On Thursday, 22 February 2007, Fox News commentator Bill O’Reilly spoke with retired FBI polygraph operator Jack Trimarco, whom he had hired to administer a polygraph examination to Frederic von Anhalt (who ultimately backed out) regarding the latter’s claim to have fathered the infant daughter of the late Anna Nicole Smith. At the time of writing the video is still available on-line.
During the show, Trimarco made some serious misrepresentations regarding the polygraph. Asked about polygraph accuracy, Trimarco told O’Reilly that the polygraph is “very accurate” and that “…the science tells me that 93 percent probability that I have come to the right conclusion.” In 1995, Trimarco, then still in the FBI’s employ, told AntiPolygraph.org co-founder George Maschke that the polygraph was 98% accurate. What has changed since then?
The fact of the matter is that polygraphy has not been proven through peer-reviewed research to reliably detect deception at better-than-chance levels of accuracy under field conditions, and the consensus scientific viewpoint is that lie detector testing has no scientific basis at all.
In addition, Trimarco stated without qualification that “in federal court the polygraph is admissible in evidence.” This is misleading. While under the Daubert standard, federal judges may choose to admit polygraph results into evidence, in practice they rarely do so. And the Justice Department also looks on polygraph results with a jaundiced eye:
9-13.300 Polygraphs — Department Policy
The Department opposes all attempts by defense counsel to admit polygraph evidence or to have an examiner appointed by the court to conduct a polygraph test. Government attorneys should refrain from seeking the admission of favorable examinations that may have been conducted during the investigatory stage for the following reasons.
Though certain physiological reactions such as a fast heart beat, muscle contraction, and sweaty palms are believed to be associated with deception attempts, they do not, by themselves, indicate deceit. Anger, fear, anxiety, surprise, shame, embarrassment, and resentment can also produce these same physiological reactions. S. Rep. No. 284, 100th Cong., 2d Sess. 3-5 (1988). Moreover, an individual is less likely to produce these physiological reactions if he is assured that the results of the examination will not be disclosed without his approval. Given the present theoretical and practical deficiencies of polygraphs, the government takes the position that polygraph results should not be introduced into evidence at trial….
The transcript of Trimarco’s appearance on The O’Reilly Factor follows:
Baby’s Daddy? Prince Won’t Take Polygraph
Friday, February 23, 2007This is a partial transcript from “The O’Reilly Factor,” February 22, 2007, that has been edited for clarity.
BILL O’REILLY, HOST: “Back of the Book” segment tonight, one of the most bizarre aspects of the Anna Nicole Smith case is a claim by 63-year-old Frederick Von Anhalt that he is the father of her baby.
Here’s what happened on “The Factor” last week.
(BEGIN VIDEO CLIP)
O’REILLY: Are you willing to take a lie detector test?
FREDERICK VON ANHALT, ZSA ZSA GABOR’S HUSBAND: Well, I would do that. A lie detector test.
O’REILLY: You would take a lie — because we could probably set that up for you.
VON ANHALT: OK. That would be great. I would do that.
(END VIDEO CLIP)
O’REILLY: All right. Now Mr. Anhalt did show up to take the lie detector test yesterday. But when he saw it was a serious situation he ran right over to Larry King.
(BEGIN VIDEO CLIP)
VON ANHALT: I even was scheduled today to take a lie detector. I would like to do it. But I was so — in such bad shape today I didn’t do it. I will do it tomorrow or the day after.
(END VIDEO CLIP)
O’REILLY: No, not on our dime he won’t. We believe the prince is a fraud.
With us now, Jack Trimarco, retired FBI polygraph guy, who was going to administer the test yesterday.
Have you ever seen anything that bizarre? The guy shows up, takes one look at you, all right, and your operation, and bolts.
JACK TRIMARCO, POLYGRAPH EXAMINER: Well, I’ve seen a lot of bizarre things in my career, Bill. This was more on the weird side.
He showed up. First of all, he was scheduled at 9 o’clock in the morning. He, in the eleventh hour, changed that to noon. So we’ve got cameras set up. We’ve got the polygraph set up. We’ve got the rules staked out, and he lets us know he can’t make it till noon.
