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"Forced" to take the test: Are the results invalid?

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Author Topic: "Forced" to take the test: Are the results invalid?
Dan Mangan
Member
posted 04-16-2012 05:57 PM Click Here to See the Profile for Dan Mangan Edit/Delete Message
If an individual takes a polygraph under duress, are the results -- or the polygraph process -- invalid?

Two real-life scenarios I'm dealing with...

Number 1
Prison inmate serves 2+ years of a two-to-five for reckless conduct (plea deal). Gets transitioned to minimum security and is looking toward parole at the end of 2012. Suddenly he's informed that he has to take a polygraph test regarding sex charges that were nol prossed when the plea deal was executed. If he flunks, he goes back inside for 18 months of sexual
offender treatment. BTW, he is not a convicted sexual offender -- he's in on the reckless conduct charge. If he takes the test, he would be doing so under duress.

Number 2
Local cop is accused of tipping off a drug dealer prior to a raid. Said cop is ordered to take a polygraph or be terminated. State cop giving the test pulls out the standard consent form, Accused cop's lawyer throws a fit, saying his client is not there voluntarily, is under duress, etc. Local cop objects to the test, but knows he'll be fired if he refuses. State cop runs the test without the consent form being signed. Accused cop's lawyer claims there was a big pre-test screamfest over the consent issue. The audio recording went missing, of course. (No video.)

Do either of these scenarios compromise the polygraph process to the extent that the test is not valid?

[This message has been edited by Dan Mangan (edited 04-17-2012).]

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rnelson
Member
posted 04-18-2012 07:05 AM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message
Dan:

Another very interesting topic.

1.

It would make most sense, to me anyway, to maintain a circumspect attitude towards discussions of validity, and entertain only those arguments for which there is evidence to support that the issue actually affects the criterion accuracy of the test.

I don't think the issue of duress equates directly with validity - which I would take to mean criterion validity, or whether the test result is accurate.

One of the games that sex offenders play, as you have undoubtedly noticed, is that of imposing their interpretation and their world -view onto each situation to their own liking.

In this case, the offender seems to want you, or someone, to agree that you, or some examiner, is to complete the test against his will. Duress = coercion.

I got so tired of arguing and explaining the issue of "voluntary-ness" re polygraphs that I took the word "voluntary" off my consent form. Instead of reading "voluntarily agree to take a polygraph" (or something like that) , it now reads "agree to undergo polygraph testing with X who is a qualified examiner." (or something close to that).

Sex offenders have tried before to claim that they are coerced to take polygraphs, or that the test is not voluntary.

I think this is a trap to get us to agree that we are doing something wrong.

Fortunately the courts have agreed that they exam is voluntary even if required by probation - because probation is a privilege and not a right. The privilege of probation includes certain conditions.

What I do is very quickly - before the offender realizes how quickly - I am packing up and hustling the person to the door with an instruction to contact his PO or referring professional to explain that he does not want to undergo testing today. That I will not test anyone who does not want to be tested, and that all he has to do is explain to the PO/therapist/Judge/parole-board etc. that he does not wish to be tested.

Invariably, the offender will state for me that he wants to complete the test.

The point is that others (the PO/Judge/therapist/parole-board etc.) may be requiring the individual to undergo testing - but each of us examiners tests only those people who want to be tested.

The offenders want us to agree that we are the person imposing the duress or coercion.

We are NOT. Polygraph testing is a condition of their agreement with other professionals. They are free to re-negotiate the agreement. Of course the other professionals are free to re-think their ability to supervise someone effectively in the community.

Fortunately, living in the community is a privilege and not a right if one is a convicted felon, and we are not without options (prison, community corrections center, jail, half-way house, shared living arrangement, and of course prison). But that is between the offender and the other professionals. Our role is to conduct polygraph tests on those who agree to undergo testing.

The best strategy is to NOT agree that we are the source of the coercion. I think that would put us in an ethically, and perhaps, legally, compromised position.

Voluntariness at a polygraph test is between the examiner and the exainee - not between the examinee and the referring professionals. It is the word "voluntary" and the words "duress" and "coercion" that cause difficulty. When the offender says it is "not voluntary" and "under duress" and then we proceed they are attempting to set the stage for a subsequent argument and subsequent accusation that we (you) are to viewed as responsible or accountable for their situation.

I think you could just make him agree that he does want to complete the test with you (then end the discussion and proceed with the pretest and exam).

If we agree to play this game with them then every sex offender in the country will play the duress card. They could do the same with their probation restrictions (they are agreeing under duress to follow certain rules - only because they are coerced into doing so). One of those rules is to verify the credibility of their statements re rule compliance or known allegations.

2.

