2010 Edition of
The Magazine of the Ohio Association of Criminal Defense Lawyers
THE UTILITY AND ADMISSIBILITY OF POLYGRAPH EXAMINATIONS
Mark Twain said “fiction is obliged to stick to possibilities; truth isn’t.” Assessing the veracity of a witness, victim or defendant is a challenge for practitioners and professionals alike. We are in constant pursuit of the truth recognizing just how elusive it can be.
During the pendency of a case, it is not unusual to discover irregularities, inconsistencies and even errors in witness, suspect, and victim accounts. Some can be chalked up to human error while others are blatant falsehoods. What was once believed to be absolutely true may later be determined to be clearly false.
It is not unusual for witnesses to change their stories or recollection, victims to minimize or exaggerate, and defendants to deny involvement or responsibility. But what is the motive for such deceit? It seems the most common denominator is fear at some level. The fear may be of loss of life, liberty, property, status, job; it may even be an irrationally misplaced fear, resulting from perceived circumstances. All can cause a person to deviate from the truth, or even reality. After all, perception is reality at its core. The motive to lie is known only to the liar. Everything is relative and truth is no exception. Often an accuser is deemed “per se truthful,” in the absence of an apparent motive to lie. Motive, like the truth, can be difficult to pin down. Complicating factors such as rationalization and justification may make the liar believable. These dynamics make it even more challenging to differentiate fact from fiction.
Several methods are used to sort through the facts; cross examination provides a universally accepted means to ferret out truth. However, Perry Mason moments are very rare. Successful cross examination requires great skill. Other means of assessing truth include psychology, hypnosis, sodium pentothal and lie detection.
Psychologists claim that the average person tells many lies through the course of a day-- sometimes small, sometimes large. It is reasonable to assume that when the stakes are raised, the gravity of the lie becomes more profound and the frequency of lies increase. Thus, the psychology of the lie, and its underlying cause are important for some practitioners and professionals to understand. All lies are relative to the source and circumstances under which they are told. But it is critical to realize that sometimes a false accusation is not a lie in the real sense, rather a claim resulting from “influence by osmosis” or the conditioning of the mind, memory or psyche. Such may be the result of many external factors such as suggestive questioning, subtle inferences or comments, exposure to casual conversation, and so on. Any of which, over time, can be adopted (especially by children) as factual events or circumstances. In reality, the event in question may have occurred in some form and at some level, distorted over time to the point it no longer resembles the actual circumstances or event at all…thus, “influence by osmosis.” Such conditioning need not be direct or overt. Suffice it to say that most claims or accusations are well-founded, later proven to be factual when coupled with supporting evidence. However, exploring the possibility of a false claim, and exposing the fabrication, can be gut wrenching for any professional vested with the responsibility of justice. After all, it is easier to prove an allegation is well grounded than to disprove a negative, or non-event; the former is supported by evidence, the latter is not.
In the world of lie detection, which ranges from cross examination to polygraph, we explore diametrically opposite versions of fact constantly. In the more scientific methodology (polygraph), it is not as important to explore motive (or lack thereof), rationalization, justification, “influence by osmosis” or any other factor that may cause prosecutors or defense attorneys to question the validity of an accusation or denial. Polygraph testing, is utilized to determine whether or not a claim is based in fact (did it happen or not); the underlying reasons a person lied are not the polygraphist’s concern; those issues are left to other professionals equipped to identify relevant psychological factors.
In the last decade, polygraph utility has risen to new levels within the scientific community, primarily due to improvements in instrumentality and methodology.
For many years, Ohio has required that polygraph admissibility hinge on a contract between defendant and prosecution known as an agreement and stipulation, State v. Souel (1978), 53 Ohio St. 2d 123, 372 N.E.2d1318, 1323-24 (Ohio1978). New Mexico offers a new view of polygraph admissibility through its state Criminal Rules of Evidence. Recently In State of Ohio v. Sharma CR 06-09-3248, unstipulated polygraph evidence was admitted following some of New Mexico’s guidelines. The Court blended other admissibility criteria, articulated in the federal courts when admitting novel forms of evidence, pursuant to Daubert v. Merrill Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir.1995); 509 U.S. 579 (1993).
Whether stipulated or unstipulated, pre-trial strategy for polygraph admissibility may benefit the prosecution, defense, and the Trier-of- Fact by allowing polygraph evidence to be admitted outside the Souel guidelines. This is especially true in cases such as Sharma, when a bench trial has been chosen over a trial to jury, or in civil cases where the burden of proof threshold is lower.
A law review article entitled Calculating Credibility: State v. Sharma and the Future of Polygraph Admissibility in Ohio and Beyond, by Vincent V. Vigluicci, F1., points out that under Souel, the prosecution is the “gate keeper” of polygraph admissibility. Under such mandates of agreement-stipulation, the defense’s ability to introduce polygraph results is restricted.
1. Vigluicci, Vincent V., Calculating Credibility: State v. Sharma and the Future of Polygraph Admissibility in Ohio and Beyond, 42, Akron L.R., 319-354 (2009).
