CHAPTER 5

LEGAL AND COLLATERAL ISSUES IN POLYGRAPH TESTING

Polygraph evidence has long been disputed into public controversy since the introduction of the
instrument. Generally, the sources of the dispute come from issues on its validity/ reliability and
acceptability. Since development of polygraph techniques, their use both within and outside the
government has been the focus of numerous judicial opinions and, as well, legislative and executive
branch debate.

Polygraph examinations have been advocated as a way of ascertaining guilt of criminal suspects,
exculpating innocent suspects , protecting national security, and maintaining employee honesty or
loyalty Polygraph examination have, at the same time, been criticized for providing inaccurate and
misleading information, for failing to detect security risks, for interfering with the rights of private
citizens, and for lowering employees’ morale.

Does a Polygraph Examination actually identify truthful and non-truthful individuals?

In order to come up with a clearer understanding on this matter, the following are discussed:

a. The Validity Issue of Polygraph Testing

The validity of polygraph testing means, in non nontechnical terms, accuracy of the test in detecting
deception and truthfulness. The problem of assessing polygraph validity is especially difficult, not only
because polygraph tests take a number of forms, but also because validity has different dimensions and
can be measured in a number of ways. There are a number of a different forms of a validity associated
with polygraph examinations depending on the type of polygraph test as well as on its use. These
difficulties underlie, in part, the failure to have developed assessments of polygraph validity that are
accepted by the scientific community.

b. The reliability Issue of Polygraph Testing

Assessment of any tests validity is based on the assumption that the test consistently measures the
same properties. This consistency, known as reliability, is usually the degree to which a test yields
repeatable result (i. e., the extent to which the same individual resisted is scored similarly). Reliability
also refers to consistency across examiners/ scorers. A reliable polygraph test should yield equivalent
outcomes when subject are retested and, as well, be scored similarly by individuals other than the initial
examiner. For example, if a polygraph examiner reviewed a set of charts and concludes the deception
was indicated. This illustrates inter-reliability. Such reliability might be affect by the amount and type of
training of examiners.
What has been concluded by scientific assessors with regard to the polygraph test?
The core of the legal, legislative, and scientific assessment of polygraph tests is their validity. Yet, despite
many decades of judicial, legislative, and scientific discussion, no consensus has emerged about the
accuracy of polygraph tests.

Meanwhile, polygraph advocates claim 80-95% result accuracy, critics maintain that rather than a “test”
the method amounts to an inherently unstandardizable interrogation technique wherein accuracy
cannot be established. For example, in the 1998 Supreme Court case, United States v. Scheffer, the
majority stated that “There is simply no consensus that polygraph evidence is reliable” and “Unlike
other expert witnesses who testify about factual matters outside the juror’s knowledge, such as the
analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury
only with another opinion.” in additional, in 2005 the 11 th Circuit Court of Appeals started that
“polygraph did not enjoy general acceptance from the scientific community”.

As to the formulation of test questions, studies showed that although the CQT [Control Question Test]
may be useful as an investigative aid and tool to induce confessions, it does not pass muster as a
scientifically credible test. CQT theory is based on naïve, implausible assumptions indicating that it is
based against innocent individuals and that it can be beaten simply by artificially augmenting responses
to control questions. And although defense attorneys often attempt to have the results of friendly CQTs
admitted as evidence in court, there is no evidence supporting their validity.

On the other hand, in most states in the United States, polygraph evidence is admitted (or not
admitted) on a case-by-case basis. However, a properly conducted test given by a preeminent
examiner is often given great scutiny by the court and attorneys on the other side. Under those
conditions, a passing test can lead to dismissal of charges or a better deal in a plea bargain . In many
instance, mostly in civil cases and family/ custody court, polygraph is often admitted as evidence. For
example, Dr. Rouner is one of only a few polygraph test admitted in a criminal trial, over the objection
of the prosecution.

Is Polygraph admissible in Court?

Polygraph result is admissible in some federal circuit and some states in the United States. More often,
such evidence is admissible before the examination is given, under terms of a stipulation. Some
jurisdictions have absolute bans on admissibility of polygraph results are evidence and even the
suggestion that a polygraph examination is involved is sufficient to cause a retrial. According to
standards, results of polygraph tests known as psychophysiological verasity (PV) examinations are
admissible in a court if the particular polygraph technique use in the proffered PV examination meets
the Daubert Standard to the satisfaction of the presiding judge who acts as the gatekeeper of the
Federal Rules of Evidence.

