Don’t trust your instincts!

Don’t trust your instincts!

by | Apr 15, 2018 | Lie detectors

Many people think that they are good at reading character and in determining whether someone is lying, often relying on eye movement, gaze aversion, or body language, and other behavioral signs. Unfortunately, the fact is that none of these methods have been proven to work as well as a properly conducted polygraph test. The truth of the matter is that “gut feel” or “intuition” has been shown to be only slightly better than flipping a coin.

facial expressions

While it is true that all races demonstrate the same range of facial expressions, relying on an innate belief in being able to recognize micro changes in them is likely to lead to many false conclusions.

When it comes to determining when someone is lying or telling the truth, a polygraph, or lie detector test is the most reliable method. A lie detector test relies on using sensors to record physiological indicators such as heart rate, blood pressure, skin conductance, and respiration while asking the participant to answer a carefully selected set of questions. The results are then analyzed by a professional trained in the use of the equipment and how to interpret the results.

Anyone watching television crime series might believe that the principal use for polygraphs is in assisting in criminal investigations and while they are used in that way, polygraph tests are more likely to be used in other situations. These might be pre-employment tests, particularly for jobs in law enforcement and related fields, or for businesses testing employees, spouses concerned about marital fidelity, post-conviction sex offender testing, or as part of the routine monitoring of people on probation. They are also used by defense lawyers building their case against for trial.

The critical factors in ensuring that the results of the polygraph tests are reliable are the quality of the equipment (tremendous advances have been made in the last decade) and the training of the person administering the test. In the right hands, the polygraph is the only way to obtain results with a high degree of confidence.

Are polygraph tests admissible in courts?

Are polygraph tests admissible in courts?

by | Apr 2, 2018 | Lie detectors

This is one of the most frequently asked questions, and the answer is “yes” and “no”. The U.S. Department of Justice says”Neither the United States Code nor the Federal Rules of Evidence have a specific provision concerning the admissibility of polygraph examination results.”

supreme court Although the general rule has for many years been that lie detector tests are not admissible as evidence, it has been ruled “that polygraph results are admissible (1) when the parties stipulate to admissibility in advance of the test; or (2) when the polygraph results are used to impeach or corroborate the testimony of a witness. In the latter circumstance, the party seeking to introduce the polygraph results must provide adequate notice to the opposing party; the opposing party must be given adequate opportunity to have its own polygraph expert administer a test covering substantially the same questions; and the evidence must be admissible under the rules governing corroboration or impeachment.”

Specifically in Ohio, State v. Souel (1978), 53 Ohio St. 2d 123 — Syllabus: “The results of a polygraphic examination are admissible in evidence in a criminal trial for purposes of corroboration or impeachment, provided that the following conditions are observed:”

(1) The prosecuting attorney, defendant and his counsel must sign a written stipulation providing for defendant’s submission to the test and for the subsequent admission at trial of the graphs and the examiner’s opinion thereon on behalf of either defendant or the state.”

(2) Notwithstanding the stipulation, the admissibility of the test results is subject to the discretion of the trial judge, and if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence.”

(3) If the graphs and examiner’s opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting: “(a) the examiner’s qualifications and training; “(b) the conditions under which the test was administered; “(c) the limitations and possibilities for error in the technique of polygraphic interrogation; and “(d) at the discretion of the trial judge, any other matter deemed pertinent to the inquiry. ”

(4) If such evidence is admitted the trial judge should instruct the jury to the effect that the examiner’s testimony does not tend to prove or disprove any element of the crime with which a defendant is charged, and that it is for the jurors to determine what weight and effect such testimony should be given.”

So, ultimately, the court does have the discretion to decide on the admissibility of polygraph tests in specific instances, but they are not generally allowed under current rules of evidence.

What is the Employee Polygraph Protection Act?

What is the Employee Polygraph Protection Act?

by | Mar 25, 2018 | Lie detectors

What is EPPA?

On December 27, 1988, the Employee Polygraph Protection Act (EPPA) became law. This federal law established guidelines for polygraph testing and imposed restrictions on most private employers. The following is a brief summary of the essential elements of the law.

