The Lies of the Polygraph

Steven Brooks
Sep 4, 2018 · 5 min read

A friend of mine recently applied for selection for the United States Border Patrol within the Department of Homeland Security (DHS). He was subjected to a battery of inquiries and tests designed to properly qualify or disqualify him as a candidate. One of the tests was the administration of the polygraph. My friend had no criminal history, maintained a proper lifestyle, was attending college fulltime, and working part time; he had a clean slate. Unfortunately, his dream of becoming a Border Patrol agent was destroyed because the results of the polygraph examination disqualified him as indicated in his official letter notifying him of the disqualification from the Office of Professional Responsibility (OPR). How was this possible? How could a young man with a pristine history be removed from candidacy?

After being in law enforcement within various positions I recalled polygraph results were almost never admitted into court because of validity. As I considered his plight I began researching polygraph examinations and the laws pertaining to the tool itself. Upon examination I discovered the polygraph has been used for decades but had been proven to be fallible and not allowed in court as credible evidence until the establishment of the Daubert Standard. I pondered the consideration and fact our own government uses an undependable tool to disqualify candidates for employment; yet, this applicant and others have been rejected without due process as defined by the Daubert Standard which basically states:

1. If scientific, technical, or other specialized knowledge assists the trier of fact a “judge” will review the results of the polygraph to understand the evidence or to determine a fact in issue; or if a witness is qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data

2. The testimony must be the product of reliable principles and methods, and;

3. The witness must have applied the principles and methods reliably to the facts of the case.”

In other words, federal judges have to review and rule if polygraphed evidence may or may not be admitted. If judges are, or are not, satisfied the results of the test as defined by the Daubert Standard negates questionable references from the examination cannot be entered as evidence. This process of judicial examination determines if forensic testimony, based on polygraph examinations, must be considered on a case-by-case basis.

Knowing this, I searched deeper for statutory answers regarding polygraph testing and share these case law considerations of legality:

1. United States v. Williams, 95 F.3d 723, 729–30 (8th Cir. 1996) (polygraph results can mislead the jury);

2. United States v. Pettigrew, 77 F.3d 1500, 1515 (5th Cir. 1996) (unilaterally obtained polygraphs examinations are almost never admissible under Rule 403);

3. United States v. Sherlin, 67 F.3d 1208, 1216–17 (6th Cir. 1995) (Rule 403 is a proper ground for excluding polygraph results even after Daubert), cert. denied, 116 S. Ct. 795 (1996);

4. United States v. Kwong, 69 F.3d 663, 668 (2d Cir. 1995) (polygraph questions were ambiguous and hence not probative of the central issues in the case), cert. denied, 116 S. Ct. 1343 (1996).

After presenting the aforementioned legal considerations please allow me the opportunity to share a factual federal case orchestrated by agents of Alcohol Tobacco Firearms, and Explosives (ATFE) and the use of a polygraph…I saved the best for last!

This real-life example demonstrates the polygraph is not reliable nor should it be used to determine if any person is telling the truth. Here are the facts. The ATFE needed to get special agents working undercover into the Mongols Motorcycle Club and four agents were chosen for the infiltration. During their training the agents were taught motorcycle subculture and how to lie when being interrogated with a polygraph. The ability to trick the polygraph was paramount to the success of the operation and avoid detection because the Mongols performed polygraph examinations on prospective members; training which specifically challenges the integrity of the polygraph.

The facts how federal agents were taught to mislead the polygraph test and polygraph technician endorses my belief the polygraph should never be used to test the integrity of any person in any forum. The propensity of certain people to fail the examination due to stress or anxiety is a paramount consideration which does not denote criminal or questionable activity; but of a normal physiological responses to a specific situation.

With this knowledge I find it very disturbing how America’s law enforcement departments (federal, state, and local) continue to use a tool of error to validate truth. Texas uses a polygraph test to interrogate convicted sex offenders on probation or parole to hold them accountable for deviate thoughts or activities. If the offender fails the examination they are subjected to harsh treatment, restrictions, and even sent to jail or prison. Police detectives use the polygraph as a tool to intimidate suspects into confessing crimes they never perpetrated. The results of the polygraph test rely on the experience of the technician who administers the examination. One person’s life is impacted by another person’s interpretation of stressors; there is a large margin for error and bias from the technician…especially if they are pro law enforcement.

I fervently believe the rights of every person tested with a polygraph were possibly violated, biased, and prejudicial per the 14th Amendment which guarantees due process of the law. My research and statements prove the polygraph is another lie created by law enforcement to intimidate and exacerbate citizens into admission of crimes they never committed. Remember, the police can lie to you but you can never lie to the police; hypocrisy has no boundaries!

About the Author

Dr. Steven Brooks is a social scientist specializing in police and criminal justice. Dr. Brooks is a former federal agent with United States Immigration, a former federal agent with United States Customs. He is also a former Texas Peace Officer, SWAT Technician, Police Academy Instructor, Tactical Specialist for Officer Safety/Survival, and veteran of the Army’s 82nd Airborne Division. As a police officer Dr. Brooks has experienced an officer involved shooting and has first-hand understanding of the polygraph procedures and its limitations. Dr. Brooks believes the time for rectification of America’s justice system in now. Copyright Dr. Steven Brooks 2018