Lie Detection and the Law: Torture, Technology and Truth

Lie Detection and the Law: Torture, Technology and Truth

My latest book, ‘Lie Detection and the Law: Torture, Technology and Truth’ is out now with Routledge (you can buy it on Routledge, on Amazon and you can preview it and buy the ebook on Google Books). It is part of Routledge’s ‘Law, Science and Society‘ series, which is worth taking a look through. IMG_0598

Chapter 1 outlines an interesting example from the history of the polygraph’s use in criminal investigations, briefly reports on how the device has long suffered from contestation regarding its validity and reliability, before reviewing some key philosophical starting points in understanding lying, and taking some tentative footsteps towards a sociological approach.

Chapter 2 explores the use of torture as a form of lie detection in practices of ‘trial by ordeal’ and in the Elizabethan period before outlining the literature on the emergence of the polygraph machine and the trial by jury in the United States. Together, these threads help describe how conceptualisations of the body and its relation to truth have been invested in lie detection technologies.

Chapter 3 provides an overview of a heuristic often used to explain the legal status of the polygraph machine in US criminal courts, that it is either: inadmissible; admissible with prior-stipulation; or admissible even without prior-stipulation. It then argues that although this is useful, there is a need for greater detail, exploring the tensions and complexity involved in characterising the socio-legal status of the polygraph, which is followed-up in Chapters 4 and 5.

A contemporary polygraph kit

Chapter 4 begins to provide a more detailed picture of how the polygraph machine is challenged and managed within US State Supreme Courts, outlining the ‘exclusionary toolkit’ and how this is used to highlight uncertainties in lie detection research and application.

Chapter 5 extends this analysis by examining how ontological uncertainties in polygraph science and interrogation practices are negotiated in trial settings by reference to broader techno-political currents in the United States. It shows that the ontological connections between body, truth and lying are enacted differently over time in a case study of the Massachusetts State Supreme Court.

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Peter Reilly, who was convicted of murdering his mother on the basis of a polygraph-induced confession.

Chapter 6 explains how the polygraph machine is used in police interrogations of criminal suspects and witnesses. It describes in detail the deceptive techniques used by polygraph interrogators to manipulate subjects into confession. The chapter evaluates these techniques in light of the tragic case of Peter Reilly, showing how lie detection practices can bring about false confessions.

Chapter 7 explores the use of the polygraph in the socio-legal periphery of the criminal trial, namely in probation and treatment programmes of sex offenders. It describes the emergence of sex offender polygraph testing in USA and UK, setting this against a background of moral panics in both countries, but also linking it to a longer history of socio-technical practices through which certain groups have been made into subjects of suspicion.

Image result for post-truthChapter 8 reviews the ways in which uncertainty in lie detection has figured in its techno-legal configurations within socio-legal situations. It explores the implications of this account for developing a sociological approach to lying, drawing on key insights from Georg Simmel and others, and indicates why these need to be revised to reflect today’s biopolitical schemes of social order, and to address the complex struggles over information and truth in contemporary sociotechnical systems and ‘post-truth’ politics.

If you’re interested in the book, you might also want to read other posts on lying and lie detection on my blog and some other papers I’ve written on the subject, which you can find on Academia.Edu.



Skip diving or food waste: which is the bigger crime?

The practice of ‘skipping’ or ‘skip diving’ features intermittently in the news. Often an intrepid reporter dons his or her warm clothes and pals up with a group of skip divers or freegans for a midnight raid of some supermarket bins.

It all seems a bit of a joke when written up as a faux adventure into urban hippy lifestyles, but the issue of food waste is of pressing concern both locally and internationally and shouldn’t be taken so lightly.

Skip diving or food waste: which is the bigger crime?

Indeed, in the coming months three men, Paul May, Jason Chan and William James, will face trial for taking waste food from a skip behind an Iceland store. [After writing this post the Crown Prosecution Service decided to drop the charges, partly at the behest of Iceland, whose CEO made the request because the brand image was being damaged by public outcry at the prosecutions.]

Although initially arrested for burglary they will be charged under the 1824 Vagrancy Act for being in an enclosed area for an unlawful purpose. The three men took waste food totalling a value of around £33 and consisting of low-value items like tomatoes, mushrooms and Mr Kipling cakes.

Throughout the chain of food supply and demand there is food waste, from so-called ‘losses’ during harvesting, threshing and storage, through to the food that we, as consumers, leave on our plates at the end of a meal.

The oft-cited figure is that one third of food produced globally is wasted, amounting to around 1.3 billion tonnes.

In much of the academic literature and in the media the cause of food waste is the ignorant or vain consumer who fails to prepare food from fresh ingredients or throws out the less aesthetically pleasing banana at the bottom of the bowl. But even food left on the table or left to rot in the fridge cannot easily be attributed solely to wasteful consumer practices.