Alternatively, Daubert’s requirements ensure an expert’s opinion can at least be heard by the presiding judge pursuant to defense motion and admitted at trial should the judge determine such evidence will assist the Trier of Fact. Such evidence is admissible provided that certain guidelines are met: whether the theory or technique can be and has been tested; whether the theory or technique has been subjected to peer review and publication; the theory or technique’s known or potential rate of error; and, whether the theory or technique has been generally accepted within the relevant scientific community.
Here is a synopsis of Sharma facts. Sharma was essentially accused of a “date rape” whereby either the accused (Sharma) or the purported victim’s version could have been true. The element of “consent” was at issue (see Vigluicci). Sharma successfully passed three separate polygraph examinations, administered by different polygraphists utilizing different methodologies. Two of the polygraphists had extensive law enforcement experience prior to entering private practice.
Judge Judith Hunter presided in a bench trial and permitted polygraph evidence to be heard pursuant to defendant’s Daubert motion. Polygraphists offered expert testimony in the evidentiary hearing; opining that Sharma was truthful. Judge Hunter permitted unstipulated polygraph evidence at trial provided that the Defendant testified; Polygraphist testified; and Daubert criteria was met.
This standard for polygraph admissibility assists the prosecution, defense, and Trier-of-Fact in ways unparalleled with Souel criteria, especially in bench trials.
First, it is not often the prosecution has an opportunity to cross examine the defendant. The suspect/defendant passing an unstipulated polygraph must then be capable of withstanding cross examination. Defense counsel must conclude the defendant and his/her testimony is unshakable when subjected to intense questioning. Otherwise, the defense may be opening the door to testimony that could backfire, even when the client is truthful, if the defendant presents as a “poor witness.” A polygraphist’s pre-test interview provides counsel with invaluable insight as to how the client will respond under questioning that closely resembles cross examination.
Second, counsel must select an expert polygraphist respected within the criminal justice community, and possessing the requisite education, training and experience that utilizes polygraphic methodology satisfying Daubert standards.
Third, the expert polygraphist must be capable of articulating an opinion to assist the Tier-of-Fact. Otherwise, Daubert standards will not be met, and the evidence will not be permitted.
Lastly, even when a polygraph is administered confidentially, it may benefit investigators, prosecutors and defense counsel in resolving cases. Many deceptive suspects or defendants will take a polygraph in hopes of “beating the test.” The odds of that occurring are very slim; truthful people do not try to beat a polygraph. In fact, when deceptive clients (including those practicing counter measures) are identified, most confess. Generally, the case is efficiently resolved, conserving the court’s time and taxpayer’s money since most of those clients enter a plea. On the other hand, polygraph examinations can also accurately identify wrongly accused (truthful) suspects/defendants.
One such recent case, Sutton v. Douglas CV2006084953 Summit County Ohio Court of Common Pleas, in which the author testified, began three years ago as a domestic relations matter, and ended in August 2009 as a defamation, slander, libel civil lawsuit.
Case facts: Five-year-old girl accused her biological father of sexual conduct (penetration with a motor brush). His ex-wife had petitioned for divorce; the accusations were post decree. Dr. Darryl Steiner of Akron Children’s Hospital opined that no evidence of penetration existed. Police and Summit County Children Services investigators closed their case after thorough investigations were completed. During the pendency of such investigations, the author conducted a polygraph examination on the father and concluded he did not molest his daughter. The man sued his ex-wife for allegedly distributing libelous literature stating he was a child molester. The author testified along with several other witnesses for the plaintiff. Shortly into deliberations, the jury foreman asked one question of the judge, prior to arriving at a judgment … “can we award more money to the plaintiff than requested?” A short time later, a $1.2 million judgment for plaintiff was delivered with a good portion assigned as punitive damages.
This case touched five facets of the justice system: domestic relations, criminal, civil, law enforcement/investigative and social services (CSB). Polygraph played a significant role in each category. The jurors spoke with their award.
In summation: When credible polygraph evidence will assist the Trier-of-Fact, such evidence is an important addition to the criminal justice process. Polygraph admissibility should not be limited by Souel in every case when polygraph is contemplated as evidence. More importantly, with this type of evidence available in pre-trial stages, fewer cases may reach trial, be resolved by plea, no billed at the grand jury, or resolved during the investigative stage. Regardless, justice is served.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995); 509 U.S. 579 (1993).
State v. Souel (1978), 54 Ohio St. 2d 123, 372 N.E.2d 1318, 1323-24 (Ohio 1978).
Sutton v. Douglas, CV2006084953, (Summit County Ohio Court of Common Pleas, filed 2006).
Vigluicci, Vincent V., “Calculating Credibility: State v. Sharma and the Future of Polygraph Admissibility in Ohio and Beyond.” 42, Akron Law Review, 319-354 (2009).
Mr. Evans is a neutral expert, with law enforcement agencies, defense and prosecuting attorneys forming his client base. He was first certified as a law enforcement polygraphist at the National Training Center of Polygraph Science and later trained for computerized polygraph testing at the Department of Defense Polygraph Institute; is currently certified by the American Polygraph Association for post-conviction sex offender testing through the Maryland Institute of Criminal Justice. He has lectured nationally, and internationally on the topic of polygraph, and is adjunct faculty in the Department of Criminal Justice, University of Akron. He owns Poly-Tech Associates, Inc. and can be reached at 330-434-2344; www.polytechassoc.com.