Case Western Reserve University School of Law Scholarly Commons

Faculty Publications

1994

Polygraph Evidence: Part I

Paul C. Giannelli Case Western University School of Law, [email protected]

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Repository Citation Giannelli, Paul C., "Polygraph Evidence: Part I" (1994). Faculty Publications. 339. https://scholarlycommons.law.case.edu/faculty_publications/339

This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Forensic Science: Polygraph Evidence: Part I

By Paul C. Giannelli*

In 1989, two noteworthy poly­ polygraphy to have gained general graph cases were decided. In United acceptance among physiological and States v. Piccinonna1 the Eleventh psychological authorities.''6 Circuit concluded that polygraph evi­ Thus, within the span of three dence was admissible even in the ab­ months two courts reached diametri­ sence of a stipulation. The court cally opposed views on the reliability based its decision in part on ''new of polygraph evidence, both basing empirical evidence and scholarly their respective opinions on "recent opinion which have undercut many scientific research. .' •· Sixty years after of the traditional arguments against polygraph evidence was first ex­ admission of polygraph evidence. "2 cluded in Frye v. United States, 7 the According to the court, there ''is no controversy continues. Indeed, Frye question that in recent years poly­ itself was overturned by the U.S. graph testing has gained increasingly Supreme Court in 1993.8 widespread acceptance.' '3 This is the first of a two-part article The second case, Commonwealth on polygraph evidence in criminal v. Mendes,4 was decided by the Su­ trials.9 This part focuses on the scien­ preme Judicial Court of Massachu­ tific issues and procedures. The sec­ setts. In 1974, that court had decided ond examines the legal issues, such a landmark case admitting polygraph as admissibility. evidence without stipulation.5 In Mendes the court abruptly changed directions and excluded polygraph 6 406Mass. at 201, 547 N .E.2d at 35- evidence, basing its opinion in part 36. on ''the failure of the basic theory of 7 293 F. 1013 (D.C. 1923). 8 Daubert v. Merrell Dow Phanna­ *Albert J. Weatherhead ill & Rich­ ceuticals, Inc., 113 S. Ct. 2786 (1986). ard W. Weatherhead Professor of Law, 9 Polygraph testing, however, raises Case Western Reserve University. This additional legal issues, such as preem­ column is based in part on P. Giannelli ployment screening. These issues are & E. Imwinkelried, Scientific Evidence governed by the Employee Polygraph (2d ed. 1993). Reprinted by permission. Protection Act of 1988. 29 U.S.C. Part II of this column will appear in §§ 2001-2009(1991). With limited ex­ an upcoming issue of the Criminal Law ceptions, the act prohibits the use of poly­ Bulletin. graph tests for preemployment screening I 885 F.2d 1529 (11th Cir. 1989). or during the course of employment. See Note, "The Employee Polygraph Protec­ 2 /d. at 1533. tion Act of 1988-Should the Federal 3 /d..at 1535. Government Regulate the Use of Poly­ graphs in the Private Sector?, " 58 U. 4 406 Mass. 201, 547 N.E.2d 35 Cin. L. Rev. 559 (1989); Note, "The (1989). Employee Polygraph Protection Act of 5 Commonwealth v. A Juvenile, 365 1988: A Balance of Interests,'' 75 Iowa Mass. 421, 313 N.E.2d 120 (1974). L. Rev. 539 (1990).

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Underlying Theory ries that have been proposed to ex­ plain a subject's reactions. 12 Modem polygraph procedures de­ veloped over a long period of time, Critics of the Theory commencing around the turn of the 0 Critics argue that the physiological century .1 The most common poly­ responses caused by the fear of detec­ graph examination (the control ques­ tion have not been shown to be differ­ tion technique) is based upon two ent from physiological responses premises: (1) The psychological caused by other emotions: stress caused by the fear of detection produces involuntary physiological [T]here is no reason to believe that responses and (2) a polygraph exam­ lying produces distinctive physio­ iner, based on these responses as re­ logical changes that characterize it corded by a polygraph machine, can and only it. . . . [T]here is no detect deception. A report by the Of­ set of responses-physiological or fice of Technology Assessment otherwise-that humans emit only (OTA) explained: when lying or that they produce only when telling the truth. . . . The basic theory of polygraph test­ No doubt when we tell a lie many ing is only partially developed. of us experience an inner turmoil, The testing process is complex and but we experience a similar turmoil not amenable to easy understand­ when we are falsely accused of a ing. The most commonly accepted crime, when we are anxious about theory at present is that, when the having to defend outselves against person being examined fears de­ accusations, when we are ques­ tection, that fear produces a mea­ tioned about sensitive topics-and, surable physiological reaction for that matter, when we are elated when the person responds decep­ or otherwise emotionally stirred.13 tively. Thus, in this theory, the polygraph instrument is measuring Proponents, however, do not claim the fear of detection rather than that there is a special physiological deception per se. And the examin­ response that indicates deception. er infers deception when the physi­ Rather, they believe that changes in ological response to questions physiological reactions in response to about the crime or unauthorized activity is greater than the response 12 See Davis, "Physiological Re­ to other questions.11 sponses as a Means of Evaluating Infor­ mation,'' in The Manipulation of Human The "fear of detection" theory, how­ Behavior 142, 160- 165 (A. Biderman & ever, is but one of a number of theo- Zimmer eds. 1961) (discussing condi­ tioning theories (the conditioned re­ 1° For a history of the development of sponse theory, the conflict theory), and the polygraph and the extentof its present the threat-of-punishment theory). day use, see Barland, "The Polygraph 13 Kleinmuntz& Szucko, ''O n the Fal­ Test in the USA and Elsewhere," in The libility of Lie Detection," 17 Law & Polygraph Test: Lies, Truth and Science Soc' y Rev. 85, 87 (1982). See also Lyk­ 73 (A. Gale ed. 1988). ken, ''The Lie Detector and the Law,'' 8 11 U. S. Congress, Office ofTechnolo­ Crim. Def. 19, 21 (May-June 1981) gy Assessment, Scientific Validity of ("But people do not all react in the same PolygraphTesting: A Review and Evalu­ way when they are lying and, more im­ ation-A Technical Memorandum, portant, any reaction that you might dis­ OTA-TM-H-15 (1983) (hereinafterOTA play when answering deceptively you Report), reprinted in 12 Polygraph 196, might also display another time, when 201 (1983). you are being truthful" ).

