The following article was originally printed in AAPP's Police Polygraph Digest.
Editor Comment: Doing a good job and having integrity does not exempt any of us from possible litigation. That is not something to fear, but it is something to have in the frontal lobe as you handle your professional affairs.
Polygraphist Liability Exposure by Robert A. Badgley, Esq.
** the previously posted non-working link has been corrected as of 6/11/09 **
Many thanks to Melanie Javens of Complete Equity Markets (800.323.6234 ext. 460) for submitting this article to Real Polygraph and also to Mr. Badgley and AAPP for permission to reprint.
Tuesday, May 26, 2009
Polygraph in the News - 5/26/2009 (Special Focus - Legal Issues)
The following are articles in which Polygraph is playing an important role in the World. (Article descriptions are mine)
** Please note that many news sources archive/move their articles after a certain period of time. If a story link no longer works, this may be what happened.
** Please note that many news sources archive/move their articles after a certain period of time. If a story link no longer works, this may be what happened.
- A current criminal case in Minnesota, State vs Dressel, involves a confession obtained after taking a polygraph examination. The defense attempted to have the confession tied to the polygraph and make the confession inadmissible. This was denied but is being appealed. This is a potentially precedent setting case and should be on our radar, especially for law enforcement examiners. I found two articles discussing the finer details of this case.
http://www.minnlawyer.com/article.cfm/2009/05/25/Polygraphs-Nothing-but-the-truth http://motionofdiscovery.blogspot.com/2009/05/voluntary-statements-made-during.html
- Wendi Boutiette, an Oregon coach charged with sex abuse, has filed a motion to have her NDI polygraph results admitted into evidence.
http://www.theworldlink.com/articles/2009/05/22/news/doc4a158d5a7261c840367404.txt
- Former football star Michael Vick was released today from prison after serving time related to illegal dog fighting and animal cruelty. What shouldn't be missed about this is that Vick's polygraph test, which he failed, was one influencing factor in his sentencing and decision that he was not as separated from the illegal activities as his plea agreement stated. And a side benefit of that is that enough attention was brought to the subject that the Animal Fighting Prohibition Enforcement Act was upgraded to include stronger sentencing for this type of crime. The following article provides an overview of the case.
http://www.examiner.com/x-8898-Oklahoma-City-Pet-Laws-Examiner~y2009m5d20-BREAKING-NEWS-Michael-Vicks-release-from-prison-a-dog-gone-shame
ENDS THIS SUNDAY, 31st - 1 Technique Guide + 1 T-shirt - $20 (Save $7)
This May Special ends Sunday - Any T-shirt of your choice + Technique Guide for $20 (saves you $7 off regular pricing)
** You must be a polygraph examiner to order this special. Credentials will be verified prior to shipping the technique guide. **
Order Links:
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For other Polygraph Related Merchandise and Resources, visit:
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Ralph Hilliard
The Polygraph Place
770.794.1325
** You must be a polygraph examiner to order this special. Credentials will be verified prior to shipping the technique guide. **
Order Links:
Design: "In God We Trust" + Polygraph Technique Guide
Design: "Polygraph Examiner" + Polygraph Technique Guide
Design: "Live Each Day as if you will take a Polygraph Tomorrow" + Polygraph Technique Guide
Design: "Veritas" + Polygraph Technique GuideFor other Polygraph Related Merchandise and Resources, visit:
http://store.polygraphplace.com
Ralph Hilliard
The Polygraph Place
770.794.1325
Tuesday, May 19, 2009
Polygraph in the News - 5/19/2009
Survivor contestant 'Coach' Ben Wade hands Jeff Probst polygraph results of a lie detector test performed by John Grogan.
** Please note that many news sources archive/move their articles/videos after a certain period of time. If a story or video link no longer works, this may be what happened.
Editor's Comments:
I was out of the office on Monday. I returned today to find my in-box filled with emails about the Polygraph Test Results on the final Survivor show. It appears that John Grogan performed a polygraph test on contestant Ben Wade. Ben presented the written results on the live television show as a surprise for Jeff Probst. Rather than give you the running list of polygraph articles this week, I've decided to highlight what I've found regarding the show.
