PREPARED TESTIMONY OF ROBERT M. BEATTIE JR., ESQ.
TO THE KANSAS HOUSE OF REPRESENTATIVES
FEDERAL AND STATE AFFAIRS COMMITTEE
ON HB 2725, THE KANSAS POLYGRAPH PROTECTION ACT
MONDAY, 6 MARCH 2000
1.THE PURPOSE OF HB 2725, THE KANSAS POLYGRAPH PROTECTION ACT, IS TO PROTECT INNOCENT PEOPLE.
2.HB 2725 DOES NOT RESTRICT THE USE OF THE POLYGRAPH AS AN INTERROGATION AND DECISION-MAKING TOOL BY POLICE.
3.HB 2725 ADDRESSES THE HARM CAUSED BY THE POLYGRAPH TO HONEST CITIZENS IN THE PUBLIC, PRIVATE, AND QUASI-PUBLIC SECTORS. POLYGRAPH ERRORS ACCUSING HONEST CITIZENS OF LYING ARE NOT HARMLESS, BUT ARE CONSEQUENTIAL.
4.SCIENTIFIC STUDIES OF THE POLYGRAPH CONCLUDE THAT IT IS NOT! A LIE DETECTOR. THERE IS NO "PINOCCHIO EFFECT", NO PSYCHOPHYSIOLOGICAL DETECTION OF DECEPTION (PDD), THE SINE QUA NON OF THE POLYGRAPH INDUSTRY.
5.THE POLYGRAPH IS JUNK SCIENCE. IN DAUBERT HEARINGS COURTS CONSISTENTLY AGREE THAT THE POLYGRAPH IS NOT BASED IN THE SCIENTIFIC METHOD.
6.HB 2725 DOES NOT CONFLICT WITH FEDERAL LAW. THE FEDERAL EMPLOYEE POLYGRAPH PROTECTION ACT (EPPA) DECLARES THAT IT "SHALL NOT PREEMPT STATE OR LOCAL LAW THAT IS MORE RESTRICTIVE IN ANY PROVISION" THAN THE EPPA.
7.THE COURTS AND OTHER ELECTED OFFICIALS LOOK TO THE LEGISLATURE FOR GUIDANCE AND ACTION IN THIS AREA.
Page One -- Summary
Page Two -- Witness Introduction and Credentials
Page Three -- Public Policy Considerations
Page Four -- Courts Hold that the Polygraph is Junk Science
Page Five -- Recent and Historical Points
Page Six -- Pernicious Use of the Polygraph
WITNESS INTRODUCTION AND CREDENTIALS
I am Robert Beattie, a Wichita attorney and educator. I've practiced law in state and federal trial and appellate courts and administrative agencies. I've earned university degrees with majors in Natural Sciences and Mathematics, Human Resources Management, and Law. I was a Kansas Certified Emergency Medical Technician for 17 years, working as a Firefighter 9 of those years.
I also teach as an adjunct in the political science department at Newman University, and in the psychology department at Friends University. In addition to being a member of various professional bar associations, I am a member of the American Psychology-Law Society, a member of PERK -- the association for Psychological & Educational Research of Kansas, and a member of Psi Chi, the National Honor Society in Psychology.
At this time I am also president of Sunflower Mensa, the greater Kansas chapter of the American Mensa High IQ Society.
In my "Psychology and the Law" course at Friends University, I teach, among other things, about how the polygraph intertwines the disciplines of psychology and law. Since 1998 I have a standing challenge inviting polygraph examiners to test my students after they have learned about polygraph theory and countermeasures. No polygraph examiner has accepted the challenge. I wrote about this challenge, and about polygraph related legal and public policy matters, in a two-part article. It was published as the Lead Columns in the May and July 1999 issues of the Journal of the Kansas Trial Lawyers Association.
In my legal practice I have been consulted about polygraph law by persons not only in Kansas, but also from all across the United States. I should mention that ALL of my polygraph related legal work to this point has been pro bono. I consider this matter to not only address fundamental public policy and constitutional issues, but also to be a battle between reason and folklore.
PUBLIC POLICY CONSIDERATIONS
1.THE PURPOSE OF HB 2725, THE KANSAS POLYGRAPH PROTECTION ACT, IS TO PROTECT INNOCENT PEOPLE.
