the polygraph an idiots guide inaugural conference of the institute of forensic practitioners j. l....
TRANSCRIPT
THE POLYGRAPH AN “IDIOTS” GUIDE
Inaugural Conference of the Institute of Forensic
Practitioners
J. L. Bouwer Haupt
South African Polygraph & Investigation Services.
• Deception• What is the polygraph• Scientific Principals• Results• Validity and Reliability• Process • Scope of Test Questions• Utilization
CONTENT
CONTENT
• Polygraph and the law in South Africa–Admissibility –Weight – Relevance–Individual rights–Employers rights –Privacy and the rights of
others• Protective Procedures• Conclusion
THE POLYGRAPH DETECTION OF
DECEPTION
• DECEPTION• “A DELIBERATE CHOICE TO
MISLEAD A TARGET WITHOUT GIVING ANY NOTIFICATION OF THE INTENT TO DO SO.” EKMAN (1992)
• “A RULER WHO LISTENS TO LIES WILL HAVE CORRUPT OFFICIALS. ” (CEV) PROVERBS 29:12
WHAT IS A POLYGRAPH?
Forensic Investigative Tool
WHAT IS THE POLYGRAPH
Attached to person’s body
WHAT IS THE POLYGRAPH
WHAT DOES IT ALLOW
YOU TO MONITOR?
THE POLYGRAPH ONLY ALLOWS YOU TO MONITOR CERTAIN PHYSIOLOGICAL CHANGES IN THE HUMAN
BODY.
Physiological ChangesRespiratory
Pneumo graph
Physiological Changes Electro dermal
Galvano graph
Physiological Changes Cardiovascular
Cardiograph
WHAT IS THE POLYGRAPH
POLYGRAPH NOT A
PSYCHOLOGICAL TESTPETUSA on behalf of VAN
SCHALKWYK v NATIONAL
TRADING COMPANY (WE15191)
(2000) 21 IJL 2323 (CCMA)
“…in my opinion, makes it clear that polygraph testing cannot be said to fall under s 8 of the Employment Equity Act or under the Health Professions Act…”
SCIENTIFIC PRINCIPALS
Selective Attention
Psychological Set/
Selective Attention (Furchs 1948)
–Stimuli compete for attention
–Focus on the stimuli that poses the biggest threat
–Anti-climax damping
SCIENTIFIC PRINCIPALS
Fear of Detection
Fear of Detection
–Fear: Fight, flight, freeze (Cannon 1952)
–Physiological ResponsesStrongest Response.• Guilty - Relevant Questions• Innocent – Comparison
Questions
RESULTS
• DECEPTION INDICATED (DI)
• NO DECEPTION INDICATED (NDI)
• INCONCLUSIVE
• NO OPINION
VALIDITY AND RELIABILITY
Accuracy
RESEARCH
–RASKIN, HONTS, KIRCHER - 90.5%
–MATTE (1996)- 90%–ABRAMS(1989)- 87%–N ANSLEY (1990)
REAL CASES- 98%–NAS (2003) 71-
99%
VALIDITY AND RELIABILITY
• POLYGRAPH v OTHER COMMON METHODS OF INVESTIGATION
• ANOLOG STUDY (WIDACKI & HORVATH 1978)
• FINGERPRINT EXPERT - 100%• POLYGRAPH - 95%• HANDWRITING EXPERT-94%• EYEWITNESSES - 64%
VALIDITY AND RELIABILITY
EFFECT OF VARIABLES
BUCKLEY & SENESE 1991
RACE,GENDER, AGE, RESIDENCE, INCOME, EDUCATION
REPORT TO US JOINT SECURITY COMMISION DODPI (1994)
VALIDITY AND RELIABILITY
VALID POLYGRAPH EXAMINATION
TRAINED EXAMINER POLYGRAPH
INSTRUMENT Cardiovascular Respiratory Electro dermal activity
ACCEPTED TESTING PROCEDURE
SCORING SYSTEM
VALIDITY AND RELIABILITY
Validity of the test
QUALITY OF TEST AND TESTER
Marylyn Christianson
(CLL Aug 1998 Vol. 8 )
“Only when the quality of the test and the tester can be guaranteed, will it be conceivable that the results of polygraph tests will be admissible in prescribed circumstances by our dispute resolution bodies”
PROCESS
• PRE-TEST
• COLLECTION OF CHARTS
