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.
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.