The Use of Polygraph Testing as Evidence - Essay Example

Table of Contents Introduction 2 How does the polygraph test work? 3 Argumentations of US Scientists 4 Polygraph tests in Norwegian, South Africa & Australia 6 Contentions of the US intelligence 7 Conclusion 9 References 11 The use of polygraph testing as evidence The validity of the polygraph testing to be used as an evidence has been questioned by many scientists who made several studies on the matter saying that it is not a reliable means of knowing if someone is telling the truth or not. This argument however has been countered by the National Security who maintained that this machine is their best investigative tool and has recommended to the US Congress the use of lie detector tests for their investigations. This proposal led to a legislative mandate legalizing the function of polygraph tests in investigation of national security issues. Under these two conflicting issues, the question still remains, is the use of polygraph testing a sufficient evidence to pin down a suspicious character? Does it really work? This study will attempt to investigate various criticisms, researches and feedback to bring to light the importance of the polygraph testing machine. What is a polygraph machine? A polygraph means “many writings” of the physiological activities at the same time, a method done by its inventor, William Marston, in 1917. His claimed that he “could reveal verbal deception by observing systolic blood pressure”.(EPIC, 2003) This claim was ruled out by the D.C. Court of Appeals stating that there was not enough scientific evidence to support the lie detector machine of Marston. A century later, another inventor came up with a new version of the lie detector machine. Leonard Keeler who invented a new version set up a school to train examiners, and eventually his version of polygraph machine was used in the legal investigations. A Polygraph machine is described as “a machine that records the body to an examiner’s question in order to ascertain deceptive behavior. The test measures physiological data from three or more systems of the human body- generally, the respiratory, cardiovascular, and sweat gland systems-but not the voice.” (EPIC, 2003). A separate testing is used for the voice. How does polygraph test work? Polygraph system is generally used for investigations of private businesses, juridical and for law enforcements. Certain restrictions were however imposed for polygraph testing for employee protection, under the Employee Protection Act of 1988 (EPPA). Under the EPPA, a pre-employment polygraph test is not required, and an employer cannot be dismissed for refusal to take a polygraph exam. Under this rule also, certain criteria must first be met if ever an employer requests for a lie detector test for an employee. Several states have adopted this system, but safeguards and variations were added to the system. For instance, majority of the states insisted that only professionals and licensed polygraph examiners be allowed to do the testing. The varying state regulations of polygraph testing are cited below: New York. “No employees or his agent shall require, request, suggest or knowingly permit any employee or prospective employee of such employer to submit to submit to a psychological stress evaluator examination and no employee shall administer or utilize results of such test within or without the state of New York for any reason whatsoever. N.Y. Lab Law 735. California. “No employee shall demand or require any applicant for employment or prospective employment or any employee to submit to or take a polygraph, lie detector, or similar test or examination as a condition of employment or continued employment. The prohibition of this section does not apply to the federal government or any agency or local subdivision thereof, including, but not limited to, counties, cities and counties, cities, districts, authorities and agencies.” Cal. Labor Code 432.2. Florida. “As part of a treatment program [for sex offenders], participation of a minimum of one annual polygraph examination to obtain information necessary for risk management and treatment and to reduce the sex offender’s denial mechanisms. The polygraph examination must be conducted by a polygrapher trained specifically in the use of the polygraph for the monitoring of sex offenders, where available, at the expense of the sex offender. The results of the polygraph examination shall not be used as evidence in a hearing to prove that a violation of supervision has occurred.” Fda. Stat. Ann. 947.1405 (10)(b)(1). Source: EPIC, 2003 Argumentations of US Scientists In a news release of NC&T/BSMA, the reliability of polygraph testing has been criticized by US scientists who did a lot of researches in polygraph examination. (n.d.) In this press release, PhD. Associate Professor of Radiology at Temple, Dr. Feroze Mohamed, had said that “polygraph test had failed to produce consistently reliable results because it relies on outward manifestations of certain emotions that people feel when lying”. According to Dr. Mohamed and his colleagues, these are demonstrated by changes of body positions, subtle facial expressions and increased perspiration that can be suppressed by a large number of people thereby