Lie Detector Getting Its Day in O.C. Court

By DAVAN MAHARAJ

July 13, 1997 12 AM PT

TIMES STAFF WRITER

SANTA ANA —

The CIA has been known to catch spies by strapping them to polygraph machines.

The FBI routinely nabs crooks--and clears innocent people--in the same fashion.

And if California courts allowed it, jurors in O.J. Simpson’s criminal trial would have heard that the Hall of Famer failed a polygraph examination after his arrest in the killings of Nicole Brown Simpson and Ronald Goldman.

Frank Javier Cordoba said he might have been spared a drug conviction and a 22-year prison sentence if jurors could have been told that he passed a lie detector test after his arrest for cocaine possession.

But at his trial, a federal judge in Santa Ana said his jury could hear no such evidence, citing a blanket rule barring polygraph evidence from federal courts in nine Western states.

In a recent landmark decision, however, the U.S. 9th Circuit Court of Appeals overturned Cordoba’s conviction, saying that the automatic and total exclusion of polygraph evidence was no longer proper.

The San Francisco appeals court cited a 1993 Supreme Court decision that loosened the rules judges rely on for deciding what scientific evidence to admit in trials. That decision has already led to the scattered use of polygraph evidence in federal courts elsewhere.

U.S. District Judge Gary L. Taylor in Santa Ana could decide as early as Wednesday whether polygraph results might have made a difference in Cordoba’s first trial, and whether he deserves a new trial.

The Santa Ana case has contributed to a growing national debate about whether polygraph evidence should be admissible in trials.

Even though they use lie detectors for their own purposes, the FBI and federal prosecutors insist polygraph evidence should be kept out.

James K. Murphy, the FBI’s chief polygraph examiner, came to Santa Ana last week to urge Taylor to deny Cordoba a new trial. He testified that the polygraph “technique lends itself to misuses and abuses.”

“While polygraphy has scientific underpinnings, it is not a science,” Murphy said. “[It] is an art, a discipline and, to some, a business.”

But some of the nation’s top polygraph experts say lie detectors can--in some cases--help judges and juries distinguish the innocent from the guilty.

With modern equipment, a properly conducted polygraph test is reliable 90% of the time, said David Raskin, a former University of Utah professor who is considered the nation’s preeminent polygraph expert. Raskin was a witness for Cordoba.

Raskin and Charles W. Daniels, a former law professor and now practicing attorney in Albuquerque, N.M., said the government was being hypocritical in attempting to keep polygraphs out of court.

“It’s OK for the government to use [polygraphs] to terminate people’s careers, or to arrest others and place them in jail,” Daniels said, “but to say an accused person shouldn’t be able to use the same test to prove his innocence . . . is absolutely a double standard.”

Whatever the outcome of the Cordoba case, law experts say, polygraph evidence is steadily gaining acceptance in courts across the nation.

James R. McCall, a professor at the University of California’s Hastings College of Law in San Francisco, said that during the past few years, polygraph evidence has been admitted in courts elsewhere in the country “on a previously inconceived of scale, and there’s every indication that this is going to continue.

“If perfected through further research, polygraphs will become a staple of American litigation,” said McCall, whose law review articles on polygraph evidence are frequently cited in court briefs.

McCall said the U.S. Supreme Court will confront the issue head on later this year when it considers the legality of a presidential decree barring polygraph evidence from military trials.

Cordoba’s attorney, Deputy Federal Public Defender Craig Wilke, said in court papers that polygraph evidence was crucial to his client’s defense because Cordoba’s credibility was the central issue in the case.

In January 1995, a police officer stopped a Plymouth van that Cordoba was driving from Santa Ana to Carson. Inside the vehicle were boxes and duffel bags stuffed with more than 650 pounds of cocaine.

At his trial some months later, Cordoba, a 50-year-old father of four from Miami, testified that he thought he was simply helping a friend transport some personal belongings.

Wilke arranged for a lie detector test that was administered by a private polygraph examiner, former U.S. Secret Service agent Joseph Paolella. That test found Cordoba truthful when he answered that he didn’t know that the van was loaded with cocaine.

But Taylor granted the prosecutor’s request that the polygraph results be kept from the jury, saying a 1986 9th Circuit opinion barred polygraph evidence from being offered in federal trials.

Even before that decision, judges across the nation had been loath to admit polygraph evidence.

Their hostility to lie detectors grew out of a federal appeals court decision in 1923 holding that results from a blood pressure machine--a crude precursor of the modern polygraph--could not be used in court.

That legal precedent, called the Frye rule for the case in which the ruling was first made, established strict standards for admissibility of new scientific evidence. It held that any new technology must attain “general acceptance” in the relevant scientific community before it can be used in court.

Then in 1993, in a case known as Daubert, the U.S. Supreme Court relaxed those rules, holding that federal judges must only conclude whether scientific evidence is “relevant” and “reliable.”

Some law and polygraph experts say the modern polygraph instrument falls squarely within the “reliable” category.

The theory behind the polygraph test is that a person experiences distinct physiological changes when telling a lie. The heart races, blood pressure increases, skin becomes pale, palms sweaty. Those changes can be measured precisely by very accurate instruments and recorded on a graph.

During a polygraph test, a person is asked two types of questions--relevant questions regarding the incident being investigated and control questions, which are designed to provoke more anxiety than the relevant questions.

If a person shows stronger reactions to the control questions, he or she is found truthful. Stronger reactions to the relevant question indicate deception.

Despite the polygraph’s pariah status in many of the nation’s courts, law enforcement and federal agencies have used it effectively for decades. The CIA and FBI routinely give employees lie detector tests before granting security clearances.

