Presentation on theme: "THE POLYGRAPH AN “IDIOTS” GUIDE"— Presentation transcript:
1 THE POLYGRAPH AN “IDIOTS” GUIDE Inaugural Conference of the Institute of Forensic PractitionersJ. L. Bouwer HauptSouth African Polygraph & Investigation Services.
2 CONTENT Deception What is the polygraph Scientific Principals Results Validity and ReliabilityProcessScope of Test QuestionsUtilization
3 CONTENT Polygraph and the law in South Africa Admissibility Weight RelevanceIndividual rightsEmployers rightsPrivacy and the rights of othersProtective ProceduresConclusion
4 THE POLYGRAPH DETECTION OF 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
5 WHAT IS A POLYGRAPH? Forensic Investigative Tool
11 WHAT IS THE POLYGRAPH POLYGRAPH NOT A PSYCHOLOGICAL TEST PETUSA on behalf of VANSCHALKWYK v NATIONALTRADING 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…”
12 SCIENTIFIC PRINCIPALS Selective Attention Psychological Set/Selective Attention (Furchs 1948)Stimuli compete for attentionFocus on the stimuli that poses the biggest threatAnti-climax damping
13 SCIENTIFIC PRINCIPALS Fear of Detection Fear: Fight, flight, freeze (Cannon 1952)Physiological ResponsesStrongest Response.Guilty - Relevant QuestionsInnocent – Comparison Questions
15 VALIDITY AND RELIABILITY Accuracy RESEARCHRASKIN, HONTS, KIRCHER %MATTE (1996) %ABRAMS(1989) %N ANSLEY (1990) REAL CASES %NAS (2003) %
16 VALIDITY AND RELIABILITY POLYGRAPH v OTHER COMMON METHODS OF INVESTIGATIONANOLOG STUDY (WIDACKI & HORVATH 1978)FINGERPRINT EXPERT - 100%POLYGRAPH - 95%HANDWRITING EXPERT-94%EYEWITNESSES - 64%
17 VALIDITY AND RELIABILITY EFFECT OF VARIABLESBUCKLEY & SENESE 1991RACE,GENDER, AGE, RESIDENCE, INCOME, EDUCATIONREPORT TO US JOINT SECURITY COMMISION DODPI (1994)
18 VALIDITY AND RELIABILITY VALID POLYGRAPH EXAMINATIONTRAINED EXAMINERPOLYGRAPH INSTRUMENTCardiovascularRespiratoryElectro dermal activityACCEPTED TESTING PROCEDURESCORING SYSTEM
19 VALIDITY AND RELIABILITY Validity of the test QUALITY OF TEST AND TESTERMarylyn 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”
24 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)
25 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY OPINION EVIDENCEREQUIREMENTSCOMPETENCEGROUNDS 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)
26 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY NOT ADMITTING/ IGNORINGPOLYGRAPH EVIDENCELABOUR COURT DECISIONSMagnum Shield SecurityvCommissioner Diale NtsoaneN.O and others.(Case No: JR2799/04)Award was reviewed and set aside
27 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY Court concluded.“There was evidence of polygraph test that was led before the commissioner. The commissioner ignored this evidence entirely. The result of the polygraph test was that the respondent was deceptive. That evidence was not disputed. It was therefore vital for the commissioner to take it into account in deciding if the offence had been proven”
28 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY TRUWORTHS LtdvCCMA &OTHERS(2008) 17 LCReported:  JOL 22565(LC) Butterworth'sCase No. JR 789/07Arbitrator completely ignoredmaterial facts- Polygraph TestReviewable irregularity
29 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY Court concluded“In this case, the arbitratorCompletely ignored the outcomeof the polygraph test incircumstances where a trainedpolygraphist testified at thearbitration and explained theresults of the polygraph and themanner in which the test wasconducted. That was areviewable irregularity, leadingto the review and setting aside ofthe award.”
31 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY Foreign Law US SUPREME COURT IN THESTATE OF NEW MEXICOLee v Martinez CS(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.”
32 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY Foreign Law The court concluded:Reliable“…, we conclude that the control question polygraph examination is sufficiently reliable to satisfy Rule ”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.”
33 POLYGRAPH AND THE LAW IN SOUTH AFRICA WEIGHT INDUSTRIAL COURTM. SHINGA and GILBEYDISTILLERS AND VINTNERS(PTY) LtdCase No.: NHN 11/2/ (Unreported Case)The court were notified thatevidence of an expert nature willbe given.