In case you did not watch Survivor and want to see the part in question, I found the following clip on YouTube. You can forward to 3:05 into the clip...that is where they start the story on 'coach' Ben Wade.
I found many discussion groups and blogs discussing this story. The most extensive seems to be the actual CBS Survivor Forums. On the show, Probst said that he would be "calling him after the show" referring to John Grogan. I wonder if he will do that. By the way, this is not some obscure reality show that no one will watch or believe in, this is Primetime television and one of the most watched reality shows of all time. Anyone still feel like we don't need to be more involved in media relations and how polygraph is portrayed on tv? As you read the forum posts, take special note of all the blatantly incorrect impressions and information on polygraph.
http://www.cbs.com/forum/posts/list/51738.page
A discussion has begun in this regard on the polygraph place examiner's only private forum and I hope you'll join in the discussion. I would especially like to see discussion on what we as a profession can do to better represent real polygraph on television and to the media in general.
http://www.polygraphplace.com/cgi-bin/ubbcgi/Ultimate.cgi
** Please note that many news sources archive/move their articles/videos after a certain period of time. If a story or video link no longer works, this may be what happened.
Editor's Comments:
I was out of the office on Monday. I returned today to find my in-box filled with emails about the Polygraph Test Results on the final Survivor show. It appears that John Grogan performed a polygraph test on contestant Ben Wade. Ben presented the written results on the live television show as a surprise for Jeff Probst. Rather than give you the running list of polygraph articles this week, I've decided to highlight what I've found regarding the show.
In case you did not watch Survivor and want to see the part in question, I found the following clip on YouTube. You can forward to 3:05 into the clip...that is where they start the story on 'coach' Ben Wade.
I found many discussion groups and blogs discussing this story. The most extensive seems to be the actual CBS Survivor Forums. On the show, Probst said that he would be "calling him after the show" referring to John Grogan. I wonder if he will do that. By the way, this is not some obscure reality show that no one will watch or believe in, this is Primetime television and one of the most watched reality shows of all time. Anyone still feel like we don't need to be more involved in media relations and how polygraph is portrayed on tv? As you read the forum posts, take special note of all the blatantly incorrect impressions and information on polygraph.
http://www.cbs.com/forum/posts/list/51738.page
A discussion has begun in this regard on the polygraph place examiner's only private forum and I hope you'll join in the discussion. I would especially like to see discussion on what we as a profession can do to better represent real polygraph on television and to the media in general.
http://www.polygraphplace.com/cgi-bin/ubbcgi/Ultimate.cgi
What's New on the Real Polygraph Blog
1. Upcoming Polygraph Seminars
We have added a new area on the blog for Upcoming Polygraph Seminars (See gray colored area on right side of blog) This will be a running list that is updated weekly. If your state association seminar is not listed, please send the information to us at detector@polygraphplace.com and we'll make sure it is included in our next update.
2. How the blog 'CONTENT LABELS' feature works
You may have noticed the CONTENT LABELS on the right hand side of this blog. These labels are important and will be me even more so as the blog grows over time. These labels are put on each story/article that is posted here. They make it easy to find any posts related to a particular topic. For example, to find past posts that include information on voice stress, you can look at the labels and you will see there is a label 'Voice Stress Analysis (2)'. The (2) refers to how many posts have the Voice Stress Analysis label. If you click that label, the blog will show you the two relevant posts on voice stress.
3. Nerd Note Tip - Make your online life easier by using the 'Find' tool on any web page
- You've typed your search term 'voice stress' into your browser.
- You get back a list of related web sites and click one.
- The page opens and you find miles of written text.
- You are forced to skim/read the entire document to find the parts specifically related to 'voice stress'.
- Not only is this frustrating but a huge time muncher, am I right?
NO MORE! The keyboard shortcut Ctrl-F comes to your rescue. This works for all browsers that I have used - Internet Explorer, Firefox, Safari, etc. After you start using this keyboard shortcut, you'll wonder how you got along without it. To activate while browsing any website, hold down the Control button (usually labeled Ctrl in lower left and right of keyboard) and then press the 'F' key on the keyboard. This will open the 'Find' tool. Type in your phrase 'voice stress' and click 'next' on the find tool. This will highlight the first instance of that phrase in the page. Click next again and it will take you to the next instance of that phrase. And on and on until there are no more and it starts over at the top. Try it. I've included a visual aid below. This image shows the find tool and highlighted phrase.
