I join in Senator Kennedy's comments in appreciation for the hearing today, and I look forward to what our witnesses have to say. I am sure we will have several people testify who are far more expert than this Senator and probably most people in the Senate. I think there are a lot of questions as far as the use of the lie detector or polygraph examinations for employment, preemployment, and also for investigative purposes.

I think it is important for us to find out if they are reliable, have they been abused, have they been misused, have they violated employees' rights; are they a viable tool for industry in finding some problems that occur. The problems may be in drug tampering.

I am interested to know if we are looking at legislation that would prohibit the use of the polygraph in trying to investigate cases where we have seen drug abuse, where we have seen someone tampering with drugs, or where we have seen theft occur. I think we are going to have some people say that it has been a valuable tool.

Again, I do not have all the answers and I look forward to some of the statements. I have talked to some individuals who have said they felt like it is a very valuable tool in cases in even small retail outlets, where they have used the polygraph when they have noticed instances of theft occurring. They are able to use the polygraph to identify those sources of the problem.

Again, I am interested in knowing whether abuses are occurring then.

I am also interested in finding out more about the legislation, whether the sponsors of the legislation, in their prohibition of the use of the polygraph, are prohibiting the use of the polygraph for investigative purposes.

I appreciate your having the hearing today, and I look forward to the statements that will be made by our experts as well. The CHAIRMAN. Thank you, Senator Nickles.

Senator Kerry.

OPENING STATEMENT OF SENATOR JOHN F. KERRY Senator KERRY. Mr. Chairman, I want to first thank you for your foresight in being the principal sponsor of this important piece of legislation and for holding this hearing which I know will cover many of the issues involving the use of the polygraph in employment. As you know, polygraph use has tripled in the last 10 years and I believe that you share my belief that as industry reliance of this device grows, Congress has an obligation to decide whether the use of this so-called "tool" constitutes an infringement on the rights of employees and prospective employees. I believe that polygraph use, because of questions about its reliability as well as widespread instances of its abuse, are such an infringement and consequently I am a cosponsor of the Polygraph Protection Act of 1985 which was introduced by you with Senator Kennedy.

As you know, the polygraph instrument itself cannot detect lies. It is wholly dependent on a subjective reading by a polygrapher. A 1983 OTA study, whose principal author, Dr. Leonard Saxe, of Boston University, is with us today, concluded that lies were detected between 50.6 percent to 98.6 percent of the time and that

true statements were correctly classified between 12.5 percent and 94.1 percent of the time. That 50.6 percent number on the low side represents a reliability of 0.6 percent better than the flip of a coin, and a great deal of evidence indicates that it is for the most part much more difficult to prove a subject's innocence.

As a prosecutor in Middlesex County in Massachusetts, I found the polygraph to be a useful tool in helping to determine the veracity of statements by criminal defendants. Because of that experience, I an pleased that this legislation includes an exemption for Federal, State, and local governments as well as for contractors doing sensitive defense work. But of the estimated 2 million people a year who are administered polygraph tests, 98 percent of them are given by private business with 75 percent of those tests being given for preemployment screening. The OTA study concluded that "the available research evidence does not establish the scientific validity of the polygraph test for personnel screening." Yet the increasing amount of preemployment testing means an increasing number of our citizens who are dependent on the results of this often unreliable machine. American courts cannot compel defendants to take these tests and I believe that our basic American values are corrupted when we mandate these tests as a condition for employment.

There are other concerns that I have about the use of the polygraph as a tool of intimidation. The Florida polygrapher who noted that the polygraph was "the best confession-getter since the cattle prod" said a mouthful. Many polygraphers say that the bulk of their confessions take place just prior to the actual examination when the subject is told about the high accuracy of the machine. They believe that the specter of an infallible lie detector causes people to confess rather than be caught by the machine. I believe that this technique, which appears to be a fundamental part of the preemployment screening polygraph progress, is unfair and abusive to prospective employees where their only crime is wanting employment.

I am proud that my home State of Massachusetts long ago banned the polygraph for employment purposes. In 1959, we became the first State in the country to bar its use in employment. Our economy, as most of America knows, has thrived in recent years. Merchants and industries in Massachusetts, whose counterparts in other parts of the country say that they cannot do without the polygraph, are doing just fine and live without the huge losses that polygraph users allege would happen with a polygraph ban. In addition, I am told that some national companies who operate in States like Massachusetts or the 20 States that ban or restrict polygraph use, do, as a matter of course, test their prospective employees out of State. This bill would end this wholesale circumvention of our State laws.

