"The F.B.I.’s increasingly pervasive use of the polygraph, or a lie-detector test, has only intensified a culture of intimidation."

"Mr. Patel has wielded the polygraph to keep agents or other employees from discussing a number of topics, including his decision-making or internal moves. Former agents say he is doing so in ways not typically seen in the F.B.I.... Jim Stern, who conducted hundreds of polygraphs while an F.B.I. agent, said... that if someone violated policy, the F.B.I. could polygraph them. But if an agent who legitimately talked to the news media in a previous role had to take one, he said, 'that’s going to be an issue.' 'I never used them to suss out gossip,' he said. At a recent meeting, senior executives were told that the news leaks were increasing in priority — even though they do not involve open cases or the disclosure of classified information. Former officials say senior executives, among others, were being polygraphed at a 'rapid rate.' In May, one senior official was forced out, at least in part because he had not disclosed to Mr. Patel that his wife had taken a knee during demonstrations protesting police violence...."

From "Unease at F.B.I. Intensifies as Patel Ousts Top Officials/Senior executives are being pushed out and the director, Kash Patel, is more freely using polygraph tests to tamp down on news leaks about leadership decisions and behavior" (NYT).

I've made a new tag — "lie detector" — and gone back and applied it to old posts. Interesting to see how many times the topic has come up:

April 2004: "[E]ven if the lie detector was not to be used on [Omarosa], and, indeed, even if lie detector tests are not reliable, if she believed it was to be used on her and believed it was reliable, her running off at the sight of it is some evidence that she had lied in her accusation about the other contestant....."

April 2005:  "Everyone on TV was into analyzing why [the groom-to-be of the Runaway Bride] would take a private lie detector test, but wanted special conditions before he'd take the police test. He wanted it videotaped, and the police refused...."

July 2005: "Some researchers attached sensors to 101 penises and then showed the possessors of these penises either all-male or all-female porn movies. It was kind of a lie detector test, because the men had all professed to being heterosexual, homosexual, or bisexual...."

October 2008: Ashley Todd, the woman who claimed a black man had carved the letter "B" on her face.

June 2012: "'$1.1 million-plus Gates grants: "Galvanic" bracelets that measure student engagement.'... [I]sn't this basically a lie detector? And if so, won't students train themselves to fool the authorities?"

April 2013:

"First of all, I know Bobby from the time I met Maria. I always liked him. But when I look at him being suspicious of certain things, I ask myself..."

"Can anyone really judge him in a fair way? Because here’s a guy who has had an uncle assassinated, a father assassinated. No one wants to open up the files. So you must say to yourself, What is the reason for that? You start not trusting governments. I don’t live with this kind of suspicion, because nothing ever happened to me that makes me feel like that. But a lot of things happened to him, so this is where he is coming from. I’m not saying rightfully or wrongfully. I’m just saying I can see why someone like him is the way he is."

Said Arnold Schwarzenegger, responding to a NYT interviewer, in "Arnold Schwarzenegger Is Here to Pump You Up (Emotionally)." 

Schwarzenegger is promoting a new book (which has a Jordon Petersonesque title: "Be Useful: Seven Tools for Life").

The interviewer, David Marchese, had asked "what do you make of R.F.K. Jr.’s anti-vax, conspiracist turn?"

Marchese follows up — evoking the Moynihan meme you are not entitled to your own facts — "But we can be sympathetic to someone and what happened to them and also say facts are facts." 

Schwarzenegger seems unaware  of the old meme. He says: "His facts are different. I understand what you’re saying, but there’s people out there who have their own facts."

"He failed to keep Patty Hearst, the kidnapped publishing heiress, out of prison for her role in a bank robbery. He fell short..."