Monday, May 11, 2009
Polygraph in the News - 5/11/2009
The following are articles in which Polygraph is playing an important role in the World. (Article descriptions are mine)
** Please note that many news sources archive/move their articles after a certain period of time. If a story link no longer works, this may be what happened.
** Please note that many news sources archive/move their articles after a certain period of time. If a story link no longer works, this may be what happened.
- A new play with polygraph and lying as central themes premiere's in the Asolo Repertory Theatre in Sarasota, Fl. May 15th. Any examiners in this area who enjoy theatre and attend, I'd love to get your feedback after you see it. Apparently the author of the play has spent a couple of years researching prior and it would be interesting to see how polygraph is ultimately portrayed.
http://www.heraldtribune.com/article/20090510/ARTICLE/905101015/
- Candidate Gary Horlacher, a candidate for Georgia Secretary of State voluntarily took a polygraph test as step #3 in his 3-Step Plan to return honesty and ethics to politics. He's asking other candidates to do the same. The test was conducted by Clifford Cormany, a retired FBI Polygraph Examiner. His website is ipgroup.net. What bothers me about the test already are the listed questions. Example "Throughout my career, both in the private sector and in public service, I have never engaged in any illegal or unethical activity, whether for quid-pro-quo payment to myself or others, or to further the interest of a client or business." Wow, that's a mouthful for a relevant question. Would be interesting to see these charts. Something tells me they won't be made available to the public.
http://www.onlineathens.com/stories/051009/opi_438123708.shtml
- Likely countermeasures captured on television during polygraph examination regarding the Australian 'Black Saturday Fires'. There is a video included in this story. After watching the video, I resonated with the examiner's frustration. It is frustrating when you just can't get an examinee to stop their obvious manipulation. Take a close look at the cardio tracing clips they show in the video.
http://www.news.com.au/heraldsun/story/0,21985,25445672-661,00.html
- DNA & Polygraph Results work together. This case seems like a good example of using forensic evidence to help narrow certain aspects of a case without jumping to full conclusions of guilt or innocence. The suspects' bonds were lowered and they were given more freedom, but they were not acquitted.
http://www.gastongazette.com/news/evidence-33577-yarmolenko-motion.html
APA run off election for VP - Private - Candidate Raymond Nelson
I understand there is to be a run-off election for the APA Vice President - Private position and that ballots have already been mailed out. The Polygraph Place promotes membership participation and to that end, we allow the publishing of candidacy statements for these elections. What follows is the statement for run-off candidate Raymond Nelson.
*********************************************************************************
Greetings again from Colorado:
I am contacting you again to request your vote in the current run-off election for APA Vice President – Private.
Why, you ask, do I think I am the best qualified candidate for the role of VP – Private?
Several reasons:
I am a goal-directed professional, who enjoys working hard and solving problems:
I am a polygraph examiner in private practice, and I also have cross-training and experience in related areas of clinical treatment and psycho diagnostics, forensic risk assessment, policy development, and inferential statistics and research.
I have extensive experience in sex offender treatment, (with adults and juveniles), treating victims of abuse, chronic mental health treatment, family and couples therapy, and treating persons with developmental disabilities.
I remain interested in all aspects of measurement and research as it applies not only to polygraph testing, but to mental health, sexual abuse, and risk management.
I attended polygraph school in 2000, and have been a polygraph examiner in private practice since 2001. Polygraph testing, for me, is not a side job, or second source of income. Polygraph testing is my full-time professional occupation.
As a self-employed professional running a small business, I am intimately aware of the challenges faced by independent professionals, including marketing, business operations, and the expense of continuing education. I am also aware of the importance of developing a healthy professional culture that is enthusiastic about the next phase of advancement.
