Lie Detectors and the First Amendment

Anyone who watches dramatized detective shows–especially those of the CSI variety–knows that the real starring role is played by technology: cool, highly sophisticated devices that virtually no real-life crime lab can afford. These shows are fun, but accuracy isn’t the strong suit of storylines that need to be resolved in an hour’s time. (Fingerprint identification isn’t the slam dunk that Abby’s computer makes it seem on NCIS.)

Even the popular culture shows that don’t rely on “gee whiz” gadgetry, however, routinely use lie detectors. So the general public can be forgiven for thinking that lie detectors work.

They don’t. At least, not reliably. As Morton Tavel has noted

In 2003, the National Academy of Sciences (NAS), after a comprehensive review, issued a report entitled “The Polygraph and Lie Detection,” stating that the majority of polygraph research was “unreliable, unscientific and biased”, concluding that 57 of approximately 80 research studies—upon which the American Polygraph Association relies—were significantly flawed. It concluded that, although the test performed better than chance in catching lies—although far from perfect—perhaps most importantly, they found the test produced too many false positives.

In other words, nervous people who are telling the truth can easily fail the test. And many do.

This lack of reliability is widely understood in the legal community and among police officers; it’s why most courtrooms don’t admit lie detector results into evidence. It’s also why several ex-police officers have spoken out against their use, and why a subset of them has helped job applicants and others who face “screening” by detectors learn techniques that will help them pass.

And that brings us to a fascinating question. Is helping people pass a lie detector test a crime? What if you aren’t just helping Nervous Nellie tell the truth in a way that won’t trip the machine, but you are helping Sneaky Sam lie?

Douglas Gene Williams, a former Oklahoma City police polygraphist and the proprietor of Polygraph.com,  has been teaching individuals how to pass polygraph tests since 1979. He has recently been indicted for mail fraud and witness tampering for allegedly “persuad[ing] or attempting to persuade” two undercover agents posing as customers “to conceal material facts and make false statements with the intent to influence, delay, and prevent the testimony” of the undercover agents “in an official proceeding….”

Williams’ defenders say this is entrapment, that the attempt to shut him down is implicit acknowledgment that the tests don’t work, and that Williams has a free speech right to criticize their use by demonstrating their manifest unreliability. Others–including many polygraph critics and yours truly–say that helping guilty people fool the tests goes beyond advocacy, and is a bridge too far.

What say you?

 

17 thoughts on “Lie Detectors and the First Amendment

  1. I certainly hope that people are working on improving the technology. There is so much biometric data that we know how to obtain now that I would think that using the same set invented decafdes ago would be very unlikely to be the most reliable.

    It seems that we know that the old tool is unreliable so why do we pretend otherwise?

    His particular behavior doesn’t seem to me any more illegal than the stable of expert witnesses who are available to those who can afford them to testify almost any answer you want.

    Or jury consultants.

    Or political managers who train people to act like competent candidates (a la the Good Wife).

    Or neocapitalists who lipstick all kinds of pigs.

    Nothing is as it seems when mediatized.

  2. A thousand years ago I did a research study for a consumer finance company that clearly demonstrated their use of polygraphs to screen employees (for “honesty”) was a waste of time and money. It boggles the mind to think that anyone still uses this “magic box” technology either in business or law enforcement. That said, if it’s being used, then one should have the right to learn how to “pass” the bogus test.

  3. The goal for business is to avoid hiring sociopaths, but research has shown that it’s actually easy to do that. At the first interview, you just simply ask them stuff that would be ordinarily obvious to common folks who usually tell the truth because they have a conscience. The following works just fine: “I’m going to ask you a number of questions in which you have to answer “yes” or “no”. Here’s the first one: After you have worked with the company for six months, and people know you, is it O.K. to borrow some money from the cash register? Now the second one: And after you have worked for the company for six months, is it O.K. to take home a packet of pencils, pens, a ream of paper and an electric pencil sharpener from the supply room?” They won’t have a clue why you didn’t hire them.

