Catching Liars With Technology

It's the truth: It may be getting tougher to lie in court. A wide range of tests designed to catch liars are starting to gain some respect in court, including the much abused polygraph, voice-stress analyzers and a newer test that tries to tell if someone is faking an illness or injury.

In recent years, courts have expanded the use of polygraphs in particular, allowing lie detector results to be admitted as evidence, and subjecting more individuals to mandatory testing, including parolees, sex offenders and police officers.

Many lawyers cite technological advancements and increased use of lie detectors in general as reasons for their growing acceptance. As the tests get more reliable, and more people use them, they say, more judges are willing to consider them as evidence. "Nobody could spell polygraph five years ago. But as the technology gets better and better, judges are feeling more comfortable with at least eyeballing the results, " said Susan Moss of New York's matrimonial firm Chemtob Moss Forman & Talbert. Moss also noted that family law attorneys are getting "more wiggle room" to submit polygraph results in motions for judicial review.

But lawyers aren't just asking judges to eyeball lie detector results. They're pushing to get the evidence submitted at trial -- and some of them are succeeding. In Ohio, a law student accused of rape was acquitted last summer after a judge allowed his polygraph results to be admitted as evidence, over the objections of the prosecutor. The judge acquitted the defendant, in part, because of the polygraph results. Ohio v. Sharma, No. CR 06-09-3248 (Summit Co., Ohio, Ct. C.P.).

In New Jersey, an appeals panel last June upheld the burglary conviction of a man who failed a voice stress analysis -- another type of lie detector that measures stress in a person's voice. The defendant claimed the voice-stress exam was deceptive and coerced him into making a confession, but the court disagreed. New Jersey v. Torres, No. A-3350-0574 (N.J. App. Div.).

In Florida, a motion is currently pending before a federal court to allow jurors to hear that a suspect in the murders of four people at sea passed a lie detector test. Prosecutors are fighting to keep the evidence out. U.S. v. Archer, No. 07-20839-CR (S.D. Fla.).

THE 'FAKE BAD SCALE'

On the civil litigation front, a new test known as the Fake Bad Scale is increasingly being used by defendants in personal injury cases who claim that plaintiffs are lying or exaggerating about injuries. The Fake Bad Scale is a true-or-false test that attempts to identify those faking pain, psychological symptoms or other injuries alleged in personal injury claims. In the last year, the Fake Bad Scale has been upheld by one administrative law judge, but rejected by two courts in Florida.

Currently, New Mexico is the only state that allows polygraph results to be admitted without stipulation by both the defense and prosecution. About a dozen states allow polygraph results to be admitted if both parties agree to it. Most states, however, ban the practice altogether.

In the federal courts, judges have discretion over polygraph admissibility. The U.S. Supreme Court gave them that discretion in 1998, when it held that "the scientific community remains extremely polarized about the reliability of polygraph techniques," and thus left it up to individual jurisdictions to decide such matters. U.S. v. Scheffer, 523 U.S. 303 (1998).

"I think there is a slow trend building that is overcoming the courts' reluctance to admit polygraph results. I think that they are being used more, and I think that their reliability is increasing," said criminal trial attorney William Matthewman, of Boca Raton, Fla.-based Seiden, Alder, Matthewman & Bloch. Matthewman is pursuing the motion to have polygraph results admitted in a Florida murder trial involving four crew members of the Joe Cool fishing boat who were killed at sea. A defendant passed a lie detector test, and Matthewman is trying to get that before a jury. He is relying on a 1989 11th U.S. Circuit Court of Appeals ruling, which allows for the admission of polygraph results in federal trials, provided that certain requirements are met. U.S. v. Piccinona, 885 F.2d 1529 (11th Cir. 1989). Matthewman, who has successfully used polygraph results in prior cases, argued that if jurors can hear DNA evidence, ballistic evidence and hair evidence, "there's no reason to exclude polygraph evidence."

Kirk Migdal, the Ohio defense attorney who successfully had lie detector results admitted in a sexual battery case over prosecutors' objections, agreed. "[The polygraph] is either good science or it's not. I think it's good science," said Migdal, a solo criminal defense lawyer in Akron, Ohio. "You shouldn't require stipulation. They don't for fingerprinting, DNA, blood splatters. ... The jurors can weigh it just as if it were any other piece of scientific evidence."

But jurors might give too much weight to lie detector results, countered Robin Sax, a deputy district attorney in Los Angeles who believes its safer to omit polygraph results during trial. "It's better to keep it out than risk a prejudice it has to a jury," Sax said. "It's good enough as an investigative tool, but I wouldn't want a case to rest on the reliability of the polygraph." ......

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