Once again, Mr. Chairman, I want to thank you for holding this hearing. I look forward to listening to the testimony of the many experts and interested parties that we will be hearing from this morning.

The CHAIRMAN. Thank you, Senator Kerry.

Senator Thurmond.

Senator THURMOND. Thank you, Mr. Chairman.

Mr. Chairman, I wish to commend you for holding hearings to consider whether polygraph testing should be prohibited in the private sector.

The House of Representatives recently passed legislation similar to the bill which we are discussing today. I believe it is essential that we in the Senate carefully consider whether such a federally imposed prohibition is necessary.

I have often expressed my firm belief in the principles of the 10th amendment to the U.S. Constitution. Those powers which are not expressly delegated to the Federal Government are reserved to the States, or to the people. Accordingly, I am not convinced that regulating the use of polygraphs should be a matter of Federal law, especially when most State governments have already taken the initiative on this issue.

Thirty-one States have enacted polygraph regulatory legislation. It is possible that many others will do so. While it is clear that the polygraph is a controversial instrument, I am convinced that the approach taken by the House of Representatives goes too far and undermines the hard and careful work that the States are doing to develop their own law. The heated debate among scientists and academicians regarding the validity of the polygraph is evidence that this issue has not been resolved to the point that any national policy should be formulated.

Mr. Chairman, further, it has traditionally been within the authority of the States to regulate commerce within their boundaries. For instance, States have mechanisms to certify that those who deliver health care services to residents are qualified to do so.

State governments regulate insurance companies and real estate brokers in order to set standards for the services they deliver. The services offered by polygraph examiners are well within the ability of States to regulate, as is evidenced by the majority of States which have already enacted polygraph legislation.

Mr. Chairman, I have received a copy of a letter from Assistant Attorney General John Bolton which expressed the views of the Justice Department on this issue. In that letter Mr. Bolton asserts, and I quote: “Polygraph misuse may be more appropriately deterred by restricting the conditions under which polygraphs are administered rather than prohibiting their use altogether. The States are better equipped to make those determinations."

Mr. Chairman, I ask unanimous consent that a copy of this letter be placed in the record following the conclusion of my remarks. The CHAIRMAN. Without objection, we will do exactly that.

Senator THURMOND. Mr. Bolton suggests that States can provide avenues for appeal if someone feels his or her rights have been violated. States also can regulate the kinds of questions that are asked during polygraph tests, the equipment that is used, and the qualifications of examiners.

Mr. Chairman, this is an important issue, and I look forward to hearing from representatives of all affected parties before this committee considers this bill. Regrettably, scheduling conflicts prohibit me from remaining for the entire hearing. However, I intend to review the written transcript of this hearing at a later time.

Again, Mr. Chairman, I want to say the Federal Government continues to go into field after field where they do not have juris

diction to do so. That is one reason we have such a big deficit now-about $3 trillion. The Federal Government has gone into so many jurisdictions that are reserved to the States under the Constitution. This is one field that has never been delegated to the Union; therefore, it is reserved to the States, and we should observe the Constitution or amend the Constitution to give the Federal Government that authority, which has not been done. The CHAIRMAN. Thank you, Senator Thurmond. [The letter referred to by Senator Thurmond follows:]

After careful review of H.R. 1524 and its companion bill în the Senate, S. 1815, the Department of Justice has concluded that enactment of this legislation, even with the changes previously suggested by the Administration, would usurp private-sector decisionmaking and is contrary to principles of federalism. Therefore, the Department urges the House to reject H.R. 1524 when it is brought to the floor for a vote.

We know of no compelling reason why the federal government, or any level of government, should preclude private employers from using polygraphs. This Administration firmly believes that the terms and conditions of private employment, to the maximum extent possible, should be decided in the private marketplace. Government should not challenge an employer's judgments on the credibility of employees or prospective employees, however determined, absent some proof of impermissible discrimination. Even H.R. 1524, by its exemptions for drug theft or diversion, recognizes that polygraphs serve a useful purpose for some employers.

Moreover, important principles of federalism mandate that we do not intervene in matters that have traditionally been the responsibility of the states, and in which there is no overriding need for national policy uniformity. On the contrary, given that the scientific and legal boundaries of the polygraph issue are in a state of flux, it appears to be an appropriate area in which to allow the states to experiment with their own approach to any perceived problems. Nearly half the states have enacted laws regulating polygraphs, thus demonstrating the clear ability of states to handle this issue. Moreover, polygraph use is well outside of the traditional bounds of controversies related to terms and conditions of employment, an area largely preempted by the federal government.