The : A Critical Appraisal

BY CATHERINE ANN MENARD

Truth, for judicial purposes, has above assumptions fail, the long been sought by man. Its elusive polygraph's results are invalidated. nature has prodded him to develop The machine records a change in numerous exploratory devices such breathing by the use of a hose as the wheel and the rack for the strapped around the subject's purpose of determining facts abdomen or chest. A medical blood quickly and effectively. A prevalent pressure cuff measures the subject's

current method purporting to blood pressure and pulse. The C separate truths from falsehoods is Galvanic Skin Reflex records the the polygraph. skin's electrical resistance by As early as the third century B.C., passing a small current through two Erasistratus observed that emotions electrodes which are placed on the accelerate the pulse rate. In 1895, subject's hands. Each sensing Cesare Lombroso experimented device is connected to a pen which with pulse rates and blood pressure records the responses on a moving while questioning suspected graph. Upon completion of the criminals and initiated the examination, the operator makes his development of the modern determination on the basis of an instrument. 1 The polygraph is an interpretation of the graph and his electrically energized device personal observations of the which, upon application to the exam1nee. body, records blood pressure, perspiration, respiration, and pulse Role of Examiner rate on a moving graph. It is evident, then that the polygraph operator plays the Theory of Polygraph crucial role. His duty is to observe Underlying the polygraph's use and analyze the subject's as an investigative technique are psychological makeup. Thus, the four assumptions: ( 1) lying gives examiner should be educated and rise to conflict; (2) conflict, in tum, trained in clinical psychology. creates fear and ; (3) the Furthermore, the examiner resulting mental state brings about observes and interprets the subject's measurable physical changes physiological responses during the capable of being accurately examination. Thus the operator recorded on the polygraph; (4) by should be skilled and trained in the studying the graph, the examiner is medical sciences. However, he is able to separate the subject's true rarely so trained. Polygraph statements from his false ones. 2 examiners usually have a police Hence, the underlying theory background. 4 The question is assumes that fear of detection therefore raised as to whether or not causes specific involuntary these examiners can be expected to responses if the subject is have the needed professional attempting to conceal the truth expertise. during questioning. 3 If any of the In addition, the possibility for

VOLUME 50, NUMBER 3, MARCH 1976 147 "The polygraph has failed to receive judicial acceptance ... "

