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INTRODUCTION
Historical Basis
People lie. Though difficult to admit so, we all lie and have lied, at one time
or the other. We do so for different reasons. Some lie to avoid hurting
others, whilst others just the opposite. But most of the time deception is for
a self-serving purpose. Lying has existed and will exist in all societies and
at all levels of life. It begins at the earliest possible stage of childhood and
continues till the time we leave this body. It is found in the lower reaches of
life to the highest spheres in business, politics and even religion.
As such the search for truth has been a universal and constant
endeavour that has dated back to ancient times. Primitive societies had
developed complex procedures founded on magic and mysticism in their
attempt to discover deception. Some of these rituals had a foundation
based on sound physiological principles, whilst others were more spiritually
inclined.
For example, in India, suspects who did not admit were required to
hold a burning object in their hands. They were considered to be innocent if
they remained unburned. Similarly, in Tibet, the accused and the accuser
were required to retrieve a stone from a boiling cauldron of water. The
truthful party is the one who is not scalded. In the Orient1, in determining
whether a person is telling the truth or not, one is required to chew dry rice
and then spit it out. The deceptive person is one who is unable to spit out
the dry rice. On the other hand the Arabs applied a hot iron to the tongue of
the accused. If he were telling the truth he would not be injured.
There are several techniques that are well established and based on
scientific approaches, but not necessarily accepted by the courts of law.
They are:
1. Hypnosis
2. Truth serums
2
Abrams, Stan, History of Polygraphy , In School of Polygraphy Reference Materials, Western
Oregon University.
3
Beigel, H.G. , Prevarication under Hypnosis , J . Cln. And Exp. Hypn. 1 ( 1953 )pg 32 -40
4 nd
Abrams, Stan ,The Complete Polygraph Handbook ( 2 ed )
nevertheless reveal that only 50 percent accuracy is achieved in
actual circumstances.5 There is further criticism that, as in
hypnosis, the subject might continue to be deceptive under narcosis
and that the individual might become hyper-suggestible and
confess to a crime he did not commit.
3. Word-association Test
Early Polygraphs.
5
Inbau, F.E. , Methods of Detecting Deception , J. Crim L 24 ( 1934 )
6
Abrams, Stan, The History of Polygraphy, School of Polygraphy Reference Materials,
Western Oregon University.
7
Jung, C.G., The Association Method, American J. of Psychology,221 ( 1910).
In early 1895 Cesare Lambroso scientifically measured the pulse
rate during questioning of a suspect. He reported that he was able to
determine a lie by measuring the changes of pulse rate. This principle was
extended when in 1914, Vittorio Benussi demonstrated that by comparing
the inspirations and expirations he found that the duration of inspiration
increased following lying. Another American researcher, Marston, then
found out that the systolic blood pressure was affected by fear and anger,
which he associated with lying and the concern of being detected.
At present there are two general types of polygraph instruments. They are
the analog version which measures the physiological changes via
mechanical means. The other is the newer digital type8. This digital
polygraph measures the physiological changes which are then relayed to a
computer which is incorporated with the necessary software.
i) The Pneumograph
8
There are two main companies that manufacture these digital versions. They are by the
th
C.H.Stoelting Company and the other is Lafayette Instrument Co, Sagamore Parkway & 9
Road, Lafayette, Indiana. USA.
fingers. It thus detects the changes in the examinee's skin
resistance, which is then amplified and recorded.
1. Data Gathering
2. Pretest Interview
This is the most important part of the entire test process. Here
rapport must be established with the examinee and the
polygraphist, thus allying his anger, suspicion and anxiety. The
9
To be a polygrapher in the U.S. certain requirements have to be fulfilled. The applicant must
either successfully complete the required training in detection of deception at a polygraph
school approved by the Department, or submit evidence of satisfactory completion of
substantially equivalent training if the polygraph school at which the applicant received training
in the detection of deception is not approved by the Department.
http://www.vapolygraph.com/PolygraphExaminers.htm.
