Use of the polygraph in Poland.

The use of the polygraph in Poland.

Attention to the applied use of the polygraph appeared in Poland before the Second World War, when this device was purchased by the Institute of Mental Hygiene in Warsaw.

Although it is not known whether the polygraph was used in criminal investigations before the war, nevertheless, such a possibility was discussed: in the work of V. Zelinskaya (1939), the idea was expressed that it would be a mistake to ignore the use of the polygraph for the purpose of investigating crimes1.

Interest in the use of the polygraph continued in the post-war years.

In the early 1950s, Polish intelligence became interested in this device after it was discovered that American intelligence was testing Polish citizens with a «lie detector» before establishing cooperation with them.

Polish intelligence acquired an American polygraph and, after gaining the necessary experience, began to use this device in its operational work.

According to Polish experts, mastering the technology of polygraph testing was associated with great difficulties, since the American administration imposed an embargo on the export of this technology to Eastern European countries. In 1975, for example, the editors of the American magazine «Polygraph» rejected the request of Polish experts to subscribe to this publication, explaining that they adhered to the position of not distributing their magazine behind the «iron curtain»2.

In the post-war years, the attitude towards polygraph tests in Poland, as in the USSR and other socialist countries, was negative, which, in particular, was reflected in the textbook «Criminalistics», published by Professor P. Horoshovsky in 1958. According to the author, «in practice, a lie detector is nothing more than a device designed to deepen the atmosphere of intimidation of the person being interrogated»3 But soon P. Horoshovsky's opinion changed radically: the reason for revising his views was that, having spent six months in the USA as a fellow, he received a «lie detector» for use and mastered the methods of its practical application.

The first practical use of a polygraph in a crime (murder) investigation was carried out by P. Horoshowski in 1963, following a resolution of the voivodeship (regional) prosecutor's office in Olsztyn. The results of the polygraph test, which were supplemented by a description of the technology of such a test, along with other data, were accepted by the court as evidence, and the accused was found guilty. A year later, the voivodeship court in Lublin asked P. Horoshowski to conduct a polygraph test of a group of accused at the request of the defense, but the voivodeship court did not use the results obtained by the professor as evidence and did not take them into account. These two cases served as a cause for heated debate in the pages of Polish legal journals in 1964-19664. After the aforementioned works of P. Horoshowski, the polygraph began to penetrate the activities of law enforcement agencies of the country.

In 1969, courses for training experts in psychophysiological testing were established in the Polish military counterintelligence service, headed by the well-known polygraph examiner in the country, Dr. A. Krzyszczyn, who by that time already had fifteen years of experience working with the polygraph5. In the same year, the military counterintelligence service began using the polygraph in investigating criminal offenses, most of which concerned murders or thefts of weapons or ammunition by military personnel6. The experience of those years turned out to be positive: it played a major role in removing unfounded charges against some military personnel and identifying the true perpetrators of crimes among others, which was later confirmed during court proceedings. In the period 1969-1998. A special unit of the Polish military counterintelligence checked 5,243 people on a polygraph during the investigation of 1,180 criminal cases7 (i.e., on average, about 180 checks per year and 4-5 people checked in one criminal case).

In the 1960s and 1970s, the polygraph was adopted by university forensic laboratories. In particular, the forensic science department of the University of Silesia in Katowice began studying the possibility of practical application of the polygraph in 1977 and already in the period 1977-1978 carried out polygraph testing of 265 people involved in 34 criminal cases8.

In the 70s and 80s, universities conducted scientific research, and scientific periodicals regularly published publications on the topic of lie detection, which were devoted to studying the diagnostic nature of polygraph tests, analyzing the effectiveness of such tests performed in real conditions, and detecting latent information during the process9.

The issue of the possibility of using polygraph test results as evidence has been discussed on numerous occasions, and the Supreme Court of Poland has expressed its position on the presentation of data obtained using a polygraph in procedural practice on several occasions10. In particular, in 1976, when considering criminal case No. II KR 171/76, the Supreme Court decided that “this type of evidence cannot be used as independent sole evidence providing grounds for making a decision. Therefore, such evidence is of auxiliary importance”11. According to the court, a polygraph test is primarily concerned with identifying whether the person being tested is emotionally connected to the event in question.

In the mid-1990s, the Polish Association of Polygraph Examiners was established, which united about forty specialists involved in polygraph testing, research in this area, or interested in issues of legal regulation of the use of the polygraph. At the time of its creation, the Association was conceived as a public association integrating the efforts of the professional community to exchange experience, promoting the use of this method in practice and conducting experimental research in the field of forensic psychophysiology, as well as an organization obliged to establish standards for research and educational activities and administrative control.