Recent advances in polygraph instrument technology and polygraph techniques that have been
validated by scientific studies published in peer reviewed journals that meet the Daubert Standard
should open the field for renewed challenges to rules of inadmissibility.

As of 2009,eighteen (18) states in the United States have adopted the Daubert Standard of admissibility
and the judicial door is open for other states to follow . The federal courts and most state courts in the
United States adopted the Frye Standard since then, with rare exceptions except for the State of New
Mexico, denied admissibility of psychophysiological veracity (PV) examination (polygraph) results in
court. 19 States admit results of PV examinations under stipulation by parties. The State of New Mexico
permits the introduction of polygraph results into evidence without a stipulation, under strict
evidentiary rules.

Comparative Setting on polygraph Use and admissibility:

United States Canada

England Israel

Europe India

Australia Japan

United States- polygraph testimony was admitted by stipulation in 19 state since 2007, and subject to
the discretion of the trial judge in the federal courts. The use of polygraph in the court testimony
remains controversial, although it is used extensively in post-conviction supervision, particularly of sex
offender. While polygraph tests are commonly used in police investigations, no defendant or witness
can be forced to undergo the test. the Employee Polygraph Protection acct of 1988 (EPPA) generally
prevents employers from using lie detector tests, either for pre- employment screening or during the
course of employment.

Europe – in most European jurisdictions, polygraphs are not considered reliable evidence. They are not
generally used by police forces. Courts themselves do not order or pay for polygraph tests. In most
cases, polygraph test are voluntarily taken by a defendant in order to substantiate his/her claims. The
Federal Court of Justice of Germany has ruled that that poly graph evidence is not admissible in court.

Canada – in Canada, the polygraph is regularly used as a forensic tools in the investigation of criminal
acts and sometime employees in the screening of the employees for government organizations. In the
1987 decision of R V. Beland, the Supreme Court of Canada rejected the use of the polygraph results as a
evidence in court. This did not however affect the use of the polygraph in the criminal investigations. the
polygraph continues to be used as an investigative tools.

Australia – the high court of Australia has not yet considered the admissibility of polygraph evidence.
The New South Wales District Court rejected the use of the evidence in a criminal trial.

Israel – The High Court of Israel in Civil Appeal ruled that as the polygraph has not been recognized as a
reliable device, polygraph result are inadmissible as evidence in a civil trial. However, some insurance
companies attempt to include a clause in insurance contracts, in which the beneficiary agrees that
polygraph results be admissible as evidence.in such cases, where the beneficiary has willingly agreed to
such a clause, signed the contract, and taken the test, the courts will honor the contract, and taken the
polygraph results into consideration. Interestingly, it is common practice for lawyers to advice people
who signed such contracts to refuse to take the test. Depending on whether or not the beneficiary
signed an agreements clause and whether the test was already taken, or not, such a refusal usually has
no ill effects; at worst, the court will simply order the person to take the test as agreed.

India – Recently, an Indian court adopted the brain electrical oscillations signature test as evidence to
convict a woman, who was accused of murdering her fiancé.it is the first time that the result of
polygraph was used as evidence in court. On May 5, 2010, the Supreme Court of India declared use of
microanalysis, brain mapping and polygraph tests on suspect as illegal and against the constitution.
Polygraph test are still legal if the defendant requests one, however. the Supreme Court on February
2006, afforded polygraph result judicial notice of acceptance with certain requirements that assure the
reliability of the test and protect the rights of the defendant/ examinee.

England – the current legal position, with respect o the second Bonython requirement, is that, for expert
evidence to be admissible in England and Wales, it must be “sufficiently and reliability” that is to say, the
expert witness’s evidence must be sufficiently reliable to be fit for a jury to consider.

