Polygraph Exams of Sexual Offenders

A relatively new approach to treating sex offenders has been utilized over the last few years with great success. This new approach employs a different strategy from that which has been used in the past. This strategy is known as the multidisciplinary team approach. The approach uses the proven methods of therapy, probation and polygraph that have been in place for years. Now they have been combined to become a very effective tool for managing convicted sex offenders.

The vast majority of convicted sex offenders are not confined and are living amongst the general population. This fact is a cause of major concern for probation and parole officers regarding their specialized caseload and how these individuals need to be monitored. During the past few years, probation and parole officers have learned that they have to supervise and deal with convicted sex offenders differently from their normal caseload. The therapeutic community has also learned that convicted sex offenders have different issues and behaviors that have to be addressed which are also remarkably different from other patients that they were used to treating. The therapists have also been challenged regarding the integrity of the sex offenders concerning their behavior while in treatment. This includes issues dealing with the denial of the offense for which offenders have already been convicted.

Through various forms of psychometric testing and other tools recently developed, the task of treating and monitoring sex offenders has become more focused. It was discovered that by having more open dialogue and communication between the therapist and probation officers, there was a very positive benefit of having a heightened awareness regarding the behavior of the sex offender. Recently, another component has been added to this team--a trained polygraph specialist.

Although the polygraph instrument has been in use for over 80 years, the first documented evidence of sex offender testing did not occur until the mid-1960s. A judge in the Chicago area decided to assess individuals who were placed on probation for various types of criminal behavior, including child molestation.

Although it appeared that the polygraph could play an integral part in diminishing criminal behavior, the program did not continue. It is unclear why the experiment did not continue when significant information was obtained regarding the behavior of individuals that were being examined.

Beginning in 1969, Judge Tuttle of Walla Walla, Washington developed a similar plan that required probationers to be periodically tested by polygraph in an attempt to determine whether they were in compliance with the terms and conditions of their supervision (Abrams and Abrams, 1993).

Based on the success of the program in Walla Walla, other jurisdictions in the Washington and Oregon area also began incorporating the use of the polygraph and have continued to do so since the early 1970s.

Therapists also quickly learned that the polygraph was another tool that they could incorporate into their overall assessment and treatment package. Probation officers followed this lead as well, stating that they believed the polygraph assisted them in gaining insight into the sex offender's overall behavior.

The role of the polygraph examiner has become an integral part of the evaluation, treatment and ongoing maintenance of sex offenders. Polygraph is now recognized as a very important component of a multidisciplinary team. It has become very apparent that if a multidisciplinary team approach is to be successful, open communication must take place among the three disciplines.

In 1993, the Association for the Treatment of Sexual Abusers (www.ATSA.com) recommended that therapists should not rely solely on an offender's self-report to gauge whether or not he/she was in compliance with treatment. Two recommendations were made by ATSA regarding the use of polygraph:

1. Treatment providers should use the polygraph to encourage disclosure of prior sexual activities.
2. The polygraph should be used in conjunction with other monitoring tools and methods.

There are generally four different types of polygraph examinations utilized in post conviction sex offender testing:

1. Disclosure over the instant offense (also known as specific issue or denial testing) ---- This type of test is used when the offender is denying all or any part of the offense or allegations of which he was convicted. The major advantage of this type of test is to assist the therapist in breaking through the offender's denial.
2. Sexual history examination ---- This type of test is used to assist the therapist in revealing additional, undisclosed victims as well as other parahilic behaviors. Typically, the time of reference is the offender's behavior prior to the date of conviction.
3. Maintenance and Monitoring testing ---- This type of test is used for the treatment and supervision of the offender during the time of his probation. The primary purpose is to discourage new deviant behavior regarding hands-on offenses and technical violations. The time of reference is the offender's behavior since being on probation or parole.
4. Specific Monitoring testing ---- This type of test is administered when information regarding new specific behavior of the offender is revealed or discovered during the time that he is on probation or parole.

Just as therapists or medical personnel need specialized training beyond their basic license, the discipline of polygraph examiner in the area of post-conviction sex offender testing also requires additional training.

