RCMP Applicant Read The Lie Behind the Lie Detector and Beat the Polygraph

the-lie-behind-the-lie-detector-4th-edition-coverAn article published in the French language newspaper Le Soleil in 2011 recounts the story of an applicant for employment with the Royal Canadian Mounted Police (RCMP) who read AntiPolygraph.org’s free book, The Lie Behind the Lie Detector, and used the countermeasure techniques provided therein to pass the RCMP’s pre-employment polygraph examination while lying about salient details of his history, including whether he intended to use polygraph countermeasures. An English translation of the article follows:

The Man Who Beat the Polygraph

Published 13 January 2011 at 0500 hours | Updated 13 January 2011 at 0842 hours

Le Soleil

(Québec) Anyone can beat the lie detector with a little preparation says Jean-François Courteau, who says he fooled that of the Royal Canadian Mounted Police without getting caught.

Jean-François Courteau, an information technology consultant from Québec, once was considering a career in the field of cybercrime. In 2006, he went through the entire selection process for the RCMP.

In his preparatory research, he quickly stumbled across the book, The Lie Behind the Lie Detector, a work that is offered for free on the Internet, that provides all the tricks for beating the polygraph.

Jean-François Courteau began by completing the RCMP questionnaire, whose hundred questions aim to bring out all the skeletons from the candidate’s closet.

Once connected to the polygraph, he says he lied on 3 of the 10 questions. “They asked me if I had omitted information about criminal acts I may have committed,” recounts Mr. Courteau. “I said no, but I knew that eight months previously, I had driven after drinking.”

The candidate says he also lied on the questions, “Do you intend to tell the truth?” and “Do you intend to use means to counter the polygraph?” “I replied no and yet that is what I was doing the whole time,” he summed up.

Jean-François Courteau says he was later eliminated because of a credit record that the RCMP deemed insufficient.

He draws from his experience the conclusion that the polygraph is partly based on chance. “It’s a random measure,” judges Jean-François Courteau. “Someone can arrive there totally dishonest, and he can pass anyway if he is well prepared.”

While it is not AntiPolygraph.org’s intention to help individuals obtain employment for which they are not qualified, Courteau’s experience underscores the folly of relying on the pseudoscience of polygraphy for personnel security screening.

Drew Richardson, RIP

Drew Richardson speaking at Georgetown University

Drew Richardson speaking at Georgetown University in 2013 (Georgetown University Journal of Health Sciences photograph)

It is with deep sadness that we report that retired FBI scientist and supervisory special agent Dr. Drew C. Richardson, who has for many years been a friend and mentor to AntiPolygraph.org’s co-founders, was killed in a tragic accident at his home in Greenville, Virginia on Thursday, 21 July 2016. He was 65 years old.

Dr. Richardson, who spent his FBI career in the Bureau’s laboratory division, was also a polygraph expert and the Bureau’s most outspoken internal critic of polygraphy. In 1997, speaking before a subcommittee of the U.S. Senate Committee on the Judiciary, Dr. Richardson testified that “[polygraph screening] is completely without any theoretical foundation and has absolutely no validity” and that “anyone can be taught to beat this type of polygraph exam in a few minutes.”

In February 2001, after the arrest of FBI Robert P. Hanssen on espionage charges, Dr. Richardson sent a memorandum to then FBI Director Louis Free advising him that “there is NO evidence whatsoever that polygraph screening has any validity as a diagnostic tool” (original emphasis) and cautioning against any temptation to embrace polygraph screening. Director Free regrettably chose to ignore Dr. Richardson’s advice.

In October 2001, Dr. Richardson was an invited speaker at a public meeting of the National Academy of Sciences/National Research Council Committee to Review the Scientific Evidence on the Polygraph. The critique of polygraphy he provided then remains as pertinent today as it was fifteen years ago.

In 2002, Dr. Richardson issued his challenge to the polygraph community to prove their claimed ability to detect polygraph countermeasures. No polygraph operator ever exhibited the confidence to accept Dr. Richardson’s challenge.

We cherish Drew’s memory.