First, supermarkets are notorious for controlling the supply chain in ways that suit their brand image. Fruit, vegetables and other fresh foods end up as feed for cattle rather than humans because it doesn’t have the right look. Of course, supermarkets then sell food to consumers based on these aesthetic ideals which become entangled with concepts of quality, nutrition and feeding your family properly. But a wonky carrot is no less nutritious than a straight one.

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The issue is further compounded when one considers the way in which supermarket supply chains and aesthetics of branding are understood as part of the global organisation of agriculture and consumption.

Reports that farmers in countries like Kenya can be wasting up to 40% of their crops because of corporate requirements for food size, shape and packaging should surely give us pause to think about the ways in which our consumption is shaped by norms of beauty, the ‘natural’ and taste. This kind of food waste comes about because of the extraordinary power that multinational corporations are able to exercise over growers.

Second, food consumption like other forms of consumption has to be understood as part of a dynamic and complex set of social practices that are connected to the management of neoliberal globalised societies. Too often the contemporary obsession with consumer choice and individual responsibility is used to lay blame at the feet of individual consumers for making bad choices.

However, individuals live within these webs of interrelated practices and cannot easily make choices about food purchasing, preparation, eating and disposal without also altering some rather obstinate norms and structures in the material, temporal and spatial dimensions of the family, care, health, illness and work.

David Evans from the University of Manchester has conducted work that is exemplary in this regard and challenges the idea that people waste food because they don’t care about it or are ignorant of problems we face with food wastage.

Indeed, his research suggests that people often do care about the food they waste but have to live within regulatory structures. Some are encouraged to adopt norms around health, for example by not eating products past their use-by dates.

We all also have to prepare food in ways that can fit our working and personal lives. For example, Evans relates the difficulties and decision-making processes of a young woman living alone as she tries to avoid food waste.

For her, ingredients for freshly-prepared meals waste too quickly. Unpredictably long working days, commuting home and exhaustion mean that the prospect of cooking a whole meal from scratch is difficult to stomach. A microwave portion for one would be so much easier and quicker.

So norms around nutrition and health lead her to buy vegetables and other ingredients that then go to waste because those norms don’t sit easily with other practices of managing time, space and work.

So skip diving doesn’t seem so silly, outlandish or – let’s be honest – criminal when seen against the background of corporate and social practices that structure our consumption of food. When supermarkets are throwing out literally tonnes of food because it has gone past its sell-by date, looks wrong or has damaged packaging it isn’t a crime for someone to make good use of this waste.

Skip diving and freeganism often do involve a whole scale shirking of contemporary practices of living and working.

I’d argue that this is because so much of what goes into food waste is interconnected in ways that is difficult to change without just rejecting it outright.

Blaming faulty consumers or criminalising skip diving is getting us nowhere. We need to change the way that food is managed throughout our practices – yes at the levels of local consumption but also all the way up to international production.

Forget the arcane laws about vagrancy – the real crime is systemic waste.

Gary James Smith v. State of Maryland

fMRI lie detection evidence, supplied by the company No Lie MRI, has been considered during pre-trial criminal hearings in the USA, this time in the case of Gary James Smith v. State of Maryland [1, 2]. The device has already had a couple of hearings as potential evidence, with tests conducted by rival company Cephos, first in New York [1, 2] in 2010 and then again in Tennessee [1, 2, 3, 4] later that year.

Gary Smith is accused of shooting Mike McQueen in 2006 and is about to go to trial for the second time, after the Court of Special Appeals affirmed the verdict of the trial court, and then the Court of Appeal reversed and ordered a retrial. The first verdict, which had found him guilty of second degree murder (or ‘depraved heart murder’) was overturned on the basis that the trial court had admitted prosecution evidence of the decedent’s ‘normal’ state of mind, but hadn’t allowed evidence to the contrary.

The case is an interesting and complex one, particularly as regards medical and scientific evidence. For a start, both Smith and McQueen worked as Army Rangers and served in the ongoing conflicts in Afghanistan and Iraq. As such, both parties, the defense and the prosecution, claim that post-traumatic stress is, in part, to blame for the tragedy. In the first trial, the prosecution suggested that Smith’s PTSD may have left him unstable, which may have contributed to him murdering McQueen, whilst the defense argued that McQueen’s PTSD led him to commit suicide. The case thus quickly became a focal point for a still ongoing debate over the hidden psychological and medical costs of the war on terror. Furthermore, two experts appointed by the court were divided over the blood spatter evidence, with one claiming it suggested suicide and another that it pointed towards murder.