• POST TEST
SCOPE OF TEST QUESTIONS
• No Personal / Intrusive
–Religious believes–Racial matters–Political belief–Affiliations–Sexual preferences
UTILIZATION
• Government Agencies • Private Sector Forensic Technique
Exonerate innocentVerify/Corroborate/Refute
statements.Additional investigative leadsNarrow/focus investigationIn conjunction with- but not
substitute
UTILIZATION
Pro-active measure to lower risk
Pre-employment Screening
Routine Screening
POLYGRAPH AND THE LAW IN SOUTH AFRICA
ADMISSIBILITY
ADMISSIBILITY v WEIGHTEXPERT WITNESS
“AN EXPERT MAY EXPRESS HIS OPINION ON A MATTER WHICH REQUIRES EXPERT KNOWLEDGE AND WHICH
FALLS WITHIN THE SPHERE OF HIS EXPERTISE.”
(SEE SCHMIDT 429)
POLYGRAPH AND THE LAW IN SOUTH AFRICA
ADMISSIBILITY
OPINION EVIDENCE REQUIREMENTS
COMPETENCEGROUNDS UPON WHICH
THE OPINION IS BASED ON.
NOT RELEVANT ONLY TO ADMISSIBILITY,BUT ARE OF SPECIAL
IMPORTANCE IN THE EVALUATION OF THE OPINION ( WILLIAMS 1985)
POLYGRAPH AND THE LAW IN SOUTH AFRICA
ADMISSIBILITY
NOT ADMITTING/ IGNORINGPOLYGRAPH EVIDENCE
LABOUR COURT DECISIONS
Magnum Shield Security v
Commissioner Diale NtsoaneN.O and others.
(Case No: JR2799/04)
Award was reviewed and set aside
POLYGRAPH AND THE LAW IN SOUTH AFRICA
ADMISSIBILITY
Court concluded.
“There was evidence of polygraph test that was led
before the commissioner. The commissioner ignored this
evidence entirely. The result of the polygraph test was that
the respondent was deceptive. That evidence was not
disputed. It was therefore vital for the commissioner to take it into account in deciding if the
offence had been proven”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
ADMISSIBILITY
TRUWORTHS Ltd v
CCMA &OTHERS (2008) 17 LC 1.11.73
Reported: [2008] JOL 22565(LC) Butterworth's Case No. JR 789/07
Arbitrator completely ignoredmaterial facts- Polygraph TestReviewable irregularity
POLYGRAPH AND THE LAW IN SOUTH AFRICA
ADMISSIBILITY
Court concluded
“In this case, the arbitratorCompletely ignored the outcome
of the polygraph test incircumstances where a trained
polygraphist testified at the arbitration and explained the
results of the polygraph and themanner in which the test was
conducted. That was areviewable irregularity, leading
to the review and setting aside of the award.”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
ADMISSIBILITY
INTERPRETATION OF BILL OF RIGHTS
FOREIGN LAW
• s39 (1) WHEN INTERPRETING THE BILL OF RIGHTS, A COURT, TRIBUNAL OR FORUM;
• © MAY CONSIDER FOREIGN LAW
POLYGRAPH AND THE LAW IN SOUTH AFRICA
ADMISSIBILITY Foreign Law
US SUPREME COURT IN THE STATE OF NEW MEXICO Lee v Martinez CS 2003-00026
(Supreme Court No. 27,915)
“However, it would be an abuse of discretion for the district
court … to exclude polygraph results…if the districts court’s
reasons for excluding the evidence are grounded in a
general disbelief in the reliability of polygraph results or a general hostility toward
polygraph evidence.”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
ADMISSIBILITY Foreign Law
The court concluded:Reliable“…, we conclude that the control
question polygraph examination is sufficiently reliable to satisfy Rule 11-702.”