"... in his insanity defense of the confessed Boston Strangler, Albert DeSalvo, and could not save himself from contempt of court citations, humiliating handcuffs and disbarment in 2001 for misappropriating millions. By then, however, his reputation had long been secured with triumphs that began soon after his law school graduation in 1960 with the Torso Murder Case. George Edgerly, a Lowell, Mass., auto mechanic, was accused of dismembering his wife and dumping her parts in a river. He had failed a lie-detector test, complicating the defense. But when the lead lawyer had a heart attack, Mr. Bailey took over and, raising the specter of reasonable doubt, won an acquittal. (Edgerly was later convicted in another murder.)"

From "F. Lee Bailey, Lawyer for Patty Hearst and O.J. Simpson, Dies at 87/With theatrical courtroom flair, he was involved in a host of notorious criminal cases, including those of the Boston Strangler and a Vietnam War massacre" (NYT).

"As an activist, it can be very easy to develop a black and white view of the world: things are clearly wrong or clearly right."

"Harvey Weinstein’s decades of rape were clearly wrong. Donald Trump’s alleged sexual assaults were clearly wrong. Brett Kavanaugh’s actions, told consistently over decades by his victim (and supported by her polygraph results), were clearly wrong. So were Matt Lauer’s, Bill Cosby’s and so many others. As we started holding politicians and business leaders and celebrities around the world accountable for their actions, it was easy to sort things into their respective buckets: this is wrong, this is right. Holding people accountable for their actions was not only right, it was just. Except it’s not always so easy, and living in the gray areas is something we’re trying to figure out in the world of social media. But here’s something social media doesn’t afford us–nuance. The world is gray. And as uncomfortable as that makes people, gray is where the real change happens. Black and white is easy... Gray is where the conversations which continue to swirl around powerful men get started.... It’s not up to women to admonish or absolve perpetrators, or be regarded as complicit when we don’t denounce them. Nothing makes this clearer than the women who are still supporting Joe Biden even with these accusations. Hillary Clinton, Kamala Harris, Stacey Abrams, Amy Klobuchar, Nancy Pelosi, and Elizabeth Warren have all endorsed Biden and like me, continue to support him.... This is the shitty position we are in as women....  Believing women was never about 'Believe all women no matter what they say,' it was about changing the culture of NOT believing women by default.... I hope you’ll meet me in the gray to talk and to help us both find the way out."

From "Alyssa Milano On Why She Still Supports Joe Biden & How She Would Advise Him About Tara Reade Allegations – Guest Column" (Deadline).

If "Donald Trump’s alleged sexual assaults were clearly wrong" — alleged — then why can't you say "Joe Biden’s alleged sexual assaults were clearly wrong"? It's black and white at the allegation level. But then, you didn't say "Brett Kavanaugh’s alleged actions." You said "Brett Kavanaugh’s actions." You can get out of the grayness whenever you want just by saying "alleged." I don't know what motivated you to give Trump the "alleged." Maybe some editor worried about a defamation lawsuit and inserted that after you wrote it.

Anyway, grayness. Yes, real life as grayness to it. Let's be mature and fair and realistic. But don't confuse the grayness that is the uncertainty about what happened with the grayness about whether something is right or wrong. Tara Reade alleges that Joe Biden did something that Alyssa Milano — and all those other Democratic women she names — should have absolutely no hesitation to say is clearly wrong. The grayness is at the level of evidence. Who should be believed?

What do you do when someone on your side, on whom you've staked your party's success, is accused? You want to believe your guy! That's one way out of the grayness, and that looks like the way you have chosen. Why not be black-and-white honest that's what you and Hillary Clinton, Kamala Harris, Stacey Abrams, Amy Klobuchar, Nancy Pelosi, and Elizabeth Warren are all doing?

You say "Black and white is easy," but it's not, because you are still choosing what to call black and white and you are still smudging it into gray to suit your political preferences. That looks black and white to me.

"He told me to 'kill it' in a serious monotone voice. I asked 'What? What did you just say?' He looked at me and repeated in a deliberate manner 'kill it.'"

That's an allegation about what Mike Bloomberg said to a pregnant employee who is quoted in "Bloomberg's sexist remarks fostered company culture that degraded women, lawsuits allege/Bloomberg allegedly told employee who had just announced pregnancy to 'kill it.'"