Contributions to the polygraph profession:
In Colorado, I was a central and active participant in the development and re-development of the policies and procedures of the Sex Offender Management Board (SOMB), pertaining to polygraph testing, psycho-sexual risk assessment, and parental risk assessment with adult and juvenile sex offenders.
I have volunteered countless hours to the improvement of the polygraph science through the development of a powerful free computer scoring algorithm (OSS-3) that is available in the Lafayette and Limestone systems, is based on common inferential statistical approaches that will be instantly recognizable to statisticians and scientists in any scientific profession, and is designed to handle ZCT, MGQT and screening exams. In the spirit of service to the polygraph profession, we have open-sourced the algorithm and it is now available without cost to field examiners and researchers everywhere.
In the spirit of giving-back and collaboration with other professionals I have devoted much time to co-authoring several articles that have appeared in the Polygraph Journal.
APA and the future of polygraph... click to Ray Nelson's complete full statement
*********************************************************************************
Greetings again from Colorado:
I am contacting you again to request your vote in the current run-off election for APA Vice President – Private.
Why, you ask, do I think I am the best qualified candidate for the role of VP – Private?
Several reasons:
I am a goal-directed professional, who enjoys working hard and solving problems:
I am a polygraph examiner in private practice, and I also have cross-training and experience in related areas of clinical treatment and psycho diagnostics, forensic risk assessment, policy development, and inferential statistics and research.
I have extensive experience in sex offender treatment, (with adults and juveniles), treating victims of abuse, chronic mental health treatment, family and couples therapy, and treating persons with developmental disabilities.
I remain interested in all aspects of measurement and research as it applies not only to polygraph testing, but to mental health, sexual abuse, and risk management.
I attended polygraph school in 2000, and have been a polygraph examiner in private practice since 2001. Polygraph testing, for me, is not a side job, or second source of income. Polygraph testing is my full-time professional occupation.
As a self-employed professional running a small business, I am intimately aware of the challenges faced by independent professionals, including marketing, business operations, and the expense of continuing education. I am also aware of the importance of developing a healthy professional culture that is enthusiastic about the next phase of advancement.
Contributions to the polygraph profession:
In Colorado, I was a central and active participant in the development and re-development of the policies and procedures of the Sex Offender Management Board (SOMB), pertaining to polygraph testing, psycho-sexual risk assessment, and parental risk assessment with adult and juvenile sex offenders.
I have volunteered countless hours to the improvement of the polygraph science through the development of a powerful free computer scoring algorithm (OSS-3) that is available in the Lafayette and Limestone systems, is based on common inferential statistical approaches that will be instantly recognizable to statisticians and scientists in any scientific profession, and is designed to handle ZCT, MGQT and screening exams. In the spirit of service to the polygraph profession, we have open-sourced the algorithm and it is now available without cost to field examiners and researchers everywhere.
In the spirit of giving-back and collaboration with other professionals I have devoted much time to co-authoring several articles that have appeared in the Polygraph Journal.
APA and the future of polygraph... click to Ray Nelson's complete full statement
Monday, May 4, 2009
Polygraph in the News - 5/4/2009
The following are articles in which Polygraph is playing an important role in the World. (Article descriptions are mine)
** Please note that many news sources archive/move their articles after a certain period of time. If a story link no longer works, this may be what happened.
** Please note that many news sources archive/move their articles after a certain period of time. If a story link no longer works, this may be what happened.
- Independent Polygraph Test passed by Judge accused of threats of violence.
http://www.thenewstribune.com/news/local/story/729154.html
- Polygraph test helps Michigan teen come clean regarding a false confession of shooting a pellet gun at a school bus.
http://www.whmi.com/news/article/8262
- Polygraph Pretest gets confession from abusive child care provider. "The boy, who now is 4 years old, suffered at least 19 rib fractures, a broken leg bone, a fractured skull, a bruised penis, and a tongue burned so badly it blistered in May 2005."
http://www.nwherald.com/articles/2009/05/01/r_zzzrvacxsrafwtfyjsnig/index.xml
- The legal battle between two British examiners is over. Don Cargill admits to false statements and ordered to pay fine and legal expenses. Don Grubin states, 'I'm worried this libel case will bring the whole profession into disrepute.'
