True Lies: The harsh truth about polygraphs as a “treatment tool”
Derek W. Logue of OneFallen.com
Created August 11, 2018, Updated 17 March 2021

Introduction

“I have always taken the position that there is no such thing as a lie detector. It has to be operated by a human being. Whenever a human being reaches conclusions, he is apt to make an error.” — Former FBI Director J. Edgar Hoover (“HOOVER ASSAILS WARREN FINDINGS; Says F.B.I. Was Criticized Unfairly on Oswald Check —Calls Dr. King a ‘Liar’.” NY Times, 19 Nov. 1964. 

The mass media have led us to believe that the polygraph machine is some kind of magical device that tells us exactly when people are lying. In reality, the claim that this nearly century-old device “detects lies” is dubious at best, and polygraph examinations are generally inadmissible in a court of law. However, polygraphs are still being used as part of supervision and treatment programs for registered citizens. This article discusses the practice and legal questions arising specifically from the use of polygraphs in “sex offender” supervision and treatment.

Use of Polygraphs

The following statistics were compiled by the Vera Institute of Justice in 2008. Some states have utilized polygraphs since the Vera 2008 study was conducted.

States using the polygraph in prisoner treatment programs (14)  Arkansas, Colorado, Idaho, Indiana, Iowa, Kansas, Maine, Montana, New Hampshire, Oklahoma, South Dakota, Virginia, Wisconsin, Wyoming [1]  

States utilizing polygraphs as a form of community-based treatment (32): Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Missouri, Montana, New Hampshire, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wyoming [2]

The 2008 Vera Institute study noted the following regarding the use of polygraphs as a part of sex offense treatment:

“While polygraphs are more prevalent than drug therapy in the context of prison-based treatment, they are hardly widespread. Fewer than half of the states that responded to our survey reported using polygraphs in some capacity in prison-based treatment programs. Unfortunately, as noted earlier, there is very little research (as of spring 2008 we were unable to find a single study) that examines the impact of polygraph monitoring on sexual recidivism.”

“Thirty-two out of 36 states that responded reported using polygraphs in some capacity for sex offenders on community supervision. A few states reported using them for multiple purposes, including assessing the offender’s ability to admit the full extent of his or her crime; assessing the offender’s criminal history; obtaining information about victims; and assessing the extent to which an offender is complying with treatment and supervision requirements (the most common use). As noted earlier, there is little evidence that polygraphs are effective in reducing recidivism rates, so it is unclear whether or not these practices should be expanded.” [3]

Polygraphs: Inadmissible in Court

This article is about the use of polygraphs as a ‘treatment tool,” but in order to understand the controversies surrounding the polygraph, we must look at the device and understand why it isn’t admissible in court.

The polygraph was at least partly invented by William Moulton Marston, the same man who created the Wonder Woman comic book heroine and her “Lasso of Truth.” His systolic blood pressure test, which became one component of the modern polygraph, created in its current form by John Augustus Larson. Marston’s wife, Elizabeth, had inspired her husband by telling him she felt her blood pressure climb when angry or excited.” [4]  

The American Psychological Association states the following about polygraphs: “Even the term ‘lie detector,’ used to refer to polygraph testing, is a misnomer. So-called “lie detection” involves inferring deception through analysis of physiological responses to a structured, but unstandardized, series of questions. The instrument typically used to conduct polygraph tests consists of a physiological recorder that assesses three indicators of autonomic arousal: heart rate/blood pressure, respiration, and skin conductivity.” [5]  

The National Academy of Sciences also concluded that there was insufficient evidence of polygraph accuracy:

“Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. Although psychological states often associated with deception (e.g., fear of being judged deceptive) do tend to affect the physiological responses that the polygraph measures, these same states can arise in the absence of deception. Moreover, many other psychological and physiological factors (e.g., anxiety about being tested) also affect those responses. Such phenomena make polygraph testing intrinsically susceptible to producing erroneous results… there is evidence suggesting that truthful members of socially stigmatized groups and truthful examinees who are believed to be guilty or believed to have a high likelihood of being guilty may show emotional and physiological responses in polygraph test situations that mimic the responses that are expected of deceptive individuals.” [6]

The website AntiPolygraph.org makes a number of condemnations of polygraphs, including:

  • Polygraphy is not science
  • Polygraphy, like phrenology and graphology, is without scientific validity
  • Polygraph “tests” are actually interrogations
  • Polygraphy depends on your polygrapher lying to and deceiving you
  • Polygraphers use a simplistic method to decide whether you are truthful or deceptive
  • Polygraphy is biased against the truthful
  • Polygraph “testing” can be (and has been) easily defeated through countermeasures, including the study of interrogation techniques [7]


AntiPolygraph.org’s eBook sums up the entire process succinctly:

“Polygraph ‘testing’ is an unstandardizable procedure that is fundamentally dependent on trickery. As such, it can have no scientific validity. The computerization of polygraph chart reading in recent years has no more made the underlying procedure ‘scientific’ than has the computerization of astrological chart reading. The polygraph format most widely used in the United States is commonly known as the “Control Question Test” (CQT). The overwhelming majority of polygraph examinations administered in the United States are of this format…. The dirty little secret behind the polygraph “test” is that while the polygrapher admonishes the examinee to answer all questions truthfully, he secretly assumes that denials in response to certain questions—called ‘control’ questions—will be less than truthful.

The polygrapher scores the test by comparing physiological responses (breathing, blood pressure, heart, and perspiration rates) to these probable-lie control questions with reactions to relevant questions such as, ‘Did you ever use an illegal drug?’ If the former reactions are greater, the examinee passes; if the latter are greater, he fails. If responses to both ‘control’ and relevant questions are about the same, the result is deemed inconclusive…Perversely, the “test” is biased against the truthful, because the more honestly one answers the “control” questions, and as a consequence feels less stress when answering them, the more likely one is to fail. Conversely, liars can beat the test by covertly augmenting their physiological reactions to the “control” questions. This can be done, for example, by doing mental arithmetic, thinking exciting thoughts, or simply biting the side of the tongue. Although polygraphers frequently claim they can detect such countermeasures, no polygrapher has ever demonstrated any ability to do so, and peer-reviewed research indicates that they can’t.” [8]  

In short, polygraphs don’t actually detect lies, only bodily changes, and those changes are loosely interpreted by a polygrapher assuming guilt in everyone, but that fact does little to deter the myth of the polygraph as a lie detector. One 1997 study suggests
polygraphs are little more accurate than chance (61%), and certain techniques could help fool polygraph tests. [9]  Polygraphs are rejected as invalid in courts for many of the same reasons as plethysmographs, particularly lack of scientific evidence. [10]  
Furthermore, polygraphs are not even considered reliable for screening in security positions. [11]   Despite the lack of scientific evidence necessary to make them useful in court, polygraphs are being used as tools for treating those convicted of sex crimes.

Questionable Treatment Practice

In a forum post on the AntiPolygraph.org site from 2001, the mother of a registrant described her son’s first polygraph test in Texas:

“My son took his first polygraph today.  Things did not go well and he was told that he ‘failed’ the test.  I thought the purpose of the polygraph for a sex offender was to be sure the person was not offending anyone else and keep up with what other information they wish to extract from the person.  However, today’s polygraph was totally focused by the person who administered the poly and the probation officer on the supposed ‘crime’ my son is to have committed. They asked him question after question about what happened and told him that they thought he was a menace to society and a very bad person.  They laughed at him when he answered certain questions and told him he was lying.  He knows he told the truth about what happened.” [12]

These stories are not uncommon since polygraphs aren’t fact finding exercises, but mere interrogations. To use the words of one respondent to the AntiPolygraph.org post:

“Essentially, the purpose of these ‘tests’ is to keep polygraphers (many who possess only a high school diploma and an eight week training course as credentials) making $100-$300 per hour in a nation where polygraphy is all but otherwise banned. A secondary purpose of post-conviction sex offender polygraph programs is to allow legislators to appear tough on crime.” [13]

The use of term “socially stigmatized group” by the National Academy of Sciences is intriguing. Promoters of the polygraphs suppressed a 1990 study that found some degree of racial bias when determining whether or not a subject is truthful. The study had found that less than 60% of the total polygraphs resulted in a correct decision; only 23.5% of blacks and 36.9% of whites were correctly classified as non-deceptive. [14]  Pro-polygraph organizations have even attacked the credibility of critics of polygraph usage in a manner reserved for Internet forums. [15]  If polygraph organizations are willing to pressure scientists to suppress a study that might show bias in results based on race, imagine the pressure they would place on scientists questioning the use of polygraphs on people convicted of sexual offenses?

