Forensic examinations using a polygraph and forensic psychophysiological examination.
Yu.I. Kholodny
Doctor of Law, Candidate of Psychological Sciences, Bauman Moscow State Technical University
In the spring of 1993, polygraph interrogations (OIP) were approved for use in operational-search activities (ORD) on the territory of Russia.
Over the past years, the use of the polygraph in law enforcement practice has been steadily growing from year to year1, and its effectiveness in the course of operational search activities is no longer in question. in the selection and monitoring of personnel activities.
The OIP method has been recognized by domestic forensic science, and the analysis of the natural science and theoretical foundations of the OIP method has made it possible to supplement forensic science with new knowledge, expand and clarify the content of some of its important provisions.
So, what new has the OIP method brought to domestic forensic science?
1. Discovery of previously unnoticed properties of ideal traces. In forensic science, it is generally accepted that ideal traces (images) have three differences compared to materially fixed traces, namely:
— ideal traces are inaccessible for their direct study;
— access to the study of an ideal trace is possible only after its materialization (carried out by the person who owns this trace, through his oral or written speech, or motor activity (drawing, diagram));
— materialized ideal traces are more informative, since they are capable of reflecting such characteristics (circumstances) of events in the external world that cannot be reflected in materially fixed traces.
The study of ideal traces from the standpoint of the IPR technology made it possible to describe their new properties2, which had not attracted the attention of forensic science before.
In particular, a fourth property was discovered — the materialization of an ideal trace occurs with the combined action of the objective factor — forgetting (natural destruction of an ideal trace) and one or more subjective factors, which are:
- the conditions and circumstances of perception, memorization and, subsequently, reproduction by a person of events in the external world;
- the physical and emotional state of a person;
- his cultural and national characteristics;
- perhaps, a deliberate distortion of ideal traces during their materialization, due to the motives or interests of a person, etc.
Finally, the fifth property of an ideal trace.
It is known that a materially fixed trace is subject to both natural (the action of natural, man-made, temporary and other factors) and deliberate destruction (intentional actions on the part of a person).
In contrast, the ideal trace is subject to exclusively natural destruction (the action of the objective factor — forgetting), is accessible to deliberate distortion during materialization, but is inaccessible to deliberate destruction (a person is given the ability to deliberately, at his own discretion, forget something from past events).
Personally significant events are remembered for a lifetime: «traces of past events stored in a person's emotional memory are practically indestructible throughout a person's life… It has been possible to successfully identify in memory traces of events removed into the past by 20 years or more»3.
It is the fifth property — the inaccessibility of human memory to the deliberate destruction of ideal traces of personally significant events of the past — that underlies the applied effectiveness of the OIP method.
2. Creating conditions for an objective study of the presence of ideal traces of events in human memory.
Until recently, the process of materialization of ideal traces (for example, during the interrogation of a person) was a subjective act, and an external observer could not fully control it.
The owner of these traces (the accused, suspect, etc.) materialized them uncontrollably, at his own discretion, and could deliberately conceal some of them.
In the absence of information from independent sources, the investigator found it very difficult to assess the quality of such materialized ideal traces.
In such situations, the use of the IIP:
1) makes it possible to objectively identify ideal traces of events or their circumstances concealed by him in the memory of a specific person;
2) makes ideal traces accessible to objective research before their materialization (i.e. without materialization);
3) allows objectively detecting the presence (or absence) of deliberate distortions in the materialization of the main circumstances that are fundamentally important for the disclosure and investigation of a crime or the prevention of offenses
The inclusion of the OIP in the system of methods and means of forensic science has qualitatively changed the existing situation: the polygraph has the ability to objectively identify and examine ideal traces of events stored in human memory; previously, this was fundamentally impossible4.
3. Clarification and supplementation of forensic diagnostics objects.
The conducted studies led to the need to clarify some basic concepts of forensic diagnostics.
