Kavanaugh Dismissed Polygraphs as Unreliable, but He's Said They Can Be Useful
“Of course those are not admissible in federal court but I'll do whatever the committee wants," the Supreme Court nominee said Thursday. A 2016 ruling he wrote in the D.C. Circuit presents a more nuanced view of how these tests are used.
September 28, 2018 at 12:31 PM
4 minute read
Christine Blasey Ford testified that she took a polygraph test to bolster her claim that U.S. Supreme Court nominee Brett Kavanaugh sexually assaulted her when they were in high school, a sliver of a daylong, emotional hearing over an allegation that would test the judge's credibility and his fitness to serve on the high court.
Ford described the emotional process of taking the polygraph in August, before her claims went public in a Washington Post report. The polygraph results, which found Ford's account truthful, were admitted in the record before the Senate Judiciary Committee. Ford alleged Kavanaugh pinned her to a bed, rubbed himself against her and covered her mouth to keep her from screaming during a gathering in the 1980s at a house in suburban Washington. Kavanaugh has strongly denied the claims, calling them part of a political hit-job.
Democratic Sen. Kamala Harris of California, a former prosecutor, asked Kavanaugh if he had taken such a test, and he said he had not but would do whatever the judiciary committee wanted. He added: “Of course those are not admissible in federal court but I'll do whatever the committee wants. They're not admissible in federal court because they're not reliable, as you know.”
I asked Kavanaugh whether, like Dr. Ford, he had taken a polygraph, whether he would call for an FBI investigation into the allegations, and whether he watched Dr. Ford's testimony. None of his answers were "yes." pic.twitter.com/jKsTFXx4jD
— Kamala Harris (@SenKamalaHarris) September 28, 2018
Kavanaugh's dismissive response clashes with an earlier posture on polygraphs that he articulated in a May 2016 ruling in the U.S. Court of Appeals for the D.C. Circuit, where he has served since 2006. Kavanaugh's writing in that ruling got widespread new attention on Thursday.
Kavanaugh authored the opinion in Sacks v. U.S. Department of Defense, which involved polygraph tests in a dispute over federal open-records fees. Kavanaugh described the importance of a polygraph test for law enforcement agencies to test the credibility of witnesses and criminal defendants. He also said employers can use them during hiring decisions.
Such background investigations could assess an applicant's qualification and the polygraph examinations serve law enforcement purposes, Kavanaugh said.
“Law enforcement agencies use polygraphs to test the credibility of witnesses and criminal defendants,” Kavanaugh wrote. “Those agencies also use polygraphs to 'screen applicants for security clearances so that they may be deemed suitable for work in critical law enforcement, defense, and intelligence collection roles.'”
According to the U.S. Justice Department, there is no specific provision surrounding the admissibility of polygraph examination results. Courts of appeals have largely upheld the exclusion of polygraph evidence on the grounds that they are not “generally accepted” by the scientific evidence.
Ford's lawyers, Debra Katz of Washington's Katz Marshall & Banks and Michael Bromwich, had wanted the polygraph expert to testify at Thursday's hearing. Sen. Amy Klobuchar, D-Minnesota, said that the judiciary committee refused to hear from that expert.
Arizona prosecutor Rachel Mitchell, hired by Republican judiciary committee members to question Ford, asked her about the polygraph—and who paid for it. Katz and Bromwich shut down that line of questioning, saying they had paid for it. “As is routine,” Bromwich said.
The judiciary committee was expected to vote Friday afternoon to send Kavanaugh's nomination to the full Senate for consideration.
Ford's polygraph is posted below:
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