Do Lie Detectors Lie or Provide the Truth?

Rep. Gary Condit, D-Calif., was in the new quite a bit this summer after the disappearance of his intern, Chandra Levy.

Soon thereafter, even though he had not been questioned as a suspect, Condit decided to take a lie detector test in hopes of clearing his name of any suspicion of wrongdoing.

The test was not administered by police officials or an independent third party; it was conducted privately under the auspices of Condit’s attorney. It was reported that he passed with flying colors.

One issued raised is whether the results of this testing or further lie detector testing would be admissible in a court of law in a civil proceeding, should it ever come to that.

Courts are becoming more concerned with the challenge that polygraph evidence presents to the traditional concept of a jury trial and the standard of evidentiary reliability necessary for admissibility.

A typical lie detector test measures changes in body conditions of the examinee; and when compared with a constant, it reportedly can offer a reasonable detection of what the examiner believes to be a lie.

Although the test is accurate in recording changes in pulse, heart rate and body perspiration, do these indications necessarily prove that one is or is not telling the truth?

Some experts in psychology and physiology and among the legal community have cast doubt over the years on the reliability of this quasi-scientific test.

Its admissibility was first raised 72 years ago in Frye v. United States, 293 F.1013 (D.C.Cir. 1923). The Frye court determined in a forerunner of today’s polygraph test – a systolic blood pressure deception test – that it was not admissible to demonstrate the innocence of the defendant in a murder trial. It established the "general acceptance" test that examined whether the scientific technique used was generally accepted by those in its field.

For 50 years after Frye, federal and state supreme courts uniformly held polygraph results were not admissible due to their unreliable rates of error, the lack of standardized examinations and examiner testing, the hazard of the trier of fact’s substituting the test results for its own determination of credibility, and a lack of general scientific acceptance.

The use of polygraph testing, however, has been embraced in recent years not only in criminal cases but also in civil lawsuits as its accuracy improves and its use proliferates among employers, the government and insurers.

With the adoption of the Federal Rules of Evidence, in particular Rules 401, 402 and 702, and the displacement of the Frye standard with Daubert v. Merrell Dow Pharmaceutical, 509 U.S. 579 (1993), courts no longer automatically exclude the results of lie detector tests.

With judges acting as gatekeepers involving all forms of expert testimony, courts now are dramatically split on how to handle lie detector evidence, struggling with when the line is crossed between experimental and demonstrable states.

A shrinking majority of state courts and a minority of federal courts still absolutely bar the results of a lie detector test as evidence. Some 20 states allow polygraph tests to be admitted, as long as both parties enter into a written stipulation prior to the test’s being conducted. A large number of federal courts as well as many state courts on appeal have ruled that so long as an abuse of discretion has not occurred, it is not reversible error to admit the results as evidence.

The Illinois Supreme Court repeatedly has held that polygraph evidence is inherently unreliable and prejudicial and is, therefore, inadmissible at trial. People v. Jefferson, 184 Ill.2d 486, 705 N.E.2d 56 (1998).

The 7th U.S. Circuit Court of Appeals has held that district judges have discretion to admit polygraph evidence; but generally they exclude it, as well. United States v. Dietrich, 854 F.2d 1056 (7th Cir. 1988).

Illinois statute states that in a civil action a party need not submit to a lie detector test. 735 ILCS 5/2-1104 (2000). If a polygraph test is taken, some courts in Illinois employ a balancing test of the probative value against its prejudicial impact. For instance, in Moskos v. National Ben Franklin Insurance Co., 60 Ill.App.3d 130, 376 N.E.2d 388 (1st Dist. 1978), the court held that although the polygraph test results may not be introduced as substantive evidence, it is admissible if limited to proof of an insurer’s good faith in refusing to pay.

In Marsh v. Lake Forest Hospital, 166 Ill.App.3d 70, 519 N.E.2d 504 (2d Dist. 1988), the court allowed lie detector tests to be admissible because the examinations’ purpose was to provide better patient care when a hospital administered the tests to nurses to determine whether patient records were altered.

With the proliferation of high-tech scientific testing in many areas – from DNA to accident reconstruction – courts are finding that the evidence more likely than not meets the policy and technical issues addressed by the Federal Rules of Evidence. Under Daubert, judges are determining that the scientific methodology used is more widely accepted, as well as that its reliability can be useful to a jury.

But, lie detection tests still are shrouded with an aura of fallibility. No one knows that better than Vincent Sedgwick of Henderson, Nev. He was charged with being an accessory to rape after flunking a voice stress test, a simplified version of the polygraph test that measures only voice frequency to allegedly determine if one is telling the truth. A judge eventually dismissed the charges against Sedgwick for lack of evidence, but he sued the city’s police department for violating his civil rights.

The case was dismissed last year on the defendant’s motion for summary judgment in an unreported decision, according to Sedgwick’s attorney, Ian Christopherson of Nevada, who called the lie detection test "pernicious" and said he initially considered a civil lawsuit against the police, alleging negligence, fraud and wrongful prosecution in state court if not for immunity statutes.

Even more egregious, however, is the highly publicized case of 12-year-old Stephanie Crowe of Escondido, Calif., who was found stabbed to death in 1998. Detectives assumed here 14-year-old brother killed her; but rather than wait for lab results, detectives interrogated the boy without his parents or a lawyer present an told him that he had failed a computer voice stress analyzer they had used on him.

The case became an hour-long special on Court TV earlier this year: It detailed the powerful psychological weaponry police use in attacking the will of a suspect. A transient male with a history of severe mental illness and felony arrests is now the key suspect, and prosecutors have dropped their case against the boy and two of his friends. The families have filed a federal lawsuit against police and prosecutors, alleging their constitutional rights were infringed.

These cases indicate how the courts must be mindful of improving the administration of justice when considering novel scientific evidence. As confusing and unevenly applied as Daubert has been, those who use these types of truth-detecting devices must not attempt to force "justice" on innocent victims or they will find themselves forced to answer for their actions in subsequent civil actions.