Studies on the use of polygraphs on registered persons are rare. The few studies that do exist find the use of polygraphs as a monitoring tool for people convicted of sex offenses to be dubious at best.

A 2005 study of 95 sex offenders who have participated in 333 polygraphs found, “Participants reported a relatively low incidence of false indications of both deception (22 of 333 tests) and truthfulness (11 of 333) tests, suggesting that clients agreed with examiners’ opinions 90% of the time. The majority of clients reported that polygraph testing was a helpful part of treatment. Finally, about 5% of participants reported that they responded to allegedly inaccurate accusations of deception by admitting to things they had not done.” [16]  Essentially, this study found that most participants merely went along with the whims of the polygrapher most of the time, even to the extent that they were willing to lie to appease the polygrapher. It is also possible that many sex offenders were simply honest or appeared to the polygrapher as being honest.

Jeffrey Rosky’s 2012 article for Sexual Abuse: A Journal of Research and Treatment further questioned the efficacy of using polygraphs in sex offender treatment. Rosky points out polygraph supporters claim three benefits to using polygraphs as part of supervised release:

  1. A significant increase in the reporting of past criminal histories by an offender including both sexual and nonsexual offenses and wider array of victims;
  2. Better assessment of an offender’s therapeutic progress including identification of the offender’s main risk factors; and
  3. A deterrent effect provided by the polygraph itself in preventing both supervision technical violations and new offenses. [17]  

Post-Conviction Sex Offender Testing (PCSOT)

The use of polygraphs as “treatment” tools began to take hold in the early 1980s in Oregon and Washington. The polygraphs were used as part of another relatively new concept at the time, the Containment Model. [18]  Polygraph testing of “sex offenders” was required in 30 states as of 2003 and was found to be used in 79% of SO treatment programs for adults and 50% for juveniles. [19]

The PCSOT consists of four techniques, with sex history disclosure and maintenance testing comprising the majority of testing:

  1. Sexual History Disclosure: the purpose of this test is to obtain a fuller account of an offender’s sexual history, including the range of deviant behaviors in which he has engaged, the age at which these commenced, and a more accurate sex offence history. Although the offender provides a lengthy account, he is only questioned about selected aspects of it when attached to the polygraph.
  2. Maintenance: this is a screening type of test relating to an offender’s compliance with the requirements of treatment and supervision. Maintenance tests cover a number of issues, and are repeated at regular intervals, with the aims of detecting any behaviors indicative of increased risk, and deterring the offender from engaging in risky behaviors in the first place. The primary purpose of maintenance testing is to prevent reoffending rather than to detect reoffenses after they have occurred.
  3. Denial, or Index Offence Disclosure: this test seeks to gain from the offender a fuller account of the circumstances associated with his index offence, often with the aim of overcoming minimization or denial, including claims of poor recall. This information is then used to better inform treatment providers about risk factors which contribute to offending. Some critics believe that this information would be obtained anyway in the course of treatment, but whether or not this is the case, supporters of PCSOT argue that the disclosures come much earlier in treatment when polygraphy is used. (Note* the proponent cited was Anna Salter, a rather controversial figure.)
  4. Specific Issue: these tests, also called monitoring exams, look at single issues about which there may be concern, for example, whether an offender has had contact with a previous victim. [20]

The Claims of Polygraph Proponents

There is a great deal of controversy surrounding the PCSOT in the scientific community. Proponents of the use of the PCSOT criticize opponents of “confusion between it and other applications of polygraphy, with examples of questionable practice sometimes used to censure the technique altogether.” However, proponents must rely on the unique fear of and myths about the behavior of “sex offender” label to justify the usage of the polygraph: “…though the [National Research Council, 2003] argued that this level of accuracy is too poor for polygraphy to be used effectively as a means of security vetting, where the base rate of deception is likely to be low (one hopes that there are not many spies working in federal agencies), it was suggested that polygraphy is viable when the underlying rate of deception is 10% or higher – a rate which most observers, even those critical of polygraphy, would accept is readily exceeded in sex offender populations.” [21]  

Proponents must also admit that the tests are not actually being used to determine deception but to extract confessions: “So long as PCSOT accuracy is substantially greater than chance, the fact that its error rate may be as high as 20% is not critical. As referred to above, the primary focus of PCSOT is not on the result of the polygraph examination itself, but on enhancing the disclosure of information relevant to treatment and supervision, and on encouraging engagement with therapists and supervisors… In PCSOT, polygraphy is probably better thought of as a truth facilitator than a lie detector.” [22]  

Proponents of the polygraph also how to downplay the obvious fact that the test can be beaten: “…can some offenders ‘beat’ the polygraph? Almost certainly. But many more offenders ‘beat’ therapists and supervisors in programs where polygraphy is not used. And as indicated above, so long as polygraph results are not used in isolation, the effect of these false negatives when they do occur should not be great.” [23]

Proponents rely in part on a 2000 study that also included reliance on self-reporting and includes non-criminal paraphilias along with the polygraph. “For 60 adult male sexual offender (35 inmates and 25 parolees), the number of victims and offenses were recorded from the Presentence Investigative Report, Sexual History Disclosure form, and 2 consecutive polygraph examination reports. Dramatic increases in the number of admitted victims and offenses were found for inmates, but not for parolees, across each source. However, there was a substantial decline in the number of victim and offense admissions by the second polygraph examination for both groups, even though 80% of the examination results revealed deception about sexual offending behaviors…Comparatively, conclusions cannot be made on the frequency of sexual offending for inmates and parolees, because of the unique external confounds present for each setting.” The end result was the belief that polygraphs influenced more self-reporting because the inmates believed they worked. [24]  

Proponents use the argument of “increased disclosures” justifies use of the PCSOT, but a 2005 study found that often times, those subjected to the PCSOT simply agree with the researcher to pass the PCSOT: “Participants reported a relatively low incidence of false indications of both deception (22 of 333 tests) and truthfulness (11 of 333) tests, suggesting that clients agreed with examiners’ opinions 90% of the time. The majority of clients reported that polygraph testing was a helpful part of treatment. Finally, about 5% of participants reported that they responded to allegedly inaccurate accusations of deception by admitting to things they had not done.” [25]  

A 2006 study made the claim that “[S]ubjects reported that in 225 (86%) of their completed tests they had told the truth, and they reported being deceptive in 38 (14%) of the tests; according to them, the polygraph outcome on these tests was ‘no-deception indicated’ in 197 (75%), and ‘deception indicated’ in 66 (25%), giving a false positive rate of 15%, a false negative rate of 16%, and an overall accuracy of 85%. Thus, based on self-report the specificity of the tests (correctly detecting truthfulness) was 85%, while the sensitivity (correctly detecting deception) was 84%, with a false negative rate of 16%… When the 126 individual subjects who had taken polygraph tests are considered rather than the number of tests they reported completing, 27 (21%) reported that they had been wrongly reported as being deceptive (false positive) when they had been telling the truth on at least one occasion, and 6 (5%) to have been wrongly reported as being truthful (false negative) when they had in fact been lying. There was no overlap been these individuals.” The researchers, of course, noted only 55% of those who agreed to the study actually took part in the post-polygraph surveys, so there is no way to discern the feelings of the 45% of subjects for this test. [26]

There is one major factor to consider with the Ahlmeyer, Gruden, and Kokish studies—each study heavily relies on self-reporting from subjects themselves to determine if the polygraphs are working. One possible reason the subjects of these studies are seemingly in favor of polygraphs could be interpreted as the subjects of the program cooperating with the whims of polygraphers in order to curry favorable outcomes in their treatment program. People convicted of sex crimes and required to enter treatment -programs that
demand cooperation with their beliefs under pain of sanctions (such as transfer to a prison less safe for the subjects) might also feel compelled to proclaim that they believe the polygraph is useful.

