|Science in Evidence|
Supplement to Chapter 17
(Testing for Truth)
Copyright © 1997-2002 DH Kaye
The oral argument in Scheffer. An observer in Washington DC supplied the following description of the oral argument in United States v. Scheffer:
Fun was had by all at the Scheffer argument yesterday. The Assistant SG argued that the polygraph is not sufficiently reliable to pass the Daubert test. Mr. Justice Kennedy asked why, if it is so unreliable, does the DOD administer 39,000+ each year, including the one that Scheffer wants to admit? The SG defended it as an investigatory device that encourages confessions, and told the old story about a local sheriff who placed a metal colander on the suspect's head, ran two wires over to the xerox machine, pressed the copy button, and showed the suspect the sheet that popped out saying "You're lying!", thereby obtaining a confession. Mr. Justice Scalia then kept referring to this as the "colander theory." The Air Force attorney presented a limp defense, failing to distinguish between polygraph testimony and testimony by a psychologist or psychiatrist regarding the veracity of the defendant. A hush fell over the crowd when the Chief Justice caught the attorney quoting from the dissent without qualification ("It is useful to inform the court when you wish to cite the dissent as authority.") Mr. Justice Stevens mentioned twice the 90% reliability estimated in the brief by the group known as "Concerned Social Scientists," which seems to me to be a group of polygraph examiners. At the end of the argument each side then scrambled to the cameras on the courthouse steps to declare victory.
National Research Council Committee to Review the Scientific Evidence on the Polygraph, The Polygraph and Lie Detection (2002)
In State v. Brown, 687 P.2d 751 (Or. 1984), The Oregon Supreme Court held that polygraph is inadmissible. In addition to applying a "relevancy-plus" analysis, the court relied on Rule 608 "and the long-standing position of this court" to insist that "no witness may pass upon the credibility of another witness. with respect to specific conduct." Id. at 775.
2. Neuroimaging. With the "war on terrorism" has come renewed efforts to detect deception. One promising approach uses neuroimaging technology to detect changes in brain activity that are thought to be correlated with efforts to dissemble. See, e.g., Helen Pearson, Lure of Lie Detectors Spooks Ethicists, 441 Nature 918 (2006).