Anyone will tell you that polygraphs are not allowed in a court of law. This is not necessarily correct. Most courts might not allow the results of a polygraph examination. However, courts frequently admit statements obtained in the polygraph examination. This may appear to be straightforward, but it is not. Any use of a polygraph is dangerous and manipulative. Basically, many polygraph examiners will claim the subject “failed the polygraph” and push to have the subject change the story. They will claim your brain is suppressing the truth to protect the subject from feeling ashamed or guilty. The subjects assume the polygraph examiner is being honest and then they create a story that the machine accepts as “truth.”
If you are asked to submit to a polygraph, do not agree to it. You will be accused of “having something to hide.” When this occurs, one suggestion is you will agree to a polygraph examination if (a) is not an examiner “bought and paid for” by the government/corporation, (b) you can have others (detectives, victims, witnesses, or insurance adjusters) submit to a polygraph examination on the same day as your examination, (c) when you pass it, the charges against you will be immediately dismissed and you will not be arrested (criminal case) or the corporation/insurance company will immediately pay the full amount your are due (civil matter) and (d) you will receive all notes, records and any other materials created by all of the polygraphs. I suspect you will be told there will not be any agreements. This is because the person asking for the polygraph examination is not interested in seeking the truth, but to develop evidence to be used against you.
Notwithstanding the foregoing, I believe there are honest and ethical polygraph examiners. The likely believe in what they are doing and trust the polygraph. However, I do not believe any of them would testify, under the penalty of perjury, that a person is actually being honest or deceptive. They know the polygraph does not catch everyone all of the time. The opposite is also true: the polygraph does report deception even when the subject is truthful. For this reason, polygraphs are fallible and should be avoided.
The purpose of this post is to provide people with the culmination of my research and inform them of the abuse and misuse of polygraphs. This post results hundreds of hours of researching polygraphs and its use in Louisiana. Ultimately, I reached an inescapable conclusion; a polygraph is not an accurate and scientific instrument. Rather, it is tool of manipulation.
The Myth and History of the Polygraph
According to the ancient Greeks, the first human being owed his existence to a competition staged by Zeus to reward the most inventive of the gods. Ken Alder, The Lie Detectors-The History of an American Obsession, p. xii (2007). It was to be the world’s first science fair, with Momus, the god of criticism, to serve as judge. Id. Each competitor tried to outdo the rest. Id. Athena constructed a magnificent dwelling; Poseidon built the first bull; and Prometheus made the first man. Id. Momus didn’t think much of any of the entries, but he was particularly scathing about man. Id. Athena’s dwelling was so grand it was unmovable; what if its inhabitant’s quarreled with their neighbors? Id. Poseidon’s bull had horns on either side of its head; they would have been more effective up front. Id. And as for Prometheus’s man, he lacked a window in his breast whereby others might look in and see “all the man’s thoughts and wishes…, and whether he was lying or telling the truth.” Id.
For centuries, people have searched for the window into a man’s soul to find honesty. The Greeks developed a science of physiognomy to assess people’s character from their facial features and gestures. Id. On the assumption that anxious deceivers generated less saliva, suspected liars in ancient China were asked to chew a bowl of rice and spit it out. Id. Judges in Indian scanned for curling toes. Id. One pious Victorian physician suggested God endowed human beings with the capacity to blush so as to make their deceptions apparent. Id. Today, there are many books on body language, eye movements, and hand gestures, all claiming to identify deception. Id. However, as we all know, there is no Pinocchio tell. There is no lie detector test that can determine whether people are actually telling the truth or not. Id. There is no window to the soul. Anyone who claims he can see the soul of another and see deception is deceivingly selling deception.
In 1920, a cop with a Ph.D., John Larson, and a high school student, Leoarde Keeler, endeavored to see man’s soul and invented the polygraph. Id. Like Frankenstein’s monster, the polygraph ultimately destroyed the lives of these two gentlemen. One went insane trying to destroy it and the other became so consumed by mistrust, he was driven to an early grave. Id. The polygraph has been applied as psychological torture and has accused many good and innocent men of wrongdoing. See generally, Ken Alder, The Lie Detectors-The History of an American Obsession, (2007). The only deception proven by the polygraph is that it can detect deception.
The National Research Council of the National Academy of Sciences found polygraph tests suffer from unacceptable low accuracy. John J.B. Allen, Never Trust the Polygraph, The Writ p. 15 (October 2013); George W. Maschke and Gino J. Scalabrini, The Lie Behind the Lie Detector, (4th Ed.). Likewise, other studies concluded the “accuracy rates of polygraph test results are unavailable.” Leonard Saxe and Gershon Ben-Shakhar, Admissibility of Polygraph Tests: The Application of Scientific Standards Post-Daubert, Psychology Public Police and Law (March 1999). There is simply no consensus that polygraph evidence is reliable. Id. Various sources of measurement error affect the interpretation of a polygraph examination. Id. Reliability studies of polygraph-based classifications are scarce. Id. There are no studies that estimate the most important sources of measurement error threatening the reliability of a polygraph test’s results. Id. Most research does not fully address key potential threats to validity. See, The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection, p. 3 (2003). Almost a century of research in scientific psychology and physiology provides little basis for the expectation a polygraph test could have extremely high accuracy. George W. Maschke and Gino J. Scalabrini, The Lie Behind the Lie Detector, (4th Ed.)
To be scientifically valid, there must be an overall evaluative judgment of the degree to which empirical evidence and theory support the adequacy and appropriateness of the interpretations of the polygraph test scores. Leonard Saxe and Gershon Ben-Shakhar, Admissibility of Polygraph Tests: The Application of Scientific Standards Post-Daubert, Psychology Public Police and Law (March 1999). Validity also requires interpretations of polygraph results be supported by theoretical rationale and empirical data. Id. The basic nature of deception is unclear and individuals behave in ways that only might seem deceptive, when they are not deceptive. Id. Thus, the concept of deception may be a relative concept, and what may appear to be a complete truth to one person can appear deceptive to another. Id. Truth is often hard to determine and is difficult to disentangle the roles of physiological responses. See, The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection, p. 66 (2003).
