JOURNAL of the AMERICAN POLYGRAPH ASSOCIATION

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JOURNAL Of THE AMERICAN POLYGRAPH ASSOCIATION

VOLUME 6 September 1977 NUMBER 3

CONTENTS

A Survey of Judicial Attitudes Concerning Polygraph Admissibility Michael J. Must 0 211

A Survey of Factors Affecting the Polygraph Examination in Japan Akihiro Suzuki 218

stipulations Rita M. Jacobs 233

The Psychology of Evidence Dr. rer. nat. H. Herbold 241 A Comparison of Equipment Designed to Reduce Cuff Discomfort Joseph G. Law, Jr. and Sam Remington 253

Attitudes Toward the Use of the Polygraph: Study Two Joshua R. Gerow, Ph.D. 266

Private Polygraph Testing Fee Survey Results Robert Heidinger 270

Illinois Polygraph Society v. Anthony Joseph Pell icano 277

Polygraph Review / Bobby J. Daily 293

Abstracts 294

PUBLISHED QUARTERLY

Polygraph 1977, 06(3)©AMER ICAN PO LYGRAPH ASSOCIAT ION, 1977 P.O, Box 74 , Linthicum Heights, Maryland 21090 A SURVEY OF JUDICIAL ATTITUDES CONCERNING POLYGRAPH ADMISSIBILITY

By Michael J. Musto

Abstract

The question of judicial attitudes toward the admissibility of polygraph examinations was examined within the State of Illinois. Sixty-five of 225 circuit court judges in that state responded to a mailed questionnaire. The results of the survey indicated that those judges having actual experience with the polygraph, as measured by exposure to stipulated evidence and by use of a polygraph exami nation in particular cases, favored the admission of this form of evidence.

In 1923, the United States Court of Appeals in Frye ~ United States refused admission of a detection of deception examiner's testimony regarding the results of a systolic blood pressure test. Upon appeal, that ruling was affirmed. The courts stated that the deception test (The Marston Blood Pres sure Deception Test) was in the experimental stages and was not generally ~ccepted by physiological and psychological authorities.

In 1972, John Reid pointed out that "Most courts up to the present time quote ~ as a basis for rejecting polygraph test results as evidence. The courts' test for evidentiary value seeks acceptance of polygraphy from the fields of psychology and physiology."l Reid has argued that admissibility requirements should come from the specific field of polygraph rather than the broader fields of psychology and physiology (based on People ~. Williams2 ).

In 1976, Professor John Baker, in his address on the legal admissibility of the polygraph to the American Polygraph Association, questioned whether precedence (stare deCisis) was the sole basis for the general inadmissibility of polygraph results. He noted "The courts have overturned more impressive decisions than Frye. ,,3 In his opinion, the courts would have to decide also the legal relevance or'the probative value of the polygraph as evidence. Critics of the polygraph as evidence have argued that admission of that evi dence would usurp the jury's function and that the evidence would be over whelming and therefore, improperly weighed by the jury. Ferguson, in ~ Polygraph !:l Court4, stated that "Juries will not slavishly follow the polygraph as though it were the last word in every ques tion of credibility. They would evaluate it just as they would an x-ray or an electroencephalogram. Polygraphy would be nothing more than another aid

The author is a polygraph examiner for the Illinois Bureau of Identifi cation. He has a B.S. in Psychology from Loyola University in Chicago, an M.S.D.D. from the Reid College, and presently is finishing the requirements for an M.A. in the Administration of Criminal Justice at Webster College, Missouri.

211 Polygraph 1977, 06(3) to their determination as to what the facts are." In an article printed in Polygraph, James White writes:

"Thus, it can be said that judges traditionally jealously guard the sanctity of the jury system and are often re pelled by any attempts to have the truthfulness of a wit ness or an issue decided by a scientist such as a poly graph examiner. It is ironic that the same judges regularly permit testimony by psychiatrists, fingerprint experts, handwriting analysts, and other forensic experts. These experts regularly make judgements and testify on matters which are vital to the truth or falsity of the issues to be determined in a case."S The purpose of the present study was to examine judicial attitudes about polygraph evidence in Illinois. It was believed that court judges familiar with the polygraph technique would tend to support its introduction into evidence. Further, an attempt was made to assess judicial attitudes about whether or not a polygraph examiner is an invasion of privacy and whether, in taking a poly graph examination, self-incrimination issues pecessarily arise. Method To survey the attitudes of the judiciary, a two-page questionnaire was mailed to all 225 circuit court judges in the state of Illinois. The judges were asked to complete the questionnaire and to return it in a self~ddressed envelope to the author. Sixty-five questionnaires were returned, yielding a response rate of 28%. An analysis of the responses to the major questionnaire items is given below. Results Question #1: In 1923, Frye vs. United States called for "standing and scientific recognition among physiologiC'al and psychological authorities ••• " In your opinion, should this general acceptance come from experts in the fields of Psychology and Physiology or the field of Polygraphy? With regard to question #1 as to who should decide the standing and scien tific recognition of the polygraph, sixty responses were made. Generally, the judges indicated that contrary to the Frye decision the polygraph field itself or in some combination with other fields was the preferred mode of "scientific recognition" • Only 15% of the responding judges concurred with the Frye opinion that determination be made by both psychology and physiology. A more complete breakdown of the responses to question #1 is indicated below.

Response: Psychology: 7 Judges or 11.6% Physiology: 3 Judges or 5% Polygraphy: 19 Judges or 31% Psychology, Physiology & Polygraphy l2 Judges or 20% Psychology & Polygraphy: 10 Judges or 16.6% .Psychology & Physiology: 609 Judges or 15%

212

Polygraph 1977, 06(3) Question #2: Have you ever recommended the use of a polygraph examination in a case presented before you (i.~., Bastardy, pre-sentence investigation, etc.)? As indicated below, the results of the question on recommendation of the polygraph indicate that of the sixty-four respondants about 33% felt that it was advisable to recommend or allow a polygraph test. Analysis of the responses by the size of the city in which the respondents held court did not suggest any differences between those who had and those who had not recommended polygraph tests.

Judges responding YES: 21 or 32.8% Judges responding NO: 43 or 67.1% Respondants by populational size using 1970 Census data:

Cities greater than 20,000: YES - 10 NO - 22 Cities less than 20,000: YES - 11 NO - 21 Question #3: Have stipulated polygraph examinations ever been presented in your court? Sixty-five judges responded to the question of whether a stipulated poly graph examination had ever been admitted in their courtrooms. Over 70% of the judges stated that there had been no attempt to introduce the polygraph as evi dence in their courts; less than 30% of the respondants based their opinion of the polygraph on first-hand experience with the testimony of an examiner. Popu lational characteristics did not show any discernable differences between Yes and No respondants. Judges responding YES: 19 or 29.2% Judges responding NO: 46 or 70.7%

Cities greater than 20,000: YES - 7 NO - 25 Cities less than 20,000: YES - 12 NO - 21 Question #4: Do you believe a polygraph examination might overwhelm or com pletely influence a jury's verdict to the exclusion of other evidence? There were sixty-one respondants to the question of whether a polygraph examination would overwhelm a jury to the exclusion of other evidence. As indicated below, overall the judges were about evenly divided on that issue.

Judges responding YES: 30 or 49.1% Judges responding NO: 31 or 50.8% Cities greater than 20,000: YES - 15 NO -13 Cities less than 20,000: YES - 15 NO - 18 Further analysis of the responses of those judges who had received the polygraph as evidence and those who had recommended the polygraph in a case before them generally indicated that a jury would not be overwhelmed to the exclusion of other evidence.

213 Polygraph 1977, 06(3) A. Opinion of 21 judges who recommended polygraph

YES - 7 NO - 14 B. Opinion of 19 judges who had received stipulated tests

YES - 5 NO - 14

Question #~ Is it likely that a jury would convict a defendant based solely on a polygraph opinion?

There were sixty-five responses to the question of whether a jury would convict based solEly on a polygraph opinion. The results of this question sup port the hypothesis that those judges who have some actual experience with the polygraph generally have a favorable opinion of the technique. An examination of the data received from the population as a whole does not show a significant distribution of feelings on the issue.

Judges responding YES: 28 or 43% Judges responding NO: 37 or 56%

Cities greater than 20,000: YES - 13 NO -16 Cities less than 20,000: YES - 15 NO - 21 A. Opinion of 21 judges who recommended polygraph

YES - 6 NO - 15 B. Opinion of 19 judges who had received stipulated tests

YES - 5 NO - 13* (* - One judge did not respond to this question) Question #6: In your opinion, could the results of an unstipulated polygraph examination be presented over objection? Regarding the question of whether the polygraph could be presented as evidence over objection, sixty respondants answered the question as follows:

Judges responding YES: 5 Judges responding NO: 55 There were fifty responses to Subquestion (a). The answers have been categorized into objections based on legal or constitutional grounds and those based on Polygraphy.

214

Polygraph 1977, 06(3) Constitutional: 5 - Difficulty in establishing a foundation 14 - Prior case law 3 - Right of confrontation and cross-examination 2 - Hearsay 6 - Constitutional and 5th Amendment grounds 1 - Appeals courts have not approved polygraph 3I Polygraph: 5 - Test infallability 5 - Test reliability 3 - Lack of scientific unanimity 6 - Operator as a factor Question #7: The inadmissibility of the polygraph as evidence has usually been based on the grounds that it is the State's responsibility to prove a case with out the defendant's help; also, it is stated that the polygraph is an invasion of the defendant's right of privacy. In your opinion would administration of the Miranda Warnings prior to testing effectively deal with these assertions? There were sixty-two responses to the question of whether or not the polygraph would be an invasion of the right of privacy and its alleged self incriminating nature. The results seem to show a tendency for the judiciary to believe that pretest administration of the Miranda Warnings would effectively deal with invasion of privacy and self-incrimination claims. Judges responding YES: 36 or 58% Judges responding NO: 26 or 41% Cities greater than 20,000: YES - 18 NO -11 Cities less than 20,000: YES - 18 NO -15 Question #8: A) If the polygraph was shown to be 90% reliable and valid, should it be presented to a jury as evidence, and B) Is the polygraph legally relevant to the tryer of fact? There were sixty-one responses to the question concerning the validity and relevancy of the polygraph. A slight majority of the respondants supported the introduction of this form of evidence. Those judges who had stipulated experience with the polygraph continued to respond in favor of admissibility.

Responses for (A): Judges responding YES: 32 or 52.4% Judges responding NO: 29 or 47.5% A. Opinion of 19 judges who had received stipulated tests

YES - 13 NO - 6 B. Opinion of 21 judges who recommended polygraph

YES - 15 NO - 6

215 Polygraph 1977, 06(3) Overall combined stipulated and recommended exposure

YES - 2l NO - 10 31

Responses for (B): Overall responses: YES - 35 NO - 26 A. Opinion of 2l judges who recommended polygraph

YES - 18 NO - 3 B. Opinion of 19 judges who had received stipulated tests

YES - 17 NO - 2 Overall combined stipulated and recommended exposure

YES - 26 NO - 5 31 Discussion The overall conclusion based on this survey is that circuit court judges with actual experience, i.e., those who have been exposed to stipulated testi mony and those who have recommended the use of the polygraph for specific cases, have a favorable opinion of the polygraph as a form of evidence. Thus, it seems likely that exposure to stipulated polygraph examinations and to the value of the polygraph generally would increase judicial acceptance. This study suggests that the contention that the polygraph would completely overwhelm a jury to the exclusion of other evidence is probably unjustified. Circuit court judges with actual exposure to the polygraph appear to believe that a jury would be able to assign proper weight to the polygraph examination. That a majority of the circuit court judges objected to the polygraph on "constitutional" rather than other grounds should be cautiously regarded since many of the respondants may have used this objection as a consequence of their familiarity with the law rather than with the polygraph. Yet, the support for the field of polygraph on the question· of "general acceptance" tests indicates that polygraphy is slowly starting to be viewed as a separate field rather than as an offshoot of the broader fields of psychology and physiology. The limitations of this study are important to consider. First, whether 65 out of the 255 circuit court judges in the State of Illinois are really re presentative of the whole group may be questioned. Future research should certainly hope for a better response rate. A second theme that was expressed by the respondants was that as judges they would be able to assign proper weight to the examination as evidence, if

216 Polygraph 1977, 06(3) the jury was unable to do so. It would be interesting to examine this aspect of the question of admissibility in a future survey. The last and perhaps the major tendency observed in the responses was. the 50 - 50 split on many of the questions, suggesting that present judicial opinion has an emotional rather than a factual basis. The answers were so diversified that it appears that the judiciary is not well informed about the facts of polygraph. For instance, that one responding judge would call the privacy contention nonsense and another judge would adamantly agree with the contention indicates that there was a high degree of personal opinion expressed. This will hopefully be overcome with education through exposure to stipulated polygraph examinations and testimony.

Footnotes:

1. Reid, John E. "Judicial Recognition of the Polygraph Technique," The Judges Journal, 2(1)(January 1972): 36. Reprinted in Polygraph, 1(1) (March 1972): 1:S.

2. ~. 3. From an address delivered at the 1976 convention of the American Polygraph Association in New Orleans, Louisiana.

4. Ferguson, Robert, Jr.; and Miller, Allan, ~ Polygraph ~ Court, Springfield, Illinois: Charles C. Thomas Publishers, 1973, pg. 15.

5. White t James, "The Polygraph As Seen From the Courthouse", Polygraph 5 (2)(June 1976): 178-189. Bibliography

1. Reid, John E. "Judicial Recognition of the Polygraph Technique." The Judges Journal, Vol. II, No.1, January, 1972. Page 36.

2. Ferguson, Robert Jr., and Miller, Allan. ~ Polygraph ~ Court, Charles C. Thomas Publishers, Springfield, Illinois, 1973, page 15. 3. White, James. "The Polygraph As Seen From the Courthouse." Polygraph 5(2)(June 1976): 178-1$9.

******

217 Polygraph 1977, 06(3) A SURVEY OF FACTORS AFFECTING THE POLYGRAPH EXAMINATION IN JAPAN By Akihiro Suzuki The first polygraph examination given in Japan took place in 1956. Since that time the use of the polygraph has greatly expanded and, at present, about 5,000 examinations are conducted annually. However, despite the growth anddespite a reform attempt in 1971 to place greater emphasis on examination technique, it is recognized that there is a wide diversity in the techniques and procedures used by Japanese examiners. Such a situatioll is an obstacle to technical exchanges between examiners, and between examiners and the prefec tural police. In order to grasp the actual status of polygraph examinations and to analyze factors affecting examiners' judgements, the survey reported herein is as carried out. Procedure

All examiners licensed by the National Police Agency (NPA) were instructed to complete questionnaires regarding all criminal suspects examined by poly graph in all Japanese police departments from 1 April to 31 July, 1973. There were 5B questionnaire items including examiners' experience, personal history, pre-examination preparation, investigation, substance-environment, judgement, and final confirmation of jUdgements. Questionnaires were to be returned by September 30, 1973. The results of the analysis of the questionnaires are described below.

Results Number of examiners There were 1,429 examinees during the period of the survey. This is 31.6% of the entire number of examinations (4,529) in 1973. Since the period of survey used for this report covered one-fourth of the year, the ratio of examinations was not· skewed by the survey. The following is the listing from 1 to 10 according to the number of examinations in (certain) prefectures: (1) Kanagawa - 204, (2) Fukuoka - 129, (3) Osaka - 117, (4) Hyogo - 99, (5) Nara - BB, (6) Saitama - 70, (7) Tochigi - 67, (B) Yamagata - 48, (9) Aichi - 48 and (10) Hokkaido - 41. This totals 911 or 63.7% of the total. Thus, about two-thirds of the examinations were done in about one-fifth of the prefectures. As shown above, the number of examina tions differs greatly according to prefectures, but this difference cannot be explained in terms of number of crimes occuring, the number of examiners, or the availability of equipment in each prefecture.

This article originally appeared as "Actual Condition of Polygraph Ex amination and Factors Affecting Examiner's Judgement," Reports of ~ N~tional Institute of Police Science (Tokyo, Japan) 27 (4)(December 197417 Repr~ted in Eng1ish;-with minor changes, with permission of the author and the National Institute.

21B Polygraph 1977, 06(3) Because the number of examinations cannot be used as a sole index for positive utilization in crime investigation, it is necessary to explore the factors contributing to the differences found. Examiners The number of examiners used during the examination period was 77. The relationship between the number of examiners by experience and the number of cases processed is as shown in Table 1. The examiners with 10-14 years of experience processed about 4rY/o of the total. Examiners with over 15 years of experience processed more cases and examiners with 5-9 years of experience processed fewer cases in relation to the number of examiners. Total number of cases processed by examiners with over 10 years of experience was 59.2%.

Examiners e~erience and cases handled Years of experience less than 1-4 years 5-9 years 10-14 years over total one year 15 lears Number of examiners 2 13 23 32 7 77 TABLE 2.5 16.8 29.8 100.0 I % 41.5 9.0 Number of cases 26 220 338 617 228 1429 % 1.8 15.4 23.7 43.2 16.0 100.0

The relationship between diagnosiuc difficulty according to the number of cases and the examiners past record is shown in Table 2. The number of examinees investigated by examiners increased with greater years of examiner experience. In all of the cases, 72.6% showed easy diagnosis and 27.4% difficult diagnosis. By using this rate as a gauge in calculating the diagnostic difficulty, examiners who handled less than 21 examinees showed a higher diagnostic difficulty rate of 60.5%. It is doubtful that the types of crime handled by those examiners were any different from those of others; therefore, it is surmised that it takes at least 20 cases to acquire some skill in conducting the examiner.

Relationship between years of experience, number of cases and diagnostic difficultl Examiners experience 601- 1001 ~# of cases 1-20 21-20 21-100 101-~00 ~01-600 1000 + total number of cases handled 38 31 34 117 194 371 644 1429 TABLE % 2.7 2.2 2.4 8.2 13.6 26.9 45.1 100.0 2 Easy diagnosis 39.5 61.2 79.4 62.4 68.0 70.6 79.0 72.6 Difficult diagnosis 60.5 38.8 20.6 37.6 32.0 29.4 21.0 27.4 Total 100.0 100.0 100.0 100.0 100.0 100.0 100.0 llJ.O

219 Polygraph 1977, 06(3) In terms of examinations by a specialist (full-time) or a part-time examiner (having other responsibilities), there were 899 (62.9%) by specialists and 530 (37.1%) by part-time examiners. There were 30 specialists and 47 part time examiners used during the period given in this report. Thus, the average number of examinations per specialist was 30, for part-time examiners 11.3. The ratio of examinations by specialists and part-time examiners according to the types of crime are shown in Table 3. It can be seen that specialists handled the largest number of shop crime (hired help theft, shop theft, resi dent theft) cases or about twice as many as those by part-time examiners. It is said, in general, that more persons were involved in a shop theft than in other cases, resulting in greater diagnostic difficulty.

TABLE 3 Ratio of specialist and part-time examiners by tYpes of crime Type of crime Felonious Violence Intrusion Shop Non-intrusion Intellectual Theft Theft Theft offense Specialists 16.6 0.9 16.6 42.9 10.8 0.6 Part-time 19.2 4.5 30.0 20.0 12.1 2.6

Type of crime Moral Professional others Total offense negligence

Specialists 0.6 2.8 8.2 100.00 Part-time 1.1 3.0 7.5 100.00

The number of shop theft examinations, regardless of whether they were conducted by specialists or part-time examiners, is great only because of greater occurrences and of difficulty in obtaining,evidence in such cases. However, because of the rights of the people being examined and of the state of polygraph technology, many problems must be resolved. A visit to the scene of the crime, an interview with the victim, perusal of the investigation report and a discussion with investigators or interrogators are normally performed before polygraph questions are prepared. The ratio of specialists visiting the scene of crime was 51.8% of the total cases handled and 37.4% for the part-time examiners; 87.0% for perusal of investigation re ports by speCialists and 88.9% by part-time examiners; 95.0% for thorough dis cussion with investigators by specialists and 88.3% by part-time examiners; 4.8% for brief discussion with investigators by specialists and 11.5% by part time examiners. With the exception of perusal 01" i.nvesti.gation reports, part time examiners tend to spend less time than the specialists in making prepara tions for the question list. However, in the diagnostic difficulty ratio, specialists show 27.3% and part-time examiners 27.7% difficulty in diagnosis.

