Polygraph survey and polygraph examiner competence.
Yuri Ivanovich Kholodny,
Doctor of Law, Candidate of Psychological Sciences,
Professor of the Department of Bauman Moscow State Technical University
Source: Scientific and practical journal
«THEORY AND PRACTICE OF FORENSIC EXAMINATION»
No. 1 (13) 2009
The author considers the «method of the OIP» (interview using a polygraph) as «an unconventional means of obtaining information that is significant for investigating crimes» and classifies it under the section «Forensic technology», analyzing the issue of the competence of a polygraph expert.
As noted in previous articles1, in March 1993, interviews using a polygraph (hereinafter — OIP) were permitted for use in operational investigative activities (hereinafter — ORD) on the territory of the Russian Federation.
Over the past years, the OIP method has confidently entered the arsenal of domestic forensic science tools, and the use of the polygraph in law enforcement practice is steadily growing from year to year. At present, there are no longer any questions about the usefulness and effectiveness of using the polygraph in operational investigation activities, as well as in the selection and monitoring of personnel activities.
Convincing evidence of this were the materials of three conferences of the Ministry of Internal Affairs of Russia on the topic of polygraph application, held in Moscow and Sochi in September-December 2008. However, the use of the polygraph in operational investigative activities turned out to be useful not only from a practical point of view. Analysis of the natural scientific and theoretical foundations of the OIP method made it possible to supplement forensic science with new knowledge, as well as to expand and clarify the content of some important provisions of this science.
So, what new did the OIP method bring to domestic forensic science?
The contribution of the OIP method to the development of forensic science
1. Discovery of previously unnoticed properties of ideal traces.
In forensic science, there is an established opinion that ideal traces (images) have three differences compared to materially fixed traces, namely:
- firstly, ideal traces are inaccessible for their direct study;
- secondly, access to the study of an ideal trace is possible only after its materialization, which is carried out by the person who owns this trace, with the help of his oral or written speech, or through motor activity (image of a drawing, diagram);
- thirdly, materialized ideal traces are significantly more informative due to the fact that they are capable of reflecting such properties and characteristics of events (phenomena) of the material world that cannot be directly 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 previously attracted the attention of forensic science.
In particular, a fourth difference was discovered: it consists in the fact that the materialization of the ideal trace occurs with the joint action of the objective factor — forgetting (natural destruction of the ideal trace) and one or several subjective factors, which are:
- the conditions and circumstances of perception, memorization and, subsequently, reproduction by a person of events of the external world;
- the physical and emotional state of a person;
- his semantic and social attitudes; his cultural and national characteristics;
- possible action of a volitional act of deliberate distortion of ideal traces, conditioned by the motives, needs or interests of this person, etc.
Finally, the fifth property of the ideal trace was established. As is known, a materially fixed trace is subject to both natural (the action of natural, man-made, temporary and other factors) and intentional 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 subject to intentional distortion during materialization, but is inaccessible to intentional destruction (a person is not given the ability to intentionally, at his own discretion, forget anything 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.” In particular, it was possible to successfully identify traces of events in a person’s memory that were 20 years or more removed from the past.”3
It is the fifth property — the inaccessibility of a person’s 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 a person’s memory.
Until recently, the process of materialization of ideal traces was subjective and beyond the control of an external observer. Materialization of ideal traces (for example, during interrogation of a person) is a subjective act. In the absence of information from independent sources, ideal traces were not subject to objective study from the outside: the owner of ideal traces materialized them uncontrollably (as he considered right for himself) and had the opportunity to deliberately hide some of them. In such situations, the use of a polygraph:
1) makes it possible to objectively identify the presence in the memory of a specific person of ideal traces of events hidden by him (including criminally relevant or other acts condemned by society);
2) makes ideal traces accessible to objective research before, i.e. without, their materialization;
3) makes it possible to objectively evaluate the main elements of the materialized image that are fundamentally important for the disclosure and investigation of a crime or the prevention of offenses for the presence or absence of intentional distortions in them.
Thus, the inclusion of the IPR into the system of methods and means of forensic science has qualitatively changed the existing situation and opened up the possibility of detecting and examining ideal traces of events stored in human memory; previously, this was fundamentally impossible4.
