Justice

Legal norms of polygraph application in different countries

With the emergence of the polygraph as a tool that promotes human cognition, the problem of the legality of its use also arose. Opponents of the use of the polygraph in criminal proceedings put forward the following issues as arguments: the polygraph test violates a person’s right to privacy, is it possible to use the results of polygraph tests in court, does the testing process lead to humiliation of the individual, the legal status of the polygraph in solving personnel and labor issues. All these problems are discussed to this day.

Until now, the polygraph is successfully used in the fight against crime in 57 countries of the world. Basically, the results of polygraph tests are auxiliary in nature and are used in court as evidence in only 3-4 countries.

Laws restricting the use of polygraphs change frequently. Even in such a developed country as  the USA , despite its 100-year experience of using the polygraph, the laws regulating its use are often radically changed within 3-5 years. In different states, they may contradict each other. Polygraph tests are allowed throughout the United States, but there are various restrictions on their use. In the US, 29 states and 3 counties require a practitioner to provide a permit or certificate of qualification. In 21 states, it is forbidden for private employers to require people to pass polygraph tests when entering a job.

Verification of civil servants is determined by the place of work and the position held. In 1965, the US Supreme Court ruled that using a polygraph without a person’s consent or forcing them in any way to take a test is a violation of the 5th Amendment to the US Constitution, which guarantees the right to refuse self-incrimination. In the USA, state law enforcement agencies actively use the polygraph, having their own specialists, or using the services of various agencies.

The FBI, the US Secret Service, the Army’s Bureau of Criminal Investigation, the US Marine Corps Criminal Investigation Division, the Department of the Navy, the US Customs Service, the Internal Revenue Service, the Capitol Police, and the US Intelligence Service have a permanent staff of specialists. When conducting polygraph tests, one of the main principles is the voluntariness of the survey.

In the USA, polygraph (lie detector) tests are mandatory for the following employees:
– persons working in intelligence, counterintelligence,
– employees of national security agencies,
– personnel serving the Ministry of Defense and nuclear industry and energy facilities,
– members of the federal government, administration,
employees of self-government bodies and their subdivisions.

In 1985, a law was passed that virtually banned the use of polygraphs in private institutions. However, three years later (1988), under the influence of a sharp jump in crime, the law of 1985, which limited the scope of the polygraph, had to be practically canceled. Later, in 1991, the decree on ensuring “diplomatic security” approved the instruction, according to which polygraph checks were conducted not only at the stage of hiring, but also periodically during the activity, and the timing of the conduct was determined by officials. All persons working with documents marked “secret” must pass polygraph checks.

Despite the general regularity in the use of the polygraph in the USA, individual states have the right to introduce their own correction into law, if it does not violate the US constitution. For example, in the state of Massachusetts, the results of polygraph tests can be used in court if, before the test, the suspect consents not only to the test, but also to the addition of its results to the court file. Then this decision must be agreed in court, and only after that the court will accept the test results as evidence in the case. As a rule, the court additionally considers the degree of competence of the polygraph operator. In the event of a negative court decision, the results of the inspection are not used as evidence.

Polygraph tests are paid in the USA. The costs of conducting them are compensated by the state if the person being checked is from a low-income family, or they are paid by the suspect himself in case of his solvency.

In the history of the US courts, there have been cases when the court allowed a retrial. The reason for this was the statement of the suspect, who claimed that due to financial difficulties, he could not pass the polygraph test in advance. The specialist’s admission procedure entitles the judge to decide on his qualification level himself. If the judge has made a positive decision in advance, then he is obliged to use the results of the polygraph test as evidence in court.

Thus, the use of a polygraph test in court is permissible if all the conditions of the 5 points are met:
1. The accused demands that he be tested on a polygraph.
2. The jury considers that the suspect may undergo a polygraph examination due to his condition.
3. The accused deliberately waives the rights granted to him by the fifth amendment of the Constitution.
4. The jury considers that the specialist conducting the polygraph examination is qualified, and the examination procedure itself meets the established requirements.
5. Testimony of the accused must be provided before obtaining a conclusion on possible verification.

