Archive for the ‘Uncategorized’ Category

“How to beat a lie detector”

September 2, 2013

An Indiana prosecutor announced last week that a federal judge should seek extensive jail time for a Mr. Chad Dixon. By day, Mr. Dixon is your workaday Joe American: small-town Indiana, owner of a small family business, father of three struggling to pay his bills, just like everybody else. But when night falls, Dixon sheds his charming exterior in favor of a nefarious scheme that has everyone from the FBI to Customs to “an unnamed intelligence agency,” from the Air Force to “69 to 100 communities,” in utter disarray, shattered by Dixon’s masterful con game:

Prosecutors are asking a federal judge to send a “strong message” by sentencing an Indiana Little League coach to prison for trying to teach as many as 100 people across the country how to beat lie detector tests.

In a test case aimed at deterring other such polygraph instructors, prosecutors have urged the judge to sentence Chad Dixon to one year and nine months in prison, citing a “career of criminal deceit” that included teaching the techniques to child molesters, intelligence employees and law enforcement applicants.

In short, according to the Indiana prosecution, a blog post with this title is a potential threat to the very fabric of American society, that the only thing between us and general disarray is the hammer of justice itself, the polygraph – the “lie detector.”

Now, the real story beneath the hyperbole of this article is that Mr. Dixon’s extracurriculers viz-a-viz the polygraph are more interesting for his actively coaching criminal suspects to lie to investigators than for their general strategies for how to beat a lie detector. But the prosecution has stated its goal of discouraging people from teaching others techniques for beating the lie detector, and so the question is raised – what’s wrong with teaching people how to beat a useless investigatory tool?

The colloquial name for the polygraph machine, the “lie detector,” is a misnomer, since the polygraph does not detect lies or any other mental states. Rather, the polygraph reads a select few of the enormous number of physiological indicators of stress, and from this stress the prosecutor receiving the information from the polygraph examiner reading a select few indicators of stress infers that the test-taker is either lying or telling the truth. The extremely attenuated connection between a prosecutor’s interpretation of a polygraph reader’s interpretation of a polygraph machine’s interpretation of a polygraph taker’s stress levels forms the basis for all polygraph evidence, which is why most employers are banned from using it in pre-employment screening, five states have banned its use by employers entirely, and virtually every state at least restricts the ability of prosecutors to bring in polygraph evidence.

The most common limitation on polygraphs is to admit them by stipulation only – that is, only if both parties agree before the test is administered that, no matter the outcome, the outcome will be offered for the jury. This creates a certain gamble for either side – the prosecution might request a polygraph in order to try to “prove” that one party is lying, only to have that person “pass” the polygraph, thereby undermining the prosecutor’s case, and vice versa with the defense. It also gives the party being tested ample time to follow famed Soviet spy Aldritch Ames‘ advice on how to beat a polygraph: “get a good night’s sleep,” eat hearty breakfast, and go into the test on minimal stress. Because how’s the stress-detector going to infer lies from nonexistent stress? (An interesting consequence of the ability to beat the polygraph with low stress is that, at least in theory, sociopaths should be immune to the polygraph.)

In contrast to the states, where local laws often draw bright lines over how and when the polygraph is admissible, federal jurisprudence has created a complex weave of rules and exceptions over how and when either side can bring the polygraph into a federal case. At the axis of this confusing web is Rule 403, one of the Federal Rules of Evidence, forbidding the introduction of information whose value as evidence of a fact or crime (“probative value”) is outweighed by its tendency to confuse the jury or prejudice them against the defendant. Where questions of a scientific nature are concerned (and the question of whether or not physiological indicators of stress can be used to reliably infer deception most certainly is a scientific one), the test of probative value you need to pass is called the Daubert standard.

Prior to the Daubert standard (ironically created by a case overturning a different case that excluded polygraph testimony as unscientific), the reigning sole condition for whether or not expert scientific testimony was admissible was whether or not a given practice was accepted as scientific by the community that uses that practice. If you kind of squint and don’t think about it too hard, this old standard (the “Frye standard”) seems reasonable enough. Fingerprinting is likely thought to be scientific by forensic experts, right? But on the other hand, homeopathy is likely thought to be scientific by homeopaths, which is the community that uses homeopathy, and so on the old standard, evidence derived from the methods of homeopathy was theoretically admissible under the old standard.

