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Bar Journal - Summer 2007

The Magic Lasso: The Implications of Waterman on Public Employees in New Hampshire

By:

 

I. Introduction

“Polygraph them all. I don’t know anything about polygraphs and I don’t know how accurate they are, but I know they’ll scare the hell out of people.” 
                                 -
Richard M. Nixon1

Following the Supreme Court’s decision in In re Waterman, 910 A.2d 1175 (N.H. 2006), public employers in New Hampshire may share President Nixon’s sentiment and now have the ability to follow through on unlimited and unrestricted use of lie detector examinations. Every employer has faced issues involving theft, credibility disputes between employees or questions regarding employee honesty. For this reason, employers would love to get their hands on Wonder Woman’s magic lasso, which, when cast around a villain would force them to tell the truth. Is the polygraph the lasso’s equivalent? When employers entangle their employees in a lie detector examination is the truth always revealed? Some public employers in New Hampshire may think so, and now have the ability to polygraph all prospective and current employees due to the lack of a statute or case law governing polygraph use in the public employment arena.

       
Although private employers are restricted with limited exception from using lie detectors by the Employee Polygraph Protection Act (EPPA), the Act does not apply to federal, state or local governments or any political subdivision of a state or local government.
2 The Court’s Waterman decision highlights the glaring hole created by the EPPA exemption by upholding the termination of a New Hampshire state trooper for refusing an order to submit to a polygraph examination during an internal investigation.3

       
The Supreme Court’s Waterman decision, if read broadly, encompasses every public employee working in New Hampshire. Even if read more narrowly to include only those public employees that must be above suspicion of the laws they are sworn to enforce, it still includes a myriad of employees. For example, the decision may include the Attorney General, Supreme Court justices and the Governor’s staff. The Waterman decision may also come as a surprise to some readers given the fact that New Hampshire litigators are barred from even referring to polygraph results in the courtroom due to the inherent unreliability of such tests.
4 Additionally, for decades, scientists have questioned the accuracy and reliability of polygraph technology. Finally, the very reason the federal government enacted the EPPA and other states have created more restrictive statutes on the use of polygraphs in employment is because employers were abusing lie detectors and either screening out many competent applicants or firing current employees based solely on polygraph results.

       
This article will begin by discussing the facts and reasoning behind the Court’s Waterman decision. Next, it will analyze why employers and examiners find the polygraph so irresistible in the workplace, while scientists, criminal suspects and employees cringe at the mere mention of an examination. It will then explore the federal government’s response to polygraphs in employment and the more restrictive actions taken by some jurisdictions. Finally, this article will describe the possible effects of Waterman on public employees in New Hampshire. Additionally, it will comment on how the legislature may adequately respond to prevent abuses surrounding the use of lie detectors.

 

III. The Case: In re Waterman

      A. Background5:

       
Tracy Waterman worked as a trooper for the New Hampshire State Police.
6  On August 29, 2003, Vicky Lemere, the wife of one of Waterman’s fellow troopers, informed Lieutenant Nedeau, one of Waterman’s supervisors, that Waterman made threatening remarks about her supervising officers.7 Lamere alleged that Waterman stated she would “like to put a bullet in Lieutenant Nedeau’s head” and would “like to deck Sergeant McCormack” if they yelled at her.8 

       
The State Police (Division) initiated an internal investigation and interviewed a number of witnesses including, Lemere and Waterman.
9 During the Division’s investigation, Waterman denied making the threats.10 The investigators found Lemere more credible than Waterman and recommended that Waterman be subjected to a polygraph examination.11 The Division Director, Colonel Gary Sloper, authorized investigators to conduct Waterman’s examination on September 15, 2003.12 Waterman arrived for the polygraph examination accompanied by her attorney and refused to take the test.13 The investigating officer informed her that by refusing Waterman was in violation of a direct order from Colonel Sloper and she could be disciplined up to and including dismissal.14 On September 18, Waterman received a memorandum from Sloper notifying his intent to dismiss her for willful insubordination for failing to take the polygraph examination. Waterman and her attorney met with Sloper on September 23 and she was dismissed the following day.15