Did he really say that? He denied it, under oath and also while connected to a "lie detector."

But for the purpose of answering this question of mine assume he did or forget about Bloomberg and just answer my question as a hypothetical:

From the point of view of a person who genuinely and deeply believes that abortion is murder, which statement, made to a pregnant woman, is less odious: "Kill it" or "You should have an abortion"?

I'm thinking "Kill it" is less odious (again: from the point of view of someone who genuinely and deeply believes that abortion is murder). To say "Kill it" is to recognize that abortion is murder. Both "Kill it" and "You should have an abortion" are stated as imperatives and have the speaker telling the woman what to do, but perhaps the woman asked "What should I do?"

To say "Kill it" is perhaps a way to influence the woman to think about the unborn child as a real person whom abortion will kill. What's her next line? "I don't want to kill it. I just want to not be pregnant. It's not a good time for me now. I just want to have an abortion...." The line "Kill it" might ring in her head.

Now, in blandly conventional human relations in the workplace, I think if a pregnant employee asks the boss what she should do, he'd be wise to say something like, "This is a decision for you to make, and I will support whatever decision you make."

But I don't want you to think that I believe that if Bloomberg said "Kill it" it was because he wanted to stimulate anti-abortion moral thinking in the woman. I think that is less likely than: 1. He didn't say it, 2. He thought it was a funny, snappy way to give the advice he wanted to give (have the abortion), or 3. He knew the woman wanted to be pregnant and was doing a kind of outlandish teasing that's possible when you know you're among people who are entirely comfortable with abortion.

Christine Blasey Ford "passed a polygraph test administered by a former F.B.I. agent...."

Writes David Lat in "Delay the Vote — for Kavanaugh, for His Accuser and for the Court/Christine Blasey Ford deserves to be heard. And the judge deserves a chance to clear his name" (published yesterday in the NYT). I'm not going to talk about the entire op-ed. (Lat's main argument is that if there is no hearing, Kavanaugh will be forever "dogged by these accusations.")

We now know that Ford is scheduled to testify before the committee, so the subject of whether she should be given a chance to testify came and went yesterday. Now, the issues are whether the hearing might be averted somehow — I can think of at least 3 things that could happen — how aggressively and extensively Ford should be questioned and what Kavanaugh should do in response and how how to exploit all of this in the midterm elections. I'm just floating all those topics for now.

What I want to talk about is: "She passed a polygraph test administered by a former F.B.I. agent..."

1. Does the status "former F.B.I. agent" convey professionalism and aloofness from partisanship? That reputation has taken a big hit these days. I don't mean to say anything about the particular FBI person who did the questioning and interpreted the results (identified in the NYT as Jerry Hanafin), but I can't read "former FBI" to mean not a political partisan.

2. Does one "pass" a "polygraph test"? From the Washington Examiner (a conservative newspaper):

“The polygraph is not a lie detector,” said [Thomas Mauriello, former senior polygraph examiner who worked at the Defense Department for 30 years, current a part-time professor in the University of Maryland’s criminology and criminal justice department]. “Let’s make that clear. There is no such thing as a lie detector. It’s simply an investigative tool that will record physiological reactions when you’re asked a question and give a response.”

He said if a person being tested doesn’t have a physical response to a question, that’s not necessarily a guarantee that he or she is being truthful or honest. Mauriello said there are even medications called beta blockers that a person can take to prohibit such bodily reactions....

Experts said that the way the results of a test are assessed is largely subject to who is doing the evaluation, and that the way an examiner formulates his or her questions can produce varying results. In other words, whether a person “passes” or “fails” a polygraph test depends greatly on who conducts it.

“In cases like this, as surreal as it may sound, people can ask for second opinion,” said James Gagliano, a former FBI supervisory agent who now teaches homeland security and criminal justice leadership at St. John’s University in New York.... Polygraph administrators, he said, aim to determine a subject's physical “baseline” by asking a series of innocuous questions like their name and favorite sports teams. He said then, an administrator may ask more "uncomfortable" questions and that the test could register a physical response, such as an increase in heart rate....