compromising the accuracy of the test. Since polygraph test is not a credible instrument for detection, the implication of its use will be on the field of crime and prevention, and in proving the guilt or innocence of accused, Dr. Mohamad concluded. In this aspect, acceptance of polygraph tests in court as evidence is also in question. Nicholson reported several instances of high profile political cases where polygraph testing was used. He cited the arrest in 1999 of Jean-Philippine Wispelaere, former Defense Intelligence Organization Office, for trying to sell classified material, wherein ASIO carried out voluntary internal polygraph test . However, no comment was given by the proper government authorities on the matter. Nicholson also said in his report that the US National Academy of Scientists had concluded in 2002 that “someone who was a major security threat could beat the machine”. To prove this point, he illustrated the notorious US spy Aldrich Ames, a CIA officer; beat the polygraph test, notwithstanding the fact that he betrayed the country to the Soviets for many years. The deficiency of the testing lies not in the machine, according to Nicholson, who took note of the comment of Australian Polygraph services which carried out the test on Mike Scrafton. Scrafton claims that the polygraph testing remains to be an effective investigative tool, and people don’t beat the test, they beat the operators who are not properly trained on it. The most significant research on the reliability of polygraph testing was done by the National Academy of Sciences in 2002. This report, “The Polygraph and Lie Detection” was endorsed to the Department of Energy, which ultimately became the basis for the amendment of the polygraph legislations. NAS’ report found “polygraph testing to be unscientific because it lacked fixed standards”. In a capsule, NAS findings and conclusion are: Almost a century of research in scientific psychology and physiological provides little basis for the expectation that a polygraph test could have extremely high accuracy. The inherent ambiguity of the physiological measured used in the polygraph suggest that further investments in improving polygraph technique and interpretation will bring only modest improvements in accuracy. (EPIC)) On the lighter side, not all polygraph tests are for judicial concerns. Lately, it is used for entertainment. A TV show puts in movie personalities in hot seat and subject them to the lie detector test. The show meant no harm but rather it was more for laughs and amusements. It is also used for politics. An article that appeared in the Cleveland Leader on Feb. 25, 2008 figured out a deception in the polygraph test done to Larry Sinclair who claimed he had “sex with and taken cocaine” with then Presidential candidate Barack Obama. For employment purposes, a young engineer who wanted to be employed in NSA and to serve the country was totally disappointed with three failed polygraph exams on the grounds of drugs and sexual behavior, which was not true at all, and when he answered lies, surprisingly, he passed the test. He pulled out his application in exasperation. (Lifestyle, n.d.) Polygraph tests in other countries The justice system in other countries has their own skeptics on polygraph testing. In Norwegian, a report dated March 26, noted 95 polygraph tests given to males and females on account of adultery, sex abuse, homicide, violence and others. . However, results of these tests will not be accepted by the Norwegian Court on the following grounds: Future potential and effect upon miscarriage of justice. 1. Criminal and civil Norwegian courts will not admit polygraph tests as evidence until international scientific society has become more favorable. 2. Before taking polygraph testing in use, Parliament has to issue legal regulations for when and how such forensic evidence can be of help. 3. Probably the most intense negative attitude against use of polygraph tests come from conservative lawyers, psychiatrists acting as expert witnesses and from psychologists in basic research. 4. Their motives for being negative are of different nature and can be questioned. 5. Until there is a change in favor of polygraph tests they will not bed of help in reducing miscarriage of justice in special cases with no other evidence at hand. Source: Maastricht, 2006 In South Africa, polygraph test concerns employment. It is a new concept here and there is no legislation yet as to control the use of the test to protect the employee’s right against the abuse of the test. However, it is against their Constitution to compel someone to undergo a test unless he/she consents to it in writing. Where cases have to be heard, “Polygraphists are accepted as expert witnesses whose evidence needs to be tested for reliability. The duty of the commissioner is to determine the admissibility and reliability of the incidence.” Polygraph test results alone, will not be the basis for finding the guilt of a person, but it can be used as support of the evidence, report said. (Labor Protect). In Australia, Polygraph test results are not accepted in Australian courts as evidence since it is considered as an experimental technology. (Nicholson) Contentions of the government intelligence The US Department of Defense values