220

Polygraph 1977, 06(3) There were 584 examinees investigated by examiners of less than 9 years of service. Of these, 419 persons or 71.7% were examined by specialists and the remaining 165 persons or 28.3% by part-time examiners. There were 845 cases investigated by examiners with over 10 years of service. Of these, 480 persons, or 56.8%, were investigated by specialists and the remaining 365 persons (43.2%) by part-time examiners. This seems to indicate that more op portunities were given to part-time examiners having more than 10 years of service. The time restriction of the part-time examiners in conducting pre examination investigations narrows down the scope of preparation for the ques tion list but this can be offset by examiner experience, this may be the reason for the small difference in diagnostic difficulty between the two groups. Examinees Sex: There were 1246 males (87.2%) and 183 females (12.8%) investigated. According to Criminal Statistics issued by NPA, the ratio of males and females involved in criminal offenses during 1972 was 86.4% males and 13.6% females which show a close relationship with those given polygraph test. Age: The diagnostic difficulty according to age groups is shown in Table 4. The ratio of suspects involved in criminal offenses in 1972 was 29.0% for 14-19 years of age, 21.4% for 20-24 years, 13.9% for 25-29 years, 19.5% for 30-39 years, 10.0% for 40-49 years, 3.9% for 50-54 years, and 2.3% for over 55 years of age. In comparing this with Table 4, the ratio of those 1...'1 14-19 year bracket who were given polygraph tests is about 20% lower but the ratio of those in 20-30 years is higher. In regard to relationship of age on diagnostic difficulty, the difficulty increased with the increase in age of the examinees. It is not known whether this trend is due to lower physiologi cal function of the examinees or to types of crime. [The relationship of age difference between the examiners and examinees in polygraph testing will be discussed in the next report. TABLE 4 Age of examinees and diagnostic difficulty

Age of examinees 14 20 25 30 35 - 40 45 50 - 55+ Total 19 24 29 34 39 44 49 54 Actual number 144 680 268 200 156 112 67 50 52 1429 % 10.1 26.6 18.8 14.0 10.9 7.8 4.7 3.5 3.6 100.0 Easy diagnosis 76.4 76.3 72.0 70.0 69.2 73.2 73.1 66.0 61.5 72.6 Difficult diagnosis23.6 23.7 28.0 30.0 30.8 26.8 26.9 34.0 38.5 27.4 Total 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

Education: The rate of diagnostic difficulty according to examinee's education is given in Table 5. Of those given polygraph tests, over one-half or 58.6% had only a compulsory education and the ratio jumped to 92.6% when the high school graduates were included.

221 Polygraph 1977, 06(3) TABLE 5 Educational background and diagnostic difficulty

Educational background Elementary Junior High College Total of examinees: school grad- High grad- School graduates uates (and uates (and graduates (and drop drop outs) drop outs} (and drop outs) outs} Actual number 99 742- 483 105 l429 % 6.9 51.9 33.8 7.3 100.0 Easy diagnosis 75.4 78.1 72.6 Difficult diagnosis 24.6 21.9 27.4 Total 100.0 100.0 100.0 100.0 100.0

The rate of diagnostic difficulty decreased with higher education. In terms of educational breakdown, the rate of negative judgement for elementary school graduates was 43.4% (43 persons), 39.2% (291) for junior high school graduates, 54.0% (261) for high school graduates and 48.6% (51) for college graduates, thus, showing no uniform trend. Therefore, it can be said that the rate of diagnostic difficulty decreases with higher education. It can be as sumed that this is due to better understanding of mechanism or principle of the polygraph technology by those with higher education. Occupation: Investigations were conducted by classifying the examinees occupations into 9 categories. These wete arranged in a descending order by the number of examinees in each category: workers up to unit chief level 514 (36.0%), unemployed 257 (18.0%), day workers and laborers 170 (11.9%), service emplqyees 161 (11.3%), self-employed 127 (8.9%), others III (7.$%), section chief and higher 40 (2.$%), farm workers 27 (1.9%) and students 22 (1.5%). These occupations refer to those held by the examinees at the time of investi gations. The large number of workers up to unit chief class and unemplqyed is reflected by the large proportion of shop theft and larceny cases. The rate of easy diagnosis according to occupation was highest for the workers up to unit chief class (385, 74.9%) ·and lowest for students (15, 68.2%), showing a difference of 6.7%.

By job security, living condition, intelligence, etcl The results of investigations based on the above are given in Tables 6, 7, 8, 9, and 10. The purpose of this type of investigations was to obtain the ratio of diagnostic difficulty based on above to probe factors regulating the response in polygraph examination. It is assumed, for example, those who changed jobs frequently seem to become less tense psychologically during the examination because of their lazy life style and this affects the physiological response. It is also assumed that those who have separated or do not have a

222 Polygraph 1977, 06(3) family and those who are not married tend to have less concern about their families or exposure of crime resulting in ambiguous responses. TABLE 6 Examinees' job security (changing jobs) Degree of job security (Changes) Often Slightly high Few Total Actual number 261 399 769 1429 % lB.3 27.9 53.B 100.0

TABLE 7 Living condition of examinees

Living Condition UEEer Middle Lower Total Actual number 53 1036 340 1429 % 3.7 72.5 23.B 100.0

TABLE B Family situation of examinees Family situation Separated Living with Living with Total No family family, har- family, ties monious dissention Actual number 562 722 145 1429 % 39.3 50.5 10.1 100.0

TABLE 9 Marital status of examinees Marital status Unmarried Married Divorced, Total widowed

Actual number 6B9 664 76 1429 % 4B.2 46.5 5.3 100.0

TABLE 10 IntelliEjence of examinees Intelligence Low Normal High Total Actual number 100 1249 80 % 7.0 B7.4 5. 6 ib6?o

Polygraph 1977, 06(3) The results from our research on above can be interpretated to indicate that there was (1) very little relationship between the above factors and diagnostic difficulty, they may, however be an emotional factor in determining whether the examinee, if he is guilty of a crime, will confess or not, (2) a lack of preparation and explanation of the procedure of this survey which re sulted in arbitrary recording which may have produced undifferentiated results in the rate of diagnostic difficulty. For example, in the intelligence cate gory, the recorders based the intelligence of examinees on those taking the polygraph test and not on the general populace. Although we can recognize the relationship between education and diagnostic difficulty, a relationship be tween intelligence and diagnostic difficulty is not seen. This is probably due to the example given above. Mental disorders: There were 1,367 (95.7%) examinees who did not show any sign of mental disorder. Those recognized as having mental problems were as follows: mentally retarded = 2 (0.1%), psychopathy = 4 (0.3%), psychosis = 3 (0.2%), neurosis - 5 (0.3%), drug addicts = 12 (0.8%), unknown and others = 36 (2.5%). Those in unknown and others category consisted of 7 glue sniffers and those claiming headaches from automobile accidents, but the remaining 29 are not known. Among all suspects involved in criminal offenses during 1972, the per centage of those suffering from mental disorders was 2.5%. A ratio of this type was somewhat larger among the polygraph examinees. However, since the remaining 29 (2.0%) of the unknown group were in the mentally disordered cate gory, the ratio of mentally disordered examinees would be about the same as that of the general criminal offense cases. The ratio of mentally disordered according to types of crime were as follows: felonious = 9.2%, violence = 3.1%, larceny = 4.5%, shop theft = 1.2%, other non-intrusion theft - 5.6%, intellectual offense and moral offense = 0%, professional negligence = 2.4%, and others = 7.0%. The ratio of 9.2% for felonious was high compared to others in terms of occurence but by the very nature of this crime, the will to resolve the cases may have increased the ratio of abnormal examinees. It is obvious that a polygraph test is a kind of psychological test, so factors must be considered when mentally disordered persons are examined. However, most of the mentally disordered discussed in this report are in the intermediate stratum between normal and abnormal. And one must be cautious of that fact. The judgement distribution of the normal and mentally disordered is shown in Table 11. A comparison between "the two groups, using (++) and (+) as positive -- (iJ as difficult judgement -- (-) as negative judgement, shows that the mentally disordered group is 11.3% larger in the positive judge ment and 10.7% larger in the difficult judgement, but 22.0% smaller in the negative judgement. Since the accurate ratio of actual criminals and inno cents is not known in these groups, a definite answer cannot be given. However, in assuming that the ratio is identical, the positive judgement of the mentally disordered in the polygraph test is not accompanied by any difficulty, but because of the reaction confusion in the case of a negative judgement, some difficulties will be encountered.

224 Polygraph 1977, 06(3) TABLE 11 Responses of normal and mentally disordered Overall Judgement ++ + -+* +** Total Number of normal 121 385 81 149 631 1367 % 8.9 28.2 5.8 10.9 46.2 100.0 Number of mentally disordered 6 24 9 8 15 62 % 9.7 38.7 14.5 12.9 24.2 100.0

* response confusion ** response weakness

Medical history: The breakdown of examinees based on medical history is as follows: no medical history - 1,231 (86.1%), respiratory ailment - 35 (2.4%), circulatory illness - 51 (3.6%), mental illness - 7 (0.5%), hos pitalized more than one month for head surgery - 16 (1.1%), and others - 89 (6.2%). In the polygraph examination using respiratory reaction, GSR and pulse wave responses, there was no indication of an effect of medical history. For example, re~piratory response confusion, or response weakness rate of those with respiratory illness and those without, was not evident. Health condition: The breakdown of examinees based on health is as follows: good health - 1,324 (92.7%), and poor health - 105 (7.3%), showing that examinees in good health condition are examined in many cases. The diagnostic difficulty based on health is shown in Table 12. A difference in the rate of difficulty can be seen between the good and poor health conditions. Table 13 shows that the rate of response weakness in the poor health group is about 10% higher than the good health group which clearly indicates that that factor makes for difficult judgement. The types of poor health were not looked into for the research carried out here. TABLE 12 Health condition of examinees and diagnostic difficulty

Health condition Good Poor Total Easy diagnosis 983 54 1,027 (74.2) (51.4) (72.6)

Difficult diagnosis 341 51 392 (25.8) (48.6) (27.6) 1324 105 1429 10P.0 100.0 100.0 Total

225 Polygraph 1977, 06(3) TABLE 13

Health condition and overall judgement

Health condition Good Poor Total Overall judgement ++ 122 ~9.2%) 5~4.8%) + 375 28.3%) 34 32.4%) 12To9%)409 28.6%) +* 8l t1%) 90 6.3%) +** 135 10.2%) 229t°6%) 21.0%) 157 ll.O%~ - 611 46.2) 35 33.2%) 646 45.2%

Total 1324(100.0%) 105(100.0%) 1429(100.0%) *response confusion ** response weakness

Insufficient sleep: The results of the overall judgement based on sufficient and insufficient sleep prior to the test are shown in Table 14. The insufficient sleep given here is defined by the stated regular sleeping habits of the examinees.

Table 14 shows (-) overall judgement in all cases to be the highest fol lowed by (+) and (+) weak response and (++) and (:t,) confused responses. How ever, the percentage columns in the Table (14) show that the rate of judgement in most cases increased with less sleep, but a reverse was seen in the (-) judgement. This shows that insufficient sleep does not affect the rate in each category of the overall judgement and also suggests that the innocents complained less about the insufficient sleep than the criminals.

TABLE 14 Sleeping condition before exam and overall judgement

Slept well Normal Slept poorly

Overall judgement ++ 40 ~8.3%) 67 20 + 106 22.1%) 233 r-1%)31.4%) 70 t6%)33.5%) +* 28 (5.8%) 47 6.4%) 15 7.1%) +** 46 ~9.1%) 82 ll.l%~ 29 ~13.9%~ 260 53.2%) 311 42.0% 75 35.9%

Total 480 (100.0%) 740 (100.0%) 209 (100.0%) nf . *response co us~on ** response weakness

226 Polygraph 1977, 06(3) Suspected crime: The types of crime charged are shown in Table 15. Shop theft are not included in the non-intrusion theft. Most of the casualties charged to professional negligence given here are traffic related accidents. The other criminal law offenses and special law offenses are included in the column for others.

TABLE 15 Examinees' offenses

Types of Crime Actual Number % Ranking Felonious 250 17.5 3 Violence 32 2.2 7 Intrusion theft 308 21.6 2 Shop theft 492 34.4 1 Non-intrusion theft 161 ll.3 4 Intellectual offense 19 1.3 8 Moral offense II 0.8 9 Professional negligence 42 2.9 6 others 114 8.0 5 Total 1429 100.0

A comparison of the use of the polygraph in certain types of crime as shown in Table 15 to the (Japanese) criminal statistics was not carried out. Roughly speaking, however, there is a tendency of greater use of the polygraph in criminal offenses involving felonious, intrusion theft and non-intrusion theft but less for crimes involving violence, moral offenses and casualties charged to professional negligence.

Situational factors: The relationship between the degree of susp~c~on and diagnostic difficulty is given in Table 16. Those arrested represent only 29.6% of the total given. This indicates that the investigating authorities have conducted examinations at a stage where persons involved in a particular crime could not be classified as prime suspects. The significance of poly graph is in determining the unknown; however, a problem of human rights may arise in subjecting all possible suspects to a polygraph test. It is said that physiological responses arise from a fear of detection (exposure) in the polygraph test. Thus, it is believed that the fear of de tection increases with a higher degree of suspicion. However, the relation ship between the degree of suspicion and diagnostic difficulty is not seen in Table 16.

227 Polygraph 1977, 06(3) TABLE 16

Degree of suspicion and diagnostic difficulty

Situation Arrested Emergency Ordinary Voluntarily Others suspected during the arrest arrest interrogated act of crime

Actual number 74 77 272 664 342 % 5.2 5.4 19.0 46.5 23.9 Easy diagnosis 70.3 77.9 69.5 68.8 81.6 Difficult diagnosis 29.7 22.1 30.5 31.2 18.4 Total 100.0 100.0 100.0 100.0 100.0

Previous criminal offense: Among the examinees, 913 (63.9%) had no previous criminal record, 145 (10.1%) had one offense, 224 (15.7%) had 2~ offenses and 147 (10.3%) had 5 or more offenses. In order to see the rela tionship between the number of previous offenses and attempts to obstruct or "beat" the polygraph test, a ratio of such acts according to each category (by number of previous offense) was obtained. The results showed that 6.5% in the no previous offense category, 0.9% in one offense, 12.9% in 2~ offenses and 17.0% in 5 or more offenses tried to obstruct the examination. It can be seen among those committing previous crimes that as the number of offenses increased the number of obstructive actions increased, but for some reasons, the rate of obstruction among those with no previous offense was very high. Number of prior polygraph tests: It is assumed that in accordance with the increased number of subjects examined that more subjects are being exposed to repeated polygraph tests. Among those investigated during the survey period 95.1% had no previous polygraph test, 3.7% had one and 1.2% had two or more. A calculation of the number of subjects engaging in obstructive actions ac cording to the number of previous tests shows that 8.1% of those with no pre vious test, 22.6% with one test and 23.6% with 2 or more made attempts to ob struct the examination. It can be seen that those with previous polygraph experience tended to obstruct the examination more frequently than those simply with previous criminal records. Table 17 shows the relationship of examinees with previous polygraph experience on diagnostic difficulty. The table does not show that the diag nostic difficulty increased with increasing numbers of prior polygraph test. As a matter of fact, those with 2 or more previous tests tended to be easier to diagnose. However, there were only 17 with 2 or more tests which is not enough to draw a conclusion.

228 Polygraph 1977, 06(3) TABLE 17 Polygraph experience and diagnostic difficulty

Examination histo~ None One 2 or More Total Easy Diagnosis 985 (72.5) 38 (71.7) 14 (82.4) 1037 (72.6) Difficult Diagnosis 74 (27.5) 15 (28.3) 3 (17.6) 392 (27.4)

Total 1359 (100.0) 53 (100.0) 17 (100.0) 1429 (100.0)

Pre-Test Investigation by Examiners

Preparation of questions: The following procedures are taken in com piling questions: (1) visit the scene of crime, (2) talk to victim, (3) read the investigation record and (4) coordinate with investigator. During the present survey period, 48.8% visited the scene of crime and 51.2% did not, (2) 46.5% talked with victims and 53.5% did not, (3) 87.7% read the investiga tion records and 12.3% did not and 92.5% coordinated fully with investigators, 7.3% briefly and 0.2% not at all. The results of the cross total of information collection activities and d.5.agnostic difficulty show: (1) diagnosis becomes more difficult with less information collection activity in all cases, (2) difference between with and without collection activity becomes greater in the following order: coordina ting with investigator, reading investigation records, visiting scene of crime and interviewing the victims.

Period Between Crime Occurence and Examination Table 18 shows the relationship of lapse of time between the occurence of crime and investigation on diagnostic difficulty. Over one-half or 55.8% of the examinations were conducted within one month after the occurrence of the crime. However, this table does not show that shorter lapse of time made diagnosis easier. For example, examinations conducted within 6 months showed slightly easier diagnosis than those conducted within 3 days. A check on the cross total of lapse of time and number of question lists shows that 4-6 lists were used most frequently followed by 6-11 lists, 1-3 lists and over 11 lists but showed no difference in the order of diagnostic difficulty. A detailed study of the examinations conducted in 6 months or longer (15% of the total) shows that 30.4% of the examinees who committed felonies were investigated in 6 months or longer and 3.0% were involved in shop theft. This shows quite a difference. In the case of felonies, an investigation takes longer and the retention of criminal act by the criminal is better because of the very na ture of the crime, but the reverse is true in more cases involving shop theft. Thus, it is difficult to generalize that diagnostic difficulty depends on the lapse of time. In contrast, it is not known why the examinations "within three days" showed greater diagnostic difficulty.

229 Polygraph 1977, 06(3) TABLE 17 Polygraph experience and diagnostic difficulty

Examination histo~ None One 2 or More Total Easy Diagnosis 985 (72.5) 38 (71.7) 14 (82.4) 1037 (72.6) Difficult Diagnosis 74 (27.5) 15 (28.3) 3 (17.6) 392 (27.4)

Total 1359 (100.0) 53 (100.0) 17 (100.0) 1429 (100.0)

Pre-Test Investigation by Examiners

229 Polygraph 1977, 06(3) TABLE lB Relationship of lapse of time between the occurance of crime and examination on diagnostic difficulty

Time lapse from Within Within Within Within Within Over crime occurance to 3 days 10 days 1 month 3 months 6 months 6 months Total examination

Actual number lOB 2B6 403 320 9B 214 1429 % 7.6 20.0 2B.2 22.4 6.9 15.0 100.0 Easy diagnosis 66.7 75.9 76.2 66.6 66.3 76.2 72.6 Difficult diagnosis 33.3 24.1 23.B 33.4 33.7 23.B 27.4 Total 100.0 100.0 100.0 100.0 100.0 100.0 100.0

Physical detention prior to investigation:

In the past, the length of physical detention was kept at a lIIJ..IlJ.IllUl because (1) the examinee's fatigue can lower the physiological response, (2) Peak of Tension (POT) testing as to critical questions to be asked become known inadvertantly to examinees while being detained and (3) an actual criminal's suspicion that the examination after long detention is used as a last resort because of the lack of conclusive evidence causes relaxation of psychological set during the examination. According to Table 19, which shows the detention period of examinees during the survey period, over one-half or 62.6% of the examinees were not detained. The rate of easy diagnosis decreased from the column for "within 5 days" used as a demarcation line, but from the response confusion and weakness standpoints, which are the principal factors for diag nostic difficulty, the rate of response confusion shows a decrease, although small, as the length of detection decreased. Such a trend is not seen in the rate of response weakness column and also in the rate of "beat the machine" column. According to the table and reasons (2) and (3) given above, it is desirable to reduce the length of detention. The most desirable period is within 2-5 days. Table 20 shows the detention period and confession time of positive ex aminees. According to this, the rate of rejection lowered as the length of detention to examination time became shorter. This shows that it is more desirable to reduce the length of detention time when using examination re sults for effective interrogation.

230 Polygraph 1977, 06(3) TABLE 19 Physical detention prior to examination and diagnostic difficulty, disturbed response, faint response, obstructive act

Length of Within Within Within Over No Physical Detention 2 days 3 days 10days 10 days detention Total

Actual number 106 120 142 166 895 1429 % 7.4 8.4 9.9 11.6 62.6 100.0

Easy diagnosis 77.4 82.5 65.5 72.9 71.7 72.6 Difficult diagnosis 22.6 17.5 34.5 27.1 28.3 27.7 Total 100.0 100.0 100.0 100.0 100.0 100.0

%of response disturbed 3.8 5.0 6.3 8.1 6.4 6.3

%of faint response 8.5 5.8 12.0 9.0 12.1 il.O

%of obstructive act 12.3 3.3 12.0 13.3 7.8 8.8

TABLE 20 Length of detention of examinees confirmed as positive to investigation and length of time taken for confession

Length of detention to Within Within Within Over No Physical examination 2 days 5 days 10 days 10 days detention Total

Confession 22 25 10 10 35 102 during investi- (15.2) (14.1) (22.0) gation (39.3) (34.7) (17.6) Confession 16 21 20 22 114 193 within one day (28.6) (29.2) (30.3) (31.0) (57.3) (41.6) Confession 11 16 22 23 22 104 2 days or after (19.6) (22.2) (33.3) (32.4) (16.1) (22.4) Rejected 7 10 14 16 18 65 (12.5) (13.9) (21.2) (22.5) ( 9.0) (14.0) Total 56 72 66 71 199 4f (100.0) (100.0) (100.0) (100.0) (100.0) (10!

231 Polygraph 1977, 06(3) Summary:

1. Two-thirds of the examinations conducted during the investigation period (1 April to 31 July 1973) were carried in 10 prefectures showing con trasting phenomena between prefectures with high number of examinations and low number of examinations. 2. About 60% of the examinations were conducted by examiners with over 10 years of experience, therefore, success of the polygraph technique should be reviewed.