"I’m sure ABC would love it if my show appealed to everyone. But I don’t think that world exists anymore. And I’m not comfortable in it."

"I don’t really see any other path. I also think one of the biggest mistakes you can make as a performer is trying to guess what your audience wants. I think you need to do what you think is right and hope that it works out."

Said Jimmy Kimmel, responding to a question about the effect of politics on his ratings, quoted in a Daily Beast interview with the inaccurate title "Jimmy Kimmel Doesn’t Want to ‘Appeal’ to Trump Fans: ‘I Don’t Think That World Exists Anymore.'"

I clicked through based on that headline, which made me feel that Kimmel had either meant that Trump doesn't have fans anymore or that the people who like Trump are just nonpeople as far as he's concerned.  But what he means, as I read the larger context, is that TV has changed, and there are so many choices now that it's no longer the case that a late-night talk show needs to appeal to everyone. That might have been the way TV was done long ago, for example, when Johnny Carson did "The Tonight Show," but these days, taking on the limitations inherent in being likable to everyone isn't worth it.

But Kimmel is concerned about reaching a lot of people, because he explains his willingness to make fun of Trump in terms of the ignorance of the audience:

You don’t want to have to spend three minutes explaining a story to your audience. And if there is anything good about Donald Trump, it’s that people are paying attention to what’s going on in the White House. And you can make jokes about subjects that people might not have been paying attention to when Obama was president or Bush was president. Because he is such a colorful character and there is so much attention put on everything he says and does. So that makes it ideal for comedy. You don’t have to set up the setup. I’ve always felt that my job, even during my radio days, is to talk about the events of the day.

So it's not that he's writing off the Trump fans so much as he's hungry for some material that will actually make people laugh.

And this was interesting:

In 2004, you were going to have Omarosa on.... And the legend is that she thought there was going to be a lie detector test, freaked out and left before her appearance. Is that an accurate description of what happened?

Yes, what happened was, my Uncle Frank‍ lied about something. And I thought it would be funny to give him a fake lie detector test on the air, something that he thought was real. She saw the setup for the lie detector test and decided that we were going to spring it on her, which, if you know anything about taking a polygraph test, that’s not how it works. It takes a long time. There’s no ding and no buzz. It’s a chart that they analyze afterwards. So that was preposterous just to start with. But she stormed out of there and the show was live so we had no guest. I don’t remember what I talked about, I probably just talked about her the whole time. But she was very angry. And I remember thinking it’s better this way. I didn’t want to have her on the show. The woman — there’s clearly something wrong with her. And the fact that Donald Trump hired her is really all you need to know about that guy and his organization.

Ironically, her reaction to the idea of a lie detector test is some evidence that she is a liar. But it's rather weak evidence. For one thing, being asked — as part of the show — to take the test is humiliating. It implicitly accuses her of being a liar. And a nonliar could feel anxious about taking the test and the anxiety could make you feel that you would fail the test.

ADDED: At this point in writing this post, I went looking in my archive for an earlier post explaining a point of evidence, the inference about a person's state of mind produced by the refusal to take a test even where that person is wrong about the test. It was something about "the ordeal of the bier" that I used to teach in Evidence class. And — ha ha — here's the old post, from April 29, 2004, "Omarosa and ... the ordeal of the bier!" I blogged it in the very context of the old Jimmy Kimmel show!

AND: Quoted at the 2004 post:

“The lie-detector test wasn’t even for her,” a spokeswoman for the show told the Scoop. “It was intended for Jimmy’s Uncle Frank [a regular character on the show], but when Omarosa saw it, she just freaked.” Some fellow contestants have accused Omarosa Manigault-Stallworth of lying when she said one of them used the N-word. “We tried and tried to calm her down, but she just kept saying ‘I’m not going on stage with that lie detector test’ then she just walked out.”