The theory supporting polygraph findings must tie deceptive behavior to psycho-physiological response patterns. Id. But, the polygraph examiners have not solidified this tie and only generically infer links between deception and test results. Inferences from polygraph tests presume that deception exhibits unique causes certain psychological reactions and certain physiological concomitants. Id. p. 67. Unfortunately, despite long-standing interest in detection of deception, no theory establishing the relationship between physiological changes and deception exists. Id. Polygraph research has not developed and tested theories of the underlying factors that produce the observed responses. See, The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection, p. 2 (2003). Interpreting physiological activity, as deception is a judgment, not a valid interpretation of test results. Id. There is no theory that ties deception (or any criminal activity) with physiological reactions. Id. Furthermore, there is no unique physiological reaction to deception, and all physiological measures used for polygraph tests are sensitive to, and can be elicited by, a host of factors other than deception or criminal activity. Id. If deception is not uniquely related to physiological reactions, and theory cannot explain the nature of the relationship, it is impossible to predict the conditions under which polygraph test results will be accurate or inaccurate. Id.
Although psychological states often associated with deception (e.g., fear of being judged deceptive) do tend to affect the physiological responses the polygraph measures, these same states can arise in the absence of deception. See, The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection, p. 2 (2003). Moreover, many other psychological and physiological factors (e.g., anxiety about being tested) also affect those responses. Id. at p. 2. Simply said, factors other than truthfulness affect the physiological responses being measured can vary substantially across settings in which polygraph tests are used. Id. at p. 3. There is little knowledge about how much these factors influence the outcomes of polygraphs tests in field settings. Id. The lack of understanding of the processes that underlie polygraph responses makes it very difficult to generalize from the results obtained in specific research settings or with particular subject populations to other settings or populations, or from laboratory research studies to real-world applications. Id.
Nevertheless, based upon the polygraph measurements of several physiological processes, polygraph examiners infer a psychological state, namely whether a person is telling the truth of lying. See, The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection, p.1 (2003). Then the polygraph examiners render an interpretation that involves comparing physiological responses to certain questions and responses to other questions. Id. p. 14. As stated above, the polygraph examiners assume there is a correlation between deceit and physiological responses, and they presume there questions are sufficient to invoke a physiological and physiological reaction. Id. pp. 14-15. Based on these assumptions, the polygraph examiners infer deception. However, should any part of these assumptions be erroneous, the results of the polygraph are suspect at best. This means the polygraph examination and results are completely without any theoretical foundation and validity. George W. Maschke and Gino J. Scalabrini, The Lie Behind the Lie Detector, (4th ed.)
The polygraph subsumes a “baseline for truth.” George W. Maschke and Gino J. Scalabrini, The Lie Behind the Lie Detector, (4th Ed.) To be seemingly valid, the polygraph examiners must prove, with actual evidence, this baseline. There is no precise quantitative estimate of polygraph accuracy. Id. In sum, the field of validity of polygraphy has not been established by competent scientific research, nor can it be. Id.
Psychophysiological testing, like all diagnostic activities, involves using specific observation to ascertain underlying, less readily observable, characteristics. See, The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection, p. 29 (2003). Claims about the quantity or attribute being measured are scientifically justified to the degree the measurements are reliable and valid with respect to the target quantities or attributes. Id. Polygraph examinations and results do no render a scientifically justified degree of quantities or attributes. Id. Without a measure of degree and the strength of it, there cannot be a valid diagnostic decision. Id. Rather, the polygraph measures a physiological reaction, of an unknown degree. Id. Then the polygraph examiners opine what the measurements mean in relation to truth and deception. Id. This subjective process is not reliable because these identical measurements and opinions cannot be repeatable across different times, questions, responses, places, subjects, polygraph instruments, examiners and conditions. There is no test-retest reliability. Id. The threshold of positive and negative evidence changes in each examination. Id. at pp. 42, 46. As such, the polygraph is not a diagnostic test of truthfulness or deception because there are no independent indicators of actual truth or deception. Id. at p. 37.
Furthermore, polygraph examiners have been known to inflate or even fabricate admissions. Id. This may be especially likely to occur when the polygraph examiner believes the charts/recordings indicate deception or simply harbors bias against the subject. Id. It was noted, “polygraph examiners inflate their own figures, mischaracterize what is an admission, all for the purpose of serving their own industry.” Id. Polygraph examiners consider admissions/confessions like a “trophy.” Id. Observational studies of polygraph testing in the field are plagued by selection and measurement bias, such as the inclusion of tests carried out by examiners, with knowledge of the evidence and of cases whose outcomes are affected by the examination. See, The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection, p. 4 (2003). Due to these inherent biases, observational field studies are also highly likely to overestimate real-world polygraph accuracy. Id. The room for any inappropriate motivation or bias in scoring polygraphs negates any semblance of the scientific method. To further complicate and contrive the validity of the polygraph results, the examinations frequently lack a clear and independent determination of truth. Id. Hence, there is absolutely no validation of the polygraph’s results.
Computerized Polygraph Readings
The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph also found that efforts to use technological advances in computerized recording to develop computer-based algorithms that can improve the interpretations of trained numerical evaluators have failed to build a strong theoretical rationale for their choice of measures. See, The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection, p. 196 (2003). They have also failed to date to provide solid evidence of the performance of their algorithms on independent data with properly determined truth for a relevant population of interest. Id. The Committee believed their claimed performance is highly likely to degrade markedly when applied to a new research population and is even vulnerable to the prospect of substantial disconfirmation. Id. In conclusion, computerized scoring theoretically has the potential to improve the validity of hand scoring systems; the Committee did not know how large an improvement might be made in practice; and available evidence is unconvincing that computer algorithms have yet achieved that potential. Id. There is no proof that any software algorithms peddled by polygraph manufactures can determine with mathematical precision the probability that a particular individual is lying or telling the truth. Id.
The difficulties that exist with computerized scoring of polygraph tests also exist, and may be multiplied, with possible expert systems for combining polygraph results with other forms of data. These computerized tests run the risk of unintended outputs due to glitches and errors in algorithms and computer processing. In fact, there have been a number of reported problems with the Lafayette LX 4000. This polygraph model exhibited a “glitch” in measuring the amount of perspiration being released by the subject. The machine equates perspiration with deception. This particular model was reported as “less accurate when the automatic mode is used.” Sarah Sheridan, Reports of Problems with Polygraph Test, Forensic Science in North Carolina (2013). Apparently, there was “an alarming 16-point difference” between manual and automatic modes on this measurement. Id. When presented with this issue, the manufacturer, Lafayette Instrument Company, issued a statement and claimed, “there is nothing wrong with the LX 4000,” it is the “best technology available” and it has “been shown to work satisfactory.” Id. Despite this usual public relations releases, the manufacturer acknowledges its product is “in agreement most of the time” and “there are ‘occasional differences” in its results. No matter how the Lafayette Instrument Company attempts its damage control, we are dealing with the consequences of its “satisfactory” (i.e., close enough for government work or good enough) performance knowing the instrument has known glitches and errors.
