BY MR. BAYH (FOR HIMSELF, MR. TUNNEY, MR. MATHIAS, AND MR. ABOUREZK) :

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800130029-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 12, 2016
• Document Release Date: December 13, 2001
• Sequence Number: 29
• Publication Date: June 2, 1975
• Content Type: OPEN

June 2, 19 75 Approved For Ri~Mkgg 3f ijC F ~7M( 14AFj)0800130029-2 S 9139
Pendant shows by a preponderance of evi- has been ultimately successful. I believe, procedure. As to the first two of these
dence that at the time of the violation it was Mr. President, that the Senate has given three points, I ask unanimous consent
not intentional and resulted from a bona the issue perhaps more than adequate to have printed in the RECORD at this
tide error notwithstanding the maintenance consideration and that the time is ripe point in my remarks an excellent staff
of reasonable procedures to assure compli-
ance and avoidance of error." for final action. study prepared by the Staff of the Con-
ADMINISTRATION My colleague, the distinguished Con- stitutional Rights Subcommittee on the
reliability and constitutionality of poly-
SEC. 15. (a) Section 621(a) of the Fair gressman from New York, Mr. KOCH, had
Credit Reporting Act is amended- introduced a similar bill in the other graphs.
(1) by redesignating paragraph (1) as body, and he reports the likelihood of There being no objective, the study
paragraph (2) and inserting the following favorable House action. I might also note, was ordered to be printed in the RECORD,
before such redesignated paragraph: Mr. President, that no Member of the as follows: _
"(1) The Federal Trade Commission shall Congress has devoted more of his time THE POLYGRAPH TEST: RELIABILITY
prescribe regulations to carry out the pur- and given more thorough study to the The theory behind the polygraph proce-
poses of this title. Such regulations may con- entire issue of privacy than has ED KOCH. dure and its results involves physiological
taro such classifications, differentiations, and
other provisions, and may provide for such He Should, I believe, be congratulated for responses purportedly related to the act of
lying. It is professed that lying causes con-
adjustments and exceptions as in the judg- his leadership in this area. flict to arise within the individual subject.
menu of the Commission' are necessary or Senator Ervin's efforts were successful The conflict produces fear and anxiety
proper to effectuate the purposes of this title in convincing the executive branch to which, In turn, produce physiological
to prevent circumvention or evasion thereof, voluntarily limit its use of lie detector changes which the polygraph devices can
or to facilitate compliance therewith. Any tests. Under Civil Service Regulations measure and record. Thus, the assumption
reference to any requirement imposed under
this title or any provisions thereof includes issued in January 1972 the use of these underlying the polygraph test is, that a uni-
reference to the regulations of the commis- devices was restricted to agencies having deception, certain specific emotions, and
lion under this title or the provisions thereof intelligence or counterintelligence re- various bodily changes?e
in question."; sponsibilities and upon written authori- A typical polygraph examination may con-
(2) by inserting after "documents," in nation by the Chairman of the Civil Serv- tain several features. The subject to be in-
paragraph (2) as redesignated the phrase ice Commission. Yet in 1973, almost 7,000 vestigated is usually ushered into a waiting
"examination and production- of consumer such tests were authorized. This bill bans room where it is hoped he will avail himself
reports and consumer reporting agency the use of lie detectors by any Federal of the favorable polygraph literature left for
files,". his attention. His reactions to these readings
(b) Section 604 of such Act is amended agency without exception. I am willing, are often observed by the secretary or recep-
by striking out "A" and inserting in lieu however, to listen to reasonable argu- tionist and reported to the examiner prior
thereof "Except as provided in section 621 ments as to the need for a very limited to his encounter with the subject:. The pur-
(a) (2), a". use in the intelligence field. The total pose of this conditioning is that the person
(c) Section 608 of such Act is amended by number of such tests under the present to be examined carry with him into the test a
inserting after "604," the following: "and regulations, however, suggests a serious belief in the reliability, accuracy and even
except as provided in section 621(a) (2), abuse of the very limited exception that infallibility of the polygraph. Examiners
STATE LAWS might be justified. Accordingly, until I in obtain that It is important nnn helpful
SEC. 16. Section 622 of the Fair Credit am convinced that the scope of such an to b in be convinced ngood d responses that his lies for or will l be detected,
Reporting Act is amended by adding at the exception could be, sufficiently restricted, thus heightening his sensitivity to the ques-
end thereof the following new sentence: "The I will propose a total ban. bons and the likelihood of clear physiolog-F is dederaletermine Trade
whether hemmc such ion inconsistencies norized exist . to It is not in the Federal Government; ical changes?' The "spy" in the waiting room
such reports to the examiner the degree of skepti-
The Commission may not determine that any but rather in the commercial world where cism or acceptance exhibited by the subject
State law is inconsistent with any provision mass invasion of privacy is taking place while reading the polygraph literature. In
of this chapter if the Commission determines by large-scale use of these devices. There this way, it is claimed, the examiner can bet-
that such law gives greater protection to the are no reliable statistics on the number ter understand and compensate for all types
consumer."
