EvidenceProf Blog

Jailhouse Rock: Court Of Appeals Of Mississippi Finds Jailhouse Lawyers Is Not An Attorney For Attorney-Client Privilege Purposes

Mississippi Rule of Evidence 502(b) provides that

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

So, who qualifies as a "lawyer" for purposes of Mississippi's attorney-client privilege? According to Mississippi Rule of Evidence 502(a)(3),

A “lawyer” is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.

In Harrell v. State, 2012 WL 5395162 (Miss.App. 2012), the Court of Appeals of Mississippi addressed the following question: Does, a "writ writer" within the prison system, a so-called "jailhouse lawyer," who assists other inmates with legal advice and research, qualify as a "lawyer" under Rule 502(a)(3)?

In Harrell, Christopher Harrell was convicted for the murder of Frank Damico and for possession of a firearm by a felon. At trial, the prosecution called "Henry Peters, an MDOC inmate,... a 'writ writer' within the prison system, a so-called 'jailhouse lawyer,' who assists other inmates with legal advice and research." According to Peters, "Harrell confided in him that he shot Damico in the head." According to the Court of Appeals of Mississippi,

Although the defense objected to Peters's testimony, the court allowed it, and Harrell now claims that the admission of Peters's testimony was prejudicial error. Harrell acknowledges that Peters is not licensed as an attorney, but he claims Peters was acting as an unauthorized legal advisor to him. Therefore, Harrell contends that Peters is held to the same confidentiality standard as a licensed attorney."

The court then rejected this claim, concluding that

Under Mississippi Rule of Evidence 502(a)(3), "[a] 'lawyer' is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation." At trial, Peters admitted that he was not licensed to practice law; he merely assisted prisoners with legal research. Peters said he was questioned by Harrell regarding how to transfer a case to another jurisdiction. As the State notes, most prisoners are well aware that writ writers are not lawyers; in this case, Peters did not hold himself out to be a licensed attorney. Furthermore, under Rule 6(a) of the Mississippi Rules of Discipline, attorneys who are "convicted in any court of any state or in any federal court" are suspended from the practice of law. Peters could not, therefore, be an attorney authorized to render legal assistance to others and be an inmate in prison. We find absolutely no merit to Harrell's contention that his admission to the writ writer is entitled to protection under the attorney-client privilege.

-CM

Remedial Chaos?: Why Rule 407's Impeachment Exception Isn't Really An Exception

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

Similarly, South Carolina Rule of Evidence 407 provides that

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

As you can see, both the Federal and South Carolina versions of Rule 407 potentially allow for the admissibility of evidence of subsequent remedial measure to prove negligence. So, let's say that there's a collision between a train and a car. And, let's say that defense witnesses testify that the site distance at the time of the collision was adequate. But, let's say that the defendant shortly thereafter cut the vegetation bordering the tracks where the accident occurred. Can the plaintiff introduce evidence of this subsequent remedial measure to impeach these defense witnesses? According to the recent opinion of the Supreme Court of South Carolina in Carson v. CSX Transp., Inc., 2012 WL 5420337 (S.C. 2012), the answer is "no."

In Carson, the facts were as stated above, with the "Appellant contend[ing] she should have been permitted to introduce evidence of post-accident cutting to impeach CSX's position that the available sight distance on May 30, 2004, was adequate and that the vegetation did not need to be cut." The court disagreed, finding that "[a]llowing a party to invoke the impeachment exception to Rule 407 in response to the opposing party's general defense against a negligence claim would swallow the rule." According to the court,

 

The Supreme Court of Illinois encountered a party propounding this same logic and stated:

Just as evidence of subsequent remedial measures is not considered sufficiently probative to be admissible to prove prior negligence, that evidence is not admissible for impeachment where the sole value of the impeachment rests on that same impermissible inference of prior negligence.

 

I agree, and the way I look at the situation is as follows: When evidence of a subsequent remedial measure is admissible for a permissible substantive purpose, it is also admissible to impeach. But when evidence of a subsequent remedial measure is not admissible for a permissible substantive purpose, it is not admissible to impeach.