3. Clarification and supplementation of forensic diagnostic objects.
The conducted research led to the need to clarify some basic concepts of forensic diagnostics. In particular, it was established that when conducting forensic diagnostics, the diagnostic objects of ideal traces preserved in human memory can be: in the case of visual perception (less than 1% of forensic diagnostics) — material objects, which can 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 emergence of «virtual» diagnostic objects in forensic diagnostics is natural when detecting and studying ideal traces. But this logically leads to the idea that not only diagnostic, but also diagnosed objects can be semantic concepts imprinted in human memory that unambiguously characterize events and phenomena of the outside world. Practice has shown that objects diagnosed during forensic diagnostics5 can be people's names and nicknames, addresses, names of cities and regions, names of actions, dates and times of events, etc.
4. Expanding the possibilities of presentation for identification.
In textbooks on forensic science and some publications, they usually limit themselves to describing three possible outcomes of identification (hereinafter referred to as PdO): “the outcome is a logical conclusion about identity, similarity or difference”6.
In fundamental textbooks on forensic science7 or specialized literature on the theory and practice of PDO, one can find mention of two more outcomes of this investigative action: «in the practice of legal proceedings, false identification and false non-identification are possible. False identification may be due to the fact that during the initial perception of the object, its identification features were not identified, as well as the forgetting of these features in the tense situation of identification… Erroneous identification may be a consequence of various suggestive influences on a person who is easily susceptible to suggestion»8.
However, no mention of the possible existence of a sixth outcome of the PdO could be found in the available specialized literature. The fourth and fifth features of the ideal trace mentioned above made it possible to show that the PdO has a sixth outcome, previously unknown to domestic forensic science9 — deliberate non-recognition, 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 deliberate non-recognition with the help of the IIP is a trivial task: polygraph testing for the specified purposes has been used in many countries for many decades.
5. Expanding the possibilities of forensic prevention of offenses and crimes.
The emergence of screening10 IPTs in the USA 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. Screening IPTs make it possible to assess the degree of an employee's compliance with the employer's requirements, to «cull» individuals who do not meet such requirements, and, thereby, to protect the employer from possible negative consequences in the future. With the help of a polygraph, a person is revealed: hidden facts of his criminal past, criminal offenses committed by him that remained undisclosed; personal characteristics (inclinations) fraught with the «slide» of the personality into illegal activity; distortion of questionnaire or biographical data, etc.
As mentioned above, since the mid-1990s, federal agencies and non-governmental institutions in Russia have adopted polygraph screening tests.
Thus, the introduction of the OIP into the practice of working with personnel has made a significant contribution to the development of one of the least developed sections of domestic forensic science — forensic prevention11: the use of a polygraph in the selection and monitoring of personnel activities turns the OIP into a private method of forensic prevention of crimes and offenses related to the performance of official duties.
6. Formation of a new direction in the section «Forensic Technology».
After the polygraph was legalized in Russia, forensic science did not know for a number of years how to react to its use in operational investigation activities, but soon this issue was resolved, and the polygraph was defined by leading Russian forensic scientists as one of the “non-traditional means of obtaining information that is significant for investigating crimes” and was classified in the “Forensic technology” section12.
At the same time, an opinion was formed according to which “the totality of scientifically 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 the detection and investigation of crimes”13.
By now, domestic forensic science has developed “criteria by which one can judge the existence of a new direction in forensic technology: solving specific forensic problems that are not set when studying similar objects in other areas of human activity; the specificity of the objects of study and, at the same time, their prevalence, frequent occurrence at crime scenes; methodological and methodological development of this direction”14. These criteria allowed us to state that forensic diagnostic studies using a polygraph:
a) are aimed at solving specific forensic problems related to the study of ideal traces of crimes;
b) are characterized by prevalence (the steadily increasing volume of applied use of IPR in law enforcement practice) and the specificity of the objects of study (an instrumental approach to the study of human memory for forensic purposes);
c) have methodological and methodological development (i.e., are provided with their own private forensic theory)»15.
As a result, forensic diagnostic studies using a polygraph entered domestic forensics as an independent direction and in 2008 were included for the first time in a forensic textbook16 in the section “Forensic Technique” as a separate chapter17.
However, the process of obtaining new forensic knowledge, which the OIP method leads to, in our opinion, is far from complete.
The use of hardware and software for objective research of ideal traces of events stored in human memory obliges us to take a fresh look at some provisions that seem generally accepted and established.
On the competence of a polygraph examiner
It is obvious that one of the fundamental concepts in the theory and practice of forensic examination is the concept of the subject of expert activity.
As T.V. Averianova correctly points out, the concept of the subject of expert activity is “closely connected with such a concept as ‘expert competence’”18. Close to it in essence, but not identical in content, is the concept of ‘expert competence’.
