Senator Simon, we will turn to you.

Senator SIMON. First of all, you used a phrase that I am not familiar with. You talked about "blind scoring."

Mr. BAILEY. Yes, sir.

Senator SIMON. What does that mean?

Mr. BAILEY. Very simply, the technique of numerical scoring, in order to eliminate the subjectivity an examiner might bring to it, has enabled the field examiner to score his polygraph charts and then, in the case of the FBI in particular-and it is used in other quadrants-to send them to the home office, where Mr. Minor heads up the quality control section, without knowing which questions were asked, but only which was relevant and which was a control-without even knowing the crime being investigated. They are rescored to see whether they come out plus or minus within the acceptable range. That is a second check. I could "blind score" an exam that Mr. Gelb and Mr. Bryzantine had conducted more than a week ago, without any more information than the numbers assigned to the questions which are either control questions or relevant questions, to see which provoked the greater response. And that is the technique of blind scoring.

Within 3 or 4 years, Senator, IBM personal computers will do the blind scoring, and a little more human error and body English will come out of it. But normally, the blind scoring by a good field examiner is echoed by the quality control examiner who does not know what blind score has already been assigned, what the original score was.

Senator SIMON. Now, I agree that the polygraph can be used very effectively to protect the innocent. In fact, on one occasion I recommended to someone-and I am not an attorney-but someone came to me, a friend of someone who had been indicted for murder. I recommended that that person-I said, "If your friend is really innocent, ask for a polygraph test; if he is not innocent, do not ask for a polygraph test. And he did, and the charges were dropped.

The question here really is, is it desirable in our society to go in a massive way to the use of polygraph testing? And I would be interested in your observations there.

Mr. BAILEY. Well, unfortunately, there are several answers, and the subject is controversial. If you are talking about testing an employee because you know that one in five took money, and you would like to save the four instead of firing them all, then I say yes, it belongs in that place.

If you are talking simply about preemployment screening, it can yield valuable information in the hands of a very highly ethical examiner who does not ask questions about your sex life. It is subject to abuse, but I believe the remedy for abuse is to go after the abusers and not kill the profession.

If the Virginia statute had caused the examiner to be bonded, Ms. Braxton would have collected her judgment. They did not think of that. Many privileges are exercised with assurance that you will answer for abuses. We lawyers can do the same thing.

There are a lot more abusive lawyers in this country than there are abusive polygraph examiners, percentagewise and otherwise. [Laughter.]

Senator SIMON. Senator Dodd?

Senator DODD. I apologize for coming in here late. We had a markup in another committee of two or three pieces of legislation. I looked over your "Autobiography for the Defense," and you had some interesting comments with regard to the polygraph. On page 65 of that autobiography-and I quote you here-you say, "It would be extremely unusual for a competent lawyer to let the other side select an expert"-a polygraphist in this case-"especially in view of the fact that the expert testimony in general too often aligns itself with the man who is paying the bill."

Assuming that the employer is going to be paying the bill, why would the employee subject himself to that kind of a test if in fact your statement here is accurate?

Mr. BAILEY. I believe that was applied to experts generally, and it is a problem we have in the legal profession. Everybody can always find a psychiatrist to agree with him.

Fingerprints, ballistics evidence-not so. We very seldom see the collusion. The polygraph examiners have these constraints. First of all, when they call a specific, they always run the risk that history will prove them wrong-someone else will confess, the man's innocence will be shown and they called him guilty-so they are very constrained.

Second, they have to answer to the profession; and flaws in polygraph tests are very widely publicized.

Third, if they ever take money to corrupt a test and are accused of it and refuse a test, they are done. They cannot say, "This is an inaccurate technique, and it would not help me if I were innocent.' They cannot do that.

So they are pretty well-regulated. In addition to that, if a person is both licensed in his State if there is licensing, and a full member of the American Polygraph Association-which many of your witnesses are not-you can rely on the fact that you probably have an examiner of very good skill and very good integrity. There is public protection. If anything, we need more professional regulation. We do not need to wipe out the asset.

Senator DODD. Well, there may be a better way. I appreciate what you are saying, and I see some merit, but you obviously appreciate as well the concerns of the other side, that no matter how well-regulated and so forth, if I am paying for the services of someone, there is a tendency to want to perform your duties and functions, I suppose-no matter how hard one tries to be objective, there is that problem.

Is there maybe a better way of providing for the hiring of the polygraphist, or-

Mr. BAILEY. Yes, if I thought there were any danger that that would infect the profession. I must tell you that when defense lawyers bring their clients to polygraphers, there is no friendly examiner. The phenomenon is a fraud. Eighty percent are flunked-80 percent. Now, that is not trying to please the guy paying the tab. Massachusetts addressed the battle of the experts by using a neutral-anybody can call anyone he wants. You could always get a neutral, the same way arbitrators get a neutral.

If that turned out to be a problem, which I do not think it is-I have not run into it—and I know most of these people pretty well, and what they do, and when they slip up, it echoes throughout the

profession-if that were a problem, there is a way to address it, short of making them outlaws.

Senator DoDD. Thank you.

Mr. BAILEY. I would like to point out, Senator, parenthetically, that once this august body almost caused my indictment, and I stopped it with a polygraph test. It was called the Watergate Committee.

