THE APPLICABILITY OF USING POLYGRAPH IN CRIMINAL PROCEEDINGS

 A polygraph (or lie detector, as it is commonly called) is a device known enough in the world. The number of cases of polygraph use is increasing every year. Ukraine is no exception to this trend. For example, HR professionals of medium and large companies are increasingly using this tool during interviews. First of all, such a check is passed by the candidates for the positions of responsibility.

 However, despite the general reputation of the device, most citizens do not have an idea of ​​its technical component, ie how this machine identifies and signals when a person is cheating. Therefore, before we start analyzing the feasibility of a polygraph in criminal proceedings, let us familiarize ourselves with the principles of its work and the cases of polygraph use in Ukraine.

Polygraph and polygraph examination

 A polygraph (lie detector) is a multipurpose device designed to simultaneously record the breath, blood pressure, brain currents, heart, muscles, and other physiological processes, that is, a device that captures physiological changes in the body of the person being tested.
 Modern lie detectors consist of a laptop displaying graphics, a touch block for converting the organism into a digital signal and sensors (usually 7-8 pieces) attached to the test piece. Sometimes a video camera or other devices are used to further analyze the results.
 Professional polygraph examination consists of three stages: pre-test interview, examination and polygraph analysis. During the pre-test interview, the polygraph examiner fills in the necessary documents and discusses the test questions so that the subject fully understands each question before passing the examination. The polygraph examiner also explains the process of testing on the lie detector and answers all the questions that are of concern to the subject.
 The polygraph examiner attaches to the body of the subject the necessary sensors, which, during their work and questions, are tested in real time by cardiology (pressure / pulse), respiratory (two channels of respiration), galvanic (skin-galvanic reactions), plethiophenogram vessels) and signals from the motion sensor (body movement), which allows to determine the attempts of counteraction. After fixing the sensors, the polygraph examiner asks the previously discussed questions that require a one-part answer - "yes" or "no". Physiological indicators are recorded from polygraph sensors.

 The first questions posed by the polygraph examiner are neutral. These questions, also referred to as control questions, are recorded by the polygraph examiner in normal circumstances. Then the relevant questions (which relate to the circumstances whose truth is established) begin to be compared with the control questions. This determines the veracity of the answers. At the last stage of the polygraph examination, the polygraph examiner examines the polygraphs and concludes that the person being examined is true.

Polygraph in Ukraine

 For a long time in Ukraine the polygraph has been used in the private sector, in particular, when hiring new employees. The polygraph is also used in the public sector. Today the concept of polygraph is already legally fixed in Ukraine:

 Polygraph - a computer hardware tool that has the appropriate certification, which registers changes in human psychophysiological reactions in response to the presentation by a specific method of certain psychological stimuli, does not cause harm to life, human health and the environment (Order of the Ministry of Defense of Ukraine “On Approval of the Instruction on the Procedure for Organizing and Conducting Personnel Surveys Using the Polygraph in the Ministry of Defense of Ukraine and the Armed Forces of Ukraine” (Instruction, Item 1.2) of 14.04.2015, No. 164).
Polygraph is a type of psychophysiological apparatus that uses a complex multichannel computer technique for recording changes in a person's psychophysiological reactions to certain psychological stimuli (Order of the Ministry of Internal Affairs of Ukraine "On Approval of the Regulation on Psychological Support in the National Guard of Ukraine" (Regulations, section 1, item. 3) dated 08.12.2016, No. 1285).
 Polygraph is a technical multichannel (including a counter-detection channel) recorder of the psychophysiological reactions of the research subject, which enables to identify and record the psychophysiological reactions of the research subject to certain stimuli (stimuli) by converting his psychophysiological indicators of activity from analog signals to digital ones. signals that are displayed in the form of curves on polygrams (Resolution of the Cabinet of Ministers of Ukraine «On approval of the Procedure of conducting psychophysiological research from thrust of the polygraph at the State Bureau of Investigation ”(Order, item 2) of May 11, 2017 No. 449).

