LIE DETECTION

TECHNIQUES
 CHAPTER 7
LEGAL AND ETHICAL ISSUES IN

POLYGRAPH TESTING
 POLYGRAPH EVIDENCE HAS LONG BEEN DISPUTED INTO

PUBLIC CONTROVERSY SINCE THE INTRODUCTION OF THE

INSTRUMENT. GENERALLY, THE SOURCES OF THE DISPUTE COME

FROM ISSUES ON ITS VALIDITY/ RELIABILITY AND

ACCEPTABILITY. SINCE DEVELOPMENT OF POLYGRAPH

TECHNIQUES, THEIR USE BOTH WITHIN AND OUTSIDE THE

GOVERNMENT HAS BEEN THE FOCUS OF NUMEROUS JUDICIAL

OPINIONS AND, AS WELL, LEGISLATIVE AND EXECUTIVE

BRANCH DEBATE.

POLYGRAPH EXAMINATIONS HAVE BEEN ADVOCATED AS A

WAY OF ASCERTAINING GUILT OF CRIMINAL SUSPECTS,

EXCULPATING INNOCENT SUSPECTS, PROTECTING NATIONAL

SECURITY, AND MAINTAINING EMPLOYEE HONESTY OR LOYALTY.

POLYGRAPH EXAMINATIONS HAVE, AT THE SAME TIME, BEEN

CRITICIZED FOR PROVIDING INACCURATE AND MISLEADING

INFORMATION, FOR FAILING TO DETECT SECURITY RISKS, FOR

INTERFERING WITH THE RIGHTS OF PRIVATE CITIZENS, AND FOR

LOWERING EMPLOYEE’S MORALE.

 THE VALIDITY OF POLYGRAPH

TESTING

THE VALIDITY OF POLYGRAPH TESTING MEANS, IN

NONTECHNICAL TERMS, ACCURACY OF THE TEST IN

DETECTING DECEPTION AND TRUTHFULNESS. THE PROBLEM

OF ASSESSING POLYGRAPH VALIDITY IS ESPECIALLY

DIFFICULT, NOT ONLY BECAUSE POLYGRAPH TESTS TAKE A

NUMBER OF FORMS, BUT ALSO BECAUSE VALIDITY HAS

DIFFERENT DIMENSIONS AND CAN BE MEASURED IN A

NUMBER OF WAYS.
 THE RELIABILITY ISSUE OF POLYGRAPH

TESTING
ASSESMENT OF ANY TEST VALIDITY IS BASED ON THE

ASSUMPTION THAT THE TEST CONSISTENTLY MEASURES THE

SAME PROPERTIES. THIS CONSISTENCY, KNOWN AS REALIBILITY,

IS USUALLY THE DEGREE TO WHICH A TEST YIELDS REPEATABLE

RESULTS ( I. E., THE EXTENT TO WHICH THE SAME INDIVIDUAL

RETESTED IS SCORED SIMILARLY). RELIABILITY ALSO REFERS TO

CONSISTENCY ACRISS EXAMINERS/SCORERS. A RELIABLE

POLYGRAPH TEST SHOULD YIELD EQUIVALENT OUTCOMES WHEN

SUBJECTS ARE RETESTED AND, AS WELL, BE SCORED SIMILARLY

BY INDIVIDUALS OTHER THAN THE INITIAL EXAMINER..

 SCIENTIFIC ASSESSORS WITH REGARD TO THE

POLYGRAPH TEST
THE CORE OF THE LEGAL, LEGISLATIVE, AND SCIENTIFIC ASSESSMENT OF

POLYGRAPH TEST IS THEIRVALIDITY. YET, DESPITE MANY DECADES OF JUDICIAL,

LEGISLATIVE, AND SCIENTIFIC DISCUSSION, NO CONSENSUS HAS EMERGED ABOUT THE

ACCURACY OF POLYGRAPHTESTS. MEANWHILE, POLYGRAPH ADVOCATES CLAIM 80-95%

RESULT ACCURACY, CRITICS MAINTAIN THAT RATHER THAN A “TEST”, THE METHOD

AMOUNTS TO AN INHERENTLY UNSTANDARDIZABLE INTERROGATION TECHNIQUE

WHEREIN ACCURACY CANNOT BE ESTABLISHED. FOR EXAMPLE, IN THE 1998 SUPREME

COURT CASE, UNITED STATES V.

SCHEFFER, THE MAJORITY STATED THAT “THERE IS SIMPLY NO CONSENSUS THAT

POLYGRAPH EVIDENCEIS RELIABLE “ AND “UNLIKE OTHER EXPERT WITNESSES WHO

TESTIFY ABOUT FACTUAL MATTERS OUTSIDE THE JURORS’ KNOWLEDGE, SUCH AS THE

ANALYSIS OF FINGERPRINTS, BALLISTICS, OR DNA FOUND AT A CRIME SCENE, A

POLYGRAPH EXPERT CAN SUPPLY THE JURY ONLY WITH ANOTHER OPINION.” IN

ADDITION, IN 2005 THE 11THCIRCUIT COURT OF APPEALS STATED THAT “POLYGRAPHY DID

NOT ENJOY GENERAL ACCEPTANCE FROM SCIENTIFIC COMMUNITY”.