The existence of glitches and other errors can go largely unnoticed because the polygraph examiners are not required to pass any certification tests, they are not certified to repair and calibrate their polygraph instruments, and their potential for inaccurate results are higher than most other forensics equipment, which is required to meet certain standards to ensure accuracy. Id. Along these lines, there does not appear to be any indication the polygraph machine’s claimed ability to measure and record is calibrated on a routine basis. Based on the research stated above, the polygraph instrument cannot be calibrated or verified because there are no known independent indicators of actual truth or deception. See, The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection, p. 37 (2003). This fact is most alarming considering the polygraph examiners and their clients’ claim the polygraph machine is a diagnostic one, even though it is never calibrated and its application parity is non-existent.
A polygraph examination is a process involving the examiner in a complex interaction with the instrument and the examinee. Id. at 197. Computerized scoring algorithms to date have not addressed this aspect of polygraph testing. Id. at 197. For example, they have treated variations in comparison questions across tests as unimportant and have not coded for the content of these questions or analyzed their possible effect on the physiological responses being measured. Id. at 197. It is, therefore, possible the examiner’s judgments are based on information unavailable for a computerized scoring algorithm and the examination is invalid. Id. Little evidence is available from the research literature on polygraph testing concerning this possibility. Id.
Consider any applications, the algorithms and computer processing of the polygraph software cannot properly perform unless the parameters are set to “true.” As a binary system, the computer processing cannot “guess” what is “true” or “false.” Accordingly, the computerized scoring of polygraph tests is entirely dependent on what factors the programmer determined and set as “true.” The programmers do not have any training, understanding or comprehension of truth and deception, especially as it concerns the individuality of each subject. Any reliance on the results of a computer application is, therefore, unreliable, invalid and inaccurate.
The Lie of the Polygraph
The polygraph evidence has two general issues, (1) whether the polygraph examiner is an expert and applied proper methodologies in this case and (2) whether the polygraph tests and results are scientifically valid. Admittedly, there is some level of difficulty in separating the polygraph examiner from the polygraph test. It is important to keep in mind the overlap includes a plethora of cases rejecting polygraph evidence, which inherently includes the opinions and findings of the polygraph examiner.
The accuracy of the polygraph needs to be commensurate to the damage it causes. The polygraph results must be completely accurate because it completely ruins the lives and careers of people. However, polygraphs are only considered “evidence” in spy movies and detective novels. As the Judge Weaver noted during a fictitious murder trial,
Ladies and gentlemen of the jury, a polygraph or lie detector test is not admissible in evidence because no one has ever been quite sure that some people couldn’t lie to a lie detector and get away with it.
Robert Traver, Anatomy of a Murder (1903)
Many other experts in the field of deception share this sentiment. In fact, the foremost authority on this subject is Dr. Paul Ekman, who authored Telling Lies p. 165 (2009), who plainly wrote, “[n]o clue to deceit, in face, body, voice, or words is foolproof, not even the autonomic nervous system activity measured by the polygraph.” Further, Dr. Ekman wrote, “[t]he polygraph doesn’t detect lies per se.” Id. at p 198. Another authority, the U.S. Supreme Court, ruled there is “simply no consensus that polygraph evidence is reliable.” United States v. Scheffer, 523 U.S. 303 (1998); Adam Benforado, Unfair-The New Science of Criminal Injustice, p. 144 (2015). Another interesting and applicable point is “the fact that we expect lying to produce bodily manifestations has left us ready to accept an array of dubious lie detectors that seem to offer objective analysis.” Adam Benforado, Unfair-The New Science of Criminal Injustice, p.143 (2015). Trying to spot lies by using the polygraph lie detector is hazardous. Paul Ekman, Telling Lies p. 189 (2009).
Many law enforcement agencies use polygraphs in their investigations; however, the effectiveness of the polygraph has been questioned. Christine H. Orthmann, Karen M. Hess, Criminal Investigations, p. 203 (10 ed. 2013). Science has never been able to accurately determine what, if any, specific physical reactions occur in response to lying or other factors, and the polygraph’s usefulness has long been the subject of harsh criticism from the scientific community. James L. Trainum, How the Police Generate False Confessions, p. 22 (2016). The techniques of lie detection, as used in investigative work by polygraphs, do not pass scientific muster. Id. No “lie detector” of any nature has ever achieved the level of scientific accuracy or support within the scientific community that would allow its findings to be admissible in court. Id. The accuracy and reliability of the polygraph is highly questionable. Id. at p. 76.
Use of False Evidence Poly
Generally, the polygraph is used as a weapon of deceit. Over time, law enforcement agencies began using the polygraph as part of their interrogation tool kit, relying mostly on the mystique of the machine as a foolproof lie detection device. Id. Law enforcement would work to convince the suspect of the machine’s infallibility. The subject would often be confronted with the machine’s response (whether the suspect was provided with accurate information or not was determined by the investigator giving the test), and then officer repeatedly questioned the subject until a confession was forthcoming. Id.
Law enforcement uses this “science” as manipulation. Id. at p. 76. The first step for the investigator is to ask the suspect if he will take a polygraph exam. Id. If the suspect hesitates or refuses, the investigator includes the refusal into the “guilty column” of behavior of the suspect. Id. If the suspect agrees to take the polygraph examination, the polygraph examiner will push to convince the subject of the machine’s infallibility. At this point, it is important to note, “it does not matter if the polygraph works at all as long as the suspect believes that it does.” Id. Then, the polygraph examiner sells the polygraph machine as scientifically proven and impossible to fool. Id. p. 110. Irrespective of the actual results (or the invalidity of them), the investigators inform the suspect he failed the polygraph and should come clean to receive the benefit of cooperation. Id. at p. 110. This is called “use of false evidence poly.” Id. p. 109. Under either of these circumstances, it is clear the polygraph is simply a weapon of deceit, dressed in a gown of science.