The American Polygraph Association (www.polygraph.org) and the American Society of Testing and Materials (www.astm.org/COMMIT/CUSTOM2/E52.htm) now mandates that any polygraph examiner who administers post-conviction sex offender testing have successfully completed an approved 40-hour advanced polygraph course which is focused on dealing with issues that are unique to sex offenders.

The specialized training consists of 24 hours of instruction and validated testing formats and proper pretest interview procedures. This is in addition to the use of polygraph examinations in the treatment and supervision of sex offenders. It also covers the different techniques used for the testing and the type of areas to be covered in an examination. These areas include sexual history disclosure testing, specific offense issue testing, and maintenance and monitoring testing.

At least 16 hours of training must be given on topics which are directly related to the treatment and supervision issues. These issues will cover the behavior and motivation of sex offenders, victims' issues, and sex offender denial. An overview of the assessment in treatment modalities for sex offenders will also be discussed. Parole and probation issues are also discussed during this part of instruction.

The instructors of course materials presented must meet approved standards set forth by the American Polygraph Association and ASTM guidelines. The instructors shall possess professionally recognized expertise in the area of sex offender testing or treatment. In addition to specialized training, the American Polygraph Association offers a test to demonstrate proficiency in the area of post-conviction sex offender polygraph testing.

Polygraph examiners are also required to participate in continuing education after attaining their initial 40 hours of instruction. The continuing education should focus on the related areas that directly deal with the supervision and treatment of sex offenders. Recognized instructors in their field of expertise should teach these related courses.

As with any other assessment tool, the need to understand the limitations of the polygraph is very important for the treatment provider and probation/parole officer. The polygraph instrument is not capable of reading minds and is best used when the target areas are very narrow and focused. The current polygraph standards only allow for a maximum of four relevant areas to be asked on the examination. These limitations could potentially cause problems when the Probation/Parole Officer or treatment provider desires to cover many different conditions of parole or probation and/or treatment issues.

It is extremely important that the multidisciplinary team discuss the target areas of behavior. The examiner should be provided information prior to the polygraph examination. It should be understood that if relevant information is uncovered during the pretest interview, the examiner could focus on the issues that present the most potential danger to society or the offender himself.

The term "polygraph" literally means "many writings." The name refers to the manner in which selected physiological activities are simultaneously recorded. Polygraph examiners may use conventional instruments, sometimes referred to as analog instruments, or computerized polygraph instruments.

It is important to understand what a polygraph examination entails. A polygraph instrument will collect physiological data from at least three systems in the human body. Convoluted rubber tubes that are placed over the examinee's chest and abdominal area will record respiratory activity. Two small metal plates, attached to the fingers, will record sweat gland activity, and a blood pressure cuff or similar device will record cardiovascular activity.

A typical polygraph examination will include three periods referred to as a pre-test, a chart collection phase and a test data analysis phase. In the pre-test, the polygraph examiner will complete required paperwork and talk with the examinee about the test. During this period, the examiner will discuss the questions to be asked and familiarize the examinee with the testing procedure. During the chart collection phase, the examiner will administer and collect a number of polygraph charts. Following this, the examiner will analyze the charts and render an opinion as to the truthfulness of the person taking the test. The examiner, when appropriate, will offer the examinee an opportunity to explain physiological responses in relation to one or more questions asked during the test. It is important to note that a polygraph does not include the analysis of physiology associated with the voice. Instruments that claim to record voice stress are not polygraphs and have not been shown to have scientific support.

The three segments of society that use the polygraph include law enforcement agencies, the legal community, and the private sector. They are further described as follows:

• Law Enforcement Agencies - Federal, State, and Local Law Enforcement Agencies such as Police and Sheriff's Departments.
• Legal Community - U.S. Attorneys' Offices, District Attorneys' Offices, Public Defenders' Offices, Defense Attorneys, Parole & Probation Departments, Attorneys in civil litigation.
• Private Sector - Companies and Corporations under the restrictions and limitations of the Employee Polygraph Protection Act of 1988 (EPPA).
• Private citizens in matters not involving the legal or criminal justice system.

