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 :

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 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 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 lot show a 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.


2 thoughts on “Lie detectors and litigation

  1. If I recall correctly, one of the early pioneers/inventors of the polygraph was also the man who created “Wonder Woman”, which perhaps explains her “Lariat of Truth”

    An interesting piece Lucy. I saw the polygraph legislation for sexual offenders a while back, and really wondered why the Government would want to open that can of worms.

  2. It is interesting to note the reference to the Polygraph in regard to Lie Detectors. There are many articles about these machines, and most studies point out how they are unreliable.
    Of course Lie detectors do not detect lies; they measure body reactions that have to be interpreted by a trained technicial
    But there are other methods of checking whether someone is lying or not. They include:
    Brain scans, body language, eye dilation, skin temperature, facial expressions, tone of voice, speed of speaking, comparing written evidence with spoken evidence, graphical evidence (drawing something referred to in evidence), drugs used to slow down thinking so it is harder to lie, required to repeat statements backwards (difficult if statements have been learnt), analysis of handwriting, Questionnaire with questions restated in different ways, etc.
    There are actual ‘body suits’ that will measure all your twitches. Computers will check your pauses in speaking and change of tone. Cameras will work in slow motion so even a flickering of an eye or a gulp will be registered. Your hand writing for evidence will be compared with your handwriting of the past.
    In all, advances in medical equipment, video and sound editing, facial recognition, and neuroscience can pretty much be put together and guarantee if you are lying or not.
    What can’t be changed easily is the various parties with vested interests in keeping the archaic legal system we are burdoned with. As long as it suits the purpose of lawyers and the law makers to block Lie detectors in courts, then they won’t be used.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.