Forensic psychophysiological examination using a polygraph.

Forensic psychophysiological examination using a polygraph.

INFORMATION BULLETIN
of the Investigative Committee under the Ministry of Internal Affairs of Russia
No. 2 (128) 2006.

Forensic psychophysiological examination using a polygraph (lie detector) has been developed and is successfully used in modern investigative and judicial practice.

This type of examination is appointed in the presence of irreconcilable contradictions in the testimony of the participants in the process (witnesses, victims, defendants, suspects) or in the event of a contradiction between the testimony and other evidence in the case.

Forensic psychophysiological examinations using a polygraph are conducted within the framework of criminal and civil proceedings, as well as in cases of administrative offenses. Within the framework of these cases, special psychophysiological studies (hereinafter — SPPS) are also conducted, when the conclusion (certificate) of a specialist is used in accordance with Art. 80 of the Criminal Procedure Code of the Russian Federation (hereinafter — CPC), Art. 71 of the Civil Procedure Code of the Russian Federation (hereinafter — CPC) and Art. 27.7 of the Code of the Russian Federation on Administrative Offenses (hereinafter — AO).

Currently, judicial practice has developed the basic requirements for forensic psychophysiological examinations. They are contained in the Federal Law “On State Forensic Activity in the Russian Federation”. Thus, Article 8 of this Law sets forth a number of requirements for the procedure for its implementation: scientific validity of the methods used, application of objective control means. The first assumes the use of methods exclusively described in scientific literature and tested in real research practice. The use of methods that do not have these qualities is unacceptable.

The methods used in forensic psychophysiological examinations using a polygraph are based on world experience adapted to domestic research practice in the field of SPFI. When using the method of revealing hidden information — the indirect method (hereinafter — IMSI) in the absence of hidden information from the subject, the reliability of the question posed to the expert reaches 100%. This allows the expert to make unambiguous and categorical conclusions.

During a forensic psychophysiological examination, a polygraph examiner evaluates the psychophysiological reactions of the subject to certain visual or verbal stimuli, after which he makes a judgment about their subjective significance, which indicates the presence of traces of an event or its individual components in the person's memory. The detection of such traces may serve as the basis for deciding whether the subject conceals information about the event under investigation.

According to Article 204 of the Code of Criminal Procedure, the expert's report must include: printouts of physiological reaction graphs (polygrams), and a video recording of the study conducted. The report describes the methodology for conducting the examination and the responses to questions received. The video recording must be made in such a way that the subject and the computer screen (polygraph) are included in the frame. According to Article 8 of the above-mentioned Law, video recording is a mandatory condition and allows another expert to verify the correctness of the procedure.

When appointing a forensic psychophysiological examination using a polygraph, posing a question about the involvement or non-involvement of a particular person in a crime is incorrect, since the concept of involvement covers a wide range of a person's involvement in a particular act. It is impossible to ask questions about the veracity of testimony (assessment of testimony) or about the person's commission of a crime — this is determined by the court. The question should not contain a formulation of the elements of the crime.

In fact, the question is constructed based on the need to determine the presence of traces of an event in memory and to identify the fact of concealment by the subject of the examination. A question that is constructed on the action of the verbs: did you see, did you know, did you hear, etc. is considered correct. The key circumstance is isolated from the case materials (saw the process of a crime or its fragment, heard any oral statement of another person, did the subject of the examination know about this or that circumstance before any event, etc.), which will directly determine the role of the subject of the examination and his attitude to the event under investigation.

If a participant in the process (suspect or accused) refuses to participate in a forensic psychophysiological examination, the method of proof “by reciprocity” should be used. The examination is assigned to other participants in the process — victims or witnesses who, as a rule, do not refuse to undergo this examination and give consent to its implementation in accordance with the requirements of Article 195 of the Code of Criminal Procedure.

Contraindications for this examination are: the presence of a mental illness, as well as alcohol or drug addiction. Therefore, if there is sufficient data indicating the presence of these circumstances, it is advisable to pre-appoint a forensic psychiatric or forensic medical examination for the subject.

The findings of psychophysiological examinations are recognized as evidence in criminal cases and the experts' conclusions are used by the courts when passing a verdict, both guilty and acquittal.

Thus, by the verdict of the Tushinsky District Court of Moscow on September 21, 2004, Gaponenko O. G. was found not guilty and acquitted due to non-involvement in the commission of a crime under Part 1 of Article 222 of the Criminal Code of the Russian Federation. From the results of the psychophysiological examination conducted for the accused by the commission, it follows that the weapons and ammunition seized from Gaponenko O. G. do not belong to him, he did not acquire, store or transport them.

Conversely, the Shatrovsky District Court of the Kurgan Region, when passing a guilty verdict on Kaigarodov A.S. under Part 3 of Article 264 of the Criminal Code of the Russian Federation, who did not admit his guilt and refused to testify in court on the basis of Article 51 of the Constitution of the Russian Federation, indicated that the conclusion of the psychophysiological examination conducted on the witness Serebrov V.L. established that at the time of the accident, the accused's car was overtaking a KAMAZ vehicle at a speed of more than 100 km/h, which, according to the conclusion of the preliminary investigation bodies and the court, served as the cause of the traffic accident that resulted in the death of four victims.

The issues of appointment, conduct and procedural consequences of judicial psychophysiological examination in civil and criminal proceedings differ significantly. This is due to the legislative consolidation of the duty to prove. In criminal proceedings, in the event of refusal to participate in the psychophysiological examination for the subject of the examination, procedural consequences do not arise, which accordingly creates difficulties in proving for the prosecution, especially when there is no possibility of conducting a psychophysiological examination for witnesses and victims.

Unlike criminal proceedings, civil proceedings are characterized to a greater extent by adversarial proceedings. In civil proceedings, objections to the court's appointment of an expert examination or consent to its conduct have no procedural significance, since obtaining the consent of the person being examined is not required by law when appointing an expert examination. At the same time, refusal to undergo an expert examination is not associated with the possibility of forced referral for an examination. Moreover, according to Part 3 of Article 79 of the Code of Civil Procedure, if a party evades participation in an expert examination, fails to provide experts with the necessary materials and documents for research, and in other cases if, due to the circumstances of the case, it is impossible to conduct an expert examination without the participation of this party, the court, depending on which party evades the expert examination and what significance it has for it, has the right to recognize the fact for the clarification of which the expert examination was appointed as established or refuted. That is, direct procedural consequences arise for the evading party (plaintiff, defendant). In cases where the court has sufficient evidence to believe that the refusal to undergo an examination is caused by the intention to prevent the establishment of a fact undesirable for the party, the judge has the right to apply procedural sanctions provided for in Part 3 of Article 79 of the Code of Civil Procedure. It is impossible to force a party to participate in a psychophysiological examination as a subject, but it is possible to impose on it the burden of procedural consequences for obstructing the proper consideration of the case.

Currently, the Russian Federation has the following state requirements for experts — polygraph examiners:

1. 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”, approved by the Ministry of Education of the Russian Federation on 05. 03. 2004, registration No. GTPPK 34/36;
2. State requirements for the minimum content and level of requirements for specialists to obtain the additional qualification of “Specialist in conducting instrumental psychophysiological surveys”, approved by the Ministry of Education of the Russian Federation on 04. 07. 2001, No. GTPPK 02/39.