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On polygraph tests

Brian Leiter

Reader Alexander Stingl writes:

One of the items in Pogge's defense struck me as odd; namely, the use of a "polygraph" as defense. While I am not sure what the current status of polygraphs in the American legal context is, but in science&technology studies the technology counts largely as debunked and – outside of people who write spy stories for television – isn't taken seriously (I just accepted a paper on polygraphs in fiction, for a special issue on how science fiction and science mutually influence each other). It's not permissible in Germany in legal contexts to the best of my knowledge. So, is Pogge's use of the device a "publicity stunt" or  does it have bearings on any legal or Yale's regulatory procedures? 

Polygraph test results are generally not admissible as evidence in American courts (the state of New Mexico is an exception).  The exclusion dates to a court decision from the 1920s, but almost all American courts, state and federal, continue to follow that approach.  The reason is that we know that some serial liars are very good at passing these tests, and some totally truthful witnesses regularly fail them.  Polygraph tests try to pick up typical biomarkers of being untruthful, but the correlation is imperfect.   If, in fact, Professor Pogge passed a polygraph test, as he asserts, nothing would preclude Yale from considering that, but it would not be admissible were the matter adjudicated in federal court or state court in Connecticut.  Given the unreliability of such tests, there is no reason a complainant should subject herself to one.

UPDATE:  Professor Pogge's response has moved from a Yale site to his personal site; the link, above, has been fixed.

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5 responses to “On polygraph tests”

  1. Andrew

    I commented on a thread at DailyNous on this topic. There, I think that the misleading impression was being given that polygraph evidence is per se inadmissible in all courts. Your post is significantly more careful, but I still think that it is potentially misleading.

    I'm assuming that the "court decision from the 1920s" to which you refer is Frye v. U.S. In Frye, the D.C. Circuit held that polygraph evidence was per se inadmissible as expert testimony because polygraph testing had not achieved "general acceptance" in the relevant field. In Daubert v. Merrell Dow, the Supreme Court rejected this approach to expert testimony, so that Frye is no longer good law. There is no Supreme Court holding or Federal rule which precludes the admission of polygraph evidence.

    Since Daubert, courts have taken a variety of views regarding polygraph evidence. Many courts, including a number of Circuit Courts of Appeal, have rejected any per se approach and, instead, consider polygraph evidence on a case by case basis based on the analysis set-out in Daubert and the balancing of Rule 403. In some cases, though, admittedly, not many, courts engaged in such an analysis have held that polygraph evidence is admissible when offered by a defendant to establish innocence. Other courts have held that polygraph evidence is admissible on stipulation of the parties. Still other courts have held that polygraph evidence is admissible for certain limited purposes, even if, in a particular case, it cannot be offered by the defendant to establish innocence. Other courts have distinguished between criminal and civil proceedings, or held that such evidence might be offered at certain pre or post trial proceeding.

    All of that is consistent with the view–with which I agree–that the dominant view is that polygraph evidence is inadmissible to establish the innocence of the defendant at trial. But, I think it's worth emphasizing that that result isn't universal, frequently does not follow from a per se rule, and that such evidence might be admissible for variety of other purposes.

    BL COMMENT: Just to clarify a couple of things, though I agree with most of what you say (though these are details that don't really matter): (1) many states still actually follow the Frye rule, and thus follow Frye regarding polygraphs; (2) Daubert held that the Federal Rules of Evidence did not incorporate Frye, but noted that "general acceptance" of a result in the scientific community is a relevant factor for courts to consider (and in many places, Frye-style considerations still play a large role); (3) while Daubert did, indeed, open up argumentative space for the admission of polygraph results, so far the proponents have had no success in the federal courts, at least as substantive proof of innocence (is there a case to the contrary now?)–lots of evidence not admissible as substantive proof can come in for other purposes, of course, but that's irrelevant to the use to which Pogge is presenting it; (4) if both parties stipulate, it is true polygraph results can come in, but those are unusual circumstances and occur only when it is in the interest of both parties to admit the results. In general, I think anyone who reads the comments at any other philosophy blog is in serious danger of being misled about lots of things, including the law!

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  2. Andrew

    I agree with all of this.

    I know of one case in which a federal court admitted polygraph evidence offered by a defendant in an attempt to establish his innocence and over the prosecution's objection. See United States v. Galbreth, 908 F. Supp. 877, 896 (D.N.M. 1995). I haven't really done an exhaustive search, so I don't know if this case is a true outlier (with no company) or whether there are other such cases. There are also some cases in which courts have held that polygraph evidence can be introduced to bolster the credibility of a witness whose credibility has been attacked. See, e.g., United States v. Crumby, 895 F. Supp. 1354, 1365 (D. Ariz. 1995); United States v. Padilla, 908 F. Supp. 923, 931 (S.D. Fla. 1995).

    BL COMMENT: Thank you for those references. Even permitting use to repair credibility is rather unusual it appears. (I am guessing the witness impeached in those cases was not the defendant, and that the witness was attacked as a liar.) I'll have to look at these, and Galbreth–interesting that it is also from New Mexico, though federal. I appreciate your sharing this.

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  3. Fritz

    Andrew claims that "Frye is no longer good law." Respectfully, I don't think this is right in some jurisdictions: some have interpreted *Daubert* as not foreclosing *Frye*. A quick search indicates that those include: California, Illinois, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington. (I think this is Brian's point from (1) above.) As to whether lie detection in particular is admissible–i.e., as opposed to the general evidentiary standard–the jurisdictional standards are nuanced. Few have per se rules against–though some due–whereas some allow based on mutual stipulation by parties. (Agreed that federal law is more pessimistic than states' and widely disallows across circuits, though Andrew's cites bear review.

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  4. Cheyney Ryan

    Anita Hill took a polygraph test during the Clarence Thomas hearings. The fact that she passed it was publicized at the time as proof of her veracity, and has continued to be in the literature on her, as well as in the recent movie on the hearings where a key moment is her passing the test.

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  5. alexander stingl

    i want to merely point to Kan Alder's now classic study (http://www.kenalder.com/liedetectors/index.htm) and this forthcoming (early access) paper I mentioned in my original question to Brian: http://bst.sagepub.com/content/early/2016/02/25/0270467616634162.abstract

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