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

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

3. CONTENT 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
“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 person’s 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: 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 %
MATTE (1996) %
ABRAMS(1989) %
N ANSLEY (1990) REAL CASES %
NAS (2003) %

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 22565
(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 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 COURT
M. SHINGA and GILBEY
DISTILLERS AND VINTNERS
(PTY) Ltd
Case No.: NHN 11/2/ (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 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 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 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 FORMULATION v
RELEVANCE
De Bruin & Abrahams v Green Cross Manufacturers (Pty) Limited
CCMA WE2982 Unreported
“An employer cannot say that the trust relationship has broken down on the basis of an employee’s deception, when the company does not know to what extent exactly the deception relates”
No reliance on - evidence because vagueness of the questions

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
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. REMAIN SILENT Labour Court COURT LOOKED AT:
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. SELF INCRIMINATION v LOOSING JOB Court concluded
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. JUDGE LANDMAN SUBMITTED:
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. VOLUNTARY NATURE POLYGRAPH v RIGHT TO REMAIN SILENT
POLYGRAPH AND THE LAW IN SOUTH AFRICA SELF INCRIMINATION AND RIGHT TO SILENCE
CHRISTIANSON’S OPINION
VOLUNTARY NATURE
POLYGRAPH v
RIGHT TO REMAIN SILENT
COURTS OBSEVATIONS EQUALLY APPLICABLE

55. BRAKE IN TRUST RELATION
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. OPERATIONAL REQUIREMENT
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. Malgas v Stadium Security
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
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. 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. CONCLUSION
BASED ON STATISTICAL PROBABILITIES AND ACCEPTABLE ERROR RATES A POLYGRAPH EXAM CODUCTED ACCORDING TO THE CORRECT PROCEDURES IS A VERY RELIABLE AND LEGITIMATE SCIENTIFIC DICIPLINE WITH A DEFINITE EVIDENTIARY VALUE

67. QUESTIONS
Thank you