Polygraph Failed Clearance Lawyer

People describe a polygraph as something that is passed or failed, but that is not how the examination is recorded and it is not how the result is used. An examiner reports a call such as no significant response, significant response, or inconclusive, and that call is one item of information forwarded for adjudicative review. It is not a determination of eligibility. Eligibility is decided under the national security adjudicative guidelines in Security Executive Agent Directive 4, on the whole record, by an adjudicator who was not in the room.

Understanding that distinction changes what matters. In the great majority of cases the physiological data is not what causes the problem. What causes the problem is what the examinee said during the interview that surrounds the test, and how that account compares with the security form and with the rest of the file. Law Offices Of SRIS, P.C. advises cleared workers in Virginia whose examinations have produced an adverse result. Call (888) 437-7747 to discuss the situation.

On this page

What the Examination Is

Agencies use the examination as a screening tool in defined populations, typically as a counterintelligence screening examination limited to specified topics, or as an expanded screening examination reaching a broader set of personal conduct subjects. It is administered under agency policy, not under the adjudicative directive itself, and the directive governs only what an adjudicator may do with the information that results.

The session is not just the test. It includes a pre-test interview in which the questions are reviewed and the examinee is asked to explain anything that might affect an answer, the test itself, and a post-test interview if the examiner reports a significant response. That structure matters, because the interviews are where information enters the file.

There Is No Pass or Fail

An adverse call is not a finding that the examinee lied. It reports that the recorded data showed reactions the examiner assessed as significant on a relevant question. Inconclusive results occur, repeat examinations are common, and examinees are frequently asked to return for a second session on the same topics.

Nothing about the call establishes a fact under any guideline on its own. An adjudicator cannot construct a security concern out of a physiological reaction, because the guidelines are organized around conduct and circumstances. What an adverse call does is prompt further inquiry, and what that inquiry finds is what ends up in a statement of reasons.

The Interview Is the Real Exposure

The post-test interview is presented as an opportunity to clear something up, and it feels informal and cooperative. It is neither. Statements made in it are statements to the federal government. They are recorded, they are summarized in a report, and they can support both an adjudicative concern under the personal conduct guideline and, in a narrow set of cases, a criminal referral for a false statement.

Two errors recur. The first is volunteering an admission about something the examiner has not identified, in the belief that any disclosure will resolve the reaction. The second is offering an account that conflicts with an earlier security form answer, which converts a single issue into a candor issue. An examinee is entitled to say that a question needs to be discussed with counsel and to stop, and an examination may generally be discontinued at the examinee’s request, although that decision has consequences within the adjudicative process and should be made deliberately rather than in the moment.

How the Result Reaches the Adjudication

The examiner’s report and any admissions go into the file. If a security concern emerges, it is stated under a lettered guideline, most often Guideline E for personal conduct, and it is the underlying conduct rather than the examination result that is alleged. Other guidelines attach where the subject matter fits, such as Guideline H for drug involvement, Guideline K for handling protected information, or Guideline M for use of information technology.

If the reviewing authority proposes to deny or revoke, it issues a statement of reasons and the burden shifts to the person holding or seeking access. The response is a documentary exercise, and where a hearing is available it allows an administrative judge to hear the account directly rather than through an examiner’s summary. That is often the only realistic way to address a report the examinee disputes.

What Can Be Done

The first step is to obtain what actually exists: the report of the examination, the summary of any statements attributed to the examinee, and the security form answers the account is being compared against. Much of what people believe was said in an interview is not what the report records, and the difference frequently matters more than the reaction itself.

From there the work is ordinary adjudicative work. Where an admission was made, the underlying conduct is documented, placed in context, and addressed through the mitigating conditions the relevant guideline recognizes. Where the account is disputed, the inconsistency is explained with records rather than assertions. Where the concern is candor, evidence of prompt voluntary correction carries more weight than any argument about the examination.

Frequently Asked Questions

Can I lose a clearance because of a polygraph result alone?

An adverse call is information, not a finding of conduct. The adjudicative guidelines are organized around conduct and circumstances, so a security concern has to be stated in terms of something the person did or failed to disclose. In practice the concern almost always rests on statements made during the examination or on inconsistencies with the security form rather than on the recorded data by itself.

What does a significant response mean?

It is the examiner’s assessment that the recorded data showed reactions of concern on one or more relevant questions. It is not a determination that the examinee was untruthful, and it is not phrased as a pass or a fail. Inconclusive results and repeat examinations are both routine, and being asked to return for a second session does not by itself indicate an adverse outcome.

Do I have to answer questions in the post-test interview?

Participation in a screening examination is a condition of access in the populations where it is required, but no one is compelled to answer a particular question, and an examinee may say that a subject needs to be discussed with counsel. Doing so has consequences within the adjudicative process, where the applicant carries the burden of establishing eligibility, so it is a decision worth thinking through before the examination rather than during it.

Can what I say be used in a criminal case?

Yes. Statements to a federal examiner are statements to the government, and they can support a criminal referral where the subject matter is itself criminal or where a statement was knowingly and willfully false about a material matter. This is the principal reason to consult counsel before an examination that will touch conduct already under investigation.

Should I take a private examination to rebut the result?

Privately obtained examinations are generally given little weight in this process and are not a substitute for the agency’s own. Effort is better spent on the record the adjudicator will actually read: the examination report, the statements attributed to the examinee, and documentary evidence addressing the underlying conduct through the mitigating conditions the applicable guideline recognizes.

Can I get a copy of the report?

Access varies by agency and by program, and some material is withheld. Where a statement of reasons issues, the government files the material it relies on, which is often the first point at which the examinee sees how the interview was summarized. Requesting whatever is available early is worthwhile, because the summary and the examinee’s recollection frequently differ.

What happens after an adverse result?

The examiner’s report goes into the file for adjudicative review. Access may continue, may be suspended, or may become the subject of a statement of reasons proposing revocation, and any concern will be framed under a lettered guideline rather than around the examination itself. If a statement of reasons issues, the response and any available hearing are where the account gets addressed on the record.

Working With Law Offices Of SRIS, P.C.

An adverse examination result is a prompt for inquiry rather than a decision, and the case that follows is built out of what was said and what the file already contains. The firm works from the actual record rather than from recollection, and coordinates the response with any criminal exposure the subject matter creates.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has been practicing since 1997. Mr. Sris and the firm’s Of Counsel attorneys handle criminal defense matters across those jurisdictions, which matters in federal practice because a single investigation frequently reaches conduct, witnesses, and records in more than one state. Mr. Sris brings a background in accounting and information systems from George Mason University, applied to complex financial and technology-related cases.

The firm serves Northern Virginia from 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209 and central Virginia from 7400 Beaufont Springs Drive, Suite 300, Room 395, Richmond, VA 23225. By appointment. Call (888) 437-7747 to schedule. Request a consultation. Reach our location at (888) 437-7747.

This page provides general information about polygraph examinations in security clearance cases and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

Attorney advertising. Prior results do not guarantee a similar outcome.

Attorney responsible for this advertising: Mr. Sris.

A polygraph failed clearance case is one part of investigations & pre-charge work, and our page on DOHA hearing defence covers the wider process.