If a dog bites Vince, and Dan says, "It was the junkyard dog," a photo of Dan putting up a fence in his yard with the dog in the yard would be admissible to prove ownership and to impeach Dan. And the same goes for feasibility or control. But if a subsequent remedial measure could only be offered for an impermissible purpose such as negligence or other culpable conduct, it is not admissible to impeach.

-CM

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

White Coat Syndrome Squared: What Can White Coat Syndrome Tell Us About Polygraph Exams & Ecological Validity?

There are two different uses of the phrase "white coat syndrome." One has explicity been tied to expert evidence.

In the 1990s, legal professionals blamed the "white coat syndrome" for having an impact on juries that was strikingly similar to the CSI effect. "White coat syndrome" is the term used to describe a phenomenon where "jurors mechanistically defer to certain experts because of their field of expertise." (Neil Vidmar, Expert Evidence, the Adversary System, and the Jury, 95 AM. J. PUB. HEALTH S-37-S143, S138 (July 2005)....However, numerous studies demonstrate that jurors do an exceptional job of focusing on the evidence, as opposed to the expert, and do not automatically adopt expert opinions as their own. These studies demonstrate that "jurors are far more skeptical and demanding in their assessments [of expert testimony]" and that "[they] attempt to evaluate the testimony on its merits rather than deferring to an expert's credentials, likeability, or other peripheral factors."

So, do jurors actually defer to certain experts, and do they defer to polygraph experts? I don't know, but courts consistently rely upon this rationale to deem polygraph evidence inadmissible. As noted in my post yesterday, one of the reasons that Texas courts deem polygraph evidence inadmissible is based upon the concern that jurors overvalue polygraph results.

This post, however, deals with the second use of the phrase "white coat syndrome."

As noted in Fields v. Commissioner of Social Sec., 2012 WL 4792916 (S.D.Ohio 2012),

"White coat syndrome" is a condition wherein the individual demonstrates elevated blood pressure in a clinical setting, and not in other settings, due to anxiety and apprehension about visiting the clinic. http://www.whitecoatsyndrome.org/.

Now, what relevance does this have to polygraph evidence? As noted in Veazey v. Communications & Cable of Chicago, Inc., 194 F.3d 850 (7th Cir. 1999),

The standard polygraph has three components: a blood pressure cuff, a galvanic skin response indicator, and a pneumatic chest tube. The blood pressure cuff is attached to a person's upper arm to record changes in blood pressure. The galvanic skin response indicator measures changes in the skin's electrical conductivity, which increases when a person perspires. It consists of two electrodes which are attached to the index and second fingers of one hand. The pneumatic chest tube is strapped around the chest to measure alterations in breathing patterns. Other components can be added to the standard polygraph. Some polygraphs include a pneumatic tube which is stretched around a person's throat to gauge swallowing, contractions of the throat, and voice muscle tension. The more "sophisticated" polygraphs may also be connected to chairs which have seats and armrests wired to monitor muscle pressure and body movements.

So, one of the key components of a polygraph exam is blood pressure. As I noted a few days ago, the problem with most (all?) of the polygraph studies showing that polygraph exams have a high accuracy rate is that they lack ecological validity. As I noted in my prior post,

Based upon the way that polygraph exams work, you can see why most polygraph studies lack ecological validity. Many of these studies are done on college (psychology) students with nothing or at most a few bucks at stake. Such a study might conclude that polygraphs are 87%, 90%, or even 95% accurate. But what does this tell us about the accuracy of polygraph exams on criminal defendants?

These defendants are often subjected to pretrial incarceration. They often have limited resources. They frequently have an overburdened and inexperienced public defender. Their liberty is often at stake. Their life is sometimes at stake. Etc., etc. It is easy to see why there are few false positives when carefree college students are tested. But what about jittery criminal defendants with everything to lose? (And what about sociopathic criminal defendants who are among the 5-10% generally recognized as untestable?).

