In a recently decided Ohio sexual battery case, a judge made the unusual decision of allowing polygraph results into evidence without the agreement (stipulation) of both prosecution and defense. In a pretrial decision in
Ohio v. Sharma (Case No. CR 06-09-3248), Summit County Common Pleas Judge Judy Hunter
admitted three polygraph examinations proffered by the defense over the objection of the prosecution. The trial is now over. The defendant, Sahil Sharma of New York City, waived his right to a jury trial, and according to a press account, Judge Hunter acquitted him at least in part based upon the polygraph results.
AntiPolygraph.org has obtained transcripts of the pre-trial testimony of the three polygraph examiners who polygraphed the accused in this case: William D. Evans, Steven Stechschulte, and Louis Irving Rovner. Volume I of the testimony (13.1 mb) contains the testimony of Evans and Stechschulte, and Volume II (14.5 mb) contains Rovner's testimony:
https://antipolygraph.org/litigation/sharma/sharma-polygraph-testimony-02-04-200... https://antipolygraph.org/litigation/sharma/sharma-polygraph-testimony-02-04-200... In addition, a video recording of Rovner's polygraph examination of Sharma was presented as evidence, and it was played in open court during the trial. During the polygraph examination, Rovner discussed AntiPolygraph.org and slandered me personally (as will be discussed among other things below). AntiPolygraph.org has obtained a copy of the video recording, which may now be viewed here:
https://antipolygraph.org/video/sharma-polygraph.mp4 The following are my observations on the polygraph examination conducted by Rovner and the pre-trial polygraph testimony. It is hoped that this may be of some use to others when confronting polygraph "evidence" before a court of law or equity.
The Polygraph Examination Rovner was not "blind" as to the results of Sharma's two previous polygraph examinations, which he passed. While this is not an unusual circumstance, such foreknowledge could have shaped his expectations and thus influenced the outcome of the examination.
Without asking Sharma whether he had ever researched polygraphy or visited
AntiPolygraph.org, Rovner mentions the website and disparages me personally in an attempt to discourage the use of countermeasures (at about 00:05:20):
Quote:Rovner: AntiPolygraph.org is run by a guy named George Maschke, and he lives in The Netherlands, and he lives there for a good reason, uh, he applied -- he was living in L.A. actually and he applied for a job with the FBI, and he failed his pre-employment polygraph test with the FBI, and he specifically failed the counterintelligence section.
Sharma: Okay.
Rovner: Uh, they wouldn't give him a job. And of course, he's sitting there saying "Uh-oh, guess what part of this test I failed?" All of the sudden the next thing you know he's in The Netherlands who doesn't have an extradition agreement with us. And he's just, guess who his business partner is? Iran!
Sharma: Wow!
Rovner: Well, so he's made it his life's work now to try to defeat or try to weaken as much as he can the FBI and the CIA and the NSA, and we can all speculate as to why that is. It's fairly obvious. It's not just he feels bad.
Sharma (nodding in agreement): Yeah.
The foregoing attempt to paint me as a fugitive from justice and disloyal subversive is fraught with error:
1) While I did fail the counterintelligence portion of my 1995 FBI pre-employment polygraph examination (despite answering all questions truthfully), no investigation was conducted as a result, and I was never charged with any crime (nor did I commit any!);
2) The Netherlands
does in fact have an extradition treaty with the United States (TIAS 10733);
3) I came to work in The Netherlands
two years after my FBI polygraph (not "all of a sudden");
4) I am not a "business partner" of Iran;
5) Far from attempting to weaken the United States Government, AntiPolygraph.org strives to make it more just and efficient, working to expose and end waste, fraud, and abuse associated with the use of lie detectors, and to end misplaced governmental reliance on the pseudoscience of polygraphy. For background information on the experience that led me to co-found AntiPolygraph.org, see my public statement,
"Too Hot of a Potato: A Citizen-Soldier's Encounter with the Polygraph." I have also spoken about my polygraph experience
on CBS 60 Minutes II as part of a story on polygraph screening. The interview was conducted in New York City. Somehow, I was not arrested upon arrival at JFK airport.
In addition, Rovner accuses me of sending him a computer virus (at 00:08:49):
Quote:Rovner: Maschke actually sent me one, sent me an e-mail that brought down my computer -- a virus -- yeah, lovely person.
This is untrue. I have sent Dr. Rovner only one e-mail message (challenging him to publicly defend dubious claims he made in a press release). That message (attached as
Rovner-25-10-2004.txt) -- to which Rovner never replied -- contained no virus. My challenge to him is also available on this message board
here.
Note that while Rovner dismisses AntiPolygraph.org as "bogus" in speaking with Sharma, he contradicts this claim at p. 180, ll. 5-12 of the pre-trial hearing transcript:
Quote:And in it [sic] the owner of that Web site's name is George Maschke. He has provided a sophisticated and accurate account of what goes on in a polygraph test, essentially what I did in my research, but his is so thorough and complete it's just breathtaking how good and accurate the information is.
