Narco Analysis , Polygraph - Right or Wrong ?

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Editor: Nagaraj.M.R.. vol.6.issue.20...15/05/10

 

3rd Degree Torture by Police in India

http://sites.google.com/site/sosevoiceforjustice/3rd-degree-torture-by-police ,

 

 

 


Editorial : NARCO-ANALYSIS – RIGHT OR WRONG?


The advances in science must be used by the police to find out the
truth, to solve the mysteries of the crimes. It is the better option
for both investigation / interrogation than the classical
interrogation method involving third degree torture, where in the
accused breaks -down & blurts out the truth, usually, in most of the
cases innocents unable to bear the torture confesses to the crimes
they have not at all committed. The scientific tools of interrogation
namely Narco-analysis . Brain mapping & polygraph Tests must be made
mandatory for interrogation. The perpetrators of third degree torture
i.e. Police Military personnel must be punished severelly. Not just
on innocents, even on proven criminals police have no rights to
torture. It is grossly inhuman & illegal.


At present, there is certain bias in the usage of scientific
interrogation tools:-


1) Generally everybody is afraid of police & their corrupt practices.
Even innocent persons are frightened of false fix-ups & third degree
torture by police. This fear shows up in their heightened anxiety
level, changes in their blood pressure, respiration, heart-beat etc.,
There are chances of misinterpreting this as the "Fear of a criminal
of being caught"


2) These scientific tools are in the hands of police only. Therefore
it is biased towards the police or prosecution in a case. Forensic
science labs where these scientific interrogations are conducted are
under the control of Police department . Fundamental objective of
police is to prove their case, the prosecutions stand point rather
than finding out the truth. Sometimes, the stand points of
prosecution police are influenced by caste, political & monetary
considerations. This bias reflects in the preparation of
the "Questionnaire by the Interrogator" The interrogator if he wants
to bring out a negative image of the accused before the court, he
prepares the questionnaire such that only negative issues come out as
the answers. If the accused has got political patronage & has paid
hefty bribe to the police questionnaire is prepared such as to bring
out a positive image, to highlight innocent image of the accused.
Leaving out all other related questions, which brings out truth, a
negative image of the accused. The police are the one who decide the
fate, destiny of the accused.


3) Every human being has two personalities with in his sub -
conscious mind one personality is evil, selfish & craves for all
material pleasures. The other personality is good , humane & sociable
one. Whenever an issue comes up before a human being , whenever a
human being sees, reads or hears a subject two opinions are
formulated about it by him. One by his evil, selfish ego the other by
his good, humane self .A perfect human being, a social being is one
who controls his mind, contains the evil influences of his selfish
self and follows the guidance of his good self. This readily
expresses itself through good humane social actions. A criminal is
one who does not have control over his mind and acts according to the
evil guidance of the selfish self.


There are chances of mis-interpretation during scientific
interrogation . If you expose only evil self you will get a negative
image or else if you expose only the good self you will get a
positive image of the accused. For a balanced view, you have to see
the both evil-self & good self of the accused together with his past
& present actions.


4) At present only it is the prosecution who can use these scientific
interrogation facilities, but not the defence.
In the fake stamp paper scam during Narco Analysis , king pin Mr.
Karim Lala Telgi blurted out the truth - gave out the names of his
VVIP accomplices, Police accomplices, his business details, so far so
good.

 


Hereby I do request you to order both the union government & all
state governments :-


1) To keep the forensic science laboratories under the control of
autonomous bodies like National Human Rights Commission.


2) To make the scientific facilities of interrogation available for
both the prosecution & the defence of course, for a fee.


3) To enact legislation to subject the corrupt investigating officer,
corrupt public prosecutor, corrupt presiding judge of the case, etc.,
to scientific interrogations, by both the defence & prosecution.


4) To factor in the allowances for the natural fear for police (for
their corrupt, ruthless, devil face)


5) To create an unbiased impartial atmosphere free of fear or favour
to conduct the scientific interrogation.


6) To enact guidelines for scientific interrogation for framing
questions to bring out both good & evil self in the sub conscious to
have a balanced view of the man under question together with his past
& present actions .


7) To make it mandatory for all cases including VVIPs .

 


In various cases scams, involving VVIPs cases drag on for years.
Public money is wasted through waste of deliberations of the house (
Parliament, Legislative Assembly), Waste through constitution of
Parliamentary committees , Judicial commissions, why not all those
VVIPs accused of involvement in scams subjected to tests like Narco
analysis, poly graph, Brain finger printing etc., So that L K Advani
& Murali Manohar Joshi will tell about Babri Masjid demolition, Sonia
gandhi family will tell about Bofors, George Fernandese about
Tehelka, Raja about  telecom tenders, Lallo Prasad Yadav about fodder scam. The
scam tainted VVIP list goes on. Why not these VVIPs are subjected to
scientific interrogation with unbiased questionnaire?

 

Jai Hind. Vande Mataram.

 

Your’s sincerely ,

 

Nagaraj.M.R.

 

 

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FORENSIC SCIENCE LABORATORY   BANGALORE  INDIA

 

 

BANGALORE: Once the first choice for narcoanalysis tests, the Forensic Science Laboratory in Bangalore is now creaking under the burden of 300 pending requisitions and the absence of an expert to conduct them.

So far, Bangalore FSL has conducted over 900 narcoanalysis tests, which were mostly ordered by various courts across the country.

These have yielded some positive results and in at least 12 judgments of various high courts referred to the FSL narcoanalysis test reports.

In a recent judgment in the Ajay Kumar Pal versus State of Jharkhand on March 16, the Supreme Court held that the results of polygraph, narcoanalysis, BEOSP/ brain mapping and fingerprinting have been based as evidence to deduce the term 'the case of rarest of rare' to uphold the death sentence.

The services of the Bangalore FSL have been roped in to check Simi activists in Karnataka, blasts on Mumbai trains, in Hyderabad and Malegaon. From Abdul Kareem Telgi to underworld don Abu Salem and suspects in the Arushi murder case which stunned Delhi and ViniVinc Sastry are some of the high-profile cases in which narcoanalysis was done by Bangalore FSL.

However, things began going wrong during the trial of the Sister Abhaya case in Kerala. The CBI charged that the narcoanalysis report was tampered with and fingers began to be pointed at FSL officials.
FSL Assistant Director Dr S Malini, who used to conduct narcoanalysis, also ran into trouble over her date of birth in certificates as well as the procedure by which she was appointed. She was discharged the duty and the post has been vacant since then.

FSL director Dr Mohan told TOI that the FSL would get consent from the accused before conducting the tests. "We seek court permission and follow the guidelines laid down by the National Human Rights Commission also. However, we do not have experts now and therefore don't conduct these tests," he added.

 

 

Fake documents: Govt sacks FSL's Dr Malini

 

Bangalore: Bowing to opposition demand in the legislative council, the state government, on Wednesday, sacked Dr S Malini, assistant director of the Forensic Science Laboratory here, on charges of submitting fake documents that furnished wrong information about her caste, and educational qualification for joining the service.

Janata Dal (Seculer) leader MC Nanaiah, who raised the issue in the council, demanded the government to immediately sack Dr Malini from service.

He stated that Malini had not only submitted false caste records, but also fakecertificates of educational qualification, including SSLC marks card.

She is also accused of tampering with documents and brain mapping reports in Sister Abhaya murder case of Kerala.

Nanaiah even drew home minister VS Acharya's attention to a December 26, 2008 letter written by former director-general of police R Sri Kumar to the principal secretary, home department, to discharge Dr Malini from service.

Butno action was taken as Dr Malini was protected by influential persons in the ruling BJP government, Nanaiah alleged.

In his letter, the former DGP had accused Dr Malini of leaking narco test results conducted on Al Badr extremist Fahad Ali to the media. He also accused her of professional impropriety.

However, a probe by the Corps of Detectives could not establish any impropriety on the part of Dr Malini.

Earlier, questions were also raised on her recruitment through a special drive.

 

 

 

CBI To grill Dr.Malini of FSL Bangalore

 

Kochi, Friday, January 30, 2009: The CBI sleuths have informed the Kerala High Cout that they will once again interrogate Dr.S. Malini Assistant Director of the Forensic Science Laboratory (FSL), Bangalore once again to clear the air regarding the narco –analysis CDs.