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different types of questions indicates [T]he polygraph is not simply a deception. machine or instrument that signals whether a person is being trutlu"'ul Instrument or deceptive. The instrument can­ The physiological responses used not itself detect deception. A poly­ in polygraph testing are changes ii1 graph test is very complex and blood pressure-pulse, respiration, depends heavily on the interaction and galvanic skin resistance. 14 The between the exan1iner and the indi­ polygraph machine simultaneously vidual being tested, and requires and continuously measures and re­ that the exan1iner infer deception cords these physiological reactions or truthfulness based on a compari­ on a graph or chart (i.e., polygram). son of the person's physiological Blood pressure-pulse is measured by responses to various questions. a sphygmomanometer (i.e., blood The quality of the questions asked pressure cuff that is placed on the . depends in part on what informa­ subject's arm; respiration is mea­ tion the exanliner already has about sured by pneumograph tubes that are the person being questioned.17 fastened around the subject's abdo­ men and chest; and galvanic skin re­ Even the proponents of the poly- sponse is measured by electrodes that graph technique agree that the exam­ are attached to the subject's fmger­ iner, and not the machine, is the cru­ tips. 15 cial factor i.1 arrivi.1g at reliable There seems little question U�at a results.18 The examiner's expertise is quality polygraph machine can accu­ critical in (1) determining the suit­ rately measure and record t.IJese re­ ability of the subject for testing; (2) sponses.16 The machine, however, formulati_ng proper test questions; (3) &etects neither deception nor the fear establishing the necessary rapport of detection; it provides only a re­ with the subject; (4) detecting at­ cording of physiological responses. tempts to mask or create chart reac­ It is the examiner who, based on these recordings, infers deception. tions, or other countermeasures; (5) stimulating the subject to react; and Role ofthe Examiner (6) interpreting the charts.

The examiner's role is critical be­ Even though the examiner is the cause it is the examiner who decides linchpin of the procedure, proponents whether there is sufficient indication acknowledge that there are serious of deception. The OTA report states: problems on iliis score. One authority has commented that ''a substantial

14 Some machines are also equipped to proportion of those who conduct tests record muscular activity. These tracings in the public and private sectors lack may reveal efforts to "beat" the machine adequate training and compe- and in some cases provide independent deception criteria. J. Reid & F. lnbau, Truth and Deception262 (2d ed. 1977). 17 OT A Report, supra note 11, re­ 15 The galvanic skin resistance or elec­ printed in 12 Polygraph at 196 (statement trodermal response involves the measure­ of John Gibbons, Director of Office of ment of changes in the flow of electrical Technology Assessment). current. /d. at 275-291. 18 J. Reid & F. Inbau, supra note 14, 16 See State v. Dean, 103Wis. 2d 228, at 5 ("[T]he most important factor in­ 235, 307 N.W.2d 628, 632 (1981) ("A volved in the use of any such instrument quality macPJne accurately measures and is u\e ability, experience, education, and records these body responses"). integrity of the exarrtiner himself'').

