By Paula Reed Ward
Pittsburgh Post-Gazette
PITTSBURGH — Under Pennsylvania law, polygraph results are not admissible at trial because of their unreliability. Despite that, the tests are now being used by probation officers across the state to supervise sex offenders.
“It’s really the gold standard,” said Allegheny County Common Pleas Judge Jill E. Rangos, who presides over sex offender court. “It is the most accurate way to gauge if treatment is working.”
The tests, advocates say, are designed to help guide an offender’s treatment, to ensure that the offender is following the rules of probation and to reduce recidivism.
But defense attorneys and scholars argue that polygraph tests are inherently unreliable and potentially violate offenders’ rights against self-incrimination.
Jane Campbell Moriarty, a law professor at Duquesne University, said allowing the use of polygraph evidence in some court proceedings but not in others is illogical.
“I would disagree with any court letting it in for any reason.”
How it works
A polygraph examination measures a person’s breathing and respiratory pattern, the heart rate, relative blood pressure and galvanic skin response — or sweat.
The subject is hooked up to electronic equipment that measures those elements and connects to a computer. As questions are asked, the responses are charted with peaks and valleys on the monitor.
“Everybody is nervous that takes a polygraph test,” said William Barrett, who operates Assured Polygraph Services Inc. and has administered more than 4,000 tests in 15 years. “If you’re guilty, you’re worried you’re going to be found out. If you’re innocent, you’re worried the damn thing is going to be wrong.
“It’s not called a nervous detector. We’re looking for specific reactions indicative of deception.”
In addition to being used to determine if someone committed a crime, polygraphs are also used for pre-employment screening and by government agencies for security purposes.
Sometimes, too, defense attorneys offer to have their clients take one, and spouses will seek them when there are allegations of cheating.
But in the context of sex offender court, Mr. Barrett administers three types of exam: the instant offense test, the history test and a maintenance test.
The testing session takes about 90 minutes, including a pre-test interview where he gathers background information, the actual exam administration and then discussing the results at the conclusion.
There are three possible results — no deception indicated, deception indicated, or inconclusive.
Mr. Barrett said that the accuracy rate for polygraph examinations is about 87 percent.
“It’s more accurate than eyewitness identification and handwriting analysis, which is widely accepted,” he said. “How can we say that’s not a valuable tool? It’s not the be-all and end-all. But it’s certainly a useful tool to use in the treatment and management of these cases.”
Sex offender court
Allegheny County began its specialized sex offender court docket in June 2011.
Before it began, Judge Rangos and others reviewed programs across the country to determine what worked best to assess a defendant’s risk of reoffending.
The polygraph examination, the judge said, works best.
“It is a very good tool to determine whether someone is compliant with treatment,” she said.
When a sex offender is placed on probation, there are often a multitude of restrictions, including not having access to the Internet or being around children. Polygraph examinations specifically include questions to determine if an offender is complying with those rules.
A lot of the value of the polygraph, Judge Rangos said, is in the pre-test questions — asking offenders if they have anything to disclose before they are hooked up to the equipment.
Mr. Barrett said the polygraph can break down barriers and lead to disclosures from offenders.
He cites as an example a case where a defendant had denied involvement in a sex offense for four years, but when he was finally polygraphed and failed, the man admitted what he’d done.
“The treatment people and probation were elated because now they can make progress,” Mr. Barrett said.
David Gentile, a psychologist and approved treatment provider in sex offender court, said the polygraph examinations hold defendants accountable for their behavior while on probation.
“If we didn’t have that, it would simply be their word if they are violating their safety plan,” he said.
Mr. Gentile considers the polygraph a treatment tool.
“It’s hard to admit to this kind of stuff, and I get that. It is an extremely shameful crime,” he said. “Being honest when they come into treatment is not the norm because there is a great sense of denial or minimization.”
The instant offense test, which is also sometimes called a denial test, seeks to have an offender disclose the crime for which he or she is in treatment.
In a situation where a defendant pleads no contest to a crime — perhaps to avoid traumatizing a child, or to avoid a prison term — a denial test is administered.
If the defendant passes, he does not have to undergo sex offender treatment. If he fails, however, Judge Rangos said, he must accept responsibility for the crime to be allowed to enter treatment and successfully complete probation.
In the history test, the examiner must be careful not to violate a defendant’s Fifth Amendment right against self-incrimination. With that test, Mr. Barrett is not looking for identifying information to find additional victims, but instead wants to learn about an offender’s sexual history, which allows for more specialized treatment -- for example, was the current offense the first time a crime occurred, or have there been repeated instances?
The maintenance test examines a defendant’s current behavior to ensure compliance with the treatment program, like, for example, if he or she has used drugs or alcohol.
Judge Rangos readily admits that the polygraph is not admissible at trial.
“But for purposes of determining treatment, courts have found it to be admissible in that arena,” Judge Rangos said.
Pennsylvania’s Supreme Court has affirmed the use of polygraphs regarding probation violations repeatedly in recent years, including in a 2013 case, Commonwealth vs. A.R. There, the court found that the defendant’s polygraph results were not offered as evidence he violated probation, but to explain why the program staff had kicked him out of treatment.
“Nobody goes to jail or gets revoked for failing a polygraph,” Mr. Barrett said.
But the offender may get revoked for refusing to take the test — which is part of the probationary requirements — or for the alleged underlying violations that led to failing it.
If an offender does fail, the results of the test are sent to the person’s probation officer to follow up and investigate.
“We try not to violate people without something more than just the polygraph,” Judge Rangos said. But, she continued, “there’s really no hope for treatment if the person is not participating in a meaningful way.”
Questions on validity
Ms. Moriarty, the Duquesne law professor, has been writing about neuroscience lie detection since 2008 and is currently writing a book on the subject.
In a recent paper, she noted that the National Academy of Sciences found that polygraph accuracy can range from 55 to 99 percent, depending on the circumstances of the exam and the experimental settings that have been studied.
She is critical of polygraph exams, primarily because they are so subjective, and there are not yet any scientifically accepted methods and standards for administration.
Among her concerns, Ms. Moriarty has asked examiners if others who administer polygraph tests could interpret their results, and the answer she’s received is no.
They have come into accepted use in probation cases, she said, because, “I think we’re just terrified of sexual offenders.
“It seems inappropriate to me that their liberties should be taken away because of a test that we find neither sufficiently valid nor reliable to be used at trial,” Ms. Moriarty said.
David Rudovsky, a civil rights attorney in Philadelphia, noted that polygraphs are not allowed at trial because of reliability but also because of the notion that jurors would put too much weight on the results and stop listening to other evidence in the case.
But in probation hearings, there are relaxed rules of evidence. Allegations there do not have to be proved beyond a reasonable doubt. For that reason, he does not believe a legal challenge against polygraph use in probation hearings will succeed.
Ms. Moriarty, though, believes that recent state court decisions regarding polygraphs have muddied the waters.
“Unwittingly, what they’re doing is creating tension in the law,” she said.
Patrick Thomassey, a longtime defense attorney in Allegheny County, dislikes the tests.
“I’ve had absolutely very, very guilty people pass polygraphs, and I’ve had people who were as innocent as the new-driven snow flunk them — because so much has to do with the internal mechanism of the person and the examiner’s opinion.”
Mr. Barrett admits there are potential countermeasures that can be used to beat the polygraph — changing breathing patterns, tightening sphincter and abdominal muscles, shaking a leg or hand.
“Do people beat it? Sure,” he said. “If we have a sociopath who believes their lies, then they’re not lies.
“But if a person knows right from wrong, generally, the polygraph works.”