http://www.dailymail.co.uk/news/article-1176249/Trishas-lie-detection-expert-ordered-pay-25-000-Jeremy-Kyle-rival--telling-lies-him.html
- Failed Polygraph Test helps get confession in New Orleans burglary/arson case. 'He eventually admitted to burglarizing the unit with a second person. The two then planned the burn the unit to cover their tracks.'
http://www.nola.com/news/index.ssf/2009/04/authorities_say_suspect_set_me.html
- Raskin involved in testimony to introduce polygraph results as evidence in Utah missing person case. "If (Jeppson) had had any involvement, I certainly would not expect to see charts like this," said David C. Raskin, an emeritus professor of psychology at the University of Utah and a forensic psychological consultant."
http://www.deseretnews.com/article/1,5143,705300282,00.html
Gray "Veritas" (TRUTH) fitted Tees on Sale
Limited Number & Sizes. These gray shirts will not be not be re-ordered, but the black version will remain in inventory. First come, first serve.
We have a limited number of the gray Veritas (Truth) T-shirts on clearance.
Regular Price is $17.
Clearance Price is $10.
Order Links:
Gray Veritas (Truth) Fitted Tshirt.
For other Polygraph Related Merchandise and Resources, visit:
http://store.polygraphplace.com
Ralph Hilliard
The Polygraph Place
770.794.1325
We have a limited number of the gray Veritas (Truth) T-shirts on clearance.
Regular Price is $17.
Clearance Price is $10.
Order Links:
Gray Veritas (Truth) Fitted Tshirt.
For other Polygraph Related Merchandise and Resources, visit:
http://store.polygraphplace.com
Ralph Hilliard
The Polygraph Place
770.794.1325
Marston & Frye: Icons or Annoyances? reappraising the history of polygraph... - James R. Wygant
As originally published in Polygraph News & Views - Volume 17, Number 3
MARSTON & FRYE: ICONS OR ANNOYANCES?
reappraising the history of polygraph...
The Supreme Court decision in Frye v.United States(1) remains a measure of the overall credibility of polygraph, even though it has been replaced by more recent court decisions regarding admissibility. Critics of polygraph cite Frye as the first and strongest argument for dismissing polygraph as something so unscientific that it approximates fraud. Advocates for polygraph regard Frye as a landmark that identifies the beginning of a process of polygraph recognition and development; and they hold high regard for William Marston, the man who tested James A. Frye.
Critical analysis of what occurred in the Frye case suggests that the methods used were no more comparable to polygraph than is voice stress analysis; and yet Marston and the Frye case remain steeped in myth and misinformation.
Frye v. United States was a decision made by the U.S. Court of Appeals for the District of Columbia in 1923. It set a standard for admissibility of forensic testimony that remained in place for seventy years until Daubert v. Merrell Dow Pharmaceuticals(2) in 1993. Standards of admissibility were further modified by Kumho Tire Co. v. Carmichael(3) in 1999, which ultimately resulted in revision of Rule 702, the federal rule of evidence for forensic testimony.
Much of the confusion regarding Frye originated with the man who ran the test, William Marston, a chronic self-promoter whose notoriety from the Frye case allowed him to appear in an ad endorsing razor blades, and who also created the Wonder Woman comic strip.
Marston became interested in the use of blood pressure to detect lies while he was a student in psychology at Harvard. He already had a law degree at that time. He favored a technique of repeatedly checking blood pressure, inflating and deflating the cuff five times per minute while listening for pulse with a stethoscope.(4) The only provision for a recording was Marston’s notes, which he would then use to construct a graph. He published his findings in 1917. When newspapers issued reports of his findings they referred to the process as a “lie detector,” a designation which Marston made no apparent effort to contradict.
In an article that Marston wrote called “Can You Beat the Lie Detector”(5) he recalled the Frye case with slight regard for the facts. He quoted Frye’s own version of what happened as though it were fact.
At the time Marston did his test of Frye on June 10, 1922 in Frye’s jail cell, John Larson had already been working for about a year at the Berkeley California Police Department on developing what ultimately became the polygraph, an instrument that made a continuous recording of several simultaneous physiological changes.