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tence. "19 others have observed that interview. 23 "[p]olygraph examiners in the The pretest interview serves a vari­ United States, as a whole, are poorly ety of critical functions. First, it is 0 trained. "2 used to acquaint the subject with the The American Polygraph Associa­ effectiveness of the technique; this tion accredits polygraph schools. The will allay the apprehensions of the private schools conduct a-seven-week truthful subject and stimulate the de­ course, while the Department of De­ ceptive subject's concern about the fense (DOD) Polygraph Institute runs prospect of detection.24 Second, the a 14-week course. Many states also interview is used to assess the suit­ have licensing statutes. In addition, ability of the subject for testing. The one authority recommends three examiner may be alerted to some con­ years of full-timeexperience, includ­ dition, such as a physical ailment,25 ing 250 forensic cases (not employ­ low intelligence, 26 or the use of medi­ ment screening).21 A number of state cation,27 that may affect the test re­ licensing statutes as well as the De­ sults. Third, test questions are formu­ partment of Defense require continu­ lated with the subject's assistance ing education (typically 20 hours per during the interview. year). The DOD Polygraph Institute, the American Polygraph Associa­ Types ofExaminations tion, the American Association of Police Polygraphists, and various re­ There are several differenttypes of gional and state polygraph associa­ polygraph examinations. Originally, tions conduct specialized and annual examiners used the "relevant-irrele­ courses. vant question" (RI) test. Relevant questions are incriminating ques­ Procedure tions, and the response to such ques­ The polygraph technique involves tions are compared with the subject's several steps, the most important of response to irrelevant or neutral ques­ which are the pret�st interview and tions. The main criticism of the RI the examination of the subject while test is its underlying assumption that attached to the machine. These steps an innocent person will not react to are preceded by a preliminary investi­ the relevant questions: "Because rel­ gation22 and followed by a posttest evant questions may produce rela­ tively strong reactions, even when 19 Raskin, "The Polygraph in 1986: answered truthfully, many innocent Scientific, Professional and Legal Issues subjects would be expected to pro­ Surroundin g Application andAccep tance duce deceptive outcomes on the of Polygraph Evidence," 1986 Utah L. Rev. 29, at 66-67. "As bad as the situa­ incident under investigation and the sub­ tionis in the federal sector, it is generally ject of the examination. J. Reid & F. worse in the local law enforcement agen­ Inbau, supra note 14, at 11. cies and in the private sector. '' !d. at 68. 23 Unlike the pretest interview and the 20 Honts & Perry, ''Polygraph Admis­ examination itself, the examiner need not sibility," 16 Law & Hum. Behav. 357, remain objective in the posttc;:st inter­ 375 (1992). view. Indeed, its prin cipal function is 21 Barland, ''Standards for the Admis­ usually to elicit a con fession from those sibility of Polygraph Results as Evi­ subjects considered deceptive. !d. at 4. dence, " 16 U. West L.A. L. Rev. 37, 44 24 !d. at 13-14. (1984). 25 !d. at 233. 22 The preliminary investigation is de­ 26 !d. at 247. signed to provide the examiner with as much information as possible about the 27 /d. at 236.

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test.''23 Other authorities disagree, formulated to elicit either a yes or arguing that RI test, ifproperly used, no response. There are no surprise may be usefuJ.29 Despite the criti­ questions; the examiner reviews the cism, the RJ[test is stillused today. questions with the subject during Later, the control question tech­ the pretest interview to ensure that nique was developed as an improve­ t.h.e subject understands them. ment of the relevant-irrelevant Several different types of ques­ exam. 30 It is the most common type tions are used in the CQT. Jlrrelevant of examintion in criminal cases and or neutral questions are used to obtain is discussed below. a subject's normal truthful reactions A third exa.mination, the "Guilty and chart tracings. Examples of irrel­ Knowledge" or "Concealed Knowl­ evant questions are: "Is your name edge" test, is used when important [subject's name]?" "Are you over information about a crime has not 21 years of age?'' Relevant questions been disclosed to the public. Conse­ concern the subject matter under in­ quently, only the perpetrator, and not vestigation. For example: "Did you other suspects, will possess this take $100 from your. employer's knowledge and react to it during the safe?" The third type of question is test. The theory of this test differs the control question. Control ques­ markedly from the RJ[ and control tions concern ''an act of wrongdoing question technique (CQT) tests, of the samegeneral nature as the main which are deception tests. The re­ incident under investigation, and one auiremeni of concealed information to which the subiect. in all mobabili­ ireatly litTJts its use. 31 ty, will lie or to \;Jhi�h his �swer will Control Question Technique be of dubious validity in his own mind. "33 For this reason, they are The most important type of exami­ sometimes called ''probable lie'' nation is the CQT. 32 Questions are questions. An exan1ple would be: "Did you ever steal anything in your 23 Raskin, supra note 19, 1986 Utah life?'' Control questions are designed L. Rev. at 33. See also Honts & Perry, as a stimulus for the truthful subject. "Polygraph Admissibility," 16 Law & Hum. Behav. 357, 359 (1992) ("Almost Generally, the truthful person will all of the scientists involved in detection respond more to the control questions of deception research reject the notion than to the relevant questions because that the relevant-irrelevant test could be a usefuldiscrLI!1inator of truth and decep­ question technique have been reported. tion"). See Honts & Raskin, ''A Field Study of 29 See Barland, ''The Polygraph 'fest the Validity of the Directed Lie Control in.the USA a.ildElsewhe re,'' in The Poly­ Question," 161. Police Sci. &Admin. 56 graph Test: Lies, Truth and Science 73, (1988) (discussing the directed lie control 80 (A. Gale ed. 1988). question).