The Proponent of the Polygraph Examiner Has the Burden of Proof
The proponents of expert testimony bear the burden of proving the methodology employed by the proposed expert is generally accepted in the appropriate or relevant scientific community. See, State v. Hampton, 15-1222 (La. App. 4 Cir. 12/23/15), 183 So. 3d 769, 779, writ denied, 16-0124 (La. 3/14/16), 189 So. 3d 1073; Wingfield v. State ex rel. Dept. of Transp. & Dev., 01-2668 (La. App. 1 Cir. 11/8/02), 835 So. 2d 785, 797; Boudreaux v. Bollinger Shipyard, 2015-1345 (La.App. 4 Cir. 06/22/16); 197 So. 3d 761. Nevertheless, whether one believes the polygraph is science or junk science, the proponent of the polygraph evidence must prove its methodology and results are reliable as required by La. Code Evid. Arts. 104, 702, 705 and La. Code Civ. Proc. Art. 1425, State v. Foret, 628 So. 2d 1116 (La. 1993), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The party attempting to admit polygraph evidence through its expert is required to prove the expertise of all of its polygraph experts and, further, the validity of the polygraph test and instrument.
There is a science of lie detection. Adam Benforado, Unfair-The New Science of Criminal Injustice, p.143 (2015). Polygraph research is like many other fields of forensic science. See, The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection, p. 98 (2003). As such, the Foret/Daubert requirements are mandatory. Franklin v. Franklin, 2005-1814 (La. App. 1 Cir. 12/22/05); 928 So. 2d 90. The pertinent rule of law of the Louisiana Code of Evidence is Article 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
When faced with a proffer of expert testimony, the trial court must determine at the outset whether the expert is proposing to testify to scientific, technical, or specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue. Carrier v. City of Amite, (La.App. 1 Cir. 2009), 6 So. 3d 893; Corkern v. T.K. Valve, 04-2293 (La. App. 1st Cir. 3/29/06), 934 So. 2d 102, at 105.
The factors to be used by the court in analyzing the admissibility of expert scientific testimony are whether the technique had been subjected to peer review and/or publication, the known or potential rate of error, the existence of standards controlling the technique’s operation, the technique’s refutability or testability, and the technique’s general acceptance in the scientific community. Independent Fire Ins. Co. v. Sunbeam Corp., 755 So. 2d 226 at 234 n.3 (La. Feb. 29, 2000). When confusion arose over whether the Daubert test applied to non-scientific expert testimony, the United States Supreme Court stated the Daubert’s holding–setting forth the trial court’s general gatekeeping obligation–applies not only to testimony based on scientific knowledge, but also to testimony based on technical and other specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999). However, the Supreme Court held the test of reliability is flexible, and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Id. “The factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” Kumho, 526 U.S. at 150, 119 S.Ct. at 1175. “[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho, 526 U.S. at 141-42, 119 S.Ct. at 1171 (emphasis in original).
The First Circuit, Commonwealth Ins. Co. v. Halliburton Energy Servs., 2003-2490, 899 So. 2d 24 (La.App. 1 Cir. 12/30/04), stated succinctly the most general reasons for denying the testimony of an expert:
There are three intertwined bases for excluding testimony under art. 702: (1) if the testimony will not assist the trier of fact; (2) if scientific evidence is not sufficiently reliable; and (3) if the particular expert does not have sufficient specialized knowledge to assist the jurors.
As with any other area of evidence, expert opinion testimony must be measured carefully by the court and the balancing test of La. Code Evid. Art. 403 applied to its effects in order to protect against the expert opinion testimony having too great a prejudicial or confusion effect on the trier of fact. The considerations in applying the La. Code Evid. Art. 403 balancing test of prejudicial versus probative value include the matters allowed under La. Code Evid. Arts. 703 and 704. La. Code Evid. Article 703 allows the expert to use information, as a basis for reaching his opinion, presented to the finder of fact, which does not have to be admissible evidence. Just how far an expert witness can go with his opinion has limitations. See, State v. Butler, 563 So. 2d 976 (La. App. 1st Cir.), cert. denied, mandamus denied, 567 So. 2d 609 (La. 1990).
The Daubert applications, as discussed relative to scientific based expert testimony, have now been applied to all expert testimony and form an element to be considered by every court in qualifying any expert in any field. This application was discussed in Abraham v. Richland Parish Hospital Service District, 39,841 (La. App. 2 Cir. 02/08/05), 894 So. 2d 1229, 1233, where the court held:
Before an expert’s testimony is admitted, the trial court is required to perform a “gatekeeping” function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). This “gatekeeping” obligation applies not only to “scientific” testimony, but to all expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). The Daubert nonexclusive list of factors includes: (1) the “testability” of the scientific theory or technique; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the methodology is generally accepted in the scientific community. Daubert was adopted in Louisiana in State v. Foret, 628 So. 2d 1116 (La. 1993). In Cheairs v. State, 2003-0680 (La. 12/03/03); 861 So. 2d 536, the court further specified that admission of expert testimony is proper only if all three of the following things are true: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
See also, Wyatt v. Hendrix, 43,559 (La. App. 2 Cir. 11/05/08), 998 So. 2d 233.
A general description of the reasons for refusing an expert’s testimony was provided in Commonwealth Ins. Co. v. Halliburton Energy Servs., 2003-2490 (La. App. 1 Cir. 12/30/04), 899 So. 2d 24, 30–31 where the court held:
There are three intertwined bases for excluding testimony under art. 702: (1) if the testimony will not assist the trier of fact; (2) if scientific evidence is not sufficiently reliable; and (3) if the particular expert does not have sufficient specialized knowledge to assist the jurors. Generally, experience alone is normally sufficient to qualify a witness as an expert. Cheairs, 03-0680 at p. 8 (La. 12/03/03); 861 So. 2d at 542. The weight to be given to the testimony of experts is largely dependent upon the facts upon which their opinions are based. State v. Estate of Griffin, 95-1464, p. 7 (La. App. 1 Cir. 02/23/96); 669 So. 2d 566, 570.
