“New Mexico May Lose Polygraph”

This UPI article is cited here in full:

ALBUQUERQUE, N.M., Sept. 10 (UPI) — A New Mexico judge has recommended the state discontinue using lie detector results in court, saying the tests are too unreliable.

New Mexico is the only state to routinely permit the results of polygraph, or lie detector, tests to be entered into evidence.

The New Mexico Supreme Court, which makes rules that other New Mexico courts must follow, had asked Albuquerque District Judge Richard Knowles to hear evidence on polygraphs in five consolidated cases from around the state.

The Albuquerque Journal said Knowles subsequently decided polygraph testing lacks standards, is not based on an overarching theory and employs techniques not based upon well-recognized scientific principles.

Knowles wrote: “Because of the inherently subjective nature of the test procedure, the polygraph examination cannot be repeated. Successful repetition of a test is the cornerstone of the scientific method.”

Opponents of the use of lie detectors noted in New Mexico, polygraphers receive eight weeks of training while barbers need 1,000 hours of training to be licensed.

“When Lie Detectors Lie – Or Don’t”

Richard A. Muller, a physics professor at the University of California, Berkeley, writes for Technology Review. Erroneously assuming that polygraphy is a valid diagnostic technique with an 85% accuracy rate, and ignoring the issue of countermeasures, Muller concludes that polygraph “evidence” should be admissible in court:

Now we come to the true paradox. Lie detector results are inadmissible as evidence for criminal trials in most states. But I have been present at a trial in which the judge instructed the jury that it was their responsibility, not his, to determine the truth of the testimony. To do this, they were told to take into account “the demeanor” of the witness, his directness in answering questions, and anything else that they thought indicated truthfulness. Ironically, scientific tests show that the average person’s probability of catching a lie in this way is only “slightly better than chance,” according to Ekman. Moreover, the jurors who use this approach have the conviction that their accuracy is near 100 percent, despite their knowledge that most witnesses are extensively coached in methods of appearing sympathetic and truthful–in other words, in methods to defeat the system.

Polygraphy is not allowed in courts because 85 percent accuracy is not good enough. Instead courts use a system that is demonstrably worse–which could be a big part of the reason why so many convictions are now being overturned by DNA evidence. Where is the wisdom in that?

The Technology Review website includes a forum for discussion of articles, where George Maschke of AntiPolygraph.org has posted a response.

Polygraph “Evidence” Rejected in Federal Detention Hearing

John Cook reports for the Seattle Intelligencer in an article titled “Judge frees Znetix pair from prison; death plot discounted.” Excerpt:

Znetix defendants Michael Culp and Steven Reimer have been released from prison after a federal judge discounted statements of convicted bank robber Darres Park, who testified that the two men discussed killing an FBI agent while incarcerated at the Sea-Tac Detention Facility this spring.

U.S. District Judge Marsha Pechman said Monday that there was not clear and convincing evidence that Culp and Reimer were conspiring to kill special agent Joe Quinn, who has played a key role in the investigation of the Znetix stock fraud.

Pechman reversed a ruling by U.S. Magistrate Judge Monica Benton, who ordered the men detained May 27 in connection with the alleged plot.

Free on bond, Culp and Reimer are awaiting trial on multiple counts of fraud and money laundering for the roles they allegedly played with Bainbridge Island-based Znetix and affiliated companies.

The case, described as the largest stock swindle ever to originate in the state, includes more than 5,000 investors and up to $100 million.

The detention hearing hinged on the testimony of Park, a martial arts expert and self-described tough guy who shared a cell block with the Znetix defendants from March 27 to April 1.

During that period, Park alleged that Culp and Reimer discussed killing special agent Quinn on many occasions. Reimer was so “fixated” on the idea that he went so far as to ask how much it would cost and where he could send the money, according to Park’s testimony.

But attorneys for Culp and Reimer attacked Park’s credibility and his past, which included three armed bank robberies and a faked racial incident outside a Belltown nightclub in 1990. As part of the defense, attorneys also submitted a letter from Park’s sister that described him as a “chronic liar.”

