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.