 ADMISSIBILITY OF POLYGRAPH RESULT IN

COURT PROCEEDINGS

POLYGRAPH RESULTS ARE ADMISSIBLE IN SOME FEDERAL

CIRCUITS AND SOME STATES IN THE UNITED STATES. MORE OFTEN,

SUCH EVIDENCE IS ADMISSIBLE WHERE PARTIES HAVE AGREED TO

THEIR ADMISSIBILITY BEFORE THE EXAMINATION IS GIVEN, UNDER

TERMS OF STIPULATION. SOME JURISDICTIONS HAVE ABSOLUTE

BANS ON ADMISSIBILITY OF POLYGRAPH RESULTS AS EVIDENCE

AND EVEN THE SUGGESTION THAT A POLYGRAPH EXAMINATION IS

INVOLVED IS SUFFICIENT TO CAUSE A RETRIAL.

 ACCORDING TO STANDARDS, RESULTS OF POLYGRAPH TESTS

KNOWN AS PSYCHOPHYSIOLOGICAL VERACITY (PV) EXAMINATIONS

ARE ADMISSIBLE IN A COURT IF THE PARTICULAR POLYGRAPH

TECHNIQUE USED IN THE PROFFERED PV EXAMINATION MEETS THE

DAUBERT STANDARD TO THE SATISFACTION OF THE PRESIDING

JUDGE WHO ACTS AS THE GATEKEEPER OF THE FEDERAL RULES OF

EVIDENCE.
RECENT ADVANCES IN POLYGRAPH INSTRUMENT TECHNOLOGY

AND POLYGRAPH TECHNIQUES THAT HAVE BEEN VALIDATED BY

SCIENTIFIC STUDIES PUBLISHED IN PEER REVIEWED JOURNALS

THAT MEET THE DAUBERT STANDARD SHOULD OPEN THE FIELD FOR

RENEWED CHALLENGES TO RULES IF INADMISSIBILITY.

 AS OF 2009, EIGHTEEN (18) STATES IN THE UNITED STATES

HAVE ADOPTED THE DAUBERT STANDARD

OF ADMISSIBILITY AND THE JUDICIAL DOOR IS OPEN FOR OTHER

STATES TO FOLLOW.
THE FEDERAL COURTS AND MOST STATE COURTS IN THE

UNITED STATES ADOPTED THE FRYE STANDARD HAVE SINCE

THEN, WITH RARE EXCEPTIONS EXCEPT FOR THE STATE OF NEW

MEXICO, DENIED ADMISSIBILITY OF PSYCHOPHYSIOLOGICAL

VERACITY (PV) EXAMINATION (POLYGRAPH) RESULTS IN COURT 19

STATES ADMIT RESULTS OF PV EXAMINATIONS UNDER

STIPULATION BY THE PARTIES.

THE STATE OF NEW MEXICO PERMITS THE INTRODUCTION

OF POLYGRAPH RESULTS INTO EVIDENCE WITHOUT A

STIPULATION UNDER STRICT EVIDENTIARY RULES.

 FRYE & DAUBERT STANDARD COMPARISON ON

ADMISSIBILITY OF POLYGRAPH RESULT

THE FRYE STANDARD IS A LEGAL PRECEDENT REGARDING THE

ADMISSIBILITY OF SCIENTIFIC EXAMINATIONS OR EXPERIMENTS IN LEGAL

PROCEEDINGS. THIS STANDARD COMES FROM THE CASE FRYE VS. UNITED

STATES (293 F.1013 (DC CIR 1923) DISCTRICT OF COLUMBIA CIRCUIT IN 1923.

THE COURT STATES THAT “ JUST WHEN A SCIENTIFIC PRINCIPLE OR

DISCOVERY CROSSES THE LINE BETWEEN THE EXPERIMENTAL AND

DEMONSTRABLE STAGES IS DIFFICULT TO DEFINE.

