Forensic psychophysiological examination using a polygraph. Problems of formation.
Komissarova Ya.V.
Associate Professor of the Department of Criminalistics
Moscow State Law Academy,
Candidate of Legal Sciences,
Member of the Council of the Educational and Methodological Association
of educational institutions of professional
education in the field of forensic science,
member of the Russian Academy of Legal Sciences
Moscow
Source: Materials of the international scientific and practical conference
“Current status and development prospects of the instrumental
“lie detection” method in the interests of state and public security”
(December 2-4, 2008)
A review of the literature devoted to the «polygraph problem» shows that the judgments of both supporters and opponents of expanding the scope of its application are often speculative.
The scientific, technical and moral aspects of the problem are discussed without taking into account the realities of today, among which there is a clear trend towards an increase in the number of studies conducted using the polygraph, not only within the framework of operational, but also investigative and judicial activities.
At the same time, the opinions of the participants in the discussion do not coincide: some advocate for, in our opinion, excessively broad use of the polygraph in criminal proceedings1, while others, on the contrary, advocate for an unjustified, from the point of view of the current procedural legislation, limitation of its use to the framework of operational-search activities2.
At the same time, defense attorneys of suspects and accused (and even victims), appealing to Part 2 of Article 45 of the Constitution of the Russian Federation, according to which everyone has the right to protect their rights and freedoms by all means not prohibited by law, often insist in individual cases (of personal interest to them) on conducting a psychophysiological study using a polygraph (hereinafter referred to as PPI), and investigators of the prosecutor's office, the Ministry of Internal Affairs of Russia, and even judges are increasingly appointing judicial psychophysiological examinations using a polygraph (hereinafter referred to as SPPE) in criminal cases.
Referring to the history of the development of this type of examination, it must be said that the appropriateness of using a polygraph in criminal proceedings within the framework of a psychological examination(italics — author of the article) was first sufficiently substantiated in the early 90s by the Estonian scientist P. Pruks4. Subsequently, the same position was taken by the prominent Russian criminologist R.S. Belkin, and a manual for investigators prepared at the Research Institute for Problems of Strengthening Law and Order under the Prosecutor General's Office of the Russian Federation reflected the very optimistic opinion of some well-known scientists, who believed «that psychophysiological examination by polygraph testing will eventually take its place among other forensic examinations.»
The practical implementation of the SPFE began in 1996, when the Institute of Criminalistics of the Directorate of Scientific and Technical Support of the FSB of Russia organized the training of polygraph experts under the «Program for the training of specialists in surveys using a polygraph (polygraph examiners) for federal executive bodies, their divisions, as well as bodies and institutions of the prosecutor's office of the Russian Federation and the CIS member states» with a volume of 380 academic hours. The training was completed by issuing a certificate for the right to conduct examinations in the specialty: «special psychophysiological studies using a polygraph (survey using a polygraph)».
Later (in 2000-01), the employees of the said state forensic institution began using the polygraph as part of complex psychological-psychophysiological-psychiatric and psychological-psychophysiological examinations7.
As for the position of the author of this article, who has professional knowledge in the field of theory and practice of jurisprudence and forensic examination8, it must be admitted — before the Federal Law «On state forensic activity in the Russian Federation» and the Criminal Procedure Code of the Russian Federation came into effect in 2001-02, it did not coincide with the opinion of colleagues from the Institute of Criminalistics of the UNTO FSB of the Russian Federation, despite the fact that the author mastered the basics of polygraphology9 in 1997-98 under the above-mentioned program there10.
The author of the article came to the conclusion about the fundamental possibility of conducting PFI within the framework of the SPFE with the presentation of the results of the study in the report of the polygraph expert11 not only in connection with the significant update of the procedural legislation, but also in connection with the fact that in July 2001 the Deputy Minister of Education of the Russian Federation approved the State requirements for the minimum content and level of requirements for specialists to obtain the additional qualification of «Specialist in conducting instrumental psychophysiological surveys» and, accordingly, an additional professional educational program for the professional retraining of specialists to obtain the said qualification with a volume of 1200 hours of labor intensity.