The Daubert standard is more amorphous but I think significantly more scientifically meritorious than the Frye standard. It has several components, the most important of which are that scientific testimony must rely on methodology derivable from the scientific method, and that “the scientific method” is determined (non-exclusively) by such factors as falsifiability, the success of the evidence under peer review, a known error rate, acceptable standards for the control of such practices, and the acceptance of the scientific community of that methodology (formerly, this was the sole relevant criterion). So how does the polygraph hold up?

Sadly, the Supreme Court chose to duck the application of Daubert to the polygraph, declaring instead that local rules control and that the polygraph is admissible sometimes and leave it to the circuit courts to make that call, but at least five of the circuits have held that polygraph evidence is almost universally excludable, especially when the party importing it to trial is not doing so under the stipulation method discussed above. This is perfectly consistent with the known ambiguous-at-best statistical evidence for the actual reliability of the polygraph. More general objections – such as that stress does not always mean lying, especially in stressful situations like police interrogations, or that there are Constitutional questions as to whether or not a criminal defendant, or even his lawyer, or even trial judges (who are left as gatekeepers of scientific evidence by the Daubert standard), generally have the scientific literacy necessary to understand the problems with polygraph evidence or that the context in which it is being used varies its results – hardly seem necessary when the hard data itself tells us that the polygraph is unreliable.

That is why Rule 403 is the nucleus of arguments that tend to exclude polygraph evidence – because Rule 403 knows that, even if the other side has all the time in the world to explain the scientific shortcomings of polygraph evidence, the jury always stands to be confused or prejudiced against people who “fail” the “lie detector.” There’s a certain Cold War charm, an association with the gadgetry of espionage, connected to the polygraph. Television shows often depict its results as a smoking gun, with the polygraph working like a seismometer for deception. The mere transformation of “stress-detecting polygraph” into “lie detector,” bypassing miles and miles of missed inference between them, is itself evidence that culture attaches far more weight to these devices than they deserve and, as such, they tend to be more prejudicial than probative.

As to Mr. Dixon’s classes, they hardly seem worth the thousand dollars a pop that he apparently was charging his clientele (many of whom he apparently advised not just to “beat the lie detectors” but to “lie to the detectives”) since there are so many legal avenues to avoiding it entirely. If being a sociopath or a well-trained Soviet spy or a yogi isn’t your thing, you can always simply refuse to stipulate to one, or craft a clever Daubert motion to exclude it.

The gay marriage decisions, part 2: Hollingsworth continues an uncomfortably strong reading of the ‘standing’ doctrine

June 28, 2013

Yesterday, the Supreme Court handed two significant defeats to opponents of LGBT equality: United States v. Windsor, discussed yesterday, and Hollingsworth v. Perry. By all accounts, Windsor is far and away the more important case. It more or less establishes that the gender of married parties, and whether married parties are or are not the same gender, is off-limits when the federal government is decided how to parse out marital benefits. That is a huge triumph for marriage equality (though, as discussed in yesterday’s post, the scale of the triumph is somewhat diminished by weak federalism).

Hollingsworth, on the other hand, technically says nothing at all about gay marriage per se. It allows no new marriages, it creates no new rights, it recognizes no existence gay marriages. It answers none of the questions that both parties to the case wanted answered, the most important of which would have been whether or not the state constitution of California, or the charter of California, forbids the denial of marriage benefits to same-sex couples. In fact, it answers a question that neither party asked at all, that is, whether or not the opponents of gay marriage had the right to be challenging the case at all. Hollingsworth speaks to the “standing” of the appealing parties, which neither party actually seriously challenged at any stage prior to the Supreme Court appeal.

“Standing” is a complicated thing, and I don’t mean that it’s complicated for the laymen, I mean that it’s complicated. What’s important for our purposes is that, if you want to sue the government over a law, you have to show that you were actually injured by that law. This analysis is usually best suited to criminal defendants being convicted for violating laws that they think are unConstitutional. Hollingsworth is interesting in that it is about the standing of the plaintiffs.

