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Deception detection techniques using polygraph in trials: current status and social scientific evidence.

1. Introduction

Although not every state in the U.S admits polygraph examination as evidence in trial, the results of the polygraph examination have been presented in some trials as evidence under certain conditions. The results of the polygraph examination are given to the jury usually through expert testimony, or sometimes, the jury hears about the defendant taking the polygraph test at some point of a trial. Generally, in the U.S, polygraph evidence is not admissible in court, but the jury could be given information related to the polygraph in various ways. In the U.S, 18 states (1) admit polygraph evidence only when certain conditions are met and the rest do not admit such evidence to the jury or at all with any purposes. Since there are cases in which polygraph evidence is presented to the jury with a certain safeguard (e.g., a stipulation and judge's instructions), even though it is not generally admissible, it is necessary to learn about the uses of polygraph evidence in trial and the status of the social scientific evidence that has accumulated over the last several decades. Furthermore, there needs to be novel research fitted to the situation where polygraph evidence is encountered, based on the legal decision and the social scientific evidence. In this article, therefore, 1) the uses of polygraph in each state in the U.S will be summarized, and 2) the status of the social scientific evidence dealing with the polygraph itself and its effects in trial will be synthesized. Finally, 3) I will provide an outline of what kinds of research have to be done in cooperation will be suggested. For the researchers working on lie detection and jury decision making, this study would provide synthesized information to conduct more qualified and practical studies. Thus, it would contribute to the improvement of related policies, ultimately. (2)

2. The Uses of Polygraph in Trials: Analysis by State Level

The aim of the first section is to summarize the reasons why some states admit polygraph evidence, and, if a state admits the evidence in trial, what the requirements are. The polygraph is, actually, a device for measuring various types of physiological activity, such as electrodermal activity, blood pressure, and respiration, but it is known more commonly as the "lie detector." This is misleading because a polygraph does not detect lies, but only records physiological activity that each polygraph technique assumes to be along with telling a lie. Regarding the validity, polygraph proponents argue that a polygraph technique (CQT) has over 85% of accuracy (e.g., Abrams, 1989; Ansley, 1983; Honts & Quick, 1996; Raskin, Honts, & Kircher, 1997), while Lykken (1979) asserts that in real-life situations, the polygraph test has a slightly above chance level of accuracy (64% to 71%). Moreover, APA (American Psychology Association) members estimated the validity of polygraph test at about 61% (Iacono & Lykken, 1997). The results of research regarding the validity of polygraph techniques are extremely polarized, which gives rise to controversies about the admissibility of polygraph evidence in trial.

The first decision related with the polygraph technique (e.g., systolic blood pressure deception technique) was made in Frye v. United States (1923), which stated that "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." At that time, the technique had not yet met the standard that is known as "general acceptance" and therefore the Court concluded that the evidence would have been rejected. Seventy years later, in Daubert v. Merrell Dow Pharm., Inc. (1993), the court ruled that "general acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence, especially Rule 702, do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." In this case, the court also listed four factors that "bear on" a judge's gatekeeping determination, which are 1) whether a "theory or technique ... can be (and has been) tested;" 2) whether it "has been subjected to peer review and publication;" 3) whether, in respect to a particular technique, there is a high "known or potential rate of error" and whether there are "standards controlling the technique's operation;" and 4) whether the theory or technique enjoys "general acceptance" within a "relevant scientific community." These two tests are significantly applied to decide whether a jurisdiction allows polygraph evidence or not. The courts applying the Frye test assert that polygraph technique is too unreliable and is not accepted in related scientific field and therefore is inadmissible. Most of the other courts apply the Daubert test and Federal Rules of Evidence 702 to consider the admissibility of the technique.

For a couple of decades right after the Frye case, no states in the U.S had admitted polygraph (lie-detection) evidence in any proceedings of trails with any purposes since the polygraph technique was not sufficient to satisfy to the Frye test, even in New Mexico which has been known having the most lenient standard for admission of such evidence. From the beginning of the 1970s, there have been some cases in which polygraph evidence was permitted when some requirements were met. Since then, polygraph evidence has been admitted in some states under specific conditions. However, the majority of states have continued to not admit the evidence applying the Frye test.

Eighteen states admit polygraph evidence to trials with some requirements, and some of them only for limited purposes (See Lee v. Martinez, 2004), even though the polygraph evidence is inadmissible in these states in general. All of these states require a stipulation between both parties, which means that if the both parties agree that the defendant takes a polygraph test and presents the result of the test in the trial, to support his/her innocence, the court will admit the polygraph evidence. However, there was a case that held that there was no error in admitting unstipulated polygraph evidence by the trial court. In State v. Dorsey (1975), the court of appeal of New Mexico applied the requirements of Chambers v. Mississippi (1973), which are 1) whether the "statements were made under circumstances of considerable reliability" and 2) "were critical" to defendant's defense. The New Mexico Supreme Court had affirmed the court of appeal's decision and overruled their opinion in State v. Lucero (1974), ruling that "the admissibility of such evidence was within the discretion of the trial court. The inadmissibility of the evidence was only except when certain requirements (2) are met." Therefore, even in New Mexico, there are requirements to be met to be admissible for polygraph evidence to trials.

There are two rationales for requiring a stipulation. Some courts argued that the reliability and accuracy of polygraph evidence can be probative enough when the both parties agree to taking a polygraph test, e.g. State v. Valdez (1962; "Although much remains to be done to perfect the lie-detector as a means of determining credibility, it has been developed to a state in which its results are probative enough to warrant admissibility upon stipulation. ... Subject to the qualifications (3) ... polygraph and expert testimony relating thereto are admissible upon stipulation in Arizona criminal cases.") and State v. McDavitt (1972; "polygraph testing has been developed to such a point of reliability that in a criminal case when the State and defendant enter into a stipulation to have defendant submit to a polygraph test, and have the results introduced in evidence, such stipulation should be given effect. Polygraph testing has sufficient probative value to warrant admission under these circumstances."), though these rationales are not accepted by all courts (State v. Ross, 1972). The judges of these cases indicated that the reliability and accuracy of polygraph evidence itself did not change by stipulation of both parties, but its probative value could reach the level where the both parties agree. Therefore, if there was a stipulation of taking and presenting the evidence, it would have admissible probative value in the trial that the both parties are involved in.

The others considered a stipulation as a waiver to their evidentiary objection (e.g. Delap v. State, 1983; (4) State v. Abel, 1979; (5) State v. Conner, 1976 (6)). These courts also pointed out that a stipulation did not make any change with polygraph's reliability or accuracy, but the stipulation could be regarded as one party's waiver to their right to object that the evidence is not sufficient to be probative in their trial. Therefore, the stipulation can be understood in the same manner of a Miranda waiver here.

There are more specific requirements varying based on states. In People v. Harris (1989), the Supreme Court of California ruled that "absent an offer of proof that the polygraph is now accepted in the scientific community as a reliable technique, the evidence was presumptively unreliable and inadmissible." Indiana Supreme Court asked judges to analyze if the error that is caused by admitting polygraph evidence would be harmless because "the probable impact of the polygraph reference upon the verdict is of prime importance (see Austin v. State, 1974/1975; Reese v. State, 1983)." In Cullin v. State (1977), the court stated that "we do not base admissibility of polygraph results solely upon the basis of the stipulation. There should be some test of reasonable reliability before final admission by the judge, even though the parties agree." The court also required the trial court to make "foundational qualifications as an expert must demonstrate to the court a substantial reliability and acceptance of the polygraph to establish its probative value, describe the procedure followed in the particular polygraph test." Some jurisdictions (7) were concerned about the possibility of jurors' undue reliance on the polygraph evidence, so they ruled that the trial court judge should instruct the jury not to rely heavily on the evidence and were required to agree with the other party's cross-examination of the polygraph examiner. In sum, each court requires the judge to give instructions about polygraph techniques and its use in law, to analyze harmless error, (8) and to make qualifications of experts, as well as require the defendant to present a proof of the polygraph's reliability and accuracy.