Among other pursuits, Dr. Richardson was an avid paraglider. We leave you with his most recent posting to his YouTube channel:

Update: A discussion thread has been started on the AntiPolygraph.org message board.

National Border Patrol Council Official Cites Polygraph Abuse

nbpcIn a report by Fronteras Desk senior editor Michel Marizco published 23 June 2016, National Border Patrol Council vice president and Tucson Local 2544 president Art Del Cueto criticized U.S. Customs and Border Protection’s polygraph practices. Excerpt:

The U.S. Border Patrol is facing criticism for the way it administers polygraph exams on would-be hires. The agency has fielded complaints from applicants, members of Congress and the agency’s union.

Customs and Border Protection was required to give polygraphs six years ago to all of its applicants for front-line jobs. That includes port inspectors and Border Patrol agents. Officials say the test was implemented to weed out corruption in the ranks.

The agency’s also under pressure by Congress to hire 1,300 more Border Patrol agents. Critics say what they see as a heavy-handed polygraph examination is hurting those recruitment efforts.

“They’re supposed to be doing the polygraph testing, doing the report and then they send it through, but that’s not what’s happening, at least not in Tucson sector,” said Art Del Cueto, president of the agency’s union in Tucson.

Rather than passing the results of the polygraph on, in the Tucson sector, Del Cueto says one person was made responsible for administering the lie detector test and deciding whether or not to fail an applicant.

“What’s been happening in Tucson sector, is that the individual who’s been doing the polygraph test, he’s acting like the judge, the jury and the executioner,” he said.

The issue has come up before. Republican Rep. Martha McSally chairs the House’s Border and Maritime Security Subcommittee and grilled CBP last April.

“We have heard several anecdotal horror stories of decorated combat veterans who, for some reason, were unable to pass this polygraph coupled with some bizarre-sounding behavior on behalf of some of the polygraph examiners,” McSally said.

A CBP official said their program follows federal standards and said polygraph examiners are monitored on a daily basis and their audio recordings are checked.

Del Cueto read from one complaint, a woman who recently failed her CBP polygraph exam and sent him an email about it.

“He told me that my readings were similar to that of a Russian spy. Or someone that had been very carefully trained. I asked him what was the cause of failure. And he stated I failed for drugs and for falsifying my application. He also told me that he knew I was lying as they already had information about me in the criminal database. He stated that this was known since I arrived at the office. I told him that was not accurate and he said it doesn’t matter,” he read from the email.

The writer of the email also said the examiner shared past lie detector stories with her.

“He then said he knew I manipulated the machine and there were so many ways I could have done it, like curl my toes, count backwards, etc., etc.,” Del Cueto said.

CBP declined an interview about the allegations made against its polygraph examiner in Tucson. A spokesman emailed a list of bullet points on the agency’s polygraph policies, but did not answer questions about those policies.

According to the union, 80 percent of those who fail polygraph exams in Tucson go to work for other law enforcement agencies who administer their own polygraph exams.

Art Del Cueto also spoke about CBP polygraph policy on Episode 84 of the NBPC’s Green Line podcast (beginning at about 12:40), which was released on 30 June 2016.

AntiPolygraph.org has also received numerous reports of abusive behavior by CBP polygraph operators, including both false accusations of deception and false accusations of polygraph countermeasure use. See, for example the many comments on our March 2010 post, Customs and Border Protection Polygraph Failure Rate Pegged at 60% (the failure rate has increased since then) and the message board discussion threads, CBP POLYGRAPH EXPERIENCE – FAILURE, Part of the 60% failed Border Patrol applicants, and CBP-BPA polygraph failed.

See also the 2015 statement of “Al,” who applied for CBP employment and was falsely accused of deception about having committed a serious crime.

We invite other CBP applicants wrongly accused of deception and/or countermeasure use to contact us.

Man Who Alleges Rogue Polygraph Operator Robert Bartik Coerced False Murder Confession Wins Court Motion

robert-bartik

Chicago P.D. Polygraph Operator Robert Bartik

Chicago Tribune reporter Duaa Eldeib reports on the case of convicted murderer Anteleto Jones, who alleges that Chicago Police Department polygraph operator Robert Bartik, who has a documented history of misconduct, physically and mentally coerced him into falsely confessing during an unrecorded interrogation. Excerpt:

A convicted murderer from Chicago who claims he was coerced into confessing by a polygraph examiner wins a round in court in his quest to get a new trial.