Japan – on April 21, 1982, the Tokyo High Court admitted a writer expert opinion of polygraph
examination as evidence. The polygraphist had used both Concealed Information Test (CIT) and the
Control Question Technique (CQT). The judge that the result of the CIT was reliable enough. The CQT
result was questioned not because the CQT method itself was unreliable, but because the questionnaire
used in this case was not in standard format. On October 25, 1989 –Urawa District Court , the defendant
demanded the conduct of polygraph examinations as to who was lying, he or the interrogator. His
applicant was rejected because of two reason: (a) the CIT, called “the peak of tension test” in the main
text of the judgment, was inapplicable in that situation, and (b) the CQT was unreliable and not at all
admissible.

What is the Current State of polygraph Testing in the Philippines?

In the Philippines, polygraph evidence was first discussed by the Supreme Court in 1978 in People v.
Daniel (G.R. No. L-40330 No. 20, 1978). In this case, the accused submitted to the trial court the results
of a polygraph test to slow he was innocent of the crime of rape. The trial court rejected the results as
evidence, the Supreme Court sustained the trial court’s ruling,. It held that a polygraph test is unreliable
considering that the subject took the test after the trial was over. The court reasoned that the subject
no longer felt any fear of emotional distress that would allow any finding that he committed the crime
charged. It said the accuracy of a polygraph test depended largely on the time and place of the test, and
if the subject was already distance from the commission of the crime, the result where bound to fail.

In 1999, the Supreme Court was again confronted with polygraph evidence in People v. Adoviso, 309
SCRA 1. in this case , Pablo Adoviso was convicted of two counts of murder by the regional Trial Court of
Camarines Sur. He was identified by two witnesses as the perpetrator of crimes . Among the evidence
offered was the ‘testimony of a polygraph examiner of the National Bureau of Investigation (NBI) who
conducted a polygraph test on Adoviso’s Polygram's revealed that there were no specific reactions
indicative of deception to pertinent question s relevant to the investigation of the crimes. Despite this
finding, the trial court found Adoviso guilty beyond reasonable doubt. The Supreme Court disregarded
the negative results of the polygraph examination, starting that American courts almost uniformly
rejected the results of the polygraph tests when offered as evidence for the purpose of establishing the
guilt or innocence of one accused of a crime, whether the accused or the prosecution sought its
introduction, for the reason that the polygraph had not yet attained scientific acceptance as a reliable
tool for ascertaining truth or deception.

On June 2000, the ruling in the Adoviso case was reiterated in People v. Reanzares, G.R. No. 130656,
29 where the Supreme Court disregarded the attempt of an accused to undermine the credibility of a
prosecutor witness who refused to take the lie detector test. The court reiterated that a lie detector
test has never been accepted in our jurisdiction as a means of ascertaining the truth.

On April 2001, the Supreme Court reiterated the same rule in People v. Carpo, G.R.. No. 132676,
further stating that the court does not put credit ant faith on the result of a lie detector test inasmuch
as it has not been accepted by the scientific community as an accurate means of ascertaining truth or
deception.

Polygraph evidence is consistently rejected by our Supreme Court for being unreliable and inconclusive
in determining the truth, thus, the polygraph instrument is only useful as a valuable criminal
investigation tool in the Philippines.

The major law enforcement and investigation agencies in the Philippines such as the National Bureau of
Investigation (NBI) AND THE Philippine National Police (PNP) have been the using the modern method of
polygraph testing in their respective criminal investigation function.

What are the collateral Aspects of Polygraph testing?

Pre-employment Screening- it provide the safe method in verifying statements of a job applicant,
prevent false evaluation and false judgment as reported by previous employer who carry a personal
grudge against him.

While most job applicants and honest and hardworking individuals, some of them try to gain a job
misrepresenting their background, employment history, education, experience, and abilities on their
resume and application.

A recent research done by the University of Singapore Business School showed that 82.3% of
respondents misrepresented or exaggerated their abilities and their resume. consequently, some
individual are hired who eventually put the employer, co-workers, and members of the public at risk
because of their inappropriate behavior. Many employers do not even pre-employment background
checks on their employees because they do not realize is importance before it is to late.

Some employers rely on perfunctory screening method like interviewing, checking with characters
referees and past employers which are inadequate, especially for position of trust. Even for
organizations with access to criminal and their official records are inadequate. It is for this reason that
many well- known organizations like CIA, FBI, US Department of Defense and private sector
organizations rely on polygraph pre-employment screening.