       
Waterman appealed her termination to the Personnel Appeals Board (PAB).
16 During the PAB hearing, Waterman acknowledged that the Division’s professional conduct standards authorize the use of polygraph examinations in internal investigations.17 She also acknowledged that she had refused her supervisor’s order and that she was advised in the presence of counsel that her refusal could result in dismissal.18 The PAB found that under the Division’s professional standards of conduct, an employee is willfully insubordinate when he or she “deliberately and/or intentionally disobeys a lawful order.”19 Waterman argued that she was not willfully insubordinate because the order was unlawful because polygraphs are unreliable, degrading and the results are inadmissible in a court proceeding.20 Additionally, she urged that the order to take the polygraph was retaliatory.21 The PAB affirmed Waterman’s dismissal and Waterman appealed.22

 

      B. Court’s Analysis:

       
This was a matter of first impression for the Court. The Court first addressed whether the order to take a polygraph examination was unlawful. It utilized conclusions established in other jurisdictions that found it is reasonable for law enforcement officers to be subjected to polygraph examinations. The Court stated that “a police officer must be above suspicion of violation of the laws that he is sworn to enforce...and must perform his duty to investigate crime and maintain the public trust, questions concerning the propriety of his conduct must be resolved promptly.”
23 

       
Accordingly, the court adopted the reasoning by the Arizona Supreme Court in Eshelman v. Blubaum. In Eshelman, the court held that a police officer must submit to a polygraph examination upon penalty of dismissal if (1) there are reasonable grounds for demanding such a test; (2) the answers are not used in any subsequent criminal prosecution; and (3) the questions relate specifically and narrowly to the performance of the police officer’s official duties.
24 The court also implicated that failure to submit to an ordered polygraph violates the officer’s sworn duty to cooperate with the investigation of a crime.25 Further, the court reconciled the reliability of polygraph examinations by reasoning that although courts have found the tests to be inadmissible as evidence, they are reliable enough to be utilized as a tool for internal departmental investigations.26 

       
The Court distinguished two cases cited by Waterman, which held that officers may not be terminated for refusing to submit to a polygraph examination. The Court explained that the departments in those cases did not have regulations, ordinances or policies requiring officers to submit to polygraphs.
27 By contrast, the Division had a professional conduct standard expressly stating that, “Division members may be compelled to provide specialized information or submit to testing or examinations,” which may include polygraph tests.28 Pursuant to this provision, any such testing or examination “shall be specifically directed and narrowly related to the matter under investigation.”29

       
In applying the Eshelman test, the court found that the grounds for the order were reasonable because Waterman’s credibility was in question and the Division did not have authority to question Lemere.
30 Additionally, there was a Division regulation in place requiring Division members to submit to examination, supporting the reasonableness of the order.31 Next, the court explained that before any interview of a Division member a “Garrity warning” must be given which provides that neither “self-incriminating statements, nor the fruits thereof” will be used against an employee in any criminal proceeding.32 Thus, there was a protection in place preventing the use of answers given during the polygraph in a subsequent criminal proceeding, fulfilling the second element of the test.

       
The Court did not analyze the final prong because by refusing to submit to the polygraph, Waterman made it impossible for the Court to know whether the questions were narrowly tailored to the performance of her duties.
33  Additionally, there was no further information that would lead to an admission and the polygraph was the only option for investigators.34 Based on this reasoning the court upheld the PAB’s decision and Tracy Waterman was out of a job.

       
As stated above, if read broadly the Court’s decision allows all public employers in New Hampshire to create lie detector policies for testing all current employees and possibly job applicants. Although the Eshelman test applied only to law enforcement officers, it may be extended to all public employees because the Court failed to expressly distinguish law enforcement employees from any other individuals working in the public sector. Under Waterman, as long as a public employer has an administrative policy covering polygraph examinations then they are free to examine all employees. The federal government and various state governments have regulated the use of polygraphs in employment because employers have abused the practice. There are several potential abuses that lawmakers should recognize and prevent against.

       
Although Waterman does not discuss employee screening, by not regulating polygraph use in public employment, public employers are allowed under the EPPA to screen applicants. For example, a majority of police departments use lie detectors to screen police officer applicants. If public employers can polygraph all current and potential employees, the result may be that hardworking, honest employees or job applicants will be terminated or never hired because they refused to take lie detectors or “failed” an examination.  The question for New Hampshire lawmakers is what is more important – an individual’s right to a job and protection against bodily or mental intrusion, or the state employer’s right to use an investigative tool that is susceptible to harsh criticism but may generate a more trustworthy workforce? These questions are examined below.