Even though polygraph evidence is admitted in some circumstances, the reason why polygraph evidence is not admissible in these states generally is, as well demonstrated in State v. Webber (1996), that such evidence is considered too unreliable and that fact finding is a unique role of jury. However, these courts' opinions indicated that the stipulation of both parties refers to a waiver to the right to object the evidence's reliability and that accuracy would increase to warrant the admissibility of the evidence through the stipulation. Also some jurisdictions (e.g. Wynn v. State, 1982) believe that the jury can overcome possibilities that the evidence has undue effect on their verdict by cross-examination or the judge's limiting instruction.

Three of these 18 states limit the use of polygraph evidence in specific purposes such as corroboration, impeachment and probation revocation. The Ohio Supreme Court explicitly limits the use of polygraph evidence for corroboration and impeachment, see State v. Souel (1978). (9) Washington Supreme Court also indicated the limited use of the evidence agreeing with Arizona Supreme Court's opinion in State v. Valdez (1962), that "in such cases the lie-detector evidence is admissible to corroborate other evidence of a defendant's participation in the crime charged. If he takes the stand such evidence is admissible to corroborate or impeach his own testimony," see State v. Ross (1972). (10)

In four states, the use of polygraph evidence is limited only within posttrial proceedings so that the jury is never presented with the evidence in trial. In Michigan, the court ruled that polygraph evidence can be considered as a reason for a new trial concluding that "less formal evidentiary requirements are commonly found at the post-conviction motion, and matters such as affidavits which may not be admissible at trial may be used to assist the judge to determine whether the request for a new trial has merit. Polygraph tests permitted in this context would be merely used to buttress the credibility of new witnesses, the evidentiary value of whose testimony satisfies traditionally strict criteria for ordering a new trial. Thus, the polygraph examination would not itself be evidence, either at the post-conviction motion or at the trial itself, should one be granted. On this basis, and within carefully drawn and defined limitations, we hold that a judge may use, in his discretion, polygraph tests and testimony offered by defendant only to help determine whether to grant a post-conviction motion for a new trial (People v. Barbara, 1977)." The North Dakota Supreme Court agreed with this opinion in State v. Olmstead (1978). Also Louisiana Supreme Court stated in State v. Catanese (1979), that "although we conclude that polygraph evidence is inadmissible in criminal trials, the reasons for our decision do not prevent its introduction in post-trial proceedings, within judicial discretion and subject to guidelines such as those laid down by the trial judge in the instant case. Because the defendant's guilt or innocence is not at issue in such proceedings, there is less demand for the rigorous guarantees of accuracy which typify the rules governing introduction of evidence at trial." In the same manner, there was a case in Kansas, that allowed polygraph evidence in probation revocation hearings ruling that "the relaxed standard of proof and the fact that a probation revocation decision is a judicial decision rather than a jury decision are additional factors that strongly support a determination that polygraph test results are sufficiently reliable to be considered evidence in probation revocation hearings." (11)

As described above, in some ways, polygraph evidence is presented in trial or in a part of trial proceedings, in about one third of the U.S states. There are, of course, sophisticated requirements that should be met to give polygraph evidence to jury. However, as the rationales of the jurisdictions that admit polygraph evidence under stipulation are understandable, the legal professionals and social scientists should put in an effort to study how this evidence influences jury's decision making and how courts can adjust the impact of this evidence in the range of permission by law. To approach this ultimate purpose of related social scientific study in law, the scholars in this field should be aware of the courts' position in the area. This is because social scientists should collaborate with legal professionals to make a better legal system to reduce wrongful conviction. Therefore, this legal review on polygraph evidence may be a starting point for scientists who are working on polygraph evidence.

3. Social Scientific Evidence on the Polygraph

As described above, the reasons why polygraph results are not generally admissible as evidence into trial is such evidence is considered too unreliable to be admitted (e.g. Morgan v. Commonwealth, 1991 (12)) and it infringes upon jurors' unique roles as triers of facts (e.g. in United States v. Alexander (1975), "When polygraph evidence is offered in evidence at trial, it is likely to be shrouded with an aura of near infallibility, akin to the ancient oracle of Delphi."). Most courts that adopt the first reason do not admit polygraph evidence for any reason since such evidence does not meet the "general acceptance" rule of the Frye test in the related field. Scientific evidence of polygraph techniques' validity is so polarized that there is no sufficient evidence to support a specific declaration of whether polygraph technique can reliably detect lie or not. Therefore, the courts regard the polygraph technique as a test that is not generally accepted in physiological psychology field. As any test with less than 100% accuracy, where is the appropriate line that a type of scientific evidence's validity has to meet is absolutely a matter of law which should be determined by a judge's discretion on the basis of the related law. Social scientists can only offer information which would help judges to make more reasonable decisions.

Although the validity of the polygraph technique is in question, the supreme courts of some states allow polygraph evidence into trial when certain requirements are met. However, they are still concerned about the possibility that the result of the polygraph test usurps the jury's unique province of the fact finding. The judges in these jurisdictions maintain that a defendant's credibility has to be determined by the jury based on substantial evidence (e.g. People v. Zuniga, 1973 (13)). Since a result of a lie detection technique can unduly affect jurors' decisions of the defendant's credibility as it can be considered an index of whether a defendant tells a lie or the truth, the judges argue that it would infringe upon jurors' role of fact finding. Social scientific research deals with this issue more directly by conducting studies that examine if there is undue effect of polygraph evidence on jurors' decision making.

In this section, social scientific evidence that is related with these two issues will be summarized based on key research. There is a lot of research on the validity of polygraph techniques, with a small number of studies dealing with the undue effect of polygraph evidence. First, scientific research on polygraph techniques will be summarized briefly, with a particular focus on the validity of the technique. Second, the research examining the effect of polygraph evidence on jury decision making will be presented.

The Validity of Polygraph

A number of studies examining the validity of a variety of lie detection techniques have been conducted. Lie detection techniques have been established based on both non-behavioral and behavioral responses. Non-behavioral response-based techniques examine unconscious reactions such as heart rate, respiration, skin conductance, brain activity (electroencephalogram; EEG or event-related potential; ERP), and temperature of body or face. On the other hand, behavioral response-based techniques investigate verbal or non-verbal responses such as speed or fluency of speech, eye contact, gaze aversion, and so on. In this section, we will only focus on the techniques using nonbehavioral physiological reactions that are measured by the polygraph. There are two major polygraph techniques based on physiological responses, which require the examinee to answer certain type of questions about the crime at hand. One is the comparison question test (CQT) and the other is the guilty knowledge test (GKT), also known as the concealed information test (CIT). The CQT is used in several countries, such as the U.S, Canada, and Israel (Ben-Shakhar & Elaad, 2003), and the GKT is used only in Japan (Fukumoto, 1980; Nakayama, 2002; Yamamura & Miyata, 1990).

Comparison Question Test

CQT is one of the popular techniques for deception detection. The procedure of the CQT consists of two stages, the pre-test stage and the actual test stage. During the pre-test stage, the examiner learns about the facts of the case, interviews the suspect, and develops the questions that will be used in actual test stage. The suspect can learn what questions will be asked and can have an opportunity to talk about her/his story to the examiner. The actual test starts with attaching the polygraph to the suspect. The examiner administers a simple test (e.g., card test) to show that polygraph can successfully detect lies from the suspect. While a series of questions formulated in the pre-test stage are asked, the suspect has to answer "yes" or "no." Three types of questions are included in CQT; relevant questions, irrelevant questions, and comparison questions. Relevant questions deal with the facts of the crime under investigation (e.g., did you break into the Mr. Smith's shop on 14th February?) and irrelevant questions are about neutral issues (e.g., were you born in New York City?). Comparison questions are the core of the CQT and are about general, non-specific misconducted action of which nature is similar with the case at hand (e.g., have you ever stolen something from others?). The basic rationale of the CQT assumes that a physiological response to relevant questions would be more evoked than comparison questions in a deceptive suspect, while a truthful suspect would show a stronger response to comparison questions than relevant questions. This rationale is based on the assumption that a guilty person lies both to the relevant and the comparison questions, while an innocent person lies only to the comparison question (National Research Council, 2003). If the former pattern would be presented continuously, the decision for the suspect would be "lie" and if the latter pattern would be presented, it would be "truth." None of these patterns or mixed patterns would lead the interpreter to decide "inconclusive" (see for details, Raskin, 1989; Reid & Inbau, 1977; Saxe, Dougherty & Cross, 1983).

