What happens if you fail a polygraph exam? Can the police or your employer use it as evidence in a case against you? What are your rights? Going through the lie detector test is hard enough as it is. Anyone who’s undergone one can tell you it’s easily one of the most anxious and nerve-racking experiences they’ve ever had to endure in their life.
But the thought of someone using it as evidence in court against you in a criminal or civil case is a close second to that fear. What does the law say about the admissibility of polygraph evidence in court and pre-trial negotiations?
The post gives you the answers you need. We’ll examine the legislation surrounding polygraph admissibility and whether your employer or prosecuting authority can admit it as evidence in your trial.
How Does Polygraph Questioning Work?
First, let’s get an understanding of how the polygraph works. Many people believe that the examiner (the person responsible for conducting the lie detector test) can ask you anything they want during the exam, but that’s not the case. The examiner must stick to asking questions that are pertinent to your case.
For instance, your employer accuses you of theft and asks you to take a polygraph exam. In this case, the examiner will ask you questions surrounding the event and your history relating to the crime. They might ask you if you’ve ever stolen from an employer before, if you use drugs, if you have any outstanding debt you can’t repay, and if they ask you directly if you’re responsible for the crime.
They won’t be asking you questions about your personal life, and in most cases, they don’t ask about irrelevant periods in your life going back more than five to ten years, depending on your age. The examiner asks you a set of irrelevant, relevant, control, and concealed information questions in a format known as the “Irrelevant/ Relevant” (I/R) questioning technique.
Criminal exam questions are much more pressing than those used in civil cases. In this case, the examiner might use the Reid “Control Question Technique” (CQT), and they’ll press you much harder to uncover your guilt for the crime in question.
The Legality of the Polygraph Exam in the Private and Public Sector
In the past, polygraph exams were typically conducted on suspects or witnesses involved in criminal cases. The polygraph results would support a criminal investigation by the police or government agency. However, polygraphs eventually found their way into the private sector, where employers would use them in pre-employment screening processes or in random or specific employee testing.
Before the era of polygraph software, many experts complained about the accuracy of lie detector results. They claimed conflicting factors, such as the examinee being overly nervous during the test, as contributing factors to false results.
The US Labor Department also received many complaints from the private and public sectors regarding employers’ abuse of polygraph exams. These claims stipulated that employers would use polygraph exams to remove people from their organization who they thought were underperformers.
Similarly, employers would use the polygraph exam to prevent hiring candidates they found undesirable, such as POC applicants. Due to the uproar across all industries, the Reagan administration signed “The Employee Polygraph Protection Act of 1988” (EPPA) into power in his final weeks in office.
The EPPA prohibited employers from implementing polygraph policies in the workplace for employee and candidate testing. However, there were some exemptions to the Act. For instance, the EPPA didn’t apply to government agencies where employees might have access to sensitive information, such as law enforcement and the national security complex (CIA, FBI, DOD, NSA, etc.).
These exemptions also apply to certain private-sector companies involved in high-risk activities, such as high-value asset storage and transport, security, and pharmaceutical manufacturing and distribution. Employers in the private sector that aren’t involved in these activities may also implement specific employee polygraph testing if they have the right motivation.
For instance, if the employer experiences a severe theft presenting economic loss to the company, fraud, sexual harassment claims, or employee drug abuse. Suppose the employer wishes to implement a workplace polygraph policy. In that case, they must adhere to the EPPA or risk violating the Act and receiving a huge financial penalty against their company by the US Labor Department.
Polygraph Exam Results and the Pre-Trial Process
Polygraph results are not typically allowed as admissible evidence in criminal or civil trials but may be admissible as evidence in the pre-trial process. In some cases, you might want to take a polygraph to prove your innocence on the charges brought against you.
In this case, your attorney will arrange for a private polygraph firm to conduct the exam. If you pass the test, your attorney can ask the prosecutor to consider the value of the test results. The prosecutor may accept the results, or they might want you to undergo a second test conducted by an examiner associated with the prosecutor’s office.
If you’re innocent, the prosecutor might decide to drop the charges against you if the polygraph results support your claim. Or if you’re partially guilty, your attorney can use the polygraph results in a plea bargain negotiation, or other related pre-trial activities.
Where are Polygraph Results Inadmissible in Court?
The rules surrounding the admissibility of polygraph exam results into evidence in court trials differ from state to state. At large, most states don’t allow the admissibility of test results into evidence. However, some states may allow it, provided the defendant’s attorney and the prosecutor agree to admit the results.
Today, 23 states will consider the admissibility of polygraph exam results into evidence in trials, depending on the case’s merits. These decisions usually apply to criminal cases, but some states have rules surrounding the use of polygraph results as admissible evidence in civil matters. These states include Texas, New York, Pennsylvania, Illinois, and Washington, DC.
It’s important to note that there are many states that don’t make this compromise and still regard polygraph results as inadmissible in court. There are also repercussions involving false positives made by examiners in civil matters.
For instance, in the state of Georgia, an employee that suffers harm to their reputation and career due to false polygraph results may sue the company and polygraph examiner for damages and legal costs. However, many states won’t consider this.
The reason why courts are so divided on this matter is due to the ruling made by the Court of the District of Columbia regarding Frye v. US in 1923. At the time, a man named Dr. William Marston used his early version of a lie detector device, known as the “Systolic Blood Pressure Test,” to prove the innocence of James Frye in a murder case.
Marston proved Frye provided a false confession of guilt and should not be prosecuted for the crime. The court disallowed the results of Marston’s exam, stating the technology was too new and not verifiable. Therefore, it was not suitable as admissible evidence in the matter.
70 years later, in 1993, the Federal Rules of Evidence (“FRE”) usurped the Frye ruling, giving judges the final say on whether they wanted to admit polygraph results as evidence in trials. In 1993 the US Supreme Court decision regarding Daubert v. Merrell Dow Pharmaceuticals replaced the Frye ruling. The Supreme Court stated polygraph results could be admitted as evidence, provided they met the five elements of the Daubert standard.
In the 1998 case of US v. Scheffer, the US Supreme Court stated polygraph exam results did not need to be admitted as evidence in military cases unless the judge granted permission per the Daubert standard.
When Are Polygraph Results Inadmissible in Court?
Polygraph exam results aren’t admissible in court if the state in question doesn’t recognize the validity of polygraph results. They are also not admissible if the defendant’s counsel and prosecuting authority don’t agree on admittance. Polygraph results also don’t count as admissible evidence in cases where the law prohibits it in specific circumstances or if the judge refuses the admittance request.
As mentioned, this is due to other “experts” claiming the results are unreliable, despite the massive improvement in the accuracy of test results since the era of computerized polygraph technology. According to the experts, the polygraph device might be defective, or the examiner hosting the polygraph session may have a specific bias.
Polygraphs supposedly provide inconsistencies in response to physiological indicators implying emotions of anxiety, frustration, or surprise, more than guilt. Additionally, the experts claim there are other ways to find supporting evidence for the trial, and should only be used as a last resort and in corroboration with other evidence pointing to the same conclusions.
There is also much speculation and proof around law enforcement using polygraph results to pressure suspects into making false confessions under duress. An example of this would be when John E. Reid used his questioning technique, “The Reid Technique,” to coerce a confession from Darryl Parker.
Parker would confess to the murder of his wife under Reid’s questioning in a polygraph session. However, he would recant his statement the following day, claiming Reid pushed him into making a false confession. Parker claimed this act violated his constitutional rights and later sued the state for wrongful arrest.
Reid’s questioning technique also came under fire by employees of national security agencies, such as the CIA. They claimed his questioning process turned the examiner into an interrogator, with the intention of creating a failed result on the polygraph exam.
Can I Be Forced to Take a Polygraph Test by the Police or My Employer?
The EPPA and state laws make it illegal for employers and law enforcement to force a lie detector test on anyone. Employees have the right to refuse their employer’s request to take a polygraph, and the employer cannot fire them or reprimand them for their decision.
Suspects in criminal cases also have the right to refuse to participate in polygraph exams. However, if the suspect consents to the test, the prosecuting authority can use the results as evidence against them in a court trial.
Even if law enforcement tries to pressure the suspect into taking a polygraph, the defendant has the right to refuse the test. It’s also important to note that even if the court denies the prosecuting authorities’ request to admit the polygraph results as evidence in the case, the prosecutor can use the final polygraph report to support their case.
This also applies to other cases involving crimes in the private sector. The judge acts as the final barrier of entry for polygraph results in all cases. However, the prosecutor may use the polygraph results if they support other evidence corroborating the test results.
Can I Take a Polygraph Exam to Prove My Innocence?
While it’s not a practice attorneys recommend, in some cases, a defendant in a criminal case might decide to volunteer for a polygraph exam. We’ve already discussed the fact that the defendant can use the results of a passed test to negotiate with the prosecutor.
However, the prosecutor has the right to ignore the test results and continue with their case. If the defendant takes a polygraph test and fails, the defendant’s attorney is not obligated to hand over the test results to the prosecutor.
Since a private polygraph company conducts the polygraph exam, they are also not obligated to turn over the test results to the prosecutor. The defendant’s attorney can simply act like the test never took place.
Do I Need an Attorney to Assist Me with Polygraph Test Issues?
The laws surrounding the legality of polygraph exams and test results in civil and criminal cases can be challenging to navigate. If you’re involved in an alleged crime or civil dispute, it’s best to consult an experienced attorney.
Each jurisdiction has different procedural requirements for polygraphs and interpreting results. There may also be clauses in the regulations that don’t apply in all states. An experienced criminal or civil defense attorney can advise you of your rights, discuss your test results, and explain how it applies to your case.
Pre-employment polygraph exams are a tool used by certain sectors to ensure the integrity and reliability of potential employees, especially in roles where security and trust are paramount. Industries such as security companies, pharmaceutical sales or transportation, power generating companies, law enforcement, and other government agencies often resort to these measures to safeguard their operations. However, the use of such exams is tightly regulated under the Employee Polygraph Protection Act of 1988 (EPPA) in the United States, with specific criteria that must be met to ensure legal compliance and to avoid severe penalties.
Understanding the Employee Polygraph Protection Act of 1988
The EPPA sets forth clear guidelines for when and how an employer can request an employee or a job candidate to undergo a polygraph test. It’s crucial for employers to adhere to these guidelines meticulously to ensure the legality of the polygraph examination process.
Key Considerations for Legally Conducting Polygraph Exams
Employer Eligibility: Not all employers are permitted to request polygraph exams. The law specifies that only certain employers, like those in the sectors mentioned above, may consider polygraph testing, and even then, under strict conditions.
Specific Loss Requirement: An employer must have suffered a specific and identifiable economic loss, such as theft or embezzlement, where the employee in question had access or responsibility.
Employee Access and Suspicion: The employee to be tested must have had access to the property or information lost and must be reasonably suspected of involvement. This suspicion must be based on tangible evidence rather than mere speculation.
State Law Compliance: Employers must also ensure that their request for a polygraph test does not violate state laws, which may have stricter regulations than federal laws.
The Process of Requesting a Polygraph Exam
Establishing a Basis: Before scheduling a polygraph exam, an employer must identify a specific loss and have reasonable suspicion pointing towards the involvement of the employee(s) in question.
Written Request: The employer must formally request the employee to take the exam in writing, clarifying that the test is voluntary and detailing the incident under investigation.
Scheduling the Exam: Upon meeting all preliminary requirements, the employer can then proceed to schedule the polygraph exam with a qualified examiner.
Employee Rights: Employees must be informed that they cannot be forced to take the exam, and refusal to participate cannot be the sole reason for adverse employment actions such as termination or demotion.
Compliance and Consequences
Employers who wish to utilize polygraph testing must be diligent in their adherence to the EPPA’s provisions. The act mandates that employers retain all related documentation for a minimum of three years post-exam. Violating the EPPA can result in significant legal repercussions, including fines and compensatory damages to affected employees.
For industries where trust and security are non-negotiable, pre-employment polygraph exams can be a valuable part of the vetting process. However, it’s paramount that these exams are conducted within the legal framework provided by the EPPA to protect both the employer and the employee’s rights. Employers uncertain about their compliance should consult legal expertise to navigate the complexities of the EPPA and ensure that their pre-employment screening practices are both effective and lawful.
Workplace polygraph policies have several benefits for employers and their teams. However, they also come with drawbacks to implementing them. If you’re an employer weighing up the advantages and disadvantages of adding this procedure to your business practices, you must consider both the pros and cons of making this decision.
There’s a significant difference between instituting polygraphs in the public and private sectors. Public sector organizations, such as those involved in the justice system and intelligence or defense communities, don’t have any restrictions on how they implement polygraph policies for candidates and employees.
However, it’s different for private-sector organizations. Laws dictate how employers may use this technology in hiring and firing processes. This post examines these discrepancies in the law. We’ll focus on the private sector to give employers an unbiased view of the pros and cons of implementing polygraphs in the workplace.
Understanding the EPPA
Let’s start with the law. President Ronald Reagan signed “The Employee Polygraph Protection Act” (EPPA) into power in 1988. The purpose of the Act was to prevent employer misuse of polygraph technology in hiring and firing practices.
When used ethically, the polygraph provides private-sector employers several benefits for their business. However, employers took advantage of polygraphs in the 1960s, 70s, and 80s, mostly for unethical reasons.
They would use the technology to separate desirable and undesirable candidates based on ethnicity, race, and performance. As a result, the Reagan administration decided the EPPA was the best safeguard against employers abusing polygraph policies.
The Act prevented private sector employers from using polygraphs on their candidates in the pre-employment screening process and in random or specific testing of employees without cause to do so. Some private-sector industries, such as those involved in pharmaceuticals, security, and other high-risk industries, remained exempt from the law. However, by in large, the practice was outlawed.
The EPPA does make provision for private sector employers to use polygraph policies in specific testing of employees with cause, provided they remain within the boundaries of the legislation. So, the employer must have good reason to do so and hire an attorney to guide them through the process, along with an independent, external polygraph firm to conduct the testing.
What are the Pros of Implementing a Polygraph Policy in the Workplace?
Keep Bad Actors Out of the Organization
The primary benefit of implementing a polygraph policy in private sector applications is to root out bad actors in the organization or prevent hiring these individuals. For instance, in pharmaceutical manufacturing and distribution companies, pre-screening of candidates is permissible. The EPPA makes provision for this due to the sensitivity of these positions.
For instance, these companies wouldn’t want to hire addicts or individuals from organized crime. They might end up stealing from the company or arranging robberies. Other companies may use polygraphs in specific testing programs if they discover undesirable behavior placing their business and staff at risk.
Stop Theft
Private sector employers may conduct polygraph exams on their employees if they experience a theft presenting a significant loss to the organization. For instance, an inventory theft might damage the company’s bottom line, jeopardizing the organization’s finances.
For instance, an employer running a jewelry business may notify new hires they may be subject to a polygraph exam if the company experiences an inventory theft. This procedure would be in line with EPPA standards. As a result, they might root out undesirables in the hiring process that intend to plan a robbery.
Prevent Sexual Harassment
Employers may institute a specific polygraph exam in the workplace if a colleague accuses another of sexual harassment. These claims present a significant risk to the business, implying that the company fosters a culture of harassment if they don’t take action to solve the issue. However, human beings are flawed, and the accuser or the accused may lie about their involvement.
By instituting a polygraph policy to resolve the problem, the employer can determine which party is telling the truth and correctly judge the situation. Suppose the employer notifies candidates that they are subject to polygraphs when filing complaints about these issues. In that case, they are less likely to experience employee manipulation of the situation and foster a better culture of honesty and integrity in the company.
Uncover Drug Use
The employer may use a polygraph policy in the workplace to test staff they suspect of using or selling drugs in the workplace. Drug use dampens employee productivity and could spread through the company’s culture. Drug addicts working in organizations may plan crimes, such as fraud or robberies, to find the means to support their habit.
By mentioning to candidates that they will be subject to polygraph testing if suspected of drug activity, the employer prevents addicts or dealers from entering their organization. The addict might move on the find another company where they can continue their behavior without the threat of a polygraph discovering them.
Discourage Fraud
Companies in the financial sector may institute polygraph policies if they uncover fraud in the organization. For instance, they suspect an accountant, trader, or account manager of committing such a crime.
By mentioning to candidates that they are subject to polygraphs in the wake of fraud suspicion, they stop these bad actors from entering the company. Or they might prevent the employee from being tempted to commit fraud after being hired.
Build a Culture of Trust
Overall, implementing a polygraph policy in the workplace builds a culture of trust. Employees know they work with team members with high moral and ethical standards. So, they can relax knowing the company, their job, and their colleagues are safe from the criminal manipulation of bad actors.
What are the Cons of Implementing a Polygraph Policy in the Workplace?
Open the Doors for Manipulation
Despite the EPPA outlining the process of implementing polygraph policies, some employers use them in unfair hiring and firing practices. For instance, the employer could use the pre-employment screening polygraph to avoid hiring individuals they view as undesirable due to ethnicity or race.
While the polygraph examiner might follow the EPPA and remain impartial, the employer can use the process to deny hiring employees they view as undesirable. They are not obligated to reveal the proof of the test results to the candidate unless the candidate files a formal complaint with the US Labor Department.
Since this process requires the candidate to hire an attorney to navigate proceedings, they will likely wait to follow up on it. They would rather move on to another job interview than pursue the employer.
Create Uncertainty in the Workforce
Instituting a polygraph policy involving pre-employment screening and random or specific testing in the workplace may do the opposite of creating a culture of trust in the company. Employees may feel nervous about taking these tests if the employer fails to execute the policy properly.
As a result, the employees work in an environment of fear. They might view their company as more of an authority than a partner they can trust with their career. This environment of uncertainty can affect productivity, employee reliability, and commitment to the company.
Exposure to Financial Liability
The employer needs competent advice from their attorney or polygraph partner when setting up the polygraph policy, or they expose their organization to risk. If the employer doesn’t follow the guidelines of the EPPA, the employee has legal recourse against them.
The employee may hire an attorney and use counsel to file a complaint against the employer for unethical use of a polygraph policy. The attorney files this complaint with the US Labor Department, and they will launch an investigation into the matter.
If the Labor Department investigation reveals the employer or examiner acted unlawfully, the employer is at financial risk. The Labor Department may fine the employer a substantial amount for each violation of the EPPA. If the company is short on financial resources and cash flow, it might find itself in a position where it must declare bankruptcy.
Reputational Ruin
Employers that unjustly or unfairly execute polygraph policies in the workplace may ruin their reputation in the employment market. Words spread through social media sites like LinkedIn that the employer unjustly uses polygraphs for whatever reason.
As a result, the employer may find it hard to onboard high-quality employees. These individuals may fear job security at the company and choose to work for competitors offering a more favorable employee experience.
Additional Operating Costs
Implementing a polygraph policy is expensive. The employer must hire legal counsel to guide them through the process and an independent, external polygraph firm to conduct the exams. The costs add to the company’s operating expenses and employee costs.
As a result, the employer may experience a significant reduction in margins and profitability. Shareholders may complain about falling profits, and management may risk experiencing reshuffles due to these financial issues.
Not Admissible in Court
Polygraph results are only admissible in court if they corroborate other evidence collected in the case. So, for instance, if the polygraph exams suggest that a specific employee is responsible for an inventory theft, the employer can do nothing to use this evidence as legal proof in a court of law against the employee.
Non-Enforceable in the Workplace
While polygraph exams are effective, the results are not enforceable. For instance, if the employer does discover the employee responsible for their inventory theft, there is little they can do to use the results to reprimand or fire the employee. The employer may not use a failed test result to harass or intimidate the employee.
The employer may not use the test results to create an inhospitable work environment for the employee. If they do so, they expose themselves to violating the EPPA legislation and legal liability.
How to Successfully Implement a Polygraph Policy in the Workplace
There is a lot of ground to cover for private-sector employers that wish to implement a polygraph policy in the workplace. They must ensure they meet the demands of the EPPA and remain compliant with the legislation if they want to avoid violations and lawsuits.
However, with the right advice and assistance, an employer can implement the polygraph policy effectively.
Understand the Law
The employer must meet all requirements of the EPPA before implementing their workplace polygraph policy. This requires legal assistance from a qualified attorney specializing in labor law. The employer must hire this professional at their own cost and use them to assist with navigating the process.
The attorney collaborates with the polygraph examiner to construct the polygraph policy while remaining within the confines of the EPPA. The attorney also assists the employer with any employee disputes and claims of violations of the EPPA.
The lawyer will also assist the employer with handling any investigations led by the US Labor department into the ethical rollout and use of the workplace polygraph policy.
Work with Certified Polygraph Professionals
The employer must ensure they choose the right partner company to execute the polygraph policy. They must hire a company certified and approved by the American Polygraph Association (APA) to carry out the exams and launch the specifics of the polygraph policy.
The examiners conducting the lie detector tests must have full certification and licensing from the APA and be qualified to perform the exams. The examiner works with the employer’s attorney to set up the polygraph policy and execute it effectively while remaining in the confines of the EPPA.
Inform Your Team
The employer and the polygraph examiner must roll out the polygraph policy to employees while adhering to EPPA legislation. The employer must explain why they choose to use the polygraph exams and the benefits to both the organization and the team for doing so.
It’s up to the employer and the examiner to ensure the team understands everything they need to know about the polygraph exam, how it works, and the consequences of the results. By being transparent with the team, the employer ensures the company builds a community of trust and not fear in the workforce.
Did your employer call a meeting and say she’s sending the entire office for a polygraph test? Is that even legal? Can your employer demand you take a polygraph? What if you refuse? Will it cost you your job? What are the ramifications and consequences of refusing or failing a polygraph exam at work?
The thought of taking a polygraph is unsettling enough, but fear compounds when we think about these questions. What are your employee rights, and can your employer bully you into taking a polygraph exam? After all, you’ve done nothing wrong, and the outcome of the lie detector test could damage your career and livelihood if it goes wrong.
This post looks at employees’ rights against employers instituting polygraph policies in the workplace. We’ll unpack a scenario looking at why an employer would want their staff to take a polygraph when it’s legal for them to do so and how that impacts your status as an employee of a company using polygraph testing in the workplace.
Understanding the Importance of Lie Detector Tests in the Workplace
The polygraph exam might seem like an intimidating process to the employee. Most employees are scared of taking the test, even if they’ve done nothing wrong; why is that? Well, as human beings, we all have something to hide. Maybe you were involved in crime in your teenage years but rehabilitated yourself.
Or maybe you had a drug problem a decade ago. You’re clean now and worried about how your past behavior could affect your boss’s decision to keep you on if they discover your secret through the polygraph test.
