posted 05-18-2007 02:32 PM            

An examiner has a DOC contract and does maintenance tests on a DOC sex offender for DOC.

Awhile later, another examiner comes along who also has a DOC contract etc. He does a maintenance test on the same sex offender. The test results with DOC moving to revoke the offender and a hearing in Superior Court is scheduled.

The Defense Attorney then has the first examiner do a test for the defense prior to the hearing. The results of each test are not really important, since the defense exam asked different questions, essentially making them two seperate exams.

Now for my question;

If you have a DOC contract and test offenders for DOC, is it ethical to then cross the aisle and do tests for the defense in a DOC jurisditional case. To me it seems like a conflict of interest because you've tested the guy for DOC and now you are working on the otherside.

posted 05-18-2007 04:29 PM            

For the sake of argument, I'd like to hear more about what exactly is wrong with that scenario, as that is what ethical considerations are really about.

While we are at it we probably ought to clarify what makes something right and wrong. Common measuring-sticks for right and wrong are things like harm to an individual or the community, violation of a person's protected or unalienable human rights, or breach of some contract?

Which occurred here?

The police examiner example is clearly different, because police officers have sworn duties - their are clear rights issues involved.

Are we saying the examiner cannot conduct the test properly, or that the test results are invalid for some other reason. Are we suggesting that we are such flakey and unethical professional that we engage in "who pays the piper" type test results? If so, have you ever known a profession so quick to criticize the work of its other professional membership? We really must outgrow this - it makes us look like charlatans.

The correct answer to this type of dilemma, in other professions, is some form of protocol for gaining more information about the first examination before proceeding. If a doctor is gravely concerned about the results or indications of an x-ray or blood test, they first call the lab, and find out if everything went OK, anything unusual about the production. Then they show the x-ray or result to another professional. Sometimes they proceed to another test.

We participate in this madness when we agree to jump right in and retest the guy, just for the ka-ching, and then we jump right in an indict the work of professionals whose actions or work we don't like, or whose marketing competes with our own. Again, it only fuels our detractors.

There may be something amiss in this example, but I would suggest that it might be more of an issue of professional protocol than ethics.

r

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)

posted 05-18-2007 04:52 PM            

As a police officer, I don't do private tests for attorneys. However, when one has a poor (in more ways than one) client who has no money for a private exam, I'm often called by the prosecutor to do the test. Both the prosecutor and the defense attorney are sitting in the same room watching over video monitor. Who am I working for? Is it my job to "get the guy" no matter what? I don't work for either one of them. I'm simply tasked with running a polygraph on an issue, the results of which will assist them in their negotiations.

I think I've said this before, but most of the tests I do in that situation result in an NDI finding. (It's only when an attorney actually believes his client that he's willing to give me a try, and the attorney is usually right in those cases.) If my interest is the truth, then why does it matter who's asking for the test. Does the truth change based on who asks first?

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The Defense Attorney then has the first examiner do a test for the defense prior to the hearing. The results of each test are not really important, since the defense exam asked different questions, essentially making them two seperate exams.

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If the tests are different, then why does it matter that the same person did the test?

With that said, there are certainly going to be times when we should be careful whom we test. For example, we know that original examiners achieve higher accuracy rates than blind scorers, so there seems to be at least a slight tendency to look at something beyond the data. Therefore, it may not be the wisest move for an examiner to test both parties on opposite sides of a paired testing situation. There are times that may not be prudent, and the ethical thing to do would be to warn the parties of this issue up front and then let them decide from there. QCing might also be a means of maintaining the integrity of the process. That highlights the need for rules that Ray referred to in his post. (I think.)

posted 05-18-2007 05:08 PM            

Again the questions on the first two exams were different and that really is not the issue in my opinion.

Recently I received a referral from a private examiner because he had already tested the victim. He was being asked to test the suspect and felt he should not proceed because it would be a conflict due to the earlier exam.

Maybe it's my LE background, but playing both sides of the table just seems like a problem. The examiner does a DOC exam goes through the offenders file, learns things, then swithches sides and takes that inside information and does a test for the defense?

posted 05-18-2007 06:01 PM            

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Maybe it's my LE background, but playing both sides of the table just seems like a problem. The examiner does a DOC exam goes through the offenders file, learns things, then swithches sides and takes that inside information and does a test for the defense?

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Maybe I'm missing something here, but what "inside information" did the examiner have, and how was that information improperly used? Why wouldn't a defense attorney have access to info that State has regarding his client? I've never heard of such a thing (except when the State does the unethical and withholds such info). Perhaps the attorney wanted a person with that info so he wouldn't have to pay somebody else for extra time to get up to speed on his client.