There are two ways of investigating the validity of the CQT: the experimental method and the field approach. In experimental studies, researchers generally use mock crime paradigms. As researchers can assign participants to either guilty or innocent conditions, the most important advantage of experimental study is that the ground truth is clearly known. However, experimental research may have limited external validity because the experimental condition is not the same as the real polygraph test situation, which means that the result from an experimental study is hard to be generalized. Field studies are based on real cases which include a polygraph test. As the polygraph test is administered by a real examiner and the examinee is a real suspect in a field study, it is possible to confirm whether the assumptions of the CQT are satisfied in real examination situation, but it is not possible to know the ground truth, which is the most frequent critique.

Saxe, Dougherty, and Cross (1985) summarized studies about the validity of the CQT with both experimental and field studies. Ten of the available field studies were included in their analysis because only 10 studies met the standards provided by OTA (Office of Technology Assessment) review (U.S. Congress, 1983). In accordance with their summary, the percentages of correct guilty decisions varied from 70.6% to 98.6%, while the percentages of correct innocent decisions ranged from 12.5% to 94.0%. False negatives and false positives were variable, ranging from zero to 29.0% and 75.0%, respectively. Inconclusive decisions varied from zero to 25.0%. With these results, they concluded that the CQT could detect deception with better than chance level, but false negatives and false positives rates were a high in some cases. Table 1 presents the results of the original studies that were provided in Saxe et al. (1985).

They also summarized the results of 12 available experimental studies using the CQT. In the analysis, the percentages of correct guilty decisions varied from 35.4% to 100.0% and the percentages of correct innocent decisions ranged from 31.6% to 91.0%. False negative rates varied from zero to 28.7%, while false positive rates ranged from 2.0% to 50.7%. Table 2 presents the results of the original studies included in Saxe et al. (1985). Through these 12 experimental studies, they identified several factors that influenced the variety of correct decision rates. Those factors are the examiner, the subjects, the setting, and countermeasures, which are also underlying factors for critiques. For example, lack of objectiveness or inadequate standardization are among the core critiques that comes from an examiner's subjective assessment of charts or formulating questions, and vulnerability to countermeasures is considered as another disadvantage of the CQT.

According to Ben-Shakhar (2002), there are five major sources of criticism related to the CQT: 1) lack of theoretical basis, 2) insufficient standardization, 3) non-objective scoring system, 4) contamination problems, and 5) countermeasure problems. Although a theory is the most essential thing for the validation of a test, physiological changes and deception are not linked to a specific theory. Moreover, the CQT has been criticized for having no "lie response" even by the CQT proponents. With regard to standardization, a test has to be administered according to a standardized procedure with standardized materials. However, the CQT has so many subjective factors related to the examiner and his selecting of questions, which can affect the result of the test. In addition, the scoring system is also very subjective because it is based on comparing the "relative strength" of responses to questions. Ben-Shakher (2002) pointed out that the CQT procedure can be easily influenced by the examiner's biases (e.g., confirmation bias), which is called contamination. Many researchers have also shown that guilty participants could pass the CQT (e.g., Ben-Shakhar & Dolev, 1996; Elaad & Ben-Shakhar, 1991; Honts, Devitt, Winbush, & Kircher, 1996; Honts, Raskin, & Kircher, 1987, 1994; Kubis, 1962).

The CQT is widely used in the U.S and Israel where polygraph evidence is not generally admissible to courts (Ben-Shakhar, Bar-Hillel, & Kremnitzer, 2002). The primary reason for the inadmissibility of polygraph evidence is that the technique used to detect deception does not meet the Daubert criteria for admissibility of scientific evidence. However, in the academic field of deception detection, the studies dealing with the CQT have dwindled since the gap between the opinions of proponents and opponents have not narrowed. It seems clear that the CQT has unfixable weaknesses to be admissible as evidence in trial and even the proponents of polygraph agree that there is "no known physiological response that is unique to deception" (Saxe et al., 1983, p. 11). With regard to this problem, Saxe and Ben-Shakhar (1999) asserted that social scientists and courts had to cooperate to reduce the difference between the viewpoints to assess the validity of such evidence.

Guilty Knowledge Test/Concealed Information Test

The GKT (Lykken, 1959)/CIT (Verschuere, BenShakhar, & Meijer, 2011) consists of a series of multiple-choice questions which has one right alternative that only the real criminal would recognize as it is related to the crime at hand, but the innocent suspect would not, along with several control alternatives. The GKT/CIT is based on the physiological orienting response (OR) to an already known or significant item. Research has supported this theory by showing that a significant item causes greater ORs (e.g., Sokolov, 1963; Gati & Ben-Shakhar, 1990; Siddle, 1991). If one's physiological response to the crime-related item is consistently larger than other items, the person is regarded to have knowledge about the crime. Therefore, it is possible to infer s/he is related to the crime that is being dealt with. In contrast, the innocent suspect's physiological response would be no different according to items in the alternatives. Like the CQT, there is no exact "lie response" in the GKT/ CIT either. Thus a guilty decision from the GKT/CIT only indicates that the suspect has information related with the crime. However, this technique is considered as relying on a more solid scientific basis than the CQT.

The GKT/CIT can be administered with a variety of types of measures such as autonomous nervous responses and brain activities. MacLaren (2001) analyzed 50 experimental conditions included in 22 studies estimating the validity of the GKT with electrodermal measures. The main result of the study was that the overall sensitivity (accuracy) of the GKT from 50 conditions was 76%, which is significantly different from the base rate of 20%. Ben-Shakhar and Elaad (2003) also conducted a meta-analysis on the studies examining the validity of the GKT using the electrodermal measures. The research included 80 laboratory studies and analyzed 169 conditions from those studies. The researchers categorized these studies according to the paradigm that the original researchers used. In accordance with their analysis, the GKT's correct detection rate (CDR) ranged from 0.125 to 1 for the card-test paradigm. For the peak of tension (POT) paradigm, the CDR was varied from 0.398 to 0.8 and for the code-stimuli paradigm, the CDR was in between 0.274 and 0.85. The CDR for the guilty participants in the studies using the code-words paradigm was in the range of 0.533-0.793 and for the innocent participants was in the range of 0.727-1. The CDR in the studies using the personal-items paradigm varied from 0.34 to 1. The studies that used the personal-items paradigm with both guilty and innocent participants showed the CDR ranging from 0.5 to 0.792 for the guilty participants and from 0.833 to 1 for the innocent participants. The CDR of the mock crime studies was in the rage of 0.35-0.9. For the studies using the mock-crime paradigm with guilty and innocent participants, the CDR was varied from 0.25 to 1 for the guilty participants and from 0.4 to 1 for the innocent participants. They concluded that the results of these studies suggested that the GKT using electrodermal measure can be an efficient tool for detecting possession of information about the crime at hand. Additionally, they emphasized that the GKT has a stronger scientific basis than the CQT and proposed to use the GKT as a standard investigative tool in criminal investigation. They also mentioned the possibility of the GKT's being admissible as evidence in criminal courts (see Ben-Shakhar et al., 2002). The ranges of CDRs for each paradigm are shown in Table 3.

Although the GKT/CIT has a firm theoretical foundation, it also has its weaknesses. As the GKT/CIT has to include at least one critical item which was in the crime, the usage of GKT/CIT can be limited in developing alternatives for the questions when critical items are absent or leaked. Several studies investigated the impact of the leakage of the critical information to the innocent suspect on the accuracy of the GKT/CIT. There seems to be no consensus on this topic yet. Some of the studies showed that the effect of leakage of critical items was not significant and the GKT/CIT could still discriminate guilty and innocent suspect (Bradley & Warfield, 1984; Bradley & Rettinger, 1992; Bradley, MacLaren, & Carle, 1996; see Bradley, Barefoot, & Arsenault., 2011, for a recent review of the leakage literature). However, some recent studies indicated the possibility that the innocent suspects who were exposed to crime-related items showed the same pattern of responses as the guilty suspects when the examination was conducted right after the exposure. This result is very important because it implies that the false positive rate of the GKT/CIT could be increased by disclosure of a critical item. Accordingly, modified versions of the GKT/CIT were developed to decrease this possible negative effect of exposure to the critical items on innocent suspect's response. Bradley and Warfield (1984) suggested the guilty action test (GAT), which contained an action rather than knowledge (items) in the same logic and procedure with the GKT/CIT. Ben-Shakhar, Gronau, and Elaad (1999) proposed to include target items that require participants designated response (e.g., "yes" response whenever the target item is presented) in the list of the alternatives.