In applying the principles involved in admitting expert testimony, the court should be careful not to confuse the questioning of the expert’s methodology with that of application. As noted in Tadlock v. Taylor, 2002-0712 (La. App. 4 Cir. 09/24/03), 857 So. 2d 20, 26:
The court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. Keener v. Mid-Continent Cas., 01-1357, p. 12 (La. App. 5 Cir. 04/30/02); 817 So. 2d 347, 354–355. As with all other admissible evidence, expert testimony is subject to being tested by “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Id. (citing Daubert, 509 U.S. at 596, 113 S. Ct. at 2798). As the jurisprudence indicates, there is a crucial difference between questioning the methodology employed by an expert witness, and questioning the application of that methodology or the ultimate conclusions derived from that application. Only a question of the validity of the methodology employed brings Daubert into play.
The procedure for a Daubert/Foret hearing was codified by the Louisiana legislature, who amended Louisiana Code of Civil Procedure Article 1425 to set out exactly what is required from the parties and the court when conducting such a hearing and ruling on the admissibility of an expert’s proffered testimony. See, 2008 La. Acts, No. 787, § 1. The amended article contains the following pertinent provisions:
* * *
- (1) Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court.
(2) The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days prior to the trial. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence. For good cause shown, the court may allow live testimony at the contradictory hearing.
(3) If the ruling of the court is made at the conclusion of the hearing, the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment. If the matter is taken under advisement, the court shall render its ruling and provide written findings of fact, conclusions of law, and reasons for judgment not later than five days after the hearing.
(4) The findings of facts, conclusions of law, and reasons for judgment shall be made part of the record of the proceedings. The findings of facts, conclusions of law, and reasons for judgment shall specifically include and address:
(a) The elements required to be satisfied for a person to testify under Articles 702 through 705 of the Louisiana Code of Evidence.
(b) The evidence presented at the hearing to satisfy the requirements of Articles 702 through 705 of the Louisiana Code of Evidence at trial.
(c) A decision by the judge as to whether or not a person shall be allowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence at trial.
(d) The reasons of the judge detailing in law and fact why a person shall be allowed or disallowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence.
(5) A ruling of the court pursuant to a hearing held in accordance with the provisions of this Paragraph shall be subject to appellate review as provided by law.
(6) Notwithstanding the time limitations in Subparagraphs (1), (2), and (3) of this Paragraph, by unanimous consent of the parties, and with approval by the court, a motion under this Paragraph may be filed, heard, and ruled upon by the court at any time prior to trial. The ruling by the court on such motion shall include findings of fact, conclusions of law, and reasons for judgment complying with the provisions of Subparagraph (4) of this Paragraph.
Before a witness can testify on the basis of being an expert, and therefore be allowed to testify in the form of opinion or inference, the court must determine not only that his testimony will assist the trier of fact as discussed hereinabove, but the court must also make the determination the witness does in fact “qualify” as an expert in the field of expertise in which he is offered by the proponent of his testimony. The decision by the court as to whether the witness qualifies as an “expert” is within the discretion of the trial court and the trial court’s decision in this regard will be given great weight and will not be disturbed on appeal absent clear abuse. Washauer v. J.C. Penney Co., 2003-0642, 879 So. 2d 195 (La.App. 1 Cir. 4/21/04); State v. Brooks, 734 So. 2d 1232, 1232 (La. App. 1st Cir. 1999); Safeco Ins. Co. of Am. v. Chrysler Corp., 2001-1641 (La. App. 3 Cir. 7/31/02), 834 So. 2d 1026,; State v. Ledet, 172, 00-11 (La. App. 5th Cir. 2001), 792 So. 2d 160; State v. Craig, 699 So. 2d 865 (La. 1997); State v. Stringer, 567 So. 2d 758 (La. App. 2d Cir. 1990); De La Cruz v. Riley, 2004-0607 (La. App. 4 Cir. 02/02/05), 895 So. 2d 589; State v. Manning, 03-1982 (La. 10/19/04), 885 So. 2d 1044. However, if a district court conducts no Daubert analysis of any kind, the exclusion of the expert’s evidence without an evaluation of the relevant reliability factors is legal error. Corkern, 934 So.2d at 107.
The Louisiana Supreme Court in Cheairs v. State, 2003-0680 (La. 12/3/03), 861 So. 2d 536, 542; State v. Bozeman, 06-679 (La. App. 5th Cir. 01/30/07) (court allowed a doctor to qualify to testify as a forensic pediatrician based on testimony that child abuse was a specialty) made the following observations and reference to general areas to be considered in allowing an expert to testify:
The above principles should not, however, be interpreted to mean that a court should not consider an expert’s qualifications when deciding whether to admit a particular expert’s testimony, only that the Daubert case does not directly address that issue. In fact, Daubert itself notes that Fed. Rule of Evid. 702, the counterpart of La. Code of Evid. art. 702, “is premised on an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.” 501 U.S. at 592, 111 S. Ct. 2456. Apparently in recognition of the fact that Daubert does not directly address that issue, the United States Eleventh Circuit Court of Appeal has developed a three-part inquiry to more fully assist district courts in determining all the relevant issues related to the admissibility of expert testimony, with the Daubert analysis serving as one of the three prongs. The three-prong inquiry was first set forth in City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548 (11th Cir. Ala. 1998), in which the court stated that the admission of expert testimony is proper only if all three of the following things are true:
(1) the expert is qualified to testify competently regarding the matters he intends to address;
(2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence, or to determine a fact in issue.
Nevertheless, if an expert opinion is so fundamentally unsupported that it can offer no assistance to the jury, then the testimony can be rejected. Barre v. Bonds, 763 So. 2d 60, 71 (La. App. 4th Cir. 2000); MSOF Corp. v. Exxon Corp. 2004-0988 (La. App. 1 Cir. 12/22/05); State v. George, 39,959 (La. App. 2 Cir. 10/26/05); 914 So. 2d 588. The consideration of the admission of scientific evidence should be conducted by the court under the rules of La. Code Evid. Art. 104A, which specifically provide when making such a decision on the admissibility of evidence, the court is not bound by the rules of evidence other than those applicable to privilege. For this reason, the court may consider any evidence it deems appropriate in making this decision and may do so without regard to whether the supporting evidence complies with such rules as hearsay, etc. In Caubarreaux v. E.I. Dupont de Nemours, 714 So. 2d 67, 71, (La. App. 3d Cir. 1998), the court noted:
… the trial court is mandated to either order a pretrial or status conference under La. Code Civ. P. Art. 1551 to discuss and simplify any Daubert issues or, if still not resolved, hold a pretrial hearing and rule on any pending Daubert issues pursuant to La. Code Evid. 104(a).
