Lie detectors and litigation

The question of lie detectors comes up from time to time in connection with family proceedings. Clients accused of something horrid often volunteer to undergo a polygraph test, and are often disappointed and surprised to find that this is unlikely to be a route to proving their innocence or honesty. They will still need to deal with that pesky police report, photograph or medical evidence.

It arose for a colleague recently, and that reminded me that I have often said it would be useful to write a post about this topic as a reference point. In fact, when I came to do a bit of research I found some really interesting stuff about the polygraph industry in the UK (yes, there is one).

Let’s look first though at the use of polygraphs (lie detector tests) in court proceedings.

Criminal proceedings first : in 2014 the government introduced a scheme whereby convicted sex offenders can be made subject to compulsory polygraph testing as part of their management in the community. The results of those polygraph tests AND the answers given during them are inadmissible in criminal proceedings by s30 Offender Management Act 2007 (so if they admit that they have reoffended or the test suggests they are lying when they say they haven’t – that can’t be used in court, thought it could be used in the course of investigation). That provision bars only compulsory polygraphs, although other commentators suggest that polygraph evidence is not admissible AT ALL – whether to prove innocence or guilt – I’m not sure which piece of statute or Criminal Procedure Rule this falls under, but naturally in proceedings where the standard of proof is beyond reasonable doubt polygraph testing cannot be sufficiently probative to be admissible, so I’m confident this is right. From my research, polygraph testers tend to estimate the accuracy of polygraph testing at up to 95%, whilst others tend to put it at more like 60% (not much better than a toss of a coin). Neither is equivalent to “beyond reasonable doubt” – and there is real argument about whether the 95% is accurate.

But what about civil proceedings where the standard of proof is balance of probabilities? I’m not going to embark upon an analysis here of the validity or scientific base for claims about polygraph testing as a method – but in summary polygraph testing does not directly test truthfulness OR accuracy (don’t forget a witness can be honestly wrong – a polygraph test won’t tell you what happened, even according to advocates of polygraphy it can only tell you whether the examinee is behaving as one would expect if they were giving what they thought was an honest / accurate account). It measures biological responses to the testing process such as sweat and heart rate, which tests have shown can be manipulated by some people and which vary between individuals in response to situations of stress. Polygraph tests require interpretation and as such there is inevitably an element of subjective judgment and the possibility of false positives or negatives. Whilst one can see that polygraph testing might contribute to a package of evidence before a court, it is highly unlikely to be probative of anything in itself and the view generally taken by courts here and abroad is that it should not be admitted.

It is worth noting that even in the US where polygraph testing is often used (and we have all seen US cop Dramas where they are used), it is used in the course of investigation of offences NOT in court.

So what about the Family Court? I have never been involved in a case in the Family Court where a polygraph test has been relied upon, let alone one where it has been successfully relied upon. I have had a number of clients suggest a polygraph would nail it in terms of their innocence, and one had event tracked down the firm who do the polygraph testing for Jeremy Kyle – but the reality is this evidence is never going to stand up to medical evidence or the evidence of a live witness to the contrary.

I wanted to check my experience was representative. A search of reported family judgments for the term polygraph brought up only one hit :  F v Y (ABDUCTION: ACQUIESCENCE) [2014] 2 FLR 875 (HHJ Horowitz QC sitting as a HCJ), a case in which there is a single reference to a polygraph test taken by a Russian father, apparently in another jurisdiction, but it does not appear the test was adduced in evidence.

That said, there is no specific absolute bar on the introduction of such evidence, as the Family Procedure Rules give the court broad case management discretion in terms of the admission of evidence. However, an application to rely on such evidence is highly likely to fail for all the reasons sketched out above. More importantly, any application to adduce such evidence would have to be an application under Part 25 Family Procedure Rules – as an application for permission to adduce expert evidence – the bit you need is the report of the “expert” polygraph tester telling you whether or not the answers were truthful and if so why they think so. I do not think that an applicant would be able to establish either that the evidence was NECESSARY as required by statute OR that the discipline was one which ought to be relied upon by the court (you would need to establish this was genuine scientific expertise rather than junk science and frankly no court is going to want to go there).

