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passed one and then seek to use that favorable result as evidence of innocence. Because of Fifth Amendment considerations, the prosecutor could not obtain the other examinations without the consent of the accused. Second, there is a substantial likelihood that the jury would give undue weight to polygraph results, ultimately displacing its own role as trier of guilt or innocence. Finally, attempts to introduce polygraph evidence could greatly increase the length of criminal trials in order to accommodate the necessary expert testimony. None of these considerations apply when the polygraph is used as a screening or investigative tool.

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. For example, Wisconsin provides procedures for the appeal of allegedly unfair testing and carefully controls the disclosure of results. Other states prohibit examiners from asking certain classes of questions, such as those dealing with political beliefs or sexual practices. Finally, many states require that polygraphs be administered only by licensed examiners.

Because the polygraph can frequently provide accurate information about a person's veracity, the federal government should not prohibit its use by non-government employers. Again, rather than a flat nationwide ban on polygraph use, the uses of, and safeguards surrounding, polygraph use should be resolved on a case-by-case, state-by-state basis to permit maximum flexibility. There are a wide variety of private-sector jobs that may require employers to take appropriate security precautions to insure against theft or industrial espionage. Certainly, stringent security precautions may be necessary for employees who work in jobs affecting public health and safety, e.g., technicians at nuclear power plants, airline pilots or those who work with narcotics and dangerous drugs. Moreover, we should not be indifferent to the plight of other employers, such as retailers who want to take prudent steps to ensure that their inventory does not disappear at the hands of their own employees.

Given the benefits of polygraph use and the ability of the states to protect adequately against any polygraph misuse, a nationwide ban on polygraph use is inappropriate. Consequently, the Justice Department opposes H.R. 1524.

The Office of Management and Budget advises us that there is no objection to the submission of this report from the standpoint of the Administration's program.

Sincerely,

Jol R Boltor

John R. Bolton

Assistant Attorney General

cc.

Honorable Orrin G Hatch
United States Senator

Honorable Strom Thurmond
United States Senate

The CHAIRMAN. Senator Wallop.

Senator WALLOP. Mr. Chairman, thank you.

I confess that I, too, cannot understand why the issue of a Federal polygraph law is before this committee. It seems a peculiarly bizarre idea.

The bill in front of us in concept is wrong, and in detail it is inconsistent. It is not a Federal issue. The regulation of polygraph examinations in the private sector actually rests with the States, with the courts, and the private collective-bargaining process. Federal law on this matter is an intrusion.

Both the concept behind this bill and the method of implementation make for bad legislation.

What is particularly disturbing is the discriminatory approach taken by the House of Representatives on this issue. Last year, the House passed an amendment requiring the Defense Department to increase polygraph testing to guard our national security. Last month, the House passed a bill designed to ban polygraph testing in the private sector.

However, it has limited reach since so many industries made a convincing case that they should continue to utilize the polygraph. Drug manufacturers, public utility companies, security service companies, nursing homes, and day care centers are some of the industries exempt from the ban.

At the same time many other businesses that have a legitimate security problem are prohibited from using polygraphs.

Now, a man who has his life savings in a drugstore can use the polygraph to protect his inventory. But the man down the street who owns a hardware store and has his life savings in it, or a shoe store and his life savings in that, cannot.

The House bill allows polygraphs for daycare centers, but bans them for private schools. This is certainly hypocritical. On the one hand, we allow the national security agency, the CIA, the Defense Department, and other agencies to use the polygraph to conduct their investigations. Standards are set to ensure that the tests are fair and accurate. Yet we turn around and tell American companies that they cannot use the same test to protect their security. It would seem a much more reasonable and responsible approach to let private industries use polygraph tests where they are appropriate. The States will continue to regulate this area to assure their citizens that the tests will be fair and accurate.

The Federal Government, Mr. Chairman, should not interfere in this process.

The House bill has set up a pattern of discrimination among private businesses as well as between the private and public sectors. This is the wrong course to be taking. I would hope that today's hearing will put this issue to rest, and that this legislative effort stops here.

The CHAIRMAN. Thank you, Senator Wallop.

We will turn to our witnesses now. At the outset, I would like to make a comment on a procedural matter. Because of the number of witnesses we will have appearing today, we have asked each witness to limit his or her testimony to 5 minutes. So I am going to ask all committee members to limit their questions to 10 minutes because of time constraints.