Now, what does white coat syndrome tell us about criminal defendants? My argument is that it tells us that there is likely to be a significantly higher false positive rate among criminal defendants than research subjects. Here is some relevant commentary:

•The polygraph is effective in getting suspects to confess. The test is inherently stressful, and polygraph examiners are generally trained, experienced interrogators....In field studies, "confessions are most often obtained by polygraphers after a subject has failed the polygraph test." Major Scott E. Reid, Military Rule of Evidence 707 and the Art of Post-Polygraph Interrogation: A Proposed Amendment to the Blanket Exclusionary Rule, 2001-NOV Army Law. 1, 5 n.16 (2001); and

•"Furthermore, polygraph examinations are often highly stressful for the subject because, through this interrogation technique, both the innocent and the guilty are thus 'informed' that the polygraph indicates they are liars who have committed illegal acts." Julia K. Craig, Note, The Presidential Polygraph Order and the Fourth Amendment: Subjecting Federal Employees to Warantless Searches, 69 Cornell L. Rev. 896, 904 (1984).

In other words, based upon the stressful environment of a polygraph exam, we might expect the blood pressure of a criminal suspect to be elevated regardless of whether he is lying. Conversely, we wouldn't necessarily expect such an elevation from a college student taking part in a polygraph study who has no skin in the game.

Now, you may ask, "What about baseline questioning?" If my theory is correct about the blood pressure of a criminal suspect being elevated during a polygraph exam is correct, wouldn't that it also be reflected in the baseline questioning conducted during an exam wherein the examiner asks the suspect questions with known answers to establish a baseline reading of physiological responses? And wouldn't that mean that we would still achieve relative accuracy becauase we are comparing elevated reading #1 (baseline reading) against elevated reading #2 (reading after answers to questions related to the crime?

I don't think so. Why. Well, look at the way that courts treat routine booking questions. They treat these as benign questions that don't trigger Fifth Amendment scrutiny or the Miranda warnings. This is to be contrasted with custodial interrogation, which is "inherently coercive" and increasingly stressful as it proceeds. Wouldn't the same reasoning apply to polygraph exams. Sure, a suspect is likely somewhat stressed when answering baseline questions during a polygraph exam, but that's an entirely different ballgame than when he is being asked questions about the crime charged by an experienced interrogator.

-CM 

Where The Truth Lies: Court Of Criminal Appeals Of Texas Deems Polygraph Evidence Admissible At Community Supervision Revocation Hearing

Back on October 30th, I posted an entry about the admissibility of polygraph evidence at probation revocation proceedings. In that post, I peripherally mentioned the recent opinion of first impression by the Court of Criminal Appeals of Texas in Leonard v. State, 2012 WL 715981 (Tex.Crim.App. 2012). In this post, I will look at Leonard in a bit more detail.

In Leonard, 

William Thomas Leonard, pleaded guilty to injury to a child and received five years' deferred adjudication and a $750 fine. The conditions of his community supervision included sex offender evaluation and counseling, and required that he submit to, and show no deception on, polygraph exams. After a hearing on the motion to adjudicate, the trial court found that [Leonard] had violated the terms of his community supervision; he was adjudicated guilty and sentenced to seven years' confinement.

Specifically, at the hearing,

psychotherapist George Michael Strain....testified that [Leonard] was discharged from treatment for failing five polygraphs. Strain further testified that the use of polygraph testing is a common part of sex offender treatment, and that test results are reasonably relied upon by experts in the field of sex offender treatment. Strain testified that the five failed polygraphs led him to feel that [Lewis] was not being honest with him and caused him to be concerned about the community's safety. Finally, Strain testified that he had no other concerns about [Lewis]'s treatment and that the five failed polygraphs were the only basis for [Lewis]'s discharge from treatment.

