To: Federal and State Affairs Committee Chairman Tony Powell,

From: Robert M. Beattie Jr., Esq., HB2725 Proponent

Re: Polygraph Hearings Follow-Up Message, 8 March 2000

I know that you have many important things demanding your attention, but you've come so far on this polygraph issue I hope you'll come just a little farther. This letter may help you to see over the top of the hill on this issue. If the bill fails this year, it may be back in some form next year, and since it is on your mind now, perhaps this will be a good time to read this.

A few years ago while working as a physiologist in the FBI laboratory he was asked by Paul Minor, then head of the FBI Polygraph Division, to go to polygraph school so that he could evaluate the polygraph as a scientist. Dr. Richardson agreed, was sent to and graduated from the Department of Defense Polygraph Institute, and became an FBI apprentice polygraph examiner.

However, on September 29, 1997, Dr. Richardson told the United States Senate, Committee on the Judiciary, the five things I've just reported to you in quotes. After consulting with Dr. Richardson by telephone, he agreed that since his sworn testimony is already a matter of public record, you should be provided with this information and the Bureau should not take any action against him.

(Naturally, Dr. Richardson is no longer an FBI polygraph examiner, but again works in the FBI laboratory.)

However, I have an entire semester to change my student's minds, while I had three minutes with the committee. I ask my students to approach each issue we address with a fresh "beginner's mind" and apply the scientific method to the subject under investigation. When approached this way, it does not take long to realize that the polygraph is not a scientific procedure. The polygraph continues because is has become accepted in our cultural folklore and not because of any validity or reliability it possesses as a lie-detector. You'll recall the speaker from the American Psychological Association repeatedly assert that the studies show the polygraph has a high "utility," but he would not agree that the polygraph has a high validity (a social science term indicating the test measures what it claims to measure) or reliability (a social science term indicating the percentage of accuracy the test when administered by different practitioners).

A one-hundred percent "reliable" test is meaningless unless it first has a high validity. My mention of astrology in the hearing stems from this example, which is taught in social science classrooms around the world: astrology has an extremely high reliability, that is, different practitioners come to the same results. But since it has low validity -- it can't really tell you your future any better than chance -- its high reliability does not make it a scientific test.

And, as Dr. Richardson noted in his testimony to the US Senate Committee on the Judiciary, the polygraph has absolutely no validity.

He answered "Yes. Lawyers don't have the first clue how the polygraph works."

No. The bill opponents were being deceptive when they told you that the courts accepted the polygraph as being scientific. The vast majority of published state and federal court decisions declare unequivocally that the polygraph is not based in the scientific method, and that polygraph examiners do not qualify as expert witnesses on the polygraph because polygraph examiner training provides no training in the scientific method. There are a few individual judges that have approved use of the polygraph, and who have declared that it is reliable enough to be admitted as evidence, but these are the exception, not the rule.

The Supreme Court of the State of Kansas is not a Daubert-Kumho court. Our court has affirmatively rejected the rule that when evaluating purportedly scientific evidence, a trial court judge must decide whether the evidence is based in the scientific method. Instead, our courts ask whether the relevant community accepts the procedure. This is intended to accept new claims slowly, because the claims must be accepted by a majority of the relevant community, and the Kansas high court, contrary to the US high court, thinks this is the best way to proceed.

However, as the history of science has repeatedly shown, acceptance is a poor methodology. Nobel Laureate Max Planck said that, regrettably, many new, valid, and useful scientific theories require a generation to be accepted, because the older generation accustomed to the old theories have to die off and be replaced by a new generation that has grown up with the "new" theory already "old" to them. The polygraph is 80 years old and still is not accepted. It rarely takes more than a generation for a valid theory to be accepted. If the polygraph is valid, by now it should have been accepted by the scientific community.

