Modern Advances in the Recognition of Dishonesty: Analysis of Polygraph

Modern Advances in the Recognition of Dishonesty: Analysis of Polygraph

Polygraph or Lie Detector Test

The term ‘Polygraph actually signifies ‘numerous works’ in this manner the name alludes to a procedure where chosen mental exercises are recorded. 19 The principal endeavor right now made to extend a logical instrument to recognize reality or misrepresentation as ahead of schedule as 1895 by Lombroso. It was essentially intended to record circulatory strain and changes in beat rate. Later Larsen and Keeler structured an instrument which was additionally evolved by John Reid in 1947. The exceptionally key standard fundamental Polygraph is that when an individual untruths he gets anxious, which thusly causes mental excitation. To disguise the energy which the individual endeavors, adrenal organs are invigorated to emit Adrenalin, which on entering the circulation system, sets up the circulatory strain and pace of heartbeat and breath. All these mental changes when recorded are by and large called Polygram, which is dissected and assessed to see if, during the falsehood recognition test, the subject experienced enthusiastic worry with any of the inquiries asked.20

Such assessment is performed based on supposition that there is a private contact among psyche and body and is performed by various segments or the sensors of the Polygraph machine, which are appended to the body of the presumed individual’s body that is being interrogated. The standard behind the test is that the presume fears location of his/her falsehood and makes in him/her a feeling of dread which therefore brings about mental changes which are caught by various instrument. 21 The circulatory strain, beat rate, breath, and muscle development subtleties, and so forth recorded by the machine. This test is led at three phases to be specific pretest talk with, diagram recording, and determination. The inspectors orchestrate a lot of inquiries which rely on the pertinent data about the case which is given by the examination mechanics, for example, the charges against the individual and proclamations made by the suspects. The response which happens during the assessment of the suspect is recorded and estimated. A standard is made by the analyst by posing not many inquiry answer of which is now known to him. Regardless of whether an individual is lying or not is perceived by conduct and mental changes, which the chart uncovered. The indication of falsehood is gotten from the benchmark. All such proof is then substantiated with the other proof gathered. Keeler further built up the Polygraph machine by including a psycho-galvanometer, which would record electrical obstruction of the skin.

  • 17 Chandan Panalal Jaiswal; v. Province of Gujarat 2004 CriLJ 2992, Avtar Singh v. Province of Haryana 2006 CriLJ 1866, Sampatrao Arveli v. Province of Maharashtra, 2009 CriLJ 457.
  • 18 Anjaneya das and Arun Kumar, ‘Narco-Analysis and the moving ideal models of Article 20(3): A remark of Selvi v. Province of Karnataka’117 CriLJ 94(2011).
  • 19 Yawer Qazalbash, Law of falsehood Detectors (Narcoanlysis, Polygraph, Brain mapping, Brain Fingerprinting) 60(Universal Law Publishing Co., New Delhi, 2011).

20 Id.,65.

Modern Advances in the Recognition of Dishonesty

Lombroso was the first to explore different avenues regarding a machine estimating circulatory strain and heartbeat to record in 1895. He is known as the establishing father of criminology. It was called by him a hydro sphygmograph. An indistinguishable gadget was utilized by Harvard analyst William Marston during World War I in undercover work cases, who brought the procedure into American court frameworks. In 1921, John Larson included the thing of breath rate, and, Leonard Keeler, who was one of the establishing fathers of legal science, included skin conductance and an enhancer by 1939, along these lines sign the introduction of the Polygraph as today is known by us. Polygraph (Lie-Detector) depends on the guideline of psychosomatic collaborations of an individual for example mentally an adjustment in an individual’s purposely held inclination creates a safeguard response as physiological changes in his circulatory strain, beat rate, breath, and electro-dermal response(GSR).23

The fundamental modernization in the Polygraph has been the acquaintance of PC with record and break down the physiological response and information, albeit a couple of developments in the information gadgets to build the quantity of recording, to decrease the uneasiness, and reduction the ideal opportunity for testing have additionally come up. Modernized Polygraphs have the accompanying focal points:

  1. Operational preparing needs less time make accessible better interpretable information
  2. No visit adjustments as in customary Polygraphs because of pen distortion.24

Besides the effective procedure of Polygraph relies upon the experience, character, respectability of the inspector, legitimate operational condition, and cross-examination room.25

  • 21 Supra 5, 457.
  • 22 ‘Polygraph test and its incentive in measurable science’, accessible at: Midgetenitity, www. rediffiland.com, (visited on date – 9-05-2011).
  • 23 ‘Advance trickiness in field of recognition’, accessible at: airwebworld.com.(visited on 15-02-2012).

Brain Mapping or P300 Test

Dr. Lawrence A. Farwell, Director and Chief researcher of ‘Cerebrum Wave Science’ IWOA built up this test and licensed in the year 1995. He was a notable nervous system specialist. This method is otherwise called ‘Mind wave finger printing’. Right now, suspect is first met and grilled to see if he is hiding any significant data. At that point sensors are joined to the head and the individual is made to sit before a PC screen. He is then appeared and made to hear certain pictures and voice. The sensor appended to head screens and records electrical movement and P300 waves in the mind, which is delivered just if the subject has connect with improvement. The subject isn’t posed any inquiry. To lay it out plainly, it basically implies that cerebrum finger printing matches the data put away in the mind with that of the related wrongdoing and wrongdoing scene. In the event of an honest individual no such P300 waves would get enrolled during the test26.

