POLYGRAPH TESTING IN THE PRIVATE WORK FORCE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000601590005-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 14
• Document Creation Date: December 27, 2016
• Document Release Date: January 2, 2013
• Sequence Number: 5
• Publication Date: April 30, 1987
• Content Type: MISC

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--POLYGRAPH TESTING IN THE PRIVATE
WORK FORCE
HEARINGS
BEFORE THE
SUBCOMMITTEE ON EMPLOYMENT OPPORTUNITIES
L.s.Cur How v OF THE
COMMITTEE ON EDUCATION AND LABOR
HOUSE OF REPRESENTATIVES
ONE HUNDREDTH CONGRESS
FIRST SESSION
HEARINGS HELD IN WASHINGTON, DC, ON MARCH 5 AND APRIL 30,
1987
Serial No. 100-23
Printed for the use of the Committee on Education and Labor
D.S. GOVERNMENT PRINTING OFFICE
74-777 WASHINGTON : 1987
For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office, Washington, DC 20402
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Fel U 52
t-o p?.1
COMMITTEE ON EDUCATION AND LABOR
AUGUSTUS F. HAWKINS, California, Chairman
WILLIAM D. FORD Michigan
JOSEPH M. GAYDOS, Pennsylvania
WILLIAM (BILL) CLAY, Missouri
MARIO BIAGGI, New York
AUSTIN J. MURPHY, Pennsylvania
DALE E. ICILDEE, Michigan
PAT WILLIAMS, Montana
MATTHEW G. MARTINEZ, California
MAJOR R. OWENS, New York
CHARLES A. HAYES, Illinois
CARL C. PERKINS, Kentucky
THOMAS C. SAWYER, Ohio
STEPHEN J. SOLARZ, New York
ROBERT E. WISE, JR., West Virginia
TIMOTHY J. PENNY, Minnesota
BILL RICHARDSON, New Mexico
TOMMY F. ROBINSON, Arkansas
PErrat J. VISCLOSKY, Indiana
CHESTER G. ATICINS, Massachusetts
JAMES JONTZ, Indiana
JAMES M. JEFFORDS, Vermont
WILLIAM F. GOODLING, Pennsylvania
E. THOMAS COLEMAN, Missouri
THOMAS E. PETRI, Wisconsin
MARGE ROUKElifA, New Jersey
STEVE GUNDERSON, Wisconsin
STEVE BARTLETT, Texas
THOMAS J. TAUICE, Iowa
RICHARD K. ARMEY, Texas
HARRIS W. FAWELL, Minois
PAUL B. HENRY, Michigan
FRED GRANDY, Iowa
CASS BALLENGER, North Carolina
SUBCOMMITTEE ON EMPLOYMENT OPPORTUNITIES
MATTHEW G. MARTINEZ, California, Chairman
PAT WILLIAMS, Montana STEVE GUNDERSON, Wisconsin
CHARLES A. HAYES, Illinois PAUL B. HENRY, Michigan
MAJOR R. OWENS, New York FRED GRANDY, Iowa
CHESTER G. ATKINS, Massachusetts JAMES M. JEFFORDS, Vermont
JAMES JONTZ, Indiana (Ex Officio)
AUGUSTUS F. HAWKINS, California
(Ex Officio)
CONTENTS
Hearings held in Washington, DC, on:
March 5, 1987
April 30, 1987
Statement of:
Bauer, Jon, staff attorney, Legal Action Center, New York, NY
Beery, John F., III, M.D., assistant dean for planning and development,
Georgetown University School of Medicine, on behalf of the American
Medical Association; accompanied by Bruce Blehart, Department of
Federal Legislation, American Medical Association
Darby, Michael, victim, Lawrenceville, GA
Darden, Hon. George, a Representative in Congress from the State of
Georgia
Fanning, Joseph, vice president, Wells Fargo
Fitzpatrick, Robert B., Fitzpatrick & Verstegen, on behalf of the Plaintiff
Employment Lawyers Association
Gunderson, Hon. Steve, a Representative in Congress from the State of
Wisconsin, prepared statement of
liatkin, Edward S., Ph.D., chairman, Department of Psychology, State
University of New York at Stoneybrook, on behalf of the American
Psychological Association
Macho, Nester, consultant for Orkin Pest Control
Markman, Steve, Assistant Attorney General, Office of Policy, Depart-
ment of Justice
McKinney, Hon. Stewart B., a Representative in Congress from the State
of Connecticut
O'Neill, Joseph, director of police, Conrail, on behalf of Association of
American Railroads
Scheve, William J., Jr., president, American Polygraph Association
Prepared statements, letters, supplemental materials, etc.?
Bauer, Jon, staff attorney, Legal Action Center, prepared statement of
l3eary, Dr. John F., prepared statement on behalf of the American Medi-
cal Association
Darby, Michael, prepared statement of
Darden, Hon. Buddy, a Representative in Congress from the State of
Georgia, prepared statement of
Fanning, Joseph, prepared statement on behalf of Borg-Warner Corp
Katkin, Edward S., prepared statement on behalf of the American Psy-
chological Association
Macho, Nester, Orkin Pest Control, prepared statement of
Markman, Stephen J., assistant attorney general, office of legal policy,
Department of Justice, prepared statement of
Martinez, Hon. Matthew G., a Representative in Congress from the State
of California, prepared statement of:
March 5, 1987
April 30, 1987
McKinney, Hon. Stewart B., a Representative in Congress from the State
of Connecticut, prepared statement of
O'Neill, Joseph, director of police, Conrail, prepared statement of
"Polygraph is living its own lie," and 'Polygraph an unreliable spy-
catcher," articles from the Atlanta Constitution, dated October 3 and
November 8, 1986
Scheve, William J., president, American Polygraph Association, prepared
statement of
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Prepared statements, letters, supplemental materials, etc.?Continued
"The Polygraph Lied," New York Times, March 5, 1987
Williams, Hon. Pat, a Representative in Congress from the State of
Montana, prepared statement of:
March 5, 1987
April 30, 1987
APPENDIX
Statement of:
American Civil Liberties Union
American Medical Association
American Pharmaceutical Association
Bakery, Confectionery and Tobacco Workers Union
Florida Department of State
Food Marketing Institute
Hotel Employees & Restaurant Employees International Union
International Brotherhood of Electrical Workers, AFL-CIO
National Association of Chain Drug Stores, Inc
National Association of Showroom Merchandisers
National Automatic Merchandising Association
National Grocers Association
National Mass Retailing Institute
National Retail Merchants Association
National Tire Dealers & Retreaders Association, Inc
National Wholesale Druggists' Association
New York Clearing House
Retail, Wholesale and Department Store Union
Saxe, Leonard, Ph.D., Boston University
Securities Industry Association
Service Employees International Union, AFL-CIO, CLC
Shad, John, Securities and Exchange Commission
Small Business Legislative Council
U.S. Chamber of Commerce
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POLYGRAPH TESTING IN THE PRIVATE WORK
FORCE
THURSDAY, MARCH 5, 1987
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON EMPLOYMENT OPPORTUNITIES,
COMMITTEE ON EDUCATION AND LABOR,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:06 a.m. in room
2261, Rayburn House Office Building, Hon. Matthew G. a.m.,
presiding.
Members present: Representatives Martinez, Owens, Jontz, Gun-
derson, and Grandy.
Staff present: Eric Jensen, staff director; Valerie White, legisla-
tive assistant; Tammy Harris, clerk; Mark Powden, minority staff
director; Mary Gardner, legislative associate director.
Full committee staff present: Don Baker, committee counsel;
Carole Stringer, legislative analyst.
Mr. MARTINEZ. The subcommittee will come to order.
Mr. Williams, author of the bill before us today, is here, and on
my left is Mr. Henry. Mr. Henry is from Michigan.
Let me first go to my opening statement and then we will get
started with the other members and their comments. As the mem-
bers join us I will introduce them.
Ranking minority member of the committee is Mr. Steve Gun-
derson. Welcome, Steve.
Mr. GUNDERSON. Thank you, Mr. Chairman.
Mr. MARTINEZ. Mr. Gunderson is from Wisconsin.
The purpose of today's Employment Opportunities Subcommittee
hearing is to receive testimony regarding the use of the lie detector
devices, particularly polygraph machines and whether they are ac-
curate in truth and fact detecting in the work place. This hearing
will focus on H.R. 1212, the Employee Polygraph Protection Act, in-
troduced by Representative Pat Williams of Montana.
The polygraph lie detector is designed to detect truth and dishon-
esty by measuring the blood pulse, blood pressure and body temper-
ature levels of workers. It is used to pre-screen applicants for em-
ployment, for investigation of specific crimes and for random
screening and monitoring in the work force.