distortion is increased by the The first reported case denying decision is old, but rather whether individual examiner's own admissibility to polygraphic its logic is still persuasive. psychological bias. Precautions are evidence was Frye v. U.S., 293 Fed. almost never taken to off set the bias 1013 (D.C. Cir. 1923), due to lack of Arguments of Opponents of the polygraph examiner. 5 This "general acceptance in the scientific The first line of attack by lack of control over examiner bias is community ." Largely since then, opponents of the polygraph has in direct contrast to the procedures results of the polygraph have been generally been upon the validity of fallowed in most social science ruled inadmissible by jurisdictions the theoretical premises upon studies and experiments. considering the issue. which the polygraph procedure is Essentially, the examiner has a Proponents view the current based. As Jerome Skolnick three-step approach to each exclusion of such evidence as based observed: "The scientific basis for subject. First, the operator on outdated precedent. While other detection is questionable." He interviews the examinee in order to areas of the forensic sciences have doubts the existence of a constant reassure the subject, to familiarize received judicial acceptance, such relationship between lying and him with the questions which will as fingerprint and firearms emotion, and asserts that: " [ there is be asked, and to observe the identification, the polygraph has a] failure to recognize that 'truth' examinee's behavior. Second, failed to be accorded such and 'falsity' are not absolute, and based upon the operator's recognition. One proponent that deviations in autonomic knowledge of the facts and complains that such rejection by the responses do not always reflect circumstances of each case, he courts "has been a thorn in the sides conscious deviations from the designs the questions to be asked of of polygraph exponents for over truth." Moreover, no proof exists the subject during the examination. two generations. "9 Commenting on demonstrating a measurable Lastly, the operator evaluates and this topic, one writer contends that relationship between emotional interprets the polygram. stare decisis is inherently variation and autonomic response. 11 retrospective and is especially Arguments of Proponents pernicious with respect to the A. Reliability Statistics The basic justification of evaluation of scientific evidence. In The polygraph test is not a admitting polygraph test results short, "Does justice prevail when precise quantitative test. It is not a into evidence is the alleged the judiciary ignores proven routinized procedure predicated accuracy of such examinations. scientific reliability and permits a upon well established relationships Numerous studies conducted by decision of fifty years ago to control whereby any researcher under­ 10 polygraph examiners and institutes a decision of today?" The issue, taking to replicate the experiment have resulted in extremely high however, is not whether the would reach the same conclusion on levels of accuracy. A typical study the same facts. But rather, it is a test conducted by Horvath and Reid The Author . .. which leads to results which are resulted in an overall 89 percent subject to diverse interpretation accuracy rating. 6 Testimony by and open to influence fro witnesses in favor of admitting uncontrolled variables. It does not polygraph results in U.S. v. Zeiger, appear that reliability statistics with 350 F. Supp. 685 (D .C. 1972), respect to diagnostic procedures claimed test results with levels of will be obtainable since it seems accuracy upwards of 95 percent. 7 conceded that one examiner cannot Less supporting, but more neutral, "make a diagnosis from another was a study conducted in 1958, by examiner's test data," 12 because the Chicago Bar Association's there has not been developed any Committee on Criminal Law, standardization in test design and which found a 5-30 percent error in procedure. It might be possible to test results, depending upon the test reliability of conclusion by ability of the operator, in addition having multiple examiners dealing to other factors. 8 Catherine Ann Menard holds a B. A. with the same subject, but no such In defense against the charge that degree in Political Science from California test on any substantial scale seems State University , Long Beach, and will polygraph evidence tends to exert receive her J. D. degree from Whittier to have been undertaken. an improper influence on the , C allege, Beverly School of Law in June , As a result of the above, the the advocates contend that it is only 1976. She is the 1973-74 winner in the I. H. does not place an expert's opinion which is being Prinzmetal legal essay competition much credence in the polygraph as considered as admissible evidence. sponsored by the Beverly Hills Bar Association , and currently does free-lance a means of distinguishing truth from In effect, the proponents visualize legal writing. mendacity. Scientists cannot be the polygraph expert as being on a This article was originally published in the expected to accept a machine par, for instance, with the medical Beverly Hills Bar Journal (Nov.-Dec. 1974) which has as its purpose the or engineering expert. and is reprinted with permission . detection of truth from falsity when

148 THE FLORIDA BAR JOURNAL the technique employed is would agree that the polygraph has imprecision of these criteria and the ~- unsophisticated and imprecise. The improved its procedure, technique, deficiency of the existing accuracy machine has been attacked as not and accuracy figures since its data must be recognized. having progressed from the inception in 1895. But unless and B. Lack of Cross Examination experimental to the demonstrable until accuracy reaches 100 percent, In the Kansas case of State v. stage. Little has been done toward the polygraph's use in the Lowry, 163 Kan. 622, 185 P.2d 147 the end of gaining scientific courtroom must be consistently (1947), the court denied the acceptance. Since the first decision challenged. It would seem that admissibility of polygraph results in 1923, most courts have implied since no method will ever be 100 on the ground that they were not that its unacceptability to the percent effective, such challenge subject to cross-examination. scientific community makes it would be untenable. But upon Several subsequent courts 16 agreed similarly unacceptable to the analysis it will be seen that if the that the vital role of cross­ judicial process. polygraph is 95 percent accurate, it examination would be impaired by The argument over the accuracy will have contained within it a 5 admitting such evidence. A figures has been a battleground of percent guarantee of injustice. machine cannot be examined or contention. Statistical studies show Regardless of which accuracy cross-examined. Its "testimony" is a broad range in reported test figures a person believes, the way in interpreted by the operator. results . There is a 25 percent range which these figures are reached Proponents took up the challenge in the published statistics, with should be examined. They are and said that the operator could be researchers Reid and Inbau based on polygraph examination cross-examined. However, one claiming 95 perce»t accuracy under results compared with a subsequent cannot lose perspective of who is on optimal conditions. 13 A study verification of , a . The accused is on trial - not the conducted by the Office of Naval misleading parameter. The polygraph operator. What the Research at Stanford Research problem is: courts do not want to do is Institute in 1964 showed 75 percent "convert a criminal trial into a trial confessions are not guaranteed evidence of 17 accuracy, and Professors undoubted guilt ... [and] ... an acquittal ... of the polygraph operator." In Sternbach, Gustafson, and Colier is obviously not absolute evidence that the such a case, the defendant's guilt or showed a figure "close to 70 accused did not commit the act . Final and innocence would be determined by percent" in a study in 1971.14 Hence, infallible determination as to whether or not how well the operator holds up the test was accurate is polygraph accuracy figures are impossible. 15 while being cross-examined. A notably inconsistent. convincing operator, himself, could Nevertheless, most observers In sum, the unavoidable convict or acquit.

