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“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

Polygraph Testing Should not Be Taken by Court as Expert Opinion

09.09.2015

Iryna Kuzina,  Attorney at law, Head of Kharkiv office at Ilyashev & Partners Law Firm
Source:  The Yurydychna Praktyka

The Ministry of Justice of Ukraine by its order dated July 27 this year, No. 1350/5 “On amendments to the Order of the Ministry of Justice of Ukraine of October 8, 1998, No. 53/5” changed Scientific and methodological recommendations on preparation and appointment of forensic examination and expert research. Recommendations are now complemented by paragraph 6.8 in Section VI “Psychological examination”. Now, it is stated that “To obtain the estimated information, interviews using special technical devices − computerized polygraph − may be conducted”.

We decided to ask lawyers to what extend polygraph may be used in a regular examination practice. Irina Kuzina, attorney at Ilyashev and Partners Law Firm (Kharkiv office), in her comments for the Yurydychna Praktyka drew attention to the following:

“Polygraph was legalized by legislation earlier; however, it was used for purposes other than forensic examination.

Thus, psycho-physiological interview using polygraph was defined as an interrogation using computer technical equipment (polygraph) to analyze (evaluate) the dynamics of psycho-physiological reactions of the interviewee in response to psychological stimuli given as possible answers, objects, diagrams, photos, etc. (see, e.g. order of the Ministry of Revenues “On the use of polygraphs in the activities of the Ministry of Revenues and Duties of Ukraine and its territorial bodies” of August 2, 2013, No. 329).

I have always been puzzled by the expression “psycho-physiological” reactions, not just psychological, which inevitably refers not only to forensic and psychological, but also to forensic medical examination. The polygraph examiners themselves acknowledge that their testing is conducted at the intersection of these two studies (from the speech of I.P. Usikova at the I Regional Forum of the Bar Association of Ukraine in Forensics held in Kharkiv).

Thus, it is not in vain that polygraph is introduced in forensic psychological examination with caution in the order of the Ministry of Justice No. 1350/5 of July 27 this year.

It was established (clause 6.8 of the updated Scientific and methodological recommendations) that polygraph can provide only “orіyentyvalna” (Eng. orientational) information. Why the Ministry of Justice did not use the word “oriyentovna” (Rus. Oriyentirovochnaya, Eng. indicative)? It seems that the Ukrainian word “orіyentyvalnyi” is derived from “orіyentyvannya” (Eng. orientation), which is a term pertaining to operational and investigative activities. This interpretation is also confirmed by the last 6th paragraph of clause 6.8.1, which not only completes, but also summarizes the assignments of polygraph interrogation listed in this clause, defining setting out leads of investigation and not more than that as the purpose of the testing.

Along with probable and subjective connotation of the results of polygraph testing laid down in the description of its subject matter (clause 6.8.1), I conclude on the impossibility of consideration of polygraph testing either as forensic examination, or as its separate component.

Why did the Ministry of Justice introduce this kind of testing in the order on examinations? I believe it was done for the purpose of organization of such testing on the basis of expert institutions of the Ministry and regulation of market of such services, limitation of potential abuse of private providers in terms of price and maybe results.

Thus, polygraph testing should not be taken by the court as an expert opinion.

In addition, I consider it necessary to oblige the polygraph examiners to inform the people using results of the testing on the “instructions” to its application, in particular to state in the resulting materials a reservation about the factors affecting the result of psycho-physiological research and a link to a number of studies that the majority of polygraph testing is recognized unreliable and unscientific (see, e.g. a report “The Polygraph and Lie Detection” by the National Academy of Sciences (USA), 2003)”.

 
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