It seems that many departments have contractual requirements regarding polygraph testing as part of internal investigations. You didn't mention this, but perhaps you could clarify if this is the case.

I would say the same thing about he voluntariness of the exam. "voluntary" refers to the context between the examinee and the examiner - that is all. It means that the examiner is not going to force or coerce anyone to undergo testing. It does not mean that the examinee is not required to undergo testing as a condition of other agreements.

Also, working for the police is also a privilege and not a right. So, the individual is free to pursue life, liberty and happiness through other avenues of work.

The alleged screamfest and missing video is interesting.

Could it be that the attorney played the examiner into proceeding without consent and following an escalated discussion - with the goal of later leveraging the issue.

Video or audio recording seems to be a standard for QC in some jurisdictions and some agencies. It is so important that the APA requires recording for all evidentiary examinations and recommends it for all others. All PCSOT exams submitted for QC review are to be recorded. In some jurisdictions, all PCSOT exams are recorded. It seems though that some agency policies have been devised to manage exposure without recording and to ensure examination quality by reviewing every examination.

It would seem to be a procedural error to test without a signed agreement. Proceeding to test after an unresolved, uncorrected, or unmitigated statement of duress would seem unwise to me - as it primes the system with an excuse for a failed or unresolved exam.

Had the examinee asked to leave or terminate the exam, most examiners would certainly allow it. Also, it sounds as if the attorney was present to observe and advocate.

Why would the attorney allow the test if the individual wanted to not take the test and leave? Why would the examiner proceed to test someone who would not agree to be tested.

So, one could interpret a de-facto agreement to undergo testing, which is apparent in that the examinee seems to have remained present instead of simply leaving.

Sounds to me like there might be a bit of added drama? Did no both the examinee and attorney agreed to proceed with the testing?

Without a recording the validity of the examination (adequacy of the pretest discussion) cannot be verified. It may not be reasonable to reach an impulsive conclusion of "invalid," because we don't know that either. The cautious solution would be to take the position that without a recording all of the examination detail cannot be verified as adequate.

All of this is very interesting, and perhaps a little out of context.

Is there a Paul Harvey type "rest of the story?"


r


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


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Dan Mangan
Member
posted 04-18-2012 07:17 AM Click Here to See the Profile for Dan Mangan Edit/Delete Message
Thanks, Ray.

I'm literally on my way out the door, but...

In #2, the cop had to make this choice: Go through with the test or be fired on the spot.

In #1, I object to a de facto "trial by polygraph." If the inmate fails, he goes back inside for another 18 months. (Remember, the test would revolve around the sex charges that were dropped a few years ago.)

Dan

[This message has been edited by Dan Mangan (edited 04-18-2012).]

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rnelson
Member
posted 04-18-2012 09:07 AM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message
Dan,

"Fired on the spot" would be a rare occurrence for a public employee. It is more common that there is some administrative process. Of course, it would feel like fired on the spot, because the individual would be well aware of the prescribed set of circumstances and actions that would ensue a decision to refuse the test if he has a contractual requirement to undergo testing. In the end, it is a choice: est or leave. Maybe a Hobson's choice, but it is still a choice.

If the polygraph is accurate at rates that are scientifically valid and significantly greater than chance, then there are times when the best choice is to take the test - when one is telling the truth. If one is not telling the truth then not taking the test may seem the better choice - and of course cast the system and process and polygraph test in the worst light possible (unfair mean people who make rights-altering decisions using only the results of a test which they claim is unreliable).

Re #2 - I think I agree with your general ethical principle that decisions should not be based on the polygraph alone.

Some further thoughts:

1) The individual is not actually being subjected to any trial or conviction. He is already convicted and the involved professionals are simply trying to make the best assessment of his level of risk to other members of the community, and what perhaps can be done to remmediate, manage or reduce that threat. (there may also be a bit of professional CYA taking place, and it is also possible that someone simply doesn't like the guy).

2) Is it possible to encourage the supervising officer or referring professional to make proper use of the polygraph in the context of a broader psycho-sexual risk assessment?

3) Effective polygraph examinations can differentiate deception from truth-telling at rates significantly greater than chance - with mean accuracy estimate nearing or exceeding 90%

4) Without the polygraph professionals are more likely to engage in cautious and conservative decision making - meaning that they may just simply require the guy to receive sex offense specific treatment.

5) There is no evidence that the prophylactic administration of sex offender treatment - to prevent sexual offenses by those who are not already sex offenders - is effective.

I dunno, I think you might just help this guy and the system if you give him a fair and accurate test. Without the test they may just stick in the treatment. Doing the test may be his best chance to be treated fairly if he did not commit the abuse.

.02

r

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


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