by Jim Wygant
Use of polygraph for pre-employment screening increased dramatically during this same period. A pre-employment polygraph test typically included questions about drug use, work history, forced terminations, and thefts of money and goods. The applicant was first interviewed, and then tested to see if he or she had deliberately concealed information.
As the use of this kind of test increased, labor became more insistent that it be banned. In response, employers and polygraph examiners produced surveys of employees and applicants. The questionnaires had been completed anonymously, both before and after polygraph tests. The overwhelming opinion expressed by the applicants and employees was that polygraph tests were not objectionable and were neither a personal indignity nor an invasion of privacy. Labor countered with the assertion that the surveys were meaningless because the anonymous respondents were too fearful of being identified to reply honestly.
Politicians found polygraph an easy target. Although a number of large corporations individually objected to attempts to ban employee testing, they did not have the kind of influence with politicians that organized labor enjoyed in that era. In 1988 the U.S. Congress found the time ripe to move against polygraph. Previous attempts to ban or restrict polygraph use had always been deferred. This time a law was passed. The Employee Polygraph Protection Act (EPPA) made it nearly impossible to test any employee under any circumstance. Pre-employment tests by non-government employers were prohibited without exception. Tests about specific losses were saddled with a set of rules so complex and so limiting that most such tests were effectively banned. Congress typically exempted itself and its treatment of its own employees from all of the restrictions.
In the years following enactment of EPPA I continued to get requests – often several in a week – for tests on employees. The typical caller was a small business owner who had suffered a substantial loss and was not big enough to maintain his own internal security department. He knew from the circumstances of the loss that one among a small number of employees was the thief. He wanted me to help identify that employee. After EPPA I turned down all such requests, and briefly explained the federal law. I concluded that I did more to educate those employers about that law than any other source, including the federal government.
When an employer has asked what other remedies are available, I have not been able to offer much hope. I would first tell him that he could try to get the police interested in his loss. Police departments everywhere traditionally treat business losses as low priority, and most employers know it. The police tend to focus on crimes against individuals and to rely upon businesses to handle their own security. Many big city police departments will only take a report of a business loss over the phone or Internet without dispatching an officer to the scene, and then file the report without any investigation, the minimum necessary to satisfy the demands of insurance carriers.
Most employers find only four means of trying to resolve an employee theft. The employer can fire all of those who had access to the missing item, safely assuming by that broad sweep that the thief was among those he terminated. As an alternate to that, he can fire the one person he suspects the most, and risk a mistake in his personal judgment. The third option is to make work miserable for the person he suspects the most, denying advancement or imposing an unwanted assignment, and hoping that the employee will quit. Finally, the business owner can choose to do nothing about the instant loss and simply try to find methods to prevent it from happening again.
If the employer fires anyone, he faces the possibility of having to defend himself against a civil suit and against claims for unemployment compensation. The realities of the work place dictate that it is the third possible remedy, making life miserable for a suspect, that employers most often resort to. In other words, employers must make their own unassisted personal judgments of guilt or innocence and then use those judgments as the basis of sanctions against employees. I’m sure Congress did not intend this and would condemn it, but it is what happens when employers are left with no other resources.
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The last couple decades of my work has been limited almost entirely to criminal cases, testing the clients of defense attorneys. They prefer a private examiner because most of the clients did what they were accused of and will fare badly on a polygraph examination. Defense attorneys are not obliged to reveal bad polygraph results to anyone. Bad results from a police examiner would probably intensify the determination of the police and prosecutor; and any incriminating statements made to a police examiner would be admissible in court, even though the test itself would not be in most jurisdictions.
I often have heard the claim that polygraph must not be any good because it is not admissible in court. Rules of evidence vary substantially from state to state. A few courts admit polygraph testimony over the objection of the opposing side if sufficient foundation is laid. Other jurisdictions will admit polygraph results only when both sides stipulate to its admissibility before the test is begun. And some jurisdictions won’t admit polygraph testimony at all. In my own state of Oregon, stipulated testimony was accepted until 1987. In that year the Oregon Supreme Court heard an appeal from a murder conviction in State v. Lyon. The opinion issued by the court in that case was devoted almost exclusively to an analysis of polygraph admissibility. The court emphasized its concern for “over-valuation of the polygraph evidence by the jury.”