We need to make a distinction however between admission of the testing evidence itself (i.e. did the tests demonstrate truthfulness or not in the opinion of the polygraph operator) and the record of answers given by the examinee, for example where those answers conflict with previous or subsequent evidence or contain some admission. I can see circumstances where the answers given by a sex offender under compulsory polygraph testing *might* conceivably be relevant and admissible for the purposes of testing allegations of sexual abuse of a child in care proceedings on the civil standard – even where they would be inadmissible in criminal proceedings by virtue of s30. However, I’m hypothesising and I would certainly not want to be the one making such an application. In truth I think this is probably a fanciful scenario.

There is an interesting article here in The Independent by Professor Grubin, the guy who persuaded the MoJ to introduce compulsory testing for sex offenders. He says that polygraph testing is often misconstrued because of the Jeremy Kyle show and even he is specifically NOT advocating the use of polygraph tests in court proceedings.

So, the short answer to the question : Can I rely on a Polygraph test in the family court to prove my innocence is : NOPE.

So, if this is all correct how come there is a polygraph industry in the UK at all? Who on earth are they testing and what are people doing with the tests?

Well, it turns out they are testing employees or potential employees and doing various other things – and to my surprise – offering marital / relationship services to couples where one is suspicious of infidelity. Yes, how romantic : “Darling, would you mind terribly taking this polygraph test? I’d like to see how much you perspire when accused of kissing the gardener in the gazebo.”

Here’s an example from www.liedetectortest.uk :

If you think your partner is cheating on you and want to find out if these suspicions are true – let us know! We will find the answers you are looking for!…

Relationship issues : Throughout the years we have been faced with this challenge many times and our test has many times proved to be extremely helpful in resolving relationship matters. We will verify any kind of suspicion whether it theft, infidelity and false claims. It is not worth living with somebody who we can’t trust and our test is here to help you determine whether your partner can be trusted.

This outfit says it offers “Polygraph examinations performed by the British Polygraph Institute” and that it is an “official partner of the BRITISH POLYGRAPH INSTITUTE, the biggest organisation offering polygraph examinations in the whole of UK”.

Further :

All of the examiners are fully licensed and trained by the most renowned polygraph associations such as British Polygraph Institute and APA (American Polygraph Association) which mean that our services are professional, fair and – what is most important – accurate.

Our examiners are researchers and practitioners at the British Polygraph Institute and fulfil all of the points above. We will offer you the highest level of service quality and will deliver you the most accurate results possible. Do not hesitate to contact Lie Detector Test LTD and find out more about our offer.

And on the About Us page:

The British Polygraph Institute LLC and BPI Lie Detection are organisations specializing in professional lie detection tests. Our up-to-date equipment used by our experienced and licensed examiners will deliver you the most accurate results available. We are based in the USA and UK and are able to deliver our services to any place in Britain….

Our examiners are fully licensed and belong to the World’s biggest and most known polygraph associations such as BEPA (British & European Polygraph Association) and APA (American Polygraph Association).

There is also reference to the companies Lie Detector Test Ltd and British Polygraph Service Ltd on their site.

So it’s all a bit confusing in terms of who is who and how they are connected. In fact, the only information I can find about the British Polygraph Institute is on the liedetectortest.uk website itself – so it appears this is more about branding than regulation and I think this site is just an umbrella through which a range of polygraph testers can receive referrals – no names are provided at all on this site.

Another site titled UK Lie Tests at the url http://polygraphs.co.uk/ says it is a member of the British Polygraph Association. It identifies 3 testers : Guy Heseltine and Tristam and bruce burgess (these are the Jeremy Kyle guys). On relationships they say :

Relationship Issues / Infidelity

Whenever trust becomes an issue within a relationship it is important to tackle the problem with care. We specialise in using the polygraph to verify truth or deception within personal relationships, allowing the couple the opportunity of moving on with their lives. The decision to take a lie detector test can be a big step for any couple so contact us for free advice. No other UK company can match our experience in relationship testing.

The British Polygraph Association does appear to be a self appointed regulator of sorts. It has a constitution and a code of ethics (not one incidentally that would be remotely compliant with the requirements of the Family Procedure Rules in terms of expert obligations and duties). It has a mere 18 members.

Then there is something called the British Polygraph Academy, which seems only to provide training to new entrants to the polygraph market in the UK.

