The ASTM Exclusionary Standard and the APA "Litigation Certificate" Program
By Jonathan Marin
What is the Exclusionary Standard?
The Exclusionary Standard is an implementation of ideas proposed in the article (1) "He Said / She Said" published in Polygraph, Volume 29 Number 4 (2000) p 299. (An extended version appears on the web at URL: http://users.rcn.com/jonmarin//Polygraph1.htm .]
The concept applies established statistical principles to "He Said/She Said" situations where one of a pair of opposed witnesses is almost certainly lying. In such situations, Psychophysiological Detection of Deception (PDD) results from both witnesses can be evaluated together and reliably used to exclude untrustworthy testimony. The underlying statistical concept is simple enough:
If you roll one die, the chance of getting a 6 is 16.66%.
Roll two, and the chance of getting two 6s is only 2.77%.
When applied to paired PDD results, the statistical gain is clear. Suppose that the probability that either result alone will be wrong -- false positive or false negative -- is comparable to getting a 6 on a single roll of a die, or 16.66%. If participation is limited to examiners using standardized techniques, who irrespective of other credentials have demonstrated an accuracy rate of at least 85% in a controlled protocol, then error rates lower than 2.77% can be confidently predicted. Because the standard utilizes paired results to exclude untrustworthy testimony rather than to admit the results themselves into evidence, longstanding precedent against the admissibility of polygraph results need not change.
What are the Social Implications?
Application of the proposed standard will sharply reduce the incidence of perjured testimony in both the criminal and civil justice systems, and therefore offers important benefit to society as a whole. Because it opens a whole new domain for the practice of PDD, its implementation will be especially beneficial to APA members, the APA, and the PDD profession as a whole.
Applied to criminal cases, paired testing will reduce the incidence of wrongful convictions due to perjured testimony of:
Informants testifying with an expectation of leniency
Witnesses with an undisclosed interest in the outcome
Police officers testifying to the voluntariness of confessions and the circumstances surrounding searches and seizures.
Applied to civil cases, it will:
Reduce the number of groundless lawsuits initiated.
Reduce the incidence of meritorious suits stymied by specious, perjury-dependent defenses.
Reduce the load on the courts, thereby speeding justice for meritorious litigants.
Reduce the incidence of tried cases that are decided incorrectly due to perjured testimony.
Increase courts' willingness to penalize frivolous litigants and their attorneys.
Litigants and their attorneys will understand that they have little hope of winning if their opponents' key witnesses will be allowed to testify, unopposed, about the important facts in the case. The high costs of litigation provide a strong incentive against sustaining a case in the face of those odds. Litigants who nevertheless persevere will risk being found frivolous by the court, and burdened with their opponents' legal fees as well as their own. In their own best interest, rational plaintiffs' attorneys will advise their clients to abandon their case, and rational defendants' attorneys will advise them to offer a quick and equitable settlement.
Paired testing need not be applied to all testimony in dispute. At the least, however, it should be applied to witnesses in both criminal and civil litigation, where:
The facts in dispute make it likely that the case will hinge on whom the jury believes.
The nature of the transaction makes it unlikely that either party could be honestly mistaken.
Exclusion based upon paired test results, even under the tight constraints in the proposed Standard, does not provide the absolute certainty that DNA often can. It applies, however, to a much wider range of cases than DNA, whose applicability is essentially limited to paternity cases and crimes involving intimate violence. It will permit civil cases to be resolved more quickly and fairly. It will deter many constitutional violations and other forms of police and prosecutorial misconduct that lead to wrongful convictions, and it will help innocent persons who are nevertheless erroneously accused or wrongfully convicted. For these reasons, it will foster favorable public recognition for PDD, comparable to that now enjoyed by DNA science.
Why is Standardization Desirable?
The Exclusionary Standard is at present under consideration by the American Society for Testing and Materials (ASTM) for designation as a standard. The ASTM develops and promulgates standards for product specifications, quality control, test regimens and performance criteria, terminology definitions, and professional practices. ASTM standards play a preeminent role in product design and government regulations for products ranging from Aerospace and Aircraft to Vehicle-pavement systems, and for services from Emergency Medical Services to Waste Management. The standards are formulated by some 170 committees, each composed of persons having appropriate expertise. [2]
The province of the Committee on Forensic Sciences includes forensic engineering, criminalistics, questioned documents, fire debris analysis, drug-testing analysis, and collection and preservation of physical evidence. The Committee on Forensic Psychophysiology is responsible for PDD standards in research, polygraph instrumentation, quality control, examiner education and training, and ethics. [3]
ASTM designation of the Exclusionary Standard will be valuable for several reasons. Standardization will preclude protracted negotiation on a case-by-case basis that would add cost and offer scope for obstruction and delay. Trial courts will not risk being burdened with motions contesting procedural details, nor be required to make rulings outside their expertise. Appellate courts will have an unambiguous clear base from which to gauge departures and irregularities.