After 1975, a group of Polish criminologists and experts, based on their experiments, came to the conclusion that American theories of lie detection do not provide a satisfactory explanation for the physiological phenomena observed during polygraph testing.

By the end of the 20th century, research in the field of polygraph testing was carried out at three universities in the country in the departments of forensic science: the University of Silesia in Katowice, the University of Wroclaw and the Copernicus University in Torun. Over 25 years of research, Polish scientists and specialists developed a concept that provided a theoretical explanation for the technology of psychophysiological research using a polygraph.

The proposed concept included four basic provisions:

1) polygraph testing is aimed at studying memory traces;
2) the testing procedure is based on the principles used in psychological experiments;
3) polygraph testing is one of the methods of forensic identification;
4) the test is aimed at finding information needed by law enforcement agencies.

The concept is based on the fact that «information about illegal acts and the strong negative emotions that accompany them are imprinted in the long-term memory of the offender. The fact of committing a serious offense (and only such offenses should be the subject of research using a polygraph) is associated, as a rule, with strong emotions that are located in special sections of memory… The memory traces of such an event are stable, unique and allow their identification…

Memory traces cannot be seen directly… The presence or absence of traces of an illegal event in the brain of a person being tested on a polygraph is manifested in changes in the functioning of various systems of the human body»12.

This concept has become generally accepted among Polish polygraph examiners.

In the early 1990s, private detective agencies unsuccessfully tried to attract the attention of businesses to the possibility of using the polygraph in their interests, as a result of which, by the end of the 20th century, a small group of experts had formed that carried out polygraph tests on orders from private companies.

Theorists and practitioners working in the field of procedural law have made considerable efforts to exclude the possibility of using a polygraph from judicial practice and to amend one of the articles of the new Criminal Procedure Code, which would prohibit the use of a polygraph for the purpose of obtaining evidence. At the same time, the commission that developed the bill did not consider the opinions of experts working in the field of polygraph tests.

The Polish National Prosecutor's Office opposed the use of the polygraph in the police's operational and investigative activities. This view was expressed in a response to a request from the Main Police Headquarters (1994), which stated, inter alia, that «if the procedural law establishes legal guarantees limiting the obligation to provide information to state bodies, then it follows that outside the court, in the course of operational activities, no one may do anything that these restrictions do not permit»13.

The consequence of these efforts was that the Polish Criminal Procedure Code (CPC), which came into force in 1997, effectively banned the use of technical means aimed at checking the psychophysiological reactions of the person being interrogated. The ban once again sparked a heated debate between supporters and opponents of the use of the polygraph in law enforcement practice. In general, by the end of the 20th century, a situation had developed in Poland in which “the Polish police did not have their own polygraph examiners, and occasionally, in particularly complex criminal investigations, mainly murders, they turned to experts from other organizations for help in conducting polygraph tests.” The polygraph problem became purely theoretical, since its use in criminal investigations is insignificant. None of the Polish government agencies is interested in using the polygraph in the fight against growing crime.”14In April 1990, by order of the Minister of National Defence, the intelligence and counterintelligence services of Poland were disbanded. The Military Information Service (WIS) of Poland, which replaced the military counterintelligence of the Polish People's Republic, apparently continued to use the polygraph in its activities after 1990, when the country's intelligence services were reformed. In 2006, the WIS was transformed into the Military Intelligence Service (VZS) and the Military Counterintelligence Service (VKS), the instructions of which provide for the use of a polygraph in special cases. In particular, Article 9 of the VKS instructions indicates that when selecting personnel, «a candidate for service must answer two questions: 1) Have you ever undergone a psychophysiological examination? If yes, indicate when and for what purposes. 2) Do you consent to undergo a psychophysiological examination? 15.

The Polish Military Gendarmerie adopted the polygraph in accordance with a departmental legal act that came into force in August 2001 and introduced polygraph testing as one of the elements of personnel selection technology.

The Internal Security Agency (ISA) and the Intelligence Agency (IA) of Poland use «psychophysiological testing» in accordance with regulations that came into force in 2002. According to W. Pasko-Poris16, between 10,000 and 20,000 employees of Polish intelligence and counterintelligence are currently subject to polygraph tests.

The Central Anti-Corruption Bureau (CAB) of Poland — a special service created in June 2006 to combat corruption in central and regional government bodies, in the public and private sectors, as well as any other activity that harms national economic interests — according to its current statute, uses «polygraph screening» when checking candidates for service from among officers of the AB, the Border Guard Service or the police17.