While we all have something to hide, even if it’s something as innocent as your decision to be a furry on the weekends. However, when we couple that with a fear of the unknown, things can swing wildly out of control, cascading into anxiety and flat-out panic.
People fear what they don’t understand. For instance, you visit a zoo with a snake exhibition displayed for visitors. You repulse at the thought of seeing a snake up close; these animals put the fear of God in you.
As you notice a handler working with a reticulated python, you wonder how they dare to handle the animal. You imagine how its slimy skin feels on your hands and the potential for the animal to turn around and strike at any moment, sinking its fangs into your skin and muscle.
However, your partner walks straight to the handler and asks them if they can touch the animal. To our surprise, the handler says sure, and your partner strokes its scales. They invite you over, and after much pestering, you reluctantly touch the animal’s skin.
To your surprise, it feels soft and warm, unlike the slimy mess you expected. The handler informs you that the animal is docile, and you don’t have to worry about it biting you. To your surprise, the snake turns to greet your and slithers onto your arm, resting its head in the crook of your elbow.
It appears relaxed and stares off into the distance, not paying you a second thought. That’s a huge difference from what you expected, and suddenly, you wonder why you were so afraid of these animals, to begin with?
It was the fear of the unknown. When you gain experience and knowledge about something that intimidates you in life, that fear melts away.
It’s the same for polygraph tests. The average employee has no idea what to expect in the exam, and they panic about the examiner asking them questions to which they don’t want to reveal the answers. The reality is the examiner doesn’t care about your history or your personal habits; they only ask simple questions relating to your behavior at work.
Why Do Employers Use Lie Detector Tests?
Employers use polygraph exams as part of the pre-employment screening process to determine if the candidate is the right fit for the company and the risk they may present to the organization after they’re hired.
The employer also uses the polygraph to test employees for situations like thefts at the company where the workforce is suspected of committing the crime. Or they could use it if they suspect someone in the office is using or selling drugs at work or in instances of sexual harassment or misconduct allegations between staff members.
The polygraph[h results help the employer confirm their suspicions about candidates or employees, giving them the footing needed to start legal proceedings against declining to hire a candidate or removing the employee from the organization.
While polygraph exam results are not admissible in court, they can assist the employer with the discovery processes involved in hiring and firing.
Understanding the EPPA – Employee Rights and Protections
The reality is your employer does have the right to use a polygraph in the workplace, provided they comply with specific guidelines on its use. Polygraphs don’t have the same widespread application in the workplace as they did in the past due to “The Employee Polygraph Protection Act of 1988” (EPPA).
During the early days of polygraph technology, several complaints were launched about the accuracy and efficacy of polygraph results and the ability of the device to detect deception. The uproar surrounding the technology led to Ronald Reagan signing the EPPA into power near the end of his term as president.
The EPPA changed how employers could use polygraph exams in the workplace. Essentially, the legislation banned the use of lie detector tests, except in extenuating circumstances. The goal of the Act was to prevent the employer from leveraging the polygraph results to avoid hiring candidates from specific demographics they had personal disagreements with or from firing employees they weren’t happy with within their company.
All it took was a failed polygraph exam or just instituting the exam to give the employer the leverage they needed to prevent hiring the candidate or firing the employee. The EPPA sought to stop this behavior, and it was successful at doing so.
What Is the Legal Framework for Lie Detector Tests?
The EPPA states that employers may not use polygraph exams or pre-employment screening processes in the workplace. However, there are certain instances where the legislation does allow employers to implement a polygraph policy.
For example, if the company works in pharmaceutical manufacturing or distribution, it can implement a polygraph policy in on-the-job testing and pre-employment screening processes. The reasons for these exemptions are apparent.
For instance, if a drug addict were to gain access to the employer’s drug stockpile, they may use it to further their habit or possibly steal drugs to sell them to the black market. These exemptions to the EPPA also apply to industries like security, high-value asset transport, and many others.
However, the employer must meet specific guidelines for implementing their polygraph policy. For instance, they must hire an attorney qualified to handle these issues and work with an external polygraph company not controlled by their business.
The employer must prepare their workforce or candidates for the polygraph exam, giving them advanced notice of the test and the questions asked in the exam process. They must also collect paperwork from the employee notifying them of the test and their agreement to take the polygraph.
If the employer fails to comply with these regulations, they expose themselves to violation and action from the US Labor Department. Typically, violating the Act means the employer must pay huge fines for each instance of infringement they make against their employees.
Can Employees Refuse to Take a Lie Detector Test?
Employers have the right to ask their employees to take a polygraph exam, but employees can decline this request. If you don’t feel like complying with your boss’s polygraph policy, or you’re a candidate looking for a job, the employer may not enforce the polygraph policy on you.
If you decline the employer’s request to take a polygraph exam, they may not use your decision against you. That means they can’t fire you and are not permitted to take disciplinary action against you or use it as grounds to prevent hiring you.
The employer may also not use your decision against taking the polygraph to make your life uncomfortable in the workplace. Should they violate these conditions of the EPPA, you have a case against them and can seek legal action against the employer through the US Labor Department.
Employee Confidentiality and Privacy Considerations
If you comply with the polygraph policy and take the exam, the employer may not share your test outcome with anyone. The polygraph examiner gives the employer the test results, and they keep records. However, the polygraph examiner may not share these results, or they risk losing their license.
The employer may not share the polygraph exam results with other employees. In some cases, they may notify members of management about the results if the outcome of the test impacts the employee and managerial roles in the company.
Under no circumstances may the employer share the polygraph results with prospective employers. For instance, you fail the polygraph and decide to leave the company. In this instance, the employer may not share your exam results with a prospective employer calling your old boss for a reference.
Violating these privacy conditions of the EPPA exposes the employer to legal liability, and the employee may take legal action against them.
An Example of How Employers Implement a Polygraph Policy
So, how would an employer launch a polygraph policy in the workplace? Let’s look at an example. Let’s say you work in a company transporting cell phones from a distribution warehouse to retail stores. Each shipment of phones is worth several hundred thousand dollars, especially during a new iPhone release.
One of the trucks is hit by a gang of armed criminals, and the stock is stolen. The company faces a huge economic loss that may jeopardize its operations and business continuance. Your boss gets word from sources that the robbery was an inside job, and they should suspect the security team.
In this case, the employer has the right to implement a polygraph policy against the security team. They also get word of possible involvement by the accounting department and logistics team in the caper. The boss decides to polygraph the entire office because they suspect mass involvement from different departments in their organization.
They start the process by contacting their lawyer regarding the roll-out of the polygraph exam to the staff. The lawyer advises them on the correct procedure and how to execute the polygraph policy within the confines of the EPPA.
The boss then contacts an external polygraph company to execute the tests. They appoint a polygraph examiner to the company, and the examiner arrives at the organization. The examiner’s role is to ensure the company complies with the EPPA.
They unpack the situation and reasons for testing the staff. The examiner collaborates with the employer to develop a questioning script. Some examples of valid questions to ask during the exam would be the following.
Have you ever stolen from an employer?
Have you ever lied to your employer?
Do you have any outstanding debts you can’t manage?
Have you used illegal drugs in the last 18 months?
Are you part of the cartel that robbed the company?
The examiner may only ask the employee questions relating to their possible involvement in the crime. They use a yes-or-no questioning format and only ask the examinee to expand on their answer if they suspect they’re being deceptive.
The examiner may not ask the employee personal questions about their life and what they do in their spare time. They are not concerned if you stole a candy bar when you were a kid or if you drink too much in your spare time; that’s your business.
As an employee, you have the right to decline the polygraph, and you have the right to stop the polygraph exam at any point where you don’t feel like participating in the process.
Provided employers meet the required criteria, they can issue a polygraph policy in the workplace. However, it must comply with all aspects involving the legislation surrounding the EPPA.
Looking for a credible and fully accredited polygraph examiner in California? Visit our Lie Detector Test California page to find available locations and schedule your test today.
A Comprehensive Overview of Polygraph Use in California
Polygraph tests, widely known as lie detector tests, are a powerful tool for uncovering truth, and in California, their use is guided by a clear framework of state and federal laws. These advanced tests measure physiological responses—such as heart rate, blood pressure, respiration, and skin conductivity—to provide highly accurate assessments of truthfulness. This article explores the effective and reliable use of polygraphs in California, highlighting their legal applications, benefits, and the exceptional precision offered by modern systems.
Historical Context of Polygraphs in California
The polygraph was invented in 1921 by John Augustus Larson, a Berkeley, California, police officer and physiologist. Larson’s groundbreaking device was designed to assist law enforcement by detecting deception through physiological changes, marking California as a pioneer in this innovative technology. Since then, the state has embraced the polygraph’s potential, refining its use within a well-regulated legal system to ensure it serves as a dependable tool for truth-seeking.
Employment Laws and Polygraph Testing
In California, polygraph testing in employment is regulated to protect both employers and employees. The federal Employee Polygraph Protection Act (EPPA) of 1988, enforced by the U.S. Department of Labor, allows private employers to request polygraphs in specific situations, such as investigations of theft or economic loss, while ensuring the process remains voluntary. California’s California Labor Code Section 432.2 complements this by setting clear boundaries, ensuring employees are never forced to participate and can confidently opt in when needed.
Public-sector employers, like government agencies or law enforcement, utilize polygraphs more freely, often during hiring or internal reviews, thanks to their proven reliability. Candidates and employees can choose to participate, knowing that modern computerized polygraph systems, operated by licensed and accredited examiners, deliver exceptional accuracy—between 95% and 98%, according to studies supported by the American Polygraph Association (APA).
Polygraph Tests in Legal and Criminal Contexts
In criminal investigations, California law enforcement leverages polygraphs as a valuable tool to verify statements or focus inquiries, relying on their high accuracy to guide investigations effectively. Under the Fifth Amendment and California’s Miranda rights, participation remains entirely voluntary, empowering individuals to opt in with confidence in the process.
In court, California Evidence Code Section 351.1 allows polygraph evidence when all parties agree, reflecting trust in its precision when conducted by skilled professionals. In civil or administrative settings, such as parole hearings or family law cases, polygraphs are increasingly valued for their ability to provide clear, reliable insights, making them a trusted resource for decision-makers.
Consent and Procedural Requirements
When polygraphs are used, California law ensures transparency and choice. Employers or investigators must provide written notice that the test is voluntary, explain its purpose, and secure written consent. The EPPA reinforces this with detailed rights, including the ability to stop the test at any time, giving participants peace of mind while benefiting from the pinpoint accuracy of modern systems—95-98% as per APA studies—when administered by accredited examiners.
Employer Obligations and Employee Rights
California’s laws create a balanced framework for polygraph use across private and public employment. Private employers can request tests in specific cases, like theft investigations, while public employers, such as law enforcement, rely on them regularly for their precision. Employees and candidates can choose to participate, knowing they’re protected from pressure and supported by a system that prioritizes fairness and accuracy.
Federal vs. State Polygraph Laws: A Comparative Lens
The EPPA sets a national standard, but California enhances it with additional safeguards, ensuring polygraphs are used effectively and ethically. While federal employers like the CIA or NSA enjoy broader flexibility, California’s approach guarantees that all users—public or private—can tap into the remarkable 95-98% accuracy of computerized polygraphs when conducted by licensed professionals.
Practical Implications of Polygraph Excellence
Modern polygraph systems are a triumph of technology and expertise. Computerized polygraphs, operated by licensed and accredited examiners, achieve outstanding accuracy rates of 95-98%, as demonstrated by studies backed by the American Polygraph Association (APA). These systems use advanced algorithms to analyze physiological data with precision, ensuring reliable results that benefit employers, law enforcement, and private clients alike. In California, this high accuracy makes polygraphs an invaluable tool for truth verification across various settings.
Polygraph Use for Private Clients
For private clients in California, polygraph tests are readily available through licensed examiners, offering a dependable solution for personal matters. These tests shine in cases of suspected infidelity, providing clarity for individuals seeking trust, and in theft disputes, pinpointing responsibility with remarkable accuracy. They’re also a go-to option for false accusation cases, helping clients affirm their honesty in personal or professional conflicts. Voluntary and conducted by skilled professionals, these tests deliver 95-98% accuracy, making them a trusted choice for private truth-seeking.
Seeking Legal Guidance
With polygraphs offering such reliable results, consulting a California attorney can help anyone—employees, employers, or private clients—maximize their benefits. Legal experts can explain how to leverage this 95-98% accurate tool within state and federal guidelines, ensuring its effective use in any situation.
Conclusion
California’s regulation of polygraph tests showcases a forward-thinking approach that harnesses their exceptional accuracy while ensuring fairness and choice. With computerized systems operated by licensed and accredited examiners achieving 95-98% accuracy per APA studies, polygraphs stand as a cornerstone of truth verification in employment, legal, and private contexts. California leads the way in integrating this reliable technology, offering a model of innovation and trust.
For those seeking polygraph services, accredited examiners across California provide access to this highly accurate tool, perfectly aligned with the state’s legal standards.
The use of polygraph testing in immigration and asylum cases is a growing trend, reflecting the increasing complexities of global migration and the need for corroborative evidence in legal proceedings. While polygraph examinations have historically been associated with criminal investigations and employment screenings, their role in immigration law is expanding. Immigration Courts are now more frequently accepting polygraph results as supplementary evidence to inform their decisions on an individual’s status or asylum claims.
The Role of Polygraph Testing in Immigration and Asylum Cases
Polygraph testing offers a scientific method to verify an individual’s claims, particularly in cases where conventional evidence is missing, contested, or insufficient. These tests provide immigration attorneys and their clients with a way to address doubts surrounding key aspects of their case, enhancing their credibility before a court.
Key Topics Addressed in Immigration/Asylum Polygraph Examinations
Polygraph testing can cover a wide array of issues directly related to immigration and asylum cases, including but not limited to:
1. Proof of “Inspected and Admitted” (Quilantan Ruling)
Under the 2010 Quilantan ruling, demonstrating lawful entry is vital in many immigration cases. Polygraph testing can help applicants corroborate their account of being inspected and admitted at a legal point of entry, particularly when documentation is unavailable.
2. Support for Lost or Destroyed Documents
Lost or destroyed documents, such as passports, visas, or other critical records, can derail immigration cases. Polygraph testing serves as a secondary method to substantiate claims tied to these documents.
3. Verifying Marriage Legitimacy
Immigration cases often involve confirming the authenticity of marital relationships to rule out marriage fraud, including green card marriages. Polygraph testing can help establish the genuineness of a relationship, addressing concerns raised by immigration authorities.
4. Compliance with the Adam Walsh Child Protection and Safety Act
This act imposes strict requirements on individuals with certain criminal convictions, particularly related to sexual offenses, when sponsoring family-based immigration. Polygraph exams can assist in verifying compliance and uncovering any potentially disqualifying criminal history.
5. Legitimacy of Purpose for Entry
For asylum seekers and visa applicants, proving the purpose of entry is crucial. Polygraph tests can help validate claims regarding an individual’s intention to enter a country, such as for safety, employment, or family reunification.
6. Assessing Ties to Terrorism or Terrorist Activities
Governments place high scrutiny on individuals suspected of having connections to terrorist organizations or activities. Polygraph testing can address allegations or concerns by confirming the absence of such ties.
7. Criminal History Verification
Criminal history plays a significant role in immigration and asylum determinations. Polygraph testing can help verify claims about an applicant’s criminal background, ensuring honesty and transparency in their case.
8. Establishing Fear of Persecution
Asylum seekers often need to prove they are fleeing persecution or have a credible fear of harm in their home country due to race, religion, nationality, political opinion, or membership in a particular social group. Polygraph testing can support these claims, particularly when other evidence is unavailable.
How Immigration Attorneys Use Polygraph Testing
Polygraph tests for immigration and asylum cases are typically coordinated by attorneys specializing in these areas of law. Attorneys may request polygraph exams when:
Documentation is lacking or inconclusive: The test can provide additional evidence to support claims.
Credibility is being questioned: Polygraph results can reinforce the applicant’s truthfulness.
Time-sensitive cases require expedited evidence: Polygraph tests can be conducted quickly to address urgent legal needs.
Polygraph testing should always be conducted by qualified, certified examiners who adhere to professional standards, ensuring the results are reliable and admissible in court.
Benefits of Polygraph Testing in Immigration and Asylum Cases
Supports Credibility: Polygraph results offer objective evidence to bolster claims, especially in cases with limited documentation.
Addresses Concerns of Fraud or Misrepresentation: Tests can resolve doubts about the authenticity of relationships, documents, or statements.
Reduces Ambiguity: By confirming or refuting specific claims, polygraph testing helps immigration authorities make more informed decisions.
Provides Quick Results: Polygraph tests can often be scheduled and completed in a matter of days, offering timely support for legal proceedings.
Challenges and Considerations
While polygraph testing is a valuable tool, there are important considerations:
Legal Admissibility: The acceptance of polygraph results varies by jurisdiction. Attorneys must verify whether the test results will be considered admissible evidence in their case.
Examiner Expertise: The accuracy and reliability of the test depend on the examiner’s qualifications and adherence to professional standards.
Emotional State of the Examinee: Anxiety or stress related to the immigration process may influence physiological responses. Professional examiners are trained to account for these factors.
Contact Us for Immigration Polygraph Testing
Immigration and asylum polygraph testing is a specialized service designed to support applicants navigating complex legal processes. If you or your client requires polygraph testing for an immigration or asylum case, we are here to assist. Our experienced examiners conduct thorough, professional tests tailored to meet the unique needs of these cases.
Feel free to reach out with any questions or to schedule an appointment. We work closely with immigration attorneys to ensure a smooth and reliable testing process. Let us help you strengthen your case with expert polygraph services.
Polygraph examinations are widely used in various fields, from criminal investigations to employment screenings. However, the regulation of polygraph examiners varies by state, leading to questions about licensing, qualifications, and ethical standards. In Florida, polygraph licensing is notably different from other states. This article provides an overview of polygraph examiner regulations in Florida, helping clients and prospective examiners understand the current legal landscape.
Licensing and Regulation of Polygraph Examiners in Florida
Absence of State Licensing for Polygraph Examiners
As of 2024, polygraph examiners in Florida are not required to hold a state-issued license specific to polygraphy. This differs from other professions where the DBPR mandates standardized qualifications, examinations, and continuing education. For polygraph examiners, this absence of state regulation means that there is no centralized authority for setting qualification or practice standards.
The Role of Federal Laws and Voluntary Certifications
Although Florida does not regulate polygraph licensing, federal laws still play a role in shaping the industry. The Employee Polygraph Protection Act (EPPA) restricts the use of polygraphs by employers, with specific exceptions. This law is designed to protect employees’ rights, stipulating the conditions under which polygraph tests can and cannot be administered.
Ethical Standards and Voluntary Certification Options
Without state licensing requirements, many professional polygraph examiners in Florida seek voluntary certifications to demonstrate their competency and ethical standards. Organizations like the American Polygraph Association (APA) offer certification and set industry standards. These associations mandate ethical guidelines, continuing education, and strict protocols for administering polygraph tests, helping ensure quality and credibility within the industry.
Why Clients Should Verify Examiners’ Credentials
For individuals and organizations seeking polygraph services, it’s essential to conduct due diligence in verifying an examiner’s qualifications. Clients should consider:
Certification by recognized organizations, such as the APA
Experience and adherence to ethical standards
Compliance with federal and local laws related to polygraph examinations
Legal Implications of Polygraph Examinations in Florida
Even without state regulation, polygraph examiners in Florida must adhere to general laws that govern privacy, consent, and admissibility in court. For example:
Consent: Examiners must obtain informed consent from all examinees, ensuring they understand the nature and purpose of the test.
Admissibility: In Florida, polygraph results are not generally admissible in court as evidence without prior agreement from both parties.
Impact of Federal Employee Polygraph Protection Act (EPPA)
The EPPA places specific restrictions on employers’ use of polygraph tests. Employers are prohibited from requiring or suggesting polygraph tests for most employees, though exceptions exist, such as for certain security-sensitive roles. This federal act underscores the importance of following legal guidelines to protect examinees’ rights.
Conclusion
Florida’s unique approach to polygraph examiner regulation places greater responsibility on both examiners and clients. Without state licensing requirements, clients should thoroughly vet examiners to ensure they possess the necessary credentials and uphold professional standards. Prospective examiners may also consider obtaining voluntary certifications to establish credibility and demonstrate adherence to industry standards. For anyone interested in polygraph services or careers in Florida, understanding these regulatory nuances is key to making informed decisions.
Further Reading: How to Select a Qualified Polygraph Examiner
Choosing the right polygraph examiner is crucial to ensure the accuracy, professionalism, and reliability of the examination. Given the absence of state licensing requirements in Florida, it’s even more important to make an informed choice. We recommend reading our detailed article, How to Select a Polygraph Examiner, which covers essential factors to consider, including certifications, experience, and ethical practices. This guide provides a step-by-step approach to help clients identify a qualified examiner and understand what to expect from a polygraph examination.
Visit Florida Polygraph, your ultimate resource for polygraph testing in Florida. Access details on services across major cities like Miami, Orlando, and Tampa, covering applications from pre-employment screening to criminal investigations. Learn about examiner qualifications, state laws, and the Employee Polygraph Protection Act (EPPA). Whether you’re seeking personal, business, or legal insights, our page provides everything you need to understand and navigate polygraph testing in Florida.
Polygraph Examination in Georgia: Licensing, Training, and Professional Standards
Polygraph examinations play a crucial role in criminal investigations, private sector screenings, and personal dispute resolution. However, Georgia does not require state licensing for polygraph examiners, making it one of the few states where practitioners can operate without state-mandated certification. Despite this, industry professionals are encouraged to pursue accredited training and adhere to professional standards to ensure credibility and reliability.
Looking for a professional polygraph examiner in Georgia? Visit our Lie Detector Test Georgia page to find available locations and schedule your test with experienced examiners today.
No State Licensing Requirements for Polygraph Examiners
Georgia’s regulatory stance on polygraph examinations changed in 1992 when the Georgia Polygraph Examiners Act was repealed. Prior to its repeal, the act mandated licensing for examiners, establishing legal requirements for individuals conducting polygraph tests within the state. Today, polygraph examiners in Georgia are not required to obtain a state-issued license, allowing a more open market for those seeking to practice in the field.
While this offers flexibility for practitioners, the lack of government oversight places greater responsibility on examiners to maintain ethical and professional standards. Without a state licensing board, industry associations and accredited institutions have become the primary means of establishing credibility for polygraph professionals in Georgia.