3. Examiners with experience up to 20 cases show a higher rate of diagnostic difficulty than others, indicating that a program such as an apprentice ship should be given. 4. Specialists handled about three times more cases than the part-time examiners, but the rate of diagnostic difficulty remained the same. 5. Examinees with higher education tend to provide easier diagnosis. 6. Examinees with poorer health tend to make diagnosis more difficult. 7. Generally speaking, a longer period from the occurence of crime to ex amination does not create more difficult diagnosis, but this depends on the type of crime. 8. In the case of actual criminals, a shorter detention hastens confession and lowers the rate of rejection. 9. Examinees' job security, living condition, family situation and marriage have no effect on the diagnostic difficulty. 10. Relationship between examinees' medical history and responses in various indices cannot be detected. 11. Examinees who have been exposed to polygraph previously tend to use ob structive acts, but this does not necessarily increase the rate of diagnostic difficulty. 12. Coordination with investigators and reading of investigation records are indispensable in conducting effective examination and in contributing to easier diagnosis.

******

232

Polygraph 1977, 06(3) STIPULATIONS By Rita M. Jacobs

In any discussion on the use of the polygraph technique, no matter how elementary, the necessary components set forth are an examiner or polygraphist, a subject or examinee, an issue, an instrument and a technique. In the use of polygraph results in the courtroom, one further component is often involved, the stipulation.

Since the results of a polygraph test are not generally admissible into evidence in most United States courts, the examination is most useful as an investigatory and plea bargaining tool. This tool can be utilized most ef fectively by a defense counsel who is relying heavily upon the truthfulness of the defendant, a witness or even the victim.

The useful application during the investigatory stages of the case are obvious. Once counsel is convinced that he is dealing with a verifiable de fense, it is simply a matter of acquiring the services of a competent and qualified polygraph examiner to give the defense scientific credibility. Having done so, this is a good time to approach the prosecutor, but not with out that extra tool, the stipulation.

While one of the most obvious provisions to be set forth in the stipu lation is that charges will be dismissed against the defendant if he is found to be truthful in his examination, this is not the only factor to be considered. The rights of the defendant must be protected even if he is found to be de ceptive. A flagrant violation of this principle is set forth in the case of State of Missouri vs. James Martin Fields, 434 S.W. 2d, 507 (196B). In this case, defendant voIUntarily submitted to a polygraph examination to be administered by Sgt. Joe Duncan of the Missouri Highway Patrol. In his stipulation, he specifically agreed that Sgt. Duncan should be permitted to testify without objection. The stipulation stated in part that the defendant waived "absolutely and irrevocably, each and every objection to the use in evidence by the prose cution of the results of said test ••• Sgt. Duncan's conclusions drawn from the test. •• whether defendant's answers were truthful or not ••• " In his stipu lation, defendant expressly waived all objections to the "relevancy, materiality, competency, accuracy, constitutionality, reliability and all other objections that could be made to such eVidence." Having signed such a stipulation, there is little question as to why the Supreme Court of Missouri upheld the convic tion of the lower court, in spite of the points raised in the defendant's brief regarding the polygraph that:

The author is a graduate of the polygraph course at the University of Baltimore and is in private practice.

233 Polygraph 1977, 06(3) 1. The testimony and exhibits concerning the polygraph test and its results were inadmissible because (a) such a test is not sufficiently ac curate or certain to justify its use in a criminal trial and the stipulation did not make it so; (b) the stipulation was an agreement to rely upon "chance," (c) that this evidence violated defendant's right under the Fourth, Fifth and Fourteenth Amend ments of the United states Constitution and Article I, Sections 10 and 19 of the Missouri Constitution.

In the case of William James Butler ~. State of Florida, 228 S2d 421 (1969), a similar stipulation was entered into by the defendant, giving wide scope of powers to the prosecution if, in fact, defendant were found to be de ceptive. However, included in the stipulation was the provision "that the State will be bound by the results of the test or tests if it develops that he (defendant) is telling the truth when he denies any participation in any of the alleged rapes." The results of the polygraph test indicated that the defendant had been truthful in his testimony and accordingly, charges were dropped. However, defendant was reindicted by the state, tried and ultimately found guilty. The District Court of Appeal of Florida reversed the finding of guilty and based its decision on the fact that the stipulation acted as a con tract and " ••• this was a pledge of public faith, a promise made by state of ficials and one that should not be lightly disregarded." The stipulation entered into in these two cases gave prosecution a wide scope of power if, in fact, defendant was found to be deceptive in his poly graph examination. However, there was no consideration given to an alternative of plea bargaining if, in fact, the defendant was found to be deceptive. F. Lee Bailey and Henry B. Rothblatt, in their book, Investigation ~ Preparation -of Criminal Cases - Federal -and State, warn: You must be very careful in dealing with stipulations. A stipulation to allow unfavorable results in evidence without the safeguard of the plea alternative is very dangerous. To accept these terms, you must be very sure, not only of your client's innocence, but of his abilities as a polygraph subject, of the accuracy and reliability of polygraph use in general, and of the procedures to be employed in the specific examination. (p. 328) In accordance with this suggestion, all plea bargaining that has been entered into prior to the taking of the polygraph examination should be made a part of the stipulation, which will be executed by counsel for the defendant, counsel for the prosecution and of course, the subject of the polygraph exami nation. Two examples of cases where plea bargaining should have been used prior to the taking of the examination and should have been made part of the stipulation are State of Iowa ~. Darlene McNamara, 104 N.W. 2d, 568 (1960), wherein defendant was found guilty of second degree murder of her husband; and State of New Jersey vs. Lonnie McDavitt, 297 A2d. 849 (1972), wherein defendant was found guiltY of breaking and entering with intent to steal. In both of these cases, a rather broad stipulation was entered into providing

234 Polygraph 1977, 06(3) for a dismissal of charges if defendant were found to be truthful and the re sults of the polygraph examination to be submitted to the jury if the defendant were found to be deceptive. One component of the polygraph examination that is essential is the se lection of the polygraph examiner, as it is important that this examiner be qualified and competent. Not only are the qualifications and competence of the examiner important to the defendant or subject of the examination, but will also add validity to the polygraph examination itself and further the cause of admissibility into evidence. In the case of State of Wisconsin ~. Robert J. Stanislawski, 216 N.W. 2d 8 (1974), the defendant and complaining witness in a rape case submitted to a polygraph examination. Stipulations were entered into by all parties involved. However, there was no provision in the stipula tion as to whether or not the defendant and complaining witness would be ex amined by the same examiner. This lack of specificity was due in part to the fact that at that point in time, polygraph examination results were not gen erally admitted into evidence in Wisconsin, and there was no way to anticipate a problem. It is important to note that whenever polygraph results are admitted into evidence of a case, there is always the right to cross examine the examiner respecting "(a) the examiner's qualifications and training; (b) the conditions under which the tests were administered; (c) the limitations and possibilities for error in the technique of polygraphic interrogation; and (d) at the dis cretion of the trial court, any other matters deemed pertinent to the inquiry." These rights have been set forth in several decisions, but the Supreme Court of Wisconsin was specifically quoting from the case of Arizona vs. Fernando E. Valdez, 91 Arizona, 274 (1962). By virtue of this, it would seem that there would be nothing more required in the stipulation other than that the examiner be qualified and competent and that his qualifications could be set forth more fully during his testimony. However, this does not preclude naming either a specific individual examiner or agency in the stipulation. In the case of United States of America vs. Joseph Armand Oliver, 525 F2d. 731 (1975), the lower court ruled to admir-the results of a polygraph ex amination of the defendant into evidence, having obtained a waiver of his rights from the defendant on the record. Because the admission of the results of a polygraph examination is discretionary with the court and the defendant had voluntarily submitted to not one, but two polygraph tests administered by two different examiners, the Court, in its discretion, decided to only allow one into evidence. This was the test that had been administered by Mr. Leonard Harrelson and was admitted by the Court because of the qualifications of Mr. Harrelson, and his experience. While it cannot be denied that the Court acted wisely in using its discretionary powers in admitting the testimony of the established polygraph examiner, this entire problem could have been avoided if counsel had originally obtained the services of a qualified examiner and al lowed a proper examination to be conducted. Defense counsel is not only allowed, but obliged to protect the interest of his clients. This includes his right to review questions that are to be used in a polygraph examination prior to the test being given, and this con dition should be in the stipulation itself, subject to minor revisions in wording agreed to by the defendant and the examiner. However, when Mr. Olive"!";; counsel insisted that the "hot question" regarding the rape not be used in t·

235

Polygraph 1977, 06(3) polygraph examination conducted by the examiner of his choice, Mr. Hollis, the scope of the examination came under question. For the sake of discussion, if the results of the late Mr. Hollis' poly graph examination had been stipulated to, and he had been called to testify in this case, it is certain that under cross-examination, he would have been asked whether or not he had asked certain questions and included among these would have been the "hot question." Therefore, it is impossible to make any judg ment as to whether or not the results of the test would have been admitted by the judge even if it had been given under stipulation agreed to by defense and prosecution.

In the case of State ~. Baskerville, (N.J. Sup.Ct., 5/11/77) as reported in 21 CrL 219B, the Court found that although there was no provision set forth in the stipulation to allow the Defendant to call his own expert to refute the conclusions of the agreed-upon polygraph examiner, denial of this right vio lated the Sixth Amendment privileges of the defendant to call witnesses in his own behalf. In the instant case, however, the Court decided to leave for "another day," whether or not defendant has the right to have another polygraph examina tion conducted for the purpose of contradiction of the agreed-upon examiner's results. If a situation such as this were to prevail, great care would have to be taken to protect the integrity of the polygraph profession. While the American Polygraph Association has set a code of ethics as guidelines for its members to follow, as have state and local associations, membership in these organizations is not required for an individual to qualify as an expert. For these reasons, it is important that qualified polygraph examiners lobby lo cally to encourage mandatory licensing for the express purpose of eliminating the individual who purchases an instrument, puts out a shingle and advertises without receiving proper training. Concurring with the principles set forth in the Baskerville case, supra, Judge Raper, in the case of Cullin vs. state (Wyo. Sup. Ct. 5/26/77) as re ported in 21 CrL 229B, admitted stipulated polygraph evidence, including ex pert testimony offered by the defense for the purpose of contradicting the conclusions of the agreed-upon expert. In so doing, the Court left the matter of validity in the hands of the jury. other pertinent points raised in the Cullin case included a second sti pulation which protected certain plea-bargaining negotiations that had pre viously taken place and the necessity of submitting appropriate jury instruc tions to cover what weight polygraph examination results should be given. It is interesting to note that in this case, Judge Raper made the fol lowing observation: We do not hold that it (polygraph examination without a stipulation) is otherwise barred in a proper case. We only say that we will consider the case of admis sibility without stipulation when we come to it, viewed in the light of circumstances then and there existing.

236 Polygraph 1977, 06(3) The matter of polygraph results without stipulation was raised in the case of People ~. Barbara, (Mich. Sup.Ct. 6/13/77), reported in 21 CrL 2298. Although the admission of the results of two examinations (one of the defendant and one of the witness) were being sought in only post conviction proceedings and not during an actual trial, the question stirred up a great deal of con troversy. Justice Williams, in his majority opinion to allow the results, was willing to accept the polygraph examination results as an "aid" in deter mining whether or not the defendant should be granted a new trial. However, he felt that results should not be allowed as evidence at trial. The dissenting opinion by Justice Coleman stood adamantly by the posi tion that polygraph results are unreliable, but influential, and should not be admitted during any court proceeding. Another point raised in the Oliver case regarding stipulation, concerns the right of the polygraph examiner to interrogate. In this case, defense counsel imposed a restriction upon Mr. Harrelson that he would not be allowed to obtain a confession from the defendant. Mr. Harrelson was allowed to testify as to this point in open court, however, he did not indicate by whom the re striction was placed. Since there was no written stipulation in this case, the subject of interrogation was covered during the verbal stipulation, on re cord, before the trial court. Along these same lines, on March 16, 1977, an appeal was filed in the matter of Donald Ray Watson vs. State of Maryland, in the Court of Special Appeals of Maryland. This case is cited in ~ Daily Record of May 5, 1977. A polygraph examination was conducted under the conditions of a stipulation wherein defense counsel instructed defendant to answer only those questions propounded during the polygraph examination. After the examination was ad ministered and the defendant was told that he had "failed it," he requested that he be allowed to speak to Detective Hopkins of the Baltimore County Police Department, who was the investigating officer in this case. Detective Hopkins re-read the Miranda warning to Watson and asked him if he would like to have his counsel present, and when he received a negative response, allowed Mr. Watson to give a confession. On appeal, appellant argued that the "Coercive atmosphere generated by the lie detector examination ••• made it impossible for him to exercise his free and unconstrained will." There is no indication that he defendant was actually interrogated by the examiner as to his part in the crime alleged, and the Court denied the appeal. What is pertinent to stipulations in this case is whether or not the matter of interrogation and confession should, in fact, be made part of the stipulation or treated as a separate entity, and not as part of the polygraph examination. In the case of People of the State of Illinois vs. Eugene Potts, 220 N.E.2d 251 (1966), it was stipulated that "if the operator who administered the test could make a written report, he would not be called to testify, and the report would be admitted into evidence." The low court, did in fact, in its discretion, decide to admit the results of the polygraph test into evi dence, showing the subject to be deceptive in his answers. The Appellate Court of Illinois, Fifth District, in its wisdom, reversed the decision of the lower court in spite of the provision in the stipulation that the written

237 Polygraph 1977, 06(3) report would be admitted. The Court was not convinced of the qualifications of the examiner and did not know of the conditions under which the test was administered. Nonetheless, the written result of the examination is interesting, and goes far to explain why it was excluded. It states:

The graphs in this subject's tests show a heavy emotional disturbance throughout. The graphs in the subject's tests further indicate deception to rele vant questions and muscle movement which mayor may not have been indulged in for the purpose of beating the test. The subject was requested to refrain from such acts at numerous intervals throughout this test. His graph recordings indicate that he was not too cooperative under test.

Without the ability to cross examine on the conditions under which the test was given or the qualifications of the examiner, the results quoted above might suggest an inconclusive finding rather than that of deception. The question of the presence of counsel during the polygraph examination is raised in the case of People ~. Mack Zee Davis, 76 Cal. Rptr. 242 (1969). In this case, one of the points raised in the defendant's brief argued "that he was denied the presence of counsel during the polygraph test and that he was entitled to counsel during all stages of the proceedings." While this argu ment seems to pose a constitutional question as to defendant's right to counsel, it is also important that the test be administered under proper conditions. During cross examination of the polygraph examiner, the point should have been made that proper conditions do not include counsel for the defendant being present in the room during the examination itself. This situation could have been avoided in the stipulation, wherein counsel for the defendant would have been given the right to review the relevant questions prior to the examination being administered, but not be allowed in the room during the test. The most important trial pertinent to polygraph stipulations is the case of Arizona ~. Fernando E. Valdez, supra. As a precedent in setting forth the conditions under which the results of a polygraph examination may be admitted into evidence, this case goes somewhat further in that it recommends that the trial judge instruct the jury "that examiner's testimony does not tend to prove or disprove any element of crime with which a defendant is charged, but at most, tends only to indicate that at time of examination, defendant was not telling the truth." In the case of state vs. Sims, Cuyahoga County (Ohio) Common Pleas Court, 4-25-77, Judge Hitchcock, during post conviction proceedings, granted the de fendant a new trial, the right to submit to a polygraph examination and to have the results of deception or non-deception admitted into evidence. The Court did go one step further in its proposed stipulation by adding that if the results of the test were inconclusive, the fact that the test had been ad ministered at all would not be disclosed to the jury. Conclusion To this point, the discussion has centered on the legal ramifications

238 Polygraph 1977, 06(3) of admitting polygraph results into evidence under conditions of a stipulation. As polygraphists, it is important to remember that even though we are constantly striving for scientific and legal acceptance, our first duty and obligation, a requirement of the ethics of our profession, is to our subject. At no time should we allow the conditions of a stipulation to interefere with our pro fessional duties. This includes allowing the counsel for either side to formu late the substance of questions that would either skirt the issue or otherwise make the results of the test ineffective. It is the duty of the examiner to safeguard the proper polygraph atmosphere, and not allow it to be violated by permitting other persons to be present during the pretest interview or the ac tual examination. While it is impossible to set forth a sample stipulation that covers all situations, certain points should be remembered in formulating a stipulation. Points to be covered are:

1. Agreement as to choice of the polygraph examiner, including his or her competence and qualifications. The examiner may be named. 2. A provision for dismissal of charges if, in fact, subject is found to be non-deceptive. If this is not acceptable, provision for the defense to submit the polygraph results into evidence. 3. A provision which would allow for the review of the substance and scope of questions by counsel for both sides prior to examination.

4. A statement protecting any plea bargaining negotiations or pos sibilities. 5. Agreement as to whether or not results of a polygraph examination will be admitted into evidence if subject is found to be deceptive. 6. Agreement as to whether or not examiner is permitted to proceed with interrogation after the examination, and if so, whether or not the fruits of such interrogation are to be admitted as part of the polygraph examination itself.

****** Cases Reported Butler, Willie James vs. state of Florida, 228 So. 2d 421. Cullin vs. State of Wyoming, 21 Cr.L. 2297. (Wyo. SupCt., 5/26/77). People vs. Barbara, 21 Cr.L. 2298 (Mich. Sup. Ct. 6/13/77). People vs. Davis, Mack Zee., 76 Cal.Rptr. 242. People vs. Potts, Eugene, 220 N.E.2d 251. state of Arizona vs. Valdez, Fernando E., 371 P.2d 894.

239 Polygraph 1977, 06(3) State of Ohio vs. Towns, 301 N.E. 2d 700. state of Iowa vs. McNamara, Darlene, 104 N.W.2d 568. state of Missouri vs. Fields, James Marvin, 434 S.W.2d 507. state of New Jersey vs. McDavitt, Lonny, 297 A2d. 849. State of Utah vs. Rowley, High F. and Donald Spencer, 386 P2d 126. State of Wisconsin vs. Stanislawski, Robert J., 216 N.W.2d 8. Thomas, Richard Leroy vs. State of Maryland, 353 A2d 256. United States vs. Oliver, Joseph Armand, 525 F.2d 731. Watson, Donald Ray vs. State of Maryland, The Daily Record, May 5, 1977. (Filed 3/16/77). ******

Answers to Polygraph Review on Polygraph Concepts

1. c.

2. d.

3. b. 4. d. 5. a. 6. True

7. False 8. True 9. True 10. False ******

240 Polygraph 1977, 06(3) THE PSYCHOLOGY OF EVIDENCE By Dr. rer. nat. H. Herbold

Since the end of the second world war there has been a lively exchange of information between Germany and America in many fields of science and tech nology but, strangely enough, this has not included the field of forensic psychology. On the one hand, practically nothing is known in Germany about the potential of the Polygraph technique as a significant and in the detection of crime. The Polygraph technique is known as only the lie detector, and for most people this is only a very vague concept. The attitude is one of preju dice rather than real knowledge. In 1955, in the Federal Republic of Germany the Federal Supreme Court banned the use of this method of crime detection and nothing leads one to believe that this judgment will be changed in the near future.

On the other hand, the psychological study of the testimony of witnesses, which has been highly developed in Germany, has never spread to this country. In Germany this method of assessing testimony, particularly that of children, is widely practiced in day to day legal proceedings, it has never been publi cized in America. There is no mention of it on the specialist journals. In Vol. 27 of the "Annual Review of Psychology" 1976, there appeared for the first time an article on "Psychology and the Law" but it does not refer to the Psycho logy of testimony nor is there any mention of the relevant German publications on the subject. From a methodological point of view the psychology of testimony comes under the heading of applied psychology. The reason for the development of this particular area was that a very real need for it existed.

In criminal proceedings in Germany a distinction is made between ob jective evidence and personal evidence. Objective evidence includes such things as fingerprints, comparison of blood groups, weapons used and so forth. The testimony of witnesses is personal evidence. More weight is given to objective evidence than to personal evidence, but it is not always available to the judge, who frequently has to rely solely on the testimony of witnesses. This is al most invariably the case with sexual crimes of the nonforcible kind, and in particular those committed against children. In such cases material evidence which could lead to the conviction of the criminal is very rare, and given the privacy in which sexual acts normally take place in our society, witnesses other than the participants are seldom to be found. In such cases it is there fore an invariable rule that the testimony of the young victim of such crime forms the basis for the conviction.

Note: The author wishes to express her gratitude to Mrs. Margaret K. Register, M.A., German Department of the University of Durham, England, who translated this article into English.