A critique of both the Gruden and Kokish studies found that both “studies can also be criticized on several levels from a methodological perspective. First, both were convenience samples precluding any generalizability of the results while Kokish et al. (2005) eliminated any offender with an immediate prior deceptive test, certainly introducing selection bias… the reliability, validity, or quality of any self-reported measure cannot be taken for granted. For instance, the high rate reported by offenders claiming the polygraph test correctly identified they were telling the truth by both Kokish et al. (2005) and Grubin and Madsen (2006) deserves further examination. Even with confidentiality, what is the incentive for an offender to report that the polygraph test failed to catch them in a lie? Revealing this would expose the fact that the offender has been getting away with some form of crime or deviance, or that he or she has hidden a potentially critical risk, but both studies downplay this possibility. In addition, both Kokish et al. (2005) and Grubin and Madsen (2006) aggregated repeated tests on individual offenders, potentially violating any assumption of independence for each test. Research has shown that conditional dependence within diagnostic tests can severely underestimate error rates (Vacek, 1985), and both studies clearly have repeated measures on the same offender used in their respective calculations. Hence, in addition to other methodological concerns, both studies’ estimates of accuracy may have severely underestimated their respective error rates.” [27]

The notion that people required to undertake treatment programs involving polygraphs feeling compelled to overestimate the accuracy of polygraph examinations would not be out of the realm of possibilities, especially considering the controversy surrounding the infamous 2007 Butner prison study, which also relied upon polygraphs and self-disclosure reports to formulate results. The New Yorker wrote a lengthy article critical of the Butner program. Inmates of the program reported that “the program’s emphasis on confession led them to “remember’ crimes that never happened. They disavowed disclosures that were later used as evidence against them.” Proponents of the Butner study denied that inmates were shown favoritism for participating in the Butner program, but the inmates stated the opposite:

“For sex offenders, who occupy the bottom of the prison power hierarchy, the Butner unit was a safe haven in the federal prison system. One child-pornography convict, Markis Revland, told the judge at his civil-commitment hearing that when prisoners discover a sex offender among them ‘they’ll go to great lengths to stab that person.’ He requested treatment at Butner after being raped at knifepoint in a Kansas penitentiary. He was encouraged by the psychology staff at Butner to ‘get it all out,’ and came up with a hundred and forty-nine victims. Like other patients, he kept a “cheat sheet” in his cell so that he could remember his victims’ ages and the dates that he’d abused them. There was no evidence for the crimes, thirty-four of which would have occurred during a time when Revland was incarcerated. At his hearing, the judge concluded that his crimes were the ‘product of his imagination, not actual events.’ After having been held in prison nearly five years beyond the expiration of his criminal sentence, Revland was allowed to go home.” [28]  

Courts have questioned the validity of the Butner study. In United States v. Johnson, 588 F. Supp. 2d 997 (S.D. Iowa 2008), the Court rejected the use of the Butner study to suggest a CP suspect was at risk to commit a hands-on offense “because the Butner Study is not credible. The Butner Study’s sample population consisted of incarcerated individuals participating in a sexual offender treatment program at a federal correctional institution. As Rogers testified, the program is “highly coercive.” Unless offenders continue to admit to further sexual crimes, whether or not they actually committed those crimes, the offenders are discharged from the program. Id. Consequently, the subjects in this Study had an incentive to lie, despite the fact that participation in the program would not shorten their sentences. Rogers testified that the Study’s “whole approach” is rejected by the treatment and scientific community. Id, Complicating this bias is the fact that the Butner Study did not report on the nearly 23% (46/201) of individuals in the treatment program who left due to “voluntary withdrawal, expulsion, or death.” As a result, the offender population and the Study’s results were almost certainly skewed. The Butner Study also suffers from additional methodological flaws… the Study relies, in part, on the results from polygraph examinations, which is highly problematic given the unreliability of such tests, especially since ‘no standard for training polygraph experts’ exists.”

In US v Crisman, 39 F.Supp.3d 1189 (2014). In this case, the State relied on the Butner study in an attempt to strengthen the sentence of a person convicted for viewing CP. The Court rejected the argument, stating, “Although the Butner Study Redux indicates that many child pornography “lookers” are also “touchers,” the Court does not think it is appropriate to enhance Crisman’s sentence when there is no evidence that Crisman has molested children. The Court also will not use the Butner Study Redux’s findings to conclude that Crisman poses a risk to the community, because the Court thinks it should base its finding of Crisman’s future risk of harm on evidence in his case and not on a study in which he was not involved.”

Speaking directly about use of polygraphs in the Butner study, the Court noted, “Additionally, some scholars have proffered that polygraph testing would not account for a subject’s over-reporting. Wollert warned that “a technique that is widely used to pass this [polygraph] exam entails `overestimating the number of possible victims.'” [citation omitted] This overestimation could occur in situations where an offender does not remember whether he had molested 60 or 70 different children. In instances of this nature, the examiner has to resort to questions such as, Are you certain that you did not sexually molest more than 70 minors? The subject has to be allowed the leeway of overestimating the number of possible victims so that he/she can reach the point where he/she can be completely certain that that number was not exceeded. If the subject is unsure of whether he/she molested more than that number, the results will most likely be deceptive or inconclusive.” [39 F. Supp. 3d at 1239] “The use of the polygraph examination is complicated in this case in one additional way: not all subjects were polygraphed, making the polygraph results inconclusive at best. [39 F. Supp. 3d at 1250]

Not all deceptive studies rely on self-reports, of course. A 2014 study published in the Journal of Social Change claimed, “Within the group that took a polygraph, recidivists went longer before taking a Sexual History Polygraph Examination (SHPE), and there was a significant difference in recidivism between those who took a polygraph and those who did not.” In reality, only 8 offenders who took the SHPE reoffended, while 10 offenders that did not take the SHPE reoffended. To pad the stats, they added arrests for non-sexual but “violent” offenses to the stats to make the proclamation that the SHPE affected recidivism. (The number of SHPE subjects with a violence arrest was 4 while the non-SHPE subjects arrested was 11.) They had to admit that the “Chi square for sexual recidivism was not significant.” The researchers also had to concede there were various other reasons why those who reoffended and could only state that intentional avoidance of polygraphs as an indicator for risk was merely “plausible.” [29]  It is interesting to note that only 18 total subjects out of 166 were reconvicted after 5 years, an annual average rate of 2.16%, a rate higher than the average annual rate reported by numerous re-offense studies. The researchers weeded out a number of registrants, including females. Still, to their credit, they did warn readers to exercise caution in assuming that avoidance of polygraphs implies subjects are higher risk.

Proponents question the proponent claims of usefulness by stating the effect is reliant on the belief that polygraphs work: “Of course polygraphs (like various other non-scientific methods) can serve as a deterrent as long as examinees believe it is a highly valid technique, but this is a rather week justification for using polygraph examinations for any purpose because once the true merit of the instrument is disclosed the deterrent value will be lost.” [30]

In short, proponents of polygraph usage rely largely on self-report studies by test subjects to determine the accuracy of the polygraph. There is the possibility of coercion (through rewards or the fear of privilege loss in treatment programs) that would cause test subjects to claim a higher number of “undetected victims” as well as overestimate truthfulness. Other studies rely on various degrees of stat manipulation. Arguing for the use of polygraphs requires proponents to downplay the fact the test is beatable. The PCSOT relies on the belief that the polygraph is a magic device, so proponents have a vested interest in keeping the mystique of the polygraph alive.