First, interesting that the lie in question was about her saying somebody used the N-word. Second, how do we know they aren't lying about how they intended to use the lie detector? Even if they had some routine with Uncle Frank, that would have made lie detecting a subject that might be referred to in other parts of the show, an ongoing theme that Jimmy could tap. Since Omarosa didn't go on the show, we never found out, and the story that it was always only for Uncle Frank cannot be tested. Maybe Jimmy's lying.

The heads of Drudge, eating iguana, and the evidentiary value of a DNA test.

On Drudge, just now:



I don't really know what Drudge is trying to say, but the women — Ivanka and Elizabeth Warren — both have bands around their heads (I know Ivanka's is an entire hat) and the men's heads are more differentiated:

1. Musk's head is enclosed within a space helmet, 2. Bezo displays baldness glossily, 3. Eminem, like a riddle wrapped in a mystery inside an enigma, has his noggin inside a baseball cap wrapped in a hoodie.

I was going to discuss Elizabeth Warren's crudely photoshopped "Indian" headband (and arrows), but I took a moment to click to see what Jeff Bezos has on that tray, and it's the entire body of a cooked iguana and he's posing seemingly eating a chunk of it!

From the text of "Bezos Says He’ll Spend ‘Amazon Lottery Winnings’ on Space Travel"(Bloomberg):

The Amazon chief executive officer wasn’t the only billionaire at the glitzy event at the Marriott Marquis in Times Square. West Coast industrial real estate tycoon Ed Roski and Frederik Paulsen, a Swedish pharmaceutical titan and pole explorer, perused the tarantula, cockroach and roasted iguana appetizers amid 1,200 guests including James Lovell, the first person to journey twice to the moon, on Apollo 8 and Apollo 13.

Boldface added. Eat what you're told! I was introduced to dog meat (tough), snake meat (tougher), and roasted grasshopper (crunchy)...

But, okay, here's the Elizabeth Warren article Drudge links to: "Elizabeth Warren refuses DNA test to prove Native American heritage." There's no "Indian" paraphernalia in the photo there (at the New York Post). I think it's grotesque and irrelevant to demand a DNA test.

"The Boston Bombing Witch Hunt Bags Another Innocent Kid."

"Yesterday he caught wind that his name and social media profiles were being circulated online, and he did what any teenager would do: He panicked. He made his Facebook timeline private, and in one message now no longer visible, he announced he was going to clear his name. Going to the court rightnow!! Shit is real. But u will see guys I'm did not do anything."

Reminiscent of Richard Jewell and Atlanta Olympics bombing:

Early news reports lauded Jewell as a hero for helping to evacuate the area after he spotted the suspicious package. Three days later, The Atlanta Journal-Constitution revealed that the FBI was treating him as a possible suspect, based largely on a "lone bomber" criminal profile. For the next several weeks, the news media focused aggressively on him as the presumed culprit, labeling him with the ambiguous term "person of interest," sifting through his life to match a leaked "lone bomber" profile that the FBI had used. The media, to varying degrees, portrayed Jewell as a failed law enforcement officer who may have planted the bomb so he could find it and be a hero.

Two of the bombing victims filed lawsuits against Jewell on the basis of this reporting. In a reference to the Unabomber, Jay Leno called him the "Una-doofus." Other references include "Una-Bubba," and (of his mother) "Una-Mama." Jewell was never officially charged, but the FBI searched his home, questioned his associates, investigated his background, and maintained twenty-four hour surveillance of him. The pressure only began to ease after Jewell's attorneys hired an ex-FBI agent to administer a polygraph which Jewell reportedly passed....

Horrible.

"$1.1 million-plus Gates grants: ‘Galvanic’ bracelets that measure student engagement."

Link.

But what if they're engaged in their own daydreams?

And isn't this basically a lie detector? And if so, won't students train themselves to fool the authorities? I'm sure the internet will be full of tips.

Police say Ashley Todd has confessed to faking the story that an enraged black man carved a "B" for Barack into her face.

She will be charged for filing a fake report.