Summarizing the application of Daubert in Louisiana, the court in Devall v. Baton Rouge Fire Dep’t, 2007-0156 (La. App. 1 Cir. 11/2/07), 979 So. 2d 500, provided as follows:
In Foret, the Louisiana Supreme Court adopted the federal guidelines for admissibility of an expert’s opinions, as explained by the United States Supreme Court in Daubert. Because LSA-C.E. art. 702 is virtually identical to its source provision in the Federal Rules of Evidence, F.R.E. 702, the Louisiana Supreme Court applied the Daubert analysis, which allows a more flexible standard for determining admissibility while recognizing the detailed analysis in which the trial court must engage to satisfy its gatekeeping function. Foret, 628 So. 2d at 1121–1123. Under Daubert, the trial court is charged with the duty of performing a gatekeeping function to ensure that the expert testimony is not only relevant, but also reliable. Daubert, 509 U.S. at 589, 113 S.Ct. at 2795.
To ensure reliability, the Daubert standard requires that the expert’s opinions be grounded in methods and procedures of science, rather than just subjective belief or unsupported speculation. Accordingly, before expert testimony is admitted, the court must make a preliminary assessment that the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue. Daubert, 509 U.S. at 590–593, 113 S.Ct. at 2795–2796; Vardaman v. Baker Ctr., 711 So. 2d 727, 731 n.6, 96-2611 (La. App. 1 Cir. 03/13/98).
In determining whether expert: testimony is reliable, the Court in Daubert enumerated illustrative considerations to determine whether the reasoning and methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, as follows: (1) whether the expert’s theory or technique can be and has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) whether there is a known or potential rate of error, and (4) whether the methodology is generally accepted in the scientific community. Daubert, 509 U.S. at 593–594, 113 S. Ct at 2796–2797; Mitchell v. Uniroval Goodrich Tire Company, Inc., 95-0403 (La. App. 4th Cir. 12/28/95), 666 So. 2d 727, 729, writ denied, 96-0260 (La. 03/15/96), 669 So. 2d 421.
The decision to admit or exclude expert testimony is within the sound discretion of the trial court, and its judgment will not be disturbed by an appellate court unless it is clearly erroneous. LSA-C.E. art. 702, comment (d); Mistich v. Volkswagen of Germany, Inc., 95-0939 (La. 01/29/96), 666 So. 2d 1073, 1079; Mitchell, 666 So. 2d at 729.
Analysis of Polygraph Examiners’ Expertise
As stated above, lie detection is a science. Adam Benforado, Unfair-The New Science of Criminal Injustice, p.143 (2015). As such, the proponent of the polygraph expert witness, must establish the experts proposing to testify will assist the trier of fact to understand the evidence or determine a fact in issue. This is the essence of relevance. Assuming the proponent of polygraph expert witness testimony can get past the post of assisting the trier of fact, it must firmly establish the polygraph examiners’ technique is scientifically valid, appropriate, accurate and reliable. This technique must be testable and repeatable. Further, it must show the polygraph examiners’ technique has been subjected to peer review and show the technique was published in a credible manner. Next, there must be a disclosure of the known or potential rate of error of polygraph examinations and how they were accounted for in this case. The proponent of this polygraph expert testimony, it has to reveal the existence of standards controlling the technique’s operation. They must show the polygraph examiners’ technique’s refutability or testability. They must provide proof the polygraph examiners’ technique and methodology have been generally accepted in the scientific community.
The polygraph examiner must prove his scientific evidence is reliable and its experts have a particularly sufficient specialized knowledge to assist a court. This means the polygraph experts must be qualified to testify in a competent manner and qualify as an expert in the field of expertise they propose to testify about in this case. There must be convincing proof the polygraph examiners applied a methodology by which they reached their conclusions in a reliable manner. The proponent of this evidence must prove its polygraph examiners’ reasoning and methodologies underlying their proposed testimony are scientifically valid and can be applied to the facts at issue. The polygraph examiners must establish the accuracy, provability and reliability of the facts upon which their opinions are based. To satisfy this standard, Daubert requires the polygraph examiners’ opinions be grounded in methods and procedures of science and not simply opinions, subjective belief or unsupported speculation. Lastly, the proponent must prove the probative value of the proposed expert testimony outweighs the prejudicial effect of such testimony. However, the Louisiana Supreme Court previously ruled polygraph evidence is inadmissibility based on this balancing test. State v. Catanese, 368 So. 2d 975, (La. 1979). Accordingly, these alleged polygraph experts should not be permitted to testify.
No Factual Evidence
Furthermore, the factual basis for an expert’s opinion determines the reliability of the testimony. Carrier v. City of Amite, 2008-1092 (La.App. 1 Cir. 02/13/09); 6 So. 3d 893. An unsupported opinion can offer no assistance to the fact finder, and should not be admitted as expert testimony. Miramon v. Bradley, 96-1872 (La. App. 1st Cir. 9/23/97), 701 So. 2d 475, 478. The trial court’s inquiry must be tied to the specific facts of the particular case. The abuse of discretion standard applies to the district court’s ultimate conclusion as to whether to exclude expert witness testimony and to the court’s decisions as to how to determine reliability. Brown v. City of Madisonville, 07-2104, (La. App. 1st Cir. 11/24/08), 5 So. 2d 874. There is a crucial difference between questioning the methodology employed by an expert witness and questioning the application of that methodology or the ultimate conclusions derived from that application. Only a question of the validity of the methodology employed brings Daubert into play. MSOF Corp. v. Exxon Corp., 04-0988 (La. App. 1st Cir. 12/22/05), 934 So. 2d 708, 718, writ denied, 06-1669 (La. 10/6/06), 938 So. 2d 78.
Analysis of Polygram Examiners’ Factual Basis
The proponent of polygraph evidence must prove a specific and appropriate factual basis for each of the opinions by the polygraph examiners. In the absence of any factual and evidentiary support, their opinions cannot assist the courts and cannot be reliable. Establishing proper and reliable facts is the predicate to any expert opinions. Therefore, until the proponent of polygraph evidences these facts, courts should prohibit any testimony by the polygraph examiners.