In India, the principal Forensic lab which utilized this strategy is Forensic research center of Bangalore. Verification created by Expert in a criminal preliminary would be only a small amount of the totality of the proof on the energy about which the adjudicator or jury takes judgment. The Court considers the various verifications nearby alongside the perspective on the logical master, which is only one bit of proof should have been thought about and acknowledged for its evidentiary worth. Much after the legitimacy of the system of cerebrum fingerprinting fulfills Daubert’s criteria, its application as a legal apparatus in singular cases will rely on the validity of the examination and different elements. The test would not be relevant for a situation in which two suspects in an examination were both present at a wrongdoing, yet one was an observer and the other a culprit. The technique can just identify data from their memory that would put both at the area of the wrongdoing and it can’t choose what their jobs were, in this manner making an unmistakable chance of a guiltless observer turning into a suspect of the wrongdoing and giving a questionable chance to the genuine guilty party to make a circumstance of doubt.27 Moreover, the strategy would not be complete for a situation in which specialists don’t have adequate data about a wrongdoing to have the option to test a suspect for wrongdoing important data put away in the cerebrum. The mind fingerprinting examination distinguishes the presence or nonexistence of data and not the blame or blamelessness as such. In barely any cases, an individual may have for all intents and purposes all the accessible data about a wrongdoing, despite the fact that he isn’t a culprit. In such cases, having pertinent data concerning wrongdoing won’t perceive that person as the culprit and the test can’t be applied to unravel the case. The heuristics proposed comprises of five essential parts and underlines the fundamental standards basic to all fields of science.28 It is recommended by the creator that the appointed authorities and the legal advisors who help them about their cases, must have the option to complete five things: (I) Identify and look at the proffered hypothesis and speculation for their capacity to clarify the information; (ii) Examine the information that bolsters (and undermines) the master’s hypothesis; (iii) Use supportable presumptions to fill the unavoidable holes among information and hypothesis; (iv) Examine the approach; and (v) Engage in probabilistic appraisal of the connection between the information and the hypothesis.

  • 24 ‘Admissibility of Scientific Evidence and the Bias against Lie Detection accessible’, accessible at: www.legalservice.com (visited on 05-12-2013).
  • 25 Ibid.
  • 26 Supra 2.

Analytical Essay on Eyewitness Testimonies: Executing Polygraph Tests

Analytical Essay on Eyewitness Testimonies: Executing Polygraph Tests

In the course of 1977, Randall Dale Adams, or Mr. Adams was convicted and sentenced to death for the murder of a police officer in Dallas County, Texas. An alleged eyewitness, who in fact was the actual killer, set up Mr. Adams and received immunity from prosecution in exchange for his testimony. It turned out that Mr. Adams was not involved in the crime at all. The facts came to light after filmmaker Errol Morris took an interest in the case and produced a now-famous documentary — The Thin Blue Line — about the case. Mr. Adams and the victim were both white males. The time-lapsed (for Mr. Adams’s case) from arrest to exoneration is 147 months. They found out that the actual killer, David Ray Harris, was just sixteen years old when he shot the victim, Patrolman Robert Wood, during a traffic stop. Although it was mentioned that Mr. Adams and Patrolman Robert Wood were both white, no one can assume that this was done because of Ethnic hatred because of the fact that David Ray Harris was also a white male. Nevertheless, this case could be a little odd since a police officer was killed by a sixteen-year-old young man who pretended to be the eyewitness testimony.

Eyewitness testimony is one of the factors that a judge considers when determining decisions in court cases, but they can be very unreliable especially if there is no evaluation. Forensic mental health assessment (FMHA) has grown into a specialization informed by research and professional guidelines. The 19 topical volumes address best approaches to practice for particular types of evaluation in the criminal, civil, and juvenile/family areas. There are a growing number of identified cases in which citizens have been convicted of serious crimes and later found to be innocent. In many such cases, eyewitness identification is the only evidence linking the defendant to the crime. Since there is a substantial body of literature on erroneous convictions, Innocence Project was created. The goal of the Innocence Project is to use DNA evidence to uncover erroneous convictions. This project and evaluating eyewitness testimonies firsthand before having them in court cases will account them as more reliable forms of evidence.

Millions of people have been arrested or detained, but not yet found guilty of a criminal offense by a jury. The Federal Bureau of Investigation and many states are expanding their DNA databases to include these people. One of the reasons why a great amount of people are being arrested or detained but are not yet convicted is the eyewitness testimony who claimed to be very confident identifying a suspect. Innocent people have been convicted of crimes that they did not commit. Conviction is the verdict that usually results when a court of law finds a defendant guilty of crime. In April, The New York Times reported that the FBI began collecting DNA samples from individuals awaiting trial and from detained immigrants. Currently, 15 states collect DNA samples from individuals awaiting trial. Law enforcement officials say expanding DNA collections will help solve more violent crimes, as well as potentially exonerate more people who have been wrongfully convicted because it is more accurate than other forms of evidence. This goes to show that there are other ways that can be used as forms of evidence in court cases. Nonetheless, if government officials start evaluating eyewitness testimonies, they can also be reliable forms of evidence just like the DNA samples.

The malleable nature of human memory and visual perception make eyewitness testimony one of the most unreliable forms of evidence. Malleable nature of memory can convince a person that s/he saw something that was not actually present. Twenty-five percent of individuals can be easily induced to remember events that never happened. Eyewitness can be very confident that his/her memory is accurate which leads to misconceptions and defendants being wrongfully accused and convicted. In spite of that, there are certain drugs that enhance memory, and they may hold the key to preventing disorders as wide-ranging as Alzheimer’s disease and posttraumatic stress disorder (PTSD). Also, hormones that help engrave the narrative of our lives into our cells have now been identified. Eyewitness testimonies can’t be a hundred percent accurate at all times, but there will always be ways to improve their memories. The modern world that people live in right now is very different from the world thousands of years ago. As a result, new and advanced technology is being offered to everyone that helps the civilization to improve in many ways possible. Therefore, eyewitness testimonies can still be reliable forms of evidence in court cases with enough assistance, supervision, and knowledge.

Nobody performs well under pressure. It is better to give the eyewitness testimonies more time to analyze certain events than ended up having a blurry description of an incident, providing them enough time to examine the occurrences will result in more accurate details. More comprehension regarding this point is given by the National Center for Biotechnology Information:

In the eyewitness identification literature, stress and arousal at the time of encoding are considered to adversely influence identification performance. This assumption is in contrast with findings from the neurobiology field of learning and memory, showing that stress and stress hormones are critically involved in forming enduring memories. This discrepancy may be related to methodological differences between the two fields of research, such as the tendency for immediate testing or the use of very short (1–2 hours) retention intervals in eyewitness research, while neurobiology studies insert at least 24 hours (National Center for Biotechnology Information).