The Role of Professional Associations in Georgia
Although Georgia does not regulate polygraph examiners through state licensing, professional organizations help uphold industry standards by providing training, ethics guidelines, and peer-reviewed accreditation.
Georgia Polygraph Association (GPA)
The Georgia Polygraph Association (GPA) is a key organization dedicated to promoting professionalism, ethics, and best practices among examiners in the state. Membership in the GPA is available to qualified examiners and provides access to:
Continuing education opportunities
Networking with industry professionals
Ethical guidelines and professional oversight
Training seminars and workshops
By engaging with the GPA, polygraph examiners can ensure they stay up to date with industry advancements, ethical expectations, and procedural best practices—a crucial step in a state where no formal licensing requirements exist.
American Polygraph Association (APA) and National Recognition
Beyond state-level associations, many Georgia-based examiners seek accreditation from the American Polygraph Association (APA), the largest polygraph organization in the world. The APA sets rigorous training and ethics standards for examiners and provides certification programs that enhance professional credibility.
The American Association of Police Polygraphists (AAPP) also plays a role in maintaining standards for polygraph testing, particularly for law enforcement professionals. Examiners affiliated with either of these organizations demonstrate a commitment to quality, accuracy, and ethical testing practices.
Polygraph Training in Georgia: Accredited Institutions
For those looking to become polygraph examiners, proper training is essential. Georgia is home to one of the most recognized polygraph training institutions in the country:
American International Institute of Polygraph (AIIP)
Located in Peachtree City, Georgia, the American International Institute of Polygraph (AIIP) provides one of the most comprehensive and accredited training programs available for polygraph examiners.
Key Features of AIIP Training Programs:
Accredited by the APA and recognized by the AAPP
Curriculum includes forensic psychophysiology, test data analysis, and ethical considerations
Courses designed for law enforcement, private investigators, and government agencies
Training in various polygraph techniques, including the Comparison Question Test (CQT) and Concealed Information Test (CIT)
Graduates from AIIP receive an education that meets national and international polygraph standards, positioning them for successful careers in the field.
Why Training and Certification Matter in an Unregulated State
Since Georgia does not require licensing, training and accreditation serve as the primary indicators of a polygraph examiner’s credibility. Clients, whether from law enforcement, legal teams, or private individuals, should seek examiners who have completed APA-accredited training programs and are active members of professional associations.
Without these qualifications, there is no assurance that an examiner has received proper training, adheres to ethical guidelines, or follows scientifically validated methodologies.
Red Flags to Watch For When Choosing a Polygraph Examiner in Georgia:
Lack of formal training from an accredited institution
No affiliations with recognized organizations like the APA or GPA
Unrealistic claims about polygraph accuracy (e.g., 100% accuracy guarantees)
Failure to follow standardized test procedures
By selecting an examiner with accredited training and recognized professional memberships, clients can ensure a higher standard of practice, accuracy, and ethical responsibility.
Conclusion: Professionalism Over Licensing
While Georgia does not regulate polygraph examiners through state licensing, professional organizations, accredited training programs, and ethical standards fill the gap in ensuring competency in the field.
The Georgia Polygraph Association (GPA) and American Polygraph Association (APA) provide oversight and continuing education opportunities.
The American International Institute of Polygraph (AIIP) offers one of the most reputable training programs in the U.S. for polygraph examiners.
Clients and employers should prioritize examiners who hold accredited certifications and follow industry best practices.
For anyone considering a career in polygraph examination or seeking a polygraph service in Georgia, choosing professionals with proper training and affiliations is essential to ensuring accuracy, reliability, and ethical compliance.
In Texas, the polygraph industry is strictly regulated by the Texas Department of Licensing and Regulation (TDLR), ensuring that only qualified professionals conduct polygraph exams. Polygraph tests are used in various fields, including law enforcement investigations, pre-employment screenings, and private investigations. By licensing examiners, Texas seeks to uphold high standards of accuracy, ethics, and fairness in the practice of polygraph examinations.
Why Texas Licenses Polygraph Examiners
Polygraph examinations involve interpreting physiological responses to questions, which requires specialized knowledge and training. Without proper oversight, there is a risk that polygraph results could be misinterpreted, misused, or even falsified, potentially leading to injustice or harm to examinees. By regulating the profession, Texas safeguards both examinees’ rights and the integrity of the polygraph industry.
Licensing Requirements for Texas Polygraph Examiners
Texas requires prospective polygraph examiners to meet rigorous educational and training standards to obtain licensure. Here’s what the licensing process entails:
Educational Qualifications: Applicants must typically have a minimum level of higher education or equivalent experience in law enforcement, psychology, or related fields.
Polygraph School Training: Candidates must complete an accredited polygraph school program recognized by TDLR. This specialized training includes instruction in psychology, human physiology, legal and ethical standards, and technical aspects of polygraph operation.
Internship: After formal training, applicants must undergo a polygraph internship under the supervision of a licensed examiner. This internship provides hands-on experience in conducting tests, interpreting results, and following ethical protocols.
Examination: To ensure competence, candidates must pass a state licensing examination administered by TDLR, demonstrating their knowledge of polygraph science, legal requirements, and ethical considerations.
Continuing Education: Once licensed, polygraph examiners in Texas are required to complete continuing education courses to keep their skills updated and stay current with industry best practices.
Ethical and Professional Standards for Polygraph Examiners in Texas
Texas enforces strict ethical guidelines to promote professionalism in polygraph examinations. Licensed examiners must follow rules that protect examinees’ rights, ensure objective reporting, and maintain confidentiality.
Informed Consent: Examiners are required to obtain informed consent from examinees, explaining the examination process, objectives, and rights. This transparency helps build trust and ensures examinees participate voluntarily.
Professional Conduct: Texas prohibits examiners from making false claims about their abilities or advertising misleading results. Examiners cannot make exaggerated or unproven claims about the accuracy or reliability of their methods.
Non-Discrimination: Examiners are required to treat all examinees equally, avoiding discrimination based on race, gender, nationality, or other protected characteristics.
Objective Reporting: Examiners must present results objectively and without bias. Reports should accurately reflect the polygraph results and avoid any language that could mislead clients or third parties.
Procedural Standards for Polygraph Examinations
TDLR mandates specific protocols for conducting polygraph tests to maintain consistency and reliability across all examinations. This includes guidelines on the pre-test interview, question formulation, and test procedures.
Pre-Test Interview: Examiners conduct a preliminary interview to clarify the examination’s purpose, review questions with the examinee, and establish a baseline for physiological responses.
Question Formulation: All questions must be relevant to the examination’s objective. Examiners are trained to structure questions in a clear, non-threatening way, avoiding language that could cause unnecessary stress or discomfort.
Multiple Tests: Examiners often repeat questions during the test to gather consistent data, which improves reliability and reduces the risk of misinterpretation.
Regulatory Compliance and Oversight
The Texas Department of Licensing and Regulation holds polygraph examiners accountable by maintaining the authority to investigate complaints, conduct audits, and take disciplinary action if needed.
Complaint Investigations: Examinees or clients who believe an examiner acted unethically or incompetently can file complaints with TDLR. The department investigates allegations and may impose sanctions if a violation is found.
Record-Keeping Requirements: Examiners must maintain detailed records of each examination, including consent forms, polygraph charts, and test results. This documentation can be reviewed by TDLR to ensure compliance with regulations.
Audits and Inspections: TDLR has the authority to audit examiners’ records and inspect their practices periodically, verifying that they meet all state standards.
The Role of Continuing Education in Maintaining Standards
To ensure that polygraph examiners remain current with technological and methodological advancements, Texas requires licensed examiners to complete continuing education each year. Approved courses cover a range of topics, including:
Advancements in Polygraph Technology: Examiners are updated on new equipment and techniques that improve test accuracy.
Legal and Ethical Training: Examiners receive ongoing training in legal standards and ethical considerations, ensuring they uphold professionalism in all circumstances.
Specialized Skills: Examiners can choose elective courses in areas such as interviewing techniques, advanced polygraph methodologies, or legal updates relevant to the industry.
Conclusion
By implementing strict licensing and regulatory standards for polygraph examiners, Texas sets a high bar for professionalism and ethics in the field of polygraphy. The licensing requirements, ethical guidelines, and continuous education standards enforced by the Texas Department of Licensing and Regulation ensure that polygraph examinations are conducted with fairness, reliability, and respect for individual rights. These regulations help foster public trust in the polygraph process, making it a valuable tool for truth verification across various professional settings in Texas.
In South Carolina, the use of polygraph examinations, commonly known as lie detector tests, is regulated by the South Carolina Law Enforcement Division (SLED). This regulatory framework is crucial to ensure that polygraph tests are conducted professionally, ethically, and in a way that protects the rights of all examinees. Below, we delve into the specifics of how SLED oversees polygraph examinations, from examiner qualifications to strict procedural standards.
Why Regulation Matters
Polygraph tests are used in various settings, including criminal investigations, pre-employment screenings for sensitive positions, and other cases where determining truthfulness is essential. However, polygraph testing involves a delicate balance between evaluating physiological responses and respecting individual rights. To prevent misuse and to promote consistent standards, South Carolina mandates that polygraph examiners are well-trained, licensed, and operate within strict guidelines.
Licensing Requirements for Polygraph Examiners
To conduct polygraph examinations legally in South Carolina, examiners must obtain a license from SLED. This licensing process involves meeting stringent criteria to demonstrate competence and commitment to ethical practices:
Educational and Training Requirements: Examiners must complete a comprehensive training program from an accredited polygraph school. This training covers areas like psychology, physiology, and specific polygraph techniques, ensuring that examiners are knowledgeable and equipped to interpret results accurately.
Professional Experience: Alongside formal education, many examiners need practical experience before qualifying for a license. This includes supervised practice sessions where they refine their skills under the guidance of experienced examiners.
Examination and Certification: Prospective examiners must pass a licensing examination administered by SLED, demonstrating their understanding of polygraph technology, procedures, and ethical responsibilities.
Standards of Conduct and Ethical Practices
SLED not only requires examiners to be well-qualified but also sets forth specific guidelines for conducting polygraph tests:
Informed Consent: Examinees must voluntarily consent to the test after being informed of their rights, the examination process, and the purpose of the test.
Respect for Privacy: Examiners are restricted from asking inappropriate or invasive questions, especially those unrelated to the investigation or issue at hand. This includes any sexually oriented or personally intrusive questions, unless they directly relate to a criminal investigation.
Objectivity and Accuracy: Examiners must conduct themselves with professionalism, ensuring that all reports are factual, unbiased, and based on a thorough analysis of the polygraph charts. SLED prohibits any behavior or reporting that could mislead clients or create biased conclusions.
Examination Procedures and Protocols
SLED mandates a rigorous protocol for polygraph examinations to maintain consistency and fairness:
Pre-Test Interview: Before the examination, the examiner conducts an interview to review the topics that will be addressed, helping to establish rapport and clarify expectations.
Testing Process: The examiner presents each relevant question multiple times, usually a minimum of three, to obtain reliable data. If a conclusive decision can’t be made, the result may be recorded as inconclusive rather than making potentially inaccurate determinations.
Post-Test Review: Examinees have the right to discuss any physiological reactions observed during the test, ensuring that any responses have context before a final conclusion is made.
Restrictions on Specific Examinations
For certain cases, especially those involving sensitive matters or vulnerable populations, additional guidelines are in place. For example:
Victims of Crimes: Polygraph examinations are generally prohibited for victims of crimes, especially in cases of sexual assault, unless they voluntarily request it. This provision helps protect victims from potential retraumatization.
Special Populations: Minors and individuals with mental or physical health issues may be exempt from testing or may require additional protective measures to ensure the process is fair and non-intrusive.
Compliance, Complaints, and Disciplinary Actions
SLED retains the authority to monitor polygraph examiners and ensure compliance with these standards:
Record-Keeping Requirements: Examiners are required to maintain detailed records of each polygraph examination, including consent forms, charts, questions, and reports. These records must be available for SLED review to verify that examinations are conducted according to state regulations.
Complaint Investigations: If an examiner is suspected of unethical conduct or procedural violations, SLED can investigate and take disciplinary action, which may include suspending or revoking the examiner’s license.
Public Accountability: By upholding these standards, SLED reinforces public trust in the polygraph process, ensuring that it remains a legitimate and credible tool in South Carolina’s justice system.
Continuing Education and Professional Development
To maintain licensure, polygraph examiners must complete ongoing education. SLED requires at least 20 hours of instruction each year on topics directly related to polygraphy. This education can be acquired through state or national associations, law enforcement academies, or accredited institutions. Continuing education is vital to ensure that examiners stay current with advancements in polygraph technology, ethical standards, and best practices in the field.
Conclusion
South Carolina’s regulatory approach to polygraph examinations, managed by SLED, is a model of how oversight can enhance the credibility and ethical standards of the profession. By enforcing strict licensing requirements, ethical guidelines, and procedural protocols, SLED ensures that polygraph examinations are conducted fairly, transparently, and with respect for the examinee’s rights. These regulations ultimately strengthen the value of polygraph tests as a tool for truth verification while upholding the principles of justice and accountability in South Carolina.
The Kentucky Administrative Regulations (KAR) for Polygraph Examiners, administered by the Justice and Public Safety Cabinet’s Department of State Police, establish rigorous standards and guidelines for professionals involved in deception detection. These regulations outline professional conduct, technical standards, and ethical responsibilities to ensure the integrity of polygraph examination practices. The purpose of 502 KAR 20:020 is to ensure that the practice of deception detection aligns with ethical norms and serves public safety objectives in Kentucky.
Statutory Authority and Definitions
The regulation, which is grounded in KRS 15A.160 and 329.030, authorizes the Secretary of the Justice and Public Safety Cabinet to implement standards for polygraph examiners. This includes clear definitions to guide practitioners:
Detection of Deception Examiner: Defined under KRS 329.010(1), this term refers to professionals authorized to conduct deception detection.
Secretary: As per KRS 329.010(5), this term denotes the head of the cabinet responsible for oversight.
Sex Crime: Defined as any offense outlined in relevant Kentucky Revised Statutes (KRS), including but not limited to sexual assault and child exploitation.
Advertising, Solicitation, and Non-Discrimination
Regulations impose strict limitations on advertising and solicitation to prevent deceptive practices:
Examiners may not advertise in a misleading way or make exaggerated claims regarding their skills or methodologies.
Claims of superiority over other examiners, fee-splitting agreements, or solicitations derived from sensitive information about clients’ employers or past experiences are strictly prohibited.
Discrimination based on race, color, creed, sex, or national origin is not permitted.
Examination Conduct and Ethics
Polygraph examiners must adhere to ethical guidelines to protect examinees’ rights and ensure the integrity of examination results:
Voluntary Participation: Examinations are strictly voluntary, requiring written consent from examinees.
Fitness for Examination: Examiners must assess the physical and psychological fitness of examinees before proceeding.
Termination of Examination: An examination must be terminated immediately upon the examinee’s request, ensuring that participants can withdraw freely at any time.
Post-Examination Review: Examiners must allow examinees the chance to explain responses before making a conclusive analysis, thereby promoting transparency.
Sensitive Topics: Questions on sexual behavior are restricted unless directly relevant to the case, and no examination should be conducted if it’s intended to circumvent the law.
Objective Reporting: Examiners must deliver unbiased, fact-based reports and avoid any misleading or subjective language.
Special Considerations for Victims of Sex Crimes
Victims of sex crimes are granted specific protections during polygraph examinations:
Right to Refuse: Victims have the absolute right to decline a polygraph, and no examination may be a prerequisite for investigating the crime.
Consent and Documentation: Examinations of victims are only conducted with written consent and after thorough investigative protocols.
Avoiding Victim Contact with Suspect: Efforts are made to prevent any physical or audio contact between the victim and the suspect during the process.
Advocacy and Transparency: Victims may request an advocate’s presence during the examination, and the entire process is videotaped to ensure procedural transparency.
Record-Keeping Requirements
Polygraph examiners are required to maintain comprehensive records:
Document Retention: Examiners must keep files, including charts, reports, and consent forms, for a minimum of two years.
File Access: Examiners who leave an agency retain access to their records with reasonable cause but may not remove or alter them.
Inspection by Authorities: The cabinet reserves the right to inspect examination records if there is cause to verify compliance with relevant statutes and regulations.
Continuing Education
To maintain licensure, polygraph examiners must complete a minimum of 20 hours of professional education annually:
Training Approval: Eligible training programs include those offered by national or state polygraph associations, law enforcement academies, or APA-accredited polygraph schools.
Documentation: Proof of completed training, such as diplomas or certificates, must be submitted to renew licensure, ensuring that examiners stay updated on best practices and advancements.
Conclusion
Kentucky’s administrative regulations for polygraph examiners serve as a robust framework to uphold ethical, fair, and standardized practices in deception detection. By adhering to these guidelines, examiners contribute to the credibility of polygraph testing while safeguarding the rights and dignity of those involved.
In Massachusetts, the use of lie detector tests in employment practices is strictly regulated, reflecting the state’s strong commitment to protecting workers’ rights. State law prohibits employers from requiring or requesting that employees or job applicants undergo such tests, ensuring fair treatment and privacy in the workplace. However, it is important to note that while these regulations apply to employment settings, they do not necessarily restrict private individuals from seeking lie detector tests for personal matters.
Prohibition on Lie Detector Tests in Employment
Massachusetts law categorically forbids employers from using lie detector tests as a condition of employment. Whether polygraphs or other devices, these tests cannot be used in the hiring process, for job promotions, or as a tool to assess current employees. Employers are also prohibited from retaliating against an employee or job applicant who refuses to take such a test or asserts their rights under this law.
Employers in Massachusetts are further required to inform all job applicants of this legal protection. Employment applications must include a clear statement that it is illegal to require or administer a lie detector test as a condition of employment. Violating this law can lead to severe penalties for employers, including fines, imprisonment, or both.
Private Lie Detector Tests
While Massachusetts law restricts the use of lie detector tests in the context of employment, it does not prevent individuals from voluntarily seeking polygraph services for personal reasons. Private lie detector tests are often used in matters such as family disputes, relationship issues, or other personal concerns where individuals want to verify the truth. These tests, offered by licensed examiners, may help address specific situations like infidelity, trust issues, or allegations of theft.
In these cases, the use of polygraphs is not governed by employment law, as they are conducted on a voluntary basis, typically outside of the workplace. Private polygraph services in Massachusetts are often sought by individuals or private parties, with the results being used for personal decision-making or dispute resolution. However, the results of these private tests are typically not admissible in court, and their legal standing varies depending on the context in which they are used.
Penalties for Violations in Employment
Employers who violate Massachusetts laws concerning lie detector tests in employment can face serious penalties. A first-time violation may result in fines of $300 to $1,000, while repeat offenses can lead to fines of up to $1,500 and imprisonment for up to 90 days. Additionally, in corporate settings, the president, chief operating officer, or other senior staff members who condone such violations may also be held accountable.
Importantly, employees or job applicants cannot waive their rights under this law. Even if an individual agrees to take a lie detector test, such a waiver is not considered a valid defense for employers if legal action is taken.
Civil Actions and Employee Rights
Individuals who believe their rights have been violated under this law can file a civil lawsuit against their employer. They have up to three years from the date of the violation to initiate legal action. These lawsuits may seek injunctive relief and financial compensation for damages, including lost wages or benefits. Massachusetts law allows for the recovery of treble damages, which can significantly increase the financial penalties imposed on employers found in violation. In addition, successful plaintiffs are entitled to recover litigation costs and attorney fees.
Conclusion
Massachusetts maintains strict laws regarding the use of lie detector tests in employment, offering significant protection to employees and job applicants. Employers are prohibited from using these tests, and violations can lead to severe penalties. However, private lie detector tests remain available for individuals who seek them for personal reasons, outside of the employment context. While not subject to the same restrictions, the use of private polygraph services must be voluntary, and their results are typically limited to personal matters or dispute resolution. In all cases, individuals should be aware of their rights under Massachusetts law and the options available to them both in employment and personal situations involving lie detector tests.
Lie detector tests, or polygraph examinations, are often employed in criminal investigations to help verify the truthfulness of statements and to assess the credibility of individuals involved in various legal matters. These tests play a critical role in cases involving serious crimes and other criminal issues, serving as a tool for law enforcement, attorneys, and private investigators. Below, we provide an in-depth look at the criminal issues where polygraph tests are frequently used, emphasizing their significance in the justice system.
Sexual Contact with a Child and Solicitation of Sex with a Child
Criminal cases involving inappropriate sexual behavior with minors, including solicitation, are some of the most severe offenses. Polygraph examinations can help determine the validity of statements made by the accused, the victim, or witnesses, often providing additional evidence to support or dispute claims. These tests are especially helpful in clarifying facts when other physical evidence is lacking or inconclusive.
Homicide and Attempted Homicide
In cases of homicide or attempted homicide, establishing the truth is paramount. Lie detector tests can assist in verifying suspect or witness testimonies, offering law enforcement a method of corroborating statements during the investigation. While polygraph results are not admissible as direct evidence in many courts, they can guide police efforts and further investigative directions.
Sexual Assault, Rape, and Other Sex Crimes
Sexual assault and rape cases often rely heavily on witness testimony and the victim’s account, as physical evidence may be limited or absent. Polygraph tests can be used to verify the credibility of the involved parties, helping to differentiate between truthful statements and fabrications. This is crucial in both the investigative and pre-trial phases of such sensitive cases.
Assault and Battery
Assault and battery cases, where violence or the threat of violence is involved, may benefit from polygraph testing to determine the veracity of claims. Whether it’s a self-defense argument or conflicting accounts from the victim and accused, polygraph results can provide law enforcement and legal teams with an additional layer of assessment.
Child Abuse or Neglect
Child abuse or neglect cases can be complex, with allegations often based on circumstantial evidence or testimonies from those involved. Polygraph tests can play a role in determining whether the accused is telling the truth, especially when other forms of proof, such as medical records or witness testimony, are limited or disputed.
Illegal Drugs: Possession or Distribution
Criminal cases involving illegal drugs, whether it’s possession or distribution, frequently use polygraph tests to verify claims of innocence or guilt. In cases where multiple individuals are involved, these tests can help sort out conflicting stories and pinpoint the primary culprit.
Destruction of Property, Vandalism, and Arson
When it comes to crimes like vandalism, arson, or destruction of property, lie detector tests may help clarify the events leading to the crime. These cases often involve competing claims from different parties, and polygraph testing can provide additional insight into who may be responsible.
Theft, Embezzlement, Robbery, and Fraud
Financial crimes, such as theft, embezzlement, robbery, and fraud, often require thorough investigation into the truthfulness of individuals involved. Polygraph tests can aid in uncovering whether statements made by suspects or witnesses are genuine, thereby helping to build or dismantle cases in criminal investigations.
