Unilateral Lie Detector Results Found Inadmissible

By Barton, Peter C.; Sager, Clayton R. | The CPA Journal, April 1995 | Go to article overview

Unilateral Lie Detector Results Found Inadmissible


Barton, Peter C., Sager, Clayton R., The CPA Journal


In Conti v. Commissioner, the Sixth Circuit Court of Appeals, affirming the Tax Court, recently ruled that the results of polygraph (lie detector) tests administered to taxpayers without notice to the IRS are inadmissible. Polygraph tests, which must be interpreted via expert testimony, help establish the credibility of a witness.

Using the net-worth method, the IRS assessed the Contis for over $500,000 in tax, plus civil fraud and substantial understatement penalties, for understating their 1986 and 1987 income by $1,300,000. The Contis tested at the Tax Court trial that the $1,300,000 was from a cash hoard and family loans. Finding their story unbelievable, the court ruled for the IRS.

Prior to the trial and without notice to the IRS or the Tax Court, the Contis unilaterally submitted to a polygraph test by an independent expert. They then asked the court to admit the results into evidence. The Tax Court ruled that unilateral polygraph tests are inadmissible. The court reasoned that the person tested has nothing at stake in unilateral testing because the results will not be revealed if the test indicates lying. Since the test measures anxiety, it is worthless if nothing is at stake.

Rule 702 of the Federal Rules of Evidence allows expert testimony to assist the court in determining the facts of a case. Prior to the 1993 Supreme Court case noted below, however, the expertise had to have general acceptance in the relevant scientific field. The Tax Court ruled that polygraph tests did not meet this standard because experts disagreed on their reliability and on the validity of the assumptions on which they are based.

On appeal, the Contis argued that, in 1993, the U.S. Supreme Court's Daubert v. Merrell Dow decision adopted a more liberal multifactor test to replace the general acceptance test for the admissibility of scientific evidence. The Court of Appeals did not consider this argument.

The Contis also argued that the Sixth Circuit Court of Appeals should adopt the rationale of an 11th Circuit decision, U. …

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