First off, eyewitness identification literature’s views is in contrast with findings from the neurobiology field of learning and memory. The eyewitness identification literature believed that stress and arousal at the time of encoding are considered as factors for determining the eyewitness testimony’s ability of remembering past events. On the other hand, the neurobiology field of learning and memory stated that stress and stress hormones are also involved in the process of determining the ability of an eyewitness testimony. This information provides a better understanding on how stress and pressure affect the eyewitness testimonies’ identification of events. Eyewitness testimonies cannot carry out their reminiscences and thoughts properly when they are stressed and under pressure. Furthermore, the National Center for Biotechnology Information also mentioned the flaw of using very short retention intervals in eyewitness research that only takes about 1 to 2 hours, where it should take at least 24 hours. This demonstrates that occasionally, it is not the eyewitness testimony’s fault to be mistaken. Stress hormones in human body also contribute to the factors that lead eyewitness testimonies to be ambiguous in giving details or descriptions.

Estimating the ability of an eyewitness before giving him/her the right to speak in a court proceeding will enhance the chance of getting better results. Court proceedings are something that should be taken seriously because the people there who have been accused of crimes or also called the defendants are fighting for their civil rights and liberties. Eyewitness testimonies can be really convincing in courts, but being convincing is not the same as being accurate. A government official should be sensible enough to tell whether the eyewitness is telling the truth or not. Since most of the time the eyewitness testimony is not a hundred percent accurate, it is the responsibility of a government official to examine the ability of an eyewitness’s memory and visualization of events. Every person has this thing called selective attention or selective memory, that is why the eyewitness’s awareness should also be put into test. Selective memory is the person’s ability to remember certain information and not remember other information. In this case, an eyewitness testimony could remember some parts of the event, but not the whole thing which could lead to more confusion and inaccuracies. A general evaluation of the eyewitness testimony is crucial because doing this will avoid any fallacy in the future court decisions. Presenting an eyewitness in a court proceeding without doing any kind of evaluation can result in a judicial misconduct.

The Sixth Amendment in the Bill of Rights is also associated with eyewitness testimony. Sixth amendment says that a defendant has the right to confront a witness against him/her in a criminal action, as well as the right to cross-examine the prosecution’s witnesses. A person accused of a crime cannot be put in jail without public trials. Eyewitness testimonies also participate in public trials, and in fact they are important during court trials as they are forms of evidence for or against the defendant. Moreover, defendants cannot also be put in jail without due process of law which is a fair treatment through the normal judicial system. All of these legal proceedings include the eyewitness testimonies, that is why eyewitness testimonies are vital parts of determining whether a person accused of crime is guilty or not. An eyewitness testimony plays an important role in court proceedings and because of that reason, they should be examined carefully. It is required in all criminal trials to restore facts from previous events, and eyewitness testimonies are frequently very important to this effort. A judge will base his/her verdict upon the eyewitnesses’ statements, that is why analyzing the eyewitness testimonies’ ability to recall specific events is very important.

A court case will go nowhere, especially if an eyewitness is not even telling the truth. Sometimes, it is easier to tell a bunch of lies than telling the truth. Some people often tell lies without them realizing it. Not only is it easy to tell a lie, but also to make up a story. If an eyewitness testimony intentionally tells lies in a court proceeding, there could be a number of reasons why they are doing that. One of the reasons could be because s/he has personal problems or issues with the defendant, and s/he is taking advantage of the opportunity to get back at the defendant. Another reason could be that someone paid or forced them to speak against the defendant just to press the person who is accused of committing a crime. In this scenario, an eyewitness testimony could be very unreliable. Moreover, this is not a fair situation for the accused. Nonetheless, performing an evaluation to the eyewitness testimony can be helpful. Government officials could do something like Polygraph tests to see if an eyewitness is telling the truth or not. A polygraph examination includes a series of yes or no questions to which the examinee responds while connected to sensors that transmit data on these physiological phenomena by wire to the instrument, which uses analog or digital technology to record the data. The American Polygraph Association, which puts standards for testing, says that polygraphs are “highly accurate,” producing an accuracy rate above 90 percent when carried out properly. Although critics say the tests are correct only 70 percent of the time. Executing Polygraph tests to the eyewitness testimonies can be a form of evaluation, and it will also lead to a more accurate result. Furthermore, Polygraph tests can prevent an eyewitness testimony from giving false testaments during court proceedings.

Analytical Essay on Lie-Detector Tests: Study of Polygraph

Analytical Essay on Lie-Detector Tests: Study of Polygraph

In any criminal investigation, interrogation of suspects and the accused play an important role. Gathering evidence against the accused is the cornerstone of any criminal investigation. The responsibility of prosecuting an accused lies on the government, as a result, there is always a possibility that the state having enormous muscle power might infringe the rights of the accused by proceeding with the trial in an unjust manner. In order to protect the accused from the possible threat of being convicted unjustly, certain rights have been devised. These rights have also been recognized by the framers of the Indian Constitution and in turn, inserted the rights in Article 20 under the heading “protection in respect of conviction for offenses”.

The rights under Article 20 could be availed by the citizens as well as non-citizens. The term “person” for the purposes of Article 20 also includes a corporation which is accused, prosecuted, convicted or punished for an offense. The right is so critical to the justice delivery mechanism that it cannot be suspended even during an emergency. It also constitutes a limitation on the legislative power of the parliament or the state legislatures under Article 246, read with the three Legislative Lists contained in the Seventh Schedule to the constitution.