EFFECTIVE DATE of lie detector tests given by private ex- - of recorded responses to his questions. SEC. 17. Section 609(d) of the Fair Credit alniners for business purposes, but Still prior to his being connected to the
Reporting Act, as added by this Act, shall knowledgeable estimates have ranged machine, the subject is brought into the test-
become effective 60 days after the date of from a low of 300,000 to a high of 500,000 ing area, usually a room sparsely decorated
This bill would, therefore, bar and furnished to avoid the presence of out-
enactment. per year. side distractions or stimuli. At this point,
any. person engaged in inter.-`ate com- some polygraph operators may make use of
By Mr. BAYH (for himself, Mr. merce from "permitting, requiring, or "two-way" mirrors to further observe the
TUNNEY, Mr. MATHIAS, and Mr. requesting" any employee or applicant to individual's behavior Y6 Then, with the ma-
ABOUREZK) : take a lie detector test, and it would en- chine in view, the examiner typically con-
S. 1841. A bill to protect the constitu- force this prohibition with criminal ducts a preliminary interview which aids him
in assessing the type of person he is dealing
tional rights of citizens of the United sanctions. with, and in obtaining other knowledge he
States and to prevent unwarranted In- I should emphasize, Mr. President, might deem helpful in his interpretation of.
vasion of their privacy by prohibiting the that the bill would not in any way impede the results of the polygraph test?? The gen-
use of the polygraph type equipment for law enforcement authorities from mak- eral questions pertaining to the circum-
certain purposes. Referred to the Com- ing use of the investigative tool which stances being investigated are typically gone
mittee on the Judiciary. a polygraph provides if there Is reason to over to familiarize the subject with them and
Mr. BAYH. Mr. President, I am today believe that a crime has been committed. to allow the operator the opportunity to alter
them where he feels it is necessary to elicit
introducing, together with the distin- I believe, Mr. President, that the roc- clear, definite responses E8 The pneumograph
.guished chairman of the Subcommittee ord presented to the Senate over the past tube, measuring respiration, is then placed
on Constitutional Rights, Mr. TUNNEY, decade suggests three essential reasons around the subject's chest, the blood pres-
Mr. MATHIAS, and Mr. ABOUREZH, a bill to which justify the legislation we intro- sure and pulse cuff around his upper arm,
bar the use of polygraphs, Psychological duce today. First, clear evidence exists and electrodes, which record galvanic skin
Stress Evaluators-PSE-and other me- - as to the questionable reliability of the responses (the change in the electrical con-
chanical or electrical devices used by the results of these tests. Second, an analy- ducivity of the skin due to increased skin
perspiration) are
Federal Government or by employers en- sis of the judicial development of the The he examiner then proceed attached t with is hands.
exe withe ques-
gaged in interstate commerce. Strict constitutional right of privacy reveals tioning as he sits behind his control desk
limitations of the use of polygraphs have that the use of lie detector tests poses watching and marking the recordings of
been considered by the Senate on a num- serious problems under the first, fourth, these devices.
ber of occasions in recent years. Our dis- and fifth amendments, all of which were How reliable is this process in determining
tinguished former colleague, Mr. Ervin, cited by the Supreme Court in Griswold the veracity of an individual? A study con-
guided no fewer than five separate bills against Connecticut as constituting the ducted - at the Massachusetts Institute of
through the Senate which would have "penumbra where- privacy is protected Technology
There exists no concluded: public body of knowl-
placed some limits on the use of poly- from government intrusion". Third, and edge to support the enthusiastic claims of
graphs by the executive branch. Yet after equally important to me, is the inher-
almost a decade of effort, no legislation ently offensive nature of the polygraph Footnotes at end of article.