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VOLUME 50, NUMBER 3, MARCH 1976 149 "Feelings regarding polygraph run high ... "

C. Bias of Examiner in their attitudes, they bring this interview and testing by the lie-detector , Next to psychiatry, polygraphyis belief in the infallibility of machines examiner; and (b) a guilt complex involving another "the most subjective type of with them into the deliberation offense of which he is guilty. examination" 18 considered for room. Thus, the mere fact that the (2) Physiological abnormalities, such as admissibility by the courts. At least machine indicated the accused lied (a) excessively high or excessively low the psychiatrist has a more is far too often considered blood pressure; extensive reputation in his favor and conclusive evidence of the (b) diseases of the heart; ( c) respiratory diseases, etc. he is called upon to draw far more accused's guilt. The machine has a (3) Mental abnormalities, such as general conclusions. More prejudicial effect upon the jury. Of (a) feeblemindedness, as in idiots, 'mportant, he rarely even looks course, the machine's unreliability imbeciles, and morons; infallible. and its inaccuracy could be (b) psychoses and insanities, as in manic depressives, paranoids, schizophrenics, The polygraph profession does explained to the jury, and the paretics, etc.; not encourage its operators to polygraph operator could be (c) psychoneuroses and psychopathia, remain objective, but rather cross-examined. However, this as among the so-called "peculiar" or requires them: would be too time-consuming and "emotionally unstable" persons-those who confusing to the jury. It would are neither psychotic nor hormal, and who to make an initial determination as to guilt or form the borderline between these two innocence, to proceed on the basis of that inevitably lead to a battle by groups. determination, to use his varied experiences counsel over the advantages and (4) Unresponsiveness in a lying or guilty in formulating questions designed to show disadvantages of the polygraph subject, because of that a liar is lying ... 19 itself. More importantly, it would (a) lack of fear of detection; (b) apparent abiiity to consciously detract from the trier of fact's control responses by means of certain mental This initial subjective determina­ attention to logic, consistency, and sets, or attitudes; tion is used in interpreting the the other basic rules of good sense. ( c) a condition of "sub shock" or . , exam1nee s responses. At present, the average person "adrenal exhaustion" at the time of the test; places a credence in the infallibility ( d) rationalization of the in Critics and proponents alike advance of the test to such an extent that recognize the crucial role played by of the polygraph which it does not lying about the offense arouses little or no the polygraph examiner. But all too deserve. emotional disturbance; (e) extensive prior to the frequently, the examiner fails to E. Abnormalities of Examiner measure up to the necessary test. The validity of the polygraph (5) Unobserved muscular movements minimum requirements. He is results are frequently criticized which produce ambiguities or misleading usually inexperienced, poorly 21 where an examination is given to an indications in the blood pressure tracing. trained, and minimally educated. extremely angry, nervous, or Upon being presented with the At present there are no controls 22 anxious subject who also happens to issue, several other courts have which would insure an examiner's be innocent. Another area of objected to the admission of competency. oncem is the closely related polygraph results because they The inventor of the Keeler problem of an innocent subject who deemed it to be ineffective on the Polygraph recognized this has a guilt complex with regard to a psychologically abnormal subject. limitation and commented: "the matter similar to the one under Proponents assert that "mental inexperienced opera tor cannot investigation. The concern over the abnormalities present no serious diagnose deception with a subject's physiological and danger of erroneous diagnosis" 23 polygraph any more than he can psychological abnormalities was because the examiner will observe diagnose a cardiac murmur with a afforded exhaustive treatment in any abnormalities in the examinee. stethoscope." 2 Consequently, he ° Henderson v. State, 94 Okla. Crim. However, a study indicated that consistently supported establish­ 45, 230 P. 2d 495, cert. denied, 342 emotionally disturbed individuals, m en t of an examination and U.S. 898 (1951). Quoting from F. who could yield erroneous licensing agency which could Inbau and J. Reid, Lie Detection diagnoses of truth and mendacity license only the most competent do not exhibit symptoms and qualified examiners. and Criminal Interrogation, the Henderson court stated: consistently suggestive of their In actual practice, abuses of bias psychological problems. A similar are inevitable. Examiners who The factors which occasion the chief study used groups of "normal," usually determine that defendants difficulties in the diagnosis of deception by the lie-detector technique may be "neurotic," and "psychotic" are telling the truth would become enumerated as follows: subjects. The study showed that not popular with defense counsel, while ( 1) Emotional tension- "nervousness"­ only are polygraph examiners less the reverse would be true for the experienced by a subject who is innocent and likely to interpret the polygram prosecution. telling the truth regarding the offense in question, but who is nevertheless affected when the subject is not "normal," D. Effect on Jury by, but also they failed to identify the Our society tends to believe a (a) fear induced by the mere fact that persons suffering from even severe machine over an expert's opinion. suspicion or accusation has been directed mental abnormalities. This results in according the former against him, and particularly so in instances where the subject has been extensively Essential to the proper an almost religious authority. Since interrogated or perhaps physically abused functioning of the polygraph is: (1) jurors are no clifferent from others by investigators prior to the time of the a conscious awareness of the truth