An Illinois court has granted a Chicago man a path forward to pursue claims that he was physically and mentally coerced by a Chicago police polygraph examiner into falsely confessing to murder.

The confession led to Anteleto Jones’ conviction and 44-year prison sentence for a gang-related shooting in West Englewood in 2000, when Jones was 19.

An eyewitness who moved out of state after the killing has emerged to say that he did not see Jones at the scene on the night of the slaying, according to a recent Illinois appellate court opinion that allows Jones to continue his effort to have his conviction reversed or get a new trial.

The eyewitness is now the third person to claim that Jones was not involved in the killing, the justices wrote in the 64-page split decision handed down June 30. Immediately after his trial, two other men came forward to say Jones was with them elsewhere at the time of the murder of Jerry “Old Baby” Green, court records show. In addition, one of Jones’ co-defendants previously filed a sworn statement saying he was “solely responsible” for the slaying of Green, who was shot multiple times outside of his friend’s house, records show.

“The only evidence connecting defendant to this murder was his own confession, which he has consistently claimed was coerced and which is not corroborated by some of the physical evidence,” according to the June 30 opinion.

Jones claimed in court records that after denying involvement in Green’s slaying, he was asked if he wanted to take a polygraph exam — sometimes called a lie-detector test — and he agreed. Instead, Jones said, Chicago police polygraph examiner Robert Bartik “punched and shoved” him to get him to confess, before any polygraph exam was ever administered. Jones later repeated the confession in a video recording.
The appellate decision cited a letter Jones wrote to his parents in which he claimed that Bartik threatened him with “the death penalty” because Bartik allegedly said that he knew “for a fact” that Jones would fail the test. Jones wrote that “it was set up for (him) to fail,” records show.

The court’s decision referred to the Tribune’s 2013 investigation into the role of Chicago police’s polygraph unit in obtaining confessions that later were found to be false. The Tribune found that the city has paid millions of dollars in damages in polygraph-related cases. Several cases that involved the polygraph unit have unraveled.

One of the cases examined by the Tribune was that of Donny McGee, who also was taken to Bartik for a polygraph as part of a high-profile murder investigation. Bartik testified that McGee began confessing before he could say a word. But the jury found McGee not guilty, and DNA evidence later excluded him.

McGee alleged that Bartik fabricated the confession and filed a lawsuit against Bartik, two detectives and the city. A jury initially awarded McGee $1.3 million, but the case was appealed and sent back for a new trial after it was determined that a juror had improperly done internet research and brought it into the jury room. The city settled for $870,000 in 2014 without admitting wrongdoing.

Read the rest of the story here. The 30 June 2016 Illinois Court of Appeals ruling in Illinois v. Jones is available here. See also the message board thread, Polygraph Abuse by the Chicago Police Department.

Confessed Murderer Vladica Rajkovic Passed Polygraph “Test” and Killed Again

Vladica Rajkovic

Vladica Rajkovic

Serbian news site b92 reports on the case of a man who passed a police polygraph test regarding the disappearance of a woman he has since confessed to having murdered. After passing the polygraph, Rajkovic allededly went on to rape and murder a three-year old girl.

Excerpt:

Murderer “passed lie detector test before killing again”

A man detained on July 10 on suspicion that he raped and murdered a 3-year-old child the day before, on June 24 passed a lie detector test “with no problem.”

Source: Vecernje novosti Tuesday, July 12, 2016 | 11:20

Belgrade daily Vecernje Novosti is reporting this on Tuesday.

The suspect, Vladica Rajkovic, took the polygraph test as part of a police investigation into the June 18 disappearance of Dragana Stefanovic. He has in the meantime confessed to murdering the woman, and told the police the details of his crime.

Visit b92 for the rest of the story.

