By: Sam Kuper 

When (fingers crossed) I graduate from law school next spring, my six-figure law school investment will come up against the bar—a test that almost every attorney in Washington State has taken since the Multistate Bar Examination (MBE) was introduced in 1972. While the content of the test itself has changed forms across time and jurisdictions—the exam was only administered orally for over a hundred years, and the Washington Supreme Court just announced huge changes for 2026—one requirement for bar admission has stayed consistent: “Every person . . . must be of good moral character and possess the requisite fitness to practice law.” The character and fitness test (“C&F”) requires disclosure of an incredible amount of personal information, from listing the addresses of every place one has ever lived, to that one speeding ticket received in Yakima six years ago, there are few stones left unturned. Many states even require the disclosure of expunged and sealed convictions. According to the American Bar Association, the C&F requirement “In theory . . . protects the public from individuals whose past conduct shows they will not be scrupulous lawyers.” Yet, applicants are rarely refused admission based on character and fitness issues. Once admitted to the bar, lawyers then must abide by the Washington State Rules of Professional Conduct or risk administrative investigation and sanctions. These rules mostly do not apply to law students, save for ABA Rule 8.1—“An applicant for admission to the bar . . . shall not: (a) knowingly make a false statement of material fact.” But if bar examiners are concerned with complete disclosure on bar applications, why do they not require a polygraph test? The answer lies in part on its controversial scientific backing, along with the structure of the legal profession itself. 

Polygraphs as “Junk Science”

Invented in 1921 by a Berkley police officer, modern polygraphs measure changes in physiological factors such as heart rate, blood pressure, respiration, perspiration, and skin conductivity to, in theory, detect when subject is lying versus telling the truth. According to a 2006 Department of Justice report, polygraphs have been used for over seven decades by federal agencies, but were not widespread or centralized until the 1970s. Their most common uses include aiding criminal and administrative investigations, foreign counterintelligence, and counterterrorism investigations. While Wikipedia refers to polygraphs as “junk science” in the first sentence of its entry, the American Polygraph Association—a professional organization that establishes training, standards, ethical practices, research, and instrumentation for polygraph examiners—claims “accuracy rates exceeding 90 percent.” Wikipedia is hardly the polygraph’s only naysayer—a 2003 National Academy of Sciences (NAS) report concluded that, at least in the context of pre-employment screening, “its accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.” This conclusion prompted the Department of Energy to promulgate a regulation in 2006 that eliminated screening tests without specific cause. A 2019 report by a University of Minnesota psychology professor concluded that, even after two decades, NAS skepticism surrounding the polygraph’s efficacy stands. 

Current Polygraph Legislation

Despite the controversy involving its scientific efficacy, the polygraph remains in considerable use by both federal and state agencies. In 1988, Congress enacted the Employee Polygraph Protection Act (EPPA) which prohibits most private employers from using the polygraph either in pre-employment screening or during the course of employment. However, it still exempted federal agencies like the FBI and NSA, along with other private employers who have “significant impact” on the “national security of the United States.” Many states have similar legislation. In Washington State it is unlawful to require lie detector tests for employees or prospective employees—with exemptions for employment involving law enforcement, controlled substances, and national security. In fact, a polygraph exam is a pre-employment requirement for people seeking employment at a law enforcement agency in Washington State, such as any police department officer or corrections officer. Only five states—Massachusetts, Michigan, Minnesota, New Jersey, and Oregon—have complete prohibitions on polygraph usage by employers, public and private, with some limited exceptions based on consent. To provide some context as to the popularity of the polygraph by states, a 1994 survey of the 699 largest police agencies in the United States determined 62% had an active polygraph screening program. The survey also determined that approximately 25% of the people tested by such programs were disqualified from police employment based on information gleaned from the polygraph. While this survey was conducted thirty years ago, there is little reason to believe its popularity, particularly for pre employment screening, has waned among law enforcement agencies. For example, in 2019, the DEA issued a memorandum stating it will no longer hire Special Agent or Intelligence Research Specialist applicants who fail a polygraph examination. In 2020, the Washington State Legislature proposed to remove the polygraph examination as a requirement for law enforcement—but it was quickly reinstituted in an amendment.

Polygraph Litigation and Admissibility

Considering its dubious scientific underpinnings, it should be no surprise that the polygraph and its results have been the subject of plenty of litigation. Neither the Federal Rules of Evidence (FRE) nor the US Code have a specific provision concerning the admissibility of the polygraph examination results. However, admissibility of scientific evidence is generally governed by FRE 702, along with precedent in Frye v. United States (D.C. Cir. 1923) and Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). These tests involve the judge deciding admissibility based on either “general acceptance” in the scientific community (Frye) or a non-exhaustive list of factors (Daubert) which includes “general acceptance.” While the Supreme Court has not given a blanket prohibition to polygraphs on this basis, in United States v. Scheffer (1998), the Court ruled that Military Rule of Evidence 707—which prohibits the use of polygraph results in court-martial proceedings—did not violate a defendant’s Sixth Amendment right to present a fair defense. There, the defendant wanted to introduce his polygraph results into evidence that he did not use drugs while enlisted in the military. Without specific guidance, federal and state courts are split on the issue, with some having a per se exclusion, and others allowing it if, for example, both sides agree to its inclusion (this is the Washington State rule). For example, in U.S. v. Posado (1995), the Fifth Circuit held that its per se rule against the admission of polygraph evidence in federal court was no longer viable in light of the new Daubert standard.

Will Bar Associations Require Polygraphs?

While there may be legal grounds for the institution of a polygraph on the C&F portion of the bar, we will likely never see this requirement be implemented. Bar associations generally operate under the delegated authority of the state’s highest court. They regulate bar admission, licensing, and discipline for attorneys, but are not necessarily an employer and thus perhaps not subject to the prohibition. This makes the bar association unique from law enforcement agencies, who are both employers and licensors. However, by precluding prospective attorneys from the bar, it effectively eliminates their ability to work for legal employers (this makes for interesting statutory interpretation). Further, considering the legal profession is more or less self-regulated, there would likely be outcry by attorneys if such a “junk science” was required for bar admission.