Texas Deregulates Polygraph Trade

Effective today, Wednesday, 1 September 2021, polygraph operators need no longer be licensed in the state of Texas. A notice on the Texas Department of Licensing & Regulation website advises:

Effective September 1, 2021, Polygraph Examiners are no longer required to be licensed by the Texas Department of Licensing and Regulation (TDLR).

Texas House Bill 1560, passed during the 87th Regular Legislative Session (2021), ended licensure for Polygraph Examiners. TDLR will stop accepting new and renewal license applications effective immediately.

A currently valid license will not expire until September 1, 2021.

Other states with no polygraph licensing requirement include California and New York.

Texas DPS Polygraph School Graduation Ceremony Showcases Law Enforcement’s Faith in the Pseudoscience of Polygraphy

On Friday, 12 March 2021, the Texas Department of Public Safety Polygraph School graduated its 29th class. In the midst of the most deadly pandemic to hit the United States in a century, and in defiance of current U.S. Center for Disease Control guidance and the city of Austin’s and Travis County’s mask mandates, participants did not wear masks and did not observe social distancing. They did, however, shake hands and touch their faces.

No masks, no social distancing, hand-shaking, and face touching at Texas DPS Polygraph School’s Class 29 graduation ceremony

Texas DPS Director Col. Steven C. McCraw, a retired FBI agent who once headed the Bureau’s Inspection Division, gave the graduation address, portions of which AntiPolygraph.org has transcribed. In remarks that are often ungrammatical, McCraw expresses an evidently sincere belief in the pseudoscience of polygraphy, condescension for those who oppose it, and at the same time a recognition that polygraphy is all about interrogation and obtaining confessions. He expresses no concern for potential harm to innocent persons:

Texas Department of Public Safety Commander Steven C. McCraw

I do believe that this is such a important part, discipline, law enforcement discipline, without question. I’ve seen the benefit of it and in a world where crime is transitory—I know the sheriff and I were talking a little bit about it—you know it’s, wherever you’re at, whether it’s North Dakota, South Dakota, Nebraska, Oklahoma, certainly Louisiana or Texas, I mean what happens somewhere happens somewhere else. And we recognize that we’re working pretty much the same criminal organizations, the same criminals, and this, this thing, as long as there’s an unending demand for sex with children, we’re, we’re plagued with this depravity of mankind when we talk about what’s going on.

And, and at the end of the day, your job is to get the truth, and of course, we’re, we’re very proud about the school, and pleased that we’re able to produce it, but it’s only as good as the people you put into it, plain and simple. I mean, you are sitting here, there’s a good reason. You’ve exhibited throughout your career not just integrity, but good judgment, and interview, interview skills. I mean you have, already have the tools to get the confessions. You’ve demonstrated that. So you, whether you have a tool or not, but having the science behind it and the tool to help is so vitally important.

From the department’s standpoint, I guess from our standpoint, and I can tell you an example, if nothing else, pre-employment polygraphs. It’s amazing what people will walk into a door wanting to be a state trooper. I mean, we’ve got pedophiles, okay, obviously, we have, we have people who are planning armed robberies of a, an armored vehicle, we’ve had individuals that were thinking about fragging their leadership in Afghanistan. So there’s some, there’s criminals out there applying, and if not for, because the background looked good, everything looked good, if not for those pre-employment, you know, interviews, during confessions that many times those confessions happen even before the interview, before their polygraph is given, because of the quality of our people that are providing that uh, that pre-polygraph interview that they’re conducting, going over the particular facts. And it’s amazing, you know, how we’ve been saved.

While law enforcement applicants sometimes make disqualifying admissions, polygraph screening also results in many honest, well-qualified applicants being wrongly branded as liars and blacklisted. There is no evidence that law enforcement agencies that polygraph applicants have a more honest workforce than those that don’t. Notably, state and local law enforcement agencies in Massachusetts, Michigan, Minnesota, New Jersey and Oregon are prohibited by law from polygraphing applicants and employees.

McCraw continues:

So there’s people that don’t really like the polygraph in the legislature, in some other parts of the judicial system, but they don’t understand it, or haven’t seen it, and don’t recognize that, how productive it is.

McCraw’s supposition that those who “don’t really like the polygraph” don’t understand it is ill-founded. Those who understand polygraphy the best tend to oppose it. For example, the National Academy of Sciences conducted a thorough review of the scientific evidence on the polygraph and likened polygraphy to superstitious lie detection rituals in primitive societies.