Moreover, as part of his pre-trial hearing with Judge Eric M. Johnson, of Montgomery County Circuit Court, Smith recently sought admissibility for fMRI evidence of the veracity of his claim that he did not shoot and kill McQueen. The evidence, though the judge found it ‘fascinating’, was excluded. The decision appears to have been founded on the current lack of evidence that the device works as a lie detector, said Judge Johnson: “There’s no quantitative analysis of this procedure available yet.” In contrast, Joel Huizenga, CEO of No Lie MRI, said: “There is always room to do more research in anything, the brain’s a complex place. There have been 25 original peer reviewed scientific journal articles, all of them say that the technology works, none of them say that the technology doesn’t work…that’s 100 percent agreement.”

It shouldn’t be a surprise that community opinion has again been influential in determining admissibility of scientific evidence regarding veracity, it has long been so, particularly since the long-established Frye ‘general acceptance’ rule was decided on the same basis in the case of the exclusion of the polygraph, nearly one hundred years ago. However, proponents of fMRI lie detection, such as Steven Laken, CEO of Cephos, have argued that lie detectors are held to a higher standard than are other forms of scientific evidence: “But the standard is set even higher for these lie detectors because of this idea that the judge or the jury are basically the final determiners of whether someone is lying on the stand…The courts are unfairly putting a higher bar on that than they are on other scientific evidence like DNA.”

Expert testimony, like that of the gun splatter expert, gets enmeshed in legal talk in unpredictable ways. Various technologies are enrolled to understand the significance and reliability of new techniques under consideration. Indeed, the polygraph – for instance – has often been compared to fingerprinting or DNA evidence when deciding on its admissibility. The difficulty that those supporting fMRI lie detection face is in seeking to make it amenable to a complex system in which notions of responsibility, guilt, lying and truth are constantly at play between rules, precedents, expert evidence and legal talk during trials. Take, for instance, the following quote from the closing statement of the prosecution in the first trial of Gary Smith:

“It’s been 18 months since Michael McQueen was buried.  This defendant shot him.  It’s time for justice.  Healing begins when justice occurs. And the only just verdict in this case, the only proper verdict in this case is to hold that person responsible for [what] the physical evidence shows, no matter what experts you want to believe, that he was right there when he was shot.  What your common sense and understanding shows [is] that you don’t stage a scene, you don’t throw away a gun, you don’t lie and lie and lie and lie to the police, unless you’re guilty as sin.”

This decision seems, on the face of it, to be a further defeat for the corporations seeking to admit fMRI lie detection evidence. However, advocates of exclusion, such as the eminent law professor and scientifically well-informed Hank Greely of Stanford Law School, whose testimony has been influential in these early cases, might be wise not to rest on their laurels. There are likely to be more, and perhaps more significant, spaces in which the battle over fMRI lie detection will be fought. Importantly, however, these are not as easy to pin down as the criminal trial courts. Lessons from the history of the polygraph regarding its entanglement with governance teach us that exclusion from criminal trial courts is far from the end of the story as goes lie detection.

The rhetorical construction of the polygraph as the lie detector contributed to its being adopted in a wide range of spaces in the USA. For example, the polygraph continues to be used in the context of employee screening, espionage, police interrogations and private investigation. Or take one further example: paedophilia. In a week or so I’ll be reporting on the use of the polygraph machine in the context of sex and criminal sexual behaviour, where it is now commonly used in the USA to manage paedophiles during post-conviction probation. Such use of the polygraph was recently trialled in several UK regions and looks set to be taken-up more broadly. As such, even though the device was barred from criminal courts in Frye, the polygraph has since been used in very particular, but also very important, legal spaces close, but just outside of the trial.

fMRI appears to be going the same way. The No Lie MRI website boasts that: “The technology used by No Lie MRI represents the first and only direct measure of truth verification and lie detection in human history!” This rhetoric of direct measurement has been a key one in the articulation of the fMRI machine’s potency for lie detection. Constituting the brain as the location of truth and thus of lying, the fMRI researchers have frequently claimed that we are looking directly into the lie. This has been used to help position the fMRI machine as the natural successor to the polygraph by positing it as a technological improvement on the polygraph’s indirect measurement. No Lie MRI claims: “lie detection has an extremely broad application base. From individuals to corporations to governments, trust is a critical component of our ability to peacefully and meaningfully coexist with other persons, businesses, and governments.”

Irrespective of whether the technique ‘works’, more attention should be paid to the complex way in which lie detection evidence is negotiated in relation to medical diagnoses, like PTSD, and other technologies such as blood spatter, DNA or the polygraph. Moreover, we have to better understand how lie detection techniques have dispersed into the US (and now into other countries, such as here in the UK), how they are used and what their consequences are, in order to better respond to fMRI’s emergence as a lie detector. Otherwise, fMRI may be excluded from criminal trials in much the same way as the polygraph but still find use in a variety of significant social, legal and political spaces that are far more difficult to control. The fMRI machine looks new and shiny but as regards lie detection, it might all be a little bit of history repeating.