James Ewinger reports for the Cleveland Plain Dealer in “Judge OKs Lie Detector Tests in Sex Case”:

With a Summit County judge’s decision to admit lie-detector evidence, a New York law student may end up setting legal precedent even before he takes a bar exam.

Sahil Sharma, 26, is charged with a single count of sexual battery stemming from an incident last summer. His defense is that there was mutually consensual contact.

That defense is not unusual, but the fact that he took the polygraph tests and passed them all is.

Kirk Migdal, his defense attorney, asked Judge Judith Hunter to throw the case out or admit the polygraph tests.

Hunter’s opinion, which was finding its way to the lawyers Tuesday, said the case stands, but so do the polygraphs.

Summit County Prosecutor Sherri Bevan Walsh said her office will appeal the decision.

That comes as no surprise to Migdal, because he said Walsh has fought him every step since Sharma was indicted in September, refusing to consider the polygraphs even though he says her office uses them, too.

Migdal offered to have his client take a test in which both sides would agree to accept the outcome – no matter what – before it was administered.

Under Ohio law, this is called a stipulated polygraph and it generally is the only way that the tests are admitted as evidence.

But Migdal said the prosecutors refused because the victim did not want the test to go forward.

Brad Gessner, chief assistant of the prosecutor’s criminal division, said they generally oppose polygraphs in sex cases where consent is the defense.

In such a case, a defendant may honestly believe that consent was given and answer truthfully, even if there was no consent.

So as Sharma sits at home in New York studying for the bar exam there, he has a chance to make new law here.

Professor J. Dean Carro of the University of Akron School of Law said Tuesday that Hunter made “a groundbreaking decision.” In allowing the tests, Hunter is predicting that the Ohio Supreme Court will affirm her decision, Carro said.

The practice has been that polygraphs are not admissible at trial, said Cleveland attorney Gordon Friedman, adjunct professor of criminal procedure at Cleveland State University’s John Marshall College of Law.

The exception is the stipulated form of the test.

But polygraph tests have long been recognized as a useful investigative tool for weeding out bad cases before they are indicted, Friedman said.

If a defendant passed three tests the prosecutor “has a real dilemma because that is profound,” Friedman said.

The legal scholars said the judge would have to instruct jurors that the polygraph test is a gauge of credibility.

Hunter wrote that the jurors would be told that such a test does not prove or disprove any element of the crime, and that it is up to the jury as to how much weight they will give the evidence.

Admission of the tests also would require the polygraph operators to be questioned and cross-examined in open court, and the defendant himself would have to testify.

To reach this Plain Dealer reporter:

jewinger@plaind.com, 216-999-3905

In “Freed After 22 Years,” Jonathan Casiano and Mark Mueller of the Newark, New Jersey Star-Ledger report on the case of Byron Halsey, from whom it now appears police extracted a false confession to the molestation and brutal murder of two children after he wrongly failed a polygraph examination. DNA evidence exculpates Halsey and has pointed to the identity of the true perpetrator. Excerpt:

The police chief said it was the most horrific act of violence he’d ever seen. The prosecutor called it “inhuman,” suggesting the death penalty wasn’t punishment enough for the “coward” who committed the crime.

It was November 1985, and two Plainfield siblings, ages 7 and 8, had been sexually assaulted, murdered and mutilated. Amid a high-profile investigation, authorities quickly focused on Byron Halsey, the boyfriend of the children’s mother.

A 24-year-old factory worker with a minor criminal record, Halsey failed a polygraph test. He confessed. He was tried and convicted, and when a jury spared him from the death penalty, some in the courtroom jeered. He would spend 21 1/2 years behind bars, virtually all of it in solitary confinement for his own protection.

Yesterday, in a stunning reversal, a Superior Court judge threw out Halsey’s convictions and ordered a new trial after advanced DNA testing — unavailable at the time of the prosecution — showed that the killings might have been carried out by a Plainfield neighbor.

Halsey, who later retracted his confession, was released on $55,000 bail yesterday afternoon. Outside the courthouse in Elizabeth, where a media throng and a crowd of well-wishers waited for him, Halsey tightly hugged his mother and brother and repeatedly thanked God for his release.