In this paper, the third clause of Article 20 shall be discussed in detail, which appears with the wording- “No person accused of any offense shall be compelled to be a witness against himself”. This clause is based on the maxim ‘Nemo tenetur prodere accussare seipsum”, which means that “no man is bound to accuse himself”. It is known as the Miranda Principle. This provision embodies the principle of protection against compulsion of self-incrimination, which happens to track its origin to being one of the most important principles in the British system of jurisprudence. This principle was also enacted into the United States Constitution by the 5th amendment. The constitution of India has also accepted the principle and raised its status to being a constitutional prohibition.

The characteristic features of Common Law criminal jurisprudence are that an accused must be presumed to be innocent till the contrary is proved and that the accused shouldn’t be made to make any admission or statement against him. It is the duty of the prosecution to establish the guilt of the accused.

The rights under Article 20(3) of the Indian Constitution can be broadly divided into three components

  1. Right pertaining to a person accused of an offense;
  2. Protection against compulsion to be a witness;
  3. Protection against such compulsion resulting in his giving evidence against himself.

The Supreme Court of India has further widened the ambit of Article 20(3) through various judgments like Selvi v. State of Karnataka and many others.

Chapter-2 Right of the accused against compulsion to be a witness

The privilege under Article 20 (3) of the Indian Constitution is given to a person who has been accused of committing a crime. An accused for the purposes of the Article is a person against whom a formal accusation relating to an offense has been made which in normal course will result in prosecution. However, in order to avail the benefit under Article 20(3), it is not necessary that the actual trial or inquiry should commence before a court or a tribunal. If against a person, a First Information Report (FIR) has been recorded by the police and investigation has been ordered by a magistrate, then that person can seek protection under Article 20(3). A person who has not been named in the FIR can still be provided protection under the provision if oral or circumstantial evidence point to the guilt of the said person and he has been taken into custody on that basis.

In the United States of America, the privilege against self-incrimination is given to accused as well as the witnesses. Under English law too protection has been extended to the witnesses, where a witness is protected from answering the questions which may lead to criminal prosecution or any other penalty or forfeiture. In India, a witness is not protected under the provision as it would make things difficult for the police and many criminals would go scot-free.

Nandini Satpathy case

Nandini Satpathy, the former Chief Minister of Orissa, was directed to appear at the Vigilance Police Station, Cuttack, in connection with a vigilance case against her. Nandini Satpathy was given a long list of questions in writing about her alleged acquisition of assets disproportionate to her known sources of income. She exercised her right under Article 20(3) of the Constitution and refused to answer the questions. Article 20(3) guarantees that no person accused of any offense shall be compelled to be a witness against oneself.

She was booked under Section 179 of the Indian Penal Code (refusing to answer a public servant authorized to question). When the magistrate issued her summons of appearance she challenged it before the High Court, saying her right under Article 20(3) was infringed.

When the High Court rebuffed her, Nandini Satpathy appealed to the Supreme Court.

Her appeal was allowed magistrate‘s proceedings against her were quashed. Besides, it was likely that some of the questions posed to her were self-incriminatory. It was in this case that the Supreme Court laid down that the prohibitive sweep of Article 20(3) went back to the stage of police investigation. Justice Krishna Iyer held that an accused person was entitled to keep his or her mouth shut if the answer had a reasonable prospect of exposing him or her to guilt in some other accusation, actual or imminent, even though the investigation underway was not with reference to that. However, Justice Iyer said an accused was bound to answer where there was no clear tendency to criminate. The “right against self-incrimination” is now viewed as an essential safeguard in criminal procedure. Its underlying rationale corresponds broadly with the objectives of ensuring the reliability of statements made by an accused and ensuring that such statements are made voluntarily.

Right to Call a Lawyer

The Court also laid down some guidelines for the due observance of Article 20 (3) by police authorities one of which was that they (the police) must inform the accused that he has a right to call a lawyer before answering to any of their questions

The Nandini Sathpathy judgment also held that under Article 20(3), a suspect is also protected. Hence this case has been an important event in the process of declaring Article 20(3) vital to the democracy.

Protection against compulsion to be a witness

The guarantee in Article 20(3) is against the compulsion ‘to be a witness’ to be a witness means making of oral or written statement in or out of court by a person accused of an offence. In other words, it means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in a court or otherwise. Such statements are not confined to confessions but also cover incriminatory statements, i.e. to statements which have a reasonable tendency strongly to point out the guilt of the accused. “To be a witness” is not equivalent to “furnishing evidence” in its widest significance, that is to say, as including not merely making of oral or written statements but also the production of documents or giving materials which may be relevant at trial to determine the guilt or innocence of the accused.

The giving of thumb impression or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are nt included in the expression “to be a witness” in Article 20(3). So taking voice samples of an accused by the police during the investigation is not hit by this Article. But the results obtained through involuntary administration of either narco-analysis technique, polygraph examination or Brain Electrical Activation Profile (BEAP) Test come within the scope of “Testimonial Compulsion” and are, therefore, protected by Article 20(3).

Chapter-3 Right against giving evidence against self

The prohibition is only against the compulsion of the accused to give evidence against himself. In Kalawati v. H.P. State, the Supreme Court has held that Article 20 (3) does not apply at all to a case where the confession is made by an accused without any inducement, threat or promise. Similarly, retracted confessions, although they are of very little probative value, are not repugnant to this clause. To bring the evidence within the inhibition of Article 20(3) it must be shown that the accused was compelled to make the statement having a material bearing on the criminality of the maker.

Mohd. Dastagir v. State of Madras -The appellant had gone to the bungalow of the Dy. Superintendent of Police to offer him a bride contained in a closed envelope. The police officer threw the envelope at the appellant who took it up. Soon thereafter, he was asked by the police to produce the envelope and he took out from his pocket some currency notes which were seized by the police. The appellant pleaded that the currency notes seized by the police should be allowed to be produced as that would amount to the admission of compelled evidence. The Court held that clause (3) of Art.20 did not apply firstly because no compulsion or duress was exercised against the accused and secondly because at the time the currency notes were seized he was not an accused. So also the tape-recorded evidence, which is unknown to the accused, is not rendered inadmissible as the accused’s conversation was not extracted under duress or compulsion.