150 THE FLORIDA BAR JOURNAL ... and 42) a fear of detection. Where However, the polygraph is FOOTNOTES: orie or both of these fundamental currently in the news. Its credibility 1 John L. Kuipers, "The Polygraphic elements is lacking in the examinee, is being proclaimed by proponents Technique: A Selective Analysis," 20 Drake nothing more than an inconclusive as persuasive as F. Lee Bailey. As a Law Review 330 (1971). result can be produced. result, two recent (1972) federal 2 Jerome H. Skolnick, "Scientific Theory and Scientific Evidence: An Analysis of Lie Self-Incrimination trial courts and one Los Angeles trial Detection," 70 Yale Law Journal 699,700 Another argument against the use court re-examined the issue and 96 (l l). R d k "Th Ad . 'b'li f of polygraphic evidence in court is ruled that the interpretation of 3Lee J. a e , e m1ss1 1 ty o the one which contends that such polygraph test results was Polygraph Results in Criminal : A Case admissible as evidence. Specifi­ for the Status Quo," 3 Loyola Law ] ournal evidence is violative of an (Chicago) 289,290 (1972). individual's constitutional privilege cally, the decisions were: United 4 Skolnick, note 2, supra, 727. against self-incrimination. 24 States v. Ridling 350 F. Supp. 90 5 Ibid., 727. 6 In the case of Schmerber v. (E.D. Mich. 1972); United States v. Frank S. Horvath and John E. Reid, "The Zeiger350 F. Supp. 685 (D.C.1972); Reliability of Polygraph Examiner Diagnosis California, 384 U.S. 757, 764 (1965), of Truth and Deception,"62]. Crim. L., C . & the Supreme Court stated in People v. Cutler (Superior Court, P.S.281 (1971). dictum: County of Los Angeles). 7L. James Blackwood, "Evidence - How The Frye standard of "general Some Courts Have Learned to Stop Worry­ Some tests seemingly directed to obtain acceptance" was ref erred to by the ing and Love the Polygraph," 51 N.C.L. Rev. "physical evidence," for example, lie 900, 902 (1973). detector tests measuring changes in body Ridling and Zeiger courts, but was 8 John S. Boyle, "A Bar Association's function during interrogation, may actually not applied. Both courts used Viewpoint Regarding the Lie Detector," 50 be directed to eliciting responses which are limited instructions and permitted ]. Crim. L. 99 (1959). As quoted in Clarence essentially testimonial. To compel a person H. Romig, "The Dilemma of the to submit to testing in which an effort will be lengthy cross-examination to point out to the jury the shortcomings of Admissibility of Polygraph Evidence," made to determine his guilt or innocence on Polygraph, I (September, 1972) 133. the basis of physiological responses, whether the polygraph; consequently, the 9Clarence H. A. Romig, "The Polygraph in willed or not, is to evoke the spirit and history trial judges felt that they were able the Courts," 2 Polygraph 4 (March 1973). of the fifth amendment. to "control the jury's perception of 10Robert J. Ferguson, Jr., "Polygraphy v. the polygraph's reliability." 29 The Outdated Precedent," 35 Texas Bar] ournal, Questions as to the voluntariness effect of the Ridling and Zeiger State Bar of Texas 531 (1972). of the subject's physiological 11 Skolnick, note 2, supra, 727. decisions was to remove the 12See supra note 1, at 335. Taken from F. responses would arise because even "general acceptance" standard and Inbau and J. Reid, Lie Detection and if the subject were willing to take in its place formulate rough Criminal Interrogation 110, 111 (3rd ed. the test, the actual responses of the guidelines to delimit the 1953). 