As the late Dr. Stephen Fienberg, who led the National Academy of Sciences’ polygraph review committee observed, “Polygraph testing has been the gold standard, but it’s obviously fool’s gold.”

McCraw goes on:

At the end of the day, no one goes to jail on a polygraph. There’s got to be corroborating evidence. But there’s so many times where it’s a he said, she said, and you don’t know. And I can say even from a disciplinary standpoint as a director, when you’re looking at somebody that, you know, has, has compromised their integrity, but they’re consistent they had not, and you know, you don’t want to lose a good employee, or employee that appears to be a good employee, that’s worked so hard, you invested in, and you know, you don’t wanna, just based upon, you know, circumstantial evidence remove somebody, but at the end of the day, the polygraph is the great separator.

I mean that then, was it last week when someone I swore was telling me the truth. I moved finally, I thought that somebody that’s telling me something, here’s, here is a candidate we’re firing and it’s just unfair, uh, because clearly, he didn’t do it. Guess what? He lied, okay? And I wouldn’t have been able to know that unless there was a polygraph given in that regard.

Tactical polygraphs. Whoever came up with a tact—who’s idea was that anyway? Matt, did you have something to do with that? Yeah, somebody conspired. That’s a cool name, right? Not a strategic polygraph, but a tactical polygraph, okay? It implies that you’re, you know, proactive, you’re out there, you’re in the field, and you’re getting your hands dirty, you’re where it’s at. And that’s exactly what it’s about.

A so-called “tactical polygraph” is a polygraph “test” administered to a suspect promptly after arrest in an attempt to obtain admissions to crimes beyond those for which the suspect has been arrested. The suspect’s “failing” may be a pre-scripted part of the interrogation plan.

Texas DPS polygraph operator Matthew “Matt” Mull

The “Matt” to whom McCraw called out is Texas Department of Public Safety Captain Matthew Mull, a polygraph operator and advocate of this coercive interrogation technique.

You know, we don’t do our, our sex trafficking operations without, without a polygrapher on site. I’ve been even lobbied by ICE HSI on more than one occasion to increase the number of polygraphers that we have, you know in the Rio Grande valley because of how productive it has been. Of course, it’s productive. And if, at the end of the day, you know it’s not only in terms of finding evidence to support, you know, putting them where they need to be, but it’s also identifying victims, other victims in that regard. And you are in a position to be able to do that.

You know there’s, not now, when you hit the day, first day running, you’re going to be in a position to do something that other people won’t be able to do. I mean, you’ve already got that skill to interview on top of that, you’ve got this, then you have the opportunity, because they’re being funneled into your presence, and you have an opportunity to make a difference. And sometimes, you know, patience is important, I know. You know, I don’t have it. But I know you have it, because sometimes you have to listen and empathize—for hours—with someone that you’re disgusted by.

I’m always, always reminded of someone that worked for me in, in my FBI days and we had the Tohono O’odham reservation in Arizona, and there was such pervasive child molestation on the, on the “res,” that, you know, how do you get the confessions? What do you, if someone does one, they do fifteen. How do you able to gonna elicit that infor—, you know how do you, and it’s about empathizing, and she was able to do that again and again and again, and followed up with a polygraph that always, you know, produced results in a way that we’re sparing the children from having to testify, which is brutal when you do so.

So there’s so many good things that you’re going to be doing, you know, whether it’s murderers, [unclear], whatever it is, you know, that cross your career, and, you know, and you’ll also, again, you know, in another discipline, ’cause people are understand that, hey, law enforcement is data based, scientific based, we don’t, we don’t, it’s not voodoo, okay, it’s about science, it’s about things that work.

Col. McCraw’s assertion that law enforcement is “scientific based” does not hold true when it comes to its reliance on polygraphy—a thoroughly discredited pseudoscience. “Voodoo science” is not an inapt characterization of polygraphic lie detection.

McCraw concludes:

It’s about, you know, evidence-based strategies. It’s in policing it is, is in fact a profession, and a very important, critical profession. There’s nothing more important that government does is protect its people, and you’re a key part of that with what discipline that you have that fits into it. And we’ve got an obligation to use all the tools that we can, and you’re, you’re a very important tool…

Law enforcement has no obligation to use tools such as the polygraph that are known to be scientifically baseless. McCraw’s remarks help to illustrate how deeply entrenched belief in the century-old, cop-invented pseudoscience of polygraphy is in American law enforcement.