Senator DODD. Thank you, Mr. Chairman.

The CHAIRMAN. Thank you so much, Senator.

Thank you so much, Mr. Bailey. We appreciate your being here, and we appreciate your testimony here today.

Mr. BAILEY. Thank you for the opportunity, Senator.
The CHAIRMAN. Thank you, sir. We appreciate it.

Our next two witnesses will be Dr. Leonard Saxe, associate professor of psychology at Boston University, and the author of the 1983 Office of Technology Assessment report on polygraphs, and Lawrence W. Talley, chairman of the Georgia State Board of Polygraph Examiners.

Dr. Saxe, we will begin with you and then go to Mr. Talley. We are going to have to limit everybody to 5 minutes from here on in, because I am running out of time.

We will turn to you, Dr. Saxe.

STATEMENT OF DR. LEONARD SAXE, ASSOCIATE PROFESSOR OF PSYCHOLOGY, BOSTON UNIVERSITY, BOSTON, MA; AND LAWRENCE W. TALLEY, CHAIRMAN, GEORGIA STATE BOARD OF POLYGRAPH EXAMINERS, ROSWELL, GA

Dr. SAXE. Thank you, Senator.

I thank you for introducing this legislation. I would like to submit my statement for the record and will briefly summarize it. I strongly support S. 1815. Enactment will serve to protect workers, employers, and the commonwealth.

Three years ago, for the Office of Technology Assessment, I assessed the scientific validity of polygraph tests. Our comprehensive review found neither theory nor data to support their use in the workplace.

No evidence exists that a unique physiological reaction to deception can be detected. In my judgment, prohibiting use by employers is an important step in controlling a deceptive and inaccurate technology.

Proponents claim that lying produces changes in heart rate, respiration, and skin conductance. Such theorizing is both facile and inaccurate. Sometimes, we are physiologically aroused when we lie, but arousal also results from benign causes. When people are anxious because they are being untruthful, the test is not functioning as a lie detector, but as a fear detector. As long as those subjected to a test believe that it can determine truthfulness, they may react physiologically to questions on which they are being dishonest.

Polygraphers acknowledge the centrality of fear. Much of their technique focuses on convincing subjects of its efficacy-a maneuver called establishing the psychological set. The polygraph, with its probes affixed to various parts of the subject's body, is a theatrical prop, not a truth verification machine.

We just completed a series of experiments where in one situation, we try to convince subjects of the polygraph's infallibility and ability to detect deceptiveness. In another situation, we indicated that the machine was fallible and demonstrated how a person could avoid detection. The results were absolutely clearcut. When subjects believed that the machine was infallible, almost all guilty subjects were detected. When subjects believed that the machine was fallible, we obtained virtually no detection of guilt.

Our findings indicate that fear of detection is key to the conduct of polygraph tests and that the polygraph is thus a placebo. Effectiveness depends upon the subject's naive belief. Problems arise when subjects do not share the examiner's belief in the divining rod capabilities of the machine. In such cases, dishonest subjects may not fear detection, and innocent subjects may appear deceptive.

Such problems are endemic to polygraph tests used in the employment context. Such tests fail to control for placebo effects and arousal that results from being asked about significant issues. What we have is a technology based upon scaring people into believing that they are physiologically transparent.

Were logic to prevail, I do not think we would be here at this point. Yet, we have been barraged by evidence on the efficacy of the polygraph that seems to suggest otherwise. This evidence ranges from serious research to half-baked surveys that would not pass muster in my sophomore research methods course. In fact, there is little research on polygraph tests-less than a dozen published studies of the actual use of polygraph tests are available. Although some will give you a numerical index of accuracy, such figures are drawn from fabric.

The polygraph test most often used in the workplace has received virtually no research attention. Not a single adequate field study exists of the validity of using polygraph tests to screen_employees. Without such data, how can anyone claim its accuracy?

Even if one assumed that other polygraph research was relevant to employment testing, most studies share a basic flaw-the polygrapher has available information in addition to the physiological data. When polygraphers score charts blindly, error rates are high. Polygraphers may be fine detectives but they do not possess the unique insight into individuals' innermost thoughts.

Any test used to screen employees, particularly those with sensitive jobs, should meet reliability and validity criteria. Psychologists are only permitted to use those tests that meet such standards. As has previously been discussed, the American Psychological Association has gone on record on this issue.

My own view is that absent generic regulation of tests, the present bill provides necessary protection. I urge that S. 1815 be adopted in its original form, and that the Senate reject amendments voted by the House which exempt various employees. It makes no sense to exempt individuals because they are in positions of great responsibility. Despite the well-meaning efforts of those who promote polygraphy as a deterrent to employee crime, it cannot serve as a deterrent for long.

The prohibition of polygraph testing would protect employees, employers, and society. Employees with integrity would be protect

ed from being falsely accused, and those who are most dangerous would not be exonerated. Employers would not be lulled into a false sense of security. And all of us will benefit when this deceptive and dangerous technology is eliminated.

Thank you, sir.

The CHAIRMAN. Thank you so much, Dr. Saxe.

[The prepared statement of Dr. Saxe and responses to questions submitted by Senator Quayle follow:]