the concerns of the scientists on the accuracy of polygraph testing but still considers it as its “most effective investigative tools” (Nicholson) Despite negative criticisms of scientists on polygraph testing, the DOE and counter intelligence officials went on with their proposal to Congress and detailed their defense for the use of polygraph testing as an investigative tool. It states: * It elicits significant admissions of misconduct or problem reduces behavior during the pretest and posttest interviews. * It has deterrent value, helping to discourage casual indiscretion. * It reduces the perceived need for other more arduous and expensive investigative techniques, and it may replace some other unwelcome approaches such as random drug testing. * It even contributes to a sense of camaraderie among cleared insiders, serving as a kind o initiation ritual. Source: (Aftergood, 2000) On the basis of the NAS report to Congress, the Congress requested the Department of Energy to reconsider its position on polygraph use. The DOE however maintained its stand and resubmitted a counter proposal mentioning among others, “that regardless of NAS’s findings, the rules constituted a balanced approach for carefully circumscribed use of polygraph examinations as a tool that appears in current circumstances well-suited to accomplish the Congressionally-specified purpose – “to minimize the potential for release or disclosure of classified data, materials or information.” (Aftergood) Despite the controversies on polygraph testing, EPIC reports that the Department of Defense looked at the issue and favored an increase of its use for security and counterintelligence measures. The DOE, in September, 2003, finally reconsidered its position and came out with substantial changes that are: “to substantially reduce the number of people subject to polygraphs and to ensure that no negative actions are taken based on a single polygraph result”. This will result to a significant decrease in the number of people required to take the lie detector test; from 20,000 to 4,500. However, personnel holding security positions are mandated to take the test, as well as personnel positions in Headquarters Office of Intelligence, at the Field Intelligence Elements and in the DOE Special Access Programs. The refined provisions of the polygraph law says, “If it is a requirement of the program sponsor, employees of a non-DOE Special Access Program may be subjected to the tests. Other employees may also be screened based on their access to the top secret and national security information”. This DOE initiative was commended by US Senator Pete Domenici, the chairman of the Senate Energy and Natural Resource Committee. (News, 2003), However, in a separate instance, Senator Domenici recognizes “the morale problem:” of the scientists on the matter. He said: “They just do not like the FBI treating them all like criminals or even suggesting that, as patriotic scientists, they ought to take their lie detectors and be treated as if there is some criminal in their midst.” (Aftergood). Aftergood reported that after the policy on polygraph testing was implemented to the counter-intelligence personnel, no one had refused to under-go testing and has in no case, test results led to the termination or transfer of an employee. Conclusion Polygraph tests results should not stand alone and be used to pass on a judgment. Critics on using polygraph test results have scientific basis to back up their oppositions. It would be most utterly unfair to pass judgment of guilt to someone based on this test alone as unified arguments of scientists does not favor the use of polygraph test as evidence. The use of polygraph test for security and intelligence purposes is favorable on the reason that it will deter any attempt of spies and enemies of the state for highly classified information of the government, taking into consideration the present status of terrorism. Terrorists and enemies of state may be hiding under the cloak of employment to get their hands on secured information, in which case, polygraph tests may be a considerable tool to uncover deception. References Aftergood, S. (2000, November 03). Polygraph Testing and the DOE National Laboratories. Science: Essays on Sciences and Society.. 10 Nov. 2008. http://www.sciencemag.org/cgi/content/full/290/5493/939 Cleveland Leader. (2008, February 25). Larry Sinclair Polygraph Test Indicates “Deception” in Obama Claims” 9 Nov. 2008. . Electronic Privacy Information Center (EPIC). (2003, October 01). Polygraph Testing. 10 November, 2008. < http://www.epic.org/privacy/polygraph/default.html> Labour Protect. Polygraph Testing. 9 Nov. 2008. Lifestyle. Polygraph statement of NSA Reject. 10 Nov. 2008. Maastricht, S. 2006. Polygraph tests in Norwegian courts; Legal status and future potential. 09 Nov. 2008. Nicholson, B. (2004, August 18). Polygraph test carries no credence. The age.com.au. . 10 Nov. 2008. < www.theage.com.au/articles/2004/08/17/1092508474777.html > News Release. (2003, September 04).Domenici commends DOE for Sharply Reducing Number of Employees Subject to Polygraph Testing. 10 Nov. 2008. NC&T/BSMA. Brain MRI stands up to polygraph test. Theallineed.com. 10 Nov. 2008. http://www.trheallineed.com.medicine/06021301.htm. Read More