Tampa Federal Criminal Defense Lawyer

Feds using lie detectors in parole despite scientific invalidity

Jun 19, 2017 | Sex Offenses

The federal justice system still uses polygraphs to test whether certain sex offenders are remorseful, even though the polygraph has been found scientifically unsound. Moreover, the test may actually encourage nondisclosure and inhibit treatment.

An assistant U.S. Attorney has asked a federal court to order “therapeutic polygraph” tests for a sex offender as part of his five-year conditional release period. The man was convicted of possessing over 6,000 photos and videos considered to be child pornography. He has served his 18-month sentence and has already been ordered to engage in regular therapy as one of the conditions. His therapist testified the defendant was “forthcoming and engaged.”

Therapeutic polygraphy, in theory, is meant to break through the defendant’s “denial and resistance” in therapy, but this seems to be an example of government skepticism rather than therapeutic need. The defendant insists he downloaded the images and videos after stumbling upon them and found them “morbidly intriguing” rather than sexually arousing. His reaction to the photos has no bearing on his guilt or innocence.

Nevertheless, his explanation didn’t satisfy the U.S. Attorney’s office, which sought to have the tests court-ordered. Even though the federal system has used it on sex offenders for decades, the federal judge was highly critical of the proposal and grilled witness after witness in a three-hour hearing.

American Psychological Association: There’s little evidence polygraphs work

In its groundbreaking treatise “The Truth About Lie Detectors,” the American Psychological Association explains that there isn’t enough connection between lying and the physiological markers tested by polygraph machines for the tests to be accurate.

“At most, the polygraph has been deemed to be 80 percent-to-90 percent accurate, meaning that up to 1 in 5 patients submitting to the test will be found, wrongly, to be lying,” explained a defense witness, a Harvard-educated psychiatrist known for providing technical advice on “Law and Order” and other legal dramas.

She went on to say that mandating such a test is likely to create anxiety, undercut the therapeutic alliance, create resistance to treatment and encourage nondisclosure by the patient.

The man’s defense attorney called the practice into question, arguing that the U.S. Attorney and a government contractor known as the Association for the Treatment of Sexual Abusers are using law enforcement practices and calling them treatment. Even the contractor’s name, which refers to its patients by the law enforcement phrase “sexual abusers” indicates its questionable therapeutic validity.

The defense wants to stop this expensive, unscientific practice from being mandated in this defendant’s case — and to keep it from becoming entrenched in the federal supervised release system.


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