From left to right: Texas DPS Polygraph School director Captain Bobby McCloskey, Tyler, TX PD Sergeant Kevin Fite, and Texas DPS Director Col. Steven C. McCraw

Video of the Texas DPS Polygraph School Class 29 graduation ceremony is available on the Texas DPS YouTube channel here:

Polygraph “Testing” Ordered for Cameron County, Texas Jail Staff

Jennifer Muir and Emma Perez-Treviño report for the Brownsville, Texas Herald in an article titled, “Sheriff holds off on staff changes.” Excerpt:

Administrative debates temporarily staved off Sheriff Conrado Cantu’s plan to restructure a troubled county jail staff Monday, but Cameron County’s top lawman said his department will continue considering options this week as his staff undergoes polygraph examinations.

“We are still debating,” Cantu said in a telephone interview Monday.

“Administration got together this morning and we have several options we are going to look for. We have not yet gotten to an agreement. I can’t comment any further.”

Cantu told The Herald Friday that he would hold a news conference Monday to discuss a possible re-staffing of county jail operations, after drugs again were found inside the Carrizales-Rucker Detention Center in Olmito — the latest incident in a string at the maximum-security facility, including investigations into sexual activity between guards and inmates, missing inmate funds and a jailer arrested in October on drug charges.

County Judge Gilberto Hinojosa could not be reached Monday to discuss Cantu’s proposed changes but is expected to discuss a possible drug screening policy for jail staff at today’s Commissioners Court meeting.

The District Attorney’s Office and Sheriff’s Department are conducting parallel investigations into the sexual allegations that include polygraph exams for jail employees.

Former Mercedes Police Chief Jose H. Flores III is conducting the tests for the sheriff. Flores currently is employed by Cameron County as a deputy constable in Precinct 7 and is a licensed polygraph examiner.

“I’ve been conducting the polygraph examinations for free, at no cost to the county because I am a county employee trying to help them out,” he said, noting that he conducts the examinations after the regular workday.

The attorney representing a former sheriff’s lieutenant who claims she was fired for blowing the whistle on the alleged activity objects to Flores’ involvement. “It is well known that he is a crony of the sheriff,” Richard Nuñez said Monday, the same day he filed a wrongful termination suit against the sheriff and Cameron County on behalf of ex-Lt. Hilda Treviño.

“Siblings Pin Hopes on Polygraph”

Jim Henderson of the Houston Chronicle Dallas bureau reports. Excerpt:

FORT WORTH — Sometime in the next few days, James Byrd will take the most important test of his life.

If he passes, he soon could walk out of prison, free for the first time in nearly five years.

If he flunks, he could stay behind bars until he is an old man.

Polygraph tests are not admissible evidence in criminal courts, but because of the strange circumstances of his case, prosecutors have agreed to ask for his release if they are convinced he is telling the truth.

“We’re open to taking another look at it,” said Assistant District Attorney Alan Levy.

His boss, Tarrant County District Attorney Tim Curry, agreed.

“We’re sure not going to keep him there if he doesn’t belong,” he recently told the Fort Worth Star-Telegram.

From the time he was arrested and charged with robbery by threat, Byrd, 38, has sworn that he did not belong in prison, but it took intervention by a University of Houston law student and a subsequent televised confession by his older brother, Donnie Johnson, to get anyone’s attention.

Johnson, 45, has taken — and passed — a polygraph test in which he admitted to the crime for which his brother was convicted, and now it’s Byrd’s turn.

“Invalid Test Stalls Exoneration”

Fort Worth, Texas Star-Telegram staff writer Mike Cochran reports. Excerpt:

FORT WORTH – It was going to be James Byrd’s day of vindication.

After spending almost five years in prison for a crime that he and his older brother Donnie Johnson say Johnson committed, Byrd took a polygraph test Tuesday in the special crimes unit of the Tarrant County district attorney’s office to prove his innocence.

It came a month after Johnson passed a polygraph to prove his guilt.

Instead, Byrd’s test was deemed invalid because his blood pressure readings were too high and could not be stabilized. The next step, said Rick Holden, who administered both polygraphs, is for a doctor to examine Byrd and a new test to be administered in a more laboratorylike environment.

Thus, another bizarre twist in a case that seemed like little more than a two-bit robbery gone sour, but over time turned into a twisted tale of injustice that sent Byrd to prison, broke a mother’s heart and shattered a large but close-knit family, as well as the relationship of two brothers who had been inseparable.

On Tuesday, the brothers reconciled in a tearful reunion in the special crimes unit.