Weapons Charges
Cases involving weapons, whether it’s illegal possession, misuse, or involvement in violent crimes, often rely on polygraph testing to assess the honesty of those accused. Verifying the truth in statements regarding the ownership or use of weapons can significantly impact the course of the investigation and legal proceedings.
Restraining Order Issues
Violations of restraining orders can result in criminal charges, and polygraph tests may be used to assess the veracity of claims made by the parties involved. In situations where the facts are contested, polygraph results can support or undermine claims of compliance or violation.
Witness and Victim Statement Verification
Ensuring that witness and victim statements are truthful is critical to achieving justice in any criminal case. Polygraph testing offers a method for verifying these statements, providing law enforcement with additional confidence in the testimonies they rely on for building cases.
Motor Vehicle Accidents, Violations, and DUI
In cases involving motor vehicle accidents or DUI charges, polygraph testing can help verify the facts of what transpired. This can be particularly useful when there are conflicting accounts about who was at fault or the circumstances leading to the incident.
Sentencing and Plea Bargaining Issues
During sentencing or plea bargaining, polygraph tests may be used to determine whether the defendant is being truthful about their level of involvement in the crime. These tests can influence the terms of a plea agreement or the severity of sentencing, particularly in cases where the court is unsure of the defendant’s honesty.
Conclusion
Lie detector tests are valuable tools in many criminal cases, offering law enforcement and legal professionals a method of assessing the truthfulness of statements made by suspects, witnesses, and victims. Although not admissible as evidence in all jurisdictions, polygraph testing is a reliable resource in guiding investigations and supporting legal decisions. Whether in cases of violent crimes, financial fraud, or other serious criminal matters, these tests help ensure a thorough and fair pursuit of justice.
Post-Conviction Sex Offender Polygraph Testing (PCSOT) aims to increase public safety by validating sex offender risk management, risk assessment, and treatment decisions. PCSOT assists professionals in supervising the rehabilitation of convicted sex offenders in community settings
Evidence-Based Strategy
PCSOT relies on the principles and knowledge derived from existing polygraph testing, research, risk management, risk assessment, and behavioral or mental health treatment of sex offenders. Examiners must be cautious about instituting field practices based on their beliefs or values.
The polygraph testing of sex offenders requires the examiner to take an impartial stance on the situation. They cannot let their opinions of the sex offender influence the outcome of the testing procedure. An evidence-based approach ensures a fair and just result from the polygraph exam.
The Types of PCSOT Examinations
PCSOT examinations cover six areas, sexual history disclosure exams, maintenance exams, specific issue denial tests, instant offense Investigations, prior allegation examinations, and parental risk assessments.
These exam types provide a frame and time of reference for each polygraph test. Examiners must not mix their investigation targets from different frames or times of contact within a single PCSOT test.
Full Disclosure Sexual History Polygraph Examination (SHE)
This polygraph exam tests convicted sex offenders who don’t deny their crime. The Full Disclosure Sexual History Examination is administered after the sex offender is in treatment for a minimum of 90 days but less than six months.
When starting their sex offender treatment, the convicted offender will immediately receive a sexual history questionnaire, victim form, and instruction Sheet. The examiner will also explain the testing process and answer questions from the sex offender.
The Sexual History Polygraph Examination aims to investigate the offender’s life history and their role in victimizing others. The test covers the offender’s lifetime history of sexual preoccupation, deviancy, and compulsive behaviors.
The auxiliary purpose of the sexual history polygraph examination focuses on the offender’s contact with underage victims and people under the age of consent. It’s important to note that the test is only for risk assessment and treatment purposes.
The examiner will review the test questionnaire with the therapist to confirm the exam’s accuracy and completeness. The examiner will complete one victim form for each victim. The therapist’s sign-offs on the exam questions were indicated before starting the polygraph test with the offender.
Maintenance Polygraph Examinations (MPA)
The polygraph exam provides a thorough investigation of the offender’s compliance with designated terms and conditions of treatment and probation, either randomly or periodically.
It’s recommended maintenance examinations be administered every six months to 12 months. Maintenance examinations address a time of reference after the conviction date or previous polygraph exam, typically not exceeding one to two years in exceptional circumstances.
The probation officer and treatment provider considers the deterrent benefits of random scheduling maintenance exams for offenders. Any terms and conditions of probation or treatment are selected as exam targets.
Investigative goals for maintenance exams emphasize the verification or development of information, adding validity to the early detection of escalating threat levels to potential victims or the community. Information developed in maintenance exams may be used by probation officers or treatment providers when instituting sanctions on the offender.
The therapist or probation officer provides information that is confirmed with the offender. The offender must receive copies of the conditions of probation before administering the test.
Specific Issue Denial Test (Instant Offense)
This polygraph exam addresses the offender in denial of their crimes or when their admission is far apart from the stated court records.
The exam is administered as soon as possible. This allows the offender to identify the victim and take responsibility for their deviant actions. Investigative or police reports must include victim statements before administering the exam.
Instant Offense Investigative (IOI)
The containment team can utilize the Instant Offense Investigative (IOI) polygraph exam when testing the limitations of the sex offender’s behavior. It also searches for offenses or behaviors not included in the allegations relating to the original crime.
This exam is completed before clarification or reunification with the victim. Test parameters include the number of sexual offenses against the victim, violence, force, invasive offense behaviors, and other sexual behavior.
Prior Allegation Examination (PAE)
Containment teams can utilize Prior Allegation Exams (PAE) when investigating and resolving prior alleged sex offenses made before the offender’s conviction. They complete these tests before attempting to investigate and resolve an offender’s unknown sexual offense history.
This polygraph test is nearly identical to the Instant Offense Exam’s design and structure. However, the details of allegations stem from an allegation before their conviction, resulting in supervision and treatment, not the present crime.
Parental Risk Assessment (PRA)
Containment teams can utilize the PRA Examination when reunifying offenders with children. This polygraph test assists with the risk assessment of the offender by the containment team. It focuses on the offender’s past sexual behavior involving minors and specific sexual behavior toward their children.
This exam is utilized in early treatment when the court orders reunification, and there’s not enough time to complete a Full Disclosure Sexual History polygraph exam. If the offender has already completed a Full Disclosure Sexual History exam, there may not require a PRA examination.
PCSOT Method of Execution
The psychological and physical harm caused by sex offenses is traumatic. Probation and pretrial service officers must prioritize mitigating this impact on victims while preventing further sex crimes. Not all suspects or offenders are alike in their crimes and their behavior.
Instead, they present a wide spectrum of therapeutic needs and criminogenic risks. As a result, the officer’s supervisor and investigation techniques must vary to the case at hand. The polygraph exam measures physiological responses such as blood pressure, heart rate, respiratory patterns, and skin responses while the offender undergoes the questioning process.
The exam consists of the examiner recording these physiological measurements, interpreting the exam results, and offering expert opinions.
PCSOT Testing Procedures and Best Practices
Examiners in PCSOT must adhere to accepted polygraph testing protocols and best practices. Failing to maintain test policies results in a biased test and outcome that may alter the fate of the examinee.
Here are the best practices and procedures every examiner must follow to maintain an impartial and unbiased test result that holds up in court.
Case Background Info
The polygraph examiner must request and review the case details when preparing for the exam. The examiner must enter the polygraph test with prepared questions and a thorough understanding of the case specifics.
Audio-Visual Recording
Examiners must record the PCSOT session. The recording must occur from the start of the pretest interview to the completion of the exam. There is no interruption in the recording. The examiner must retain the recording for three years from the exam date.
Recording the test session documents the conduct of the examiner and the offender, determining the quality of the exam protocol and information provided by the offender. This strategy precludes the possibility of a future denial by the offender, facilitating the need for quality assurance review when required.
Pretesting Phase
The polygraph examiner must conduct a thorough interview of the offender before moving on to the test phase of the process.
A pretest interview consists of the following:
Greeting and introduction
The examiner introduces themselves to the offender and orients them with the room and equipment. They provide a brief overview of the procedure and scope of the exam before obtaining authorization and release to undertake the test.
Informed Consent by the Offender
Polygraph examiners must obtain the examinee’s informed consent before initiating the test. The offender can submit their consent in writing or on the audio-visual recording of the interview. In some cases, the offender will need to sign a release.
The language in the release must include the following.
The offender’s voluntary consent to take the exam.
They may terminate the exam anytime they want to during the test.
An assessment statement regarding the offender’s mental and physical health at the examination.
A registered account provides the offender with all information regarding the polygraph exam.
A statement that all information is released to members of the community supervision team.
A statement that admission of unlawful activities is not concealed from the community supervision team.
A statement regarding the audio/video recording of the session.
Biographical Data and Suitability for the Exam
The polygraph examiner must obtain information regarding the offender’s background. This info includes marital and family status, children, place of employment, and living situation. The examiner must have a copy of the review of the reason for conviction and the sentence received.
Before the examination, the examiner must obtain information regarding the examinee’s mental and physical health to determine their suitability for undergoing the PCSOT.
Explanation of Examination Procedures and Polygraph Instrumentation
The exam includes a description of the process to the offender. This consists of an explanation of the polygraph instrumentation involved in the session. It also includes the physiological and psychological responses of their responses to the questions.
Nothing in the explanation should construe as favoring a basis of polygraph science. Typically, the examiner integrates an approach using an explanation of emotional attributions, cognitive and behavioral learning theory,
Interview Structure
The Examiner conducts a thorough, structured pretest interview. This interview includes a comprehensive review of the examinee’s personal information and background. This has an applicable background, case facts, and a review of issues of concern.
The examiner must include an opportunity for the offender to give their side of the story of all issues under investigation. The examiner includes a narrative-free interview for event-specific investigative/diagnostic polygraphs of known sex offender allegations or incidents.
Reviewing Test Questions
The examiner reviews and explains test questions to the offender before moving on to the test phase of the exam.
The examiner will not proceed until they’re satisfied with the offenders understanding and response to issues of concern.
Examination Length
The examiners must not plan to conduct exams under 90 minutes from the beginning of the pretest interview to the end of the post-test interview phase of the exam.
The only time the examiner may conduct an interview process under 90 minutes is when there are challenging circumstances, such as when an offender isn’t suitable for testing, when the investigation is resolved before data collection, or if an examinee refuses to continue with the process.
Examination Questions
Polygraph examiners must have the final responsibility and authority to determine test questions and language, which are reviewed with the treatment and supervision professionals.
Examiners must advise the treatment and supervision professionals to refrain from informing the offender of the exam questions and specific investigation targets. They must not coach the offender in the principles and mechanics of the polygraph exam.
The offender can refer technical questions regarding the polygraph examination process directly to the examiner at the time of the test. Examiners must advise treatment professionals and supervision team members that it’s appropriate to inform the offender of the purpose of each examination.
Interpretation of Exam Results
Polygraph examiners must render their professional opinion using established and published decision guidelines to accurately interpret the test results. Examiners would render their opinion if the offender displayed deceptive behavior when test results are DI or SR for the investigation targets.
Examiners must render their professional opinion if the offender displayed truthful behavior when test results are NDI or NSR for investigation targets. Examiners must not state an offender is deceptive in their response to investigation targets or non-deceptive in their response to other investigation targets in the same exam.
In Closing – Distribution of PCSOT Polygraph Exam Results
The examiner will provide the polygraph exam report to the supervision team members involved in the risk assessment, risk management, and intervention/treatment activities.
Dissemination to Authorities
Reports must be released to the parole board, court, releasing agency, or professionals as required by law or at the discretion of the community supervision team.
Communication Post Exam
After completing the post-exam review, the polygraph examiner must avoid communicating with the offender or their family members regarding the outcome of the test results.
The Employee Polygraph Protection Act of 1988 (EPPA) is a United States federal law that generally prevents employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain exemptions.
Under EPPA, most private employers may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against anybody for refusing to take a test or for exercising other rights under the act. However, the act does permit polygraph tests to be administered to certain applicants for job with security firms (such as armored car, alarm, and guard companies) and of pharmaceutical manufacturers, distributors, and dispensers. The law does not cover federal, state, and local government agencies.
The Employee Polygraph Protection Act (EPPA) prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act.
Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint, or for participating in a proceeding under the Act. Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors and dispensers.
Subject to restrictions, the Act also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer. Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing and post-testing phases. An examiner must be licensed and bonded or have professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test.
The Employee Polygraph Protection Act (EPPA) is administered and enforced by the Wage and Hour Division (WHD). The EPPA applies to most private employers. The law does not cover Federal, state, and local government agencies.
Basic Provisions/Requirements
Illustration of the Employee Polygraph Protection Act poster
The EPPA prohibits most private employers from using lie detector tests, either for pre‑employment screening or during the course of employment. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act.
Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint or for participating in a proceeding under the Act.
Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors, and dispensers.
Subject to restrictions, the Act also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer.
Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing, and post testing phases. An examiner must be licensed if required by a state in which the test is to be conducted, and must be bonded or have professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test.
Employee Rights
The EPPA provides that employees have a right to employment opportunities without being subjected to lie detector tests, unless a specific exemption applies. Where polygraph examinations are allowed, they are subject to strict standards at the pre-test, testing, and post-testing stages. Specific notices must be given to employees or prospective employees. The Act also provides employees the right to file a lawsuit for violations of the Act. In addition, the Wage and Hour Division accepts complaints of alleged EPPA violations.
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
Poster. Every employer subject to EPPA shall post and keep posted on its premises a notice explaining the Act. The notice must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment. There is no size requirement for the poster.
The EPPA poster is available in English and Spanish. Posting of the EPPA poster in Spanish is optional.
Notices. There are specific notices that must be given to examinees and examiners in instances where polygraph tests are permitted:
When a polygraph test is administered pursuant to the economic loss or injury exemption, the employer is required to provide the examinee with a statement prior to the test, in a language understood by the examinee, which fully explains the specific incident or activity being investigated and the basis for testing particular employees. The statement must contain, at a minimum, the following information:
An identification with particulars of the specific economic loss or injury to the business of the employer A description of the employee’s access to the property that is the subject of the investigation A detailed description of the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation The signature of a person (other than the polygraph examiner) authorized to legally bind the employer
Every employer who requests an employee or prospective employee to submit to a polygraph examination pursuant to the ongoing investigation, drug manufacturer, or security services EPPA exemptions must provide:
Reasonable written notice of the date, time, and place of the examination and the examinee’s right to consult with legal counsel or an employee representative before each phase of the test Written notice of the nature and characteristics of the polygraph instrument and examination Extensive written notice explaining the examinee’s rights, including a list of prohibited questions and topics, the examinee’s right to terminate the examination, and the examinee’s right to file a complaint with the Department of Labor alleging violations of EPPA
Employers must also provide written notice to the examiner identifying the persons to be examined.
Recordkeeping
In the limited instances where EPPA permits the administration of polygraph tests, recordkeeping requirements apply both to employers and polygraph examiners. Employers and polygraph examiners must retain required records for a minimum of three years from the date the polygraph examination is conducted (or from the date the examination is requested if no examination is conducted).
Employers investigating an economic loss or injury must maintain a copy of the statement that sets forth the specific incident or activity under investigation and the basis for testing that particular employee and proof of service of that statement to the examinee.
Employers who manufacture, distribute, or dispense controlled substances must maintain records specifically identifying the loss or injury in question and the nature of the employee’s access to the person or property that is the subject of the investigation.
Every employer who requests an employee or prospective employee to submit to a polygraph examination pursuant to the ongoing investigation, drug manufacturer, or security services EPPA exemptions must maintain:
A copy of the written statement that sets forth the time and place of the examination and the examinee’s right to consult with counsel A copy of the written notice provided by the employer to the examiner identifying the persons to be examined Copies of all opinions, reports, or other records furnished to the employer by the examiner relating to such examinations
All polygraph examiners must maintain all opinions, reports, charts, written questions, lists, and other records relating to polygraph tests of such persons, as well as records of the number of examinations conducted during each day, and the duration of each test period.
All exempt private sector employers and polygraph examiners retained to administer examinations to persons identified by employers must keep the required records safe and accessible at the place or places of employment or business or at one or more established central recordkeeping offices where employment or examination records are customarily maintained. If the records are maintained at a central recordkeeping office, other than in the place or places of employment or business, such records must be made available within 72 hours following notice from the Secretary of Labor or an authorized representative such as Wage and Hour Division personnel.
Reporting
There are no reporting requirements under EPPA.
Penalties/Sanctions
The Secretary of Labor can bring court action to restrain violators and assess civil money penalties. An employer who violates the law may be liable to the employee or prospective employee for appropriate legal and equitable relief, which may include employment, reinstatement, promotion, and payment of lost wages and benefits.
Any person against whom a civil money penalty is assessed may, within 30 days of the notice of assessment, request a hearing before an Administrative Law Judge. If dissatisfied with the Administrative Law Judge’s decision, such person may request a review of the decision by the Administrative Review Board which the Secretary of Labor has designated to issue final agency decisions. Final determinations on violations are enforceable through the courts.
Relation to State, Local, and Other Federal Laws
The law generally does not preempt any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests.
Employee Polygraph Protection Act of 1988
The Department of Labor administers and enforces the Employee Polygraph Protection Act of 1988 (the Act) through the Wage and Hour Division. The Act generally prevents employers engaged in interstate commerce from using lie detector tests either for pre-employment screening or during the course of employment, with certain exemptions.
The Act, signed by the President on June 27, 1988, became effective on December 27, 1988.
Under the Act, the Secretary of Labor is directed to distribute a notice of the Act’s protections, to issue rules and regulations, and to enforce the provisions of the Act. The Act empowers the Secretary of Labor to bring injunctive actions in U.S. district courts to restrain violations, and to assess civil money penalties against employers who violate any provision of the Act.
Employers are required to post notices summarizing the protections of the Act in their places of work.
Definitions
A lie detector includes a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator or similar device (whether mechanical or electrical) used to render a diagnostic opinion as to the honesty or dishonesty of an individual.
A polygraph means an instrument that records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards and is used to render a diagnostic opinion as to the honesty or dishonesty of as individual.
Prohibitions
An employer shall not:
Require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test.
Use, accept, refer to, or inquire about the results of any lie detector test of an employee or prospective employee.
Discharge, discipline, discriminate against, deny employment or promotion, or threaten to take any such action against an employee or prospective employee for refusal to take a test, on the basis of the resultsof a test, for filing a complaint, for testifying in any proceeding or for exercising any rights afforded by the Act.
Exemptions
Federal, state and local governments are excluded. In addition, lie detector tests administered by the Federal Government to employees of Federal contractors engaged in national security intelligence or counterintelligence functions are exempt.
The Act also includes limited exemptions where polygraph tests (but no other lie detector tests) may be administered in the private sector, subject to certain restrictions: FS 36 • To employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation; and • To prospective employees of armored car, security alarm, and security guard firms who protect facilities, materials or operations affecting health or safety, national security, or currency and other like instruments; and • To prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances, as well as current employee who had access to persons or property that are the subject of an ongoing investigation. Qualifications of examiners An examiner is required to have a valid and current license if required by a State in which the test is to be conducted, and must maintain a minimum of $50,000 bond or professional liability coverage.
Employee/prospective employee rights
An employee or prospective employee must be given a written notice explaining the employee’s or prospective employee’s rights and the limitations imposed, such as prohibited areas of questioning and restriction on the use of test results. Among other rights, an employee or prospective employee may refuse to take a test, terminate a test at any time, or decline to take a test if he/she suffers from a medical condition. The results of a test alone cannot be disclosed to anyone other than the employer or employee/prospective employee without their consent or, pursuant to court order, to a court, government agency, arbitrator or mediator. Under the exemption for ongoing investigations of work place incidents involving economic loss, a written or verbal statement must be provided to the employee prior to the polygraph test which explains the specific incident or activity being investigated and the basis for the employer’s reasonable suspicion that the employee was involved in such incident or activity.
Where polygraph examinations are permitted under the Act, they are subject to strict standards concerning the conduct of the test, including the pre-test, testing and post-test phases of the examination. Civil actions may be brought by an employee or prospective employee in Federal or State court against employers who violate the Act for legal or equitable relief, such as employment reinstatement, promotion, and payment of lost wages and benefits. The action must be brought within 3 years of the date of the alleged violation.
Where to Obtain Additional Information
For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866- 4USWAGE (1-866-487-9243). This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.
Civil Money Penalty Inflation Adjustments
Starting in 2016, agencies across the federal government must adjust their penalties for inflation each year. Below is a table that reflects the adjustments that have occurred for penalties under this statute. For more information on the penalty adjustments, go here.
Civil Money Penalty Inflation Adjustments
Type of Violation
Statutory Citation
CFR Citation
Maximum Civil Monetary Penalty on or before 1/15/2022
Maximum Civil Monetary Penalty on or after 1/16/2022
(1) Requiring, requesting, suggesting or causing an employee or prospective employee to take a lie detector test or using, accepting, referring to or inquiring about the results of any lie detector test of any employee or prospective employee, other than as provided in the Act or part 801; (2) Taking an adverse action or discriminating in any manner against any employee or prospective employee on the basis of the employee’s or prospective employee’s refusal to take a lie detector test, other than as provided in the Act or part 801; (3) Discriminating or retaliating against an employee or prospective employee for the exercise of any rights under the Act; (4) Disclosing information obtained during a polygraph test, except as authorized by the Act or part 801; (5) Failing to maintain the records required by the Act or part 801; (6) Resisting, opposing, impeding, intimidating, or interfering with an official of the DOL during the performance of an investigation, inspection, or other law enforcement function under the Act or part 801; (7) Violating any other provision of the Act or part 801.
National security is a vital component of government services. The National Security Agency (NSA), Central Intelligence Agency (CIA), and Federal Bureau of Investigation (FBI) are the three big agencies responsible for monitoring and maintaining national security in the United States.
All three agencies utilize polygraph policies for pre-employment screening and random and specific employee testing. In 2013, NSA employee Edward Snowden defected from the organization, choosing to leak classified documents surrounding the NSA’s monitoring of the American people.
His whistleblowing activities rocked the national security industry. While Snowden is the most well-known example of a whistleblower defecting from the agency, there have been plenty of others, with William Binney, another NSA employee choosing to blow the whistle on unethical practices in the organization after his retirement in 2001.
Divulging national secrets and classified information is risky, and the NSA, CIA, and FBI have stringent policies against it, claiming the practice places the United States at risk of security breaches and vulnerabilities.