Ignoring Science After Cuban Spy Ana Belen Montes Beat the Polygraph, DoD IG Recommended More Polygraphs

dod-ig-seal-officialOn Friday, 21 September 2001, the Defense Intelligence Agency’s senior analyst for Cuban affairs, 16-year veteran Ana Belen Montes, was arrested and charged with conspiracy to commit espionage for Cuba. News that Montes had beaten the polygraph while spying for Cuba was first reported here on AntiPolygraph.org by one of our forum members. That Montes beat the polygraph is confirmed by retired DIA counterintelligence investigator Scott W. Carmichael, who writes “She had successfully completed DIA’s counterintelligence scope polygraph examination in March 1994, seemingly with flying colors.”1

More recently, it has been revealed that Montes and a friend, Marta Rita Velázquez, received training in polygraph countermeasures in Cuba before Montes started working for the DIA in 1985. Montes is currently serving a 25-year prison sentence.

The Department of Defense’s Office of the Inspector General conducted a review of the Montes case and on 16 June 2005 produced a top secret report titled, “Review of the Actions Taken to Deter, Detect and Investigate the Espionage Activities of Ana Belen Montes.” An unclassified version of the report (15 MB PDF) with major redactions has been publicly released.

The DoD IG reviewed over 250,000 pages of documentation2 but evidently failed to review the National Academy of Science’s (NAS) 2003 landmark report, The Polygraph and Lie Detection, which concluded, among other things, that “[polygraph testing’s] accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.” The NAS report is nowhere mentioned in the Montes review.

Ana Belen Montes

Ana Belen Montes

The 180-page report devotes just a single page3 — half of which is redacted — to Montes’ having beaten the polygraph.

The Montes review makes several recommendations with respect to polygraph policy. In short, it calls for more research into polygraph countermeasures, retention of polygraph charts for 35 years, and requiring polygraph screening for everyone at DIA.

Faced with a Cuban spy who beat the polygraph, DoD consulted not the scientific literature on polygraphy, but rather turned to those with the most to hide — the federal polygraph community — and decided that more polygraphs is the answer.

Retired DIA counterintelligence officer Scott W. Carmichael notes that Montes was hardly the first Cuban spy to beat the polygraph:

Indications of a spy’s presence [within the DIA] were manifest. There was the CIA’s persistent difficulty in running Cuban agents. It seemed that every operation was doubled back against the CIA by an incredibly effective Cuban Intelligence Service as agent after agent defeated CIA polygraph examinations.4

Cuban Interior Ministry Officer Nicolas Sirgado (1935-2013)

Cuban Interior Ministry Officer Nicolas Sirgado (1935-2013)

One of the Cuban spies who beat the polygraph was the late Nicolas Sirgado, who beat a polygraph test administered by now retired CIA polygrapher Alan B. Trabue.

While the DoD IG called for more countermeasure training for polygraph examiners, DIA polygraph records leaked to AntiPolygraph.org indicate that DIA polygraphers remain unable to detect sophisticated polygraph countermeasures.

The DoD IG’s decision to ignore the science on polygraphs was presaged by a 2002 memorandum on polygraph policy by then Assistant Secretary of Defense John P. Stenbit, who completely disregarded the National Academy of Sciences’ key finding that reliance on polygraph screening is unjustified, and even dangerous to national security.

By systematically ignoring the science on polygraphs and instead increasing its reliance on the pseudoscience of polygraphy, DoD has shortchanged national security.

Below are the DoD IG’s specific recommendations regarding polygraph policy:

3 b (U//FOUO) We recommend that the Director, Counterintelligence Field Activity5:

(i) (U//FOUO) Research polygraph countermeasures and then collaborate with polygraph manufactures to develop, produce, and distribute new countermeasures detection devices for use by polygraph community consumers.

(ii) (U//FOUO) Develop comprehensive polygraph  standards for the DoD polygraph community to increase the effectiveness of polygraph countermeasures [sic].

(iii) (U//FOUO) Establish a comprehensive polygraph countermeasures course at the DoD Polygraph Institute that requires all DoD polygraph examiners to attend the course within 1 year of graduation from initial polygraph training and thereafter requires them to attend refresher training at least biennially.