When it comes to a polygraph, I would think the more info the examiner has, the better. Why is it unethical to have any info about the examinee? As a LEO, we have all kinds of info about our examinees - and most isn't the type of stuff you'd want in an obituary. Yet, with all that negative info, we still run proper tests and find those people truthful.

All parties knew all the examiner had done a prior test prior to this test. If the examinee (whose info being divulged concerns you) didn't care and the examinee's attorney didn't care, why then should we as polygraph examiners say it's wrong?

How is he "playing two sides of the table" when he conducted two different tests? If he conducted a test for the DOC and got one result and then tested the person for an attorney (opposing DOC) and got different results on the same test, then I'd be concerned.

posted 05-18-2007 07:04 PM            

Seems it's not all that cut and dried, much like polygraph in general. No wonder it's validity is always questioned.

This other examiner was being very self serving in this entire episode for ulterior motives, but I was hoping to leave that out.

Like I said before, I guess a whole new area has been opened up for me and I will just test whoever on whichever side of a case. Thanks for the input, I can see there are many varying attitudes.

posted 05-18-2007 07:12 PM            

I certainly think the point some people are missing is the contract with DOC, DOC jurisdiction and doing DOC work for and then against. It seems clear to me.

posted 05-18-2007 07:24 PM            

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the assumption that the state would withhold or lie is an interesting comment, of course, only the state would be dishonest

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Where was there an assumption? Have you not been watching the news for the past year? What did Nifong do? The State withheld info. And, in almost 20 years of police work, that's the only incident I can think of off the top of my head. You implied that the defense attorney did wrong by hiring a polygraph examiner who shouldn't have conducted the test. If the polygraph examiner was working for the attorney, as you stated, and the examiner had access to info the attorney, in your opinion, shouldn't have had, then file a complaint with the bar in your area. They'll tell you if an ethics violation occurred.

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Seems it's not all that cut and dried, much like polygraph in general. No wonder it's validity is always questioned.

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What does that mean? What does an ethical question have to do with the validity of polygraph? I don't get it.

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This other examiner was being very self serving in this entire episode for ulterior motives, but I was hoping to leave that out.

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Those are conclusions, not facts, so I have no idea if they are correct. Those issues you have withheld may be the crux of an ethical matter.

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Like I said before, I guess a whole new area has been opened up for me and I will just test whoever on whichever side of a case.

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Test whomever you want. Just be ethical.

posted 05-18-2007 07:28 PM            

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I certainly think the point some people are missing is the contract with DOC, DOC jurisdiction and doing DOC work for and then against. It seems clear to me.

Prior to a case going to trial, I can see an examiner doing work for the defense, but once the case or subject is under DOC supervison, your contract has chosen your side. But, of course, the defense work pays better.

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posted 05-18-2007 07:44 PM         

I have a personal policy of NEVER going against the DOC. Sure, I've protested issues, but I will never shank my largest client.

[This message has been edited by stat (edited 05-18-2007).]

posted 05-18-2007 08:55 PM            

this conversation is exactly why the court reps felt that maintaining "standards" of practice and ethical application of our profession was so called, "noble." I was actually insulted by that statement from a professional point of view. But, I also understand the rationalization of ethics by those weak enough to misapply a situation, such as that presented, leads those to think in those terms.

History: I have simutaneouly been a private and (non-sworn) police examiner. While we assume the "state" withholds info as indicated in some of the aforementioned statements,I will tell you from experience that defense attorney's do the same in order to manipulate the examiner to produce truthful results. And, again from business experience; ya gotta remember, "Ho's don't care who they $cr8w; as long as they get paid..."

It is a simple premise. When one examiner has a contract to represent the DOC, then any additional or outside testing should never be in opposition to his contractual agreement. Some on this board believes this is not a conflict. Hence, my introductory statement.

I will say it as I see it. GREED effects our decisionmaking. As a professional issue, it is not about sides, but the truth. BUT! From experience and observation, it is the appearance of inappropriateness, conflict of interest and/or simply "whoring" ourselves, which, as indicated on this board, will continue to keep our profession, simply a trade in the eyes of those we interact with.

best to all,

Jim

posted 05-18-2007 09:50 PM            

I'm not implying anything about the defense attorney, the examiner is the one that has to make the ethical choices when approached on any case. Attorney's just want what they want. As you well know defense attorney's frequently try to mold the questions before hand.

Of course, there is always someone doing something wrong on one side or another.