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CONGRESSIONAL RECORD- SENATE June 2, 1975
operators. There are no publications in re- recorded. In hearings held before the House suit in diminishing physiological response," m
potable journals, no facts, no figures, tables, Foreign Operations and Government Infor- One polygraph study concluded that the
or graphs. In short, there is nothing to oration Subcommittee, chaired by Represent- more a guilty subject could control his own
document the claims of accuracy or effective- ative John Moss, experts declared that, given attitudes and answers, the greater the con-
ness except bald assertions?0 " a physiological response under the polygraph tamination he could produce in the poly-
Though studies and experiments to assess test procedure, any of three inferences could graph results; an intelligent subject could
the polygraph's effectiveness have been done, be made: either the subject was lying; or he often succeed in eluding detection .n
even when interpreted favorably, their re- was telling the truth but some emotional What is the examiner's influence in the
sults seem far from convincing of the poly- factor, such as anger or embarrassment, polygraph procedure and results? Interpreta-
graph's reliability, In an experiment con- caused the reaction; or the response was tion is the essence of the process, making lie
ducted for the Defense Department, subjects generated by a neurotic pre-condition of the detecting a highly subjective business. Judg-
were tested to dete1mine the effect of their subject!" Other less frequent or obvious fac- ments about the subject's attitude and per-
faith In the polygraph on the ability of the tors possibly affecting the machine-measured sonality, about the composition of questions,
examiners to detect their lies 30 The study replies Include extreme nervousness; physio- and regarding the meanings of the machine's
concluded that a belief in the machine's ac- logical abnormalities, such as heart condi-., recordings are all made by the examiner. The
curacy did aid the detection of responses tions, blood pressure problems, headaches and results presented are solely the assessment
under certain types of questloning,31 but it is colds; deep psychological problems; the use of an operator of the lines recorded on the
significant to note thefigures derived for the of drugs rind alcohol; ratigue; simple bodily graphs of his machine. The expertise re-
accuracy of the examiners' interpretations: movements; and even the subject's sex.o quisite in making such interpretations raises
only 83 percent of the subjects were cor- Thus, the fact that peculiar physiological several questions as to the reliability of
rectly classified as guilty or innocent in responses may be caused by physiological polygraph reports. Familiarity with several
the paradigm used66 factors unrelated to whether the subject is medical specialties and an understanding of
Even it study conducted by a large, well- lying casts the validity of these tests into clinical and social psychology shouldbe re-
known polygraph firm, yielded results which, further disrepute. quired and expected of examiners; yet, the
when scrutinized, are unsettling. The expert- Furthermore, are there mental activities curriculum should be required and expected
meat was set up so that examiners worked besides deception that can cause the physical of examiners; yet, the curriculum offered by
independently and solely with the records of changes recorded by the polygraph? Psychi- a leading polygraph school, a program lauded
polygraph tests 33 The analyses of the ten atric experts state that any situation or by advocates as producing truly.reputable
examiners, averaged, produced 87.75 percent stimuli thatproduced feelings of frustration, examiners, amounts to a mere 244 hours of
accuracy in identifying guilty and innocent surprise, pain, shame, or embarrassment study with only 14 hours in psychology and
sub ects s The experimenters were quick to could be responisbie for such physiological 31 hours in "medical aspects." 62 Even the
point out thatthe examiners involved in the responses." In fact, humans do respond dif- mere possession of an academic degree, un-
project did not have the benefit of observing ferently to emotional stresses. No one would less an advanced one in physiology or psy-
or interviewing the subject so as to "make claim the physical responses to different chology, should not be enough qualification:e
allowances for a resentful or angry attitude, people would be the same even under similar Clearly, the level of most examiner compe-
a condition which could cause an error in stimuli.+s Nor, for that matter, has there ence across the country, when the finest of
interpretation of polygraph records." 66 Fur- been any relationship proven between lying the profession receive the minimal training
ther, when figures were calculated separately, well as guilt, fear, or anxiety.-"" rioted here, falls far short of these criteria.
experienced examiners achieved an accuracy ,,... people cannot go through life with- Another consideration Is the possibility
of 91.4 percent, whereas the accuracy of in- out some lying, and every Individual builds ?.hat examiner Was will be injected into the
experienced examiners was 79.1 percent?' up his own set of responses to the act. Lying test. There are examiners who sympathize
the enthusiasm expressed by supporters of can conceivably result in satisfaction, excite- :Kith the employer who is seeking protection
h polygraph for results such as these seems ment, humor, boredom, sadness, hatred, as Yom thieving employees,64 who believe that
unfounded. Even an eight or nine percent well as guilt, fear, and anxiety.+T' nost of the people who resist the tests are
fallibility figure is substantial, and there is Negative polygraph result could be ,rying to hide something incriminating=
admittedly a large degree of subjectivity in obtained because of feelings such as hos- nd who maintain that the polygraph is an
the examiner's estimation of the subject's tility, possessed unconsciously by a men- effective Instrument for bringing out a per-
state of mind. The fact that there are no tally-unbalanced subject os son's compulsion to confess.6? The chance
uniform standards or qualifications which Are there other individual differences which i or an unprejudiced examination and Inter-
require a minimum level of competence for could affect the polygraph? Studies conducted ;,retation, with underlying examiner atti-
examiners cast their subjective evaluations have shown that many individlual factors, --odes such as these, greatly diminishes.