241 Polygraph 1977, 06(3) And as the special way in which children perceive and remember exper iences is actually a research field of psychology, it was natural that psycho logists became experts in cO'llI"O about testimony of children. By the beginning of this century psychologists were already turning their attention to the testimony of witnesses. Key figures in this field were Binet in France, the author of ~ Suggestibilite, and William stern in Germany. In the years following 1902 stern, together with other authors, published a series of experimental tests on the subject. Witnesses' accounts of pictures, places, times, events and objects were tested and the degree of recall, de

pendent on both internal and external factors, was measured1 as was the in fluence of concentration, interest, and suggestion. The subjects were adults, children and young people from various social classes and of both sexes. For a time it was also the practice to take a group of subjects - usually the mem bers of a school class or a seminar, and to present them with scenes, which in some way or other departed from the everyday pattern, creating the impression that these events were spontaneous and real. The first person to carry out such an experiment, with the members of a law school seminar, was V. Liszt. Recently Trankell has returned to this kind of experiment, with his "assassi nation of a student" - "murder in the corridor" he calls it. The result of all these investigations into the value of testimony came as a great shock. Completely accurate accounts of a picture, an event, or a building that had been actually observed practically never occurred. stern summed up the result of experiments in the psychology of testimony in the classic phrase: "The completely accurate report is not the rule but the ex ception." As a result of the findings of these experiments into the general validity of testimony, psychologists and judges at the beginning of the cen tury approached the evidence of children, who had been the victims of sexual offenses, with extreme caution. In general the testimony of the child was not accepted and the accused was acquitted on the ground of a lack of evidence. This practice changed radically after the second world war. A greater degree of contact with the real situation made it clear that the testimony of children, relating to indecent assaults, that they had suffered was in the great majority of cases, true. This better contact with the real situation means taking part in the court hearing, and thereby being acquainted with the results of the whole judicial enquiry, it means improved opportunities for evaluating the young victim, for instance a whole day of testing. The fact that children are to be believed is now a generally accepted view in Germany and it owes much to the publications of Dr. Udo Undeutsch on the subject, based on his experi ence of hundreds of cases. From the very first Undeutsch adopted a nonconformist attitude to the testimony of children and emphatically rejected all previous preconceptions. In dealing with testimony about sexual offenses the validity of personal testi mony, as such, is not the point of issue, one fact had been overlooked: the circumstances under which the results of experiments were obtained were quite different from the situations in which victims described the sexual offenses that they had experienced. The quantitative and qualitative value of testi mony depends primarily on the extent of the demands which are made of it.

242 Polygraph 1977, 06(3) As more and more questions about details are put, the portion of the answers which is accurate and complete decreases, and there is a proportionate increase in the part which is less exact. One only needs to question the sub jects about sufficient minor details, ~.~., about a building or a painting, to realize that the number of details recalled accurately and complete is always very small. The tasks, which the psychologists set their subjects in experiments on testimony were very much more difficult than those with which a witness is faced when he has to describe how he was indecently assaulted. For him it is not a question of observing countless details, exact times, or of grasping difficult concepts, the witness only has to describe events which are extremely simple and straightforward, at least in their external aspects, and which make no exaggerated demands on his power of perception. Moreover, such occurrences are so obviously outside the realm of everyday experience that they always impress themselves much more powerfully on the witness. They affect him deeply and directly and their impact is so strong that they can still be reproduced some considerable time later. It was therefore not justifiable to apply the discouraging results of the experiments on testimony on the totally different circumstances in which information about sexual offenses is obtained. In addition, more recent investigations have revealed that in general testimony is not as unreliable as was believed; this is illustrated by the improved construction of experiments carried out by Marshal, Marquis and Oskamp, 1971. In evaluating the degree of truth in a testimony Undeutsch made a dis tinction between primary and secondary aspects. One secondary aspect in making such an evaluation is the personality of the witness, even today this is often considered to be of the greatest importance (and often abused by clever defense lawyers). Basically however the personality of a witness only distracts from the fundamental question of whether or not the statements he makes here and now about a particular matter are true, it is not possible to judge particular statements about a particular incident from the point 'of view of personality. Everyone even the most honest, tells lies at some time or another, and no one, not even the most criminal, lies all the time. Another secondary aspect is the question of motivation, that is to say, whether a conflict existed between the accuser and the accused before the accusation was made. In fact, that is often the case, but it is not of any great help in deciding whether or not his statements are true. It may well be the case the conflict gave rise to a false accusation, but it may equally well be that the conflict led to the revelation of incriminating behavior which would otherwise have remained concealed. Aspects such as these can only make a contribution to one's assessment of the truthfulness of a statement, they merely enable one to establish probability which in our legal system, is not sufficient ground on which to condemn an accused person. The primary aspects relate to the testimony itself, the actual material that is available. The methodological basis by which the criteria were for mulated, the criteria which allow us to discriminate between truthful and non-truthful statements, consists in comparing statements about a particular subject which undoubtedly reflect the truth with statements that undoubtedly do not. The ideal situation is when these two kinds of statements emanate from the same person, ~., a false retraction, of the original accusation

243

Polygraph 1977, 06(3) An example of this is given below:

I = Interrogator

D = Dora

On February 1, 1972, Dora F., age 10, gave the following statement to the police: [Dora went on her own initiative to the police.]

I. Dora, listen, why did you go to the police today?

D. Because Papa often does it with me.

I. Yes, what does he do with you?

D. He's always showing it to me.

I. What does he always show you?

D. Yes, what he has in front. How it's called I don't know. I only know that it doesn't look pretty. I don't know more than that.

I. Then what does he show you?

D. Papa, he's always showing me what he has in front where he makes peepee. Papa once told me that all men have it.

I. Dora, when was the last time that Papa showed it to you?

D. On Friday last. Mama wasn't there; she always leaves the house early in the morning. On Friday I had to be in school at 8:00 0' clock and be fore school Papa showed it to me; Papa wasn't working them.

1. And where did Papa do it?

D. In bed, in the bedroom where he always sleeps with Mama.

1. And how did you come to Papa?

D. Papa asked when I had to be in school, so I told him. Then Papa said that I should come into his bed for a ]fr,tle while. I didn't know what Papa wanted. So then I went to him in bed. Then Papa took off the bed covers; he had on his pajama bottoms and tops. Then he pulled his pajama bottoms all the way down. We both still lay in bed. Then he showed me what he has in front, where he always makes peepee. Then I had to grab it again, and I did that, too.

I. Dora, what did you have on then when you lay in bed?

D. My pajamas.

I. Did your father also touch you?

244 Polygraph 1977, 06(3) D. Yes, in front. He took his hand and stuck it into me in front.

1. And did it hurt?

D. No, it only tickled.

I. And what happened afterwards when you grabbed Papa in front?

D. Yes, then he also touched me in front. But I didn't hold Papa there very long. I simply let it go again. But then Papa stuck his finger in me in front again. It tickled so. He moved his finger back and forth over and over again.

1. What did Papa do then when he didn't do that anymore?

D. Then he moved his peepee in front up and down over and over again with both hands.

1. And Dora, did anything come out of his peepee then?

D. Yes, something white came out. But it didn't look like peepee. Then Papa lay on the edge of the bed and took his peepee in his hand and let the white stuff run onto the carpet.

I. And then what?

D. Yes, then Papa stood up and made the rug clean again. He folded the rug over and rubbed it away. Then I said that I had to be in school now. So Papa said I should get dressed. Then I went to school.

I. And did Papa do it only this Friday?

D. No, he did it with me several times. Three times. Once on Monday, one on Tuesday, and once on Friday. On Mondays I always have to be in school at 9:00 o'clock because we have gym. My mother was at work on Monday. So Papa did it again.

I. What did he do again?

D. I still lay there mornings in my bed in the kitchen. Papa had a cot there which you could fold up. Papa stood in front of my bed in the kitchen. He had his pajamas on when he stood there.

I. Were you already awake then?

D. Yes, I was already awake before then, before Papa came to my bed.

1. And what did Papa do?

D. Then Papa put his hand in his pajama bottoms. He has a fly in front in his pajama pants but no zipper. Then the thing in front came out of his pants.

1. What sort of thing came out of his pants then?

245 Polygraph 1977, 06(3) D. Yes, what he has there, what I already held once. Then he grabbed himself again there and kept going up and down with his hands. Then he asked me if I would go with him into his bed which I didn't do. Then he stuck the thing back in his. pants and went to his bed.

I. And did anything come out then, too, when Papa did it again?

D. No, only on Friday did something come out. And on Monday I didn't hold Papa and he didn't touch me either. Then I went to school.

I. When else did something happen with Papa?

D. Yes, when he lay on the couch, that was on Tuesday, a day later. Again it was before school; Tuesdays I have to be in school at 8:00 o'clock.

I. Where is that couch?

D. In the living room.

I. What was on the couch then?

D. Papa lay fully dressed already on the couch before I went to school.

I. What did Papa do then?

D. He opened his fly in front. There was a zipper in it. Again he took the thing out of his pants and showed it to me. Papa said that I should look at it. Then he stroked his hair with his hand and with his other hand he stroked his thing in front. He still lay there on the couch. And then he was rubbing the thing again, up and down. And then again he stopped and put it back in his pants, and nothing came out.

On February 2, 1972 Dora appeared again, accompanied by her mother, and gave the following account: [transcription of the interrogation.]

D. First of all I have to say that my father didn't do anything with me. I only said it to the police because I was afraid that I would get beaten for other things which I'll tell you now. My father never did anything with me. On Monday I went to school at 10:00 o'clock because 10:00 0' clock was what was written on my schedule. But actually school had started at 8:00 o'clock. By the time I got there, it was already over for me because I had gone first to a girlfriend (Susanne F.). And when I left her later, a boy from the school spoke to me and asked me if I would go with him. Because I didn't want to, he pulled me after him. Then we went into his apartment - exactly where it is, I can't say. But it was on the 3d floor of a white house. The apartment had three rooms - kitchen, bedroom, and bath. In the bedroom the boy - I think he was about 13 years old because he told me that he also goes to school - opened his pants in front. Then he took something out of there which felt like meat and was about 2 to 3 cm. long (a ruler was shown to the child who testified that the length corresponded to the demonstrated 3 cm). The thing was as thin as a cigarette. Then he made me hold it. Then he shook it back and forth. The thing stayed exactly as long as I showed the judge and didn't get any thicker. It hung down. Suddenly something white stuff came out

246 Polygraph 1977, 06(3) which looked like little balls. Three little white balls carne out. He let the little balls fall on the rug and then beat it to wipe them off. Then I left and asked someone on the street where a street was and so I got home. Days later I went to the boy again on my own, i.e., the boy got me at school again and we went to his apartment again. -Here he showed me his thing again but I didn't have to touch it. Then I went home again. The third time I went to the boy's house by myself. Although I don't know the street, I found the house. I rang the bell somewhere because I only knew that the boy's first name was Michael. When a woman opened the door, I excused myself and left again. Suddenly the boy looked out the 3rd story window of the house and called something out to me. Then he carne down and we went together into a nearby toy shop on the corner. There he bought some little balls. I waited outside but ran away before he carne out again. Since then I haven't seen the boy again. He doesn't go to my school But I believe he goes to the school on L-Street. What I've said is all true. I haven't lied. Anyway my father didn't do anything. Such comparisons have shown that accurate testimony has a quite dis tinctive physiognomy, which enables the expert investigator to distinguish between the two types of testimony and even to tell which particular parts of a person's testimony are true and which are not. The layman may think this suspect, since psychological practice in this field makes no use of instruments or statistics. However, this method is remarkably accurate and this is proved by the fact that those convicted-frequently confess to the crime later. It is interesting to note that the Swedish psychologist Trankell has also developed a "psychology of testimony" some time after Undeutsch, and independent of him, and one which in many ways coincides with him, except that he uses more theoretical terminology. If an account follows one or more of the following criteria it may be assumed that it is based on a real event which was actually experienced. The first criterion is a negative control criterion, which states that nothing must contradict established facts of medical, psychological or psy chological nature. Example: An ll-year-old boy, an habitual runaway had gone off yet again, this time in the company of a 14-year-old, and they had been away for 11 days. The 14-year-old told the father of the younger boy that during their "tour" his son had often been picked up by a man in a car, who had taken him to the movies. This made the father suspicious, and he told his son off. The boy said in evidence: "He just kept on at me. He gets everything out of me in the end. I can't go on saying "no". So finally I told him about the man too. The boy then stated that on several occasions in the course of one evening he had had to rub the man's penis, that on each occasion something had come out and that he had got 10 Pfennig (a dime) for this time. "I often did it with him that Friday evening. I don't remember how often". What the boy was claiming was a physiological impossibility. The accused ad mitted, that he had been with the boy on several occasions, but denied any kind of improper behayior.

247 Polygraph 1977, 06(3) The positive criteria are: The description must be realistic and true to life. In order to apply this criterion accurately, in the field of sex crimes with children, one must have an extensive knowledge of the criminology of sexual offenses. What counts as "normal" sexual behavior cannot be taken as a yardstick. Legal experience shows that in this area virtually everything can happen.

The next positive criterion arises when the description of the experience is remarkable for its concrete, visual qualities, its originality and vivid ness. Indications of this appear in apparently trivial or side issues:

Example: A l2-year-old girl, Roswitha told about her experiences she had together with her girlfriend: "And we often played up in the shrubbery, and then Mr. S. used to come along and say to us, "come quick, I have found another hedgehog"- or something like that, and so we went with him, because we didn't know what it was. And then he said - she said - "come on, let's see the hedgehog then", and then he pulled out his thing and said "There you are, That's your hedgehog". And then we always had to get hold of it and kiss it. In describing various other sorts of indecent behavior, Ros witha also said: "Then we got upstairs again, he locked to door, and he gave us an apple each, and he rubbed the apple around (she meant he rubbed his penis against the apple), and then he told us they would taste extra good. But we didn't eat them, and when we got downstairs, we threw the apples away".

This account is particularly remarkable for its original and individual quality.

Trankell calls this criterion the "Competence Criterion" and explains that a witness sometimes can describe occurrences which she or he definitely have not experienced earlier, nor have the competence to invent. Therefore this criterion is often fulfilled when children report on sexual matters.

Example given by Trankell: An eight-year-old girl said: Interrogator: "Can you tell me a little more about what happened in the boiler room?" "Yes, Bjorn and I were out playing and then his mother called from the window and said he should come in and eat. Then Bj orn went in and ate and I said 'so long' to him. 'So long' I said. I am going home. "Come here', said the man (R.) to me then. And I had to stand with the newspaper there under his dick and pull him. Then we went over, he took a newspaper there. 'Hold this a moment he said. Then he took out his dick. Take hold of this' he said, "So I did and he took my hand and I had to stand way back wards and forwards and pull until it came. Then he burnt it (the newspaper) in the boiler." This detail in her formulation "then he burnt the newspaper in the boiler" refers to the place of the assault, the boiler room indicated by her in the beginning of the interrogation. So her evidence has inner consistency, or in the terminology of Trankell, it is homogeneous.

248 Polygraph 1977, 06(3) The best guarantee of the accuracy of the testimony is when, distinc tive, unusual details are given, which by their very nature, could not have been invented by the witness, or by an adult coach.

Trankell calls this the Criterion of Uniqueness. In the boiler room example this criterion is illustrated by the detail to the newspaper.

Example: The 13-year-old girl described several occasions on which she had been sexually assaulted by her father. Her father ran a bar and the family lived in the two floors above it. "My father came upstairs and fooled around with my brother and me. And then in the evening he said to me. 'I'll come up and see you tonight, shall I said 'no'. I'd locked my door and everything. And then, round about 3 or 4 in the morning, I went downstairs to get a drink, and he was sitting there. I tried to run upstairs again, but he ran after me, pulled me down again and locked us in the dining room. Then he took the salad oil." She went on to explain that the salad oil was used as a lubricant during the intercourse which followed, during which he was half seated on a bar stool before the breakfast bar counter and she stood in front of him.

The use of the salad oil which was standing on the bar counter arose invol untarily from this particular setting, but such a detail is decidedly original and distinctive.

In the account however there is another factor that underlines its accuracy, and that is the roundabout way in which it all took place, the father had actually planned a different course of events, which she had countered. In the case of an invented testimony to support a false accusation such an ad mission would have been quite superflous, because it did not add anything to her case, but in real life things often do happen in this way.

The salad oil example leads on to a further criterion: Real events do not take place in thin air, but form an intrinsic part of the lives of the victim and the assailant. They arise from a particular situation and must correspond to subsequent developments. That holds good for the account given by the witness who, on the way to the kitchen in her nightdress had to go past the dining area where she met her father, who was sitting there so late be cause of his profession as a bar keeper. Another example for this is "Dora's report, ••• who forgot in the course of telling ~er false retraction to consider the time factor of the events.

Another very important criterion is revealed when a witness gives details that are beyond his imagination or his ability to understand them.

A 7-year-old girl told me that the old gentleman next door, who was supposed to keep an eye on her when her parents went out, had committed various indecent acts with her, these were all quite typical of the case and realistically described. Then she added the following detail: Before any of these acts took place, the old man said to her "come, on, let's play man and wife'. When I asked her what that meant. She said "it means doing the dishes and looking after him".

249 Polygraph 1977, 06(3) The child had not understood this lead up to the subsequent events, which the grown-up had introduced. She was repeating truthfully what she remembered of the whole occurrence but, in complete accordance with her stage of develop ment, she did not link .the idea of being man and wife with any sexual conse quences. Another 9-year-old girl witness said:

After he had licked me, I had to lick him - then, when something came out, he said 'stop, stop,' and then he got his handkerchief and held it there for a long time, and I didn't have to do any more licking, when stuff came out.

Two points are worth noting here: The witness said that she had to stop im mediately after ejaculation and that the man, who did not want any further stimulation, had put his handkerchief to his penis and had 'held it tight.' She described the psychological process of stimulation and orgasm very accur ately and precisely, but without any personal understanding of what was hap pening. Besides this description is outstanding realistic and factual, but there is still another point worth to note: This victim had experienced some thing that only such intimate sexual contact can reveal, and that is that one's partner expects his actions to be reciprocated, which she can only know by such an intimate sexual contact.

The value of the testimony is particularly high if it reveals not only the external events but also things of a psychic nature or psychic reactions that were caused by the external event.

So one very young girl witness testified that she had been made to take hold of the penis of an elderly man and that afterwards she had had to sleep in a room with no wash basin in it. On that particular evening, she had not followed her usual practice of sucking her thumb, but had kept her hand stretched as far aw~ from her as possible.

This feeling of revulsion was a very understandable reaction to what had happened.

If the relationship has lasted for some time, the testimony may reveal some degree of development in it. There m~ be a progressive build-up in the relationship, ~.~., sexual activity becomes more intense, beginning with physical contact with the victim, who is then later required to touch the active party, and this leads finally to full or partial intercourse. This is often to find in the reports of victims of incestuous relations.

Unsuccessful sexual acts are often reported, resulting from unforeseen difficulties such as being surprised by a third party, which means that the act ceases halfway through, instead of being taken to its conclusion. The report of such fragmentary events are by their very nature proof of the fact that they do not arise from any desire for notoriety, nor are they just wish ful thinking.

Even if the witness is uncomplimentary about her own role in the action, perhaps admits taking the initiative, or mentions other factors that are not to her credit, this certainly does not indicate that she is making it all up.

250 Polygraph 1977, 06(3) The admission of one's own faults such as the fact that she was agreeable or took an active part in what went on are all strong indications that the testi mony is accurate.

Example: A 17-year-old girl said "when my father came to take me away from the boy he said I could tell whoever I liked that he'd sex with me, no one would believe me, be cause I'd been around so much already." Here she raises possible objections to her own testimony in the way in which she expects other people to do. Another very important criterion is the constancy of the testimony. Trankeli calls it the sequence criterion. If someone is repeatedly questioned on the same subject, and that is almost invaribly the case with sexual crimes, then one can compare the various testimonies. (In Germany, in cases involving sexual assaults on children, the normal procedure is that there is a police interrogation, sometimes followed by an interrogation by a judge, this mos~ly when the case is so severe that the accused is arrested, and then followed with an interrogation by a psychological expert.) To apply this criterion one must have some experience and psychological expertise. A personal ex perience remains in the memory as something exclusive and unchangeable. Therefore the description of events that have really happened must remain con stant in all its basic aspects. If, on the other hand, a witness relates things that he has merely invented, or which are figments of his imagination or if he introduces fantasies into the description of real events, then his recol lections are not vivid or constant. In such cases repeated questioning pro duces either faltering or varied answers and that is the more common - or a stereotyped repetition of the previous testimony, as if it had been learned by heart. One must know however, which aspects of a testimony can be changed and which cannot. Since the external circumstances, the so-called framework of events, impress themselves less deeply the central action the former can not be so easily recalled. It does not matter therefore, if the recollection of times and places varies, this does not mean that the statements about the main incident, the indecent assault itself, are untrue. However, if several acts are described, it is important to ensure that their fundamental nature is always portrayed in the same way, that characteristic details based on actual experience, are repeated each time and that all these acts accord with the main incident. It is not significant that children often elaborate on their testimony - what frequently happens is that a child describes one particular indecent assault and then in the course of repeated questioning goes on to describe further cases. This often happens when questioned during the psychological interview which is carried out in an objective and relaxed atmosphere. This does not matter as long as the new evidence fulfills one or more of the criteria. There is general agreement among those who have to deal with sexual crimes - that what the authorities find out is only a very small part of what is really going on. What we hear about is only the tip of the ice berg. References Binet, A: b!:. Suggestibilite, Paris 1900.

