Examiner:

You say in part:

“…Yes, an examiner lies during the conduct of an interview.  Every investigator I have ever known or heard of, from law enforcement to insurance to private lies during the interview process.  The United States Supreme Court sanctioned this type of activity decades ago.  This is an appropriate and accepted aspect of law enforcement.  Its not like its any secret, I fail to understand why this is such a significant issue here…”

     You are to be congratulated for your candor and thanked for furthering these on-going discussions.  For the present, without much elaboration (I plan to start a new thread regarding polygraph “examiner” deception), I would like to simply characterize that which you describe as “…examiner lies during the conduct of an interview…” and list certain of those deceptions.  Deceptions for the average examiner would include (but not necessarily be limited to) intentional oversimplification, confuscation, misrepresentation, misstatement, exaggeration, and known false statement.  Amongst the areas and activities that such deceptions will occur within a given polygraph exam and on a continual basis are the following:

(1)      A discussion of the autonomic nervous system, its anatomy and physiology, its role in the conduct of a polygraph examination, and the examiner’s background as it supports his pontifications regarding said subjects.  In general, an examiner has no or little educational background that would qualify him to lead such a discussion and his discussion contains the likely error that gross oversimplification often leads to. 

(2)      The discussion, conduct of, and post-test explanations of the “stim” test, more recently referred to as an “acquaintance” test. 

 
(3)      Examiner representations about the function of irrelevant questions in a control question test (CQT) polygraph exam.

(4)      Examiner representations about the function of control questions and their relationship to relevant questions in a CQT exam. 

 
(5)      Examiner representations about any recognized validity of the CQT (or other exam formats) in a screening application and about what conclusions can reasonably be drawn from the exam at hand, i.e. the one principally of concern to the examinee.

(6)      A host of misrepresentations that are made as “themes” and spun to examinees during a post-test interrogation.


(7)      The notion that polygraphy merits consideration as a scientific discipline, forensic psychophysiology or other…

This listing is not offered as complete (nor in any way are the surrounding thoughts fully developed) but merely as a starting point for the following commentary and recommendation.   You have stated that court opinions have been written which sanction the use of deception on the part of law enforcement officers.  Agreed.  I would suggest for your consideration the following points:

(1)      The deceptions cited in such decisions are generally isolated to specific actions/conversations occurring within specific investigations, not pandemic and not necessary to the day-to-day general and routine practices of law enforcement officers.

(2)      The decisions you might cite clearly refer to law enforcement officers.  On what basis would you extend this “license to lie” to civilian polygraph examiners conducting polygraph exams related to purely administrative, commercial, or domestic subjects or even to polygraphers hired by the accused in a criminal matter?

For a number of years I have called for the abolition of polygraph screening.  I have done so for a variety of reasons, the most important of which is what I believe to be the large scale victimization of people, many of whom have presented their relevant testimony on this web site and message board.  I am also offended by any negative impact that pseudoscience has on legitimate science and in particular on meaningful and legitimate forensic science as practiced in the crime laboratory.  

Although I hope my expanded ability to opine as a recently retired employee of the FBI will augment the voices of those already carrying the torch and lead to the aforementioned abolition, let me begin by suggesting an intermediate step.  Although I do not believe for a minute that all of the deception, lack of due process, etc. that accompanies  polygraph screening is justified (even when practiced by law enforcement and/or intelligence officers), for the sake of immediate conversation, let’s assume that it is.  If in fact it is proper practice and the realm of the law enforcement officer, then it resides within the realm of an advocate, i.e., those who would investigate and prosecute crime.  As such it is clearly not a role for a neutral party and in the realm of the amicus curiae expert of the forensic science community.  Aside from clearly falling within the role of an adversary and not a neutral forensic expert, I would further maintain, that in the numerous disciplines and sub-disciplines now recognized as being a part of forensic science (my background has largely revolved around the practices of forensic chemistry and toxicology), there is no accepted role for deception in any of these disciplines.  Far from being accepted, any such deception would likely be (and has been) the subject of administrative or criminal inquiry.  

Let me summarize what I have just said…the deceptions such as are used in polygraphy, if they are to be accepted, belong in the realm of advocates, like police interrogators and prosecutors and not with parties that are supposed to be neutral, like forensic laboratories.  Before we examine further whether polygraph screening merits continuation in any setting based on the complexities of validity, utility, and deterrence, let’s begin by removing it from that setting where it clearly has no role—the forensic crime laboratory and related professional scientific bodies…  Although there is a clear role for scientific inquiry into polygraph practices, there is no basis for polygraphy being a part of the forensic family or the forensic crime laboratory. 

New documents were filed in U.S. v. Doug Williams yesterday:

• United States' Proposed Jury Instructions (link fixed) dated 4 May 2015. Among other things, the prosecution wishes the judge to instruct the jury that "[a]n internal investigation conducted by the U.S. Department of Homeland Security into the possible commission of a federal offense" and "[a] pre-employment suitability determination and security background investigation conducted by U.S. Customs and Border Protection" qualify as official proceedings within the meaning of 18 U.S.C. § 1512(b) (Witness Tampering).
   
• United States' Requested Voire Dire Questions dated 4 May 2015. The prosecution wishes to identify (and presumably eliminate) any potential jurors who have taken a polygraph "test" before, or who have a family member who has done so, or who have concerns about the use of polygraph examinations.
   
• Trial Brief of United States dated 4 May 2015. Prosecution seeks to exclude any evidence or argument regarding the reliability of polygraph examinations, entrapment, or the defendant's prior good acts or lack of a criminal record.

This is it. GEORGE MASCHKE, YOU ARE NEXT!!!