into even greater doubt. including skin pigment, may affect the gal- With this number of potential trouble-
Polygraph promoters and examiners gen- vanic skin response, heartbeat, and respira- pots involved, doubt must be cast upon
y quote a 95 percent accuracy rate for tory response measured by the device S6 In a i e objectivity, accuracy, and reliability of
the tests performed in actual, as opposed to
experimental situations. They also hasten to study conducted for the Air Force to deter- the polygraph test. It has been noted that
exp that most errors are made in hasten the role played by environmental stress t tie acceptance of the machine is the product
a add inneoent label to errors
a guilty made attaching a no in the ability to detect 1ies,62 the expert- (f circular logic: belief in the device Induces
they apparently ocenlb view as comforting. pro- mentors unexpectedly discovered another po- confession, and the rate of confessions
they w a based on test results tential problem area. They found that the (reates faith In the polygraph's effective-
p statistics hecked atati the future rion testire s of galvanic skin reactivity of an individual was i ess 6T In reality:
the ked ga: all the of gpo i i confes- not predicated only upon environmental or "The polygrapth technique only provides
sign to a crime, or the judgment of a jury, situational circumstances producing in- I measures of various autonomic responses.
Yet even these means of verification are not creased per-3piration and electrical conduc- 2 ae stimuli that elicit these responses, the
conclusive. Whether or not a person has lied tivity of th,3 skin. Instead, It appeared that i itervening variables (constitutional predis-
can never be known beyond any doubt; the these physical responses differedamong in- position, past learning, conscious and uncon-
confession or jury verdict may, in fact, be dividuals, as recorded by the polygraph, In a Sinus motivation, etc.) and the nterpreta-
Plse or wrong. The staff, in short, has found way not accounted for in the experimenters' tons made of the resulting graphs are highly
no independent means for confirming the predictions. Further investigation seemed to 0 ,mplex and are inferences made from more
results of actual polygraph examinations .v Point to biological, racially attributable dif- 0, less incomplete data." as
There is an established probability theory, ferences as he reason" ME POLYGRAPH TEST: CONSTITtTIONALrry
however, which purports to sustain the valid- A related problem inherent in the poly- The courts have been embroiled in the
ity of polygraph results. The theory of condi- graph test pertains to questions of cultural p ,lygraph Issue for a half-century, contend-
tional probability maintains that, unless a differenceand s.
moralities--honesty s ggenerally recognized uthhat tag with questions of reliability and, in re-
diagnosltic instrument has been demon- and strated to be completely Infallible, the prob- are, in part, culturally acquired; a serious lie Itced contexts, with the deeper constitu-
ability that it will be accurate in an one in one person's view could, based on a dif- ti anal implications for individual rights,
a c have been misessed again o y-
test depends upon the prevalence of the ferent personal experience and back-,round, a, a in n concerning
condition being diagnosed In the group being be, in another's eye, inconsequential.49 This ll results as evidence: e: (i the (1) thej r pol
tested?6In a group of 1,000 subjects, suppos- throws further suspicion on the validity of , muld be fined by rpo's dly
ing 25 to be liars, and with a 95 percent ac- a technique which depends upon accepted Fu undermined
to the t the det m a test purportedly
curacy rate assumed for the of rah, the notions of morality for its value. i a polygraph;
i related ph; (2), the to ttdata of offered tered y
conditional probability for thpolygraph,
lie detector detector If the public were aware of the fallibility a couldn't cross-examined; rdat (3)
that for every one true liar, or "employment of the polygraph, would its effectiveness de- t eeproblems of lassuring that consent to be
risk," found, two people will be falsely classi- crease? An important feature of the exam- ey:zmined has been completely uncoerced are
fied as such 3D ination procedure, as previously explained, 91 at; (4) with the polygraph usable as evi-
Another objection to the claims of reli- 1s the attempt to convince the subject of dc ace, the presumption of nnocence would
ability for the polygraph test centers around the machines accuracy. Thus, as one author- certainly be damaged by a refusal to take the
the meaning of the physiological responses st
capable of y notes, "Were the machine regarded as to t; and (5) a polygraph exam could violate
Footnotes at end of article. educed, and 'this fear
lowering eofcfear would re- w it as other constitutional provisions. These
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,,Lune 2, 1975 CONGRESSIONAL RECORD - SENATE
last considerations and concerns are also
relevant to the use of polygraphs in em-
ployment, where this method of Investiga-
tion threatens to violate the right to privacy
possessed by every individual.
The right to privacy is not one of the spe-
cific guarantees enumerated in the Bill of
Rights. Yet it has been recognized as an im-
plicit right, intended by the Constitution
and its framers, a result of the entwinement
of express constitutional mandates and
necessary to the preservation and viability
of these liberties.