So at noon he does show up, and we go back and we show him the polygraph suite. I’m explaining some of my background and the fact that he’s in good hands.
O’REILLY: Right.
TRIMARCO: Tell the truth and you’ll pass the test. It’s very, very simple. And he said, “I’ll give you ten minutes.”
And I said, “Well, you know, it’s not really like that.”
O’REILLY: Right.
TRIMARCO: That’s television polygraph. This is a real polygraph that’s going to be on television. But right now we’re just going to talk about validity and my background and let you know you’re in good hands.
And he said, “Ten minutes.”
I said, “Two to three hours. That’s what a real polygraph will take under these circumstances.”
O’REILLY: And whip, he’s out.
TRIMARCO: Well, he said he would be back.
O’REILLY: And he didn’t show.
TRIMARCO: He said he’d be back at 2 o’clock. And that after that time was not a factor.
O’REILLY: Right.
TRIMARCO: His attorney stayed. They asked me questions for 35, 40 minutes. They apparently were satisfied with my credentials.
O’REILLY: Of course, and they tried to talk him into coming back.
TRIMARCO: And they did. They tried. They begged him.
O’REILLY: He won’t come back. Look, this guy’s a fraud. We know he’s a fraud. But let’s — what I want to talk about is — he’s done. His credibility is — is finished.
The technology involved in what you do, the lie detector technology, a lot of people don’t believe in it. No. 1, they believe that you can beat it if you take certain drugs or act a certain way.
And No. 2, it’s not admissible in a court of law. Right?
TRIMARCO: Right.
O’REILLY: So where are we on the lie detector deal? Is it accurate?
TRIMARCO: Well, it’s very accurate, Bill. First and foremost, just like in any science, the accuracy of the polygraph depends on the polygraph examiner.
Now, let’s talk about should it be admissible as evidence. In my opinion, no, it should not be. Because in a state like California, you don’t have to be certified, and you don’t have to…
O’REILLY: Anybody — but you do this for the FBI, right?
TRIMARCO: Right, right.
O’REILLY: So the FBI believed it when you did it.
TRIMARCO: Oh, absolutely.
O’REILLY: So they didn’t have any doubt about it.
TRIMARCO: No.
O’REILLY: They just couldn’t use it in their prosecutions.
TRIMARCO: Well, they don’t, by policy, use it in prosecutions. The thing we do use, which is the third part of a polygraph, is the post test or the confession. An interrogation ensues. If you fail an FBI polygraph test, you slide into an interrogation.
O’REILLY: Then they can legitimately…
TRIMARCO: And that always goes to court.
O’REILLY: Right. Then they can legitimately interrogate you. They can get a warrant to do that.
TRIMARCO: Sure. And the other thing, Bill, is that in federal court the polygraph is admissible in evidence.
O’REILLY: In federal court.
TRIMARCO: In federal court.
O’REILLY: But not in state court?
TRIMARCO: But in most state courts. New Mexico is an exception, and there are a few.
O’REILLY: When you administer a polygraph — say this nut, Anhalt, showed up to you — and I say nut in an affectionate way — would you be confident 100 percent that you could find out whether he was lying or not?
TRIMARCO: I would be very confident that I would come to the right conclusion, knowing that the science tells me that 93 percent probability that I have come to the right conclusion.
O’REILLY: Ninety-three percent?
TRIMARCO: Ninety-three percent.
O’REILLY: Is it just yes, no questions?
TRIMARCO: It is yes, no questions. In other words…
O’REILLY: That’s all. Can you beat it if you take a drug?
TRIMARCO: Drugs muddy the waters.
O’REILLY: Do you — do you know when somebody’s under the influence when they come in? Can you tell?
TRIMARCO: Well, most times you can tell.
However, if they’re coming in and they have a history of drug abuse or they have a history of trying to muddy those waters, then we can always take a urine specimen.
O’REILLY: Before they do it.
TRIMARCO: And either send it out…
O’REILLY: Right.
TRIMARCO: … or tell them we’re going to send it out. Oftentimes that takes care of it right there.
O’REILLY: Well, I think we took care of the so-called prince.
Mr. Trimarco, thanks for coming in. We appreciate it very much.
TRIMARCO: I’m honored.