There is another reason for the limited application of the GKT, which is that the criminal may forget the details of a crime due to emotional stress, confusion, inattention or intoxication during the crime (Kircher & Raskin, 1992). This can cause an incorrect decision that the real criminal who does not have memory about the details of a crime is considered telling the truth, which called false negative. However, studies showed that memories of important information were enhanced under stress (Heuer & Reisberg, 1990) and memory related with strong emotion was maintained for a long time (Christianson, 1992). In addition, with regard to the GKT/CIT, not enough field studies exists compared to those of the CQT. Ben-Shakhar (2012) demonstrated this problem mentioning that only two available field studies (Elaad, 1990; Elaad, Ginton, & Jungman, 1992) were published. There is also a countermeasure problem which is raised from the possibility that suspects might be able to manipulate their own physiological response.

Scientific evidence for the GKT/CIT showed more consistent results throughout a series of research. Like the CQT, of course, this technique has several flaws that give some room for debates between social scientists and courts concerning about the admissibility of the technique. However, there is a recent article analyzing the legal admissibility of the GKT/CIT by scrutinizing whether the scientific evidence of the technique meets all the criteria required in Daubert. In the article, Ben-Shakhar et al. (2002) suggested that there needs to be a second look at the lie-detection technique, as the GKT/ CIT has a sound theoretical foundation, low false positive and negative rates, and has no polarized arguments about its validity in the related field. In the manner that their effortful summary and analysis represent the standpoint of the academic field of lie-detection techniques, courts need to reanalyze the reliability and validity of this particular technique, because there is a possibility that one of both parties of a case wants to present the result of the GKT/CIT in the trial.

The Effect of Polygraph Evidence on Jury Decision Making

There are not many studies on the effect of polygraph evidence on jury decision making. Moreover, the early studies were conducted by professors in law schools (e.g. Koffler, 1957; Carlson, Pasano, & Jannuzzo, 1977), not social scientists, so those have limitations in methodology. Twenty two materials were found including books by searching with key words "polygraph" and "jury" through the psycINFO. Nine of them were published in peer reviewed journals and one of them was a dissertation. By changing the key word "jury" into "juror," two more peer reviewed article and one different dissertation were found. Therefore, 13 related studies were found through the psycINFO. Eight of them were experimental and the rest of them (Inbau, 1935; Stephens, 1981; Saks & Wissler, 1984; Brekke, Enko, Clavet, & Seelau, 1991; Slovenko, 2005) were not. Inbau (1935), Stephens (1981), and Slovenko (2005) were not experimental research, Saks and Wissler (1984) was a survey study about expert testimony's impact (measuring the expert's honesty, competence, or prospective jurors' level of agree with them), and Brekke et al. (1991) examined the effect of the type of expert testimony (nonadversarial v. adversarial) on jury's decision. Although they used polygraph expert testimony and measured juries' verdicts, they did not report anything about the effect of polygraph expert testimony on the juries' judgments. Thus these five studies were excluded in the present review. Additionally, three more studies (including one master's thesis) were identified by reviewing 13 studies introduced above. Therefore, a total of 11 studies were synthesized to demonstrate the general effect of the polygraph test on jury decision making. All of these 11 studies investigated whether jurors accepted polygraph evidence thoughtlessly when they were presented such evidence in trial, using slightly different experimental designs and independent variables, at different times. However, the most important aim of each study was to present scientific evidence of the relationship between polygraph evidence and jury's final decision to legal professionals.

Koffler (1957) used three hypothetical cases to investigate how jurors deal with polygraph evidence indicating that the accused was telling a lie with varied degree of accuracy of the polygraph test. The three hypothetical cases are identical to the basic case which did not include polygraph evidence. The other two cases included testimony indicating that the defendant lied when he was administered the test, but the accuracy rates of the polygraph test given from the testimony were different. Third year-law school students replied to questions about the verdict of the case, and the results suggested not only that the verdict shifted by presence of the polygraph evidence, but also that this effect was greater with higher accuracy of the test. Although the author indicated there needs a considerable second look in the problem of admission of polygraph evidence in the light of the analysis in the study, this study had a lot of flaws in its methodology. The limitations were; 1) their participants were law school students who were excluded from juror pool, 2) their experiment did not include the deliberation procedure and the judge's instructions, which are essential parts of jury trial, and 3) the participants read the same case three times and then rendered their verdicts for each of them, which only differ in the accuracy of the polygraph evidence from each other.

Carlson et al. (1977) conducted a study examining whether jurors would be affected by polygraph evidence alone. To explore this, they made participants take on the role of jurors in a moot trial and gave them a questionnaire concerning about polygraph expert's testimony. The participants were asked to send back the answered questionnaire as soon as possible. In the questionnaire, the researchers required participants to imagine that there was one more witness who testified to the result of the polygraph test of the defendant and were questioned about the significance of polygraph evidence, the verdict they gave in the moot trial, and if they would change their vote given the testimony of the additional polygraph expert. The accuracies of polygraph tests introduced in the questionnaire were 70% for one group and 95% for the other. Only 19.3% of the participants who returned the questionnaire to the researchers responded that they would change their votes based on the polygraph expert's testimony. About 66% of them were the participants given the polygraph test's accuracy of 95%. They concluded that jurors would not be affected by polygraph testimony. However, the researchers reported a limitation of the method: the participants had never seen the expert testifying to the test result.

There was a Master's thesis on this topic in Canada. Markwart and Lynch (1979) defined "undue" effect of polygraph evidence and examined whether the effect of polygraph evidence on jury decision making was undue or not. They decided that the "undue" effect occurred 1) when the participants changed their verdicts only depending on the polygraph evidence and 2) when the participants excessively discussed about the polygraph evidence in deliberation. They investigated whether polygraph evidence has an undue effect on jury decision making based on various definitions of "undue" effect. They manipulated four experimental groups (control, unfavorable polygraph, favorable polygraph, and unfavorable character witness) in which four 12person juries were randomly assigned. The participants were asked to respond to the questionnaire on personal characteristics and to watch the videotaped preliminary statements of judge. The written summary and audio recording of the facts were given to jury eligible participants, and it was followed by the videotaped charge to the jury. After watching the video, the participants completed the pre-deliberation questionnaire, deliberated toward unanimity, and then responded to the post-deliberation questionnaire. They found that while jurors reported a skeptical view of polygraph evidence in general, the jury's verdict showed a different viewpoint. There was a difference in the impacts of favorable and unfavorable polygraph evidence on jury's decision. Specifically, favorable polygraph evidence did not have an impact on jury decision, but unfavorable polygraph evidence had a significant impact on jury decision. Nevertheless, ironically, they interpreted this result as there was "no support at all for this argument (that polygraph evidence will be considered as infallible, so jurors will be usurped by this evidence)--parenthesis added." In fact, the result of the study showed, at least, that jurors could be strongly affected by defendant-unfavorable polygraph evidence, although not by defendant-favorable polygraph evidence, even when they expressed their own perspective of polygraph evidence as skeptical.