In particular, the provisions of the First
Amendment have been among those deemed
related to the right to privacy. "The right of
freedom of speech and press includes .
freedom of thought ... Without those peri-
pheral rights the specific rights would be
less secure." 69 Freedom in our thoughts and
beliefs has been long acknowledged as being
within the First Amendment freedom of
speech. In Palko v. Connecticut" this point
was clearly stated : .
"Of that freedom [of thought, and speech]
one may say that it is the matrix, the in-
dispensable condition, of nearly every other
form of freedom. With rare aberrations a
pervasive recognition of that truth can be
traced in our history, political and legal. So
it has come about that the domain of liberty,
withdrawn by the Fourteenth Amendment
from encroachment by the states, has been
enlarged by latter-day judgments to include
liberty of the mind as well as liberty of
action. The extension became, indeed, a logi-
cal imperative when once It was recognized
as long aso as it was, that liberty is some-
thing more than exemption from physical
restraints ..." 62
Freedom of thought, then, has been held
to be a fundamental right. In fact the con-
nection between liberty of thought and the
right to keep those thoughts private is in-
escapable.
Griswold v. Connecticut is a landarmk
Supreme Court case upholding the consti-
tutionality of this right of privacy. The Court
stated that, along with the other amend-
ments, "the First Amendment has a penum-
bra where privacy is protected from govern-
mental intrusion." "
In a concurring opinion, Justice Goldberg
urged that privacy does not have to be in-
ferred from enumerated freedoms. Instead,
the Ninth Amendment can be turned to, for
it "simply shows the intent of the Consti-
tution's authors that other fundamental per-
sonal rights should not be denied such pro-
tection or disparaged in any other way simply
because they are not specifically listed In
the first eight constitutional amendments." 66
Justice Goldberg went on to say that In
deciding what rights are fundamental we
must examine our traditions to discover the
principles rooted.there. In Griswold, the con-
troversy revolved around the marriage re-
lationship and the privacy traditionally ac-
corded Its intimacies. The Court declared,
"We deal with a right to privacy older than
the Bill of Rights .."88 Certainly the right
to privacy in our minds, to speak or keep
silent about our thoughts, is one of the old-
est and most basic principles of human in-
dividuality and life. Such a valued tradition
should not be tampered with for reasons of
alleged expediency.
Though the Griswold decision focused on
the right to privacy as peripheral to First
Amendment rights, it was noted that other
constitutional guarantees manifest this same
purpose:
"The Fourth Amendment explicitly af-
firms the 'right of the people of be secure
in their persons, houses, papers, and effects
against unreasonable searches and seizures.
The Fifth Amendment in Its Self-incrimina-
tion Clause enables the citizen to create a
Footnotes at end of article.
zone of privacy which government may not
force him to surrender to his detriment." 67
Boyd v. United States 89 recognized that in
questions of privacy the Fourth and Fifth
Amendments are closely tied, as. explained in
a passage from the Court's opinion:
"The principles laid down in this opinion
[of Lord Camden] affect the very essence of
constitutional liberty and security . they
apply to all Invasions on the part of the gov-
ernment and its employers, of the sanctity
of a man's home and the privacies of life. It
is not the breaking of his doors and the rum-
maging of his drawers that constitutes the
essence of the offense; but it is the invasion
of his indefeasible right of personal security,
personal liberty and, private property where
that right has never been forfeited by his
conviction of some public offense . . any
forcible and compulsory extortion of a man's -
own testimony or of his private papers to be
used as evidence to convict him of a crime or
to forfeit his goods is within the condemna-
tion of that judgment [of Lord Camden].
In this regard the Fourth and Fifth Amend-,
ments run. almost into earth other." 6a
Several of the points made In Boyd can be
related to the issues of a federal employee's
rights, to the nature of the self-incrimina-
tion and unreasonable search and seizure
protections outside of criminal proceedings.
Clearly, the Constitution does not limit these
guarantees to a criminal context. In the land-
mark decision Miranda v. Arizone,70 in which
guidelines were first set forth for the ques-
tioning of suspects to secure the Fifth
Amendment protection, the Supreme Court
maintained that "the privilege is fulfilled
only when the person Is guaranteed the right
'to remain silent unless he chooses to speak
in the unfettered exercise of his own will' 11 71
The Court further noted that, "Today, then,
there can be no doubt that the Fifth Amend-
ment privilege Is available outside of crimi-
nal court proceedings and serves to protect
persons in all settings in which their freedom
of action is curtailed from being compelled to-
incriminate themselves." " 72
These tenets of Boyd and Miranda are in-
deed relevant to em"loyment situations and
polygraph-induced confession even though
the purpose of such tests is not to elicit in-
criminating evidence for a court. Congres-
sional hearings into the use of polygraphs in
federal employment determined that:
"The polygraph technique forces an indi-
vidual to incriminate himself and confess to
past actions which are not pertinent to the
current investigation. He must dredge up his
past so he can approach the polygraph ma-
chine with an untroubled soul. The poly-
graph operator and his superiors then decide
whether to refer derogatory information to
other agencies or officials." 13 .