Most of the time, the proponent of polygraph evidence is unable or unwilling to produce any evidence and facts that supporting the opinions of the polygraph examiners. Most of the time, they argue the polygraph results alone are sufficient evidence. A similar contention was addressed in Memphis Bank & Trust Co. v. Tennessee Farmers Mut. Ins. Co., 619 S.W.2d 395 (Tenn. App. 1981), in which an insurer automobile owner and the bank that held his auto loan sued the automobile insurer for the value of the vehicle after the vehicle was stolen. Id. at 396. The insurer refused to pay because the owner failed to pass a polygraph examination, wherein he was asked if he had anything to do with the disappearance of the vehicle, if he helped or planned with anyone to steal his vehicle and if he had any idea where his vehicle was now.
The results of the polygraph examination were the sole basis for the insurer’s refusal to pay. Id. The insurer never had any other information that would indicate a false claim was being made, other than a “gut feeling” precipitated by test results. The district court refused to allow the insurer to give “its only reason for refusal to honor the claim, thus the defendant insurer adduced no proof at the trial.” Id. The jury returned a verdict in favor of the insured and bank, and the insurer appealed. The only issue on appeal was
whether an insurer may show the results of a lie detector test when such test is voluntarily taken by the insured, as evidence of a good faith reason for the refusal to pay a claim.
The Tennessee Court of Appeals affirmed the trial court’s ruling, noting that:
if [polygraph] tests are unreliable evidence in criminal cases, we see no reason why they should become reliable in civil cases. Unreliable evidence is unreliable evidence in any forum.
That the evidence was offered for the purpose of showing the insurer’s good faith, and not for the truthfulness or lack thereof of the owner’s answers, was of no matter:
Such evidence has been judicially declared unreliable in law and in fact. That being true, the Court should not permit the introduction of admittedly unreliable evidence as the sole basis of an allegedly good faith act by an insurer. Good faith is characterized by reasonableness. It is not reasonable to act on evidence known to be unreliable. Consequently, such evidence standing alone cannot be the basis of a good faith act.
We believe the soundness of this holding can be evidenced by analogy. If the sole reason for a refusal to pay was what appeared to be nervousness in the insured in answering questions, would a jury be justified, on that evidence alone, in finding that the insurer could refuse to pay in good faith and with impunity? We think not. If a jury did so find, we believe its verdict would be set aside on the grounds that there was no material evidence to sustain it. We see little, if any, distinction to be made between visible material reactions to questions and those electronically monitored. Conclusions drawn therefrom are simply unreliable evidence.
Id. at 397. See also Britton v. Farmers Ins. Group, 721 P.2d 303 (Mont. 1986) (holding polygraph results may not be admitted for purposes of showing “good faith” of insurer in denying claim).
Rulings Regarding Polygraphs
Following the decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, (1993), the status of the admissibility of polygraph evidence has been in flux. Dixon v. City of Coeur d’Alene, 2:10-CV-00078 (U.S. District Idaho). Polygraph evidence remains suspicious. United States v. Cordoba, 104 F.3d 225 (9th Cir. 1997). In fact, courts continue to harbor skepticism of polygraph evidence by opining, “we are not expressing new enthusiasm for admission of unstipulated polygraph evidence,” “the inherent problematic nature of such evidence remains” and “polygraph evidence has grave potential for interfering with the deliberative process.” Id. In United States v. Scheffer, 523 U.S. 303 (1998), the United States Supreme Court sent a cautionary warning when it held criminal defendants have no constitutional right to introduce evidence they “passed” a polygraph. Christopher B. Mueller and Laird C. Kirkpatric, Evidence, § 7.20 (2 Ed. 1999). Scheffer held that a per se ban on polygraph evidence serves a legitimate governmental interest by ensuring only reliable evidence is introduced at trial. Id.
The Ninth Circuit Court of Appeals held that, when presented to a trier of fact, polygraph testimony has “powerful persuasive value.” United States v. Ramirez-Robles, 386 F.3d 1234, 1246 (9th Cir. 2004). The Circuit Court also recognized that polygraphs have a “misleading reputation as a truth teller.” U.S. v. Marshall, 526 F.2d 1349, 1360. “The polygraph testimony would be tantamount to testimony regarding the defendant’s guilt or innocence.” United States v. Cordoba, 991 F. Supp. 1199, 1208 (C.D. Cal. 1998) (citing United States v. Alexander, 526 F.2d 161, 167-68 (8th Cir.1975) (finding the distinction between an expert’s opinion as to truth or falsity of responses and guilt or innocence is illusory).
In 1975, the United States Court of Appeals for the Eighth Circuit wrote about the risks presented by polygraph evidence in United States v. Alexander, 526 F.2d 161 (8th Cir. 1975), a decision which remains “good law” nearly 42 years later. The defendant of Alexander appealed his conviction, arguing the district court erred in refusing to admit the results of an unstipulated polygraph examination the defendant sought to introduce. The issue presented was “whether the modern polygraph machine and technique have attained sufficient scientific acceptance among experts in polygraphy, psychiatry, physiology, psychophysiology, neurophysiology and other related disciplines to justify admission of the results of an unstipulated polygraph examination in evidence.” Id. at 164.
The Alexander court answered that question in the negative. It excluded the proposed polygraph evidence, providing extensive reasoning that has never been overruled. The court wrote that
[t]here is no ‘lie detector.’ The polygraph machine is not a ‘lie detector,’ nor does the operator who interprets the graphs detect ‘lies.’ The machine records physical responses, which may or may not be connected with an emotional reaction – and that reaction may or may not be related to guilt or innocence. Many, many physical and physiological factors make it possible for an individual to ‘beat’ the polygraph without detection by the machine or its operator.
Id. at 165. Among the numerous constituents that may individually or collectively operate to result in an inaccurate reading are:
(1) the physiological abnormalities of the examinee, which may include high or low blood pressure, respiratory disorders and heart diseases, as well as a state of discomfort or extreme fatigue during the examination;
(2) extreme nervousness or emotional tension by an innocent person who may believe that the polygraph will produce an inaccurate and inculpatory result;
(3) anger or resentment toward the examiner or the questions asked;
(4) inadequate or misleading phrasing of the questions by the examiner; and
(5) a mental abnormality of the examinee, which may include psychosis, psychoneurosis or a psychopathic personality.
Id. The existence of any of these factors “creates either physiological responses or unresponsiveness in the examinee which is unrelated to the truthfulness or falsity of his or her response to a question.” Any accurate ascertainment of an error rate is very difficult,
since the results obtained in a controlled experiment may vary significantly from the results of tests involving actual criminal suspects being tested under more traumatic circumstances. Furthermore, it is often difficult to verify a polygraphist’s conclusion as to a subject’s veracity since there is no assured way in most cases to determine whether the subject was actually being truthful or deceitful.
