Seattle Police Officers' Guild v. City of Seattle

Rosellini, J.

(dissenting) — I disagree with the conclusion of the majority that rights guaranteed to all other persons under the constitutions of the United States and of this state are not available to police officers. The basis upon which this distinction is made is not clear to me from a reading of the opinion and I have great trouble in conceiving a rational basis for such a distinction. Is it that a police administrator is less apt to abuse his power, to use oppressive techniques to exact confessions from his own subordinates than he is when dealing with others accused of crime? Is it that a coerced confession is more reliable when wrung from a police officer than when wrung from some other individual? Is it that where police offenses are con *321 cerned, no other method of investigation will reveal the facts? In the case of the polygraph, is this “technique” more reliable, is the administering of it less of an indignity when the subject is a policeman? Is the invasion of the policeman’s privacy less offensive to the court than the invasion of the privacy of an accused murderer?

If all or any of these questions can be answered in the affirmative, I see no documentation of that answer in the opinion or in the record before the court.

In the opinion of the United States Supreme Court in the case of Garrity v. New Jersey, 385 U.S. 493 , 17 L. Ed. 2d 562 , 87 S. Ct. 616 (1967), cited and quoted by the majority, it was recognized that the threat of loss of employment is economic coercion, and that a confession obtained by that means is not a voluntary confession. I realize that dictum of the Supreme Court in a subsequent case, Gardner v. Broderick, 392 U.S. 273 , 20 L. Ed. 2d 1082 , 88 S. Ct. 1913 (1968), also cited and quoted in the majority opinion, indicates that the court would hold that the refusal to answer questions directed to the performance of an officer’s official duties, based upon the Fifth Amendment privilege, would not be a bar to his dismissal.

It is true that the Fifth Amendment expressly forbids compulsory self-incrimination only in criminal proceedings. But the United States Supreme Court has applied it to the case of the lawyer faced with the “Hobson’s choice between self-incrimination and forfeiting his means of livelihood.” (Spevack v. Klein, 385 U.S. 511 , 17 L. Ed. 2d 574 , 87 S. Ct. 625 (1967).) It seems to me that if the constitutional prohibition is so strong and so pervasive that it relieves the lawyer of that choice, it also should relieve the policeman of that choice; and this court should not anticipate that the United States Supreme Court, when confronted with a case in which the point was actually at issue, would follow its dictum.

The only logical conclusion to be drawn from a rule of law which says that public officers and employees must testifv under economic coercion, whereas others need not, *322 is that the privilege exists — not, as I had always thought, because coerced statements are not sufficiently reliable to justify the means used in obtaining them and because of the danger which they hold for the innocent, but rather it exists solely as a shield for the guilty. In other words, the court when it makes such a rule tacitly admits that it does not believe in the validity of the great privilege which our forefathers, still close enough to the abuse of power to remember its cruelties and injustices, so carefully embodied in the Bill of Rights.

It seems to me that it is of far greater importance that the police officer be genuinely committed to the principles embodied in the constitution than that he be required to give evidence against himself when suspected of misfeasance or malfeasance. If he is not committed to those principles, he is not likely to be conscientious in respecting the rights of persons accused of crimes when they are in his custody. And if this court holds that those principles and those rights apply to persons accused of crimes, to lawyers in the performance of their professional duties, to the employees of all but the state and its subdivisions (see RCW 49.44.120), what real meaning can they have for him? It should not be surprising if he views with contempt a constitution whose protection is extended to all but people like him.

It should be remembered that this action is not brought by policemen who have refused to answer questions. Rather, it is a class action, brought on behalf of all officers, the innocent as well as those who may be guilty. That such a group should bring this action is to me some rather sound evidence that persons whose duties include the taking of confessions and the administering of “lie-detecting” tests recognize the fallibilities of these techniques of crime solution. The innocent do not desire to be subjected to them anymore than do the guilty. What group can be in a better position to recognize the dangers of abuse, or of mistake?

