Friday, May 03, 2013

Liar, Liar - Should Polygraph Evidence be used in Sports Tribunals?

The use of polygraph or lie detector evidence in sports law cases has been much debated. Given that evidence beyond adverse analytical findings is being used more frequently to prove doping violations pursuant to the World Anti-Doping Code, there are calls for the use of such evidence, both to prove cases against and to exonerate athletes accused of doping. In cricket, in a bid to fight corruption, Steve Waugh, ex Australian captain, has led calls for the use of lie detectors. He 'convincingly' passed a test to 'demonstrate' that he had never been involved in match fixing. The Marylebone Cricket Club released a statement: 'The World Cricket Committee accepts that the use of polygraph tests is a sensitive subject, but their potential use should now be widely debated in the game'.

There is considerable disagreement as to the accuracy of polygraph testing. Claims as to its reliability seem to range from 60 - 95% accuracy. In the case of Alberto Contador at the Court of Arbitration for Sport (CAS), the Panel heard evidence from two leading professors who suggested an accuracy of 95% with 5% false positives i.e. people said to be lying who were not, in fact. Nonetheless there must always be a degree of self-interest in assessing the validity and value of one's own expertise.

In the UK, polygraph evidence is not used in courts, but it has begun to impact upon other legal procedures. The use of lie detector tests for certain criminals, subject to licence conditions, has been legalised and sex offenders can now be assessed for release based in part on such investigations. Polygraph evidence is used in criminal proceedings in some US States, although it is often said that the role of the jury in deciding the truth should not be usurped by scientific devices and the like.

The polygraph measures a person's physiological responses (e.g. pulse, respiration, blood flow etc.). The theory is that a person's natural fear of being caught out in a lie will result in increased physiological responses when answering the relevant questions as opposed to when answering the control questions.

Opponents of the testing suggest that it can be defeated in a number of ways including by the adoption of 'counter measures' (such as the use of drugs and hypnosis) to reduce the variance in physiological response, but also by the self-infliction of pain to derail the control response. Indeed, a statement from Lance Armstrong's lawyer in 2012 said that the cyclist would be willing to take such a test to prove his innocence suggests that he was massively confident of successfully defeating it. Armstrong's nemesis, Tyler Hamilton, even admits in his book 'The Secret Race' to having beaten the lie detector machine.

The position of CAS with regard to the admissibility of this type of evidence has shifted. In 2008, the Swiss athlete Daubney sought to rely upon a successful polygraph test to prove his innocence of knowingly taking cocaine. CAS ruled that such evidence ws inadmissible under Swiss law and, accordingly, any statement made to the expert by Daubney was purely admissible as a personal declaration. The expert scientific evidence was not admissible. Subsequently in the case of Alberto Contador, he successfully argued that, pursuant to WADC Article 3.2, 'facts relating to an anti-doping violation may be established by any reliable means' which had not been in force at the time of Daubney, led to such evidence being admissible. The admissibility was not challenged by the other parties. CAS ruled that the evidence added 'some force' to Contador's 'declarations of innocence, but do not, by nature, trump other elements of the evidence'.

The Chinese judoka Tong Wen also sought to rely upon polygraph evidence at CAS. Both Wen and Contador were represented by Mike Morgan of Squire Sanders. The Respondent objected, but CAS did not ultimately make any finding about this aspect of her case. They ruled that the Respondent had not proved the doping violation because the B sample had been tested without the athlete being present and, accordingly, the adverse analytical finding was inadmissible.

Mike Morgan has reportedly made the point that such evidence should only be admissible where the athlete has consented to the procedure. Compulsion to take the test is, he argues, likely to skew the results of the test and accordingly render it unreliable in any event.

It is therefore more than likely that this type of evidence will prove more useful - but to a limited degree - to the accused athlete, rather than the prosecuting authority.

Phil Gibbs, Barrister
KCH Garden Square, Leicester
pgibbs@kchgardensquare.co.uk

This article was originally published on Phil's sports law blog, http://gibbsbarrister.blogspot.co.uk/


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