30 See Reid, "A Revised Questioning 33 J. Reid & F. Inbau, supra note 14, Technique in Lie Detection Tests,'' 37 J. at 28. See also Raskin, "Science, Com­ Crim. L., Criminology & Police Sci. 542 petence, and Polygraph Techniques,'' 8 (1947). Crim. Def. 11, 13 (May-June 1981) ("[T]he control question deals with simi­ 31 See Raskin, supra note 19, 1986 lar subject matter, is very general in na­ Utah L. Rev. at 31-32 ("[I]t is employed ture, covers a long span of time and a infrequently because the special informa­ large number of possible acts, and it tion necessary to construct a valid con­ is almost impossible for most people to cealed information test is typically answer it with an unequivocal 'no' and lacking"). with certainty that they are being com­ 32 Further refinements of the control pletely truthful'').

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they represent a greater threat to that 7. (Control) Between the ages of person. For the same reason the de­ ten and twenty-four, did you ceptive person will respond more to ever do anything dishonest or the relevant questions than to thecon­ illegal? trol questions. Therefore, the sub­ 8. (Relevant) Did you take that ject's comparative responses to the diamond ring from a desk in the controland relevant questionsare the Behavioral Sciences Building key in theCQT. 34 on July 1? The examinationtypically consists 9. (Neutral) Were you born in the of ten to twelve questions. The first month of February? one or two questions are irrelevant 10. (Control) Before 1984 did you questions. Other irrelevant questions ever lie to get out of trouble or as well as the relevant and control to cause a problem for someone questions are interspersed in the re­ else? maining questions. While the subject 11. (Relevant) Were you in any way knows the questions, he does not involved in the theft of that dia­ know the order in which they will be mond ring from the Behavioral asked. The examination lasts a few Sciences Building la:st July?35 minutes and is repeated at least one As part of the examination, a stim­ more time; often two or three more ulation test is often administered.36It examinations are conducted. is sometimes known as the number The following example has been test, card test, or stim test. A wide used to illustrate the control question variety of stimulation tests are used. sequence: The purpose of the test is to impress the subject with the efficacy of the 1. (Neutral) Do you understand technique. Reid and Inbau describe a that I will ask only the questions card test that is based on deceiving the we have discussed? subject. 37 However, most stimulation 2. (Pseudo-Relevant) Regarding tests, such as those used by federal whether you took that ring, do examiners, do not involve trickery.38 you intend to answer all of the questions truthfully? 3. (Neutral) Do you live in the 35 Raskin, supra note 19, 1986 Utah United States? L. Rev. at 36. 4. (Control) During the first twen­ 36 An issue of Polygraph is devoted to ty-four years of your life, did the subject. 7 Polygraph 173-214 (1978). you ever take something that 37 In the card test, the subject is asked did not belong to you? to select a card froma deck. The examin­ 5. (Relevant) Did you take a ring er then goes through all the cards; one at a from the Behavioral Sciences time,asking ifeach was the one selected. Building on July 1, 1985? The subject is instructed to answer "no" each time, even when the correct card is 6. (Neutral) Is your name Joanne? shown. The examiner, supposedly based on the polygraph technique, then identifi­ es the correct card. Often the identifica­ 34 "[I]nnocent subjects are expected tion is not made through the polygraph to show stronger reactions to the control technique but because the cards are questions than to the relevant questions, marked. J. Reid & F. Inbau, supra note whereas guilty subjects are expected to 14, at42 & 85. show the opposite." Kircher & Raskin, "Human Versus Computerized Evalua­ 38 Decker, ''The Army Stimulation tions of Polygraph Data in a Laboratory Test- A Control Procedure," 7 Poly­ Setting," 73 J. Applied Psychol. 291 graph 176, 176 (1978) ("There is abso­ (1988). lutely no trickery in this test").

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Formulating adequate control Lions. There are several different questions is not an easy task. As one scoring systems. The systems devel­ writer has noted, ''it is extremely oped by the DOD Polygraph Institute difficult to devise control questions and by the University of Utah are that would ensure the eliciting of similar. 43 The comparative reaction stronger reactions in an innocent per­ to each pair of relevant and control son than would the relevant questions questions is scored. The scores range relating to the crime of which they from + 3 for a dramatic reaction to a

had been accused. "39 This may ex­ control question to - 3 for the same plain why there are more false posi­ type of reaction to the relevant ques­ tives than false negatives when the tion. Noticeable but small reactions CQT is used.40 are scored + 1 or -1. No significant reaction is scored 0. Total scores of Methods ofEvaluation +6 or higher indicate truthfulness,

while - 6 or lower indicate decep­ There are three methods of evalua­ ·tion. Scores that fall in between are tion: global evaluation, numerical scoring, and computerized scoring. inconclusive. The priinary advantage of the nu­ Global evaluation, the oldest method, merical approach is that it "helps involves an overall impression of the to ensure a rigorous, semi-objective charts plus other factors. The most evaluation of the physiological infor­ controversial of these other factors is '44 the examiner's "clinical impres­ mation contaii1ed in the charts.' some research i..TJ.dicates sions'' of ti';e subject during the pre­ Moreover, that numerical scoring systems are test interview and the exaillination. In more reliable.45 However, since the other words, the exa_m.iner considers subject's behavior is not considered, the subject's demeanor as well as the a higher number of ii1conclusive con­ recorded reactions of the machine.41 clusions are reached in this approach. Critics contend that such a judgment Computerized scoring is a specific is ''a highly subjective and hence application of numerical scoring. speculative interpretation about ·the meaning of a complex series of ver­ QualityControl Procedures bal, behavioral and physiological re­ sponses. "42 Typically, polygraph examina­ The numerical approach was de­ tions conducted by federal agencies veloped about 1960. The subject's are independently reviewed by other behavioral reactions are not consid­ examiners. The quality control re­ exatrrJ.nations; t.. e ered, only lhe recorded chart reac- vievvs are "blind" charts are evaluated without viewing the subject, or knowing the field ex­ 39 Bull, "What is the Lie-Detection aminer's conclusion. Test?," in 1he Polygraph Test: Lies, Truth and Science 14 (A. Gale ed. 1988). '13 Raskin, supra note 19, 1986 Utah

