Kyriakos Kotsoglou on Polygraphs in the British Legal System

Kyriakos N. Kotsoglou (Twitter profile)

In episode 102 of the legal podcast Excited Utterance, Vanderbilt University law professor Edward K. Cheng (@edwardkcheng) interviews Northumbria University senior lecturer in law Kyriakos N. Kotsoglou (@Kyri_Kotsoglou) about the use of polygraphs in the United Kingdom, with an emphasis on Kotsoglou’s new article, “Zombie Forensics: the use of the polygraph and the integrity of the criminal justice system in England and Wales,” International Journal of Evidence and Proof, 2021 (1): 16-35.

Edward K. Cheng (Twitter profile)

Kotsoglou addresses the systemic problems associated with a justice system embracing such a pseudoscientific technique as polygraphy. His critique is of relevance for policymakers everywhere.

Ohio Judge Orders Victims in Sexual Assault Cases to Submit to Lie Detector Tests

Rachel Dissell of the Cleveland Plain Dealer reports that Cuyahoga County Juvenile Court Judge Alison Floyd has ordered the victims in four sexual assault cases to submit to polygraph “testing.” In addition, Floyd has ordered the perpetrators of the assaults, who have already been found guilty, to submit to polygraph tests for sentencing purposes. It would appear that Judge Floyd acted ultra vires in ordering the victims to submit to lie detector testing.

The Ohio legal system has a long and shameful history of relying on the pseudoscience of polygraphy, from the case of Floyd Fay, who in 1978 was wrongly convicted of murder based on polygraph “evidence,” to the more recent case of Sahil Sharma, where in 2007 Summit County Common Pleas Judge Judy Hunter was duped into admitting polygraph “evidence” over prosecutors’ objections.

Ohio Defendant Acquitted Based Partly on Polygraph Evidence

Basing her decision in part on polygraph evidence admitted at trial against the prosecutor’s objection, Summit County Common Pleas Judge Judy Hunter on Monday, 20 August 2007 found Sahil Sharma of New York City innocent of felony sexual battery and two misdemeanor charges. While the text of Judge Hunter’s decision is not yet available, has obtained pre-trial polygraph testimony as well as video of a polygraph examination that was played in open court. For commentary, see Critique of Louis I. Rovner’s Polygraph Examination and Testimony in Ohio v. Sharma on the message board.

Continue reading Ohio Defendant Acquitted Based Partly on Polygraph Evidence

“Polygraph Tests Inadmissible”

Detroit Free Press staff writer Nate Trela reports. Excerpt:

Polygraph evidence indicating that former Macomb County Prosecutor Carl Marlinga and two codefendants did not swap campaign contributions for prosecutorial favors will not be seen by a grand jury, nor will it be admissible if the case goes to trial.

U.S. District Judge Victoria Roberts said in a written ruling Tuesday that she cannot order the U.S. Attorney’s Office to present the evidence to the grand jury.

She added that the results of polygraph examinations taken by Marlinga, state Sen. Jim Barcia, D-Bay City, and Warren real estate broker Ralph Roberts could not be considered in a trial because the government did not participate in the administration of the tests, let alone know about them.

“Contrary to defendants’ assertion, not all would agree that polygraph results favorable to them are clear, substantial evidence of innocence,” she wrote in the 8-page ruling. “In fact, courts and the scientific community have yet to reach a consensus regarding whether polygraph tests are, indeed, reliable barometers of veracity, particularly when administered unilaterally, as was done here.”

David Griem, an attorney for Roberts, said: “We are disappointed, but not surprised, by the ruling.”

Assistant U.S. Attorney Jonathan Tukel, Marlinga’s attorney Mark Kriger and Barcia’s attorney Harold Gurewitz declined to comment on the ruling.

The attorneys for Marlinga, Barcia and Ralph Roberts — no relation to the judge — filed a motion last month revealing the results of privately administered polygraph exams.

The three men were indicted in April 2004 for allegedly scheming to trade contributions to Marlinga’s ill-fated 2002 congressional campaign for prosecutorial favors for two rape suspects. During their exams they denied wrongdoing.

“Marlinga Lie Detector Test Kept Private”

David Shepardson of the Detroit News reports. Excerpt:

MOUNT CLEMENS — Federal prosecutors won’t have to tell grand jurors about the results of lie detector tests taken by former Macomb County Prosecutor Carl Marlinga and two others charged in a corruption case, a federal judge ruled Tuesday.

Marlinga, state Sen. Jim Barcia, D-Bay City, and Warren Realtor Ralph Roberts said in March that they had passed privately administered lie detector tests given by retired Michigan police officers who were experienced with polygraph machines.

The three were charged in a nine-count indictment in April 2004, but U.S. District Judge Victoria A. Roberts ruled that the government will have to refile new charges against the three, which likely will mean three separate trials.

The grand jury is set to consider reindicting the three April 20. The three defendants had sought to get their lie detector test results introduced in an effort to dissuade the grand jury from reindicting them. Marlinga had offered to take an FBI-administered test if the government agreed to present the results to the grand jury. They declined.