(iv) (U//FOUO) Direct all DoD polygraph programs to report to the DoD Polygraph Institute all polygraph examinations in which countermeasures are confirmed.

4 (U//FOUO) We recommend that the Deputy Under Secretary of Defense for Counterintelligence and Security continue working with Congress to change DoD polygraph provisions in 10 U.S.C. section 1564a, and, once the law is changed, to advise us of the update to DoD Directive 5210.48 and DoD Regulation 5210.48-R.6

5 (U//FOUO) We recommend that the Director, Defense Intelligence Agency use pre-employment Counterintelligence Scope Polygraph examinations for every Defense Intelligence Agency position that requires access to Top Secret material.7

6 (U//FOUO) We recommend that the Under Secretary of Defense for Intelligence direct all DoD entities with polygraph programs to digitize and retain for a minimum of 35 years all Counterintelligence Scope Polygraph examination charts.8

7 (C) We recommend that the Director, Defense Intelligence Agency institute a coordinated employee vetting program that uses personnel specialists, security officials, polygraph examiners, and psychologists to determine the suitability of prospective employees.9

 

  1. Carmichael, Scott W. True Believer: Inside the Investigation and Capture of Ana Montes, Cuba’s Master Spy. Naval Institute Press, 2007 at p. 41. []
  2. See p. 2 of the report, p. 14 of the PDF file. []
  3. p. 30, p. 42 of the PDF []
  4. True Believer, p. 29. []
  5. p. 83 ff, p. 95 ff of PDF []
  6. p. 86, p. 98 of PDF. []
  7. p. 88, p. 100 of PDF []
  8. p. 91, p. 103 of PDF. []
  9. p. 93, p. 105 of PDF. []

Sen. Jeff Flake Raises Concern Over CBP Polygraph Practices

 

U.S. Senator Jeff Flake

U.S. Senator Jeff Flake

In a hearing of the U.S. Senate Committee on the Judiciary held Thursday, 30 June 2016, Senator Jeff Flake (R-AZ) expressed concern to Department of Homeland Security Secretary Jeh Johnson about the level of false positives in the U.S. Customs and Border Protection pre-employment polygraph program, and that such false positives amount to a “scarlet letter” for employment elsewhere in government. Sec. Johnson replied that he has asked his people to “take a hard look at” the concerns raised by Sen. Flake.

Secretary of Homeland Security Jeh Johnson

Secretary of Homeland Security Jeh Johnson

A transcript of the relevant portions of the hearing follows (emphasis added):

44:05-47:35

Sen. Flake: Let me talk for a minute about CBP hiring. As you know, Congress approved a staffing level, of — that’s well in excess of what  we have on the ground there now. We’re short about 950 officers. We were told — I had a meeting where we were trying to get to the bottom of why it’s taking so long to hire some of these folks, and we’re told that for every 100 applications — every 100 applicants that apply, only one is hired. And a lot of people identify the polygraph that is taken for a lot of the false positives and concern that one false positive is a scarlet letter for any employment opportunity that might come up elsewhere in government. I know that there’s an issue there. Do you want to comment?

Sec. Johnson: Well, I have asked our folks to take a hard look at exactly what you just said. Is it — does it really need to be the case that one false positive disqualifies you from federal service — federal law enforcement service? I’m aware of the statistics you cite. One in 100, and the length of time it takes to hire somebody for the Border Patrol, for CBP. Senator, as I’m sure you know, we have surged our efforts through hiring hubs, through aggressive recruitment, aggressive recruitment among our military personnel, at military bases.

Sen. Flake: We did pass the Border Jobs for Veterans Act.

Sec. Johnson: Correct.

Sen. Flake: And were told that that’s moving the needle a bit.

Sec. Johnson: Correct. And I think we’re closing the gap. Slowly, I think we’re turing the corner and closing the gap so that we can hire up to what has been appropriated and authorized. You are correct that we are currently I think 950 short, but I ask CBP every time I see the senior leadership, “How are we doing on the hiring? Are we making a difference? Are we doing as much as we can?” And we seem to be closing the gap. But I do think that we ought to take a hard look at whether we’re shooting ourselves in the foot by, by you know, this very lengthy, cumbersome process that it takes to recruit and hire people and get them through all the vetting.