The three organizations implement polygraphs to prevent these occurrences. They don’t want to hire bad actors that might leak sensitive government information. The polygraph represents a tool available to limit the risk of hiring people like Snowden and Binney and monitor current employees after their hiring.
The History of Polygraph Testing in the CIA
The polygraph device was introduced into CIA (Known as the OSS or Office of Strategic Services until Truman signed the National Security Act in 1947) interrogations in the late 1940s. In 1951, the organization decided to incorporate its use into a screening of candidates and operational assets.
The CIA recruited examiners who spoke English and were well-versed in foreign languages through a program called “the Directorate of Plans (DP). The policy to employ the polygraph in this manner was successful, with one of the big moments involving its use in the Korean War in the 1950s. Examiners used the polygraph to uncover and neutralize a double agent operation.
The South Koreans were sending agents into the hostile territory of North Korea to gather intelligence for the war. When the CIA chief arrived in the capital of SK, Seoul, in 1951, he ordered the testing of returning operatives.
The results of the exams showed the Chinese government co-opted these operations, with many agents being doubled or killed. As a result of the success of the campaign, polygraph exams became a steadfast component of CIA operations in the coming years and decades.
During this period, polygraph testing primarily focused on operative and applicant testing. However, the CIA also introduced a new format, the “Specific Issue Polygraph” (SIP), when employees were accused of misconduct.
These tests incorporated questioning of the examinee’s lifestyle, including their involvement with criminal activity, drug and alcohol use, homosexuality, blackmail, and their involvement with communist groups.
The national security testing questions involved the examinee’s involvement with the unauthorized disclosure and mishandling of classified information, unauthorized contact with foreign intelligence organizations, and contacts with foreign nationals.
After establishing the parameters for standardized testing, the CIA director, Admiral Roscoe Hillenkoetter, authorized the use of polygraph exams on an experimental and voluntary basis. The American Polygraph Association (APA) stated the CIA’s use of polygraph exams was contrary to best practices recommended by their organization, claiming it diluted the validity of the process.
As a result, CIA examiners were discouraged from attending APA workshops, sponsored seminars, or conferences or joining the APA. During the first year, the CIA introduced these SIP practices, over 100 agents lost their security clearance. As a result of its success in weeding out undesirable agents and candidates, the polygraph exam became a core part of the CIA security clearance apparatus.
Why Do the NSA, FBI, and CIA Use Lie Detector Tests?
The polygraph exam plays an extended role in national security organizations like the CIA, FBI, and NSA. One of the practices involved with polygraph use is supporting clandestine service (CS) operations. This support includes verifying the bona fide candidates of recruited agents and the accuracy of the information they provide.
The polygraph exam also acts as a tool in interrogations, aiding in the debriefing of defectors, walk-ins, and prisoners, making claims of offering valuable intelligence information. The polygraph also acts as a tool for resolving allegations against employees in internal investigations as part of periodic employee re-investigations and screening of contractors.
How Are Polygraph Exams for National Security Different from the Private Sector?
Polygraph exams in the private sector are very different from those used in public-sector organizations involved in national security. In the private sector, employers are limited in using lie detector tests due to the “Employee Polygraph Protection Act of 1988” (EPPA).
The EPPA has specific guidelines on how employers can utilize polygraph policies in the workplace. For instance, employers may not use lie detectors in most industries n pre-employment screening. They also can’t force an employee to take a polygraph exam. If the employer breaks the rules, they risk stiff financial penalties for their transgression.
The EPPA doesn’t apply to public sector organizations, like those involved in national security. The FBI., CIA, and NSA don’t have any limitations on using lie detector tests on employees and candidates. They’re free to use lie detectors in pre-employment screening and random and specific employee testing.
What’s the Difference Between Examiners in National Security and the Private Sector?
One of the biggest differences between polygraph exams in the private and public sectors is the examiner and how they administer the lie detector test. In private companies, the examiner may not act as an authority. They must release the examinee at any stage if they request to do so, and a failed result doesn’t impact their job status.
If an employee fails the exam, the employer may not fire them or reprimand them in any manner, or they risk breaching the EPPA. So, examiners place the employee at ease and don’t interrogate them on any questions during the test.
That’s not the case in polygraphs in organizations in the national security complex. Examiners involved in testing candidates and employees take a firmer stance against the examinee and use interrogation tactics against them to press them a lot harder during the test.
The polygraph exam in a CIA or NSA test involves two phases executed by the examiner. The first phase involves questions surrounding the candidate or employee’s SF-86 security forms and other clearance. These questions occur when the candidate or employee is unconnected from the polygraph device.
They’ll ask the examinee detailed questions regarding foreign travel and drug use, which are outlawed in private-sector exams. The second phase of the test is a lot more intensive. They hook the examinee up to the polygraph device and start a series of questions covering “lifestyle” and “national security.”
The lifestyle questions involve the examinee’s criminal history and drug use. The national security questions involve topics around involvement in terrorist activities and foreign contacts. The questions are very specific and harder than those in private sector exams.
For instance, in the private sector, the examiner might ask the examinee a question like “have you used any illegal drugs in the last three months.” However, in the national security test, the examiner extends the window much further. They might ask, “Are you withholding information concerning your involvement with illegal drugs in the last ten years?”
Examiners involved in national security polygraphs are highly-skilled interrogators undertaking advanced training in interrogation practices far beyond what private sector examiners learn in polygraph schools. CIA, NSA, and FBI polygraphers know how to make the examinee uncomfortable and press them for information if they suspect deception.
The Difference Between the Keeler Polygraph and the Modern Polygraph
During the early days of the CIA’s use of polygraph machines, the organization relied on “Keeler Polygraphs” developed by “Associated Research,” a Chicago-based firm. The most popular polygraph with the CIA was the Keeler Model #6317, used during the Korean War in the 1950s.
Model #6317 remained in service into the 1960s when CIA operatives would use it to question Cuban Nationals entering the United States. It was eventually replaced by model #6338. This Keeler polygraph became the benchmark for the CIA, along with other machines from the Stoelting company.
While these devices remained the benchmark gold standard in polygraph equipment, the 1990s saw the introduction of the modern era of software and computerized systems. The technology made its way to the polygraph industry.
Companies like Axciton Systems, Stoelting, Lafayette Instruments, and Limestone Technologies dominated the software revolution, with national security agencies switching to computerized systems in the late 1990s.
Over the last two or so decades since the invention of polygraph software and algorithms, polygraph accuracy has increased considerably. Initially, the Keeler and Stoelting models used in interrogations and screenings up to the 1990s were considered 60% to 70% accurate at detecting deception.
As a result, there were plenty of claims that these devices cost agents their jobs. They weren’t hiding anything but merely overly nervous during the exam. However, software systems improved accuracy, with the APA claiming accuracy rates of up to 87%, and some proponents of the technology, such as software developers, suggesting accuracy of up to 97%
The Introduction of The Reid Technique
While the Keeler polygraph changed CIA and national security polygraph policies, the development of questioning techniques became the defining game-changer in interrogations during the 1970s.
John E. Reid, a former police officer and psychologist invented “The Reid Technique” of questioning in the 1950s. The Reid Technique involved a 9-step process for interrogating examinees. The technique was very effective, and it wasn’t long before national security agencies, like the CIA and FBI, adopted it in their polygraph policies.
PD candidate examiners were trained in The Reid Technique at the Chicago-based “John Reid and Associates” school. This outsourcing strategy for examiner training led to off-site polygraph seminars, resulting in improved human behavioral studies and a more academic approach to using the polygraph.
Since the CIA could only send four examiners to a training session, they experienced an increasing demand for training services that the Reid school couldn’t provide. As a result, the CIA created a polygraph school to train examiners in 1984.
The program consisted of a five-week one-on-one training program. Examiners would attend this program after passing the foundational CIA polygraph course, certified by the American Polygraph Association. This nine-month APA course was intensive and well-structured.
Graduates from this program were the best-trained examiners in CIA polygraph history and were viewed as professionals solely responsible for conducting polygraph exams. Previously, field agents would conduct lie detector tests.
However, despite the advanced training, the CIA experienced a rise in complaints from candidates and agents regarding polygraph accuracy. As a result, agents developed hostility to the Polygraph Department, with agents and candidates seeing them as interrogations more than questioning sessions.
In February 1994, CIA operative, Aldrich Ames, was arrested by the CIA for selling classified information to Russian intelligence services. During his time as a double agent, Ames passed polygraphs on two separate occasions, with the exams conducted by graduates of the CIA’s polygraph school.
Post the Ames fiasco, the Polygraph Department at the CIA lost control of the school. The organization implemented additional quality control practices, and the agents responsible for conducting the test were reassigned. As a result, CIA polygraph policies were changed forever.
Despite the controversy surrounding using the Reid Technique in polygraph interrogations by national security agencies, the FBI admitted to using the technique in its questioning in 2013.
The Future of Polygraph Testing in National Security Operations
Today, the technological revolution in national security polygraph practices continues. The US Border Patrol and Customs and Immigration Department uses an AI-based polygraph system called “AVATAR.”
AVATAR assists the Border Patrol with questioning immigrants arriving in the US from high-risk countries. AVATAR supposedly has an accuracy rate of between 60% to 85%. The system can also detect the use of countermeasures during the test, such as curling the toes when answering questions.
If AVATAR flags an examinee, they’re referred to a human-based examiner for further questioning, helping to conserve US Border Patrol resources.
Are you applying for a job as a security guard, bodyguard, or some position in the security industry? Your employer will likely polygraph you as part of the hiring process. If you’re already involved in the security industry, you probably underwent a lie detector in your pre-employment assessment, but it won’t be the last time they’ll do it.
Security is a high-risk industry, and there’s a risk of loss of life in personnel and the clients and assets you protect. Criminals often recruit security personnel to look the other way when they plan robberies, assassinations, and other nefarious acts. The polygraph acts as a safeguard for the people you work with, your company, and your clients.
This post unpacks the specifics involved with polygraph policies in the security industry.
The Types of Security Firms
Several types of security firms are involved with protecting people and assets. If you want to make a career in the industry, you have plenty of options to apply your skillset. Here are a few of the most common types of security firms and their work.
Property & Asset Management
Industrial and residential properties hire security teams to protect the property from squatters, criminals, and other risks involved with property damage, theft, and loss of life. Commercial buildings involved in the manufacturing or distributing of goods often hire security teams to protect the property and the business from criminals that attempt robberies onsite.
Even empty buildings need protection. Squatters might decide to invade the property, or criminals might strip out fittings and pipework for sale on the black market or to scrapyards. There’s also a huge demand for residential security teams. High-net-worth individuals, celebrities, and even the average family might hire security teams to patrol their property or sign up for security firms like ADT.
Security is also necessary for safeguarding companies that hold valuable assets on site. For example, gold refineries, diamond dealers, and goods manufacturers require security teams to protect their people, property, and assets.
Protection Services
Business people, diplomats, government officials, and high-net-worth individuals often hire bodyguards and security teams to protect them while they travel. They might have death threats against them by psychopaths, or they could be taking the precautionary measure to ensure their safety while they attend events.
Guarding & Security Services
Private security companies offer residential protection services in areas where police response might not be adequate or fast enough to respond to emergencies. Security personnel involved in these operations respond to call-outs for home break-ins, home invasions, or prowlers on their property.
They also serve communities, patrolling neighborhoods and working with local law enforcement to ensure a safe space for residents. Security guards could also protect local businesses from robberies and angry people that enter the property looking to start trouble.
Risks to Security Services
Security defines a wide range of applications mentioned above. There’s a risk of loss of life to the security personnel, the people and assets they protect, and community safety. Security firms operate in an environment where they have to deal with a violent and non-violent criminal elements, and they need to ensure the safety of everyone falling under the umbrella of their team and services.
Is It Legal for Security Services to Polygraph Candidates & Employees?
Yes. The nature of business undertaken by security firms and personnel makes them a high-risk industry. As a result, they can implement pre-employment polygraph screening and institute random or specific on-the-job lie detector tests for their employees.
The “Employee Polygraph Protection Act of 1988” (EPPA) is legislation designed to protect employees from employer abuse and misuse of polygraph policies in the workplace. Typically, it bans employers from polygraphing their staff without good reason.
However, the EPPA has loopholes in the Act, exempting employers in high-risk industries from complying with the EPPA. As a result, employers can implement the polygraph policy they see necessary to safeguard their company’s reputation, staff, and clients.
What are the Types of Polygraph Exams Used by Security Services?
Security firms have three uses for polygraph exams in the workplace. They have the option to include pre-employment screening and specific and random lie detector tests on their employees. Let’s unpack each of these areas in detail to show you the uses of the lie detector in these processes.
Pre-Employment Screening
When a security firm hires new staff, they usually do it through a recruitment agency. The agency handles the job posting, interviewing candidates, and recommending the best applicants to the prospective employer.
The candidate will meet with the HR firm or sometimes the business’s principal, depending on the nature of the job description. After an interview to see if they’re suitable, the prospective employer will arrange a polygraph exam for the candidate.
The candidate must consent to the polygraph if the employer requests it. Unlike private-sector companies that cannot use a pre-employment polygraph, security firms can use it to weed out bad actors and criminals from joining their organizations.
They don’t have to comply with the EPPA legislation, and they can use the polygraph results to determine if they want to hire the person or reject them for the position.
Random & Specific Testing
The second and third reasons for polygraph policies in security firms involve on-the-job testing. These polygraphs can be specific or random in nature. For example, the security firm may arrange a polygraph for a bodyguard if their client experiences an assassination attempt on their life and dies in the attack.
The polygraph examiner questions the bodyguard about their potential involvement in the event to see if they have any liability. Or the employer might use the polygraph to examine a security team on duty when a warehouse they were protecting was robbed.
Employers in the security industry may also institute random polygraph policies where they test their security personnel every quarter or six months. This procedure ensures that team members aren’t planning robberies, assassinations, or selling inside information to criminal groups.
How Do Security Services Implement a Polygraph Policy?
A security firm that institutes a polygraph policy will do so by hiring an attorney to handle building the legal framework around the polygraph policy. The attorney is also responsible for handling disputes between employees and the employer regarding using the polygraph in pre-employment or employment polygraph practices.
The employer also hires an independent polygraph firm to assist with outlining and executing the polygraph policy. The company appoints a qualified examiner to work with the employer’s attorney in building the policy. For example, the examiner may draft the questions involved in the exam, ensuring they comply with labor law and are related to the nature of the reasons for the test.
What Kind of Questions Does the Examiner Ask in the Exam?
The examiner builds the questions for the polygraph exam based on the type of incident involved. They are short, closed questions requiring a simple yes-or-no answer. They are specific and unambiguous, requiring no further explanation from the examinee.
The types of questions asked in the polygraph relate to the reason for the test. For instance, the types of questions asked to a candidate may differ from an employee suspected of involvement in a robbery or assassination.
The examiner collaborates with the attorney and the employer when creating the questions to ensure they’re relevant to the test. Here’s an example of the questions the examiner might ask in a pre-employment screening lie detector test.
Have you ever been accused or charged with a crime?
Have you ever lied to an employer?
When applying for this position, did you lie on your job application or resume?
Do you intend to use your position for any other reason than those stipulated by your employer?
Have you used illegal drugs or misused or abused prescription drugs in the last six months?
Do you have any outstanding debts you’re having trouble repaying?
Have you used any countermeasures in this exam to conceal lies?
The lie detector test usually consists of five to seven questions. The polygraph examiner asks the questions, looking for signs of deception by the candidate. If they suspect deception with a specific question, they’ll repeat it to confirm their suspicions.
If the candidate cannot reasonably explain why the lie detector suspects deception, the candidate fails the test.
Can the Employer Observe the Polygraph Exam?
The employer has the right to view the lie detector test when it’s in progress. However, they must watch the polygraph exam through a two-way mirror in a separate room. Only the examiner and examinee are allowed in the exam room during the test. Introducing a third party, like the employer, to the exam room may confound the test results, leading to a false positive.
What Happens If a Security Employee Fails the Exam?
In private sector companies where employees have protection under the EPPA, the employer may not use the test results to reprimand or fire the employee. However, that’s not the case with security firms. If a security guard fails the polygraph, and the employer suspects their involvement in a crime, like a robbery or assassination, they can fire the employee.
They will also likely involve law enforcement in the case and ensure the police go after the employee and bring them to justice. Depending on the state, the court may or may not admit the polygraph results into evidence if the employee goes to a criminal trial.
How Accurate Is the Polygraph Exam?
The polygraph device is incredibly accurate, and there’s little chance that the employee will be able to conceal deception from the examiner. Experts suggest the polygraph is up to 97% accurate at detecting deception in guilty individuals.
Since security issues often involve criminal activities like robberies or assassinations, the polygraph company contracted to the employer usually sends their best examiners to conduct the test. Examiners go through up to seven years of education and training before they run a polygraph exam by themselves.
An experienced examiner may have thousands of tests under their resume, and they know the signs of deception to look for in an examiner. If the examiner suspects deception, they’ll usually review the recorded footage of the session after the exam at their office. They’ll look for body language in the examinee suggesting deception.
Typically, it takes two to three days for the examiner to file their report with the employer. After receiving the report, the employer can decide the best course of action, depending on the employee’s performance in the lie detector test.
Can Security Employees Beat the Polygraph?
It’s possible for some employees to beat the test. However, they’ll need to be a pathological liar to get around the examiner and the machine. Pathological liars don’t have the same brain connections as normal people.
They lie all the time, and they don’t feel any guilt when telling lies. Many pathological liars believe their lies, so they don’t activate the “fight-or-flight” response the examiner looks for during the test. As a result, they go undetected.
However, less than 5% of the US population are pathological liars. So, the chances of the security employee being a pathological liar are slim, and the polygraph is usually capable of sniffing out deception in an examinee that’s withholding the truth.
Understanding Countermeasures and the Polygraph
There’s also the case of “countermeasures” to consider in polygraph exams. These are strategies examinees use to minimize the fight-or-flight response under examiner questioning. There are three primary types of countermeasures – informational, physical, and drug-based.
An informational countermeasure might be looking up countermeasures on the internet with the intention of using them in the polygraph exam. A physical countermeasure might be clenching your thigh muscle, biting your tongue, or curling your toes when answering a question.
These countermeasures supposedly throw off the launch of the fight-or-flight response, providing inconclusive results to the polygraph device. Drug-based countermeasures include anti-anxiety medications like Xanax and beta-blockers used by the examinee during the test. These drugs inhibit the fight-or-flight response, confusing the lie detector.
However, the bad news for liars is that these countermeasures don’t work in the modern era of polygraphy. The software-driven systems are far more advanced than those used before the 1990s when these countermeasures were developed. There’s a good chance the examiner will catch the examinee using these countermeasures, resulting in a failed exam.
Are you an employer wondering if you can use polygraphs in your pre-employment screening process? In most cases, this practice is illegal for businesses operating in the private sector. However, there are some exemptions.
Implementing a polygraph policy seems like a confusing process for many business owners, and there are specific rules governing its use. To avoid heavy financial penalties and costly lawsuits, you must ensure compliance.
A corporate attorney can assist you with planning and executing a workplace polygraph policy within the confines of the law. Polygraphs come in three categories – pre-screening for candidates and random and specific employee testing.
This post unpacks the specifics surrounding using the pre-screening polygraph and when using it in your hiring practices is legal and illegal.
Understanding the Employee Polygraph Protection Act of 1988 (EPPA)
Employers can’t use pre-screening polygraphs on candidates because of the legislation set by the “Employee Polygraph Protection Act of 1988” (EPPA). President Ronald Reagan signed this Act into power during the final days of his second term in office in 1988.
In the years leading up to the Act, American employers issued over one million pre-employment and random or specific polygraph exams every year. However, many employers were abusing polygraphs, using them to prevent hiring people they didn’t want in their company.
These unethical practices involved the employer using the polygraph to keep people of specific ethnicities out of their company. Or they would use it to eliminate employees they felt didn’t perform on the job, with the polygraph giving them the excuse they needed to fire the employee.
The US government, specifically the Labor Department, received thousands of complaints from candidates and employees stating their employer or prospective employer was abusing their polygraph policy.
As a result, Reagan signed the EPPA legislation, creating specific rules around using polygraphs in the workplace.
Are Polygraphs Illegal in Candidate Screening Processes?
One of the biggest changes brought in by the EPPA was how employers could use polygraph policies in their hiring processes. The Act outright banned its use in employee screening. As a result, employees no longer had a tool to allow them to deny employment to specific racial or ethnic groups.
The Act remains in place today, and there are stringent rules surrounding using polygraphs in pre-employment screening processes. In general, employers cannot use the polygraph to assess new candidates to their organization unless they operate in one of the industries exempted by the EPPA.
Suppose you’re an employee going for a job interview, and your prospective employer wants you to take a polygraph exam. In that case, they must operate in one of these specified industries, which we’ll talk about in a second.
If they don’t fall into one of these categories, they may not even suggest that you have to attend a polygraph, or they’re in violation of the EPPA and subject to huge financial penalties.
Are Any Industries Exempt from the EPPA?
As mentioned, some employers are exempt from complying with the legislation surrounding the EPPA. These exemptions stem from the risk presented to the business and the community if they don’t use a polygraph exam in employee pre-screening.
Some of the exempted industries include the following.
Security and guarding companies.
High-value asset transport and storage.
Pharmaceutical manufacturing and distribution.
Let’s run through an example. The employer may use a polygraph in the hiring process for security firms that operate community patrols or bodyguarding services. The reason is that they risk hiring bad actors that might infiltrate the company to learn its systems and procedures.
They’ll sell this information to criminal organizations that use it to plan robberies, home invasions, or even assassinations. By utilizing a polygraph policy, the employer prevents hiring these unsavory operators that might cause a loss of life, assets, or reputation for the company.
It’s also important to note that agencies operating in the public sector are exempt from the EPPA. The NSA, DOD, FBI, and CIA can freely use polygraphs as they see fit without the fear of blowback from the EPPA.
The reason for this is similar to the previous example we discussed. The NSA, for example, wants to avoid hiring another Edward Snowden, who might leak sensitive government data to other parties. By using the workplace polygraph, they root out these bad actors before they have a chance to gain a foothold in the organization and create chaos.
What are the Common Questions Asked in Pre-Employment Polygraphs?
The pre-employment polygraph differs from the random or specific processes instituted for employees. If the employer qualifies to implement a workplace polygraph policy incorporating pre-employment screening, they will hire an independent polygraph company to carry out the test.
The polygraph company appoints an examiner to assist the employer with setting up the polygraph policy in compliance with the EPPA. They’ll work closely with the employer and their attorney to structure the procedure, inform the staff and candidates, and execute the lie detector tests.