34 POLYGRAPH AND THE LAW IN SOUTH AFRICA WEIGHT Assess WeightThe 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)
35 POLYGRAPH AND THE LAW IN SOUTH AFRICA WEIGHT Relevant & Reliable?“The evidence in the present case pertaining to polygraph must be regarded as one of the most comprehensive accounts on the subject to date… The Court is not asked to regard the results of the said test to be conclusive of the Applicant’s guilt, but rather to find cause to conclude that some relevance and weight can be placed on the said results” (p60 par.81)
36 POLYGRAPH AND THE LAW IN SOUTH AFRICA WEIGHT Differentiate between Suspects“I accept that some weight should be attached to the polygraph result and that they constitute an objective reason for the Respondent’s decision to differentiate between the three suspected employees” (p72 par.91)
37 POLYGRAPH AND THE LAW IN SOUTH AFRICA WEIGHT Polygraph tilted scale“What tilted the scales against the Applicant apart from his mendacity and that of his witness was the outcome of the polygraph examination.”
38 POLYGRAPH AND THE LAW IN SOUTH AFRICA WEIGHT COURT CONCLUDED“In my view provided the test is administered by a properly trained examiner, for a specific incident such as theft a negative polygraph result prima facie suggest deception and may be used as a supporting fact together with all other evidence”
39 POLYGRAPH AND THE LAW IN SOUTH AFRICA WEIGHT CCMA CASEPETUSA on behalf of VANSCHALKWYK v NATIONALTRADING COMPANYThe Commissioner remarked:“..in the criminal case The UnitedStates 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…”
40 POLYGRAPH AND THE LAW IN SOUTH AFRICA WEIGHT The Commissioner acceptexaminer 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.”
41 POLYGRAPH AND THE LAW IN SOUTH AFRICA WEIGHT Commissioner concluded.Corroboration“..there are some independent indicators to support an inference of guilt and that the polygraph test result support that inference to the extent where the guilt of the applicant has been proved on the balance of probabilities.”
42 POLYGRAPH AND THE LAW IN SOUTH AFRICA RELEVANCE QUESTION FORMULATIONvRELEVANCEDe 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
43 POLYGRAPH AND THE LAW IN SOUTH AFRICA Individual rights CONSTITUTIONACT 108 OF 1996PROTECTS RIGHTSUNLAWFUL SEARCH AND SEIZURESELF ICRMINATION AND THE RIGHT TO SILENCEINVASION OF PRIVACY
44 POLYGRAPH AND THE LAW IN SOUTH AFRICA Individual Rights RIGHT TO DETECT DISHONESTYvCOMPROMISING THE RIGHT OF INDIVIDUALSINDIVIDUAL RIGHTSINVOLUNTARY POLYGRAPH EXAMINATIONMAY INFRINGE ON ABOVE MENTIONED RIGHTS (CHRISTIANSON)
45 POLYGRAPH AND THE LAW IN SOUTH AFRICA Individual Rights EMPLOYER, AND SOCIETY HAVE THE RIGHT:TO DETECT DISHONESTYPROTECT THE RIGHT OF:LIFEPROPERTY ANDECONOMIC ACTIVITY
46 POLYGRAPH AND THE LAW IN SOUTH AFRICA RIGHTS v PRIVACY PRIVACY v RIGHTS OF OTHERSHAS 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).
47 POLYGRAPH AND THE LAW IN SOUTH AFRICA RIGHTS v PRIVACY CHRISTIANSON REMARKSPROTECTION OF PROPERTY v PRIVACYEMPLOYER ‘S - NEED TO PROTECT PROPERTY, OVERWEIGHSRIGHT TO PRIVACY
48 POLYGRAPH AND THE LAW IN SOUTH AFRICA PRIVACY PRIVACY & FREE WILLvCONSENTCCMA OPINIONMNCUBE V CASH PAYMASTER SERVICES (PTY) LTD (1997) KN 1583“…CONCERNS ABOUT PRIVACY AND FREE WILL, DO NOT ARISE IN THE CASE. “
49 POLYGRAPH AND THE LAW IN SOUTH AFRICA PRIVACY CONSENT WAIVES RIGHT OF PRIVACYIF BY CONSENTING TO TAKE A POLYGRAPH TEST THE EMPLOYEE VOLUNTARILY GIVES UP HIS OR HER RIGHT TO PRIVACY THERE SHOULD BE CONTROLS.