251

Polygraph 1977, 06(3) Marshall, J., Marquis, K. H., and Oskamp, Sa Effects of kind of question and atmosphere on accuracy and completeness of testimony. Harvard ~ Review, 1971, ~, 1620-1643.

Stern, W: Zur Psycho1ogie der Aussage. Ztschr. £. d. ~. Strafrechts wissenschaft, 1902, ~, 315-370.

stern, W: Jugendliche Zeugen ~ Sitt1ichkeitsprozessen. Leipzig, 1926. Tranke11, A: Zur Methodik der G1aubwUrdigkeitsuntersuchungen. Psycho1ogie ~ Praxis, 1957, 1, 292-311. Tranke11, A: Vittnespsyko1ogins arbetsmetoder. Bokfor1aget Liber, Stockholm, 1963.

Tranke11, A: ~ reliability Ef. evidence. Methods of analyzing and assessing witness statements. Stockholm, 1972. Undeutsch, U: Die Entwicklung der gerichtspsycho1ogischen Gutachtertatigkeit. Bericht uber ~~ KOngress ~Deutschen Gese11schaft fUr Psycho1ogie. Gdttingen, 1954, 132-154. Undeutsch, U: Der Wahrheitsgehalt in den Zeugenaussagen Jugendlicher. Bericht Uber den 4. KOngress 11~ schwererziehbare ~', Diisse1dorf, 1956, 146 - 155.

Undeutsch, U: Forensische Psycho1ogie. Handworterbuch ~ Krimino1ogie. R. Sieverts (Ed.), Bd. I, Berlin 19652, 205-231. Undeutsch, U: Beurtei1ung der G1aubhaftigkeit von Aussagen. Handbuch der Psycho1ogie, Bd. 11, Forensische Psycho1ogie. GOttingen, 1967. --- w11ipp1e, G. M: The observer as reporter: A survey of the I1psycho1ogy of testimonyl1. Psychological Bulletin, 1909, 2., 153-170.

******

252

Polygraph 1977, 06(3) A COMPARISON OF EQUIPMENT DESIGNED TO REDUCE CUFF DISCOMFORT By Joseph G. Law, Jr., and Sam Remington

Abstract

An experimental test was carried out on two devices designed to minimize cuff pain in the administration of polygraph examinations. Thirty-five tuldergraduate students were administered polygraph examinations to determine which of five numbers they had circled on a piece of paper. Vari ables were manipulated to determine if there were any validity differences between: (1) electronically-enhanced cardio and mechanical cardio, (2) left versus right arm cuff pressure, and (3) pull-through (tourniquet) versus standard Velcro cuffs. The findings were that: (1) there was no statistically sig nificant difference between the results obtained with the mechanical and electronic cardios (p) .05), (2) No left ver sus right differences in reactivity to blood pressure changes were noticed, and (3) the Tourniquet cuff obtained signifi cantly greater reactivity on relative blood pressure changes than the standard cuff (p< .0002). It was concluded that the new Tourniquet cuff and the electronically-enhanced cardio are useful devices for minimizing cuff pain while obtaining results as valid as those obtained with standard devices.

One of the maj or limitations of the cardio component is the high cuff pressure sometimes needed to produce an interpretable tracing. Most poly graphists inflate the cuff to between 75mm and 90mm of mercury. Such pres sures produce discomfort or pain in the Subject after about three minutes. In addition to limiting the time of a polygraph examination, polygraph exami ners cannot use the high pressures necessary to produce good tracings on elderly persons and children. In fact, one notable polygraphist has sug gested discontinuing the use of the inflated blood pressure cuff for such test subjects (Arther, 1977). The electronically-enhanced cardio (EEC) was invented to circumvent this problem. Rather than using a mechanical (i.e., pneumatic) bellows, electronic transducers and amplifiers are used to record a tracing which is similar to that recorded by standard devices. For examiners using EEC, normal cuff pressures are in the range of 45-6Omm rather than the 75-90mm range commonly used on standard devices.

Joseph G. Law, Jr., M.S. is with the Eufaula Adolescent Adjustment Center and is a Member of the APA. Mr. Remington is with the Mobile Police Department and a graduate of The National Training Center of Lie Detection.

253 Polygraph 1977, 06(3) Cuff Pressure

0" clng Amplitude

4Smm

t5MNl

U.S.A. CHAR! no. Wh

( .> ~i , .... 1~ seconds chart speed 71l8!lJ111IIPJJ

Polygraph 1977, 06(3) r Figure 1 clearly illustrates the difference in tracing amplitude at different cuff pressures. As the cuff pressure decreases from 90mm to 45mm, so does the tracing amplitude. This decrease in amplitude increases the difficulty of chart interpretation. The EEC was designed in order to pro duce a larger pulse amplitude at lower pressures than the pneumatic cardio. The question is, how valid and effective is the EEC in comparison to the pneumatic cardio?

Another approach has also been used to combat the problem of cuff pain. A new Tourniquet type of blood pressure cuff is available from the C. H. Stoelting Company and The Lafayette Instrument Company. This device enables the examiner to obtain a much tighter wrap on the subject's arm, thus minimizing the amount of air pressure which must be introduced into the cuff in order to obtain a readable tracing. Both of these improvements on standard instruments have been in use for some time. So far, there are no published reports concerning their ef fectiveness. This experiment was designed to test these new inventions when compared to standard equipment currently in use by professional polygraph examiners. Three questions were posed: 1. Is there a significant difference between the reactivity of the cardio tracings produced by the standard Velcro wrap cuff and the new Tourniquet cuff? 2. Is there a significant difference between the validity of the electroni cally-enhanced cardio and the standard mechanical Cardio? 3. Is there a significant difference between the validity of mechanical cardio tracings produced by cuff pressures in the upper range (80-9Omm) and those in the lower range (60-79mm)? Reactivity was operationally defined as the degree of pen deflection above or below a Subject's norm tracing. Method Subjects. The experimental SiS were 35 undergraduate students at the University of South Alabama who volunteered for the research project. The SIS ranged in age from 18 years to 34 years; with a mean age of 22.03 years. The mean educational level of the SIS was 14.5 years of formal education. Fourteen of the SIS were male (40%) and 21 were female (60%). All were Caucasian. The SIS were obtained by asking for volunteers from undergraduate psychology classes. All were exposed to a one-hour lecture and demonstration of the polygraph by the senior author. All S's filled out a Semantic Dif ferential form rating the polygraph and all gave their percentage estimate of the validity of the polygraph. Within the Semantic Differential scale were three items on a good-bad continuum from l(low) to 7(high). There were also twelve filler items to conceal the true purpose of the scale. The Subject's emotional evaluations of the polygraph ranged from a low of 2 to e high of 7, with a mean of 5.33. Validity estimates ranged from a low of

255 Polygraph 1977, 06(3) 50% to a high of 99%, with a mean of 83.9%. Thus, the students participating in the experiment had a relatively high estimation of the polygraph's accuracy and a moderately positive attitude toward its use.

Apparatus. Two polygraphs were used in the experiment. One was a Lafayette model 76056-A polygraph with an electronically-enhanced cardio component. The other was an Associated Research model 9303 polygraph with a mechanical cardio component. In order to test the two types of blood pressure cuffs, two bellows were mounted side-by-side in the Associated Research instrument. Modifications were made within the instrument so that two blood pressure cuffs could be attached to two independent cardio bellows systems. This allowed the same amount of air pressure to be introduced into both cuffs simultaneously. The instrument was further modified so that after the air pressure was intro duced into the cuffs, the two systems could be sealed from each other. Thus, the cardio tracings of both cuffs could be obtained simultaneously from a single individual and still allow an indendent evaluation of the tracings produced by the two different cuffs & 2. ~ pressure. The sensitivity of both pneumatic bellows was set at the same level. This was necessary to prevent artifacts. Figure 2 clearly shows the effects of different bellows sensitivities on the amplitude of cardio tracings. The same cuff on a SiS arm was used to record tracings at 85mm of cuff pressure. Then the cuff, without being removed from SiS arm, was reconnected to the other bellows and the same amount of pressure (85mm) introduced into the cuff. Note the great difference in tracing amplitude in Figure 2. No matter which arm (or cuff) is used, the tracing produced by the lower bellows (i.e., the bottom tracing) is far greater in amplitude than the tracing of the upper bellows. Through a process of trial and error the experimentors adjusted the bellows sensitivities until equal amplitudes were obtained by both bellows systems at the same pressure. This ensured that any differences in tracing amplitude and reactivity during the experiment would be due to actual dif ferences in the cuffs or in arm placement and not artifacts resulting from uncalibrated bellows systems. Figure 3 illustrates the operation of bellows systems which are almost perfectly calibrated. Note that the tracing for the Left Arm Tourniquet condition is ap proximately the same amplitude in the upper- and lower- bellows produced chart. Similarly, the upper- and lower- bellows produced tracings for the Right Arm Standard cuff condition are approximately the same. Thus, the pneumatic cardio system was calibrated in such a manner that any difference in the tracings was due to cuff-induced differences and not artifacts of differing bellows sensitiviues. Procedure. The experimental sessions took place in the Psychophysics Laboratory of the University of South Alabama. The rooms were air-conditioned but not sound-proofed. Although occasional noise artifacts could not be pre vented, their occurrence was recorded by appropriate markings on the SiS charts. Each S was tested three separate times. Twice using the Associated Research instrument and once using the Lafayette instrument with EEC. On

256

Polygraph 1977, 06(3) rl'l '~ure 2

~ffects or ~i~feren~ ellowQ ~en~~ttvi~~es

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L. l Polygraph 1977, 06(3) 7'l:.;ure'

~-:'fec~s of ')i e:r"'ent- :eJ_101l-;:':; )ensit:ivif'~ies

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-:~\Tote: A .\: Bare Le"'t Arm, "ourniquet GnC'f; i) ,if Dare ,fia'ht;' Arm, St:andarr'J~uff'. t"ote t;he ~i ".f'erence oFt:,be r'Jicrot:ic nor.ch in ~ & ')--upper an~, lower - bellows are still not complet:ely calibrate~ f'or sensitivity •

. J''"''''~'I'~'''''''.'~' .u_ ... ,._ ... ~,. "-"10_ .. "., Polygraph 1977, 06(3)

LT''':xmrWT§Kit''''''Y~ ·~cr·,y,··", ,.".=) "r'v ~G ."''' "f'" each test the S was told to circle one of five numbers on a piece of paper, then cover the paper with his hand. S was then administered a standard stimulation-type test by being asked: "Did you circle number ••• ?" All S's were, of course, instructed to say "no" to each question. Buffer numbers were used at the beginning of each test to accustom the S to the sound of a voice during the test procedure and were ~ available for circling on the piece of paper.

Test A consisted of the numbers 1, 4, 6, 10, and 7 in that order. The buffer number was 2. Test B consisted of the numbers 3, 5, 7, S, 10 and the buffer number 2. Test C consisted of the numbers 6, 12, li, 9, 14 and buffer numbers 2 and 4. Test C was conducted using the EEC and the Tourniquet cuff placed on the S's upper left arm. In tests A and B each Subject had two blood pressure cuffs, one on each upper arm. Seventeen Subjects had the Tour niquet cuff on the left arm and the standard cuff on the right arm for Tests A and B. Eighteen Subjects had the Tourniquet cuff on the right arm and the standard cuff on the left arm for both tests. This counterbalancing was to control for any differential effects between cardiovascular responsivity in the left versus right arm.

The administration of the three tests was counter-balanced in terms of test sequence. In test C the blood pressure cuff had 45rnrn of air pressure for all Subjects. In tests A and B(with the pneumatic cardio) pressure varied depending on how much was needed to obtain readable tracings. Test A was always the highest cuff pressure used, with test B being about lOrnrn less pres sure than Test A. Pressures ranged from 60rnrn to 90rnrn on Test A, with a mean of Slrnrn pressure. Pressures ranged from 50rnrn to BOrnrn of Test B, with a mean cuff pressure of 72rnrn. Throughout the actual testing each S was asked to close his eyes to minimize reactions due to distracting visual stimuli. At the conclusion of all three tests the examiner interpreted the charts in SIS presence and made a determination as to which number he had lied about circling. The Subject then produced the pieces of paper with the numbers he had lied about circling and the examiner's judgements were compared on the spot to the numbers which he had actually circled. The examiner rated each chart in terms of reactivity. Reactivity was previously defined as the degree of pen deflection above or below S's normal tracing. In cases where the degree on pen deflection was the same for two responses on the same test, the response with the steepest rise was given preference. In most cases the reactivity of one tracing was clearly superior to others. In difficult to determine cases, actual physical mea surements were made. Results and Discussion The validity data for the three different test conditions is contained in Table 1. Table I depicts the validity data for Tests A, B, and C and data from a previous experi.Jnent (Law, 1977). The previous experiment used a similar stimulation-test paradigm with an electronically-enhanced cardio component. The letters X, Y, and Z in the table stand for the three different examiners who interpreted the 35 charts in the first experiment. Examiner X

259 Polygraph 1977, 06(3) •

was the senior author and the examiner who administered Tests A, Bt and C in this experiment.

Table 1 Validity Data Three Test Conditions*

Test: Mean Cuff Number of Expected Percentage Pressure: Correct Chance Successful Judgements: Level: Detection:

A 8lmm 13 7 37.1

B 72mm 9 7 25.7 C 45mm 16 7 45.7 (Examiner)

X 45mm 14 7 40.0 y 45mm 11 7 31.4 z 45mm 13 7 37.1

Mean ...... 12 ...... 7 • •••••••• 36.2

*NOTE: The same subjects were examined in tests At B, and C. The last three columns represent validity data from a previous experiment, as interpreted by three different examiners (X, Y and Z). Examiner X is the examiner who interpreted tests At Bt and C. Validity differences between the various tests are not statistically sig nificant.

Since there were five possible numbers which could have been selected by each Subject, the probability that an examiner would correctly identify the number circled by chance alone would be 1 chance in 5. Thus in 35 cases, we could expect a chance success rate of seven correct judgements even if the examiner made random guesses about the number circled. As Table 1 in dicates, the results of the examiner's judgements were greater than could be expected by chance alone.

The reactivity data for the tests administered with two cuffs on a pneumatic cardio component are depicted in Table 2. On 60 of the charts the most reactive tracing was produced by the Tourniquet cuff. On 8 of the charts the standard cuff produced the most reactive tracings. There was no

260 Polygraph 1977, 06(3) Table 2 Reactivity Data Tourniquet versus Standard Cuff's

Most Reactive Tracing ARM: Tourniquet: Standard: No Dii'f'erence: N:

Lef't 28 4 2 34 Right 32 4 ° 36 Total: 60* 8* 2 70

*N=35 , Tests A and B, P < .0002.

dii'f'erence on two of' the charts. The results . compared to the normal dis tribution, were highly signii'icant (p < .0002). That is, there is less than 2 chances in 10,000 that these results could have been produced by a chance error. Theref'ore, in answer to the f'irst question posed by this experiment, the Tourniquet cuff' is f'ar superior to the standard Velcro cuff' in recording cardio responses. Figure 4 clearly illustrates the superiority of' the Tourn iquet cuff' in terms of' reactivity.

The results of' Tests A and B demonstrate the Tourniquet cuff"s superiority. Using the same cuff' pressures resulted in Tourniquet cuff' tracings which were greater in amplitude and reactivity than those produced by the standard cuff'. Theref'ore, it does not seem to be an unwarranted conclusion that polygraphists may now use lower pressures in conjunction with the Tourniquet cuff' in order to obtain interpretable charts.

In several cases the Tourniquet cuff' did not f'it the S's arm. That is, the Subject's arm was too small f'or the cuff'. In these cases the tourniquet cuff' strap was not used. The cuff' was merely wrapped in the same manner as the standard cuff'. In such cases there was no readily apparent dii'f'erence between the tracings produced by the two dii'f'erent cuff's. In the f'uture, Tourniquet cuff's smaller in size should be developed f'or use with children and adults with very small arms.

Let us look again at the data in Table 1. Note that the average validity f'or the cardio components was 36.2 percent. This is averaged over Tests A, B, and C and the validities of' examiners X, Y, and Z in the previous experi ment. These low validities are not uncoounon in laboratory studies which do not utilize the mock crime paradigm. Since the S's motivation to deceive and his f'ear of' detection were low, the psychological threat of' the test questions was not high enough to produce the type of' extreme autonomic arousal

261

Polygraph 1977, 06(3) '-"io'ure , __

:iI 8omparison of Cufr Heactivity N And Arnpl i turie

nourniquet versus Staniar1 ~urfs

I 1.

82mm cuff p~ess~. Left Arm Staniard -:;uif

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( Polygraph 1977, 06(3) commonly fOWld in criminal cases. If S "beat" the examiner he was promised a free dinner. If he failed to deceive the examiner, he lost nothing except, perhaps, some pride.

The experimental situation was a far less threatening one than that faced by the perpetrator of a crime being questioned in the local police station. However, in all three test conditions, the examiner's diagnosis of deception was above that expected by chance alone. A different type of test situation (~.a., a mock crime) would have been set up if the experimenter's purpose had been to test the validity of the polygraph technique itself. For example, Raskin, Barland and Podlesny (1976) have reported accuracy rates of 94% using all three components in mock crime situations.

A statistical test for correlated proportions (McNemar, 1947) was used to test the significance of differences in validity between Tests A and B, between Tests A and C, and between Tests B and C. This particular statistical tool was used because there was a correlation among all three tests in that each subject received each of the tests. That is, the individuals taking Test A, Test B and Test C were not from three separate and independent groups. The results of statistical analysis demonstrated no significant difference in the successful detection of deception among the three test conditions (p:>.05). Therefore, the answer to the second. and third questions posed earlier is that there is no difference in validity between the pneumatic and electronic cardio systems. Further, that there is no significant difference between the high and low range of cuff pressures.

These data support Arther's (1971) contention that extremely high cuff pressures are not absolutely necessary to obtain interpretable tracings. Car dio tracings in the range of 72mm were as valid as those in the 8lmm range. The major difference between high and low pressures is the location of the dicrotic notch. Its actual location is really an artifact of the recording process. The higher the cuff pressure, the lower the notch on the descending limb of the pulse wave.

While some polygraphists prefer the notch in the lower portion of the tracing (Harrelson, 1974), others prefer it in the upper 10% of the tracing (Arther, 1971). Since the cardio tracings in the lower pressure range (higher notch) were as valid as those in the higher pressure range (lower notch), there seems no need for pressures of more than 70mm in normal cases. This finding is in agreement with Raskin ~ &'s research (1976).

Exceptions might have to be made in the case of extremely obese in dividuals whose arms require more pressure in order to obtain a readable tracing. Since there is no significant increase in validity obtainable by the use of higher pressures, the continued standard use of cuff pressures of 90mm or more does not appear warranted.

The most surprising result of the experiment is the data on the ~. There was no significant difference between the validity of the electronic and pneumatic cardio systems. The importance of this finding is underscored by the fact that the mechanical cardio tracings were obtained at much higher cuff pressures. The mean pressures for the two mechanical cardio tests were

l Polygraph 1977, 06(3) t 8lmm and 72mm. All of the electronic tracings were obtained at 45nun. At such low pressures cuff pain and discomfort were greatly minimized and yet valid charts were obtainable. The reader is referred back to Figure 1 to see how much more interpretable the electronic tracing is at 45nun than the pneumatic tracing at the same pressure.

Two points should be made about the use of the electronic cardio in this experiment. First, the Tourniquet cuff itself was thoroughly massaged fol lowing inflation in order to prevent pressure loss during testing. Such massaging is reconunended for use on all Tourniquet and Velcro cuffs. Secondly, the Activity Control knob on the electronic cardio was turned all of the way clockwise in order to maximize the sensitivity of the unit. The authors have found that, in general, using the Lafayette electronic cardio with Activity Control in the "Norm" position results in a less active cardio tracing than in the "Max" position.

No statistical analysis of the left versus right validities was done because of the small sample size. However, a qualitative analysis of the charts Showed no striking differences between arm placements. While no left versus right differences in reactivity to blood pressure changes were evident from these data, future research is necessary. A future experiment should utilize the same type of cuff on each arm so that a direct comparison for each individual can be made. In addition, experiments using the same type of ap paratus should be conducted using mock crime and real-life situations to de termine if there are any left vs. right differences during periods of extreme autonomic arousal. Conclusions

1. There was no statistically significant difference between the results obtained with the pneumatic and electronic cardio systems (p> .05). Since these results were obtained using a Lafayette polygraph (electronic) and an Associated Research polygraph (pneumatic), future research should include comparisons of Stoelting instruments (both pneumatic and electronic).