In Nandini Satpathy case, the Court has widened the scope of compulsion and held that “compelled testimony” is evidently procured not merely by physical threats or violence, but also by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidating methods and the like. Admission of the tape-recorded statement of an accused taken without his knowledge but without any compulsion is not barred by Article 20(3).

Lie-detector tests

Selvi & Others Vs State Of Karnataka

Supreme Court has rightfully denounced the use of narcoanalysis, brain mapping, and polygraph tests on any person, including accused persons, suspects, and witnesses. In Smt Selvi & Others vs the State of Karnataka, the Court declared that these interrogation methods amount to cruel, inhuman, and degrading treatment and violate individuals’ rights against self-incrimination under Article 20(3) of the Indian Constitution. The Court held that (a) no one can be forced to undergo any of these tests, (b) the results garnered from even voluntarily administered tests cannot be admitted into evidence in court, and (c) evidence garnered by using the results of a voluntarily administered test can only be used to aid further investigation if a subject gives informed consent with appropriate safeguards followed, including judicial recording of consent and the presence of a lawyer. In reaching this holding, the Supreme Court overturned several poorly reasoned high court judgments upholding the use of narcoanalysis and other tests and has thereby restored some legitimacy to the judiciary in matters of criminal investigation and prosecution.

The Supreme Court also held that forcing someone to take the test amounted to compulsion for purposes of self-incrimination and that even if a given test is voluntarily undertaken, the results of the test amount to compelled testimony that could not be admitted into evidence. The Court reasoned that the results of the tests constituted ‘personal testimony’, and that the lack of conscious control over the answers given or the inferences drawn during any of the tests denied an individual the right to choose whether to speak or remain silent. The Court highlighted the role of the right against self-incrimination as a ‘check on police behavior during the course of investigation’ and a ‘vital safeguard against torture and other ‘third-degree methods’ that could be used to elicit information.

The Court also described the unreliability of the information garnered from any of the tests, noting the subject’s suggestibility by examiners during narcoanalysis and the likelihood of misleading or false information conveyed during any of the tests. The Court further noted that the use of tests frustrated the right to receive legal advice and prepare an adequate defense due to the involuntary nature of the responses, and removed the beyond reasonable doubt standard of proof given the ‘questionable scientific reliability of these techniques.

Despite the sharp denunciation of narcoanalysis, brain mapping, and polygraph tests, the Supreme Court articulated a narrow exception for their use. If an individual voluntarily agrees to undertake any of the tests, the Court held that although the results of the tests themselves could not be admitted into evidence in court, ‘any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted’. This exception means that the Court still opened the door for these discredited techniques’ continued use.

The Court has held that if an individual is fully informed about the nature of the tests and voluntarily consents before a magistrate in the presence of her/his advocate, then if any information gathered through the tests is helpful it should be allowed to be used for further investigation. However, the history of the use and abuse of these and other methods of interrogation raises suspicions that police will continue to coercively administer these tests in violations of individuals’ fundamental rights and subsequently claim voluntariness (if ever questioned). Thus, while the Supreme Court’s decision is a positive step towards ending the abusive use of narcoanalysis, brain mapping, and polygraph tests, any continued use of these tests must be diligently monitored and regulated.

Critical analysis of article 20(3)

Arun Ferreira’s case

The recent Supreme Court judgment prohibiting the use of narcoanalysis, brain mapping, and polygraph tests could not be more timely. The problems with such tests were evident in a number of cases, including in the case of Arun Ferreira which is discussed here. The case of Arun Ferreira is relevant as many activists have been arrested in the year 2018 regarding the case that will be discussed here.

Ferreira’s case is a textbook example of everything that is wrong with India’s criminal justice system. Not only was the 39-year-old Mumbai resident forced to undergo the tests now banned by the Supreme Court, but he was also subjected to torture in custody and was denied due process – both endemic problems that need to be urgently addressed. Ferreira was arrested along with three others in Nagpur on 8 May 2007 on allegations of being a communications and propaganda head for Naxalites. Ferreira was charged with violating various sections of the Indian Penal Code, the Arms Act, the Unlawful Activities (Prevention) Act, the Indian Railways Act, the Bombay Police Act, and Loss of Public Property Act in eight separate cases filed against him. The police said Ferreira was allegedly carrying a ‘pen drive’ containing information that was evidence of ‘anti-national’ activities.

Ferreira had never been involved in or suspected of being involved in any criminal activities. Indeed, according to informed sources, neither his name nor description was in any of the police intelligence files or in any Naxal-related crime records throughout the country prior to his arrest. Moreover, the charge sheets filed against Ferreira have various problematic elements that cast doubts on their validity. For example, in some of the cases against him, Ferreira’s name or physical description is absent in all of the first information reports. In addition, the prosecution witnesses who claimed to identify Ferreira only did so after being shown his photograph and after he was arrested. In another case, Ferreira was accused of a crime which he could not have committed as he was already held in Nagpur jail at the time.

Meanwhile, Ferreira was subjected to various forms of torture by police and intelligence officials following his arrest. He was repeatedly slapped and punched and his head banged against a wall. He was seriously beaten on the soles of his feet with a bajirao, a one-and-a-half-foot whipping strip made from conveyor belt material. This form of torture, called falanga, has been found to cause severe pain as well as long-term damage without showing external marks of injury. In addition, Ferreira faced long harsh interrogations, for 16 to 20 hours.

Ferreira believes that he was targeted and arrested under false charges because of his work as a social activist. He is known to have campaigned for the rights of slum-dwellers against forcible eviction and has highlighted the plight of victims of religious and caste violence.

Ferreira also underwent, without his consent – narcoanalysis, brain mapping and polygraph tests at the Mumbai and Bangalore Forensic Science Laboratories (FSLS). The Supreme Court recently proclaimed that all of these tests violate an individual’s right against self-incrimination under Article 20(3) of the Constitution.

