Civil Trial Counsel of Wisconsin Polygraph Civil Trial Counsel of Wisconsin September 2004 Conference Wisconsin Dells

North East Wisconsin Polygraph Services Tony O'Neill N. E. W North East Wisconsin Polygraph Services Tony O'Neill N.E.W. Polygraph Services 346 S. Emery Ave Peshtigo, Wisconsin 54157 (715) 923-8381 Email: NEWPolygraph@new.rr.com http://home.new.rr.com/newpolygraph  Member: A.P.A. & W.P.A

Polygraph Testing

Common Statements About Polygraph Testing. Polygraph tests are inadmissible in court. Polygraph tests are no more accurate than flipping a coin. It takes great skill to administer a polygraph test. Polygraph tests are 99.9% accurate. It is easy to beat polygraph tests, almost anyone can do it. The majority of (informed) psychologist don’t think the polygraph is accurate. All of these statements are FALSE.

Current Applications of PDD Examinations Investigative Tool Forensic Psychological Test National Security Screening Employment Screening Treatment/Monitoring

PDD Techniques There are two primary techniques for PDD. Concealed Knowledge tests assess the individual's credibility by determining if that individual has knowledge that only a guilty suspect should recognize as being relevant to the investigation. Detection of Deception Tests assess the individual's credibility by asking direct accusatory questions. For example: "Did you set the fire at Diversified Products last November?"

PDD Techniques Concealed Knowledge tests are difficult to apply because the required information is not available in most cases. Detection of Deception Tests are by far the most common test in forensic application.

The Comparison Question Test Types of Questions: Neutral: Do people call you Joe? Relevant: Did you start the fire that destroyed the Diversified Products building? Comparison: Before 1990, did you ever do anything that was dishonest, illegal, or immoral? The rationale of this technique predicts differential responding to Relevant and Control questions by innocent and guilty suspects.

Parts of a Polygraph Examination Pre-Test Preparation Review Materials Formulate Questions Check Instrument Beginning the Exam Introduction/Rapport Informed Consent Bio/Health Info Free Narrative Psychological Prep of Subject Explanation of Examination Attachment of Sensors Acquaintance Test Review of Test questions Data Collection Questions Repeated at Least 3 Times Data Evaluation Numerical Evaluation Computerized/statistical analysis Additional Data Collection Discussion of the Result / Interrogation (optional)

Pyschophysiological Detection of Deception (PDD)

PDD Research Research on PDD has been conduced in both Laboratory and Field Settings. Laboratory Research is valuable because it allows for precise control of experimental variables. It is also possible to study some questions in the laboratory that may be difficult or impossible to study in the field. Field Research is important because it allows for research under real world conditions.

A Laboratory Study

Factors Identified by Kircher, Horowitz and Raskin (1988) as Increasing the Realism of Laboratory Studies of PDD Use of explicit incentives associated with the examination outcome. Use of representative subject populations (not just college students.) Use of representative testing techniques. Use of representative scoring techniques.

Outcomes for the Five Laboratory Studies Rated as Most Realistic Kircher, Horowitz, & Raskin (1988)

Criteria For a Useful Field Study of PDD Subjects should be sampled from the target population for generalization. Subjects should be selected by some random process. The physiological data should be evaluated independently by persons trained and experienced in the evaluation of PDD data. However, results of the original examiner may be of more use in assessing the validity of the technique for legal proceedings. The credibility of the suspect should be determined by information independent of the polygraph examination.

Outcomes for High Quality Field Studies Independent Evaluations

Decisions for Original Examiners in Field Cases

Polygraphs in the Courts Under some circumstances polygraph tests are admissible in the majority of the states. They have been generally admissible in the State of New Mexico since 1975. At present, it appears that U.S. Federal judges have the discretion to admit or not.

Federal Rule 702 If the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles or methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. The italicized text took effect on 1 December 2000.

Factors To Be Considered In Assessing the Admissibility of Scientific Evidence in Federal Courts According to the Daubert Decision Daubert v Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) Whether the Proposition is Testable Whether the Proposition Has Been Tested Whether the Technique Has A Known Error Rate Whether the Theory or Technique Has Been Subjected to Peer Review and Publication Whether the Theory is Generally Accepted

General Acceptance If the research is published in high quality peer-reviewed scientific journals, doesn’t that indicate acceptance of the methods? Many courts of law have demanded more. One approach has been to conduct surveys, but the surveys have produced conflicting results.

Response Alternatives Responses from members of the Society for Psychophysiological Research when they were asked to give their opinion of polygraph test interpretation by those who have received systematic training in the technique, when they are called upon to interpret whether a subject is or is not telling the truth. Response Alternatives A. It is a sufficiently reliable method to be used as the sole determinant. B. It is a useful diagnostic tool when considered with the other available evidence. C. It is of questionable usefulness, entitled to little weight against other information. D. It is of no usefulness.

The Iacono & Lykken Survey Set the context of the survey as determining admissibility. The central example was O.J. Simpson passes an polygraph test….. They claim a 91% return rate. To date, they have refused to allow anyone to see the data.

The BSU Survey In November and December of 2000 we surveyed a sample of the at large members of the American Psychology Law Society. They were contacted by telephone and were asked a number of questions about the polygraph.

APLS members reported the following: It is possible to conduct valid field studies (90.6%). Publication in a peer-reviewed journal represents generally accepted scientific methodology (95.7%). Laboratory studies of the polygraph should be given at least some weight by policy makers and the courts (88.7%). Almost half (49.1%) felt that laboratory studies should be given moderate to considerable weight. If polygraph tests results were admissible in courts of law, 72% said the accuracy of verdicts would either be unaffected or they would improve.

Expert opinions of parental fitness As compared to other forensic techniques frequently admitted as evidence, the APLS members rated polygraphs as useful as or more useful than: Expert opinions of parental fitness Psychological assessments of malingering Eyewitness recognition Psychological assessment of dangerousness Psychological assessments of temporary insanity. But less useful than: Fingerprints DNA

Pretest Review of Polygraph Questions Movie File Embedded

Meet The Parents (Movie)

Meet My Children

Meet My Polygraph

6 six

Using the Polygraph Evidence - low likelihood of success Bargaining positive impact of the hearing Bargaining Sentencing

Finding a Qualified Examiner Questions To Ask: Experience and Background Education and Scientific Knowledge Willing to tape record? Open to independent review?

Examiner ??? Questions continued: Validated CQT technique? Follow the ASTM/APA standards? Numerical Scoring? Computerized Instrument?

Characteristics of an Adequate Polygraph Examination Are tape recorded in their entirety. The questions are repeated at least three times. The data are numerically scored with one of the valid numerical scoring systems (Utah or Department of Defense Polygraph Institute). Independent evaluation of the original examiner’s scoring is obtained.

North East Wisconsin Polygraph Services Tony O'Neill N. E. W North East Wisconsin Polygraph Services Tony O'Neill N.E.W. Polygraph Services 346 S. Emery Ave Peshtigo, Wisconsin 54157 (715) 923-8381 Email: NEWPolygraph@new.rr.com http://home.new.rr.com/newpolygraph  Member: A.P.A. & W.P.A

Special Thank You To http://truth.boisestate.edu Charles R. Honts, Ph. D. Professor of Psychology Boise State University Boise, Idaho, USA http://truth.boisestate.edu