Barry C.- your statement(taken out of the paragraph "(except when the State does the unethical and withholds such info). Is where the assumption came from.

I would say from these posts that "it's not all that cut and dried." Some think it's a problem, some seem to lend to the opinion that examiners are immune to being influenced and can maintain strict neutrality.

"What does that mean? What does an ethical question have to do with the validity of polygraph? I don't get it."

If the ones giving the exams are unethical then how valid can the test be. Am I going to let Tony Soprano be a judge?

"Those are conclusions, not facts, so I have no idea if they are correct. Those issues you have withheld may be the crux of an ethical matter."

I thought I laid the facts out pretty well, maybe not, I did not want to make this personal. The relationship I have with this examiner, in my opinion is not the issue, but his actions are.

The DPA did not know he had done a test on the subject for DOC prior to. And the examiner did not admit to it until confronted with the information from the PO. But, he'd already done the test.

posted 05-18-2007 10:00 PM            

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I have a question. Does the examiner work for either party or are they providing a service, as DNA laboratories provide for both the defense and prosecution?

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That's partly where I was going. Providing a test is providing a test.

Now if we want the polygraph to be a test, we have to remember that tests are expected to be objective science. I don't disagree with the content of stat's comments about subjectivity – many tests have components of subjectivity. But I do disagree with abandoning hope for objectivity – for that would mean that all we really do is talk to people and give our personal opinion. We could all be artitists, like police sketch artists. There work is certainly useful and helpful. Imagine this: “would you be willing to meet with our polygraph artist, so that we can get his opinion?” Yeah, right. Polygraph has to be an objective profession. Good science should be good science regardless of who pays. Now if we don't trust some professionals, that is either do to our own trust issues, or a serious problem in the profession. The answer to a personal trust problem is therapy, and the and answer to the profession's problem in standards of practice, standards of oversight – including gaining a 2nd opinion when that would be helpful, and standards for recourse.

Sheridanpolygraph wrote:

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There is some info in a file that would not be for a defense attorney, perhaps victim info?

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In many jurisdictions there are fairly clear and assertive protections against the presence of identifying info about the victim in any file other than the victim's file. This would be a different type of ethical violation. Perhaps you have another example.

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Like I said before, I guess a whole new area has been opened up for me and I will just test whoever on whichever side of a case. Thanks for the input, I can see there are many varying attitudes.

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Stat wrote:
[quote]I have a personal policy of NEVER going against the DOC. Sure, I've protested issues, but I will never shank my largest client.

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Smart.

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This other examiner was being very self serving in this entire episode for ulterior motives, but I was hoping to leave that out.

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It might clarify the ethical concern to have more information on this.

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I certainly think the point some people are missing is the contract with DOC, DOC jurisdiction and doing DOC work for and then against. It seems clear to me.

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I certainly got your point. However, you might need to be clearer. Was the other examiner a DOC employee, or a independent contractor who is also free to independently contract with any other legitimate purchaser of polygraph services. Or is that prohibited by the DOC contract. I agree contract violations would be a form of ethical violation.

In the case of a prosecutor who once defended a client, that could quite easily result in a compromise of a persons rights. A prosecutors ethical role is to advocate for the law, for the community, and for the victims of crime. A defender's role is to advocate for the legal rights of the accused. A polygraph examiner's role is to seek accurate information.

What compromise of rights occurs with the polygraph example?

Try a medical analogy. Imagine we have a prison dentist who is an expert in reconstruction and bridgework, but then goes in to private practice, leaving the prison inmates to the care of a neophyte dentist who mangles some-bridgework, resulting in a law-suit and a referral a legal advocate to the previous dentist who is now in private practice. What's wrong with that?

Try an investigator's example. An investigator can do a competent job investigating a subject for a lowa law enforcement agency. Then take another role some time later and investigate the same subject for a prosecutor's office. Would that be unethical? Now, if the investigator is later semi-retired and works part time for attorneys (happens a lot), would it be unethical to investigate the same subject? If so, why?

If its an issue of the requirements of a contract (ie., can't work for attorneys) - that's a contract issue. Most contracts of this type don't specify whom else a professional can or cannot work for (except maybe giving trade secrets to employers), unless the professional is being hired as an employee.

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Maybe it's my LE background, but playing both sides of the table just seems like a problem. The examiner does a DOC exam goes through the offenders file, learns things, then swithches sides and takes that inside information and does a test for the defense?

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I would draw your attention to the other thread, and my comment about us being rather steeped in adversarial models. Also, I'm not sure I agree that it is our job as examiners to take sides. I may be that we are more like referees. Can we make fair and objective calls, regardless of whom are the adversarial players.