Even more confusingly we also have The British & European Polygraph Association (BEPA) which has 39 members (11 are associate only and several are non practising). They estimate “the accuracy of the results is in the range of 90 – 95 %. More recently, research has shown that the accuracy of computerised polygraph testing is 98 %”.They don’t cite the research.

Interestingly, in the FAQ section we are told that

With a BEPA examiner  you will be informed of the exact wording of each question that will be asked of you during the course of the polygraph examination. There will be no “trick” questions.

Which does rather beg certain questions…

So, all this suggests to me that a) its a pretty small industry with a rather inflated web presence (there were lots of similar sites but I didn’t explore them all) b) regulation is voluntary c) its a difficult to navigate market for a consumer and its structure is not entirely transparent. It will have had a boost since 2014 in that the government must be employing / contracting with some of these chaps in order to carry out its compulsory testing (the liedetectortest.uk lot show a gov.uk logo on their site and I assume this is what it relates to), but they are clearly focusing their business development on private individuals and companies.

But I’m most interested in the relationships stuff. Firstly, I can’t imagine how messed up you / your relationship would have to be to get to the point where you ask your spouse to carry out a polygraph test – and where your spouse agreed. And I seriously doubt that anyone who reaches that point is going to be miraculously cured of their obsessive jealousy and paranoia by a flipping lie detector test. But perhaps I just don’t watch enough Jeremy Kyle… Personally I would have thought that the minute the polygraph is mentioned it’s time to start drafting your online divorce petition and you can cite that as example number 1 of unreasonable behaviour…I’d LOVE to know how many people actually do this – and how many find it helps their relationship (as claimed) rather than killing it off completely.

For those who are interested, you can also find some interesting and useful discussion about polygraph tests here and here.

 

You say pot-A-to, I say pot-ah-to…

IMG_2698I should be sleeping off my jet lag but I’m wide awake, probably due to the drip fed Twinings that I have been brewing since I set foot in the door – enough to make up for all the awful, mediocre and downright undrinkable cups of “hot tea” that I have suffered over the last three weeks in an attempt to fend off the caffeine withdrawal headaches (I don’t do coffee, the American’s don’t do tea).

Every time I visit I forget how many little things are different, notwithstanding everything we have in common with our special friends across the pond. And how significant some of those little things are. Having to order hot tea with milk is one (take your own teabags, Lipton’s is vile, drink it black if they offer you creamer or half and half). Having to remember that every mean comes with cheese in, on or under it, and that “cheese” and “cheddar” bear no resemblance to what we would call “cheese” (let alone Cheddar) is another (I had a large chunk of extra mature English Cheddar with my cuppa too and boy was it gorgeous). And did I mention my discovery this trip that the chilli in so-called-chilli-dogs doesn’t have chilli in it? (I made a chilli con carne with CHILLI in it tonight in protest). That said, a chilli dog (even if it is a misnomer) is a fine thing indeed. I highly recommend Hillbilly Hotdogs if you’re ever passing through Lesage, West Virginia.

IMG_2878It’s not just food either. If I had a dollar for every American Flag I could see painted on something, hanging off something, or decorating someone’s house, shop, car, child or pet I would be very very wealthy. The only thing that is more prevalent than the stars and stripes is God – particularly in the parts I tend to visit (mainly West Virginia – family connections). It is woven through everything, intermingled with commercials, on road side signs, on humorous (and often mysoginistic) plaques to put on your wall, on mugs, on t-shirts and throughout communities. And in election campaigns for judges (oh yes). Friends I chewed the fat with on this visit – about the rise of the Tea Party and of Trump and Cruz et al – spoke of a sense that America had lost its identity. For me, coming from the UK once every few years, America’s identity is restated everywhere at all times – in fact, it seems more so every time I visit. America is all about America every minute of every day. As it always has been. If anything it is a caricature of itself, not a washed out echo of it. Whatever else it may need to worry about, I don’t think America needs worry that it’s identity has been lost or forgotten.

