polygraph I examinations to employees or prospective employees. Screening of Police Applicants." FBI Law Enforcement .~ it is impossible to obtain a quality con 3Paul Berg. "Plea lor More Restraints on Use But/etin. vol. 55, No.4. April 1986, pp. 7-9 • i trol review locally, charts and documen of Polygraph:' The Washington Post. January 11 The Accuracy and Utility of Polygraph Testing 13. 1987. Health Secl., p. 25. (Washington, DC: Department 01 Defense, 1984), tation from particular important cases 442 U.S.C. sec. 1983 reads: 'Every person pp. 9-10. Also see, generally. David E. Nagle. "The who. under color 01 any statute. ordinance, regulation. Polygraph In Employment: Applicallons and Legal may be submitted to the FBI for rev!ew. custom. or usage. of any State or Terntory, subjects. ConSiderations," Polygraph. vol. 14. No.1, March 1985. They should be sent to: Director, or causes to be sUbjected. any clllzen 01 the United States pp.1-33. or other persons within Ihe jUrisdiction thereof 12Frank S. Horvath. "The Police Candidale Federal Bureau of Investigation, to the depnvalion of any rights. pnvileges or Immumtles Polygraph Examination: Considerations Jar the Police secured by the Constitution and laws, shall be Admmlslrator" PolIce. June 1972, pp. 33-38. Attn: FBI Laboratory, Washington, liable to the party injured on an action at law. suit DC 20535. In eqUity. or other proper proceeding for redress." For a diSCUSSion 01 constltulionally based CIVil htlgallon against law enforcement olflcers. see. Jeffrey Higgln' ,J.:
"
______~_. ____~_- ____ June 1987 . 19 • =
13The value 01 requiring polygraphs for officers assigned to law enforcement intelligence units IS pOinted out in Basic Elements of IlIlelHgence. A Manual 01 Theory. Structure and Procedures for use by Law Enforcement Agencies Against Organized Crime, E. Drexel Godfrey, Jr., Ph.D., and Don R. Harris. Ph,D., (Technical Assistance Division, Office of Criminal Justice Assistance, Law Enforcement Assistance Administration, U.S, Department of Justice, p. 97, 1971). 14Rlchard O. Arthur, "Should a Law-Enforcement Polygraphist Examine His Fellow Officers1-NOI" The Journal of Polygraph Science, vol. 9, No.3, Novem ber-December 1974. pp. 3-4; cf., James C. Young. "Should a laW-Enforcement Polygraphist Examine His Fellow Officers1-YESI" The Journal of Polygraph Sc/enco, vol. 9. No.3. November-December 1974, pp. 1-2. 15Malvin Kilbo, "Interagency Agreement," FBI Law Enforcement Bul/elin, vol. 55. No.5, May 1986, pp. 14-15. 16Herlong v. State, 236 Ga. 326, 223 S.E.2d 672 (1976). In this murder prosecution, II was ruled that the court did not err In admitting evidence that a witness had been given a lie detec!Jr test and that warrants were oblalned for tM defendant . Immediately thereafter; such testimony was admissible to explain the conduct of police officers. 17Supra note 15. l8Sc/entilic Validity of Polygraph Testing: A Research Review and Eva/uation-A Technical Memorandum (Washington, DC: U.S. Congress, Office of Technology Assessment. OTA-TM-H-15, November 1983), pp. 11-25. Also S&;;, Stanley Abrams, A Polygraph Handbook for Attorneys (Lexington, MA: Lexington Books, 19n), pp. 69-97. 19While this additional advisement of rights may not be necessary. It may be useful In subsequent legal proceedings In showing that given the lotality of the circumstances, there was a knowing and Intelligent waiver as required under Miranda v. Arizona, 384 U.S. 436. 66 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). See Vassarv. Sorem, 763 F.2d 975 (8th Clr. 1965) for the court's discussion on the voluntariness of con fessions obtained following the testing phase of polygraph 9xamlnatlons. See also, United States v. Eagle Elk, 711 F.2d 80, 63 (8th Clr. 1983) cert, de nied,-U.S.-, 104 S. Ct.l015, 79 L.Ed.2d 245 (1964). This court held that the defendant had, prior to his polygraph examination. knowingly and intelligently waived hlG right to have counsel present at a post polygraph Interrogation. 1 .-1 I 1
j J,
1 1 .~ -i 1
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••t 20 FBI Law Enforcement Bulletin ______! '1 " I 'I ! ("'---
.. Approval: When authorizing an examination !r.8 F,): rqrapn .~X3:r,:f'i.l~,on~) 'Nli ';,:,~ 'k~,',~dLJcted If In 1 approving authority should determine thai an in the OplrHOn of the examiner, any of the following in vestigation by other means has been as thorough as Clf hibit the Individual s ablilty to respond or otherwise cumstances reasonably permit. recognizing that polygraph cause the individual to be an unfit candidate for ex effectiveness and accuracy are greatest when relevant :s amination: sues and the examinee's knowledge of the matter under It is apparent that !i1e examinee is mentally or investigation have been narrowly and well-defined. The physically fatigued. proposed examinee should have been interviewed, and consistent with the circumstances of the case, the de 2. The examinee is unduly emotionally upset, in velopment of additional information by means of polygraph toxicated. or adversely under the influence of a should be essential and timely for further conduct of the in sedative, stimulant, or tranquilizer. vestigation or Inquiry. There should be reasonable cause 3, The examinee is determined to be addicted to to believe that the person to be examined has knowledge narcotics. of or was involved in the matter under inquiry or investiga tion, or is withholding information relevant to the inquiry of 4. The examinee is known to have a mental disor investigation. The following should be considered: d8r which causes the examinee to lose contact with reality or which would reasonably result in a. Determine if age is a factor. If a minor is to be ex the examinee becoming violent during a test. amined, ensure a waiver is obtained from a pl'lrent or guardian. 