Transcript TRUTH VERIFICATION TESTS

THE POLYGRAPH AN
“IDIOTS” GUIDE
Inaugural Conference of the
Institute of Forensic
Practitioners
J. L. Bouwer Haupt
South African Polygraph &
Investigation Services.
CONTENT
•
•
•
•
•
•
•
•
Deception
What is the polygraph
Scientific Principals
Results
Validity and Reliability
Process
Scope of Test Questions
Utilization
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 Changes
Respiratory
Pneumo graph
Physiological Changes
Electro dermal
Galvano graph
Physiological Changes
Cardiovascular
Cardiograph
WHAT IS THE
POLYGRAPH
POLYGRAPH NOT A
PSYCHOLOGICAL TEST
PETUSA 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 Responses
Strongest 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 CASES98%
– 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 innocent
Verify/Corroborate/Refute
statements.
Additional investigative leads
Narrow/focus investigation
In 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 WEIGHT
EXPERT 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
COMPETENCE
GROUNDS 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/ IGNORING
POLYGRAPH EVIDENCE
LABOUR COURT DECISIONS
Magnum Shield Security
v
Commissioner Diale Ntsoane
N.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 ignored
material facts- Polygraph Test
Reviewable irregularity
POLYGRAPH AND THE
LAW IN SOUTH AFRICA
ADMISSIBILITY
Court concluded
“In this case, the arbitrator
Completely ignored the outcome
of the polygraph test in
circumstances where a trained
polygraphist testified at the
arbitration and explained the
results of the polygraph and the
manner in which the test was
conducted. That was a
reviewable 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 crossexamination, presentation of
rebuttal evidence and
argumentation.”
POLYGRAPH AND THE LAW
IN SOUTH AFRICA
WEIGHT
INDUSTRIAL COURT
M. SHINGA and GILBEY
DISTILLERS AND VINTNERS
(PTY) Ltd
Case 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
RELEVANCE
De Bruin & Abrahams v Green Cross
Manufacturers (Pty) Limited
CCMA 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 SILENT
Labour 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 socalled 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 AFRICA
Access 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”
STANDARDS
PROTECTIVE
PROCEDURES
PROSEDURAL
REQUIREMENTS
 CONSENT- VOLUNTARY
EXAM
 FACTUAL ANALYSIS OF
CASE FACTS
 CORRECT
METHODOLOGY AND
VALID TEST QUESTION
TECHNIQUE
 QUESTIONS RELEVANT
STANDARDS
PROTECTIVE
PROCEDURES
PROSEDURAL
REQUIREMENTS
RESULT :
TO EXAMINEE AND
CHANCE TO EXPLAIN
 AUTHORIZED
PERSONS
 VALID POLYGRAPH
INSTRUMENT
 COSISTENT
APPLICATION ACROSS
ALL SUSPECT
 POST EXAMINATION
RELEASE
STANDARDS
PROTECTIVE
PROCEDURES
SUBSTANTIVE
REQUIREMENTS
 Qualified Examiner who
testify to his opinion.
 Forensic psycho physiological
data analyzed and scored.
 Expert Opinion
CONCLUSION
• 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
• 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
QUESTIONS
Thank you
[email protected]
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