Many companies hold that the polygraph provides important pro-
tection against major property losses. Companies believe that the
polygraph is accurate and some rate accuracy as high as 95 per-
cent. But companies also say that they do not base hiring and
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Berry III, M.D., Assistant Dean for Planning, Georgetown Universi-
ty School of Medicine, on behalf of the American Medical Associa-
tion; Edward Katkin, Chair of Department of Psychology, State
University of New York at Stoneybrook, on behalf of the American
Psychological Association, Robert B. Fitzpatrick, Fitzpatrick and
Verstegen, on behalf of the Plaintiff Employment Lawyers Associa-
tion.
We will start with?Steve, would you care to begin?
Mr. MARKMAN. Thank you, Mr. Chairman and members of the
subcommittee.
Mr. MARTINEZ. Steve, could I interrupt you for one minute?
Mr. MARKMAN. Yes, sir.
Mr. MARTINEZ. Your testimonies as written will be entered into
the record in their entirety, and we would ask you to summarize
and keep us closely, as we can, to the five minute rule.
STATEMENT OF STEVE MARKMAN, ASSISTANT ATTORNEY
GENERAL, OFFICE OF POLICY, DEPARTMENT OF JUSTICE
Mr. MARKMAN. Thank you very much. I appreciate the opportu-
nity to appear on behalf of the Department of Justice at this hear-
ing on H.R. 1212, the proposed Employee Polygraph Protection Act.
The Department of Justice vigorously opposes federalizing the
law in this area. Such action is directly contrary to the principles
of federalism on which our union is based and to which this Ad-
ministration is deeply committed. Until now, regulating polygraph
use has been the responsibility of the states. In fact, 34 states and
the District of Columbia have enacted statutes regulating the use
of polygraph or other honesty tests or polygraph examiners. To
preempt the states in this context where there is no evidence of an
overriding need for national policy uniformity, would do violence to
an important underlying principle of our union, the belief in the
ability and responsibility of the states generally to govern the af-
fairs of their citizens.
The attempt to federalize the law in this arena has implications
far beyond polygraph regulation. It is symptomatic of the persist-
ent tendency of government officials in Washington, well-meaning
officials, to act as if only we can fully understand and remedy the
problems confronting 240 million Americans. It is this attitude that
in recent decades has been responsible for the mushrooming
growth of a national government that has not only undertaken un-
manageable responsibilities, but that also has usurped the decision
making authority of private citizens and of the levels of govern-
ment closest to those citizens, the states and their localities.
This centralizing tendency is not difficult to understand. It is not
surprising that public officials and other citizens who believe that
their public policy ideas are sound, want those ideas to be imposed
uniformly upon the 50 states. Nor is it surprising that citizens who
feel strongly about the merits of a public program want to bestow
that program upon as many of their fellow citizens as possible. And
it is not surprising that a business or other private entity, subject
to some form of public regulation, would prefer to abide by a single
regulation promulgated by Washington than to have to abide by 50
separate regulations promulgated in Sacramento and Springfield
.2e.)
and St. Paul. It is precisely because each of us can understand the
impetus towards centralization of governmental authority that we
have to be particularly careful to avoid falling victim to this tend-
ency, and in the process undermining the constitutional balances
within our system of government.
This responsibility is particularly acute given the Supreme
Court's recent decision in Garcia v. San Antonio Metropolitan
Transit Authority in 1985. In that case the Supreme Court held
that with respect to federal regulation under the commerce power,
Congress, not the federal courts, generally is the primary protector
of state sovereign rights and responsibilities. In other words, the
principal burden of protecting the values of federalism in the com-
merce context on which this bill is based lies with the members of
this body.
Because of their importance to this subcommittee's decision on
whether to proceed with H.R. 1212, I would call to your attention
the greater discussion in my prepared statement focusing upon the
fundamental values of federalism. And we touch briefly upon ideas,
such as diversity and competition and trial and error, and experi-
mentation, which we think lie at the heart of the federalism princi-
ple.
When these factors are examined in the context of polygraph
regulation, the balance in this Administration's judgment is clearly
struck in favor of state, not national regulation. Not only is there
no need for national enforcement or uniformity with respect to pri-
vate sector polygraph use, but the benefits of leaving regulation to
the states are evident. Polygraph regulation is a complex issue sub-
ject to extensive ongoing debate in which a substantial number of
reasonable responses are available and have, indeed, been adopted
by the states.
Whether or not polygraph testing should be regulated by some
level of government is not the issue here. Assuming that poly-
graphs are abused by private employers?and there is certainly no
question that such abuse is possible?the states are as capable as
the national government of recognizing and remedying any such
problem. In fact, they have the greater incentive to do so since the
rights of their own citizens, to whom they are immediately ac-
countable, are involved. Approximately 70 percent of all states
have already recognized the need for certain protections in this
area, and have provided them through various forms of state legis-
lation.
H.R. 1212 itself takes an inconsistent position on whether poly-
graph tests are sufficiently valid to be useful. While the bill would
ban the use of polygraphs in the private sector, it explicitly recog-
nizes the usefulness of polygraphs for the government by continu-
ing to allow polygraph testing of all governmental employees. Cer-
tainly if the machines are reliable indicators of truth or falsity in
the public sector, they are equally as reliable in the private sector.
Apparently, a majority of the members of the previous Congress
also believed that polygraphs are useful in a variety of private
sector contexts. When H.R. 1514 went to the floor on March 12 of
last year, it contained a single exemption for companies involved in
the storage, distribution or sale of controlled substances. One repre-
sentative after another offered amendments exempting various in-
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dustries from the bill's blanket prohibition. The bill fmally passed
the House containing not only the original exemption, but also ex-
emptions for workers in nursing homes and children's day care
centers, security personnel and public utility employees. From
these exemptions, it is clear that the very representatives who
have voted to bar the use of polygraphs seem to recognize their
usefulness and credibility in certain contexts.
Polygraph regulation, Mr. Chairman, is an issue which requires
careful balancing of the interests of consumers, employees, and em-
ployers. Possible responses range from relying on the free market,
to licensing polygraph examiners, to banning completely the use of
polygraphs. While all sorts of variations on these approaches are
possible, which precise approach is best for any given state should
be left to the citizens of that state. We see absolutely no reason to
forestall the vigorous debate on this issue continuing to take place
within the states.
In fact, those states that have regulated in this field have adopt-
ed widely varying approaches.
MT. MARTINEZ. One minute to wrap up.
Mr. MARKMAN. Nineteen states and the District of Columbia reg-
ulate employers' use of the polygraph. Three states regulate em-
ployers' use of other honesty testing devices. Some of these states
completely ban the use of polygraphs by private employers; others
prohibit employers from requiring employees to take tests, but
allow them to be administered to employees who volunteer to take
them. Still others exempt certain occupations. There are a wide va-
riety of procedures within the states.
I would like to conclude my remarks with a quote from President
Reagan. In an address to the National Conference of State Legisla-
tures, he said:
Today federalism is one check that is out of balance as the diversity of the states
has given way to the uniformity of Washington. And our task is to restore the con-
stitutional symmetry between the central government and the states and to reestab-
lish the freedom and variety of federalism. In the process, we'll return the citizen to
his rightful place in the scheme of our democracy and that place is close to his gov-
ernment. We must never forget it. It is not the federal government or the states
who retain the power?the people retain the power. And I hope that you'll join me
in strengthening the fabric of federalism. If the federal government is more respon-
sive to the states, the states will be more responsive to the people.
For these reasons so eloquently articulated by President Reagan,
this Administration strongly urges this committee to reject this
proposal.
Thank you, Mr. Chairman.
Mr. MARTINEZ. Thank you, MT. Markman.
[The prepared statement of Stephen J. Markman follows:]
PREPARED STATEMENT OF STEPHEN J. MARKMAN, ASSISTANT ATTORNEY GENERAL,
OFFICE or LEGAL POLICY
Mr. Chairman and Members of the Subcommittee:
I appreciate the opportunity to appear on behalf of the
Department of Justice at this hearing on H.R. 1212, the proposed
'Employee Polygraph Protection Act.' This bill, if enacted,
would prohibit private sector employers from administering
polygraph examinations to employees or prospective employees.
The Department of Justice vigorously opposes federalizing
the law in this area. Such action is directly contrary to the
principles of federalism on which our union is based and to which
this Administration is deeply committed. Until now, regulating
polygraph use has been the responsibility of the states. In
fact, thirty-four states and the District of Columbia have
enacted statutes regulating the use of polygraph or other
'honesty' tests or polygraph examiners. To preempt the states in
this context, where there is no evidence of an overriding need
for national policy uniformity, would do violence to an important
underlying principle of our union -- the belief in the ability
and responsibility of the states generally to govern the affairs
of their citizens.