In particular, it was established that when conducting the OIP, the following can act as diagnostic objects of ideal traces stored in human memory:
- in the case of visual perception (less than 1% of the OIP) — material objects, which may be objects, photographs of people, objects or areas of terrain, maps, diagrams, documents, written telephone numbers;
- in the case of auditory perception (more than 99% of the OIP) — semantic concepts, i.e. ideal objects, which are test questions, each of which covers a separate element, condition, circumstance or characteristic of an event, involvement in which should be established using a polygraph.
The appearance of «virtual» diagnostic objects in forensic diagnostics is natural when detecting and studying ideal traces.
However, not only diagnostic, but also diagnosed objects can be semantic concepts imprinted in human memory, which unambiguously characterize events and phenomena of the external world.
Practice has shown that objects diagnosed during the IPC5 may be people's last names and nicknames, addresses, names of cities and regions, names of actions, dates and times of events, etc.
4. Expanding the possibilities of identification presentation.
It is usually assumed that identification presentation (IP) has «as a result — a logical conclusion about — identity, similarity or difference.» In the specialized literature on IPC it is mentioned that «in the practice of legal proceedings, false identification and false non-identification are possible.»
However, in addition to the five indicated PDOs, there is also a sixth outcome, which was previously unknown to domestic forensics — intentional non-identification8, i.e. the intentional concealment by the identifying person of the fact of identification of the object presented to him for identification.
As world and domestic practice has shown, identifying intentional non-identification is a trivial task for the IPC, which has been successfully solved by various countries using the polygraph for decades.
5. Expanding the possibilities of forensic prevention of offenses and crimes.
The emergence of screening IIPs in the United States in the 1930s was due to the fact that the employer — a government agency or a commercial organization — sought to use the labor of individuals who, while performing their official duties, would not cause him harm, damage, and also observed the established discipline.
Since the mid-1990s, federal agencies and non-governmental institutions in Russia have adopted screening IIPs: their introduction into personnel work practices has made a significant contribution to the development of one of the least developed sections of forensic science — forensic prevention.
The use of a polygraph in personnel work turns the IIP into a private method of forensic prevention of crimes and offenses related to the performance of official duties.
6. Formation of a new direction of the department «Forensic technology».
After the polygraph was legalized in Russia, forensic science did not know for a number of years how to respond to its use in operational search activities.
By the end of the 1990s, the polygraph was defined as one of the “non-traditional means of obtaining information that is significant for investigating crimes” and was classified under the “Forensic technology” section.
At the same time, the opinion was formed that “the totality of scientific and applied knowledge about the use of the psychophysiological method of “lie detection” using a polygraph (or other hardware and software) should be considered as an independent branch of forensic technology, which is part of the section “Forensic Technology” and deals with the practice of applying technical and forensic methods and means of detecting traces of events in human memory that are significant for solving and investigating crimes.”
Several years passed, and forensic diagnostic studies using a polygraph took their rightful place in domestic forensic science; in 2008, they were included for the first time in a forensic science textbook12 as an independent area of section 13 “Forensic Science Techniques.”
Advances in the development of forensic diagnostic studies from the standpoint of the categorical apparatus of modern forensic science have led to the fact that the method of the IIP began to be used in the form of forensic psychophysiological examination (SPPE), and their results — to be presented to the court as evidence.
However, along with the obvious achievements in the application of the IIP in Russia, in recent years a number of private problems have accumulated that significantly hinder further progress in this area: many legal, methodological, technical and other issues related to the use of the polygraph have clearly not been sufficiently developed.
One of these problems was the use of forensic research using a polygraph in the form of SPFE.
The Federal Interdepartmental Coordination and Methodological Council for Forensic Science and Expert Research (FICMS) has repeatedly considered the «problem of conducting research using a polygraph» and SPFE since 2004.
In December 2006, the FMCMS instructed the author of this article to «create a working group on the problems of conducting research using a polygraph, in particular, to determine the subject, object and tasks of the research, to review the training program for polygraph specialists.»