In addressing Lewis' ensuing appeal, the Court of Criminal Appeals of Texas initially noted that

In Romero v. State, we held that polygraph results should not be received into evidence even if there had been a prior agreement or stipulation because "such stipulation does nothing to enhance the reliability of such evidence when offered by either side on the issue of the guilt or innocence of the accused."...Romero involved a jury trial in which the trial court failed to give an instruction to the jury that the polygraph evidence was not direct evidence of guilt, but evidence that tends to indicate only whether the subject was telling the truth when tested.

The court, however, found as a matter of first impression that polygraph results are admissible at a community supervision revocation hearing, concluding that

Some of the underlying issues with the use of polygraph results are: the polygraph's reliability in determining guilt, the jury's difficulty in interpreting the results, and the tendency to treat the results as conclusive evidence of guilt....Most of the problems usually associated with the admissibility of polygraph exam results are not present in a community-supervision revocation hearing. In such an administrative hearing, the polygraph results are not used to establish guilt of the original offense, there is no jury to be confused or to overvalue the results, and the judge is not deciding guilt. In the case before us, the judge even acknowledged the general concerns with polygraph evidence and noted the distinction between evidence of guilt and evidence of truthfulness when tested. The polygraphs were not attempting to determine whether Appellant had committed the original offense to which he had pled guilty, they were used to determine whether he was being truthful in sex offender treatment. Strain testified that Appellant had never taken a polygraph for the originally charged offense and that he had admitted to the offense. We continue to support our precedent that polygraph results are inadmissible before a jury. However, the dangers of undue influence by polygraph results are not present in a revocation hearing such as this. We acknowledge that the problem of polygraph reliability may remain even in a revocation hearing. However, the fact that Appellant failed five polygraph exams before the State moved to adjudicate guilt indicates to us that the results in this case remained consistent.

I have some serious problems with some of the court's analysis. Sure, there was no jury at the community supervision revocation hearing, but polygraph evidence is just as inadmissible at bench trials as it is at jury trials. And I don't see how the fact that Lewis failed five polygraphs is relevant. Is the court saying that if a defendant charged with a crime fails five polygraph exams, the results should be admissible? Surely not.

That leaves the one possible justification for admissibility: The polygraph results were not used to prove that Lewis was guilty of a crime. But they were used as the sole evidence to conclude that he violated the terms of his community supervision, which led to a term of imprisonment for seven years. That's not quite a criminal conviction and sentence, but isn't it close enough to deem the polygraph evidence inadmissible? Polygraph evidence is inadmissible if a defendant is charged with petit larceny and faces a fine or a short stay in prison. Shouldn't it also be inadmissible when seven years incarceration is on the table, even if the evidence isn't being used to prove criminal guilt?

-CM

Where The Truth Lies: The Hearsay Problem With Lie Detector Evidence

I have been writing quite a bit about lie detector evidence recently and have been mainly focused upon the (un)reliability of such evidence. Until recently, I hadn't really thought about the hearsay implications of such evidence. But then I came upon The Significance (If Any) for the Federal Criminal Justice System of Advances in Lie Detector Technology, 80 Temp. L. Rev. 711 (2007), by past EvidenceProf guest blogger Jeff Bellin. In the piece, Professor Bellin makes a compelling case for much lie detector evidence being inadmissible under the rule against hearsay.

Federal Rule of Evidence 801(c) defines "hearsay" as 

a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

In turn, Federal Rule of Evidence 802 deems hearsay statements inadmissible unless a hearsay exception applies.

So, let's say that (1) a criminal defendant "passes" a polygraph or fMRI test, or (2) some other defense or prosecution witness "passes" or "fails" one of these tests. As Professor Bellin notes

The most cogent evidentiary objection to scientifically valid expert lie detector testimony is that it is hearsay. This is because any proffer of lie detector evidence will include two distinct elements: (1) an out-of-court statement by the defendant or another witness, and (2) expert testimony that the out-of-court statement is true. Central to the proffer, then, is an out-of-court statement that gives every appearance of being offered for its truth--i.e., hearsay. In fact, considering that a simple hearsay objection has the potential to render the entire debate regarding the scientific reliability of lie detector evidence (past and present) moot, it is surprising how little analysis has been devoted to the subject. 