So why is Marston considered a pioneer in development of polygraph? It appears to be primarily because he loudly claimed to be able to detect lies, which makes no more sense than granting the same status to Charles Humble, the perpetrator of Computer Voice Stress Analysis. Certainly Marston made the first significant effort in U.S. courts to get some form of lie detection admitted, but he failed miserably. His failure left a stain on polygraph that still lingers.
The details of James A. Frye’s crime are well established. Frye, a black man, was accused of using a handgun to murder Dr. Robert Brown, also black, on the evening of November 25, 1920, in Washington, D.C. The shooting occurred in Dr. Brown’s office while another physician was visiting. Another witness said he’d seen Frye enter the office. No one actually witnessed the shooting, but the visiting physician said he chased Frye down the street afterwards until Frye shot at him. Frye was not otherwise known to the witnesses.
Frye was arrested on August 21, 1921 for a robbery. He confessed to the robbery and to the murder of Dr. Brown, but he soon retracted his confession to the murder, explaining that he’d been offered reward money for his confession by a drug dealer who then failed to pay him. He suggested that the drug dealer had really committed the murder. He also at a later time suggested that the physician who had been visiting the victim had been the murderer.
CHANGING VERSIONS
Dr. James E. Starrs of George Washington University, who has a passion for correcting myths surrounding famous murder cases, presented the results of his study of Frye at the 33rd annual meeting of the American Academy of Forensic Sciences in 1981. He pointed out that Frye’s version of what happened changed over the years as he filed requests for pardons and apparently neglected to match his “facts” with what he had written previously.(6)
In the 1923 Appeals Court decision, theMarston test was identified as a “systolic blood pressure deception test,” a name presumably offered by Marston. The Frye ruling was quite brief. It stated:
Marston’s primitive blood pressure test became confused with the polygraph, developed by Larson, in the eyes of the courts and polygraph critics as time passed. It was enough that they both purported to be able to detect lies. Unfortunately neither had enough research in those early years to establish validity or reliability. Even though Larson’s procedure bore virtually no resemblance to what Marston had done, Marston’s failure to gain admissibility set a standard that was used repeatedly to deny admissibility of polygraph. His procedure of repeatedly checking blood pressure with a stethoscope quickly faded into obscurity.
The standard for admissibility today in federal court has been relaxed and is left largely to the discretion of individual judges. The notes of the committee that drafted revisions to Federal Rule 702 after the Kumho case (which followed Daubert) state, “An opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist.”(7) The committee expanded the “reliability” requirement to include: 1) sufficient data, 2) reliable principles and methodology, and 3) reliable application of the methodology.(8)
The Daubert case has become a benchmark upon which revisions to Federal Rule 702 are built and upon which subsequent cases like Kumho have been decided. A common interpretation of admissibility in federal court under Rule 702 is that expert testimony must assist the trier of fact (the jury if there is one, otherwise the judge) in resolving a disputed issue. If a judge decides that protracted and contrary arguments over the admissibility of polygraph testimony would constitute more hindrance than help in a trial, he can rule against polygraph on that basis alone.
The Court refused in Daubert to provide a checklist for forensic testimony admissibility, leaving the final decision to the trial judge. However, the Court held that several factors might be helpful, although not mandatory:
Even though admissibility standards in federal court have been relaxed, polygraph testimony is still almost never admitted over objection. The same is true in state courts, which tend to follow the federal model. The exception is New Mexico here manageable rules have governed admissibility without major incident for several years.
Polygraph has advanced considerably since the pioneering work of John Larson and Leonarde Keeler in the 1920s and 1930s. The profession followed an entirely different route than that advocated by William Marston, whose work was a dead end never adapted to any practical use. Polygraph as it is known today is supported by numerous studies that distinguish levels of validity and reliability. It may be time to reassess the place of William Marston and James A. Frye in the history of polygraph.