By making this decision, the FMCMS essentially stated that the basic provisions of «research using a polygraph» in the form of SPFE — their subject and object, their tasks — do not currently have a generally accepted interpretation, and the technology of training polygraph examiners and, especially, experts to perform SPFE requires a critical assessment.
The use of SPFE in law enforcement practice is growing at an increasing rate. Their demand and frequency of implementation in the last two or three years have pushed into the background the unresolved nature of a number of theoretical and technological issues.
The methodological support of SPFE clearly lags behind the needs of practice and does not meet the requirements of forensic science.
This is precisely why statements are emerging that “the use by individual judges of polygraph test results as criminal procedural evidence when passing sentence is illegal, and the tendency to multiply such cases in judicial practice requires immediate official clarification from the Supreme Court of the Russian Federation.”
While in its infancy, this new type of examination clearly demonstrated the acuteness of the issues that have arisen at the present time in domestic technology and practice of using the polygraph.
Practice also requires SPFE. But this does not at all indicate that such examinations should be carried out at any cost and by anyone.
It should be recognized that the overwhelming majority of specialists currently performing SPFE do not have the level of qualification necessary to conduct this type of examination, and what they conduct with the help of a polygraph as SPFE, in most cases, cannot be called an examination.
Moreover, many of these “experts” do not even suspect that the technologies for testing people on a polygraph (TNP) in the conditions of operational search activities and in the form of SPFE differ significantly, and some models of computer polygraphs are not suitable for methodically correct examination.
Therefore, no good intentions can justify the actions of those “SPFE enthusiasts” who, “having worked with a polygraph for fifteen years” and not having understood the difference in the use of a polygraph in operational search activities and in the form of SPFE, declare that “all disputes on methodological topics are “from the evil one.”
It is also impossible to approve of the actions of those who are trying to “push” a new type of examination into practice at any cost, although the SPFE methodology they propose does not meet the established requirements.
In particular, we are talking about the “Species Expert Methodology for Conducting a Psychophysiological Study Using a Polygraph” (“Species Methodology”), which was developed in 2005 by the non-governmental “Center for Independent Comprehensive Expertise and Certification of Systems and Technology” (CIICS) and which is being actively advertised18 as the only correct SPFE method.
The “Species Methodology” contains a number of flaws and shortcomings.
Without being able to dwell on the shortcomings identified in more detail19, we will only note, as an example, that it is a mistake to submit questions of the following content for resolution during the SPFE:
1. Does a psychophysiological study using a polygraph reveal reactions indicating that citizen (s) — Full Name has information about the details of what happened?
2. As a result of what circumstances could this information have been received by the person being examined? Could it have been received at the time of the event?20.
The costs of the «Species Method» are due to the fact that it initially erroneously identified the object of the SPFE21, which had already been described earlier22.
An error in defining the object of the SPFE inevitably led to an erroneous definition of the tasks and formulation of the SPFE questions (this was mentioned above), although «the main issues resolved with the help of a polygraph study»23 were also described earlier.
This was followed by unsuccessful recommendations on formulating conclusions with the results of the examination and, finally, an incorrect definition of the polygraph examiner's competence in performing the SPFE
. No fewer questions arise from the very conduct of the SPFE according to the «Species Method».
The results of the examination obtained using this method are of a vulnerable nature and may be rejected by the court as invalid.
It is doubtful that «when starting work on conducting» a new type of examination at the Central Expertise Center, the specialists «were aware of the full depth of responsibility — for ensuring practical activities for the use» of the SPFE24. The analysis of the «Species Method» encourages us to join the opinion of Komissarova Ya.V., who correctly believes that «the organization of private expert offices, the quality of whose work would be impossible to control, is unacceptable»25.