Remedy not exclusion“The remedy for the opponents of
polygraph evidence is not exclusion; the remedy is cross-examination, presentation of rebuttal evidence and argumentation.”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
WEIGHT
INDUSTRIAL COURT
M. SHINGA and GILBEY
DISTILLERS AND VINTNERS
(PTY) LtdCase No.: NHN 11/2/10237
(Unreported Case)
The court were notified that
evidence of an expert nature will
be given.
POLYGRAPH AND THE LAW IN SOUTH AFRICA
WEIGHT
Assess Weight
The Presiding Officer said:
“I proposed therefore to analyze his evidence….in
order to assess what weight, if any, should be accorded
to it” (p39 par. 46)
POLYGRAPH AND THE LAW IN SOUTH AFRICA
WEIGHT
Relevant & Reliable?
“The evidence in the present case pertaining to polygraph must be regarded as one of the most comprehensive accounts on the subject to date… The Court is not asked to regard the results of the said test to be conclusive of the Applicant’s guilt, but rather to find cause to conclude that some relevance and weight can be placed on the said results” (p60 par.81)
POLYGRAPH AND THE LAW IN SOUTH AFRICA
WEIGHT
Differentiate between Suspects
“I accept that some weight should be attached to the polygraph result and that they constitute an objective reason for the Respondent’s decision to differentiate between the three suspected employees” (p72 par.91)
POLYGRAPH AND THE LAW IN SOUTH AFRICA
WEIGHT
Polygraph tilted scale
• “What tilted the scales against the Applicant apart from his mendacity and that of his witness was the outcome of the polygraph examination.”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
WEIGHT
COURT CONCLUDED
“In my view provided the test is administered by a properly trained examiner, for a specific incident such as theft a negative polygraph result prima facie suggest deception and may be used as a supporting fact together with all other evidence”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
WEIGHT
CCMA CASE PETUSA on behalf of VAN
SCHALKWYK v NATIONAL
TRADING COMPANY
The Commissioner remarked:
“..in the criminal case The United
States v Pasado 56F 3d 428 at 434
(5 th Cir 1995) it was held that it was untenable to place a ban on polygraph testing…”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
WEIGHT
The Commissioner accept
examiner as an expert:
“ In the present matter I have come to the conclusion that the examiner’s credentials are impeccable and I have no hesitation in accepting him as an expert witness.”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
WEIGHT
Commissioner concluded.Corroboration
“..there are some independent indicators to support an inference of guilt and that the polygraph test result support that inference to the extent where the guilt of the applicant has been proved on the balance of probabilities.”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
RELEVANCE
QUESTION FORMULATION v
RELEVANCEDe Bruin & Abrahams v Green Cross
Manufacturers (Pty) LimitedCCMA WE2982 Unreported
“An employer cannot say that the trust relationship has broken down on the basis of an employee’s deception, when the company does not know to what extent exactly the deception relates”
No reliance on - evidence because vagueness of the questions
POLYGRAPH AND THE LAW IN SOUTH AFRICA
Individual rights
• CONSTITUTION• ACT 108 OF 1996
• PROTECTS RIGHTS • UNLAWFUL SEARCH AND
SEIZURE • SELF ICRMINATION AND
THE RIGHT TO SILENCE• INVASION OF PRIVACY
POLYGRAPH AND THE LAW IN SOUTH AFRICA
Individual Rights
RIGHT TO DETECT DISHONESTY
v COMPROMISING THE RIGHT
OF INDIVIDUALS
• INDIVIDUAL RIGHTS
• INVOLUNTARY POLYGRAPH EXAMINATION
• MAY INFRINGE ON ABOVE MENTIONED RIGHTS (CHRISTIANSON)
POLYGRAPH AND THE LAW IN SOUTH AFRICA
Individual Rights
• EMPLOYER, AND SOCIETY HAVE THE RIGHT:
• TO DETECT DISHONESTY
• PROTECT THE RIGHT OF:
• LIFE• PROPERTY AND • ECONOMIC ACTIVITY
POLYGRAPH AND THE LAW IN SOUTH AFRICA
RIGHTS v PRIVACY
• PRIVACY v RIGHTS OF OTHERS• HAS TO BE
DEMARCATED WITH RESPECT TO THE RIGHTS OF OTHERS AND THE INTERESTS OF THE COMMUNITY
• (J DE WAAL ET AL : THE BILL OF RIGHTS HANDBOOK (1999).