Requests for standardized paired testing will be simple, straightforward, and well defined in their meaning. Parties will not stand to gain from requesting paired testing as a spurious show of good faith, with the intention of impeding the process later. Standardization will therefore allow strong inferences regarding the merits of parties’ cases to be drawn from both requests and refusals.
Standardization will allow experience data from multiple jurisdictions to be combined in order to widen acceptance, and evaluate and accommodate refinements. An ASTM standard will also provide a model for legislatures to use when incorporating paired testing into rules of civil and criminal procedure.
The standard will simultaneously make PDD both more flexible and more rigorous. Demonstrable advances in instrumentation and technique can be rapidly deployed but will have to meet stringent empirical criteria. Whether for particular phases and components or for whole examination protocols, there is no constraint other than that a proposed advance be sufficiently plausible to justify the cost of the necessary trials. The standard will thus serve as a proving ground for sound pre-test procedures, instrumentation, and scoring systems, etc., which may then become standards in their own right.
Trials of individual phases and components obviously carry a lower risk of failure than do whole new protocols. In the context of the Exclusionary Standard, their standardization will increase diversity of PDD at the detail level, complicate the preparation of defensive measures by subjects who intend to be deceptive, and help make the exclusionary process increasingly robust against the possible evolution of effective countermeasures. In a broader context, their standardization will:
Constitute a framework of knowledge within which the effectiveness of new techniques can be precisely assessed.
Guarantee "apples-to-apples" meaningfulness of comparative field data
Move PDD toward the Science end of the Science-Art continuum.
Provide sound defenses against charges that PDD is "junk science"
Clarify performance criteria for those aspects which remain an art
Facilitate quality control at all levels
What are the Benefits to APA Members
Enhanced Professional Prestige
Few aspects of a society are more important than that its legal system not harm citizens unjustly and that it deserve their confidence that they can themselves seek justice with a reasonable expectation of achieving it. The high status accorded to the legal profession and its practitioners reflects this. Dislike and distrust for lawyers is deep and widespread, however, and reflects serious legitimate grievances with the legal system. People abhor being cast as extras in their own movie, helplessly reliant on the advice of counsel whose industry, competence, and honesty they are unequipped to judge. They condemn the cynicism and moral anaesthesia that is an occupational hazard of professionals who spend much of their careers espousing the causes of clients they know to be in the wrong (4, 5, 6). They question a system where outcomes often have less to do with the merits of the case than with the ability to inflict and withstand stress and expense. Most of all, perhaps, people resent that they are unable to access justice directly but may approach it only through the intermediation of lawyers, who thereby function as an obligatory priesthood standing between them and it.
The Exclusionary Standard offers relief from these grievances. It promises honest litigants a fast and fair outcome dependant on the merits of cases rather than on the machinations of attorneys. People will appreciate that it reduces their exposure to malicious lawsuits and their strain and expense if one is brought against them. They will perceive that the Standard protects them from police excess and unjust prosecution. Their recognition that the protection they enjoy is not mediated by lawyers, but by the PDD profession, will enable the profession and its practitioners to claim a prestige commensurate with its new importance.
Higher Incomes and Expanded Opportunities
Laboratory studies have repeatedly demonstrated that that we humans aren’t good lie detectors, e.g. [7][8]. PDD can trace its origin to that fact. That knowledge gives dishonest litigants hope that they may prevail, and reason to pursue their case, and together with the high costs of litigation often causes honest litigants to acquiesce to less-than-optimal settlements.
The Exclusionary Standard will enable honest litigants to improve their prospects of a favorable outcome. The implications are enormous. The number of lawsuits initiated or maintained because one of the parties is lying is so large that, despite the reduction in number of lawsuits initiated, and despite the cases that will be abandoned when PDD is demanded, it will open a vast new market for PDD services.
