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The practice of conducting forensic psychophysiological examinations with the use of polygraph in Ukraine

This paper will describe the Ukrainian practice of forensic examinations using polygraph examinations for the period 2007-2017 conducted by the Ukrainian Bureau of Psychophysiological Research and Safety.

We list the categories of criminal cases on which the polygraph examinations were appointed and conducted, the categories of officials who appointed these examinations, the total number of examinations conducted and describe the procedural decisions at different stages of the pre-trial and judicial investigation. Finally, we discuss the forensic and procedural requirements for the formulation of an expert opinion.

Introduction of modern scientific knowledge, scientific developments and technical knowledge in law enforcement activity, provides an opportunity to address the key tasks of criminal justice. The aim of which is to establish objective information in a criminal investigation. These aims have attracted the attention of forensic scientists. The introduction of the new Criminal Procedural Code of Ukraine radically changed the domestic criminal justice system, and created new guidelines for further reform of the legal system. In particular, was the reform of the structure of law enforcement agencies and the prosecutors, the purpose of which was to ensure effective protection of constitutional rights and freedoms for us of our citizens.

The new Criminal Procedure Code of Ukraine, has changed the approach to the use of special knowledge of authorized persons who investigate criminal offences and provide them with sources of evidence. This, provides broader possibilities for applying the Institute of Forensic Expertise.

Since the 1st of November 2010, the profession "expert polygraph examiner" has been officially included in the National Classifier of Occupations of Ukraine (code 2144.2), which is a state recognition of this profession in Ukraine.

To date, in Ukraine, the number of polygraph examiners, constantly in professional activity, is about 300 specialists, monthly up to 3 thousand tests are conducted.

Of the specified number of polygraph examiners, only about 10 specialists are taken to conduct forensic examinations with the use of a polygraph.

We have analyzed the Ukrainian practice of applying polygraph at the pre-trial and judicial investigation for the last 10 years (2007-2017). The collected information confidently shows the significantly increased interest of all procedural categories of participants in forensic investigation productions to this type of expert research using a polygraph.

To date, we can confidently talk about the existence of at least 10 years of statistics of judicial decisions from courts of various instances, including appeal courts, with consideration of the use of polygraph examinations.

The following information came from the official Internet resource of the Ministry of Justice of Ukraine - the Single State Register of Judicial Decisions (http://www.reyestr.court.gov.ua/), for the period from 2005 to May 2017. In court documents found in the Register, in different variants there are 211 mentions with the wording "psychophysiological or psychological examination with the use of a polygraph".
(registration № resolution in the Register: 51918739, 64034113, 53087565, 31422491, 61662487, 62702947, 64586660, 51670223, 46402520, 51918740, 53341793, 47733675, 59696216, 66387624, 65246972, 61212439, 46127381, 55166217, 51817700, 58695211, 28731363, 43373462, 59243159, 52324616, 64705249, 52098328, 65214286, 42181396, 53139780, 61363936, 52167228, 55329751, 55348497, 53341793, 59696216, 55591923, 61662487, 59323284, 64513418, 47095268, 42181372, 49394616, 55268937, 49395170, 55139779, 52712620, 64825647, 63866532, 63936530, 53044392, 64082949, 44564797, 45621598, 45621612, 65368042, 66281038, 57853258, 46402520, 58448941, 57741973, 57483211, 51460370, 48229022, 43373462, 54921469, 65933594, 55979851, 55591769, 52094779, 64477518, 53570730, 54247135, 44528645, 56151125, 46750008, 28516163, 41613731, 57502555, 58275248, 57413394, 44365919, 35541365, 39808994, 41739169, 59129440, 48422946, 32850600, 59802800, 56322165, 53673527, 27275950, 57586152, 6378406, 42957873, 46647457, 64989453, 9400244, 59511758, 43401977, 57413247, 34599284, 59345903, 9531920, 2320953, 42272381, 22390773, 35306744, 58719608, 1094779, 8100829, 55485223, 66655674, 27623466, 53132068, 10682076, 53885781, 49460620, 10990938, 44988490, 58902286, 32703632, 3909595, 62395649, 41742836, 24704154, 37219574, 59118401, 43144486, 31369803, 32878716, 7545977, 58604619, 57413587, 56340204, 59721326, 12503683, 92321, 54913124, 27595308, 64270837, 36864697, 54150180, 28622902, 63375091, 39659069, 36646877, 40620162, 61839454, 23975190, 56876996, 59248624, 61297360, 58113386, 59768493, 57184522, 2416101, 59768513, 58719652, 46292596, 32237353, 36826691, 31515987, 24568714, 41551355, 12691124, 58359044, 25217722, 58282068, 42048160, 66547834, 39808547, 56901468, 31507889, 20834222, 20853474, 125381, 50718465, 42634844, 66192826, 51785000, 42897584, 65459135, 56560130, 56759082, 42099755, 3629237, 39106724, 28493889, 58936336, 19437972, 41927514, 46586948, 32332625, 26235479, 22073060.)

Mention about the polygraph, in most cases, contained mainly in consideration by courts solicitors about setting of the indicated examinations, and part deals with sentences, where this examination is taken into account as one of proofs.

The analysis of information from the Register, which is freely available to the Ukrainian Internet portal, showed the following statistics
(as of May 29, 2017):

Business cases - 2
Administrative cases - 15
Civil cases - 18
Criminal cases – 176

22005 22006 22007 22008 22009 22010 22011 22012 22013 22014 22015 22016 22017

11 22 11 44 11 77 99 117 221 228 339 662 119

The statistics presented gives only a general understanding of the availability of the dynamics of the polygraph as an expert method in the judicial and investigative practice of Ukraine.