Id. at 165-66.
The Eighth Circuit concluded while polygraphic evidence advanced significantly since Frye, there remained insufficient “scientific acceptability and reliability to warrant the admission of the results of such tests in evidence.” Id. While acknowledging that a limited number of courts had sanctioned the admission of polygraph evidence under specifically limited circumstances, the court rejected the notion there was a “trend” toward unqualified admissibility of polygraph evidence. Id.
The contemporary trend, including within the United States Court of Appeals for the Eighth Circuit, continues to question the general acceptance of polygraph testing within the scientific community because of continuing concerns about its reliability. United States v. Scheffer, 523 U.S. 303 (1998); United States v. Henderson, 409 F.3d 1293 (11th Cir. 2005); State v. Nightengale, ___ A.2d ___, 2012 WL 5954179 at n.1 (Me. 2012) (holding that results of polygraph tests “are completely inadmissible because they have non-existent value when it comes to determining credibility”); United States v. Pavlenko, 845 F. Supp.2d 1321, 1327 28 (S.D. Fla. 2012); United States v. Gill, 513 F. 3d 836 (8th Cir. 2008) (observing polygraph evidence is disfavored): Ortega v. United States, 270 F.3d 540, 548 (8th Cir. 2001) (holding that “there is simply no consensus that polygraph evidence is reliable”). That some law enforcement agents like and trust polygraphy is immaterial – in court, “[w]hen two witnesses contradict each other, juries, not polygraph tests, determine who is testifying truthfully.” United States v. Swayze, 378 F.3d 834, 837 (8th Cir. 2004).
Over ninety-four years ago, Dean Wigmore noted, “if there is ever devised a psychological test for the valuation of witnesses, the law will run to meet it.” Wigmore on Evidence § 875 (2d ed. 1923). Building on that, the Alexander court observed that
if we were satisfied in our own minds about the scientific reliability of polygraph tests and the integrity and responsibility of the examiners to the extent of an almost unimpeachable result, we would eagerly acknowledge the reliability of the machine and embrace its use in court proceedings in the absence of stipulation by the parties.
Id. at 167.
The Fifth Circuit ruled that polygraph results are inadmissible as substantive evidence. e. g., United States v. Masri, 547 F.2d 932, 936 (5th Cir. 1977), cert. denied, 431 U.S. 932, 97 S. Ct. 2640, 53 L. Ed. 2d 249 (1977); United States v. Cochran, 499 F.2d 380, 393 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S. Ct. 810, 42 L. Ed. 2d 825 (1975). The Fifth Circuit stated, “American courts have traditionally held such evidence inadmissible in criminal proceedings on behalf of either the prosecution or the defense because the polygraph has not yet been accepted by the courts as a scientifically reliable method of ascertaining truth or deception.” United States v. Frogge, 476 F.2d 969, (5th Cir. 1973)
Louisiana courts have also taken a judicially skeptical view of polygraph evidence. The results of a lie detector test are inadmissible in Louisiana when offered by either party, either as substantive evidence or as relating to the credibility of a party or witness. State v. Catanese, 368 So. 2d 975, 981 (La. 1979)); State v. Davis, 407 So. 2d 702, 706 (La. 1981)).
The court reasoned that such evidence should be excluded because the admission of test results would “usurp the jury’s prerogative on a question involving credibility,” and because of “the lack of probative value, insufficient scientific reliability, and the possible unduly prejudicial effect on lay triers of fact.” Id. at 706.
Analysis of Polygraph Evidence
The proponent of polygraph evidence must clearly show and prove the polygraph results were achieved with a scientifically technique valid. The results must be scientifically appropriate, accurate, reliable, testable and repeatable. The polygraph results must have been subjected to peer review and published in a credible manner. The proponent of polygraph evidence must prove the known or potential rate of error of polygraph results and how the rate of error was accounted for in this case. The proponent of polygraph evidence has to show the existence of standards controlling the polygraph instrument’s technique and operation. They must prove that the polygraph result, technique and methodology have been generally accepted in the scientific community.
To prove its results are scientifically valid, accurate and reliable, the proponent of polygraph evidence must prove the polygraph instrument used in this matter can determine whether the subject was actually telling the truth or not. The proponent of polygraph evidence must also convincingly prove the polygraph test applied in this case has a very high level of accuracy. The proponent of polygraph evidence must prove, in a universal manner, that the polygraph test is reliable. The proponent of polygraph evidence is required to prove interpretations of polygraph results are supported by theoretical rationale and empirical data. The proponent of polygraph evidence must convince the courts the theory supporting polygraph findings must tie deceptive behavior to the subject’s psycho-physiological response patterns. The subject’s psycho-physiological responses must unquestionably lead to proof of actual evidence of deception. This claim must be proven with independent facts, proof and evidence deriving from actual events in this particular case and not some propaganda from the polygraph manufacturer. The proponent of polygraph evidence and its polygraph examiners cannot simple infer, theorize, and guess their subjects are deceptive or truthful. The polygraph results must be borne out of actual deception that is provable. However, in the extremely unlikely event of such proof, the admission of polygraph results would be unnecessary.
Albert Einstein said it best, “whoever undertakes to set himself up as judge in the field of truth and knowledge is shipwrecked by the laughter of the Gods.” What is even more laughable is polygraph examiner’s belief he can judge the truth and determine who is not telling it. However, I cannot agree with the suggestion the only person shipwrecked is the one who pretends to be the judge of truth and knowledge. Usually the proponent of polygraph evidence use such evidence to end careers, deny insurance claims or prosecute innocent people, which I view as the sinking of the subject’s lifeboat. Much like a ship’s captain duty to avoid a shipwreck, the proponent of polygraph evidence has the duty to set a course based on reliable navigational/waypoints. Anything less is a dereliction of duty that set ships adrift.
Quite simply, the proponent of polygraph evidence should not be allowed to hand us a line and not produce actual evidence to prove the validity of the polygraph and the polygraph examiners. The use of actual evidence is not foreign to polygraph examiners. In fact, the best polygraph examiners always note when it comes to using polygraph examination results in an investigation, an investigator should always listen to what the evidence is saying over the polygraph. James L. Trainum, How the Police Generate False Confessions, p. 77 (2016).