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Polygraph Laws Regarding Admissibility

The widely held opinion that polygraph is not admissible in court is a false one and at some point the rumor of inadmissibility festered into fact. We've provided a brief federal case history with explanations of how each case has effected the basic stance of the federal courts regarding polygraph.

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1923 - Frye v. United States

First, it is important to note this case was in 1923. There was no polygraph as we understand it today. The test was called the Systolic Blood Pressure Deception Test and only measured the rising and falling of blood pressure during questions. The court decided that to be admitted as evidence, "the thing by which a deduction is being made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."

Polygraph technology was literally still in its infancy during this case. The final ruling was that the Systolic Blood Pressure Deception Test had not yet achieved acceptance with the physiological and psychological authorities of that time in history. Result. For the next 50+ years, all deception tests were indeed inadmissible based on the precedent set with Frye v. United States.

1975 - United States v. Oliver

This case was complex, but the end result precedent was that polygraph results were allowed as evidence by the government and the government's stance was that they had met the burden or proof regarding 'a degree of acceptance of the science of polygraphy by experienced practitioners in polygraphy and other related experts.'

1980 - United States v. Roberts

The thrust of this case was whether or not the grand jury prosecutor had deprived the defendant of due process. Specifically, it had been promised to the judge by the prosecutor that all the evidence given her had been shown to all members of the grand jury. Turns out, that is not what happened. Among other pieces of evidence left out, were the results of a polygraph test. The prosecutor had told the grand jury unequivocally that polygraph results were inadmissible and the court called her on the carpet and stated that was false. Here is an excerpt from the case:

"The Court also disapproves of the prosecutor's bold statement to the Grand Jury that polygraph evidence is inadmissible at trial. Such statements are untrue. The Ninth Circuit has held that polygraph evidence is admissible within the trial court's discretion.".

1993 - Daubert vs. Merrell Dow Pharmaceuticals

This case was not about polygraph, but it did something very important that affected polygraph. It loosened the rules of evidence from the 'general acceptance' Frye ruling in 1923 and stated that 'general acceptance' was NOT a necessary pre-condition to the admissibility of scientific evidence. Instead, the Daubert decision placed the decision making power in the trial judge's hands to "ensure that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand."

Daubert also laid out factors, not a cut and dry list, but important factors to consider when determining the reliability of expert testimony. Those factors are:

• Whether the theories and techniques employed by the scientific expert have been tested

• Whether they have been subjected to peer review and publication

• Whether the techniques employed by the expert have a known error rate

• Whether they are subject to standards governing their application

• Whether the theories and techniques employed by the expert enjoy widespread acceptance

Starting with Daubert, anyone now had the right to request a motion for a hearing on the admissibility of polygraph results as expert evidence. It didn't mean that they would automatically be allowed, but the avenue by which a request could be made was now open.

1995 - United States v. Posado

This was a very important case for polygraph. In the initial trial, the request for a 'Daubert Hearing' on polygraph evidence at a pre-trial suppression hearing was denied and the defendants were ultimately convicted. The appeal rested primarily on the fact that, based on the specific details of this case, the court should have granted the Daubert hearing. The appeal was successful and the defendants convictions were vacated.

1995 - United States v. Galbreth

This case had a motion submitted for a Daubert hearing for the admissibility of polygraph evidence. The Daubert hearing was conducted and the court found:

"Wherefore, it is ordered that Defendant's Motion to Admit Expert Opinion Evidence Regarding Polygraph Results be and hereby is GRANTED.

The defendant was acquitted at trial prior to polygraph evidence being admitted to the jury. It was nonetheless a victory for polygraph.

1998 - United States v. Duque

The defendant made a motion to submit polygraph evidence, the state submitted a motion to exclude it. The court's decision was in favor of the state and the evidence was not admitted. What is important about this case is that the evidence was not admitted based on a few different reasons. One of which was that the polygraph expert was found to 'not competent to testify about the scientific reliability of the control-question method of polygraph.

In other words, at least part of the reason is that the polygraph examiner was not prepared to defend the technique he was using. Secondly, the court stated that even if the defendant had developed a necessary foundation for the reliability of the polygraph, that the polygraph evidence would be of small significance to the overall facts in the case and that introducing it could prejudice the jury unnecessarily.

Basically, the way this case was handled by the defense is what hurt polygraph and the extra comments made by the court as their opinions have been misquoted extensively by opponents of polygraph as facts that polygraph is unreliable. The full story is that the defense did a terrible job and the government did a great job, so much so that the court agreed with several of the premises set forth in opposition to polygraph. Which is ironic since the federal government did then and continues to utilize polygraph in other venues of defense and national security.

1998 - United States vs. Sheffer

A complex and confusing case that did revolve around polygraph, but was equally a matter of rules of evidence. The only clear outcome of the case was that refusal to consider polygraph evidence in a court-martial was deemed as not a violation of the defendant's rights and that under Military Rule of Evidence 707, polygraph remains inadmissible in court-martial proceedings... period.

The effect this had on the overall admissibility of polygraph is varied and open to interpretation. It seems to somewhat undermine the Daubert decision and at the same time leaves individual state and local courts the freedom to decide on their own whether they want to consider admitting polygraph evidence.

A few general conclusions can be made from the years of polygraph case law:

1. The court system is clearly at odds with itself over making any permanent, final decisions regarding the admissibility of polygraph.

2. Ultimately, it is up to the trial judge as to how he or she will handle any motion to admit polygraph evidence.

3. Polygraph is regularly admitted as evidence in trial.

4. Polygraph is regularly rejected as evidence in trial.

5. Polygraph is widely used and accepted daily in other venues of government, such as pre-employment testing, testing for security clearances and tests for espionage and sabotage. And these areas have been growing, not slowing.

Call us at any time at 1-800-497-9305 for a free consultation and appointment scheduling.

Contact us at anytime at (800) 497-9305 to discuss polygraph testing for your case.

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