Earlier, the investigating agency had alleged that narco analysis expert, Dr Malini who conducted narco test on three persons Fr Thomas Kutty, Fr Joseph Puttrukail and Sister Steffi in October 2007 had tampered with the CDs containing the video graphed procedure of the tests conducted on suspects in Sister Abhaya murder case. The agency in its submission said that she had tampered with the CDs twice on October 22, 2007 and on October 24, 2007. The agency said that a CD given by the FSL, Bangalore had three reports of which two were nowhere connected with Sister Abhaya’s murder. However the Court on August 5, 2008 had communicated to Director FSL, Bangalore to send the CDs of the entire procedure to Satheesachandran, Registrar General, Kerala High Court.

However the Court on August 5, 2008 had communicated to Director FSL, Bangalore to send the CDs of the entire procedure to Satheesachandran, Registrar General, Kerala High Court after which the Court had cleared Dr Malini once again accusing the CBI of misleading the murder case.

 

 

Manual Scavenging: Must Be Eradicated Right Away

By Ram Puniyani

Indian society is riddled with many evil practices, some of which tantamount to atrocity on one or other section of the dalit/deprived sections of society. One such atrocity is the manual scavenging; the removal of human excreta by humans, with the minimum aid of brooms, metal scarpers and buckets. This practice was officially supposed to have been banned in 1993 by the Government of India. Official lapses and apathy apart, the surveys by the activists working against this practice show that even now over 14 lakhs of scavengers are still suffering ignominy and nearly 95% of these workers are women. These scavengers are the untouchables section of dalits, who have been trapped in this occupation as a birth based work. The States have not taken the act of abolition of this practice seriously and even till 1999-2000 many a States had not notified the act. It is in this light that the social action group Safai Karmachari Andolan has given a call for abolition of this atrocity by the end of 2010.

The manual scavenging is an offshoot of the untouchability practiced in India. Many feudal societies have seen the birth based hierarchy of caste but the Indian caste system has been legitimized through Holy Scriptures to make it a religious phenomenon. Many a factors have contributed to emergence of caste; Race, class and religion. Currently the race theory does not find much favor with the serious scholars of caste. The major contributing factors have been the economic and religious. In his famous phrase Ambedkar points out that “caste is not a division of labor; it is a division of laborers”. He puts more emphasis on the ideological and religious factors. In his analysis these factors are interwoven as civilizational factors which influenced and resulted in social changes leading to formation of caste system.

The evolution of caste society was a slow process. Its continuance was secured by making it hereditary. The primitive taboo on eating together and intermarriage became caste law, which in turn led to marriage limits and elaborate rules of endogamy and exogamy. The continuance of caste system depended on vast network of sub-castes, which were connected with occupations. This sub-caste – jati – came to have more relevance and became the basis of functioning of Hindu society. As caste became hereditary with close connection between occupation and sub-caste, it resulted in an automatic check on individual moving up in the hierarchy of castes

Untouchablity is the outcome of this caste system and manual scavenging is the subhuman expression of the same, that being amongst the worst of atrocities perpetrated by the upper caste on the low castes. This is the key concept inherent in purity-pollution, and rebirth theories which were used to enslave the low caste and keep them tied to the subhuman occupation. Khalid Akhtar (Hardnews Media, March 2008) points out that the earliest references to it are found in Narada Samhita and Vajasaneyi Samhita. In Narada Samhita one of the 15 duties listed for untouchables, one is the removal of human excreta. In Vajasaneyi Samhita, Chandalas are referred to as slaves engaged in the disposal of human excreta. Even other dalits look down upon them and all the avenue of social interaction in any form were denied to them.

Excavations at Lotha in Gujarat show that Harappan civilization did have water based sanitation system. The toilets were connected by drains and had manholes and chambers. With the decline of Harappan civilization this technology went into oblivion.

The system of manual scavenging continued in medieval times as well. While the Muslim kings did introduce different techniques at places. As such the communal politics, as is its wont, is trying to propagate that since the Muslims used Burqua, women could not go out to jungles, they introduced manual scavenging. This is another way of putting the blame of internal problems to external source. This is far from truth. Observation and research into the Mughal forts’ sanitation system shows that they had small outlets in the bathing rooms of Mughal forts which were used as toilets. The waste from these toilets was carried by gravitational force to the ramparts with the help of water. This technique has been seen in the Red Fort in Delhi, in the palaces of Rajasthan, in Hampi, Karnataka and in Thiruvananthapuram, Kerala.

The British did claim that they have come here, carrying the “White Man’s Burden” of civilizing the East, but as far as retrograde social practices were concerned they were unconcerned about those. In the case of manual scavenging they put their seal of approval on this by systematizing it and creating the posts of scavengers in army, railways, municipalities and big towns. Barring few places they did not put the sewer lines in most of the places, as they observed that already the system of scavenging is in place. Due to industrial changes, end of craftsmanship and pauperization of a section of society, some of them forced to join in this work.

Ambedkars’ rebellion against caste and his prescription on ‘Annihilation of caste’ and Mahatma Gandhi’s efforts to eradicate untouchabilty, experiments with new designs of toilets, had a minimal effect on the total social situation, as the social transformation has been painfully slow. After partition the untouchables from Pakistan were not permitted to come to India and Indian Government did not try much for the safe passage of this group to India. And here the situations continued as it has been due to which the life was a total humiliation for this section of society persisted. During last many decades the pressure of the social movements is forcing the State authorities to abolish this practice and rehabilitate the scavengers. As usual the State response has been half baked and there is a lack of effectivity in the same. The step of the social movements to do all, advocacy, campaign and other pressures, to ensure that this practice is put to
rest is very significant.

One knows that the popular opinion and efforts of all sensitive people to end this are needed at this point of time to remove this blot on Indian society, irrespective of its sanction by the Holy Scriptures and traditional practices. Enough is enough, this atrocity on a section of our society has to be stopped forthwith, they need to be rahabilitated to the life of dignity, come what may.

 

 

 

Narcoanalysis and some hard facts

SRIRAM LAKSHMAN

Narcoanalysis is being mainstreamed into investigations and court hearings in India. This raises grave scientific and ethical questions.

BY SPECIAL ARRANGEMENT

Narcoanalysis is conducted in a hospital in the presence of a physician and an anaesthetist who administers the barbiturate. A clinical psychologist questions the suspect. Here, a suspect in a 2004 murder case in Bangalore is being "narcoanalysed". The court acquitted her as narcoanalysis could be used only for investigation and not to convict suspects.

NARCOANALYSIS has become an increasingly, perhaps alarmingly, common term in India. It refers to the process of psychotherapy conducted on a subject by inducing a sleep-like state with the aid of barbiturates or other drugs. In a spate of high-profile cases, such as those of the Nithari killers and the Mumbai train blasts, suspects have been whisked away to undergo an interview, drugged with the barbiturate sodium pentothal.

This practice has also garnered support from certain State governments as well as the judiciary. Politicians have fallen into the habit of hurling the term `narcoanalysis' at each other. In 2006, Karnataka Congress leader H. Vishwanath suggested that Chief Minister H.D. Kumaraswamy and his colleagues undergo narcoanalysis in the Chenamma Trust bribery case. The Home Ministry's forensic science directorate has yet to withdraw a controversial manual on best practices in narcoanalysis in which it states that facilities for narcoanalysis need to be expanded. There is also talk of the National Institute of Mental Health and Neurosciences (NIMHANS) in Bangalore working with the Gandhinagar Forensic Science Laboratory (FSL) to train personnel in this technique. It is not surprising then that there are about 300 people in the narcoanalysis queue at the FSL, Bangalore, alone.

It would appear that the narcoanalysis beast has acquired a life of its own. It is increasingly knocking at the doors of courts and finding ready acceptance as a device to get at the truth during police investigations, though its scientific basis and value are under strong challenge. It is for this reason that the scientific, legal, and evidentiary issues relevant to the narcoanalysis debate need to be discussed critically.

Narcoanalysis is rarely used for therapeutic purposes today. The reliability of the practice has been questioned by leading psychiatric and forensic experts. Dr. P. Chandra Sekharan, the highly regarded former Director of the Forensic Sciences Department of Tamil Nadu, has characterised the practice as an unscientific, third-degree method of investigation. Nevertheless, sections of the police in India and those connected with investigative agencies consider it the golden ticket to solving difficult cases.

Far from being novel, truth serums have been in use since the early part of the 20th century. The use of the drug scopolamine for criminal narcoanalysis was first reported in 1922. Barbiturates, which have been in use since the beginning of the last century, were being used in psychotherapy for narcoanalysis by 1930 along with other methods of therapy. During and after the War years, United States armed forces and intelligence agencies continued to experiment with truth drugs. The Central Intelligence Agency (CIA) has admitted to using these as part of its interrogation tactics, and a declassified CIA interrogation manual does concede that while truth drugs can be useful in overcoming resistance not dissolved by other methods, the actual content of what comes out during the interrogation can be "psychotic manifestations... hallucinations, illusions, delusions or disorientation".