The doctrine of standing plays two important functions. Firstly, it prevents people with no stake in a particular law or incident from getting the advantage of court intervention – for example, imagine the harm to justice that would be done if, instead of letting the victims of racial discrimination sue to defeat discriminatory laws, the Klu Klux Klan were allowed to take up the case against racial discrimination, and just how good a job they would do of it. Secondly, it denies the courts the opportunity to usurp the power of legislators by taking the slightest complaint and turn it into a judicial referendum. Imagine, for example, a court that was just itching for an opportunity to strike down a mandatory minimum sentencing law, since it just steps on the toes of judges and juries. So, rather than going to someone sentences under such a law, they go to the judge’s neighbor Joe, who is just personally morally opposed to mandatory minimum sentencing, lets him sue, and takes his case. Joe has become an opportunity for a judge to strike down a law. Standing requirements forbid either scenario – the Klu Klux Klan presumably does not have standing in its case, and Joe does not have standing in his, since justice is properly left to truly aggrieved parties.

But for atheists and skeptics like myself, the word “standing” sticks in your craw because of a case called Elk Grove Unified School District v. Newdow. That was the case in which Michael Newdow, father of a daughter who had been punished for refusing to recite the Pledge of Allegiance because of its bizarre recently-added theistic commitments, was refused the opportunity to challenge Congress’s intrusion into the Pledge not because his case was bad, not because he was wrong about the Constitution or about the separation of church and state, but because he lacked “standing.”

Denial of “standing” is becoming an increasingly esoteric legal doctrine that is beginning to strike me as a judicial substitute for “we don’t really want to hear your case.” The Supreme Court had a prime opportunity in Hollingsworth to and a sounding defeat to the enemies of equality, but instead, it took the easy way out on a truly ambiguous question of standing. Like WindsorHollingsworth was 5-4, but Hollingsworth wasn’t the 5-4 you’d think. Where Windsor was divided along the traditional conservative bloc vs. Kennedy/liberal block lines we’ve come to know and love, Hollingsworth was opposed by the unusual combination of Alito, Thomas (Bush appointees), Sotomayor (an Obama appointee), and Kennedy. Liberal-conservative splits are to be expected. Ragtag teams of liberals, conservatives, and moderates all coming together to oppose are rather unexpected.

The dissent is just as concerned as I am that the Supreme Court took the easy way out in Hollingsworth, and worse, that the Court is making true justice entirely too inaccessible, that future Supreme Courts now have the superweapon of an unlimited standing doctrine to dismiss any case without having to answer the hard questions. To quote the dissent:

The essence of democracy is that the right to make law rests inthe people and flows to the government, not the other way  around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century…. In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability.

The troubling question raised by Hollingsworth is, who’s next to be denied Court access because of “standing?” Michael Newdow deserved to have his case heard, but the courts above him had created an insulating protection that lets them get rid of difficult cases without committing themselves to potentially politically unpalatable consequences. That is how Hollingsworth sounds to me. It makes me think, “first they came for the gay marriage opponents, but I said nothing, because I was not against gay marriage….” What if, some day, I want to petition the highest courts in the land to protect me from some federal or state invasion of my Constitutional protections, and I lack standing because my case is politically undesireable? Then I will be like Michael Newdow, and like the opponents of gay marriage: unpopular, unpalatable, and unprotected by the courts.

Routine follow-up to Supreme Court’s decision on Arizona’s “papers” provision hailed as ‘major victory’ for anti-immigration groups

September 7, 2012

It is something of a trope among those with an interest in a specialized field that the “mass media” or the public-at-large generally does an atrocious job of translating subtle points about that field into laymen language. I actually don’t think this is true about the law: I think that the media usually does a pretty good job of getting the basic points of legal disputes out to the public. Even with politically-charged legal disputes, such as the Obama healthcare ruling earlier this year, with all of its complicated ins and outs, I think that the reporting on it did a pretty good job of explaining to the public what the difference is between the commerce clause and the taxation power.

