Most law enforcement employers in the country are forbidden to use polygraph examinations in personnel investigations. In states such as California and Washington, legislatures have forbidden the use of polygraphs. In other states, most prominently Florida and Illinois, courts have ruled that polygraphs are too unreliable upon which to base a disciplinary decision.

Bucking the trend, the New Hampshire Supreme Court has recently held that nothing in New Hampshire law forbids the use of polygraphs in law enforcement investigations.

The case involved New Hampshire state trooper Tracy Waterman, who was accused of making threats against other employees. In the course of an internal investigation, the Division of State Police ordered Waterman to take a polygraph examination. When she refused, the Division terminated her for insubordination.

The New Hampshire Supreme Court upheld Waterman’s termination. The Court acknowledged that “numerous courts, including this Court, have ruled that polygraph test results are inadmissible as evidence of guilt or innocence in criminal trials.” However, the Court found that “the unreliability of polygraph test results for these purposes does not negate their utility for other purposes.” The Court cited from decisions in other states that a polygraph test “might have proved useful in limiting and channeling the investigation in this case.”

The Court also referred to the Federal Employee Polygraph Protection Act of 1988, which prohibits many private sector employers from using polygraph tests for pre-employment screening or during the course of employment. In the eyes of the Court, the Act “also appears to recognize that the polygraph test may be useful for some purposes. This Act contains a limited exemption for ongoing investigations provided certain conditions are met, as well as an exemption for private employers whose primary business consists of providing security.”

In re Waterman, 2006 WL 3437171 (N.H. 2006).

Note: The Court’s decision is an unusual one in that it was explicitly based on “persuasive authority” from other jurisdictions. However, many of the decisions cited by the Court are as much as 40 years old, and are from states where legislatures have subsequently banned the use of polygraphs.

This article appears in the January 2007 issue