 

II. Polygraph Examinations

       
The attempt to find a reliable indicator of truth and deception has existed for centuries and crossed cultural divides. Many cultures attempted to detect deception through the same psychophysiological theories that today’s mechanical and computerized detection devices are premised.
35 Much like the contemporary “lie detector”, medieval mechanisms depended on the subject’s fear of detection, and the resulting physiological responses.36 For example, in India the accused was given dry rice to chew. The ability to spit out the rice was demonstrative of truthfulness but the inability to do so indicated a liar. This test was based on the notion that fear activates the nervous system which controls the salivary glands. Therefore, the accused’s fear of being detected led to dry mouth and a difficulty in spitting out the rice.37 A similar but harsher test involving saliva production in the face of fear was administered by the Arabs who relied on a hot iron placed on the dry tongue of a liar to detect deception.38 Modern day technology relies on similar psychological responses.  The theory advanced by polygraph proponents is that lying results in an actual emotional conflict that causes anxiety or fear, which, in turn, causes unique physiological responses that are mechanically measured.39 

       
Polygraph examinations are utilized in both the criminal and employment law settings. Additionally, within the context of employment there are three different classifications of polygraph uses according to their application: pre-employment, periodic and specific. For purposes of this paper, the focus will be on the incident-specific application by employers.

 

      A. Who is Telling the Truth?

     
Someone here must be telling a little white lie. There are over 2,000 licensed polygraph examiners who claim that their machines can detect lies by alleged criminals, crooked employees or job applicants from 95 to 99 percent of the time.
40 In opposition are civil libertarian groups, scientists and ex-polygraph examiners who claim the polygraph is a police scam, smoke and mirrors in the form of wires and needles, no more accurate than a flip of a coin.41 Who should we believe?

       
Since William Moulton Marston created the concept of lie detection in the United States for police enforcement purposes, there has been controversy surrounding the accuracy and reliability of the device. Marston was a psychologist, attorney, and Harvard professor, who developed an instrument he termed the lie detector, which was based on blood pressure measurement alone.
42                

       
The modern polygraph typically lasts two to three hours. The subject has two pneumatic tubes strapped across her abdomen (to monitor breathing), two metal plates attached to her ring and index fingers on one hand (to measure perspiration), and a blood pressure cuff attached to her right arm. Today, some tests include a specially designed chair that measures unobservable muscular movements. The test includes a pre-test interview where the examiner goes over all the questions he will ask and gets to know the subject, the actual test, and finally the post-test interview when the examiner discusses the results. All this determines if the subject is relatively more aroused by one question or another.

       
To measure whether a subject’s response to an accusing question signifies deception, the examiner must set a baseline level by asking leading question designed to induce low arousal responses. Since the 1950’s examiners have used the Control Question Test (CQT). During a CQT, the examiner asks a series of mundane “control” questions like “Were you born in September?” and intermixes questions that are “relevant” to the specific incident like “Did you threaten to kill your supervisor?” At the conclusion of the exam, the examiner compares bodily reactions to all the questions. The mechanical or computerized devices measure patterns during the subject’s responses, advancing the theory that deception produces distinctive psychological changes that characterize lying.
43 

 

      B. How is the Polygraph Used? 

       
Polygraph testing has been widely used by law enforcement and private agencies for the past 30 years.
44 It was first utilized to identify criminal suspects and is prominently used in this capacity today. It was first reportedly used in the employment context in the 1930’s when a group of polygraph examiners began to conduct routine tests on bank employees in Chicago to resolve money shortages. The tests usually uncovered more thefts than were reported. One examiner wrote that out of 12 banks there were “none that didn’t have three or more embezzlers.”45 Due in large part to positive accounts in the American press, lie detection was highly renowned by law enforcement and employers. It has been used widely in employee screening and testing ever since.46 The American Civil Liberties Union estimates more than 1 million lie detector tests are given annually to people applying for government jobs.47 

       
Accordingly, 62 percent of the nation’s police departments require job applicants to take a polygraph test, and 90 percent of the country’s largest police agencies require applicant polygraph screening.
48 Polygraphs are also widely used to identify spies and to obtain confessions from military personnel suspected of criminal offenses.49 The federal government now has at least 20 polygraph programs staffed by more than 500 examiners, and the CIA and FBI alone have tested at least 40,000 job applicants and employees.50 Another prominent use of the polygraph is in post-conviction testing of sex offenders. Currently 35 states, including New Hampshire use polygraph testing to monitor sex offenders.51 

