In 1973 Courts in New York and Oregon began requiring probationers to undergo polygraph testing. Tests were offered as a condition of probation and those who declined to participate were sentenced to jail. As time passed, the courts found that recidivism of those undergoing periodic polygraph testing dropped to around 10% while those not being tested had a recidivism rate of nearly 80%.

In the late 1970's polygraph was integrated into Sex Offender Treatment Programs in Oregon. Today, "State of the Art" treatment requires periodic polygraph testing as an aid in monitoring Offender behavior and to provide treatment information in the areas of sexual history and overcoming denial.

In 1996, the State of Oregon concluded a 10-year follow-up program on those convicted offenders who underwent polygraph supervision. That study found only 6% had re-offended and overall less than 10% had additional legal problems.

For years, the use of the polygraph was limited to use as an investigative aid. Today, the number of courts accepting polygraph testimony has grown. More than half of the states now accept polygraph testimony in one form or another. Federal Courts have recognized scientific reliability. Significant Court rulings on the use of the polygraph include:

(1) Frye Vs United States (1923): The Frye case set the legal precedent for non-admissibility of polygraph testimony. Frey required polygraph testimony (and other forms of scientific evidence) to have "General acceptance within the Scientific Community."

(2) Picionna Vs United States (1988): The 11th Circuit Court of Appeals rejected the Frye Decision and ruled Polygraph testing was scientifically accepted and admitted testimony for limited use.

(3) Daubert Vs Merrill Dow Pharmaceuticals (1993): The United States Supreme Court abandoned the Frye decision and deferred to Rule 702, of the Federal Rules of Evidence.

(4) Posada Vs United States (1995): Posada admitted polygraph testing within the 5th Circuit of the United States Court Appeals.

(5) State of Kansas Vs Stephen Medford Shively (SNDC, 1996): The trial court ruled Polygraph testing was reliable and testimony should be admitted over the objections of the State of Kansas.

There is no universal "lie" response. Each time human beings lie a physiological change does not occur. However, when individuals lie about something that they fear will have adverse consequences if discovered, the lie does evoke physiological changes that can be monitored and recorded. It is the fear of the detection of deception that caused the physiological reactions.

The training and experience of the examiner are critical if valid diagnostic opinions are to be formed. In Kansas, polygraph examiners are not required to be licensed, have any formal training or participate in Continuing Education.

Within the polygraph test environment, the polygraph subject is introduced to a series of stimuli in the form of questions. These questions are carefully developed and each serves a specific purpose. "Relevant" questions deal specifically with the matter under investigation and "probable lie" questions are used for comparison purposes.

Within the polygraph setting, the polygraph subject will react to those questions that cause the greatest perceived threat to their well being. Obviously, the relevant questions pose the greatest threat to the deceptive subject and the "probable lie" questions to the non-deceptive subject. By comparing the magnitude and distribution of reactions, the examiner forms an opinion as to the polygraph subject's truthfulness to the matter under investigation.

The majority of errors made during polygraph examinations are caused by the examiner. The most common causes of error are improper preparation of the polygraph test subject; improper evaluation of the psycho-physiological data gathered during the polygraph test; improper question formulation; and a lack of experience.

Over the years substantial research has been conducted on the effects of drugs and alcohol on polygraph testing. Generally the use of alcohol has minimal effect on the outcome of a polygraph test. The key factor is whether or not the polygraph subject "knows" an act was committed. It is not generally necessary to remember all the intricate details.

Drugs are often cited as an effective countermeasure to polygraph tests. Many examiners will not test individuals who are under the influence of drugs (legal and illegal). Research has shown there is no drug that will enable someone to "pass" a properly prepared and administered polygraph test. It is possible for drugs to reduce autonomic activity to such a degree that a valid opinion cannot be formed. However, this is a rare occurrence.

Within the Clinical setting there are three general categories of polygraph tests. These categories are Disclosure Tests, Maintenance Tests, and Specific Issue Tests. Each category of test requires clear and specific questions. The meaning of each relevant question must be specific and not open to multiple meanings. Each question should deal with specific time frames, i.e., while an offense was being committed, prior to the commission of the current offense, or behavior that has occurred during a specific period of time. Crossing "time barriers" may invalidate a test.

Test questions should deal with specific actions, not "state of mind or intent." Questions should not use emotionally charged words and, when possible should use the words used by or preferred by the polygraph subject.

In the field of Polygraphy, there are variety of questioning techniques. The Research indicates Sex Offenders should be tested using a "Control Question Technique." Examiners' who deviate from standardized test techniques place the treatment program and effectiveness of the polygraph test at risk.

The most common "Control Question Techniques" is:

1. Backster Zone Comparison Technique: The Backster Technique was developed and is continually evaluated and refined by Cleve Backster (Backster School of Lie Detection, San Diego, California) and has several forms:

(a) You Phase (also known as the Bi-Zone) - The You Phase is a single issue test and contains two (2) relevant questions.

(b) Backster Exploratory - The Backster exploratory test uses three (3) or four (4) relevant questions. The test structures of both are specifically set out in the technique procedures. Question placement and question pacing have specific requirements. Violation of these requirements can invalidate the test.

2. Mixed General Question Test Technique (MGQT) - The MGQT is a control question technique taught primarily by the Federal Government. The MGQT utilizes four (4) relevant questions.

The formulation of the examiner's opinion is based upon the magnitude and distribution of reactions found on the polygraph charts. Research clearly demonstrates examiners who use numerical scoring have lower error rates than those who globally score charts.

In 1990 Computer Polygraphs began appearing in the field. Computer polygraphs gather the same basic data gathered by traditional analog instruments. However, most computer polygraphs will supplement examiner scoring with a Computer Algorithm. Use of the Computer protects against examiner bias and insures uniform chart evaluation. Substantial research has occurred on the validity and reliability of computer analysis. That research continues today.

The polygraph examiner will form one to three opinions about relevant questions.

• Truthful
• Not Truthful
• Inconclusive

You should expect a written report from your examiner. The report should contain the identifying information on the polygraph subject, information gathered during the interview, relevant questions and any admissions made following the polygraph test. All reports should be submitted in writing.

There are three classifications of Clinical Testing:

1. Disclosure Testing

Sexual History - Sexual History tests are administered to evaluate the candor of the Offender in completing the treatment provider's sexual history form. Inquiry is limited to four (4) specific areas and should deal with historical behavior prior to and not including the current offense.

Current Offense - Testing over the Current Offense usually deals with denial issues. Often offenders enter treatment at the direction of the Court and have not accepted responsibly for their actions. In some cases, denial may be real and the "offender" did not commit the act as charged. Other denial issues involve admission to some acts and denial of others. These tests are generally limited to two (2) or three (3) relevant questions.

Assessment Tests - Assessment tests are used to assist in determining amenability to treatment, risk to the community, and extent of offense. These tests are usually limited to four (4) relevant questions.

2. Maintenance Testing - Maintenance Tests are administered periodically to insure compliance with treatment contracts, probation and parole requirements, and for identifying those re-offending. Maintenance testing is best described as an "artificial conscience." Offenders who are re-offending are identified early and corrective action can be taken. Maintenance tests are usually given every four to six months.

3. Specific Issue Tests - Specific Issue Tests are given when specific problems occur. Those problems could be allegations of re-offense or use of illegal drugs. These tests are narrowly defined and deal with a single problem or issue.