Arguments Against Polygraph Use

Ben-Shakhar finds the “Control Questions Test” (CQT), the prevailing polygraph method, to be extremely flawed and suffering from many weaknesses:

  1. The CQT is based on a flawed rationale and it lacks a theoretical foundation: Specifically, there is no theory that can establish the relationships between physiological changes and deception. Furthermore, there is a general consensus, even among CQT proponents, that there is no specific ‘lie response’.
  2. The CQT is not a standard test: The term “test” inappropriate because it suggests there is a standard; the pre-test interview is completely subjective and based upon intuition and rapport with the interviewee.
  3. The evaluation of the physiological responses in the CQT is highly subjective and un-standardized: Lack of standardization characterizes not only the choice and presentation of the CQT questions, but also the measurement and quantification of the physiological responses. This is rather surprising because the type of physiological responses monitored during a typical CQT can be easily measured in an objective manner, using computerized procedures.
  4. The CQT is vulnerable to contamination bias: In the CQT practice it is considered vital that the same interrogator constructs the questions and conducts the questioning. Often this interrogator also tallies up the results of the examination. This approach introduces contamination into the investigative process because judgments made on the basis of the CQT are based on more information than is contained in the physiological measures alone (e.g. the examinee’s criminal records and the information contained therein; the behavior of the examinee during the pre-test interview and the test). While such rich information could enhance the accuracy of the polygraphist’s final judgment, it also contaminates ‘objective’ evidence with mere impressions… This contamination problem is especially acute when results obtained from CQT tests are presented as objective and scientific, when in fact the CQT is just a tool aiding the investigator in collecting impressions. The way a ‘lie detector’ works carries an aura of mystery, but the true mystery is not in the function of the polygraph machine, but in the function of the mind of the human polygraphist behind the machine.
  5. The CQT is vulnerable to countermeasures: It is possible, indeed quite easy, to train guilty examinees and prepare them for a polygraph examination in such a way that with a high probability they will be found truthful. This can be done by adopting some rather simple techniques, which can be picked up with little effort and can cause very strong reactions to the control questions. These techniques rely either on the use of physical means (such as biting one’s tongue), or mental means (calling to mind an exciting or frightening event, or engaging in mental activities that require effort) each time a control question is asked. [31]


Ben-Shakhar makes a valid criticism on polygraph experiments—it is hard (arguably nearly impossible) to determine which subjects are truly telling the truth or a lie. “In order to allow conclusions about the value of the CQT, as typically conducted in real-life conditions, an experiment should fulfil the following requirements (citation omitted):

  1. The existence of a clear, conclusive and irrefutable criterion for the guilt or innocence of the research participants. Clearly, without such a criterion there is no way to determine whether the CQT interrogator was right or wrong in a particular case.
  2. A representative sampling of examinees and of the situations in which CQTs are employed.
  3. Independence between the criterion and the polygraph examiner’s judgment (which may be affected by all the information at his disposal).
  4. Testing conditions in the experiment, which resemble those of a true examination. In particular, it is important that the examinees be anxious about the consequences of the test and take it seriously, and that the lie or the transgression be real.

A review of the literature reveals that no existing experiments (with the possible exception of the Ginton et al., 1982 study) meet all these requirements. In particular, there are no experiments that simultaneously fulfil both the first and the last requirement. All the experiments providing a satisfactory criterion are simulations (‘mock crimes’), in which the participants know that they are participating in a role playing game.” [32]  No role-playing game, not even the latest high tech video RPG, can perfectly simulate a potential life-threatening situation caused by your life being placed in the hands of a test that is subject to the whims and biases of the test examiner.

Ben-Shakhar argues the use of the PCSOT is not a “specific-incident test” but a “screening test,” “it is likely to be even less valid than the forensic use of polygraphy. Specifically, the CQT is used with convicted sex offender to verify whether or not they complied with their parole conditions (e.g. whether or not they engaged in various sex-related misbehaviors). Thus, unlike the typical criminal investigation, sex offenders are not examined about a specific crime or a specific known event, but rather on a set of hypothetical misbehaviors that might or might not have occurred. This application of the CQT falls in the category of ‘event-free’ usages, which pauses an additional host of concerns.” Ben-Shakhar adds SOs with “cognitive distortions,” i.e., those who believe they have caused no harm by their actions, would likely pass a polygraph. [33]  

Finally, Ben-Shakhar points out pro-polygraph advocates misinterpret (likely intentionally) the stats from the 2003 National Research Council report by emphasizing the report allegedly found a polygraph accuracy level of around 80%-90%. “Unfortunately, this is a gross misrepresentation of the report and it is misleading when presented in the context of sex offenders. First, the accuracy figures presented in the NRC report are not accuracy rates, but rather areas under ROC curves and an area of 0.80 does not mean that classifications based on the CQT are correct in 80% of the cases. Second, and more importantly the report qualifies these estimates
and it is misleading to present the accuracy figures out of context.” [34]  

Rosky’s 2006 critique also fines numerous problems with polygraph usage:

  1. Validity issues: “There is no argument that the instrumentation used in polygraph testing is actually measuring blood pressure, breathing, heart rate, and perspiration; rather, it is the assumption within polygraph testing that if a subject shows some physiological response assumed to be related to deception during the polygraph examination, then the subject is deceptive. As many authors have noted, it requires a logical leap to assume that the response is due solely to deception because this response can also be attributed to fear, anxiety, anger, and many medical or mental conditions. If we cannot establish definite construct validity that polygraph testing detects deception, this undermines any scientific or practical usage.”
  2. Accuracy Issues: “…[M]ost of the studies cited in support of polygraph testing lacked sufficient peer review and were methodologically flawed… Several polygraph proponents often cite accuracy numbers for polygraph testing from the 2003 NRC report as if the NRC endorsed what was found in their literature review or at best, downplay the NRC’s findings. In reality, the NRC concluded that no credible estimate of polygraph accuracy could be determined beyond the appearance that the polygraph seemed to detect deception at rates greater than chance for incident-specific tests only and that increases in the reliability and accuracy of the polygraph were unlikely. Hence, any number that is reported in the literature supporting post-conviction polygraph as being verified by the NRC is not true.”
  3. The Base Rate Problem: “Moreover, even if we were to grant polygraph testing a high accuracy rate, the real determinant of how well the test performs is derived from its positive and negative predictive values, not its accuracy… Within the context of post-conviction polygraph testing, false positives do not pose a threat to public safety. However, they errantly increase supervision and incarceration costs and they are constitutionally troubling in that these offenders are being punished for offenses and violations they did not commit. False negatives, however, do pose a significant threat to public safety.”
  4. Habituation and Sensitization: “Give the regularity with which post-conviction polygraph tests are administered, there is concern that repeated administration of polygraph tests may habituate or sensitize offenders… any impact of prior test, even a minor impact, can negatively and significantly affect polygraph accuracy. Yet some proponents such as Heil and English (2009) claim, without any empirical support, that a different polygraph examiner should be used from test to test to ward off the potential for habituation.”
  5. Other Accuracy Issues: There is no research on the impact of various physical or mental diseases on polygraph results, examiner’s skill and the lack of a training standard, and countermeasures can impact polygraph results. [35]

To summarize the opponent arguments, polygraphs lack a universal standard, have a lack of evidence showing physiological changes are solely the result of lying and not other physical or mental issues, suffers from contamination bias (due to the myths about people convicted of sexual offenses), there is difficulty in designing an adequate test to accurately measure effectiveness, proponent studies are methodologically flawed and lack peer review or outright lying, and the ability of the polygraph to be defeated with a number of tests or simply with repeated use.