Cavoukian and Heslegrave (1980) conducted two experiments to examine: 1) whether polygraph evidence has an effect on individual verdicts, 2) whether jurors accept polygraph evidence thoughtlessly and place undue weight on polygraph evidence, and 3) whether a judge's caution explaining the accuracy of polygraph tests has an effect. In the first experiment, they used three conditions for their three goals. These three conditions commonly consist of a summary of the evidence and the judge's instructions about the law related to the case at hand as well as the polygraph evidence saying the accused was innocent only in the polygraph condition. The judge's caution condition was the same with the polygraph condition except for consisting of the judge's cautionary statements saying that the accuracy of polygraph tests was 80% and jurors should keep this in mind and be careful with considering evidence. The dependent variables in the first experiment were the likelihood that the defendant was guilty (7-point likert scale) and participants' verdicts (dichotomous). There were effects of polygraph evidence and judge's caution on the perceived guiltiness of the defendant and the verdict. The results suggested that there was the possibility of verdict change by polygraph evidence. However, the results also showed that the effect of polygraph evidence could be adjusted by the judge's cautionary statement during his instruction phase. The aim of the second experiment was to confirm the consistency of the results of the first experiment. Additionally, they included two more conditions which they called the expert's caution condition and the alternative evidence condition. For the expert's caution condition, they changed the judge's caution of the expert testimony to increase the ecological validity and the additional evidence condition included another piece of evidence supporting the accused, which aimed to test whether polygraph evidence has an undue effect on the perceived guiltiness when compared to the effects of other evidence. The dependent measures used in the second experiment were the likelihood that the accused was guilty (9-point likert scale), participants' verdicts (dichotomous), confidence of the verdict (9-point likert scale), and three general questions (familiarity with polygraphs, their estimation of the accuracy of polygraphs, and relative accuracy with other evidence; all 9-point likert scale). The authors demonstrated that the results indicated that 1) jurors' perceived guiltiness of the accused could be affected by polygraph evidence, 2) the expert's caution could reduce this effect, and 3) polygraph tests would not be blindly accepted by jurors. Based on these results, the authors described the possibility that such evidence raises a reasonable doubt for the defendant's guilt.

Spanos, Myers, DuBreuil, and Pawlak (1992) investigated the difference of the effect of the type of evidence on perspective juror's verdict. They used a 2 x 2 factorial design, which manipulated the presence or absence of eyewitness and polygraph evidence. The participants were presented with an audiotaped murder trial and videotaped examination and cross-examination of the eyewitness and the polygraph expert was followed in accordance with the experimental condition that participants were randomly assigned. After the videotaped judge's charge, participants were asked to denote their predeliberation verdicts and then to deliberate during 90 minutes to a unanimous verdict. At the end of the deliberation, the prospective jurors rendered final verdicts. They found a main effect of eyewitness evidence, but there was no main effect of polygraph evidence on final verdict. Therefore they concluded that their findings did not support the prevalent belief that jurors would be overwhelmed by polygraph evidence as such evidence was mindlessly regarded as evidence from an advanced scientific technique.

Myers and Arbuthnot (1997) tested the influence of the result of the CQT and the GKT on the mock jurors' verdict so as to distinguish the effects of these two types of polygraph test on jurors' verdict. They compared mock jurors' verdicts that were made at pre and post deliberation of each three experimental groups ("no-polygraph," "CQT," and "GKT") and between groups. However, they could not find any effect of polygraph evidence on mock jurors' verdicts in all types of polygraph test. The results showed that neither juries nor jurors were affected by polygraph testimony no matter what the test type was. Therefore, they concluded that the influence of polygraph evidence would be negligible and the disbelief of polygraph evidence might be based on the disbelief of lie-detection in general. Also they suggested that polygraph testimony itself did not the significantly affect jurors' ratings of evidence strength.

Myers, Rosol, and Boelter (2003) examined when jurors consider polygraph testimony as more significant in the case of being presented alone or with corroborating evidence. They developed a sexual assault scenario and added parts of the expert testimony of the polygrapher in the case of U.S v. Gilliard (1996). Prospective jurors were given one of the four mock trial transcripts that were varied with presence/absence of polygraph and corroborating evidence in the factorial design and then answered the post-trial questionnaire, after reading the transcript. In the post-trial questionnaire, participants rendered their verdicts (on a dichotomous scale) and the confidence of the verdicts on 9-point likert scale. They also rated the probability of guilt, the accuracy of polygraph tests, and the weight on each testimony. The researchers found that presentation of polygraph evidence did not affect jurors' verdict, as 65% of the participants who had been heard the testimony from the polygrapher voted guilty and very similarly, 61 % of the participants who had been heard nothing about polygraph evidence rendered guilty verdicts. Moreover, the potential jurors reported that the influence of polygraph evidence was only moderate, while the medical expert's testimony was rated highly influential by them. Even though the results of the study showed jurors may not be persuaded by polygraph evidence mindlessly, they indicated that this did not mean such evidence should be admissible in court. Rather, they emphasized the reliability of the technique was a very important issue that should be dealt with for the admissibility of polygraph evidence.

Myers, Latter and Abdollahi-Arena (2006) examined whether the guilt judgments of jury-eligible adults were affected by polygraph results indicating that the accused passed the polygraph test or not and assessed the public opinion about polygraph tests in general. They used three versions of short (one-page) vignettes describing a second-degree sexual assault case. Only two versions of the vignettes included the testimony of a polygrapher with one testifying to the accused passing the test, the other testifying to the accused failing the test. They measured potential juror's verdict (dichotomous), the probability that the defendant committed the crime (0-100%), and attitudes of polygraph tests. The findings of the study were summarized as such that there was no difference between the three experimental groups in participants' verdicts or the probability of commission, which the authors interpreted as the jurors may be skeptical toward polygraph evidence whatever the result indicated. They asserted that there was little evidence showing jurors may be thoughtlessly accepting polygraph evidence, so that the legal opinion about how they would consider such evidence should be revised. However, they still emphasized that this did not mean the admissibility of polygraph test should be reconsidered since these results showed little about the main issues in the admissibility of such evidence.

Lake (2007) conducted a study investigating the influence of polygraph evidence and of the jurors' characters on prospective jurors' decisions with adjustments of the methodological issues found in previous research. The author manipulated three variables, apparent guilt (3: low, medium, high), test result (2: passed, failed), and expert opinion (3: pro-polygraph only, adversarial experts, anti-polygraph only), with a 3 x 2 x 3 factorial design. The results of the study showed that the failed test result predicted to greater guilty verdicts, so it was interpreted that polygraph test results could affect verdicts and guilty ratings. However, there was not clear evidence showing this effect as prejudicial. Moreover, expert testimony had no effect on any dependent variables. The implication of the study is very important since the findings raise doubts about the tendency of the recent studies indicating no undue effect of polygraph evidence.

McCabe, Castel and Rhodes (2011) compared the impact of several types of polygraph tests on potential jurors' guilt judgments. Four experimental groups were used to test if fMRI lie detection evidence would have more influence on juror's decisions than other lie detection techniques (polygraph and thermal imaging). Two more groups were also added to examine if those imaging technique's effect could be adjusted by cross-examination. The participants were required to read one of six vignettes and then respond to two questions asking their verdicts and their select of the most influential piece of evidence. The results indicated that fMRI evidence had a larger effect on participants' verdicts. However, the effect was reduced to a similar level in the control group when the validity of the technique was questioned.

Table 4 shows the conviction rates of the conditions in the studies mentioned above. Carlson et al. (1977) and Spanos et al. (1992) did not report exact conviction rates for each condition included in their study and their analyses were based on the vote change and the scores from the questions respectively, so the results of these studies were not presented in Table 4. Based on the percentage of the conviction rates in each varied condition, three conclusions can be drawn: 1) the results of the studies are contradictory, 2) the influence of polygraph evidence can be reduced by the judge/expert's caution and jury deliberation, and 3) the effect of polygraph evidence can be different depending on whether the results indicate that the defendant is telling the truth or a lie.

Although Koffler (1957) has been criticized because of the flaws in his methodology, he showed that polygraph results had a huge impact on deciding defendant's guilt, as the conviction rate increased from zero to 40% when the accuracy of the test was 85% and from 40% to 85% when the accuracy of the test was 99.5%. In both Lake (2007) and Markwart & Lynch (1979), there was not a big difference in the final conviction rate between the nopolygraph condition and the pro-defendant polygraph condition (54% v. 51% and 28% v. 35%, respectively). However, in the both studies, the anti-defendant polygraph results led to higher conviction rates (all 60%) than any other types of evidence did. In contrast, Myers and Arbuthnot (1997) showed that the conviction rates were not very different between three conditions, 51% for no-polygraph condition, 60% for CQT condition, and 58% for GKT conditions. Moreover, in McCabe et al. (2011), the conviction rate for the control condition (55%) was a little higher than the one for the polygraph condition (45%), even though the test results indicated that the defendant had lied. This suggests that there needs to be more research on this topic, as the results are still very conflicting.