While Rovner in his testimony pooh-poohed the possibility of polygraph countermeasures, he was concerned enough to at least use a (rather simplistic) counter-countermeasure technique in his examination of Sharma. At about 00:39:00, he reviews the irrelevant questions that he is going to ask, but he falsely calls them "control" or "comparison" questions in explaining them to Sharma. Rovner called the true "control" questions "character questions" when introducing them. This deception is intended to mislead an examinee who plans on using countermeasures into mistakenly producing reactions to the irrelevant questions rather than the "control" questions. I would not expect a law student (such as the examinee in this case) who planned on using countermeasures and had done his homework to be fooled by this.
Rovner did do one thing that is controversial in polygraph circles and that would tend to increase the likelihood that Sharma would pass: between chart collections (question series), he reviewed the "control" questions (but not the relevant questions, except briefly, in passing). This would predictably tend to sensitize the subject to the "control" questions, increasing the likelihood of a reaction to them, and hence the likelihood that the examinee would pass. This may be observed at about 01:36:00 (after the 1st chart collection), at about 01:48:00 (after the 2nd chart collection), and again after the 3rd chart collection, at about 02:01:00 (this last time, Rovner does make reference to the relevant questions about Sharma's accuser, Michelle Sacia, but he dismisses them with the leading question, "The ones about Michelle are OK?" Then he goes on to ask about the "control" questions in more detail).
The "Silent Answer Test" administered for the 4th question series is sometimes used when an examiner suspects countermeasures. It is apparently intended to catch the examinee off guard. This technique is mentioned at p. 157 of
The Lie Behind the Lie Detector (4th edition) and is explained more fully in a citation provided here:
https://antipolygraph.org/cgi-bin/forums/YaBB.pl?num=1064482960 The Hearing Transcript p. 13, l. 3: "the State had no input." Indeed it didn't! And had the defendant not passed any of his proffered polygraphs, the results would not have been presented to the court, and the privileged results, indeed the mere fact that such examinations had been administered, would be unknown both to the State and the court. Indeed, the defendant may have failed polygraph examinations unbeknownst to either.
A rhetorical question: Should the State have been entitled to subject the defendant to polygraph tests by three examiners of its own choosing?
p. 20: Judge refused to separate witnesses, but they had a vested interest in not contradicting each other.
p. 30 ff.: A relatively minor point: the sequence of events in a polygraph examination as told by Evans differs from that administered by Rovner. Evans conducts the "stimulation test" before the question review. This is just one small example of the lack of standardization in polygraph "testing."
p. 43, l. 18: Evans refers to "relevant tests." This is a misuse of nomenclature. There is no such thing. He is speaking of what are commonly called "chart collections."
p. 44, l. 17: Why two separate sittings? In order to obtain the desired result?
p. 63, l. 14: Anyone can buy a polygraph instrument on eBay and hang out a shingle in the state of Ohio (or California).
p. 114, l. 24: The relevant question, "While Michelle was sleeping, did you put your finger into her vagina?" But it appears from press reports that such a thing was not alleged by the defendant's accuser.
p. 136, l. 19: To the best of my knowledge, Louis Rovner has never had a research paper on polygraphy published in any peer-reviewed scientific journal.
p. 138, l. 6: "And you are a certified polygrapher?" As Rovner later makes clear, California has no licensing process for polygraph operators. Rovner's only "certification" comes from polygraph trade organizations.
Note: Throughout the transcript, "psychopsychology" should read "psychophysiology."
p. 145, ll. 5-11: Regarding "90 years' worth of practice..." cf. the National Academy of Sciences report's conclusions (at pp. 212-13, emphasis in the original):
Quote:Polygraph Accuracy Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. The physiological responses measured by the polygraph are not uniquely related to deception. That is, the responses measured by the polygraph do not all reflect a single underlying process: a variety of psychological and physiological processes, including some that can be consciously controlled, can affect polygraph measures and test results. Moreover, most polygraph testing procedures allow for uncontrolled variation in test administration (e.g., creation of the emotional climate, selecting questions) that can be expected to result in variations in accuracy and that limit the level of accuracy that can be consistently achieved.
Theoretical Basis The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are triggered in response to relevant or comparison questions. We have not found any serious effort at construct validation of polygraph testing.
Research Progress Research on the polygraph has not progressed over time in the manner of a typical scientific field. It has not accumulated knowledge or strengthened its scientific underpinnings in any significant manner. Polygraph research has proceeded in relative isolation from related fields of basic science and has benefited little from conceptual, theoretical, and technological advances in those fields that are relevant to the psychophysiological detection of deception.