5. The examinee is experiencing physical discom fort of significant magnitude or appears to pos b. Are there any known physical or mental abnor sess disabilities or defects which, in malities? themselves, might cause abnormal physiologi c. If the exanlinee is in custody, can full security and cal reactions. control be assured? d. If the examiner has any doubt concerning the ability d. Will the uSe ot polygraph jeopardize pending pros of an examinee to safely undergo an examination, ecution? obtain an opinion/statement from the examinee's physician before proceeding with the test. e. What werb the results of any prior polygraph exam inations afforded the examinee? Issues: The following issues are not to be ad Although not the final "Approval Authority" for poly 2 dressed unless directly relevant to the investiga graph examinations, the polygraph examiner must make tion or inquiry and then only in keeping with established the ultimate determination concerning the suitability of an departmental regulations/policy: individual for polygraph testing. Due to the nature of poly graph examinations, the following guidelines are appropri a. Religious beliefs or affiliations; ate: b. Beliefs and opinions regarding social matters; a. Persons who are not in sufficiently sound physical or mental condition will not be afforded a polygraph c. Information concerning sexual opinions and prac examination. tices. b. A person to be examined should have had adequate food and rest before the examination. Examinee Use of Examination Results: Polygraph should not, at the time of the examination. be under 3 examinations are aimed at developing information the effects of alcohol, narcotics, drugs, stimulants, which was unavailable prior to the examination (e.g., con or sedatives. During the pretest interview, the exam fessions, admissions against interests, the identification of iner will specifically inquire of the person to be ex false/exaggerated informant information, false exculpatory amined whether he/she is presently receiving or has statements, false claims by alleged "victims," and the de in the past received medical or psychiatric treatment velopment of additionaL i~vestigative avenues). Results or consultation. are to be considered in the context of a complete inves- . Gatlor) Th~y dre n.)t to be retied on to the excllJs:on ':' ,,8rIOI~Sl'i affec: (.If l'ihlbll the employee In the Impar ::r,er eVidence Jr t..sed as the sole means of resolv1ntl tial and effec;ive oeriormance of the employee's du illestlons of verity. Polygraph examiner opinions as to lles: ~ruth or deception based upon interpretation of polygraph :1 The intentional and unauthorized destruction, muti charts are not intended for use as eVidence In criminal. lation, alteration, misplacement, taking, falsification, civil. or administrative courts. Statements, admissions. or other impairment of previously existing docu confessions, etc., made by examinees during a polygraph ments or evidence in the department's possession examination are admissible. or control:
e. Use or unauthorized dealing in controlled sub stances, as defined under the Comprehensive Drug Employment application literature and forms Abuse and Controlled Substances Act of 1970, Title 4 should specify that accuracy and thoroughness of 21, United States Code, by department employees information furnished on the application are subject to ver during the course of their employment; or ification by polygraph examination. f. The furnishing of false statements or the failure to candidly disclose information concerning prior crimi nal activities requested m.:.lng the course of his/her Selection of a polygraph examiner to conduct ex employment processing. 5 aminations of department employees must be han dled with special care to insure objectivity. Consideration may be given to using an examiner from another depart ment who does not know the examinee. Also, if the site of Use of polygraph should be considered prior to the department's polygraph suite is near the examinee's 7 making significant commitments of manpower or fi work space and the fact that the employee was being nancial resources solely on the basis of unsubstantiated tested would be readily apparent to the employee's peers information, particularly in sensitive investigations or when and fellow employees, thereby unduly increasing the psy information which is to serve as case predication is not chological stress on the employee, good judgment may 'j. readily verifiable by other means. .1 dictate conducting the examination away from the em 1 ployee's own office/precinct.
