More Courts Weigh Merits of Polygraph Tests

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

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

And if California courts allowed it, jurors in O.J. Simpson’s criminal trial would have been able to decide for themselves how much weight to put on the fact that the Hall of Famer failed a polygraph examination after his arrest for the slayings 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 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.

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The appeals court cited a 1993 U.S. Supreme Court decision that loosened the rules judges use for deciding what scientific evidence to admit in trials. That Supreme Court decision has led to polygraph results being allowed into evidence in many courts elsewhere in the country.

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 that 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 a practicing attorney in Albuquerque, said the government is 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 across the nation.

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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 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 300 kilograms--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.

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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 excluded and kept from the jury, saying a 1986 9th Circuit opinion barred polygraph evidence from being offered in federal trials.

Judicial hostility to lie detectors dates back to a federal appeals court decision in 1923 holding that results from a blood pressure machine--a 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 could 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 he or she tells a lie. The heart races, blood pressure increases, the skin becomes pale, the palms sweaty. Those changes can be measured precisely 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 questions indicate deception.

Despite polygraphs’ pariah status in many courts, law enforcement and federal agencies have used them for decades. The CIA and FBI routinely give employees lie detector tests before granting security clearances.

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

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

But despite these accuracy rates and rapid changes in polygraph technology, courts have generally remained hostile to lie detectors.

The result of O.J. 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.

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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 Santa Ana last week, Wilke, Cordoba’s attorney, elicited testimony from Murphy, the FBI polygraph chief, that the agency conducts 8,200 polygraph exams a year. Murphy said that during the investigation of the Oklahoma City bombing, teams of FBI polygraph examiners hooked up possible suspects to polygraph machines--but only to clear them.

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.”

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