As far as the polygraph being accepted as science in Kansas education, in the second episode of "Discovering Psychology," which is a semester long psychology video series used in community colleges to teach introductory psychology across Kansas, host Dr. Philip Zimbardo describes the polygraph as the type of pseudo-science which educated persons must reject. Kansas social science students are learning that the polygraph is pseudo-science. To the contrary, Kansas criminal justice students are learning (from lectures by polygraph examiners) that the polygraph is 85-95 percent accurate as a lie-detector.

Insurance companies are being encouraged by the polygraph industry to use polygraph exams, because they are much cheaper than conventional, time-consuming, investigations. A retired Wichita police officer, who did not agree that I could use his name, said that in his long experience, only lazy or incompetent officers used polygraph exams, because it was a substitute for long hours of legitimate investigative work. The polygraph industry is trying to turn laziness into virtue.

Bill opponents may have a blind spot when it comes to balancing the interests of innocent people, and balancing their own checkbook. According to former polygraph examiner Doug Williams, who spoke at the hearings, at least one police polygraph examiner makes as much as four-times his government salary conducting polygraph exams off-duty. And many -- perhaps most -- law enforcement polygraph examiners have a lucrative side-business conducting polygraph exams off duty.

And remember, it is conventional for polygraph examiners to charge from $200 to $350 per polygraph, which rarely lasts more than two hours in the commercial setting. It is only in the settings where the examiner is being paid by the government by the hour, rather than by the polygraph job, that exams take several hours.

While I believe that most polygraph examiners are devoted public servants intending only to help the community, since they have a huge pecuniary interest in the polygraph, either off-duty or in retirement, they may have a blind spot. They are often employed by Insurance companies who have open and declared bias favoring the polygraph, because it saves them money.

The pro-bill speakers were deeply saddened that bill opponents were not questioned about their pecuniary interests by the committee.

The bill proponents make no money off of polygraph exams, they are merely trying to correct what they see as a great social wrong. As I mentioned in my written statement, to this point I have done all my polygraph related work pro-bono. We approach this from our professions or occupations, in my case both as a lawyer and as an educator.

When I read section 4(C) in the hearing room, I was baffled. This was contrary to anything I recall ever advocating -- and I wrote the original draft of this bill. When I offered it to Representative Welshimer, in my draft, and in all of my conversations with anyone, up to and including my remarks in hearing room, it was my intent that the 90-minute provision refer only to the time the subject spent in the chair while being hooked-up to the machine. The error I made was in never noticing the difference between what I intended and what you received. Yes, of course I had a copy of the bill, but, having written it, I wrongly "knew" what it said, and when I saw it I missed the additional language. It is entirely possible that after all my preparations, I provided a faulty copy to be used as the model of the bill. If that is what happened, I apologize. Reading the Bill it looks as though page 2 (c) was intended to include three sentences, where it includes only two. The entire procedure, including time off the machine, must be videotaped. The ninety minutes provision -- which was intended to refer only to the time the subject is hooked-up to the machine -- should have been a separate sentence.

As I said at the hearing, the entire polygraph is an interrogation. The purpose in talking with the subject before and after the time spent hooked-up in the chair is more interrogation. There is an odd convention that polygraph operators have adopted where they refer to "pre-test" and "post-test" phases of the test as being part of the test. While the meaning of the phrase "pre-test" would seem to textually refer to the time BEFORE the polygraph test, and the phrase "post-test" textually seems to refer to the time AFTER the polygraph test, among the polygraph community, these times are considered essential parts of a single procedure -- more A, B, and C parts, where B is the time actually spent hooked-up to the machine. This is confusing to people outside the field (which includes members of the House Federal and State Affairs Committee).

All of the studies known to me which conclude polygraph exams are highly accurate as "lie detectors" are unsound. They are a product of the polygraph community reporting on itself. They cannot be considered unbiased. To verify the validity and reliable of astrologers, one cannot have a study begging the question about validity and reliability and go to a utility criteria. By the criteria advanced at the hearing, taking laetrile cures cancer.

This argument commits the fallacy of AFFIRMING THE CONSEQUENT. It is an illogical FORM of reasoning, and it is NOT science.