“There’s more nice people around me now than there have been around here in a long time,” he said.

Halsey now awaits a decision by the Union County Prosecutor’s Office on whether it will proceed with a retrial or drop the case, officially exonerating the man once derided by a prosecutor as a “calculating, evil genius.”

A spokeswoman for that office said there would be no immediate comment on a decision. A hearing on the matter is scheduled for July 9. In the meantime, Halsey is required to wear an electronic monitoring bracelet.

“It has taken more than two decades, but DNA has finally revealed the truth in this case,” said Vanessa Potkin, a lawyer with the Innocence Project, a group that works on behalf of inmates whom it considers wrongfully convicted.

If he is ultimately cleared, Halsey will be the fifth New Jerseyan and 202nd person across the coun try to be exonerated through the use of DNA evidence, according to the group, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York.

Byron Halsey’s experience is reminiscent of that of Jeffrey Mark Deskovic, who wrongly spent 16 years in prison following a polygraph-induced false confession to murder. DNA evidence ultimately exculpated Deskovic.

WorldNetDaily.com reports in a story titled, “Polygraph for Sandy Berger to be Studied” Excerpt:

A spokesman for President Bush says a demand by Republicans for Attorney General Alberto Gonzales to follow through on former White House insider Sandy Berger’s promise to take a polygraph test regarding the classified documents he took from the National Archives will be studied.

The response from Tony Snow came on a question from Les Kinsolving, WND’s correspondent at the White House.

“Congressman Tom Davis and 17 other Republican House members have called on Attorney General Gonzales, Department of Justice, to administer the polygraph test that Sandy Berger agreed to in paragraph 11 of his plea agreement. And my question, could you give us a substantial answer to these Republicans’ request of the Bush administration?” Kinsolving asked.

“No. But I will study it,” Snow said.

Despite a 2003 finding by the National Academy of Sciences that “[polygraph testing's] accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies,” an internal memorandum to employees at Los Alamos National Laboratory posted on the blog, LANL: The Rest of the Story, announces the implementation of a program of random polygraph screening encompassing over 5,000 LANL employees and some 3,800 employees at Sandia National Laboratories.

Last year, AntiPolygraph.org News anticipated the possibility that DOE’s publicly announced reduction in the number of employees subject to routine polygraph screening might result in a significant ramp up of its program of random polygraph screening as the Office of Counterintelligence attempts to ensure full employment for its complement of polygraph operators. This seems to be precisely what has happened.

Historian Ken Alder discusses the nexus between America’s atomic weapons program and the lie detector in “America’s Two Gadgets: Of Bombs and Polygraphs,” Isis, 2007, 98:124-137.

In “DoD researches high-tech ways to find liars,” published on 28 April 2007 among in the Army Times, among other places, Associated Press reporter Susanne M. Schafer writes on current research at the Defense Academy for Credibility Research (DACA, the former Department of Defense Polygraph Institute):

FORT JACKSON, S.C. — An eerie image of a magenta, blue-green and yellow face glows on a screen as a government employee steps behind a heat-sensing camera on this sprawling U.S. Army base. Not far away, researchers are studying lasers’ ability to detect muscle contraction. Other technology tracks the movement of a person’s eyes.

Liars beware. The Defense Department facility that trains the people who run the government’s polygraph machines is looking to an even higher plane of technology in its quest to separate fact from fiction.

“We don’t know how far down the road it’s going to be, but this is showing some potential,” Bill Norris, director of the Defense Academy for Credibility Assessment, said recently as he talked about the thermal-imaging device that measured his face’s temperature. “We’ve started to look at new technologies that can help us in this business.”

Besides serving as a hub for high-tech research into futuristic methods of lie detection, the academy is responsible for training all polygraph examiners who work for the U.S. military and 23 federal agencies. It turns out about 100 new examiners yearly and conducts much of the 80 hours of refresher training that each of the government’s 650 polygraph examiners must undergo every two years.