13F. Inbau and J. Reid, Lie Detection and examinee's body are by definition circumstances of admission. 25 Criminal Interrogation 110, 111 (3rd ed. involuntary. In spite of the recent judicial 1953). A few commentators contend recognition and approval of the 14Radek, note 3, supra, 296. that the admission of polygraph 15Ibid., 297. polygraph, there still remain 16 results into the courtroom could unsettled arguments and Henderson v. State, 151 Neb. 368, 37 26 N.W. 2d 593 (1949); United States v. lead to the abolition of the jury. unanswered questions. Stromberg, 179 F. Supp. 278 (S.D.N.Y. While others do not fore see such a Have we progressed very far 1959), Taken from James R. Schirott, "Lie drastic step, they do envision the from the deception test used by the Detector Tests: Possible Admissibility Upon role of the jury and its function Indians hundreds of years ago? Stipulation," 4 The John Marshall ] ournal of Practice and Procedure 244, 245 note ( c) diminished greatly. Their test was: Polygraphic evidence is (~l. based on the premise that lying inhibited the 11 adek, note 3, supra, 298. 1 distinguished from scientific data secretion of saliva in the mouth - an accused Ibid., 293. 20 insofar as it does not simply aid the was ordered to chew rice and if it stuck to his Jack Streeter and Melvin M. Belli, "The jury in its determination; but rather gums he was considered guilty. 30 'Fourth Degree': The Lie Detector," 5 it "purports to decide veracity as to Vanderbilt Law Review 549, 551 (1952), Feelings with respect to the Taken from Keeler, "Debunking the 'Lie­ 27 the crucial issue in a case." It is the polygraph run high on both sides. Detector'," 25 ]. Crim. L. & Criminology function of a jury to "base its finding Proponents are largely convinced 153, 159 (1934). of fact upon credibility of that judicial inertia is preventing 21Donald H. J. Hermann, "Privacy, The wit n es ·s es . " 2 8 H owe v er, the Prospective Employee, and Employment what, to them, seems like an Testing: The Need to Restrict Polygraph and testimony of the polygraph introduction of modem science into Personality Testing," 47 Washington Law operator will frequently determine musty court procedure. Review 80 (1971). the defendant's guilt or innocence Opponents view the polygraph as 22 United States v. Stromberg, 179 F. because the jury tends to treat the a throwback to more superstitious Supp. 278 (S.D.N.Y. 1959); People v. Davis, polygraph results as conclusive. 343 Mich . 348, 72 N.W . 2d269 (1955); Statev. days when the aristocracy utilized Lowry, 163 Kan. 622, 185 P. 2d 147 (1947). Judicial Treatment of Polygraph trickery against the general public 23Kuipers, note 1, supra, 335. Evidence to ascertain truth. 24People v. Schiers, 160 Cal. App. 2d 364, Although the polygraph has been Where the one group sees a 324 P. 2d 981 (1958); taken from Schirott, note 16, supra, 251. used extensively in nonjudicial genuine cure to certain judicial 25Radek, note 2, supra, 300. areas and pretrial investigations, its ailments, the other group sees a kind 26 Forkosch, "The Lie Detector and the test results, until recently, have been of sorcery. Courts," 16 New York University Law denied admission as evidence in the The controversy over the Quarterly Review 205 (1939). 27Radek, note 2, supra, 296. courtroom. Traditionally, the polygraph will not die down. The 28Ibid., 296. courts have regarded the polygraph legal profession as a whole will have 29Blackwood, note 7, supra, at 906. with suspicion. to take a stand on the issue. D 30Skolnick, note 2, supra, at 696.