At the 1977 U.S. Senate hearings on its secret mind-control project, the CIA acknowledged that "no such magic brew as the popular notion of truth serum exists".

It also said that even under the best conditions, the barbiturates would elicit an output contaminated by deception, fantasy, garbled speech, and so on. Studies have shown that persons who make truthful confessions are those who were likely to confess had interrogators persisted in using regular methods, and that persons who lie can continue to manifest a lie even under the influence of a so-called truth serum. In The Rape of the Mind, author and physician Joost Merloo says that the investigator can also induce and communicate his own thoughts and feelings to the suspect.

Scientific literature indicates that if narcoanalysis has any extra-therapeutic uses, it may be in making a suspect feel that he has revealed more than he actually did. With repeated questioning, it may be possible to reduce ambiguities although these cannot be eliminated.

Ban in the U.S.

T.L. PRABHAKAR

Abdul Karim Telgi, the kingpin of the stamp paper scam, being brought to a Bangalore court in 2003. Telgi underwent narcoanalysis in Bangalore.

In 1989, the New Jersey Supreme Court (State v. Pitts) prohibited the use of sodium amytal narcoanalysis because the results of the interview were not considered scientifically reliable, although there was some use to the interviews ("Educing Information" by National Defence Intelligence College). The court opined that subjects are susceptible to filling in gaps in stories with fabricated detail (hyperamnesia), or believing in false events (memory hardening), and hypnotic recall, where thoughts of non-existent events become embedded in the memory. ("Gaps to fill", Frontline; October 20, 2006).

Scientific scepticism and the absence of controlled studies have not deterred Indian investigating agencies from running to the FSL in Gandhinagar or, more likely, Bangalore. FSL Bangalore is the de facto hub for narcoanalysis for various police departments across the country. Narcoanalysis is done using sodium pentothal, in conjunction with three other tests - psychological profiling, polygraph (`lie detector') tests, and brain mapping. Polygraph tests, which one can learn to `pass' or `fail', are used for screening and confirmation purposes only. Brain mapping, a premature if promising technique not entirely free from controversy itself, indicates whether a subject's brain stores experiential knowledge about a certain object. Narcoanalysis is used when investigators need oral elicitations from a suspect. For instance, if brain mapping indicates that the suspect stores information about a blue getaway car allegedly used in the crime, then narcoanalysis, according to the FSL, Bangalore, is used to provide information such as the number of the car, where it is parked, and so on.

Narcoanalysis is usually conducted at Victoria Hospital, Bangalore. In addition to FSL psychologist Dr. S. Malini, who questions the suspect, there is an anaesthetist who administers the drugs and a physician who certifies the subject's fitness for the test. The psychologist also gathers and collates information such as first information reports (FIRs), autopsy reports, and biographical data when preparing for the test. The entire procedure is video-recorded and the subject usually signs a consent form.

Dr. B.M. Mohan, Director of FSL, Bangalore, attributes a 96 to 97 per cent total success rate to narcoanalysis. Included in the definition of total success rate is the discovery of information that either triggers a relevant section of the law or may be cross-verified with other tests (such as brain mapping). Assessments are aided by questionnaires handed out to investigating officers. For instance, if the suspect speaks about a gun hidden in a coconut grove, and this leads the police to recovering the weapon (which is admissible as evidence), it would count towards the success rate. Additionally, if someone mentions a blue car and this is recognised as being stored in the suspect's brain using brain mapping, that too would count towards the total success rate.

G.P. SAMPATH KUMAR

Abu Salem (right), one of the accused in the 1993 Mumbai serial bomb blasts case and a close associate of the underworld don Dawood Ibrahim, after a narcoanalysis test at Bowring Hospital, Bangalore, in December 2005.

The abundance of scientific literature and forensic and psychiatric opinions on narcoanalysis does not shake Dr. Mohan's claims about the reliability of the practice because he says he has the data from some 300 cases to prove his contentions. Findings that point to the unreliability of narcoanalysis, according to Dr. Mohan, are usually based on studies of scopolamine and sodium amytal and are not applicable to sodium pentothal, which is used by the Indian laboratories. "Many people say there are fantasies in the narco. I totally disagree because they do not know the pharmacokinetics of pentothal sodium," he says, adding that during narcoanalysis the tendency is to sleep if not questioned, rather than hallucinating or fantasising.

There are two problems with this argument. Using sodium pentothal is not a new advance in narcoanalysis. Sodium pentothal was used for several decades in psychotherapy, according to Dr. C.R. Chandrashekhar, Deputy Medical Superintendent and Professor of Psychiatry for almost 30 years at NIMHANS. "Thiopental sodium will not make him [the patient] tell everything that is inside him. There is no guarantee that he will tell the truth," he says. The psychological fraternity around the world has consequently stopped using pentothal in all but the rarest cases, and if it is used, it is always with the consent of the patient.

Dr. Mohan's contention that it is difficult to manifest fantasies in narcoanalysis is also open to debate. False memory is an extremely well-researched area, according to Dr. Chittaranjan Andrade, a Professor of Psychopharmacology at NIMHANS, with at least 25 years of experience. "Even a person who is fully conscious can firmly believe in something that has not happened. There is a lot of research done on this subject," says Dr. Andrade.

Psychiatrists hold that some 50 per cent of all individuals are suggestible even while fully conscious, meaning they can be made to believe events that never actually happened. Therefore, while patients under narcoanalysis may find it difficult to lie consciously depending on the depth of the narcoanalysis, they can certainly say things that are on the surface of their minds. What a person says in a sedated state depends on a lot of factors, including their personality, how awake they are, how strongly they want to deny certain facts, and so on. "Under pentothal narcoanalysis, when inhibitions are lowered, a lot of the unconscious mind of the patient may come to the fore. The patient may say things that he wished were true and not that were necessarily true," says Dr. Andrade.

Explaining the case of a suspect who is repeatedly accused of a crime during regular interrogation, Dr. Andrade says, "The same thing goes on during the narcoanalysis. He [the suspect] remembers `you've done this, you've done this'. He says, `I have done that.'"

When science has outpaced the development of law or at` least the layperson's understanding of it, there are unavoidable complexities regarding what can be admitted as evidence in court. In the U.S. , where science often interfaces uncomfortably with the law, the Supreme Court offered four criteria, part of the Daubert Standard (1993), by which to judge the credibility of a scientific principle held by a minority of practitioners: hypothesis testing; peer review and publication; knowledge of error rates; and acceptability in the general scientific community.

We must give narcoanalysis its due and grant that it has provided valuable leads to the police in some instances. However, one swallow, or even many swallows in this case, does not a summer make. It is logically consistent for even a pseudo-science to produce reliable outcomes in particular cases. The overall reliability and science behind the practice can only be determined after statistical analysis of a sufficiently large sample.

Legal Aspects

The irony that we face in India is that the science has not leapfrogged the courts by any stretch of imagination. The Bangalore research results and methods have been neither peer-reviewed nor published. Regarding publication of the data, Mohan says he will go public with the FSL data in three to four months (from March 2007), and is willing to debate its implications at international forums. "We have secured convictions, we have secured cross-verification and we have stood through the challenges of the defence," he says. Asked how he could go against scientific practice, by calling data scientific when they have yet to be proved so, Dr. Mohan says, "Otherwise with what courage do you go to the court?" He adds that given the nature of narcoanalysis, it is not possible to get volunteers to facilitate controlled studies. Studies based on some 300-odd criminal investigations are unlikely to consist of controlled experimental data, and the feedback that goes into defining the success of the analysis is in part provided by police questionnaires. Here lurks a conflict of interest.



Suspected terrorist Imran alias Bilal being taken to Bowring Hospital, Bangalore, for a second narcoanalysis test, in January 2007.

There are other significant legal aspects to the narcoanalysis debate. In a 2006 judgment (Dinesh Dalmia v. State), the Madras High Court held that subjecting an accused to narcoanalysis is not tantamount to testimony by compulsion. The court said about the accused: "He may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary." There are two fallacies in this reasoning. First, if narcoanalysis is all that it is made out to be by the Bangalore FSL, the accused will involuntarily answer questions posed to him during the interview. The second fallacy is that it is incorrect to say that the accused is merely taken to the laboratory against his will. He is then injected with substances. The breaking of one's silence at the time it is broken is always technically `voluntary'. Similarly, it can be argued that after being subject to electric shocks, a subject `quite voluntarily' divulges information. But the act or threat of violence is where the element of coercion is housed. In narcoanalysis, the drug contained in the syringe is the element of compulsion. The rest is technically voluntary.

