Higher Courts Have Curtailed Polygraph Use During Trials

When federal judges allow testimony on the results of lie detector tests, they risk the possibility of reversal because higher courts--especially the U.S. 9th Circuit Court of Appeals--have set narrow boundaries under which such evidence can be used.

In the case of former FBI Agent Richard Miller, whose conviction for spying was overturned Tuesday, the 9th Circuit Court ruled that U.S. District Judge David V. Kenyon erred by allowing “extensive” testimony about Miller’s polygraph examination, which he failed, thus exposing the jury to the “full prejudicial impact” of the lie detector results.

The key equation in such delicate balancing acts, at least in federal courts, is whether the value of polygraph evidence outweighs the potential prejudice to defendants, according to legal experts and past federal appeals court rulings.

“Typically, (trial judges) just do not admit lie detector results because the polygraph is just so open to abuse” and jury misinterpretation, said Judy Clarke, executive director of Federal Defenders, an organization of federal public defenders in San Diego.

Confessed After Failing Test

Miller proclaimed his innocence during early interrogations by FBI agents, but he later confessed after a polygraph examiner for the agency told him that he had failed a lie detector test.

Miller’s attorneys later sought to bar testimony concerning Miller’s polygraph examination, saying its prejudicial effect would outweigh its use as evidence. But Kenyon ruled that since Miller was going to challenge his self-incriminating statements, it was only fair to allow federal prosecutors to “set the scene” that led to Miller’s confession.

The judge then allowed the jury to hear the specific questions that Miller had been asked during the lie detector exams and the responses he had given--an act that the appeals court Tuesday described as Kenyon’s “abuse of discretion.”

Across the country, there is no uniformity when it comes to rules governing whether polygraph results can be admitted--and, if so, under what circumstances.

For instance, two different federal appeals courts have issued rulings, in 1979 and again in 1987, that appear somewhat at odds with Tuesday’s decision.

In the earlier case, the 7th Circuit upheld a trial judge’s ruling in a case where a defendant sought to prove that his confession had not been voluntary. The judge allowed the defendant to question the circumstances of his admission, but also permitted prosecutors to introduce evidence that he had confessed after being told he had failed a polygraph.

The appeals court concluded that “it would have been unfair to allow defendant to present his account of his admissions . . . without allowing the government to demonstrate the extent to which the failure of the polygraph precipitated the confession.”

Two years ago, the 3rd Circuit issued a similar ruling.

The California Supreme Court has ruled that polygraph results cannot be used at all in state courts--not even when opposing lawyers agree to such evidence, according to Sterling E. Norris, a senior Los Angeles County deputy district attorney.

But incriminating statements or outright confessions made during the course of a polygraph examination can be used as long as the testimony concerning such statements do not allude to the lie detector examinations, Norris said.

Many federal appeals courts, on the other hand, have said it is within a trial judge’s discretion whether to admit polygraph evidence.

But more often than not, Clarke said, federal judges “just do not admit polygraph either way because it’s just so open to abuse.”

She added: “Polygraphs are along the lines of voodoo. The machine is a detector of responses, not of lies. All it does is test one’s reactions to a question. That’s why people who are very good at lying like it.”

Polygraph supporters ardently reject such characterizations.

“Like many other tools, it has a useful role in the law,” Boston attorney F. Lee Bailey said in a telephone interview. “It’s not a panacea, but it is more effective than any other means of determining truth under many circumstances.”

One “huge limitation,” Bailey conceded, is that polygraph results “can get fuzzy.”

He elaborated: “Polygraphs are very good in bank robberies--you either were there or you weren’t. But what if you were only in on the planning? Or if you were selling land in Mexico and the deal went sour, the polygraph will not be very useful in trying to determine fraudulent intent.”

Los Angeles defense attorney Howard L. Weitzman added: “Polygraphs can be a very useful tool, but it depends almost wholly on the examiner. The real key is whether you have faith in its validity and its reliability. That can only be determined on a case-by-case basis.”

In defending auto maker John Z. DeLorean on cocaine-trafficking charges here several years ago, Weitzman asked U.S. District Judge Robert M. Takasugi to allow him to introduce polygraph results that had been paid for by the defense. The judge, himself a former Army polygraph examiner, agreed--but under the condition that DeLorean undergo a second, FBI-conducted polygraph.

“But we felt the FBI examiner was manipulating John,” Weitzman recalled. In the end, neither polygraph evidence was introduced.

Bailey and Clarke, among others, lament the fact that the U.S. Supreme Court has never addressed head-on the issue of the admissibility of polygraph evidence.

“It’s a shame. The federal and state courts are all over the place. It’s just a crazy quilt. The Supreme Court ought to settle the matter. And I’ve pleaded with them,” said Bailey, who said he is “the only living member of the American Polygraph Assn. who is not an examiner.”

Without a definitive ruling from Washington, the 9th Circuit has in recent years expressed its “inhospitable view” toward the admission of unstipulated polygraph evidence.

In a 1983 case, the court took note of the polygraph’s “questionable reliability” and its “misleading appearance of accuracy.” Three years later, the court said that polygraph evidence “has an overwhelming potential for prejudice.”