Police spokeswoman Diane Richard ... said Todd said on Friday she wasn't sure if it was a bumper sticker on her car or a campaign button on her jacket that angered the attacker. Richard said Todd added new details to the attack, saying at one point she lost consciousness.

"She also indicated she was sexually assaulted as well. She indicated that when he had her on the ground he put his hand up her blouse and started fondling her. But other than that, she says she doesn't remember anything else. So we're adding a sexual assault to this as well," Richard said.

Police said they gave a polygraph test to Todd, but they didn't release the results.

I'm glad this got cleared up so quickly, and I hope people learn a few lessons from this. As I said here and here, it always looked fake to me.

AND: Making the fake assailant black and then throwing in the sexual assault makes thing truly vile. 

What if no one is bisexual?

Some researchers attached sensors to 101 penises and then showed the possessors of these penises either all-male or all-female porn movies. It was kind of a lie detector test, because the men had all professed to being heterosexual, homosexual, or bisexual. All the bisexuals, it seems, were lying -- or deluding themselves. Once you disregard the one-third of men who weren't aroused by any of it -- which, rightly or wrongly, the scientists do -- all the men were distinctly attracted either to males or to females. This contradicts the views of Freud (who thought bisexuality was the norm) and Kinsey (who thought there was a continuum from heterosexuality to homosexuality).

I think you can critique the study in various ways, but I'm also interested in how this finding -- if we were to confirm it as a solid fact and applicable to women as well as men -- would affect various arguments about gay rights. Let me posit that believing Kinsey was right about the continuum is currently causing many people to resist the social acceptance of homosexuality. They are hoping to influence people in the middle of the continuum to choose a heterosexual "lifestyle." But if no one really is in the middle, this attempt at influence is truly misguided. You may as well remove the obstacles to the individual's free choice of sexual orientation.

The runaway bride.

"14 bridesmaids and 14 groomsmen"! Maybe it's not such a great idea to have a super-huge wedding.

On the other hand, if the super-huge wedding is freaking you out -- and when we can see the whites of your eyes above your irises, you are freaked out -- setting off a nationwide search, with family members crying on television, is not such a great idea either.

I just watched last night's Nancy Grace show -- which predates the surfacing of the runaway bride Jennifer Wilbanks -- and found something really quite creepy about the whole wow-we've-got-another-Scott-and-Laci vibe.

And the poor groom-to-be! He had to know everyone already had him pegged as the murderer. Everyone on TV was into analyzing why he would take a private lie detector test, but wanted special conditions before he'd take the police test. He wanted it videotaped, and the police refused. Think how he felt! They were closing in on an innocent man, and his efforts to protect himself were just more reason to speculate he was guilty.

Omarosa and ... the ordeal of the bier! According to Jeannette Walls at MSNBC News:

The much-loathed reject from “The Apprentice” was scheduled to appear on “Jimmy Kimmel Live” last week, but refused to go on air when she saw a lie detector test backstage.

“The lie-detector test wasn’t even for her,” a spokeswoman for the show told the Scoop. “It was intended for Jimmy’s Uncle Frank [a regular character on the show], but when Omarosa saw it, she just freaked.” Some fellow contestants have accused Omarosa Manigault-Stallworth of lying when she said one of them used the N-word. “We tried and tried to calm her down, but she just kept saying ‘I’m not going on stage with that lie detector test’ then she just walked out.”

That reminds me of a lesson about relevant evidence I used back in the days when I taught Evidence. We read a 1894 Missouri State Supreme Court case, State v. Wisdom (sorry for the long block quote, but this is not otherwise available on line and it's really cool):

In the course of the examination of the witness Hill, he was asked to tell what happened down at the morgue by the dead body of Mr. Drexler, when the witness Willard and defendant were there, prior to the inquest. This was objected to as immaterial; the objection was overruled. The witness answered that "they told us to put our hands on Mr. Drexler," and that he "and Willard did so, but defendant wouldn't do it." Officer McGrath corroborated this statement. Defendant objected to McGrath's statement, but assigned no reason. The action of the court in this regard is now assigned as error. Who it was that told them to put their hands on Mr. Drexler's dead body does not appear.