 Polygraph - a kind of special psychophysiological technical means, which registers the dynamics of the course of at least five independent psychophysiological processes of the person (chest and diaphragmatic breathing, cardiovascular activity, electrical conductivity of the skin, motor activity) in response to presentation by psychological methods incentives (questions, images, items) without harming life, human health and the environment (Order of the Ministry of Internal Affairs of Ukraine «On approved I have instructions on the use of polygraphs in Ukraine National Police "(Manual, Sec. 1, p. 2) of 13.11.2017 was. №920).

 These acts provide for cases and procedures for conducting polygraph examinations on the respective subjects. Also, a number of professions related to polygraphic research, including expert polygraph examiners, were added to the National Classifier of Occupations (Order of the State Consumer Standard of Ukraine No.237 of 28.07.2010). So, at the official level, Ukraine recognizes polygraph research and the use of polygraph as one of the methods of screening people.

The advisability of using a polygraph in criminal proceedings

 The issue of using polygraph as a source of evidence in criminal proceedings has been under discussion in Ukraine for more than a year. However, apart from the bill supplementing the Criminal Procedure Code of Ukraine with provisions on the use of a polygraph (lie detector), which was submitted at the end of 2015 but remained on the committee for revision, no other precedents for the use of the polygraph in criminal proceedings have been noticed.

 In general, most law enforcement scholars are of the opinion that information obtained by using a polygraph may be evidence in criminal proceedings. Most polygraph experts agree with this, explaining that the polygraph is almost impossible to fool.

 At the same time, psychologists' conclusions about the effectiveness of using a polygraph in the criminal process are less clear. They explain the possible erroneous results of the polygraph by the imperfection of technology and the human factor. An innocent subject may begin to fear misinterpretation of his answers. Frustrated by the fear of an "incorrect" answer, he deliberately begins to respond equally to both control and relevant questions. In this case, the polygraph examiner will not be able to conclude his guilt or innocence. In addition, the subject, who is aware of the possible errors in the results of the examination, may start to worry more when answering relevant questions, and then be found guilty.

 Psychologists agree that the accuracy of the answers received from the polygraph depends on the specific technique of formulating a question, the ability and ability of the polygraph examiner to determine a range of questions, as well as how the equipment is configured.

 In addition, in American practice, there are various cases involving testing for the polygraph, both for the benefit of the polygraph and against. Physiological responses are key in any polygraphic study. There are known cases of influence on physiological reactions by medication (for example, sedatives). Also important is the physiological health of the subject, as the health status can affect the performance of the polygraph. In the case of certain diseases, the study cannot be conducted.

 Also, in the case of the introduction of the polygraphic investigation into the criminal proceedings, the question arises regarding the interrogation of witnesses on the polygraph, since we have competition of the rules of Part 3 of Art. 28 of the Constitution of Ukraine ("No person can be subjected to medical, scientific or other experiments without his or her free consent") and Art. 385 of the Criminal Code of Ukraine (“Refusal of a witness to testify…”). The Constitution provides for the right of a person to refuse any inquiry into it, while the Criminal Code establishes responsibility for refusing to give evidence.

 Summarizing the facts and opinions of scientists and psychologists, it is impossible today to state unequivocally the feasibility of using a polygraph in criminal proceedings, since polygraph indicators are only physiological data about a person at a certain point in time. These physiological indicators result from psychological reactions that are difficult for a polygraph examiner to fully track. In addition, the polygraph examiner may be wrong in interpreting the results of the research, and challenging them is now a difficult process, if at all possible. The rules of the Constitution of Ukraine (Article 28) and the Criminal Code of Ukraine (Article 385) remain controversial. However, a polygraph is a method by which truth can be revealed by knowing the truth of the person's answers.

 Given the increasing trend of polygraph use, there is a high likelihood of using data that was obtained with this device as evidence in criminal proceedings as early as in the near future.