. n "For example, [the examiner] must 44 Barland, supra note 21, 16 U.West look at the polygraph charts, the suspect's L.A. L. Rev. at 40. demeanor and behavior, the case facts, 45 See Barland & Podlesny, "Validity and whatever other indicators there may and Reliability of Detection of De­ be." Barland, supra note 21, 16 ception," 6 Polygraph 1, 18 (1977); U.West.L.A. L. Rev. at 39. Weaver, "The Numerical Evaluation of 42 Kleinrnuntz, "The Polygraph as Polygraph Charts: Evaluation and Com­ Credible Court Evidence,'' The Champi­ parison of Three :f\T1ajor Systeins," 9 on 14, 16 (Sept.-Oct. 1984). Polygraph 94 (1980).

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Experience has shown the value of important single safeguard that quality control as an integral part should be required prior to admissi­ of law enforcement polygraph us­ bility of polygraph evidence is the age. In such a program, polygraph review of the polygraph examination charts and documentation are re­ by an objective, disinterested expert viewed 'in the blind' by another . polygraph examiner. "49 Unfortu­ senior and well-qualified examiner nately, many examinations are con­ to insure that they· substantiate the ducted without any quality control conclusion of the testing examiner safeguards. as to truth or deception. 46 One authority's account of the Fay case illustrates the importance of Computers can be used for quality quality control procedures and exam­ control.47 An automated system re­ iner qualifications: duces the risk of human error and minimizes disagreements among ex­ In the celebrated case of Floyd aminers.48 Fay, who was wrongly convicted In the absence of a quality control of murder in 1978 and served two program, review by an independent years in prison before the actual . examiner is critical: ' 'By far the most perpetrators were apprehended, the five interpreters used different methods to analyze the polygraph 46 Furgerson, "Polygraph Policy tests. The two field polygraph ex­ Model for Law Enforcement," 56 F.B.I. aminers who testified at the trial Law Enforcement Bull; 7, 14-19 (June 1987). diagnosed him as deceptive, one using the United States Army nu­ 47 ''Dichotomous computer classifica­ merical scoring system and the tions of subjects in the standardization other using a global evaluation. sample were 93% correct. Blind numeri­ cal evaluations of the same data by an Another examiner, a professor of expert interpreter were 89% correct." criminology at Michigan State Kircher & Raskin, "Human Versus University who employed a global Computerized Evaluations of Polygraph evaluation, said that the test was Data in a Laboratory Setting," 73 J. inconclusive. A private polygraph Applied Psychol. 291 (1988). This study examiner with a doctoral degree in used mock crime experiments and thus psychology scored the polygraph its application to field conditions cannot charts at + 1 (inconclusive) using be assumed. Id. at 301. In a later field the United States Army system, study using U.S. Secret Service examin­ ers the computer evalutions proved reli­ and a psychiatry professor at the able: "[T]he accuracy of human and University of Minnesota said that computer interpretations was higher than polygraph tests are of .no value. the blind interpretations, and it ranged The author [Dr. Raskin] interpre­ from 95-96% on confirmed truthful sub­ ted the charts as truthful ( +7).50 jects and 83-96% on confirmeddeceptive subjects. " D. Raskin, J. Kircher, C. Validity Honts & S. Horowitz, A Study of the Validity of Polygraph Examinations in The validity of polygraph testing Criminal Investigation(May 1988) (Nat'l in criminal investigations remains Inst. of Justice, Grant No. 85 -IJ-CX- controversial. The question is ex- 0040). 48 "[D]isagreements .among poly­ 49 Bar land, supra note 21 , 16 U. West graph examiners are common and limit L.A. L. Rev. at 50. the validity and utility of the techniques in applied settings." Kircher & Raskin, 50 Raskin, supra note 19, 1986 Utah id. at 292. L. Rev. at 39- 40.