The concern In Miranda was to compensate
for the coercive aura of a police station to
insure that all precautions are taken so that
a suspect does not feel compelled to speak.
Where obtaining or retaining a job is de-
pendent upon the taking of a polygraph test,
the environment can be just as coercive. Em-
ployment is vital to existence and survival
in our modern society, and' the competition
for jobs is great. The submission to polygraph
examinations Is pre-employment interviews
is deemed voluntary, but the knowledge that
a refusal will automatically end thq em-
ployment opportunity undermines this claim.
Furthermore, the onus of guilt, of hiding
potentially damaging revelations that accom-
panies a refusal to be tested by a polygraph
further reduces the voluntary aspect. Many
job offers are conditioned upon an agree-
ment to submit to future polygraph tests,
entirely eliminating any element of choice.
For a person seeking or obtaining a job to be
coerced to reveal private knowledge,
thoughts, and beliefs would appear repug-
nant to Supreme Court cases which recog-
nize the constitutional rights of employees?+
S 9141
The price of gaining employment must not
be a surrendering of civil liberties.
The polygraph examiner's questions them-
selves can be extremely coercive resulting
from "the subject's defensive willingness to
elaborate on his answers because he fears
that unless he reveals all the details, the ma-
chine will record that he is lying even'when
his basic story is true." 76 Freedom from be-
ing compelled to make self-incriminating
disclosures, a part of every citizen's right to
privacy, should be applicable to a business
setting, expecially where polygraphs are in
use, for, as one commentator summarizes:
. the nature of an employer's inquiries
about past deeds and guilt is often indistin-
guishable from criminal interrogation. More-
over, the loss of personal liberty or property
which would result from a. criminal convic-
tion is often no.more significant than the
denial of livelihood which may result from
compelled testimony concerning past and
present activities, associations, and even be-
liefs during preemployment or promotion
screening via personality and polygraph test-
mg 70?
Another matter germane to the self-in-
crimination discussion is the question of
how the responses elicited by the polygraph
machine and examiner are characterized. In
response to' the growing complex of investi-
gative techniques available for the identify-
ing of a suspect in a criminal case, a distinc-
tion has emerged between physical as op-
posed to communicative evidence. 'Thus, a
person may be compelled to provide a sam-
ple of his handwriting,?7 to speak,'" or to ex-
hibit his body for identification,?' but he may
not be expected to be a source of testimonial
evidence against himself. In Schmerber V.
California,89 in which the Court held that
the taking of a blood sample over petitioner's
objections did not violate constitutional re-
quirements, the polygraph was discussed in
relation to the difficulties inherent in the
process of separating physical evidence from
communications. The opinion noted:
"Some tests seemingly directed to obtain
`physical evidence,' for example, lie detector
tests measuring changes in body function
during interrogation, may actually be di-
rected to eliciting responses which are essen-
tially testimonial. To compel a person to
submit to testing in which an effort will be
made to determine his guilt or innocence on
the basis of physiological responses, whether
willed or not, is to evoke the spirit and his-
tory of the Fifth Amendment." 81
The technique applied to extract informa-
tion from an individual must also be
weighed against Fourth Amendment con-
siderations. Methods for obtaining evidence,
though in theory permissible, must, the
Court has held, adhere to other principles as
well as strict constitutional ones. In Rochin
v. California,82 the Court deemed it proper to
refer to the sense of the community in de-
termining whether drugs obtained from a
forced stomach pumping could be used to
achieve a conviction. The opinion concluded
that "conduct that shocks the conscience"
must be prohibited: "They are methods too
close to the rack and the screw to permit of
constitutional differentiation." ss
The Fourth Amendment protection against
unreasonable searches and seizures does not
apply merely to criminal matters. "It . is
surely anomalous to say that the individual
and his private property are fully protected
by the Fourth Amendment only when the
individual is suspected of criminal beha-
vior." 84 In dissenting from a 1928 opinion
upholding the constitutionality of wiretaps,
Justice Brandeis, gazing into the future, pre-
dicted and worried that:
"Advances In the psychic and'related sci-
ences may bring means of exploring unex-
pressed beliefs, thoughts and emotions . .
Can it be that the Constitution affords no
protection against such invasions of individ-
ual security? ae
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S 9142
The Fourth Amendment has now been rec-
ognized as applying to more than simple
physical trespass ae Electronic listening de-
vices, 81 "stop-and-frisk" procedures,88
the taking of fingernail serapings,8D all have
come under its purview. The retention of an
individual's privacy, in the face of ever In-
creasing odds against it, is% obviously a sig-
nificant concern. Courts have found it to be
their legitimate duty to protect this funda-
mential principle, as set forth In Mapp v.