Future Potential The inherent ambiguity of the physiological measures used in the polygraph suggest that further investments in improving polygraph technique and interpretation will bring only modest improvements in accuracy.
p. 155, ll. 5-6: "it's not rocket science." Indeed it isn't. Cf. the late eminent psychophysiologist David T. Lykken's (1928-2006) observation (in
A Tremor in the Blood: Uses and Abuses of the Lie Detector, 2nd edition, Plenum Trade, 1998, at p. xvi): "...the theory and methods of polygraphic lie detection are not rocket science, indeed, they are not science at all."
p. 156, ll. 5-6: Rovner inaccurately describes the American Polygraph Association journal
Polygraph as a scientific journal. It's not! It's a trade journal. Rovner must certainly know better. His study was never published in a peer-reviewed scientific journal.
p. 160, ll. 2-8: Rovner states that field accuracy rates are a little higher than in lab studies. This does not hold true for the limited peer-reviewed field research. See tables from the Handbook of Polygraph Testing cited here:
https://antipolygraph.org/cgi-bin/forums/YaBB.pl?num=1178256975 See also Dr. Alan P. Zelicoff's recent independent article, "Positive and Negative Predictive Values of Polygraphs," which applies statistical methods to the data in these tables:
https://antipolygraph.org/articles/article-051.pdf p. 180: Rovner testifies about an unpublished study by Charles R. Honts; because the article is not published, claims about it cannot be critically examined.
p. 180, ll. 5-12: Rovner contradicts the claim he made to Sharma during the polygraph examination that the information on AntiPolygraph.org is "bogus."
pp. 183-84: For a more recent and authoritative article regarding the general acceptance of polygraphy, see Iacono, William G. and David T. Lykken. (1997) "The Validity of the Lie Detector: Two Surveys of Scientific Opinion,"
Journal of Applied Psychology, Vol. 82 (1997), No. 3, pp. 426-33. The findings of this paper are discussed in Chapter 1 of
The Lie Behind the Lie Detector. p. 185, ll. 12-18: Rovner mischaracterizes the findings of the National Academy of Sciences (lab accuracy 86%; field research 89%). The NAS didn't endorse any such finding. Rovner's fellow University of Utah-produced polygraph Ph.D., Charles R. Honts (the foremost polygraph advocate in academia), was discredited by a federal judge for making similarly misleading claims about the findings of the NAS:
https://antipolygraph.org/cgi-bin/forums/YaBB.pl?num=1163535548 p. 186, ll. 4-5: Rovner states the NAS panel "said this has a substantially high rate of accuracy..." This is misleading, and I think deliberately so. Refer back to the NAS report conclusions cited earlier, and see also the paragraphs on "Evidence of Polygraph Accuracy" at pp. 213-14 of the NAS report. In particular, note the following at p. 214:
Quote:Overestimation For the reasons cited, we believe that estimates of polygraph accuracy from existing research overestimate accuracy in actual practice, even for specific-incident investigations. The evidence is insufficient to allow a quantititive estimate of the size of the overestimate.
The NAS certainly does not endorse the "86" or "89" percent accuracy findings as averred by Rovner. p. 189, ll. 14-18: Note that Donald Krapohl is not a scientist.
p. 201, ll. 1-7: The NAS report provides a different answer to the question asked about the theoretical basis of polygraphy than Rovner does. Again, at p. 213 it concludes:
Quote:Theoretical Basis The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are triggered in response to relevant or comparison questions. We have not found any serious effort at construct validation of polygraph testing.
p. 205: Regarding the "friendly polygrapher hypothesis," note again that undesirable results will never be willingly submitted in court.
p. 241, ll. 11-15: "...different surgeons approach the same operation differently...but tend to get the same results." But the polygraph is supposed to be a scientific test, and tests should be standardized. Polygraphy is not! As polygraph critic Dr. Alan P. Zelicoff, M.D. has observed, "If we had medical tests that had the same failure rate as a polygraph, then physicians that use those tests would be convicted of malpractice."
p. 245, ll. 1-6: The show the judge is thinking of is a 60 Minutes story that aired in 1986. The video is available on AntiPolygraph.org here:
https://antipolygraph.org/blog/?p=110 p. 246, l. 15: One might ask for peer-reviewed field studies that support Rovner's contention that polygraph testing has become more reliable since the late 1970s. Peer-reviewed field studies are few and they don't support such a conlusion. See Lykken's
A Tremor in the Blood, 2nd ed., pp. 133-35 for a treatment of the very limited peer-reviewed field research on polygraph accuracy.
p. 247: Yes, computerized polygraphs allow for more convenient data manipulation and storage, but not for more accurate results. The underlying procedure (Control Question Test polygraphy) has not changed in any significant way since the late 1970s.
p. 251, l. 15: Migdal describes Rovner as a researcher, but again, he has not published any research articles on polygraph related topics in any peer-reviewed scientific journals.
p. 268, ll. 20-22: Migdal: "They called no experts to tell you otherwise, anybody who disagrees with Rovner, because they can't." Not true. There are expert witnesses prepared to contradict Rovner, and to tear his testimony to shreds.
Contact AntiPolygraph.org for references.