Legal Cases on Polygraph Usage

The key central argument against the use of polygraphs centers on the 5th Amendment protection against self-incrimination. The recurring theme of many of the cases below is that 5th Amendment can be invoked IF the answers to questions could lead to a criminal investigation. If disclosure of potentially criminal activity on a polygraph exam does NOT potentially lead to more criminal prosecution, then compelling the person subjected to a polygraph exam to answer questions does not violate the 5th Amendment. Though many case cited here have reached similar conclusions, it is still important to dissect some of the main cases, as other questions were raised by the use of polygraphs as treatment tools.

McKune v. Lile, 536 U.S. 24 (2002)

The case that gave us the myth of “frightening and high recidivism” also reversed a US District Court and the 10th Circuit by ruling the Kansas Sexual Abuse Treatment Program (SATP) did not violate the 5th Amendment protection against self-incrimination. Writing for the 5-person majority, Justice Kennedy wrote, “The consequences in question here–a transfer to another prison where television sets are not placed in each inmate’s cell, where exercise facilities are not readily available, and where work and wage opportunities are more limited–are not ones that compel a prisoner to speak about his past crimes despite a desire to remain silent. The fact that these consequences are imposed on prisoners, rather than ordinary citizens, moreover, is important in weighing respondent’s constitutional claim… A prison clinical rehabilitation program, which is acknowledged to bear a rational relation to a legitimate penological objective, does not violate the privilege against self-incrimination if the adverse consequences an inmate faces for not participating are related to the program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.” Kennedy relied on Sandin v. Conner, 515 U.S. 472, 485 (1995) as the basis for his ruling.

The 4-person dissenting opinion, written by Justice Stevens, argued, “Based on an ad hoc appraisal of the benefits of obtaining confessions from sex offenders, balanced against the cost of honoring a bedrock constitutional right, the plurality holds that it is permissible to punish the assertion of the privilege with what it views as modest sanctions, provided that those sanctions are not given a “punitive” label. As I shall explain, the sanctions are in fact severe, but even if that were not so, the plurality’s policy judgment does not justify the evisceration of a constitutional right… It is undisputed that respondent’s statements on the admission of responsibility and sexual history forms could incriminate him in a future prosecution for perjury or any other offense to which he is forced to confess.1 It is also clear that he invoked his Fifth Amendment right by refusing to participate in the SATP on the ground that he would be required to incriminate himself. Once he asserted that right, the State could have offered respondent immunity from the use of his statements in a subsequent prosecution. Instead, the Kansas Department of Corrections (Department) ordered respondent either to incriminate himself or to lose his medium-security status. In my opinion that order, coupled with the threatened revocation of respondent’s Level III privileges, unquestionably violated his Fifth Amendment rights.”

United States v. Lee, 315 F.3d 206, 212 (3d Cir.2003), cert. denied, 540 U.S. 858, 124 S.Ct. 160, 157 L.Ed.2d 106 (2003)

In this case, the Court rejected an argument that Lee was in custody during the polygraph, because if he felt compelled to leave, the polygraph can be removed in moments, and “the presence of a polygraph machine and a former police officer do not constitute compulsion for Fifth Amendment purposes.” The Court also determined “polygraph condition also does not violate Lee’s Fifth Amendment right because the condition does not require him to answer incriminating questions.”

“As to questions that do not pose a realistic threat of a future criminal prosecution, the intrusion into the area of self-incrimination when undergoing a polygraph test is no greater than the requirement that the probationer answer truthfully at all other times during the probation inquiry. 3A probationer may not refuse to answer a question just because his answer would disclose a violation of probation; rather, a probationer may only invoke his privilege against self-incrimination if a truthful answer would expose him to a prosecution for a crime different from the one on which he was already convicted. Murphy, 465 U.S. at 435-36 n. 7, 104 S.Ct. 1136.”

“The Fifth Amendment, therefore, is not infringed upon when a person on supervised release is asked during the polygraph examination about his compliance with a release condition, if violation of that condition could not serve as the basis for a future criminal prosecution. For example, the examiner may ask Lee whether he had unsupervised contact with minors or had used the internet, without running afoul of the Fifth Amendment. Such an inquiry relates to Lee’s compliance with release conditions and does not involve conduct that by itself would be criminal. Thus, appellant’s Fifth Amendment right is not implicated with respect to questions that do not pose a threat of future criminal prosecution.”

“We find that the polygraph condition is neither unnecessary nor overly burdensome… We do not believe that this condition is vague.”

U.S. v. York, 357 F.3d 14 (1st Cir. 2004)

In this case, the convicting court had placed the following conditions on York: “The defendant shall be required to submit to periodic polygraph testing as a means to insure that he is in compliance with the requirements of his therapeutic program. No violation proceedings will arise based solely on a defendant’s failure to “pass” the polygraph. Such an event could, however, generate a separate investigation. When submitting to a polygraph exam, the defendant does not give up his Fifth Amendment rights.”

York challenged impending conditions of release. York argued that the mandatory polygraph testing condition is invalid because (i) it will compel him to incriminate himself in violation of his Fifth Amendment rights; (ii) it constitutes an impermissible delegation of the judicial function to non-judicial officers; and (iii) it is an inherently unreliable and thus unreasonable means of ensuring compliance with supervised release conditions.

Of note is by the time this case was decided, the US attorney argued at least one other major court ruling that stated the polygraphs themselves are acceptable tools of treatment despite being unreliable:

“York next asserts that the polygraph requirement is unreasonable, and thus invalid, because polygraph tests are inherently unreliable and cannot measure whether he is in fact complying with his treatment program. York points to the Supreme Court’s acknowledgment that “there is simply no consensus that polygraph evidence is reliable.” United States v. Scheffer, 523 U.S. 303, 309, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). In response, the United States does not deny that polygraph technology is of doubtful reliability, but it asserts that the polygraph is nevertheless a useful tool for policing defendants’ compliance with conditions of supervised release. Regardless of the device’s actual ability to detect lies, the government suggests, the polygraph provides an incentive for York to pursue his treatment program honestly because he may believe that if he lies about his progress, the polygraph will expose him. At least one court of appeals has endorsed this view. See United States v. Taylor, 338 F.3d 1280, 1284 n. 2 (11th Cir. 2003) (polygraph testing is useful in promoting the treatment of sex offenders because “probationers fear that any false denials of violations will be detected”); see also United States v. Lee, 315 F.3d 206, 217 (3d Cir. 2003) (polygraph testing can be “beneficial in enhancing the supervision and treatment” of a sex offender).”

The Court ultimately declined to issue a blanket ruling on the use of Polygraphs, stating, “[W]e cannot accept on faith that polygraphs are effective at deterring lies, irrespective of their accuracy. The deterrent effect of polygraph testing, after all, is related to the reliability question: York will only be deterred from lying if he believes that a polygraph will likely expose his lies. Perhaps polygraphs, while imperfect, are reliable enough to achieve this deterrent effect. Perhaps they will be so reliable in 2006. The record provides no basis on which to make such a determination.”

“We construe the district court’s order to provide that York’s supervised release shall not be revoked based on his valid assertion of Fifth Amendment privilege during a polygraph examination. So construed, York’s sentence, including the special conditions of supervised release, is valid…To the extent York raises specific Fifth Amendment objections to incriminating questions that may be asked or coercive tactics that may be employed by the Probation Office, his arguments are premature. York remains free to assert his Fifth Amendment privilege if, after he begins his supervised release term in 2006, such circumstances actually arise.”