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tremely comple;,51 but two prelimi­ of actual cases and (2) mock crii11e nary poi..nts are not subject to dispute. experiments, which are laboratory First, error rates frequently cited by simulations. Both have drawbacks. field examiners are suspect because Field studies depend on establishing they are often based on the assump­ a valid criterion for determining guilt tion lhat polygraph results are correct or innocence. Some studies use pan­ unless proven otherwise. ][n many in­ els of trial attorneys to determine stai!ces no systematic follow-up stud­ guilt, an approach with obvious prob­ ies have been conducted to verify the lems. One expert argues that the best examiner's conclusions, verification criterion is confirmation by a sub­ criteria are not specified, and improp­ ject's later confession. 55 Others, how­ er procedures are used to compute ever, have pointed out that "the use the error rate. 52 of a confession criterion introduces a Second, polygraph research is an number of problems of sampling bias on-going process. A 1984 Depart­ that in tum raise questions about the ment of Defense study noted that "\]Sefulness of confession studies.' '56 Laboratory experimentation has there ''has been more scientific re­ different limitations.. There are im­ search conducted on lie detection in portant differences between the labo­ the last six years than in the previous ratory and forensic environments that 60 years. "53 In1988, another author­ may undermine the validity of these ity wrote: ''On1y now are superior experiments.57 The principal differ­ paradigms being developed which ence is that fear of detection is not as combine ihe ground truth of the labo­ strong for experimema1 subjects. 58 1n ratory with the realism of field appli­ cations. "54 55 Raskit'1,supra note 19, 1986Utfu'1 L. Types of Studies Rev. at 44 (stating that the best available method uses cases in which suspects con­ There are two different kinds of fess after the polygraph examination, polygraph studies: (1) field studies afterwhich the charts are evaluated blind­ ly by independent examiners) ..

56 Honts &Perry, "Polygraph Admis­ 51 Orne, Thackray & Paskewitz, "On sibility," 16Law & Hum. Behav. 357, the Detection of Deception," in Hand­ 361 (1992) (citing Patrick & Iacono, book of Psychophysiology 743, 751 (N. "Validity of the Control Question Poly­ Greenfield & R. Sternback eds. ·1972) graph Test: The Problem of Sa.mp!ing (''No fully satisfactory way is available Bias," 76 Applied Psychology 229 at this time for evaluating the overall J. (1991)). effectiveness of L'le tecl'.ti'Jque, ruJd it is probable that no such answer will be 57 Validity Panel, supra note 52, at forthcoming i.-1 the near future from real 160-162. life situations''). 50 Lyldcen, supra note 13, at 23 52 "Validity Panel," in Legal Admis­ ("Since the emotional impact of such sibility of the Polygraph 155 (N. Ansley artificial simulations, as well as the im­ ed. 1974) (statement of Gordon Barland) portance to the individual of the outcome, (hereinafter Validity Panel). is inevitably very differentthan in real life situations, such laboratorv assessments 53 Department of Defense, ''The Ac­ ' provide no valid basis for estimating the curacy and Utility of Polygraph Testing" accuracy of the lie test in the field"). (1984), reprinted in 13 Polygraph 1, 58 Researchers attempt to solve this problem (1984). by using substantial cash bonuses. 54 G. Bar! and, ''The Polygraph Test in Raskin, ''Does Science Support Poly­ the USA and Elsewhere,'' 1he Polygraph graph Testing?,'' in 77ze Polygraph Test: Test: Lies, Tmth and Science 76 (A. G!lJe Lies, Truth and Science 96, 99 (A. Gale ed. 1988). ed. 1988).

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addition, some of the laboratory stud­ also be important. Apparently, false ies fail to replicate field conditions; positives are more frequent with vic­ they use neither experienced examin­ tims than with suspects.61 ers nor general population samples as Third, the type of issue involved subjects. is important: polygraph examinations A different issue concerns the pur­ . involving specific factual issues pro­ pose of a study, which turns on duce more valid results than those 2 whether a study is testing for validity involving mental state issues.6 or reliability. The term "validity" Selected Studies refers to the ability of a test procedure to measure what it is supposed to A number of authoritieshave ques­ measure-its accuracy. The term tioned the validity of polygraph test­ ing. Although Dr. David Lykken is "reliability" refers to whether the perhaps the most well-known critic,63 same results are obtained each time he is by no means alone. 64 Other the test is performed-its consisten­ authorities, however, strongly sup­ cy. 59 Validity includes reliability, but port the validity of polygraph testing, the converse is hot necessarily true. at least under certain conditions. 65 A Some studies test for validity, while others test for reliability. The latter 61 Raskin, ''Does Science Support would include a study designed to Polygraph Testing?,'' The Polygraph determine whether a single examiner Test.· Lies, Truth and Science 96, 101 (A. reaches consistent results over a peri­ Gale ed. 1988). od of time, or whether several d iffer­ 62 Raskin, supra note 19, 1986 Utah ent examiners reach the same conclu­ L. Rev. at 46-47. sion when the same subject is treated. 63 Dr. Lykken's writings include: D. Other Issues Lykken, A Tremor in the Blood: Uses and Abuses of the Lie Detector (1981); Understanding the literature on Lykken, "The Lie Detector and the this subject also requires an apprecia­ Law," 8 Crim. Def. 19 (May-June tion of a number of additional issues. 1981); Lykken, "The Validity of Tests: First, the studies distinguish be­ Caveat Emptor," 27 Jurimetrics J. 263 tween false positives and false nega­ (Spring 1987); Lykken, "The Case tives. The former concerns a conclu­ Against Polygraph Testing, in The Poly­ sion of deception for an innocent graph Test: Lies, Truth and Science 110 subject, while the latter involves erro­ (A. Gale ed. 1988). neous exculpation of a guilty suspect. 64 Other critics include: Carroll, Some tests, such as the RI and CQT "How Accurate is Polygraph Lie Detec­ tests appear to be ''more accurate at tion?," in The Polygraph Test: Lies, detecting the deception of the guilty Truth and Science 19 (A. Gale ed. 1988); person than detecting the truthfulness Kleinmuntz & Szucko, "A Field Study of the Fallibility of Polygraphic Lie De­ of the innocent person. "60 tection," 308 Nature 449 (1984) (the Second, the subject of the test­ validity of polygraphic interrogation has whether a suspect or victim-may yet to be established); Kleinmuntz & Szucko, supra note 13. 59 Barland, ''The Reliability of Poly­ 65 See J. Reid & F. Inbau, supra note graph Chart Evaluation," in Legal Ad­ 14, at 304; D. Raski, G. Harland & missibility ofthe Polygraph 120, 121 (N. J. Podlesny, Validity and Reliability of Ansley 1975). Detection of Deception (June 1978); 60 Barland, "The Polygraph Test in Raskin, "Does Science Support Poly­ the USA and Elsewhere,'' The Polygraph graph Testing?," The Polygraph Test: Test: Lies, Tmth and Science 73 (A. Gale Lies, Truth and Science 96, 101 (A. Gale ed. 1988). ed. 1988); Barland, "The Polygraph Test