While the polygraph technique is highly accurate, it is not infallible and errors do occur. Polygraph errors may be caused by the examiner's failure to properly prepare the examinee for the examination, or by a misreading of the physiological data on the polygraph charts. Errors are usually referred to as either false positives or false negatives. A false positive occurs when a truthful examinee is reported as being deceptive; a false negative is when a deceptive examinee is reported as truthful. Some research indicates that false negatives occur more frequently than false positives, other research studies show the opposite conclusion.

Representative case citations are provided for reference:

Georgia:

State v. Chambers, 240 Ga. 76, 239 SE.2d 324 (1977).
Miller v. State, 380 S.E.2d 690 (1989).

Why Critics' Figures Vary

One of the problems in discussing accuracy figures and the differences between the statistics quoted by proponents and opponents of the polygraph technique is the way that the figures are calculated. At the risk of over-simplification, critics, who often don't understand polygraph testing, classify inconclusive test results as errors. In the real life setting, an inconclusive result simply means that the examiner is unable to render a definite diagnosis. In such cases a second examination is usually conducted at a later date. To illustrate how the inclusion of inconclusive test results can distort accuracy figures, consider the following example: If 10 polygraph examinations are administered and the examiner is correct in 7 decisions, wrong in 1 and has 2 inconclusive test results, we calculate the accuracy rate as 87.5% (8 definitive results, 7 of which were correct.) Critics of the polygraph technique would calculate the accuracy rate in this example as 70%, (10 examinations with 7 correct decisions.) Since those who use polygraph testing do not consider inconclusive test results to be negative, and do not hold them against the examinee, to consider them as errors is clearly misleading and certainly skews the figures.

Protective Procedures

Since it is recognized that any error is damaging, examiners utilize a variety of procedures to identify the presence of factors that may cause false responses, and to ensure an unbiased review of the polygraph records. These include:

• An assessment of the examinee's emotional state.
• Medical information about the examinee's physical condition.
• Specialized tests to identify the overly responsive examinee and to calm the overly nervous.
• Comparison questions to evaluate the examinee's response capabilities.
• Factual analysis of the case information.
• A pre-test interview and detailed review of the questions.
• Quality control reviews.

Examinee's Remedies

If a polygraph examinee believes that an error has been made, there are several actions that may be taken, including the following:

• Request a second examination.
• Retain an independent examiner for a second opinion.
• File a complaint with a state licensing board.
• File a request for the assistance of the American Polygraph Association.
  American Polygraph Association - Code of Ethics

Rights of Examinees:

• An examiner shall respect the rights and dignity of all persons to whom they administer polygraph examinations.

Standards of Rendering Polygraph Decisions.

• An examiner shall not render a conclusive diagnosis when the physiological records lack sufficient quality and clarity. This may include, but is not limited to, excessively distorted recordings possibly due to manipulations by the examinee, recordings with insufficient responsivity, or recordings with tracing amplitudes less than that generally accepted by the profession.

Post-Examination Notification of Results:

• An examiner shall afford each examinee a reasonable opportunity to explain physiological reactions to relevant questions in the recordings.

Restrictions on Rendering Opinions:

• An examiner shall not provide any report or opinion regarding the medical or psychological condition of the examinee for which the member is not professionally qualified to make. This shall not preclude the examiner from describing the appearance or behavior of the examinee. Polygraph outcome decisions shall be restricted to only those based on polygraph data.

Restrictions on Examinations:

• An examiner shall not conduct a polygraph examination when there is reason to believe the examination is intended to circumvent or defy the law.

Standards of Reporting:

• An examiner shall not knowingly submit, or permit employees to submit, a misleading or false polygraph examination report. Each polygraph report shall be a factual, impartial, and objective account of information developed during the examination, and the examiner's professional conclusion based on analysis of the polygraph data.

Release of Non-relevant Information:

• An examiner shall not disclose to any person any irrelevant personal information gained during the course of a polygraph examination which has no connection to the relevant issue, and which may embarrass or tend to embarrass the examinee, except where such disclosure is required by law.