IMG_3547This visit though, I was knocked sideways by the state wide judicial elections that are currently running. Now, I knew that in the US many judicial posts are elected, but this is the first time I had seen an actual campaign – or the campaign material. On most visits I am shouting “stop the car there’s a turkey / deer / groundhog” – this trip it was campaign roadside banners and posters I was obsessed with photographing. Sadly I could not bag a pic of the 100m high judicial re-election advert juxtaposed with an adult store advert that we spotted from the interstate, and this is nothing like a representative sample – but I got a few to give you a flavour. And at every store, gas station or rest area where leaflets were laid out I bagged one for posterity. The striking feature of these campaign materials is not just that they are for electing judicial office holders, not even that they are basically adverts (although those things are weird enough to us Englishers), but that they are often selling a candidate on the basis of their credentials as upstanding and active members of the church, wholesome family men and women (there were women although I don’t have any in my sample) who have held down manual or blue collar jobs in their past. Adverts almost invariably feature the candidate posing with his wife and children and a lengthy CV of a host of prior community posts and works and wholesome American hobbies.

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This is just a million miles away from things here. Here, quite apart from the fact that there is an independent appointments system, judges are appointed on the basis of their legal and judicial skill and experience and little is known about their family life either by the appointments panel or the community they serve. Judges here may have a preference for an appointment in a particular locality but they do not apply for a post in a specific court or community – whereas the individuals being elected are elected by their local community to whom they are most likely well known – and well known for a particular stance on key issues such as drugs and crime. In further contrast to our judges, who are one removed from the rest of us, many of the candidates include their phone number, email, facebook page or website on their materials – I cannot imagine any judge here publishing a picture of him/herself with spouse and children, and giving all their names and details of their occupations and achievements and the church at which they worship. The private life of a judge is pretty much private here (unless you have 7 pointedly named pigs or have been named and shamed as an Evil Corrupt Family Court Judge).

Drugs and crime seem to be a particular issue in West Virginia in particular (I can’t vouch for other states but anticipate there are similar issues, although I think they are particularly pronounced in West Virginia which has some real economic challenges due to the decline of the coal industry). Most of the friends I spoke with told me of a chronic, statewide problem around over-prescription of pain medication pills (due to the unhealthy influence of Big Pharma on frontline medicine), which has led to a boom in illegal drug use, in particular heroin and meth. I did not meet one West Virginian who didn’t flag this as a problem, it is a widespread belief. As one might expect therefore, there is lots of talk in campaign material of getting tough on crime and drugs – which perhaps means more and longer sentences. The need to talk tough on drugs and crime in order to secure judicial office is something that makes me feel a little queasy. The overt suggestion that a judge would be motivated by his own personal circumstances, i.e. the need to protect his own family, is also really rather counterintuitive – we are used to constructing judges as impartial and as leaving their personal convictions and interests at the door. Perhaps our approach is a fiction and theirs is just more honest :

“Over the past several years…I have become concerned with the rise of crime and drug abuse that threatens the safety of my family and yours and I want to do something about it.” [Dennis Willett campaign material]

IMG_2410But here it seems judges are seen very much more as part of rather than separate from the community that they serve. Not some high and mighty highly educated, legal boffin, but one of us – churchgoer, family man, sports fan, hunter – oh, and lawyer too. Perhaps this is a little like our notion that magistrates represent the delivery of local community justice by our community peers (I say “notion” advisedly, it is sadly the case that our Magistracy remains pretty unrepresentative of the communities it serves notwithstanding some initiatives to change that).

IMG_3541

IMG_3543 Yikes – spilt my Dr Pepper on this one. Got the kids wet!

 

There is some talk in publicity material of judges being unbiased, but here it means I think something different from what we would anticipate. It seems to be referring specifically to the requirement to be non-partisan in the sense of not party-political. What it doesn’t mean is judges steering clear of policy making – this stuff is ALL about policy making. See in particular Dennis Williett’s campaign website, where he sets out his “program initiatives” for crime reduction and the sentencing approach he will take as judge to repeat offenders – policy making writ large.

 

To be clear, I’m not writing this post in an attempt to ridicule or criticise the system that operates elsewhere. I’m very conscious that our system is imperfect in a number of different ways – and that the distancing between judiciary and “real people” in this jurisdiction has both its strengths and disadvantages in terms of the delivery of justice and confidence in the system. Some of the US lawyers I spoke to scoffed at the notion of an “independent” appointments system – and one thing that an electoral system certainly does is to level the class and educational barriers to judicial office, even if the quid pro quo may be that a judge in an electoral system is rather more likely to be on the Daily Mail end of the political spectrum than in an appointed system. It is of course, only very recently that we have evolved from the secret soundings and tap on the shoulder “system” – and our appointments and judicial training systems are themselves in their infancy. Not entirely unfairly my american lawyer friends said “but who appoints the appointers?”