Polygraph screening often reveals reliable information not obtainable by any other means. This include
concealing/ falsifying background information or qualifications, criminal records, undetected crimes like
theft from previous employers, fraud, corruption, drug offence, sexual crimes, violent behavior,
membership undesirable or subversive groups and other unsuitable behavior.

Advantages on the part of the employee

1. Prevent false evaluation and unfair judgment due to personality conflicts reported by a previous
supervisor or employer

2. It does away with lengthy waiting while employment application is being check, telephone,
telegram or letter .
 3. Eliminate the potential hazard of a person knowing to work to a alongside with other who might
endanger their live or job security.

4. Provide a safe method for a person to be cleared of unwarranted suspicion and unjust
accusation and malicious gossip.

5. It will create a bond o mutual strength between employees and can.

6. It creates a desire for incentives.

Advantages on the part of the employer

1. Provides an accurate method, whereby the employment background of an applicant and

relevant issues collateral thereto can be immediately checked and verify at a negligible cost.

2. Detect the chronic alcoholic job jumper and accident prone person.

3. Reveals some of the unusual aspect concerning the psychological mal-adjusted agitator amateur
and professional theft in private industry.

4. Reduce costly personnel turnover by helping management put the right person on the job and
ascertaining an applicant attitude toward job permanent.

5. Acts as constant deterrent to employee dishonest and permit basically honest employee to work
in greater harmony with basically honest employee.

Periodic Screening- conducted to organic employees only and use as constant deterrent to employee’s
dishonest and create a bond a mutual strength among employees.

Periodic polygraph employee screening is similar to an organizational ‘health check to detect the
cumulative effect result in considerable financial loss, damage to reputation or even bankruptcy. A
typical scenario is that the thief start of f with stealing a small amount .the boss thinks that it is not
worth sending his staff for polygraph tests. He tries to improve his control measures. The thief gets
bolder and eventually ends up stealing a huge amount and also getting other staff involved.
Unfortunately, many of our clients come to us for help only after they are hit hard.

security and Intelligence agencies in advanced countries use it for counter-espionage screening
after they are plagued by scandals. With the increasing reliance on computer technology an d the
internet, computer crime has become a major concern among large corporations and law enforcement
agencies . Security system, internal controls and audits are not fool-proof to prevent computer and
other workplace crime like theft, fraud, corruption, collusion with vendors/ suppliers, sabotage, theft of
corporate or state secret etc.
The polygraph chart presented above is a screenshot of an actual polygraph test. It is a typical chart
produced by a state-of-the-art computer polygraph recording on 5 channels. 2 channels record the
subject's respiration, 1 channel records the Galvanic Skin Resistance, 1 channel records cardiovascular
activity and the remaining channel records certain physical activity. The test questions asked during the
test are indicated as R1 to R10 at the bottom of the chart. They are short and direct questions requiring
a 'yes' or 'no' answer.

Shown above is a typical Polygraph computer screen during a polygraph exam.

The polygraph data flows to the left, with the right side of the computer display being more recent.
The polygraph measures chest breathing at the top, followed by stomach breathing, then electrical
conductivity of the sweat gland, and then blood pressure.
In addition, most polygraphs also have a fifth channel that measures subject movement (not shown
here).
Each polygraph question asked is represented by a question label, as shown above.
The polygraph has an optional hand score number that appears on the screen to assist examiners in
scoring their chart.
Typically a polygraph chart will be recording data from 5 to 9 minutes depending on the style of
question formats selected by an examiner.
After all chart data is recorded, the polygraph examiner will analyze the chart mathematically, as taught
in a polygraph school, and make a determination of a subjects truthfulness. Usually the polygraph
examiner will then discuss his polygraph truthfulness determination with the test subject, and allow the
subject to explain his reactions.

In summary, the polygraph exam has separate phases:

The Pre-exam: where the polygraph examiner discusses the test issues with the subject to best
determine how to phrase the questions.
The exam itself: Where the polygraph chart records a subjects autonomic reactions to the questions
asked.
The Post exam: Where the Examiner discusses the results of the polygraph exam with the subject.
After the exam is over, the Polygraph examiner will typically write a report of some sort, to be delivered
to the paying client, or other parties.
This concludes a very basic description as to what polygraph is, and how it works.