Since professional competence entirely determines the validity of the forensic expert's conclusions on the questions posed to him, the very fact of the appearance of a document designed to improve the quality of training polygraph specialists should be assessed positively. Only one point raised concerns: according to paragraph 9.2 of the aforementioned State Requirements, any educational institution licensed to implement additional educational programs in the field of jurisprudence or psychology received the right to train students to obtain the additional qualification of «Specialist in IPFO». That is, over a thousand universities in the country, despite the lack of specialists in the field of polygraphology on staff, could theoretically begin training certified «pseudo-polygraph specialists» (there is no other way to say it), the danger of whose involvement in criminal proceedings in the status of an expert could not be prevented due to the peculiarities of the current procedural legislation.
That is why, on the initiative of the author of the article, in October 2002, under the auspices of the Educational and Methodological Association of Educational Institutions of Professional Education in the Field of Forensic Expertise (hereinafter UMO «Forensic Expertise»), based at the State Educational Institution of Higher Professional Education «Saratov Law Institute of the Ministry of Internal Affairs of Russia» (hereinafter — SLI MIA of Russia), work was started to study the possibilities and prospects for the development of new expert specialties related to the introduction of methods of psychology and psychophysiology not only in operational-search, but also in investigative-judicial activities.
One of the results of the work was the introduction of the Order of the Ministry of Education of Russia No. 1547 of April 8, 2004, State Requirements for the Minimum Content and Level of Requirements for Specialists to Obtain the Additional Qualification of «Forensic Expert in Conducting a Psychophysiological Study Using a Polygraph», as well as an additional professional educational program for the professional retraining of specialists to obtain the said qualification with a labor intensity of 1078 hours, the possibility of implementing which, in accordance with paragraph 8.2 of the State Requirements, was limited to a list of less than 20 universities licensed to implement additional educational programs in the field of forensic examination, as well as the obligation for each of them to coordinate the corresponding independently developed additional professional educational programs to obtain additional qualifications with the state and public body or educational institution responsible for the formation of scientific and methodological support for the implementation of the program12.
It should be emphasized that at present in the Russian Federation it is possible to implement only the State Requirements for the minimum content and level of requirements for specialists to obtain the additional qualification of «Forensic expert in conducting psychophysiological research using a polygraph». Training of students in an additional professional educational program to obtain the additional qualification of «Specialist in IPFO» is illegal, since the State Requirements for the minimum content and level of requirements for specialists to obtain the additional qualification of «Specialist in conducting instrumental psychophysiological surveys» are not included in the List of State Requirements to be implemented in Russia since January 200713.
Unfortunately, restricting access of non-core educational institutions to training polygraph examiners does not eliminate numerous problems associated with the danger of involving low-skilled specialists who do not have knowledge in the field of forensic science theory and have vague ideas about the procedural order of appointing and conducting examinations in the production of SPFE during the period when the new type of examination is in its infancy.
In this regard, credit must be given to the management of the BSTM of the Ministry of Internal Affairs of Russia, which initiated large-scale research work on the basis of the Academy of Management of the Ministry of Internal Affairs of Russia14 to formulate Uniform Requirements for Conducting PFI, which (as the author of the article dares to hope) can become a solid basis for subsequent methodological support for the activities of polygraph examiners.
The research conducted by the Academy of Management of the Ministry of Internal Affairs of Russia, judging by the number of specialists involved in the work on the use of a polygraph in operational-search activities, legal proceedings and regulation of labor relations and the degree of interest in it of state and non-state bodies and institutions, can safely be considered the first full-scale interdepartmental action to form a unified methodology for conducting PFI.
Uniform requirements for the procedure for conducting PFI using a polygraph are planned to be presented in the form of a practical manual, where the procedure for organizing and conducting the study as a whole will be explained in a form accessible to persons who do not have knowledge in the field of polygraphology15. This circumstance is extremely important. It should be recognized that with the expansion of the scope of the polygraph, the increase in the number of practicing polygraph examiners, cases of conducting PFI and SPFE at a low scientific and methodological level have become more frequent. Previously, realizing that the work of the polygraph examiner was unprofessional, the prosecution and defense could not fully argue their position. With the advent of this manual, some of the issues of improving the qualifications of practitioners due to control over the quality of their activities by interested parties should be removed. It is obvious that polygraph examiners, in turn, will also be able to feel more secure, having a document that can convince people who seek their help of the need for careful preparation for conducting a polygraph examination and the importance of ensuring proper conditions for the polygraph examiner's work.