Roberts noted in her opinion that the defendants — had they failed — wouldn’t have been required to tell the government of the results and that the tests are of questionable scientific value. She also noted that the federal appeals court that oversees Michigan “disfavors the use of polygraph evidence at trial, but has not adopted a … rule prohibiting the practice.”

“Lawyer: Use Polygraph to Prove Innocence”

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.

“N.M. Supreme Court: Polygraph Results Can Be Used as Evidence” has published the following brief Associated Press report:

(Santa Fe-AP) — The state Supreme Court has ruled that polygraph test results can continue to be used as evidence in New Mexico courts.

New Mexico has allowed the use of lie detector results in courts for decades.

However, the Supreme Court has been considering whether to change its rule.

In a 30-page ruling, the court reaffirmed its rule and said polygraph test results are sufficiently reliable to be used as evidence in trials.

The state attorney general’s office had argued that polygraph tests were unsound science and should be excluded as evidence.

The Supreme Court makes rules for other New Mexico courts to follow.

The court’s ruling came in five consolidated criminal cases.

In a trial, polygraphs are sometimes uses to verify the truthfulness of witnesses and their testimony.

In endorsing the continued admissibility of polygraph “evidence,” the New Mexico Supreme Court chose to ignore the conclusions of District Judge Richard J. Knowles, whom the court had earlier directed to enter findings of fact and conclusions of law regarding polygraph testing. After reviewing a large body of documentary evidence and hearing testimony from experts, Judge Knowles concluded that “[t]he results of polygraph testing are not sufficiently reliable for admissibility in courts in New Mexico.” His report, (New Mexico Supreme Court No. 27,915) may be downloaded as an 869 kb PDF file here.

West Australia Court of Criminal Appeal Rejects Polygraph “Evidence”

The Australian Associated Press reports in an article titled “Mallard to stay behind bars” that the West Australia Court of Criminal Appeal, upholding Andrew Mark Mallard’s conviction for the murder of Perth jeweler Pamela Lawrence, has ruled polygraph “evidence” to be inadmissible. The WA Court of Criminal Appeal is the highest Australian court that has ruled on the admissibility of polygraph results. The court’s ruling may be downloaded as a 340 kb PDF file here.

“Suspect Awaiting Polygraph”

Christopher Bobby reports for the Warren, Ohio Tribune Chronicle. Excerpt:

WARREN – Murder defendant Gentry Freeman has agreed to take a polygraph exam that his attorney says could free him.

Common Pleas Judge Andrew Logan authorized the agreement last week between prosecutors and defense attorney Sarah Kovoor.

The test will be administered sometime Wednesday by William Evans of Akron, who has previously worked with the Trumbull County prosecutor’s office. Results will be available at a later time, and since the test is stipulated, those test results could be used as evidence in Freeman’s trial scheduled for Jan. 12, 2004.

Freeman, 25, of Allenwood Avenue S.E., pleaded innocent to aggravated murder and kidnapping charges. He is accused of stabbing Denise Angelo of Warren numerous times and leaving her body in a ditch off North Road S.E. in late April 2002.

Kovoor said Freeman earlier took a polygraph, given to him by an expert who works with the Cuyahoga County Sheriff’s Department. However, Kovoor said she thinks there is another killer responsible for the murder.

Without revealing the results of that earlier, unstipulated polygraph, Kovoor said she also wants Evans to have the benefit of viewing the results of the first test. This could be a hint those results could be considered favorable to Freeman, who remains in Trumbull County Jail without bond.

Kovoor contends DNA tests done on semen and skin samples under the fingernails and found on the victim’s body have excluded her client as a suspect.

”I think police might have acted too quickly to charge someone in this case. Gentry’s story has never changed from the beginning, and there are never any inconsistencies in what he says,” Kovoor said.

Freeman reportedly said Angelo got into his car about 3 a.m. April 24, 2002, while he was stopped at a light on Atlantic Street. Angelo told him she wanted to go to her hotel room, but he refused to take her.

Freeman said he eventually dropped her off on North Road, and he told police he returned home briefly before taking a walk on North Road. Freeman said he happened upon Angelo walking on North Road and that he pushed her into a ditch and beat her unconscious.

A coroner’s report indicated the victim had 44 stab wounds from some sort of sharp object. Freeman told investigators he never stabbed her.

Freeman admitted to placing two calls to the 911 center two days after the murder, which tipped off police to finding the body.

”Gentry claims he struck the victim once and that was after she struck him. I’m convinced he picked her up and they had a fight and then he dropped her off, worrying about her later,” Kovoor said.

Kovoor said that considering the number of times Angelo was stabbed, her death could be linked to other unsolved murders in the city in which women were stabbed dozens of times.

That the defense and prosecution have stipulated to the admissibility of the lie detector “test” to be administered in this case does not confer any reliability on this invalid procedure. Polygraph results should never be admitted as evidence in a court of law.

Idaho Supreme Court Rejects Polygraph Testimony

In a ruling handed down Wed., 5 November 2003 in Idaho v. Perry, the Idaho Supreme Court ruled polygraph evidence inadmissible. Craig T. Perry had sought the admission of testimony by Dr. Charles R. Honts regarding a polygraph examination that he administered. Download Idaho Supreme Court 2003 Ruling No. 109 (33 kb PDF).