Can a test detect those lyin’ eyes? A Utah company says yes. Judges aren’t so sure

LEHI – “The eyes are windows to the soul” – so goes the old adage. But do eyes tell lies? And can a test detect those lies reliably enough to help put criminals away and exonerate the innocent?

Converus, a Lehi-based tech company, touts its EyeDetect technology as a next-generation lie detector. Instead of measuring signals such as heart rate and blood pressure changes – like the standard polygraph does – the EyeDetect test tracks subtle changes in how a person’s eyes move and react.

Several Utah men charged with sexual crimes say the test supports their innocence, and they want juries to see it. But prosecutors are pushing back, saying the science isn’t sound. Now this fight could land in the state’s highest court.

While the EyeDetect technology has been available for a decade now, it’s not widely used in the criminal justice system – yet. One Utah attorney is now asking the Utah Supreme Court to weigh in.

In the meantime, the KSL Investigators dig into the unanswered question about whether EyeDetect should be used to help determine who’s guilty and who’s not. The company agreed to let me take a version of its test, and the results were eye-opening.

‘Next-generation’ lie detection

Converus CEO Todd Mickelsen said the EyeDetect test improves on the polygraph by offering a convenient and non-invasive way to detect deception. No sensors need to be attached to the body. The test takes half an hour or less. And results are available in just a few minutes.

The test questions are also given by a computer, rather than a human, and an algorithm scores the results.

“So, there’s no room for variation or bias,” Mickelsen said.

The technology, developed by a team of scientists at the University of Utah, is based on the concept that lying requires the brain to work harder, which then prompts small but measurable changes in the eyes.

“That exertion of additional mental effort causes these involuntary changes,” Mickelsen explained. “So, it’s changes in cognitive load that get measured by involuntary changes in the eyes.”

Admissible in court?

Since the technology was released in 2014, some law enforcement agencies in Utah and across the country have used EyeDetect for both investigations and pre-employment screenings.

“They want to know if those candidates they’re interviewing have had a history of physical or sexual violence,” Mickelsen said.

And some states use EyeDetect to monitor sex offenders on parole.

According to recent court filings, a jury has only considered EyeDetect results once in the U.S., in a case in New Mexico, a state where polygraphs are allowed in court.

According to reporting by the Santa Fe New Mexican, a man accused of raping a 14-year-old girl passed an EyeDetect test and got his results admitted to his trial in 2018. Five of 12 jurors voted to acquit him, leading to a mistrial. The man later took a plea deal and avoided prison time.

In Utah, attorneys for Jerrod Baum attempted to submit EyeDetect results paired with polygraph results that were favorable to his defense for jurors to consider at his trial. The jury later found him guilty on all charges related to the 2017 murders of two teenagers, Brelynne “Breezy” Otteson, 17, and Riley Powell, 18.

Seeking a Utah Supreme Court decision

The effort by some Utah defense attorneys to use the results of EyeDetect tests as evidence in criminal court cases is intensifying.

Christopher Browning is a convicted rapist who served 24 years in prison for a brutal assault in 1998. Now, he’s charged with rape again, accused of attacking a 72-year-old Taylorsville woman just weeks after he was released on parole.

Browning did well on an EyeDetect test – scoring a 99 out of 100 – when asked about one specific detail of the woman’s account: whether he forced her to shower at knifepoint. The woman told police he did, after sexually assaulting her.

During a hearing in the case, an expert testified the results of EyeDetect tests have been found to be about 85 percent accurate, while the polygraph’s accuracy is considered to be as high as 90 percent.

“The evidence should be allowed,” defense attorney Ralph Dellapiana told the judge.

After decades of debate, standard polygraph results are generally considered not reliable enough to be admissible in Utah courts.

“Eye detection is fundamentally no different than the physiological responses of a polygraph,” Salt Lake County District Attorney Sim Gill told me, “And those are not admitted.”

Gill’s office fought against using EyeDetect results in Browning’s case, and several others, often involving charges related to sexual assault or sexual abuse.

“When they’re presented, we’re going to object to it until we’re told otherwise,” said Gill.

Dellapiana hopes Gill’s office is told otherwise.

“We wanted to admit that evidence at the trial,” he said.

After the judge sided with prosecutors, blocking Browning’s EyeDetect results, Dellapiana filed a request to appeal the issue to Utah’s Supreme Court, looking for a different outcome.

In his own words, Browning even penned a letter to the judge asking him to reconsider, writing, “this test cannot be manipulated.”

A KSL Investigator tests the test

I decided to test the test myself, and Mickelsen agreed to show the KSL Investigators a demo.

“This test is a test that you’re required to lie on,” Mickelsen said, urging me to try my hardest to lie and trick the test.

He instructed me to write down a number between two and nine. Then started the test.

The test asks you to respond true or false to statements about each number from one to 10. Then, after several rounds with breaks in between for general knowledge questions or mental palate cleansers, the test should select the number you wrote down – the one you lied about – based on changes it tracks in your eyes.

“This is something you can’t feel or control,” said Mickelsen.

After several rounds of questions, the test guessed the number I wrote down: seven.

But I wrote down the number eight. Seven is the number I chose to think about and visualize during the test, in the hopes of tricking the technology. The test did pick up on a change in my eyes during questions about the number eight, ranking it as a likely second choice.

“I’ve given more than a thousand of these,” Mickelsen said. “94% of the time, we get the number in the first position.”

He said the version of the test criminal defendants like Browning are taking is more targeted and involves more data points than the numbers demo. And he believes EyeDetect results should be admissible in court when coupled with results from a polygraph, as long as both tests are given independently and reviewed by an independent third party.

“We have 23 studies, 13 of which are peer-reviewed and published, that show that it’s highly accurate,” said Mickelsen.

High stakes

Still, the difference between highly accurate and always accurate could have far-reaching consequences when possible prison time and public safety are at stake.

That is what is on the line in Utah’s justice system, and why, for now, courts leave it to juries to look for lies and decide what’s true.

It is unclear whether the Supreme Court will take up the appeal in Browning’s case. The state’s response to his request was due on Thursday, Dec. 10.

Have you experienced something you think just isn’t right? The KSL Investigators want to help. Submit your tip at investigates@ksl.com or 385-707-6153 so we can get working for you.