Ferreira was reportedly forced to sign a letter of consent for narcoanalysis testing and when he refused, the prosecution presented his forged signature to the magistrate in question. When he denied in court that he had given consent, the magistrate still allowed the tests to be conducted, and Ferreira forcibly underwent psychological profiling, narcoanalysis, brain mapping, and polygraph tests at the Mumbai FSL. When the authorities did not receive what they perceived as satisfactory results from the tests, the Maharashtra police secretly obtained permission from a lower court in Bhandara, without the knowledge of Ferreira or his legal counsel, to have addition al tests done at the Bangalore FSL. Ferreira was again forced to undergo these tests.

Under the Supreme Court’s judgment, this forced confinement at the FSLS as well as the forced conducting of the tests violated Ferreira’s right to privacy and amounted to cruel, inhuman, and degrading treatment. While he was reportedly forced to sign a consent form just prior to the tests under threat, the signatures obtained do not amount to the voluntary consent given that a court order had already overruled his refusal to consent. Indeed, Ferreira issued an additional note upon signing, stating that he was not giving consent but was only following the court orders. Moreover, as noted above under the Supreme Court’s judgment, regardless of whether Ferreira allowed the tests to go forward, they were not voluntary in a true sense and still amounted to an invasion of privacy and cruel, inhuman, and degrading treatment. Moreover, the way in which the tests were conducted further infringed upon Ferreira’s rights. For example, there was no physician present during the narcoanalysis test at the Bangalore fsl.

Mr. Arun Ferreira was acquitted of all offenses in the year 2014, but until then many of his so-called “fundamental rights” were infringed horribly. The fact that Article 20(3) allows voluntary administered tests is a loophole that can be misused by the authorities and leaves scope for the investigating authorities to obtain evidence illegally.

Forensic Psychology Investigative Techniques: Analysis of Polygraph

Forensic Psychology Investigative Techniques: Analysis of Polygraph

Chapter 1. Introduction

In the following study, an effort is made to examine the difference between the electrical activities of the brain to the participatory activities memories and of memories being only the audience or the witness of any event during recall if looked from forensic aspect using Brain Electrical Oscillation Signature (BEOS), developed by Dr. C.R. Mukundan (Mukundan,1998). Our human brain stores different sets of memory for different events. Our understanding of the brain from physiological perspectives would be greatly enhanced if we could differentiate between memory for experience and knowledge. This study will help in understanding the difference in memory signatures stored when an event was experienced through participation as compared to remembrance based on knowing or witnessing the events. Very few researches have been reported yet using the BEOS profiling system on episodic memory-based remembrance of an event. There is a need to understand the episodic-based remembrance and the brain responses for making it helpful in wider area for the better understanding of people involved in crime. BEOS profiling is used both in neuropsychology for understanding brain, its parts, and memory system, and in forensic psychology for detecting deception mainly used in the forensic science laboratories.

To understand the research first need to understand memory, its process of Rememberance, forensic psychology, and some of the investigative techniques used for detection of deception.

1.1. Memory

Memory can be defined as “the ability to take in, store and retrieve information” to be able to make sense while understanding to patients, families and caregivers. In simple words, the term memory can be explained as the ability to receive, store, and retrieve information. Memory is conceptualized as a process consisting of 3 independent, though interrelated stages, namely: Encoding, Storage, and Retrieval that will be discussed later.

Baddley (1992) had discussed memory as not single skill or a function but rather a complex combination of memory subsystems. Memory can be considered in terms of time for which memories are stored, the type of information to be remembered, the way a information is received in, stages in process of remembering, implicit or explicit memory, whether recall or recognition is required, whether the memory is retrospective or prospective, and whether the memory dates from before or after the injury or illness, as stated by Clare and Wilson,(1997).

Tulving (1972) found the concept of semantic and episodic memory, with semantic memory referring to memory for general knowledge such as facts, the meaning of words, the visual appearance of objects, and the color of things. Any reality that encounters impact resulting conduct is proof of an undeniable yet the by momentous action known as recall.

Human memory have been studied and experimented from many decades. Many researchers namely, Baddeley and Hitch (1974) and Tulving (1972) have introduced concepts and types of memory. Memory is result of both result of and an influence on perception, attention, and learning. The ability to solve any problem or even for recognizing the existence of problem is dependent on memory itself.

1.1.1 Stages in process of Remembrance:

There are 3 stages required for a memory system to function. The first and foremost stage is encoding that includes of taking in of information, next is the storage stage, and the third stage is retrieval stage.

  1. The first stage is also known as the Encoding, this refers to process by which information is recorded and registered for the first tme , it becomes as usable by our memory system. During encoding, incoming information is received and a meaning is extracted. Then represented in such a way so that the information can be processed for further stages.
  2. The second stage is Storage of memory. The encoded information through which information is retained and held over a period of time.
  • The third stage of memory is retrieval. It refers to bringing the stored information to their awareness so that it can be used for performing various cognitive tasks. To make sure that the person has understood the information being presented.

If encoding is not completed properly, person will not be able to recall any information of the event due to impairment in the processing stages. Most people forget new information rather swiftly over the first few days and then the rate of forgetting slows down.

According to Baddley(1992), deeper encoding involves elaboration, compatibility, and self-reference. Crack and Lockhart (1972) gave the levels of processing. This states that the processing of any new information relates to the manner in which it is perceived, analysed, and understood which in turn determines the extent to which it will eventually be retained. Godden and Baddley (!975) conducted an inspiring experiment, in that experiment they showed the context specificity principle. Crack and Lockhart found that it is possible to analyze the incoming information at more than one level.

According to Stage model proposed by Akinson and Shiffrin (1968), there are 3 types of memory systems :

  • Sensory Memory

It is a memory system that registers information from each of the senses with reasonable accuracy.

  • Short-term Memory

Information that is attended to enter the second memory store called the short term memory (STM), which holds small amount of information for a brief period of time.