Restrictions on Examination Issues:

• An examiner shall not include in any polygraph examination, questions intended to inquire into or develop information on activities, affiliations, or beliefs on religion, politics, or race except where there is relevance to a specific investigation.

It is the position of the APA that a polygraph examination, properly administered by a well-trained and competent polygraph examiner and using a validated testing technique, has a high degree of accuracy in detecting truthfulness or deception. In order to ensure this high degree of accuracy, the APA establishes for its membership the following Standards of Practice. All examinations shall be conducted in compliance with governing local, state, and federal regulations and laws.

Validated Testing Technique

• Polygraph testing technique, for which exists a body of acceptable scientific studies. A polygraph testing technique both endorsed by the APA Research and Development Committee, and published in Polygraph, shall be presumed to be a validated testing technique.
• Polygraph examinations for clinical polygraph examination of sex offenders shall be conducted by members who have completed specialized training for sex offender polygraphs consistent with guidelines issued by the APA.
• An examiner shall make reasonable efforts to determine that the examinee is a fit subject for testing, where allowed by law. Basic inquiries into the medical and psychological condition of the examinee as well as any recent drug use should be made where allowed by law.
• Mental, physical or medical conditions of the examinee that should be observable to, or that should be reasonably known by the examiner, should also be evaluated prior to testing. No test should be conducted where valid results could not be reasonably foreseen.
• During the pretest interview, where allowed by law, the examiner will specifically inquire of the person to be examined whether or not he or she is currently receiving or has in the past received medical or psychiatric treatment or consultation.
• If an examiner has a reasonable doubt concerning the ability of an examinee to safely undergo an examination, a release from the examinee and his or her physician shall be obtained.

Instrumentation and Recording

Polygraph examinations shall be conducted with APA-approved instrumentation and shall record, at a minimum, the following channels or components:

• Respiration patterns recorded by pneumograph components. Thoracic and abdominal patterns shall be recorded separately, using two pneumograph components.
• Electrodermal activity reflecting relative changes in the conductance or resistance of current by the epidermal tissue.
• Cardiograph to record relative changes in pulse rate, pulse amplitude, and relative blood volume.
• Physiological recording during each test shall be continuous, and shall be of sufficient amplitude to be easily readable by the examiner and any reviewing examiner. Pneumograph and cardiograph tracings over one-half inch in amplitude will be considered of sufficient size to be easily readable.
• The polygraph shall be given a functionality or calibration test consistent with manufacturer recommendations. The functionality or calibration test shall be administered prior to all evidentiary examinations. At a minimum these tests shall be maintained by the examiner for no less than one year. Compliance with state and federal law shall be required.

Testing Facilities and Conditions.

• Conditions under which testing occurs shall be free from distractions that would interfere with the ability of the examinee to appropriately focus on the issues being addressed. The examination site should be relatively free from outside noise and distraction.
• All polygraph examinations of sexual offenders submitted for quality control shall be recorded in their entirety. Though video recording is the preferred medium, audio recording is sufficient to meet this standard.
• Testing facilities shall support recording equipment, either audio-visual or audio. All recorded physiological data shall be retained as part of the examination file as long as required by regulation or law, but for a minimum of one year.
• Examinations shall employ a technique and format that has been validated through research. Reasonable departures from validated formats are permissible, to the extent that an independent examiner/reviewer would concur that the employed method was not significantly dissimilar from the format validated by research. Any deviations from validated formats shall be fully explained and justified by the examiner in writing where this test is subjected to an independent quality control.

Test Preparation and Pretest Practices

• An examiner shall, prior to the examination, dedicate sufficient time to identify the issues and any potential problems in any area of testing.
• The examiner shall obtain sufficient information to identify the examinee. The examiner shall obtain the consent of the examinee prior to testing.
• Sufficient time should be spent to ensure that the examinee has a reasonable understanding of the polygraph process and the requirement for cooperation.
• Sufficient time shall be spent discussing the issues to be tested and to allow the examinee to fully explain his or her answers.
• Sufficient time shall be spent to ensure the examinee recognizes and understands each question. Attempts by the examinee to rationalize should be neutralized by a pretest discussion in which the examinee demonstrates he or she understands the test questions to have the same meaning as does the examiner.
• Questions shall be asked in a form that would prevent a reasonable person, facing a significant issue, from successfully engaging in a rationalization process to avoid culpability.
• The examiner shall not express bias in any manner regarding the truthfulness of the examinee prior to the completion of testing.

