How to set aside false outcomes of polygraphs

Polygraphs are commonly known to be unreliable.

Consistent with my own, “in the trenches” experience as a criminal defense attorney for over 30 years, the Dallas Morning News reported, in an article that began on the front page of the July 11, 2012, edition, that “the National Academy of Sciences said the federal government shouldn’t use polygraph screening because it was too unreliable.” Yet, despite that unreliability, the article went on to say that the very little known federal agency, the National Reconnaissance Office, conducts 8,000 polygraphs a year asking people, among other questions, about their sexual fantasies in order to ferret out potential terrorists; and, “the U. S. Defense Department conducts almost 46,000 [polygraphs tests] annually ...on bureaucrats in Washington...[and] also private contractors across the country.”

Why are polygraphs unreliable?

Because there is a subjective element in

  • (1) the preparation of the person to be tested
  • (2) the formulation of the questions and
  • (3) the interpretation of the results.

A real life case study with unreliable polygraphs:

An example that I personally experienced with a client will demonstrate the danger of relying on polygraphs and on the opinion of polygraphers, who can wield awesome power in the criminal justice system. This is what happened: An excellent polygrapher tested my client on the issue of whether he had fondled his 16-year-old niece. My client failed the test. I confronted my client and asked why he had lied to me about whether he had committed the offense. The client insisted that he had told me the truth; however, he revealed to me that he had used cocaine 15 minutes before his niece walked into the TV room to watch a program with him; and, he did not tell the polygrapher or anyone else about his cocaine use on that occasion.

I asked the polygrapher if my client’s failure to reveal his taking cocaine could make him fail the test on the question of whether he molested his niece. The very highly regarded polygrapher said to me, “Yes, Arch, he can appear guilty, when he is not, if he feels guilty about the cocaine and does not reveal it. The machine only tests the person for deception, not what the deception is about.” The client took the test again, but, this time, he discussed the cocaine with the polygrapher before the test. He passed the test “with flying colors.”

So much for the accuracy of polygraphs. Yet, this polygrapher is considered one of the best in the United States. What went wrong? Obviously, the polygrapher failed to adequately probe the factual circumstances surrounding the accusation of my client. That was human error, by one of the very best polygraph operators. However, as a result of the so-called “failed” first polygraph, the client (who was “cleared” of the offense by the second test) was preliminarily presumed guilty by the polygraph operator, his lawyer and the prosecutor (if he learned about the “failed” test), which could potentially change the outcome of the case of my 40-year-old client, who had no prior criminal record, a steady work history, a stable family with a solid marriage, and was active in civic activities.

Only the thorough cross-examination of the client in the office of the lawyer later uncovered the fact about the cocaine, because the client thought that if he admitted his cocaine use to the polygraph operator, he could be prosecuted for that felony. (If an attorney, in a criminal case, hires a polygraph operator – or any other expert – the results of the expert’s testing or analysis are protected from disclosure under the umbrella of the attorney-client privilege and are confidential.)

How to prepare thoroughly for a polygraph test

I tell all my clients the above story about the defendant who used the cocaine, so that they will get “off their chest” (preferably to me) anything that they may be feeling guilty about, whether it is cheating on their taxes, overstating their assets on a financial statement submitted for a bank loan, infidelity, drug use, etc. I explain to clients that the polygraph operator does not care about any of those things because they are completely irrelevant to the pending accusation, for example, of a federal conspiracy to illegally export arms and munitions. (Even if cocaine or alcohol may lower inhibitions, the polygraph question is, yes or no: “Did you do ___________?”)

I further explain to the client, that, at my insistence, the polygraph operator will not write any of those immaterial items down for his report or even in his notes; and, further, I can summarize for the operator the client’s feelings, and make certain that they will remain confidential. By relating to my clients the above incident of the falsely “failed” polygraph test, I avoid the so-called “failed” polygraph test problem because of the failure of a client to reveal things that are troubling to his/her conscience.

Are polygraphs admissible into evidence?

In federal courts, the answer is yes, in the discretion of the Court, but chiefly on pre-trial issues, rather than before a jury. In state courts, the answer varies, but the trend is to admit them on a limited basis. The Dallas Court of Appeals, for example, recently approved the admissibility of polygraph test results in a hearing on a motion to revoke probation for a sex offender who failed five polygraphs on the question of whether he had complied with the conditions of probation. The Court held that the sex therapist, testifying as an expert, who recommended that the defendant’s probation be revoked, was allowed to base his opinion solely on the defendant’s having failed the polygraphs.