All of these studies show that potential jurors are more or less influenced by polygraph evidence. The problem is whether the impact of polygraph evidence is justifiable or not. There are several studies showing that prospective jurors are influenced by polygraph evidence, but the impact of such evidence can be adjusted by safe guards, such as judge or expert's caution, alternative evidence, and deliberation procedure (Markwart & Lynch, 1979; Cavoukian & Heslegrave, 1980; Myers & Arbuthnot, 1997). In Markwart & Lynch (1979), the conviction rate decreased until 35% from 40% after deliberation when the polygraph evidence was favorable to the defendant. Myers and Arbuthnot (1997) compared the impact of polygraph results of the CQT to the GKT on jury decision. The conviction rates were reduced from 60% to 28% when the prospective jurors heard the polygraph result of the CQT and from 58% to 32% when they heard the results of the GKT. Cavoukian and Heslegrave (1980) showed that a judge's caution increased the conviction rate from 28% to 40%. This also shows that a judge's caution saying that the polygraph is fallible can play the role of a safe guard reducing the influence of polygraph evidence on potential jurors, as the researchers used the polygraph result indicating that the defendant told the truth in the study. An expert's caution and alternative evidence had similar effects increasing the conviction rates from 10% to above 24% (specifically, 28% for the expert's caution and 24% for the alternative evidence). In the same manner, it can be expected that judge's instructions may work properly with such evidence. According to these results, it can be inferred that jurors consider polygraph evidence thoughtfully, as their first decision could be changed by taking an opportunity of reconsideration, when prompted by a third party.

A third group of studies has demonstrated that whether the result of polygraph test indicates "true" or "lie" is an important factor influencing jury's decision making. Markwart and Lynch (1979) showed not only that the impact of unfavorable polygraph evidence had a more harmful effect on jury judgment than those of favorable polygraph evidence (60% v. 40%), but also that this impact was not adjusted by deliberation (both 60% of convict rates in predeliberation and postdeliberation verdict). Lake (2007) also found that failed results had a larger effect on the conviction rate change than passed results had (3% v. 16%). These results implied that it could be very harmful for defendants if failed polygraph results were admitted as evidence into courts. On the other side, Myers et al. (2006) reported a positive effect of polygraph evidence. In their study, passed polygraph result reduced the conviction rate from 70% to 59%, while failed polygraph result increased only 2% of the conviction rate. In legal situation where the type 1 error considers more important, this result suggested that it is possible to use such evidence in more helpful way.

Even though there is not enough research about the effect of polygraph evidence on jury decision making, the results offer significant implications. First, it might be too early to say that polygraph evidence would have an undue effect on jury's decision making process, because, as we can see above, there is no consistent evidence supporting this concern. Second, some research suggests the possibility that the impact of polygraph evidence can be adjusted, if there is any negative impact. Third, the influence of polygraph results is varied with what the result indicates. Therefore researchers and law professionals should be open-minded when deciding the applicability of these results and should also be thinking of how to develop and conduct more cooperative research.

4. Suggestions for Future Studies

The aims of this review were to summarize the legal positions that each state in the U.S has persisted in the social scientific evidence related to the polygraph technique, and to provide directions for future studies on the polygraph and its use in trial. Since social scientists and law professionals have to collaborate, social scientists should know what the legal position of a topic is and law professionals should also know what the result of scientific research means. In the current review, the status of polygraph evidence in each state in the U.S was described first to assist social scientists to be aware of the rationale that is the basis of the decision to not admit such evidence. From the review of related cases, the validity of polygraph techniques and their possible undue effect on jury decision making were identified as the main problems. These are in the area where a psychologist, especially physiological and social psychologists, should be involved in and they have an important role to advise judges, lawyers, and jurors about the research in this area. Therefore, two groups of related research were synthesized in this review to draw out meaningful implications from the studies.

The most crucial and frequently mentioned reason for inadmissibility of polygraph evidence in trial is the validity of the technique to detect deception. General acceptance in the related field may be the subsequent matter to the validity issue, as general acceptance would be naturally gained if the validity of the techniques were high enough to be reliable. Therefore, two types of essential studies can be recommended. Studies on the validity of deception detection techniques, including not only CQT but also GKT/CIT, should be more conducted. Even though there have already been a number of studies on this topic, the practical usage of deception detection technique in courts is still in controversy. Thus, it is necessary that the validity of deception detection techniques are examined through more elaborated research design, so that it can give aid to legal decision makers. The first thing to do for polygraph experts is to improve the sensitivity and reliability of techniques for lie-detection. Although the CQT has been used in almost all cases, the possibility that any other detection deception techniques would be used for defense always has to be open. Moreover, as mentioned above, there is a group of researchers (e.g., Ben-Shakhar, Elaad, Bar-Hillel, Kremnitzer etc.) who claim that another polygraph technique, namely the GKT/CIT, could meet Daubert criteria so that the technique would be more likely to be admitted in trial. Since there are no cases using the GKT/CIT in the Western world so far, it is possible that courts can make a guideline dealing with the use of the GKT/CIT in trial without any harmful decisions, before they are confronted with an unprecedented case using the GKT/CIT. As the GKT/CIT is generally used in criminal courts in Japan (Hira & Furumitsu, 2002; Nakayama, 2002; Osugi, 2011), there needs to give a careful consideration to the possibility that the results of the GKT/CIT can be admissible in trial in the U.S. However, as pointed out in Ben-Shakhar (2012), there is not enough field research on the GKT/CIT. To provide informative and helpful social scientific evidence to law professionals, researchers need to summarize and draw meaningful inferences through a significant amount of research about the GKT/CIT.

It could be a worthy study to investigate experts' perceptions of the GKT/ CIT in the lie detection area, because general acceptance is also a very important factor for determining the admissibility of such evidence. Of course, there has been a lot of effort to improve the validity of the CQT, which is the polygraph technique most widely used in courts in the U.S. However, the debates surrounding the validity of the technique have continued to so long without narrowing the distance between the opposite parties. In this situation, it might be a better to take a second look at another technique, rather than underestimating the value of whole physiological-based deception detection techniques because of one technique is generally not admissible in trial. In addition, the GKT/CIT has been known as having a sounder theoretical ground, while the CQT has been criticized for having no theoretical basis. We may be able to expect a greater availability of development with the GKT/CIT than the CQT.

Almost half of the states in the U.S require a stipulation between both parties to address the polygraph evidence into trial. Although polygraph evidence has not been allowed to be introduced to the jury without stipulation or a judge's instructions, there is no empirical study investigating the effect of the polygraph evidence on jury decision making that includes the stipulation. Ten studies introduced in the second section explored whether jurors overly weigh polygraph evidence so that they render a biased verdict. However, most of those show that polygraph evidence has no unduly prejudicial effect as the courts are concerned regardless of the realistic situation requiring the stipulation between both parties. Empirical data should be taken from generalizable experimental settings to be practical and the interpretation of the data should be unbiased by the judge's or lawyer's prejudice in order to be informative to the academic field. As polygraph evidence is always provided with stipulation information to both parties in the reality, the empirical studies should include this information to improve the generalizability of the study.

The research on how jurors perceive the stipulation information and how their perceptions affect their decision making is also necessary to assist the judge's decision about the admissibility of polygraph evidence by giving judges jurors' general thoughts of the stipulation. Courts require the stipulation because they consider it as a waiver of their right to evidentiary objection. Meanwhile, it is possible that jurors regard the stipulation information as another index indicating that the defendant is telling the truth about the crime at hand because jurors may think that there is no reason for a polygraph test if the defendant is lying. This is definitely different from what the law wants jurors to think of the stipulation. If this really happens, then polygraph evidence would have an undue and biased effect from the stipulation information on verdict decisions. Therefore, legal professionals need to understand jurors' perceptions of the stipulation for taking the polygraph test, so that they can consider making better safe guards for a fair trial.