To help us all, we will be using these timing lights. When the red light flashes, we are just going to have to move on. Naturally, if there is a request, we will place an extended written statement from each witness in today's hearing record, and we will place all written statements into the record as though fully delivered.

Our first three witnesses this morning will be Senator Chic Hecht from Nevada, our colleague; and our two colleagues from the House, Congressman Pat Williams, the sponsor of the House counterpart to S. 1815, and Congressman Stewart McKinney, who has been working to ban polygraph examinations for several years.

So gentlemen, we welcome you to the committee. We will start with you, Senator Hecht, and then we will go to Congressman Williams and then to Congressman McKinney.

Excuse me. Before we begin, let me just say that Dan Quayle, an eminent member of this committee, is chairing a Defense Acquisition Subcommittee hearing this morning, so we will place his statement in the record as though fully delivered at the end of Senator Wallop's statement.

Senator KERRY. Mr. Chairman.

The CHAIRMAN. Yes, Senator Kerry.

Senator KERRY. I just would ask that my statement also be put in the record.

The CHAIRMAN. Without objection, we will place Senator Kerry's statement at an appropriate place in the record.

Senator Hecht.

STATEMENT OF HON. CHIC HECHT, A U.S. SENATOR, FROM THE STATE OF NEVADA; HON. PAT WILLIAMS, MEMBER OF CONGRESS, STATE OF MONTANA, AND HON. STEWART MCKINNEY, MEMBER OF CONGRESS, STATE OF CONNECTICUT

Senator HECHT. Thank you, Mr. Chairman.

In the essence of time, Senator Thurmond and Senator Wallop expressed my views completely, and I ask that my statement be included in the record on how this particular piece of legislation will affect my State.

I thank you for your courtesy.

The CHAIRMAN. Well, thank you, and we will place that in the record.

[The prepared statement of Senator Hecht follow:]

The CHAIRMAN. Senator Wallop.

Senator WALLOP. Mr. Chairman, thank you.

I confess that I, too, cannot understand why the issue of a Federal polygraph law is before this committee. It seems a peculiarly bizarre idea.

The bill in front of us in concept is wrong, and in detail it is inconsistent. It is not a Federal issue. The regulation of polygraph examinations in the private sector actually rests with the States, with the courts, and the private collective-bargaining process. Federal law on this matter is an intrusion.

Both the concept behind this bill and the method of implementation make for bad legislation.

What is particularly disturbing is the discriminatory approach taken by the House of Representatives on this issue. Last year, the House passed an amendment requiring the Defense Department to increase polygraph testing to guard our national security. Last month, the House passed a bill designed to ban polygraph testing in the private sector.

However, it has limited reach since so many industries made a convincing case that they should continue to utilize the polygraph. Drug manufacturers, public utility companies, security service companies, nursing homes, and day care centers are some of the industries exempt from the ban.

At the same time many other businesses that have a legitimate security problem are prohibited from using polygraphs.

Now, a man who has his life savings in a drugstore can use the polygraph to protect his inventory. But the man down the street who owns a hardware store and has his life savings in it, or a shoe store and his life savings in that, cannot.

The House bill allows polygraphs for daycare centers, but bans them for private schools. This is certainly hypocritical. On the one hand, we allow the national security agency, the CIA, the Defense Department, and other agencies to use the polygraph to conduct their investigations. Standards are set to ensure that the tests are fair and accurate. Yet we turn around and tell American companies that they cannot use the same test to protect their security. It would seem a much more reasonable and responsible approach to let private industries use polygraph tests where they are appropriate. The States will continue to regulate this area to assure their citizens that the tests will be fair and accurate.

The Federal Government, Mr. Chairman, should not interfere in this process.

The House bill has set up a pattern of discrimination among private businesses as well as between the private and public sectors. This is the wrong course to be taking. I would hope that today's hearing will put this issue to rest, and that this legislative effort stops here.

The CHAIRMAN. Thank you, Senator Wallop.

We will turn to our witnesses now. At the outset, I would like to make a comment on a procedural matter. Because of the number of witnesses we will have appearing today, we have asked each witness to limit his or her testimony to 5 minutes. So I am going to ask all committee members to limit their questions to 10 minutes because of time constraints.