Who’s telling the truth? Officials debate use, value of polygraphs
Too many fudge factors make it a tool you can’t completely bank on, some say.
By PETER H. MILLIKEN
VINDICATOR STAFF WRITER
YOUNGSTOWN — Polygraph examinations have been used for lie detection for more than 80 years.
Despite this history, the polygraph will likely never enjoy the legal assuredness of the fingerprint or the DNA test.
Yet it continues to play a large role in our legal process.
That role evokes plenty of opinions from people in all walks of our legal system.
“I think polygraph has earned its credentials at this stage because it’s been critiqued and re-critiqued, ad nauseam, which is good,” said Williams D. Evans II, an Akron-based lawyer and polygraph examiner, who often visits the Youngstown area to conduct exams.
Similar to experts on fingerprints, DNA or ballistics, a polygraph examiner is subject to cross-examination concerning methods and credentials. Because of this, Evans believes a judge should be able to determine a polygraph’s admissibility in a particular case regardless of prosecution and defense opinions.
Skeptics
One disbeliever is Timothy Franken, chief trial lawyer in the Mahoning County prosecutor’s office.
“This is not that good of science, so the courts don’t like it,” Franken said. “I believe it’s a crutch, and I don’t believe it’s that accurate.”
Polygraphs attempt to insert the judgment of a machine and the examiner’s interpretation in place of judgment that should be made by lawyers and jurors, he said.
Franken’s colleague, Robert Bush, chief of the criminal division of the county prosecutor’s office, said polygraphs, because of their subjectivity, will never reach the level of certainty of fingerprints or DNA, but they have a useful investigative role.
“I would be reluctant to use just the results of a polygraph, one way or the other, to move me on a particular case. But it can be used to clear up some areas and to give you some direction,” Bush said.
“It’s not the end-all, be-all. It should never be used as a primary investigative tool or a front-line investigative tool,” Evans said.
The American Civil Liberties Union opposes the use of the polygraph in criminal cases “because it can be manipulated,” said Lloyd Snyder, general counsel for the Cleveland-based ACLU of Ohio.
“It depends very much on the objectivity and competence of a polygraph operator,” he said.
“There have been over 200 cases [nationwide] in which people convicted of capital offenses have been shown to be innocent, mostly by DNA evidence, and, in many of those cases, the defendant confessed,” he said. “That’s one of the problems with polygraph. It can be used as part of the process to induce those confessions.”
With the exception of New Mexico courts, polygraph results are generally inadmissible as evidence in trials in state and federal courts, said Charles W. Daniels, an Albuquerque, N.M., lawyer and University of New Mexico law professor, who writes on this topic in national legal journals.
A supporter
Defense lawyer Dennis DiMartino, however, thinks the polygraph is a great tool, provided the person administering the test is fair.
DiMartino said a polygraph can be useful in evaluating and preparing for defense of a client.
He also said some prosecutors have agreed to drop charges in cases where his clients have passed a polygraph and where there is a lack of witnesses and evidence.
“We don’t work for anybody in particular. We work for the truth,” regardless of who is paying for the exam, Evans said of himself and the examiners he knows in the law enforcement field.
It’s not unusual for the prosecution and defense to agree to a court-admissible polygraph because, pass or fail, the outcome is desirable, Evans said.
If the suspect passes, charges are dropped and no trial is needed, he noted.
If the suspect fails, he’ll usually plead guilty or be convicted in a trial because the polygraph supports the prosecution’s case, he added.
Experts agree that the outcome of a polygraph can be affected by a host of factors: the way the questions are worded; the experience and training of the examiner; any bias the examiner has; the calibration of the equipment; and stress of the examinee.
Sheriff Randall Wellington, who gave polygraph exams in his private business for 15 years, said it’s difficult to fool an experienced examiner.
Wellington cited studies showing polygraphs have between 82 and 98 percent reliability.
Franken said, however, “That’s reasonable doubt, so what good are they?” If a jury finds reasonable doubt, it must acquit a defendant in a criminal case, he added.
“I think today, the accuracy of the polygraph test is probably well into the 90 percentile range,” said Atty. John J. Dixon of Youngstown, who devotes most of his practice to criminal defense.
Eyewitnesses, who some believe offer the best evidence in criminal cases, “might be right 65 to 70 percent of the time,” he said. “The unfortunate moniker of voodoo science with the polygraph test has hurt” the admissibility of the polygraph, he added.