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.