“Usually criminal defense attorneys don’t get a chance to cross-examine witnesses like this, who are so easy to cross-examine in the sense that their lies are so easy to expose,” said James Vonasch, the attorney representing Culp.

“From my point of view, it was very obvious that you couldn’t make a decision based on this person’s testimony.”

While Park passed a lie detector test administered by the FBI, the defense team called an expert witness who said so-called control question tests are flawed.

Drew Richardson, a former FBI agent who specializes in lie detection, said the tests can be defeated if a person employs simple physical tasks such as biting his cheek or mental exercises such as doing complex arithmetic.

“The results of this polygraph should not be indicative of the truth,” Richardson said.

VA: Polygraph Evidence Inadmissible in Probation Hearing

The following was posted to the SW Virginia law blog :

Polygraph evidence inadmissible in probation hearing

In White v. Com., the Virginia Court of Appeals in an opinion by Judge Benton joined by Judge Clements and Senior Judge Hodges held that evidence that a probationer failed a polygraph test is inadmissible in a hearing on probation revocation, and the trial court’s consideration of such evidence was apparently not harmless error, even though the probationer was a sex offender and the trial court had resolved not “to gamble with with this man and young children.”

Australia: More on Polygraph in Mallard Case

The Post of Perth, West Australia, reports in an article titled, “QC asks judges to visit scene of ’94 murder.” Excerpt:

On Tuesday night, some TV news bulletins showed interviews with a Mallard family member, and several, including the 7.30 Report, showed videotape of Mallard doing an electronic lie detector test.

A longer segment on the ABC’s 7.30 Report showed more of the lie detector, or polygraph, test.

Mr Fiannaca said the reliability and scientific validity of polygraph testing would be challenged later in the appeal.

Expert evidence brought by the crown would show it was “totally unreliable”, he said.

The 7.30 Report had shown extra video of the testing that had not been made available to the crown.

Mr Fiannaca said this amounted to non-disclosure of evidence by Mallard’s team.

The footage was a very important part of the evidence needed to establish the reliability of the test.

The crown was also concerned that lay witnesses yet to be called for the appeal would be influenced by the report.

The video footage had not been admitted into evidence and was not in the public domain.

He said the DPP was considering whether to take contempt of court proceedings against the TV channel concerned.

Justice Len Roberts-Smith said there was potential for the report to have an impact on witnesses.

He said: “I can think of witnesses who are uncertain about certain things.”

Justice Christine Wheeler said the 7.30 Report segment went beyond a fair and accurate report of the court proceedings.

It was emotive and one-sided, she said.

Justice Parker said the reports had the appearance of something of an orchestrated campaign.

He said it could have a long-term effect on the way the public viewed the courts.

He said: “The extremely one-sided reporting creates in the public mind an expectation that is disappointed when the court makes a decision based on all the evidence before it.

“The perception is created that the court is out of touch with the reality of the case.”

He said the question of whether any polygraph evidence would be received was open to submissions.

He said if there were any recurrence of the type of reporting seen on some TV bulletins on Tuesday night, the court would consider at least a suppression order, or the need for an adjournment.

Mr McCusker said the polygraph footage had been provided to media about a year ago by supporters of Mallard out of “desperation”.

He said it had been provided on the understanding it would not be aired until shown in court.

Mr McCusker said: “Channel 2 took the view that once it [the polygraph] was mentioned in court, that was the trigger.”

Australia: TV Report Angers Judges

David Darragh reports for the West Australian on the appeal of convicted murderer Andrew Mallard, who has sought the admission of polygraph results.

THE Court of Criminal Appeal has criticised heavily what it described as emotive and one-sided television news reports of convicted murderer Andrew Mallard’s appeal that could influence witnesses at the hearing.

Mallard’s appeal against his conviction for wilfully murdering Mosman Park jeweller Pamela Lawrence in May 1994 was almost postponed yesterday after Director of Public Prosecutions lawyer Bruno Fiannaca objected strongly to television news coverage of the opening day.

All three judges presiding over the case expressed their concerns about the potential impact of such reports on witnesses.

Mr Fiannaca told the court the DPP was disappointed with the emotive and inaccurate nature of some reports.

They had the potential to influence the evidence of several witnesses.