States v. Antelope, 395. F.3d 1128, 1132 (9th Cir. 2005)

The 9th Circuit decision ruled, “…[A]s a general rule, countervailing government interests, such as criminal rehabilitation, do not trump this right. Thus, when ‘questions put to [a] probationer, however relevant to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution,’ he may properly invoke his right to remain silent. Murphy, 465 U.S. at 435, 104 S.Ct. 1136. Antelope’s risk of incrimination was ‘real and appreciable.’ The SABER program required Antelope to reveal his full sexual history, including all past sexual criminal offenses. Any attempt to withhold information about past offenses would be stymied by the required complete autobiography and ‘full disclosure’ polygraph examination. Based on the nature of this requirement and Antelope’s steadfast refusal to comply, it seems only fair to infer that his sexual autobiography would, in fact, reveal past sex crimes. Such an inference would be consistent with the belief of Roger Dowty, Antelope’s SABER counselor, who suspects Antelope of having committed prior sex offenses. The treatment condition placed Antelope at a crossroads-comply and incriminate himself or invoke his right against self-incrimination and be sent to prison. We therefore conclude that Antelope’s successful participation in SABER triggered a real danger of self-incrimination, not simply a remote or speculative threat.”

We have no doubt that any admissions of past crimes would likely make their way into the hands of prosecutors. Dowty made clear that he would turn over evidence of past sex crimes to the authorities.   As he explained at Antelope’s probation revocation hearing, Dowty has reported his clients’ crimes in the past and his reports have led to additional convictions.” It is problematic that the courts assume that invoking the 5th here implies guilt. However, this assumption works favorably for Antelope as the 5th Amendment is triggered.

On the subject of compulsion, the Court stated, “The irreconcilable constitutional problem, however, is that even though the disclosures sought here may serve a valid rehabilitative purpose, they also may be starkly incriminating, and there is no disputing that the government may seek to use such disclosures for prosecutorial purposes. In fact, Antelope’s SABER counselor testified that he routinely transmits to authorities any admissions his clients make about past sex crimes, and that such reports have led to more prosecutions and convictions…On the basis of McKune, we hold that Antelope’s privilege against self-incrimination was violated because Antelope was sentenced to a longer prison term for refusing to comply with SABER’s disclosure requirements.”

The Court rejected the Government’s argument that Antelope had no entitlement to an assurance of immunity before making incriminating statements: “It contends, in effect, that the government has the right to compel Antelope to incriminate himself, prosecute him, and force him to litigate the admissibility of each piece of evidence in future criminal proceedings. Only then, according to its view, can Antelope properly assert his Fifth Amendment privilege. We disagree. As the Supreme Court has explained, adoption of the government’s position would all but eviscerate the protections the self-incrimination clause was designed to provide.”

William Thomas LEONARD, Appellant v. The STATE of Texas, 385 S.W.3d 570 (2012)

This case is interesting because the court initially published an opinion on March 7, 2012 upholding the use of the polygraph in a parole revocation hearing, stating, “Because adjudication hearings are administrative proceedings, in which there is no jury and the judge is not determining guilt of the original offense, we hold that the results of polygraph exams are admissible in revocation hearings if such evidence qualifies as the basis for an expert opinion under Texas Rules of Evidence 703 and 705(a).”

This Court overruled its own decision, ruling, “Because the trial court adjudicated the appellant guilty based on a third party’s exercise of discretion, we must look at the basis for that underlying exercise of discretion. Here, the only basis for the third party’s decision was the results of polygraph examinations. We hold that Rule 703 does not allow an expert to present opinion testimony based on scientifically unreliable facts or data. Additionally, the ‘show no deception’ requirement in the terms of the appellant’s community supervision does not provide a basis for admitting unreliable evidence. Therefore, the only evidence supporting revocation was inadmissible. The trial court abused its discretion by adjudicating the appellant guilty.”

State of Wisconsin v. Spaeth, 2012 WI 95

The Wisconsin Supreme Court determined that evidence of a previously unknown criminal event brought up during a polygraph examination is inadmissible in court. “In sum, the law unequivocally provides that incriminating testimony may be compelled but that it may be disclosed only for purposes relating to correctional programming, care, and treatment of the offender. These legitimate purposes include revocation of probation or parole.”

Spaeth was compelled to take the polygraph under threat of revocation of probation. The Court determined Spaeth was not required to invoke his right against self-incrimination. Finally, the attenuation doctrine (an exclusionary rule allows evidence to be admitted when the connection between unconstitutional police practice is remote or has been interrupted by an intervening circumstance so that the violation is not served by suppression) was “simply inapplicable when police are following up compelled, incriminating testimonial statements”. The state was required to show that any evidence in its possession was wholly independent of the compelled statements, which it was unable to do.

Put another way, Since Spaeth’s statements had been compelled, nothing derived from them could be used in his criminal prosecution. Since the investigation stemmed solely by obtaining this compelled statement, it could not be used in court.

US v Von Behren, 822 F.3d 1139 (10th Cir. 2016)

Von Behren successfully challenged his revocation of supervised release as the result of failing to answer polygraph questions related to sexual history. Failing to answer the questions would lead to removal from the program, according to the non-negotiable contract that Von Behren was forced to sign. The courts noted, “Moreover, the agreement contained the following provision concerning information gained by RSA regarding any crimes committed by Mr. Von Behren: I hereby instruct RSA, Inc. to report to any appropriate authority or authorities any occurrence or potential occurrence of any sexual offense on my part regardless of how RSA, Inc. gains knowledge of such occurrence or potential occurrence.” In other words, information obtained in a sexual history report could lead to more criminal charges. Even after a District Court ruling modified Von Behren’s release terms allowing him to refuse to answer questions that could lead to a criminal investigation, RSA program again demanded Von Behren submit to a sexual history polygraph.

The 10th Circuit ruled that Von Behren had a 5th Amendment right to refuse to answer the specific questions that could lead to criminal charges. The courts found that the answers can negatively impact not only new investigations on past acts, but lead to assumptions that could influence any future investigations as well: “Furthermore, an affirmative answer could potentially be used against Mr. Von Behren if he were ever charged with a sex crime. For instance, if Mr. Von Behren were to answer yes to the underage sex question or the physical force question, those answers could be used against him to show he has a propensity to commit such bad acts…Because the answers to the four mandatory questions could focus an investigation—otherwise ignorant of his past sex crimes—on Mr. Von Behren, and also because his confession to these past crimes could potentially be used against him at trial under Fed. R. Evid. 413 and 414, we conclude that Mr. Von Behren faces at least some authentic danger of self-incrimination by answering three of the four mandatory questions in the RSA’s sexual history polygraph.”

People v. Ruch, 2016 CO 35, 379 P.3d 309 (Colo. 2016)

In this ruling, the Colorado Supreme Court ruled that Ruch could not refuse taking a polygraph altogether as a “blanket assertion’ of his 5th Amendment rights. The court stated Ruch could not invoke the 5th while merely anticipating incriminating questions, but could retain his right to refuse to answer incriminating questions.

“[W]e perceive no Fifth Amendment violation here…In these circumstances, Ruch’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege…[W]e conclude that Ruch’s refusal to attend treatment based on his hypothetical concerns as to what might have been asked of him amounted to a blanket claim of privilege in advance of any questions being propounded, and this blanket claim was both ineffective and premature.”

In re People v. Roberson, 2016 CO 36, 377 P.3d 1039 (Colo. 2016)

This case involved a revocation of probation specifically for not answering polygraph questions under fear of further prosecution. This Court ruled:

“For Fifth Amendment purposes, the privilege against self-incrimination extends not only to answers that would themselves support a conviction but also to those that would furnish a link in the chain of evidence needed to prosecute the accused. Ohio v. Reiner, 532 U.S. 17, 20, 121 S.Ct. 1252, 149 L.Ed.2d 158 (2001); People v. Razatos, 699 P.2d 970, 976 (Colo.1985). Accordingly, “[t]he right not to incriminate oneself is not triggered solely by the existence or even likelihood of a criminal prosecution; rather, `[w]hen a witness can demonstrate any possibility of prosecution which is more than fanciful he has demonstrated a reasonable fear of prosecution sufficient to meet constitutional muster.'” Steiner v. Minn. Life Ins. Co., 85 P.3d 135, 142-43 (Colo.2004) (quoting In re Folding Carton Antitrust Litig., 609 F.2d 867, 871 (7th Cir.1979)).”