2. There was no statistically significant difference between validity rates for the two different pressure ranges on the Associate Research instrument. Therefore, cuff pressure in the 70mm range provide as valid results as those in the 80mm or greater range. 3. The Tourniquet cuff obtained significantly greater amplitude and reactivity on relative blood pressure changes than the standard Velcro cuff (p< .0002). 4. No left versus right differences in reactivity to blood pressure changes were noticed. Further research is needed in which arm cuff placement is the only dependent variable. 5. Further research is needed using polygraph instruments manufactured by the Stoelting Company. In addition, the use of a mock-crime paradigm is needed to provide greater generalizability of these data to field situations.

Polygraph 1977, 06(3) References

Arther, R. O. "The Cardio Unit." ~ Journal .2!. Polygraph Studies, 1971, 6(1).

Arther, R. O. "Miscellaneous chart analysis principles, Part I." The Journal .2!. Polygraph Science, 1977, 11(5).

Harrelson, L. H. ~ Keeler Training Guide. Chicago: Keeler Polygraph Institute, 1974.

Law, J. G. Report on a new stimulation test. Polygraph 6(2)(June 1977): 132-148.

Raskin, D. C., Barland, G. H., and Podlesny, J. A. Validity ~ Reliability .2!. Detection .2!. Deception: Final Report. Salt Lake City: University of Utah, Department of Psychology, 1976.

******

Polygraph 1977, 06(3) ATTITUDES TOWARD THE USE OF THE POLYGRAPH STUDY TWO By Joshua R. Gerow, Ph.D.

Purpose

A recent study of attitudes toward the use of the polygraph (Gerow and Scrogham, 1976) demonstrated two things: (1) attitudes of psychology students were essentially very negative, and (2) these attitudes could very easily be made to become significantly more negative by simply having the students read five short paragraphs about the polygraph taken from introductory psychology textbooks. It was both depressing and impressive to see how easily the mea sured attitudes became so negative. The conclusion of our first study sug gested that the "disemination of unbiased, factual information is badly needed."

In the experiment reported here, the same questionnaire was used for a comparable group of subjects who were first tested naively and then were tested again after a short lecture/demonstration on the polygraph. The sub jects in the project were 112 students at Indiana University - Purdue Univer sity at Fort Wayne who were enrolled in the author's introductory psychology course.

Method

An eleven-item scale was used that included three "information" items and eight "opinion" items dealing with the polygraph. At the beginning of a class period the questionnaire was distributed and subjects were asked to answer all the questions as best they could in accordance with their thoughts and feelings. Students answered the questions anonymously. Later in the same lecture period the instructor presented a short lecture on the polygraph, its history, data on its usefulness, and so forth. Every attempt was made to be factual and objective. The instructor then demonstrated the use of the poly graph with a student volunteer (and was fortunate enough to detect the pre planned deception). There followed a short question-and-answer session, and then the students responded to the questionnaire again. Results were analyzed in terms of the percentage of students responding for the Pre-Test and the Post-Test. Results

The first result that should be mentioned is that there appears to be a generally excellent correspondence between the group of students participating in this study and those who participated in Study I. As with the first group,

The author is a professor of psychology at Indiana University - Purdue University, Fort Wayne, Indiana.

266 Polygraph 1977, 06(3) it is striking to observe the over-all negativity of the attitudes of these students. pre-Test percentages for virtually every item were very similar to those found in Study I. As with the first study, every item on the scale was subject to modifia bility. However, in this case, although the changes were "positive" in direc tion, the degree of change tended to be smaller. Items from the scale, the summarized results, and our comments are listed below.

ITEM (1): How often do you think that a PRE: 62.52% of the time well-administered polygraph test POST: 82.10% of the time is successful in detecting de dirf: +19.58% ception (a lie)? ITEM (2): How often do you think that polygraph PRE: 32.25% of the time examiners make mistakes? POST: 26.25% of the time dirf: -6.00% COMMENT: Once again it is somewhat distressing to note how generally un favorable perceptions are at the Pre-Test level. The significant change in the responses to Item #l are reinforcing, and although the changes in item #2 are small they are in the "right" direction. The smaller change on the second item may be due in part to a "flooring affect", i.e., there was not so much room available for change. --

1'1'EM (3): Does a polygraph examiner have to PRE: 27.68% Yes have a degree in psychology or POST: 10.71% Yes psychiatry? diff: -16.97% ITEM (4): Do polygraph examiners have to be PRE: 68.75% Yes licensed? POST: 19.64% Yes diff:. -49.11% COMMENT: The changes in response to these "factual" items is hardly surprJ.sJ.ng because both these matters were discussed in the intervening presentation. It is perhaps surprising to note that even after being told otherwise, 10.71% of the students still held the belief that a psychology degree is required of ex aminers. Some confusion is to be expected on item #4 given the state of licensing laws - remember that licensing is not a requirement in Indiana.

ITEM (5): Are the results of a polygraph PRE: 41.07% Yes examination admissible as evi POST: 58.04% Yes dence in courts of law? diff: +16.97% COMMENT: This is the item that changed the most in the first study (in the other direction). A number of students wrote comments on their Post-Test sheets indicating that they knew that the real answer to this "factual" ques tion is "it depends." ITEM (6): Do you think that the results of PRE: 33.04% Yes a polygraph examination should ~ POST: 69.64% Yes admissible as evidence in courts dirf: +36.60% of law?

267 Polygraph 1977, 06(3) COMMENT: By far, the change in response pattern on this "opinion" item was the largest. Why this particular item should be so sensitive to change is hard to say, but the comparable percentages for Study I were 36.57% Yes and 12.69% Yes for the Pre-Test and Post-Test respectively.

ITEM (7): With reference to criminal matters: PRE: 68.75% Yes would you agree to take a polygraph POST: 78.57% Yes test if you knew you were innocent diff: +9.82% of the charges being investigated?

ITEM (8): With reference to criminal matters: PRE: 39.29% Yes would you agree to take a polygraph POST: 27.68% Yes test if you knew you were guilty of diff: -11.61% the charges being investigated?

COMMENT: The results on these two related items are generally more positive than for Study I, and the Post-Test changes are in the expected direction. Subjects who answered "No" to item #7 expressed the fear that their "nervous ness" might make it appear they were guilty when they were not, and those who responded "Yes" to item #8 stated that it would be worth the try to tri(.;k the examiner. Which leads to the next item. ITEM (9): Do you think you could beat a PRE: 31.25% Yes polygraph test by lying? POST: 16.07% Yes diff: -15.18% COMMENT: Even though there were still 18 subjects who thought polygraphy error-prone enough to allow them to respond "Yes" to this item, the changes in response pattern here was quite good. These results doubtless reflect the fact that the short demonstration was successful in detecting the de ception. ITEM (lq: Would you tend to think of a suspect PRE: 49.11% Yes in a criminal investigation who refuses POST: 55.36% Yes to take a polygraph test as probably diff: +6.25% guilty?

ITEM (11): Do you feel that a person should be PRE: 48.21% Yes requested to take a polygraph test be POST: 53.57% Yes fore being hired for a security-sensi diff: +5.36% tive job? COMMENT: Other than pointing out the consistency of these items com >a.red to the other items, and noting the relatively small degree of change, p-'.beit in the hypothesized direction, no comment is necessary.

Summary

A series of attitudinal questions about the polygraph was g~ ren to 112 university students. Consistent with an earlier study, attih- 0S toward polygraphy were basically quite negative. After a short interven~.'J.g lecture and demonstration of the polygraph the same items were readminist0red. In all cases responses indicated a more positive opinion, although changes in

Polygraph 1977, 06(3) attitude were, in several instances, not as great as those found in Study I. This is consistent with the view of attitude change that suggests that it should be easier to make negative attitudes more negative than to make them change over the neutral region to the positive side. Nonetheless it was demonstrated that a relatively short and simple intervention can significantly improve student's opinions about the polygraph and polygraph techniques. References

Gerow, J. R. and Scrogham, N. K. Attitudes toward the polygraph: Their assessment and sensitivity to change. Polygraph 5 (l)(March 1976): 89-91.

******

269 Polygraph 1977, 06(3) PRIVATE POLYGRAPH TESTING FEE SURVEY RESULTS By Robert Heidinger

Replies received:

Full-time Examiners Part-time Examiners Total 7 from North East 2 9 10 from North Central 2 12 1 from North West 4 5 6 from South East 1 7 5 from South 1 6 7 from South West 3 10 1 business all over USA o 1 37 GRAND TOTAL 50 REPLIES. 13 50 All replies stated they worked by appointments only. Do you give discounts to steady clients? -Yes No NE 10%, 15%, 20% & Yes 4 5 NC 8%, 10%, 20%, 25%, 25 to 30%, & $25 6 6 NW $27.50 1 4 SE 15 to 20%, 16.6%, 35% 3 4 SC 10%, 25% 2 4 SW 10%, 25%, & $25 3 7 ALL 10 to 20% 1 0 40% or 20 do 60% or 30 do not TOTAL ~AP OF ABOVE; 1 at 8%, 4 at 10%, 1 at 15%, 1 from 15 to 20%, 1 at 16.6%, 2 at 20%, 5 at 25%, 1 at 25 to 30%, 2 at $25 cash and 1 at $27.50 cash, or an average of approximately 18%. Do you give discounts for prompt payment? -Yes No NE 1 at 10%, 1 at 5% 2 7 NC 1 at 10% 1 11 NW None o 5 SE None o 7 SC None o 6 SW C.O.D. only 1 9 ALL 1 at 3% 1 0 10% or5do 90% or45do not

The C1uthor is in private practice in Cleveland, Ohio.

270

Polygraph 1977, 06(3) Do you give discounts on contract accounts? Yes -No NE 15%, 15%, 10% YES, YES 5 4 NC 20%, 25% to 40% 2 10 NW None o 5 SE 10% 1 6 SC 10% 1 5 SW None o 10 ALL None o 1 18'foOr 9do 82% or 41 do not Do you use written contracts with clients? -Yes No NE" 1 8 NC 2 10 NW o 5 SE o 7 SC 1 5 SW o 10 ALL o 1 8% or4do 92% or 2;:b"do not Do you charge on past due accounts? Yes No

NE 30 d~s, 30 days, over 90 days 3 6 NC C.O.D., 90 days, 90 days 2 10 NW o 5 SE o 7 SC o 6 SW o 10 All 3% over 90 d~s 1 0 12% orbdo 88% or 44 do not Sources of income other than EollgraEh: NE NC NW SE SC SW ALL Total Security Consultations b 2 1 3 1 4 -r- 18 Investigations 3 0 0 3 2 4 1 13 Undercover Agents 2 0 0 1 1 4 1 9 Psychological Testing 0 1 1 0 2 2 0 6 Guards 1 0 0 1 0 2 1 5 Written honesty tests 2 0 0 0 0 1 0 3 Schools 1 2 0 0 0 0 0 3 Crime traps 0 1 0 0 0 2 0 3 Repossessions 0 0 0 0 0 1 0 1 Shopping service 0 0 0 0 1 0 0 1 K-9 dogs 0 0 0 0 0 1 0 1 Bomb threats 0 0 0 0 0 1 0 1 Real estate 1 0 0 0 0 0 0 1 P.S.E. 1 0 0 0 0 0 0 1 Wealthy wife 1 0 0 0 0 0 0 1 TOTAL 18 b 2" 8' 7 22 "7; = b7 The number of replies using other sources of income 8 6 2 4 3 5 1 29 do TOTAL AREA REPLIES 9 12 5 7 6 10 1 21 do not

271 Polygraph 1977, 06(3) Best source of srowth: NE NC NW SE SC SW ALL TOTAL Referred business 7 "5 2' 4" 3" "5 0" 26 Satisfied clients 2 6 3 2 1 3 1 18 Yellow pages 0 0 1 1 1 1 0 4 Attorneys 0 1 0 0 1 1 0 3 Mail out literature 0 1 0 0 0 1 0 2 Police 0 0 0 0 1 1 0 2 Some people listed several area of growth that they believed were important.

Prices:

There was no significant difference in price structure by area.

Testing for attorneys

1 charged $450 84% or 42 tested for attorneys 1 charged $300 16% or 8 did not test for attorneys 2 charged $250 From 3 replies the average # of tests per 3 charged $200 exam was 3 tests; minimum # of tests was 1; 1 charged $175 maximum # of tests was 5. 19 charged $150 Average charge was $147.02 per test. 3 charged $125 6 charged $100 2 charged $75 3 charged $50 1 charged $25

Testing for court cases

1 charged $250 to $350 64% or 32 did this kind of testing 3 charged $300 36% or 18 did not do this kind of testing 2 charged $250 From 8 replies the average # of tests per 4 charged $200 exam was 3.88 tests; minimum average # was 1 charged $175 3; maximum average # was 5 per exam 7 charged $150 Average charge was $159.37 per test. 5 charged $100 3 charged $75 4 charged $50 1 charged $25 Testing for law enforcement asencies 1 charged $350 40% or 20 did this kind of testing 4 charged $150 60% or 30 did not do this kind of testing 2 charged $100 From 6 replies the average # of tests per 2 charged $75 exam was 3.33 tests, minimum average # 5 charged $50 was 1 test, maximum average # was 5 tests 1 charged $40 Average charge was $76 per tesu. 1 charged $35 3 charged $25 1 charged $20

272 Polygraph 1977, 06(3) Specific testing 1 charged $250 7CYfo or 35 did this kind of testing 2 charged $200 3CYfo or 15 did not do this kind of testing 4 charged $150 From 12 replies the average # of tests 4 charged $100 per exam was 2.66 tests, average # of 3 charged $75 minimum tests was 1, average # of maximum 14 charged $50 tests was 4 2 charged $40 Average charge was $79.85 per test. 1 charged $35 1 charged $30 3 charged $25 Pre-employment testing 1 charged $100 7CYfo or 35 did this kind of testing 2 charged $125 3CYfo or 15 did not do this kind of testing 2 charged $75 From 10 replies the average # of tests per 7 charged $50 exam was 2 tests, minimum average # was 1 charged $45 1 test, maximum average # was 4 tests 3 charged $40 Average charge was $48.43 per test. 10 charged $35 2 charged $30 6 charged $25 1 charged $20 Periodic screening testing

1 charged $75 56% or 28 did this kind of testing 1 charged $55 44% or 22 did not do this kind of testing 5 charged $50 From 9 replies the average # of tests per 1 charged $45 exam was 2.11 tests, minimum average # 3 charged $40 was 1 test, maximum average # was 4 tests 9 charged $35 Average charge was $36.07 per test. 5 charged $30 3 charged $25 Police applicant testing 3 charged $75 46% or 23 did this type of testing 1 charged $60 54% or 27 did not do this kind of testing 9 charged $50 From 5 replies the average # of tests per 1 charged $45 exam was 3.2 tests; minimum average # was 3 charged $35 2 tests, maximum average # was 5 tests 1 charged $30 Average charge was $43.59 per test 3 charged $25 1 charged $20 Public Relations 1 charged $17.50

273

Polygraph 1977, 06(3) Company Advancement (Promotions and Re-assignments)

1 charged $200 64% or 32 did this kind of testing 1 charged $75 36% or lS did not do this kind of testing 1 charged $55 From 7 replies the average # of tests 6 charged $50 per exam was 2.14 tests, minimum average # 2 charged $45 was 1 test, maximum # was 4 tests 4 charged $40 10 charged $35 4 charged $30 2 charged $25 1 charged $20

Marriage or domestic testing

1 charged $500 56% or 2S did this kind of testing 4 charged $300 44% or 22 did not do this kind of testing 2 charged $250 From 3 replies the average # of tests per 6 charged $200 exam was 3.33 tests; minimum 3 tests, maxi 5 charged $150 mum 4 tests. 1 charged $125 Average charge was $17S.57 per test. 6 charged $100 2 charged $50 1 charged $25

Charges to clients for appointments not kept

5 charged half price 46% or 23 charged for "no show" appoint 3 charged $25 ments 3 charged $10 54% or 27 did not charge for "no show" 2 charged $50 appointments. 2 charged $20 2 charged $15 2 charged $5 1 charged $100 1 charged $70 1 charged $40 1 charged 3%

COMMERCIAL POLYGRAPH TESTING FEE SURVEY (The results of the survey are based on the replies received on this form):

274

Polygraph 1977, 06(3) CONFIDENTIAL COMMERCIAL POLYGRAPH TESTING FEE SURVEY

Please fill rlut and return this survey as soen as possible so I may prepare an anonymous computation of various commercial polygraph information that will be of interest to com mercial examiners at our next convention in Las Vegas. Be assured that no names or identifying information will be printed or given out unless I am specifically requested to do so. So please do not sign it in any way. If you wish to contribute a copy of any con tracts you use, send it in a separate plain envelope and not with your rate fee survey. Please be truthfull, otherwise this information will be of no value to you or others, If you work for a polygraph agency, please fill out the agencies fees and procedures as indicated below. 1. I do commercial testing A. -- full time, B. -- part-time, C. never 2. Types of Normal Normal flat' Min, flat Min. hr !Average IAverage time Testinq hourly fee __ fee fee fee 1# of tests used on test Marriage problems S 1$ $ IS hrs. ~ is S hrs. -Attorneys IS Court cases S I~ S IS hrs. Law Enforcement S IS S IS hrs. Appt. not kept S IS S IS hrs. Specific :;; I:;; S IS hrs, Pre-employment S IS s IS hrs. employees Pre-employment S IS $ IS hrs. police applicants Company advancement S I:;; I:;; !S hrs. Periodic testing S IS s is hrs. 3. A . __ testing by appointment only, B , __testing no apPointments, first come in basis, 4. I (do) (do not) discount steady volume clients % I (do) (do not) discount prompt payment % I (do) (do not) discount contract accounts %

5. I (do) (do not) charge on past due accounts over ______days past due.

6. I use contracts with clients (YES) (NO), If you do and are Willing, please send in sample contracts so I may gather important pOints from all contracts to give out at our convention.

7. Other Sources of Business Income A. ____ None F •---- Undercover B. Investigation G. Crime traps ( cameras, chemical) C. Security Consultation H. Repossessions D. Guards I. Written Honesty Tests E. Alarms J. Psychological testing

PLEASE TURN OVER AND COMPLETE REVERSE SIDE 275 Polygraph 1977, 06(3) COMMERICAL POLYGRAPH TESTING FEE SURVEY

7. K. other sources of income______._------.. -- ..

------8. My business is located in A. ___ Northern half of the United States B. Southern half of the United States

9. My business is located in the A. __ Eastern part of the USA, B. In Central part of the USA, C . __ In the Western part of the USA

10. My best source of business growth is from

------._._-- COMMENTS: ___ ------

----_._------

PLEASE SEND BACK AS SOON AS POSSIBLE

THANK-YOU MAIL TO:

Robert F. Heidinger Federal Security, Inc. 2800 Euclid Ave., Suite 51~ Clevela.nd, Ohio 44115

276

Polygraph 1977, 06(3) STATE OF ILLINOIS, ) SSe COUNTY OF COOK ~ IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CHANCERY DIVISION ILLINOIS POLYGRAPH SOCIETY, an Illinois Not-for-Profit Corporationf CARL S. KLUMP, and RICHARD S. NEEDHAM, Plaintiffs, No. 76-CH~35 -v- ANTHONY JOSEPH PELLICANO, Defendant.

MEMORANDUM OPINION AND RULING ON MOTION TO DISMISS COMPLAINT (February 13, 1976) The plaintiff, ILLINOIS POLYGRAPH SOCIETY, is an Illinois not-for-profit corporation whose membership consists of "deception of detection examiners" who are licensed by the Department of Registration and Education of the State of Illinois (DEPARTMENT) pursuant to the Illinois Detection of Deception Examiners Act, ("ACT"), Ch. 38, ss202-1 to 202-31, Ill.Rev.Stat. The individual plain tiffs, CARL S. KLUMP afiff RICHARD S. NEEDHAM, are detection of deception examiners licensed by the DEPARTMENT pursuant to the Act, are practicing examiners and are also members of the plaintiff, ILLINOIS POLYGRAPH SOCIETY. Plaintiffs assert that although the defendant, ANTHONY JOSEPH PELLICANO, has not been issued a license to practice detection of deception, the defendant has administered and continues to administer detection of deception examinations and holds himself out to be a detection of deception examiner in violation of the ACT, in particular, Section 202-4, which provides that it is unlawful for an unlicensed examiner to administer detection of deception examinations, or to hold oneself out as an Examiner (unless the Examiner is licensed to practice medicine under the Medical Practice Act and when such results are used as re search. ) Plaintiffs allege that as a result of defendant's violation of the Act, the income of licensed Examiners such as themselves and other members of the Illinois Polygraph Society, has been and is being lessened and reduced. Plaintiffs do not allege that they have a property right in the form of a professional license.

NOTE: This case is of exceptional importance to examiners because the Court ruled that conducting polygraph examinations is a profession. [Ed.]