  • Long-term Memory

‘Long Term Memory (LTM) refers to information which is stored sufficiently durably to be accessible over a period of anything more than a few seconds. (Baddley)

One major classification is Declarative and Non- Declarative memories. Tulving stated another classification and found that the declarative memory can be either Episodic or Semantic, which involves remembering particular incidents.

1.1.2 Episodic Memory

It contains biographical details of our lives. The memories relating to a person’s personal life experiences include the contents generally emotional in nature. Tulving (2002) states that Episodic memory refers to the ability to mentally time travel into the past and to remember personal experiences in terms of what happened and where and when it happened and to be autonoetically aware of it.

Breeden et al (2016) found that episodic memories are extremely useful for solving problems in the present and to plan for the future. It has been reported that various researches have been conducted on the episodic memory, its physiology, progress of episodic memory till date in researches.

It can be noted that experiences can be of painful, unpleasant, and happy as emotions are of two types; positive and negative emotions. Either of the types of emotional impact involved with any event in a person’s life. There are some memories reported to be as pleasant life experiences.

1.1.3 Semantic Memory

Semantic Memory is the memory of general mindfulness and learning. All ideas, thoughts, and tenets of rationale are put away in semantic memory. (NCERT, 2006).

Semantic Memory is viewed as influence impartial and not prone to overlooking, as it substance of memory identified with realities and thoughts of general mindfulness and information.

Basically, semantic memory deals with the information of having familiarity with event-specific details. But this can not be termed as Remembrance. Rather, it is related to the facts of events which is knowing of any event and not having experience to it personally.

1.2 Forensic psychology

The term forensis is derived from the Latin word pertaining to the forum. In English, the term forensic or forensis is derived from its Greek root. Over the years, the term forensic has evolved to refer to anything pertaining or potentially pertaining to the courts or law, both civil and criminal, and due to the nature and scope of work that forensics covers, the term is usually concerned with the law. Hugo Munsterberg (1908) is often referred to as the first forensic psychologist.

Forensic psychology is a sub-discipline of psychology that involves the application of psychological principles and research to the law and offenders (Bartol and Bartol, 1999). Wrightsman (2001) applied the term forensic psychology to describe the intersection of the legal system and psychology.

The field of criminological brain science has seen critical development as of late. In reality in any case, legal analysts can be discovered working ‘in detainment facilities, correctional facilites, recovery focuses, police offices, law offices, schools, government offices, or in private practice’ (Mauro, 2010).

1.4 Forensic psychology investigative techniques

Following are the investigative techniques used in forensic psychology for detection of deception:

  • Polygraph
  • Narcoanalysis
  • Interview and interrogation
  • Forensic hypnosis
  • Psychological testings
  • Brain Electrical Oscillations Signature Profiling

1.4.1 Polygraph

The Polygraph is based on scientific principles in the field of forensic investigation for the unveiling of deception or whether the person is genuine based on recordings of measuring changes in parameters namely Blood pressure, Pulse rate, respiration, and galvanic skin response(GSR) are used as reliable technique.

The following instrument is more commonly known as the fact finder or the lie detector. The above-mentioned parameters are recorded simultaneously and uninterruptedly on the surface of moving graph paper driven by a mechanism known as kymograph, in earlier days. In present time the graph is recorded on computer screen driven by software.

It is comprised of a Pre-test interview, main polygraph examination and ending with a post-test interview, and re examination, if eventually intended. Following are the methods of conducting questionnaires for obtaining desired response in physiological form:

  1. Relevant Irrelevant questionnaire technique
  2. Controlled question technique (CQT)
  3. Peak of tension technique
  4. Guilt complex test

Research have been reported stating that the modern polygraph, which recorded changes in a number of physiological parameters, was developed in the early 1920s, with instruments designed to record changes in respiration, cardiovascular activity, and sweat gland activity appearing in the 1930s.

1.4.2 Narcoanalysis

Narcoanalysis is also commonly known as the truth serum in common language, is a combination of hypnosis as well as narcosis. It is a very old and well-known technique widely use in medical profession all over the world including India. Bleckwena (1929) used Sodium Amytal to patients by mouth for the first time, for creating of hypnosis in patients whom he could not hypnotize by the usual methods.

The term Narcoanalysis was first used by Horsley. Although this technique is an old-time technique in mental health setup. It is investigative or preventive while used in non-medical purposes in a forensic setup as an invasive technique. It is a matter of debate till date in courts regarding the reliability, credibility and its admissibility to courts while making judgments considering their reports as an evidence.

1.4.3 Interview and interrogation

The interview and interrogation are correlative but structurally different processes. The interview is just an assembling documentation process. In other words, also described as a conversation between two or more people preferably face to face whatever relevant information is available. It is itself a norm suggestive process. (Vaya, 2013)

Whereas, the interrogation aim to recommend the guilty to confess to their involvement in a crime or other incident. Interrogation is highly structured and focused which is carefully followed by a ten-step procedure known as Integrated Interrogation Technique. (Vaya, 2013)

1.4.4 Forensic Hypnosis

The term hypnosis was first introduced by an English physician namely James Braid. Goldenson (1984) found that it is an altered state of consciousness, characterized by relaxation a heightened responsiveness to suggestion, and increase in attention. In India, forensic hypnosis has not been found to be in use in police investigations.

1.4.5 Psychological testings

Psychological assessment is defined as an evaluation performed by a psychologist using methods and tools that are in large part and outgrowth of instrumentation, procedures, and principles identified with clinical psychologists and field of test and instruments. Forensic psychological assessment is an important footstep in understanding the behavior of the suspect with reference to the crime.

Frequently used tests in civil and criminal cases taken from Indian scenario includes Test of attention and concentration (Letter cancellation and digit span), test for memory (Weschler’s memory scales and other memory scales), Tests for intelligence (Bhatia battery of intelligence, Raven’s progressive matrices ), Objective tests (16PF, Eyesenk’s Personality inventory), Projective techniques (Rorschach ink blot, Thematic apperception technique, Draw a Person) following tests are used for forensic purposes in India.