       
Generally, polygraph results are inadmissible in state courts.
52 Some jurisdictions have an absolute ban on the admissibility of polygraph examinations and even the suggestion that a polygraph was administered is grounds for a retrial. Polygraph results are admissible in some federal circuits and in some state courts when both parties have stipulated to the evidence before trial.53 In the employment arena, under the EPPA, private employers can only use polygraphs in very limited circumstances.54  

 

      C. Polygraph Opponents

       
Polygraph opponents have described the polygraph second only to AIDS as North America’s most serious social problem.
55 Many physicians and psychologists would not go that far but do agree that no machine can detect lies with any degree of accuracy.56 The American Psychological Association (APA) stated that, “the scientific evidence is still unsatisfactory for the validity of psychophysiological indicators to infer deceptive behavior.”57 The American Medical Association (AMA) has taken the position that polygraphs are unreliable and inappropriate for use in the workplace.58 Lie detectors do not detect lies, they measures changes in blood pressure, breathing and perspiration.59 Opponents argue that the physiological changes are triggered by a range of emotions such as anger, sadness, embarrassment or fear and there is no way to tell why someone reacts to specific questions.60 As such, the examinee’s characteristics, like morals, gender and intelligence affect the test results.61 Its suggested that innocent but emotionally-excited people have failed polygraph exams miserably while some serial killers, with no feelings of remorse, have passed without a quiver of the polygraph’s needles.62

       
Opponents also cite issues surrounding polygraph examiners as reasons for non-acceptance. For example, there is no standardized licensing program for examiners, although some states do regulate polygraph certification, various private and government operated training facilities, most notably the U.S. Department of Defense Polygraph Institute, certify examiners.
63 Of the 2,000 certified polygraph examiners there is a great divide between examiners who have years of interrogation experience and training and examiners who have no investigative or interrogation experience and only 80 hours of polygraph training. Most states require a barber to have 1,000 hours of training before cutting your hair.64 Additionally, different polygraph examiners will interpret the same results differently because of the subjective nature of the test.65 The polygraph examiner, not the instrument, is the only indicator of truthfulness and the subjective nature of the task and the possible impact of the results on employment decisions are indicators that a minimum level of training and experience should be required in this field.

       
Most opponents reference a 1983 study by the US Congress Office of Technology Assessment (OTA) in disputing accuracy and validity of polygraphs.
66 The OTA cited two problems with polygraph screening of applicants or current employees: its vulnerability to countermeasures, and potential misclassification of innocent examinees as deceptive.67 Since the OTA review, there have been studies supporting accuracy and validity in incident-specific examinations. However, the two main concerns have not been adequately answered through published research.68 Further, there are greater problems with the polygraph in employment screening because the examiner lacks the ability to compare a subject’s reactions to “relevant” and “control” questions.

       
There are also countermeasure instruction manuals and websites that provide techniques and strategies for “beating” a polygraph.
69 Doug Williams, an ex-police officer for the Oklahoma City Police Department, who conducted some 6,000 lie-detector tests, has published two books on how to “beat” the lie detector.70 Williams teaches subjects to use physical and mental countermeasures. For example, inducement of a reaction like pressing your toes to the floor, biting your tongue or counting backwards when asked a control or comparison question while appearing calm to the examiner. Williams purports that lie detectors are “a very thinly disguised excuse to get the [accused] in the hands of a trained interrogator and keep them there without the benefit of counsel.”71 Williams says. “Its only role (in police work) is to sufficiently scare you until you spill your guts.”72 Opponents argue that if this is the only use for criminal investigators, then how can it be reliable in the employment world? 

 

      D. Polygraph Proponents

       
Although proponents acknowledge errors do occur, and that polygraphs are not 100 percent accurate, they make several counter arguments supporting the use of polygraph methods in the employment arena. First, internal issues like theft, employee disputes and other misconduct occur in the workplace in staggering proportions and there must be some tool to prevent and detect misconduct.
73 Proponents argue that the polygraph is more valid than taking subjective considerations like personal hygiene, attire or lifestyle into consideration when making personnel decisions.74  The importance of polygraphs are also highlighted by the fact that employers have major difficulty in obtaining information about employees because former employers are reluctant to provide information on former employees. Furthermore, advocates point out that polygraphs are more cost-effective and less intrusive than other security procedures.