The Polish Border Guard (PS) actively uses screening tests and, by some estimates, is the largest user of the polygraph in the country, conducting polygraph tests on approximately 18,000 employees annually18. Such volumes of polygraph use are apparently explained by the fact that the PS is currently considered «the most modern military formation in Poland»19.

It should be noted that attitudes towards the polygraph in government agencies vary greatly. In particular, an attempt to introduce polygraph tests into the activities of the General Customs Inspectorate was the subject of a debate in the Supreme Administrative Court of Poland in 2003, and the polygraph was rejected because its use was not adequately regulated by law20.

As mentioned above, the Polish Criminal Procedure Code (1997) introduced Article 171 4/2, which prohibited “hypnosis and drugs or technical devices that influence the psychological processes of the person being interrogated or are aimed at controlling the unconscious reactions of the body associated with interrogation”21.

However, in 2003, a new article (192 a/2) was added to the Code of Criminal Procedure, according to which “in the interests of reducing the number of suspects or to determine the evidentiary value of such evidence,” an expert is allowed to “use technical means aimed at monitoring a person’s unconscious reactions.” This article emphasized that “the use of technical means aimed at monitoring a person’s unconscious reactions is possible only with the consent”22 of that person.

The introduction of these amendments to the Code of Criminal Procedure “finally tipped the scales in favor of the applicability of the polygraph during investigations and put an end to the debates that raged in the absence of a clear legal basis for the use of polygraph research”23.

It should be emphasized that the terms «polygraph», «polygraph tests» («polygraph examination») are not used in any of the legal acts, with the exception of the documents of the Central Anti-Corruption Bureau. The Criminal Procedure Code defines polygraph tests as «the use of technical means aimed at monitoring unconscious human reactions.»

The Supreme and Appellate Courts of the country accept the results of polygraph tests as evidence if two conditions are met. The first — the polygraph test must be performed with the consent of the person being tested.

The second — the study must be presented in the form of an expert opinion drawn up in accordance with Article 200 of the Polish Criminal Procedure Code. At the same time, the study must not be part of any other procedural action (for example, interrogation). And, of course, the expert must have the necessary professional qualifications and moral qualities.

There are no legal acts in Poland that regulate or prohibit the use of polygraphs by private organizations (when hiring or during screening tests).

Currently, polygraph tests are used in Poland during criminal investigations, when hiring personnel and when monitoring their activities (screening tests). As noted above, in the last two areas, the polygraph is used by both government agencies (intelligence agencies and law enforcement agencies) and the private sector.

According to J. Vidatsky, less than 100 polygraph tests are conducted annually in criminal cases in the country. Taking into account that about 1,000 murders are investigated every year, with the total number of criminal cases measured in hundreds of thousands, it becomes clear that the polygraph is very rarely used in investigations. This number is many times exceeded by the number of polygraph tests conducted during screening.

The exact number of polygraph examiners in the country is unknown. J. Vidatsky believes24 that there are about 20 such specialists in the country. This number includes university researchers (6 people), intelligence officers (no more than 6 people), police officers (2 people) and polygraph examiners working in various private security and detective agencies (no more than 5 people). Among the polygraph examiners — three are women. All polygraph examiners have a university education, some of them have experience working in law enforcement agencies.

However, J. Vidatsky's estimates are apparently significantly underestimated, and, according to the information mentioned above (data from V. Pasko-Poris), the number of polygraph examiners in the country is significantly higher. It is not possible to make any estimates of the volume of polygraph use in Poland, since statistical data on this issue are not published.

The level of professional training of Polish polygraph examiners varies greatly, and, according to J. Widacki, in most cases it is low. This situation is a consequence of the lack of an established system for training specialists in this field, the procedure for licensing their activities, a unified system for monitoring their activities, as well as the lack of competition.

One of the most important results of the activities of the Polish Association of Polygraph Examiners is the launch of the specialized journal «European Polygraph» in 2007. However, apart from this, as J. Widacki notes, very little of what was planned when this organization was created has been implemented to date. The only achievement of the Association was the adoption of «Standards of Interviewing with the Use of a Polygraph in Criminal Investigations», i.e. a set of rules for conducting polygraph tests. The Association has not yet succeeded in adopting the «Standard of Interviewing with the Use of a Polygraph in Working with Personnel» or in enacting a code of ethics for polygraph examiners25.

Among legal scholars — especially those specializing in criminal procedure — one can encounter opponents of the use of the polygraph during investigations: their comments mainly concern procedural and moral aspects (the use of the polygraph is an invasion of privacy; the person being tested by the polygraph is a person assisting in obtaining evidence against himself, etc.).

