by Jim Wygant
The accused man usually looks “normal.” He does not behave in public any differently than the “average” person. He may be a muscular construction worker in a dirty tee shirt and baseball cap. He may be a macho narcissist, with carefully groomed hair, a gold neck chain, and a silk shirt. He may be a lawyer or a doctor. I have encountered all of those.
The accused almost certainly describes himself as a “normal” heterosexual. He is likely to be involved in a sexual relationship with an adult female, maybe one that is unstable or failing. His history of sexual partners is primarily heterosexual, even if the child victim is male. The accused is often lonely, and likely to feel awkward about approaching adults for sexual contact. He fears rejection by adult women and probably sees a child as someone less likely to refuse his advances. Alcohol is often a factor.
What we don’t know is what causes a man – and it is rare to find an adult woman in these circumstances – to risk everything for a few moments of forbidden pleasure. Everything means reputation, self-esteem, job, family, money, and freedom. Almost everyone knows that the consequences of a first time sexual conviction are more grave than those of most other first offense felonies, including crimes of violence. A typical first time sex offender may lose his job, be denied access to all children under 18 (including his own children and grandchildren), lose his wife or lover, be ordered to register as a sex offender and report to a probation officer for several years, and be required to pay for a lengthy and expensive sex treatment program that requires him to openly discuss all of his sexual activities and fantasies with a group of other accused men.
Those consequences have little apparent impact on the number of complaints, which has not noticeably declined. Perhaps that is related to some curious aspects of our society. Compared to other cultures of similar wealth and economic advancement, Americans are often regarded as sexually repressed. We are awkward about such things as sexual intimacy, nudity, and homosexuality. We maintain a intense prurient interest in the sexual escapades of elected officials. We still suffer the sense of sexual shame felt by our Christian fundamentalist founders and depicted vividly in Nathaniel Hawthorne’s novel The Scarlet Letter. And yet the extent of erotic images seen in our advertising and entertainment would have been unthinkable only a few years ago. In the “proper” culture of the 1950s no television program dared to show a married couple occupying a double bed. Some degree of sexual inhibition remains in American culture, despite the prominence of erotic imagery. That kind of excessive stimulation might be less of a problem in a culture in which sex was not widely regarded as awkward or embarrassing or even shameful. We really don’t understand the consequences of over-stimulating sexual appetites without provision for satisfaction. We do know, however, that some sexual urges do get directed to unacceptable conduct.
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There are two principle actors in any sex complaint: the accused and the victim. I have sometimes worried that we give less consideration to the impact of the criminal justice process on the child than we do to the desire to prosecute the adult.
I generally construct my tests after a review of all available reports. In a sex abuse case it is common to find that a child has been repeatedly interviewed by a series of adult strangers. After an initial voluntary disclosure to a trusted adult, the same child is usually questioned by a police officer, by a representative of a children’s protective agency, and by a psychologist or medical doctor. This is all before any trial, where the child may be asked to repeat all accusations to a video camera or, even worse, in an intimidating courtroom populated by unfamiliar, grim adults.
As I am reading case reports, I rarely encounter any expressed concern about the damage done to a child by the process of preparing a criminal case against the accused. While we have extensive literature describing the psychological and developmental damage from sexual abuse itself, little is said about the effect of treating a child in a way that repeatedly emphasizes that something terrible has happened and is likely to leave scars. Some adults, including many self-described “therapists,” insist that the child be treated (not just regarded) as damaged. Maybe it is a good thing to force children to confront these acts so directly. I wish we knew more about that.
2. Hatching An Examiner
When I am asked how I chose my occupation, I’m unsure how to answer. The question is often freighted with a bit of envy, as though I had been mysteriously blessed with self-employment in an occupation more fascinating than most. The fact is that I am compulsively thorough in just about everything I do, so I didn’t exactly fall into polygraph work with my eyes closed. In that regard, my start was different from that of most other examiners I have met.
Among all examiners, private and law enforcement, a large portion received their initial training while working as police officers. For many of those, the choice of polygraph was an alternative to something less appealing at the time. Some were simply tired of chasing taillights or settling domestic disputes. The decision to take up polygraph work may have been a relatively uninformed one.
I came to polygraph at the age of 35, after ten years as an investigator for an Attorney General and a District Attorney. I had conducted fraud and anti-trust investigations, tracked non-supporting fathers, interviewed witnesses, located suspects, arranged extraditions, took statements, wrote reports. I sometimes also functioned as a legal assistant, successful enough at preparing legal documents for staff attorneys that I was granted the ultimate lawyer compliment, “Have you ever thought of becoming an attorney?” I had not. I saw most attorneys as aloof and opportunistic, qualities I didn’t admire. But I was also tired of working for bureaucracies. One of my primary goals in entering polygraph work was simply to become my own boss.
