The Truth About Lie Detectors – Bad News & Good News In Polygraphing Police Officers

The Bad News – Massachusetts Appeals Court Rules That Chief May Force Officer To Submit To Polygraph Even If Junk Science And Not Pursuant to A Criminal Investigation.

In a textbook example of letting “the exception swallowing the rule,” the Massachusetts Appeal Court has ruled that a police officer can be forced to submit to a lie detector examination under threat of discipline in most circumstances. This case further pushes the limits of when a police chief can require that an officer undergo a lie detector despite the fact that the legislature has outlawed the use of lie detectors in all but the most limited circumstances for almost fifty years. Sandulli Grace, PC, on behalf of the Massachusetts Coalition of Police (MCOP), has joined the fight to overturn this ruling.

The Massachusetts General Court first outlawed the use of lie detectors on the job in 1959. Then, as now, the legislature knew that lie detectors are unreliable, and that employees should not be forced to choose between their jobs and being forced to submit to a high-tech version of a tea leaf reading. The lie detector prohibition, codified at General Laws Chapter 149, § 19B, contains a very limited exception that allows for the use of “lie detector tests administered by law enforcement agencies as may be otherwise permitted in criminal investigations.” For years, the courts have allowed tests only when given as part of an ongoing criminal investigation of the incident in question. And the Supreme Judicial Court has ruled that polygraph tests are inadmissible in court because their reliability and credibility is unproven.

Unfortunately, the Appeals Court turned that requirement on its head earlier this month in the case Furtado v. Town of Plymouth, 69 Mass.App.Ct. 319 (June 11, 2007). In Furtado, the court ruled that the officer in question could be forced to take a lie detector test under threat of discipline even there was no ongoing or contemplated criminal investigation. The Chief obtained transactional immunity against prosecution, meaning that the officer was compelled to give a statement. The court ruled that the case fell within the exception to the law since “allegations of criminal conduct” were present – even though the grant of immunity made any criminal charges (and one would therefore assume investigation) impossible.

The impact of the Furtado decision is that Chiefs arguably can require officers to submit to lie detectors whenever there is a possibility of “criminal conduct.” Does the chief think you may have jaywalked? Sit down and strap on the electrodes. This decision confirms the worst suspicions of many police officers that they are second-class citizens under the law: if polygraphs can’t be demanded of all other employees and also can’t be used against criminals – how can police officers be ordered to submit to the junk science examinations and have those examinations used to justify discipline or termination.

We here at Sandulli Grace obviously think that this decision goes against the legislature’s intent in outlawing workplace lie detectors. We have been in contact with the attorneys for Officer Furtado, and MCOP has pledged to help urge the Supreme Judicial Court to overturn this decision.

But Wait, There’s Good News Too! Civil Service Commission Tosses Out Lie Detector Tests

Just two days after the Appeals Court issued Furtado, the Massachusetts Civil Service Commission ruled that a City cannot introduce evidence of a lie detector test in a case charging an officer with lying. The case involved the one-year suspension and demotion of a municipal police sergeant, whose discipline was based in part upon the results of a polygraph examination. Sandulli Grace Attorney Bryan Decker argued that the polygraph evidence, even assuming the test was legal under Furtado, should not be allowed into evidence because lie detector tests are so unreliable as to be (in the words of the Maryland Appeals Court) “incompetent.” In line with the SJC’s decision rejecting the admission of polygraph tests in criminal cases, the Commissioner refused to allow the polygraph evidence in the case, even though the rules of evidence do not strictly apply. The Commission joins other states such as Illinois, Maryland and Ohio that refuse polygraph evidence in administrative hearings when a public employee’s job and reputation are on the line.

The ruling from Commissioner John Taylor was issued from the bench during the hearing, and Commissioner Taylor stated that a full written decision on the polygraph issue would be included in his ultimate decision in the case, which is subject to a majority vote of the five-member panel of Commissioners. We’ll keep you posted.

Read the Furtado decision

Worker’s Comp Agency May Ignore Erroneous Medical Report

Appeals Court has held that the Massachusetts Bureau of Workers Compensation, which administers benefits to employees injured on the job, properly granted disability benefits to an injured truck driver, despite an independent medical report to the contrary. This decision to provide some comfort to injured employees who receive a negative evaluation of their claim from a Bureau-affiliated doctor.

Under Workers’ Compensation law, a person claiming a work-related injury may be required to submit to an independent medical examination. In Robert Dalbec’s Case, 69 Mass. App. Ct. 306 (06-P-358) (June 2007), a tanker truck driver was unable to work after a slip-and-fall injury on the job. The Independent Medical Examiner found that the claimant was capable of returning to unrestricted full-time work. The Administrative Law Judge (Judge), who heard testimony from the claimant about the physical stresses required by the job and his ongoing physical pain, rejected the IME report and awarded partial disability benefits.

The Appeals Court ruled that a negative IME report creates a presumption that the employee is ineligible for benefits. But this presumption, the Court held, can be rebutted simply by critiquing the report and determination that it is unfounded or unreasonable. The Appeals Court agreed that the IME doctor’s report and deposition testimony suffered from several major weaknesses, including a failure to assess the injury in light of the job duties and a failure to conduct critical tests about the employee’s fitness. Whereas the doctor appeared not credible, the Judge found the injured employee to be highly credible and the Judge conducted his own comprehensive analysis of the injuries and the job duties.

Download the decision

Police Officers Protected Against Negligence Suit

In a recent decision, Ariel v. Town of Kingston (#06-P-825) (June 6, 2007), the Appeals Court affirmed that Massachusetts police officers and their public employers are protected from negligence lawsuits. The Massachusetts Tort Claims Act states that Massachusetts public entities cannot be sued for an alleged "failure to provide adequate police protection, prevent the commission of crimes . . . or enforce any law.” (See General Laws Chapter 258). In this case, the victim of a car crash sued the Town of Kingston, claiming that the negligent direction of traffic by two police officers caused another car to collide with her. The Appeals Court disagreed. “[The] police officers’ direction of traffic on a public way constitutes a form of providing police protection to the public for the risks involved in motor vehicle traffic.” These actions did not qualify as an affirmative promise of police protection. The court’s decision affirms a general understanding of the scope of immunity provided by the MTCA. Because the town and officers were immune from suit under the above language, the Court also found that other provisions of the MTCA did not provide basis for a different claim of negligence.

Download the Decision