In Elyria, Ohio, 18-year-old Willie Evans IV is standing trial as an adult for the 2006 murder of Michael Smith. Evans, who was a minor when the crime was committed, is being tried as an adult and faces the possibility of a life sentence. Ohio is one of a number of states in which polygraph “evidence” may be admissible at trial if both the prosecution and the defense stipulate to its admissibility. The way this usually works is that a criminal suspect is offered the opportunity to prove his innocence by submitting to a government-administered lie detector test, with the stipulation that — pass or fail — the results will be admissible in court. Often, the prosecution will suggest that the case may be dismissed if the suspect passes. Willie Evans accepted such an arrangement and failed his lie detector test.

Elyria Chronicle-Telegram reporter Brad Dicken summarized the case in an article published last week:

ELYRIA — Willie Evans IV has denied having anything to do with the shooting death of 64-year-old Michael Smith last year, but the man who administered a lie-detector test to him testified Tuesday that Evans was lying. Evans, 18, showed signs of deception when William Evans II asked him whether he ever held Smith’s wallet, whether he shot Smith, whether he was at the trunk of the car in which Smith was found dying and whether he pulled the trigger, William Evans testified. Willie Evans and William Evans are not related. Polygraph examinations typically aren’t admissible in court, but Willie Evans and prosecutors reached an agreement that he would take the test and whatever the results were would be allowed into his aggravated murder trial. Michael A. Smith was found dying in the trunk of his car April 13, 2006. That agreement didn’t stop defense attorney Paul Griffin from questioning the validity of the tests and asking county Common Pleas Judge Christopher Rothgery to bar the results, a request Rothgery denied. Griffin suggested that external events such as explosions, thunder and lightning, or a police presence could throw off a test, but William Evans said that wasn’t the case with the examination he gave Willie Evans.

If Griffin’s best argument against the validity of polygraphy was the foregoing, then he has done a poor job defending his client. With or without “external events,” polygraph testing has no scientific basis to begin with. If Griffin is the same lawyer who gave defendant Evans the remarkably bad legal advice of accepting the stipulation agreement, then he has a conflict of interest in now arguing against the reliability of polygraphy.

The only thing that happened to throw off the test, William Evans said, was that Willie Evans burped once during the test, and he had to repeat a question because of it. Smith was found shot in the trunk of his wife’s car shortly after midnight on April 13, 2006. The retired steelworker had gone outside to move his wife’s car, which she had left on the street at his request while he was at a horse racing track for the evening. Evans is accused, along with Tyrone Young and Barry Williams, of confronting Smith and stealing his wallet, which was found by police 15 months later about a block away. The three men all face life in prison if convicted, but Williams is listed as a witness in Evans’ case and may have cut a deal with prosecutors for a reduced sentence in exchange for his testimony. …

In today’s Chronicle-Telegram, reporter Michael Baker follows up with a feature article titled, “Do Polygraphs Detect the Truth, or Are They Pseudo Science?” AntiPolygraph.org co-founder George Maschke is among those interviewed for this article:

When the 12 men and women determine the fate of 18-year-old Willie Evans IV, they will certainly look back to the testimony delivered on Sept. 11. Last Tuesday, professional polygraphist William Evans II (who is not related to the defendant) testified that the defendant had failed the polygraph test he administered. Does this seal the fate of Willie Evans, charged with first-degree murder of Michael A. Smith? Should it? The use of polygraph results in court cases, which has been hotly debated for decades, has eluded a clear consensus on their accuracy.

Actually, while Ohio courts may not have reached a clear consensus on the accuracy of polygraphs, there is no raging debate amongst scientists: polygraph testing is junk science.

A recent article submitted by the Committee of Concerned Social Scientists concludes after significant research that polygraph testing is a “valid application of psychological science” with a “known but acceptable error rate,” and that it does not overwhelm jurors.

The Committee of Concerned Social Scientists prepared a pro-polygraph amicus brief in U.S. v. Scheffer, a federal case in which the U.S. Supreme Court ruled against the admissibility of scientists. One of the “concerned social scientists” who co-signed the brief is American Polygraph Association past president Edward I. Gelb of Los Angeles, who has been unmasked as a phony Ph.D.

