More on Upcoming Trial-by-Polygraph in Ohio

The Youngstown, Ohio Vindicator on Sunday, 17 June 2007, published a series of four articles concerning the upcoming polygraph examination of former youth pastor Darryl Adams, who stands accused of raping a minor. (See previous Vindicator report here.) In a devil’s bargain that revives in modern disguise the medieval trial by ordeal, Mahoning County assistant prosecutor Dawn Krueger has agreed to drop charges if Adams passes the polygraph, and Adams has agreed to plead guilty to a single rape count if he fails.

The Vindicator introduces the topic with an article titled, “[C]ould You Pass a Polygraph Test When Your Freedom Depends on It?”:

ould [sic] you pass a polygraph test when your freedom depends on it?
Sunday, June 17, 2007

OULD YOU PASS A POLYGRAPH TEST when your freedom depends on it?

There are stories about how people convicted of espionage have passed them for years.

One local attorney thinks a schizophrenic defendant could take a polygraph in another state of mind — and pass it because he wouldn’t be thinking about the lie that he’s telling.

Psychotic people, who one attorney said are the worst criminals, can pass it because they believe themselves.

On Thursday, can Darryl Adams of Boardman pass a polygraph test?

He thinks enough of his innocence that he’s throwing his freedom to the much maligned lie-detector test.

Adams is accused of rape.

He was arrested at his Boardman home in 2005 for incidents that purportedly happened at his residence between 2002 and 2004.

The victim was allegedly a Youngstown boy — someone Adams knew through his role as a church youth pastor.

The victim, now 19, is not thrilled that a lie-detector test will decide Adams’ guilt or innocence.

“If a person believes his lie, then how is the polygraph going to tell?” he said.

He was eager to testify at trial, but is now resigned to the test this week. And he’s just eager to move on with his life.

Dennis DiMartino is eager as well for the test.

He is Adams’ court-appointed lawyer who said the unique step of putting Adams’ freedom in the hands of the test avoids putting Adams through a trial. Adams, he said, suffers from depression.

It will also prove what he says he knows.

“I’m convinced he’s absolutely innocent of these charges,” DiMartino said.

On Pages A3 and A4 of today’s paper, reporter Pete Milliken explores this unique Thursday event.

In “Accuser Says He’s Skeptical About Test,” Vindicator staff writer Peter H. Milliken reports:

Accuser says he’s skeptical about test
Sunday, June 17, 2007

He says he wants the case to conclude.

By PETER H. MILLIKEN

VINDICATOR STAFF WRITER

YOUNGSTOWN — The young man who alleges Darryl Adams sexually abused him says he isn’t confident that justice will be served by the lie-detector test Adams will take Thursday.

“It’s easy to pass one of those,” the 19-year-old accuser said in an interview. “Those polygraph things aren’t accurate because, if a person believes his lie, then how is the polygraph going to tell? If that person is really in self-denial about that lie, how is that polygraph going to pick it up?” the young man said.

Adams, 44, former youth pastor at the church the boy attended, is charged with three counts of rape in alleged encounters with the young man between 2002 and 2004. Each count carries a penalty of three to 10 years in prison.

“I wouldn’t know how to feel” if Adams passes the polygraph and the charges against him are dropped under terms of the agreement between the prosecution and defense, the teen said. “I just want it to be over,” he said of the case.

The 19-year-old said he learned about the polygraph arrangement for Adams by reading a Vindicator article and that he believes Dawn Krueger, the assistant county prosecutor assigned to the Adams case, should have consulted him about the polygraph agreement. But she didn’t, he said.

“I’ve consulted with him about a lot of things. We talked about a lot of options,” Krueger said, adding she believes she discussed with the accuser the possibility of Adams’ taking a polygraph.

“There was talk about [Adams] doing a polygraph for a long time, so we’ve just been in negotiations and trying to get everyone on the same schedule,” Krueger said.

Long ordeal

The teenager said the case has been a long ordeal for him, and he has been frustrated by the delays in the investigation and court proceedings in the case.

“It should have been over. This happened three years ago,” he said.

The young man said he would willingly testify at a trial.

