POLYGRAPH 101: FOR THE CRIMINAL PRACTITIONER Kenneth L. DAVIS 07NOV19 OBJECTIVES I. Pros & Cons on whether or not to take a polygraph… II. How are Relevant Test Questions Formulated & by Whom? III. What is an “Inconclusive”/”No Opinion” Test Result? IV. Why is the Post-Test Interview More Important Than the Test Result? How can we Choose… When we ASSUME this! PROS & CONS PROS & CONS When Considering the Following: Suspect(s) Accused Witnesses and/or Criminal Informant(s) Victim(s) SUSPECT(S) PRO: o Helps to gauge who’s involved & what may their involvement be o May gain - Admissions & Confessions o Cost Time/Effective* CON: o If there’s involvement…the Spotlight is on THEM o Admissions & Confessions may by obtained UNCHARTED WATER: TITLE IX Investigations! Family/Custody-CYS/Sexual Harassment ACCUSED PRO: o May shed light on new information involving case o Typically the Comm. does not engage unless exigent circumstances CON: o Could undermine Case ILLUSTRATIONS: 1 (dating of injury) 2 (Det. SS) 3 (Wayne/Susq) UNCHARTED WATER: ASSET FOREFEITURE & Proffer$ WITNESSES AND/OR CRIMINAL INFORMANT(S) PRO: o Could aid the investigation - add Probable Cause o Assist with Officer Safety CON: o Could change the Direction of the Investigation VICTIM(S) PRO: o Comm. does NOT test victim(s) o May add Credibility to Victim CON: o Could undermine Case & have negative impact on Victim ILLUSTRATIONS: 1 (recent + vs -) UNCHARTED WATER: Civil Cases PROS & CONS Other Things to Consider: Who’s the Examiner? When is the Polygraph Test being Implemented ILLUSTRATION 1* cost/time effective (Cco) UNCHARTED WATER: Discovery – Quality Control RELEVANT TEST QUESTION FORMULATION Category Types of Relevant Questions: 1) Primary 2) Secondary Who Determines the Relevant Test Questions? For the Comm.: Investigator District Attorney In the Private Sector: The person who hired them RELEVANT TEST QUESTION FORMULATION HOWEVER! The Examiner has the Ultimate Decision on the wording of the test question to follow validated testing procedures/formats! RELEVANT TEST QUESTION FORMULATION What Dictates the Number of Relevant Test Questions? The Information that is trying to be Verified The Validated Test Format that Best Incorporates the Aforementioned SOMETHING To CONSIDER: GAMESMANSHIP** ILLUSTRATION 1** gamesmanship (TD case denial) INCONCLUSIVE/NO OPINION TEST RESULT Simply – for that Validated Test Format – Not enough Numeric data for a Definitive Test Result What Causes That? Possible Examiner Error…Did the examiner do anything to mitigate that? Outside Influences*** Examinee Not Testable Examinee employing Countermeasures/Purposely Non-Cooperative (PNC) ILLUSTRATIONS: 1 outside influences*** INCONCLUSIVE/NO OPINION TEST RESULT If Not: Examiner Error Outside Influences Examinee (testable) You Conduct a Post-Test Interview If Countermeasures/PNC You Conduct a Post-Test Interview Plus – Possible Consciousness of Guilt WHY IS THE POST-TEST INTERVIEW MORE IMPORTANT THAN THE TEST RESULT? First – let’s Discuss this Term! DIFFERENTIAL SALIENCE WHY IS THE POST-TEST INTERVIEW MORE IMPORTANT THAN THE TEST RESULT? Post-Test Interviews HELP get an Understanding as to Why perhaps that person’s test result was DI-Deception Indicated or SR-Significant Responses. ILLUSTRATION: 1 (13yr/#of times in bedroom) HENCE: The IMPORATNACE of Post-Test Interviews & GAMESMANSHIP! QUESTIONS Thank You! In many but not all jurisdictions, the Frye standard has been superseded by the Daubert standard. States still following Frye include: California, Illinois, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington. Effective July 1, 2013, Florida no longer adheres to the Frye standard. United States v. Lee, 315 F.3d 206 (3d Cir. 2003), cert. denied, 540 U.S. 858 (2003). Defendant pleads guilty to possession and transport of child pornography, and to enticing minor by computer to engage in sex. District court conditions supervised release on defendant's submission to periodic polygraph exams. Sentence affirmed. Among other arguments, defendant contends polygraph exam is unnecessarily burdensome, because polygraph results would be inadmissible at any revocation hearing. Actually, some courts have held polygraphs admissible following Daubert, but Third Circuit need not reach that issue now, because polygraph could still be used by probation officer to enhance defendant's supervision and treatment. Nawrocki v. Twp. of Coolbaugh, No. 01-1196 (3d Cir. Apr. 8, 2002) (unpublished). Teacher #1 receives various anonymous threatening and pornographic letters, and teacher #2 is suspected of being their source. School district arranges for polygraph of teacher #2, and polygrapher concludes that teacher #2 is responsible for letters. Teacher #1 files criminal charges, but teacher #2 is acquitted. Teacher #2 then brings malicious prosecution claims against teacher #1 under section 1983. District court enters judgment as matter of law for teacher #1, in part because polygraph results supplied probable cause. Admissibility affirmed. Polygraph results were not admitted for their truth, but to show probable cause. Although most appellate courts have continued to exclude polygraph evidence notwithstanding Daubert, district court did not err in admitting polygraph findings for this limited purpose. 