—
(1) Frye v. United States, 293 F.2d 1013 (D.C. Cir., 1923)
(2) Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
(3) Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999)
(4) Kelly, J., “The Truth About the Lie Detector”, Invention and Technology, vol. 19, no. 3, winter
2004
(5) Marston, W., “Can You Beat the Lie Detector”, reprinted in Polygraph, vol. 14, no. 4, Dec.,
1985
(6) Starrs, J., “A Still-Life Watercolor: Frye v. United States”, Polygraph, vol. 12, no. 2, June
1983
(7) http://www.law.cornell.edu/rules/fre/rules.htm
(8) http://www.bucklin.org/fed_rule_702.htm
(9) http://www.daubertontheweb.com/Chapter_2.htm
MARSTON & FRYE: ICONS OR ANNOYANCES?
reappraising the history of polygraph...
The Supreme Court decision in Frye v.United States(1) remains a measure of the overall credibility of polygraph, even though it has been replaced by more recent court decisions regarding admissibility. Critics of polygraph cite Frye as the first and strongest argument for dismissing polygraph as something so unscientific that it approximates fraud. Advocates for polygraph regard Frye as a landmark that identifies the beginning of a process of polygraph recognition and development; and they hold high regard for William Marston, the man who tested James A. Frye.
Critical analysis of what occurred in the Frye case suggests that the methods used were no more comparable to polygraph than is voice stress analysis; and yet Marston and the Frye case remain steeped in myth and misinformation.
Frye v. United States was a decision made by the U.S. Court of Appeals for the District of Columbia in 1923. It set a standard for admissibility of forensic testimony that remained in place for seventy years until Daubert v. Merrell Dow Pharmaceuticals(2) in 1993. Standards of admissibility were further modified by Kumho Tire Co. v. Carmichael(3) in 1999, which ultimately resulted in revision of Rule 702, the federal rule of evidence for forensic testimony.
Much of the confusion regarding Frye originated with the man who ran the test, William Marston, a chronic self-promoter whose notoriety from the Frye case allowed him to appear in an ad endorsing razor blades, and who also created the Wonder Woman comic strip.
Marston became interested in the use of blood pressure to detect lies while he was a student in psychology at Harvard. He already had a law degree at that time. He favored a technique of repeatedly checking blood pressure, inflating and deflating the cuff five times per minute while listening for pulse with a stethoscope.(4) The only provision for a recording was Marston’s notes, which he would then use to construct a graph. He published his findings in 1917. When newspapers issued reports of his findings they referred to the process as a “lie detector,” a designation which Marston made no apparent effort to contradict.
In an article that Marston wrote called “Can You Beat the Lie Detector”(5) he recalled the Frye case with slight regard for the facts. He quoted Frye’s own version of what happened as though it were fact.
- Frye had been approached by a negro who was supposed to be a head of a drug ring. This man would have profited by Dr. Brown’s death. He had, as a matter of fact, officially turned Frye in as the murderer, and had claimed the reward. According to Frye’s story this was the man who had promised to share the reward money with Frye and to get him out of jail just as soon as the reward had been paid. But there was a hitch in the plan because the other negro could not collect the reward. So Frye had retracted his confession.
- Nevertheless, with no other evidence in Frye’s favor save his own testimony and the offer of lie detector results, the jury acquitted him of first degree murder. He was sentenced on another charge, giving time for investigation which verified the lie detector findings. Frye and his attorneys gave the lie detector full credit for saving him from otherwise certain hanging.
At the time Marston did his test of Frye on June 10, 1922 in Frye’s jail cell, John Larson had already been working for about a year at the Berkeley California Police Department on developing what ultimately became the polygraph, an instrument that made a continuous recording of several simultaneous physiological changes.
So why is Marston considered a pioneer in development of polygraph? It appears to be primarily because he loudly claimed to be able to detect lies, which makes no more sense than granting the same status to Charles Humble, the perpetrator of Computer Voice Stress Analysis. Certainly Marston made the first significant effort in U.S. courts to get some form of lie detection admitted, but he failed miserably. His failure left a stain on polygraph that still lingers.
The details of James A. Frye’s crime are well established. Frye, a black man, was accused of using a handgun to murder Dr. Robert Brown, also black, on the evening of November 25, 1920, in Washington, D.C. The shooting occurred in Dr. Brown’s office while another physician was visiting. Another witness said he’d seen Frye enter the office. No one actually witnessed the shooting, but the visiting physician said he chased Frye down the street afterwards until Frye shot at him. Frye was not otherwise known to the witnesses.