The attempt to federalize the law in this arena has
implications far beyond polygraph regulation; it is symptomatic
of the persistent tendency of government officials in Washington
-- well meaning officials -- to act as if only we can fully
understand and remedy the problems confronting 240 million
Americans. It is this attitude that, in recent decades, has been
responsible for the mushrooming growth of a national government
that has not only undertaken unmanageable responsibilities, but
that also has usurped the decisionmaking authority of private
citizens and of the levels of government closest to those
citizens -- the states and their localities. It is an attitude
that is responsible for initiatives, such as Gramm-Rudman, the
balanced budget and tak limitation constitutional amendments,
item veto proposals and constitutional amending conventions.
This centralizing tendency is not difficult to understand.
It is not surprising that public officials and other citizens,
who believe that their public policy ideas are sound, want those
ideas to be imposed uniformly upon the fifty states. It is not
surprising that citizens who feel strongly about the merits of a
public program want to bestow that program upon as many of their
fellow-citizens as possible. And it is not surprising that a
business or other private entity subject to some form of public
regulation would prefer to abide by a single regulation
promulgated by Washington than to have to abide by fifty separate
regulations promulgated in Sacramento and Springfield and St.
Paul. It is precisely because each of us can understand the
impetus toward centralization of governmental authority that we
have to be particularly careful to avoid falling victim to this
tendency and, in the process, undermining the constitutional
balances within our system of government.
As with many things elemental, there is a tendency sometimes
to give the principles of federalism short shift. I recognize
that it is not always easy to identify a bright line between
those responsibilities of government that ought to be carried out
by the national government and those more appropriately addressed
by the states. Even in this Administration, which is deeply ?
committed to ensuring that each level of government operates in
its appropriate sphere, we have sometimes had trouble drawing
that line. It is important, nevertheless, that those in the
executive and legislative branch not lose sight of the inherent
responsibility to confront this matter.
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This responsibility is particularly acute given the Supreme
Court's recent decision in Garcia v. San Antonio Metropolitan
Transit Authority, 105 S. Ct. 1005 (1985). In that case, the
Supreme Court held, with respect to federal regulation under the
commerce power, that Congress, not the federal courts, generally
is the primary protector of state sovereign rights and
responsibilities. As the Court observed,
We continue to recognize that the States
occupy a special and specific position in our
constitutional system and that the scope of
Congress' authority under the commerce clause
must reflect that position. But the
principal and basic limit on the federal
commerce power is that inherent in all
congressional action -- the built-in
restraints that our system provides through
state participation in federal governmental
action.
In other words, the principal burden of protecting the values of
federalism in the commerce context lies with the Members of this
body. As representatives, not only of the citizens of the
states, but of the states themselves, it is the Congress that is
principally vested with the responsibility to preserve the
prerogatives of the states within the constitutional structure.
Whatever the merits of the Court's decision in Garcia -- and this
Administration opposes its holding and has supported past
legislative efforts to modify the Fair Labor Standards Act in
response -- its observations on the role of the Congress in
upholding federalism can hardly be disputed.
Because of their importance to this Subommittee's decision
on whether to proceed with H.R. 1212, I would like at this time
to briefly revisit the fundamental values of federalism. The
healthy respect for the states envisioned by the Framers requires
that the national government pay as much attention to who should
be making decisions as to what decisions should be made and that,
where appropriate, it defer to the states. It was the people of
the states who created the national government by delegating to
that government those limited and enumerated powers relating to
matters beyond the competence of the individual states. All
other sovereign powers, except for those expressly prohibited the
states by the Constitution, are expressly reserved to the states
or the people by the Tenth Amendment.
The Framers of the Constitution set up a structure that
apportions power between the national and state governments. The
values that underlie this structure of federalism are not
anachronistic; they are not the result of an historic accident;
they are no less relevant to the United States in 1987 than they
were to our Nation in 1789. In weighing whether a public
function ought to be performed at the national or state level, we
should consider the basic values that our federalist system seeks
to ensure. Some of those principles include:
Dispersal of Power -- By apportioning and compartmentalizing
power among the national and 50 state governments, the power of
government generally is dispersed and thereby limited.
Accountability -- State governments, by being closer to the
people, are better positioned as a general matter to act in a way
that is responsive and accountable to the needs and desires of
their citizens.
Participation -- Because state governments are closer to the
. people, there is the potential for citizens to be more directly
involved in setting the direction of their affairs. This ability
is likely to result in a stronger sense of community and civic
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virtue as the people themselves are more deeply involved in
defining the role of their government.
Diversity -- Ours is a large and disparate nation; the
citizens of different states may well have different needs and
concerns. Federalism permits a variegated system of government
most responsive to this diverse array of sentiment. It does not
require that public policies conform merely to a low common
denominator; rather, it allows for the development of policies
that more precisely respond to the felt needs of citizens within
different geographical areas.
Competition -- Unlike the national government which is
necessarily monopolistic in its assertion of public authority,
the existence of the states introduces a sense of competition
into the realm of public policy. If, ultimately, a citizen is
unable to influence and affect the policies of his or her state,
an available option always exists to move elsewhere. This
option, however limited, enhances in a real way the
responsiveness of state governments in a way unavailable to the
national government.
gxperimentation -- The states, by providing diverse
responses to various issues which can be compared and contrasted,
serve as laboratories of public policy experimentation. Such
experimentation is ultimately likely to result in superior and in
some instances naturally uniform policies, as states reassess
their own and other states' experiences under particular
regulatory approaches.
Containment -- Experimenting with varying forms of
regulation on a smaller, state scale rather than on a uniform,
national scale confines the harmful effects of regulatory actions
that prove more costly or detrimental than expected. Thus, while
the successful exercises in state regulation are likely to be
emulated by other states, the unsuccessful exercises can be
avoided.
While these values of federalism may often mitigate in favor
of state rather than national action, other factors -- including
a demonstrated need for national policy uniformity or for a
monolithic system of enforcement -- mitigate in favor of action
by the national government and must be balanced in this process.
For example, the need for a uniform foreign policy on the part of
the United States clearly justifies national rather than state
action in this area. Similarly, in the interstate commerce area,
the need for a uniform competition policy argues strongly for
national antitrust law; and the need for efficient flow of
interstate transportation argues for national rather than state
regulation of airplane and rail safety. In other words, by
federalism, we are not referring to the idea of 'state's rights";
rather, we are referring to the idea expressed in the
Constitution that certain governmental functions are more
properly carried out at the level of the fifty states, while
others are more properly carried out by the national government.
Thus, it is critical that we not lose sight of the need to go
through this analytic process.
When these factors are examined in the context of polygraph
regulation, the balance in the Administration's judgment is
clearly struck in favor of state, not national, regulation. Not
only is there no need for national enforcement or uniformity with
respect to private sector polygraph use, but the benefits of
leaving regulation to the states are evident; polygraph
regulation is a complex issue, subject to extensive ongoing
debate, in which a substantial number of reasonable responses are
available to (and have indeed been adopted by) the states.
Whether or not polygraphs should be regulated by some level
of government is not the issue here. Assuming that polygraphs
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are abused by private employers -- and there is no question that
such abuse is possible -- the states are as capable as the
national government of recognizing and remedying any such
problem. In fact, they have the greater incentive to do so since
the rights of their own citizens, to whom they are immediately
accountable, are involved. As I indicated earlier, 70% of the
states have already recognized a need for certain protections in
this area and have provided them through various forms of state
legislation.
There are a number of interests that must be balanced in
determining whether or how to regulate polygraphs. For example,
while certain employees may be concerned about the intrusiveness
of polygraph regulation, other employees -- for example,
employees falsely accused of stealing from their employers -- may
desire the availability of polygraph tests in order to support
their innocence.
Moreover, by protecting employees from the use of polygraph
tests, employers are necessarily restricted in their use of a
test that may help ensure they are hiring honest or firing
dishonest employees. No one can dispute the need for identifying
and discharging dishonest or thieving workers. From losses
reported during a recent random sampling of three industries --
retail department store chains, general hospitals, and electronic
manufacturing firms -- the National Institute of Justice
estimated that business and industry lose to employee theft five
to ten billion dollars annually. Not only are employers losing
valuable assets and paying higher prices for theft insurance
policies, but, to the extent possible, employers pass on those
costs in the form of higher prices to consumers. Some of the
commodities diverted -- drugs, for example -- impose their own
costs on society. According to the Drug Enforcement
Administration, legally produced drugs, falling in the wrong
hands, kill and injure twice as many people annually as illicit
drugs. DEA estimates that half a million to a million doses of
drugs are stolen each year by employees of pharmacies and
wholesale drug manufacturers and distributors.
Those opposed to the use of polygraphs will argue that the
test is inaccurate and cannot provide employers with useful
information. Certainly, the validity of polygraphs has been
widely debated during the last two decades. The scientific
community itself is divided. One camp, led by Prof. David C.
Raskin of the University of Utah published, in 1978, a study
assessing polygraphs to be 90 percent accurate, when properly
conducted and evaluated. The opposing camp, led by Dr. D. T.