In  Germany,  until 1954, the polygraph was actively used to investigate crimes. Since February 16, 1954, the decision of the federal court (with reference to the constitution of the Federal Republic of Germany) prohibited the use of lie detectors in general.

 The use of the polygraph is also prohibited in the Criminal Procedure Code  of Austria . Even if the accused will demand the use of a polygraph in the investigation of the crime he is accused of.

The use of a lie detector by the  Polish police  dates back to the early 1970s. Not having its own polygraphs until 1978, it used equipment that other special units had. In 1978, 3 Lafayette polygraphs were purchased. Later, the polygraph began to be actively used both in operational and investigative activities, and when providing evidence in court. The first case was recorded in 1976, when the Supreme Court of Poland found the defendant guilty, based on a number of other evidences and the results of polygraph tests.

The use of the polygraph in Poland received serious legal support in 1983 after the approval of the Statute “On the Minister of Internal Affairs and the Limits of Action of Bodies Under His Control” (from 14.07.83). If the polygraph was used for an operationally wanted purpose, the operator acted as a consultant. If the polygraph was used in criminal proceedings, then before the test it is necessary to obtain a resolution of the prosecutor, and then its results are drawn up as in the case of an examination.

In  Hungary,  the polygraph began to be used in 1978. The process is regulated by the instruction of the Ministry of Internal Affairs No. 40. The main provisions are taken from a similar US document, based on the voluntary consent of the interviewee to the inspection. Refusal to pass the inspection is not prosecuted by law.

In  Turkey, the polygraph has been used to solve crimes relatively recently, since 1984. Currently, Turkey is one of the leading countries in the world in terms of the number of polygraphs per inhabitant. Specialists are trained in America. The legal framework basically repeats similar documents used in the USA.

In  Japan,  the polygraph has been used by the police since 1956. The results of inspections by lower courts are considered as evidence. The indirect method is mainly used in testing. Special requirements apply to the professional training of specialists. In terms of the number of trained high-class specialists, Japan ranks third in the world. Conducting polygraph tests has limitations related to the peculiarities of the human body. In Japan, it is forbidden to take a polygraph test on the following:
– elderly people,
– drug addicts,
– minors,
– seriously ill people,
– anxious and distrustful people,
– mentally ill people,
– people in a state of alcoholic intoxication.

In  Israel,  the polygraph began to be used in 1959. The permission of the police to engage in private practice has led to the fact that almost 30% of police polygraph specialists have their own private system of checks. A few years ago, the first contact polygraph was created in the country, work is underway on a non-contact polygraph and the corresponding legal basis for it.

In  Canada,  the spread of the polygraph was significantly complicated by the dominance of the British legal system in the country. In the future, the regulatory framework for the use of the polygraph was copied from the American one almost completely. This allowed Canada to quickly reach an advanced international level. According to the number of trained specialists and actually used polygraphs, the modern Canadian polygraph system ranks second in the world after the United States. Unlike the United States, in Canada no region uses the results of polygraph tests in courts to confirm the innocence or guilt of a suspect.

In  India,  the polygraph began to be used in 1973. According to Indian law, the results of polygraph tests can be used as evidence in court only if the test was conducted by a civilian and not by a police or court official. Although in real practice there were cases when the conclusions of a polygraph test performed by a police officer were accepted for consideration by the court. The rules of verification are as follows. The person who conducted the testing familiarizes himself with the investigation materials, outlines the stages of the inspection. After a discussion with the suspect, he is informed that he has the right to refuse the lie detector test. If he agrees, he signs a statement on voluntary polygraph examination. Due to the fact that the American Academy of Polygraph Specialists took an active part in the development of laws and guidelines for polygraph testing, the general requirements for polygraph tests in India basically repeat those in the USA.

