The last chance to prove innocence. Psychophysiological examination using a polygraph has the right to exist.
In modern investigative and judicial practice, forensic psychophysiological examination using a polygraph has been formed and is used in criminal and civil cases, as well as in cases of administrative offenses.
Such an examination is appointed in the presence of irreconcilable contradictions in the testimony of participants in the process (witnesses, victims, accused, suspects), in the event of a contradiction between the testimony and other evidence in the case, as well as in the absence of evidence.
If a judge, investigator, or inquiry officer refuses a petition to appoint a psychophysiological examination, special psychophysiological studies (SPS) can be conducted within the framework of the case. In this case, the expert's conclusion is used in accordance with Part 3 of Article 80 of the Criminal Procedure Code of the Russian Federation, Article 71 of the Civil Procedure Code of the Russian Federation, and Article 27.7 of the Code of Administrative Offenses of the Russian Federation.
Based on paragraph 1, part 3, article 86 of the Code of Criminal Procedure of the Russian Federation and subparagraph 4, paragraph 3, article 6 of the Federal Law of May 31, 2002 N 63-FZ «On Advocacy and the Bar in the Russian Federation» (as amended on December 20, 2004), an advocate has the right to collect evidence and request that an expert examination be conducted in order to obtain an expert opinion in the form of an opinion on a specific issue. The expert may also be subsequently questioned by the inquiry officer, investigator, or court as an expert or witness in order to consolidate the evidence obtained.
In this case, the specialist is explained his rights and obligations, stipulated by Article 58 of the Criminal Procedure Code of the Russian Federation. In particular, it is noted that the specialist — a person with special knowledge, is involved in procedural actions in the manner established by the Criminal Procedure Code of the Russian Federation, to assist in the use of technical means in the study of criminal case materials, as well as to clarify issues within his professional competence. The specialist is warned of criminal liability for knowingly giving false testimony under Article 307 of the Criminal Code of the Russian Federation. The specialist's conclusion is in itself evidence.
A lawyer can order a forensic examination to personally verify that the defendant has not distorted the factual circumstances of the case, i.e. to find out whether he is telling the truth. This helps to develop the correct strategy and tactics of defense in the interests of the client. In the future, if the results of the forensic examination are in favor of the person being questioned, there are more grounds to demand the appointment of an expert examination.
The production of forensic psychophysiological examinations using a polygraph and the use of these data in courts in practice encounter certain objective and subjective difficulties.
Low awareness of investigators, prosecutors and judges about this type of examination in specific situations in criminal proceedings leads to a large number of cassation appeals and red tape in criminal cases. It should be noted that judges and investigators exceed their official powers in determining the list of forensic examinations used in criminal proceedings. According to current legislation, these officials are not authorized to determine this list. However, there are numerous cases of refusal to appoint these examinations on the basis that this is not provided for by law.
According to current legislation of the Russian Federation, regulatory documents governing the types of examinations, as well as the training of specialists for a particular examination, are determined by federal agencies.
There are the following regulatory documents that can be referred to with full justification:
— 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 March 5, 2004. Register No. GTPPK 34/36);
— 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 July 4, 2001 N GTPPK 02/39);
— Order of the Ministry of Justice of the Russian Federation of May 14, 2003 N 114 «On approval of the list of types (kinds) of examinations performed in state forensic institutions of the Ministry of Justice of the Russian Federation, and the list of expert specialties for which the right to independently conduct forensic examinations in state forensic institutions of the Ministry of Justice of the Russian Federation is granted» (as amended on March 9, 2006), where in paragraph 20 the type of examination is declared as «psychological», and the expert specialty is «research of human psychology and psychophysiology».
On November 16, 2005, the Moscow City Prosecutor's Office, No. 28-05/06-05, sent out an Information Letter «On Conducting Psychophysiological Examinations» to subordinate departments, which provides a brief overview of the use of the polygraph in criminal proceedings and gives recommendations on conducting such examinations.
On February 14, 2006, the Prosecutor General's Office of Russia sent out a letter under No. 28-15-05 summarizing the practice of using a polygraph in investigating crimes. The review presents positive experience of using a polygraph in this area. In some cases, even a certificate from a polygraph specialist who conducted a survey using a polygraph is included in the evidence base for a criminal case. Polygraph specialists are questioned about the results of surveys and the scientific methods used by investigators and judges. Psychophysiological examinations are also conducted using a polygraph.
According to the review, the polygraph is successfully used in the Amur, Astrakhan, Bryansk, Kirov, Lipetsk, Novosibirsk, Perm, Saratov, Samara, Tambov, Tver, Chita regions, Altai Krai, Buryatia, Mordovia, Udmurtia and a number of other regions. The initiators are prosecutors.