In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: "No person accused of any offence shall be compelled to be a witness against himself." Statements made under narcoanalysis are not admissible in evidence. However, recoveries resulting from such drugged interviews are admissible as corroborative evidence. This is, arguably, a roundabout way of subverting the right to silence - acquiring the information on where to find the weapon from the subject when, in his right senses, he would not turn witness against himself.

Arguments have been made that narcoanalysis constitutes mental torture. It works by inhibiting the nervous system and thus lowering the subject's inhibitions. It is not difficult to interpret this as a physical violation of an individual's mind-space.

The Bombay train blasts case, the Nithari killers case, and the "beer killer" case in Mumbai (2007) are just a few examples of recent cases that involved narcoanalysis. The sources of demand for this practice are the State police departments. The decision to conduct narcoanalysis is usually made by the Superintendent of Police or the Deputy Inspector-General handling a case. A high-ranking official in the Karnataka Police told Frontline that the Police Departments in India had poor skills when it came to collection, collation and presentation of evidence before the courts. "Investigative skills at the grassroots are dwindling in India," he said. Consequently, when there is enormous pressure on a police department to solve a case, sending suspects to narcoanalysis not only buys time but also gives the impression that something concrete has been done about the case.

This is likely what happened in the Nithari case, where the chief accused, Moninder Singh Pandher, and his domestic help, Surender Koli, were sent to Gandhinagar for narcoanalysis in January 2007, according to a reliable source. Often these decisions are backed up by the genuine belief in the "Bangalore Phenomenon". Bangalore, perceived to be the science hub of India, is mistakenly attributed with being able to use scientific tools to solve any and all investigations.

There are, however, sections of those connected to investigating agencies who feel there is a legitimate case for narcoanalysis. These cases would include the Jessica Lal and Best Bakery investigations where witnesses turned hostile or rape cases where issues of consent are being debated, according to Dr. M.S. Rao, Director and Chief Forensic Scientist at the Directorate of Forensic Sciences, the Home Ministry's forensic science unit.



Surender Koli, main accused in the Nithari case, coming out from a forensic science laboratory in Gandhinagar in January 2007 after narcoanalysis.

With the Bombay High Court ruling permitting narcoanalysis, its use should be encouraged in grave offences, writes M. Sivananda Reddy, Superindent of Police for Cyber Crimes at Criminal Investigation Department (CID), Andhra Pradesh. Though he cautions against the abuse of narcoanalysis after extensively acknowledging its many shortcomings, Reddy says that using drugs in investigation is of particular use when the investigating officer is hard pressed for time or working to disrupt imminent plots including terrorist acts.

If this line of argumentation sounds familiar, it is probably because it is as old as controversial investigative methods themselves. The argument has also cropped up frequently in the media after the 9/11 attacks in Alan Dershowitz's ticking-bomb terrorist case, where the Harvard Law School professor argues for legitimising torture in select cases, such as when there is a hypothetical bomb waiting to explode. There are many arguments against the selective use of normally banned cruel practices. Authorities are likely to abuse the power to decide which situations will warrant such exceptions, even when such extraordinary situations are explicitly laid out by law. It will be difficult to find a fool-proof way to determine which suspect is concealing information about a hypothetical bomb. It will often be impossible to know if there is a bomb ticking in the first place. These questions of discretion aside, when a country claims to be committed to human rights and against torture, one may ask if there can ever be a situation that warrants a deviation from its commitment to such principles.

Proponents of narcoanalysis have also argued that the U.S. has secretly resumed truth serum interviews. After 9/11, a Department of Justice Memorandum to the White House discussed options of using truth serums. Additionally, Gerald Posner's book, Why America Slept, alleges that the U.S. covertly allows its intelligence agencies to conduct sodium pentothal interviews. Nevertheless, these instances are behind the eyes of the law and the public, unlike the Indian case. American interrogation techniques are far from being the gold standard, having earned the ire of the international community and large sections of the U.S. population and legislature.

While the expert studies and court opinions available internationally have granted that there may be some use in narcoanalysis, the overwhelming evidence is that narcoanalysis is by no means a reliable science. In the face of a near-consensus internationally, one or two Indian forensic laboratories claim to have new evidence and studies claiming remarkable success rates for the process. It is now incumbent on them to prove their claim that narcoanalysis is backed by sound science. In the absence of proof, narcoanalysis must necessarily be suspended, especially given its ethical and human rights implications.

State governments need to work with the central authorities to enhance the investigative capabilities of their police departments. The Indian criminal justice system has an alarmingly low conviction rate and the situation needs to be rectified with emphasis on real science and state-of-the-art technology. According to one law enforcement official, this starts with training the investigating officer at the constabulary level in basic investigative sciences. Usually it is the investigating officer who takes charge of an investigation, asking the forensic scientist to accompany him to the crime site to collect certain evidence and provide expert opinion on certain aspects of the crime, which the forensic scientist has the expertise to do. Instead, the police now hand over one of the most crucial parts of the investigation to a clinical psychologist conducting narcoanalysis. Interrogation is an art as well as a science. It takes enormous amounts of training and patience - skills evidently lacking in much of the police force and increasingly outsourced to Bangalore.

The Central government must make a clear policy stand on narcoanalysis - because what is at stake is India's commitment to individual freedoms and a clean criminal justice system. In a positive development, the Supreme Court, in November 2006, ordered a stay on a metropolitan judge's order to conduct narcoanalysis on K. Venkateswara Rao, in the Krushi Cooperative Urban Bank case. Rao refused to sign a consent form, and to its credit, the FSL, Gandhinagar, refused to conduct the test without the signed consent form. The Supreme Court decision on the case is awaited and will have a significant bearing on the use of narcoanalysis in India.

 

Supreme Court makes narco, lie detector, brain mapping tests illegal

 

 

New Delhi: In a major setback to investigating agencies, the Supreme Court (SC) on Wednesday ruled compulsory brain mapping, narco-analysis and lie detector tests unconstitutional as they violate individual rights.

“We hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty,” a bench of chief justice KG Balakrishnan, and justices RV Raveendran and JM Panchal said.

Information gained through the tests is already inadmissible in the country’s courts, but the SC ruling makes it clear that the police cannot use the tests or investigate any leads arising thereof unless suspects volunteer.

“Compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms,” the bench said in a 251-page judgment.
The judges said relying on reports gathered from these techniques conflicts with the “right to fair trial”.

They held that compelling public interest cannot justify the dilution of constitutional rights such as the “right against self-incrimination”.

They said that as guardians of fundamental rights, they would be “failing in our duty” if any citizen is permitted to be forcibly subjected to the questionable tests.

The bench described such tests as a form of third degree torture, which could not be permitted to replace existing police behaviour. It discarded the pleas of the states and the Centre that the tests were justified means to tackle terrorism, a crime where investigating agencies are not armed with any tools to find out “ticking bombs”.

Disposing of petitions filed by accused in Maharashtra, Karnataka and Andhra Pradesh, the bench said the tests can be administered to a person only with consent and even then National Human Rights Commission guidelines must be adhered to. The person needs to be assisted by a lawyer, his consent needs to be recorded before a magistrate, and he needs to be told about the implications of his consent and the fact that the information thus collected would not be used against him as evidence in court. But information or material collected with the help of a (voluntary) test can be admitted in court under section 27 of the Evidence Act.

The bench refrained from categorically suggesting that the government could enact a law through Parliament to make the tests valid in compelling public interest and exceptional circumstances. But it said the argument merits consideration and it is “the task of legislature to arrive at a pragmatic balance between the often competing interests of personal liberty and public safety”.

Being the constitutional court, the SC can only “seek to preserve the balance between these competing interests and their interpretation’’, the bench said.
The bench expressed the SC’s dilemma in justifying the “use of torture or other improper means for eliciting information which could help in saving the lives of ordinary citizens”, but termed the government’s defence of making such means applicable to terror-related cases as “utilitarian considerations”.

The government reacted carefully to the judgment, with a senior attorney welcoming the verdict but saying “something extra is needed to deal with terrorists and militants”.