If the extracting of a statement by the simple means of questioning an officer, under threat of dismissal if he does *323 not answer, is objectionable, it seems to me that the use of the polygraph is even more obnoxious. The majority recognizes that the technique is not reliable 2 and that the results of such a test are inadmissible in a court of law, still they authorize its use.

Here is how the test is administered:

The polygraph proceeds on the underlying theoretical assumption that in telling a lie a person undergoes emotional stress, the physical manifestations of which are measurable. The polygraph seeks to chart such physical changes — by monitoring blood pressure, pulse, the pattern of breathing, and the perspiration rate — thereby, according to the theory, permitting the separation and exposure of truth from lie.

In the operation of the polygraph, the subject is given a series of questions to answer while those familiar clinical instruments for measuring heart beat, blood speed, respiration, and perspiration are attached to the subject’s body. An initial group of questions on noncontroversial matters is first posed to elicit truthful answers, thereby establishing the subject’s “normal” patterns for heart, pulse, blood speed, respiration, and perspiration. After such norms have been so fixed, further questions, critical to the matter in issue, are asked. If, in answering such critical questions, the subject’s heart beat, blood flow *324 speed, and respiration or perspiration rates deviate from the thus-established norms, then, say the polygraph promoters, the deviations are measurable responses to feelings of guilt, fears, or anxieties induced by lying. Such physical manifestations, say these theorists, reflect lying. On the other side of the coin, the nondeviation from the norms in answering these critical questions demonstrates truth-telling, according to the polygraph adherents.

(Footnote omitted.) M. Markson, A Reexamination of the Role of Lie Detectors in Labor Relations, 22 Lab. L.J. 394 (1971). 3 As the author of this article points out, critics of the polygraph have made these points:

(1) Many emotional factors, other than guilt, fear, anxiety, or even the conscious attempt to lie — such as patho-logic conditions, neuroses, psychoses, and fears or anxieties of other sorts — may cause the observed measures of physiological changes. (2) The inference that lying causes guilt feelings, fears, or anxieties and such emotional changes in turn, cause a measurable physiological change, is incapable of empirical demonstration, and has not been so demonstrated. (3) The administration of the lie detector tests, requiring at the very least a psychologist — for the lie detector actually furnishes no more than “clues” or “hints” — is often in the hands of a mere technician. (4) No account is taken of the psychology of the tester and his potential for bias.

(Footnote omitted.) 22 Lab. L.J. at 396. See an exhaustive article on this subject by Oliver E. Laymon, professor of law at the University of South Dakota. This author concludes:

The uncontrolled use of lie detectors poses grave threats to the right to be exempt from unauthorized, arbitrary and unreasonable inquiries and disclosures. The technique is fraught with too many variables and sources of error to warrant its present wide usage. If its use is not carefully and continually scrutinized we may find that George Orwell’s “1984” is upon us.

*325 O. Laymon, Lie Detectors — Detection by Deception, 10 S. Dak. L. Rev. 1, 32 (1965).

It is generally recognized, I think, that any reliability this device may have depends upon the qualifications of the operator. This operator, who is accuser, witness, judge and jury, is the actual “lie detector” — not the machine which is attached to the body of the victim. The graph tells nothing. It is the operator’s interpretation of it which determines whether a particular answer is true or false. The operator is, of course, a human being, and a human being does not have the disinterest, the detachment of a machine. He has motivations, prejudices, ambitions, interests to protect, including his own self-esteem. He also has foibles sometimes, such as laziness, indifference, or perhaps mere incompetence. While it is acknowledged that the best results are obtained only by highly trained operators, who have a thorough knowledge and understanding of human psychology, the fact is that most operators have received no more than a crash course at some school conducted by the industry.

It must be remembered that the manufacture and sale of the polygraph is an industry, and the claims that are made for it are made by persons who have an interest in that industry’s success.