Specifically,

The hearsay problem arises in virtually any presentation of lie detector evidence due to the fact that all such evidence depends for its relevance on an effort to prove the truth of an underlying out-of-court witness statement. This problem is readily apparent when a defendant attempts to introduce an exculpatory statement through a lie detector expert--significantly, the very scenario where lie detection could provide the greatest service to the criminal justice system.

A defendant's out-of-court statement to a witness that he did not commit the charged crime is a classic example of inadmissible hearsay. As a general matter such evidence, when offered by the defense, falls squarely within the hearsay prohibition and cannot be admitted under any hearsay exception. This prohibition similarly applies when the defendant (or any witness) makes an out-of-court statement to a lie detector expert. The expert's in-court repetition of the test subject's out-of-court statement is hearsay and inadmissible. As the expert's opinion is only relevant to establish the potential truth of the subject's answers, the hearsay bar to revealing those answers to the jury renders the lie detector expert's testimony irrelevant and inadmissible.

Indeed, in the case in which a defendant is offering evidence that he passed a lie detector test,

not only is the defendant's statement during the lie detector examination offered for its truth, but in introducing the statement through what is essentially a "truth expert," the defense attempts to establish its substantive truth in two separate ways. First, in traditional fashion, the defendant's assertion concerning a fact at issue is presented to the jury. As the defendant's assertion is only relevant for its potential truth, this statement, like virtually all witness testimony, is offered by its proponent for that purpose. Second, the statement is presented as true in a more novel way, through expert opinion testimony that an application of lie detection technology supports a conclusion that the statement is truthful. In essence, the statement is offered as substantive evidence, and then because the truth of the statement is in doubt, the defense supports the inference that the statement is substantively true with expert testimony.

So, would a hearsay exception apply to such lie detector evidence? Professor Bellin argues that not typical hearsay exception applies and that the only possibility would be the residual exception contained in Federal Rule of Evidence 807, which states that

Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:  

(1) the statement has equivalent circumstantial guarantees of trustworthiness;  

(2) it is offered as evidence of a material fact;  

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and  

(4) admitting it will best serve the purposes of these rules and the interests of justice.

But, in the event that courts don't apply this extraordinary exception, there seems to be another obstacle that lie detector advocates have to clear.

-CM

Eco-Dome: The Ecological Validity Problem With Most Polygraph Studies

Ecological Validity

The extent to which the conditions simulated in the laboratory reflect real life conditions. Using an experimental laboratory-based research method, as has been the tradition in Cognitive Psychology, rigorous control for confounding variables is put in place and the ideal is that the researcher can study the onlythe phenomenon of interest. By manipulating variables (so-called independent variables) in the experimental setup and observing the changes that result (measured in the change of the dependent variable) the researcher can infer causality: If (independent) variable X is changed, (dependant) variable Y also changes. By rigorously controlling for confounding variables and confining the experiment to the laboratory, the results can very well lack applicability and generalisability with regards to the richness of everyday life. Ecological validity refers to an acknowledgment of the fact that human action is situated and highly contingent on contextual factors/variables. To obtain 'valid' results, humans should be studied in the richness of their natural environment. 

As Adam B. Shniderman notes in You Can’t Handle the Truth: Lies, Damn Lies, and the Exclusion of Polygraph Evidence, 22 Alb. L.J. Sci. & Tech. 433 (2012), one of the main problems with studies on the accuracy of polygraph exams is the lack of ecological validity.