1.4.6 Brain Electrical Oscillations Signature Profiling system.

The following name was given by the Directorate of Forensic Sciences, Ministry of Home Affairs, Government of India. It was Developed and tested by Dr. C.R. Mukundan. Brand name of equipment is- Neuro Signature System(NSS). NSS is a technique for extracting a signature of electrical oscilllations from the background electrical activity of the brain of a subject by presenting a probe. Contains reference to an “Experiental Knowledge(EK)” in the subject to an act committed by the person, which is reffered in the probe. The probe make the subject become aware of the experience or the action, if he or she has committed the same. During recall of EK , the subject recalls the autobiographical information related to the occurence of the event and subject’s participation in the act. Signature is measured as frequency-time domain activity during or immediately after the presentation of the probe.

Absence of experience is associated with absence of remembrance and absence of corresponding electrical signature. EK is gained through participation in an activity and consists of sensory-motor information, proprioceptive information, emotions, and real-time awareness, if present. Probe evokes the psychological state alike to the state the person had at the time of the occurence of the event. The test measures remembrance of the experience or autobiographical information. It consists of sensory-motor mental imageries associated with experience and awareness of internal processing or rememberance. Electrical activity associated to rememberance is called as “signature” of the experience. The process is defined as the retrieval of the EK. Absence of EK results in absence of the signature. This process was earlier known as Brain Fingerprinting

Hundreds of clinical studies have shown that p300 is a very sensitive measure, as the body temperature is, but it has no diagnostic specificity as body temperature does not have diagnostic specificity. p300 has not been used in a single case for identification of the criminal.

BEOS profiling is for testing the presence of Experiential Knowledge in a person and not more testing mere presence or possession of knowledge. Experiential Knowledge is acquired through participation and not by knowing. The required four components for experience are listed below:

  1. Sensory information
  2. Motor acts & responses
  3. Proprioceptive information
  4. Emotions

Probes are generally catogorised into four types; Neutral probe, Control probes, set –A scenario probes and Set –B scenario probes. There are several scientifically designed guidelines which includes in total of 21 types of probes IDs, also termed as Event Markers, which needs to followed for preparation of probes to be presented.

1.5 Hypothesis:

H1= People involved in Participatory activities have more impactful memories be able to elicit in the form of (EK) EXPERIENTAL KNOWLEDGE using (NSS) Neuro Signature System involved in BEOS profiling than to when compared to the memories of Audience or can be called as the Eyewitness of any event.

References

  1. Horsley, J. (1936). Narco-Analysis. Journal of Mental Science, 82(339), 416-422. doi:10.1192/bjp.82.339.416
  2. Moenssens, A. (1961). Narcoanalysis in Law Enforcement. The Journal of Criminal Law, Criminology, and Police Science, 52(4), 453-458. doi:10.2307/1141276
  3. Patel AN., “Neuro- Psychological Assessment of the Suspect by Applying Brain Electrical Oscillation Signature (BEOS) Profiling Test to Verify BEOS Principle”. The International Journal of Indian Psychology Volume 3, Issue 3, No.2, DIP: 18.01.036/20160303

Books

  1. Mukundan CR. Brain At Work: Neuroexperiential Perspectives. Atlantic Publishers.
  2. Mukundan CR. (2005). Fundamentals of Neuro& Forensic Psychology.
  3. YK Nagle, Kalpana Srivastava, Arunima Gupta(2014). Handbook of Forensic Psychology.
  4. SL Vaya. (2013). National Resource Centre for Forensic Psychology(2nd edition).
  5. Mukundan CR Bain Experience: Neuroexperiential Perspectives of Brain-Mind: Atlantic Publishers.
  6. Allan Baddley (1994). Your Memory: A user’s Guide ( New edition)
  7. Barbara A Wilson. Memory Rehabilitation Integrating Theory and practice.: Guilford press.

Websites

  1. https://apps.dtic.mil/dtic/tr/fulltext/u2/641671.pdf
  2. Abrams S. (1989). The complete polygraph handbook. Lexington, MA, England: Lexington Books/D. C. Heath and Com. Retrieved from https://psycnet.apa.org/record/1989-97606-000
  3. Aldert Vrij. (2015) The protection of innocent suspects: A comment on Palmatier and Rovner (2015). International Journal of Psychophysiology 95:1, pages 20-21. Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/25224520
  4. Horsley, J. S. (1943). Narco-analysis. Oxford, England: Humphrey Milford. Retrieved from https://psycnet.apa.org/record/1944-02074-000
  5. Jonathan P. Vallano, Jacqueline R. Evans, Nadja Schreiber Compo, Jenna M. Kieckhaefer. (2015) Rapport-Building During Witness and Suspect Interviews: A Survey of Law Enforcement. Applied Cognitive Psychology 29:3, pages 369-380. Retrieved from https://onlinelibrary.wiley.com/doi/abs/10.1002/acp.1789
  6. •Math S. B. (2011). Supreme Court judgment on polygraph, narco-analysis & brain-mapping: a boon or a bane. The Indian journal of medical research, 134(1), 4-7. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3171915/
  7. Mukundan CR, Sumit S and Chetan SM “Brain Electrical Oscillations Signature Profiling (BEOS) for Measuring the Process of Remembrance”. EC Neurology 8.6 (2017): 217-230. Retrieved from https://www.ecronicon.com/ecne/pdf/ECNE-08-00256.pdf
  8. Puranik DA, Jospeh SK, Daundkar BB, Garad MV. “Brain Signature Profiling In India: It’s Status As An Aid In Investigation And As Corroborative Evidence – As Seen From Judgments. Retrieved from http://www.axxonet.com/pdfs/BEOS_IN_CASES.pdf
  9. Raskin, D. C. (1989). Polygraph techniques for the detection of deception. In D. C. Raskin (Ed.), Psychological methods in criminal investigation and evidence (pp. 247-296). New York, NY, US: Springer Publishing Co. Retrieved from https://psycnet.apa.org/record/1989-98443-008