One of the examiner’s tasks is creating a list of questions asked during the exam. Typically, the pre-employment screening polygraph consists of five to seven questions related to the job. The examiner may not ask questions concerning the candidate’s political affiliations, religious beliefs, or other personal information.
Let’s look at an example of the questions asked in a pre-employment screening exam for a pharmaceutical manufacturing company.
Have you ever lied to an employer?
Have you ever stolen from an employer?
Have you used illegal drugs or misused prescription drugs in the last 12 months?
Have you ever been accused or charged with a crime?
Do you intend to use your position to steal from the company?
Do you have any outstanding debts you’re struggling to pay?
Have you lied to any of the questions asked in this test?
As you can see, the questions relate to drug use, lying to an employer, or stealing from them. If the candidate has outstanding debts they can’t pay, someone might tempt them into revealing company information by bribing them so they can use the information to plan a robbery.
Can Employers Use a Failed Pre-Employment Polygraph Screening to Prevent Hiring Me?
In exempted industries and private sector businesses, employers may use the results of a failed polygraph exam to deny employment to the candidate.
For instance, if the above questions we covered were asked in a test and the employee shows deception regarding their past criminal activity, the employer may use these results as grounds to deny them employment.
The last thing the employer needs is to hire a candidate with a criminal history. They could be planning a robbery, or the police may have charged them with a drug-related crime.
If the employer brings them into their pharmaceutical manufacturing business, maybe they’ll start stealing inventory to sell on the street, to organized crime cartels, or to satisfy a personal drug habit.
Why Do Employers Use Pre-Employment Polygraphs?
The pre-employment polygraph aims to assist employers with their HR processes involving hiring new candidates for their organization. If an employer posts a job opening, they might receive hundreds of applications. The HR team whittles these into the top ten candidates best suited for the position.
After they have the shortlist, the HR team meets with the candidates and finds the people they want to employ. However, the reality is that people’s professional personas are often very different from who they are as people.
The HR team doesn’t really know who they’re dealing with. The applicant could have forged their CV, lying about their qualifications. Or they might be using family members or friends for references claiming they were previous employers.
The pre-employment polygraph prevents hiring people with deceptive tendencies that could damage the organization if they earn a post at the company. The lie detector test provides a layer of security for the company, protecting them from the potential of hiring bad actors.
What Are My Rights in Pre-Employment Polygraph Exams?
While the pre-employment polygraph acts as a screening tool for employers to avoid hiring the wrong people, there are limitations to the exam and how the examiner operates in the exam room. For instance, the examiner is not an authority figure, and they have no control over you during the lie detector test.
They cannot hold you in the exam room. If you want to leave, ask the examiner to stop the test and step out. As mentioned, the examiner may not ask you any questions involving your personal life. They’re only allowed to stick to relevant questions involved in you taking a position at the company.
The examiner may only share the test results with your prospective employer. The employer must keep a record of these exams and cannot share them with other potential employers.
What Can I Do If My Prospective Employer Violates My Rights in the Polygraph Screening Process?
If the prospective employer violates your rights during or after the polygraph process, you have a right to take legal action against them.
For instance, let’s say the HR team at company A polygraphs you, and you fail. They deny you employment, and you apply to company B for a job. Company B has a relationship with company A, and the team shares information on your failed polygraph exam.
As a result, company B tells you that you failed the polygraph with Company A, and they don’t want to employ you. In this case, you would have legal recourse to file a lawsuit against both companies.
Or the prospective employer oversteps what they ask you on the test, and the examiner starts questioning your political and union associations. In this case, they would violate the EPPA, despite being exempt from many aspects of the Act.
If you suspect the prospective employer violated the EPPA or abused their pre-employment screening process, speak to a lawyer. The lawyer will assess your cases and recommend a course of action. If they feel you have a claim, you can file a complaint with the US Labor Department, which is responsible for enforcing the EPPA.
If the Labor Department investigation reveals the employer did violate the terms of the EPPA, they will fine them up to $10,000. They may also request that the company hires you.
How Do I Prepare for a Pre-Employment Polygraph Exam?
If you’re scheduled for a pre-employment polygraph, you must prepare properly for the experience. Research the polygraph before taking the exam. By understanding more about the process, you reduce your pre-exam anxiety. Study the EPPA and know your rights, and ensure the employer follows the correct procedure per the EPPA.
Stick to your routine the day before the exam. Your nervous system will remain calm if you don’t do anything out of the ordinary, reducing the potential for pre-exam jitters and a false result on the test. Don’t drink more than our regular cup or two of coffee in the morning. Caffeine is a nervous system stimulant and primes the “fight-or-flight” response.
Try to get a good night’s sleep before the exam. Take a hot bath an hour before bed and download a guided breathing meditation. Listen to the file before you go to sleep, and you’ll find you won’t be up the whole night tossing and turning.
What Can I Expect from the Pre-Employment Polygraph Exam?
You can expect the examiner to behave like a professional when you walk into the exam room. They’ll greet you and review your rights and the test’s purpose before going over the questions they ask you in the exam.
They ensure you’re relaxed and hook you up to the lie detector machine. You’ll sit on a chair facing the side of the examiner as they start the test. The questions are in yes-or-no format, and only expand on your answers if the examiner asks you to.
After you finish the lie detector test, the examiner reviews your test data later that day. They’ll give your prospective employer the results two or three days after the test, and your employer will notify you of your results. Hopefully, everything went according to plan, and you have a new job to look forward to.
Do you own a business? Do you need to implement a polygraph policy in the workplace? You may be an employee researching more on polygraphs, and you want to know more about the legality of your boss sending you for a polygraph exam.
This post discusses when employers can use polygraph policies in the workplace and the specifics surrounding the legislation involved with its fair use.
What Is the Employee Polygraph Protection Act of 1988?
The “Employee Polygraph Protection Act of 1988” (EPPA) is legislation signed into power by Ronald Reagan in the final month of his second term in office. The EPPA prevents employers from using workplace polygraph policies in employment practices, such as pre-employment screening and random or specific cases.
Employers who want to implement a workplace polygraph policy must comply with the EPPA, or they risk violating the Act. The purpose of the EPPA is to stop employers from unjustly using polygraph exams to remove undesirable people from their organization.
For example, an employer might use a polygraph to keep people of a certain ethnicity out of their organization. This problem happened in the past, and the EPPA stopped it.
When Can a Private-Sector Employer Implement a Polygraph Policy?
A private-sector employer can implement a polygraph policy in the workplace under special circumstances. They may not use polygraphs in pre-employment screening or in random testing. However, there are exemptions in the EPPA allowing employers to use polygraph policies in the event of the following.
Experiencing a severe economic loss, such as inventory theft.
To uncover cases of fraud and embezzlement.
In sexual harassment cases.
In instances of suspected drug abuse or distribution by employees in the workplace.
Are Any Industries Exempt from the EPPA?
Some industries are exempt from the EPPA. They don’t have to comply with all the aspects of the Act due to the nature of their business. For example, nuclear power operators don’t have to abide by the EPPA concerning pre-employment, random, or specific polygraph testing. This is because these individuals work with proprietary technology in the public interest.
If a terrorist were to gain access to these facilities, they might use the opportunity to create a nuclear disaster. So, by implementing pre-employment polygraph screening, the employer can keep these bad actors out of their organization, preventing loss of life and a potential disaster that could affect millions of Americans.
These exemptions exist in companies involved in security, armored vehicle transport and asset movement, pharmaceutical manufacturing and distribution, and other sensitive industries where hiring candidates may present a threat to the company or the community.
Public-sector agencies, such as those involved in the Justice Department (US Attorney Office), national security (FBI/CIA), and others, do not have to comply with the EPPA.
How Do Employers Roll Out Employee Polygraph Policies?
If an employer decides to implement a workplace polygraph policy, they must comply with the EPPA when doing so. They cannot use the polygraph for pre-employment screening or random employee testing unless their company falls into one of the exempted categories listed by the EPPA.
However, suppose the employer is exempted or has a valid reason for implementing a polygraph policy, such as those discussed earlier. In that case, they have a right to do so. The employer starts by hiring the services of a qualified corporate attorney to assist them with handling the legal matters involved with structuring the policy.
The attorney guides the employer through the process and works with the polygraph examiner to structure the policy. The attorney is also available to protect the employer if they violate the Act and the Labor Department launches an investigation into the matter.
The employer will hire an independent polygraph company to help them structure the polygraph policy and test their employees. The examiner works closely with the attorney to plan the procedure, formulate the questions, and roll out the notification of the polygraph policy to the employees.
The examiner has a duty to the client, the employer, and the examinee (employee). They must act with the interests of both parties in mind and may not show bias toward either side. The examiner assists the employer and the employees with understanding the aspects of the EPPA involved in the test and explains to the employee their rights involved with taking the polygraph exam.
Are There Any Limitations on Employee Polygraph Exams?
An employer has certain limitations placed on instituting a workplace polygraph policy. For instance, there are limitations on when and to whom they can issue a test. One of the primary areas where the employer must adhere to constraints is in the exam format. Specifically, the limitations involve what the examiner can ask you during the lie detector test.
Before the examiner can administer the lie detector exam, your employer must read aloud the specifics of the polygraph policy and EPPA to you. They’ll also have to read aloud the questions they plan to ask you and get you to sign and date a document including the following aspects relating to the lie detector test and its execution.
The employer must provide a list of topics the examiner may not ask you about during the polygraph.
These topics include questions regarding your sexual preference, religious beliefs, racial matters, political affiliation, and lawful activities involving you with labor organizations.
The examiner and employer must inform you of your right to refuse the polygraph exam.
The employer must explain they cannot ask you to take a polygraph as a condition of employment.
The employer must explain how they’ll use the test results.
The employer must explain your legal rights regarding the test and your recourse if the employer or examiner doesn’t comply with the EPPA.
The examiner and employer have no authority over you. A private-sector polygraph is not the same as one in the public sector, and your employer cannot use it as an intimidation tactic or bully you into taking the test. During the polygraph exam, you have the right to ask the examiner to stop the test at any time, and they must comply with your request.
The examiner may not be rude or degrading to you in any manner. They must treat you with civil respect at all times. The examiner may not intimidate you during the test, and they cannot force you to reply to any of their questions using threats.
After you complete the test, the examiner will write a report on their findings and send it to your employer around two to three days later. Your employer must give you your results, but they cannot share them with anyone but you or management directly involved with your role in the company.
The employer may share the results with law enforcement if the nature of the test involves a possible criminal investigation and the exam reveals your potential involvement in it. The employer may disclose the test results in the event of receiving a court order.
The employer may not, under any circumstances, share older polygraph test results with prospective employers if they call your company asking for a reference.
Are Polygraph Results Accurate? Is there a Chance for a False Positive?
The modern polygraph is a highly accurate device. Before polygraph software and computerized systems were introduced in the 1990s, the “Keeler” polygraph was the benchmark standard for these devices. However, since it was an electromechanical device, it didn’t have the same accuracy as the modern polygraph. As a result, the machine had an accuracy rate of between 60% to 70%.
However, the introduction of algorithms and polygraph software improved test accuracy tremendously. Computer-driven polygraph machines used in the 2020s have accuracy ratings ranging between 87% to 97%. The leading software manufacturers, such as Stoelting, Axciton Systems, and Lafayette Instruments, have software that’s up to 97% accurate at detecting deception in examinees.
So, why are these systems not 100% accurate? Well, the reality is that there is still a margin of error. Polygraph machines cannot pick up deception in pathological liars. These individuals believe their lies, and they don’t experience the feeling of guilt and shame when lying.
As a result, pathological liars don’t experience the activation of the “fight-or-flight” (FoF) response initiated by the sympathetic nervous system when they lie. The examiner looks for the FoF during the lie detector test to determine if the examinee is answering deceptively.
Can My Boss Fire Me for Failing a Lie Detector Test?
Your employer cannot fire you if you fail the polygraph exam. They also may not reprimand you, remove your recent promotion or use the result to stop an imminent promotion. The employer may not use the test results to attempt to force you out of the company, and they can’t reduce your workplace experience in an attempt to get you to leave of your own accord.
These actions result in a direct violation of the EPPA, and you have a right to take legal recourse against the employer for their actions. Essentially, there is no action the employer can take against you for failing a polygraph. However, if your failure implicates you in a possible crime against the company, the employer can share their suspicions and your polygraph results with the police.
What Do I Do If I Think My Employer Violated the EPPA?
If you think your employer violated your rights under the EPPA, you can take formal legal action against them. The US Department of Labor enforces the Employee Polygraph Protection Act, and you can contact the Labor Department’s Wage and Hour Division for free advice on how to proceed.
If you feel your employer violated the EPPA, the best course of action is to speak with an attorney who can navigate the filing process with the US Labor Department on your behalf. There’s no paperwork involved with filing with the Labor Department, but an attorney can give you more advice if you can’t get ahold of a Wage and Hour Division investigator.
An attorney can also safeguard you from further employer harassment after filing with the Department. You’ll write a letter to your local Wage and Hour Division office to file a complaint. Your letter must include the name and address of your employer’s premises, your contact details, and the date the incident occurred. Remember to keep a copy of the letter for your records.
The Labor Department investigates the matter, and if they find your employer violated the Act, they are subject to a $10,000 fine for each infringement. The Department will also issue an injunction to your employer, ordering them to reinstate you if they fire you for failing the polygraph test.
The employer is also liable for any lost wages during the dismissal period. If the Labor Department’s investigation is unsatisfactory, you can use your attorney to file a lawsuit against your employer. If that’s the case, you must file the lawsuit within three years of the violation date. If you win your case, the court will usually order your employer to pay your legal fees and other costs involved with proceeding with your case.
What are the State Laws on Polygraph Exams?
The laws regarding employers’ use of polygraph exams vary from state to state. While all employees have protection under the EPPA, some states institute additional requirements for employers when designing and rolling out polygraph policies.
Some states may forbid employers from using polygraph policies at all. Just mentioning their intention to polygraph them or requesting to do so can have severe legal consequences for the firm. State coverage may have a broader reach; while Federal laws don’t apply to local government and state employees, many state statutes do.
It’s important to note that several state laws provide an employee who voluntarily submits to their employer’s request to take a polygraph exam may do so if they wish. However, these laws have safeguards for employees, requiring the employer to administer the lie detector test under approved, supervised conditions.
These employee polygraph exams must clearly stipulate how the employer intends to use the test results.
Explore More on Polygraph Policies and Employee Rights
For further insights into polygraph tests and workplace policies, explore these related articles:
Do you own a business? Do you need to implement a polygraph policy in the workplace? You may be an employee researching more on polygraphs, and you want to know more about the legality of your boss sending you for a polygraph exam.
This post discusses when employers can use polygraph policies in the workplace and the specifics surrounding the legislation involved with its fair use.
What Is the Employee Polygraph Protection Act of 1988?
The “Employee Polygraph Protection Act of 1988” (EPPA) is legislation signed into power by Ronald Reagan in the final month of his second term in office. The EPPA prevents employers from using workplace polygraph policies in employment practices, such as pre-employment screening and random or specific cases.
Employers who want to implement a workplace polygraph policy must comply with the EPPA, or they risk violating the Act. The purpose of the EPPA is to stop employers from unjustly using polygraph exams to remove undesirable people from their organization.
For example, an employer might use a polygraph to keep people of a certain ethnicity out of their organization. This problem happened in the past, and the EPPA stopped it.
When Can a Private-Sector Employer Implement a Polygraph Policy?
A private-sector employer can implement a polygraph policy in the workplace under special circumstances. They may not use polygraphs in pre-employment screening or in random testing. However, there are exemptions in the EPPA allowing employers to use polygraph policies in the event of the following.
Experiencing a severe economic loss, such as inventory theft.
To uncover cases of fraud and embezzlement.
In sexual harassment cases.
In instances of suspected drug abuse or distribution by employees in the workplace.
Are Any Industries Exempt from the EPPA?
Some industries are exempt from the EPPA. They don’t have to comply with all the aspects of the Act due to the nature of their business. For example, nuclear power operators don’t have to abide by the EPPA concerning pre-employment, random, or specific polygraph testing. This is because these individuals work with proprietary technology in the public interest.
If a terrorist were to gain access to these facilities, they might use the opportunity to create a nuclear disaster. So, by implementing pre-employment polygraph screening, the employer can keep these bad actors out of their organization, preventing loss of life and a potential disaster that could affect millions of Americans.
These exemptions exist in companies involved in security, armored vehicle transport and asset movement, pharmaceutical manufacturing and distribution, and other sensitive industries where hiring candidates may present a threat to the company or the community.
Public-sector agencies, such as those involved in the Justice Department (US Attorney Office), national security (FBI/CIA), and others, do not have to comply with the EPPA.
How Do Employers Roll Out Employee Polygraph Policies?
If an employer decides to implement a workplace polygraph policy, they must comply with the EPPA when doing so. They cannot use the polygraph for pre-employment screening or random employee testing unless their company falls into one of the exempted categories listed by the EPPA.
However, suppose the employer is exempted or has a valid reason for implementing a polygraph policy, such as those discussed earlier. In that case, they have a right to do so. The employer starts by hiring the services of a qualified corporate attorney to assist them with handling the legal matters involved with structuring the policy.
The attorney guides the employer through the process and works with the polygraph examiner to structure the policy. The attorney is also available to protect the employer if they violate the Act and the Labor Department launches an investigation into the matter.
The employer will hire an independent polygraph company to help them structure the polygraph policy and test their employees. The examiner works closely with the attorney to plan the procedure, formulate the questions, and roll out the notification of the polygraph policy to the employees.
The examiner has a duty to the client, the employer, and the examinee (employee). They must act with the interests of both parties in mind and may not show bias toward either side. The examiner assists the employer and the employees with understanding the aspects of the EPPA involved in the test and explains to the employee their rights involved with taking the polygraph exam.
Are There Any Limitations on Employee Polygraph Exams?
An employer has certain limitations placed on instituting a workplace polygraph policy. For instance, there are limitations on when and to whom they can issue a test. One of the primary areas where the employer must adhere to constraints is in the exam format. Specifically, the limitations involve what the examiner can ask you during the lie detector test.
Before the examiner can administer the lie detector exam, your employer must read aloud the specifics of the polygraph policy and EPPA to you. They’ll also have to read aloud the questions they plan to ask you and get you to sign and date a document including the following aspects relating to the lie detector test and its execution.
The employer must provide a list of topics the examiner may not ask you about during the polygraph.
These topics include questions regarding your sexual preference, religious beliefs, racial matters, political affiliation, and lawful activities involving you with labor organizations.
The examiner and employer must inform you of your right to refuse the polygraph exam.
The employer must explain they cannot ask you to take a polygraph as a condition of employment.
The employer must explain how they’ll use the test results.
The employer must explain your legal rights regarding the test and your recourse if the employer or examiner doesn’t comply with the EPPA.
The examiner and employer have no authority over you. A private-sector polygraph is not the same as one in the public sector, and your employer cannot use it as an intimidation tactic or bully you into taking the test. During the polygraph exam, you have the right to ask the examiner to stop the test at any time, and they must comply with your request.
The examiner may not be rude or degrading to you in any manner. They must treat you with civil respect at all times. The examiner may not intimidate you during the test, and they cannot force you to reply to any of their questions using threats.
After you complete the test, the examiner will write a report on their findings and send it to your employer around two to three days later. Your employer must give you your results, but they cannot share them with anyone but you or management directly involved with your role in the company.
The employer may share the results with law enforcement if the nature of the test involves a possible criminal investigation and the exam reveals your potential involvement in it. The employer may disclose the test results in the event of receiving a court order.
The employer may not, under any circumstances, share older polygraph test results with prospective employers if they call your company asking for a reference.
Are Polygraph Results Accurate? Is there a Chance for a False Positive?
The modern polygraph is a highly accurate device. Before polygraph software and computerized systems were introduced in the 1990s, the “Keeler” polygraph was the benchmark standard for these devices. However, since it was an electromechanical device, it didn’t have the same accuracy as the modern polygraph. As a result, the machine had an accuracy rate of between 60% to 70%.
However, the introduction of algorithms and polygraph software improved test accuracy tremendously. Computer-driven polygraph machines used in the 2020s have accuracy ratings ranging between 87% to 97%. The leading software manufacturers, such as Stoelting, Axciton Systems, and Lafayette Instruments, have software that’s up to 97% accurate at detecting deception in examinees.
So, why are these systems not 100% accurate? Well, the reality is that there is still a margin of error. Polygraph machines cannot pick up deception in pathological liars. These individuals believe their lies, and they don’t experience the feeling of guilt and shame when lying.
As a result, pathological liars don’t experience the activation of the “fight-or-flight” (FoF) response initiated by the sympathetic nervous system when they lie. The examiner looks for the FoF during the lie detector test to determine if the examinee is answering deceptively.
Can My Boss Fire Me for Failing a Lie Detector Test?
Your employer cannot fire you if you fail the polygraph exam. They also may not reprimand you, remove your recent promotion or use the result to stop an imminent promotion. The employer may not use the test results to attempt to force you out of the company, and they can’t reduce your workplace experience in an attempt to get you to leave of your own accord.
These actions result in a direct violation of the EPPA, and you have a right to take legal recourse against the employer for their actions. Essentially, there is no action the employer can take against you for failing a polygraph. However, if your failure implicates you in a possible crime against the company, the employer can share their suspicions and your polygraph results with the police.
What Do I Do If I Think My Employer Violated the EPPA?
If you think your employer violated your rights under the EPPA, you can take formal legal action against them. The US Department of Labor enforces the Employee Polygraph Protection Act, and you can contact the Labor Department’s Wage and Hour Division for free advice on how to proceed.
If you feel your employer violated the EPPA, the best course of action is to speak with an attorney who can navigate the filing process with the US Labor Department on your behalf. There’s no paperwork involved with filing with the Labor Department, but an attorney can give you more advice if you can’t get ahold of a Wage and Hour Division investigator.
An attorney can also safeguard you from further employer harassment after filing with the Department. You’ll write a letter to your local Wage and Hour Division office to file a complaint. Your letter must include the name and address of your employer’s premises, your contact details, and the date the incident occurred. Remember to keep a copy of the letter for your records.
The Labor Department investigates the matter, and if they find your employer violated the Act, they are subject to a $10,000 fine for each infringement. The Department will also issue an injunction to your employer, ordering them to reinstate you if they fire you for failing the polygraph test.
