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Bar News - January 13, 2012


Criminal Law: Opinion: FBIís No Videotape Policy Hides the Truth

By:

FBI policy prohibits the videotape of polygraph examinations.

Although the results of polygraph exams are generally not admissible in a trial, if the defendant is interrogated and makes admissions or confesses this information is normally admissible in a trial.

The problem is that the FBI policy does not allow the jury to know the "context" of the admission or confession as to whether the FBI polygraph examiner coerced or made unlawful promises to induce information.

FBI policy hides the truth from jurors, who must make the ultimate decision about whether a defendant shall be imprisoned or go free or in a capital case be imprisoned for life or executed.

Jurors are in an untenable position like watching a detective movie and trying to determine the facts by only seeing the last half of the movie.

It is illogical and unfair that the FBI in a specific case might videotape a crime scene but not videotape the polygraph exam and interrogation of a suspect.

FBI Polygraph Examiner Claims Innocent Person is a Liar

Mr. Higazy, an Egyptian, was a student at the time of the 9/11 attack and was staying in a hotel overlooking the World Trade Center.

He fled with the other occupants of the hotel. A hotel security guard claimed that he found a two-way aviation radio in Mr. Higazyís room.

After the instrumentation portion of the FBI polygraph exam, Mr. Higazy admitted to various ways in which he came into possession of the radio.

He was jailed for more than a month, was released in January 2002 after an American Airline pilot came forward and admitted that the aviation radio was his which he forgot when he also fled the hotel.

Mr. Higazy claimed that he made admissions because the FBI examiner threatened his family members in Egypt and he felt he had no choice but to make admissions to protect them.

Mr. Higazy sued the United States government and was paid $ 250,000 in 2009 to settle the lawsuit.

Judge Rakoff of the Southern District of New York was the judge in the Higazy case and in a speech on May 1,2008 at Dartmouth College, Hanover, New Hampshire stated: "1 ordered an investigation by the government into the circumstances of the FBIís polygraph testing, the result of which was a report assuring me that the manner and mode of Higazyís polygraph was consistent with standard FBI practice. I am not sure whether this meant that the FBI really believes in its polygraph results, despite their inaccuracy, or whether the FBI simply uses the facade of polygraph testing to try to elicit confessions. Either way I think that but for a near miracle, Mr. Higazy would now be rotting in prison or facing execution." (See Seton Hall Law Review, Volume 38:1385.

Polygraph Professional Standards on audio/visual recording in polygraph exams The By-Laws of the American Polygraph Association, paragraph 3.9.9. states "An audio/video recording of the pretest and in-test phases is required to be made". The American Society for Testing Materials (ASTM) standards for polygraph examinations state that where permitted by law, the polygraph examination should be recorded by audio or audio/visual means in its entirety. Dr. James Allan Matte, in his treatise "Forensic Psychophysiology using the polygraph Scientific Truth Verification - Lie Detection", recommends the videotape of the entire exam.

Massachusetts Opinion Calls for Videotaped Polygraph Examination

On January 20, 2000, Judge Lawrence B. Wernick, Commonwealth of Massachusetts Superior Court, Hampden County, ruled against the defendant, Stanley Slonka, who requested admissibility of a polygraph exam. Judge Wernick denied Mr. Slonkaís request for various reasons to include that the polygraph exam was not videotaped.

"The failure to record Slonkaís examination, therefore, raises serious questions regarding the procedures employed, the legitimacy of the test and the parties intentions, or good faith, in conducting the test." (See Hampden County Superior Criminal Action No.91-1479, 80 entitled "Findings of Fact, Rulings of Law and Order on Defendantís Motion to Admit Polygraph", page 20)

Police Experiences with Recording Custodial Interrogations

"A contemporaneous electronic record of suspect has proven to be an efficient and powerful law enforcement tool. Audio is good, video is better. Both methods create a permanent record of exactly what occurred. Recordings prevent disputes about officerís conduct, the treatment of suspects and statements they made. Police are not called upon to paraphrase statements or try later to describe suspectsí words, actions, and attitudes. Instead, viewers, and listeners see and/or hear precisely what was said and done, including whether suspects were forthcoming or evasive, changed their version of events, and appeared sincere and innocent or deceitful and guilty. An electronic record made in the station interview room is law enforcementís version of instant replay." (See "Police Experiences with Recording Custodial Interrogations", Northwestern University School of Law Center on Wrongful Convictions, Number 1, Summer 204, page 6.)

As of about 2004, police departments in 238 law enforcement agencies in 38 states recorded custodial interviews of suspects in felony investigations. Police Departments, who recorded, included Phoenix, Arizona; Los Angeles, San Diego, San Francisco, and San Jose, California; Denver, Colorado; the District of Columbia; Portland, Oregon; and Austin and Houston, Texas.

Why would Mr. Higazy or anyone confess to a crime they did not commit?

"University of Virginia Law professor Brandon Garrett, author of the 2011 book Convicting the Innocent, reviewed 250 cases of people, who were exonerated by DNA evidence. Garrett found that suspects confessed in detail to crimes they didnít commit in 40 of those cases. None of the interrogations in those cases was recorded in its entirety, Garret says." (See USA Today, December 27, 2011, "Police errors fuel false confessions", page 3A)

The above article also states that defendants confessed because of the following three factors: First, mis-classification error (police presumed defendant were guilty before the interview). Second, coercion error (police began to make implied or direct threats). Third, the police knowingly or unknowingly provided the defendant with key details of the crime.

Every Guantanamo interrogation was videotaped. About 2008, The Seton Hall Law Center for Policy and Research reported the following;
  • More than 24,000 interrogations have been conducted at Guantanamo since 2002
     
  • All interrogations conducted at Guantanamo were videotaped.
It is recommended that the FBI comply with standards of the polygraph industry and guidance from a court to allow the videotape of all polygraph examinations on criminal suspects to increase transparency and accountability in the judicial system.

James A. Johnson, Jr. is a lawyer, polygraph examiner and retired United States Lieutenant Colonel, he was a Special Agent with the Air Force Office of Special Investigations, and he has conducted polygraph examination for over twenty years throughout New England for criminal defense lawyers.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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