       
Polygraph supporters also acknowledge that examiners play the most important role in the examination because they make the ultimate assessment of the data. The examiners analyze the data and decide whether a subject has passed or failed the examination or alternatively if the data is inconclusive. The rebuttal to arguments that polygraphs are inaccurate and unreliable is that there is a difference between results that are in error and those that are inconclusive.
75 An inconclusive result means that an examiner is unable to render a definite diagnosis of the data. In such cases, another examination is conducted at a later date. Supporters suggest that opponents skew study results by counting inconclusive results as errors. This practice inflates the number of errors, making the polygraph appear unreliable. Examiners do not consider inconclusive test results as a negative and do not hold them against examinees.

       
Polygraph examiners cite the Department of Defense's report, "The Accuracy and Utility of Polygraph Testing" to support lie detector validity.
76 The Report indicates that experienced polygraph examiners make correct assessments of data approximately 85 percent of the time.77 However, the study did point out on several occasions that the least experienced of the examiners made the greatest number of errors.78 This suggests that experience and training of examiners plays a vital role in the accuracy of the examination, although there is no reliable research to support this conclusion.

       
Critics and advocates disagree on several fronts but there are two areas where appear to agree. First, the quality of examiners is extremely important and therefore states should legislate licensure or certification for polygraph examiners. Secondly, more funding for research is necessary to understand the accuracy and reliability of lie detectors. There has been limited polygraph research in the last half-century compared to other fields of behavioral science. The lack of research and understanding is clear from the few and dated federally funded studies cited by both critics and advocates of polygraph technology. 

 

IV. Federal Employee Polygraph Protection Act (EPPA) and State Regulatory Measures

     
In response to the OTA’s ultimate finding that polygraphs may be a valuable tool in certain types of criminal investigations but there was little value in its use in employment screening, Congress enacted the Employee Polygraph Protection Act. The purpose of the Act is to “prevent the denial of employment opportunities by prohibiting the use of lie detectors by employers.”
79 Congress found that employers were denying employment and discharging employees unjustly due to the misuse of lie detectors. The EPPA struck a compromise between employee’s privacy interests and employer and governmental interests that wanted to continue to utilize such tests. The Act specifically prohibits a private employer from directly or indirectly requiring, requesting, suggesting, or causing an employee or potential employee to take or submit to a lie detector test or inquire about previous tests an employee has taken.80 

 

      A. Exceptions to the EPPA? 

       
Pursuant to the Act, public employers are exempt from coverage, thus a government employee like Tracy Waterman is not protected by the Act.
81 Additionally, certain industries like private employees in the drug industry or those involved in matters pertaining to national defense, national security, and FBI contracts are also exempt from the Act. There is also a limited exception that allows private employers to request an employee submit to a polygraph examination where there is an ongoing investigation involving economic loss or injury to the employer. Additional requirements must be met for an employer to benefit from this exception.82 These exemptions cast doubt on the basic rationale for banning polygraph testing in employment. Congress banned the use of the polygraph by most private employers because there was concern the tests were unreliable. However, Congress disregarded the concern over reliability in creating the government and specific industry exemptions. These exemptions basically illustrate that Congress was not willing to deny certain employers the opportunity to use the polygraph, regardless of its alleged unreliability, if Congress perceived an increased security risk.83

       
In the years leading up to the passage of the Act in 1988, approximately two million polygraph tests were administered.
84 Ninety-eight percent of these tests were administered for private employers.85 Three-fourths of those polygraph tests conducted by private employers were for purposes of screening job applicants, while an estimated one-fourth were conducted to investigate wrongdoing.86 These figures indicate that a sizable segment of American business favors the use of the polygraph, regardless of its potential inaccuracy, giving support to the necessary action taken by Congress, but not explaining the exemptions.

 

      B. State Regulation     

       
The Act specifically provides that more restrictive state laws or provisions in collective bargaining agreements pre-empt the federal statute.
87 Many states prohibit or regulate the use of lie detector tests by legislation or common law.88 There are various legislative actions that have been taken at the state level that preempt federal law. Currently, there are 43 states and the District of Columbia that regulate polygraphs to some degree.89 An example is Michigan’s polygraph law, MSA § 18.186(26)(2), which expressly prohibits employers from discharging employees solely due to the belief that the employee did not tell the truth during a polygraph examination.90 Some states completely prohibit the use of polygraphs.91 Other states prohibit mandatory polygraph examinations.92 In Iowa, absent specific authorization or notice that a polygraph was a condition of employment, a public employee cannot be dismissed for refusing to participate in a lie detector test. 93 Another group of states restricts the area of inquiry during examinations.94 Another less restrictive avenue taken by some states is the regulation of licensing and qualifications of polygraph examiners.95 Finally, some jurisdictions combine restrictions of polygraph test results in personnel matters with the regulation of polygraph examiners.96