Therefore, the claims of some uninformed investigators and judges that this examination does not exist are unfounded. If you were denied an examination, refer to the listed documents when appealing.
There are cases when, in violation of the current legislation, investigators and judges do not evaluate this type of examination as evidence. Currently, there is not a single type of forensic examination whose conclusions would not be probabilistic. All forensic examinations use probabilistic methods. Like any other forensic examination, a psychophysiological examination using a polygraph can be brought to unambiguous, categorical conclusions when using appropriate methods and increasing the volume of the material being examined. Therefore, statements by some officials that other forensic examinations are not probabilistic mislead the participants in the process and are made deliberately due to personal, subjective motives in order to negate the significance of this examination.
Moreover, it should be noted that there are cases on the part of prosecutors, judges and investigators, when they undertake to draw conclusions about the scientific and methodological foundations of these examinations, without having the necessary knowledge. All this indicates a negative attitude of judicial bodies to forensic examinations, which counteract arbitrariness in the field of justice. When refusing to appoint such examinations, judges and investigators violate the Criminal Procedure Code of the Russian Federation, indicating grounds that do not exist in the current legislation.
Thus, in the Kirov District Court of St. Petersburg, defendant N., accused under Part 1 of Article 105 of the Criminal Code of the Russian Federation, and her lawyer, were denied repeated petitions for the appointment of a psychophysiological examination using a polygraph by Judge Yu. L. Romanova on the grounds that such an examination does not exist.
Then, at the request of lawyer A. Yu. Nikolaev, a special psychophysiological examination was conducted with the use of a polygraph on defendant N., which showed that she did not strike the victim in the neck, forearms, chest, or stab him in the chest with a knife. However, the application for the inclusion of the polygraph specialist's report in the case file was also denied. Lawyer A. Yu. Nikolaev insisted on questioning the polygraph specialist at the court hearing. This motion was granted.
During the questioning of the specialist, the state prosecutor — deputy district prosecutor M.A. Ashina stated that a psychophysiological examination with the use of a polygraph would not yield anything new, but would only confirm that the defendant did not stab the victim with a knife, and this is already known from the defendant's testimony.
Thus, the state prosecutor, without wanting to, confirmed that the defendant did not commit the crime she was accused of, which made the lawyer's task easier — to convince the court of her client's innocence.
A psychophysiological examination, unlike a study, is carried out in several stages, and a larger volume of test materials is collected.
All this is done so that the expert or group of experts can come to a highly probable or unambiguous conclusion. The study is videotaped, and test questions and polygrams are attached to the expert opinion. This is done so that other polygraph examiners can check the validity of the conclusions made.
However, Judge Yu. L. Romanova was not at all impressed by the results of this work.
She issued a ruling refusing to attach the polygraph expert's report to the case file and for the second time refused to appoint a forensic psychophysiological examination using a polygraph on the grounds that, in accordance with Articles 28 and 29 of the Constitution of the Russian Federation, every citizen of the Russian Federation is guaranteed freedom of conscience, thought and speech, and in accordance with Article 51 of the Constitution of the Russian Federation, no one is obliged to testify against himself.
It is not clear how an examination using a polygraph affects freedom of conscience? The defendant underwent the SPFI with written voluntary consent and gave the same consent to conduct a forensic psychophysiological examination, which was attached to the case materials. She personally and through her lawyer filed petitions.
According to Part 2 of Article 45 of the Constitution of the Russian Federation, every citizen has the right to protect their rights and freedoms by all means not prohibited by law. Any person has the right to ask the court to appoint a forensic psychophysiological examination using a polygraph.
Traces of a crime may be not only material, but also ideal. Ideal traces are reflected in the form of mental images concerning the circumstances of the crime in human memory.
The questions put to the examination should not contain a formulation of the crime. Therefore, for conducting a forensic psychophysiological examination using a polygraph in relation to defendant N., the following questions were recommended to the defense attorney.
1. Did N. hold a knife in her hands on the night of September 13-14, 2004?
2. Did N. see how the victim A. was stabbed?
This examination does not violate the constitutional rights of citizens, since it is carried out only with the written voluntary consent of the subject, to whom the procedure for conducting the examination and its methodological principles are explained. All questions asked are discussed, the subject has the right to refuse further participation in the examination at any time.
It should be noted that at present, universities of law enforcement agencies do not train polygraph specialists in accordance with state requirements. The needs of investigative units are not met by departmental expert institutions of the above structures.
O. Belyushina, PhD in Law,
Deputy Director of the Polygraph Institute
for expert work
BUSINESS LAWYER No. 13 (229) JULY 2006 (ARTICLE)