In conclusion of the article, it seems appropriate to recommend:
-
polygraph examiners to refrain from conducting examinations until a scientifically sound SPFE methodology is created and, in particular, from performing examinations using the «Species Method»;
-
state.» bodies26 and non-governmental organizations should avoid seeking assistance from specialists who use the «Species Method» when conducting SPFE;
-
state expert institutions should speed up work on creating a scientifically sound SPFE methodology.
1 Kholodny Yu.I., Sychev M.P. 15 years of using the «lie detector» in Russia //Business Glory of Russia. Inter-industry Almanac. 2009. Issue 2. P. 48-51.
2 Kholodny Yu. I. Polygraph survey and mental reflection //Tolyatti: Bulletin of the Volga University named after V. N. Tatishchev. Series «Jurisprudence». 2001. Issue 18. Pp. 205-209.
3 Kholodny Yu. I. Legal regulation of the use of a polygraph in ensuring information security of the Russian Federation //Business and security in Russia, 2004. No. 38. P. 110.
4 Podshibyakin A.S., Kholodny Yu.I. On Clarification and Supplementation of Forensic Diagnostic Objects //Russian Legal Doctrine in the 21st Century: Problems and Solutions. Scientific and Practical Conference (October 3-4, 2001), Saratov. 2001. Pp. 225-227.
5 «Virtual» diagnosed and diagnostic objects were considered in the article — Kholodny Yu.I. Forensic Psychophysiological Examination with the Use of a Polygraph: the Formative Period (Article One) //Herald of Criminalistics. 2008. Issue 1(25). Pp. 225-227
6 Suvorova L.A. Ideal Traces in Forensic Science. Moscow: Yurlitinform. 2006. P. 118.
7 Yenikeev M.I. Fundamentals of General and Legal Psychology, Textbook for Universities. Moscow: Jurist, 1996. Page 516.
8 Kholodny Yu.I. Forensic Polygraph Science and Its Application in Law Enforcement Practice //Information Bulletin No. 21 based on the materials of the Forensic Readings “Practice Requests — the Driving Force for the Development of Forensic Science and Forensic Expertise”. Moscow: Academy of Management of the Ministry of Internal Affairs of Russia, 2003. Pages 14-19.
9 Kholodny Yu. I. Savelyev Yu. I. Polygraph on guard of state secrets //Systems of security. 1996. № 4. Pp. 92-94; Kholodny I. I. Questioning with the use of a polygraph as a systemic measure of forensic crime prevention //Forensic science: current issues of theory and practice. Second All-Russian «round table», June 20-21, 2002 Collection of materials for the 200th anniversary of the Ministry of Internal Affairs of Russia. R-n-D.: RYuI MVD RF. 2002. Pp. 282-292.
10 Averyanova T. V., Belkin R. S., Korukhov Yu. G., Rossinskaya K. R. Forensic science. M.: Norma-Infra. M. 1999.
11 Kholodny Yu. I., Podshibyakin A. S. Forensic polygraphology — a new direction in forensic science, engaged in the study of «ideal traces» //Forensic science: current issues of theory and practice. Second All-Russian «round table», 20-21.07.2002. Collection of materials for the 200th anniversary of the Ministry of Internal Affairs of Russia. R-n-D,: RYuI MVD of Russia. 2002. P. 296.
12 Kholodny Yu.I. Forensic diagnostic studies using a polygraph, Chapter 15. //Forensic science: a textbook for students of higher educational institutions/edited by A(F. Volynsky. V.P. Lavrov. Moscow: UNITY-DANA: law and right, 2008. Pp. 302-317.
13 The above is practically unknown even to those forensic scientists who are specifically interested in the issues of the theory and study of ideal traces using hardware and software. An example of this is L.A. Suvorova, who did not mention in her work (L.A. Suvorova Ideal Traces) the new things that domestic forensic science managed to establish from the standpoint of the OIP method about ideal traces.