277 Polygraph 1977, 06(3) Plaintiffs allege that as a result of defendant administering examinations without a license, the public's rights are infringed upon, in that the state of Illinois, by licensing and regulating Detection of Deception Examiners, pro tects the public's health, safety and welfare, as provided in the Act, Section 202-.2. Plaintiffs allege they have suffered irreparable damage and will continue to do so as a result of defendant's conduct and allege that they have no ade quate remedy at law because the government officials charged with enforcing the Act have failed to do so with respect to defendant. The plaintiffs ask this Court for equitable relief in the form of a preliminary injunction, pending trial, to enjoin defendant from administering any detection of deception ex aminations and/or holding himself out to the public as an Examiner until de fendant applies for, qualifies to obtain and is issued a license by the Depart ment, pursuant to the provisions of the Act. Plaintiffs seek to make this preliminary injunction permanent upon trial of the matter and pray for reason able attorney's fees. MOTION TO DISMISS (April 7, 1976) The defendant moves to dismiss the complaint as insufficient at law in that the plain~~ffs lack standing to maintain this law suit. Defendant also contends that ss202-1 and 202-11 are unconstitutional and that the entire statute violates the prohibition against special legislation in the Illinois Constitution. Defendant's motion to dismiss also contains an affidavit of the Director of the Department of Registration and Education, Ronald E. Stackler, which was used in the case of People ex reI. Ronald Stackler v. Anthony Pellicano, (74-CH-8099), wherein Mr. Stackler's predecessor requested the Attorney Gen eral of Illinois to bring suit against ANTHONY JOSEPH PELLICANO. The affidavit states that defendant PELLICANO is alleged to have used and is using a de vice known as the "Dektor PSE-l" which purports to detect, measure and display graphic representations of stress-related components of the human voice, without attaching any mechanism to the subject being interrogated, and does not measure cardio-vascular or respiratory responses. The affiant[sic] recommended that the Attorney General voluntarily dismiss the suit against the defendant because, in his opinion as the Director, the definition of "Detection of De ception Examiner" in Section 202-1 of the Act is unreasonably broad, and that the Act in Section 202-3 states that it refers to a polygraph instrument which records cardio-vascular responses and respiratory patterns of the subject as minimum standards, and the Dektor-PSE-l is not such a device.

THE STANDING ISSUE: The first issue which defendant reaches in his memorandum in support of the motion to dismiss is that the "plaintiffs lack standing to maintain an action for injunction relief because an examiners' license does not confer upon them a property right which is a prerequisite for equitable jurisdiction." (at p.6)

278

Polygraph 1977, 06(3) Defendant cites People v. Goldman, 7 Ill.App.3d 253, 287 N.E.2d 177 (1972); Cuneo Press, Inc. v. Warshawsky, 24 Ill.App.2d 163, 164 N.E.2d 25S (1960); People v. Condon, 102 Ill.App. 449 (1902), for the proposition that courts of equity do not have jurisdiction to enjoin the commission of a crime or statu tory offense at the instigation of a party who seeks to protect a personal right. As an exception to this general rule, defendant cites Burden v. Hoover, 9 Ill.2d 114, 137 N.E.2d 59 (1956), in which the plaintiffs were licensed chiropractors who brought suit to enjoin defendants from practicing chiroprac tic without a license. The Court in Burden aligned Illinois with those states which had abandoned the strict view that courts of equity have no jurisdiction to enjoin the commission of a crime. The Court found that where the right sought to be protected was a "property right" such as a professional license to practice chiropractic, it is a valuable interest and is entitled to protec tion. The Burden Court stated:

" ••• the license of a professional man which by statute is conferred only for merit differs from an ordinary regula tory license, such as a tavern license, or a revenue license, such as an automobile or hunting license. For to qualify for any type of healing arts license in this State, the licensee personally must meet high standards established for the purpose of protecting the public's health, morals, safety and welfare." (at p.llS.) Defendant argues that a Detection of Deception Examiner's license is not professional, but merely regulatory. Defendant contends that plaintiffs in the instant case, did not allege a property right in their licenses to practice Detection of Deception, or that the license is in fact a "profes sional license." The Court in Burden, does not reach the issue of whether it is a prerequisite to standing to allege such a property interest. However, the opinion does state: "The plaintiffs contend that their professional licenses are in the nature of franchises which confer valuable property rights and which a court of equity should pro tect ••• " (at p. 116). The decision of the Burden court carved an exception to the general rule that equity should refrain from enjoining that which is prohibited by statute. Even if the allegations of the complaint were sufficient, defendant contends that the qualifications necessary to become a Detection of Deception Examiner are ineligible for professional status in that they do not meet the Burden Court's test of high standards of professional competence established for the purpose of protecting the public health, morals, safety and welfare. Although defendant cites, 45 Ill. Bar J. Injunction: The Right of Licensed Professional Practitioners to En"oin the Practice of his Profession b One Not Holding Such a License, 1957, to support his conclusion that a Detection of Deception Examiner's License is merely regulatory, the article stresses that the determination of whether a license is regulatory or professional "must be made on the character of the activity." The professional license grants

279 Polygraph 1977, 06(3) "the right of use ••• i.e., permission to do something." It is "a license the granting of which requires specific, intense, intellectual training and a high degree of proficiency in a given field as well as high ethical standards." (45 Ill. Bar J. 309). Plaintiffs respond in their Memorandum in Opposition to the Motion to Dismiss, by citing other licensing statutes which "regulate" professions, such as licensing of optometrists (Ch. 91, ~~105.l et. seq., Ill.Rev.Stat.), chiropodists (Ch. 91, ~~ 73 et seq., Ill.Rev.Stat.)! Pharmacists (Ch. 91, ~~ 55.1 et seq., Ill.Rev.Stat.), and Nurses (Ch. 91., s~ et seq., Ill.Rev.Stat.) Plaintiffs fail to respond to Defendant's position in their Reply Memorandum, that while the above-mentioned statutes license and regulate the "practice of a profession," defendant distinguishes Detection of Deception Examiner's Li cense as "concerned only with 'licensing,' 'regulating,' and making an 'ap propriation.'" (Defendant's Reply Memorandum, p. 2). The distinction which Defendant stresses is that a Detection of Deception Examiner merely has an occupation and not a "practice." However, the statute itself, in the Legis lative Declaration, Section 202-2, refers to Detection of Deception as: "The practice of detection of deception in the State of Illinois is declared to affect the public health, safety and welfare and is subject to regu lation and control in the public interest." In Injunctions, 45 Ill.Bar J. 306, the author interprets the Illinois Supreme Court's decision in Burden as one which imposes higher educational standards in the form of a "professional education." The character of the activity which was discussed in Burden, the pr~ctice of chiropractic, or a limited license to practice medicine (Ch. 91, sll, Ill.Rev.Stat.), is patently distinguishable from the character of the activity involved in detection of deception. The statutory requirements to become a licensed chiropractor are certainly more "specific [and] intense." However, the educational requirements for a Detection of Deception Examiner's License includes the award of "an academic degree, at least at the baccalaureate ~evel, from a college or univ ersity accredited by the Department." (Ch. 38, s202-ll, Ill.Rev.Stat.) It appears that the distinction is the attainment of a "Professional ecucation," as stated in Burden: "The license of a professional man which by statute is conferred only for merit, differs from an ordinary regulatory license, such as a tavern license, or a revenue license, such as an automobile or hunting license." (at p. 118). It is commanded by reason to interpret that the Burden court meant, by its use of the word "merit" in comparing regulatory licenses such as tavern licenses and dance hall licenses (Ch. 34, ~630l) to those awarded for merit, such as licenses for dentists, doctors, chiropractors and lawyers, that some special training is required for the latter, ~ for the former. Hence, the completion of the requirements to receive a Detection of Deception Examiner's license falls within the "merit" classification for licensing.

280 Polygraph 1977, 06(3) To illustrate the rising status of the practice of polygraph e~~, in U.S. v. DeBetham, 348 F.Supp. 1377 (1972), the U.S. District Court for the Southern District of California reviewed the general rejection of unstipulated polygraph evidence in criminal trials, and discussed whether a defendant " ••• should be permitted to lay a foundation to establish the reliability and acceptance of the polygraphic tech nique so that either this Court or those entrusted with appellate review would be able to make a truly informed decision regarding this most controversial issue." (at p. 1380). The court in DeBet ham recognized the importance of establishing guide lines by which courts may determine the qualifications of polygraph examiners. "These problems are being addressed by a national or ganization of polygraph examiners, which has formulated certain minimum standards of training for the profession, and has lobbied for legislative enactment of these stan dards by the several States .•. " 348 F.Supp. at 1380 (Emphasis supplied.) Illinois is among eleven states which have licensing statutes regarding polygraph examiners. The first two "definite standards" which the Courts suggest for the minimum qualifications of polygraph examiners, are the same as the Illinois statute's requirements to obtain a detection of deception examiner's license.

"In the Court' s op~mon, a qualified examiner can be adequately identified without consuming more court time than in presently necessary to qualify any physician or psychiatrist, and an incompetent examiner can be dis covered in preparation for cross-examination. Definite standards of examiner qualifications have been recom mended for this purpose. For example, Reid and Inbau propose that: Before permitting the results to be admitted as evidence in any case, however, the courts should require the following: (1) That the examiner possess a college degree. (2) That he has received at least six months of intern ship training under an experienced, competent examiner or examiners with a sufficient volume of case work to afford frequent supervised testing in actual case situations. (3) That the witness have at least five years experi ence as a specialist in the field of polygraph examinations. (4) That the examiner's testimony be based upon polygraph records that he pro duces in court and which are available for cross-examination purposes.35" "35. Reid and Inbau, supra note 7, at 257. See also, Note, 20 Drake L.Rev., supra note 4,

281 Polygraph 1977, 06(3) at 349-52, analyzing a current bill before the Iowa legislature for the regulation of polygraph examiners, and recommending stan dards similar to Reid & Inbau's proposal." 348 F.Supp. at 1386. It is by merit, that a holder of a baccalaureate degree from a college or university, accredited by the Department of Registration and Education, may become an intern detection of deception examiner for six months. The Regula tions that the Department promulgated, requiring 250 clock hours of formalized instruction, and under the supervision of a qualified examiner, include the study of the history of polygraph, physiology, psychology, polygraph technique, law, instrumentation, chart interpretation and interrogation. These regula tions are not a part of the statute, but are guidelines for the licensed ex aminers who supervise the internship of license applicants. According to the statute, one may receive a license only when the licensee has exhibited com petency to administer detection of deception examinations, and has attained a college level degree and has completed the internship program. The practice of detection of deception does require a license which is conferred only for merit as is the standard set out in Burden v. Hoover, supra, and as such, is a professional license which is entitled to protection by injunctive relief, even where such conduct is violative of a statute. While plaintiffs have not pleaded a property right or a franchise in the form of their professional licenses with specificity, their allegations of loss of income satisfies this requirement. ADEQUATE REMEDY AT LAW Defendants argue that notwithstanding their contention that plaintiffs have no standing to maintain an action for injunctive relief, the plaintiffs have an adequate remedy at law which would bar them from obtaining equitable relief. Although the Detection of Deception Act does not authorize a right of private enforcement under the Act, the Illinois Supreme Court's decision in Illinois Chiropractic Society v. Berns, 17 Ill.2d 356, 16lN.E.2d 334 (1959), reiterates that Court's decision in Burden, supra, that although the Act'pro vides for criminal prosecution, that availability would not bar the action for injunction. "In addition to the foregoing constitutional objections, defendant contends that an injunction should not issue in that plaintiffs have a[sicJ adequate remedy at law, and equity should not en join the commission of a crime, such as the illegal practice of chiropractic. This argument was laid to rest in our recent decision in Burden v. Hoover, 9 Ill.2d 114, in which we held injunctive relief available to a licensed chiropractor to restrain the practiGe of his prac tice of his profession by an unlicensed person, despite the existence of criminal sanctions. We do not think the cases are distinguishable. We have

282

Polygraph 1977, 06(3) carefully examined the arguments of defendant and find nothing therein which would justify an aban donment of the rule announced in Burden. We there fore adhere to that decision, and hold that injunc tion is a proper remedy in the case at bar. Cf. Smith v. Illinois Adjustment finance Co., 326 Ill. App. 654." Illinois Chiropractic Soc. v. Berns, supra, at 363. Defendant cites Cuneo Press, Inc. v. Warshawsky, 24 Ill.App.2d 163, 164 N.E.2e 258 (1960), for the proposition that: "A private party can not[sic] impose upon a court of equity to enjoin a violation of purely public rights statutorily delegated to be enforced by a state official." (Def. Mem. in Support of Mot. to Dismiss, p. 8). Where a property right in the form of a professional license has been alleged, injunction is an appropriate form of relief. (Burden). The Court in Burden allowed the plaintiffs the remedy of injunction where the criminal sanctions for practicing chiropractic without a license under Ch. 91, ~6(j) punished the offender under ~16(t-l) for the first offense with a Class A misdemeanor, and for subsequent offenses a Class 4 felony. Defendant argues that the remedy of injunction in the instant case is inapplicable because the Act is a part of the Criminal Code, and cites People v. Goldman, 7 Ill.App.3d 253, for the proposition that: " ••• the standard of proof required for conviction, or for that matter, injunction, is predicated upon a different standard of proof, 'a reasonable doubt', as opposed to a 'preponderance of the evidence.'" (Def. Reply Memo., p. 4.) That the Detection of Deception Examiner's Act is within the Criminal Code is not determinative. Under Illinois law, proof of a criminal act in a civil case need only be by a preponderance of the evidence. First National Bank of Decatur v. Insurance Co. of North America, 424 F.2d 312, cert. den. 90 S.Ct. 1844, 398 U.S. 939, 26 L.Ed.2d 272 (C.A. 1970). Even where the exception espoused by the Court in Burden, supra, does not exist, as in the instant case, plaintiffs, do not have an adequate remedy at law. Defendant cites American Surety Company v. Jones, 384 Ill. 222, 51 N.E.2d 122 (1943); Gottlieb and Co. v. Cit of Chic 0, 342 I~ App. 523, 97 N.E.2d 468 (1950 ; People ex rel Gosling v. Potts, 264 Ill. 522, 106 N.E.2d 524 (1950), for the proposition that where a plaintiff believes a statute or act has not been appropriately applied, mandamus is the remedy. It is important to note that the cases cited by defendant all involve the issuance or revo cation of licenses by an administrative official. Moreover, mandamus is proper "to command performance of an official act which is ministerial." People ex rel. Richter v. Telford, 103 Ill.App.2d 132, at 134; Corn Belt Bank v. Cellini, 18 Ill.App.3d 1035, at 1039.

283

Polygraph 1977, 06(3) In the instant case, the Director of the Department of Registration and Education owes not a ministerial duty, but rather a discretionary duty of official conduct in enforcing the Detection of Deception Examiner's Act, Ch. 38, Section 202-24, Ill.Rev.Stat.: "If any person violates the provision of this Act, the Director may, in the name of the People of the State of Illinois, through the Attorney General, of the State of Illinois, apply, in any court of com petent jurisdiction, for an order enjoining such vio lation or for an order enforcing compliance with this act ••• " (Emphasis supplied.) There is no remedy of mandamus available to the plaintiffs in the instant case: "Mandamus will not lie where to issue the writ would put into the hands of the court the control and re gulation of the general course of official conduct or enforcement or enforce the performance of official duties generally. (Retail Liquor Dealers' Protective Assn. of Illinois v. Schreiber, 382 Ill. 454.) To the same effect see Board of Education of School Dist. 85-i v. Idle Motors, Inc. 339 Ill.App. 359." Peopk ex reI Jansen v. City of Park Ridge, 7 Ill.App.2d331, 333 (1955). Defendant's "adequate remedy at law" argument cannot prevail. STANDING One who attacks a statute as unconstitutional must establish standing; he must fall within the ambit of those sufficiently affected by the allegedly unconstitutional provision. Jaffe v. Crittenden, 412 Ill. 606, 107 N.E.2d 715 (1952); People v. Bambacino, 51 Ill.2d 17, 280 N.E.2d 697, cert. den. 93 S.Ct. 409 u.S. 912, 34 L.Ed.2d 173, ~19?2); People v. Zuni~a, 31 Ill.2d 429, 202 N.E. 2d 31, cert.den.; Wyman v. Illino~s 85 S.Ct. 1332, 3 0 u.S. 977, L.Ed.2d 273 (1964); Meadows v. Grabiec, 20 Ill.App.2d 407, 314 N.E.2d 283 (1974). A person may not question the constitutionality of a statute if he is not injuriously affected by the statute or if the statute operates to his advantage; courts will not entertain objections to constitutionality of a law unless objections are made by one whose rights have been or will be in some way actually in juriously affected. People v. Campbell, 16 Ill.App.3d 851, 307 N.E.2d 395 (1974); Underground Contractors Association v. The City of Chicago, 66 Ill.2d 371 (1977). In Gholson v. Engle, 9 Ill.2d 454, 138 N.E.2d 508 (1956), the Court stated: " that it would be futile to take the examination for a funeral director's certificate because the board is authorized to include questions covering the field of embalming, and is not limited to questions concerning

Polygraph 1977, 06(3) the qualifications of funeral directors. Plain- tiff has not taken the examination, and we cannot assume improper questioning by the board. Plaintiff has not been injured or affected by this section of the statute, and is therefore precluded from ques tioning its constitutionality. People v. Reiner, 6 Ill.2d 337, 341; Elliott v. University of Illinois, 365 Ill. 338, 346 Kettles v. People, 221 Ill. 221, 223; Williams v. People, 121 Ill. 84, 90." 9 Ill. 2d 454, at 4610062. In the instant case, defendant argues that the legislature does not pre scribe rules, standards, or guidelines with respect to the subjects to be covered in the examination, except that the examinee must be determined to be competent to practice as an examiner (Def.'s Memo. in Supp. of Mot. to Dis miss, p. 10). For the defendant to attack the constitutionality of the Act, he must bring himself within the ambit of the test enunciated in Gholson, that is, he must have been injured or affected by this section of the statute. Manos v. state of Illinois, 10 Ill.App.3d 30, 32 (1973); Underground Con. A. v. Chicago, supra. There is no indication that defendant has attempted to apply for an examination or otherwise comply with any section of the statute.

In People v. Brown, 407 Ill. 565, 97 N.E.2d 388 (1951), the Court declared unconstitutional the 1935 Illinois Plumbing Licensing Law because the Legisla ture invoked the police power to arbitrarily interfere with private business; the fees for examinations had no relation to the preservation of public health, safety or welfare; no rules were prescribed guiding examiners as to what would be included on examinations, conferring a special privilege on licensed master plumbers who were the exclusive examiners; and, unlawfully delegating legis lative power to an administrative officer to declare the law and to apply such law to one and not another. In Brown, defendant was subjected to prosecution by information for vio lating the Plumbing Licensing Law by engaging in the business of plumbing without a license. In the case at bar, the defendant has not been affected by any prosecution for an alleged violation of the Detection of Deception Ex aminer's Act and he has not yet taken the examination. The Plumbing Licensing Law required stringent prerequisites before one might qualify to ~ an examination such as being a plumber's appren~ice for at least 5 years (unless he had gone to a college 3 years, and then had to be an apprentice for 2 years), and had to have a journeyman's license for at least 5 years (or graduated from college in sanitary engineering , civil engineering, etc., then a journeyman for 2 years under a licensed master plumber.) The Brown case is distinguishable from Gholson in that in Brown the re gulations imposed a period of unreasonable "servitude" upon the defendant to require him to take the examination before he could challenge that section of the Plumbing Licensing Law. In Krebs v. Thompson, 387 Ill. 471, 56 N.E.2d 761 (1944), a taxpayer successfully brought suit to enjoin the expenditure of any state funds for the

285 Polygraph 1977, 06(3) administration of the Act regulating the practice of professional engineering. Because of the nature of plaintiff's standing as a taxpayer, he could challenge the Act. The defendant here is substantially affected by the Detection of De ception Examiner's Act, as a result of the instant suit intended to enjoin his practice of the "profession" of Detection of Deception, even though he has not taken the examination. He, therefore, has the requisite standing to assert the constitutional argument.

DELIDATION OF LEGISLATIVE POWER Section 202-11 of the Act delegates to the "Examiner Committee or under its supervision," authority to conduct examinations of license applicants. Defendant argues that this provision unconstitutionally delegates to the Examiner Committee authority to conduct examinations of license applicants without rules or standards to ensure uniform examination of the applicants, and cites People v. Brown, supra, and Krebs v. Thompson, supra, as support.' The legislature may authorize other bodies to do things which the leg islature might properly do, but cannot understandingly or advantageously do itself. Toplis & Harding v. Murphy, 384 Ill. 463, 51 N.E.2d 505 (1943); People v. Mayor of Belleville, 22 Ill.2d 225, 174 N.E.2d 678 (1962). Krebs v. Thompson, supra, involved an engineering licensing statute. 'Ihe court found that section of the Act defining professional engineering prac tically unlimited. "The activities which they include and to which they may aptly refer cannot be definitely classified or limited within any general de finition. The definition of professional engineering is no definition at all ••• The term includes everything, but defines nothing." Krebs v. Thompson, supra, 479, 481. Another section of that act relating to the examination to be given, permitted, in the discretion of the examining committee, the applicant to choose from among groups of questions that one which, in the applicant's opinion, most nearly covered his professional engineering experience. Fur thermore, once licensed, the engineer became qualified to practice engineering in any of its areas. This is not true here. "Detection of Deception'.' is defined to the very instruments used. Sections 202-1 and 202-3. The applicants for a license are not given the opportunity to choose from among various groups of questions and the license granted does not permit them to practice in areas other than that in which they were examined. People v. Brown, supra, involved the 1949 Plumbing Licensing Act. The Supreme Court found the act unconstitutional in that it unduly restricted in dividuals from pursuing the trade of plumbing by requiring excessively long periods of apprenticeship and journeyman status without appropriate regard for the particular aptitude and education of the applicant. The Court also found that the act did not prescribe rules or standards with respect to which

286

,-- Polygraph 1977, 06(3) subjects the qualifying examination should cover; require applicants to be examined on the subjects of plumbing; or require uniform examination.