       
Frequently, state statutes contain exceptions with respect to public employees, specifically, police officers who may be dismissed for refusing to submit to a polygraph examination.
97 The main difference between state statutes and the EPPA is that many state laws provide for criminal penalties (including prison sentences) for violators, while the EPPA allows for only civil penalties.

 

      C. Is Public Employee Privacy an Issue?

       
Texas and West Virginia seem to think so. Both states have found that lie detectors violate the privacy rights of employees protected by the state constitution or common law.
98 However, the Texas Supreme Court distinguished the privacy rights of police officers from those of other public employees by explaining that public safety and protection is more important than the complete privacy rights of law enforcement officers. Additionally, police officers give up some rights for the protection of the public welfare, this include some rights to privacy. 

       
Generally, a public employer is by definition a state actor and the manner in which it treats its employees is state action.
99 Accordingly, public employees generally enjoy greater privacy protections than private employees because the Fourth Amendment protects them from unreasonable searches and seizures but private employees who are not employed by state actors theoretically have a reduced right to privacy in the workplace.100 This result extends from the doctrine that the sovereign government, not citizens, are a greater threat to liberty. However, state constitutions, statutes and common law protect the privacy rights of both public and private sector employees.101
 There is no case law where it has been found that a lie detector is an unreasonable search. 

 

V. What does the Waterman Decision Mean for Public Employees in New Hampshire?

       
Employment law often lacks consistency because it combines administrative rulings, judicial pronouncements, common law doctrines, statutes and contractual rules.
102 The conflicts between employer and employee, court decisions and statutes reflect the political issues surrounding employment law.103 The Court likely will revisit the polygraph issue because many questions are still unanswered: Who does Waterman affect? Is every public employee now subject to termination for refusing to take a lie detector? Does the decision only affect law enforcement officers and officials? There are currently no answers to these questions, but one thing is certain: there is now a gaping hole in employment law with respect to lie detectors in public employment. However, what is implicitly allowed through application of the EPPA and Waterman is that every current and future public employee is now subject to dismissal for refusing to take a lie detector. Based on the current state of New Hampshire law, as long as the request is (1) reasonable (2) the answers are not used in any subsequent criminal prosecution; and (3) the questions relate specifically and narrowly to the performance of the employee’s duties, termination for failure to take a lie detector is permitted. Subsequent case law may reveal what a public employer can do with the polygraph test results if an employee agrees to go through with the examination.

       

A. What’s Next for the Polygraph in New Hampshire?

     
The likely next step is for a wrongful termination case involving another public employee, not a police officer, to go before the Supreme Court. The court will either apply the test it laid out in Waterman or distinguish law enforcement officers and officials from other public employees. Based on the court’s decision to use a case from another jurisdiction that applied strictly to police officers, it is possible that the Court will make the distinction between police officers and other public employees. A successful plaintiff will make the Waterman decision inapplicable by distinguishing themselves from police officers in highlighting the fact that they do not have to be above suspicion of laws they are sworn to enforce. In addition, the employee should also raise privacy issues surrounding the invasive nature of polygraph examinations.

       
Alternatively, New Hampshire legislators have the opportunity to regulate the use of polygraphs in public employment via state statute. There is a host of options created by other jurisdictions that are more restrictive than the EPPA. New Hampshire legislators have options varying from an outright ban on polygraph examinations in employment to standardizing examiner certification. For example, the Polygraph Examiners Act in Tennessee (Tenn. Code Ann. 62-27-101 to 129) regulates examiner licensing and requires an applicant to have a certain level of education, a degree from a polygraph school recognized by the American Polygraph Association, completion of an internship and successful completion of an examination given by the state’s polygraph commission. This level of regulation provides a level of legitimacy to the polygraph profession.

