• 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).