My education and past employment did not qualify me for many tasks likely to produce a decent living. I was not interested in the scrappy world of private investigations, with a focus on exposing phony personal injury claims and locating reluctant witnesses. My college degree in literature might have helped me get a job as a librarian, which had little appeal. Or I could have gone back to newspapers. I worked as a reporter and an editor during college and for a few years afterwards. But I had become disillusioned with newspaper work and never seriously thought of going back.
I remember reading a lawyer’s magazine one day while at work in the Attorney General’s office. There was an article about polygraph testing. I saved the copy and reread it a few more times, as an idea began to take shape. I made a few phone calls, one to the only private examiner in Portland at that time, another to a prominent examiner in San Francisco who sometimes traveled to Portland to do work. I asked the same kinds of questions I have since been asked numerous times by others undertaking the same quest. How much work would there be for a new examiner? Where is training available? What will an instrument cost?
Satisfied with the answers, I quit my state job, traveled to San Diego for training, bought an instrument, and opened an office in a suburb of Portland. I was not exactly overwhelmed with clients. My wife supported us for the first year. I was also blessed with a six-month temporary appointment back with one of my old bosses, a District Attorney. The investigator who had replaced me there five years earlier had passed the bar and become a deputy district attorney.
The D.A. and I agreed that I could take time off without pay to do private polygraph tests and would also do tests on salary for the office and for local police agencies, as well as attending to my former investigator tasks. The job was temporary, not civil service, and would only last for six months, but it was a critical six months for me while I fulfilled the requirements of my State intern license. I had vowed that I would try for one year to be a self-employed polygraph examiner. If the business had not realized increasing profits by the end of that time, I would seek re-instatement at one of my old investigative jobs. It is now more than three decades later and I am still doing polygraph tests, although I am now mostly retired. I recognize that if I had stayed with publ
ic employment I would have enjoyed the benefits of health care and pensions and paid vacations. But I have many friends who have made a career of public service, and I see how some of them have been numbed by it. They speak only of their pension funds and they count the years, months, weeks, and days that remain until they can retire. A few seem nearly incapacitated from a life on what has become for them a treadmill, watching their ideals sacrificed in the service of an indifferent or even sometimes hostile public.
In nearly all law enforcement agencies the ramifications of choosing and training a polygraph examiner are poorly understood by both the candidate and his or her supervisors. Those who covet a polygraph job often imagine it to be a simple, automated task that is accomplished in a warm office during regular daytime hours. They imagine that the examiner hooks up a suspect, asks a few questions, and then waits for a machine to render a decision. How hard could that be?
I have known several police examiners who have succumbed to serious job-induced stress. They had to leave polygraph work altogether within a couple of years of starting. A few had to take extended leave from their jobs to settle their nerves. Nobody had prepared them for what the work actually demands. They discovered with their first tests that it was not a machine that made the decisions, but the examiner. They learned that they were not always as sure of their results as they would prefer. And they faced unrelenting pressure from their police and prosecutor colleagues to produce definite results. Inconclusive results were often greeted as an indication of incompetence. These same examiners were asked to endure the responsibility of shaping an investigation by their test results. They knew that if they said a suspect was lying, life could instantly become very unpleasant for that person.
All novice examiners with integrity quickly become uncomfortable with a responsibility that is based upon practices with which they are barely acquainted. Some never get beyond the initial stage of self-doubt. In the past decade, any police examiner who abandoned polygraph after only a brief sojourn was likely to have cost his department several thousands of dollars in training fees, and lodging and wages for about two months of schooling, money that the department would have to spend again to train a replacement. In addition, the cost of an instrument alone ranged from $4,000 to $15,000, depending on how many accessories and how fancy the computer. Despite those expenses, police departments continue to make the wrong choices for polygraph examiner candidates.
Often a choice is made by that most bureaucratic of measures, seniority. I know of a department that trained someone they knew would retire in a year. It was rumored that they didn’t trust him to do anything else, so they put him into a job where he would be responsible for sorting out truth and lies.
I have imagined how I would pick a candidate for training as a polygraph examiner, if I were in charge.
First, job seniority would not be a factor, although maturity and social adjustment would be. Second, interrogation skills would not be a prime consideration. Police officers who are best at getting confessions sometimes have difficulty adjusting to the consciously neutral attitude essential to pretest discussions with a suspect. Third, amount of formal education is nearly irrelevant. I have known excellent examiners with high school educations and mediocre examiners with advanced college degrees.
The qualities essential to a good examiner, and to one who will not become unnerved by the job, are difficult to measure. They are mostly related to vague personal considerations like self-confidence, decisiveness, and humility.