It is in part a symptom of our efforts to maintain the “black box” of polygraphy, that consumers know they can get different results from different examiners. What we lack is an defined or undestood protocol for how to proceed with concerning test results.

Stat once wrote:

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put two examiners in a room and what have you got – an argument.

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sackett wrote:

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this conversation is exactly why the court reps felt that maintaining "standards" of practice and ethical application of our profession was so called, "noble." I was actually insulted by that statement from a professional point of view.

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I thought that too.

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When one examiner has a contract to represent the DOC, then any additional or outside testing should never be in opposition to his contractual agreement. Some on this board believes this is not a conflict. Hence, my introductory statement.

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Again, does the contract prohibit doing objective work for others? Perhaps the DOC and the offender's attorney consulted and discussed the matter first. Sher' already hinted there is more to this story. Also, some contracts are not to “represent” but to provide and objective service.

I'm certainly not suggesting we all take our cue from Alcibides, and just switch sides for the fun of it. That would be unprofessional, and unethical, but I think we need more info on this particular matter. I have the impression the big problem here is a contractual one.

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I will say it as I see it. GREED effects our decisionmaking. As a professional issue, it is not about sides, but the truth. BUT! From experience and observation, it is the appearance of inappropriateness, conflict of interest and/or simply "whoring" ourselves, which, as indicated on this board, will continue to keep our profession, simply a trade in the eyes of those we interact with.

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I'll agree with that. But I would add that our often inability to concur as professionals is perhaps an equally massive problem.

sheridanpolygraph wrote:

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As far as my results three examiners agreed with my call one did not. My post-test admissions tend to lend validity to my result.

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That certainly speaks for itself.

The real answer to this dilemma is to remember that we examiners are not each other's adversaries, and provide expectations for engaging in professional resolution of situations and differences when they come up.

But its not always that simple. Here is a case which three reviewers agree with, that was later confirmed as false negative – I disagreed with the other reviewers and caught a whole raft of s#$%^ for saying so.

The offender confessed and is sentenced now, and this is all public record.
http://www.raymondnelson.us/qc/060623.html

Agencies certainly have QC programs. In the private practice world, we examiners get our shorts in a bunch real quick when someone offers to look over our shoulder. But any case that goes to court is likely to get QC'd by the opposing counsel's expert.

We will most likely (hopefully) never require a bureaucratic or programmatic overhead to review the work of every private examiner. But the lack of an understood protocol (not program) is sometimes a hinderance. Without an understood or defined protocol the adversarial legal minds on one side of the adversarial table accused the other sides expert of nit-picking a test in attempt to find fault with something (and there is always something), while the adversarial legal minds on the nit-picker's side of the adversarial table accuse the other sides expert of rubber-stamping the test.

In Colorado, we solved this problem by defining a protocol for QC, that is through and competent, and would make apparent any attempts to nit-pick or rubber stamp a test. So we step out of our adversarial postures and try to become more objective. Part of the beauty of a protocol, not program, is that is doesn't gratify the impulses of the drill sergeants and helicopter rescue pilots to micro-manage the work of independent professionals, creates no liability by excavating the cases and files of private practitioners, and sets the stage for professionals to engage in professional activities with each other.
The point is, our consumers want us to do objective work. Can we do that?

Peace,

r

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)

posted 05-18-2007 10:10 PM            

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The DPA did not know he had done a test on the subject for DOC prior to. And the examiner did not admit to it until confronted with the information from the PO. But, he'd already done the test.

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Doh!, we should have known the gotcha detail would be in the paul-harvey segment.

This is concerning.

When I was a therapist, I once had a client provide me the results of a secret or unknown polygraph - at the time of unsuccessful termination. I will never trust that examiner.

OK, its late on a friday and time for punch and cookies.

Take care everyone.

r

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)

posted 05-20-2007 11:04 PM            

I brought the DNA comparison up because I know that many law enforcement agencies contract a portion, if not all, of their DNA analysis out to private laboratories. These same laboratories perform DNA analysis for defense attorneys.

Objectivity to me is more than just numbers and science. In my book, objectivity is also practical equality.

posted 05-23-2007 10:44 AM            

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I surely am not looking to get into a debate of ethics, as I do not see the point of it. I have made it known what I think of this issue and that is simply right is right and wrong is wrong.

"If you have to ask, you already know the answer."

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What great simple wisdom. Thanks.

This scenario simply doesn't pass the ethical sniff-test - it stinks.