10
Courses in polygraphy are conducted by the Western Oregon University School Of
Polygraphy which is for a period of 3 months. Other examples of such courses are by the
Canadian Police College ( 11 weeks ) and the Argenbright International Institute of Polygraph,
Atlanta, Georgia.USA. Private practitioners also offer numerous services of polygraph training,
eg see http://www.polygraphy.co.za/html/body_why_us__.html. For a postgraduate M.Sc (
Polygraphy ) the University of Chemical Technology and Metallurgy ( UCTM ) ,Sofia, Bulgaria
offers a course.
11
This can be argued as liable to being biased on the part of the examiner.
polygraphist must present himself as being highly objective,
professional and interested only in learning the truth. The subject
must be made aware that if he lies, the examiner will know it. Thus
the stimulation of fear of detection is the major purpose of the
pretest interview.
i) Relevant Question
This is usually placed in the second position of the test and serves
to diminish the emotional reactivity. It is not scored because its
purpose is to draw the fear from the first relevant question.
v) Symptomatic or Outside the Issue Questions
3. Actual Testing
The polygraph test is now complete and the polygraphist can make
his finding if the examinee is telling the truth or is being deceptive. His
opinion will be based on the result scores as obtained above and there is
no guess work involved. If he cannot make his findings from the score
results due to the lack of marked sensor changes than his final outcome
would be just 'inconclusive'.
LEGAL ASPECTS OF POLYGRAPHY EXAMINATION
In such cases the polygraph test is taken earlier and an application is made
to have its evidence adduced in court. Before this can be done we have to
find out first whether the opinion evidence of a polygraph expert is relevant.
Then we have to see whether its evidence is admissible in court.
12
Eldon v PP (2001) 1 SLR 710
(2) Such persons are called experts.
13 nd
Paul , Augustine , Evidence; Practice and Procedure ( 2 ed 2000) Malayan Law Journal
14
Chandrasekaran v PP (1971) 1 MLJ 159
15
Leong Wing Kong v PP (1994) 2 SLR 54
With all the above it can be seen that the polygraph opinion
is within the expression 'science' as required under section 45 of the
Evidence Act 1950.
18
Chou Kooi Pang v PP ( 1998 ) 3 SLR 593
19
R v Turner ( 1975 ) 1 All ER 70
20
Syed Abu Bakar b. Ahmad v PP (1984) 2 MLJ 19.
human experiences. In the case of Weightman21 a psychiatrist's
evidence was held inadmissible where its purpose was, in effect, to
tell the jury how an ordinary person, not suffering from any mental
illness, was likely to react to the strains and stresses of life.
Facts of Case :
In this case the appellant and one Christopher Moore were arrested
and charged for the possession and exporting of ganja. In the case
for Bernal, on the issue of credibility, his counsel sought to
introduce the evidence of a polygraph test conducted by a
polygraph expert. But this evidence was rejected by the Resident
Magistrate as being inadmissible. They were convicted and
sentenced by the Magistrates Court in Kingston, Jamaica.
21
R v Weightman (1991 ) 92 Cr App R 291
22
Bernal & Anor v R ( unreported) P/Council decision dated 28.April.1997.
see http://lexis.com/ ( England and Wales Reported and Unreported Cases )
b) Whether evidence of the findings of a polygraph
examination by a competent expert are admissible where
such evidence is sought to be adduced by a defendant in
support of his defence, in particular to rebut an allegation of
guilty knowledge.
23 th
R v Beland and Phillips ( 1987 ) 43 DLR (4 ) 641
24
Compare the Malaysian position where sec 146 (a ) Evidence Act 1950 states that a
witness may be cross examined to test his accuracy, veracity or credibility. For commentaries
on the distinction between credit and credibility , see : Paul. Augustine., Evidence :Practice and
nd
Procedure. 2 Ed. Malayan Law Journal,.pp 1003.
25
Compare also the Malaysian position where section 157 of the Evidence Act 1950 states
that :- "In order to corroborate the testimony of a witness , any former statement made by him
whether written or verbal, on oath, or in ordinary conversation , relating to the same fact at or
about the time when the fact took place, or before any authority legally competent to
investigate the fact, may be proved.". For the principle and scope of section 157 see Paul.
nd
Augustine., Evidence: Practice and Procedure. 2 Ed. Malayan Law Journal, pp1036- 1043.