The fact that a subjecVsuspect was requested to 8 submit to a polygraph examination and refused to The denartment must establish the existence of a do so should not be recorded in any type of investigative 6 substa~tial objective basis to suspect that the em report in a manner which could reasonably be construed ployee is involved in one or more of the following situa as prejudicial to the individual. tions.
a. The intentional and unauthorized release of sensi tive, protected information (including, for example, the disclosure of information which is prohibited by Post-conviction continuing investigative interests law or regulation) with the reasonable expectation 9 include investigation to resolve issues that were that it would ultimately be disclosed to those from not central to the issues adjudicated by the jury or court. whom the information is protected and would se Examples are: riously and adver~ely affect a departmental func a. Perjury during trial; tion; b. Defendant's compliance with plea bargaining ar b. Serious questions concerning an employee's iela rangements/conditions; tionship with or allegiance to an organized criminal element; c. Accuracy and completeness of information furnished by cooperating witness; and c. The iIIElgal or improper exercise of influence, coer cive or otherwise, by an individual or group on an d. Validity of extenuating and mitigating circumstances • employee, which could reasonably be expected to bearing on sentencing considerations. ~·t
o. POLYGRAPH POLICY MATR!X TYPE INVESTIGATION PREOICATIO~ APPROVAL AUTHORITY CONSEQUENCE OF FAILURE TO ISSUES USE OF POLYGRAPH EXAMINATION SPECIAL REUUIREMENTS -'" - .-~ TAKE OR COOPERATE RESULTS • - "& CONSIDERATlOIIS .': .' CD ," DURING EXAM ; _.® ® APPUCANT NEED TO: .. ~ P~~"eIOlloCer NO JOB t-.e-eoom ITem C'OefCl\lI! torces One lactat te De ~ea It\ :. .... Seooe.,OI any -.le$lyle' ~Sloens ,pr~teUl'TWl.at<>n) .~e~r..; Aa:TW'ldit"ctrveOf1IC~ acono.l<>not~nl f'1cS1ory Of criminal or atnef SUITABILITY DEtERMINATION • s~ De scrLl(lU!OUSJy J,tnrteo to • Verifya::cutKl/ & eotn()Ieleoes.s -Personne-l ~oon Board ~ye,Obeh;Mor :flOSe areas Of Ie~malt' IOleft'st as i APPUCAIITS. 01 info. on 1OO'cahCM'I . '" :.. Acc1s11CY and CCIrl'IP'eteness 0' ., oeloned by oepattment DOIoC)' .~ S_o._.PoIocy .,10 en ~iOn 'arm "oj ~~ • ~ ouestions or conflicts .eng CkJmg Dack\)found wwesbgal()r'l ...:.;..::.:2:: .':':'-I PERSONNa SECURITYI NEED TO: pers&,nelOlflCel'l 0encaI at Pa1c:cahon It\ ISSUES PERTAINING TO One ta,:tor to De considef~ It\ eltet'CISe soeoal care ., select.,,, IHTEGRITY.~AOGRAM insure emoioyee's lUiLabikty tor Adrrw\oSlr.atrveOlfcet! or 'emo~.' trcmspeaal auty or SUITABILtrv OF EMPLOYEE SUITABILITY DETERMINATION ~aotte.QtnlOef ntlaI or COn!nJeO ass.gnmm1 10 Per$OOnet ~bon Board ""0""<'" t:-· MSISY...ne."10 particutarly ae5eded SDeOaI dutlf!S. e,g.• $ensdMi d\ItIe. or tre«lOm from natcQlCs. llIello.genoe. D.c.. ~ Stanoll"l!;i CXGef.PcHocy'" ® wee. . ··compromise" ~ 10 or OUfW'l; elc.. AS delined Dy QePllf1r/'let'll us-onmen'
