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

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Presentation on theme: "THE POLYGRAPH AN IDIOTS GUIDE Inaugural Conference of the Institute of Forensic Practitioners J. L. Bouwer Haupt South African Polygraph & Investigation."— Presentation transcript:

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

2 Deception What is the polygraph Scientific Principals Results Validity and Reliability Process Scope of Test Questions Utilization CONTENT

3 Polygraph and the law in South Africa –Admissibility –Weight – Relevance –Individual rights –Employers rights –Privacy and the rights of others Protective Procedures Conclusion

4 THE POLYGRAPH DETECTION OF DECEPTION DECEPTION A DELIBERATE CHOICE TO MISLEAD A TARGET WITHOUT GIVING ANY NOTIFICATION OF THE INTENT TO DO SO. EKMAN (1992) A RULER WHO LISTENS TO LIES WILL HAVE CORRUPT OFFICIALS. (CEV) PROVERBS 29:12

5 WHAT IS A POLYGRAPH? Forensic Investigative Tool

6 WHAT IS THE POLYGRAPH Attached to persons body

7 WHAT IS THE POLYGRAPH WHAT DOES IT ALLOW YOU TO MONITOR? THE POLYGRAPH ONLY ALLOWS YOU TO MONITOR CERTAIN PHYSIOLOGICAL CHANGES IN THE HUMAN BODY.

8 Physiological Changes Respiratory Pneumo graph

9 Physiological Changes Electro dermal Galvano graph

10 Physiological Changes Cardiovascular Cardiograph

11 WHAT IS THE POLYGRAPH POLYGRAPH NOT A PSYCHOLOGICAL TEST PETUSA on behalf of VAN SCHALKWYK v NATIONAL TRADING COMPANY (WE15191) (2000) 21 IJL 2323 (CCMA) …in my opinion, makes it clear that polygraph testing cannot be said to fall under s 8 of the Employment Equity Act or under the Health Professions Act…

12 SCIENTIFIC PRINCIPALS Selective Attention Psychological Set/ Selective Attention (Furchs 1948) –Stimuli compete for attention –Focus on the stimuli that poses the biggest threat –Anti-climax damping

13 SCIENTIFIC PRINCIPALS Fear of Detection Fear of Detection –Fear: Fight, flight, freeze (Cannon 1952) –Physiological Responses Strongest Response. Guilty - Relevant Questions Innocent – Comparison Questions

14 RESULTS DECEPTION INDICATED (DI) NO DECEPTION INDICATED (NDI) INCONCLUSIVE NO OPINION

15 VALIDITY AND RELIABILITY Accuracy RESEARCH –RASKIN, HONTS, KIRCHER- 90.5% –MATTE (1996)- 90% –ABRAMS(1989)- 87% –N ANSLEY (1990) REAL CASES- 98% –NAS (2003) 71-99%

16 VALIDITY AND RELIABILITY POLYGRAPH v OTHER COMMON METHODS OF INVESTIGATION ANOLOG STUDY (WIDACKI & HORVATH 1978) FINGERPRINT EXPERT -100% POLYGRAPH -95% HANDWRITING EXPERT-94% EYEWITNESSES -64%

17 VALIDITY AND RELIABILITY EFFECT OF VARIABLES BUCKLEY & SENESE 1991 RACE,GENDER, AGE, RESIDENCE, INCOME, EDUCATION REPORT TO US JOINT SECURITY COMMISION DODPI (1994)

18 VALIDITY AND RELIABILITY VALID POLYGRAPH EXAMINATION TRAINED EXAMINER POLYGRAPH INSTRUMENT Cardiovascular Respiratory Electro dermal activity ACCEPTED TESTING PROCEDURE SCORING SYSTEM

19 VALIDITY AND RELIABILITY Validity of the test QUALITY OF TEST AND TESTER Marylyn Christianson (CLL Aug 1998 Vol. 8 ) Only when the quality of the test and the tester can be guaranteed, will it be conceivable that the results of polygraph tests will be admissible in prescribed circumstances by our dispute resolution bodies

20 PROCESS PRE-TEST COLLECTION OF CHARTS POST TEST

21 SCOPE OF TEST QUESTIONS No Personal / Intrusive –Religious believes –Racial matters –Political belief –Affiliations –Sexual preferences

22 UTILIZATION Government Agencies Private Sector Forensic Technique Exonerate innocent Verify/Corroborate/Refute statements. Additional investigative leads Narrow/focus investigation In conjunction with- but not substitute

23 UTILIZATION Pro-active measure to lower risk Pre-employment Screening Routine Screening

24 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY ADMISSIBILITY v WEIGHT EXPERT WITNESS AN EXPERT MAY EXPRESS HIS OPINION ON A MATTER WHICH REQUIRES EXPERT KNOWLEDGE AND WHICH FALLS WITHIN THE SPHERE OF HIS EXPERTISE. (SEE SCHMIDT 429)