A journal entry in the case by Judge James C. Evans, of common pleas court, after an Oct. 16, 2006, pretrial hearing said the parties will enter into a polygraph agreement and that the judge granted a joint motion to postpone the trial for 60 days.

Court records show five other postponements in the case for various reasons.

The accuser said he wants to devote attention to his newborn daughter and is considering entering a trade school to begin his studies for a career in construction and demolition.

When asked how the Adams case has affected his life, the 19-year-old said, “I really don’t want to talk about that because it’s just crazy.”

The un-named accuser is right to be skeptical about the polygraph. Polygraph “testing” has no scientific basis, and while it’s inherently biased against the innocent, the guilty need not “be in denial” or be self-deluded in order to fool the polygraph: one can pass through the use of simple countermeasures that polygraph operators have no demonstrated ability to detect.

In a second article titled, “Who’s Telling the Truth? Officials Debate Use, Value of Polygraphs” Milliken writes:

Who’s telling the truth? Officials debate use, value of polygraphs
Sunday, June 17, 2007

Too many fudge factors make it a tool you can’t completely bank on, some say.

By PETER H. MILLIKEN

VINDICATOR STAFF WRITER

YOUNGSTOWN — Polygraph examinations have been used for lie detection for more than 80 years.

Despite this history, the polygraph will likely never enjoy the legal assuredness of the fingerprint or the DNA test.

Yet it continues to play a large role in our legal process.

That role evokes plenty of opinions from people in all walks of our legal system.

“I think polygraph has earned its credentials at this stage because it’s been critiqued and re-critiqued, ad nauseam, which is good,” said Williams D. Evans II, an Akron-based lawyer and polygraph examiner, who often visits the Youngstown area to conduct exams.

Similar to experts on fingerprints, DNA or ballistics, a polygraph examiner is subject to cross-examination concerning methods and credentials. Because of this, Evans believes a judge should be able to determine a polygraph’s admissibility in a particular case regardless of prosecution and defense opinions.

Skeptics

One disbeliever is Timothy Franken, chief trial lawyer in the Mahoning County prosecutor’s office.

“This is not that good of science, so the courts don’t like it,” Franken said. “I believe it’s a crutch, and I don’t believe it’s that accurate.”

Polygraphs attempt to insert the judgment of a machine and the examiner’s interpretation in place of judgment that should be made by lawyers and jurors, he said.

Franken’s colleague, Robert Bush, chief of the criminal division of the county prosecutor’s office, said polygraphs, because of their subjectivity, will never reach the level of certainty of fingerprints or DNA, but they have a useful investigative role.

“I would be reluctant to use just the results of a polygraph, one way or the other, to move me on a particular case. But it can be used to clear up some areas and to give you some direction,” Bush said.

“It’s not the end-all, be-all. It should never be used as a primary investigative tool or a front-line investigative tool,” Evans said.

The American Civil Liberties Union opposes the use of the polygraph in criminal cases “because it can be manipulated,” said Lloyd Snyder, general counsel for the Cleveland-based ACLU of Ohio.

“It depends very much on the objectivity and competence of a polygraph operator,” he said.

“There have been over 200 cases [nationwide] in which people convicted of capital offenses have been shown to be innocent, mostly by DNA evidence, and, in many of those cases, the defendant confessed,” he said. “That’s one of the problems with polygraph. It can be used as part of the process to induce those confessions.”

With the exception of New Mexico courts, polygraph results are generally inadmissible as evidence in trials in state and federal courts, said Charles W. Daniels, an Albuquerque, N.M., lawyer and University of New Mexico law professor, who writes on this topic in national legal journals.

A supporter

Defense lawyer Dennis DiMartino, however, thinks the polygraph is a great tool, provided the person administering the test is fair.

DiMartino said a polygraph can be useful in evaluating and preparing for defense of a client.

He also said some prosecutors have agreed to drop charges in cases where his clients have passed a polygraph and where there is a lack of witnesses and evidence.

“We don’t work for anybody in particular. We work for the truth,” regardless of who is paying for the exam, Evans said of himself and the examiners he knows in the law enforcement field.

It’s not unusual for the prosecution and defense to agree to a court-admissible polygraph because, pass or fail, the outcome is desirable, Evans said.

If the suspect passes, charges are dropped and no trial is needed, he noted.