OEPARTMENTAl fHVESTlGA TlVE NEED l Chte C" POioce NONE 1!.$IoIe$r~llo INVESTIGATIVE DtRECTION OFFICER/EMPLOYEE fume- juslihCll10n as lor use in Owec1or of ~ubItc Salety The ollce.- u ~ee BASIC INVESTIGATIVE THRUST (VOluntary) Bnyl'lves1108110n Orteclor Su::~o(n~nl 01 snouIo De trealed the same as Siale ;OIICe any orner cltl~n w~ Hoon""c. PatrOl suomasSoOI'Ilo ¥I eawnnaloOn ® Stal~ Surea .. ~ lnyest""tlQn IS on a VOU'naty oaSIS INTERNAL INVESTIGATIONS DEPARTMENTAL SuDstalional DOje:;t
;:::~:*:::::::::~:~~5~?'::::::-::~5~~--:::::::::::3~~;;;::::~:=::":;::':;:.;:;:=~:~~f.~ii.~~~~~~~:::::':::::::::::--- ..:: ,.:.l:·····:=::k···:·:·· ··············:;:.:::::k.. ·O::· ..~.~._.::t:::'-: .• :::-.:~ ••: _ :::-::;".,::":::-: _!t:.:-:::. ••..•::.. ••• .::"U:r..:"'::-.-.:=-_ ·::r..::_.:····:._:--:;l:.. .:~;:· LAW ENFORCEMENT UlVESTIGATIVElOPERATIONAl Onnsoon D-$: ,.sSIST ANCE TO OTHER LEGITIMATE .Cn.et ::· Poke Oepenc:s- UPOn :lfCUrn51a"Ct:-S ISS..eS relevanr 10 REPORTED TO REOUESTING BE- alef110 ,eouesls for el,am.na. AGENCIESI INVESTIGATIVE NEED I o.ft!C1Qr c· =.. bItC Sa1ely anO re;ulalrDns. 01 reouest'"; BASIC INVESTIGATIVE THRUST AGENCY tOt a!)pJoon.,ue use 1-enS 01 QUesloona~ prOCfIf!~, Of Law Enforcement Deoat1menlS I when feQUesteC It\ aCCOfcance =, "0'""=> r.a.~ ~loe.a' O"'etlGnes Ot OTHER WIIh ecndl10ns 01 .nteroepaJ1· Siano,"; 0-021 PoIoc) rmo&oealrQt\5. AGENCIES I menal agreements I ;;:;-,;;==~::,"'';'-=::==S:::;."!!:::::. I .;:::;{ffiili:ili[:::~:'::;::::!~:::::,::~~::::- _.:::l;; .::::~,:.;:::~.:::::;:-. _:;:':::::::'::;;:':::::-.!"::::'::.~~::::!!?:::::::;::::1::: ••.•.... :'::::!;:'::.:.:::::.:::.;:::::••.•..•.• :.::::::.:::::.:;::;::::.:::.:;:.:::.:;:.::::::.:m::;:::::.::.;::.:.:;';::;:::;;:.:;!.:-::,•• ",•• PO~ CONVICnOHt ReQWed n lurt/"loe'fenc.e Of "COn' O.WSOOO ().s:·d P,ec"'..cl MAY INFLUENCE PLEA LIMITED TO ISSUES WHICH May .,lIueocft SENTENCING I' e.am IS conaucleo as Dall c· a PRE·SENTENCING t~ Ift¥e$tooal.~ .nlerests ~ Comma:-:"'O QIICf!' AND SENTENCING PREDICATED E:XAMINATION AND POST CONVfCTION clea 01 Dfe·5(>ntencro; .~eef:lenl (COtIhr'luI"O It\veSI.galonJ Ar'~nl S"l;~utc:3 not aODress ISSUeS INVESTIGA liVE DIRECTION l~ms 01 If>r aO'l!"efneni snoulC bfr ® .1l; ..aatt:O dl.CW"ig lUdoal ca'efUlly Ooc:umenleo ana lIea·ovea :"':':f:1!oO'"Qs ::t 1'"\e pJCIge Of'lersc attorne!"' ana :--oseculO" POST COHVICTIOtl POST CONVICTION' May ORDERED/REOUESTED be Ch.e· =. PO"Ce MAY INFLUENCE POST L .... ire 10 SPECIFIED ISSUES Possoble 121;:10· ..., POST TRIAL PC'Y¥,~:Jh shCNlo be usee of'" M~ PRE·SENTENCING BY TRIAl. JUDGE OR DefENSE O.,eC1Ot c" ;...oa.c Sa~etr TRIAL JUDICIAL JUDICIAL DETERMINATlONS r"~f'If'If'f only ~e-, I~ mOSI ATIORNEY (VrraClly Guoll of delenoanl DETERMIHATtoH$ C:"'l~J1otr;J 01 ctlcumsl.1r'1te$ C:Ct1Clffi""llf"lglr.a!rsS-ueJ POI.;ruph $ DIODe' r~ 1$ "C· ·0 .. s_": I~ Iv-CloOn et If'"e!' ~ a : ....t; .. .- . )" " '. -4. -----~-\ _.---. . .~ l~ , , "