 

Polygraph

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This article is about the forensic instrument. For the automatic signing instrument, see Autopen. For the dual pen device that produces a simultaneous copy of an original while it is written in cursive writing, see Polygraph (duplicating device).

"Lie detector test" redirects here. For other uses, see Lie detector test (disambiguation).

Polygraph results are sometimes recorded on a chart recorder

A polygraph (popularly referred to as a lie detector) is an instrument that measures and records several physiological indices such as blood pressure, pulse, respiration, breathing rhythms/ratios, and skin conductivity while the subject is asked and answers a series of questions, in the belief that deceptive answers will produce physiological responses that can be differentiated from those associated with non-deceptive answers.

Polygraphy is widely rejected as pseudoscience by the scientific community.[1] Nonetheless, polygraphs are in some countries used as an interrogation tool with criminal suspects or candidates for sensitive public or private sector employment. US federal government agencies such as the FBI and the CIA and many police departments such as the LAPD use polygraph examinations to interrogate suspects and screen new employees. Within the US federal government, a polygraph examination is also referred to as a psychophysiological detection of deception (PDD) examination. [edit] History

The idea that lying produces physical side-effects has long been claimed. In West Africa persons suspected of a crime were made to pass a bird's egg to one another.[citation needed] If a person broke the egg, then he or she was considered guilty, based on the idea that their nervousness was to blame. In ancient China the suspect held a handful of rice in his or her mouth during a prosecutor's speech.[citation needed] Because salivation was believed to cease at times of emotional anxiety, the person was considered guilty if by the end of that speech the rice was dry.

Early devices for lie detection include an 1885 invention of Cesare Lombroso used to measure changes in blood pressure for police cases, a 1904 device by Vittorio Benussi used to measure breathing, and an abandoned project by American William Marston which used blood pressure and galvanic skin response to examine German prisoners of war (POWs).[2]

Sir James Mackenzie of Scone, Scotland invented an early lie detector or polygraph in the 1900s. MacKenzie's polygraph "could be used to monitor the cardiovascular responses of his patients by taking their pulse and blood pressure.[3] He had developed an early version of his device in the 1890s, but had Sebastian Shaw, a Lancashire watchmaker, improve it further. "This instrument used a clockwork mechanism for the paper-rolling and time-marker movements and it produced ink recordings of physiological functions that were easier to acquire and to interpret. Interestingly, it has been written that the modern polygraph is really a modification of Dr. Mackenzie's clinical ink polygraph." [4]

A device recording both blood pressure and galvanic skin response was invented in 1911 by Dr. Reginald A. Larson of the University of California and first applied in law enforcement work by the Berkeley Police Department under its nationally renowned police chief August Vollmer. Further work on this device was done by Leonarde Keeler.[5]

Several devices similar to Keeler's polygraph version included the Berkeley Psychograph, a blood pressure-pulse-respiration recorder developed by C. D. Lee in 1936[6] and the Darrow Behavior Research Photopolygraph, which was developed and intended solely for behavior research experiments.[6][7]

Marston wrote a second paper on the concept in 1915, when finishing his undergraduate studies. He entered Harvard Law School and graduated in 1918, re-publishing his earlier work in 1917.[8] According to their son, Marston's wife, Elizabeth Holloway Marston, was also involved in the development of the systolic blood pressure test: "According to Marston’s son, it was his mother Elizabeth, Marston’s wife, who suggested to him that 'When she got mad or excited, her blood pressure seemed to climb' (Lamb, 2001). Although Elizabeth is not listed as Marston’s collaborator in his early work, Lamb, Matte (1996), and others refer directly and indirectly to Elizabeth’s work on her husband’s deception research. She also appears in a picture taken in his polygraph laboratory in the 1920s (reproduced in Marston, 1938)."[9][10] The comic book character, Wonder Woman, by William Marston (and influenced by Elizabeth Marston[11][12]) carries a magic lasso which was modelled upon the pneumograph (breathing monitor) test.[11][13]

Marston was the self-proclaimed “father of the polygraph” despite his predecessor's contributions. Marston remained the device's primary advocate, lobbying for its use in the courts. In 1938 he published a book, The Lie Detector Test, wherein he documented the theory and use of the device.[14] In 1938 he appeared in advertising by the Gillette company claiming that the polygraph showed Gillette razors were better than the competition.[15][16][17]

A device which recorded muscular activity accompanying changes in blood pressure was developed in 1945 by John E. Reid, who claimed that greater accuracy could be obtained by making these recordings simultaneously with standard blood pressure-pulse-respiration recordings.[6][18]

[edit] Testing procedure

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Today, polygraph examiners use two types of instrumentation: analog and computerized. In the United States, most examiners now use computerized instrumentation.

A typical polygraph test starts with a pre-test interview to gain some preliminary information which will later be used for "control questions", or CQ. Then the tester will explain how the polygraph is supposed to work, emphasizing that it can detect lies and that it is important to answer truthfully. Then a "stim test" is often conducted: the subject is asked to deliberately lie and then the tester reports that he was able to detect this lie. Then the actual test starts. Some of the questions asked are "irrelevant" or IR ("Is your name Chris Drozdz?"), others are "probable-lie" control questions that most people will lie about ("Have you ever stolen money?") and the remainder are the "relevant questions", or RQ, that the tester is really interested in. The different types of questions alternate. The test is passed if the physiological responses during the probable-lie control questions (CQ) are larger than those during the relevant questions (RQ). If this is not the case, the tester attempts to elicit admissions during a post-test interview, for example, "Your situation will only get worse if we don't clear this up".[19][20]

Criticisms have been given regarding the validity of the administration of the Comparative Questions test (CQT). The CQT may be vulnerable to being conducted in an interrogation-like fashion. This kind of interrogation style would elicit a nervous response from innocent and guilty suspects alike. There are several other ways of administrating the questions.

An alternative is the Guilty Knowledge test (GKT), or the Concealed Information Test (CIT). The administration of this test is given to prevent potential errors that may arise from the questioning style. The test is usually conducted by a tester with no knowledge of the crime or circumstances in question. The administrator tests the participant on their knowledge of the crime that would not be known to an innocent person. For example: "Was the crime committed with a .45 or a 9 mm?" The questions are in multiple choice and the participant is rated on how they react to the correct answer. If they react strongly to the guilty information, then proponents of the test believe that it is likely that they know facts relevant to the case. This administration is considered more valid by supporters of the test because it contains many safeguards to avoid the risk of the administrator influencing the results.[21]

[edit] Validity

Polygraphy has little credibility among scientists.[22][23] Despite claims of 90-95% validity by polygraph advocates, and 95-100% by businesses providing polygraph services[24], critics maintain that rather than a "test", the method amounts to an inherently unstandardizable interrogation technique whose accuracy cannot be established. A 1997 survey of 421 psychologists estimated the test's average accuracy at about 61%, a little better than chance.[25] Critics also argue that even given high estimates of the polygraph's accuracy a significant number of subjects (e.g. 10% given a 90% accuracy) will appear to be lying, and would unfairly suffer the consequences of "failing" the polygraph. In the 1998 Supreme Court case, United States v. Scheffer, the majority stated that "There is simply no consensus that polygraph evidence is reliable" and "Unlike other expert witnesses who testify about factual matters outside the jurors' knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion..."[26] Also, in 2005 the 11th Circuit Court of Appeals stated that “polygraphy did not enjoy general acceptance from the scientific community”.[27] Charles Honts, a psychology professor at Boise State University, states that polygraph interrogations give a high rate of false positives on innocent people.[28] In 2001 William G. Iacono, Distinguished McKnight University Professor of Psychology and Neuroscience and Director, Clinical Science and Psychopathology Research Training Program at the University of Minnesota, published a paper titled “Forensic “Lie Detection": Procedures Without Scientific Basis” in the peer reviewed Journal of Forensic Psychology Practice. He concluded that

Although the CQT [Control Question Test] may be useful as an investigative aid and tool to induce confessions, it does not pass muster as a scientifically credible test. CQT theory is based on naive, implausible assumptions indicating (a) that it is biased against innocent individuals and (b) that it can be beaten simply by artificially augmenting responses to control questions. Although it is not possible to adequately assess the error rate of the CQT, both of these conclusions are supported by published research findings in the best social science journals (Honts et al., 1994; Horvath, 1977; Kleinmuntz & Szucko, 1984; Patrick & Iacono, 1991). Although defense attorneys often attempt to have the results of friendly CQTs admitted as evidence in court, there is no evidence supporting their validity and ample reason to doubt it. Members of scientific organizations who have the requisite background to evaluate the CQT are overwhelmingly skeptical of the claims made by polygraph proponents. [29]

Summarizing the consensus in psychological research, professor David W. Martin, PhD, from North Carolina State University, states that people have tried to use the polygraph for measuring human emotions, but there is simply no royal road to (measuring) human emotions.[30] Therefore, since one cannot reliably measure human emotions (especially when one has an interest in hiding his/her emotions), the idea of valid detection of truth or falsehood through measuring respiratory rate, blood volume, pulse rate and galvanic skin response is a mere pretense. Since psychologists cannot ascertain what emotions one has,[31] polygraph professionals are not able to do that either.