The difference between the last two concepts is obvious. The first describes the ‘area of existence’ of an expert as a type of knowledgeable person: this ‘area’ covers ‘a complex of knowledge in the field of theory, methodology and practice of expertise of a certain type or kind’19. The second concept characterizes a specific expert from a qualification point of view, that is, to what extent he satisfies the requirements imposed on him20.
The undertaken analysis of the literature on this issue has shown that competence and competency are concepts that, in general, have been developed quite fully and, apparently, do not arouse much interest among scientists and specialists (it is enough to note that, with rare exceptions, these concepts are not considered in educational literature). In specialized publications, competence is considered as a set of, first of all, professional knowledge from the subject area of a specific type or kind of examination, supplemented by the necessary amount of procedural knowledge that an expert requires for the high-quality performance of his professional duties. Considering the concept of «competence» from the standpoint of the OIP technology, it is appropriate to cite the words of M.S. Strogovich, expressed by him more than half a century ago: speaking about the competence of an expert, he believed that «always and under all conditions an expert can consider facts only from the point of view of his scientific specialty (emphasis added by us — Yu.Kh.), and therefore legal issues do not fall within his competence»21. It is obvious that the question of the competence of a polygraph examiner is one of the key issues in the formation of the scientific and methodological basis of forensic psychophysiological examination (hereinafter referred to as SPPE).
Apparently, the question of the polygraph examiner's competence was first raised in the «Species Expert Methodology for Conducting a Psychophysiological Study Using a Polygraph» (hereinafter referred to as the «Species Methodology»22). In particular, it was stated that «first» «formulating a conclusion about the existence of an event or individual circumstances of a crime is not within the competence of the polygraph examiner»23, and «second» «the competence of the polygraph examiner includes formulating a conclusion about the degree of awareness of the person being examined about the event, its details that are of interest to the initiator of the PFI (psychophysiological study of Yu.Kh.), due to the presence (absence) in the person's memory of images formed in connection with what happened»24.
In a previously published article25, an analysis of what is and is not within the competence of a polygraph examiner was begun, but due to the limited volume of that article, it was only possible to examine the second of the expressed judgments and show that it was formulated incorrectly.
The starting point of the competence of an expert in general, and a polygraph examiner in particular, is his «scientific specialty» (according to M.S. Strogovich), from the position of which the expert «can examine the facts». The Criminal Procedure Code of the Russian Federation indicates: «during criminal proceedings, the following shall be subject to proof:
1) the occurrence of a crime (time, place, method and other circumstances of the crime);
2) the guilt of a person in committing a crime, the form of his guilt and motives; …» (Article 73).
In the case of conducting an SPFE, a number of general and specific provisions should be taken into account, namely:
1) the examination «aimed at establishing the circumstances included in the subject of proof in a criminal case or having the significance of evidentiary facts»26;
2) the polygraph examiner examines the object of examination “only from the point of view of his scientific specialty”;
3) by diagnosing (i.e. examining) ideal traces of past events stored in the memory of the subject, the polygraph examiner establishes their presence or absence, or, in other words, establishes the presence or absence of knowledge (awareness) of some “circumstances of the commission of a crime”, the commission of any acts related to the “event of a crime”, or the hidden motives of these acts;
4) the polygraph examiner does not interfere with the legal assessment of the actions of the subject, the circumstances of the «criminal event» or the motives of these actions, since «legal issues are not within his competence.»
From the above, it logically follows that the judgment specified in the «Species Methodology» — «formulating a conclusion about the existence of an event or individual circumstances of a crime is not within the competence of the polygraph examiner» — is incorrect: it combines the true and the erroneous.
The conclusion «about the existence of an event — a crime» is indeed not within the competence of a polygraph examiner (as well as any other expert). An expert is always obliged to follow this basic truth of forensic science.
But the assertion that «formulating a conclusion about the existence of individual circumstances is not within the competence of the polygraph examiner» is erroneous. The polygraph examiner can and must indicate in the conclusions of the expert's report «the time, place, method (i.e., certain actions of the subject — Yu.Kh.) and other circumstances of the commission of the crime» (Article 73 of the Criminal Procedure Code of the Russian Federation), if such were diagnosed: obtaining information about the circumstances of the commission of the crime with the help of a polygraph is within the competence of the polygraph examiner. The expert's report prepared by the polygraph examiner is a source of information «on the basis of which the court, prosecutor, investigator, inquiry officer, in the manner determined by this Code, establishes the presence or absence of circumstances subject to proof in criminal proceedings, as well as other circumstances that are significant for the criminal case» (Article 74 of the Criminal Procedure Code of the Russian Federation).