25 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY OPINION EVIDENCE REQUIREMENTS COMPETENCE GROUNDS UPON WHICH THE OPINION IS BASED ON. NOT RELEVANT ONLY TO ADMISSIBILITY, BUT ARE OF SPECIAL IMPORTANCE IN THE EVALUATION OF THE OPINION ( WILLIAMS 1985)

26 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY NOT ADMITTING/ IGNORING POLYGRAPH EVIDENCE LABOUR COURT DECISIONS Magnum Shield Security v Commissioner Diale Ntsoane N.O and others. (Case No: JR2799/04) Award was reviewed and set aside

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 Ltd v CCMA &OTHERS (2008) 17 LC Reported: [2008] JOL (LC) Butterworth's Case No. JR 789/07 Arbitrator completely ignored material facts- Polygraph Test Reviewable irregularity

29 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY Court concluded In this case, the arbitrator Completely ignored the outcome of the polygraph test in circumstances where a trained polygraphist testified at the arbitration and explained the results of the polygraph and the manner in which the test was conducted. That was a reviewable irregularity, leading to the review and setting aside of the award.

30 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY INTERPRETATION OF BILL OF RIGHTS FOREIGN LAW s39 (1) WHEN INTERPRETING THE BILL OF RIGHTS, A COURT, TRIBUNAL OR FORUM ; © MAY CONSIDER FOREIGN LAW

31 POLYGRAPH AND THE LAW IN SOUTH AFRICA ADMISSIBILITY Foreign Law US SUPREME COURT IN THE STATE OF NEW MEXICO Lee 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 courts 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 COURT M. SHINGA and GILBEY DISTILLERS AND VINTNERS (PTY) Ltd Case No.: NHN 11/2/10237 (Unreported Case) The court were notified that evidence of an expert nature will be given.

34 POLYGRAPH AND THE LAW IN SOUTH AFRICA WEIGHT Assess Weight The Presiding Officer said: I proposed therefore to analyze his evidence….in order to assess what weight, if any, should be accorded to it (p39 par. 46)

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 Applicants 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 Respondents 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 CASE PETUSA on behalf of VAN SCHALKWYK v NATIONAL TRADING COMPANY The Commissioner remarked:..in the criminal case The United States v Pasado 56F 3d 428 at 434 (5 th Cir 1995) it was held that it was untenable to place a ban on polygraph testing…

40 POLYGRAPH AND THE LAW IN SOUTH AFRICA WEIGHT The Commissioner accept examiner as an expert: In the present matter I have come to the conclusion that the examiners 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 FORMULATION v RELEVANCE De Bruin & Abrahams v Green Cross Manufacturers (Pty) Limited CCMA WE2982 Unreported An employer cannot say that the trust relationship has broken down on the basis of an employees 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 CONSTITUTION ACT 108 OF 1996 PROTECTS RIGHTS UNLAWFUL SEARCH AND SEIZURE SELF ICRMINATION AND THE RIGHT TO SILENCE INVASION OF PRIVACY

44 POLYGRAPH AND THE LAW IN SOUTH AFRICA Individual Rights RIGHT TO DETECT DISHONESTY v COMPROMISING THE RIGHT OF INDIVIDUALS INDIVIDUAL RIGHTS INVOLUNTARY POLYGRAPH EXAMINATION MAY INFRINGE ON ABOVE MENTIONED RIGHTS (CHRISTIANSON)

45 POLYGRAPH AND THE LAW IN SOUTH AFRICA Individual Rights EMPLOYER, AND SOCIETY HAVE THE RIGHT: TO DETECT DISHONESTY PROTECT THE RIGHT OF: LIFE PROPERTY AND ECONOMIC ACTIVITY

46 POLYGRAPH AND THE LAW IN SOUTH AFRICA RIGHTS v PRIVACY PRIVACY v RIGHTS OF OTHERS HAS TO BE DEMARCATED WITH RESPECT TO THE RIGHTS OF OTHERS AND THE INTERESTS OF THE COMMUNITY (J DE WAAL ET AL : THE BILL OF RIGHTS HANDBOOK (1999).

47 POLYGRAPH AND THE LAW IN SOUTH AFRICA RIGHTS v PRIVACY CHRISTIANSON REMARKS PROTECTION OF PROPERTY v PRIVACY EMPLOYER S - NEED TO PROTECT PROPERTY, OVERWEIGHS RIGHT TO PRIVACY

48 POLYGRAPH AND THE LAW IN SOUTH AFRICA PRIVACY PRIVACY & FREE WILL v CONSENT CCMA OPINION MNCUBE V CASH PAYMASTER SERVICES (PTY) LTD (1997) KN 1583 …CONCERNS ABOUT PRIVACY AND FREE WILL, DO NOT ARISE IN THE CASE.