The federal government spends about $25 million in salaries alone to keep some 500 polygraph examiners on the staff of 24 federal agencies, said Dr. Gordon H. Barland, the top researcher at the Department of Defense Polygraph Institute in Ft. McClellan, Ala., which trains polygraph examiners.

The institute maintains that “when the polygraph is properly administered by a competent federal examiner . . . the accuracy . . . is at least 90%,” Barland said.

Despite these accuracy rates and rapid changes in polygraph technology, courts have generally remained hostile to lie detectors--with the exception of New Mexico, which 23 years ago adopted a rule allowing polygraph evidence to be used in trials.

Daniels, the Albuquerque lawyer, said “20 years of wide-open admissibility in New Mexico” has shown that juries can capably deal with polygraph evidence.

“Some people think polygraph evidence will bamboozle the jury and make the paint peel off the walls of the courthouse,” Daniels said. “But that’s not so. The truth is juries handle polygraph evidence as they deal with other expert evidence--with a healthy degree of skepticism.”

Dr. Frank Horvath, who heads the American Polygraph Assn. Research Center at Michigan State University, said many judges still fear that polygraphs would usurp a court’s duties.

“Because a polygraph sometimes gets to the crux of the issue, many judges feel the [results] would overwhelm juries,” Horvath said.

In one celebrated case, the 9th Circuit in San Francisco overturned the conviction of Richard Miller, the first FBI agent ever convicted of spying, because of the use of lie detector evidence at his trial. Miller was convicted at another trial and later sentenced to 20 years in prison.

The result of Simpson’s lie detector test was kept out of his criminal trial, but at his civil trial Judge Hiroshi Fujisaki allowed the former football star to be questioned about the failed polygraph. Simpson’s attorneys are expected to trumpet that issue when they appeal the $33-million civil verdict against him.

Since the Daubert decision in 1993, polygraph evidence has been forcing its way into federal courts mainly as several appellate panels have ruled that such evidence, if properly obtained, can no longer be excluded, according to McCall, the Hastings law professor.

The rulings have mainly benefited defendants who say lie detector tests support their claims of innocence.

In one such case, prosecutors withdrew charges against a New Mexico dentist accused of tax evasion after a judge ruled that his exculpatory polygraph could be used in court. In another, prosecutors also dropped the case against a bank robber after a judge agreed to let a jury hear how a lie detector test showed the accused “truthfully” stated that he did not commit the bank robbery.

In Santa Ana last week, Wilke, Cordoba’s attorney, cited cases from across the country to show that polygraphs are sufficiently reliable to be used in court.

During the hearing, Wilke sought to show how the FBI uses polygraphs daily in its police work.

He elicited testimony from Murphy, the FBI polygraph chief, that the agency conducted 8,200 polygraph exams a year. Murphy said that during the investigation of the Oklahoma City bombing, teams of FBI polygraph examiners hooked up suspects to polygraph machines--only to clear them.

Murphy also acknowledged that the FBI uses polygraphs--as leverage--to secure confessions when a suspect fails a test.

Asked by Wilke if he agreed that the accuracy rate was about 90%, Murphy replied: “Used in the correct setting [polygraphs] can be highly reliable. . . . Otherwise, we wouldn’t use them.”

Assistant U.S. Atty. Elizabeth R. Abrams, the prosecutor in the Cordoba case, contended that the test administered on Cordoba was flawed and therefore inadmissible.

She called John Trimarco, who heads the FBI’s polygraph unit in Los Angeles, to testify to this effect.

“This examination simply fails to meet the prevailing professional standards,” Trimarco said.

But Raskin, the defense’s polygraph expert, disagreed.

He said the private polygraph examiner, Paolella, didn’t pay attention to detail, but that “did not affect the overall result.”

Raskin also defended the reliability of polygraphs, disputing Murphy’s contention that people can beat a polygraph test by engaging in “countermeasures.”

While research has shown that someone who bites his or her tongue lightly or flexes leg muscles can manipulate a test, Raskin said, attempts to beat the test usually fail.

Paolella is expected to testify when the hearing resumes Wednesday.

Outside court, Raskin, who has conducted several research studies for government agencies, said he was not surprised that the FBI wanted to exclude polygraph testimony.

“They feel that letting polygraphs in will benefit the defense more,” Raskin said. “And this is not about justice. It’s about winning cases.”

Times librarians Sheila A. Kern and Lois Hooker provided research for this report.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

The Underlying Idea

The principle behind the polygraph, or lie detector, is that a person who tells a lie will display certain physiological traits that can be measured. Although these physiological changes are not necessarily unique to lying, techniques used by trained technicians can help draw conclusions about truth and deception.

What’s Measured

Respiratory (breathing) activity: Normally two hollow rubber tubes are used, one each around chest and diaphragm areas. Changes in air pressure (breathing volume) in the tubes is measured as they expand and contract.

Perspiration: Electrodes are placed on two fingertips of same hand. A slight electrical current moves between the electrodes. Under stress, more moisture appears on the skin, increasing the skin’s conductivity. The detector measures this change.

Blood pressure/heartbeat: Ordinary pressure cuff placed over upper arm and inflated slightly during questioning so it records changes in pulse rate and blood volume.

What It Shows

When a person being tested answers questions truthfully, there is little or no change in the measurements of a person’s physiological signs. A lie, however, will indicate a change in one or more of the measurements (in shaded area):

Breathing (diaphragm)

Breathing (chest)

Perspiration

Blood pressure/heartbeat

To Fool a Polygraph

* Psychological training can help test-taker manipulate answers

* Curling toes and pressing feet down inside shoes on innocent questions can elevate readings, making test inconclusive

* Drugs--400 milligrams of meprobamate, for example--may help test taker manipulate results

Factors Affecting Accuracy

* Competence of the examiner

* Psychological makeup of the testee

* Context in which exam is given