Its still valuable to debate though, and its still important to be mindful of what we mean when we use the words "ethics," "ethical," and "unethical." Mostly, what does it mean to say that something is unethical.

So

Ethics is the philosophical question of right and wrong, good or bad, is their such a thing as evil, or good.

Aside: there really are only five questions in all of philosophy and all of life.

In ethics we have three primary schools of thought - distilled from roughly 2400 years of documented thought. We commonly reference them with the people who did the most recent or memorable job teaching us a particular ethical vocabularty.

So, we have a system of utilitarian ethics - brought you by the likes of John Stuart Mill (john-boy) - and Bentham and others. Utilitarian ethics are familiar to many in the legal and criminal justice professions - because they tell us to weight the consequences of an action to all before deciding what is right. Utilitarian ethics tell us that it is ethical to have a court judge people as guilty, even though we know they might sometimes make imperfect judgments, and incarcerate dangerous persons in jails or prisons, even though we might sometimes incarcerate an innocent person. That is because those system mostly work correctly to benefit far more members of the community than they harm. Utilitarian ethics are not perfect, and can (have) been used to justify the ethics of institutions such a slavery (benefits a majority, at cost to a minority).

Then we have a system of ethics taught the notorious philosopher Emanuel Kant (manny) - sometimes called Deontological ethics, or Kantian ethics. Deontological ethics tell us that we have obligations to every individual, to not harm the person, treat fairly, help, and all the nice fine stuff. Kant would say that any action that harms anyone would be unethical. Kant would have us build no prisons, because of their potential for harm to some.

(So, in a bar-fight between john-boy and manny, john-boy would bring two friends, and manny would go pacifist and not fight.)

The difference between these two systems is essentially the difference between the legal/correctional/criminal justice systems and the mental health systems. One says our obligation is to the broader community, the other says our obligation is the patient.

In PCSOT, we sit at the point of tension between these two ethical paradigms. It will never be fully resolved - because neither is completely correct or completely incorrect. The answer is to appreciate the dialectical tension and remain thoughtful of our dilemma.

The third major system of ethical thought is sometimes referred to virtue ethics, and refers to the emphasis on ethical virtues, such as truthfulness, dependability, honesty, manners, trustworthiness, integrity, and all that boy-scout stuff. Discussion of ethical virtues can be traced all the way back to Aristotle, and Aristotelian ethics - though some of Aristotle seems to be fuzzy up the difference between ethics and aesthetics. A more modern version of virtue oriented or Aristotelian ethics can be seen in the discussion of Peacemaking ethics - though I think of a contemporary progeny off the top of my head right now. Peacemaking ethics is fundamental to the conversations around restorative justice and the work of Fay Honey-Knopp and others. Emphasis on ethical virtues and ethical behavior is the answer to the circular discussion between Utilitarian and Kantian ethics.

In the professions, we have a system of declarative ethics - in which we state things like "it shall be unethical to... [insert behavioral activity here]." Certainly, breaching contracts is also unethical.

I think a lot of us are uncomfortable with the scenario that started this discussion.

In terms of ethical systems of thought, I'm not sure how the subject was harmed (no problem with Manny's ethical system). I'm also not sure how the community was harmed (no problem with John-boy's ethics either).

It does seem like the other examiner was being secretive - and that cannot be argued as virtuous professional work.

I'm still wondering whether the contract stipulates against privileged and confidential work.

This is important to me right now, because we presently have some local policy discussion about whether we can or should prohibit privileged and confidential work on new crimes.

One example is a recent case in which a sex offender on probation has been taking polygraphs, and is then arrested and charged with a new alleged crime (independent of the polygraph) of stealing underwear from a neighbor. The PO requested a polygraph, and was advised not to interfere with the investigation. The investigators then endorsed the idea of a polygraph, and the accused/offender's attorney agreed as well. Everyone understood that it is the right of the accused to refuse to take the polygraph, or to take the polygraph as privileged and confidential attorney work-product. So a polygraph was arranged - with an examiner who had also tested the subject in a PCSOT program. Everyone also understood that if the (investigative/evidentiary) polygraph went well it would be QC'd - not because they don't trust the examiner, but because it assures more information about the test and the level of objectivity brought to the exam, and because it is the right thing to do. Those professionals also understood that if the exam didn't go well they would never see or hear of it again. They also understood that not hearing of the polygraph results is legally meaningless, though perhaps interesting to the investigator.

Is that situation unethical? If so, why? Also, is it the scenario itself (above) that stinks, or the level of secrecy and lack of communication that causes concern?

r

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)