According to Shniderman,

Courts applying the Daubert standard often find that the polygraph fails to meet the standards of validity testing and having a known or established error rate. Courts upholding the exclusion rely on two general arguments relating to reliability (1) the error rate is unknown/debated/unacceptable, and (2) the studies of polygraph's error rate lack ecological validity and thus are insufficient to establish reliability. Several courts have taken a "generalist" approach to uphold the exclusion of polygraph evidence, meaning they simply state, as if an obvious and unavoidable conclusion, that polygraph evidence is too unreliable for court. For example, the court in State v. Wright held, "[g]enerally, the results of polygraph examinations are inadmissible because the reliability of the polygraph is questionable." In Scheffer, the Supreme Court's first case involving the ban on polygraph evidence, the Court upheld a per se ban on polygraph evidence in military courts. In his concurrence, Justice Thomas, along with three of his colleagues, held that "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." The opinion mentions S. Abram's book, The Complete Polygraph Handbook, which reports the overall accuracy of the Control Question Technique at approximately 87 percent, while other scientific studies suggest that the accuracy of the technique is "little better than [chance]." Particularly, the opinion cites the Office of Technology Assessment's 1983 report that states that the error rate for the polygraph is significant. The report, which reports the error rates claimed in twenty-eight contemporary studies of the polygraph, offered error rates ranging from 0 to 83 percent. While this report ignores numerous other studies, Justice Thomas gave the report its place in the history books as part of the rationale for excluding polygraph evidence. Other courts, and polygraph opponents, have criticized lie detection validation studies for lacking ecological validity.

As I have frequently noted, polygraph exams test stress, not truth.

The instrument typically used to conduct polygraph tests consists of a physiological recorder that assesses three indicators of autonomic arousal: heart rate/blood pressure, respiration, and skin conductivity. Most examiners today use computerized recording systems. Rate and depth of respiration are measured by pneumographs wrapped around a subject's chest. Cardiovascular activity is assessed by a blood pressure cuff. Skin conductivity (called the galvanic skin or electrodermal response) is measured through electrodes attached to a subject's fingertips.

Based upon the way that polygraph exams work, you can see why most polygraph studies lack ecological validity. Many of these studies are done on college (psychology) students with nothing or at most a few bucks at stake. Such a study might conclude that polygraphs are 87%, 90%, or even 95% accurate. But what does this tell us about the accuracy of polygraph exams on criminal defendants?

These defendants are often subjected to pretrial incarceration. They often have limited resources. They frequently have an overburdened and inexperienced public defender. Their liberty is often at stake. Their life is sometimes at stake. Etc., etc. It is easy to see why there are few false positives when carefree college students are tested. But what about jittery criminal defendants with everything to lose? (And what about sociopathic criminal defendants who are among the 5-10% generally recognized as untestable?).

So, my question is: Has there ever been or could there ever be a polygraph exam study with anything approaching ecological validity? I don't see how such a study would be possible. The closest example that I could find was described by David T. Lykken in Reply to Raskin and Kircher, 27 Jurimetrics J. 278, 280 (1987):

Raskin and Kircher prefer to rely upon a series of laboratory studies by Raskin and his associates, studies in which student volunteers are required to commit a mock crime and then to lie about it on a polygraph test. One of my four criteria for an acceptable study of polygraph accuracy excludes such experiments on the grounds that they do not adequately simulate the serious emotional concerns experienced by people undergoing lie detector tests in real life. Recently, however, three laboratory studies have been reported in which greater verisimilitude has been achieved. Two of them used the simple device of permitting each volunteer subject to privately decide whether to commit the 'crime,' which entailed a larger reward if he got away with it, or to accept a smaller payment so that he could be truthful on the subsequent test. The third study, done in a maximum security prison in Canada, achieved ecological validity by giving the inmate volunteers a reason to fear failing the lie test: they were led to believe that their failure might cost their fellow inmates a much desired prize and thus incur their wrath. One way we can tell that these recent laboratory studies were successful in eliciting genuine concern on the part of the subjects is that, in each case, about 40 percent of the 'innocent' subjects failed the polygraph test, just as in the better field studies.

So, in this study, in this study, there was a 40% false positive rate for inmates fearing that failing a polygraph could lead to incurring the wrath of their fellow inmates. What do we suppose the false positive rate would be for defendants facing a murder wrap and life imprisonment or the death penalty?

-CM