He said some reports seemed calculated to influence the case. Serious thought was being given to contempt of court charges.

He was concerned about a story on Tuesday night’s 7.30 Report which showed video footage of Mallard having a lie detector test.

Mr Fiannaca said the tenor of the story seemed to suggest the legitimacy of polygraph testing.

But the DPP had affidavits from eminent scientists which supported arguments that polygraph tests were unreliable, Mr Fiannaca said.

Mallard’s lawyer, Malcolm McCusker QC, said polygraph examiner William Glare was not expected to testify after recently having a severe stroke.

Wrongfully Convicted Man Who Failed Polygraph Wins Declaration of Innocence

Phil Trexler of the Beacon Journal reports on the exoneration of Jimmy “Spunk” Willams, who was wrongfully convicted of raping a child, in an article titled “A wrong is officially righted.” Williams was convicted in part on the basis of his having failed a polygraph “test.” Excerpt:

Further harming Williams’ case was an agreement between prosecutors and his trial lawyer to allow jurors to hear the results of a lie detector test. Williams flunked it. Unless both sides agree to reveal the results, lie detector tests are not admissable in court because they can be unreliable.

At the conclusion of the trial, Williams was convicted of rape and sentenced to life in prison.

A common prosecutorial tactic is to tell a suspect that charges may be dropped if he passes a polygraph “test.” But the suspect must first sign an agreement stating that the results of the “test” are to be admissible in court. This is typically done in cases where the evidence against the suspect is weak to begin with and the prosecution has little to lose. But even an innocent suspect has much to lose by stipulating to such terms. These pseudoscientific “tests” have an inherent bias against the truthful, because the more honestly one answers the so-called “control” questions, the more likely one is to “fail.” Moreover, a polygrapher’s prejudice or willful manipulation can also determine the outcome. See Chapter 3 of AntiPolygraph.org’s free book, The Lie Behind the Lie Detector for more on how these fraudulent “tests” really work (and don’t).

“Polygraph Allowed in Murder Trial”

Staff writer Sharron Haley reports for the Sumter, South Carolina Item. Excerpt:

MANNING — In what some are calling a landmark decision, At-Large Circuit Court Judge Clifton Newman allowed a defense attorney to introduce results from a polygraph test in the murder trial of Anthony Ray White.

White, who authorities say did not appear to be lying on a lie detector test, is charged with murder in the 2000 bludgeoning death of Mary Johnson. Johnson, 52, was found by family members in the living room of her Manning home.

“It’s very big,” defense attorney Harry Devoe said Wednesday about the judge’s ruling. “The Council case (a case used by Devoe to argue that the polygraph information be allowed) opened the door, and the new rules of evidence made it possible.”

The case, which began Tuesday at the Clarendon County Courthouse, is expected to go to the jury today for deliberations. The trial is expected to resume at 9 a.m. with closing arguments.

Prosecutor Ferrell Cothran says White killed Johnson in order to rob her of her money and illegal drugs. However, Devoe contends White is not the killer and never visited Johnson the night of the killing.

With the jury out of the courtroom on Wednesday, the prosecution and defense argued before Newman for almost 30 minutes on whether polygraph results should be allowed as evidence.

State Law Enforcement Division special agent Rick Charles, who has been administering polygraph exams for more than 15 years, told the judge that polygraph results are more reliable than handwriting analysis and eyewitness reports. Certain reports, he said, listed polygraph accuracy at between 85 and 95 percent.

Newman ultimately ruled in the defense’s behalf.

The admissibility of polygraph results is believed to be a first for general sessions court in South Carolina.

“I cannot recall,” retired Supreme Court Chief Justice Ernest Finney said late Wednesday from his home in Sumter. “It’s been a while and things have changed, but I do not recall it (polygraphs used in court).”

Third Circuit Solicitor Kelly Jackson agreed with Finney. He said that he’s never tried to use polygraph results because they weren’t accepted.

After the jury was allowed back into the courtroom, Devoe presented only two witnesses — Charles and the defendant.

Charles, who administered the polygraph exam to White in September 2001, testified concerning the questions that were asked during the exam.