Lykken of the University of Minnesota, claims that the test is
much less accurate and that it works to screen out the most
honest, most conscientious employees. As the dissenters of the
House Committee on Education and Labor indicated in their report
on H.R. 1524, the Employee Polygraph Protection Act of 1986,
which passed the House during the last Congress, 'Field studies
are difficult to validate, and 'laboratory' studies cannot
exactly replicate polygraph usage. The Office of Technology
Assessment (OTA) in a 1983 report concluded that 'no overall
measure or single, simple judgment of polygraph testing validity
can be established based on available scientific evidence.''
What is essential to recognize here is, not that one side or the
other has satisfied the burden of persuasion, but that the
current debate is an ongoing and vigorous one.
Apart from the debate in the scientific community, a number
of employers obviously believe that polygraphs are useful devices
for aiding them in making responsible decisions about existing or
prospective employees. According to last Congress' House
Committee Report on H.R. 1524, more than two million polygraph
tests are administered in the private sector each year, triple
the number given ten years ago. From an economic perspective, it
seems highly unreasonable to believe that employers would incur
- 5 -
the cost of $50-$60 per test and risk generating some bad will
among valuable or potentially valuable employees, and perhaps
losing them to competitors, if those employers did not believe
the tests provided useful information. Moreover, it must be
remembered that the alternatives to polygraph tests -- for
example, background checks and personal interviews in the
preemployment screening context -- may be far more highly
subjective and may intrude upon privacy interests in at least as
substantial a way. The value of polygraphs, therefore, should be
analyzed not by some unattainable, ideal standard, but with
reference to existing, real-world investigative alternatives.
Again, these are considerations as to which different citizenries
in different states may reasonably come to different conclusions.
H.R. 1212 itself takes an inconsistent stand on whether
polygraph tests are sufficiently valid to be useful. While the
bill would ban the use of polygraphs in the private sector, it
explicitly recognizes the usefulness of polygraphs for the
government by continuing to allow polygraph testing of all
governmental employees. Certainly if the machines are reliable
indicators of truth or falsity in the public sector they are
equally as reliable in the private sector.
Apparently a majority of the Members of the 99th Congress'
House of Representatives also believed that polygraphs are useful
in a variety of private sector contexts. When H.R. 1524 went to
the floor on March 12 of last year, it contained a single
exemption for companies involved in the storage, distribution, or
sale of controlled substances. One representative after another
offered amendments exempting various industries from the bill's
blanket prohibition. The bill passed the House containing not
only the original exemption, but also exemptions for workers in
nursing homes, and children's day care centers, security
personnel, and public utility employees. From these exemptions
it is clear that the very representatives who have voted to bar
the use of polygraphs seemed to recognize their usefulness and
credibility in certain contexts.
More than that, however, these exemptions again highlight
the arbitrary nature of decisions on which occupations to exempt.
If polygraphs provide benefits to employers in the armored car
industry, it is difficult, if not impossible, to understand why
banks (where 84% of losses are attributed to employee theft) or
the legal gaming industry (where large sums of money change hands
and policing of employees is extremely difficult) are not
entitled to the same benefits. Likewise, if polygraphs are
useful to protect employers and the public from prospective
employees seeking sensitive positions involving the distribution
or sale of controlled substances, they would seem to be equally
useful for screening prospective employees for other sensitive
positions, such as airport security personnel, employees involved
with the production, utilization, and transportation of nuclear
materials and truck drivers transporting munitions and other
hazardous materials.
What all of this indicates is that polygraph regulation is a
complex and emotional issue which poses a number of questions
with no definitive answers. It is an issue which requires
careful balancing of the interests of consumers, employees, and
employers. Possible responses range from relying on the free
market, to licensing polygraph examiners, to banning completely
the use of polygraphs. While all sorts of variations on these
approaches are possible, which precise approach is best for any
given state should be left to the citizens of that state. We see
no reason to forestall the vigorous debate on the issue
continuing to take place within the states.
In fact, those states that have regulated in this field have
adopted widely varying approaches. Nineteen states and the
District of Columbia regulate employers' use of the polygraph;
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three states regulate employers' use of other .honesty testing
devices.' Some of these states completely ban the use of
polygraphs by private employers; others prohibit employers from
requiring employees to take the tests, but allow them to be
administered to employees who volunteer to take them; still
others exempt certain occupations -- ranging from police and
firefighters to jewelers to pharmaceutical companies -- from the
ban. Six of these states additionally regulate polygraph
examiners. Of those states that do not directly regulate
employers' use of polygraphs, thirteen regulate polygraph
examiners -- some requiring licensing, some limiting the types of
questions that can be asked to employees. This diversity, with
the alternatives it provides to citizens some of whom are
vigorously opposed to polygraph use and some who are its adamant
supporters -- and the ability to experiment with different
approaches it allows, is one of the primary reasons the Framers
of our Constitution created a two-tiered system of government,
with much of the regulatory authority remaining with the states.
I would like to conclude my remarks with a quote from
President Reagan. In an address to the National Conference of
State Legislatures on July 30, 1981, he states:
Today federalism is one check that is out of
balance as the diversity of the states has
given way to the uniformity of Washington.
And our task is to restore the constitutional
symmetry between the central government and
the states and to reestablish the freedom and
variety of federalism. In the process, we'll
return the citizen to his rightful place in
the scheme of our democracy and that place is
close to his government. We must never
forget it. It is not the federal government
or the states who retain the power -- the
people retain the power. And I hope that
you'll join me in strengthening the fabric of
federalism. If the federal government is
more responsive to the states, the states
will be more responsive to the people . . .
For the reasons so eloquently articulated by President Reagan, I
urge that this bill not be enacted.
Mr. MARTINEZ. Before we go to Dr. Beary, let me introduce the
two new members of our committee that have joined us. Major
Owens from New York and our newest member to the committee
from Indiana, Jim Jontz. Thank you for joining us.
Mr. JONTZ. Thank you, Mr. Chairman.
Mr. MARTINEZ. And with that, we will go to Dr. Beary.
STATEMENT OF JOHN F. BEARY III, M.D., ASSISTANT DEAN FOR
PLANNING AND DEVELOPMENT, GEORGETOWN UNIVERSITY
SCHOOL OF MEDICINE, ON BEHALF OF THE AMERICAN MEDI-
CAL ASSOCIATION, ACCOMPANIED BY BRUCE BLEHART, DE-
PARTMENT OF FEDERAL LEGISLATION, AMERICAN MEDICAL
ASSOCIATION
Dr. BEARY. Thank you, Mr. Chairman and members of the com-
mittee. I am pleased to be here today representing the AMA. And
with me is Bruce Blehart from the Association's Department of
Federal Legislation.
Mr. Chairman, the AMA does not support the use of the poly-
graph for employment purposes because the polygraph testing and
scoring methods currently used in personnel screening have not
been shown to be valid tests of truthfulness with a high level of
predictability. The Council on Scientific Affairs studied this matter
thoroughly, and we will provide this for the record.
We have heard today that there has been a great increase in the
number of polygraph examinations being administered, about 2
million a year at the present time. This increase in use has arisen
in spite of the fact that the scientific validity underlying the poly-
graph test has not been established. And my comments today will
be directed at the scientific aspects.
I think the most important point to make is that there is no such
machine as a lie detector, and there may never be. The theory is
without scientific foundation. Basically it boils down to that there
is no Pinocchio response. If you lie, your nose does not grow a half
inch longer or some other unique bodily response. This point seems
to have been somewhat obscured in the ten years of debate about
all this. But it is a very important one to focus on.
The polygraph is an excitement detector. It is not a lie detector.
It measures your heart rate and your blood pressure, things physi-
cians are used to looking at every day in the offices and have some
feeling about that. We are certainly comfortable about what that
means and what it does not mean. And what it boils down to, that
a person can be excited for many different reasons other than
lying.
The best that the proponents can say about the polygraph is that
it can provide some evidence of deception, somewhat statistically
better than chance. Now, keep in mind, any of you, if you have got
a quarter in your pockets, you have got a lie detector that is 50 per-
cent accurate because there are only two choices: lying or truth-
telling, heads or tails. So, you cannot get worse than 50 percent
really, and the statistics are somewhat complicated.
But we'll provide for the record an article from Lancet in 1986,
some JAMA reprints, January 1987, and an article from the Amer-
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52
ican Family Physician in March '86. It is better just to look at that
go over it because it is complicated to explain in oral testimony.
Now, just a few comments on the polygraph in the employment
setting. The polygraph is not accurate enough to establish the ulti-
mate proof of guilt or innocence in a criminal trial. Its use as a
condition of employment is even less credible, and Mr. Williams
clearly understands the statistics behind this. And you can view it
as sort of having an inaccurate fire alarm. And Dr. Phillips who
was involved in writing the January '87 AMA article had this to
say about it. And I think this analogy lays it out rather well.