In the case at bar, while the highly restrictive and excessively long apprenticeship and journeyman periods of Brown are not present, there is the lack of precision in describing standard~, uniformity and relevancy of the examination to the profession.

It seems, however, that the Court in Brown ignored some elementary rules of construction. It will never be presumed that the legislature intended to pass an act in violation of the restrictions of the constitution and if the purposes of the act can be fully carried out by a construction which will not bring it within the inhibitions of the constitution, that construction will be adopted. Cit of S r" field v. North Fork Outlet Draina e Dist., 249 Ill. App. 133 (192 It must be presumed that the egislature did not intend absurdity, inconvenience or injustice to result from the passage of its laws. The construction should provide for that course which it is reasonable to pre sume was within the contemplation of the lawmakers. Illinois Chiropractic Soc. v. Giello, 18 I11.2d 306, 164 N.E.2d 47 (1960); Quinn v. Retirement Bd. of Firemen's Annuity & Ben. Fd. of Chicago, 7 I11.App:-Jd[791, 289 N.E.2d 117 (1972). It would be absurd to construe the Act in question here as permitting the examiners to examine the applicants for a license on subjects other than are prescribed by the Rules of the comw~ttee itself, namely; history of poly graph, physiology, psychology, polygraph technique, law, instrumentation, chart interpretation and interrogation. -See, Rule I. There is also a rule of construction that there is a presumption that the powers delegated to a department or administrative body will not be ex ercised arbitrarily or capriciously and that public officers will perform their duties without discrimination. DouglaS v. Noble, 261 u.S. 165. Finally, our own Supreme Court has said, "we cannot assume improper questioning" by an examiner in an examination such as is required here. See Gholson v. Ergle, supra. Therefore, this statute licensing Detectors of Deception must be con strued presuming qualifying examinations will be related to the process of detection of deception as defined in Ch. 38, Section 202-3, I11.Rev.Stat., uniform in application, and restricted to the subjects enumerated in Rule I of the Committee. Thus construed, Section 202-11 retains its constitutional status. THE "VAGUENESS" ISSUE Defendant argues that the definition of "detecting deception" in Sec tion 202-1 is impermissibly vague, indefinite and overbroad. The Court in Landry v. Daley, 280 F.Supp. 938 (N.D. Ill. - E.Div.) (1968), elucidated the often confused concept of the "vagueness doctrine:"

287

Polygraph 1977, 06(3) "The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently de finite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise judge and jury of standards for the deter mination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional. The concept of overbreadth, on the other hand, rests on principles of substantive due process which forbid the prohibition of certain individual freedoms. The primary issue is not reasonable notice or adequate standards, although these issues may be involved. Rather the issue is whether the language of the statute, given its formal meaning, is so broad that its sanctions may apply to conduct protected by the Constitution. Fre quently, the resolution of this issue depends upon whether the statute permits police officials to wield unlimited discretionary powers in its enforcement. If the scope of the power permitted these officials is so broad that the exercise of constitutionally protected conduct depends on their own subjective views as to the propriety of the conduct, the statute is uncon stitutional." (p. 952.) The definition of "detection of deception examiner," within Section 202-1 is "any person who uses any device or instrument to test or question individuals for the purpose of detecting deception." Defendant contends that the phrase "detecting deception" is not defined within this section, thus rendering the section invalid for vagueness. The New Webster Encyclopedic DictionarY, 1967, defines the verb, "detect" as "to uncover, expose, ••• to discover, to find out; to bring to light." "Deception" is defined as "the act of deceiving or misleading," also "fraud" is used as a synonym. The meaning of those words can be rephrased as "uncovering fraud," or "discovering fraud." In Vallat v. Radium Dial Co., 360 Ill. 407, 196 N.E. 485, the Court said: "The rule to be applied in determining whether a stan dard of sufficient definiteness and certainty is con tained in a statute was stated in Connally v. General Construction Co., 269 u.s. 385, 391, where it is said: 'The question whether given legislative enactments have been thus wanting in certainty has frequently been before this court • ••• The precise point of differen tiation in some instances is not easy of statement, but it will be enough ••• to say, ••• that the decisions of the court upholding statutes as sufficient certain

288 Polygraph 1977, 06(3) rested upon the conclusion that they employed words or phrases having a technical or other special meaning well enough known to enable those within their reach to correctly apply them, [citing cases]; or a well settled common-law meaning, notwithstanding an element of degree in the definition as to which estimates might differ, [citing cases]; or, as broadly stated by Mr. Chief Justice White in United States v. Cohen Grocery Co., 255 U.s. 81, 92: "That, for reasons found to re sult either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded." [Citing cases,] '" (At pp. 410-11. ) In the instant case, two of those tests are applicable to the definition in question, that of whether the phrase has a technical or special meaning well enough known, so that they may be correctly applied; and whether the test of the statute and the subject matter affords some sort of standard. Defendant states that, "The Act as written would apply to any person interrogating another by the use of any instrumentality whatever including the telephone, hearing aid, voice amplifier, tape recorder, or other similar device." (Def. Mot. In Sup port of Mot. to Dis., pp. 12-3). In those examples, the interrogator would not be using those devices to "detect deception." Those devices would not enable the questioner to do that which he would not be capable of doing without their use, viz. engaging in communication with the party being questioned. The legislature declared its intent to protect the public health, safety and welfare of the citizens of the State of Illinois, by regulating the prac tice or profession of detection of deception examiners. A person who practices detection of deception, is authorized to employ and must use at least one de vice which the legislature has deemed to be a reliable instrument for the purpose. The polygraph, which records simultaneously the cardio-vascular and respiratory patterns of the subject, reflects the deception. In the examples of the defendant, these devices do not detect. the deception. In Acorn Auto Drivi School v. Board of Education 27 Ill. 2d 93, 187 N.E.2d 711 19 3 , a section of the Illinois School Code was challenged as indefinite, vague and uncertain, by failing to prescribe specific standards by which one can determine his rights. The Court found that the challenged section did not, alone, meet the test of definiteness and certainty, but that, "It must be construed together with and in the light of all the other provisions of the School Code." (at p. 99.) In the case at bar, the "definitions" contained within Section 202-1 construed together with the standard prescribed in Section 202-3 provide the requisite due process rights, viz. reasonable notice of whether one comes within the Act, what conduct is authorized, and what conduct is prohibited. Defendant contends that "where the legislature has failed to define terms of a statute, the' courts have repeatedly found the Act unconstitutional." De fendant cites for that proposition, Krebs v. Thompson, supra; Grayned v. City of Rockford, 408 U.S. 104 (1971); People v. Tibbits, 56 Ill. 56 (1973); and

Polygraph 1977, 06(3) Hershey Manufacturing Co. v. Adamowski, 22 Il1.2d 36, 174 N.E. 2d 200 (1961). The Supreme Court of the United States in Grayned, supra, held the challenged anti-noise ordinance neither vague nor overbroad, and in Tibbits, supra, the Court did speak to the issue of vagueness, but did not pass on the validity of the challenged section (solicitation for purchase or sale of real estate.) Defendant relies on Krebs, supra, to support his argument that the Act in the case at bar is subject to the same constitutional infirmities. In Krebs, the Court declared invalid the 1943 Act regulating professional engi neering. The definition of "professional engineering" was so all-inclusive, that "it includes generally all professional service which requires the ap plication of engineering principles and data." (at p. 478.) The definition, being so broad, delegated to the Department of Registration and Education unlawful authority to determine who would come under the Act. Defendant at tempts to analogize the statute in issue here to that before the Court in Krebs. Defendant states that the Detection of Deception Examiners Act delegates to the Department the authority to determine whether a person's activities fall under the Act because the statute itself lacks clearly defined terms. The Act clearly proscribes the prohibited conduct and adequately defines the authorized and required conduct. Although Defendant believes that one may interpret Sec tion 202-1 to mean that one who use.s a telephone to interrogate is "detecting deception" under the terms of the Act, the words "uses any device or instru ment to test or question individuals for the purpose of detecting deception" do not submit to defendant's tortured interpretation. An interrogator who uses a device or instrument to test truth telling or to detect lies, uses the instrument to record data which the interrogator could not himself perceive. In Section 202-3 the legislature prescribed the instrument which it has autho rized and determined to be reliable. The Act itself apprises a person of his rights under the Act. To practice the profession of detection of deception one must be qualified to obtain a license and be licensed. Defendant also cites DeGrazio v. Civil Service Commission, 31 Ill.2d 482, 202 N.E.2d 522, to support his contention. In DeGrazio, arule of the Chicago Police Department was being challenged as unconstitutionally vague. The rule provided that, "No member or employee of the Department shall associate or fraternize with persons known to have criminal records." The Court held that: " ••• the rule is so vague that persons of cammon intelligence must necessarily guess at its meaning and differ as to its application." 31 Ill.2d at 485. The statute challenged here is a model of clarity and precision when contrasted with the statute in issue in DeGrazio. Although defendant claims Section 202-1 is overbroad, he offers no ar gument in support of such a contention. "A clear and precise enactment may nevertheless be 'overbroad' ·if in its reach it prohibits constitutionally pro tected conduct." Grayned, supra, at 114. Here, Section 202-2 established, through the police power, the right of the State to regulate business, occu pational and professional activities to protect the public interest. Klein v. Department of Registration and Education, 412 Ill. 75, 105 N.E.2d 758 (1958), cert. den. 73 S.Ct. 93, 344 U.S. 855, 97 L.Ed.2d 644. The State's regulation of this activity is reasonably related to the protection of the public interest, and Section 202-1 is not so broad as to prohibit activities constitutionally protected.

290

Polygraph 1977, 06(3) "SPECIAL LEnISLATION" Defendant contends that the Detection of Deception Examiner's Act violates the prohibition against special legislation in that it confers special privileges upon licensed examiners, granting to them an arbitrary and exclusive right to determine who may be licensed under the Act. Defendant cites Section 202-1 and Section 202-11 which state that a license applicant must complete at least a six month period of internship"under the personal supervision and control of a licensed examiner," yet, licensed examiners are not required by the Act to give instruction to interns. Plaintiffs, in their Reply Memorandum, state that there are two other ways in which a license applicant may obtain a license. One may attend the Reid College, which is a Detection of Deception school established "as a private post graduate college authorized to grant Masters Degrees in the Science of Detection of Deception," (Pltfs. Memo. p. 14), or one can obtain a license by reciprocity with another state which has substantially equiva lent requirements as Illinois' licensing statute (Section 202-30). To obtain a license in the former manner, the applicant must comply with Section 202-11, by completing the internship and other requirements. Defendant incorrectly states that: "Educational institutions, public or private, with specialized departments in criminology, are prohibited from rendering the instruction necessary in order to permit a licensed applicant to qualify as a licensed examiner." (Def. Memo. in Supp. of Mot. to Dismiss, p. 17). Nowhere in the Act is such instruction prohibited, as long as the intern ship is under the personal supervision and control of an examiner. (Ch. 38, Sec. 202-1). That a student of detection of deception may attend a school to fulfill the internship requirements in the Act, (Pltfs. Reply Memo P. 14), dis tinguishes the statute at bar from the Plumbing Licensing Law of 1949.

Plaintiffs cite Peo le ex rel. Chica 0 Dental Societ v. AAA Dental Lab., 8 Ill.2d 330, 134 N.E.2d 285 195 ,appeal dismissed 7 S.Ct. 97, 352 u.S. 863, 1 L.Ed.2d 73, rehearing den. 77 S.Ct. 212, 352 u.S. 919, 1 L.Ed.2d 124. However, in that case the validity of the Dental Practice Act was examined with responect to the provision that held: "The effect ••• is to make it unlawful for dental laboratory technicians to take impressions for false teeth, or to make or repair them, except when engaged or employed to do so by a licensed dentist." 8 Ill. 2d at 332. The Court found that in this restriction there is a protection to the public who may be unable to make an informed judgement on the quality and value of the product which the technicians make. In Klein v. Dept. of Registration and Education, supra, the constitutionality

291 Polygraph 1977, 06(3) of a pro~s~on of the Illinois Optometric Practice Act (1951) was challenged as invalid special legislation prohibited by Article 4, Section 22 of the Illinois Constitution of lB70. The prohibition against special legislation contained in Article 4, Section 13 of the 1970 Illinois Constitution, "encom passes within its broad sweep, most, if not all, of the explicit prohibitions of Section 22 of Article IV of the lB70 Constitution." S.H.A. Constitution of 1970, Art. 4, Section 14, Constitutional Commentaries. The Court in Klein, found that the challenged provision was not arbitrary. Although a citizen has a right to pursue a trade, occupation or profession which he chooses, the State, by virtue of the police power, has a superior right to limit that right where the public health, safety or welfare requires. In the instant case, Defendant argues that the Act created a class, as in Brown, supra, by "arbitrary statutory declaration by the legislature in order that it might be the recipient of special and exclusive legislative favors." (Def. Memo. in Supp. of Mot. to Dis., p. lB.) In the Act, Chapter 3B, Section 202-2, the legislature declared the prac tice of detection of deception to affect the public health, safety and welfare, subjecting it to the regulation and control of the State for the public inter est. The Court in Klein, supra, pointed out that provisions passed under such a declaration are subject to review and must "have a definite relation to the ends sought to be attained." 412 Ill. at 79. That examiner-trainees must fulfill an internship for six months under licensed examiners is clearly distinguishable from the apprenticeship and em ployment-supervision of a journeyman plumber's in Brown and Schroeder, supra. There is no analogous "employment" by licensed master plumbers, for detection of deception examiner-trainees. The purpose of the internship is to establish the requisite qualifications to pass the examination, and ultimately obtain licensure, as in Section 202-11. In Klein, supra, the Court indicates that where the regulated activity is raised, "to the plane of a learned profession, which were traditionally law, medicine and theology ••• [it is subjected to] a higher ethical code and a more rigid exercise of the police power." 242 Ill. at 79. Without discussing a more rigid standard, the Act's provision for an in ternship with licensed examiners is reasonably related to the State's pro tecting the public interest. Further, that educational institutions are avail able to prospective examiner~trainees, makes the defects in Brown, supra, and Schroeder, supra, inapplicable to the case at bar. The statute is constitutional, the motion to dismiss must be denied. Counsel for Plaintiff will submit an appropriate order. ENTER: NATHAN M. COHEN Judge

DATED July 22, 1977

292 Polygraph 1977, 06(3) POLYGRAPH REVIEW By Bobby J. Daily

How would you score on a licensing examination? Are you sufficiently up-to date about such subjects as psychology, physiology, instrumentation, test question construction, chart interpretation, interview techniques, etc? Are you prepared to undergo direct and cross-examination on polygraph subjects in court? A score of 9 or 10 is excellent, 7 or 8 is good, and below 7 may in dicate some review is warranted. The review in this issue is on Polygraph Concepts. (Answers on page 240.)

1. Which of the following is an INCORRECT statement concerning the polygraph? a. It is an invaluable investigative aid. b. It is a scientific diagnostic instrument. c. It determines facts concerning a case under investigation. d. The results of an examination are only as nearly accurate as the examiner is competent.

2. Generally, the best way to explain the polygraph to a subject is to: a. explain the theory of psychological set. b. explain in detail the mechanical nomenclature and functions of all components. c. explain cause and effect of blood pressure cuff discomfort. d. explain the components in terms of what physiological phenomena they record. 3. Polygraph charts of your subject reveal consistent delayed reactions to stimulus and delayed answers. This is most probably indicative of the subject: a. thinking about how he should answer the questions. b. being a slow thinker. c. not understanding the questions. d. being suspicious of the examiner. 4. The primary purpose of a pretest interview is to: a. obtain full particulars concerning the examinee's physical and mental health. b. obtain a confession from a guilty examinee. c. prepare the examinee for maximum reactions to control and relevant questions. d. prepare the subject for testing with the polygraph. 5. Polygraph test questions are asked at relatively equal-spaced intervals of 15-20 seconds to: a. permit physiological responses to dissipate and regain a relative norm.

293 Polygraph 1977, 06(3) 5. b. allow distracting anticipatory reactions following irrelevant questions. c. allow a limited time for physiological responses at relevant questions. d. allow the examiner sufficient time to make necessary chart markings and tracing adjustments.

6. (T) (F) In a control question test, all polygraph questions should be reviewed with the subject prior to the test. 7. (T) (F) The sequence of all questions to be asked during a control question polygraph test should be reviewed with the subject. B. (T) (F) Privacy is a principal psychological factor contributing to a successful examination. 9. (T) (F) A subject from a cultural background different from yours may not understand your words in exactly the same way you do. 10. (T) (F) The examiner must be positive the subject will lie to any con trol questions he intends to utilize on a test.

*******

Eye-Movement

Geddes, L.A., Bourland, J.D., Wise, G. and Steinberg, R. "Linearity of the Horizontal Component of the Electro-Oculogram," Medical 2 Biological Engineering (January 1973): 73-77. The horizontal component of the human electro-oculogram was recorded ~sing dry electrodes. The voltages obtained (e) for gaze angles (0) up to - 60 0 were analyzed to test the relationships e=EO and e=Em sin O. It was found that up to about 45 0 the linear and sinusoidal relationships accurately represented the data. For gaze angles greater than 450 the sinusoidal re lationship provided a slightly better fit for the data. [author abstract.] Geddes, L.A., Steinberg, R. and Wise, G. "Dry Electrodes and Holder for Electro-Oculography," Medical ~ Biological Engineering (January 1973): 69-72. The temporal decrease in electrode-subject resistance was measured for dry silver electrodes placed bitemporally to measure the horizontal component of the electro-oculogram. It was found that the electrode-subject resistance decreased exponentially with time. The average time constant for ten deter minations was 3.26 min. After about 20 min. there was no further reduction in electrode-subject resistance. On average, the ratio of the final to the initial resistance was approximately 0.1.

294 Polygraph 1977, 06(3) 5. b. allow distracting anticipatory reactions following irrelevant questions. c. allow a limited time for physiological responses at relevant questions. d. allow the examiner sufficient time to make necessary chart markings and tracing adjustments.

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Eye-Movement

294 Polygraph 1977, 06(3) Law

Ansley, Norman. "Van Gregory Jolmson v. Maryland, A Paradoxical Pre cedent," Polygraph Review 3 (l)(April 1977): 1-6.

In Jolmson, the Maryland Court of Appeals decided that the jury needed to know all of the details of the polygraph examination which led to a con fession; all but the examiner's opinion. The court held that the trial jury could not select which circumstances relative to voluntariness may go to the jury and which may not. The jury, the court held, must decide whether the polygraph is a mere motivating factor or so coercive as to render the con fession involuntary. Noting that the jury would probably be able to infer the results, the court directed this to be corrected by proper judicial in struction. The decision is compared to another Maryland case in which the Judge held that judicial instruction would be insufficient to correct the impression made on a jury by a police officer's mere mention of an examina tion of a primary witness. Polygraph Technique - Validity Lieblich, Israel, Ben Shakhar, Gershon, and Kugelmass, Sol. "Validity of the Guilty Knowledge Technique in a Prisoner's Sample." Journal.2!. Applied Psychology 61 (1)(1976): 89-93. An attempt was made to evaluate the guilty knowledge technique as a detector of knowledge held by a sample of prisoners (N=30) in a maximum security prison in Israel. In an initial interview, prisoners responded to 20 questions designed to elicit personal responses or items. During a later interrogation, the prisoners were presented verbally with (a) the same 20 questions, and (b) five alternative responses including their own personal response and four neutral control responses. During the interrogation subjects listened quietly while their galvanic skin responses were monitored. On the basis of the galvanic skin responses, a significant proportion (p(.Ol) of the subjects were correctly matched with their personal questionnaire responses. Although better overall matching had occurred with college students, no dif ference between the samples appeared on items involving strongly personal information. Stimulation Tests Senese, L. "Accuracy of the Polygraph Technique with and without Card Test Stimulation." Journal of Police Science and Administration 4 (3)(1976): 274-276. - - The author claims that the use of a stimulation test (card test) in creases the accuracy of polygraph examinations, reduces errors, decreases the number of inconclusive tests, and lowers the rate of unresponsive sub jects.

295 Polygraph 1977, 06(3)