Testing Procedures

• An examiner shall use a validated testing technique.
• A stimulation test or acquaintance test shall be required for clinical polygraph examinations.
• Questions shall be asked with clarity and distinctiveness.
• Questions shall be balanced in terms of length and impact for each category of questions utilized. Questions used in the assessment of truth and deception shall be preceded and followed by time intervals of not less than 20 seconds. When approved, validated research supports the use of another time interval, that time span shall prevail.
• Examiners shall collect a sufficient number of charts so as to acquire sufficient data for proper evaluation, in conformance with a validated testing technique.
• Standardized chart markings recognized and utilized within the polygraph profession should be employed.
• An audio or an audio-visual recording of the pretest and in-test phases shall be made and maintained for clinical examinations, in conformance with governing state and federal laws.

Chart Interpretation and Scoring

• Examiners shall employ quantitative or numerical scoring for all examinations.
• Examiner notes of the test evaluation shall have sufficient clarity and precision so that another examiner could read them.
• Examiners shall not disclose the results of the examination until it has been adequately and sufficiently analyzed.
• Examiners shall maintain the confidentiality of their work conducted under privilege until a release by the client is obtained.
• An examiner subject to a quality control evaluation of a case shall fully disclose all relevant information regarding the case under review. Any doubts as to relevance shall be resolved through disclosure.

Polygraph results (or psychophysiological detection of deception examinations) are admissible in some federal circuits and some states. More often, such evidence is admissible where the parties have agreed to their admissibility before the examination is given, under terms of a stipulation. Some jurisdictions have absolute bans on admissibility of polygraph results as evidence and even the suggestion that a polygraph examination is involved is sufficient to cause a retrial. The United States Supreme Court has yet to rule on the issue of admissibility, so the rules in federal circuits vary considerably. The Supreme Court has said, in passing, that polygraph examinations raise the issue of Fifth Amendment protection, [Schmerber v. California, 86 S. Ct. 1826 (l966)]. The Supreme Court has also held that a Miranda warning before a polygraph examination is sufficient to allow admissibility of a confession that follows an examination, [Wyrick v. Fields, 103 S. Ct. 394 (1982)]. In 1993, the Supreme Court removed the restrictive requirements of the 1923 Frye decision on scientific evidence and said Rule 702 requirements were sufficient, [Daubert v. Merrill Dow Pharmaceuticals, 113 S.Ct. 2786]. Daubert did not involve lie detection, per se, as an issue, as Frye did, but it had a profound effect on admissibility of polygraph results as evidence, when proffered by the defendants under the principles embodied in the Federal Rules of Evidence expressed in Daubert, see [United States v. Posado (5th Cir. 1995) WL 368417]. Some circuits already have specific rules for admissibility, such as the 11th Circuit which specifies what must be done for polygraph results to be admitted over objection, or under stipulation [United States v. Piccinonna 885 F.2d 1529 (11th Cir. 1989)]. Other circuits have left the decision to the discretion of the trial judge. The rules that state and federal circuits generally follow in stipulated admissibility were established in [State v. Valdez, 371 P.2d 894 (Arizona, 1962)]. The rules followed when polygraph results are admitted over objection of opposing counsel usually cite [State v. Dorsey, 539 P.2d 204 (New Mexico, 1975)]. Primarily because of Daubert, as well as the impact the other cited cases have had, polygraph examination admissibility is changing in many states. Many appeals, based on the exclusion of polygraph evidence at trial, are now under review by appellate courts.

Representative case citations are provided for reference:

Georgia:

State v. Chambers, 240 Ga. 76, 239 SE.2d 324 (1977).
Miller v. State, 380 S.E.2d 690 (1989).