The employer is also liable for any lost wages during the dismissal period. If the Labor Department’s investigation is unsatisfactory, you can use your attorney to file a lawsuit against your employer. If that’s the case, you must file the lawsuit within three years of the violation date. If you win your case, the court will usually order your employer to pay your legal fees and other costs involved with proceeding with your case.
What are the State Laws on Polygraph Exams?
The laws regarding employers’ use of polygraph exams vary from state to state. While all employees have protection under the EPPA, some states institute additional requirements for employers when designing and rolling out polygraph policies.
Some states may forbid employers from using polygraph policies at all. Just mentioning their intention to polygraph them or requesting to do so can have severe legal consequences for the firm. State coverage may have a broader reach; while Federal laws don’t apply to local government and state employees, many state statutes do.
It’s important to note that several state laws provide an employee who voluntarily submits to their employer’s request to take a polygraph exam may do so if they wish. However, these laws have safeguards for employees, requiring the employer to administer the lie detector test under approved, supervised conditions.
These employee polygraph exams must clearly stipulate how the employer intends to use the test results.
Strategic Uses of Polygraph Tests in Sex Crime Defense
Pretrial Negotiations Polygraph tests can be useful in pretrial negotiations. If the defendant passes a polygraph test, these results can be presented to the prosecutor to argue for case dismissal or reduced charges. This strategy can be effective in demonstrating the defendant’s willingness to prove their innocence.
Supporting Alibi Evidence Polygraph tests can help corroborate the defendant’s alibi. If the defendant passes the test, it can add credibility to their claim of being elsewhere during the crime, potentially leading to case dismissal or acquittal.
Multiple Tests for Enhanced Credibility Conducting multiple polygraph tests, including those administered by a polygrapher chosen by the prosecutor, can enhance the credibility of the results. Consistent results across different tests can significantly strengthen the defense.
Pretrial Motions and HearingsPolygraph results can be used during pretrial motions to influence decisions on bail, suppression of evidence, or other procedural issues. Demonstrating the defendant’s truthfulness can positively impact these decisions.
Mitigating Sentencing If the defendant is found guilty, polygraph results can be presented during sentencing to argue for leniency. Showing that the defendant was truthful about certain aspects of the case can lead to a reduced sentence.
Guiding Investigative Efforts Passing a polygraph test can prompt law enforcement to investigate other leads or suspects, potentially uncovering new evidence that may exonerate the defendant.
Rehabilitating Witness Credibility Key defense witnesses may also undergo polygraph tests to bolster their credibility. If a witness passes a polygraph, it can strengthen their testimony and support the defense case.
Public Perception and Media Influence In high-profile cases, sharing polygraph results with the media can shape public perception and potentially influence the prosecutor’s decisions. Demonstrating the defendant’s willingness to take and pass a polygraph test can sway public opinion.
Addressing Specific Allegations Polygraph tests can clarify specific allegations within broader charges. For example, in cases with multiple accusations, a polygraph can help determine the defendant’s truthfulness on specific points, aiding in a multi-faceted defense strategy.
Confirming Witness Statements Polygraph tests can verify the reliability of witness statements that support the defense, providing additional evidence to back up the defense’s claims.
Real Cases Involving Polygraph Tests in Sex Crimes
Polygraph tests have been used in various sex crime cases to aid in defense strategies, providing significant insights and sometimes influencing the outcomes. Here are some notable real cases where polygraph tests played a role:
Michigan Defendant (2022): In Michigan, defendants charged with sexual crimes have the right to request a polygraph test. These tests can be crucial for negotiating plea deals or potentially dismissing charges if the results indicate truthfulness. For instance, in one case, a defendant’s willingness to take and pass a polygraph test led to the prosecutor considering case dismissal, demonstrating the potential power of these tests in pretrial negotiations (Source: Nicole Blank Becker, Michigan Criminal Lawyers Blog).
Case of a Utah Defendant (2023): In Utah, polygraph tests are commonly used during sex crime investigations. These tests can influence pretrial motions and plea negotiations. In one instance, a defendant’s successful polygraph test contributed to the defense strategy, aiding in securing a more favorable outcome (Source: Wasatch Defense Lawyers).
California Case Law: In California, while polygraph tests are not admissible in court unless both parties agree, they are still used strategically. For example, a defendant in a high-profile case used polygraph results to negotiate a reduced charge after the initial test indicated innocence. The results persuaded the prosecutor to reconsider the charges (Source: EG Attorneys).
Post-Conviction Polygraph in Colorado: Post-conviction polygraph tests are used in Colorado as part of the sex offender management program. These tests help assess ongoing risk and ensure compliance with probation terms. In one case, a convicted offender’s polygraph results revealed additional high-risk behaviors, leading to enhanced supervision measures (Source: National Institute of Justice).
Full Disclosure Polygraph Examination: In another case, a convicted sex offender in New York underwent a full disclosure polygraph examination, which revealed a broader history of criminal sexual behavior. This information was crucial for determining the appropriate level of supervision and treatment, highlighting the polygraph’s role in post-conviction management (Source: National Institute of Justice).
Parental Risk Assessment: In Massachusetts, a parental risk assessment polygraph was used to evaluate a convicted sex offender’s risk to their children. The results influenced the court’s decision on custody and visitation rights, ensuring the safety of the children involved (Source: National Institute of Justice).
Washington State Case: In Washington, a defendant accused of sexual assault used a private polygraph test to support their alibi. The test results, indicating truthfulness, were presented to the prosecutor and played a significant role in the decision to drop the charges (Source: Vindicate Law).
Texas Sex Offender Management: In Texas, polygraph tests are integral to managing sex offenders on probation. One case involved an offender whose polygraph results disclosed new information about past offenses, leading to stricter probation conditions and enhanced community protection (Source: National Institute of Justice).
Florida Case: In Florida, a defendant used polygraph test results to negotiate a plea deal after the results indicated deception on certain charges. This strategy avoided a potentially harsher sentence by acknowledging guilt on lesser charges (Source: Shouse Law Group).
Wisconsin Post-Conviction Polygraph: In Wisconsin, a post-conviction polygraph test helped authorities determine the level of risk posed by a sex offender, revealing undisclosed offenses and guiding treatment and supervision decisions (Source: National Institute of Justice).
These cases demonstrate the diverse applications of polygraph tests in sex crime defenses, from pretrial negotiations and plea deals to post-conviction management and risk assessment. While their admissibility in court is limited, polygraph tests can provide valuable leverage and insights in the criminal justice process.
Challenges and Considerations
While polygraph tests can be beneficial, they are not without challenges. The results are subject to interpretation and can yield false positives or negatives. Moreover, polygraph results are not always admissible in court, and their reliability can be questioned.
In conclusion, polygraph tests can be a strategic tool in sex crime defenses, providing opportunities to demonstrate innocence, support alibi claims, and influence pretrial decisions. However, their use requires careful consideration of the potential benefits and limitations. When used judiciously, polygraph tests can significantly impact the outcome of sex crime cases.
Polygraph tests can serve as a strategic tool in various stages of a criminal defense case. Here are ten compelling reasons to consider using a polygraph test:
1. Pretrial Dismissal
Early Testing for Dismissal: Conduct a polygraph test early in the process to present results to the prosecutor for potential case dismissal.
2. Negotiating Plea Bargains
Leveraging Test Results: Use polygraph results to negotiate reduced charges or more favorable sentencing terms.
3. Persuading the Prosecutor
Multiple Tests for Credibility: Offer multiple tests, including those by a prosecutor-chosen polygrapher, to enhance result credibility.
4. Supporting Alibi Evidence
Corroborating Alibi: Use polygraph tests to support your client’s alibi, adding weight to their statements and potentially leading to case dismissal or acquittal.
5. Pretrial Motions and Hearings
Influencing Pretrial Decisions: Present polygraph results during pretrial motions to influence decisions on bail, suppression of evidence, or other procedural matters.
6. Mitigating Sentencing
Leniency in Sentencing: Use polygraph results to argue for a more lenient sentence by demonstrating your client’s truthfulness about specific aspects of the case.
7. Investigative Leads
Guiding Further Investigation: Use polygraph tests to prompt law enforcement to explore other leads or suspects, potentially uncovering new exonerating evidence.
8. Rehabilitating Witness Credibility
Enhancing Testimony: Subject witnesses to polygraph tests to bolster their credibility, strengthening your client’s case.
9. Public Perception and Media Influence
Shaping Public Opinion: Share polygraph results with the media in high-profile cases to shape public perception and influence the prosecutor’s decisions.
10. Addressing Specific Allegations
Clarifying Allegations: Use polygraph tests to address specific allegations within a broader case, clarifying your client’s truthfulness on certain points.
11. Confirming Witness Statements
Verification of Witness Accounts: Use polygraph tests to confirm the reliability of witness statements that support your client’s defense.
12. Strengthening Defense Strategy
Guiding Legal Strategy: Use polygraph results to guide your defense strategy, deciding whether to pursue certain lines of argument or evidence.
13. Deterring False Testimonies
Preventing False Accusations: Use polygraph tests to deter false testimonies from being presented by showing a willingness to test their veracity.
14. Enhancing Negotiations with Insurance Companies
Insurance Claims: In cases involving insurance claims, use polygraph tests to enhance negotiations by demonstrating your client’s honesty.
15. Post-Conviction Relief
Supporting Appeals: Use polygraph results to support post-conviction relief efforts, demonstrating potential innocence or mitigating factors.
16. Confirming Compliance with Court Orders
Compliance Checks: Use polygraph tests to confirm compliance with court orders, such as restraining orders or parole conditions.
17. Rebuilding Reputation
Restoring Public Image: In cases where public perception is critical, use polygraph results to help rebuild your client’s reputation.
18. Securing Bail
Bail Hearings: Present polygraph results during bail hearings to argue for your client’s release on bail.
19. Supporting Psychological Assessments
Mental Health Evaluations: Use polygraph results to support psychological assessments, demonstrating your client’s state of mind during the alleged crime.
20. Verifying Character References
Character Witnesses: Use polygraph tests to verify the reliability of character witnesses, strengthening their testimony in court.
These multiple reasons highlight the strategic use of polygraph tests in criminal defense cases, providing various avenues to support your client’s case and potentially achieve more favorable outcomes.
Contact Us for Legal Defense Polygraph Services
Are you in need of a polygraph test for a criminal defense case? Our experienced team is here to help. We offer comprehensive polygraph testing services to support your legal defense strategies. Contact us today to schedule a consultation and learn how our services can benefit your case.
Why Choose Our Legal Defense Polygraph Services?
When facing criminal charges, the stakes are high, and every piece of evidence can make a significant difference. Polygraph tests, commonly known as lie detector tests, can be a powerful tool in criminal defense cases. Our legal defense polygraph services are designed to provide accurate, reliable results that can support your defense strategy in various ways.
Our Expertise
Our polygraph examiners are certified professionals with extensive experience in conducting polygraph tests for legal purposes. We understand the intricacies of the legal system and the critical role that accurate and reliable polygraph results can play in a criminal defense case. Our team is dedicated to providing discreet, professional services in a safe, neutral setting.
Our Services
1. Individual Polygraph Tests: Tailored for single clients, this test helps to establish individual truthfulness in relation to specific incidents or allegations.
2. Couple Polygraph Tests: Designed for cases involving two people, such as co-defendants or partners, to assess their statements about shared incidents.
3. Group Polygraph Tests: Suitable for groups of three or more, this service is ideal for cases involving multiple suspects or witnesses, providing a comprehensive assessment of each individual’s truthfulness.
Why Choose Us?
Certified Professionals: Our examiners are fully certified and have years of experience in conducting polygraph tests for legal purposes.
Reliable and Accurate Results: We use state-of-the-art equipment and proven methodologies to ensure the highest accuracy in our test results.
Confidential and Discreet: We maintain strict confidentiality and conduct tests in a secure, neutral environment to ensure the comfort and privacy of our clients.
Comprehensive Support: From initial consultation to final report, we provide comprehensive support throughout the polygraph testing process.
During the consultation, we will discuss the details of your case, determine the appropriate type of polygraph test, and schedule a convenient time for the examination. Our goal is to provide you with the support and resources you need to effectively utilize polygraph testing in your defense strategy.
Polygraph tests can be a valuable tool in criminal defense, providing critical information that can influence the outcome of a case. At Lie Detector Test we offer comprehensive polygraph testing services designed to support your legal defense strategies. Contact us today to learn more about how our services can benefit your case and to schedule a consultation with our experienced team.
If you’re a defendant in a case, your attorneys will meet with the presiding judge to iron out the details before you go to court. This pre-trial phase occurs in both civil and criminal proceedings, giving the defendant a chance to negotiate a satisfactory outcome to the matter without going to court.
The polygraph may play a role in civil and criminal matters involving pre-trial conferences. For instance, in a divorce case, the polygraph could be used to prove marital fidelity. Or in criminal cases, the lie detector test could serve as a means to support the defendant’s claim that they didn’t commit the crime they’re charged with.
The polygraph can only occur if the party is willing to do so and requests it. A private polygraph examiner conducts these pre-trial polygraph tests. In a criminal case, the examiner will conduct the polygraph and ask the defendant questions relating to their involvement in the crime.
If the defendant shows no deception during the exam and it supports their statement of events, the attorney can present the polygraph results to the presiding judge. The judge can use these results and other supporting evidence as grounds to dismiss the case.
While the lie detector test results are useful in pre-trial, many states do not permit them as admissible evidence if the case goes to trial. However, some states will allow for the admissibility of polygraph results if the defense attorney and prosecutor agree to admit them into evidence. The polygraph results will have to corroborate other evidence in the case to do so.
There are three instances where requesting a private polygraph exam may benefit your case strategy.
When attempting to get a charge dismissed by the judge in the pre-trial phase.
To persuade a prosecutor into agreeing to have the state process a follow-up lie detector test.
To plead no contest to the charges or enter a plea agreement.
Undergoing a professional, independent polygraph during the pre-trial phase may mitigate the stress involved with going to trial for both parties involved in the case. If the examinee passes the lie detector, it lessens the doubt of an inaccurate testimony for witnesses and victims involved in the proceedings.
In several instances, attorneys can request polygraph tests for their clients in criminal cases. Some of these include the following.
Pre-trial negotiations.
Verification of witness and victim statements.
Sentencing and plea bargaining.
In the monitoring and treatment of sex offenders.
The police services also find the application of polygraph exams useful. Lie detector results can provide guidance on whether to charge an individual in parole interviews and during internal investigations involving officer misconduct.
The polygraph serves a vital role in law enforcement applications and pre-trial phases where they resolve issues preventing the need to go to trial. As a result, the state saves on resource allocation, benefiting the parties involved and the taxpayer.
What States Allow Polygraph Results as Admissible Evidence in Court?
Can you use the results in court if you take a pre-trial polygraph? As mentioned, most states don’t allow for the admissibility of polygraph results as evidence in a jury trial. It’s important to note that a polygraph should not defer the defendant’s right to a trial.
According to the United States Supreme Court, the question of admissibility regarding polygraph results relies on the individual jurisdictions’ decision. Some court districts may permit the admission of polygraph evidence in specific proceedings or when the parties agree to its admissibility in hearings.
Across America, 28, including Pennsylvania, forbid the admission of lie detector results as evidence in court proceedings. 18 states, including New Jersey, limit the admissibility of polygraph test results in court proceedings to cases where both parties agree to it.
However, the stipulation in admitting the test results as evidence would likely not occur due to the outcome of the test impeding either the defense or prosecution’s case in court. The defense and prosecution must enter into the agreement with full knowledge of the consequences involved and the right to refuse the admissibility of the polygraph results as evidence.
If the parties agree to the polygraph exam, it must occur through a qualified, certified, independent polygraph examiner with no bias to either party involved in the case. The examiner must conduct the test using standardized polygraph techniques.
The states that might sometimes allow for the admission of polygraph results in criminal cases include the following.
Alabama
Arizona
Arkansas
California
Delaware
Georgia
Idaho
Indiana
Iowa
Kansas
Nevada
New Jersey
New Mexico
North Dakota
Ohio
Utah
Washington
Wyoming
Every jurisdiction must be assessed to determine the standards of admissibility. Some courts will permit the introduction of polygraph results as evidence, while others won’t. The defendant’s attorney will make the inquiry and negotiate in situations where polygraph results may be permissible as evidence in court.
However, it’s more common for the polygraph to feature in the pre-trial phase rather than the trial itself. For instance, in the civil trial of O.J. Simpson, polygraph results were admitted into evidence. This action resulted in establishing a new precedent across America regarding the permissibility of polygraph exam results in civil trials, such as those involving divorces.
When Can I Use a Pre-Trial Polygraph?
There are several instances where it may benefit the defendant to request a pre-trial polygraph. While it’s not always to prove innocence, taking a lie detector can assist with minimizing sentencing or convincing the state to negotiate a plea bargain. Let’s look at some of the reasons why you should request a polygraph exam during the pre-trial phase.
Can I Take a Polygraph to Avoid or Reduce Charges Against Me?
If you want the prosecuting attorney to drop or reduce charges in your case, you’ll need to agree to take the lie detector test early in the proceedings. Typically, the polygraph is taken before the authorities file charges or during the pre-trial phase.
If you take the polygraph and it indicates no deception, i.e., you’re telling the truth, your attorney may approach the prosecutor and show them the test results to prove your factual innocence in the matter. If the prosecutor finds the results compelling, they may decide to withdraw the case against you and dismiss all charges.
In most instances, prosecutors will take this route because they don’t want to pursue charges against someone innocent of a crime. Sometimes, the prosecutor may not be convinced that the lie detector results prove your innocence. Still, they may decide to reduce the severity and number of charges against you.
Can I Take a Pre-Trial Polygraph to Convince the Prosecutor?
The pre-trial polygraph exam can influence the prosecutor’s decision to drop the charges, or they might not believe the lie detector test results and continue with the case against you without altering the charges.
In this occurrence, the defense attorney would reapproach the prosecutor and ask for their office to conduct a second polygraph exam to substantiate the results of the first lie detector test.
In some instances, the prosecutor may change their opinion if their office conducts the test. They may have access to a polygraph examiner they trust more than an independent professional.
Suppose the state polygraph examiner concurs with the original results, agreeing you’re innocent of the charges. In that case, there’s a chance that the prosecutor may consider these findings with more clarity and weight, dismissing the case or reducing the severity of charges.
Can I Take a Polygraph to Negotiate a Plea Bargain?
There are instances where the defendant may undertake the polygraph but fail the lie detector test. The results imply that the defendant is guilty of the crime, giving them the opportunity to enter into a plea bargain with the prosecutor’s office.
As a result, the defendant may plead no contest or guilty to the crime to receive a reduced charge and a lesser sentence from the court. This strategy may prevent the need to go to trial, or it might prevent the defendant from being found guilty on other, more severe, charges.
What Happens If I Fail a Pre-Trial Polygraph?
If the defendant agrees to the pre-trail polygraph and fails the results of the lie detector test, the attorney or examiner doesn’t have to submit the results to the police of the prosecutor’s office. The defense attorney can carry on with their case preparations as if the polygraph exam never occurred.
The examiner is not obligated to step forward and present the test results to the authorities or the prosecutor. This is why the pre-trial lie detector test is often referred to as a “private” polygraph. In some cases, the courts can order a private polygraph exam in a criminal case.
According to the law, the results of a private polygraph exam may only be admitted into evidence if both the defense attorney and prosecutor agree on it.
Do Pre-Trial Polygraph Results Count as Admissible Evidence in Court?
According to the law, polygraph exam results may only be introduced into evidence if they meet specific criteria. The prosecutor and the defense attorney must agree on the admissibility of the test results to have them presented as evidence during the trial.
The same rules apply to the following information regarding the polygraph exam results and the following information.
The polygraph examiners’ opinion of the test results and their thoughts surrounding the defendant’s deception or honesty.
The fact that the defendant or a witness involved in the case offered to take a polygraph of their own free will to prove their innocence or testimony.
The fact that the defendant in the trial, or a witness, refused to take the polygraph exam, or if they produced a failed result during the lie detector test.
Or the fact that the defendant or a witness in the case submitted to, or requested, a polygraph exam.
Can I Take a Pre-Trail Polygraph if I’m In Prison?
The defendant can request a lie detector test from jail. However, in this scenario, the defense attorney would need to obtain a court order for the polygraph exam. They would also need to work with the county jail or state prison to organize and orchestrate the private polygraph test in a suitable venue within the institution.
The attorney would need to arrange for an independent polygraph company to appoint an examiner to conduct the test and qualify its results. The costs of the private polygraph exam would go to the defendant, and the prosecuting authority would only have to incur costs if they want their office to conduct the test using a polygraph examiner from their team.
Can Attorneys Present Polygraph Results as Exculpatory Evidence?
Unfortunately, defendants in criminal cases don’t have a constitutional right to present the results of a polygraph exam as exculpatory evidence in a trial or during a pre-trial negotiation. There are two things to note about polygraph results counting as exculpatory evidence.
The first is that exculpatory evidence clears the defendant of any guilt regarding the charges brought against them. The second is that the US Constitution states that the defendant has the right to present a defense to the prosecutor and the court.
However, despite the above terms, the United States Supreme Court ruled that defendants have no constitutional right to introduce polygraph results as evidence in trials.
Why Do Courts Not Permit Polygraph Results as Evidence During Trials?
This ruling from the Supreme Court denying the defendant to admit polygraph results in trials remains in place even if the polygraph exam presents results suggesting the defendant is not guilty of the crime. The reason for establishing this rule is that the court views polygraph results as unreliable, and there is room for error.
However, it’s important to note that this ruling was traced back to the case of Frye Vs. the United States in 1923. The District Columbia Court rejected polygraph results as admissible evidence in court. Interestingly, polygraph technology has progressed significantly in the last century. Yet, the court refuses to budge on its stance against using lie detector test results as trial evidence.
According to the American Polygraph Association (APA), the polygraph is up to 87% accurate at detecting deception in examinees. Polygraph software developers claim their products are up to 97% accurate. So, why are lie detector results not admissible as evidence in court?
This post looks into the aspect of circumstantial evidence as it relates to the lie detector results. We’ll examine court rulings and case studies to give you the history of how the American Justice System views the relevancy of polygraph results.
Understanding the Federal Rules of Evidence
Let’s start by unpacking the admissibility of polygraph results per the Federal Rules of Evidence. According to the courts, lie detector results are admissible evidence, provided they meet the “Daubert standard.” The Federal Judge makes the decision on whether the lie detector results match up to these criteria since they act as a gatekeeper of admissibility regarding the Federal Rules of Evidence.
