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Posted by SanchoPanza
- Aug 25, 2008, 11:40 PMMr. Cullen, You misunderstood. When I spoke about the attorneys being present for the test, I meant the entire procedure. They were present with the examiner in the room for Miranda Warnings, Waivers and pre-test interview. They reviewed the questions the examiner would use in the exam. They went to the observation room for the actual polygraph questions for the charts and then returned to the room with the examiner for the delivery of the results. The room was just next door and the doors weren't locked. The attorneys could have stopped the test at any time. Two of the tests I observed with the defense attorney's was one pass and one fail on the same case. Both suspects had assured their attorneys that they were absolutely innocent. The attorney of the failing client did stop the post test interview, but the suspect that passed was able to provide enough information that the guy who failed the test ended up pleading guilty to a felony.
Regarding the DOE Polygraph Policy:
If an employee is aware of this policy when he signs on, he pretty much loses his right to complain when his employer exercises the policy. His only legitimate gripe is if they don't follow the policy or enforce the policy in an arbitrary manner. Remember Congress mandated that DOE implement the policy.
If you applied for a job in a factory that requires random drug testing and when they tell you about their drug policy, you decide that random drug testing is an invasion of your privacy because it detects off-duty behavior that is none of their business and has an unacceptable error rate. You might resolve that no-one will make you pee in a cup. You can choose not to take the job and avoid the issue or you can risk termination for refusing to take the test the first time they draw your number. So, in a sense, if you apply for such a job, or have such a job, you must waive your right to refuse to submit to the test, or walk. So I guess it's like involuntarily volunteering.
The only real difference in the DOE example Vs. the Factory example is that the factory conducts drug testing as a safety issue and the DOE conducts polygraph Testing as a Congressionally Mandated National Security Issue.
Sancho Panza
Regarding the DOE Polygraph Policy:
If an employee is aware of this policy when he signs on, he pretty much loses his right to complain when his employer exercises the policy. His only legitimate gripe is if they don't follow the policy or enforce the policy in an arbitrary manner. Remember Congress mandated that DOE implement the policy.
If you applied for a job in a factory that requires random drug testing and when they tell you about their drug policy, you decide that random drug testing is an invasion of your privacy because it detects off-duty behavior that is none of their business and has an unacceptable error rate. You might resolve that no-one will make you pee in a cup. You can choose not to take the job and avoid the issue or you can risk termination for refusing to take the test the first time they draw your number. So, in a sense, if you apply for such a job, or have such a job, you must waive your right to refuse to submit to the test, or walk. So I guess it's like involuntarily volunteering.
The only real difference in the DOE example Vs. the Factory example is that the factory conducts drug testing as a safety issue and the DOE conducts polygraph Testing as a Congressionally Mandated National Security Issue.
Sancho Panza
Posted by T.M. Cullen
- Aug 25, 2008, 10:20 PMQuoteMr. Cullen, You do realize that you are quoting from a dissenting critique of the regulations and not the actual regulations don't you? If you will do just a bit more research will find that persons who work for the Department of Energy must agree to submit to polygraphs as a condition of employment any time DOE requests.I don't have to do any further research, the DOE quote I posted above=says as much!
...— before administering the examination, the examiner must advise the individual of his or her privilege against self-incrimination. DOE recognizes and respects the individual's privilege in this regard. However, exercise of that privilege will constitute a refusal to submit to the examination or a termination of the examination (p. 45)
To which the "dissenting critique" responds:
[IOW] Any attempt to exercise basic constitutional rights will be "respected" by DOE but will lead to a termination of the examination and likely to a loss of employment.
Gee, it's great to have rights!
QuoteWhile I am unaware of any polygraph examiner who allows extra people in the room during the test, I am aware of cases where attorneys have been permitted to monitor the test through 2-way glass, via closed circuit television,
Why not during the pretest interview or post test badgering? Attorneys are allowed present (in the interview room) during a police interrogation. Are attorneys "behind the glass" able to stop the test if he catches the examiner lying or badgering his client? I believe they are able to do that during a standard interrogation.
The problem is that the polygraph DEPENDS on having a gullible, and hopefully intimidated test subject.
