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.It is not onlyused on criminal suspects but sometimes also with wit-nesses or victims whose reports are doubted.The JusticeDepartment, FBI, and most police departments follow thepolicy of using the polygraph only after investigations havenarrowed down the list of suspects.Most states do notallow the results of the polygraph to be reported in a trial.Twenty-two states do allow the polygraph test as evidenceif it has been stipulated in advance of the test and agreedto by both prosecution and defense.Defense attorneys usu-ally make such an agreement in return for the prosecutor'sagreement to drop the case if the polygraph shows thesuspect was truthful.That was what happened in the BuzzFay case described at the opening of this chapter.Usually,as in his case, prosecutors don't make such an offer if theyhave strong evidence that they think would convince a juryof a suspect's guilt.In New Mexico and Massachusetts, polygraph test re- 194 Telling Liessuits can be introduced over the objection of one of theparties.The results cannot be admitted unless stipulated inadvance in most, but not all, Federal Judicial CircuitCourts of Appeal.No United States Circuit Court of Ap-peals has reversed a district court for denying the admis-sion of polygraph evidence.According to Richard K.Wil-lard, Deputy Assistant United States Attorney General,"There has never been a Supreme Court ruling on theadmissibility of polygraph evidence in federal court."8The federal government is the third largest user of thepolygraph test to detect lying.In 1982 22,597 tests werereported by various federal agencies.* Most were given toinvestigate a crime, except for the polygraph tests given bythe National Security Agency (NSA) and the Central Intel-ligence Agency (CIA).These agencies use the polygraphfor intelligence and counterintelligence investigations.This includes testing people who have a security clearancebut are suspected of engaging in activity that would jeopard-ize that clearance, testing people suspected of espionage,and testing people seeking a security clearance.The NSAreports giving 9,672 polygraph tests in 1982, the majorityfor preemployment screening.The CIA does not reporthow often it gives the polygraph but acknowledges usingthe polygraph in many of the same situations as NSA.In 1982 the Department of Defense proposed severalrevisions to its regulations on polygraph testing.Theserevisions could have meant greater use of polygraph testingfor preclearance screening and for aperiodic screening ofemployees with security clearances.Another major change*The polygraph is currently used by: U.S.Army Criminal Investigation Com-mand; U.S.Army Intelligence and Security Command; Naval Investigative Serv-ice; Air Force Office of Special Investigations; U.S.Marine Corps Criminal Inves-tigation Division; National Security Agency; Secret Service; FBI; Postal Inspec-tion Service; Alcohol, Tobacco and Firearms Administration; Drug EnforcementAdministration; CIA; U.S.Marshalls; Customs Service; and the Department ofLabor. The Polygraph as Lie Catcher 195proposed by the Department of Defense would have meantthat employees or applicants who refused to take a poly-graph examination would possibly have been subject to"adverse consequences." In 1983 President Reagan pro-posed further broadening the use of the polygraph test.Allexecutive departments were authorized to "require em-ployees to take a polygraph examination in the course ofinvestigations of unauthorized disclosures of classified in-formation.[As in the changes proposed by the Depart-ment of Defense, refusal] to take a polygraph test mayresult in.administrative sanctions and denial of securityclearance.[Another new government policy] would alsopermit government-wide polygraph use in personnel secu-rity screening of employees (and applicants for positions)with access to highly classified information.The new pol-icy provides agency heads with the authority to give poly-graph examinations on a periodic or aperiodic basis to ran-domly selected employees with highly sensitive access, andto deny such access to employees who refuse to take apolygraph examination."9 Congress responded to the De-partment of Defense proposal by legislation postponingimplementation of these policies until April 1984 and re-quested the Office of Technology Assessment (OTA) toprepare a report on the scientific evidence about the accu-racy of the polygraph.10 That report was published in No-vember 1983, and as I write these words, the White Househas revised its proposal about the use of the polygraph andCongress will begin hearings on it in a week.The OTA report is an extraordinary document, provid-ing a thorough, impartial review and critical analysis of theevidence on the scientific validity of polygraph testing.* It*I have drawn very heavily from the OTA report in preparing this chapter.I amgrateful to the four people who read a draft of this chapter and made many usefuland critical suggestions: Leonard Saxe (assistant professor of psychology at Bos-ton University) and Denise Dougherty (analyst, OTA), author and co-author, 196Telling Lieswas not an easy matter, for the issues are complex, and thepassions about the legitimacy of the polygraph, evenwithin the scientific community, are strongly felt.Impor-tantly, the advisory panel that oversaw the report includedthe leading protagonists within the scientific community.Not everyone who knew them thought they would be ableto agree that any report would be fair, but they did.Thequibbles are minor, though of course there is some dissatis-faction.Some professional polygraphers outside the scientificcommunity believe that the OTA report is too negativeabout the accuracy of the polygraph test.So, too, would theDepartment of Defense polygraphers.A 1983 National Se-curity Agency report, "The Accuracy and Utility of thePolygraph Testing," was authored by the Chiefs of thePolygraph Divisions from army, navy, air force, andNSA.11 Their report, which they acknowledge was pre-pared in thirty days, did not utilize advice or review fromthe scientific community, with the exception of one poly-graph advocate.The NSA and OTA reports agree aboutone use of polygraph testing although OTA is more cau-tious than NSA, both agree there is some evidence thatpolygraph exams do better than chance in detecting lieswhen used in investigating specific criminal incidents.Later I will explain their disagreement about the strengthof that evidence, and the conflict between OTA and NSAabout the use of polygraph exams in security clearancesand counterintelligence.The OTA report does not provide a single, or simple,conclusion that can easily be translated into legislation.Aswe might expect, the accuracy of the polygraph (or anyrespectively, of the OTA report; and David T.Lykken (University of Minnesota)and David C.Raskin (University of Utah).Denise Dougherty also generously andpatiently answered my many questions as I weaved my way through the conflict-ing arguments and issues. The Polygraph as Lie Catcher197other technique of detecting lies) depends upon the natureof the lie, the liar, and the lie catcher (although the OTAreport does not use these terms).With the polygraph liedetector, it depends also upon the particular questioningtechnique, the examiner's skill in designing the questionsto be asked, and how the polygraph charts are scored
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