Ohio: a
"We find that as to the federal govern-
ment, the Fourth and Fifth Amendments
and, as to the states, the freedom from un-
conscionable invasions of privacy and the
freedom from convictions based on coerced
confessions do enjoy an "intimate relation"
in their perpetuation of "principles of hu-
manity and civil liberty [secured] only after
years of struggle." 02.
In the staff's view, polygraphs used in
employment indisputably fall within the
areas of constitutional concern presented
here. To many knowledgeable commentators
the relationship is evident 02 To be probed
and questioned so deeply, to be expected to
reveal personal attitudes and beliefs under
conditions such as those Imposed by poly-
graph testing, is to be subjected to searches
and seizures that are unreasonable, to Co-
erced self-incrimination, to loss of civil lib-
erties that amount to a true invasion of
privacy.
FOOTNOTES
ma Ibid., pp. 699-700.
Ibid., p. 704.
Ibid., p. 705-
24, ACLU Report, p. 4.
V Skolnick, op. cit., pp. 704 and 705.
2s ACLU Report, p. 5.
'a Burkey, op. cit., p. 81.
30 Martin T_ Orne and Richard I. Thackery,
"Methodological Studies in Detection of De-
ception," distributed by the Clearinghouse
for Federal Scientific and Technical Informa-
tion, Dept. of Commerce.
00Ibid., summary.
Ibid,
a. Frank S. Horvath and John E. Reid, "The
Reliability of Polygraph Examiner Diagnosis
of Truth and Deception," The Journal of
Criminal Law, Criminology and Police
Science, vol. 62. 1971, p. 276.
:11 Ibid., p. 278.
32 Ibid., p.-281.
Ibid, p. 278.
37 Skolnik, op. cit., p. 699.
28 Ibid., p. 715.
:m Ibid., p. 715.
74lbid., pp. 717-718.
S0 Hearings, pp. 10-11
41 Ibid., pp. 12-13.
12 H. B. Dearman, M.D. and B. M. Smith,
Ph.D., "Unconscious Motivation and the
Polygraph Test," The American Journal of
Psychiatry. May 1963, p. 1019.
'1 Skolnick, op. cit., p. 701.
is Ibid., p. 700.
41Dearman and Broth, op. at., pp. 1017-
1018.
40 Equal Employment Opportunity Commis-
sion brief related in Circle K. Corp. v. EEOC.,
U.S. Ct. of Appeals, 10th Circuit, case No. 72-
1967, p. 8 (hereinafter cited as EEOC brief).
47 S. Kugelmass, "Effect of Three Levels of
Realistic Stress On Differential Psychological
Re-activities," report for the Air Force Office
of Scientific Research.
aA Ibid., pp. 22-23.
is EEOC, brief, p. 7.
so Skolnick, op. cit., p. 705.
0 Joseph F. Kubis, "Studies In Lie Detec-
tion," report for the Air Force Systems Com-
mand, N.Y. June 1962.
W Skolnick, op. cit., p. 707.
57 Burkey, op. cit., p. 87.
~ Pete J. Perras, "Polygraph Invaluable
Tool," The Charlotte Observer, July 6, 1971.
CONGRESSIONAL RECORD-SENATE June 2, 197'5-
W Franklin, too. cit.
ra Ibid.
G7 Ibid.
61 Dearman and Smith, op. cit., p. 1019.
6'Howard S. Altarescu, "Problems Remai!s-
ing for the 'Generally Accepted' Po)-
graph," 53 Boston Univ. L. Rev. 375 197.o.
p. 376
60G7iswoid v. Connecticut, 381 U.S. 4'~9
(1965), pp. 482-483.
B 30`2 U.S. 319 (1937).
62 Ibid., p. 327. For other related discu.-:-
sions see Abrams v. U.S., 250 U.B. 618 (1919;,
Holmes dissent: Whitney v. California, 2a4
U.S. 357 (1927), Brandeis concurrence.
a, 381 U.S. 479 (1965).
Ibid., p. 483.
Ibid., Goldberg concurrence, p. 492. Fr,
another discussion of privacy see Poe v. UP -
man, 367 U.S. 497 (1961), Harlan dissent.
11 Ibid., p. 486.
e1 Ibid., p. 484.
us 116 U.S. 616 (1885).
Ibul., p. 630.
zo 384 U.B. 436 (1960).
71 Ibid., p. 460, quoting Malloy v. Hogan, 37f
U.S. 1 (1964).