Sen. Flake: When you combine this with the high attrition rate there, we would have to accept, I think 100,000 applications. We’re not going to get even close to that. Just to get to the number, assuming one out of a hundred. So I would encourage you to look at some options here and figure how we can change the process because it’s not working and we’re severely understaffed at some of the ports of entry. A lot of people just see the border as, you know, something that maybe we ought to just put a wall or something to stop illegal entry. Certainly we have to have a secure border, but in Arizona, it’s also a hub of commerce, and that commerce can’t take place if we have too few agents there in these ports of entry. As you know, we’ve made a lot of investments in infrastructure there, but if we don’t have them staffed, it doesn’t do us much good.

The best way to address concerns about the polygraph program’s deleterious effects on CBP’s ability to fill vacancies is to scrap the polygraph program. Polygraphy has no scientific basis, and the National Academy of Sciences advised that “its accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.”

While polygraphy is inherently biased against truth-tellers (retired CIA polygrapher John Sullivan has concluded that at the CIA, “…an honest subject has no better chance than a dishonest subject of getting through the process”), it is easily sidestepped by liars through the use of simple countermeasures (see Chapter 4) that polygraph operators cannot detect.

It should be noted that in 2014, CBP polygraph chief John R. Schwartz falsely claimed that sophisticated polygraph countermeasures can be routinely identified. The falsity of Schwartz’s claim is borne out by a set of CBP polygraph case files leaked to AntiPolygraph.org.

By relying on the unreliable pseudoscience of polygraphy, CBP is subjecting the many truthful applicants who wrongly fail the polygraph to unfair blacklisting while undermining national security and public safety. No reform can make up for polygraphy’s lack of scientific underpinnings. Polygraph screening should be abolished.

Convicted Sex Offender Who Purchased Doug Williams’ How to Sting the Polygraph Passed Four Polygraph Examinations

Ray Dwight Sluss

Ray Dwight Sluss

On 21 February 2013, federal agents raided former police polygraphist Doug Williams‘ home and office, seizing his customer records as part of an investigation targeting polygraph countermeasure instructors. The U.S. government used these records to create a interagency watch list of individuals who had purchased Williams’ manual, How to Sting the Polygraph, an accompanying DVD, or had received in-person training on how to pass a polygraph “test.”

Court records obtained by AntiPolygraph.org reveal that one of the individuals on the list, Ray Dwight Sluss of Johnson City, Tennessee, a convicted sex offender on probation, passed four post-conviction polygraph examinations. In a memorandum (PDF) dated 22 November 2013, United States Attorney William C. Killian writes:

In 2013, federal agents received information that Sluss had purchased polygraph counter-measures techniques and training from an individual in Oklahoma City, Oklahoma who marketed these products to convicted felons like Sluss who were subject to polygraph examinations. FBI in Oklahoma referred the defendant to FBI in Johnson City, where an agent confirmed that Sluss had been convicted of child pornography crimes, was on state court probation, and had completed periodic polygraph examinations. As a convicted sex offender, Sluss was also subject to limitations on his residence, employment, and activities. FBI verified that Sluss had successfully passed four polygraph examinations since his release from prison.

There is no indication that any polygraph operator ever detected Sluss using polygraph countermeasures. Sluss had completed his polygraph requirement and on 10 September 2010 was placed on “unsupervised” probation.

According to another court filing, on 28 August 2013, FBI Special Agent Peter O’Hare, Jr. “visited Mr. Sluss at his home to question him about a report that Mr. Sluss had purchased materials relating to polygraph examination countermeasures. Mr. Sluss denied making such a purchase.”

O’Hare returned to Sluss’s residence two days later accompanied by the latter’s probation officer, and a search of the home led to the discovery of computer media with child pornography, for possession of which Sluss was sentenced to 17.5 years in federal prison.

The Sluss case highlights the vulnerability of polygraphy to simple countermeasures (see Chapter 4) that polygraph operators cannot detect and the foolishness of official reliance on this pseudoscientific procedure for public safety purposes.