271 CR�M�NAl lAW BUllETiN comprehensive discussion of all the vorable conclusions about polygraph validation studies is beyond the scope validity: of this article. Instead, selected ex­ Thus, the Bersh study, experience cerpts of several reports are presented of investigators and quality control in chronological order. personnel, and mock crime labora­ In the fall of 1983, the Office of tory studies give different esti­ Tedu10logy Assessment of t.he U.S. mates of the accuracy of control Congress submitted a report in which question tests in criminal investi­ it reviewed and evaluated the re­ gations, ranging from about 80% search on polygraph validity. The to 95% . . . . [T]here are no data report includes the following passage suggesting that the various poly­ as part of its fmdings: graph techniques and applications OTA found meaningful scientific in [the Department of Defense] evidence of polygraph validity have high false positive or high only in the area of criminal investi­ false negative error rates. 67 gations. However, even here, A significant problem in interpre­ there is a wide divergence in the ting the various reports concerns results of the relevant research. which studies used scientificallyvalid Six prior research reviews showed methodologies. 63 Jln 1986 an expert average validity ranging from a i.n this field cited five mock crime low of 64 percent to a high of 98 studies that he considered valid be­ percent. OTA's own review of28 cause they used the control question studies meeting mininmm accept­ techi1ique, traiiled examiners, field able scientific criteria found that, techniques, and nonstudent - popula-- for example, correct guilty detec­ tions. He concluded: tions ranged from 17 to 100 per­ The combined accuracy of deci­ cent. Overall, the cumulative re­ sions was 95%, with an inconclu­ search evidence suggests that when sive rate of 8%. It should be noted used in criminal investigations, the

polygraph test detects deception 6 better than chance, but with signif­ 7 Department of Defense, "The Ac­ curacy and Utility of Polygraph Test­ icant error rates. 66 ing,'' supranote 53, reprinted in 13 Poly­ In contrast, a 1984 Department of graph at 63. Moreover, a 1982 Gallup poll survey Defense report reached far more fa- of the Society for Psychological Research reported t.,at 61 percent ofL'le 155 mem­ in the USA and Elsewhere," id. at 83; bers responding believed that the poly­ Raskin, supra 19, 1986 Utah L. Rev.; graph is a useful diagnostic tool when Raslcin &Kircher, "The Validity ofLyk­ considered with other available informa­ ken's Criticisms: Fact or Fancy?," 27 tion. Gallup Organization, "Survey of Jurimetrics J. 271 (Spring 1987). Members of the Society for Psychologi­ 66 cal Research Concerning Their Opinion OTA Report, supra note 11, re­ of Polygraph Test Interpretation," 13 printed in 12 Polygraph at 200. For other articles and reports on the validity issue, Polygraph 153, 157 (1984). see Abrams, "Polygraph Validity and 63 See Kircher, Horowitz & Raskin, Reliability: A Review," 18 J. Forensic "Meta-Analysis of Mock Crime Studies Sci. 313 (1973); Ansley, "A Compendi­ of the Control Polygraph Technique,'' um on Polygraph Validity," 12 Poly­ 12 Law & Hum. Behav. 79 (1988) (dif­ graph 53 (1983); Horvath, "Detection ferences in subjects, incentives, and deci­ of Deception: A Review of Field and sion policies may account for as much as Laboratory Research,'' 5 Polygraph 107 65 percent of the observed varia.;1ce in (1976). detection rates).

