One of the things both former federal prosecutors and Dr. Christine Blasey Ford‘s legal team have cited, seemingly, as proof that Ford is telling the truth about her allegation of attempted sexual assault against Brett Kavanaugh is that she passed a polygraph (what many call a “lie detector”) test.
The law and science have something to say about that.
When speaking out in an interview with the Washington Post, Ford stated that a former FBI agent administered a polygraph test and gave the Post the test results. She said she was advised to do so by her lawyer, Debra Katz.
The problem is, the U.S. Supreme Court has had something to say about the validity of polygraphs in the past. As Law&Crime’s Aaron Keller noted before in a different context, so-called “lie detector test results are largely considered inadmissible in court because the tests are not reliable. People can cheat them and, sometimes, the tests pick up false readings.”
Keller pointed to the U.S. Supreme Court case, U.S. v. Scheffer (1998):
[T]here is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques.
National security lawyer Mark Zaid said that whether Ford passed or failed the test is irrelevant because it “signifies nothing.”
Kudos to her in coming forward but I wish she, and the media, would stop touting #polygraph in a way that signifies that means anything. It doesn't. Does anyone really believe that had she "failed" (and that signifies nothing too), we would have known?https://t.co/OMyGVbRMWY https://t.co/G35LoXl11v
— Mark S. Zaid (@MarkSZaidEsq) September 19, 2018
Meanwhile, rather than talking about the science and the law behind this, congressional Republicans like Sen. Lindsey Graham (R-S.C.) are attacking the polygraph from an entirely different angle.
Fox News reported that the polygraph has come under scrutiny, citing in one case Graham’s criticism. Graham wanted to know who paid for the test.
“If Ms. Ford really did not want to come forward, never intended to come forward … why did she pay for a polygraph in August, and why did she hire a lawyer in August? And who paid for it?” he asked.
Zaid and others have criticized those giving the polygraph test weight. They’re also taking issue with calling the polygraph a “lie detector test” in the first place. Here’s why.
Thomas Mauriello, identified in the Fox News story as a University of Maryland criminology lecturer with a history of working as a senior polygraph examiner at the Department of Defense, said that the “result of a polygraph simply is whether you did or did not respond to a particular question. A response is not a lie, because the polygraph is not a lie detector as most think.”
“A response is the activation of your sympathetic nervous system when answering a question asked during the examination,” Mauriello said.
Mauriello also said it means “absolutely nothing” that Ford passed the test.
Zaid agreed that calling the test a “lie detector test” is inaccurate and said the “existence of a ‘passed’ polygraph does nothing, scientifically or legally, to demonstrate an individual’s truthfulness.”
“Nor does the existence of a ‘failed’ polygraph evidence any lack of truthfulness,” Zaid added.
“The device is not a lie detector as it merely registers physiological responses,” he said. “What those physiological responses mean are then interpreted, or more precisely utilized by a skilled interrogator to extract an admission from an individual who likely believes Hollywood’s version that a polygraph, or Wonder Woman’s magic lasso, actually works in the manner it is portrayed.”
Zaid said that while the “tactical strategy” being used by Ford’s team is understandable, it may prove problematic down the road.
“This case will make it more difficult for victims of sexual abuse to come forward later because they will be expected, if not required, to take a polygraph examination. The short term gains by this case will have long term dire consequences,” he said.
The American Psychological Association (APA) has also commented at length on the unreliability of polygraphs.
“The accuracy (i.e., validity) of polygraph testing has long been controversial. An underlying problem is theoretical: There is no evidence that any pattern of physiological reactions is unique to deception,” the APA says. “An honest person may be nervous when answering truthfully and a dishonest person may be non-anxious. Also, there are few good studies that validate the ability of polygraph procedures to detect deception.”
The APA then pointed to Dr. Leonard Saxe‘s research on the subject which was also cited in the same case just referenced.
“Most psychologists and other scientists agree that there is little basis for the validity of polygraph tests. Courts, including the United States Supreme Court (cf. U.S. v. Scheffer, 1998 in which Dr.’s Saxe’s research on polygraph fallibility was cited), have repeatedly rejected the use of polygraph evidence because of its inherent unreliability,” the APA said. “Nevertheless, polygraph testing continues to be used in non-judicial settings, often to screen personnel, but sometimes to try to assess the veracity of suspects and witnesses, and to monitor criminal offenders on probation.”
Still, the APA maintains that “[w]ithout a better theoretical understanding of the mechanisms by which deception functions, however, development of a lie detection technology seems highly problematic.”
“[A]lthough the idea of a lie detector may be comforting, the most practical advice is to remain skeptical about any conclusion wrung from a polygraph,” the APA concluded. The National Research Council echoed this when it stated that after “almost a century” or research on has provided “little basis for the expectation that a polygraph test could have extremely high accuracy.”
Vox discussed Saxe’s research to answer another question related to this: If we can’t be sure about the validity of a polygraph, why do we still use them?
Saxe said that it could be used as a prop to induce a confession, used as a deterrent to scare people into telling the truth or that people simply “want to believe in a just world.”
“[I]n a just world, people can’t get away with lying,” Saxe has said. “My impression from speaking with some polygraphers is that they believe what they’re doing is accurate. Some even say things like, ‘God gave us this tool to make a better world.'”
Brett Kavanaugh has denied the allegations against him, saying he has “never done anything like what the accuser describes — to her or to anyone.” He also said he was ready to defend his “integrity” before the Senate Judiciary Committee.
Ford went public with her allegation over the weekend in an interview with the Washington Post, claiming that Kavanaugh attempted to sexually assault her at a high school party in the 80s and that she did not speak of this until 2012, during couples therapy. Ford said she decided it was her “civic responsibility” to come forward, and now a new hearing will take place. She also said Mark Judge, a classmate of Kavanaugh’s, witnessed it. Judge has denied that. Patrick J. Smyth, also a Georgetown Prep classmate of Kavanaugh’s, was also named as someone who was at the party in question. Smyth denied it and said he “never witnessed any improper conduct by Brett Kavanaugh towards women.”
Ford’s husband Russell also said that he recalled her mention of Kavanaugh by name during therapy in 2012 — key corroborating evidence.
There are reasons to believe Ford’s claim, but the polygraph should not be one.
[Image via Chip Somodevilla/Getty Images]