As a prosecutor, it was the Holy Grail.  For no known reason we believed in it. The prosecutors before us believed in it and passed it on to us, and we passed it onto others who came after us.  I admit I am too far removed to know whether it is still a useful tool. I have read that there are other tests to determine fact from lie, and I hope there are, because I came away from the business having lost faith in the proverbial lie detector test.  Here is how it works.

The one taking the test meets the examiner and the questions are told to him before the test.  There is no ambush to this process. Here is a typical test:

“Is your name Joe?”

“Yes”

“Did you know Cheryl?”

“Yes”

“Did you kill her?”

“No”

“Are you afraid I am going to ask a question that you have not seen?”

The last question is the make or break question.  It is designed to make the one taking the test nervous and react.  The questions may be asked and answered many times. At the end of the day the examiner compares the reaction of the taker to the question of killing her, compared to the reaction to the last question.  The theory is that the truthful person will react more to the last question than the kill question. As a prosecutor we did not know how it worked. When the accused claimed innocence, we offered the “box” (prosecutor language for polygraph).  Rarely did an accused take it, and when they did, they flunked it—or so we were told. My belief in it was misguided.

Before I go on, it was a great bluffing tool.  I used it more when I was defending. My client would insist he was innocent.

“So your story is that you did not do it?  Correct.”

“Absolutely.  I did not do it.”

“Well, I can arrange a test that will tell us if you are taking the truth.  It is foolproof. Now don’t take this test if you are not telling the truth.  You cannot beat the test.”

This was my standing protocol.  I never varied. All my clients gave me some song and dance as to why they did not want to take the test.  They got nervous. They were on medication. But once they balked, I knew they were guilty.

On the most important case of my life I went though this recipe with my client.  He did not blink!

“Let’s go take it now.  I want to take that test.”  This was not how it was supposed to go.  I again cautioned him that the test was foolproof and under no circumstances should he take this test if he was in any way guilty.  My job was a lot easier when they balked at the test, but someone adamantly wanting the test was a problem—and this guy never wavered.

Not only did he agree to take it but he passed it with flying colors.  The rest of the story I have told you—in an epic political failure the DA refused to dismiss the case.  It was gutless and wrong by any measure’. I ended up trying the case, which was the most terrorizing week of my life.  It was the only time I have ever seen a prosecution of a case where the accused had passed a polygraph. It would get worse.

Years later, I had a client who was being accused of sexually assaulting his six-year-old grandchild.  He denied it, but everyone would deny it. His denial meant nothing, or did it? I am bothered when I can’t crack a liar.  He denied it constantly, and he cried endlessly. I gave him the speech about the polygraph.

He jumped at the opportunity.  I had a sickening feeling in my stomach.  I set up a private polygraph. He took the test in my office.  After an hour, the examiner came in and said with certainty:

“He’s lying, Bob.  I know he’s lying. Let me crack him.”

“Go ahead.”  I walked into an office with the examiner and told my client that the test showed he was lying. “The examiner wants to talk to you.”  The tears poured like open faucets. I walked out. Still, I was bothered by all of it. I had great reservations about a process that I had used so many times.

The examiner came out an hour later.  “I know he’s lying, but he won’t crack.”

“Maybe he is telling the truth.  Ever think of that?”

“No, never.  He flunked the test.  It is the Bible.” Ah, the Bible.  That statement was not lost on me. The old man cried and continued to protest his innocence.  After I started to dig deeper into the case I found what a terrible job the Maine State Police had done with this case.  I found out through family that his daughter had two children. She had lost her ten-year-old daughter who was being cared for by mom’s sister.  I talked to mom’s sister and she told me that the seven-year-old should not have stayed with mom either. Mom went out a lot and used her father to babysit.  A claim against the grandfather would get her to her favorite Aunt—and it did.

Now you almost never have a motive for a child to lie, but now I did.  She lied to get with her sister and be cared for by her favorite aunt. The officer never made any effort to get at the truth.  I got the mother and the two aunts into my office.

“Look, I believer your father.  I do not want that child on the witness stand tomorrow.  This is up to you the family to solve—not me.” It worked.  With her mother and two aunts in a room with her, and no cops nor lawyers, she came clean.  She had fibbed in hopes that she would go to live with her favorite aunt. Although I did not go to court, I did a good job.  I ended that file with this letter:

“Dear Polygraph Examiner:  Your Bible was not what you thought.  This man was innocent, and your exam was wrong!  This case has made me take a long look at the polygraph.  You and it were very, very wrong.!” Of course, he never responded.  When I told the old grandfather that he was innocent and now we knew, he put his head down and sobbed.  I simply left and went on to other cases, but I never forgot his pain.

Years of lies and half truths have made me want a foolproof test that could separate fact from fiction.  It has not happened and never will.

                                          MARKET REPORT

The market has climbed back to within 3% of its all-time highs after the huge December correction.  Why? I have no idea, except markets do not like tariffs. Now that the President has agreed to extend the negotiating time on tariffs, the market is euphoric.  To me its like pounding your head against the wall. Now you stop, and it feels good. Just don’t start.

 

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