Frye was arrested on August 21, 1921 for a robbery. He confessed to the robbery and to the murder of Dr. Brown, but he soon retracted his confession to the murder, explaining that he’d been offered reward money for his confession by a drug dealer who then failed to pay him. He suggested that the drug dealer had really committed the murder. He also at a later time suggested that the physician who had been visiting the victim had been the murderer.
CHANGING VERSIONS
Dr. James E. Starrs of George Washington University, who has a passion for correcting myths surrounding famous murder cases, presented the results of his study of Frye at the 33rd annual meeting of the American Academy of Forensic Sciences in 1981. He pointed out that Frye’s version of what happened changed over the years as he filed requests for pardons and apparently neglected to match his “facts” with what he had written previously.(6)
In the 1923 Appeals Court decision, theMarston test was identified as a “systolic blood pressure deception test,” a name presumably offered by Marston. The Frye ruling was quite brief. It stated:
- Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.
Marston’s primitive blood pressure test became confused with the polygraph, developed by Larson, in the eyes of the courts and polygraph critics as time passed. It was enough that they both purported to be able to detect lies. Unfortunately neither had enough research in those early years to establish validity or reliability. Even though Larson’s procedure bore virtually no resemblance to what Marston had done, Marston’s failure to gain admissibility set a standard that was used repeatedly to deny admissibility of polygraph. His procedure of repeatedly checking blood pressure with a stethoscope quickly faded into obscurity.
The standard for admissibility today in federal court has been relaxed and is left largely to the discretion of individual judges. The notes of the committee that drafted revisions to Federal Rule 702 after the Kumho case (which followed Daubert) state, “An opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist.”(7) The committee expanded the “reliability” requirement to include: 1) sufficient data, 2) reliable principles and methodology, and 3) reliable application of the methodology.(8)
The Daubert case has become a benchmark upon which revisions to Federal Rule 702 are built and upon which subsequent cases like Kumho have been decided. A common interpretation of admissibility in federal court under Rule 702 is that expert testimony must assist the trier of fact (the jury if there is one, otherwise the judge) in resolving a disputed issue. If a judge decides that protracted and contrary arguments over the admissibility of polygraph testimony would constitute more hindrance than help in a trial, he can rule against polygraph on that basis alone.
The Court refused in Daubert to provide a checklist for forensic testimony admissibility, leaving the final decision to the trial judge. However, the Court held that several factors might be helpful, although not mandatory:
- whether the theories and techniques employed by the scientific expert have been tested;
- whether they have been subjected to peer review and publication;
- whether the techniques employed by the expert have a known error rate;
- whether they are subject to standards governing their application; and
- whether the theories and techniques employed by the expert enjoy widespread acceptance.(9)
Even though admissibility standards in federal court have been relaxed, polygraph testimony is still almost never admitted over objection. The same is true in state courts, which tend to follow the federal model. The exception is New Mexico here manageable rules have governed admissibility without major incident for several years.
Polygraph has advanced considerably since the pioneering work of John Larson and Leonarde Keeler in the 1920s and 1930s. The profession followed an entirely different route than that advocated by William Marston, whose work was a dead end never adapted to any practical use. Polygraph as it is known today is supported by numerous studies that distinguish levels of validity and reliability. It may be time to reassess the place of William Marston and James A. Frye in the history of polygraph.
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(1) Frye v. United States, 293 F.2d 1013 (D.C. Cir., 1923)
(2) Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
(3) Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999)
(4) Kelly, J., “The Truth About the Lie Detector”, Invention and Technology, vol. 19, no. 3, winter
2004
(5) Marston, W., “Can You Beat the Lie Detector”, reprinted in Polygraph, vol. 14, no. 4, Dec.,
1985
(6) Starrs, J., “A Still-Life Watercolor: Frye v. United States”, Polygraph, vol. 12, no. 2, June
1983
(7) http://www.law.cornell.edu/rules/fre/rules.htm
(8) http://www.bucklin.org/fed_rule_702.htm
(9) http://www.daubertontheweb.com/Chapter_2.htm
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