Due to the fact that the polygraph examiner deals with ideal traces of past events, and the information he receives often allows him to establish certain actions of the subject, the circumstances of these actions and, sometimes, their motives, it is often believed that the polygraph examiner goes beyond the scope of «his scientific specialty» and intrudes into the legal assessment of these actions.
But such an opinion does not correspond to the truth. Indeed, the polygraph examiner «from the point of view of his scientific specialty»: conducted a study of a person's memory for the presence of corresponding ideal traces in it; established the fact of their presence or absence; logically came to a judgment about the existence or absence of these circumstances in the past of this person (why they were found or not found in his memory); finally, limited himself to this and did not give a legal assessment of the data he received.
It should be noted that expert practice sometimes forces experts of some expert specialties, while remaining within the boundaries of “their scientific specialty”, to assess the actions of certain individuals. T.V. Averianova notes that “a specialist in the field of automotive technical expertise is sometimes forced to note in his conclusion whether the actions of a particular road user comply with the prescribed rules… The same situation arises when conducting fire-technical examinations, when the expert is forced to indicate in the conclusion which fire safety rules were violated. But in both cases, the expert does not resolve the main issue — about responsibility for violating these rules, about the guilt of certain officials or other citizens”27.
In the same way, a polygraph examiner, stating facts revealed by examining ideal traces, does not resolve the issue of the responsibility of the subject, since, as M.S. Strogovich pointed out, “the decision (of this issue — Yu.Kh.) belongs to the investigator, the prosecutor and the court, and not to the expert”28.
In conclusion of the article, we will try to explain why the authors of the “Species Method” allowed a number of errors of varying degrees of significance.
Apparently, the authors of the methodology's insufficient knowledge of the subject area and theoretical aspects of the OIP led them to the fact that, having forgotten to indicate the subject of the SPFE, they mistakenly defined the object of the SPFE29, which, by the way, had already been described earlier30. The error in defining the object of the SPFE, in turn, inevitably led to an erroneous definition of the tasks and formulation of the questions of the SPFE31, although «the main questions resolved with the help of a polygraph study»32 were also described earlier.
This was followed by unsuccessful recommendations for preparing the conclusions of the SPFE, which we have already analyzed33, and, finally, an incorrect definition of the polygraph examiner's competence when performing the IIP in the form of the SPFE. Unfortunately, the above does not exhaust the list of shortcomings of the «Species Method». And although one of the authors of the method in 2006 indicated that «work on optimizing the Species Expert Method for conducting psychophysiological studies using a polygraph should certainly be continued»34, nevertheless, such «optimization work» was apparently not carried out subsequently.
Unaware of the indicated shortcomings or, perhaps, deliberately keeping silent about them, the authors of the «Species Method» promote it as a fundamental methodological document for conducting the IIP in the form of the SPFE.
1 Kholodny Yu.I. Forensic psychophysiological examination using a polygraph: the period of formation (article one) //Bulletin of criminalistics. 2008. Issue 1(25). P. 25-33; Kholodny Yu.I., Sychev M.P. 15 years of using the «lie detector» 8 in Russia //Business glory of Russia. Inter-industry almanac. 2009. Issue 2. P. 48-51 and others.
2 Kholodny Yu. I. Polygraph Interview and Mental Reflection //Tolyatti: Bulletin of the Volga University named after V. N. Tatishchev. Jurisprudence Series. 2001. Issue 18. P. 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», Issue 1(25). Pp. 25-33.
6 Suvorova L.A. Ideal Traces in Forensic Science. M.: Yurlitinform, 2006. P. 118.
7 Averyanova TV., Belkin R.S., Korukhov Yu.G., Rossinskaya E.R. Forensics. M.: Norma Infra.M, 1999.
8 Yenikeev M.I. Fundamentals of General and Legal Psychology. Textbook for challenge. Moscow: Jurist, 1996. Page 516.
9 Kholodny Yu.I. Forensic polygraphology 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.
10 The definition of «screening» comes from the English «screen» — to sift, to check for reliability.
11 Kholodny Yu. I., Savelyev Yu. I. Polygraph on guard of state secrets //Security systems. 1996. No. 4. P. 92-94; Kholodny Yu. I. Polygraph survey 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.: RUI MVD RF, 2002. P. 282-292.