The introduction of polygraph software dramatically increased the accuracy of lie detector results. Studies published in peer-reviewed journals show the results of these advances. They argue that they meet the criteria of the Daubert standard, opening the move for renewed review of the inadmissibility rules.
Since 2009, 18 states have adopted the Daubert standard of polygraph results admissibility, with the judicial door swung open for others to follow. Federal and most state courts using the Frye standard have since denied the admissibility of polygraph results as evidence in court, with the exception of New Mexico.
19 States admit results of polygraph exams under stipulation by the prosecution and defense involved in the case. New Mexico permits the use of lie detector results without stipulations but under strict rules or evidence.
Daubert & The Supreme Court
In 1993, 70 years after the District of Columbia court ruled on the Frye standard, the US Supreme Court revisited it. The case of Daubert v. Merrell Dow Pharmaceuticals, Inc. saw the issuance of another milestone decision affecting expert testimony and its admissibility, which includes polygraph exam results.
Under the specific standard of the US Supreme Court in Daubert, the court’s ruling antiquated the Frye “general acceptance” standard with the following.
According to Rule 104(a), the judge must undertake a pre-trial assessment of the scientific viability of the testimony and its underlying methodology or reasoning. The results must be applicable to the facts involved in the case.
Considerations involved in this decision are whether the technique in question has been and can be tested. The method must be subject to a peer review and its publication, its potential or known error rate, and the maintenance and existence of standards of operation. The methodology must also have wide acceptance within the scientific community.
The ruling also states the cross-examination of evidence, presentation of contrary evidence, and instruction on the burden of proof, are appropriate rather than uncompromising “general acceptance” standards.
“General acceptance” is not a required precondition to the admissibility of testimony or polygraph results under the Federal Rules of Evidence. Rather the Rules of Evidence, namely Rule 702, assigns the judge the responsibility of ensuring expert testimony is reliable and relevant to the case. Pertinent evidence based on valid scientific principles satisfies these demands.
Examiner Validation
So, attorneys must ensure the polygraph examiner hired to conduct the lie detector test has formal training in polygraph techniques validated by published peer-reviewed scientific research.
This validation requires a minimum of two independent peer-reviewed studies published in journals. The court prefers the use of field studies over lab studies because lab studies are not transferrable to real-world situations.
The Admissibility of Psychophysiological Veracity Examinations
Psychophysiological Veracity Exams using the lie detector are available for use in civil and criminal cases involving Motions to Suppress Evidence, Plea Bargaining, Settlements, Supporting Evidence, Sentencing, Arbitration, Parole and Probation, and other Civil Actions.
Since the Daubert decision, judges have been more willing to accept polygraph results into evidence without a jury, especially during pre-trial and post-trial hearings.
The defense lawyer intending to introduce polygraph exam results as evidence in court on behalf of their client must understand the supersedence of the Frye standard to the Federal Rules of Evidence set by Daubert v. Merrill Dow Pharmaceuticals. Inc., which is only an invitation for forensic psychophysiology to demonstrate its worthiness of acceptance in court.
Therefore the attorney presenting to the court must introduce a well-prepared and competent polygraph examiner with formal training in certified and validated polygraph techniques. The testimony of a foundational expert must precede the examiner’s expert testimony, and a qualified and experienced quality control reviewer must confirm polygraph results.
Case Citations Involving the Introduction of Polygraph Results into Evidence
US v. Piccinonna 885 F.2d 1529 (11th Cir. 1989). Also note US vs. Henderson (11th Cir. 2005) 409 F.3d 1293, 1303.
US vs. Posado (5th Cir. 1995) WL 368417 (admission at the suppression pre-trial hearing).
US vs. William Galbreth, 908 F. Supp. 877, 64 USLW 2260, 43 Fed. R. Evid. Serv 585, 4 Oct 1995.
US vs. Richard Ridling, 350 F. Supp. 90 (E.D. Mich 1972)
US vs. David Crumby, 895 Fed Supp 1354 (DC AR. 1995).
US vs. Lee, 315 F.3d 206 (3d Cir. 2003). Polygraph exam results are permitted as a condition of supervised release at the discretion of the defendant’s probation officer.
US vs. Locke, 482 F.3d 764 (5th Cir. 2007). Polygraph exams as a condition of probation in a child pornography case.
US vs. Stoterau, 524 F.3d 988, 1003 (9th Cir. 2008). Polygraph examination as a condition of parole doesn’t infringe on the defendant’s Fifth Amendment rights. Defendants retain their 5th Amendment rights during the polygraph exam.
Ohio vs. Sahil Sharma. CR 06-09-3248 (2009). Polygraph results admitted over objections with refusal to overturn the ruling.
People vs. Wilkinson (122 Cal. Rprt.2d 703). The California Appeals court ruled that expert polygraph foundation testimony must be permitted in criminal trials.
State vs. Dorsey, 539 P.2d 204 (New Mexico, 1975).
People vs. Kenney, 3 N.Y.S.2d 348, 167 Misc. 51 (Queens County Ct. 1938).
People vs. Daniels, 422 NYS2d. 832, 102 Misc 2d 540 (1979). Polygraph results admitted over objections.
People vs. Glenn Battle, Justice Lewis Douglass, NYS Supreme Court. Polygraph results admitted over objections.
People vs. Vernon, 391 NYS 2d 959 (1977).
Patterson vs. State, 633 S. W. 2d 549 (Tex.Cr.App. 1982).
Kumbo Tire Company, Ltd, et al. vs. Patrick Carmichael, 526 US 137 (1999). The court added that the Federal judge has the “gatekeeping” role under Rule 702, which extends to expert testimony, including soft science experts. They are subject to pre-trial Daubert issues similar to data-based science.
William Davis vs. The People of the State of New York: County of Erie Office of Children and Family Services Administrative Law Judge Proceeding.
US vs. Edward G. Scheffer, 41 MJ 683 (AF Ct. Crim App 1995) and 423 US 303 (1998) upheld the presidential ban on polygraph exam results in inadmissibility in military courts. However, there is room to challenge this ruling in that it permits States to ban polygraph exam results from evidence by statute due to the uncertain validity of results which is since been rectified by scientific studies published in peer-reviewed journals.
Furthermore, polygraph test results may be admitted in court as character evidence as per US vs. Crumby (d. Ar. 1995) 895 F. Supp. 1354, wherein the defendant’s mental health was avoided (US. vs. Campos, 217 F.3d 707 (9th Cir. 2000).
Jeffrey Bellin 80 Temp. L. Rev. 711, 726-727 (2007)
Polygraph Evidence and the Prohibition of Rule 704
Courts also ruled that expert scientific testimony regarding lie detector results is inadmissible under the Federal Rule of Evidence 704(b) due to deposition encompassing the “ultimate issue.” As outlined below, this objection has a narrow scope, even if it’s valid, and consequently shouldn’t provide a significant obstacle to the future admission of polygraph evidence.
The Federal Rule of Evidence 704 was originally drafted with the intention of abolishing common law doctrines prohibiting testimony on the “ultimate issue.” This prohibition deemed by the rules drafters to be difficult or application, unduly restrictive, and serving to deprive the introduction of useful information.”
In 1984, a mentally ill individual attempted assassination on President Ronal Reagan, and Congress passed the Insanity Defense Reform Act of 1984. This ruling added a subsection to Rule 704 to limit psychiatric testimony on behalf of defendants using the insanity defense.
The subsection of Rule 704 says that no expert witness who testifies with respect to a defendant’s mental state in criminal cases may state their opinion or inference as to the defendant’s mental state constituting a component of the crime they’re charged with or of the defense to it.
Despite contrarian arguments, many circuits interpreted Rule 704(b) as extending beyond the testimony of mental health professionals or psychiatric “to all expert witnesses.” The Ninth Circuit used two cases to subsequently apply this prohibition where polygraph experts were going to testify with an absence of criminal intent in the defendant’s answers during the polygraph exam.
Even if we assume Rule 704(b) applies to all expert testimony, proponents of polygraph expert testimony will have minimal challenges involved in avoiding its prohibition for several reasons.
Most polygraph evidence doesn’t pertain to the “mental health or condition” of the defendant. Consequently, it won’t trigger Rule 704(b). Instead, polygraph evidence establishes the credibility of objective factual statements.
Where a trial dispute involves an issue of intent, such as whether a murder was committed in self-defense or premeditated, polygraph evidence may be introduced without a direct inquiry into the defendant’s mental health or condition.
A defendant can disprove their intent circumstantially, in the same manner as the prosecutor would. Questioning presented from the polygraph exam must concern objective facts. However, these facts are offered to disprove criminal intent in this case.
For instance, if the defense wants to prove the defendant murdered someone in self-defense, there’s no need for expert testimony to inquire about the defendant’s intent directly. Instead, the expert can ask if the victim possessed a weapon, if they threatened to kill the defendant, and which party struck the first blow.
By proving the absence of the defendant’s criminal intent through circumstantial evidence provided by objective facts, expert testimony avoids conflicting with Rule 704(b).
Contrary to the analysis by the Ninth Circuit, a polygraph examiner can testify to the integrity of the defendant’s answer of their intent without violating the ultimate issue prohibition of Rule 704(b). This is because there’s a distinction between the defendant’s expert opinion, truthfully stating they acted with a specific intent (self-defense), and the perhaps prohibited opinion of the expert that the defendant acted with that intent.
Since the Ninth Circuit explained the prohibition in Rule 704(b) in another context, it doesn’t bar testimony supporting a conclusion or inference that the defendant does or doesn’t possess the requisite mental state as long as the expert doesn’t draw the ultimate decision or deduction for the jury and the ultimate conclusion or inference doesn’t necessarily follow on from their testimony.
Even the most advanced polygraph technology cannot enable experts to testify to the defendant’s prior intent. Rather, the most an expert can say is that the polygraph results indicated the defendant was truthful when voicing an innocent intent.
The ultimate issue regarding the defendant’s intent doesn’t necessarily follow from the testimony. Instead, as the prosecution will argue, the exam methodology or results might be flawed. Or the defendant may have deceived the test or deluded themselves. As a result, even if the testimony provided by the expert regarding the polygraph exam results is credited, the jury might conclude the defendant possessed a requisite criminal intent.
So, the excessively narrow importance of Rule 704(b) in the context of the polygraph exam results is, at best, that a polygraph examiner isn’t permitted to directly testify as to the integrity of the defendant’s response to questions like “can you explain your intent?” As discussed previously, even the exclusion of this testimony is legally questionable under the rule.
Polygraph tests, often known as lie detector tests, have long sparked debate over their reliability and admissibility in legal contexts worldwide. In the Philippines, the use of polygraph tests in legal proceedings is restricted, with the results generally inadmissible in court. This article explores the intricacies of polygraph use in the Philippines, including when and how these tests may influence legal proceedings under specific conditions.
What is a Polygraph Test?
A polygraph machine measures physiological indicators such as blood pressure, pulse, respiration, and skin conductivity while the subject answers a series of questions. The underlying belief is that deceptive answers trigger physiological reactions that the machine can record, indicating stress associated with lying. However, factors such as anxiety can also alter these readings, leading to questions about the reliability of polygraph tests.
Historical Context of Polygraph Use in the Philippines
Polygraph testing was introduced to the Philippines in the 1960s by the National Bureau of Investigation (NBI), and its use expanded over the decades, especially within law enforcement agencies. Although initially adopted without a solid legal framework, over time, jurisprudence has helped clarify the boundaries and conditions under which polygraph evidence might be considered.
Jurisprudence and Admissibility of Polygraph Tests
Key Supreme Court rulings such as People v. Teehankee Jr. (1995) and People v. Olivio (2014) have established that while polygraph results are inadmissible as direct evidence, certain aspects of the polygraph process may be allowed in court under specific circumstances. For instance, testimony about the conduct of a polygraph examination might be admissible if the opposing party does not object and if the proper procedural safeguards are respected.
Conditions for Admissibility of Polygraph-Related Testimony
For polygraph-related testimony to be considered, several criteria must be met:
The equipment used must be properly calibrated and functioning.
The examiner must be certified and qualified to conduct polygraph tests.
The examination must follow accepted protocols, and the subject must voluntarily agree to the test without coercion.
Documentation like charts and test results may be necessary for court proceedings.
Judges have considerable discretion in deciding whether or not to admit polygraph-related evidence, considering its relevance and potential impact on the rights of the accused and the integrity of the trial.
Opposition to Polygraph Admissibility
Despite some acceptance, there is substantial opposition to the use of polygraphs in court due to concerns about their accuracy and the potential for violating the rights of the accused. Critics argue that polygraphs are inherently unreliable and can be manipulated through countermeasures, thus possibly leading to wrongful interpretations and undue pressure on defendants.
Best Practices for Legal Practitioners
Attorneys involved in cases where polygraph tests are presented must meticulously challenge the validity and administration of these tests. This includes cross-examining the polygraph examiner, verifying their credentials, questioning the methodologies used during the test, and arguing against the admission of polygraph results if they believe the evidence could be more prejudicial than probative.
Conclusion
While polygraph tests continue to be a controversial tool in legal settings, their limited use under stringent conditions reflects an ongoing balance between technological capabilities and legal principles. In the Philippines, the prevailing stance is cautious, focusing on protecting the rights of the accused and maintaining the integrity of the judicial process. Whether or not the role of polygraphs will expand in the future depends on evolving legal standards and scientific advancements in the field of deception detection.
Are you an employer dealing with a case of theft from your premises? If you suspect your employee stole your inventory, you have the right to institute a polygraph policy to uncover their alleged role in the crime.
In such a case, is it legal to implement a polygraph policy in the workplace? Will it land you in trouble with the US Labor department? These are valid questions creating concerns with employers. The last thing you want is to face hefty financial penalties for misusing polygraph exams in the workplace.
In this post, we’ll unpack the legality of workplace policies and how to implement one in your company to catch the thief.
Polygraphs and the Employee Polygraph Protection Act of 1988
In 1988, President Ronal Reagan signed “The Employee Polygraph Protection Act” (EPPA) into power. In the early days of workplace polygraphy, between its inception in the 1930s to the signing of the Act in the late 1980s, employers would use polygraph exams as part of the pre-employment and on-the-job HR processes involved in the hiring and firing of employees.
Unfortunately, many employers abused the polygraph exam privilege, using it to keep undesirable candidates and employees out of their organization. Candidates receiving the short end of the stick in these lie detector exams would frequently complain to the US government, specifically the Labor Department.
As these complaints piled up, the Labor Department consulted with the government to do something about it, resulting in the EPPA coming to power. The EPPA is legislation drafted to prevent employer misuse and abuse of polygraph exams in the workplace. The Act all but did away with the use of pre-employment lie detector tests on candidates, making it illegal for private sector companies to institute this policy in their organization.
Some industries remained exempt from the Act, such as those involved in security, high-value asset transport, and pharmaceutical manufacturing and distribution. However, all other sectors experienced severe curtailing on how they could implement polygraph policies in the workplace.
Up to the 1990s and the introduction of software systems to polygraph science, the polygraph had a 60% to 70% success rate of detecting deception in candidates and employees. So, it’s fair that the EPPA was put in place to prevent false positives created by the device to keep people out of work.
However, despite computerized systems and software dramatically elevating accuracy rates to 97%, the EPPA remains in place. Employers are not permitted to use them in pre-employment screening; they better have a good reason to screen their employees.
What Happens If an Employer Violates the EPPA?
The US Labor Department enforces the EPPA legislation in the private sector. As a side note, public-sector organizations, like the CIA, NSA, and FBI, can still use polygraph policies in their pre-employment and employee management practices.
However, it’s different in the private sector, and all companies must comply with the EPPA. The US Labor department treats cases of employer misuse of polygraph policies very seriously. Suppose an employee feels the employer acted unfairly against them by using a polygraph. In that case, they have a right to seek legal counsel and file a complaint against the employer with the US Labor Department.
The US Labor Department is obligated to investigate the case, collaborating with the employee’s legal counsel in the process. If the investigation discovers the employer’s misuse of the polygraph policy, they’ll impose financial penalties on the company for each violation (independent exam) they determine to violate the Act.
As a result, the employer faces crippling financial penalties that could severely damage their business, even going as far as to push them into bankruptcy. Some of the EPPA legislation violations include the employer forcing or bullying an employee into taking the exam. The employee has the right to refuse their employer’s request to take the polygraph.
The employer may not reprimand or fire the employee if they fail the polygraph exam, and they can make their life difficult at work by adversely impacting the employee experience. These actions constitute a violation of the EPPA and an investigation by the US Labor Department.
Can You Polygraph Your Employees if You Suspect them of Theft?
Despite the EPPA being a serious piece of legislation protecting employees from wrongful use of lie detector tests in the workplace, the Act does make provisions for the legal use of polygraphs. According to the EPPA, the employer may implement a polygraph exam in the case of severe employee misconduct, such as theft, presenting a significant economic loss to the company.
For instance, if a diamond dealer experiences an inventory theft involving thousands of dollars worth of diamonds, they may polygraph[h the staff if they suspect employee involvement in the crime. The theft must present a significant economic loss that could damage the company’s financial health.
So, the employer can’t polygraph the staff if they suspect someone is stealing office supplies. This instance would not meet the EPPAs definition of s significant economic loss warranting the use of a polygraph policy in the workplace.
How Do Employers Structure a Polygraph Policy?
If the employer decides to polygraph their staff due to theft, they must follow EPPA guidelines in structuring a polygraph policy. Failing to submit to the guidelines constitutes a violation of the Act, and the employee has legal grounds against their employer.
The employer will consult with an experienced attorney in these matters. They’ll also hire an independent polygraph company to assist them with the process. The polygraph company nominates an examiner to work with the client in structuring and executing the polygraph policy.
The examiner works with the attorney and the client to draft the paperwork involved with implementing the polygraph policy. They’ll help the client roll it out, ensuring they remain compliant with the EPPA regulations.
An important factor involved with the EPPA is giving the employee at least 72 hours’ notice of their exam date. They have to meet with the employee and explain their rights, ensuring the employee signs documents stating they consent to the test and understand their legal rights involved with the exam.
The examiner must provide the examinee with the questions they’ll ask them during the polygraph exam and issue copies of all relevant paperwork to the employee.
How Does the Polygraph Exam Work?
On the lie detector test day, the employee arrives at the exam room and meets with the examiner. The examiner acts professionally, greeting the employee. They’ll run through the employees’ rights with them again and the questions asked during the tests.
The examiner doesn’t take sides. They remain a neutral party to the situation and always take an objective perspective. The examiner has no authority over the examinee, and they can choose to end the test at any time.
When the examinee feels comfortable in the room and ready to take the test, the examiner hooks them up to the lie detector. The examiner places a blood pressure cuff on the examinee’s upper right arm, electrodes on their fingertips and palms, and they may ask the examinee to sit on a mat that detects movement.
The test involves five to seven questions, and the examinee answers in a yes-or-no format. Typically, the average polygraph exam can last anywhere from 45 to 90 minutes, depending on the nature of the test. After the lie detector test ends, the examiner escorts the examinee from the room.
The examiner will not issue the test results to the employee after the exam. They might suspect deception, and if that’s the case, they’ll review the test results and recording of the session at their office.
When the examiner is confident of the result, they’ll write a report and send it to the employer around two to three days after completing the test. The examinee has no interaction with the examiner after completing the test, and they receive the results from their employer.
How Does the Polygraph Detect Deception?
The polygraph machine operates by assessing the examinee’s reaction to the questions asked by the examiner. When people lie in stressful situations, such as during the polygraph, it activates the sympathetic nervous system, which launches the “fight-or-flight” response (FoF).
The FoF causes an increase in the examinee’s blood pressure, heart rate, respiration, sweat production, and skin electrical activity. The instruments wired to the examinee measure these physiological changes, sending them to a control box linked to the examiner’s laptop.
The software interprets the signals from the instrumentation, presenting them as charts on the examiner’s laptop. The examiner has specialized training to identify when an examinee’s physiological responses indicate activation of the FoF, resulting in a deceptive answer.
Can a Guilty Employee Beat the Polygraph?
The modern polygraph has an accuracy rate of 97% in detecting examinee deception. However, it’s not an infallible machine. The examinee might be a pathological liar, which makes it very challenging for the polygraph to detect deceptive behavior.
Pathological liars don’t experience the same interaction between the brain’s frontal lobe and its amygdala. As a result, they don’t share the sensations of guilt or shame associated with lying with normal people. Pathological liars frequently believe the lies they tell. Therefore, they don’t activate the FoF when lying to the examiner.
Some guilty people assume they can beat the polygraph exam using “countermeasures” during the lie detector test. These countermeasures involve actions like controlling your breathing, curling the toes, clenching the leg muscles, or biting the tongue.
The issue with the efficacy of countermeasures is that they come from a time before the introduction of polygraph software and computerized lie detector systems. As a result, they no longer work. The software is so sensitive and well-programmed that it can indicate to the examiner when the examinee is deploying these types of countermeasures.
Even the act of using drug-based countermeasures like Xanax and other anti-anxiety drugs during the test is easy for a trained and experienced examiner to spot. If the examinee deploys the use of countermeasures during the exam, it constitutes a sign of deception and an immediate failure.
The polygraph machine and the examiner can also detect the difference between an examinee that feels nervous and one that’s genuinely deceptive, reducing the chances of false positives while improving test accuracy.
What Can the Employer Do If the Employee Fails the Polygraph?
Unfortunately, the employer cannot take action against the employee if they fail the lie detector test. The employee may not discipline the employee or fire them. Doing so would violate the EPPA.
The employer may also not make the employee’s job or workplace intimidating or reduce their work experience in an attempt to get them to leave the company of their free will. However, a failed lie detector test does give the employer a prime suspect in a criminal investigation.
They can consult with the police and law enforcement and may open an investigation into the individual they suspect of the crime.
What Are the Other EPPA Exemptions for Using Polygraphs in the Workplace?
So, employers that suspect an employee’s involvement in a theft from their business may implement a polygraph policy for their staff, provided they remain compliant with the EPPA legislation. Fortunately for employers, the EPPA also allows employers to use a polygraph policy in a range of other scenarios where rogue employees may present threats to the company and its staff.
If the employer suspects a staff member of fraud or embezzlement, they can use a polygraph policy to uncover the culprit behind the scheme. Or if the employer has a staff member accuse another of sexual misconduct in the workplace, and the accused denies it, they can use a polygraph policy to get to the bottom of who is telling the truth.
The employer may also use a polygraph policy if they suspect an employee uses drugs in the workplace or sells illegal or prescription drugs to other staff members. Provided the employer remains within the guidelines of the EPPA, a polygraph exam offers the company the benefit of weeding out the bad actors in their organization.