Eyewitness identification evidence, like polygraph evidence, has the probability to be wrong, so it is required for the jury to be informed about the scientific evidence on eyewitness' identification, through an expert testimony or judge's instructions. Even though the reason why polygraph evidence is not admissible in trial is not directly connected with the probability that polygraph test would be wrong, in terms that these types of evidence are both needed to be addressed to jurors by judge or expert to be used in a trial as evidence, the study making comparison between the validity of these two types of evidence, and investigating the lay people's perceptions of these two types of evidence will be helpful for legal professionals and psychologists to find the way to protect defendants from the wrongful convictions that caused by misapplication of these kinds of evidence.

As described through this article, polygraph evidence is generally not admissible in trial. However, more research is needed to better inform the field on the use of evidence in the judicial process. To achieve this goal, legal professionals and social scientists have to collaborate to keep pace with changing in decisions of legal cases and recent results of scientific studies in order to improve the symbiotic relationship between law and psychology.

YUHWA HAN

Yuhwahan82@gmail.com

Department of Psychology, Chungbuk National University

Received 6 November 2015 * Received in revised form 10 December 2015

Accepted 11 December 2015 * Available online 15 February 2016

NOTES

(1.) Ala., Ariz., Ark., Cal., Del., Fla., Ga., Idaho, Ind., Iowa, Nev., N.M., N.J., Ohio, S.D., Utah, Wash., Wyo.

(2.) The tests were stipulated to by both parties to the case; 2. When no objection is offered at trial; 3. When the court has evidence of the qualifications of the polygraph operator to establish his expertise; 4. Testimony to establish the reliability of the testing procedure employed as approved by the authorities in the field; and 5. The validity of the tests made on the subject.

(3.) (1) That the county attorney, defendant and his counsel all sign a stipulation providing for defendant's submission to the test and for the subsequent admission at trial of the graphs and the examiner's opinion thereon on behalf of either defendant or the state. (2) That notwithstanding the stipulation the admissibility of the test results is subject to the discretion of the trial judge, i.e., if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence. (3) That if the graphs and examiner's opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting: a) the examiner's qualifications and training; b) the conditions under which the test was administered; c) the limitations of and possibilities for error in the technique of polygraphic interrogation; and d) at the discretion of the trial judge, any other matter deemed pertinent to the inquiry. (4) That if such evidence is admitted the trial judge should instruct the jury that the examiner's testimony does not tend to prove or disprove any element of the crime with which a defendant is charged but at most tends only to indicate that at the time of the examination defendant was not telling the truth.

(4.) "The Florida rule of inadmissibility reflects state judgment that polygraph evidence is too unreliable or too capable of misinterpretation to be admitted at trial. However, the court does recognize that the parties may waive their evidentiary objection."

(5.) "A stipulation does not in any way establish the reliability or accuracy of polygraph test results. However, it does embody an important notion of fairness for those parties who consider the polygraph reliable and are willing to rely on it. A stipulation forecloses one party from preventing admission of an adverse test after he and the opposing party have agreed it would be admissible, simply because he does not like the results. In addition, a stipulation allows each of the parties to insist that the polygraph be administered by reputable, qualified persons, in a manner most conducive to producing accurate results, and in a manner that can be monitored."

(6.) "When a party who otherwise has a right to object to the admissibility of evidence consents to the admission of the evidence, he gives up his right to object. This is the principle under which stipulated polygraph evidence is received."

(7.) Wynn v. State, 423 So. 2d 294, 299-300 (Ala.Crim.App. 1982); State v. Fain, 116 Idaho 82, 774 P.2d 252 (Idaho 1989); State v. Rebeterano, 681 P.2d 1265 (Utah 1984); State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962).

(8.) An error by a judge in the conduct of a trial which an appellate court finds is not sufficient for it to reverse or modify the lower court's judgment at trial (Hill & Hill, 2010).

(9.) "The results of a polygraphic examination are admissible in evidence in a criminal trial for purposes of corroboration or impeachment, provided that the following conditions are observed."

(10.) "While all courts are not in complete agreement, we are persuaded that the better rule is that the results of a polygraph test are admissible for the purpose of corroboration under the conditions and limitations set forth in State v. Valdez."

(11.) State v. Lumley, 977 P.2d 914 (Kan. 1999).

(12.) The decisions of this Court are clear that the results of polygraph examinations are unreliable and are therefore inadmissible in evidence. Stallings v. Commonwealth, Ky., 556 S.W.2d 4 (1977). Baril v. Commonwealth, Ky., 612 S.W.2d 739 (1981). Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974). Because of the peculiar nature of polygraph examination, however, and its inherent propensity to influence the jury, we have gone further and held that the mere mention of the taking of a polygraph examination without disclosure of the result is likewise error. Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984). Perry v. Commonwealth, Ky., 652 S.W.2d 655 (1983).

(13.) It is the jury's province to draw inferences from the evidence and to determine the credibility of the witnesses and the weight to be given to their testimony.

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Table 1 Outcomes of Field Studies (a)

Study                          N        Guilty (%)

                                     C      I      IC

Bersh (1969) (b)
  ZOC unanimous (c)            89    89.5   10.5   NA
  Average unanimous            157   93.2   6.8    NA
  Majority (ZOC and GQT)       59    70.6   29.4   NA
Horvath and Reid (1971)        40    85.0   15.0   0
Hunter and Ash (1973)          20    87.1   11.4   1.4
Slowik and Buckley (1975)      30    84.0   15.3   0.7
Wicklander and Hunter (1975)
  Polygraph & case material    20    98.6   1.3    0
  Polygraph alone                    90.0   8.3    1.6
  Average                            94.4   5.0    1.0
Horvath (1977)                 56    77.1   22.9   0
W. A. Davidson (1979)          21    90.0   10.0   0
Raskin (1976) (d)              16    91.7   0      8.3
Barland and Raskin (1976)
  Criterion panel              64    91.5   0      8.5
  Judicial outcome             41    90.9   0      9.1
Kleinmuntz and Szucko (1982)   100   75.0   25.0   0

Study                          N       Innocent (%)

                                     C      I      IC

Bersh (1969) (b)
  ZOC unanimous (c)            89    94.1   5.9    NA
  Average unanimous            157   91.5   8.5    NA
  Majority (ZOC and GQT)       59    80.0   20.0   NA
Horvath and Reid (1971)        40    90.5   9.5    0
Hunter and Ash (1973)          20    86.4   14.1   0
Slowik and Buckley (1975)      30    90.7   6.6    2.7
Wicklander and Hunter (1975)
  Polygraph & case material    20    86.6   8.3    5.0
  Polygraph alone                    86.6   5.0    8.3
  Average                            86.6   6.7    6.7
Horvath (1977)                 56    51.1   48.9   0
W. A. Davidson (1979)          21    91.0   0      9.0
Raskin (1976) (d)              16    75.0   0      25.0
Barland and Raskin (1976)
  Criterion panel              64    29.4   52.9   17.6
  Judicial outcome             41    12.5   75.0   12.5
Kleinmuntz and Szucko (1982)   100   63.0   37.0   0

(a.) This table is a part of table 2 in Saxe, Dougherty, & Cross
(1985), p. 360.

(b.) Includes studies using unanimous or majority decisions by a
panel as a criterion of ground truth.

(c.) The Zone of Comparison Test (ZOC) is a type of CQT.

(d.) Includes only the outcome using numerical scoring.

