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Witchcraft and Voodoo – Polygraph Examinations in Military Justice

At their core, in military practice, polygraph examinations are used as an instrument of interrogation, a technique to secure inconsistent denials, admissions or outright confessions. Their utility at assessing and meeting out deception is not so reliable as to render it admissible as evidence that a given person is lying or not lying about a given statement or event. Actual results of the examination are not admissible, but that does not mean that a military suspect should ever submit to one.

This week, for the third time I have spoken to a new potential client that reported the military defense counsel told him that since the results of polygraph examinations are not admissible, there is “no harm” in submitting to one. Worst case scenario, says this reported military counsel, if you fail, the results cannot be used against you. What?! I vehemently disagree.

Most importantly, even if the results of a polygraph examination are NOT admissible, the statements a military suspect makes to a polygraph examiner ARE admissible in his court-martial trial. It matters not that the statement was extracted during the context of a polygraph examination; it is the words of the accused person that may be used against him. Period.

INTERROGATORS WANT ADMISSIONS, NOT THE TRUTH

A polygraph examination is more than the print out and interpretation of those “results.” The truth / deception portion is but a relatively brief portion of the entire process. When a military suspect submits to a polygraph examination, it is ordinarily his second encounter with military law enforcement after the suspect has denied wrongdoing. The polygraph is an opportunity to continue the interrogation.

Polygraph examiners are skilled interrogators and are ordinarily the most experienced at conducting “subject” (law enforcement jargon for the identified suspect) interrogations. The first phase of the subject polygraph examination is known as the pre-polygraph “interview.” Sounds harmless enough, right? Wrong. During this phase of the encounter with law enforcement (and make no mistake, the examiner is one of them, not some outside man of “science” – he is the sorcerer of the polygraph machine, a practitioner of witchcraft, and the doctor of voodoo), the examiner will prey on the subject’s core belief that his magic box is something like a crystal ball, all-knowing, all-seeing and that he, the examiner, will know the subject’s truths, half-truths, and deceit when he uses his voodoo.

During this pre-examination “interview,” the interrogator will tell the subject that since his machine is so sensitive and so reliable, it is imperative that the subject tells him if anything he said previously during his initial interrogation with military law enforcement was untrue. There is no escaping the magic box so it will save everyone time and will be much “better” for the subject if he admits the full truth now, before the machine tells him everything anyway. Observing this portion of the encounter (or frankly any portion of an encounter with law enforcement without benefit of counsel) is for someone like me who defends military members akin to what the reader experiences when screaming at their television screen as an individual in a horror movie goes out to check on the last person that went missing. DON’T DO IT! WHY ARE YOU GOING THERE ALONE?! Unfortunately for the military member and for any advocate that takes up his cause thereafter, that rarely happens. Some members make admissions during this pre-examination interview stage, believing the all-knowing box will reveal any half-truths or marginal statements already made in the first encounter with military law enforcement.

THE INSTRUMENT PHASE

Even if the member suspect makes no admissions during the pre-examination phase, the interrogator has more opportunities. Next comes the instrument phase when the suspect is hooked up to various electrodes and sensors that are monitoring the military member’s respiration, perspiration, heart rate and other metabolic processes. The theory behind polygraph is that there should be certain physiological reactions to stress and that the source of stress is lies or deception. Why polygraph examinations are not scientifically reliable is that not every person responds to stress in the same way and not every person who feels stress is necessarily feeling stress because they are lying. In the literature available on polygraph examinations, even federal law enforcement officers who undergo routine and periodic examinations describe the experience as one of the most unsettling and stressful experiences of their life, and none of these periodic exams are part of a specific-incident investigation.

STRESS BEGETS STRESS – “FAILURE”

The physiological responses to stress can be exacerbated by stress conditions, mental health conditions such as anxiety disorders or personality disorders. Even without a diagnosed anxiety disorder, the stress of knowing he is under suspicion for a serious, career-threatening, liberty-ending investigation is enough stress to result in failed results, even if the military suspect committed no crimes whatsoever. The polygraph examination and the attendant stressors create a likely outcome of failure. Stress is especially heightened because the polygraph examination is presented as a way out of the horror of a law enforcement investigation – just take the test, pass it, and clear yourself, they entice. The best outcome a military law enforcement interrogation polygraph examination will determine that the results are “inconclusive.” The test is not going to “clear” the suspect.

INDIVIDUAL TESTER BIAS

Scaling and grading of a polygraph examination inherently relies on the individual assessment of the person administering the test, another key reason that polygraph examination results are not admissible in court-martial and most other jurisdictions. The polygraph examiner will inform the suspect that he needs to have the results reviewed for “quality assurance / quality control.” Procedure dictates a review by another polygraph examiner, but these reviews do not render the “results” any more reliable or any more admissible. But the impact that being told a QA/ QC review occurred in many cases has the desired result: the military suspect trusts the results the examiner tells him. “Magic box,” right? Wrong.

At its core, an experience with law enforcement, even at the point where suspected of a crime, relies on the foundations of a child’s reinforced trust that the police are there to protect him. Reliance on this trust permits the interrogator to act like he is the suspect’s ally, that his role is to gather information, and he just wants to get the suspect’s side of things to hopefully clear up any allegation of wrongdoing. Seems reasonable, right? Wrong again. That interrogator has already concluded the suspect’s guilt and every action he takes is a concerted effort to extract admissions or hopefully a full-blown confession.

After being confronted with failing results (or maybe inconclusive ones), the post-polygraph interrogation commences. Even if the suspect does not break down and confess to misconduct, the suspect often grasps at ideas to help explain away the apparent “failed test” and in so doing makes statements that can be construed as inconsistent with the prior statements. Gotcha. Any actual or perceived inconsistencies, even if not coupled with a confession, will be construed as evidence of consciousness of guilt and will help seal the fate of the military suspect.

STATEMENTS MADE WILL BE USED AGAINST YOU

It bears repeating: even if the results of a polygraph examination are NOT admissible, the suspect’s statements made to a polygraph examiner ARE admissible in his trial. It does not matter that the statement was extracted during the context of a polygraph examination; it is the words of the accused person that may be used against him. The advice that “it does not matter” if the suspect submits to a custodial polygraph examination [read INTERROGATION] since the results cannot be used against him is malpractice plain and simple. Recounting one’s version of events as a military suspect in any context outside the protections of privilege and especially to law enforcement during interrogation is a recipe for making one’s case that much harder to defend. DON’T DO IT! DON’T GO THERE ALONE!!