IMG_3551What I wanted to share was the experience I had of continual double takes at this very in-your-face approach to judges which is so odd when looked at by a tea drinking lawyer from across the pond who is used to judges being up there on the bench not down here with the sports fans. Whilst I don’t like the idea of judicial elections much at all, it is instructive to think about how other jurisdictions approach things and what pros and cons that throws up – and how the pros might be recreated elsewhere. I’d be interested to know what others think. I’m pretty sure our legal system looks mighty odd to a foreigner too (lets face it, some days it looks pretty weird to an insider as well).

I’ll leave you with this profound thought from one candidate for the position of Magistrate :

“Since I returned to Philippi, I have adopted the phrase, “I don’t care if their dog ate your cat ten years ago”. [Chris Mulneix campaign material]

(nope, I don’t know either)

I see as I proof read this that this is a slightly meandering “thing” of a blog post. I think this is the product of jet lag who I hold wholly responsible for any errors or stupidity in this post. Off to bed now, although my belly is telling me it is breakfast time…

[UPDATE 15/4/16 : Thanks to @goyalam for pointing me to this brilliant but scary John Oliver clip about the US approach to the election of judges – apparently the only other country who do this is Bolivia. As an honorary American, he is slightly less polite than me, but I’m reassured to find my gawping reaction was not dissimilar to his…]

 

Treasury announces funding for treatment of hysterical women

...something I came across on my antique mall travels in W.V. USA this week...The government, working in partnership with an alliance of Mens Rights Groups, have today announced a programme to reintroduce electric shock treatment for women suffering from the debilitating condition known as radfeminaziism. The condition first manifests itself as being “a bit lippy” and occasional failures to depilate regularly, and rapidly moves on to a compulsion to argue with men who think they are right in inappropriate social contexts, and is often accompanied by full blown ugliness and unkempt hair. “It’s so humiliating” said one woman sufferer “I just can’t help but be right all the time. I just have this sort of radar that spots b.s. from 140 characters away and I can’t help myself – I have to call it out. I’d rather just be pretty and agreeable, but I can’t stop myself”.

Feminazi-ism is known to be particularly dangerous to the more delicate males in the population, who are less able to defend themselves with logic and are forced to resort to swearing and insults in a desperate bid to protect themselves from these rabid female attackers. “It’s a condition which is costing the NHS upwards of £7m per annum, mainly through treatment and wrap around care for men who are right but who are pathologically unable to articulate why” said an NHS England spokesman.

The alliance of menz groups who will run the groundbreaking Vibratory Technique Treatment Programme on behalf of the government argue that the treatment, first pioneered in 1917, is proven effective in reducing the tendency of certain women to argue back or generally challenge the views of men who are being unfairly downtrodden by an equality agenda. “We have robust data proving this works**” said a spokesman. Some women suggested that the plural of anecdote is not data, and that opinion is not fact, but a large number of twitter afficionados have said this is just sour grapes because they are so f*cking fat and ugly.

George Osborne, in a No. 10 press conference announcing Treasury backing for the scheme, said,

“Today, we are helping ladies who have saved money through the removal of tampon tax to reinvest in this self-improvement, by reintroducing a new tax on female sanitary products to enable them to contribute to this initiative in line with the right of ladies to be economically self-sufficient. Post-menstrual ladies are being assisted to contribute by deduction at source from their earned income, benefits or pension.”

Womens’ rights groups have complained that they were not consulted about the proposals, and that they are dangerous and insulting and infantilising. “This sort of constant whining just goes to show how critical this programme really is” said a government spokesman. “They need to see that we are promoting equality here. In support of our commitment to root out the dangerous networks of feminists, we will prioritise funds and treatment towards women known to be key preachers first.”

 

**telephone survey of 20 downtrodden men who all definitely agreed

Ok ok it was an April fool – but inspired by the actual real life contraption I photographed in a West Virginian antique shop this week. I have NO IDEA how it was operated but it looks dodgy to me!