The Problem with Polygraph Testing
In the Diaspora
(This is one of a series of weekly columns from Guyanese in the diaspora and others with an interest in issues related to Guyana and the Caribbean)
By Arif Bulkan
(Arif Bulkan lectures in the Faculty of Law at the University of the West Indies)
In the midst of all the gripping revelations coming out of a Brooklyn courtroom alleging corruption at the highest levels of the government of Guyana, another drama involving corruption has been unfolding locally. However, this one involves a few far down on the totem pole, against whom the government has mandated ‘integrity testing’. In May 2008 the public first learnt that a private American firm was conducting polygraph testing at the Customs Anti-Narcotics Unit (CANU), as a result of which nine staff members were subsequently dismissed. Polygraph testing re-surfaced recently, when earlier this month it was disclosed that a further 19 law enforcement officers were sacked after failing the tests. The rationale proffered by the government for these tests was the necessity to ensure that “individuals working in certain departments were of high and sound integrity”. (Stabroek News, Aug 7, 2009) Dr Luncheon revealed further that the government is committed to institutionalize polygraph testing – but only among the operational arm of the state and government agencies, while ministers and permanent secretaries would be immune. In attempting to defend this policy Home Affairs Minister Clement Rohee in a letter to Stabroek News (August 21) questioned who would want to oppose integrity testing, given the complaints by ordinary people regarding corruption “within certain levels of the public service”. However, despite the Minister’s dismissive tone, mandatory integrity testing is highly problematic and raises a slew of legal and constitutional issues.
It is widely acknowledged among scientific researchers and experienced law enforcement officers that polygraph testing is highly unreliable. Two deficiencies lie at the root of this inadequacy. The first is that the test proceeds upon the unsustainable assumption that lying is accompanied by certain involuntary physiological changes, principally to the heart rate, respiration and perspiration. However, some of these functions are not truly uncontrollable, but can be manipulated in very simple ways. For example, holding one’s breath or varying the rate of breathing and depth of breaths, clenching certain muscles, biting sharply on the tongue and even pressing on concealed tacks in one’s shoe, are all techniques that can be used to skew supposedly involuntary physiological reactions.
The second problem with polygraph testing is that it does not yield objective results. That is, the physiological variations it measures must be evaluated by human agency. This means that there can be disagreement among experts as to the interpretation of results, and even where there is agreement as to the evaluation of results this is no guarantee that a subject is lying or being truthful. For these reasons, many scientists consider the test to be seriously flawed.
Polygraph testing is viewed with even greater suspicion by the courts. One of the reasons for this is that it requires the opinion of a technician to be substituted for that of the judge or jury in civil and criminal trials respectively. Thus not only is the test inherently unreliable, but it also usurps a basic function of the court (the evaluation of guilt or innocence). Consequently, while there is no direct authority on the point in England, leading authorities on the law of evidence are agreed that the results of the test are not likely to be admissible in court. The legal position is not much different elsewhere. In the three countries (the US, Israel and Japan) where polygraph testing is most widely used in investigations, the results have limited (if any) value in court, whereas some countries like France and Germany go so far as to actually outlaw its use, on constitutional grounds.
Those constitutional grounds have to do with human dignity and privacy, which rights are completely railroaded by the invasive procedures of a polygraph test. The test also has a considerable potential to violate a sacrosanct rule of evidence that requires any statement by an accused person to be voluntary. Quite obviously, a test that is mandated by one’s employers cannot meet this standard. In fact, suspects are not required to assist the police during an investigation, and at common law there is a right to silence that can only be taken away by legislation specifically permitting pre-trial questioning. The familiar refrain heard in American television crime serials (“you have the right to remain silent…”) is not dramatic invention, but a requirement of criminal procedure solidly rooted in the common law. Given these procedural protections, on what authority has the government been demanding that certain public sector employees submit to polygraph tests? Where any terminated employee commences wrongful dismissal litigation, how will the state justify its decision (in the absence of other evidence), since it may not be able to rely on test results?
Indeed, this use of polygraph tests results – not as a mere tool in investigations but by the political executive to dismiss certain employees without the safeguard of a trial – point to the arbitrariness of the process and the aggrandizement of the political executive at the expense of the public service. The trend in commonwealth Caribbean public law has been to construe constitutional protections of public servants in ever expanding ways, the starting point being the unequivocal rejection of the doctrine of dismissal at pleasure in the early 1980s. However, the reverse seems to be true of Guyanese political life and jurisprudence, as evidenced in this instance by the privatization of the customs and revenue departments and the increasing politicization that such separation has enabled.
Perhaps the most objectionable feature of government’s integrity testing policy is its selective application, which cannot be justified on administrative, legal or ethical grounds. If any pattern emerges that those targeted happen to be of a specific racial or political persuasion, then those officers could make a very compelling case of discriminatory (and therefore unconstitutional) treatment. Additionally, the post-Herdmanston amendments to the Guyana constitution considerably strengthened the equality provisions of the bill of rights, in that the prohibited grounds of discrimination have been extended and a number of sweeping equality rights included. Thus discrimination on the basis of ‘social class’ is outlawed, which is yet another ground on which to scrutinize government’s policy of testing certain levels of the public service while immunizing others.
Ultimately, concerns about corruption are certainly not confined to those employed at CANU but extend to every level of government, so there can be no rational explanation for testing only very junior officials. According to the 2008 Corruption Perceptions Index conducted by Transparency International, Guyana ranks at 126 out of 180 countries surveyed – that is, in the bottom third and below every single country in the commonwealth Caribbean. This index is determined by expert assessments and opinion surveys carried out by a highly regarded international organisation conforming to rigorous methodologies, but Guyanese do not need foreigners to tell us that corruption is endemic within our society. Yet while corrupt activities at the highest levels of government have been repeatedly exposed in the past (and nowhere more graphically than in the Roger Khan affair), never before has there been any interest in calling perpetrators to account. The Queens Atlantic deal and the polar beer fraud on the GRA are two very recent examples of irregularity entirely condoned by the government.
Contrary to Minister Rohee’s claims, no reasonable person in Guyana is opposed to addressing corruption in the public service. What we cannot understand, however, is why it is being done through discredited methods, and only against certain employees – an approach that is not only ineffective but also deeply divisive and unethical. In his August 2009 letter Minister Rohee questions “who on earth would want to oppose integrity testing”, but ironically when he was asked in June 2008 whether he would take the test, he replied that only the President could decide on this. His prevarication raises the obvious question that if he has nothing to hide, why does he need permission? However, since the Minister of Home Affairs has become such a fan of integrity, he could submit voluntarily and set the example for others to follow – and for a start, we would love to know why his American visa was cancelled.