50 POLYGRAPH AND THE LAW IN SOUTHAFRICA POLYGRAPH AND THE LAW IN SOUTHAFRICA SELF INCRIMINATION AND RIGHT TO SILENCEFAILURE/REFUSUALTHE IMPLICATIONS OF FAILURE OR REFUSUAL TO DO A POLYGRAPH EXAMINATIONTHE LABOUR COURT DECISION WHERE AN ACCUSED CHOOSE TO REMAIN SILENT
51 REMAIN SILENT Labour Court COURT LOOKED AT: POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCEREMAIN SILENTLabour CourtDAVIS v TIP N O and OTHERS (1996)COURT LOOKED AT:s35(3)(h) when applicant choose not to testify in disciplinary hearing
52 SELF INCRIMINATION v LOOSING JOB Court concluded POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCESELF INCRIMINATIONvLOOSING JOBCourt concludedConsequence of choice no penalty even if he looses his job.Preservation of rights in own hands.
53 JUDGE LANDMAN SUBMITTED: POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCEJUDGE LANDMAN SUBMITTED:Various forms of so-called choices can be …tantamount to no choice.”
54 VOLUNTARY NATURE POLYGRAPH v RIGHT TO REMAIN SILENT POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCECHRISTIANSON’S OPINIONVOLUNTARY NATUREPOLYGRAPHvRIGHT TO REMAIN SILENTCOURTS OBSEVATIONS EQUALLY APPLICABLE
55 BRAKE IN TRUST RELATION POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCEFAIL/REFUSALvBRAKE IN TRUST RELATION“THE RELATIONSHIP IS, SUCH THAT TRUST IS OF THE ESSENCE.”
56 OPERATIONAL REQUIREMENT POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCEOPERATIONAL REQUIREMENTDISMISSAL FOR OPERATIONAL REASONS MAY BE A MOST EFFECTIVE “SHIELD” IN THE HANDS OF THE EMPLOYER, (CLL Aug 1998 Vol. 8)
57 Malgas v Stadium Security POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCEVIEW OF CCMAMalgas v Stadium SecurityManagement(1999) 4 LLD 667 (CCMA)“…EMPLOYEE SHOULD HAVE BEEN DISMISSED FOR OPERATIONAL REQUIREMENTS.”
58 POLYGRAPH AND THE LAW IN SOUTH AFRICA 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”.
59 POLYGRAPH AND THE LAW IN SOUTH AFRICA EMPLOYERS RIGHTSSUSPICION - REQUEST TO SUBMIT TO A POLYGRAPH EXAMSELECTION - EMPLOYMENT IN HIGH RISK AREASEMPLOYEE RIGHTSREPORT AND RESULTSVOLUNTARY SIGN CONSENT
60 POLYGRAPH AND THE LAW IN SOUTH AFRICA Access to information CCMA CASESACCAWU obo CHAUKE/ MASS DISCOUNTERS 6 BALR 767. Case No. GA“Polygraph test results admissible as evidence against employee where corroborated by other evidence.”However: Dismissal unfair –failed to follow fair procedure
61 POLYGRAPH AND THE LAW IN SOUTH AFRICA Access to information PROCEDURALLY UNFAIREMPLOYER 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”
62 STANDARDS PROTECTIVE PROCEDURES PROSEDURAL REQUIREMENTSCONSENT- VOLUNTARY EXAMFACTUAL ANALYSIS OF CASE FACTSCORRECT METHODOLOGY AND VALID TEST QUESTION TECHNIQUEQUESTIONS RELEVANT
63 STANDARDS PROTECTIVE PROCEDURES PROSEDURAL REQUIREMENTSRESULT :TO EXAMINEE AND CHANCE TO EXPLAINAUTHORIZED PERSONSVALID POLYGRAPH INSTRUMENTCOSISTENT APPLICATION ACROSS ALL SUSPECTPOST EXAMINATION RELEASE
64 STANDARDS PROTECTIVE PROCEDURES SUBSTANTIVE REQUIREMENTSQualified Examiner who testify to his opinion.Forensic psycho physiological data analyzed and scored.Expert Opinion
65 CONCLUSION SCIENCE IN ALL ITS DIVISIONS IS FILLED WITH UNCERTAINTY. SCIENTIFIC DECISION MAKING IS NOT BASED ON ABSOLUTES BUT RATHER ON STATISTICAL PROBABILITIES THAT BEING CORRECT IS GREATER THAN CHANCE ALONE.
66 CONCLUSIONBASED 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