Table 2 Outcomes of Control Question Analogue Studies (a)

Study                              N        Guilty (%)

                                         C       I      IC

Barland and Raskin (1975)          72    36.9    8.3    27.8
Podlesny and Raskin (1978)         40    69.0    16.0   15.0
Raskin and Hare (1978)             48    87.5    0      12.5
Rovner et al. (1978)               72    77.8    8.3    13.9
Kircher (1983)                     100   60.0    4.0    36.0
Dawson (1980)                      24    91.7    0      8.3
Bradley and Janisse (1981)         192
  EDR                                    60.4    13.5   26.0
  Heart rate                             35.4    20.8   43.8
Szucko and Kleinmuntz (1981) (b)   30    71.3    28.7   NA
Ginton et al. (1982)               15    100.0   0      0
Honts and Hodes (1982a)
  No countermeasures               21    67.0    0.0    33.0
  Countermeasures                  19    58.0    5.5    36.6
Honts and Hodes (1982b)
No countermeasures                 38    84.2    0.0    15.8
Countermeasures                    19    36.8    26.3   36.8
Hammond (1980)                     62    71.9    3.0    25.0

Study                              N       Innocent (%)

                                         C       I      IC

Barland and Raskin (1975)          72    41.7    16.7   41.7
Podlesny and Raskin (1978)         40    91.0    4.0    5.0
Raskin and Hare (1978)             48    75.0    4.0    20.8
Rovner et al. (1978)               72    80.5    13.9   5.5
Kircher (1983)                     100   76.0    2.0    22.0
Dawson (1980)                      24    58.3    25.0   16.7
Bradley and Janisse (1981)         192
  EDR                                    58.3    9.4    32.3
  Heart rate                             33.3    19.8   46.9
Szucko and Kleinmuntz (1981) (b)   30    49.3    50.7   NA
Ginton et al. (1982)               15    84.3    15.4   0
Honts and Hodes (1982a)
  No countermeasures               21    33.0    17.0   50.0
  Countermeasures                  19    NA      NA     NA
Honts and Hodes (1982b)
No countermeasures                 38    31.6    15.8   52.6
Countermeasures                    19    NA      NA     NA
Hammond (1980)                     62    40.0    20.0   40.0

(a.) This table is a part of table 2 in Saxe, Dougherty, & Cross
(1985), p. 361.

(b.) Examiners were not allowed to categorize an examination as
inconclusive.

Table 3 GKT Studies (a)

Group                                              CDR (b)

Using the Card-Test Paradigm (g)                 0.125-1.000
                                                 (0.288-1.000)
Using the POT Paradigm with Guilty               0.398-0.800
  Participants Only
Using the Code-Stimuli Paradigm with             0.274-0.850
  Guilty Participants Only
Using the Personal-Items Paradigm with           0.340-1.000
  Guilty Participants Only
Using the Mock-Crime Paradigm with Guilty        0.350-0.900
  Participants Only
                                            Guilty          Innocent
Using the Code-Words Paradigm with Guilty   0.533-0.793     0.727-1.000
  and Innocent Participants
Using the Personal-Items Paradigm with      0.500-0.792     0.833-1.000
  Guilty and Innocent Participants
Using the Mock-Crime Paradigm with Guilty
  and Innocent Participants                 0.250-1.000     0.400-1.000

Group                                       BR (c)          d (d)

Using the Card-Test Paradigm (g)            .100-.250       -0.18-3.41
                                                            (0.35-3.41)
Using the POT Paradigm with Guilty          .100-.200       0.70-1.71
  Participants Only
Using the Code-Stimuli Paradigm with        .143-.387       0.07-2.21
  Guilty Participants Only
Using the Personal-Items Paradigm with      .077-.250       0.43-3.41
  Guilty Participants Only
Using the Mock-Crime Paradigm with Guilty   .063-.200       0.54-2.28
  Participants Only

Using the Code-Words Paradigm with Guilty      -            1.42-3.32
  and Innocent Participants
Using the Personal-Items Paradigm with         -            0.66-2.99
  Guilty and Innocent Participants
Using the Mock-Crime Paradigm with Guilty
  and Innocent Participants                    -            0.44-5.15

Group                                       a (e)           r (f)

Using the Card-Test Paradigm (g)            .45-.96         -.03-.84
                                            (0.60-0.96)     (0.17-0.84)
Using the POT Paradigm with Guilty          .69-.89         .33-.65
  Participants Only
Using the Code-Stimuli Paradigm with        .52-.94         .03-.74
  Guilty Participants Only
Using the Personal-Items Paradigm with      .62-.99         .21-.86
  Guilty Participants Only
Using the Mock-Crime Paradigm with Guilty   .65-.95         .26-.75
  Participants Only

Using the Code-Words Paradigm with Guilty   .84-.99         .54-.86
  and Innocent Participants
Using the Personal-Items Paradigm with      .68-.98         .23-.82
  Guilty and Innocent Participants
Using the Mock-Crime Paradigm with Guilty
  and Innocent Participants                 .62-1.00        .18-.93

(a.) This table was made by summarizing 8 tables in Ben-Shakhar &
Elaad (2003).

(b.) Corrected detection rate

(c.) Base rate

(d.) Distance between two distributions of detection score of guilty/
innocent subjects, calculated using signal detection theory

(e.) The area under the ROC curve

(f.) The point-biserial correlation between the detection measure and
the criterion of guilty versus innocence

(g.) The numbers in parentheses indicated minimum values when the
experiment 3.2 in Ellson, Burke, Davis, & Saltzman (1952), which
showed negative values in d and r was excluded.

Table 4 Conviction rate of each condition in various studies

Study (a)                           Condition

                                    No polygraph
Koffler (1957)
                                       Case 1
                                         0%
Cavoukian & Heslegrave (1980) (b)
  Experiment 1                         Basic
                                        52%
  Experiment 2                         Basic
                                        14%
Myers & Arbuthnot (1997)
                                    No-polygraph
  Predeliberation                       51%
  Postdeliberation                      37%
Myers et al. (2003)
                                      No-polygraph
                                    No CE (f)   CE (g)
                                        29%      88%
Myers et al. (2006)
                                    No-polygraph
                                        70%
McCabe et al. (2011) (h)
                                      Control
                                        55%
Lake(2007)
                                    No-polygraph
                                        54%
Markwart & Lynch (1979)
                                    No-polygraph
  Predeliberation                       49%
  Postdeliberation                      28%

Study (a)                           Condition

                                      Polygraph manipulations
Koffler (1957)
                                       Case 2
                                        40%
Cavoukian & Heslegrave (1980) (b)
  Experiment 1                         Polygraph
                                          28%
  Experiment 2                       Polygraph   JC (c)
                                        10%      22%
Myers & Arbuthnot (1997)
                                        CQT
  Predeliberation                       60%
  Postdeliberation                      28%
Myers et al. (2003)
                                     Polygraph
                                       No CE
                                        44%
Myers et al. (2006)
                                        Pass
                                        59%
McCabe et al. (2011) (h)
                                     Polygraph   fMRI
                                        45%      75%
Lake(2007)
                                        Pass
                                        51%
Markwart & Lynch (1979)
                                       FP (i)    UP (j)
  Predeliberation                       40%       60%
  Postdeliberation                      35%       60%

Study (a)                           Condition

                                      Polygraph manipulations
Koffler (1957)
                                       Case 3
                                        85%
Cavoukian & Heslegrave (1980) (b)
  Experiment 1                        Judge's caution
                                          40%
  Experiment 2                         EC (d)   AE (e)
                                        28%     24%
Myers & Arbuthnot (1997)
                                        GKT
  Predeliberation                       58%
  Postdeliberation                      32%
Myers et al. (2003)

                                         CE
                                        87%
Myers et al. (2006)
                                        Fail
                                        72%
McCabe et al. (2011) (h)
                                    fMRI questions
                                        50%
Lake(2007)
                                        Fail
                                        60%
Markwart & Lynch (1979)
                                       UW (k)
  Predeliberation                       44%
  Postdeliberation                      38%

(a.) Carlson et al. (1977) and Spanos et al. (1992) are excluded
because of no information about conviction rates.

(b.) The result of the polygraph test indicated telling the truth.

(c.) Judge's caution.

(d.) Expert's caution.

(e.) Alternative evidence.

(f.) No corroborating evidence.

(g.) Corroborating evidence.

(h.) The conviction rates in thermal imaging technique conditions are
excluded, which are all 50% in both thermal imaging only and thermal
imaging questions conditions, because of low relevance with the
purpose of this table.

(i.) Favorable polygraph.

(j.) Unfavorable polygraph.

(k.) Comparison condition (unfavorable witness).
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