Polygraphy has also been faulted for failing to trap known spies such as double-agent Aldrich Ames, who passed two polygraph tests while spying for the Soviet Union.[28][32] Other spies who passed the polygraph include Karl Koecher,[33] Ana Belen Montes,[34] and Leandro Aragoncillo.[35] However, CIA spy Harold James Nicholson failed his polygraph examinations, which aroused suspicions that led to his eventual arrest.[36] Polygraph examination and background checks failed to detect Nada Nadim Prouty, who was not a spy but was convicted for improperly obtaining US citizenship and using it to obtain a restricted position at the FBI.[37]

The polygraph also failed to catch Gary Ridgway, the "Green River Killer". Ridgway passed a polygraph in 1984 and confessed almost 20 years later when confronted with DNA evidence.[38]

Conversely, innocent people have been known to fail polygraph tests. In Wichita, Kansas in 1986, after failing two polygraph tests (one police administered, the other given by an expert that he had hired), Bill Wegerle had to live under a cloud of suspicion of murdering his wife Vicki Wegerle, even though he was neither arrested nor convicted of her death. In March 2004, a letter was sent to The Wichita Eagle reporter Hurst Laviana that contained Vicki's drivers license and what first appeared to be crime scene photographs of her body. The photos had actually been taken by her true murderer, BTK,[39] the serial killer that had plagued the people of Wichita since 1974 and had recently resurfaced in February 2004 after an apparent 25 year period of dormancy (he had actually killed three women between 1985 and 1991, including Wegerle). That effectively cleared Bill Wegerle of the murder of his wife. In 2005 conclusive DNA evidence including DNA retrieved from under the fingernails of Vicki Wegerle, demonstrated that the BTK Killer was Dennis Rader[40]

Prolonged polygraph examinations are sometimes used as a tool by which confessions are extracted from a defendant, as in the case of Richard Miller, who was persuaded to confess largely by polygraph results combined with appeals from a religious leader.[41]

Law enforcement agencies and intelligence agencies in the United States are by far the biggest users of polygraph technology. In the United States alone all federal law enforcement agencies either employ their own polygraph examiners or use the services of examiners employed in other agencies.[42] This is despite persistent claims of unreliability. For example in 1978 Richard Helms, the 8th Director of Central Intelligence, stated that:
"We discovered there were some Eastern Europeans who could defeat the polygraph at any time. Americans are not very good at it, because we are raised to tell the truth and when we lie it is easy to tell are lying. But we find a lot of Europeans and Asiatics can handle that polygraph without a blip, and you know they are lying and you have evidence that they are lying."[43]

[edit] Countermeasures

Several countermeasures designed to pass polygraph tests have been described. Asked how he passed the polygraph test, Ames explained that he sought advice from his Soviet handler and received the simple instruction to: "Get a good night's sleep, and rest, and go into the test rested and relaxed. Be nice to the polygraph examiner, develop a rapport, and be cooperative and try to maintain your calm."[44]

Other suggestions for countermeasures include for the subject to mentally record the control and relevant questions as the examiner reviews them prior to commencing the interrogation. Once the interrogation begins, the subject is then supposed to carefully control their breathing during the relevant questions, and to try to artificially increase their heart rate during the control questions, such as by thinking of something scary or exciting or by pricking themselves with a pointed object concealed somewhere on their body. In this way the results will not show a significant reaction to any of the relevant questions.[45][46]

[edit] 2003 National Academy of Sciences report

The accuracy of the polygraph has been contested almost since the introduction of the device. In 2003, the National Academy of Sciences (NAS) issued a report entitled "The Polygraph and Lie Detection". The NAS found that the majority of polygraph research was "Unreliable, Unscientific and Biased", concluding that 57 of the approximately 80 research studies that the APA relies on to come to their conclusions were significantly flawed. These studies concluded that a polygraph test regarding a specific incident can discern the truth at "a level greater than chance, yet short of perfection"though NAS did restrict almost all of its conclusions to polygraph usage for "security screening" purposes. It did not focus on forensic applications, polygraph testing commonly plays a role in helping to resolve criminal investigations.. The report also concluded that this level of accuracy was overstated and the levels of accuracy shown in these studies "are almost certainly higher than actual polygraph accuracy of specific-incident testing in the field."[47]

When polygraphs are used as a screening tool (in national security matters and for law enforcement agencies for example) the level of accuracy drops to such a level that "Its accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies." In fact, the NAS extrapolated that if the test were sensitive enough to detect 80% of spies (a level of accuracy which it did not assume), this would hardly be sufficient anyway. Let us take for example a hypothetical polygraph screening of a body of 10,000 employees among which are 10 spies. With an 80% success rate, the polygraph test would show that 8 spies and 1,992 non-spies fail the test. Thus, roughly 99.6 percent of positives (those failing the test) would be false positives. The NAS concluded that the polygraph "...may have some utility"[47] but that there is "little basis for the expectation that a polygraph test could have extremely high accuracy."[48]

The NAS conclusions paralleled those of the earlier United States Congress Office of Technology Assessment report "Scientific Validity of Polygraph Testing: A Research Review and Evaluation”.[49]

[edit] Admissibility of polygraphs in court

[edit] United States

In 2007[update], polygraph testimony was admitted by stipulation in 19 states, and was subject to the discretion of the trial judge in federal court. The use of polygraph in court testimony remains controversial, although it is used extensively in post-conviction supervision, particularly of sex offenders. In Daubert v. Merrell Dow Pharmaceuticals (1993),[50] the old Frye standard was lifted and all forensic evidence, including polygraph, had to meet the new Daubert standard in which "underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue." While polygraph tests are commonly used in police investigations in the US, no defendant or witness can be forced to undergo the test. In United States v. Scheffer (1998),[51] the U.S. Supreme Court left it up to individual jurisdictions whether polygraph results could be admitted as evidence in court cases. Nevertheless, it is used extensively by prosecutors, defense attorneys, and law enforcement agencies. In the States of Massachusetts, Maryland, New Jersey, Delaware and Iowa it is illegal for any employer to order a polygraph either as conditions to gain employment, or if an employee has been suspected of wrongdoing. The Employee Polygraph Protection Act of 1988 (EPPA) generally prevents employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain exemptions.[52]

In the United States, the State of New Mexico admits polygraph testing in front of juries under certain circumstances. In many other states, polygraph examiners are permitted to testify in front of judges in various types of hearings (Motion to Revoke Probation, Motion to Adjudicate Guilt).

In 2007, in Ohio v. Sharma, an Ohio trial court overruled the objections of a prosecutor and allowed a polygraph examiner to testify regarding a specific issue criminal examination. The court took the position that the prosecutors regularly used a polygraph examiner to conduct criminal tests against defendants, but only objected to the examiner's testimony when the results contradicted what they hoped to achieve.[53] Dr. Louis Rovner [8], a polygraph expert from California, tested the defendant and testified as an expert witness both at a pretrial admissibility hearing and at trial. The defendant, who had been charged with sexual battery, was acquitted.[54]

[edit] Europe

In most European jurisdictions, polygraphs are not considered reliable evidence and are not generally used by police forces. However, in any lawsuit, an involved party can order a psychologist to write an opinion based on polygraph results to substantiate the credibility of its claims. The party must bear the expense themselves, and the court weighs the opinion like any other opinion the party has ordered. Courts themselves do not order or pay for polygraph tests. In most cases, polygraph tests are voluntarily taken by a defendant in order to substantiate his or her claims.

[edit] Canada

In Canada, the polygraph is regularly used as a forensic tool in the investigation of criminal acts and sometimes employed in the screening of employees for government organizations. In the 1987 decision of R. v. Béland, the Supreme Court of Canada rejected the use of polygraph results as evidence in court. This decision did not however affect the use of the polygraph in criminal investigations. The polygraph continues to be used as an investigative tool.

