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The Lie Detectors: The History of an American Obsession provides an entertaining and at times absorbing account of the people who invented, developed, popularized and manipulated the machinery of lie detection. According to Ken Alder, a professor of history at Northwestern University, lie-detector tests first came into use in the 1920s, when researchers hypothesized that measured changes in blood pressure and respiration rates could detect stress and hence the possibility of lies. In the course of his book, Alder discusses U.S. courts’ historic reluctance to admit lie-detector results as evidence in judicial proceedings. He ascribes much of this hesitancy to a guild-like resistance to any methodology that might threaten the primacy of courtroom cross-examination as the centerpiece of the Anglo-American common-law system. At the same time, Alder makes clear his own distaste for the use of lie-detector devices. In their misperceived accuracy, he says, lie detectors threaten to convey an aura of certainty where no such thing is possible. The conclusions drawn from their readings are driven in the main by the skills – or wiles – of their operators in manipulating respondents’ fear of the devices. Leonarde Keeler, who devoted his life to improving and marketing a lie-detector device, was reluctant to mass-market his machines. He was afraid that should the machines be used by untutored operators, the impressive percentage of confessions he was able to elicit would inevitably decline. Because lie-detector results depend on the administrator’s talents in framing the questions, polygraphers and psychologists have long disagreed on whether the lie detector can ferret out liars. Except where the parties to litigation stipulate to the admissibility of lie-detector evidence, the courts have tended to adhere to the exclusionary rule in Frye v. United States (1923). There the Court of Appeals of the District of Columbia upheld a second-degree murder conviction against the objection that the trial court had excluded the defendant’s proffer of evidence that he had passed a “systolic blood pressure deception” test. The appellate court concluded that the test had “not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony” based on lie-detector results. The courts have only recently begun to allow some discretion to trial judges to determine admissibility, especially when the evidence is offered by a defendant to establish his innocence. The working elements of the lie-detection device emerged early: By the 1920s, the machinery as we know it today was largely in place. Until Congress restricted the practice, the use of lie detectors in the private sector reached astounding numbers. In fact, some two million people a year were tested in the 1980s as commercial firms strove to weed out prospective or current employees who might engage in pilferage or other unsavory practices. Alder says that many lie-detector devices are used today in negotiating plea bargains that dispose of the great majority of criminal charges. It was the federal government that brought the lie detector front and center – first during and after World War II, when the military tested German prisoners of war for their suitability to serve as civilian police in postwar Germany; in the search for actual or potential leakers at the atomic energy facilities at Oak Ridge, Tenn., and in the newly created CIA; and in the McCarthy-era campaign to root out Communists and homosexuals from government employment. There is no way to number, much less retrieve, the careers and lives put at risk or destroyed by the essentially uncontrolled use of the lie detector to root out “disloyal” or “suspect” Americans from government service. Interestingly, Alder recounts that J. Edgar Hoover’s FBI resisted the use of lie-detection machinery on the ground that the devices were useful only as “psychological aids” to intimidate respondents and dependent for results on the discretionary judgments of their human operators. Alder touches briefly on recent developments in lie-detection devices – machines that read brain waves or that draw on functional magnetic resonance imaging. He tends to be as skeptical about the efficacy of these latest iterations as he is of their earlier counterparts. In a recent article, however, Jeffrey Rosen, a law professor at George Washington University, suggests that the new technology may achieve such levels of accuracy in the near future as to overcome the traditional judicial reluctance to accept mechanically generated lie-detection results in evidence. We appear to have embarked upon a brave new world, indeed. This article originally appeared in Legal Times, a publication of ALM. LEONARD H. BECKER is a member of the D.C. Bar. He was formerly D.C. bar counsel and general counsel in the executive office of then-Mayor Anthony Williams.

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