POLYGRAPH AND THE LAW IN SOUTH AFRICA
RIGHTS v PRIVACY
• CHRISTIANSON REMARKS
• PROTECTION OF PROPERTY v PRIVACY
• EMPLOYER ‘S - NEED TO PROTECT PROPERTY, OVERWEIGHS
• RIGHT TO PRIVACY
POLYGRAPH AND THE LAW IN SOUTH AFRICA
PRIVACY
PRIVACY & FREE WILL v
CONSENT
CCMA OPINION MNCUBE V CASH PAYMASTER
SERVICES (PTY) LTD (1997) KN 1583
“…CONCERNS ABOUT PRIVACY AND FREE WILL, DO NOT ARISE IN THE CASE. “
POLYGRAPH AND THE LAW IN SOUTH AFRICA
PRIVACY
• CONSENT WAIVES RIGHT OF PRIVACY
• IF BY CONSENTING TO TAKE A POLYGRAPH TEST THE EMPLOYEE VOLUNTARILY GIVES UP HIS OR HER RIGHT TO PRIVACY THERE SHOULD BE CONTROLS.
POLYGRAPH AND THE LAW IN SOUTHAFRICA
SELF INCRIMINATION AND RIGHT TO
SILENCE
FAILURE/REFUSUAL
• THE IMPLICATIONS OF FAILURE OR REFUSUAL TO DO A POLYGRAPH EXAMINATION
• THE LABOUR COURT DECISION WHERE AN ACCUSED CHOOSE TO REMAIN SILENT
POLYGRAPH AND THE LAW IN SOUTH AFRICA
SELF INCRIMINATION AND RIGHT TO SILENCE
REMAIN SILENTLabour Court
• DAVIS v TIP N O and OTHERS (1996)
–COURT LOOKED AT:– s35(3)(h) when
applicant choose not to testify in disciplinary hearing
POLYGRAPH AND THE LAW IN SOUTH AFRICA
SELF INCRIMINATION AND RIGHT TO SILENCE
SELF INCRIMINATION v
LOOSING JOB Court concluded
–Consequence of choice no penalty even if he looses his job.
–Preservation of rights in own hands.
POLYGRAPH AND THE LAW IN SOUTH AFRICA
SELF INCRIMINATION AND RIGHT TO SILENCE
–JUDGE LANDMAN SUBMITTED:
•Various forms of so-called choices can be …tantamount to no choice.”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
SELF INCRIMINATION AND RIGHT TO SILENCE
• CHRISTIANSON’S OPINION
VOLUNTARY NATURE
POLYGRAPH
v
RIGHT TO REMAIN SILENT
–COURTS OBSEVATIONS EQUALLY APPLICABLE
POLYGRAPH AND THE LAW IN SOUTH AFRICA
SELF INCRIMINATION AND RIGHT TO SILENCE
• FAIL/REFUSAL
v
BRAKE IN TRUST RELATION
–“THE RELATIONSHIP IS, SUCH THAT TRUST IS OF THE ESSENCE.”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
SELF INCRIMINATION AND RIGHT TO SILENCE
OPERATIONAL REQUIREMENT
DISMISSAL FOR OPERATIONAL REASONS
MAY BE A MOST EFFECTIVE “SHIELD” IN
THE HANDS OF THE EMPLOYER, (CLL Aug 1998 Vol. 8)
POLYGRAPH AND THE LAW IN SOUTH AFRICA
SELF INCRIMINATION AND RIGHT TO SILENCE
VIEW OF CCMA
Malgas v Stadium Security
Management (1999) 4 LLD 667 (CCMA)
“…EMPLOYEE SHOULD HAVE BEEN DISMISSED FOR OPERATIONAL REQUIREMENTS.”