“Here, for two reasons, we conclude that Roberson’s answer to the polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation presented a possibility of prosecution that was more than fanciful. First, at the time of the probation revocation hearing, Roberson’s convictions were on appeal. Thus, any statements that Roberson made would have been available for use against him at a retrial…Second, Roberson’s answer to the polygraph examiner’s question as to whether he used or viewed child pornography while he was on probation could have established grounds for a new criminal charge of possession of child pornography…”

“Accordingly, we conclude that Roberson’s answer to the polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation, could have furnished a link in the chain of evidence needed to prosecute him and was therefore incriminating within the meaning of the Fifth Amendment…”

“On the record before us, however, we are unable to determine whether Roberson’s answer to the polygraph examiner’s question regarding any sexual fantasies involving minors that Roberson might have had within the preceding six months would also have been incriminating within the meaning of the Fifth Amendment…it is undisputed that the examiner’s question regarding any sexual fantasies involving minors that Roberson might have had in the preceding six months related to a time period after Roberson’s trial was over. Whether Roberson’s answer to this question would have been admissible in a subsequent retrial and thus would have been incriminating is unclear, and the district court did not make sufficient findings to allow us to decide this issue…”

“In Murphy, 465 U.S. at 422, 104 S.Ct. 1136…The Court noted a distinction, however, between cases in which punishment is threatened for reliance on the privilege and cases in which a witness is merely required to appear and give testimony. Id. at 435, 104 S.Ct. 1136. A state may require a probationer to appear and discuss matters relating to his probation, and such a requirement would not alone give rise to a self-executing privilege…The present case involves the type of classic penalty situation that the Court found absent in Murphy. Specifically, at least as construed by the People, the probation conditions at issue here required Roberson to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent. Moreover, the People here expressly sought to revoke Roberson’s probation based on the exercise of his Fifth Amendment rights…”

“[T]he People argue that the state could revoke Roberson’s probation because the revocation was not designed to punish Roberson for exercising his Fifth Amendment rights but instead was motivated by the state’s legitimate interest in facilitating sex offender treatment. The United States Supreme Court, however, has ‘rejected the notion that citizens may be forced to incriminate themselves because it serves a governmental need.’ Cunningham, 431 U.S. at 808, 97 S.Ct. 2132.”

Ultimately, the Court determined the 5th can be invoked where there is a “reasonable fear” of criminal sanctions for the answer to a question.

Bennett v Bigelow, 387 P.3d 1016 (Utah 2016)

The Utah Supreme Court held that threat of revocation of supervision constituted compulsion in violation of the Fifth Amendment.

“Brendt Bennett claims that his Fifth Amendment rights were violated when he was required to disclose his entire sexual history, including any uncharged sexual crimes, as part of his sex offender treatment during parole. He refused to make these disclosures and his parole was revoked, requiring him to return to prison to potentially serve the remainder of his indeterminate six year to life sentence. The district court dismissed Mr. Bennett‘s Fifth Amendment challenge to the parole revocation at summary judgment. We hold that Mr. Bennett has established that genuine issues of material fact exist that preclude the grant of summary judgment and reverse…”

“Although the State argues that our decision today will undermine the purposes and effectiveness of sex offender treatment programs, a compelling state  interest does not outweigh an individual‘s Fifth Amendment rights. The Supreme Court, recognizing this problem, suggested the solution in Murphy: ―[A] state may validly insist on answers to even incriminating question and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination. Given the circumstances of Mr. Bennett‘s case—that he has received a life sentence for prior sex crimes—it would seem that the State‘s need to retain the ability to further prosecute Mr. Bennett is significantly less than its need to ensure that it is both wise and safe to release him on parole. But without immunity, the State cannot require Mr. Bennett to choose between incriminating himself and losing his parole.”

People v. Garcia, Case No. S218197 (CA Sup Ct, Mar. 20, 2017)

The California Supreme Court found that the state’s use of polygraphs didn’t violate 5th Amendment protections because the compelled responses during the exam could not be used in a subsequent criminal proceeding. The Court proclaimed, “At the People‘s invitation — and to remove any doubt on this score — we explicitly declare that probationers have immunity against the direct and derivative use of any compelled statements elicited under the subdivision (b)(3) condition.” The Court also rejected the argument the polygraph exam could ask questions not relevant to treatment, like finance questions, claiming the exam is “limited to that which is reasonably necessary to promote the goals of probation.”

J.B./L.A./B.M./W.M./R.L. v. New Jersey State Parole Board (A-81/82/83-15) (077235) [NJ Sup. Ct. May 8, 2017)

This 2017 case was a direct challenge to the use of polygraphs as a condition of parole. Each registrant is on “parole supervision for life” (PSL) or “community supervision of life” (CSL) sentences. The parolees raised constitutional claims based on the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel, and constitutional privacy interests. They also contend that the Parole Board’s regulations are arbitrary and capricious. Ultimately, the Court ruled the use of polygraphs for those on supervision was valid, but added the Parole Board’s regulations must be further supplemented to buttress the parolees’ Fifth Amendment right against self-incrimination. The Court noted that the N.J.S.A. 30:4-123.88 specifically states that “the results of the polygraph examination shall not be used as evidence in court to prove a violation of the special sentence of [CSL or PSL] or condition of discharge has occurred.”

United States v. Richards, No. 19–8044 (10th Cir. 2020)

Richards was convicted of a sex offense in federal court and amongst the conditions of supervision that were imposed by the court was a requirement that he be subjected to periodic polygraph testing. He filed a court order to try to prevent the polygraph tests, but the Court determined the case was premature.

“The district court imposed several special conditions of supervised release, which, as relevant here, relate to drugs and alcohol and require Defendant to submit to polygraph testing. On appeal, Defendant argues the district court erred in imposing these special conditions. He also challenges the length of his prison sentence as substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm…

“Here, neither the Government nor any other entity has threatened—explicitly or by implication—to revoke Defendant’s supervised release if he refuses to answer a question during a polygraph examination on valid Fifth Amendment grounds. Nothing in the record suggests the Government has attempted or intends “to take the extra, impermissible step” of compelling Defendant to incriminate himself. To the contrary, the Government affirms in its brief that “Defendant faces no risk of revocation based on validly asserting his privilege[ ] because such a revocation would be unlawful.” Nor does the polygraph condition, on its face, spell out that forbidden penalty.” (Citations omitted.)

United States v. Rogers, No. 18-2097 (1st Cir. 2021)

The First Circuit ruled mandatory polygraphs imposed as a condition of treatment do not violate the Fifth Amendment so long as revocations do not arise solely from failing polygraphs or from invoking Fifth Amendment rights. The Court also held that Appellant’s suspension from treatment for violating terms of his release did not violate Due Process.

“While on supervised release after serving a term of incarceration for possession of child pornography, Brian K. Rogers underwent two polygraph examinations and admitted to accessing the internet to view pornography, thereby violating a condition of his release. After ignoring his sex offender treatment clinician’s instruction to contact his probation officer about the violation, Rogers was suspended from the treatment program, thereby violating another condition of his release. On those facts, the court revoked Rogers’s supervised release and sentenced him to six months of imprisonment and an additional eight years of supervised release. On appeal, Rogers argues that the revocation of his release violated his Fifth Amendment privilege against self-incrimination and that his suspension from treatment violated his right to due process under the same. We affirm.”

SUMMARIZING YOUR RIGHTS

“As to the lie detector, I do want to make this comment on it. I have always held to the opinion that it is not a perfect piece of machinery. It is an inter- pretation made by human beings of what the machine, the polygraph, shows. I would never want to convict or to send to the penitentiary any person solely on the evidence of the lie detector. It is a contribution in an investigation, a more or less psychological contribution. But I have seen individuals who have failed the lie detector test and who were just as innocent as they could be.” — J. Edgar Hoover, HEARINGS Before the President’s Commission on the Assassination of President Kennedy, Vol. V, 24 Sept. 1964., p.103

To summarize polygraphs and their usage in sex offender treatment:

  1. The polygraph does not “detect lies” but merely detects changes in heart rate, breathing, blood pressure and perspiration, and the results are interpreted by someone likely to be biased against the person taking the test.
  2. Polygraphs fail scientific scrutiny tests and are generally not admissible in court. However, polygraphs are being repackaged as tools to aid in sex offender treatment programs.
  3. The tools are utilized as an intimidation tool to extract confessions from people in the program suspected of dishonesty. The effects of these intimidation tactics carry over into the studies performed by polygraph proponents.