71 Ibid., p. 467.
73 Hearings, pp. 19-20.
71 See Slochower v. Board of Education, 35C
U.S. 551 (1955) ; Garrity v. New Jersey, 881
U.S. 493 (1966) Keyishian v. Board of Re-
gents, 385 U.S. 589 (1967).
75 ACLU Report, p. 35.
79 Hermann, op, cit., p. 131.
77 Gilbert v. California, 388 U.S. 263 (1967).
78 U.S. v. Dionisio, 93 S. Ct. 764 (1973).
79 U.S. v. Wade, 388 U.S. 218 (1967).
80384 US. 757 (1966).
sl Ibid., p. 764.
12 342 U.S. 165 (1952).
Ba Ibid., p. 172.
Cam ore v. Municipal Court, 387 U.S. 523
(1966), p. 530.
88 Olmstead, Brandeis dissent, p. 474.
86 Katz v. U.S, 389 U.S. 347 (1967).
"7 Ibid.
88 Terry v. Ohio, 392 U.S. 1 (1968).
11 Cupp v. Murphy, 412 U.S. 291 (1978).
o" 367 US. 643 (1961).
K Ibid., p. 657, quoting Bram v. U.S., 168
U.S. 532 (1897).
11 See ACLU Report and Hermann.
Mr. BAYH. Finally, it is not mere rhet-
oric, Mr. President, but a painful fact
that the procedures used in taking poly-
graphs far too strikingly resemble some-
thing from George Orwell's "1984." The
prospective job applicant or employee is
situated in a waiting room to be observed
through a one-way mirror by the exam-
iner who attempts to ascertain the in-
dividual's initial reaction to the entire
procedure. A polygraphist enters and
proceeds to ask seemingly innocuous con-
trol questions which assist him in deter-
mining the type of individual he is deal-
ing with. At the appropriate time, the
pneumograph tube-to measure respira-
tion-is placed about the subject's chest,
the blood pressure Cuffs---sphygmome-
ter-are secured around the upper arms
and electrodes are attached to the arms
and hands. Tension is accentuated be-
cause a job and-future, and much more,
are at stake. I do not believe, Mr. Presi-
dent, that any American should be sub-
jected to thls degrading procedure.
I ask unanimous consent that the con-
clusions of the subcommittee staff study,
together with the text' of the bill be
printed in the RECORD.
There being no objection, the material
and bill were ordered to be printed in the
RECORD, as follows:
THE POLYGRAPH TEST: CONCLUSIONS
A congressional subcommittee has con-
cluded:
"There is no 'lie detector,' neither machine
nor human. People have been deceived by a
myth that a metal box in the hands of an
investigator can detect truth or falsehood."
But whether or not the polygraph is a
myth, it seems clear that It is here to stay.
And, given modern ingenuity, it is not un-
reasonable to expect that new techniques
and devices will be devised in an attempt to
facilitate determining honesty. There are, in
fact, some already in use. The "wiggle seat"
is a new contraption. for lie detecting derived
from the original polygraph. It, too, meas-
ures and records physiological changes due
to heart action and a person's nervous move-
ments, but with an added advantage over
the polygraph. The wiggle seat's sensing is
mounted in an ordinary office chair. A sub-
ject sitting in the chair has his mechanical
energy changed to electrical energy which is
broadcast to hidden recording instruments.
Thus, the response detection can go on com-
pletely without the subject's knowledge.
Another type of examination that is gain-
ing-acceptance in American business is the
Psychological Stress, Evaluator (PSSE),U The
PSE registers theFM vibrations in a person's
voice. The premise is that under stress the
FM modulation is altered due to mouth and
throat tightening. A graphic picture of the
voice's modulations is made, and the pres-
ence and absence of stress are judged accord-
ing to the character of the markings. The
obtaining of the. conversation to be assessed
can be done secretively with the use of hid-
den tape recorders. The questions posed by
this method are the same as those that critics
of the polygraph have been raising, and pro-
ponents have been trying to refute, for
years. Can the stress in a person's voice be
directly attributed to lying? Can the evalu-
ator objectively and accurately detect lies
from physiological recordings of the voice?
What of the constitutional problems of test-
ing a speaker without his knowledge, so
easily accomplished by the PSE technique?
These two innovations indicate that rather
than being-curtailed, use of the polygraph is
being expanded, particularly in private busi-
ness. Attitudes of employers, insofar as poly-
graph testing is concerned, are characterized
in the following: "If a person refused to
take the test, we probably wouldn't hire
him." ll7 "I use the polygraph because I got
tired of playing God. It's hard to tell things
by looking at people." no Even a U.S. Court
of Appeals has lent its approval to polygraph
resting:
"A statement challenged on the ground
,hat it was obtained (from a polygraph ex-
amination administered to petitioner as a
part of a hiring procedure] as the result of