The court in this case accepts the appellants’ statement that inquiries will be “specially, directly and narrowly related to the past performance of [the officers’] official duties.” But the technique of the operator is to ask irrelevant questions, to find something that the subject will lie about, to establish his “control question.” Irrelevant questions are also used to throw the subject off his guard. It would be interesting to see how the appellants’ operator conducts his polygraph examination while adhering to the restriction which the appellants have imposed upon him by their affidavit signed by the police chief.

The court seems not at all disturbed that the police officer will have no opportunity to confront or cross-examine this witness against him, or to take from this judge’s *326 rulings, or this jury’s verdict any appeal to a higher tribunal. The operator’s verdict is final.

I also am dismayed that the court sees no reason to require some showing that the tests will be administered by a qualified operator, or that the officers questioned will have an opportunity to challenge his qualifications or his findings. In my view of the matter, the court should never place its stamp of approval upon such a procedure. And even assuming that it can be shown that the operator is highly qualified, the objections to the use of the machine still outweigh the arguments in its favor.

As I read the majority opinion, anything goes, as long as it goes under the guise of “lie detector,” however unreliable the court may have acknowledged the polygraph to be.

The legislature has seen fit to forbid the use of these devices upon employees, except certain public employees like the respondents. I do not construe RCW 49.44.120 to authorize tests for such employees; the legislature simply has not seen fit -to forbid them. But obviously the legislature has1 taken cognizance of the evils attendant upon the use of such devices in industry and has declared that it is the public policy that they should not be used.

The reasons behind that determination are just as applicable to public employees as to private employees, in my opinion. It is interesting to note that the Atomic Energy Commission in 1953 decided to discontinue the use of lie detectors at Oak Ridge, the report stating in part:

In weighing the advantages which might accrue to the AEC security program by the use of the polygraph technique on a Commission-wide basis it was concluded that such a program could be expected to result in only an indeterminate marginal increase in security beyond that which is currently afforded by established AEC procedures for personnel, physical, and document security. . . . consideration was given not only to the very substantial dollar costs of a polygraph program but also the intangible costs in employee morale, personnel recruitment, etc. It was concluded that such costs outweigh the benefits which might accrue to the AEC security program at this time.

*327 (Footnote omitted.) 10 S. Dak. L. Rev. at 22.

In my opinion, the requirement that any employee submit to such a test or forfeit his employment invades his right of privacy and violates his right not to give evidence against himself. The test being so notoriously unreliable, and the “testee” having no opportunity or means of challenging the result, requiring an officer to submit to such a test is not a reasonable requirement. His refusal to submit should not be held by this court to constitute “just cause” for his dismissal.

I would affirm.

Hunter and Wright, JJ., concur with Rosellini, J.

Petition for rehearing denied June 2, 1972.

For examples of the reliability of the performance of this device, see J. Coghlan, Sr., The Lie Box Lies, 7 Trial Lawyer’s Guide 173 (1963). Here is one, at page 184:

The McCall case is within the memory of many members of the bar. A young woman was raped in a Chicago hotel. Immediately adjoining the hotel was a parking lot. The day following the occurrence all the lot personnel, including one of the attendants named Nixon, were required to take the test. The machine proclaimed their innocence. Some time later the hotel elevator operator, McCall, was arrested. Apparently convinced by the investigating officers that McCall was guilty of the rape, the polygraph operator gave him the full treatment and found him guilty of the rape. Since it was established by this scientific device that McCall was guilty, a confession was obtained from him. Fortified with this evidence, a jury returned a verdict of guilty. Some months later, the carhop, Nixon, became involved in another crime, and in a recitation of his accomplishments not only confessed to the rape for which McCall was found guilty but was able to fortify the assertions with many other facts, leaving no doubt that McCall had been wrongfully convicted.

See also D. Hermann, III, Privacy, The Prospective Employee, and Employment Testing: The Need to Restrict Polygraph and Personality Testing, 47 Wash. L. Rev. 73 (1971); J. Coghlan, The Lie Box Lies, 7 Trial Lawyer’s Guide 173 (1963).