Proponents of polygraph PCSOT usage rely largely on self-report studies by test subjects who were likely coerced or were willing to tell researchers what they wanted to hear to curry favor so that researchers can claim a higher number of “undetected victims” as well as overestimate the ability of polygraphs to detect deception. Other studies rely on various degrees of stat manipulation. Arguing for the use of polygraphs requires proponents to downplay the fact the test is beatable. The PCSOT relies on the belief that the polygraph is a magic device, so proponents have a vested interest in keeping the mystique of the polygraph alive. All of these myths must be propagated for the polygraph to even be remotely useful.

In reality, polygraphs lack a universal standard, have a lack of evidence showing physiological changes are solely the result of lying and not the result of other physical or mental issues; suffers from contamination bias (due to the myths about people convicted of sexual offenses); suffers from difficulty in designing an adequate test to accurately measure effectiveness; are based on proponent studies that are methodologically flawed,  lack peer review, and/or is outright lying; and can be defeated with a number of tests or simply with repeated use.

The majority of legal decisions come to a consensus viewpoint. Despite the majority of studies on polygraph use suggest the polygraphs are not effective tools in sex offender treatment, courts have generally allowed states to use the polygraph as a “treatment” tool. While you generally lack the ability to refuse to take the entire polygraph test, you SHOULD have the right to plead the 5th WHEN that particular question that may lead to future criminal charges. There should be agreements written out in treatment programs and/or polygraphs that specifically state whether or not the results can be used against you in a court of law.

REFERENCES

  1. Daly, Reagan. “TREATMENT AND REENTRY PRACTICES FOR SEX OFFENDERS: An Overview of States. Vera Institute of Justice. Sep 2008. p.20-21, Table 2
  2. Ibid., p.24-25, Table 5 (Note: only 36 states responded to the Vera Institute survey; Alaska, Maryland, )
  3. Ibid., pgs. 9, 11
  4. “William Moulton Marston.” Wikipedia. 2017. Web. <https://en.wikipedia.org/wiki/William_Moulton_Marston>
  5. “The Truth About Lie Detectors (aka Polygraph Tests).” American Psychological Association. 5 Aug. 2004. Web <http://www.apa.org/research/action/polygraph.aspx>
  6. “The Polygraph and Lie Detection.” National Academy of Sciences. 2003. Book. p.2-3
  7. George W. Maschke and Gino J. Scalabrini. “The Lie Behind the Lie Detector: 4th digital edition.” AntiPolygraph.org, 2005. Web. <https://antipolygraph.org/lie-behind-the-lie-detector.pdf>, p.16
  8. Ibid., p.18
  9. Dan Vergano. “Telling the truth about lie detectors.” USA Today, Sept. 9, 2002. Web. <http://www.usatoday.com/news/nation/2002-09-09-lie_x.htm>
  10. US v. Scheffer, 523 US 303 (1998); US v. Henderson, F. 3d 1293 (11th Cir. 2005), US v. Antelope, 395 F. 3d 1128 (9th Cir. 2005)
  11. “Polygraph Test Too Flawed for Security Screening.” The National Academies, Oct. 8, 2002.
  12. WorriedMom. “Texas sex offender & mandatory polygraph.” AntiPolygraph.org forums. 27 Nov 2011. Web. <https://antipolygraph.org/cgi-bin/forums/YaBB.pl?num=1006910562/0>  Retrieved 5 Aug 2018
  13. Ibid., Reply #2 from G. Scalabr, 28 Nov 2011
  14. “Racial Bias in Polygraphy and Possible Cover-up: Cause for Concern?!” AntiPolygraph.org. <https://antipolygraph.org/documents/dodpi-racial-bias-study.pdf> “The attached 22-page document was presented by Dr. Gordon H. Barland, then Director of Research, Department of Defense Polygraph Institute (DoDPI), to members of the federal polygraph research community at a group meeting in 1990. Shortly thereafter, the DoDPI director, who attended that presentation, requested that the documents be returned or that the portion which referred to racial bias studies conducted by DoDPI (the last nine pages)
    be destroyed.”
  15. See Gaines, Keith. “An Analysis of the Effects of Antipolygraph.org on the Polygraph Community.” American Polygraph Organizaion (APA) Magazine. May/ June 2008. Vol. 41,3. p.27-29.  Notice the article’s mention of the recent use of polygraphs against “sex offenders” as a justification for supporting the expanding use of polygraphs.
  16. Kokish, Ron, Levenson, Jill and Blasingame, Gerry D. “Post-conviction Sex Offender Polygraph Examination: Client-Reported Perceptions of Utility and Accuracy.” Sexual Abuse: A Journal of Research and Treatment, Vol. 17, No. 2, April 2005. DOI:10.1007/s11194-005-4606-x
  17. Rosky, Jeffrey W. “The (F)utility of Post-Conviction Polygraph Testing.” Sexual Abuse: A Journal of Research and Treatment 2012: 25(3) 259–281. p.260
  18. Cooley-Towell, Sydney, Pasini-Hill, Diane, an Patrick, Diane. “The Value of the Post-Conviction Polygraph: The Importance of Sanctions.” Polygraph, 2000, 29(1), p.6-8
  19. Rosky, Jeffrey. “The (F)utility of Post-Conviction Polygraph Testing.” Sexual Abuse: A Journal of Research and Treatment 25 (3) 259 –281. 2012. p.260-261
  20. Grubin, D, The case for polygraph testing of sex offenders, Legal and Criminological Psychology, Volume 13, Number 2, September 2008 , pp. 177-189(13). <https://pdfs.semanticscholar.org/0e9d/60c1829c8832b37ca7b9ba8832a4395c2b5f.pdf>, Retrieved 6 Aug 2018
  21. Ibid.
  22. Ibid.
  23. Ibid.
  24. Sean Ahlmeyer, Peggy Heil, Bonita McKee, and Kim English. “The Impact of Polygraphy on Admissions of Victims and Offenses in Adult Sexual Offenders.” Sexual Abuse A Journal of Research and Treatment 12(2):123-38 · May 2000
  25. Kokish, Ron, Levenson,  Jill S., Blasingame Gerry D. “Post-conviction Sex Offender Polygraph Examination: Client-Reported Perceptions of Utility and Accuracy.” Sexual Abuse: A Journal of Research and Treatment, Vol. 17, No. 2, April 2005
  26. Gruben, Don, and Madsen, Lars. “The accuracy and utility of post-conviction polygraph testing with sex offenders .” British Journal of Psychiatry, 188:479-483.
  27. Rosky, “(F)utility”, p.262
  28. Aviv, Rachel. “The Science of Sex Abuse.” The New Yorker. 14 January 2013. Magazine. Found online at <https://www.newyorker.com/magazine/2013/01/14/the-science-of-sex-abuse> , Retrieved 6 Aug 2018
  29. Cook, Roger, Barkley, William, and Anderson, Peter. “The Sexual History Polygraph Examination and Its Influences on Recidivism.” Journal of Social Change 2014, Volume 6, Issue 1, Pages 1–10
  30. Ben-Shakhar, Gershon. “The case against the use of polygraph examinations to monitor post-conviction sex offenders.” Legal and Criminological Psychology (2008), 13, 191–207, p.192
  31. Ibid.
  32. Ibid. p.195-199
  33. Ibid., p. 201-203
  34. Ibid., p.203
  35. Rosky, “(F)utility”, pgs.260-266