SOMEWHERE IN THIS TWILIGHT ZONE THE EVIDENTIAL FORCE OF THE

PRINCIPLE MUST BE RECOGNIZED, AND WHILE THE COURTS WILL GO A

LONG WAY IN ADMITTING EXPERIMENTAL TESTIMONY DEDUCED FROM A

WELL-RECOGNIZED SCIENTIFIC PRINCIPLE OR DISCOVERY, THE THING FROM

WHICH THE DEDUCTION IS MADE MUST BE SUFFICIENTLY ESTABLISHED TO

HAVE GAINED GENERAL ACCEPTANCE IN THE PARTICULAR FIELD IN WHICH

IT BELONGS.”
 IN THE FRYE STANDARD, SCIENTIFIC EVIDENCE PRESENTED TO

THE COURT MUST BE INTERPRETED BY THE COURT AS “GENERALLY

ACCEPTED” BY A MEANINGFUL SEGMENT OF THE ASSOCIATED

SCIENTIFIC COMMUNITY. THIS APPLIES TO PROCEDURES, PRINCIPLES

OR TECHNIQUES THAT MAY BE PRESENTED IN THE PROCEEDINGS OF A

COURT CASE. HENCE, IN PRACTICAL APPLICATION OF THIS STANDARD,

THOSE WHO WERE PROPONENTS OF A

PARTICULAR SCIENTIFIC ISSUE HAD TO PROVIDE A NUMBER OF

EXPERTS TO SPEAK TO THE VALIDITY OF THE SCIENCE BEHIND THE

ISSUE IN QUESTION.
THE DAUBERT STANDARD WAS DERIVED FROM THE DAUBERT V.

MERRELL DOW PHARMACEUTICALS, INC., 113 S.CT 2786, 125 L.E. 2D 469,

509 U.S. (1993), WHICH THE COURT ISSUED ANOTHER LANDMARK

DECISION DIRECTLY AFFECTING THE ADMISSIBILITY OF THE EXPERT

TESTIMONY, INCLUDING POLYGRAPH EXAMINATION RESULTS.

 UNDER THE STANDARD ENUNCIATED BY THE UNITED STATES SUPREME COURT IN

DAUBERT, WHICH SUPERSEDED THE FRYE STANDARD OF “GENERAL ACCEPTANCE “

TEST, THE COURT RULED THAT “THE TRIAL JUDGE, PURSUANT TO RULE 104 (A), MUST

MAKE A PRELIMINARY ASSESSMENT OF WHETHER THE TESTIMONY’S UNDERLYING

REASONING OR METHODOLOGY IS SCIENTIFICALLY VALID AND PROPERLY CAN BE

APPLIED TO THE FACTS AT ISSUE. MANY CONSIDERATION WILL BEAR ON THE INQUIRY,

INCLUDING WHETHER THE THEORY OR TECHNIQUE IN QUESTION CAN BE (AND HAS

BEEN) TESTED, WHETHER IT HAS BEEN SUBJECT TO PEER REVIEW AND PUBLICATION,

ITS KNOWN OR POTENTIAL ERROR RATE, AND THE EXISTENCE AND MAINTENANCE OF

STANDARDS CONTROLLING ITS OPERATION, AND WHETHER IT HAS ATTRACTED

WIDESPREAD ACCEPTANCE WITHIN A RELEVANT SCIENTIFIC COMMUNITY”.

THE COURT FURTHER STATED: CROSS-EXAMINATION, PRESENTATION OF

CONTRARY EVIDENCE, AND CAREFUL INSTRUCTION ON THE BURDEN OF PROOF,

RATHER THAN WHOLESALE EXCLUSION UNDER AN UNCOMPROMISING “GENERAL

ACCEPTANCE” STANDARD IS THE APPROPRIATE MEANS BY WHICH EVIDENCE BASED

ON VALID PRINCIPLES MAY BE CHALLENGED.

 THE COURT FINALLY SUMMARIZED THAT “GENERAL ACCEPTANCE” IS

NOT A NECESSARY PRECONDITION TO THE ADMISSIBILITY OF SCIENTIFIC

EVIDENCE UNDER THE FEDERAL RULES OF EVIDENCE, BUT THE RULES OF

EVIDENCE-ESPECIALLY RULE 702-DO ASSIGN TO THE TRIAL JUDGE THE TASK

OF ENSURING THAT AN EXPERT’S TESTIMONY BOTH RESTS ON A PERTINENT

EVIDENCE BASED ON SCIENTIFICALLY VALID PRINCIPLES WILL SATISFY THOSE

DEMANDS.

HENCE, IN THE DAUBERT STANDARD, ALL THAT REQUIRES IS AN

INDEPENDENT JUDICIAL ASSESSMENT OF RELIABILITY. AND THE VALIDATION

REQUIRES AT LEAST TWO INDEPENDENT RESEACH STUDIES PUBLISHED IN

PEER REVIEWED JOURNALS. THE PREFERENCE IS FOR FIELD STUDIES RATHER

THAN LABORATORY STUDIES, IN AS MUCH AS LABORATORY STUDIES CANNOT

GENERALIZE THEIR RESULTS TO REAL-WORLD SITUATIONS. IN THIS CASE,

LAWYERS MUST INSURE THAT THE POLYGRAPHIST THEY HIRE HAS BEEN

FORMALLY TRAINED IN A POLYGRAPH TECHNIQUE THAT HAS BEEN VALIDATED

BY PUBLISHED PEER-REVIEWED RESEARCH.