"This suggests that the polygraph is as dependable as a fire
alarm that turns in nine false alarms for every true warning of a
fire. However, when fire fighters arrive on the scene, they can rap-
idly determine if a building is on fire or not and determine wheth-
er the alarm is true or false." Unfortunately, the accused person
who has fallen victim to a false alarm from the polygraph has no
equally simple way to prove that he or she is really telling the
truth. If they knew that, they would not be given the test, of
course.
What this means in practice is that a large number of honest
people will continue to be unjustly implicated as liars, criminals
and traders as long as the polygraph continues to be used and
trusted as a lie detector.
So, I think the AMA Council's report?the most important thrust
they put on that was that there is no such machine as a lie detec-
tor, and that its use for screening is very, very poorly founded. And
the Lancet article speaks more about the specifics of the false posi-
tives, the specifics of the false negatives, what prevalence, sensitivi-
ty, specificity all that means. But it is not worth spending more
time at the moment.
In summary, the AMA Council for Scientific Affairs has deep
concerns about this subject, encourages that good science be ap-
plied to this important area of public policy. And we stand ready to
answer any questions you may have.
Mr. MARTINEZ. Thank you, Dr. Beary.
[The prepared statement of Dr. John F. Beary follows:]
53
STATEMENT
of the
AMERICAN MEDICAL ASSOCIATION
to the
Subcommittee on Employment Opportunities
Committee on Education and Labor
U. S. House of Representatives
Presented by
John F. Beary III, M.D.
RE: Use of Polygraph Examinations in Employment
March 5, 1987
Mr. Chairman and Members of the Committee:
My name is John F. Beary III, M.D., and I am Assistant Dean for
Planning and Development, Georgetown University School of Medicine. With
me is Bruce Blehart of the Association's Department of Federal
Legislation.
I am pleased to appear before this Subcommittee to share with you the
American Medical Association's concerns about the use of polygraph
testing in the employment setting.
Mr. Chairman, the AMA does not support the use of the polygraph for
employment purposes in private industry or federal agencies because the
polygraph testing and scoring methods currently used in personnel
screening have not been shown to be valid tests of truthfulness with a
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54 I 55
-2-
high level of predictability. This position and testimony are based on a
study by the AMA's Council on Scientific Affairs. (A copy of the full
report is attached.)
Background and Present Use
The criminal justice system has long refused to recognize the
validity of polygraph testing. Since the landmark decision of Frye v.
United States in 1923, [293 F. 1013 (D.C. Cir. 1923)] polygraph test
results have not been admissible as evidence to prove guilt or innocence
in a criminal trial. Nonetheless, outside the courtroom, where a false
determination of an individual's truthfulness may be just as damaging as
an unjust judicial decision, our society is witnessing a rapidly growing
use of the polygraph to test truthfulness.
Ten years ago, an estimated 250,000 to 400,000 polygraph examinations
were being administered a year. In 1983, the American Civil Liberties
Union estimated that 1 million tests a year were being given. In the
federal agencies alone, over 23,000 polygraph tests have been performed.
However, this great increase in the polygraph's use has arisen in spite
of the fact that the scientific validity underlying the polygraph test
has not been established.
Evidence of Polygraph Inaccuracy
The best that can be said about the polygraph is that it can provide
evidence of deception or honesty in a percentage of people that is
statistically somewhat better than if chance judgments were made.
Studies indicate, however, that polygraph tests result in enough
false-positive and false-negative findings of truthfulness that their
- 3 -
value should be thought of as not much better than the probabilities of
chance in any setting -- criminal or employment.
Statistics show repeatedly that the innocent subject is much less
likely to be found innocent than the guilty subject is to be found guilty
in the criminal setting. In 1983, the Office of Technology Assessment
(OTA) published a review of ten studies of polygraph testing in which the
range of values for the percentages of correct or incorrect decisions of
guilt or innocence by the examiners varied widely. In one recent study,
91.5% of guilty but only 29% of innocent subjects were correctly
identified. In a more recent study, 75.1% of guilty and 63% of innocent
determinations were accurate.
Examining the validity of polygraph testing is itself difficult. A
primary difficulty in properly assessing the validity and reliability of
polygraph testing is that the "ground truth" being sought in the testing
is not always known. Although polygraph instrumentatiOn is rather
standard, another difficulty is that the structuring and the substance of
the questions (depending on the purpose of the test) are central to the
effectiveness of polygraph tests and require great expertise on the part
of the examiners. These variables, many of which are subjective in
nature, often are difficult to quantify.
Also, the skill, training, and personal abilities of the examiner,
again largely subjective variables, are at issue. In one study, ten
trained polygraph examiners were asked to make judgments on polygraph
records of actual criminal suspects without any interaction with the
subjects. Of the 1120 truth/deception judgments made by the ten
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el I
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examiners, only 63.1% were correct, 35.7% were wrong, and 1.2% were
inconclusive. The examiners were also asked to score the level of
confidence in the judgment made in'each case. Their confidence was
higher for judgments of deception than for truthful decisions.
Polygraph in the Employment Setting
The polygraph test is not accurate enough to establish the ultimate
proof of guilt or innocence in a criminal trial. Its use as a condition
of employment is even less credible, as the few studies done concerning
employment testing indicate. In fact, because questioning in the
employment setting deals with more minor issues with the consequences of
failure less serious than in a criminal case, it could be anticipated
that the physiologic arousal of the subject might be less impressive and
the deception of the examiner even easier than in a criminal case.
Most importantly, an unacceptable percentage of "innocent" persons
may be labeled as "deceptive" in a polygraph screening situation in which
most of those screened were truthful. It has been estimated that, even
if the results of the polygraph testing were 95% valid and the predictive
value was 50%, in a screened population of 1000 in which 5% were guilty
of some transgression, 47 of the 50 guilty people would be apprehended
but 47 innocent people would also be labeled as guilty.
Thus far, studies on the polygraph testing techniques used in the
employment setting are few, and their scientific validity is certainly no
better than in the criminal investigation. In five analogue studies of
one common technique used in employment testing, the correct
determination of guilt ranged from 60% to 87% and of innocence from 42%
- 5 -
to 91%. In a review of another technique, the accurate determination of
guilt was 60% to 95% and of innocence was 80% to 100%. From these
results, it is fair to conclude that the kinds of techniques used in the
employment setting are plagued with the same problem of false
identification of innocent subjects as in the criminal setting. However,
the consequences could be far more damaging. In comparison to the
criminal setting where decisions on probable cause and other evidentiary
considerations have probably seen made before a polygraph test is given,
employee subjects are typically not so narrowly selected. There is a far
greater likelihood that innocent subjects will be falsely identified in
the employment setting.
Conclusion
Mr. Chairman, it is well established that the polygraph can recognize
guilty subjects with an accuracy of between 60% and 95% in the criminal
setting, which is somewhat better than chance. However, there is a
significant rate of false-positive and false-negative determinations of
deception so that the polygraph test should never be the sole arbiter of
guilt or innocence in any setting.
The use of the polygraph test in applications other than criminal
investigation, most importantly in the employment setting, has not been
adequately studied. In those few studies reported on noncriminal
subjects, a wide range of false-positive and false-negative results has
been reported, which is similar to that found in the criminal setting.
Those results suggest too low a predictability for serious consideration
of the polygraph test's use in the employment setting. Not only is there
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58
-6-
a significant false-positive rate, which would misclassify some innocent,
truthful subjects as deceptive, but many countermeasures have been used
-- sometimes with reproducible success -- to fool the polygraph examiner.
Unless polygraph testing and its scoring as currently used in
personnel screening can be shown to be valid with a high level of
predictability, the AMA does not support the use of the polygraph in
industry or in federal agencies as a preemployment test. The AMA
recommends that research to a much greater extent than is now planned
should be supported and conducted if testing for employment purposes
(including security clearances) is to be considered.
Mr. Chairman, we would be pleased to address any questions the
Committee may have.
2930p
Council Report
Polygraph
Counci on Scientific Affairs
59
The American Medical Association (AMA) Council on Scientific Affairs has
reviewed the data on the validity and accuracy of polygraph testing as it is
applied today. The use of the control question technique in criminal cases is
time honored and has seen much scientific study. It is established that
classification of guilty can be made with 75% to 97% accuracy, but the rate of
false-positives Is often sufficiently high to preclude use of this teat as the sole
arbiter of guilt or innocence. TNs does not preclude using the polygraph tee in
criminal investigations as evidence or as another source of information to guide
the investigation with full appreciation of the limitations in its use. Applcatbn of
the polygraph In personnel screening, although gaining in popiarity, has not
been adequately validated. The few Mated studies that have been performed
suggest no greater accuracy for the types of testing done for this purpose than
for the control question polygraph testing used in criminal cases. The effect of
polygraph teeing to deter theft and fraud associated with employment has
never been measured, nor has its impact on employee morale and productivity
been determined. Much more serious research needs to be done before the
polygraph should be generally accepted for this purpose.