VOLUME 50, NUMBER 3, MARCH 1976 151 Since the adoption in 1968 of judicial selection. Not surprisingly, Article V of the revised Florida most demonstrate that the actual JUDICIAL Constitution, there has been operation of judicial elections and considerable debate concerning merit systems, the recruitment ELECTIONS how judges in this state should be methods subject to the most selected. Prior to the constitutional empirical scrutiny, falls short of revision, judges were elected by expectations. But the fact that either partisan ballots. With the passage of system may in reality fail to meet What the evidence shows HB 468 in 1971 (F.S. Ch. 105) the demands of a model need not implen1enting Article V, Florida imply that the issue is moot. Indeed moved to a nonpartisan ballot and it implies that those interested in to a merit system for filling interim judicial recruitment should vacancies. Since these changes went systematically appraise the into effect, several efforts, all strengths and weaknesses of each unsuccessful thus far, have been system. On the basis of previous made in the Florida Legislature to research conducted by political extend the interim merit plan scientists and legal scholars and procedure, also known as the data currently being analyzed Missouri Plan, to the selection of all concerning the selection of judges judges in Florida. in Florida, I shall review some of the Invariably, whenever the issue of findings related to the operation of judicial selection arises proponents judicial elections. Some of the and opponents of each system findings concerning selection in expound homilies which are Florida are derived from a intended to provide the "evidence" questionnaire that was sent to all for their position. Thus, one camp judges in the state. 2 A later article movingly argues that the election of will review some of the problems judges is consistent with the tenets associated with merit plans. of democratic theory, that it allows Judicial Elections the judiciary to be responsive The concept of an elected toward changes in public opinion judiciary emerged during the and insures ultimate accountability Jacksonian era as part of a larger of judges to the electorate. movement aimed at democratizing Non partisan elections in particular, the political process in America. It so the argument goes, minimize the was spearheaded by reformers who potential for political influence contended that the concept of an intruding upon the judicial function elitist judiciary, appointed by the by having the election center on the Executive for life tenure, did not candidates and issues, not their square with the ideology of a respective party affiliations. government under popular control. In recent years those disillusioned Indicative of the eventual impact with judicial elections have claimed that this trend was to have on the that a merit system forges the political process is the fact that most BY BURTON M. ATKINS benefits of several systems into one: states admitted to the Union from 1832 to 1933 provided for the Burton M. Atkins is an associate professor ... the Missouri Plan embraces a number of of government at Florida State University. commendable features. It combines the election of judges. Inevitably, He earned his bachelor's degree at the democratic notion of accountability to the however, the political necessity of University of Wisconsin (1966) and a master electorate with an intelligent method of having judges engage in the kind of of arts (1969) and Ph.D. (1970) at the selecting qualified candidates for judicial partisan political campaigns that University of Kentucky. His research on office. The necessity of facing the electorate drew courts and local political judicial decision-making and local criminal on his record provides a judge with an justice has appeared in a variety of incentive of judiciousness, and the fact that machines suspiciously close professional journals. He is also the coeditor he runs on his own record rather than against together led to a feeling among of Prisons, Protest, and Politics. This article is that of an opponent allied with a specific those concerned with the quality of based on research conducted through the political party goes far toward taking the justice that there was an inherent Governmental Law Center at the Florida courts out of the more crass aspects of State University College of Law. politics. 1 inconsistency between the role of The author wishes to pay particular thanks an impartial, independent judiciary to Paul Puryear, Provost of the Division of on the one hand, and partisan Social Sciences and Law, and to Joshua Amidst the clamor of contentions election campaigns on the other. It Morse, Dean of the Florida State College of on both sides of the issue, numerous was thus not surprising that as Law, for their support in this project. Neither they, nor the C allege of Law bear any studies have been conducted which political organizations captured responsibility for statements of fact or provide some basis for a systematic control of some judges, a opinion in this article. appraisal of the various methods of movement would emerge geared to

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