Many innocent people, who are uninformed about the unreliability of the polygraph as a lie detector, demand to take a polygraph to clear their name. Nearly half of them are shocked when the examiner tells them they are lying.Social Science Citation: Christopher J. Patrick and William G. Iacono, Validity of the Control Question Polygraph Test, 76 J. APPLIED PSYCHOL. 229 (1991) (44% of truthful subjects were wrongly classified as deceptive.) In their most recent evaluation of the polygraph, US v. Scheffer, 523 US 303 (1998), the United States Supreme Court wrote: "Scientific field studies suggest the accuracy rate of the 'control question technique' polygraph is 'little better than could be obtained by the toss of a coin,' that is, 50 percent." Where the polygraph is the dispositive factor, nearly half of the guilty are set free and nearly half of the innocent are accused of lying. As currently practiced by Kansas law enforcement, the polygraph has a grossly disparate (and possibly unconstitutional) impact on the guilty and the innocent, turning the innocent into victims. Innocent persons are currently being victimized by the polygraph. This bill provides reasonable protections for the innocent.
The police use the polygraph as an interrogation technique to elicit admissions against the witness's interests. That practice continues unchanged. When giving a suspect a polygraph, the examiner may begin by using conjuror/magician tricks (marked cards and so forth) to make the examinee think that the instrument works as a infallible "mind reader." After attempts to persuade the witness that the polygraph is an unbeatable lie detector, the witness is then sworn and Mirandized. Kansas Courts have held that all sworn statements made in the polygraph are admissible, it is only the results that are inadmissible because of the polygraph's unreliability. State v. Green, 245 Kan. 398 (1989). The utilitarian reason that the police use the polygraph is unchanged by this bill.
Allowing the continued use of the polygraph in the private and quasi-public sectors is doing much more harm than good. While it is arguable that the State should allow polygraph exams to continue just as the State continues to allow the practices of "psychic reading," "palm reading," etc., there are profound refutations to this position. These are addressed on page four -- pernicious use of the polygraph in the private and quasi-public sectors.
COURTS HOLD THAT THE POLYGRAPH IS JUNK SCIENCE
1. SCIENTIFIC STUDIES OF THE POLYGRAPH CONCLUDE THAT IT IS NOT A LIE DETECTOR -- AND THE COURTS AGREE!
In the 1980s and 1990s, tort reform efforts to eliminate the introduction of junk science, and eliminate the testimony of self-proclaimed but unqualified "expert witnesses" that introduced the junk science to the jury, led to the US Supreme Court's Daubert ruling. In a Daubert hearing the judge evaluates whether the proposed testimony is based in the scientific method, and whether the witness has sufficient knowledge of the science on which their proposed testimony is to be based in order to be admitted as a scientific expert.
Since the introduction of Daubert and its progeny, with respect to polygraph litigation, in Daubert decisions across the United States -- including the Tenth Circuit Court of Appeals, which includes Kansas -- courts have held that --
1) The polygraph is NOT based in the scientific method, and
2) Polygraph examiners, unless they have some other formal education in science, have no education in the scientific method, and are excluded as expert witnesses. Illustrative Legal Citations: US v. Cordoba, 991 F.Supp. 1199 (C.D.Ca. 1998); US v. Call, 129 F.3d 1402 (10th Cir. 1997); US v. RDA Jr., 1998 U.S.App. LEXIS 18288, No. 97-5145, 7 August 1998.
2. FBI DIRECTOR J. EDGAR HOOVER SWORE THAT THE POLYGRAPH IS NOT A LIE DETECTOR
In an often overlooked sworn statement to the Warren Commission, in 1964 FBI Director J. Edgar Hoover swore that "It should be pointed out that the polygraph, often referred to as 'lie detector' is not in fact such a device."
see The Warren Commission Report, Appendix XVII, Polygraph Examination of Jack Ruby, Interpretation of the Report (Quote from J. Edgar Hoover).
3. HB 2725 DOES NOT CONFLICT WITH FEDERAL LAW
Worried about polygraph abuses, twelve years ago our federal legislature passed, and President Ronald Reagan signed into law, the Employee Polygraph Protection Act, 29 USC § 2001 et. seq. (29CFR § 801 et. seq.), which was a much needed but very limited polygraph bill. When it was enacted in 1988 Congress contemplated that States would enact stronger legislation. 29 USC § 2009 declares that the federal EPPA "shall not preempt State or Local law that is more restrictive than any provision" in the EPPA.
Although California and a few other States have enacted provisions stronger than the federal EPPA (both houses of the Virginia legislature have recently passed a polygraph protection act) the Kansas Polygraph Protection Act is the most comprehensive.
