Thursday, November 8, 2012
Last night, I engaged in a lively debate at the University of South Carolina School of Law with Brian Morris, a certified polygraph examiner. The debate was pretty interesting, with Mr. Morris even doing a live polygraph examination on a student. People who have been reading this blog for the last several days got a preview of some of the arguments that I made during the debate. And long time readers of the blog know that I have delved into the long, strange history of the lie detector test since its creation by Dr. William Moulton Marston, the man who also created Wonder Woman and her magic lasso of truth. In my post about Marston, I wondered whether courts would be more receptive to the admission of lie detector evidence if the someone other than he created the device. After the debate last night, I wondered whether courts would be more receptive to lie detector evidence if Anita Hill hadn't come forward with sexual harassment allegations against Clarence Thomas during his Supreme Court confirmation process.
At the end of the debate last night, we took student questions. One of those questions asked what we thought about Anita Hill's allegations against Clarence Thomas. I remembered those allegations generally (who could forget Long Dong Silver?), but I didn't remember what the student pointed out: Anita Hill took and "passed" a polygraph exam in which she was asked about the allegations while Justice Thomas refused to take a similar test.
Now, fast forward to 1998. In 1993, the Supreme Court had abandoned the Frye test for determining the admissibility of expert evidence (which was initially created to deem evidence from Marston's lie detector test inadmissible) and replaced it with the Daubert test. In the wake of Daubert, several courts began to reevaluate the inadmissibility of polygraph evidence and started to deem such evidence admissible in limited circumstances for limited purposes.
Then came the Supreme Court's 1998 opinion in Scheffer v. United States, 523 U.S. 303 (1998). In Scheffer, the Supreme Court found that the application of the per se prohibition on the admissibility of polygraph evidence contained in Military Rule of Evidence did not violate an Air Force airman's right to present a defense. The Justice writing the majority opinion? One Clarence Thomas. According to
The contentions of respondent and the dissent notwithstanding, there is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques. 1 D. Faigman, D. Kaye, M. Saks, & J. Sanders, Modern Scientific Evidence 565, n. †14—2.0, and §14—3.0 (1997); see also 1 P. Giannelli & E. Imwinkelried, Scientific Evidence §8—2(C), pp. 225—227 (2d ed. 1993)...; 1 J. Strong, McCormick on Evidence §206, p. 909 (4th ed. 1992)... Some studies have concluded that polygraph tests overall are accurate and reliable. See, e.g., S. Abrams, The Complete Polygraph Handbook 190—191 (1968) (reporting the overall accuracy rate from laboratory studies involving the common "control question technique" polygraph to be "in the range of 87 percent"). Others have found that polygraph tests assess truthfulness significantly less accurately–that 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. See Iacono & Lykken, The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in 1 Modern Scientific Evidence, supra, §14—5.3, p. 629 (hereinafter Iacono & Lykken).
Isn't this the conclusion that Justice Thomas had to reach? If he had found that polygraph results are extremely reliable, wouldn't be saying that Anita Hill's allegations against him were extremely reliable. This makes me wonder. What if Anita Hill had "failed" her polygraph exam? Or, what if Justice Thomas agreed to take a polygraph exam and passed it. In either case, he would have had a vested interest in deeming polygraph results extremely reliable. Would either results have actually changed the way that Justice Thomas and the Court ruled in Scheffer? I don't know, but it is an interesting question.
What I do know is that in the wake of Scheffer, courts that had begun to allow for the admission of polygraph results under certain circumstances for certain purposes in the wake of Daubert retreated from these rulings and again began deeming polygraph results per se admissible inadmissible.