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Thursday, November 8, 2012

Are Polygraph Results Per Se Inadmissible Because Anita Hill Passed A Polygraph Exam?

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.

-CM

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Comments

"Isn't this the conclusion that Justice Thomas had to reach?"

So what? Even if true it is certainly not a position that the other members of the court had to reach. I sincerely doubt that the other members of the court joined his opinion simply to spare a colleague a little embarrassment. Even Steven's dissent isn't predicated on refuting that specific point.

Posted by: Daniel | Nov 8, 2012 2:26:09 PM

It is too bad you didn’t read the book I gave you. My new book, FROM COP TO CRUSADER: THE STORY OF MY FIGHT AGAINST THE DANGEROUS MYTH OF “LIE DETECTION” – available on my website WWW.POLYGRAPH.COM as well as KINDLE & NOOK - would have armed you with some information that may have been helpful. This is from the first chapter:

“I had studied the history of the men who created this insidious machine known as a "lie detector"; John Larson and Leonarde Keeler. Both of these men also suffered as a direct result of their association with and use of the so-called lie detector. John Larson, a serious scholar with a PhD in science, is credited with being the inventor of the “lie detector". He spent many years trying to prove that the polygraph was scientifically valid as a method to detect deception. He was unsuccessful in doing that; and as a result, at the end of his life he went mad and fell into a deep state of despair. Just before he died, Larson is quoted as saying, “Beyond my expectation, thru uncontrollable factors, this scientific investigation became for practical purposes a Frankenstein’s monster, which I have spent over forty years in combating.” Leonarde Keeler, Larson’s protégé, and self proclaimed inventor of the first polygraph machine was later despised by Larson because he considered Keeler to be a shameless self promoter who had turned the polygraph into a carnival sideshow. Larson, who did not want to the polygraph to be widely used until he had tested it and proved that it was scientifically valid and reliable, was troubled by Keeler’s unsupported claims that the polygraph could detect deception. In fact, near the end of his life, Larson was writing a book that he claimed would expose Keeler as a thief and a liar who had stolen the ideas of others, and put his name on a polygraph machine that he had not created. He planned to expose Keeler as con man who had turned the polygraph into a carnival sideshow. In 1930, a man named William Marston, (who also wrote the comic book Wonder Woman), added to the myth of “lie detection” when he claimed to be able to catch liars by tracking a person’s blood pressure. The polygraph, like Wonder Woman’s iconic “lasso of truth”, became the American way to detect deception.”

The back of the book has actual courtroom testimony from me and from a pro-polygraph “expert” that may also have been helpful to your in your debate preparation.

Posted by: Doug Williams | Nov 9, 2012 6:52:59 AM

Thanks, Doug. I've been too busy with classes to read it yet. But I will try to get to it over winter break.

Posted by: Colin Miller | Nov 9, 2012 9:26:43 AM

I am glad you are opening a discussion of the polygraph. It very confusing to many people; and this insidious Orwellian instrument is used/abused much too often by polygraph con men - and unfortunately, the courts are very ambivilent.

Posted by: Doug Williams | Nov 9, 2012 12:49:15 PM

I think you intended the last word in the original post to be "inadmissible."

Posted by: Deryl Dantzler | Nov 9, 2012 10:40:09 PM

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