Many people, though, still stand firmly opposed to allowing polygraph results to be used as evidence in court cases. “These polygraph results should not be considered evidence at all,” said George Maschke, co-founder of antipolygraph.org. “It can play a major role in determining if this kid will spend his life free or imprisoned, and there’s just no scientific data to support that it should,” he said. But Charles Honts, a professor of psychology at Boise State University and a licensed polygraphist for more than 30 years, believes that there is. “This is an empirical question, and it can be answered with data — polygraphs have proven time and time again to be accurate. I have testified in court for years that they should be admissible,” he said.

It’s true that Charles Honts has argued for years that polygraph results should be admissible as evidence in court. But he is one of only a handful of academics to hold such a fringe viewpoint. In a 2005 case, a federal judge discredited him, calling his intellectual honesty into serious question.

Honts admits there are ambiguities. “There are people involved. Just like in psychological tests, there could be human error,” he said. “A polygraph is only as good as the person operating it,” said Donnie Todd, owner of Quest Consultants in Delaware, Ohio. “An examiner can drastically affect the accuracy of polygraph results,” said Todd, who has administered more than 4,000 examinations. William D. Evans II has a great deal of polygraph experience under his belt. For more than 30 years, he has performed polygraph tests and has become convinced over time of their accuracy. “They’re amazing investigative tools. Polygraph accuracy far exceeds eyewitness testimony, which has been measured as 70 to 75 percent accurate — tops,” Evans said. “Polygraphs are 95 to 98 percent accurate,” he said. “Assuming I could pick my examiner, I would stake my freedom on a polygraph,” he said.

The National Academy of Sciences sharply disagrees with polygrapher Evans regarding the accuracy of polygraphy. In its landmark 2003 report, The Polygraph and Lie Detection, the Academy concluded:

Polygraph Accuracy Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. The physiological responses measured by the polygraph are not uniquely related to deception. That is, the responses measured by the polygraph do not all reflect a single underlying process: a variety of psychological and physiological processes, including some that can be consciously controlled, can affect polygraph measures and test results. Moreover, most polygraph testing procedures allow for uncontrolled variation in test administration (e.g., creation of the emotional climate, selecting questions) that can be expected to result in variations in accuracy and that limit the level of accuracy that can be consistently achieved. Theoretical Basis The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are triggered in response to relevant or comparison questions. We have not found any serious effort at construct validation of polygraph testing. Research Progress Research on the polygraph has not progressed over time in the manner of a typical scientific field. It has not accumulated knowledge or strengthened its scientific underpinnings in any significant manner. Polygraph research has proceeded in relative isolation from related fields of basic science and has benefited little from conceptual, theoretical, and technological advances in those fields that are relevant to the psychophysiological detection of deception. Future Potential The inherent ambiguity of the physiological measures used in the polygraph suggest that further investments in improving polygraph technique and interpretation will bring only modest improvements in accuracy.

Reporter Michael Baker continues:

Maschke, though, would not [stake his freedom on a polygraph]. “They’re junk science,” he said. “Voodoo. The only people who say that polygraphs have 98 percent accuracy have a vested, financial interest in them,” he said. Honts strongly disagrees with this claim.

Honts, as a polygraph practitioner, is among those who have a “vested, financial interest” in polygraphs.

“Although there is ambiguity involved, the study of polygraphs has become a lot more scientific in recent years,” he said. This was made clear in a study published just this year. In an attempt to compare polygraph studies with strictly scientific tests (like X-rays and ultrasound) and psychological studies (like personality tests), the polygraph performed surprisingly well — equal to or better than the other two in various tests, according to “A Comparative Analysis of Polygraph with other Screening and Diagnostic Tools,” Honts said. “The world community is recognizing the accuracy and reliability of polygraphs. Their use is growing worldwide — fast,” Honts said. In response to these studies, Maschke said that the author, Philip E. Crewson, “errs by saying that polygraph ‘testing’ is scientifically comparable to others.”

The study in question was funded by the federal government’s polygraph school and reproduced (not this year, but in 2003) in Polygraph, a trade journal published by the American Polygraph Association. It should be greeted with the same skepticism with which one would receive a tobacco industry study into the linkage between cigarette smoking and cancer.

Quoting another study, Maschke said Dr. Alan Zelicoff examined polygraph results in real-world conditions and found that “if a subject fails a polygraph, the probability that she is, in fact, being deceptive is little more than chance alone.” “It’s basically a coin flip,” Maschke said.