Another case study about problematic polygraph testing

Specifically, the Court approved the propriety of the therapist’s conclusion that, “I felt he [the defendant] was being dishonest because he failed the mandated polygraph exams.” The therapist then concluded that by his dishonesty, the defendant necessarily had not complied with the conditions of probation, which made him a danger to society. The defendant was sentenced to seven years imprisonment, essentially because he failed the polygraphs. The phenomenon of the pronounced increase in the use of polygraphs in one particular area of the criminal justice system, highlights an ongoing problem: In an alleged sex related offense, experienced judges will tell you that more people accused of sex offenses are wrongfully convicted than with any other criminal offense. Criminal defense lawyers know that it is very risky to have a jury trial. So, when the prosecution offers a 5-year deferred adjudication probation (no conviction), for a technically (but not legally, because the victim is under age) consensual touching, outside of the clothes, of the breast of a 16-year-old, well-developed girl, who told the 19 ½-year-old male defendant that she was 17 years old, most male defendants will accept a plea agreement offer of probation.

Otherwise, they run the risk of getting a felony conviction on their record; and/or they may get a sentence, from a conservative jury, of a term in the penitentiary; they will have to spend much more money for their lawyer to go to trial; and they will have to endure the embarrassment of a public trial, which, even if the citizen-accused is found not guilty, still causes suspicions to linger.

But then, the defendant, now on the probation he has accepted, is in for a BIG surprise, which many lawyers do not warn him about, involving the polygraph. He has to admit to the probation officer that he has a problem with, essentially, “deviant” sexual conduct, and take a series of polygraphs to “prove” that he has not violated the terms of probation. Those terms and conditions of probation typically include: Not looking at “pornography,” (e.g., Playboy magazine; HBO or other TV shows that might show nudity, etc.); in the above example of the 16-year-old, well-developed girl, who is considered a “child” under the Texas Penal Code, the defendant can be ordered not to be around any children, including his own children, unless he is “supervised”; he can also be ordered to not be within 1,000 feet of a school or day care (even though the alleged victim was 16 years old and readily admitted that her conduct was consensual with the 19 ½-year-old).

Will the defendant fail a polygraph if he is at a grocery store, and is inadvertently “around” teenagers or younger children that he does not admit to? What if the polygraph has questions for a defendant as to what thoughts he had about a well-developed 16-year-old girl in the grocery store? If he had sexual thoughts, were the thoughts, therefore, “deviant” thoughts about a “child” (defined as being under 17 years old) under the Texas Penal Code?

If he fails that question on the polygraph, his probation can be revoked for failure to abide by the probation conditions, and he can be sentenced to the penitentiary.

Do failed polygraph tests always result in conviction?

Whether or not a failure of a polygraph test will actually result in a revocation of a defendant’s probation can depend on several things, including the defendant’s previous conduct on probation, and, somewhat arbitrarily, on whether the probation officer likes the defendant or whether he/she thinks he is a smart aleck and needs “to be taught a lesson,” with a little taste of jail or the penitentiary. Sometimes it occurs in State District Court in Dallas County that two polygraph operators will contradict each other, and one will testify that the defendant on probation passed the polygraph test that he had been in compliance with his probation conditions, and the other polygraph operator will testify that he failed the test as to whether he had violated the conditions of probation. There is no jury in a probation revocation hearing, so the District Judge, often a former prosecutor, will frequently side with the polygraph operator who he/she has used as a former prosecutor. I have seen a 40-year sentence imposed by a District Judge in exactly these circumstances with polygraph operators testifying against each other. The judge went with the opinion of the polygraph operator whom the judge had used when she was a prosecutor. After the hearing, I said to the operator, whose opinion had prevailed, “You have almost as much power as the Almighty with that polygraph machine of yours.” He looked at me, smiled, and walked away.

The unintended consequences of polygraph testing

In addition to being at risk for having his probation revoked for failing a polygraph for accidental, incidental or natural “deviant” thoughts, the defendant’s picture, as a “sex offender,” is posted for his lifetime on the Texas Department of Public Safety website, which tells the address of the sex offender, and gives a profile of his offense (in the above example of the 16-year-old, that the defendant committed the crime of “sexual assault of a child”; the age of the victim is included on the next line below that, if a reader takes the time to scan down further). The defendant, who has accepted probation, must register with the local police department and report to the police periodically. Failure to follow the sex offender registration requirements is a separate felony. Not surprisingly, the Texas Legislature has heard testimony, that I have personally presented, from mothers, whose 19-year-old sons had consensual sex with 15- or 16-year-old girls (whom the sons are more than three years older), that their sons have committed suicide in these situations to avoid the stigma of being a lifetime “sex offender.”

Read more opinions about polygraphs in the section on my blog about polygraphs:

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