Polygraph examiners monitor subjects’ blood pressure, respiration rates and sweat gland activity as part of a standardized — and potentially hours long — interview process. It takes new students 14 weeks of training to learn how to conduct polygraph exams and understand the physiological data that underpins the process.

Part of the job uses the base’s young soldiers to role-play stealing money from a fake bank. Some go through with it; some don’t. The academy’s trainees wire the soldiers to sensors and quiz them about their acts during videotaped exercises, with the details of their heartbeats and other physical reactions displayed on wide-screen monitors.

“Our students have to learn to ask the right questions, to see if the soldiers ‘did the deed’ or not. It’s a great exercise,” Norris said.

Meanwhile, researchers are testing other devices that would allow lie detection to go wireless.

There’s the thermal imaging technology that Norris says is promising given its ability to tie deception to temperature changes in the skin. Another studies the pattern of an individual’s gaze to see how the eye looks at a familiar or an unfamiliar scene.

“This is something that law enforcement might be able to use, say if you showed someone a picture of a crime scene,” to see if they recognized it or not, Norris said.

Researchers are also studying what they call “Laser Doppler vibrometry,” which looks at changes in the body’s muscle contractions, respiration or cardiovascular activity. With it, a laser could be directed at an artery in a subject’s neck to study blood flow from afar, said Debra Krikorian, a molecular biologist working with the institute.

“Can you imagine the potential? You could have a stress test and not be hooked up to all those wires,” Krikorian said.

Because there is no clear connection between stress and deception, a wireless stress test likely has significantly less potential for improved lie detection than Dr. Debra Krikorian seemingly imagines. For similar reasons, as psychophysiologist Dr. John J. Furedy has pointed out, thermal imaging similarly offers no real promise of improved lie detection.

DACA, run by polygraph operators with little understanding of the scientific method, and with a history of burying unwelcome research results (such as this study suggesting that innocent blacks are more likely to wrongly fail the polygraph than innocent whites), has no business controlling research into credibility assessment.

On Tuesday, 10 April 2007, polygraph examiner Jack Trimarco was a guest on Los Angeles radio station KNX 1070′s “Money 101 with Bob McCormick” program. A half-hour, 27 mb MP3 podcast is available for download.

Mr. Trimarco uttered a glaring falsehood about human physiology that stands in need of correction. About seven minutes into the program, he states:

We know that when a person tells a lie their breathing changes in a predictable way. We know that their sweat glands innervate, and we know that their cardio changes, perhaps the blood pressure will go up and come back down in a timely manner.

The truth of the matter is that there is no known physiological reaction (or combination of reactions) uniquely associated with deception. Neither breathing, sweat gland activity, nor cardiovascular activity change in predictable ways when a person tells a lie. It is for this reason that polygraph “testing” is inherently unreliable.

Trimarco also repeated the falsehood that he told Fox News’s Bill O’Reilly in February of this year: that polygraph testing has been scientifically shown to have a 93% accuracy rate (with a qualified examiner). On the contrary, the consensus scientific opinion is that polygraphy has no scientific basis at all, let alone a proven accuracy rate in the 90th percentile.

Also appearing on the show was KNX traffic anchor Megan Reyes, who described her polygraph experience with the Los Angeles Police Department, with which she applied for employment about a year and a half ago. Her polygrapher accused her of deception regarding violent crime, drug usage, and drug dealing, though she maintains she told the complete truth and never did any of these things. When host Bob McCormick prompted Trimarco regarding what questions he would ask Ms. Reyes in order to assess the situation, he chose instead to expound upon the proper nomenclature and purpose of polygraph instrument attachments.

Mr. Trimarco also stated that the FBI conducts pre-employment polygraph examinations of applicants after a background investigation is completed. This policy is news to AntiPolygraph.org, and any information on it, such as when and why it was implemented, would be welcome. If you have relevant information, please leave a comment either here on the blog or on the message board, or send e-mail to info@antipolygraph.org.

History professor Ken Alder, author of The Lie Detectors: The History of an American Obsession, was interviewed for episode 108 of Bat Segundo Show, an Internet podcast, which may be downloaded as a 30 mb MP3 file. A serious interview follows the (rather corny) comic introduction.