“Hey, what’s up?” Byrd said, sitting at a table handcuffed.

“How ya doin?” Johnson said as the brothers embraced.

Both anticipated that the results of the polygraph test were a foregone conclusion.

“I am relieved,” Johnson said before Holden’s evaluation. “I’ve been carrying this burden almost five years. I told him [Byrd] I was sorry that I had put him through this. … He said he accepted my apology and that he loved me. That felt good.”

Byrd said: “What hurt me more than anything, my own brother, my own flesh and blood … he constantly lied.”

The latest development doesn’t mean Byrd is indeed guilty; Holden speculated that the excitement of seeing his brother, taking the test and contemplating freedom may have been responsible for the elevated blood pressure readings.

Nonetheless, the result delays the process of righting an alleged wrong and the goal of obtaining a full pardon for Byrd.

For now, freedom is still a jailhouse dream.

“Brother’s Polygraph Test Could Clear Brother in Prison”

The Associated Press reports in this article published in the Amarillo Globe-News. Excerpt:

DALLAS (AP) – This is a story about two brothers and a crime that changed their lives.

One brother is serving a 30-year sentence for aggravated robbery. The other is living with the agonizing guilt that he put his younger half brother behind bars.

Today, they both hope the truth will set them free.

For almost five years, James Byrd and his family have tried to convince authorities of his innocence – and that the man who committed the crime was his brother, Donnie Johnson.

After years of nagging from his family, Johnson, 43, confessed publicly and took a polygraph test last month about his guilt. Now the Tarrant County district attorney wants to test Byrd today.

If 38-year-old Byrd passes the lie detector test, the district attorney has agreed to recommend a pardon to the Texas Board of Pardons and Paroles. The board could act immediately or wait several months.

“It’s a very unusual case because of the relationship between the person who committed the crime and the person wrongly incarcerated,” Assistant District Attorney Alan Levy said. “I think it merits a second look when normally we wouldn’t have looked at it again. We’re going to do what we need to do.”

Mr. Levy, basing a pardon recommendation on a pseudoscientific polygraph “test” is hardly doing what needs to be done.

Forced Polygraph Interrogations Alleged in Houston P.D. Whistleblower Suit

In an article titled “Whistle-blower finally gets trial,” Rosanna Ruiz of the Houston Chronicle reports on the case of Houston Police Department officer Paulino Zavala. Excerpt:

A former Houston narcotics officer’s whistle-blower lawsuit will go to trial today after lingering in court for four years and benefiting from two appellate rulings that kept it from being dismissed.

Paulino Zavala alleges the Houston Police Department retaliated against him after he reported improprieties by internal affairs division investigators during their probe of a narcotics department clerk.

In 1996, Zavala reported to a supervisor and then-Police Chief Sam Nuchia that internal affairs investigators had violated policy by releasing confidential information about the clerk to those outside the department.

Zavala’s letter to Nuchia also accused the investigators of discrimination, coercion and intimidation of a witness.

Zavala’s suit said he was harassed, forced to take three polygraph tests, placed under surveillance and arrested without probable cause as a result of his complaint.

Pseudoscientific polygraph “tests,” which can be manipulated by the polygrapher to produce the desired outcome, are a godsend for the corrupt public official seeking to discredit a whistleblower.

“Police Give Polygraph Tests to Family Members of Slain Couple”

Waco Tribune-Herald staff writer Tommy Witherspoon reports. Excerpt:

Waco police have asked family members of Orville and Ruby Loving to take polygraph tests as the investigation into the deaths of the elderly couple continues.

While some polygraph tests have been administered, Waco police report that arrests in the May 12 slaying of the Lovings at their home at 3424 Forrester Lane are not imminent.

Waco police Sgt. J.R. Price declined to say who has taken the lie-detector tests. However, sources familiar with the investigation said that several family members of the slain couple have taken the tests, while one member reportedly has refused to take one.

“The polygraph tests are an investigative step,” Price said. “We are at the stage now where we have to eliminate people whose names have been given us through our investigation. We have made available polygraphs to two or three people and they have consented to do that. But that is typical in an investigation like this, on a whodunnit.”

Because polygraphic interrogation is not a valid diagnostic technique and is easily defeated through simple countermeasures that polygraphers cannot detect, suspects should never be eliminated on the basis of polygraph chart readings.

Polygraph Dragnet in Nueces County, Texas

The Corpus Christi Caller Times reports in an article titled, “County clerk’s office employees asked to take polygraph tests.” This short article is reproduced in full below:

From staff reports

Employees at the Nueces County Clerk’s office are being asked to submit to polygraph exams as investigators continue to probe the disappearance of $4,700, said County Clerk Ernest Briones.