At the same time, the Polish public is favourably disposed towards polygraph tests, especially in criminal investigations. The fear of crime in Poland is very strong, and public opinion is ready to accept any methods of combating crime that seem effective. There is also no opposition in the country to the expansion of the use of the polygraph by private organisations in working with personnel.

In the last ten years, almost no articles have been published in Poland presenting the results of experimental research on the topic of the polygraph. After a long break, the Faculty of Forensic Science of the Andrzej Morzewski College (University of Krakow) has launched an extensive research project on the topic of the use of the polygraph.

The objectives of this project are:
— generalization of the practice of using the polygraph in the period 1989-2006;
— creation of methods for separating, during studies using the polygraph, persons «who have knowledge of the event from persons who are «active participants» in these events;
— determination of the diagnostic capabilities of polygraph tests in relation to persons with various types of disorders (especially schizoid and antisocial personalities);
— joint study with specialists in the field of neuropsychology and neurophysiology of manifestations of lies.

There are two interrelated problems in the field of polygraph application in Poland. The first is the reduction of experimental scientific research into the application of the polygraph in real conditions, as well as the analysis of such application. Several recent works on this topic concern the legal aspects of the polygraph application and are popularizing articles for lawyers and law enforcement officers or chapters in forensic science textbooks. The second problem is that a unified system for training polygraph examiners and clear criteria for licensing their activities have not yet been developed. The result of the above problems is that the professional community cannot control the quality of polygraph examiners' work, and this inevitably leads to a violation of the standards for conducting polygraph tests26.

In addition to the above, M. Leszniak draws attention to the fact that «law enforcement agencies do not consider polygraph testing as a generally accepted source of information or standard evidence. There are several reasons for this. The first of them is that law enforcement officers are often poorly acquainted with this method, since:
— Forensic science is not a mandatory course in most law faculties in Poland;
— Few law enforcement officers are law graduates;
— Law school graduates (future prosecutors and judges) rarely (if ever) become familiar with the polygraph at a professional level. While becoming knowledgeable in legal matters, they know nothing about the practical possibilities of using the polygraph»27.
1 See: Jan Widacki. Polygraph examination in Poland: an historical outline //Polygraph 2007, Vol. 36 №3. R 150-156; Jan Widacki Polygraph examination in Poland//European polygraph. 2007. Vol. I. №l. P. 25-34.
2 Krzyacin A. The debate over polygraph in Poland //Polygraph. 2000. V. 29. No. 3. P. 226-236.
3 Quote. by: Widacki J. Wprowadzenie do problematyki badan poligrafocznych. Warsaw. M.S.W. 1981. S. 182.
4 Widacki J., Romig S. H.A. The polygraph in Poland//Polygraph. I975.V.4.No. 1. P. 33-38.
5 Zagdan M. Polygraph in the polish secret service //European polygraph. 2007. V. 1. No. 2. P. 105-114.
6 Pasko-Porys W. Current legal status of polygraph and level of practice in Poland //Polygraph. 2007. V.36. No. 3. P. 165—176.
7 Krzyacin A. The debate over polygraph in Poland. P. 226-236.
8 Lesniak M. Polygraph examination studies at the University of Silesia //European polygraph. 2007. V. 1. No. 1 55-63.
9 Jan Widacki Polygraph examination in Poland: an historical outline.
10 Krzyacin A. The debate over polygraph in Poland. P. 226-236.
11 Ibid. P. 226.
12 Krzyacin A. The debate over polygraph in Poland. P. 227-228.
13 Ibid. P. 226-227.
14 Krzyacin A. The debate over polygraph in Poland. P. 235.
15 Zagdan M. Polygraph in the polish secret service, P. 108.
16 Pasko-Porys W. Current legal status of polygraph… P. 16
17 Zagdan M. Polygraph in the polish secret service.
18 Pasko-Porys W. Current legal status of polygraph…
19 Zagdan M. Polygraph in the polish secret service . P. 112.
20 Pasko-Porys W. Current legal status of polygraph… P, 165.
21 Ibid
22 Jan Widacki. Polygraph examination in Poland. P. 30
23 Ibid. P. 31.
24 Jan Widacki. Polygraph examination in Poland: an historical outline P. 152.
25 Jan Widacki. Polygraph examination in Poland: an historical outline
26 Ibid. P. 154.
27 Lesmak M. Polygraph examination studies .. P. 60.

Yu. I. Kholodny
Doctor of Law, Candidate of Psychological Sciences (MSTU im. . N. E. Bauman)

Source: Criminalistics Bulletin (issue 3(27))