POLYGRAPH AND THE LAW IN SOUTH AFRICA
Access to Information
ACCESS TO INFORMATION • 32 (1) “EVERYONE HAS THE
RIGHT OF ACCESS TO -
• (b) ANY INFORMATION THAT IS HELD BY ANOTHER PERSON AND THAT IS REQUIRED FOR THE EXERCISE OR PROTECTION OF ANY RIGHTS”.
POLYGRAPH AND THE LAW IN SOUTH AFRICA
• EMPLOYERS RIGHTS• SUSPICION - REQUEST
TO SUBMIT TO A POLYGRAPH EXAM
• SELECTION - EMPLOYMENT IN HIGH RISK AREAS
• EMPLOYEE RIGHTS• REPORT AND RESULTS• VOLUNTARY SIGN
CONSENT
POLYGRAPH AND THE LAW IN SOUTH AFRICA
Access to information
CCMA CASE• SACCAWU obo CHAUKE/
MASS DISCOUNTERS
[2004] 6 BALR 767. Case No. GA 3414-03
“Polygraph test results admissible as evidence against employee where corroborated
by other evidence.”
However: Dismissal unfair –
failed to follow fair procedure
POLYGRAPH AND THE LAW IN SOUTH AFRICAAccess to information
PROCEDURALLY UNFAIR
EMPLOYER REFUSED TO GIVE THE EMPLOYEE THE
EXAMINATION REPORT
“Polygraph reports is a form of expert evidence so Chauke
was entitled to a copy of such report in order to prepare a
response”
STANDARDSPROTECTIVE
PROCEDURES
PROSEDURAL REQUIREMENTS CONSENT- VOLUNTARY
EXAM FACTUAL ANALYSIS OF
CASE FACTS CORRECT
METHODOLOGY AND VALID TEST QUESTION TECHNIQUE
QUESTIONS RELEVANT
STANDARDSPROTECTIVE
PROCEDURESPROSEDURAL
REQUIREMENTSRESULT :
TO EXAMINEE AND CHANCE TO EXPLAIN
AUTHORIZED PERSONS
VALID POLYGRAPH INSTRUMENT
COSISTENT APPLICATION ACROSS ALL SUSPECT
POST EXAMINATION RELEASE
STANDARDSPROTECTIVE
PROCEDURES
SUBSTANTIVE REQUIREMENTS
Qualified Examiner who testify to his opinion.
Forensic psycho physiological data analyzed and scored.
Expert Opinion
• SCIENCE IN ALL ITS DIVISIONS IS FILLED WITH UNCERTAINTY.
• SCIENTIFIC DECISION MAKING IS NOT BASED ON ABSOLUTES BUT RATHER ON STATISTICAL PROBABILITIES THAT BEING CORRECT IS GREATER THAN CHANCE ALONE.
CONCLUSION
CONCLUSION
• BASED ON STATISTICAL PROBABILITIES AND ACCEPTABLE ERROR RATES A POLYGRAPH EXAM CODUCTED ACCORDING TO THE CORRECT PROCEDURES IS A VERY RELIABLE AND LEGITIMATE SCIENTIFIC DICIPLINE WITH A DEFINITE EVIDENTIARY VALUE