Polygraph Tests: Physiology, Techniques, and Legal Considerations in India

Understanding Polygraph Examinations

Challenges and Accuracy of Polygraph Examinations

The use of polygraph examinations, along with emerging technologies, plays a significant role in the interrogation and screening of individuals, including employees and criminals. However, it’s crucial for examiners and physicians to recognize the susceptibility of results to inaccuracies in subjects with autonomic disorders and potential confounding factors arising from the use of multiple medications.

The specific questioning procedure employed for a polygraph examination can vary, with the Comparison Question Test being the most commonly utilized format. This approach involves a series of questions relevant to the investigation, interspersed with control questions. The examiner then compares the changes in vital signs and skin conduction with the baseline measurements obtained during the pretest interview and control questions.

Studies have indicated that when standardized techniques are applied, polygraph examinations in controlled settings have exhibited accuracy rates ranging from 83% to 95%. Nevertheless, it’s essential to acknowledge the influence of various factors, including the individual’s physiological condition and the specific questioning approach, on the overall accuracy of the results.

In conclusion, while polygraph examinations have demonstrated substantial accuracy in controlled environments, the potential impact of physiological conditions and questioning techniques highlights the ongoing need for careful consideration and vigilance in their application.

The term “polygraph” originates from the Greek words “poly,” meaning many, and “graph,” meaning writings. This name signifies the simultaneous recording of selected physiological activities. Polygraph examiners may use conventional instruments, referred to as analog instruments, or computerized instruments to conduct examinations.

A polygraph examination gathers physiological data from at least three body systems. Respiratory activity is recorded using corrugated rubber tubes or electronic sensors placed over the examinee’s chest and abdominal area. Sweat gland activity is recorded using small metal plates or disposable adhesive electrodes attached to the fingers. Cardiovascular activity is measured using a blood pressure cuff or a similar device. Some instruments also monitor other activities such as blood volume in a fingertip or general movements that might interfere with test data.

It’s crucial to note that a polygraph doesn’t include the analysis of physiology associated with the voice. Instruments claiming to record voice stress are not considered polygraphs and have not demonstrated superior accuracy. They have typically shown accuracy levels similar to making decisions based on chance.

A standard polygraph examination involves a pre-test interview, a chart collection phase, and a test data analysis phase. During the pre-test phase, the polygraph examiner completes the necessary paperwork and discusses the test with the examinee, addressing any questions or concerns they may have. The examiner also explains the test questions and familiarizes the examinee with the testing procedure.

Subsequently, in the chart collection phase, the examiner administers and collects multiple polygraph charts, the quantity of which varies based on the number of issues and the employed technique. Finally, the examiner analyzes the charts and forms an opinion regarding the examinee’s truthfulness. If necessary, the examiner allows the examinee to explain physiological responses concerning the presented questions.

The NHRC Guidelines of Lie Detector Tests in India

The use of Lie Detector Tests in India has been a matter of significant concern, particularly in cases of custodial torture and violation of human rights. The National Human Rights Commission (NHRC) has been actively involved in addressing this issue and has formulated comprehensive guidelines for the administration of Lie Detector Tests.

In response to the lack of legal regulation governing the administration of these tests, the NHRC adopted a set of guidelines on 12 November 1999. These guidelines emphasize the following key points:

1. Consent: No Lie Detector Test should be administered without the explicit consent of the accused. The accused must be given the option to volunteer for the test.
2. Legal Representation: If the accused chooses to take the test, they should have access to a lawyer. Both the police and the lawyer must explain the physical, emotional, and legal implications of the test to the accused.
3. Judicial Oversight: The consent of the accused should be recorded before a Judicial Magistrate, who will ensure that the accused fully understands the implications of the test.
4. Recording Procedure: The actual recording of the Lie Detector Test should be conducted in the presence of a lawyer and an independent agency, such as a hospital. A full medical and factual narration of the manner of information received must be taken on record.

These guidelines were circulated to the Chief Secretaries and DGPs of States, as well as Administrators and IGPs of UTs, to ensure their implementation.

The NHRC’s proactive stance in formulating these guidelines reflects a crucial step towards safeguarding the rights of individuals and ensuring the ethical and legal conduct of Lie Detector Tests within the Indian legal framework.

Constitutional Validity of Narco-Analysis Tests in India

In the case of Selvi v. State of Karnataka (2010) 7 SCC 263, the constitutional validity of narco-analysis tests was deliberated. The court addressed the question of whether the results obtained through polygraph examination and the BEAP test should be treated as testimonial responses under the protective scope of Article 20(3) read with Section 161(2) CrPC.

The court affirmed the protective scope of Article 20(3) in guarding against the compulsory extraction of oral testimony, even at the stage of investigation. It was highlighted that the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). However, the court emphasized that even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information already in the possession of investigators.

Regarding the narco-analysis test, the court found that its involuntary administration offends the “right against self-incrimination” as it includes substantial reliance on verbal statements by the test subject. In reference to the crucial test laid down in Kathi Kalu Oghad, the court stressed the significance of imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation.

This case underscores the complexities surrounding the administration of tests that involve testimonial responses, balancing the protection of individual rights against the investigative interests of law enforcement agencies.

The reference to the US Supreme Court’s observation in Schmerber [384 US 757 (1965)] decision underscores the intricate ethical and legal considerations surrounding polygraph examinations and similar tests. The observation aptly highlights the parallels between compelling a person to undergo testing for physiological responses and the spirit of the Fifth Amendment. This notion revolves around the extraction of knowledge, which would not have been accessible through other means, from the subject’s mental faculties based on the results of these tests.

Furthermore, the distinction drawn between medical examinations and the analysis of bodily substances, and lie detection or gauging a subject’s familiarity with stimuli, underscores the unique nature of these tests. The subject’s physiological responses are intricately linked to their mental processes, thereby conveying personal knowledge relevant to the investigation. This distinction is crucial as it emphasizes the potential impact of imposing such tests on an individual’s right to choose between remaining silent and providing substantive information.

Additionally, the emphasis on the subject’s compelled conveyance of personal knowledge, irrespective of their volition, highlights the discord with the requirement of a “positive volitional act”. This raises pertinent questions regarding the ethical implications and the safeguarding of individual rights within the context of investigations and law enforcement practices.

The Legal Standing on the Administration of Techniques in Question

In a significant ruling, the Supreme Court of India has established that no individual should be forcibly subjected to the impugned techniques, whether in the context of criminal investigation or otherwise. This stance is rooted in the protection of personal liberty, constituting an unwarranted intrusion when carried out without consent.

The Court has, however, allowed for the voluntary administration of these techniques in the realm of criminal justice, with the condition that specific safeguards are in place. Even with the consent of the subject, the results of these tests themselves cannot be admitted as evidence, as the individual does not have conscious control over their responses during the administration.

Nonetheless, any information or material subsequently discovered with the assistance of voluntarily administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872. This delineation underscores the careful approach taken by the Court to balance investigative interests with individual rights.

The right to privacy, firmly grounded in Article 21 of the Constitution of India, is equally pivotal. Notably, recent decisions of the Court have recognized this right, overturning previous judgments that denied its constitutional recognition. The case law has evolved to firmly establish the right to privacy as a fundamental element enshrined in the constitutional framework.

This evolution of legal doctrine, particularly in the context of the regulatory power of search and seizure, has underscored the profound significance of safeguarding individual liberties within the criminal justice system. The Court’s discerning approach reflects a commitment to upholding fundamental rights while addressing the complexities of modern investigative practices, thereby shaping the legal landscape underpinning these crucial aspects of the justice system.

Physiologic Measurements Taken by Polygraph