The justices pointed out that the judge or jury, whichever hears the evidence, is uniquely charged in our system of justice with deciding upon the veracity of any witness, based solely upon testimony and other evidence presented in the courtroom. The justices imagined that testimony from a polygraph examiner might make the judge and jury unnecessary, at least with regard to deciding truthfulness. This attitude prevails in many jurisdictions in spite of abundant research that shows that eyewitness testimony is wrong in a remarkably high number of cases and can result in wrongful convictions. In a concurring opinion in State v. Lyon, one justice spoke of the “implicit value” of reliance upon peer judgment of truthfulness in a criminal trial. He expressed doubt that “the uneasiness about electrical lie detectors would disappear even if they were refined to place their accuracy beyond question.” In other words, even if polygraph were 100 per cent accurate it did not belong in the courtroom.
Opinions from other courts reflect the same absurd notion that the criminal justice system might be subverted or destroyed by the admission of polygraph testimony. If a testifying polygraph expert were examined and cross-examined in the same manner as any other expert, his opinion would be no more determinate in a criminal case than that of a ballistics or fingerprint expert. The irony is that many of the same courts that refuse admissibility at a trial now order their own polygraph examinations as a condition of probation or parole. Testimony regarding those tests is admissible at revocation hearings, where a defendant may be sent directly to jail.
Even in states where polygraph testimony is admissible, most tests are done primarily for investigative purposes. Polygraph testing has been used as an investigative aid by police agencies since the 1930s. That long life implies that if it didn’t work it would have been dumped many years ago, along with such failed technologies as voice print identification and blood spatter analysis.
While police have traditionally been trying to solve crimes with the help of polygraph, the defense attorneys for whom I have worked obviously have different motives for testing their own clients. In many cases a lawyer may believe, or at least hope, that a particular element of what the client reports is true. If it is, it might result in dismissal or a favorable plea bargain, depending on the circumstances.
Some attorneys will also test a client they do not believe. The test may be the attorney’s response to a client’s repeated assertions of innocence, or to requests by the police that the client submit himself to their test. There is even the occasional lawyer who will submit his or her client to a polygraph exam with the hope that negative results might be
helpful in working with the client. Many criminal defense attorneys represent persons who face insurmountable evidence. Sometimes even when conviction at trial is a virtual certainty, the client may regard it as only a remote possibility. The lawyer may know that he can obtain a plea bargain more favorable than the likely results of a trial. However, no plea bargain is possible unless the client is willing to admit he broke a law. Unfavorable polygraph results often buttress those discussions between the attorney and the client.
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Most of my polygraph examinations have begun with a phone call from a lawyer. I extract a brief explanation of the issue, just enough to know whether it is something testable. Polygraph testing is not suitable for resolving every imaginable question. I cannot test people on their opinions, for instance a man’s judgment about whether he was legally drunk. I discourage tests on issues that relate to conversations, because people do not seem to remember conversations as well as deeds or actions. I cannot test people on their intentions regarding acts that were never completed. I was once asked to test a defendant in a theft who said that he would have taken the stolen goods back if the police had not seized them first. I declined that test.
I cannot test people who say they are not sure whether they did something or not. I have been approached by persons who asked to be tested so they could know what they had done. Polygraph will not reveal anything that someone does not already know. A man once told me righteously, “If I molested that little girl, I want to know about it.” I responded, “If I ask you in the test ‘Did you molest her?’ what will your answer be?” He told me he would answer “no.” If he had said anything else we would not have been able to proceed with the test. As it turned out, he failed the examination, which was not surprising to either one of us.
I cannot test people who are unable to sit still for four minutes at a time, or who are unable to stay awake, whether from drugs or lack of sleep. I cannot test juveniles under the age of about 14, because the comparison question procedure must make reference to a range of experiences that younger children probably have not yet had.
Assuming that I can identify a testable issue in what the attorney describes, I will ask her to forward whatever reports she has about the incident. Those may be police reports, an affidavit for a search warrant, a social worker’s report, an autopsy report, or a transcription of an interrogation. I want to know as much as a police examiner would know if he or she were going to test this same client. The client’s appointment is scheduled far enough ahead to allow me time to read all of those reports and sketch out some possible test questions.
Although my job begins before the client arrives at my office, it intensifies at the moment he walks in. I try to greet every client with the same attitude of respect that I would hope to encounter myself. That is not always easy. Some of the people I test are accused of terrible things which, if true, would deny them the respect of most honorable people. The key consideration is “if true.” By being respectful I am signaling to the client that I will withhold judgment. Respect, however, is not sympathy – which would suggest to the client that I believed his denials. I constantly try to convey by my attitude, my explanations, and my responses to questions, that my role is to deliver accurate test results, whatever they might be.
Most of the first half hour that a client spends in my office includes little direct reference to the issue that sent him there. I begin with an explanation of what we will be doing for the next ninety minutes or so. For the first fifteen minutes I do not ask the client any questions. I prefer to allow him a chance to become accustomed to the unfamiliar environment of the examining room and to me, a stranger, with little need for him to contribute anything.
