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Polygraphs: Brave Enough to Take One?

On Wednesday, January 16th at noon in Mann Lounge, Stetson Law’s Federalist Society hosted featured Brian Morris, nationally certified polygraph examiner, who discussed the evidentiary value of the polygraph examination. About 45 students attended and there were many great questions asked of Mr. Morris when the presentation was over. The presentation included a student who volunteered to be the test subject of a polygraph and the results were instantly shown on the projection screen behind Mr. Morris.

Currently the polygraph is inadmissible in every state’s courts of law, except New Mexico; rather the polygraph is used as an investigative tool. There are two cases that set out evidentiary standards for the nation and the states. The most recent is Daubert v Merrell Dow Pharmaceuticals decided by the US Supreme Court in 1993, which held that Federal Rule of Evidence 702 (expert witness testimony) doesn’t incorporate the “Frye” standard of evidence as the assessment tool of scientific expert testimony but Rule 702 allowed for flexibility. So, if you’re in a Daubert state, you can put an expert in polygraph testing on the stand (like Mr. Morris) and the results of the polygraph can be disclosed to the jury if you can establish the person on the stand as an expert. Since the jury will get to hear the polygraph results the jury can decide what weight to give to the polygraph – just like the jury can decide what weight to give to any piece of evidence (photographs, eyewitness testimony) that is presented during a trial.

Some states, including Florida, do not follow the Daubert standard but rather refer to the older standard established by the DC Circuit in 1923, Frye v US. The Frye standard states that scientific evidence, which a polygraph qualifies as, must be “generally accepted” by a meaningful number of that associated scientific community. There are still many who doubt the polygraph’s validity so the polygraph results don’t come into courts of law in Florida. Florida made an attempt last year to get the Daubert standard into the court system and throw out Frye’s standard, but the bill ultimately died: http://www.flsenate.gov/Session/Bill/2012/243

A polygraph was administered on a student volunteer and most of the audience and, of course, Mr. Morris were able to correctly identify where the student lied. The student was given a number (from 1-10) to put in his pocket. Mr. Morris didn’t know what the number was and neither did the audience. The student was hooked up to the polygraph machine and Mr. Morris asked him, “Is the number in your pocket the number 1?” and so on through the number 10. Therefore, the student was being truthful nine times and lied once – the number was five. When the student was asked if the number in his pocket was five, the polygraph chart indicated a lie. The student’s cardio levels, blood pressure levels, respiration levels were all being measured as well as the student had to sit on a motion-sensor pad, which would alert Mr. Morris to the student moving around in his seat – many individuals have learned certain “techniques” to utilize to “fool” the polygraph and many involve moving around in the seat, which is why the seat pad is there for the examiner.

 We also learned from Mr. Morris that polygraphs are more scientifically accurate than x-rays and MRIs, which are repeatedly used in court under expert testimony. It’ll be interesting to see what happens in New Mexico, which is allowing the polygraph results to come into court under the expert testimony of a polygraph examiner. And it’ll be interesting to see if the Florida Legislature tries again this year to get the Daubert standard into the courts and the Frye standard out.

Brian Morris administers a polygraph test to a student

 Written by Jennie Hayes