14 Bulletin of the Federal Interdepartmental Coordination and Methodological Council for Forensic Science and Expert Research. 2006. No. 2 (17). P. 4-5.
15 Kitaev N.N. Results of a Polygraph Survey May Not Have the Status of Criminal Procedural Evidence//Operative (Detective). 2008. No. 4 (17). November. P. 21-22.
16 Belyushina O.V. Psychophysiological Examination Using a Polygraph //Bulletin of a Polygraph Examiner. 2008. No. 5. P. 28.
17 Species expert methodology for conducting psychophysiological research using a polygraph //Instrumental lie detection: realities and prospects for use in the fight against crime: Proceedings of the international scientific and practical forum. Saratov: SYU MID of Russia. 2006. Pp. 90-96.
18 Shtyrov V. Polygraph examinations //Legality. 2007. No. 9. Pp. 39-10; Stepushchenko O.A., Ignatyeva M.Yu. Experience in organizing forensic psychophysiological
examinations using a polygraph in the forensic center of the Ministry of Internal Affairs of the Republic of Tatarstan //Forensic expert. 2008. No. 2. Pp. 29-31; Gurgeniok B.V., Kolkutin V.N. Experience of introducing psychophysiological examination using a polygraph into the practice of a state forensic institution //Ibid. P. 31.
19The disadvantages of the «Species Method» are examined in the articles — Kholodny Yu. I. Forensic psychophysiological examination … Article One…; Kholodny Yu. I. Forensic psychophysiological examination using a polygraph: the period of formation. Article Two //Criminalistics Bulletin. 2009. Issue No. 1 (29). Pp. 27-35; Kholodny Yu. I. Polygraph survey and polygraph examiner competence //in press; Kholodny Yu. I. Forensic psychophysiological examination using a polygraph and expert conclusions //in press. In the listed publications and in the article — Kholodny Yu. I. Forensic psychophysiological examination using a polygraph: issues of training specialists //in press) the tasks set by the FMCMS are solved — they specify the subject and object of the SPFE, define the tasks of the SPFE and present the technology for training specialists to perform the SPFE
20 Species-based methodology…. P. 93.
21 «The species-based object of the expert methodology is the physiological manifestations of the course of mental processes associated with the perception, consolidation, storage and subsequent reproduction by a person of information about some event» (Ibid.).
22 Kholodny Yu. I., Interview using a polygraph and forensic psychophysiological examination //The role and significance of the activities of Professor R. S. Belkin in the formation and development of modern forensic science: Proceedings of the International Scientific Conference (on the 80th anniversary of the birth of R. S. Belkin). Moscow: AU MVD of Russia. 2002. P. 422-426.
23 Podishbyakin A.S., Fesenko A.V., Kholodny Yu.I. Polygraph on guard of state interests //World of security. 1999. No. 6. Pp. 34-39; Kolkutn V.V., Zosimov S.M., Pustovalov L.V., Kharlamov S.G., Aksenov S.A. Forensic examinations. Moscow: «Yurlitinform», 2001. P. 167.
24 Komissarova I.V. Applied aspects of using a polygraph in criminal proceedings in Russia //Instrumental lie detection: realities and prospects of use in the fight against crime: Materials of the international scientific and practical forum. Saratov: Syuri Institute of the Ministry of Foreign Affairs of Russia. 2006. P. 8.
25 Komissarova I.V. Procedural and Moral Problems of Conducting Expertise During Preliminary Investigation. Abstract of Cand. Sci. (Law). Saratov, 1996. Page 20.
26 The Order of the Ministry of Internal Affairs of Russia dated 31.01.2008 obliged departmental polygraph examiners to exclude the practice of conducting forensic psychophysiological examinations» (Semenov V.A. Use of a Polygraph in the Production of Certain Investigative Actions //Current Problems of Special Psychophysiological Research and Prospects of Their Use in the Fight Against Crime and Personnel Selection. Krasnodar: Publ. KubSTU, 2008. Page 1).