 

VI. Conclusion

     
Although employers accept it as the quickest and easiest finder of truth, the question remains: does Wonder Woman’s lasso have a legitimate place in the employment world? The lie detector is misunderstood: by scientists unaware of the application, employers that need the information it produces, by those that legislate its use and by those examined. The lie detector is admittedly not perfect, and like any tool, when put into the hands of the untrained, unethical or incompetent, it is dangerous. The polygraph examiner is the most important piece of the polygraph puzzle, yet not all jurisdictions regulate their training and performance. There are only two organizations besides the federal government that has created standards: the American Polygraph Association (APA), and the American Society for Testing and Materials (ASTM) but neither group has any legal authority or policing power which decreases their legitimacy and allows for variations in training and certification throughout the country.
104 Legislatures alone have the power to create and mandate minimum polygraph standards. New Hampshire should at least follow the lead of states like Tennessee that have examiner minimum standards. This baseline statutory scheme allows for examiner conduct monitoring and regulation.

       
The unanswered questions created by the Waterman decision can be appropriately addressed through legislative action. Currently, 29 states require licensure or certification for polygraph examiners. Like Tennessee, most state statutes require a minimum level of instruction, a mandated intern period and successful completion of a licensing examination. Until more lie detection research is completed and there is a better grasp over the technology, the goal for New Hampshire legislators should be to enact legislation standardizing training and licensing for polygraph examiners. This is a compromise between public employers who wish to implement this controversial tool and employees that fear possible abuses due to unreliability and invasiveness. Congress, scientists and several other jurisdictions have fully or partially rejected polygraphs, but even if it only “scares the hell out of people” law enforcement and employers will continue to find utility in the device.

 

EndnotES

1.     Hearing Before the House Judiciary Committee on the Impeachment of the President, 93d Cong., 2d Sess., Statement of Information, bk. VII, pt. 2 at 881 (1974).

2.     29 U.S.C. 2001 et seq.

3.     In re Waterman, 910 A.2d at 1176.

4.     See State v. Ober, 126 N.H. 471, 472 (1985).

5.     Facts as explained in the N.H. Supreme Court Decision, In re Waterman, 910 A.2d 1175 (N.H. 2006).

6.     Id. at 1176.

7.     Id.

8.     Id.

9.     Id.

10.   Id.

11.   Id. at 1177.

12.   Id.

13.   Id.

14.   Id.

15.   Id.

16.   Id.

17.   Id.

18.   Id.

19.   Id.

20.   Id.

21.   Id.

22.   Id.

23.   Id. at 1178 quoting Eshelman v. Blubaum, 560 P.2d 1283, 1285 (Ariz. 1977).

24.   Eshelman, 560 P.2d At 1286.

25.   In re Waterman, A.2d at 1178.

26.   Id.

27.   Id.

28.   Id. quoting N.H. State Police Professional Conduct Code, Section 26-E.5.1(B)(6).

29.   Id.

30.   Id.

31.   Id.

32.   Id. quoting Garrity v. New Jersey, 385 U.S. 493, 495 (1967.

33.   Id.

34.   Id.

35.   David E. Nagle, The Polygraph in the Workplace, 18 U. Rich. L. Rev. 43, 45 (1983). [hereinafter, Nagle].

36.   Id.

37.   Id.

38.   Id.

39.   Id.

40.   Bill Briggs, Is that your FINAL Answer? Truth elusive as debate rages over polygraphs, The Denver Post 2d ed., May 3, 2000 at F-01. [hereinafter, Briggs].

41.   Marston is not well known for his part in the development of the polygraph, rather he received comic book fame as the creator of Wonder Woman. Marston also appeared as an expert witness in the now famous 1923 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) case, in which the defense unsuccessfully attempted to introduce his expert testimony to prove the innocence of the defendant based on his systolic blood pressure test.

42.   The Polygraph and Lie Detection, The National Research Council, p. 292 (2003). [hereinafter, Council]

43.   For a more detailed account of polygraph exams See, Handbook of Polygraph Testing, 1-38 (Murray Kleiner ed., 2002) [hereinafter, Kleiner, Handbook].

44.   Id. at 219.

45.   Id.

46.   Id.

47.   Brendan Koerner, Lie Detector Roulette, Mother Jones, Nov./Dec. 2002, available at, www.motherjones.com/news/feature/2002/11/ma_148_01.html?
welcome=true. (last visited June 2007)

48.   www.polygraph.org/faq.cfm. (last visited June 2007)

49.   Id.

50.   Kleiner, Handbook, supra note 43, at 237.

51.   Id.

52.   E.g., State v. Stewart, 116 N.H 585, 588 (1976).

53.   U.S. v. Cordoba, 194 F.3d 1053 (9th Cir. 1999).

54.   29 U.S.C. § 2006(a).

