Deceiving Due Process: Polygraphs Put Junk Science in the Limelight

Polygraphs don’t belong anywhere near the national interest, especially when it comes to sex crime allegations. But Kavanaugh defended their secrecy and importance as an appeals court judge.

Polygraphs continue to hold a bizarre and misguided centrality in the unfolding drama between Dr. Christine Blasey Ford and Supreme Court nominee Brett Kavanaugh. In her Senate Judiciary Committee testimony last week, Dr. Ford claimed to have passed a polygraph. Kavanaugh responded to Senator Harris’s question that yes, he would take one at the Committee’s request—but noted that they’re unreliable and inadmissible in federal court.

Then in a letter Tuesday night, Committee Chairman Chuck Grassley accused Dr. Ford’s lawyers of “withholding material evidence,” repeating his request for recordings of her taking a polygraph among other things. Grassley pegged his request to the committee’s receipt of a letter suggesting Ford committed perjury when she told senators she had never advised anyone on how to take a polygraph. As the brief FBI investigation into allegations against Kavanaugh has concluded, Republican leaders plan to vote on the nomination any day. Dr. Ford’s credibility matters.

But Kavanaugh is right: Polygraphs don’t belong anywhere near issues of vital importance to the national interest. Or sex crime allegations—much less their intersection in this case. I know because I conducted National Science Foundation-sponsored doctoral dissertation research on polygraph bias, research that featured in Wired on Monday and a McClatchy national investigative series in 2012. Ironically, Kavanaugh was the federal appeals court judge who decided one of my polygraph open records requests cases (Sack v. DOD, 2016).

Kavanaugh defended polygraph program secrecy after the DOD lied to the Court, saying polygraphs are important law enforcement tools. The truth—as he apparently knows after all, when his own future is at stake—is that polygraphs are unreliable. That’s why the National Academy of Sciences, evaluating the scientific evidence on polygraphs in 2003 at Congress’s request, concluded that polygraph screening programs at the National Labs would undermine the very national security they sought to promote by wrongly implicating large numbers of innocent people while also missing spies. Polygraphs are neither accurate enough for mass security screenings, nor reliable enough for use in individual criminal cases.

They’re also vulnerable to abuse and fraud. Death row exonerees like Dave Keaton and Shabaka Waqlimi lost years of their lives in jail suffering under death sentences for crimes they did not commit, because police had abused the intimidation tool of the “lie detector” to generate a false confession from a black teen (in Dave’s case), and to direct police investigation away from a likelier white suspect and towards an innocent black man (in Shabaka’s). Federal polygraphers have complained to the government itself that polygraphs have been similarly abused as hammers in Iraq and Afghanistan to send presumably innocent people to places like the notorious Abu Ghraib prison.

Veteran polygrapher John F. Sullivan once ran an operation inside the CIA targeting polygraphers who were manufacturing false confessions and charts. Because the science of polygraphs is so shaky and the processes surrounding them so nontransparent to begin with, addressing bias, fraud, and abuse in these programs remains difficult.

Although the U.S. government exports polygraphs as part of its anti-corruption programs worldwide, my research suggests that police polygraph programs actually increase corruption. But because federal polygraph program data remain secret—thanks to judges like Kavanaugh—it’s been impossible for independent researchers to assess the efficacy of federal polygraph programs. If the apparent causal effects of police polygraph programs are any indication, these other polygraph programs may also backfire.

So polygraphs don’t belong anywhere near issues of vital national importance, such as who attains a lifetime appointment to the U.S. Supreme Court. They also don’t belong anywhere near sexual assault or harassment, or any other serious allegations. They are insufficiently evidence-based.

While often presented as diagnostic tests, polygraphs are really intimidation tools used in interrogations. Investigators should not intimidate and further traumatize alleged crime victims. Rather, they should do evidence-based forensics to investigate criminal allegations with due process. That is in everyone’s best interests. The wrongly accused and the truthfully traumatized both deserve the full protection of the law. And society deserves investigations that use credible methods to determine facts.

Judges are supposed to ensure that valid investigations using reliable tools take place and result in justice. But Kavanaugh already had a chance as a federal appeals court judge to check and balance executive branch dishonesty by disclosing polygraph program records—records that could have helped hold the government to account where it was abusing its power and lying to the Court about it. He blew it, and that’s no lie.