(JAMA 19136;151t1176.1115)
THE POLYGRAPH is a combination
of instruments that records a subject's
blood pressure, pulse, respirations, and
galvanic skin resistance while a series
of questions are posed. In a pretest
process, the examiner asks a series of
questions to evaluate the voluntary
subject (suspect), obtains an informed
consent, derives necessary background
information, and establishes the kind
of relationship that facilitates the test
by putting the subject at ease and
stabilising the parameters being mea-
sured. Finally, the formal questioning
is begun. The subject is given a series
of carefully formulated questions: the
relevant questions dealing with the
issue at hand, irrelevant questions, and
control questions. The latter are
From the Council on Scientific Affair American
Molar Anociellort Cheap,.
Report 0 of lb Cromol .0 001.01100 ban. adobe]
OY 0.. N.. Of Delbert of the Aterican Medical
beocieton .1 0'? 19/34 Mean Lembo}
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as a standard of medical care. Strident. of brier
care are clstanninati 00 0* baaa ol al of lb facts and
abarberree irovemd in an reeviCkol ease arid are
orkect to change as =enter knowlecbt end taterrolo-
fie advance anti patterns of prectim mob. This moat
reflects the views al Wendrc warts ard marts h the
abler Pemba as 01 Deornber 1964.
Recorit rowers to Comb co batik Affair
imbibe Medreal AssodakOn. 535 N Dearborn St
Climax, IL 60610 breams. Hendee. PhD).
1172 JAMA. 5004 5, 1986?Vol 256, No. 9
designed to create the probability that
the subject will lie or at least be unsure
of the truth of his answer. By compar-
ing the magnitude of responses to
relevant and control questions with
those to irrelevant questions, the
examiner makes an interpretation on
the truth, falsity, or inconclusive
nature of each response. This is called
the "control question technique."
In other applications Oil federal
security and preemployment testing),
control questions, relevant/irrelevant
questions, or the techniques of con-
cealed information, guilty knowledge,
and peak of tension tests are employed.
In each of these last techniques, ques-
tions are targeted with a different
intention than in the control question
technique. Thus, although instrumen-
tation is rather - standard, it is the
structuring and the substance of the
questions, depending upon the purpose
of the test, that require great expertise
and that are central to the effective-
ness of the tests. The control question
technique has been used for criminal
testing and has seen the greatest
study.
These "lie detector" testa have been
offered in court as evidence since the
1920s. However, in 1923 in the land-
mark case of Frye vs United States (293
F 1013 [DC Cir 1923]), it was stated
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that "the systolic blood pressure decep-
tion test has not yet gained such
standing and scientific recognition
among physiological and psychological
authorities as would justify the courts
In admitting expert testimony deduced
from the discovery, developments, and
experiments thus far made." Even
after 60 years, this doctrine is still
quoted widely in the courts. However,
employers are increasing their use of
the polygraph to screen prospective
employees and workers to determine
union sympathies and other attitudes.
Even ten years ago, 250 000 to 400 000
polygraph tests were being given per
year; in 1983, the American Civil Liber-
ties Union estimated that 1 million
tests a year were being performed. In
1982, there were an estimated 3000
polygraph examiners in the United
States, and in the federal agencies
alone, 23 000 polygraph tests have
been performed.'
A National Security Decision Di-
rective 84 (presidential directive,
March 11, 1981) authorized executive
agencies and departments to require
that employees take a polygraph test in
investigation of "leaks" of classified
information to the media. On Oct 19,
1983, the Department of Justice an-
nounced that administration policy
would also permit government-wide
polygraph use for preemployment
clearance and other screening of em-
ployees, and the Department of De-
fense has authorized its use in security
screening of employees with access to
highly sensitive material. Nevertheless,
it is important to recognize that, even
though such application may be helpful
/Mote, of the Obeid on Sciarrle Affars *0 05
lobar Jan FL earprtkil3. %Webb. VicaChermani
beano Bertork Caterndipt. Mies. Abdul Student
flaprebreativei George kr &Oben, ke, St Lour E.
Harmy Ester Jr. No. Dorhern. NC. Ira R. Friedlenter.
ke3. Oboe?. Reaident Recreeentativei John It Morey,
No. Loa Model Chairman: Wigan C. Scott MD,
Tocsorr. Jobb 14. Scorn. WC. Chicago; James B. Snow
Jr. MO. bidet:ter Ridard M Sternsbar. MD. 11.00.
00* Jack P Strab AC, New Crimnsi. Reny N
9bOrrr, KC, Bateman: WOW R Hendee. PhD.
Secretary brim 1" LC-Gorey, PhD, Fibbed Seam
tam 6,1 litherd J. bros. IC, Pest Sbretry (fibnarl
moor).
PONOMPh?crtionell on Scientific Affairs
to the agency, the scientific validity
underlying the polygraph test blur not
yet been established for these pur-
poses.
VAUDITY OF POLYGRAM .
? There is a large amount of experi-
mental psychological literature that
examines many physiologic variables
of subjects who, under experimental
conditions, are asked about ? mock
crime they may have committed or
about certain knowledge they may
have been given and told to deny. This
type of controlled analogue study may
be very important in studying the
reproducibility of test methods, exam-
ining the parameters most sensitive to
deception, and generally defining the
limits of the method; however, such
studies can only provide a weak simu-
lation of the real-life situation in which
perhaps less scientifically motivated
examiners are testing people who have
been accused of serious crimes. Experi-
enced examiners have claimed that a
subject's behavioral cues can often
enhance the likelihood of recognition of
a deception. It has been shown in the
experimentally controlled mock crime
situation that an attentive examiner
can detect such cues with a frequency
that statistically is significantly higher
in the untruthful group than in the
truthful
The difficulty in properly assessing
the validity and reliability of polygra-
phy is partly because the "ground
truth" is not always known, on the one
hand, and the skill and training of the
examiner may be at issue on the other.
In one interesting study, field-trained
polygraph examiners were asked to
make blind judgments on polygraph
records of 112 criminal suspects drawn
from verified and unverified previous
police investigations.' Half of the
records had been verified tie, ground
truth was known through a confes-
sion); in the other half, the suspect had
finally been judged truthful or decep-
tive by the original polygraph examin-
- er. Cases were also divided between
crimes against persons and crimes
against property and between truthful
and deceptive; thus, 14 seta of poly-
graph records were examined in each
of eight categories. It is emphasized
that only the records were examined;
the ten examiners had no. interaction
with the subjects themselves.
In total, ten examiners made 1120
truth/deception judgments. Of these,
63.1% were correct, 1.2% were incon-
clusive, and 35.7% were wrong. There
were no significant differences for veri-
fied or unverified records, for crimes
against persons or property, or for
JAMA, Sept 5. 1986?Vol 256, No. 9
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60
evaluations by experienced and leas
experienced investigators. The examin-
ers were asked to aeons the level of
their confidence in the judgment made
In each case. It was itigiter for decep-
tion than for truthful decisions. They
also made more false-positive errors
and fewer false-negative errors in
records based on crimes against per-
sons than on those against property,
which suggests that crimes against
persons may elicit a stronger physio-
logic reaction. In this study, true-
positive judgments of deception aver-
aged about 77% accurate, whereas
true-negative judgments (against de-
ception) were only 51% accurate.
The Office of Technology Assess-
ment (OTA) review considered the out-
come of validity measurements in ten
such field studies that met their mini-
mum criteria for scientific rigor a
reasonable basis for "ground truth," is,
a confession or the judicial outcome,
was known. The range of values for the
percentages of correct or incorrect
decisions of guilt or innocence varied
widely. In one recent study, 91.5% of
guilty but only 23% of innocent sub-
jects were correctly identified (52.9%
false-positives and 17.6% inconclu-
sive)! In a more recent study, 75.1% of
guilty and 63% of innocent determina-
tions were accurate, the remainder
being false-positive guilty (.0%) and
innocent (37%) decisions! Thus, it can
be concluded that, although the poly-
graph can provide evidence for decep-
tion or honesty in a percentage of
people that is statistically better than
chance, there are enough false-posi-
tives and false-negatives to make many
applications, perhaps even in criminal
cases, of dubious value.