[edit] Australia

The High Court of Australia has not yet considered the admissibility of polygraph evidence. However, the New South Wales District Court rejected the use of the device in a criminal trial. In Raymond George Murray 1982 7A Crim R48 Sinclair DCJ refused to admit polygraph evidence tending to support the defence. His Worship rejected the evidence because

  1. The veracity of the accused and the weight to be given to his evidence, and other witnesses called in the trial, was a matter for the jury.
  2. The polygraph "expert" sought to express an opinion as to ultimate facts in issue, which is peculiarly the province of the jury.
  3. The test purported to be expert evidence by the witness who was not qualified as an expert, he was merely an operator and assessor of a polygraph. The scientific premise upon which his assessment was based had not been proved in any Court in Australia.
  4. Devoid of any proved or accepted scientific basis, the evidence of the operator is hearsay which is inadmissible.

The Court cited, with approval, the Canadian case of Phillion v R 1978 1SCR 18.

[edit] Israel

The High Court of Israel, in Civil Appeal 551/89 (Menora Insurance Vs. Jacob Sdovnik), ruled that as the polygraph has not been recognized as a reliable device, polygraph results are inadmissible as evidence in a civil trial. In other decisions, polygraph results were ruled inadmissible in criminal trials. However, some insurance companies attempt to include a clause in insurance contracts, in which the beneficiary agrees that polygraph results be admissible as evidence. In such cases, where the beneficiary has willingly agreed to such a clause, signed the contract, and taken the test, the courts will honor the contract, and take the polygraph results into consideration. Interestingly, it is common practice for lawyers to advise people who signed such contracts to refuse to take the test. Depending on whether or not the beneficiary signed an agreements clause, and whether the test was already taken or not, such a refusal usually has no ill effects; at worst, the court will simply order the person to take the test as agreed. At best, the court will cancel the clause and release the person from taking the test, or rule the evidence inadmissible.

[edit] India

Recently an Indian court adopted the brain electrical oscillations signature test as evidence to convict a woman, who was accused of murdering her fiance. It is the first time that the result of polygraph was used as evidence in court.[55] On May 5th, 2010, The Supreme Court of India declared use of narcoanalysis, brain mapping and polygraph tests on suspects as illegal and as against constitution.[56]

[edit] Use with espionage and security clearances

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The examples and perspective in this section may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (April 2010)

In the American military and intelligence communities, polygraphs have been administered both as terms of qualifying for a security clearance and as part of a periodic reinvestigation to retain a clearance. There is no uniform standard for whether the polygraph is needed, as some methods of adjudication do not demand a successful polygraph test to earn a clearance. Other agencies, particularly certain military units, actually prohibit polygraph testing on their members.

It is difficult to precisely determine the effectiveness of polygraph results for the detection or deterrence of spying. Failure of a polygraph test could cause revocation of a security clearance, but it is inadmissible evidence in most federal courts and military courts martial. The polygraph is more often used as a deterrent to espionage rather than detection. One exception to this was the case of Harold James Nicholson, a CIA employee later convicted of spying for Russia. In 1995, Nicholson had undergone his periodic five year reinvestigation where he showed a strong probability of deception on questions regarding relationships with a foreign intelligence unit. This polygraph test later launched an investigation which resulted in his eventual arrest and conviction. In most cases, however, polygraphs are more of a tool to "scare straight" those who would consider espionage. Jonathan Pollard was advised by his Israeli handlers that he was to resign his job from American intelligence if he was ever told he was subject to a polygraph test. Likewise, John Anthony Walker was advised to by his handlers not to engage in espionage until he had been promoted to the highest position for which a polygraph test was not required, to refuse promotion to higher positions for which polygraph tests were required, and to retire when promotion was mandated.[57] As part of his plea bargain agreement for his case of espionage for the Soviet Union, Robert Hanssen would be made to undergo a polygraph at any time as part of damage assessment. In Hanssen's 25-year career with the FBI, not once was he made to undergo a polygraph. He later said that if he had been ordered to, he may have thought twice about espionage.

Alternatively, the use of polygraph testing, where it causes desperation over dismissal for past dishonesty, may encourage spying. For example, Edward Lee Howard was dismissed from the CIA when, during a polygraph screening, he truthfully answered a series of questions admitting to minor crimes such as petty theft and drug abuse. The CIA failed to see that the firing was an action that would logically anger Howard, and in retaliation for his perceived unjust punishment for minor offenses, he later sold his knowledge of CIA operations to the Soviet Union.[58]

It is also worth noting that polygraph tests may not deter espionage. From 1945 to the present, at least six Americans had been committing espionage while they successfully passed polygraph tests. Two of the most notable cases of two men who created a false negative result with the polygraphs were Larry Wu-Tai Chin and Aldrich Ames. Ames was given two polygraph examinations while with the CIA, the first in 1986 and the second in 1991. The CIA reported that he passed both examinations after experiencing initial indications of deception.[59] According to a Senate investigation, an FBI review of the first examination concluded that the indications of deception were never resolved.[60] The Senate committee reported that the second examination, at a time when Ames was under suspicion, resulted in indications of deception and a retest a few days later with a different examiner. The second examiner concluded that there were no further indications of deception. In the CIA's analysis of the second exam, they were critical of their own failure to convey to their examiner the existing suspicions that were not addressed in the examination.

In August 2008, the US Defense Intelligence Agency announced that it would subject each of its 5,700 prospective and current employees to a polygraph interrogation at least once annually.[28]

[edit] Hand-held lie detector for U.S. military

A hand-held lie detector is being deployed by the U.S. Department of Defense according to a report in 2008 by investigative reporter Bill Dedman of msnbc.com. The Preliminary Credibility Assessment Screening System, or PCASS, captures less physiological information than a polygraph, and uses an algorithm, not the judgment of a polygraph examiner, to render a decision whether it believes the person is being deceptive or not. The device will be used first in Afghanistan by U.S. Army troops. The Department of Defense orders limit its use to non-U.S. persons.[61]

[edit] Use with sex offenders

Sexual offenders are now routinely polygraphed in many states of the United States and it is often a mandatory condition of probation or parole. In Texas, a state appellate court has upheld the testing of sex offenders under community supervision and has also upheld written statements given by sex offenders if they have committed a further offense with new victims. These statements are then used when a motion is filed to revoke probation and the probationer may then be sentenced to prison for having violated his or her probation.

Regular polygraph testing is sometimes also used during the rehabilitation of convicted sex offenders. Questioning the offender specifically about their inner thoughts, desires, and impulses is intended to give a general indication of their treatment progress and likelihood of future offenses. Similarly, predatory or violent offenders at some facilities may also undergo testing for involuntary physical arousal when shown provocative images relating to their past crimes. Perhaps the most well-known example of this rehabilitation technique is practiced at Coalinga State Hospital in California.[62]

A significant number of Federal appeals courts have upheld polygraph testing for Federal probationers as well. The most recent decision was by the Second Circuit Court of Appeals regarding a New York sex offender.

The UK will soon allow compulsory polygraph tests for convicted sex offenders released on license.[63][64]

[edit] Polygraphy in popular culture

Lie detection has a long history in mythology and fairy tales; the polygraph has allowed modern fiction to use a device more easily seen as scientific and plausible. Notable instances of polygraph usage include uses in crime and espionage themed television shows and some daytime television talk shows, cartoons and films. The most notable polygraph TV show is Lie Detector, which first aired in the 1950s created and hosted by Ralph Andrews. Then in the 1960s Ralph produced a series of specials hosted by Melvin Belli, then in the 1970s hosted by Jack Anderson. In 1998 TV producer Mark Phillips with his Mark Phillips Philms & Telephision put Lie Detector back on the air on the FOX Network—on that program Dr. Ed Gelb with host Marcia Clark cleared Mark Fuhrman from the allegation that he "planted the bloody glove." Later Phillips produced Lie Detector as a series for PAX/ION—some of the guests included Paula Jones, Reverend Paul Crouch accuser Lonny Ford, Ben Rowling, Jeff Gannon and Swift Boat Vet Steve Garner.

FOX has taken this one step further with their game show The Moment of Truth which pits people's honesty against their own sense of modesty, propriety, etc. Contestants are given a polygraph test administered by a polygraph expert in a pre-screening session answering over 50 questions. Later they must sit in front of a studio audience including their friends & family for the televised portion of the show. There they need only answer 21 answers truthfully "as determined by the polygraph" to win $500,000. The questions get more personal and/or more revealing as they advance. Most polygraph experts caution that the polygraph techniques used on Moment of Truth do not conform to any known or accepted methods of polygraphy.[citation needed]

Daytime talk shows, such as Maury Povich and Steve Wilkos, frequently use lie detectors to tell if someone is cheating on their significant other.