Who is affected by EPPA?

This legislation only affects commercial businesses. Local, State and Federal governmental agencies (such as police departments) are not affected by the law, nor are public agencies, such as a school system or correctional institution. In addition, there are exemptions in EPPA for some commercial businesses. These are:

  1. Businesses under contract with the Federal Government involving specified activities (e.g., counterintelligence work).
  2. Businesses whose primary purpose consists of providing armored car personnel, personnel involved in the design, or security personnel in facilities which have a significant impact on the health or safety of any state. Examples of these facilities would be a nuclear or electric power plant, public water works, or toxic waste disposal.
  3. Companies which manufacturer, distribute or dispense controlled substances.

How does EPPA affect businesses which are not exempt?

In general, businesses cannot request, suggest or require any job applicant to take a pre-employment polygraph examination. Secondly, businesses can request a current employee to take a polygraph examination or suggest to such a person that a polygraph examination be taken, only when specific conditions have been satisfied. However, the employer cannot require current employees to take and examination, and if an employee refuses a request or suggestion, the employer cannot discipline or discharge the employee based on the refusal to submit to the examination.

What are the conditions that an employer must meet in order to ask a current employee to take a polygraph? The American Polygraph Association is furnishing the following information, which it believes is in good faith, and conforms with the Department of Labor’s Regulations relating to polygraph tests for employees. This information is considered only as a guideline to assist in complying with the Act and Regulations, and the American Polygraph Association is disclaiming any liability in connection therewith. Employers should develop their own forms, using their own company name, and should also review their final forms through their own legal counsel.

I. Checklist for the Employer

  1. The incident must be an ongoing, specific investigation.checklist
  2. It must be an identifiable economic loss to the employer.
  3. Obtain a copy of the Employer Polygraph Protection Act of 1988.
  4. Provide the employee with a written statement that includes: a. identification of the company and location of employee b. description of the loss or activity under investigation c. location of the loss d. specific amount of the loss e. type of economic loss f. how the employee had access to the loss Note: access alone is not sufficient grounds for polygraph testing g. what kind of reasonable suspicion there is to suspect the employee of being involved in the loss.
  5. The Statement provided to employee MUST be signed by someone other than the polygraph examiner, who is authorized to legally bind the employee, and MUST be retained by the employer for at least 3 years.
  6. Read the Notice to Examinee to the employee, which should be signed, timed, dated and witnessed.
  7. Provide the employee with 48 hours advanced notice (not counting weekends or holidays) to the date and time of the scheduled polygraph test.
  8. Provide employee with written notice of the date, time and location of the polygraph test, including written directions if the test is to be conducted at a location other than at the place of employment.
  9. Maintain a statement of adverse actions taken against the employee following a polygraph test.
  10. Conduct an additional interview of employee prior to any adverse action following a polygraph test.
  11. Maintain records of ALL of the above for a minimum of 3 years.
  12. Employees may not waive their rights.
  13. Police and investigators are not exempt and must comply if they are conducting an employment related polygraph test, i.e., when conducting a polygraph test on an internal theft for a missing deposit. Information about a polygraph provided to the employer by a police officer or investigator is prohibited under the Act, since employers are not allowed to use, accept or inquire about the results.
  14. There is a $10,000 penalty for EACH violation of the law.
  15. Check out the credentials of the polygraph examiner that you use and verify that the examiner meets EPPA requirements. Never hesitate to ask for written proof of licensing, liability insurance, etc.
  16. Use your company letterhead on all forms you provide to the employee. Have your corporate attorney review your actions to assure your compliance of EPPA.

For preemployment testing under EPPA, refer to the Act for exemptions. Even though an employer may be exempt and able to use preemployment polygraph testing, the guidelines under EPPA still apply. Follow the Checklist for both the employer and examiner use, omitting the step for preparation of the employer’s statement with respect to an ongoing investigation, which would apply for specific testing only. ALL OTHER GUIDELINES WILL APPLY.

US Code : Title 29, Chapter 22

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