An examiner should be a good listener. That is not because he will hear anything particularly worthwhile from anyone he tests, but because good listeners tend to withhold judgment until they have obtained all available information.
An examiner must be self-confident and independent. No one else will make the critical decision after the charts have been run and the instrument shut off. The examiner must be prepared to say what he thinks about his test results, to admit uncertainty when it is there, to contradict the investigating officer’s expectations when that is necessary, and to insist on an adequate issue and sufficient information before undertaking a test. Those are not popular positions. Someone who values peer approval highly should not enter the polygraph profession.
An examiner must be decisive. He must make a decision when able, and then regard it as done. Punishing one’s self with endless doubts about the accuracy of test results only makes each successive test more difficult.
An examiner must have the humility to admit that he does not practice a perfect science. Although the validity of polygraph testing has been proven to be quite high, it will never be 100 per cent. An examiner who claims that he has never made a mistake is a fool. The truth is that we often don’t know how accurate we’ve been. An examiner who cannot resist the demands made by investigators for certainty in every instance will begin to posture when delivering test results. That may impress the investigators; it will never improve that examiner’s chances of having his results confirmed by a colleague who knows the proper procedures.
An examiner must be able to understand, accept, and apply the abstract concepts that underlie basic test techniques. He must be willing to rely upon a test procedure that is highly accurate and has itself been tested. There is no excuse for unorthodox procedures of unknown validity.
So how do you measure those traits if you are a supervisor in a police agency? And how many public agencies would permit you to apply such abstract considerations in a selection process that is typically defined by a set of rigid rules? Even if that task proved impossible, there is one simple procedure that all police agencies could follow if they chose to. They could ask for advice from veteran examiners, police or private or both. They rarely do. An examiner candidate is most often chosen by a police supervisor who knows with certainty maybe two things about polygraph: the examiner dresses in plain clothes and he uses some kind of instrument.
The supervisor ought to seek professional advice from experienced examiners. And he ought to have those same examiners educate each prospective candidate about the demands and responsibilities of the job. Some candidates would certainly reconsider their applications if they knew what was in store for them.
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When I became a polygraph examiner in 1976, it was still possible to test job applicants and employees. In fact, the testing of job applicants increased so much during the 1970s and 80s that states began passing laws making such tests illegal. Employers said they needed the tests to address increased losses from employee theft, believed to be partly induced by a rising drug abuse problem in the work force. Unions argued that the tests were never truly voluntary, even when an employee signed a piece of paper giving consent. The unions also denounced polygraph testing as wildly inaccurate, no better than flipping a coin.
In the mid-70s the federal government sponsored extensive research into polygraph validity and reliability. That pioneering work was done at the University of Utah by psychologists David Raskin and Gordon Barland. They conducted a series of studies which demonstrated that very high validity and reliability could consistently be obtained if examiners used “comparison question” procedures and evaluated their charts with the aid of a scoring system.
This research, rather than quieting complaints about use of polygraph in the work place, only seemed to make the pot boil more vigorously. It was as though the opponents of polygraph were more alarmed at proof of accuracy than they had been at something they thought they could easily dismiss as inaccurate.
In the early 1980s, U.S. businesses claimed that they suffered annual “shrinkage” of $26 billion. Shrinkage is disappearance of goods from all unaccountable causes, primarily shoplifting and employee theft. The employers asserted that 80 per cent of that loss, or about $20 billion was attributable to theft by employees. The U.S. Chamber of Commerce estimated that 30 per cent of all business bankruptcies were caused by uncontrolled employee theft and embezzlement.
In 1984 a study at the University of Minneso
ta confirmed what employers had been claiming for years, that most retail employees have stolen from their employers. In retail trade, 60 per cent of the 1,400 employees anonymously surveyed admitted theft in one or more of seven specific areas: stealing merchandise, stealing money, purposely under-ringing purchases for themselves or friends, damaging merchandise to make it available to employees, misusing discount privileges, claiming more hours than actually worked, and making false claims for expense reimbursement.
Four per cent of the retail workers admitted to stealing merchandise frequently, defined as daily, weekly, or monthly.
The same study reached three conclusions that leant support to use of polygraph and other security measures in the work place. First, the study concluded that those with the greatest opportunity to steal were the most likely to do it. Second, the incidence of theft declined where employees perceived that stealing would be detected and punished. Those two conclusions had always seemed obvious to employers, but here was academic research that agreed. Commerce had raised those arguments for years in support of various security measures. Labor had always replied that most security measures were an infringement of the worker’s personal rights and dignity.
It was the third conclusion of that study that most closely corresponded to the argument raging at that time over polygraph. The researchers concluded that one of the most effective means of theft prevention was any method of pre-employment screening, even something as simple as a structured, comprehensive interview.