In one MacGyver episode 'Slow Death', MacGyver assists the Indian tribesmen by improvising a polygraph to weed out the crooked doctor. This is made possible by using an analog sphygmomanometer to monitor blood pressure change, and an electronic alarm clock to detect sweat. To test its reliability, MacGyver asked a passenger on the train a few 'placebo' questions. The culprit was only discovered when he was trying to hide his crime, thus his sweat triggered the alarm clock and blood pressure climbed up.

In the movie Ocean's 13, one of the characters beats a polygraph test by stepping on a tack when answering truthfully, which supposedly raises the polygraph's readings for the truthful answers so they equal the deceptive ones.

In the television series Profit, there is a memorable sequence at the end of episode "Healing" where the eponymous character, Jim Profit, manages to fool a polygraph. He does that by putting a nail through the sole of his shoe and pushing it inside of his heel while answering every question in order to even out the readings. This scene is very graphic, especially for its time, 1996. During a voice over, Profit explains the theory behind the polygraph and the flaws he intends to exploit in it.

In episode 93 of the USA popular science show Mythbusters, they attempted to fool the polygraph by using pain to try to increase the readings when answering truthfully (so the machine will supposedly interpret the truthful and non-truthful answers as the same.) They also attempted to fool the polygraph by thinking happy thoughts when lying and thinking stressful thoughts when telling the truth to try to confuse the machine. However, neither technique was successful for a number of reasons. Michael Martin correctly identified each guilty and innocent subject. The show also noted the opinion that, when done properly, polygraphs are correct 80-99% of the time.[65]

In season 7, episode 5 of Penn & Teller's Showtime series Bullshit!, it was claimed and appeared to have been demonstrated that polygraphs can be confused or beaten by tightening up one's anal sphincter. Doug Williams, a former Oklahoma City police polygraph examiner, explained that many large arteries exist around the anal sphincter and that by tightening the muscles, the arteries will constrict, raising one's blood pressure, and registering a lie. It was then demonstrated by having a woman hooked up to a polygraph, having her write a number from 1-10 on a piece of paper (she chose 7), deny that she chose each number as asked by the examiner but tighten up her anal sphincter on the number 7. Doing this on the number 7 caused it to register as a lie, even though she was telling the truth. This episode also touched on people who have lost their security clearances, and subsequently their jobs, due to failing a polygraph even though they claimed to have told the complete and honest truth.

 

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Polygraph Policy

Polygraph testing is widely used in the intelligence community to screen employees, to establish eligibility for access to classified intelligence information, and for general counterintelligence purposes. It is also used as a tool in the investigation of unauthorized disclosures of classified information and other offenses.

Growing awareness of the limitations of polygraph testing, coupled with official efforts to expand its application, have produced a new degree of controversy over this technology.

Court Rejects Legal Challenge to Polygraph Testing, memorandum opinion in Croddy, et al, v. FBI, October 2, 2006

Dept of Energy Counterintelligence Polygraph Policy, Federal Register, September 29, 2006. "The question of whether and to what extent DOE should use the polygraph as a tool for screening individuals for access to our most sensitive information is the latest manifestation of this perennial struggle."

Use of Polygraph Examinations in the Department of Justice, DoJ Office of Inspector General, September 2006. "In this report, we provide a detailed description of how polygraphs are used throughout the Department."

Hearing on Department of Energy Polygraph Program
04 September 2003 -- Senate Energy and Natural Resources Committee

Department of Defense Polygraph Program

Polygraph Studies and Related Commentary

Polygraph Hearing

  • "Issues Surrounding the Use of Polygraphs"
    Senate Committee on the Judiciary
    April 25, 2001
    • Statement of Chairman Orrin G. Hatch
    • Statement of Senator Patrick Leahy
    • Mike Capps, Deputy Director for Developmental Programs, Defense Security Service, Alexandria, VA
    • Dr. William Iacono, Professor, Department of Psychology, University of Minnesota, Minneapolis, MN
    • Jeffrey H. Smith, Esq., Partner, Arnold & Porter, Washington, D.C.
    • Mark S. Zaid, Esq., Lobel, Novins & LaMont, Washington, D.C.
    • Richard Keifer, President, American Polygraph Association, Apopka, FL
    • George W. Maschke, AntiPolygraph.org (submitted for the record)

Polygraph Legislation, Rules and Regulations

Old Polygraph News

  • Domenici Wants NAS to Weigh Polygraph Benefits to Lab Security, press release, January 26, 2001. "Senator Pete Domenici today reiterated his concerns that polygraph tests mandated as a means of improving security at the Energy Department’s national laboratories may ultimately be counterproductive."
  • National Academy Begins Review of Polygraph Validity, January 2001 (offsite). The 18 month review, which was proposed by Sen. Jeff Bingaman and funded by the Department of Energy, will examine the controversial use of polygraph testing for personnel security screening. And it "will include what is known about the effect of medications, sleep deprivation, and illnesses on the physiological responses measured."
  • The Truth About Polygraphs? by Vernon Loeb, Washington Post online, December 8, 2000 (offsite).
  • DoD Seeks Contractors for Polygraph Validity Study, Commerce Business Daily, December 6, 2000 (offsite). "The objective is to test up to 100 volunteers over a two month period. The goal of this project is to manipulate volunteers into telling specific lies during polygraph examination to test the accuracy of the polygraph examination procedure."
  • $860,000 DOE Study to Evaluate Polygraphs by Jennifer McKee, Albuquerque Journal, December 5, 2000. "The Department of Energy intends to sink almost a million dollars into an upcoming study to determine -- once and for all -- how well widespread lie detector tests work in preventing espionage."
  • DOE Agrees to Fund Bingaman-Urged Polygraph Validity Study, press release, December 4, 2000. "The distinguished scientists and engineers who work at Sandia and Los Alamos deserve to know whether polygraphs produce valid results and this study will help make that determination."
  • Polygraph Lawsuit Filed, March 15, 2000 (offsite). Plaintiffs, represented by Mark S. Zaid, challenge the use of the polygraph by the FBI, the DEA and the Secret Service. As a result of current policy, they argue, "innocent individuals are falsely labeled drug users, drug dealers, terrorists and/or spies without any reasonable opportunity to ever clear their name."
  • DOE Polygraph Implementation Plan Announced, DOE press release, December 13, 1999. "Secretary of Energy Bill Richardson said he has significantly reduced the number of employees affected so that approximately 800 federal and contractor employees will be subjected to the polygraph test."
  • Senate Calls for Study of Polygraph Validity, an amendment introduced by Sen. Jeff Bingaman, October 7, 1999. "The National Institutes of Health should enter into appropriate arrangements with the National Academy of Sciences to conduct a comprehensive study and investigation into the scientific validity of polygraphy as a screening tool for federal and federal contractor personnel."
  • Bingaman Amendments on Polygraph, September 30, 1999. Two proposed amendments offered by Senator Bingaman would assess the validity of polygraph testing for employee screening, and the potential use of countermeasures.
  • Lawmaker Wants DOE to Abandon Expanded Polygraph Testing at Labs by Keith J. Costa, Inside the Pentagon, September 30, 1999. Calling the Energy Department's plans to expand polygraph testing at the agency nuclear labs "overly broad," Rep. Ellen Tauscher (D-CA) calls for a moratorium on polygraph tests.
  • Rep. Ellen Tauscher Calls for Moratorium on Expanded Polygraph Testing at Nuclear Labs, letter to Energy Secretary Richardson, September 28, 1999. "I urge you to enact a complete moratorium on all polygraph tests until an acceptable, limited polygraph plan is developed and vetted."
  • Remarks on Polygraph Testing by Senator Jeff Bingaman, September 22, 1999. "The proposed DOE rule on polygraphs ... is not based on sound science and does not represent reasoned decision making, in my view."
  • DOE Lie-detector Tests for Employees Criticized by Katy Saldarini, Government Executive, September 22, 1999. Critics "say a new policy requiring employees of the nation's nuclear weapons complex to submit to lie-detector tests is a misguided approach that could damage, rather than protect, national security."
  • Senate Intel Committee Calls for "Alternatives" to Polygraph Testing, Senate Report 106-48, May 1999 (excerpt). "Given the potential unreliability of the polygraph system, the Committee believes that alternatives to the polygraph should be explored."

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