All practitioners stand to benefit. Practitioners holding Litigation Certificates will benefit directly. Litigation is expensive. The standard is litigants’ avenue of escape from having to pay attorney fees of $200 per hour or more while having to endure an open-ended gauntlet of depositions, interrogatories, and motions drafted and answered. Litigants will readily cost-justify, and gladly pay, high rates for the one-time services of Litigation Certificate holders.
The demand for the present range of PDD services will not be affected by the standard, but the pool of examiners available to address it will shrink as examiners become certified and concentrate on litigation work. The law of supply and demand ensures that the remaining uncertified practitioners will be able to book more examinations at higher rates than at present.
The examiner shortage will also cause significant increases in the number and attractiveness of positions for new practitioners, and in the number of candidates wanting to fill them. Existing training programs will expand, and new ones will be established. The need to man them will create additional opportunities for experienced examiners.
The private-sector opportunities spawned by the Standard will be attractive to many of the examiners who now work for federal, state, and local government. Many examiners will become certified and leave government service for private-sector opportunities, facing the agencies with an urgent personnel retention problem. Agency management will realize, perhaps after a brief period of trial and error, that they can stem the exodus only by offering better pay, reduced workload, and improved conditions. The Standard thus promises benefit to all public-sector examiners, whether they decide to leave or stay on.
What Will the Certification Process Involve?
The validity of the standard depends ultimately on a high underlying rate of accuracy. The credibility of any implementation rests on solid evidence that certified examiners are capable of achieving such a rate not only as a class, but individually. The certification protocol will be modeled closely on the certification protocol currently being developed by DODPI.
In broad outline, that means that candidates will:
Demonstrate a clean record and meet minimum formal education requirements
Correctly score charts from an archive of examinations where ground truth is known
Administer examinations in accordance with a procedure which DOD has put through trials in a well-defined laboratory setting producing accuracy rates of at least 85%
Receive approval of their correct administration of the procedure from examiners who following that procedure in a laboratory setting have personally achieved accuracy of at least 90%
Details of PDD protocols and novel countermeasures are regularly disseminated in print and on the Internet. To ensure continued validity of any approved protocol, it will be necessary periodically for some successful candidates to participate in full-scale laboratory studies and to have their results cross-validated.
Before being approved for certification purposes, new protocols and equipment will have to pass empirical trials.
Taken as a whole, this certification process will:
Protect the integrity of the standard
Help APA distinguish itself and its members from examiners of uncertain capability who inhabit the fringes of the profession
Enhance respect for PDD professionals
Identify and distinguish effective and ineffective procedures
Critically weaken the position of those who oppose PDD on the ground it lacks a proper scientific basis. It will marginalize studies that have shown low accuracy and establish repeatable high rates of accuracy as an observed phenomenon. It is the business of scientists to explain observed phenomena, not deny them.
Establish a baseline from which to evaluate new hardware and methodology
Control liability exposure of Litigation Certificate holders and of the APA
What are the Benefits to the APA
Drives Revenue Growth
Because certified examiners will be able to book more examinations and command a higher rate per examination, the Litigation Certificate promises to be an extremely valuable asset. The APA will be able to charge candidates the full costs of their certification, plus a modest premium to defray the costs of interfacing with legislatures, education of the legal community and the public, and related programs. Certificate holders and their firms will have no difficulty cost-justifying a fee to the APA for the annual renewal of their certificates.
A substantial increase in APA membership can be expected, reflecting the enhanced prestige of the APA as well as the desire of current non-members to become eligible for certification.
The standard promises to integrate PDD into the legal system. Its new and vitally important role will make the APA an attractive recipient for a wide range of government and foundation grants:
To subsidize establishment of an initial population of Certificate holders
To cross-validate the certification protocol to lab studies
To validate new technology and equipment
To validate new approaches to question formation, scoring, etc.
To assure no degradation due to familiarity or countermeasures
To educate the public, the legal profession, and the courts
To characterize and quantify the effects, through time:
On court calendars
On disposition of criminal cases
On police and prosecutorial misconduct
On lawsuits filed
On intervals between filing and settlement
Helps APA Enhance Prestige, Form Alliances and Promote its Agenda
The various education and public information programs will serve, incidentally but effectively, as powerful public relations engines for the APA. Major improvements of the legal system don’t happen often. When they do, they’re real news. At first the promise of improvement, and later the results in practice, will attract favorable media coverage, e.g.:
"Manna for the Honest Litigant"
"Unclogging the Courts"
"Faster and Fairer"
"Righted Wrongs
The media will have a reason to take an interest in experiments that demonstrate how poor we humans are at detecting deception. In high profile cases such as the recent O.J. Simpson "road rage" trial and the Rabbi Neulander murder trial, where witnesses tell diametrically opposite stories, PDD will be central to the case, and to the story.