272 FORENSIC SCIENCE

that the majority of errors were arniners concerning the outcomes false positive errors of diagnosing of polygraph tests. 70 deception in subjects who were Perhaps the field examiners, either actually truthful. The evaluations consciously or unconsciously, used misdiagnosed 8 % of innocent sub­ clinical impressions to minimizefalse jects as deceptive and only 3% of positive errors. guilty subjects as truthful (false Nevertheless, the controversycon­ negative errors). These error rates tinues. Two other writers concluded indicate the limitations of the con­ in 1988 that the ''best defense one trol question technique, even when can offer for the continued use of the it is performed under carefully CQT is that its accuracy is indetermi­ controlled conditions by highly nate.' '71 The writer of the first study skilled examiners with extensive responded: "The voluminous scien­ psychological training and exper­ tific literature indicates that they can tise. 69 be highly accurate when properly em­ ployed in appropriate circumstances, In 1988 that writer and his col­ but they are also subject to abuse and leagues reported the results of a field misinterpretation.' '72 study on the control question tech­ nique as administered by Secret Ser­ Countermeasures vice personnel. In addition to field Another important research issue­ examinations, blind interpretation of involves countermeasures or tech­ charts by quality control examiners niques to "beat" the test by a guilty and computer interpretation were subject. The OT A report commented studied. The report concluded: that the ''research on countermea­ The accuracy of human and com­ sures has been limited and the results conflicting."73 Here again, a number puter interpretations was very of factors must be understood. high. Decision by the original ex­ Countermeasures can be divided aminers on individual relevant into two categories: (1) those that questions ranged from 91-96% change theexaminee's general physi­ correct on confirmed truthful an­ ological state such as drugs and bio­ swers and 85-95% correct on con­ feedback and (2) those that produce firmed deceptive answers. Blind interpretation produced somewhat 1o lower accuracies, ranging from D. Raskin, J. Kircher, C. Honts & 63-85% on truthful answers and S. Horowitz, A Study of the Validity of Polygraph Examinations in Criminal 84-94% on deceptive answers. Investigation (May 1988) (Nat'l lnst. of However, the accuracy of the com­ Justice, Grant No. 85-U-CX-0040). puter interpretations was higher 71 Iacono & Patrick, ''Assessing De­ than the blind interpretations, and ception: Polygraph Techniques," in it ranged from 95-96% on con­ Clinical Assessment of Malingering and firmed truthful suspects and 83- Deception, 205, 233 (R. Rogers ed. 96% on confirmed deceptive sub­ 1988).

jects. The results provide consid­ 72 Raskin, "Polygraph Techniques for erable support for the accuracy of the Detection of Deception,'' in Psycho­ decisions made by the original ex- logical Methods in Criminal Investig�­ tions and Evidence 247, 290 (D. Raskin ed. 1989).

69 Raskin, supra note 19, 1986 Utah 73 OTA Report, supra note 11, re­ L. Rev. at 42. printed in 12 Polygraph at 201.

273 CRiMiNAl lAW BUllETIN

effects at specificpoints inti1e exami­ ed that a polygraph machine with nation such as mental imagery and an activity sensor would detect most physical countermeasures. 74 fu addi­ attempts at physical countermea­ tion, countermeasures that may be sures. 77 successful against one type of exami­ nation, such as the COT test would The Friendly PolygrapherIssue ' not necessarily be eff'ective against The friendly polygrapher hypolhe­ the concealed information test. - sis78 suggests that a polygraph exami­ Physical cmmtenneasures appear nation privately conducted by the de­ to pose the greatest threat to the con­ fense may not be reliable because the trol quesiton technique. 75 To be effec­ fear of detection is not sufficiently tive, the subject must produce strong­ realistic; the defendant knows that if er physiological responses to the he fails the test, he will suffer no control questions than to the relevant adverse consequence� Thus, the pos­ questions. Biting the tongue or press­ sibility of a false negative will in­ ing toes against the floor have oro­ ' crease. This hypothesis, however, duced significant false negative re­ sults in laboratory studies. One study has never been established, and "[a]t concluded that the principal threat are present, the only research bearing subjects who ''have received system­ upon this hypothesis does not support atic training in countermeasures. "76 it.' ,79 Spontaneous countermeasures were not effective. Another study conclud- 77 .l�·3.bra...-rns · e-L Davidson, Countermeasures in Polygraph Test­ 74 Honts, "Interpreting Research on ing,'' 17 Polygraph 16, 19 (1988). Polygraph Countermeasures," 15 J. Po­ 73 This hypothesis was first suggested lice Sci. Admin. 204 (1987). See also & by Dr. Martin Orne. See Orne, "Implica­ Gudjonsson, "How to Defeat t.'le Poly­ tions of Laboratory Research for the De­ graph Tests," in The Polygraph Test: tection of Deception,'' in Legal Admissi­ Lies, Tmth and Science 126 (A. Gale ed. . bility of the Polygraph 94 (N. Ansley ed. 1988). 1975). 75 Raskin, supra note 19, 1986 Utah 79 Barland, supra note 21, 16 U.West L. Rev. at 50-51. L.A. L. Rev. at 49. See also Raskin, 76 Honts, Raskin, Kircher & Hodes supra note 19, 1986 Utah at 63 ("When � "Effects of Spontaneous Countermea the 'friendly polygrapher' hypothesis is sures on the Physiological Detection of examined in light of all meaningful scien­ Decepton," 16 J. Police Sci. & Admin. tific data, no credible evidence supports 91,93 (1988). the theory.").

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