If the suspect fails, he’ll usually plead guilty or be convicted in a trial because the polygraph supports the prosecution’s case, he added.

Experts agree that the outcome of a polygraph can be affected by a host of factors: the way the questions are worded; the experience and training of the examiner; any bias the examiner has; the calibration of the equipment; and stress of the examinee.

Sheriff Randall Wellington, who gave polygraph exams in his private business for 15 years, said it’s difficult to fool an experienced examiner.

Wellington cited studies showing polygraphs have between 82 and 98 percent reliability.

Franken said, however, “That’s reasonable doubt, so what good are they?” If a jury finds reasonable doubt, it must acquit a defendant in a criminal case, he added.

“I think today, the accuracy of the polygraph test is probably well into the 90 percentile range,” said Atty. John J. Dixon of Youngstown, who devotes most of his practice to criminal defense.

Eyewitnesses, who some believe offer the best evidence in criminal cases, “might be right 65 to 70 percent of the time,” he said. “The unfortunate moniker of voodoo science with the polygraph test has hurt” the admissibility of the polygraph, he added.

The moniker “voodoo science” fits polygraphy quite well, and attorney John J. Dixon’s deluded belief that it has an accuracy rate “well into the 90 percentile range” is a hazard to any clients who might accept legal advice predicated on this false notion.

The Vindicator also ran an article based on an interview with polygraph operator William D. Evans II, the outcome of whose “test” of Darryl Adams on Thursday, 21 June will determine the latter’s fate:

Taking the test: What to expect
Sunday, June 17, 2007

Those showing deception often confess after the test, an examiner says.

AKRON — The Truth & Law Center is a free-standing, one-story office building featuring a blend of technology, law, psychology and physiology.

What happens inside, where the examinee is interviewed and attached to the polygraph equipment, could be a life-changing event.

Examinees put their fate in the hands of William D. Evans II, a lawyer and former Summit County Sheriff’s Department detective, who has been administering polygraph exams for 30 years.

“We like to try to relax the person coming in as much as we can,” Evans said. Soft rock music is piped into the waiting room, but not into the exam room, where distractions must be minimized.

To break the ice, several framed drawings of the Disney figure Pinocchio adorn an exam-room wall.

Lawyers, police and other authorized people may watch exams on a closed-circuit TV in a conference room near the exam room.

A pretest interview covers the biographical history and case facts relevant to the exam and ascertains physical or psychological issues that may require adjustments in the exam, Evans said.

The exam compares the body’s reactions to control questions, such as: “Is today Friday?” and questions relevant to the investigation. The polygraph is best suited to questions that take a “yes” or “no” answer, Evans said.

What’s measured

On Evans’ computer screen, the green line shows the examinee’s respiration patterns, including oxygen intake, breathing rate, duration and volume and heart beat as measured by tubes wrapped around the examinee’s upper and lower chest.

The red line shows upper and lower blood pressure as measured by a blood pressure cuff.

The yellow line records the opening and closing of sweat glands as measured by plates attached to the examinee’s fingers.

Evans said questions in a murder investigation polygraph might be:

Do you know for sure who murdered Jane Lyons?

Did you murder Jane Lyons?

Did you help murder Jane Lyons?

Can you take me to the Jane Lyons murder weapon?

In the post-test interview, the examiner asks the examinee why he or she reacted in a certain way. An examinee “may very well confess” to a crime when asked why he or she showed deception in response to a question relevant to the crime, Evans said.

A typical pre-employment exam for an applicant for a security-sensitive job takes 11/2 to two hours, including the pre- and post-test interviews, and Evans said he typically charges $200 to $350 for that. A criminal case exam could take two to four hours, depending on the case complexity, and the bill could run $650 to $1,200, Evans said.

Evans conducts exams in his office and on the road, visiting the Mahoning Valley frequently to test for local police and prosecutor’s offices.

The Vindicator did readers a disservice by failing to accurately report how truth versus deception is actually determined in a polygraph “test.” Conspicuously absent is any mention of the so-called “control” questions. For a quick overview of the trickery on which the “test” relies, see the AntiPolygraph.org home page, and for a fuller exposition, see Chapter 3 of The Lie Behind the Lie Detector.