Of course, not all the details and professional nuances of the polygraph examiner's work will be reflected in the manual. Basically, the development of uniform requirements for the procedure for conducting PFI is focused on the needs of operational-search and investigative-judicial activities through the use of a polygraph by law enforcement agencies. It is assumed that in the future, interested departments carrying out other types of activities will be able to use the results of R&D when creating their own corresponding intra-departmental regulations. The developers hope that the manual, as the first publication of its kind, summarizing many years of experience in using a polygraph in Russia, will be in demand not only by law enforcement officers, but also by representatives of the legal community, as well as by all persons interested in the development of domestic polygraphology.
1See, for example: V. A. Semenov. Use of a Polygraph in the Production of Certain Investigative Actions //Current Issues of Special Psychophysiological Research and Prospects for Their Use in the Fight against Crime and Personnel Selection: Proceedings of the 1X International Scientific and Practical Conference. — Krasnodar: KubSTU Publishing House, 2008. P. 105-114.
2See, for example: Nichiporenko T.Yu. Use of the polygraph in proving criminal cases: a proceduralist's view //Criminal procedure. 2008. No. 3. Pp. 45-48.
3See, for example: Gurgenidze E.V., Kolkutin V.V. Experience of introducing psychophysiological examination using a polygraph into the practice of a state forensic institution //Forensic expert. 2008. No. 2. Pp. 31-33.
4 See: Pruks P. Criminal Procedure: Scientific «Lie Detection». Instrumental Diagnostics of Emotional Tension and the Possibilities of Its Application in Criminal Procedure. — Tartu: Tartu University Publishing House, 1992. Pp. 165-176.
5 See: Belkin R.S. Course in Criminalistics. In 3 volumes. Vol. 3: Criminalistic Tools, Techniques, and Recommendations. Moscow, 1997. P. 54.
6 See: Handbook for Investigators. Investigation of Crimes of Increased Social Danger/Collective of Authors. Under the scientific editorship of N.A. Selivanov and A.I. Second edition, corrected. and add. — Moscow: Liga Razum, 1999. P. 38.
7For more details, see: Komissarova Ya.V., Soshnikov A.P. Polygraph examiner's report as a source of evidence/Current issues in modern forensic science //Proceedings of the scientific and practical conference: In 2 parts, Simferopol — Alushta. September 19-21, 2002. Simferopol: Dolya, 2002. Part 1. Pp. 67-72.
8Without false modesty, I can say that I have gone from a research intern to deputy head of the State Institution Saratov Forensic Laboratory of the Ministry of Justice of the Russian Federation, and was certified not only in Russia but also in Ukraine for the right to conduct trace and commodity examinations, and examination of bladed weapons.
9 The term “polygraphology”, familiar to everyone today, was introduced into circulation in the late 90s “with the light hand” of the outstanding forensic scientist V.A. Obraztsov. (See: Forensic Science/Ed. by Doctor of Law, Professor V.A. Obraztsov. — Moscow: Jurist, 1997. Pp. 319-329.)
10 See, for example: Komissarova Ya.V. Procedural aspects of using a polygraph during preliminary investigation //Bulletin of the Ministry of Justice of the Russian Federation. 2000. No. 12. Pp. 149-154.
11 See: Komissarov V.I., Komissarova Ya.V. Problems of the development of psychophysiological examination //The role and significance of R.S. Belkin's activities in the development of modern forensic science. Proceedings of the International Scientific Conference (on the 80th anniversary of R.S. Belkin's birth). — Moscow, 2002. Pp. 399-403.
12 According to the above-mentioned Order of the Ministry of Education of Russia, responsibility for the formation of scientific and methodological support for the implementation of the additional professional educational program «Psychophysiological Research Using a Polygraph», as well as the obligation to begin its implementation, was assigned to the Legal Institute of the Ministry of Internal Affairs of Russia.
13See. Letter of the Ministry of Education and Science of Russia dated January 26, 2007 No. AC-73/03 «On the list of state requirements for the minimum content and level of requirements for specialists to obtain additional qualifications as of December 31, 2006» and the Appendix to it.
14See: Plan for scientific support for the activities of the Internal Affairs Bodies and Internal Troops of the Ministry of Internal Affairs of Russia for 2008 (clause 5.3.1).
15The methodological recommendations for conducting the PFI, which form the basis of the specified Uniform Requirements, have already been published by the team of developers. See: Soshnikov A.P., Komissarova Ya.V., Pelenitsyn A.B., Fedorenko V.N. Polygraph in the practice of crime investigation. Methodological recommendations. — M.: State Educational Institution of Higher Professional Education «Moscow State Institute of Radio Engineering, Electronics and Automation (Technical University)», 2008.