THE POLYGRAPH AN IDIOTS GUIDE Inaugural Conference of the Institute of Forensic Practitioners J. L. Bouwer Haupt South African Polygraph & Investigation

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 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


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%


• POLYGRAPH v OTHER COMMON METHODS OF INVESTIGATION

• ANOLOG STUDY (WIDACKI & HORVATH 1978)

• FINGERPRINT EXPERT - 100%• POLYGRAPH - 95%• HANDWRITING EXPERT-94%• EYEWITNESSES - 64%


EFFECT OF VARIABLES

BUCKLEY & SENESE 1991

RACE,GENDER, AGE, RESIDENCE, INCOME, EDUCATION

REPORT TO US JOINT SECURITY COMMISION DODPI (1994)


VALID POLYGRAPH EXAMINATION

TRAINED EXAMINER POLYGRAPH

INSTRUMENT Cardiovascular Respiratory Electro dermal activity

ACCEPTED TESTING PROCEDURE

SCORING SYSTEM


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)


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)


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


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”


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


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.”


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


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.”


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.”


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.


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)


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)


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)


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.”


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”


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…”


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.”


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.”


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


Individual rights

• CONSTITUTION• ACT 108 OF 1996

• PROTECTS RIGHTS • UNLAWFUL SEARCH AND

SEIZURE • SELF ICRMINATION AND

THE RIGHT TO SILENCE• INVASION OF PRIVACY


Individual Rights

RIGHT TO DETECT DISHONESTY

v COMPROMISING THE RIGHT

OF INDIVIDUALS

• INDIVIDUAL RIGHTS

• INVOLUNTARY POLYGRAPH EXAMINATION

• MAY INFRINGE ON ABOVE MENTIONED RIGHTS (CHRISTIANSON)


Individual Rights

• EMPLOYER, AND SOCIETY HAVE THE RIGHT:

• TO DETECT DISHONESTY

• PROTECT THE RIGHT OF:

• LIFE• PROPERTY AND • ECONOMIC ACTIVITY


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).


RIGHTS v PRIVACY

• CHRISTIANSON REMARKS

• PROTECTION OF PROPERTY v PRIVACY

• EMPLOYER ‘S - NEED TO PROTECT PROPERTY, OVERWEIGHS

• RIGHT TO PRIVACY


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. “


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


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



SELF INCRIMINATION v

LOOSING JOB Court concluded

–Consequence of choice no penalty even if he looses his job.

–Preservation of rights in own hands.



–JUDGE LANDMAN SUBMITTED:

•Various forms of so-called choices can be …tantamount to no choice.”



• CHRISTIANSON’S OPINION

VOLUNTARY NATURE

POLYGRAPH

v

RIGHT TO REMAIN SILENT

–COURTS OBSEVATIONS EQUALLY APPLICABLE



• FAIL/REFUSAL

v

BRAKE IN TRUST RELATION

–“THE RELATIONSHIP IS, SUCH THAT TRUST IS OF THE ESSENCE.”



OPERATIONAL REQUIREMENT

DISMISSAL FOR OPERATIONAL REASONS

MAY BE A MOST EFFECTIVE “SHIELD” IN

THE HANDS OF THE EMPLOYER, (CLL Aug 1998 Vol. 8)



VIEW OF CCMA

Malgas v Stadium Security

Management (1999) 4 LLD 667 (CCMA)

“…EMPLOYEE SHOULD HAVE BEEN DISMISSED FOR OPERATIONAL REQUIREMENTS.”


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”.


• EMPLOYERS RIGHTS• SUSPICION - REQUEST

TO SUBMIT TO A POLYGRAPH EXAM

• SELECTION - EMPLOYMENT IN HIGH RISK AREAS

• EMPLOYEE RIGHTS• REPORT AND RESULTS• VOLUNTARY SIGN

CONSENT


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

QUESTIONS

Thank you

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0829645945

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Documents

THE POLYGRAPH AN IDIOTS GUIDE Inaugural Conference of the Institute of Forensic Practitioners J. L. Bouwer Haupt South African Polygraph & Investigation