To the question “Did you beat that woman?” White answered no, Charles said, noting there were no apparent signs that White was trying to be deceptive.

Charles testified that White also had answered no to similar questions with no apparent attempts to hide the truth.

Judge Clifton Newman has set a dangerous precedent. As Professor William G. Iacono notes in his article, Forensic ‘Lie Detection’: Procedures Without Scientific Basis,” polygraph “testing” has no grounding in the scientific method. Moreover, polygraph “tests” are easily passed through the use of simple countermeasures that polygraphers cannot detect. (Did the suspect in this case know “the lie behind the lie detector?”) Polygraph chart readings have no probative value and should not be admitted as evidence in a court of law.

Louisiana Supreme Court Embraces Polygraphy

The Beauregard Daily News reports in an article titled,”La. Supreme Court upholds dismissal of policeman.” The officer’s dismissal was based in large part on polygraph “evidence.” This short article, which is no longer available on the Beauregard Daily News website, is cited in full here:

The 1997 dismissal of Johnny M. Evans, Sr. from the DeRidder Police Department was upheld by the Louisiana Supreme Court Thursday following an appellate court decision that ordered his reinstatement and prompted the DeRidder Municipal Fire and Police Civil Service Board to take the case to the Supreme Court.

Evans was dismissed by DeRidder Mayor Gerald Johnson on charges of “improper conduct” following an investigation by DeRidder Police Chief Arvin Malone that found Evans had disclosed sensitive police information that led to the beating death of Ernest Lee Prater Jr. in Vernon Parish in August 1997. Evans reportedly told his son, Johnny Evans Jr., and his son’s friend, Eric Pickens, that Prater was acting as a police informant and had informed on Pickens and others, leading to the earlier arrest of Pickens on drug-related charges.

Pickens and Evans Jr. were later charged with Prater’s murder, for which they are both currently serving time in prison.

Evans appealed his dismissal to the Civil Service Board on the grounds that he had not disclosed any such information to his son and Pickens. According to a “Facts and Procedural History” report compiled by the Supreme Court, the board upheld the dismissal, finding that, based on testimony by Malone and a polygraphist that stated Evans had failed an ordered polygraph test, Evans had in fact disclosed the information.

Evans took his appeal to the 36th Judicial Court, which also upheld the dismissal, affirming that the Civil Service Board’s decision was supported by admissable evidence.

Evans then took his case to the Third Circuit Court of Appeals in Lake Charles, which, according to the Supreme Court report, reversed the Civil Service Board’s decision, finding that the polygraph examination was “unreliable and irrelevant” and therefore inadmissable. The appellate court found that the 36th Judicial Court had committed a “legal error” in admitting the polygraph and that Pickens’ statements during the investigation were also inadmissable due to inconsistencies and hearsay rules.

On June 27, 2001, the appellate court ordered the City of DeRidder to reinstate Evans to his former police department position with back pay and allowances that, after four years, would cost the city up to $100,000.

The city’s application to the appellate court for a rehearing on the matter was denied for undisclosed reasons, prompting Johnson and the Civil Service Board to take the case to the Supreme Court.

In a conclusion of its findings, the Supreme Court stated that the results of a properly administered polygraph examination are competent and reliable evidence and that Pickens’ statements constitute exceptions to the hearsay rule.

Based on these and other findings, the Supreme Court ruled that the judgment of the appellate court be reversed and the judgement of the 36th Judicial Court to support Evans’ termination be reinstated.

By embracing the pseudoscience of polygraphy, the Louisiana Supreme Court has set a dangerous precedent. Relevant documents available in PDF format from the Louisiana Supreme Court website include:

  • Opinion in Case No. 01-C-2466, Johnny M. Evans, Sr. versus Deridder Municipal Fire and Police Civil Service Board.
    In its conclusions, the Supreme Court of Louisiana holds that “[a]lthough not 100% reliable, the results of a properly administered polygraph test are competent evidence and are of the type upon which reasonable persons would rely.”
  • Dissenting Opinion of Chief Justice Pascal F. Calogero, Jr.
  • Concurring Opinion of Jeannette Theriot Knoll
  • Concurring Opinion of John L. Weimer