317 Pa.Super. 118 (1983) 463 A.2d 1113 COMMONWEALTH of Pennsylvania v. Keith O. SMITH, Appellant. Supreme Court of Pennsylvania. Petition for Allowance of Appeal Denied January 20, 1984. Michael A. DeFino, Philadelphia, for appellant. Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee. Before CERCONE, P.J., and CAVANAUGH and WIEAND, JJ. WIEAND, Judge: On appeal from an order denying P.C.H.A. relief, Keith O. Smith asks us to review issues which, on direct appeal to the Supreme Court, were not decided, apparently because the issues had not been preserved for appellate review. Appellant makes this request by asking us to hold that contentions regarding the alleged involuntariness of his confession possessed arguable merit and that prior counsel, therefore, must have been ineffective for failing to preserve them for determination on direct appeal. Smith had been tried and convicted of robbery, conspiracy and murder of the second degree for his part in the holdup of a Philadelphia flower shop and the shooting of the proprietor. On direct appeal to the Supreme Court the conviction was upheld and the judgment of sentence was affirmed per curiam. See: Commonwealth v. Smith, 468 Pa. 375, 362 A.2d 990 (1976). A dissenting opinion, authored by Justice (now Chief Justice) Roberts, suggested that the majority had avoided reaching the merits of appellant's contention that his confession had been coerced by an inadequate understanding of his rights with respect to a polygraph examination because the issue had not been preserved in written post verdict motions. After his direct appeal had been denied, appellant filed a pro se P.C.H.A. petition, alleging that prior counsel had been ineffective for failing to preserve the issue deemed waived by the Supreme Court. Counsel was appointed to file an amended petition, which contained the additional contention that prior counsel had been ineffective in failing to preserve for review the assertion that appellant's confession was involuntary because of undue pre-arraignment delay, in violation of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). At a hearing on the amended petition, the representative of the Commonwealth stipulated that the issues which appellant wished to raise in post conviction proceedings had not been preserved by prior counsel in post verdict motions. However, [317 Pa. Superior Ct. 122] there was otherwise no attempt to show that prior counsel had rendered constitutionally ineffective assistance. The P.C.H.A. court dismissed the petition, and Smith appealed. After appellant had been arrested and had waived his Miranda rights, he was asked if he was willing to submit to a polygraph examination. Although warned at least twice of his right to remain silent and make no statement, he unhesitatingly agreed to take the examination and signed a written consent form.1 During a pre-polygraph interview, appellant confessed to his participation in the robbery but denied that he had shot the proprietor. No polygraph examination was thereafter conducted. During a pre-trial suppression hearing, in which appellant's confession was found to be voluntary, appellant contended, as he now does on appeal from the denial of P.C.H.A. relief, that the threatened use of the polygraph was coercive and that, therefore, his confession was involuntary and should have been suppressed. He argues specifically that he should have been warned (1) that the taking of the polygraph test was not mandatory; (2) that the results of the test were not admissible as evidence in a court; and (3) that a favorable test result would not necessarily require the police to release him from custody. These instructions, he urges us to hold, must be given in addition to Miranda warnings whenever questioning of a suspect takes place in a polygraph situation. The polygraph has been acknowledged by the courts of this Commonwealth to be a valuable tool in the investigative process. See: Commonwealth v. Hernandez, 498 Pa. 405, 415, 446 A.2d 1268, 1273 (1982); Commonwealth v. Smith, 487 Pa. 626, 631, 410 A.2d 787, 790 (1980); Commonwealth v. Blagman, 458 Pa. 431, 435-436, 326 A.2d 296, [317 Pa. Superior Ct. 123] [317 Pa. Superior Ct. 124] 298-299 (1974). Its use does not per se render a confession involuntary. Commonwealth v. Jones, 341 Pa. 541, 548, 19 A.2d 389, 393 (1941); Commonwealth v. Hipple, 333 Pa. 33, 39, 3 A.2d 353, 355-356 (1939). See: Thompson v. Cox, 352 F.2d 488 (10th Cir. 1965); United States v. McDevitt, 328 F.2d 282 (6th Cir. 1964). A confession is not involuntary merely because it was made in anticipation of, during, or following a polygraph examination. See: 89 ALR3d 236, and cases there gathered. In Pennsylvania, an inculpatory statement made during a pretest interview was held admissible in Commonwealth v.