See “Positive and Negative Predictive Values of Polygraphs: Results from published ‘field’ studies” (255 kb PDF) by Dr. Alan P. Zelicoff, M.D.

As Willie Evans can do little more than sit back and watch, he is certainly hoping that his freedom will not be determined by an unlucky coin flip. In Ohio, polygraph results are only admissible in court if both the prosecution and defense agree before the test. The jury will certainly consider the importance of the fact that, according to William D. Evans, the polygraph detected “signs of deception” when the defendant was asked whether he shot Smith, ever held Smith’s wallet and whether he was present at the trunk of the car in which Smith was found dying.

The jury should properly accord no significance to Willie Evans’s polygraph results. It should be recalled that in a 1978 Ohio murder case in which the results of a “stipulated” polygraph were admitted into evidence, Floyd “Buzz” Fay of Perrysburg, Wood County, was wrongly convicted of murder and sentenced to life in prison. It was only through the diligence of his public defender, Adrian Cimerman, that the Fay was conclusively exonerated and ultimately freed after having spent two years in prison.

Anthony Nici, a veteran attorney with an offices in Avon, has had extensive experience with polygraphs. He said that the tests — while notoriously variable and infrequently admitted as evidence — do hold a large amount of sway when it comes to the jury. “In high-profile cases,” Nici said, “I often immediately test my clients so that I can know. And if they pass, I try and get them submitted as evidence.” Nici said it is difficult — but of the utmost importance — to find a reliable examiner. “There are only a couple of reliable examiners in the whole state. They’re becoming harder and harder to find,” he said.

Under terms of attorney-client privilege, a defense lawyer can shop a client around from polygrapher to polygrapher until he/she “passes” one. The results of any “failed” polygraphs need never be disclosed. One wonders what Nici considers to be a “reliable” examiner — one who will reliably deliver the desired result?

Evans, who has worked for both prosecution and defense attorneys, said the results of his exams help put the guilty in jail and keep the innocent out — and are a lot more reliable and complex than “heads or tails.”

Evans’s exams may also help put the innocent in jail and keep the guilty out. In most cases, he will have no way of knowing. New Jersey polygrapher Peter J. Brannon, a past president of the American Association of Police Polygraphists, recently learned that a case he considered a feather in his cap actually resulted in an innocent man spending 22 years in prison.

Jeff Gamso, legal director of the American Civil Liberties Union of Ohio, has some doubts about this analysis. “In general, we don’t trust the results of polygraphs. There are just too many factors that can affect the outcome. And it’s all too easy for a jury to be misled by them.” Willie Evans’ attorney, Paul Griffin, also raised concerns about the validity of the tests and asked county Common Pleas Judge Christopher Rothgery to bar the results. Griffin suggested that external factors such as explosions, thunder or a police presence could affect the results of a test. Rothgery denied the request. “The defense attorney’s critique was woefully inadequate,” Mashke [sic] said. “He didn’t attack the fundamental shortcomings of polygraphs at all.” “I don’t know many defense attorneys who would readily consent to a polygraph examination for their clients due to the concerns about their validity,” Gamso said. “It certainly indicates a bad gamble on the part of the defense,” he said.

Indeed, it is a bad gamble. The late David T. Lykken, author of the seminal treatise on polygraphy A Tremor in the Blood: Uses and Abuses of the Lie Detector, noted that “an innocent suspect has nearly a 50:50 chance of failing a CQT [Control Question Test — the most commonly used polygraph technique] administered under adversarial circumstances, and those odds are considerably worse than those involved in Russian roulette.

For examples of the kind of arguments that have been successfully used to rebut polygraph “evidence,” see Professor William G. Iacono’s article, “Forensic ‘Lie Detection’: Procedures Without Scientific Basis,” Dr. Drew C. Richardson’s “Evaluation and Opinion of CQT Polygraphy,” and Professor Emeritus John J. Furedy’s “The North American Polygraph and Psychophysiology: Disinterested, Uninterested, and Interested Perspectives.”

While we will eventually be informed of the fate of Willie Evans IV, we may never know what role the “gamble” — the polygraph — played in the jury’s decision.

Judge Rothgery’s unfortunate decision to admit the results of a pseudoscientific procedure roundly discredited by the scientific community should be considered reversible error in the event that Evans is convicted.