I am aware of the kinds of concerns and worries that most people have about a polygraph test, and I try to address those in my initial explanation. I tell the client that the test is not based on how nervous or calm he is, and that everyone is nervous about taking a polygraph test. The one critical consideration, I explain, is what he knows about the truthfulness of his own answers. To do well on a polygraph test, he is the only one who needs to be convinced of his own truthfulness. But if he is lying, he is the one person he cannot fool.
I explain what happens within the human body when any of us lies, including brief changes in blood pressure and electrical resistance in the skin. I describe the components of the polygraph instrument and remind the client that the instrument only makes a record of what is happening inside him as he answers questions. The instrument does not make any decisions. That responsibility, I explain, will be mine when we are finished with the test.
Most clients do not interrupt this introduction with questions or comments. Most show some sign of noticeable relief when I tell them that nervousness will not interfere with the test. When I am asked a question during this initial explanation, I try to answer it thoroughly then return directly to the remainder of my introduction. If the client tries to begin telling me his version of the accusations against him, I politely interrupt and tell him that I want to go over his information very carefully as soon as I have told him a little more about the test.
My introduction has never been written down and is not delivered as a memorized speech. It varies a little with each presentation, although the critical information that I want to impart is always the same and exists in my mind as a kind of mental checklist. Difficulties only arise on days when I am beginning a third or even a fourth examination. The words of my explanation come so automatically that I sometimes have difficulty remembering what I have already said to the person currently in front of me. Other examiners have reported the same experience, and it is a cause for limiting the number of tests in one day.
When I have finished the introduction, I ask the client to sign a form in which he confirms that he is consenting to the test and that he can quit at any time. The form also reminds him that I will give the test results to his attorney. The next several minutes are spent gathering data from the client. I use another prepared form that includes space for such basic information as name, date, location of test, client’s address and date of birth, education, occupation, and physical and mental health history. Many of these questions are intended to confirm that the client is suitable for testing. If there are physical or mental impediments to testing, or if the client has limited understanding of language or concepts, I need to gauge the possible effect of any of those factors on his testability.
There are a few common misconceptions about polygraph tests being compromised by certain factors. I am often asked about “pathological liars,” also frequently identified as sociopaths. In the simplest terms, sociopaths are persons who do not care about damage done to others by their words or deeds. Sociopaths do not have what we commonly refer to as “conscience.” They know that they are lying or doing something hurtful, but their own goals are more important to them than the resulting injury to others. Ironically, many sociopaths have well developed social skills. They tend to be polite and deferential, at least to the extent that they believe it offers them an advantage. It is a myth that such people can “beat” a polygraph examination.
Polygraph tests are based upon fear of discovery. If the client is afraid that the examiner will discover something that he is concealing, he will do badly on the test. That fear, rooted in an elemental instinct of self-preservation, is as well-developed in sociopaths as in anyone else. It is not necessary for a guilty client to feel remorse about what he has done. He only needs to be concerned about the consequences for himself.
There are also myths about the effects of drugs on polygraph testing. Medical prescriptions taken in the specified doses generally have no impact on a polygraph test. I never advise anyone to cease taking any medication that has been prescribed. A common misconception is that a large dose of tranquilizers or pain killers will permit someone to pass a polygraph test. Not true. An excessive dose may cause someone to fall asleep during the test. I have seen that happen a few times. At the point of u
nconsciousness the person obviously becomes untestable and his condition is reported to his attorney. Short of that, most people remain testable under drugs. It is true that some drugs will diminish responses, but the effect is general throughout the test. There are no drugs that affect responses on a selective basis, less to some questions, more to others. A general lack of response might produce an inconclusive result, but the amount of drugs necessary for that would be near the danger level for most persons.
One of the most obvious drug abusers I ever tried to test was a medical doctor who had taken so much of something that he was barely coherent and bounced off the door frames and walls of my office as he tried to negotiate his way to a chair. He denied taking any drug. His charts were unreadable and the test result was inconclusive. However, his attorney and I both assumed that he was lying, just as though he had failed the test.
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When I have completed all of the initial exchange of information with a person I plan to test, I put down my pen, devote my full attention to the client, and ask him to tell me about his case. I have already read whatever reports are available and have discussed the case with his attorney by phone. I do not expect to learn much from what the client tells me, although sometimes the story I am told does include information previously withheld.
I have several reasons for letting the client tell his version in his own style. I want to verify how much he claims to know about the accusations. If he doesn’t seem to know as much as I think he should in order to answer test questions, I will furnish the missing information. I want him to understand what he is denying, in as much detail as possible. Whether he is lying or telling the truth, his test results are apt to be clearer when he knows the specific elements of the accusations.