Federal Judge Throws Out FBI Post-Polygraph Confession Over Concerns About Voluntariness

United_States_Courthouse_Albuquerque_New_Mexico

United States Courthouse, Albuquerque, New Mexico

On 9 June 2016, Chief United States District Judge for the District of New Mexico M. Christina Armijo signed an 8-page order suppressing inculpatory statements made to an FBI polygraph examiner by the suspect in a child molestation investigation. The post-polygraph statements made by Jamaico Tennison to FBI Special Agent and polygraph examiner Jennifer Sullivan constituted the key evidence against Tennison, who was criminally charged.

Armijo, a George W. Bush appointee, had serious concerns about the voluntariness of Tennison’s statements, noting “Sullivan’s interrogation of Defendant on June 11, 2014 was tainted by the denial of Defendant’s request for appointed counsel.” Armijo also expressed serious concerns about the polygraph “test” (at pp. 6-7):

The polygraph exam

The Court and the parties spent a considerable amount of time and effort addressing the validity of the results of the polygraph examination conducted by SA Sullivan on June 11, 2014. SA Sullivan conducted a polygraph examination that was valid under the FBI’s in-house protocols. Although SA Sullivan is an experienced polygrapher, she demonstrated little understanding of, or interest in, the underlying theory. The FBI employs a three-point scoring system, knowing that it enhances sensitivity at the expense of specificity. SA Sullivan uses this standard FBI format because it is what she is authorized to use. She believes that her polygraphs are 100% accurate. In fact, prom the testimony adduced at trial, due to the high sensitivity and low specificity of the FBI format, an innocent person has about a one-in-three chance of being classified as non-deceptive. The likelihood that innocent subjects will be subjected to post-test interrogation is heightened by SA Sullivan’s practice of interrogating any subject whose scores are inconclusive, not merely those subjects whose charts are scored as deceptive. Moreover, the Court does not find the single study of the two comparison-two relevant questions format cited by the United States…as conclusive of the validity of the two comparison-two relevant questions format. Based upon the testimony adduced at hearing, the Court is left with the impression that as used by SA Sullivan in Defendant’s case, the polygraph examination was employed to ratchet up the emotional pressure in anticipation of the inevitable interrogation of Defendant.

The equipment used by Agent Sullivan was capable of making an audio recording. Pursuant to FBI policy, Agent Sullivan did not record the pre-test or the polygraph examination proper, and for reasons of her own, did not record the post-test interrogation. Under the circumstances of this case, the absence of a recording of the interrogation, which would have permitted the Court to hear the actual words and the tones of voice of the participants, constitutes a failure of proof as to whether SA Sullivan conducted her interrogation within Fifth Amendment bounds. See United States v. Bundy, 966 F. Supp. 2d 1180, 1186 (D.N.M. 2013).

The Court further concludes that the taint of the initial confession was not sufficiently dissipated before the final interrogation, which began a few minutes after the unrecorded post-test interrogation. Accordingly, the statements made by Defendant during the final recorded interrogation were the fruit of the involuntary unrecorded confession. See Lopez, 437 F.3d at 1066.

FBI Polygraph Operator Jennifer Sullivan

FBI Polygraph Operator Jennifer Sullivan (Waterloo, Iowa Courier photo)

Selected filings from U.S. v. Tennison (Case 1:15-cr-00212-MCA in the District Court for the District of New Mexico), including hearing transcripts, are available on AntiPolygraph.org’s Polygraph Litigation page. This case will be of particular interest to defendants in criminal cases seeking to suppress uncounseled statements made to polygraph operators.

Minnesota Appeals Court Rules Polygraph Results Inadmissible in Probation-Revocation Proceedings

In a 10-page published decision (PDF) filed on 23 May 2016, the Minnesota Court of Appeals ruled that “[b]ecause polygraph testing has not been proven reliable, polygraph test results are not admissible as substantive evidence of a probation violation in probation-revocation proceedings.” The case is State of Minnesota, Respondent, vs. Chad Michael Nowacki, Appellant.