12 Averianova T.V., Belkin R.S., Korukhov Yu.G. Forensic Science…
13 Kholodny Yu.I., Podshibyakin A.S. Forensic polygraphology is 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.
14 Forensic Science/Ed. A.F. Volynsky. Moscow: Law and Right: UNITY DANA, 2000. P. 20.
15 Kholodny Yu.I. Forensic polygraph science as a new direction of the section «Forensic technology» //Theory and practice of forensic science and forensic examination. Moscow: Academy of Management of the Ministry of Internal Affairs of Russia, 2003. P. 74.
16 Kholodny Yu.I. Forensic diagnostic studies using a polygraph. Chapter 15. //Forensic science: textbook for university students/edited by A.F. Volynsky, V.P. Lavrov. Moscow: UNITY DANA: Law and Right, 2008. P. 302-317.
17 The material presented above is practically unknown to a wide circle of criminologists and even to those of them who are specifically interested in the theoretical aspects of ideal traces. For example, L.A. Suvorova, having borrowed verbatim (Suvorova L.A. Ideal Traces, p. 148) something from the author of this article (Kholodny Yu.I. Legal Regulation, p. 110) and having forgotten to mention the cited source, did not mention in her work the new information that domestic criminology had managed to establish about ideal traces by the beginning of 2006.
18 Averianova T.V. Forensic examination. Course of general theory. Moscow: NORMA, 2008. Page 184.
19 Belkin R.S. Forensic encyclopedia. Moscow: NORMA, 2001. Page 260.
20 Competence and competence are also called, respectively, objective and subjective competence: the former is understood as “the volume of knowledge that an expert must possess”, and the latter as “the degree to which a specific expert possesses this knowledge” (Rossinskaya E. R. Forensic examination in civil, arbitration, administrative and criminal proceedings. Moscow: NORMA, 2005. P. 88).
21 Quoted from “Averyanova T. V. Forensic examination”, p. 186.
22 Species expert methodology for conducting a psychophysiological study using a polygraph //Instrumental lie detection: realities and prospects for use in the fight against crime: Materials of the international scientific practical forum. Saratov: Syugol Institute of the Ministry of Internal Affairs of Russia, 2006. P. 90-96.
23 Ibid., p. 95. (This judgment is repeated: Komissarova Ya.V. Application of Specialized Knowledge in Investigation of Crimes //Forensic Science. Moscow: Yurist, 2007. p. 338; Komissarova Ya.V. Tactics before Interrogation and Confrontation //Forensic Science. Textbook. Moscow: Elite Publishing House, 2008. p. 339.)
24 Also, p. 95. (This judgment is repeated with minor editorial changes: Komissarova Ya.V. Application of Specialized Knowledge…, p. 337; Komissarova Ya.V. Interrogation Tactics…, p. 338.)
25 Kholodny Yu.I. Forensic psychophysiological examination using a polygraph: the period of formation (article two) //Bulletin of criminalistics. 2009. Issue 1 (29). P. 27 35.
26 Orlov Yu.K. Expert's conclusion, p. 5.
27 Averianova T.V. Forensic examination, p. 190.
28 Quoted from — Averianova T.V. Forensic examination, p. 186.
29 «Species object of expert methodology — physiological manifestations of mental processes associated with the perception, consolidation, storage and subsequent reproduction by a person of information about some event» (Species expert methodology, p. 93).
30 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 R. S. Belkin's birthday). Moscow: AU MVD of Russia, 2002. P. 422-426.
31 «Expert tasks can be defined in the form of questions of the following content: 1. Are reactions revealed during a psychophysiological study using a polygraph that indicate 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 obtained by the person being examined? Could it have been obtained at the time of the event?» (Species expert methodology. P. 93).
32 Podshibyakin A.S., Fesenko A.V., Kholodny Yu.I. Polygraph on guard of state interests //World of security. 1999. No. 6. P. 34-39; Kolkutin V.V., Zosimov S.M., Pustovalov L.V., Kharlamov S.G., Aksenov S.A. Forensic examinations. M.: «Yurlitinform», 2001. P. 167.
33 Kholodny Yu.I. Forensic psychophysiological examination… (article two)…
34 Komissarova Ya.V. Applied aspects of using a polygraph in criminal proceedings in Russia //Instrumental lie detection: realities and prospects for use in the fight against crime. Saratov: SYuI MVD of Russia, 2006. P. 10.