PERSONNEL SCREENING AND
PUBLIC POLICY USES
It is obvious that the polygraph is
not yet sufficiently accurate to estab-
lish the ultimate proof of guilt or
innocence in a criminal trial Its use as
a condition of employment to establish
national security clearance, determine
union sympathies, or detect employees
guilty of theft, breach of confidence, or
other misconduct has become wide-
spread; however, the few studies that
have been done suggest that the tech-
niques employed are no more accurate
than the control question method dis-
cussed above. In fact, because the ques-
tioning deals with more minor issues
and the consequence of failure is less
serious than in a criminal case, it could
be anticipated that the physiologic
arousal of the sympathetic system
might be less impressive and the decep-
tion of the examiner even easier than
In a criminal case. Furthermore, the
application of the polygraph test to a
group, meet of whom are certainly
innocent, may frighten some into more
careful and truthful answers but will
also lead to ? low level of predictability
with a large number of false-positive
results,
The erosion of employee morale and
the risk of employer liability may not
be worth the possible benefits of uncov-
ering a disloyal employee. Further-
more, an unacceptable percentage of
"innocent" persons may be labeled as
"deceptive" in ? polygraph screening
situation in which most of those
screened were truthful It has been
estimated that, even if the results of
the polygraph testing were 95% valid
and the predictive value was 50%, in a
screened population of 1000 in which
5% were guilty of some transgression,
47 of the 50 guilty people would be
apprehended but 47 innocent people
would also be labeled as guilty.' These
calculations, although based on reason-
able estimates from the experience in
the field with criminal testing, may be
too optimistic. Most potential employ-
ees are not under the same duress as a
criminal on trial and, thus far, studies
on the field techniques used in such
applications are few and their scientif-
ic validity is no better than in the
criminal investigation.
There have been no adequate field
trials of the techniques now used for
personnel screening, although analogue
studies of the validity of some of the
techniques used have been performed.
The zone of comparison test and the
modified general question test are
based on the same premises and share
the underlying rationale of the control
question technique. Another format of
questioning includes concealed infor-
mation tests to detect whether the
subject has information about a crime
that only a guilty subject would have.
It may take the form of a guilty
knowledge test (GET) or the peak of
tension (POT) test.
In the GET, there is a larger series
of questions that may be of the multi-
ple-choice type as opposed to "yes" and
"no" or true and false, and they focus
on specific details known only to the
perpetrator of the guilty act. In the
POT test, five to nine nearly identical
questions are asked to which the sub
jest is instructed to answer "no." The
critical question is placed in the middle
of the series, so that the physiologic
response will build opts a peak at that
point (if there is guilty knowledge) and
then fall back down again as the
questioning continues.
Analogue studies on students or oth-
Polygraph?Council on Scientific Affairs 1173
er experimental subjects under con-
trolled conditions have been reviewed.'
In five studies of control question
testing the correct determination of
guilt ranged from 60% to 87% and of
innocence from 42% to 91%. Inconclu-
sive results ranged from 5% to 44%,
and false-negative (incorrect) results
for the innocent ranged from 2% to
17% (average). In a review of five of
the GET analogue studies (which were
not truly comparable in design), the
accurate determination of guilt was
60% to 96% and of innocence was 80%
to 100%. In these studies, an incorrect
classification of guilty was made in 8%
to 40% of subjects (average, 20%) and
misclassification of the innocent as
guilty averaged about 5%. Thus, it is
fair to conclude that the concealed
information testa are plagued, if per-
haps less severely, with the same prob-
lem of false identification of innocent
subjects.
The only analogue study that comes
close to applying the control question
technique tested military intelligence
Personnel in Preemployment examina-
tions.:9 Volunteers from the intelligence
community were asked to respond to a
series of questions on date and place of
birth, educational history, employ-
ment, and residence information. Half
of the subjects were told to give certain
false information and were offered a
reward if they could fool the examiner.
Using a zone of comparison technique,
the greatest control method, and the
relevant/irrelevant technique, the
identification of truthful subjects was
accurate in 62% to 77% and incorrect
is 15% to 23%; in 4% to 19%, the
results were inconclusive. Thus, it con
be concluded that a great variation in
accuracy of classification and a sub
stantial miseisceitication of truthful
subjects occur regardless of the tech-
nique employed.
FACTORS AFFECTING
POLYGRAPH VAUDITY
Because of the relatively high inci-
dence of false-poaitive results, many
students of polygraphy have tried to
improve its accuracy by allowing for, or
even eliminating, certain factors that
have been shown to impact upon the
test's validity. Others have studied
countermeasures that might be suc-
cessful in helping the suspect to defeat
the test system. These factors may be
broken down into operator characteris-
tics, test subject characteristics, the
setting for the test, and external influ-
ences. These have been reviewed at
length in the OTA report; thus, only
selected factors are listed here for the
sake of brevity.
1174 JAMA. Sept 5, 1966?Vol a& NO. 9
Operator Chiracteristics
Experienee.?In one study, awns-
manta nude by experienced operators
were shown to have a higher validity
(91.4%) than those of interns being
trained in the questioning technique
('rt.5%),,
Type of Training.?Objective scor-
ing techniques (perhaps by computer)
vs subjective analysis of responses need
to be studied further to determine the
moat effectivensadality.
Selection of Polygraph Trainees.?
This factor may play a role not yet
identified.
Subfect CharecterisScs
Gender.?Most testing has been
done in midst there are few compari-
sons that might establish applicability
of findings to females.
Psychopsthy.?Guilty psychopaths
may escape detection because they are
not concerned about their misdeed;
however, this has not been convinc-
ingly established by experimental or
field trial.
Intelligence.?This factor may play
a role in the subject's motivation to
deceive or in enhancing the probability
of detection, but requires further
study.
Bank and Group Differences.?
These may affect validity but have not
been studied; however, the impact of
ethnic biases on the subjective inter-
pretations made by the examiner can-
not be easily excluded.
Autonomic Lability.?The possibili-
ty that some individuals may be sub-
ject to easy autonomic arousal and
others to late arousal seems very likely,
but the extent to which this may
mislead examiners requires farther
study. It appears that changes in ecto-
dermal resistance may be less subject
to individual variation than cardiores-
piratory responses.
The Test Setting
Belief in the Test,?How much cre-
dence an individual being tested places
on the polygraph method may deter-
mine his decision to try to "beat the
machine."
Threat of Punishment?The more
certain that a guilty response will
bring serious consequences, the more
likely that the outcome is valid. This is
the main hypothesis that is being
exploited in each polygraph study and
may explain some differences between
field and analogue studies.
Instrumental Activity.?There is
experimental evidence that subjects
aware of being recorded have more
Intense responses to relevant questions,
but not to control quartions, than they
did when they thought they were not
being recorded.'
Test Ineation.?Although location
of the test is generally felt to be very
important, the impact upon validity of
whether the test is administered in a
special facility or in a room has not
been determined.
Extraneous Factors
Physical Activity.?Teasing of mus-
cles was shown to reduce the likelihood
of detection from 75% to 10% in one
experiment! Other investigators have
not always confirmed this, but most
have shown that an inconclusive result
is easily provoked by such a counter-
measure.
Drugs,?Meprobamate has been
shown to suppress autonomic activity
and facilitate deception,' although
studies utilizing diazepam or methyl-
phenidate have not borne this out as a
general finding for all antianxiety
agents. 0-Blockade has resulted in an
increase in the rate of "inconclusive"
tests, even though the overall error
rate was not affected. Much more study
of the effects of caffeine, alcohol, and
psychoactive drags is needed.
Hypnosis/Biofeedback?In one iso-
lated study, both hypnosis and biofeed-
back groups reduced detectability of
deception (after training) to less than
that in a control group.' However,
other studies have suggested that hyp-
nosis is not an effective countermea-
sure to prevent detection.
Mintrset?Trained individuals yrho
are familiar with the polygraph tech-
nique should be able to differentiate
between relevant, irrelevant, and con-
trol questions. This would improve the
possibility of 'beating the polygraph
test" through cognitive countermea-
sures. This possibility has not been
adequately explored, although, in one
preliminary report, subjects who have
been coached and tested repeatedly are
better able to avoid detection."
Efforts to develop an objective com-
puterized scoring system may have
merit, but, in the opinion of most
examiners, the subjective input of the
examiner in the formulation of ques-
tions and in their application remains
the critical point of the test as it is
used today. Use of the control question
technique has been well studied in
criminal investigations, and its ability
to detect guilt in crimes against person
or property is fairly well defined. Nev-
ertheless, false-positive and false-nega-
tive results suggest that one must
always be left with some doubt in the
final determination of guilt or inns-
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P0917ap5?Cauncil So.It. Affairs
cence. When the application is changed
to preemployment screening or a somr-
ity clearance, there is substantial evi-
dence that results will not be scientifi-
cally acceptable. This is partly because
of the purposes of the test, which
require significant variations in the
questioning techniques used?zone of
comparison, POT test, and GET. These
techniques have not been studied suffi-
ciently in the field to determine the
true incidence of recognition and pre-
dictability of the test results and the
success of recommended countermea-
sure&
SUMMARY
The polygraph instrument records a
subject's blood pressure, pulse, respira-
tion, and galvanic skin resistance. In a
polygraph test, the variations in these
parameters are recorded as the subject
responds to a series of questions that
are relevant or irrelevant to a specific
issue or action under review or are
control questions. When the relevant
questions are focused on an alleged
criminal act, this becomes the control
question technique that is used in
examination of a suspect criminal. It is
well established that the polygraph can
recognize guilty suspects with an accu-
racy (60% to 95%) that is better than
chance. However, there is a significant
rate of false-positive and false-negative
determinations of deception so that the
polygraph test alone can never be the
sole arbiter of guilt or innocence. So
far, this has been largely appreciated
by the courts.