HISTORICAL AND RECENT POINTS
Only a few hundred years ago we practiced the Trial-by-Ordeal. It was an earlier form of Physiological Detection of Deception (PDD), the "Pinocchio Effect," the sine qua non of the polygraph industry. If the accused liar's wounds festered in the scalding or burning ordeal, or if the accused choked in the swallowing ordeal, these physical manifestations were accepted as proof that the subject was lying.
We now look upon those tests as ridiculous superstitions, and agree that passing the trial-by-ordeal had more to do with sanitary wound care or practiced gluttony than it did with the question of whether or not the subject was lying or telling the truth. In my view, today's polygraph is such a trial-by-ordeal. The physiological responses that the polygraph measures have as little to do with determining whether a subject is lying as did the burn wounds of the trial-by-ordeal. Neither in the past nor today is there evidence supporting a "Pinocchio Effect" justifying the polygraph as a means of Physiological Detection of Deception (PDD).
There are thousands of recent real world examples of errors by polygraph examiners who were certain of their results. For example, years before he was caught by other means, confessed spy CIA agent Alrich Ames lied in his polygraph exam, but was judged to be telling the truth by the polygraph examiner. Some recent polygraph examiners say that Dr. Wen Ho Lee is telling the truth; others say Dr. Lee is lying. Which polygraph examiner is right?
H.L. Mencken wrote that "one belly-laugh" is worth a thousand syllogisms. I had such a belly-laugh when I realized this: As far as I have been able to determine, ALL people who claim to have been abducted by space aliens have passed their polygraph exams. (If the pro-polygraph panel can point to a purported alien abductee who failed, ask them, "Is that the best you can do?")
Travis Walton, who swears he was abducted by space aliens in 1975, and who was the subject of a movie "Fire in the Sky," passed his polygraph exam. (Jenny Randles, Alien Contacts & Abductions, p. 46. New York: Sterling Publishing Company, 1994). Charles Hickson, who swears he was a space alien abductee in 1973, passed his polygraph exam. (Ralph Blum, Beyond Earth: Man's Contact with UFOs, p. 198-199. New York: Bantam Books, 1974). Whitley Strieber claims he met with humanoid extraterrestrial visitors several times between 1985 and 1988. He has passed three polygraph exams, one of them arranged in London by the BBC. (Whitley Strieber, Communion: A True Story, p. 304-306. New York: Avon (paperback), 1987; Whitley Strieber, Transformation: The Breakthrough, p. 249-250. New York: William Morrow (hardback), 1988.)
As for me, I think this illustrates that the polygraph is completely incapable of detecting truth-tellers from liars. What do you think?
PERNICIOUS USE OF THE POLYGRAPH IN THE PUBLIC,
PRIVATE, AND QUASI-PUBLIC SECTORS
A 50% accurate polygraph test is good from the point of view of the State's prosecutors, since 50% of the time they will accurately accuse a guilty party of lying. The suspect will be told: "You might as well confess, you failed the test." However, this also means that society is harmed half of the time: it lets half the guilty go, and it wrongly accuses half of the innocent. This is why polygraphy is doing more harm than good. This harm applies to all the arenas where the polygraph is used, including the public, private, and quasi-public sectors --
· Applicants for most law enforcement jobs in Kansas must pass a polygraph exam. Failing to "pass" a polygraph essentially precludes the candidate from a career in law enforcement.
·Sexual assault victims may be given polygraph exams by the police when the person they accuse passes his polygraph exam.
·Insurance companies may ask policyholders to take a polygraph exam and deny paying claims when the policyholder fails. I telephoned the Insurance Commissioner's office about this practice and an attorney told me that their office has no problem with it.
· The polygraph is being used on patients by self-proclaimed "therapists." Use of the polygraph for "therapy" and "rehabilitation" has been approved by the Kansas high courts and by a Kansas federal court. Legal Citations: Bankes v. Simmons, 265 Kan. 341 (1998); State v. Roy A. Lumley, 25 Kan.App.2nd 366 (1998) and State v. Roy A. Lumley, No. 78,447, 16 April1999; Lile v. McKune, 24 F.Supp.2d 1152 (1998).
Honest police recruits, honest victims of crime, honest insurance policyholders, and citizens in need of legitimate medical therapy rather than quackery, have all been victimized by the polygraph. Polygraph examiners wrongly labeling honest and innocent people liars have wrecked careers and damaged families. This bill will stop that damage.
Since 1947 the Kansas Supreme Court has excluded polygraph evidence under the old Frye standard. (State v. Lowry, 163 Kan. 622) However, the court also says that in the absence of a statute, it is not up to them to regulate polygraph evidence outside the courtroom. Outside the courtroom, regulating polygraph use and abuse is up to the legislature. It's up to you.
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