The increase of polygraph use becomes apparent in forensic investigation practice since 2012. It was this year in Ukraine that a new criminal procedural code began to operate, the provisions of which have come close to the European practice of legal proceedings.

On 27.07.2015, the Ministry of Justice of Ukraine amended the "Instruction on the appointment and conduct of forensic examinations and expert studies" (approved on 08.01.1998 No. 53/5 (as amended by Order No. 1950/5 of the Ministry of Justice of Ukraine of 26.12.2012, Registered with the Ministry of Justice of Ukraine on January 2, 2013 under No. 1/22533.), as well as in the "Scientific and methodological recommendations on the preparation and appointment of forensic examinations and expert studies".

In Section VI, paragraph 6.8 of the said Instruction, had put additions about the possibility of carrying out expert studies using a special technical means - a computer polygraph. Starting in 2015, the Kiev Scientific Research Institute of Forensic Expertise, for the first time at the state level, began to conduct forensic psychological examinations with the use of a polygraph by several experts- psychologists having special training that allows conducting studies using a polygraph.

The demand for courts and investigative bodies in this type of expert research has increased quite rapidly, over the period 2015-2017, only the specified state expert institution conducted up to 70 expert examinations and expert studies using polygraph.

During the period from 2009 to May 2017, experts of the Ukrainian bureau conducted 87 expert examinations with the use of a polygraph.

Categories of the accepted court and judicial decisions taking into account the conclusions of examination with the use of polygraph
(The practice of the Ukrainian bureau PFDB for 2007-2017).

Indictments (court) 11 (13%)
Exculpatory decisions (Court, prosecutor’s office) 3 (3%)
Refusal to prosecute during pre-trial investigation 65 (75%)
Considered 8 (9%)

The categories of criminal proceedings for which psychophysiological examinations were conducted using a polygraph
(The practice of the Ukrainian bureau PFB 2007-2017).

Murders (including custom) 32
Official crimes (including those with confirmed OCGОПГ??) 12
Theft, looting 9
Severe bodily harm, incl. Accident 8
Rape 4
Hooliganism, arson 4
Drug Sales 4
Pedophilia 3
Bringing to suicide 2
Abduction of a person (including staging) 2
Raiding 1
Civil and Administrative cases

The examinations were requested as follows:

Appointed by investigators 54

Appointed by the prosecutor’s office 8

Appointed by the court 13

Appointed by lawyers 12

Of the total volume of examinations conducted in the Ukrainian Bureau with the use of a polygraph, approximately 30% of the total number of examinations passed before consideration by the courts. Thus, on the example of the expert practice of the Ukrainian Bureau of Psychophysiological Research and Security, hidden (latent) statistics on the use of polygraph in criminal proceedings, with the adoption of procedural decisions at the pre-trial investigation stage is 70%. The brought numbers are very approximate, because lately greater part of examinations was appointed and conducted exactly already in courts.

Legislation of Ukraine provides for the possibility of conducting forensic examinations by persons who are not judicial experts. First of all, this is determined by Part 4, Article 7 of the Law of Ukraine "On Forensic Examination". Thus, even though in the register of forensic experts of the Ministry of Justice of Ukraine, there are no forensic experts with the qualifications of an expert polygraph examiner, an investigator, a prosecutor, a lawyer or a court can attract specialists and appoint them as experts to conduct one specific examination.

In addition to the Law "On Forensic Expertise", the legal provisions of the Law "On the Bar" are used, as well as a number of articles of the Code of Criminal Procedure. Any expert study is a scientific hypothesis. In our deep conviction, the conclusions of expert polygraph examiners can only be considered. In all cases, they should be considered in conjunction with other proofs and materials of criminal proceedings. This particularly applies to situations where available proofs of guilt or innocence of a particular person is not enough and it is difficult to take a procedural decision.

Our practice shows that, as a rule, a polygraph is used in court proceedings with insufficient evidence base to obtain additional objective information about the actions or awareness of the suspect, accused, victim or witness about what happened.

The production of psycho-physiological examination using a polygraph is carried out only by those questions that are connected with the clarification of any actions in the past. Each question submitted to the study should help to make the correct legal assessment of the action in the event of a crime. The competent formulation of the conclusions made by the expert polygraph examiner with observance of all the necessary procedural and forensic requirements allows one to consider, evaluate and recognize the results of his work as one of the proofs. Ultimately, this makes it possible not only to build up investigative and judicial versions with greater confidence, but also to take decisions in the case together with other collected evidence.

The value of a psychophysiological study using a polygraph is determined not only by the ability of the polygraph examiner to properly conduct testing, but also by his ability to correctly articulate and formalize the results of his work, which is especially important when it comes to investigative and judicial situations. For court, an important requirement in assessing the expert’s conclusion as evidence, along with its admissibility, relevance and reliability, is accessibility for perception, scientific support and credibility of the conclusions in it.

The need for coverage of the principles related to the use of polygraph is essential for society, since the lack of theoretical knowledge in this issue, awareness of the technology of instrumental psychophysiological research causes an ambiguous interpretation of the results of such studies, in particular in criminal proceedings. The modern state of use of the results of expert conclusions of psychophysiological examinations carried out with the use of polygraph shows that the indictments and judicial decisions are no more than 15% of the total number of forensic examinations performed in open criminal proceedings. The other almost 85% - are examinations in respect of citizens and psychophysiological examinations carried out on them using a polygraph for criminal proceedings, in which procedural decisions were taken to deny or suspend the criminal prosecution or acquittal of a person. That is, a psychophysiological examination using a polygraph in the overwhelming majority of cases turned out to be more necessary and useful precisely to confirm the person’s innocence in the commission of a criminal offense. For this reason, the presumption of innocence is always the first principle of the methodical approach when preparing and conducting instrumental diagnostics of the verbal information.

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