Criminal investigation has often
benefited from polygraph usage be-
cause the investigator can focus on the
incident in question, using it as the
basis for selecting relevant and control
questions in the application of the test,
in the full knowledge that the detection
of deception will not be absolutely
accurate. Sometimes the simple threat
of a "lie detector test" may facilitate
the obtaining of a confession. At other
times, the course of further investiga-
tion may be more easily plotted.
The use of the polygraph test in
applications other than criminal inves-
tigation?for security clearance,
preemployment screening, determina-
tion of paternity, periodic testing for
thievery or disloyalty, cheating on
examinations, and the like?has never
been adequately studied. In those few
studies of the validity of the testing
technique that have been reported on
noncriminal subjects (using modifica-
tions of control question technique), a
wide range of false-positive and false-
negative mulls, similar to that found
in criminal investigations, has been
Jidda, Sept 5. 1986?Vol 256. No. 9
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62
reported and suggests too low a pre-
dictability for serious consideration of
this application.
Aside from issues of invasion of
privacy, self-incrimination, and im-
pairment of personal dignity, it must
be conceded that the polygraph test is
not yet reliable enough to be the sole
arbiter of malt or innocence in a
criminal tria' L It hu not been shown to
be any more aCcurate when applied to
personnel screening for governmental
or private employers. Not only ia there
a significant false-positive rate, which
would misclassify some innocent,
truthful subjects as deceptive, but
many countermeasures have been
used?sometimes with reproducible
success?to fool the polygraph examin-
er. The recent review by the OTA
concluded "that there is only limited
scientific evidence for establishing the
validity of polygraph testing. Even
where the evidence seems to indicate
that polygraph testing detects decep-
tive subjects better than chance . .
significant error rates are possible, and
examiner and examinee differences
and the use of countermeasures may
further affect validity.'t
CONCLUSIONS AND
RECOMMENDATIONS
The Council offers the following con-
clusions
L In considering the scientific valid-
ity of polygraphy, one must consider
the purpose of the test and the type of
questioning technique employed. Each
application must be examined individu-
ally.
2. Although the control question
technique has been carefully studied in
the context of a criminal investigation,
where its limitations have been fairly
well defined, the validity of this or
other more commonly used techniques
for personnel screening has not been
adequately studied.
3. Those studies that may have some
analogy to the use of the polygraph in
personnel screening have demon-
strated similar high levels of false-
negative and false-poeitive classifica-
tions of innocent and guilty subjects
that impair the use of the polygraph in
criminal investigation.
4. The success of several counter-
measures to prevent detection of decep-
tion has been legendary, yet serious
scientific study of such countermea-
sures, such as tensing certain muscle
groups, has been quite limited.
5. The possible savings in control of
employee fraud and theft that might be
accomplished by polygraph screening
has not been examined in any scientifi-
cally valid study, nor has any investi-
gator adequately examined the possible
impact of polygraph screening on
employee morale and productivity.
6. In screening tests applied to a
large work population, predictability
depends on the incidence of true-
positive test results in that population
but also on the false-positive and false-
negative test results. This means that
even with a test of 95% accuracy in a
population containing few guilty sub-
jects, an unacceptable number of truly
negative (truthful) subjects can be mis-
classified as positive (deceptive).
The Council on Scientific Affairs, in
view of these conclusions, makes the
following recommendations
1. Until polygraph testing and its
scoring as currently used in personnel
screening can be shown tube valid with
a high level of predictability, the AMA
should not support the use of the
polygraph in industry or . in federal
agencies as a preemployment test.
2. The AMA should also recommend
that, when any federal agencies believe
that such polygraph screening tests are
both ethically acceptable and adminis-
tratively necessary for security clear-
ance, much more research than is now
planned on this specific application
should be supported and conducted.
References
1. Sea,!, Dougherty D. Cron T. et at Seirittiffe
Validity qfPasempit Testke A Research Rewire
nod Evaluation US Coamess tralmical memoran-
dum OTA-TM-H-11. Office of Technology Mans-
runt. November 196a.
2. Hcmath Fr Effect of selected variables on
Interpretation of paygraph record. 3 Appl Pep-
e/rot 1971521E74X
3. Berland GD, Raskin DC Validity arid Reliabdi-
IS Of Potwar* Mandeations I. Criminal
poets, report 76.1. contract 75.N1-59.0001>National
[manna of Justice, 1976.
4. Merumitts 8. Scuds a On the fallibility at lie
detection. Law Sae Rot, 19=754404.
5. garland CD, and by 0.0,1, Dougherty D,
Com 7, it a/ Scent& Vain, of PatensCh
Tense- A Raman Review and Esellianat US
Congress urimical memorandum OTA.1'M-11.15.
Offen of Teduadoey Aasenatent? Narember 1963.
6. Horvath FS, Rad JR Reliability of polygraph
maminer clisgrans of truth or deception I Cram
Late Crinisol Palley Sol 1711432276-2411.
1. Weld WM. Orne MT. Mean EG: Socialisation.
awarmen and the elactrodareal empanel to
deception and self-discionare..f Abloom Psyched
1919581163.6011.
ICnbis 576 Shelia in Lie Detection Computer
Frourbilits, contract AP-304602/-2= Mien
5534, Sninebn. To. Armed &mime "'ethnical
Intern:attar Swag 1962.
9. Weld Wig, Onn EC. Cook MR. 'eat Menreno-
mate redone amoral of physiological detection
of deception Scians191312.1211-73.
10. Corcoran HT. Lewis MD, Garver 1111 Siofeed-
baa conditioned gamic eta mama= and bYP-
notie suppression of arousal: A pilot study of their
relation to deception J Forman Sci 1411112155-
162.
11. Romer LI, Raskin IX Kircher SC Effects of
information and practice an damn= of deception.
abstracted See Pereirorweiol Res 1979:16197-
198.
PaYOMPh?Gounci on Scientific Affairs 1 175
63
Mr. MARTINEZ. Mr. Katkin?
STATEMENT OF EDWARD S. !CATKIN, PH.D., CHAIR, DEPARTMENT
OF PSYCHOLOGY, STATE UNIVERSITY OF NEW YORK AT STON
EYBROOK, ON BEHALF OF THE AMERICAN PSYCHOLOGICAL
ASSOCIATION
Mr. KATKIN. Thank you, Mr. Chairman, members of the commit-
tee.
On behalf of the American Psychological Association, an organi-
zation representing 870,000 psychologists who work as researchers
and practitioners, I am pleased to appear in support of H.R. 1212. I
am currently a professor of psychology at the State University of
New York at Stoneybrook, and also the Chairman of Executive
Committee of the Council of Graduate Departments of Psychology,
an organization that represents virtually all of the accredited psy-
chology graduate degree granting programs in the United States.
In addition, in 1983 I was the chairman of the Scientific Advisory
Panel that oversaw the preparation of the congressional OTA
report on the validity of polygraph testing.
The American Psychological Association supports the bill to pro-
hibit the use by private employers of polygraph test for employ-
ment screening. In January 1986 our governing body, the Council
of Representatives, passed a resolution which addressed the issued
raised by this legislation. The Council of the APA expressed great
reservations about the use of polygraph tests to test deception. The
council noted that "despite many years of development of the poly-
graph, the scientific evidence is still unsatisfactory for the validity
of psychophysiological indicators to infer deceptive behavior. Such
evidence is particularly poor concerning the polygraph use in em-
ployment screening."
The heart of psychologists' concerns about polygraphy is the fact
that it is a psychological test, yet its use does not conform to ac-
cepted standards for educational and psychological testing. Accord-
ing to the American Psychological Association's published test
standards, tests should only be used when sufficient data on their
reliability and validity for a particular population exist. There are
no data for the validity of polygraph tests in employment screen-
ing. In such cases, polygraph tests are typically use to screen large
numbers of employees for their honesty. Other than anecdotal
data, we have no basis to assume such tests to valid. None of the
fundamental test validity criteria are met by such applications of
psychophysiological measurement techniques.
Furthermore, as Dr. Beary pointed out, there is no evidence that
any physiological response pattern is associated uniquely with de-
ception. As such, it is unlikely that a test constructed in the form
of present employment screening polygraph tests can be validated.
Although there is certainly legitimate research interest in poly-
graph testing, and there may be applications of such testing that
can be validated, in the absence of such data, psychologists are
ethically prohibited from employing such test methods.
Now, one major problem with polygraph testing in employment
situations is that only a relatively small number of tested individ-
uals are likely, to be deceptive. Most American workers are honest
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