Wisconsin Court of Appeals Throws Out Post-Polygraph Confession on Grounds of Coercion

In a 19 May 2020 ruling, the Wisconsin Court of Appeals upheld the suppression of a post-polygraph confession in the child molestation case of Wisconsin v. Adam W. Vice (2018AP2220-CR).

In 2016, Vice was accused of sexually molesting a four-year-old girl. Questioned by Washburn County Sheriff’s Department investigator William Fisher, Vice “denied any wrongdoing and asked Fisher if there was anything he could do to clear his name.”

Polygraph Operator Ryan Lambeseder
(2016 Eau Claire Leader-Telegram photo)

Fisher arranged for Vice to submit to a polygraph “test” conducted by Ryan Lambeseder of the Eau Claire Police Department. Vice “failed” the polygraph and ultimately confessed during a post-polygraph interrogation jointly conducted by Lambeseder and Fisher.

The Wisconsin Court of Appeals concluded (at para. 72 of its decision) that:

…the totality of the circumstances here evidences that the officers improperly used coercive methods and strategies to overcome Vice’s ability to resist including: (1) making numerous, repeated references to the polygraph results throughout the entire course of the post-polygraph interview; (2) repeatedly asserting that those results showed Vice—who claimed not to remember the assault—did remember it; (3) failing to correct Vice’s statement that he must have assaulted the victim because the test said he did; and (4) failing to inform Vice that the test results would be inadmissible in any criminal proceedings against him.

The court goes on to state (at para. 81): “…we caution law enforcement officers that if they plan to rely on polygraph results in order to elicit a defendant’s confession, they need to inform the defendant that those results are inadmissible in court.”

Gretchen Schuldt of the Wisconsin Justice Initiative reports on the ruling in a 26 May 2020 UrbanMilwaukee.com article titled, “Appeals Court Nixes Post-Polygraph Confession.”

See also the Wisconsin State Public Defender On Point blog post, “Defense win! COA affirms suppression of confession given after polygraph exam,” which includes a link to other filings in this case and a comment by Vice’s attorney, Frederick A. Bechtold.

And for an example of a federal case where a post-polygraph confession was suppressed, see our 2016 article, Federal Judge Throws Out FBI Post-Polygraph Confession Over Concerns About Voluntariness.

NCCA Interview & Interrogation Manual

The 1991 Department of Defense Polygraph Institute (DoDPI) interrogation manual, Interview & Interrogation (PDF) is among the first documents published by AntiPolygraph.org nearly 20 years ago.

Since then, DoDPI has undergone two name changes and is now called the “National Center for Credibility Assessment” (NCCA). AntiPolygraph.org has obtained and now made available the November 2013 NCCA version of Interview & Interrogation (PDF). This document is also available in Microsoft Word format.

In addition, we have obtained and published a 9-page Counterintelligence Post-Test Interview Supplement dated November 2013. This document, too, is also available in Microsoft Word format. This document provides minimization/rationalization strategies or “themes” for eliciting admissions in post-polygraph counterintelligence interrogations.

Both of these documents are marked “For Official Use Only” and include the admonition, “No part of this handbook may be reproduced or distributed in any form or stored in a database or retrieval system without the written permission of the Director of NCCA.”

These documents make it clear that polygraph “tests” are actually interrogations in disguise and will be of interest to all who may face polygraph “testing.”

U.S. Customs and Border Protection Polygraph Chief John R. Schwartz on Interrogation

AntiPolygraph.org has received a copy of a presentation (1.4 mb PDF) on interrogation given by John R. Schwartz, who now heads the U.S. Customs and Border Protection Internal Affairs Credibility Assessment Division. In that capacity, Schwartz heads one of the federal government’s largest polygraph units, with some 71 polygraph examiners and a fiscal year 2012 budget of $11.4 million. Schwartz has previously worked as an instructor at the Department of Defense Polygraph Institute (since renamed the National Center for Credibility Assessment) and in 1995 served as its acting director. As such, his views on interrogation are presumably influential.

Schwartz gave the presentation, titled, “Interrogation Tips for Nerds Like Me” at an October 2007 seminar held by the California Association of Polygraph Examiners in Coronado. Among other things, the presentation brings home the point that polygraph “testing” is really all about interrogation. For example, slide 6 covers “internal pressure” in the polygraph examinee that can be exploited by the polygraph operator :

schwartz-interrogation-2007-p06The “cookie jar” story is a simplistic tale that polygraphers like to tell during the pre-test phase. Retired FBI polygrapher Jack Trimarco explained it this way in a 2007 radio interview:

Moms are the best polygraph examiners in the world because they know Little Johnny 24-hours-a-day, and when Mom tells Johnny, “Don’t take a cookie before dinner” and she walks into the kitchen and the cookie jar has the top off of it and there’s crumbs on the counter and crumbs, in fact, on little Johnny’s mouth, and she says, “Johnny, did you take a cookie?” and he goes into the fetal position and looks down and lowers his voice and says, “No, Mommy,” well Mommy knows immediately that Johnny did take the cookie.

The polygrapher attempts to convince the examinee that the polygraph results are like the cookie crumbs on Little Johnny’s mouth.

Slides 10 and 11 document a dangerous mindset prevalent among American interrogators: that their job is to extract confessions (as opposed to determining the truth). Federal polygraph operators are typically evaluated based on their post-test confession rates. Schwartz dismisses the possibility that the polygraph could be wrong and enumerates methods for overcoming objections. Yet a statistical analysis (255 kb PDF) by Dr. Alan P. Zelicoff of the best polygraph field studies suggests that “if a subject fails a polygraph, the probability that she is, in fact, being deceptive is little more than chance alone; that is, one could flip a coin and get virtually the same result for a positive test based on the published data.”

schwartz-interrogation-2007-p10schwartz-interrogation-2007-p11There is an inside joke among polygraphers that they are salesmen with a difficult job: selling jail time. In slide 13, urging the polygrapher to keep the interrogation going as long as possible, Schwartz describes the job a different way: “manure salesman”:

schwartz-interrogation-2007-p13In slide 14, Schwartz specifically mentions AntiPolygraph.org, suggesting that the polygrapher should “do the unexpected” if he or she believes that the examinee has read this site (or if the polygrapher has “the feeling” that the examinee “won’t confess”). It’s not clear what “unexpected” things Schwartz advocates polygraphers doing:

schwartz-interrogation-2007-p14In slides 20 and 21, Schwartz suggests a variety of polygraph techniques “if nothing else works,” including one of his own creation: “Schwartz’s Helpful Interrogation Test,” evidently an adaptation of the peak of tension test. This technique is not included in the U.S. Customs and Border Protection polygraph handbook (1.9 mb PDF), and it’s not clear if CBP polygraphers use it. Nonetheless, it is cause for concern that a federal polygrapher devised and advocated a “home brewed” polygraph technique:

schwartz-interrogation-2007-p20schwartz-interrogation-2007-p21It is absurd to ask a polygraph examinee why an invalid procedure (polygraphy) may have produced an inaccurate result. It’s like asking why a coin toss came out heads instead of tails. Schwartz’s home brewed “Helpful Interrogation Test” has one thing in common with the Backster Zone Comparison Test, the Reid Modified General Question Test, and the Keeler Relevant/Irrelevant Test: it is the brainchild of an interrogator, not a scientist. Beware of manure salesmen.