Federal Judge Throws Out FBI Post-Polygraph Confession

[George W. Maschke]

The FBI's willful practice of not recording polygraph interrogations was a factor in a federal judge's recent decision to grant a defense motion suppressing the post-polygraph confession of a defendant in a child molestation case. See:

https://antipolygraph.org/blog/2016/06/26/federal-judge-throws-out-fbi-post-polygraph-confession-over-concerns-about-voluntariness/

https://antipolygraph.org/litigation.shtml#tennison

There is no good faith reason for the FBI not to record polygraph interrogations from beginning to end. The only reason for this practice is to prevent any judge or jury from ever seeing or hearing an objective record of what transpired in the polygraph suite.

It is good to see a federal judge take this into account. It is to be hoped that others will follow suit.

[Dan Mangan]

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"?

[Drew Richardson]

Dan,

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

I have not yet read the judge's opinion or the witness testimony, and as a result, with regard to the above quote attributed to the judge and taken out of context, it is not clear to me whether the judge is quoting Ms. Sullivan or merely expressing a general opinion regarding Ms Sullivan's perceived position on the matter. 

Regardless, it is hard for me to believe that both in training school as well as with her and others' Bureau exams, that the error connected with polygraph results has not become blatantly apparent to Ms. Sullivan through these experiences (let alone through any passing familiarity with the relevant scientific literature that she might possess). 


Furthermore, if the judge is concerned about the diagnostic validity of FBI polygraph exams as utilized in specific criminal testing and the impact of such unrecorded exams and interrogations on the veracity of obtained admissions and confessions, she would be appalled at the same as applied to screening of applicants and onboard employees.

(see https://antipolygraph.org/forum/index.php?topic=5338.msg39869#msg39869)

[George W. Maschke]

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:

Q. And in your view, when you review your polygraph charts and you score them, and it comes out deception indicated, you believe that they're lying to you, right?

A. I believe they're lying to me, right.

Q. And that's because you've testified that you believe your skills are 100 percent accurate, right?

A. I said I'd like to believe that they were, right.

Q. No ma'am. I believe you testified that you believe that your accuracy rate is 100 percent, before lunch.

A. My accuracy rate on the testing? On the scoring? On exactly what part?

Q. On the scoring, when you score someone as deception indicated, you testifed before lunch, did you not,  that your error rate is 100 percent [sic]?

THE WITNESS: Could we go back and check that transcript?

THE COURT: I'll ask the court reporter to --

THE WITNESS: Because I don't recall saying anything --

THE COURT: Hold it a minute. Hold it a minute.

THE WITNESS: Okay. I'm sorry.

THE COURT: I will ask the court reporter to do that.

(The following testimony was read back:)

"QUESTION: So in your mind, your polygraphs, at least, are 100 percent accurate?

ANSWER: I feel like they are."

THE COURT REPORTER: Should I search further?

MR. COBERLY: I think that's fine.

Q. (By Mr. Coberly) After you score the test and it comes up in your mind deception indicated, you believe that the suspect is lying to you?

A. I do.

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."

[Drew Richardson]

Sworn testimony stating or suggesting that the results of polygraph examinations are to be taken as 100 percent accurate is reflective of some combination of ignorance, serious delusion, and/or perjury.

The notion of "...every examiner must have absolute confidence in his results..." is not unique to Special Agents Sullivan or Chase or even their generation of polygraph examiners, but is a classic example of very dangerous and frequently taught group think.

[Dan Mangan]

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

[Drew Richardson]

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

I believe that one can make a pretty good case that the horrible plight of Abdullah Higazy (the Egyptian student who was wrongfully jailed for a month after an FBI polygrapher extracted a false confession from him) all began with this very dangerous and widely taught maxim.

This sort of nonsensical confidence, of course, becomes even more dangerous when polygraph examiners believe in their ability to detect countermeasures without fail.

[George W. Maschke]

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-polygraph-confession-over-concerns-about-voluntariness/#comments

[George W. Maschke]

According to a motion (attached) filed by Jamaico Tennison's lawyer, "On June 24, 2016, the government informed Mr. Tennison in writing that it would not be appealing the Court's suppression order, but that it intended to continue to trial notwithstanding the weakened case."

[George W. Maschke]

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.