Speaking as a certified graduate of the Backster School of Lie Detection, a full member in good standing with the American Polygraph Association (APA), and as a candidate for president-elect for the APA, I find the following excerpt from the judge's ruling to be most chilling. 

Here it is:

She [FBI special agent Jennifer Sullivan] believes that her polygraphs are 100% accurate.

What, I wonder, is the rationale for SA Sullivan's thinking? Has she not read the NAS report on polygraph "testing"?

I took some notes while reading the hearing transcripts that I'll share here:

Day 1

p. 9: Defense counsel raises concern about FBI's use of secret polygraph methodology.

p. 81: SA Jennifer Sullivan testifies: "FBI policy is not allowing us right now to do any pre-test recording or in-test recording during the polygraph."

p. 99: FBI pays "incentive awards" to polygraphers.

p. 104: Asked "So in your mind, your polygraphs, at least, are 100 percent accurate?" SA Sullivan replies "I feel like they are."

p. 143-144: SA Sullivan walks back the 100% accuracy assessment somewhat:

Quote:


p. 148: SA Sullivan doesn't tell suspects that there will be a post-test interrogation if they fail.

p. 178: The defendant (Jamaico Tennison) said during his recorded confession that SA Sullivan had promised him (during the earlier, unrecorded post-test interrogation) that he wouldn't go to jail.

pp. 179-180: Citation of an earlier ruling by Judge M. Christina Armijo (the judge in the present case) in U.S. v. Bundy: "But if the United States fails to record interrogations, it must bear the consequence in cases such as at present, where the actual words employed by the participants, their tone of voice, and their body language are necessary factors in the Court's voluntariness analysis."

pp. 180-181: FBI policy prohibits pre-test and in-test recording. At examiner's discretion, post-test interrogation can be recorded.

Day 2

p. 34: FBI Supervisory Special Agent and polygraph examiner Chase Foster states that the possibility of mental countermeasures "should exhibit itself in abnormal physiology that a trained examiner would detect." (See lines 13-20.)

p. 50: SA Foster teaches that "every examiner must have absolute confidence in his results."

p. 60: On 20 November 2015, a new FBI polygraph "Policy Implementation Guideline" was issued to replace the FBI's polygraph examiner manual.

p. 103: SA Foster claims to be able to detect mental countermeasures.

p. 127: Regarding the policy of not recording polygraph interrogations, SA Foster states "... our fear was that our pre-test and in-test would end up on the Internet."

p. 134: During Charles Honts' tenure at DoDPI, CIA polygraphers weren't trained there.

p. 139, l. 14: Honts says heart rate not of interest.

p. 159: Honts testifies: "And if you look at the MGQT, the specificity values are extremely low. Averaged across all the studies I could find, the specificity values for the MGQT were about 35 percent. So roughly one in three actually innocent people passes the MGQT."

Indeed, a time-honored adage in polygraph examiner education is "trust your charts."

Doug Williams has an insightful commentary regarding Judge Armijo's order in U.S. v. Tennison:

https://antipolygraph.org/blog/2016/06/26/federal-judge-throws-out-fbi-post-poly...

To follow up on the Jamaico Tennison case, the prosecution proceeded without Tennison's post-polygraph confession to the FBI, which was thrown out because of questions about its voluntariness. The trial was held from 12-14 October 2016 and ended with a hung jury and the judge declaring a mistrial.

Subsequently, on 31 October 2016, the prosecution filed a motion to dismiss the indictment without prejudice. Judge M. Christina Armijo granted the motion the same day. The "without prejudice" clause means that in principle, the prosecution could refile charges, but in practice, it is highly unlikely to happen.