TC
Posted by SanchoPanza
- Aug 25, 2008, 07:02 PMMr. Cullen, You do realize that you are quoting from a dissenting critique of the regulations and not the actual regulations don't you? If you will do just a bit more research will find that persons who work for the Department of Energy must agree to submit to polygraphs as a condition of employment any time DOE requests. Congress ordered DOE to include polygraph as part of their counter-intelligence program under the National Defense Authorization Act. They notified their employees, (SEE DOE Notice 472.2, Use of Polygraph Examinations). Being called in for a polygraph shouldn't be a surprise. That Notice establishes a polygraph requirement for Federal employees who occupy or seek to occupy certain sensitive positions. Anytime a DOE employee decides they can't follow the rules handed down by Congress, they are free to seek employment elsewhere. If you can find a single instance where a DOE employee has been fired from his/her job based solely on uncorroborated polygraph results, I would love to read it.
While I am unaware of any polygraph examiner who allows extra people in the room during the test, I am aware of cases where attorneys have been permitted to monitor the test through 2-way glass, via closed circuit television, and presented with a copy of interview recordings. On more than one occasion I have been behind the mirror with a defense attorney while the polygrapher conducted the test. I think the American Polygraph Association includes Audio/Video recordings as part of its standards and practices. When an examiner records his exam from start to finish there probably isn't much opportunity for the lies and tricks you seem to think the examiner uses that you cite as the supposed reason that attorneys are not allowed in the room. Once again exams are voluntary and rights can be invoked at any time.
Sancho Panza
While I am unaware of any polygraph examiner who allows extra people in the room during the test, I am aware of cases where attorneys have been permitted to monitor the test through 2-way glass, via closed circuit television, and presented with a copy of interview recordings. On more than one occasion I have been behind the mirror with a defense attorney while the polygrapher conducted the test. I think the American Polygraph Association includes Audio/Video recordings as part of its standards and practices. When an examiner records his exam from start to finish there probably isn't much opportunity for the lies and tricks you seem to think the examiner uses that you cite as the supposed reason that attorneys are not allowed in the room. Once again exams are voluntary and rights can be invoked at any time.
Sancho Panza
Posted by T.M. Cullen
- Aug 25, 2008, 05:29 PMIn trying to find out whether or not attorney's are allowed to be present during a polygraph, I came across the following, admittedly dated, information. Note this info concerns the DOE. I don't know if it applies to all agencies:
http://www.fas.org/sgp/othergov/polygraph/munroe.html
So you get 5th amendment rights. Well, er, uh, sort of. Just don't bring no dang lawyer to the polygraph! Hell! How will we be able to lie , bullshit, and cajole the suspect with some lawyer present.
But what are they afraid of? It's a totally scientific, and 95% accurate test. Guess most con artists don't want another con artist present during a con game. Only one card cheat allowed per game!
http://www.fas.org/sgp/othergov/polygraph/munroe.html
Quote
DOE's sensitivity to the right against self-incrimination is given very clearly in the following excerpt:
...before administering the examination, the examiner must advise the individual of his or her privilege against self-incrimination. DOE recognizes and respects the individual's privilege in this regard. However, exercise of that privilege will constitute a refusal to submit to the examination or a termination of the examination (p. 45)
Any attempt to exercise basic constitutional rights will be "respected" by DOE but will lead to a termination of the examination and likely to a loss of employment.
DOE is retaining the option to turn information learned during this process, regardless of whether it bears on espionage, over to whomever it deems appropriate. If this information were learned under duress, it would be "tainted" and unusable but since it is given "voluntarily", there are no restrictions on its further use.
The DOE interpretation of the fifth amendment is rather bizarre since the fifth amendment is a protection against being forced to testify against yourself. This whole process is about nothing else than forcing somebody to testify against himself. Having access to a lawyer does not circumvent the fifth amendment. Furthermore, DOE is not allowing a lawyer to be present during the lie detector test or any "in-depth interview" that follows:
DOE believes that the presence of legal counsel or other witnesses in the examination room would be a distraction to the individual and the examiner and would interfere with conducting the examination.(p. 40)
Legal counsel or witnesses may not be present in the examination room or during any interview that may occur as part of the polygraph examination. (p. 40)
So you get 5th amendment rights. Well, er, uh, sort of. Just don't bring no dang lawyer to the polygraph! Hell! How will we be able to lie , bullshit, and cajole the suspect with some lawyer present.
But what are they afraid of? It's a totally scientific, and 95% accurate test. Guess most con artists don't want another con artist present during a con game. Only one card cheat allowed per game!