It is of this form: If p, then q

q

Therefore, p

Q is the direct or inferred conclusion that the subject lied (confession, conviction, etc.)

P is that the polygraph is a valid method of lie detection. P is claimed to be proven.

By this reasoning I can say: When I read these tea-leafs and it comes up "liar," and X% of the time that person either confesses, is convicted, or accepts a plea-bargain, then the evidence supports my tea-leaf reading as a valid form of lie-detection.

Affirming the consequent is neither a valid form of reasoning nor does it address the central issue, which is "p," where "p" is the question of whether measuring the increase in electrical conductivity (GSR) of the skin of two fingers, increase in heartrate and breathing, ONLY means that the subject is lying or being deceptive. Your GSR, HR, and BR, may increase for many reasons other than lying, and it is impossible to objectively tell what the reason is. The Secret Service polygraph examiners who tested speaker Bill Roche told him that the polygraph does NOT measure emotion, it ONLY measures deception. That is the spurious claim of the polygraph industry. They are wrong. CORRELATION IS NOT CAUSALITY!

The sex offender who testified that his polygraph therapy was successful would have testified to the same thing had his successful therapy been laetrile instead of the polygraph. Results are never a way of affirming that the procedure followed was the "correct" one. The logical fallacies of "Begging the Question" (petitio princippi) and "Post Hoc, Ergo Propter Hoc" (after this, therefore because of this) also come into play in polygraph evaluation.

From the lawyer's point of view, this is a good deal. Here's why: The client is going to be prosecuted if he declines the polygraph (a certainty), and may be prosecuted if he takes the polygraph, but, there is nearly a fifty-fifty chance that the client will pass the polygraph and the charges will be dropped.

What a deal!

And, of course, as a lawyer, I agree that anytime I don't have to be present while a client (who is probably paying me very little) undergoes an interrogation that may take hours or days, I am inclined to agree. In this respect, lawyers are biased in the same way as polygraph examiners. Polygraph examiners don't want to lose money by having their off-duty polygraphs eliminated, and lawyers don’t want to lose money by having to be present for hours or days during an interrogation where the police don't want them to be present anyway.

The chair that the subject sits in is 4 inches shorter than a normal chair. This is to help put the subject in a position of inferiority and make him uncomfortable. Most polygraph rooms have a one-way mirror into a sound-proofed room where others are viewing and recording the procedure.

The exam will often start with some type of demonstration influencing the subject to believe in the validity of the procedure. A card trick is often used. The subject will be told that "The machine said that you lied when you said that the card was not 'X.'" Wow. This machine must work. But, either the cards are marked or the deck is the entire same card.

Doug Williams told me that he once went into a police car, told the suspect that they had a new type of lie-detector, and wanted to use it on him. Officer Williams wrapped the radio microphone cord around the subject's arm, started asking questions, and when Williams wanted a "lie," he surreptitiously keyed the mike, causing a red-light to glow on the instrument panel. "Ah ha. That's a lie!" Doug Williams told the suspect. The suspect replied, "You got me."

It is the technique that sells. Unfortunately, over forty percent of the innocents are accused of lying. This is what the bill is trying to address. The police can keep the technique, but at present they are abusing it. The legislature should address this.

Although initially we were eager to have testimony from at least five scientists (Dr. Leonard Saxe of Brandeis, Dr. Drew Richardson of the FBI, Dr. David Lykken of the University of Minnesota, Dr. William Iacono of the University of Minnesota, and Dr. David Holmes of the University of Kansas), and one former polygraph examiner (former Detective Doug Williams, who did speak), and one current Detective who has suffered from polygraph abuse (Detective Bill Roche, who suffered through a two-day 13-hour polygraph which the American Polygraph Association speaker said was "criminal"), and one attorney-educator (myself, Robert Beattie), and two people from the sexual-assault community (Sandy Barnett of the Kansas Coalition Against Sexual and Domestic Violence; and a sexual assault victim who took a polygraph at police request after the person she accused "passed" his test),

However, we narrowed our speakers to four, in response to our instruction to have no more than five speakers, hoping that at the last minute Dr. Richardson might still receive permission to come to Topeka, and be our fifth speaker.