49 POLYGRAPH AND THE LAW IN SOUTH AFRICA PRIVACY CONSENT WAIVES RIGHT OF PRIVACY IF BY CONSENTING TO TAKE A POLYGRAPH TEST THE EMPLOYEE VOLUNTARILY GIVES UP HIS OR HER RIGHT TO PRIVACY THERE SHOULD BE CONTROLS.

50 POLYGRAPH AND THE LAW IN SOUTHAFRICA SELF INCRIMINATION AND RIGHT TO SILENCE FAILURE/REFUSUAL THE IMPLICATIONS OF FAILURE OR REFUSUAL TO DO A POLYGRAPH EXAMINATION THE LABOUR COURT DECISION WHERE AN ACCUSED CHOOSE TO REMAIN SILENT

51 POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCE REMAIN SILENT Labour Court DAVIS v TIP N O and OTHERS (1996) –COURT LOOKED AT: – s35(3)(h) when applicant choose not to testify in disciplinary hearing

52 POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCE SELF INCRIMINATION v LOOSING JOB Court concluded –Consequence of choice no penalty even if he looses his job. –Preservation of rights in own hands.

53 POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCE –JUDGE LANDMAN SUBMITTED: Various forms of so- called choices can be …tantamount to no choice.

54 POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCE CHRISTIANSONS OPINION VOLUNTARY NATURE POLYGRAPH v RIGHT TO REMAIN SILENT –COURTS OBSEVATIONS EQUALLY APPLICABLE

55 POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCE FAIL/REFUSAL v BRAKE IN TRUST RELATION –THE RELATIONSHIP IS, SUCH THAT TRUST IS OF THE ESSENCE.

56 POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCE OPERATIONAL REQUIREMENT DISMISSAL FOR OPERATIONAL REASONS MAY BE A MOST EFFECTIVE SHIELD IN THE HANDS OF THE EMPLOYER, (CLL Aug 1998 Vol. 8)

57 POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCE VIEW OF CCMA Malgas v Stadium Security Management (1999) 4 LLD 667 (CCMA) …EMPLOYEE SHOULD HAVE BEEN DISMISSED FOR OPERATIONAL REQUIREMENTS.

58 POLYGRAPH AND THE LAW IN SOUTH AFRICA Access to Information ACCESS TO INFORMATION 32 (1) EVERYONE HAS THE RIGHT OF ACCESS TO - (b) ANY INFORMATION THAT IS HELD BY ANOTHER PERSON AND THAT IS REQUIRED FOR THE EXERCISE OR PROTECTION OF ANY RIGHTS.

59 POLYGRAPH AND THE LAW IN SOUTH AFRICA EMPLOYERS RIGHTS SUSPICION - REQUEST TO SUBMIT TO A POLYGRAPH EXAM SELECTION - EMPLOYMENT IN HIGH RISK AREAS EMPLOYEE RIGHTS REPORT AND RESULTS VOLUNTARY SIGN CONSENT

60 POLYGRAPH AND THE LAW IN SOUTH AFRICA Access to information CCMA CASE SACCAWU obo CHAUKE/ MASS DISCOUNTERS [ 2004] 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 UNFAIR EMPLOYER REFUSED TO GIVE THE EMPLOYEE THE EXAMINATION REPORT Polygraph reports is a form of expert evidence so Chauke was entitled to a copy of such report in order to prepare a response

62 STANDARDS PROTECTIVE PROCEDURES PROSEDURAL REQUIREMENTS CONSENT- VOLUNTARY EXAM FACTUAL ANALYSIS OF CASE FACTS CORRECT METHODOLOGY AND VALID TEST QUESTION TECHNIQUE QUESTIONS RELEVANT

63 STANDARDS PROTECTIVE PROCEDURES PROSEDURAL REQUIREMENTS RESULT : TO EXAMINEE AND CHANCE TO EXPLAIN AUTHORIZED PERSONS VALID POLYGRAPH INSTRUMENT COSISTENT APPLICATION ACROSS ALL SUSPECT POST EXAMINATION RELEASE

64 STANDARDS PROTECTIVE PROCEDURES SUBSTANTIVE REQUIREMENTS Qualified Examiner who testify to his opinion. Forensic psycho physiological data analyzed and scored. Expert Opinion

65 SCIENCE IN ALL ITS DIVISIONS IS FILLED WITH UNCERTAINTY. SCIENTIFIC DECISION MAKING IS NOT BASED ON ABSOLUTES BUT RATHER ON STATISTICAL PROBABILITIES THAT BEING CORRECT IS GREATER THAN CHANCE ALONE. CONCLUSION

66 BASED ON STATISTICAL PROBABILITIES AND ACCEPTABLE ERROR RATES A POLYGRAPH EXAM CODUCTED ACCORDING TO THE CORRECT PROCEDURES IS A VERY RELIABLE AND LEGITIMATE SCIENTIFIC DICIPLINE WITH A DEFINITE EVIDENTIARY VALUE

67 QUESTIONS Thank you


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