That is why I am so baffled whenever big, lets not call them mistakes, but maybe rather glaring omissions, occur. Such is the case with the recent Arizona “ruling” that “upholds” the key provision of Arizona’s immigration overhaul – it is being hailed as a victory for advocates of more restrictive immigration policy, but in my opinion it is less than a tempest in a teacup. District Judge Susan R. Bolton’s ruling did not really “uphold” anything (unsurprising, since she is the very same judge who’s striking-down of that provision led to the Supreme Court case that tossed out most of the law but kept this very provision intact for now), it just reiterated a pretty uncontroversial point.

That point is that, when the Supreme Court says something, you do it.

When the Supreme Court ruled on the Arizona immigration law, advocates for immigrants and their families were disappointed by the perception that the “show-me-your-papers” provision, under which Arizona officials are entitled to demand proof of citizenship during criminal stops, had been “upheld.” But it wasn’t exactly upheld: it was rather put in the category of “let’s just let this one play out, and we’ll see how the cases go once the law is in effect.”

This all starts with the question of how it is exactly that laws are found to be racially discriminatory or not. Over the last few decades, courts have consistently applied a multi-tiered series of tests that applies anti-discrimination policy to state and federal laws differently depending on the text of those laws:

  • If a law is facially discriminatory (for example, segregated schools), the government has an extremely high burden to meet: the law is presumptively unconstitutional barring a showing that the law’s discrimination achieves a very specific legitimate state interest and that its discriminatory component is more or less essential and unavoidable to achieve that interest. This test cuts against both laws discriminatory against racial minorities, and laws that favor historically disadvantaged groups. Affirmative action programs, for example, must have extremely precise, express limitations in how long they last and what quotas or statistical balances they are trying to achieve, otherwise they are unconstitutional. Such policies may not be blanket or unqualified, though race may be used as one of many “plus factors” for admission to higher education, for example.
  • If the law is not facially discriminatory, meaning that its text does not expressly designate a certain race or other protected class for unequal treatment with other such groups, then the law must have a discriminatory effect, either in how consistently it is applied (in which case a judge can keep the law and just order law enforcement to enforce it more fairly) or in its ultimate unforeseen consequences (in which case the judge will ask the legislature to rewrite the law to get at the same state interest without necessitating the unforeseen discriminatory effects).
  • If the law doesn’t serve a valid government interest, than any discrimination either on its face or in its application invalidates it.

Since the Arizona immigration statute doesn’t single out any racial group, ethnicity, or national origin in express terms, it isn’t in the first category. And since probably any court in America would find that a coherent immigration policy is a valid government interest, it doesn’t belong in the third. So we’re left with the second.

The Supreme Court followed the same line of reasoning. The second category, you’ll note, requires discriminatory effects from the application of the law. Since the law had not yet gone into effect as of the Supreme Court’s decision, they did not rule on the question of its constitutionality. That does not mean that the Supreme Court upheld the law writ large. It means that the law wasn’t presumptively unconstitutional, as the first category is, and so it could only be found to be unconstitutional in its effects – and since the law hadn’t taken effect, there were no effects to investigate!

Judge Bolton did her job perfectly – she mimicked the Court’s reasoning to a T, which is sensible given that the Court’s ruling in that case was aimed at her own ruling. Like the Supreme Court, she did not declare that, in the face of discriminatory effects, the law stands up to scrutiny anyway. Rather, she just said that we’re still waiting for the evidence. The jury’s still out, as it were.

Advocacy groups for those unfairly targeted by discrimination laws see this kind of ruling as the opportunity for what’s called a ‘test case.’ Probably what will happen is that lawyers for immigration advocacy groups will be watching the Arizona police blotter carefully for arrests under the Arizona “papers” provision once it goes into effect, then swoop in to take those cases because then the courts will have to decide whether or not the law passes the standard of scrutiny applied to the second category above.

Until then, though, nothing has been upheld, nothing decided or tossed. We are in the wait-and-see session of this law. And as with the courts, you’ll have to wait to hear this skeptical jurist’s opinion until the cases start coming in.