We could have arranged for many more speakers in favor of this bill than were present at the hearings. Prior to the beginning of the hearing, we were also were under the impression that because each side was limited to five speakers, each witness would have five minutes and looked forward to some time for legislator's Q&A. Detective Roche flew in from Concord, California, north of San Francisco. Dr. William Iacono -- whose work is favorably cited by the US Supreme Court -- flew in from Minneapolis, Minnesota. Doug Williams drove in from Chickasha, Oklahoma, 40 miles southwest of Oklahoma City. These are three of the top speakers in the country. If the US Congress was inviting a top panel, Bill Roche, Doug Williams, and Dr. Iacono would be three of the panelists. Had we been told in advance that they would have three minutes to speak and then would not be asked any questions, we might have arranged for other speakers from closer to home.

As it was, you'll recall that there were four speakers in favor of the bill, and nine speakers were allowed to testify against it. We were shocked and bewildered at what we perceived as deliberately unfair treatment. However, it could have simply been a misunderstanding that each side was limited to five speakers. I look forward to hearing from you about this.

Director Cunningham writes that "public disclosure [of the requested documents] would compromise the utility of the subject matter and significantly impede the DoD Polygraph Program/law enforcement process."

What is being said here, reading between the lines, is that the Department of Defense has found that everything Dr. Drew Richardson and Dr. William Iacono and Dr. David Lykken (and others) have said is true, but if the DOD Polygraph Institute is no longer funded by Congress because it has no merit, then this will "significantly impede the DoD Polygraph Program/law enforcement process."

The Department of Defense, and Kansas polygraph examiners, are trying to keep their jobs.

The polygraph is used constantly in prison. This is a misguided use of the polygraph and should be eliminated.

Speaking in favor of the bill were Detective Bill Roche, who was victimized by the polygraph when it derailed his attempt to become a Secret Service agent; Distinguished Professor William Iacono, whose credentials as a scientist and whose work is accepted everywhere as being thorough and reputable; Doug Williams, former chief polygraph examiner for the Oklahoma City police department -- BTW: When Doug Williams was in the US Air Force during the Johnson and Nixon years, for a time he carried the "football," the briefcase carrying the nuclear war codes, and always remained close to the President. He has always been a trusted and trustworthy man. -- who has campaigned for elimination of the polygraph for twenty years; and myself.

I am interested in this matter as an educator and as a lawyer. As a lawyer I see and worry about an entire de facto but unregulated "underground" legal system operated by polygraph operators. They decide who can be a law enforcement officer, who gets charged or gets to go free, whose insurance claims will be denied and whose will get paid, and even who is successful in their therapy. They want to be admitted into court. Some even want to replace the jury.

I brought a book to the hearing but did not show it to you. It is a science fiction novel titled "The Truth Machine." It won the award as the 1997 American Bookreaders Association science fiction novel of the year. Published in an overreaction to the OJ Simpson verdict, the book describes political acceptance of the polygraph as a substitute for juries. I think it is a horror story describing a future more bleak than "1984," but polygraph examiners love it.

I teach my students how to do this. It is not science, but, by the fallacies of affirming the consequent and post hoc, ergo propter hoc, since most of the time my trick will result in a better-than-chance accuracy in describing what you have drawn, it can appear that I have read most of your minds. Some people may think that I have "mental powers." Others may claim that it is science. It is neither. Remote-viewing is a simple trick of the same type that is used by many of today's purveyors of Flim-Flam, which includes, to my mind -- even among the best-intentioned -- polygraph operators.

Robert M. Beattie Jr., Esq.

2672 N. Pershing Avenue

Wichita, Kansas 67220-2564 (home)

Attyrmb@aol.com

(316) 685-4369 (home); (316) 685-4270 (office)

Office mailing address: 6505 E. Central, #296

Wichita, Kansas 67206-1924