Publicity and prestige will enhance the influence of the APA in its efforts to advance licensing and other items on its public policy agenda. The APA will also be better positioned to attract a variety of influential allies:
Bar Associations interested in promoting the credibility and integrity of the legal profession, an interest that will outweigh the parochial interests of trial lawyers, who are in the minority
Courts interested in correct outcomes and shortened calendars
Legal Aid and others vulnerable to "strategic" abuse of motions and the discovery process
Public Defenders interested in focusing resources on the actually innocent
Insurance industry interested in reducing groundless tort claims, legal malpractice claims, and litigation costs
Corporations that design, manufacture or sell consumer products, interested in reducing exposure to inflated and fraudulent product liability suits
Consumer advocacy groups interested in streamlining the relief process for true victims of actually defective products
Implementation of the Standard will place PDD squarely at the center of profound and highly visible improvements in the legal system, yielding many important benefits to the APA and the profession. It is in the interests of all PDD professionals to actively support ASTM acceptance of the standard, and aggressive pursuit by the APA of the opportunities it opens.
NOTES
[1] "He Said / She Said", Polygraph, Volume 29 Number 4 (2000) p 299.
[2] American Society for Testing and Materials, web site at URL: http://www.astm.org/
[3] A complete alphabetical listing of the ASTM technical committees with links to all of them is on the web at URL: http://www.astm.org/cgi-bin/SoftCart.exe/COMMIT/numcomm.html?L+mystore+azpk6464+1004357034 The links to the committees on Forensic Science and Forensic Psychophysiology are E30 and E52 respectively.
[4] James R. Elkins: The Moral Labyrinth of Zealous Advocacy, 21 Cap. U. L. Rev. 735 (1992)
[5] Charles W. Joiner: Our System of Justice and the Trial Advocate, 24 U. San Francisco L. Rev. 1, 15-19 (1989)(At the time the article was written, the author was Senior United States District Judge for the Eastern District of Michigan)
[6] Lawrence K. Hellman: The Effects of Law Office Work on the Formation of Law Students' Professional Values: Observation, Explanation, Optimization, 4 Geo. J. Leg. Ethics 537 (1991) Hellman refers to the problem as "moral malaise".
Note: The problems analyzed by [4],[5], and [6] are specific to the legal profession, and are distinct from the problem of incompetent and unscrupulous practitioners that afflicts every occupation to some extent. Canons of ethics require the litigation attorney to be the zealous advocate of his client’s cause. He transgresses the bounds of his role if he presumes to restrain his advocacy in the interests of "justice" based on his personal judgement of his client’s cause. Justice is presumed to emerge from the adversary system when all participants perform their defined roles well. Judgment is the province of the jury or the court. The conflict between normal values and the mandated indifference to them leads to the deadening of moral awareness that I call "moral anaesthesia".
[7] Vrij, Aldert: The impact of information and setting on detection of deception by police detectives. Journal-of-Nonverbal-Behavior; Vol. 18(2) 117-136 (Sum 1994). 360 police officers evaluated videotaped interviews for deception. They were separated into 12 groups varying by setting and information. Accuracy was low – the best being about 60%.
[8] DePaulo, Bella M.: Spotting lies: Can humans learn to do better? Current-Directions-in-Psychological-Science; Vol. 3(3) (Jun 1994) Found no significant difference at detecting deception between college students and trained law enforcement officers.
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Copyright (C) 2001 by Jonathan Marin
HE SAID / SHE SAID: How to Keep Liars Out of Court Expanded version of original article published in Polygraph
SELECTED LINKS
UNITED STATES vs. SCHEFFER, AMICUS CURIAE BRIEF IN SUPPORT OF SCHEFFER COMMITTEE OF CONCERNED SOCIAL SCIENTISTS (Charles F. Peterson, Counsel of Record and Charles R. Honts, Ph. D., Primary Author)
UNITED STATES vs. SCHEFFER, AMICUS CURIAE BRIEF IN SUPPORT OF THE GOVERNMENT CRIMINAL JUSTICE LEGAL FOUNDATION