The request to touch the body was evidently prompted by the old superstition of the ordeal of the bier in Europe in the Middle Ages, which taught that the body of a murdered man would bleed freshly when touched by his murderer, and hence it was resorted to as a means of ascertaining the guilt or innocence of a person suspected of a murder.

This superstition has not been confined to one nation or people. It obtained among the Germans, prior to the twelfth century, and is recorded in the Nibelungenlied, the great epic poem of that country, in the incident in which the murdered Seigfried is laid on his bier and Hagen is called on to prove his innocence by going to the corpse, but at his approach the dead chief's wounds bleed afresh. That it dominated the English mind is attested by the passage of Matthew Paris, that when Henry II. died at Chinon in 1189, his son and successor came to view his body, and as he drew near, immediately the blood flowed from the nostrils of the dead king as if his spirit was so indignant at the approach of the one who caused his death, that his blood thus protested to God. And Shakespeare voices the same superstition in Richard III., in act 1, scene 2, thus:

"O! gentlemen, see, see! dear Henry's wounds Open their congealed mouths and bleed afresh."

And so does Dr. Warren, in "Diary of a Late Physician," 3 vol., p. 327. That it was a prevalent belief in Africa and Australia, in another form, see 17 Encyclopedia Britannica, pp. 818, 819.

This superstition has come to this country with the emigration from other lands, and, although a creature of the imagination, it does to a considerable degree affect the opinions of a large class of our people.

It is true it was not shown that defendant believed that touching this body would cause any evidence of guilt to appear, or that he entertained any fear of possible consequences, but it was simply a test proposed by some bystander, and it was offered as showing the manner in which the three suspects conducted themselves when it was proposed. Clarke v. State, 78 Ala. 474; Chamberlayne's Best on Ev., page 488.

While defendant had a perfect right to decline, either because of his instinctive repugnance to the unpleasant task or because no one had a right to subject him to the test, and his refusal might not prejudice him in the minds of a rational jury, on the other hand, a consciousness of guilt might have influenced him to refuse to undergo the proposed test, however unreasonable it was and it is one of the circumstances of the case, that the jury could weigh. The jury could consider that, while it was a superstitious test, still defendant might have been more or less affected by it, as many intelligent people are by equally baseless notions as shown by their conduct and movements. It often happens that a case must be established by a number of facts, any one of which, by itself, would be of little weight, but all of which taken together would prove the issue.

So, getting back to Omarosa: even if the lie detector was not to be used on her, and, indeed, even if lie detector tests are not reliable, if she believed it was to be used on her and believed it was reliable, her running off at the sight of it is some evidence that she had lied in her accusation about the other contestant. On the other hand, it isn't very strong evidence. She may have believed lie detector tests are not reliable, especially for someone under stress (as she would be if given the test on camera), and so she could be telling the truth but rejecting the test to avoid producing evidence that would be used against her. And it is also completely sensible to flee the lie detector because it gave her the strong impression that she was going to be subjected to intrusive, disrespectful intrusions other than the interview she agreed to. Oh, and I'd like to see a lie detector test given to the spokeswoman for the show, with questions about whether they were planning to ask Omarosa once she was on stage whether she wouldn't like to take the test.

A sidenote: that case appeared in an early edition of the Green and Nesson problem method Evidence book. I harshly critiqued that edition of Green and Nesson in "The Lying Woman, The Devious Prostitute, and Other Stories from the Evidence Casebook," 88 Northwestern Law Review 914 (1994). That's not available on line, but it makes excellent reading. Having written an article with that title, I now have the rare distinction of having a resumé with the word "prostitute" on it! File that under: Things I Didn't Think About At The Time. And I have no quarrel with later editions of Green and Nesson's book, at least some of which included passages from my article.

ADDED: "The Lying Woman..." is now available to read on line: here.