55.   Id. at 217.

56.   Robert F. Fitzpatrick, Lie Detectors Belong in Museums, Not in Sexual Harassment Trials, 6 ALI-ABA 889, 901 (1998). [hereinafter, Fitzpatrick, Museums]

57.   Id. at 902 (quoting APA resolution dated February 1, 1986).

58.   Id.

59.   Id.

60.   Ching Wah Chin, Protecting Employees and Neglecting Technology Assessment: The Employee Polygraph Protection Act of 1988, 55 Brook L. Rev. 1315, 1320 (1990).

61.   Id. at 1324.

62.   See,Id.

63.   Fitzpatrick, Museums, supra, note 56 at 904.

64.   Id.

65.   Id.

66.   Office of Technology Assessment, U.S. Cong., Scientific Validity of Polygraph Testing: A Research Review and Evaluation 83-84 (A Technical , Memorandum OTA-TM-H-15, Nov. 1983) [hereinafter, OTA Validity Review].

67.   Id.

68.   Kleiner, Handbook, supra note 43, at 217.

69.   E.g.,  www.polygraph.com (last visited June 2007).

70.   Briggs, supra note 40.

71.   Id.

72.   Id.

73.   Nagle, supra note 35, at 76.

74.   Id.

75.   www.polygraph.org/faq.cfm (last visited June 2007).

76 Washington, DC: U.S. Dept. of Defense, 1984 (Norman Ansley and Marcia Garwood, eds.).

77.   Id.

78.   Id. at 95-96.

79.   Preamble, Employee Polygraph Protection Act of 1988.

80.   29 U.S.C. §§ 2001 et seq.

81.   29 U.S.C. 2006(a).

82.   See, 29 U.S.C. § 2006.

83.   See S. REP. NO. 248, 100th Cong., at 44, reprinted in 1988 U.S. Cong. and Admin. News 726, 732.

84.   See Zafran & Stickle, Polygraphs in Employment: A State Survey, 33 Clev. St.            L. Rev. 751, 754-55 (1984-85).

85.   Id. at § 5, P:17. The Senate Committee on Labor and Human Resources found that 70 per cent of the polygraphs administered in private employment were for purposes of screening job applicants, while only 30 per cent represented post-employment testing and employee investigations. S. Rep. No. 284, 100th Cong., at 46, reprinted in 1988 U.S. Cong. & Admin. News 726, 733.

86.  Id.

87.   See, 29 U.S.C. § 2006

88.   Shepard, Duston, Russel, Workplace Privacy: Employee Testing, Surveillance, Wrongful Discharge and Other Areas of Vulnerability, pp. 98, 119 2d ed. (1989).

89.   State Labor Law Developments, 9 Lab. 221, 245 (1993).

90.   See, Cyrus v. Calhoun County Sheriff, 494 A.2d 212 (Mich. 1985) (sheriff was prohibited from terminating a deputy in violation of Michigan’s polygraph law).

91.   E.g., Mass. Gen. Laws Ann ch. 149 § 19(B) (use of polygraphs by employers is prohibited)

92.   In re Faibanks, 287 N.W.2d 579 (Iowa 1980).

93.   E.g., MCLS § 37.203 (questions restricted to actual area of inquiry).

94.   E.g., N.M. Stat. Ann. § 61-27A-5 (treating licensing of private investigators and polygraph examiners alike).

95.   Tenn. Code Ann. § 62-27-107.

96.   E.g., R.I. Gen. Laws § 28-6.1-2; see also Los Angeles Police Protective League v. City of Los Angeles, Cal. App. 4th 1535 (1995) (lie detectors cannot be a condition for employment).

97.   Texas State Emp. Union v. Texas Dept. of Mental Health, 746 S.W.2d 203 (1987); Cordle v. General Hugh Mercer Corp., 325 S.E.2d 111 (W. Va. 1984).

98 Otis B. Grant, Law and Perceptions: Internal Investigations and Employee Privacy Interest in Public Sector Employment, 71 UMKC L. Rev. 1, 5 (2002).

99.   Id.

100.         Id. at 6.

101.         Id.

102. Id.

103.         Id.

104.         Kleiner, Handbook, supra note 43, at 241.

 

 

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