  4. This reminds me of plagiarism, which reminds me of our august senator, Mr. Coats. He just sent out a letter ridiculing some research (at Ohio State, by the way) in which rabbits were given Swedish massage and then killed to see the effects of the massage. The defense for this physiology study is that we know that Swedish massage is effective, but we have a poor understanding of how it works at the cellular level. Thus the research, but Mr. Coats had a need to ridicule it, claiming it was a waste of Federal research dollars. Now for the interesting part: This was probably lifted from Tom Coburn’s annual “Wastebook”. It is doubtful that Mr. Coats or his staff spends their time engrossed in the physiology research. I suggested to him that to understand more about the cellular effects of Swedish massage, the researchers could have used rabbits, or that he could have volunteered to be sacrificed to save the rabbits. Meanwhile, I suggested that he could do his own work, rather than lifting it from someone else.

  5. Since the technique is terribly flawed, I do not blame anyone for learning how to nullify it. And, stings such as this one might be appropriate in some instances, but I don’t think this is one of them.

  6. Sheila, if someone during a Middle Ages attempted to help an accused learn to recite the Lord’s Prayer error free to avoid being convicted as a witch would that be subverting justice? Research appears to indicate that polygraphs have about as much value as the witch trial tests.

  7. I know we can’t believe everything we see on TV, but it always upsets me that suspects who lie during an interrogation are in legal jeopardy, but police can lie with abandon to entrap suspects. As portrayed, the police do tell the truth once they go on the witness stand (or almost always). Nevertheless, if we want to build respect for law enforcement and the judicial system, it seems everyone should have to play by the same rules.

    Having said that, I can understand why constantly fighting the criminal element has a corrosive impact on law enforcement. A crime beat reporter once told me he felt police officers needed rotation out to other duties every couple of years so that they had a healthful break from dealing with the worst among us. He said police are victims of PTSD just like battle-fatigued soldiers who become desensitized to horrific behaviors and images, feel a survivalist’s need to be suspicious of everyone, and feel justice is served by bending or even breaking the law to fight ‘fire with fire’ – an ends justifies the means mentality. Community support for law enforcement suffers as a result, making law enforcement tougher still, creating a downward spiral of lawlessness all around. To say that was a demoralizing conversation is an understatement.

    I asked a personal friend who was a court reporter how she dealt with the constant stream of horrible crimes and criminals she had to record each day. She said it IS very tough, and only her faith and the supportive environment of our church made it possible to deal with the emotional weight of her job.

    Until these conversations, my sheltered world obscured appreciation of the extent of the toll the criminal justice system takes on all those working to keep the rest of us safe.

  8. I understand that people have been pulled over after blinking their headlights to warn drivers of a speed trap. With the one I heard about, the cop blustered and threatened, but didn’t issue a ticket. I’d love to see how that ticket would fly in court when you said the words “Exercising right under the First Amendment of the Constitution”.

  9. Police are often trained to use a lot of underhanded and coercive methods to get confessions. After seeing one of those workshops, I decided that if I was ever “invited” for a police interview, it would be with an attorney sitting next to me. Some of those guys would poison their grandmother to get someone to confess, whether they did it or not.

  10. If the polygraph process is bunk to begin with, I have to ask: what reliable result is being distorted by training on how to subvert it? If an already unreliable result is now unreliable again, what is the harm?

  11. Training will only increase the number of false negatives (misses), or the people who are lying but actually did it. That’s their problem now. False positives are not a big problem for police in real life–where people confess to a crime they didn’t do. So, increasing the false negatives only puts the police in the same situation they are now in, but then they have to pay for it and the bad guy gets to use the data (assuming that he can bring it into court). Not very helpful.

  12. Years ago, in Texas, I worked the graveyard shift at a pancake house. We had two managers, one that oversaw the evening and the other the graveyard shift. They were thieves that shook down the waitresses frequently for money that suspiciously “wasn’t in the till” at the shifts end. They would even try to rook you by asking for the wrong amount of change if a waitress was distracted, or by filching your tip from the table. When waitresses got savvy and began counting and watching more carefully, they had the audacity to put a big sign up that said “if you don’t trust your boss, you don’t need to work here.” That was when I took off. But, boy could they pass those polygraphs. I heard years later that one of them was fired over a cockamamie story that his office had been broken into and the company had been relieved of several thousand dollars. They were Penny Annie thieves. I was glad to hear one finally got caught.

  13. Quite frankly, since these ridiculous things are still around ruining people’s lives, I’m not the least bit concerned about the ‘honesty’ of his behavior. Once you can right all of those harmed by their use, then we’ll talk about the honesty of what he does. In the meantime, I’m not losing a moment’s sleep over what this guy does for a living.

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