The money, collected from court fees and fines, was found to be missing last month when office staff reconciled bank statements.

Sheriff Larry Olivarez said the investigation has been difficult because the money was missing for several days before his department was notified. “It’s a difficult case because of the circumstances leading up to the disappearance of the money,” he said.

The office has 25 employees but only employees in the collections and treasury sections of the office were asked to take the polygraph tests, Briones said.

“They do have a choice,” Briones said. “I think the law is such that they can refuse to take it.”

Nueces County Clerk Ernest M. Briones is giving employees a devil’s choice between agreeing to have their honesty assessed based on a pseudoscientific trial by ordeal or refusing and appearing to have something to hide. You can help set him straight on polygraph testing by sending a note through his office’s web-based feedback form:

http://www.co.nueces.tx.us/countyclerk/feedback.asp

or by e-mail to countyclerk@nueces.esc2.net or by phone at (361) 888-0580 or by fax at (361) 888-0329.

“Hendricks Discusses VSA Controversy at NHCCJA Meeting”

Humble Observer managing editor Martin L. de Vore reports on a talk given by Humble, Texas police polygrapher Kelly Hendricks. Excerpt:

Braving cloudy skies and a light misty rain, North Harris County Criminal Justice Association (NHCCJA) members who attended the organization’s April meeting got an inside look at the controversy surrounding the use of voice stress analysis (VSA) technology by police.

Hendricks then spent the next 30 minutes of the meeting covering the VSA controversy and the pending legislation that would affect its use in the state of Texas. Hendricks said that VSA technology is not reliable and should be eschewed in favor of current polygraph technology.

“Voice Stress Analysis (VSA) is only right about 48 percent of the time,” Hendricks said. “That’s less than fifty-fifty. Thirty-two different reliability studies since 1982, that individually range from 90 percent to 100 percent in accuracy and reliability, indicate that polygraph is the way to go instead of VSA. When all those figures are combined, in reality, what the figures show is that there is less than a two percent possibility of error with polygraph use. Compare that to the accuracy figures on VSA and it proves that VSA is not reliable and that polygraph is. If VSA or CVSA worked, we’d be first in line to use it.”

Hendricks also shared his views on the identical bills House Bill 817 (HB 817) and Senate Bill 1221 (SB 1221) that are currently being considered by the Texas Legislature.

HB 817 is a bill involving VSA that was filed on Jan. 22, 2001, by District 61 state Rep. Phil King of Weatherford. It was still pending in committee at the time of the NHCCJA meeting on April 3.

SB 1221 was filed on March 7, 2001, by District 15 state Sen. John Whitmire of Houston. At the Senate Committee on Criminal Justice’s hearing on April 4, it was also left pending in committee following testimony from both the bill’s advocates and from its opponents (including Hendricks, who testified against SB 1221 on behalf of the Humble Police Department).

HB 817 and its companion bill, SB 1221, relate to the use of a computerized voice stress analyzer by a licensed peace officer during a criminal investigation. Briefly, Hendricks listed some of the components of the proposed legislation:

A licensed peace officer who is a certified voice stress examiner is not required to be licensed under this chapter to use a computerized voice stress analyzer during a criminal investigation.

The certification to use a voice stress analyzer must be made by the company who manufactured the voice stress analyzer; or the governmental entity who appointed or employs the peace officer.

The act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution.

If the act does not receive the vote necessary for immediate effect, the act takes effect September 1, 2001.

Hendricks strongly opposes the bill and asked those in attendance to contact their state representatives and senators to voice their opposition to it.

Polygraphers are quick to point out the shortcomings of the competing pseudoscience of “Computerized Voice Stress Analysis” (CVSA). But polygraphy, like CVSA, has not been shown by peer-reviewed research to work at better than chance levels in the field. The “research” Hendricks invokes to support his claim that “there is less than a two percent possibility of error with polygraph use” appears either in non-peer-reviewed trade journals or, where published in peer-reviewed scientific journals, involves laboratory experiments with paid volunteers who committed “mock” crimes and had little or nothing to lose in the event of a false positive outcome: motivational conditions that do not apply to the field. Moreover, such studies purporting to support the high validity of polygraphy fail to take into consideration the effect of polygraph countermeasures (such as those discussed in Chapter 4 of The Lie Behind the Lie Detector).