26
For a Malaysian perspective see section 53 of the Evidence Act 1950 which states :- " In
criminal proceedings the fact that the person accused is of a good character is relevant.". For
called as a witness for the purpose of bolstering the
credibility of the accused and in effect to show him
to be of good character by inviting the inference
that he did not lie during the test. It was not
evidence of general reputation but of a specific
incident.
nd
its principle and scope see Paul. Augustine., Evidence : Practice and Procedure. 2 Ed.
Malayan Law Journal pp 474.
27
Syed Abu Bakar b Ahmad v PP (1984 ) 2 MLJ 19 (Federal Court ) , Chou Kooi Pang &
anor v PP (1998 ) 3 SLR 593 ( Court of Appeal ), Ong Chan Tow v R (1963 ) MLJ 160 (
High Court ).
28
The Queen v Mckay ( 1967 ) NZLR 139 ( Ct. of Appeal )
thats most relied upon is that the purpose of expert evidence is thus to
assist the trier of fact by providing special knowledge that the ordinary
person would not know. Its purpose is not to substitute the expert for the
trier of fact.
There have been cases where, during a trial in progress there have been
applications for a polygraph test to be conducted. A recent example is the
Singapore case of Eldon29 where as stated above, the appellant
volunteered to undergo a polygraph test to prove his truthfulness. But in this
case no formal application was made to have a polygraph test conducted.
As such there was no decision on the matter. Nevertheless there is the
Canadian case of Beland 30 which is precisely on the above matter. In the
testimony, the respondents asserted that the evidence of the Crown's
witness was false and denied any participation in the alleged conspiracy.
The respondents made an application to permit them to take a polygraph
examination and submit the results in evidence.
Thus we can see that courts are reluctant to admit the evidence of
opinion of a polygraph expert during the course of a trial for the purpose of
bolstering one's credibility.
29
Eldon v PP ( 2001 ) 1 SLR 710
30
R v Beland ( 1987 ) 2 SCR 398
3. Polygraph test conducted for the sake of investigations only
The appellant had claimed that the recording officer had fabricated
her confession and had induced her into signing it by showing her the
polygraph test results, accusing her of lying. The court held that the act of
conveying the results of the polygraph test would not render her confession
inadmissible, provided that nothing more was done which could be
construed as an inducement, threat or promise.32 The judge also stated
that:
CONCLUSION
31
Siew Ah Beng v PP ( 2000 ) 3 SLR 773
32
For cases and a discussion on what constitutes inducement, threat, promise and also the
admissibility of statements made to the police see : Mimi Kamariah Majid. Criminal Procedure
rd
in Malaysia 3 Ed University of Malaya Press.
33
Vadugaiah Mahendran v PP ( 1996 ) 1 SLR 289
Further the probabilities involved in the science of fingerprint and
DNA evidence is very precise. For example in DNA matching, the
Chemistry Department of Malaysia uses 9 loci in its comparative analysis.
Studies34 show that the probability of all 9 of them matching in individuals is
1 : 2.152 x 109 . Similarly, for fingerprint comparative analysis it is based on
the comparison of 12 characteristics. Numerous studies into the
probabilities of individual fingerprints matching in all 12 characteristics have
been shown to be 1 : 13.84 billion.35
34
Jabatan Kimia , Malaysia.
35
Simon Newcomb Theory, Encyclopedia Britannica.
36
Bernal & anor v R ( unreported ) P/Council decision dated 28.April 1997 .See
http://lexis.com/ (England and Wales Reported and Unreported Cases )
37
See book on beating the polygraph. Williams. Dough., How To Sting The Polygraph , Also
see internet articles at http://www.polygraph.co.za/polygraphpolysting.htm, and
http://www.polygraph.com/
38
Siew Ah Beng v PP ( 2000 ) 3 SLR 773