Jamie Satterfield reports for the Knoxville, Tennessee News-Sentinel:
If a polygraph test can help land a person in jail, a Knoxville lawyer argues, why can it not be used to free the accused?
Knoxville attorney Gregory P. Isaacs wants to use the results of a polygraph examination to try to prove to a jury that his client, Robert Nathaniel Hicks, did not rape and sexually batter two children.
Hicks, the son of Anderson County Assistant District Attorney General Jan Hicks, and his wife, Paula Hicks, both of Caryville, are accused of molesting a young boy and a young girl on several occasions between June 1997 and November 2001.
The high-profile case has been moved to Knox County Criminal Court, and Knox County District Attorney General Randy Nichols has been tapped to lead the prosecution effort.
Isaacs has filed a motion asking Judge Richard Baumgartner to do something the state Supreme Court says cannot be done – allow the results of a polygraph examination to be presented at trial.
Although he had not yet seen the motion, Nichols dismissed it out of hand. The tests have long been barred as evidence in criminal trials because courts have concluded they are “unreliable.”
But Isaacs contends those same tests are used at nearly every other phase of the criminal justice system.
Police routinely use the examinations to either eliminate someone as a suspect or glean a confession. State child abuse investigators are encouraged by the Department of Children’s Services to use the tests to help substantiate abuse claims.
The state Board of Probation and Parole uses polygraph examinations to monitor sex offenders, who are required to pay for and submit to the testing every six months to stay free.
Probation and parole officers have used the results of those examinations to help build a case to violate the probation or parole of sex offenders.
“You can’t have it both ways,” Isaacs said. “The prosecution says it’s OK to use them if you’re lying, but you can’t use them to establish you’re telling the truth, which makes absolutely no sense. It would be tantamount to saying DNA testing can be used to put you in jail but not to get you out of jail.”
Robert Hicks and his wife are accused in a case that Isaacs’ motion insists is a lie crafted by opposing parties in a civil court dispute.
Citing notes from the DCS case manager who interviewed the children, Isaacs details how the girl initially denied any abuse and the boy’s initial tale was fraught with inconsistencies.
The stories grew more twisted over time, the motion states.
According to the motion, the children were interviewed in early December 2001. The girl’s denial of abuse at that interview changed when a caretaker picked her up and then phoned the case manager to say the girl had lied, the motion stated.
The girl was interviewed again later that day and recounted one alleged instance of abuse, the motion stated.
Three weeks later, the children’s caretakers again phoned DCS and contended the children lied, the motion alleged. In a subsequent interview, the children told tales of abuse that included the use of “elephant tranquilizers” and unknown pills, the motion stated.
Isaacs argued in the motion that there is no medical or forensic proof to substantiate abuse claims. He and attorney Herbert S. Moncier, who represents Paula Hicks, have not been allowed to interview either child, and a request for a psychological evaluation of the children has not been approved.
But there is evidence, Isaacs contends, to exonerate Robert Hicks – namely, a polygraph test.
Assistant Public Defender Ken Irvine, a veteran attorney, said Isaacs faces an uphill battle to convince Baumgartner to allow the polygraph results to be used at trial.
“The real problem is not that they won’t let it into court but that (authorities) have been unable to scientifically show how reliable it is,” Irvine said.
A polygraph, more commonly known as a lie detector test, records various physiological responses – breathing, pulse and galvanic skin response – while a person is answering questions.
The theory is that lying is stressful, and changes in these physiological responses show the changes in a person’s stress level during the examination.
The test relies in large part on the ability of the examiner to interpret the recorded responses and the questions posed. Questions must be crafted in a precise way, although there is no formula for how those queries should be constructed.
Polygraph examiners must be licensed in the state of Tennessee. To be licensed, an examiner must have graduated from an approved polygraph school and have either a bachelor’s degree or a mix of college work and investigative experience.
Debate over the reliability of polygraph testing has raged for years. Proponents argue the testing has a more than 90 percent accuracy rate. Opponents put that rate at 70 percent.
The state Supreme Court has repeatedly held the testing unreliable and barred its use at either trial or sentencing hearings. However, the court has not banned its use as an investigative tool for police or probation officers.
Parole board official Jack Elder said his agency requires polygraph testing of all sex offenders released on parole or probation. The testing is authorized under the state Department of Correction’s Sex Offender Treatment Board policies.
Elder and Field Services Director Gary Tullock said the testing is not used to ferret out reasons to send a sex offender back to jail.
“It serves as a deterrent, and it’s a way to target (the offender’s) treatment needs,” Elder said.
Case law shows that polygraph testing has been used, in part, as a basis for prosecutors to argue a sex offender should be returned to prison.
“I personally think that’s wrong,” Irvine said. “That’s the real problem, that they’re using the testing to revoke people from probation or parole. I don’t think that is being challenged as often as it should be.”
A trial date in the Hickses’ case has not been set.
Lawyer Gregory P. Isaacs is right that it’s a double-standard for government to rely on polygraphs to monitor convicted sex offenders and at the same time hold that polygraph results are inadmissible as evidence in court. But the proper solution is to abolish polygraph “testing” altogether, not to allow this pseudoscience into court rooms.