In  Russia,  legal support for the use of the polygraph is at an initial stage. The time of its formation can be counted from the moment of the adoption of the law of the Ministry of Internal Affairs dated July 30, 1992 “On legal and regulatory support for the use of the polygraph in the system of the Ministry of Internal Affairs of the Russian Federation.” The organization and conduct of polygraph checks was entrusted to the so-called “Bureau of special measures”, later named “Department of operational and technical measures” (UOTM). The main reason for the transfer of polygraph subjects to this unit was the following circumstance: the leadership of the ministry was old-fashioned. With mother’s milk, it acquired the conviction that the polygraph is “an element of dark capitalism.”

The use of a polygraph to solve a crime is, as it were, not a very reliable system, so its fate was decided in advance. At that time, a young, energetic and courageous employee who knew how to defend his views and convictions was appointed the head of UOTM. Serhiy Viktorovich Ignatov, who headed this department, initiated the revival of the polygraph in Russia. He did not need to be convinced of the need to use a polygraph in solving crimes. In 1990, after a business trip to Poland, he asked about the purchase of several polygraphs for the USSR and the training of specialists in the USA to work on them.

In 1994, the first instruction regulating the use of the polygraph in the investigation of crimes was adopted. She destroyed the psychological barrier of officials and allowed the establishment of a polygraph service in Russia. Before the appearance of the lie detector test instructions in the Ministry of Internal Affairs, it was carried out by individual daredevils, although they met with sharp criticism from the prosecutor’s office, almost to the point of threats of criminal prosecution for non-compliance with the laws of the USSR.

It should be remembered that blindly transferring foreign experience to Russia is a thankless task. After all, the socio-legal culture of the USA is so different from the Russian one that it is sometimes impossible to compare it. The same can be said about Ukraine.

Legal norms for the use of the polygraph in Ukraine

Currently, the use of the polygraph is not prohibited by law in Ukraine. Obtaining a license for its purchase and use is not required.

Conducting polygraph checks does not contradict the current legislation of Ukraine and does not violate it, it is aimed, first of all, at protecting the rights of individuals and legal entities in the field of business security. Also, the constitutional rights of citizens are not violated, since inspections are carried out only with their written consent.

The use of the polygraph in Ukraine is carried out on the basis of the norms of the Constitution of Ukraine (Articles 28, 32), labor legislation and other normative legal acts.

Article 28 of the Constitution of Ukraine: “No person may be subjected to medical, scientific or other experiments without his free consent.”

Article 32 of the Constitution of Ukraine: “The collection, storage, use and distribution of confidential information about a person without his consent is not allowed.”

The polygraph examiner in his activity adheres to the STANDARD OF POLYGRAPH EXAMINATIONS, the provisions of which clearly regulate the procedure for conducting polygraph testing, fully complying with the norms and requirements of the legislation of Ukraine. The methodology of conducting polygraph examinations is based on more than 100 years of practical experience of the world’s leading polygraph schools, the theoretical basis of international scientific developments, foreign experience of legal regulation of polls using the polygraph in the interests of ensuring economic security and protecting commercial secrets.

Thus,  polygraph checks  and the specified STANDARD fully comply with moral aspects, current legislation and normative legal acts of Ukraine:

Rights of persons regarding polygraph examination

• A polygraph test cannot be imposed on anyone by force. This is unconstitutional and can be considered an invasion of privacy.
• The signature on the consent to conduct a survey with the use of a polygraph is a legal document and the most important moment of the entire examination. NO TEST MAY BE STARTED UNTIL THE PERSON’S SIGNATURE IS RECEIVED CONSENT TO IT.
• An interview should not be conducted if the subject was forced to do so by force or threats.
• If the subject of the inspection is under 18 years of age, the consent of his parents should be obtained. 

Every citizen of Ukraine has the right:
The right to be checked by an experienced, qualified operator

• The right to adequate conditions for its implementation
• The right to be informed about the reason for the inspection
• The right to receive information about the principle of operation of the polygraph
• The right to consent to a polygraph test
• The right to refuse the specified inspection
• The right not to undergo a very long (more than 3 hours) interview procedure
• The right to the absence of contemptuous treatment, humiliation of dignity