polygraph expertise and research

[Андрей Захаров]

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[Демитрий]

APPLICATION OF A POLYGRAPH AS AN ELEMENT

CRIMINAL TACTICS OF THE INVENTION



O.V. POLSTOVALOV, Z.A. SHAGIMURATOVA


Polstovalov Oleg Vladimirovich, Professor, Department of Criminology, Institute of Law, Bashkir State University, Doctor of Law, Associate Professor.


Shagimuratova Zaliya Albertovna, Senior Lecturer, Institute of Law, Bashkir State University.


Based on Russian and foreign experience, the article discusses the features of the use of psychophysiological research using a polygraph (lie detector) in criminal proceedings in the context of the need to implement tactics of exposing the guilty and self-incriminating and others. The authors dwell in detail on criticism of the opponents of the use of the polygraph and the scope of the application of polygraphological research in criminal proceedings.


Keywords: polygraph, lie detector, incrimination tactics, criminal proceedings, persuasion tactics, pre-investigation verification, interrogation.


Application of the polygraph as an element of criminal statistical tactics of incrimination

OV Polstovalov, ZA Shagimuratova


Polstovalov Oleg V., Professor of the Criminalistics Department of the Institute of Law of the Bashkir State University, Doctor of Law, Assistant Professor.


Shagimuratova Zaliya A., Senior Lecturer of the Institute of Law of the Bashkir State University.


The article discusses the features of the application of psychophysiological researches using a polygraph (lie detector) in criminal proceedings in the context of the need to implement the tactics of exposing the person guilty and the person who incriminated himself and others on the basis of Russian and foreign experience. The authors particularly dwell on the criticism of opponents of the use of polygraph and the field of application of polygraph investigations in criminal proceedings.


Key words: polygraph, lie detector, exnosure tactics, criminal proceedings, tactics of persuasion, pre-investigation check, questioning.


It is difficult to write on a topic about which so long and long before you it has been said so much that it seems impossible to dwell on something new. However, the contradictory and complex way of gaining and again losing the procedural and quasi-procedural forms of instrumental diagnostics of the differences in the psychophysiological response of the human body in the event of informed communication of information that does not correspond to reality is interesting for the aspect of exposing the potential of expert and other methods.

The exposure, as you know, from the position of the legislator is focused on incriminating the perpetrators of the crime. But what about the exposure of self-incrimination, the recognition of the absence of a completely special phenomenon of criminal awareness of an uninvited person, the suppression of knowingly false reports of a committed or impending crime already at the time of appeal to the criminal prosecution authorities of a false victim in connection with an alleged criminal assault? In other words, we often forget that the incriminating potential of search and cognitive activity in the process of achieving the purpose of criminal proceedings can be directed to another aspect of restoring justice: to establish the innocence of persons who voluntarily or involuntarily turned out to be among the suspects, accused, or recently time of persons in respect of whom a preliminary investigation is carried out.

One of the founders of this method, Leonard Keeler, generalized the first years of using the lie detector in an article titled “Debunking the Lie Detector” (1934), who noted that the stories about the bark detector under the headings “Lie Detector Detects Murder,” “The machine says: “Suspicious lies”, etc., in the paper mass of magazines with fantastic modifications provoked a misunderstanding of instrumental diagnostics in society. Keeler explained his idea by the categorical assertion that there is no such thing as a “lay detector.” A stethoscope, a clinical thermometer deserve no less such a name , because they are based on instrumental diagnosis of bodily changes. "However, deception, guilt or innocence, - wrote L. Keeler, - can be diagnosed for certain symptoms in the same way as appendicitis, paranoia or any other physical or mental disorder" <1>. Time has shown that medical diagnostics are not identical to the process of proving by angle in the real case, and too promising advances to the polygraph at the dawn of the establishment of the application of the method in criminal justice remained in history no more than journalistic cliches, common cliches.

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<1> Keeler L. Debunking the Lie-Detector // Journal of Criminal Law and Criminology. Summer 1934. May - June. Vol. 25. Issue 1. Article 15. P. 153.


It cannot be argued that at present, on the fact of the prevalence of using a polygraph abroad, this method is gaining unequivocal recognition. Some researchers, noting the unpopularity of the critical approach, already pass off their polemical rhetoric as a ready truth. In particular, annotating their book, George Mashke and Gino J. Scalabrini, within the framework of the AntiPolygraph.org project, reveal, according to their statement, the "little-known truth about printing", which boils down to the thesis that printing (is used specifically this term, not polygraphology. - Note O.P. and Z.S. ), like phrenology and graphology, has no scientific validity and is not a science that the government relies on inaccurate printing studies and this undermines rather than enhances national security, and the "tests" of polygraph examiners are actually interrogations. In turn, polygraph testing is easy to “defeat” through countermeasures, and the method itself is simplified and entirely depends on the discretion of the polygraph examiner, who decides whether you are true or not, etc. <2>. In this case, private algorithms of actions “how to protect yourself from a false positive result" <3>, "how to recognize interrogation tactics and not be deceived" <4>, "what to do if you are falsely accused" <5>, as well as global approach "how can you help put an end to polygraph abuse" <6>.

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<2> Maschke GW, Scalabrini GJ The Lie Behind the Lie Detector. 4th digital edition. PublishedbyAntiPolygraph.org, 2005.P. 15.

<3> Ibid. P. 121.

<4> Ibid. P. 112, 129.

<5> Ibid. P. 164.

<6> In the same place. P. 171.


So, is it fundamentally important to put an end to abuses on the polygraph? Consequently, the quintessence of the criticism under consideration is seen in human and organizational and managerial factors, since the main conclusion about the prevention of "evil" is seen by the authors precisely in the suppression of the unfair use of printing capabilities. Without going into the essence of what has been said, we note that all such arguments are predominantly lightweight or based on current national law enforcement practice, which is apparently as imperfect as in our Fatherland. And the little-known of this "truth about the polygraph" is evidence that it finds a rare response from the reader, especially from a dedicated professional.

All this argumentation is known to the Russian polemic on this issue, and therefore, on the one hand, we can sympathize with our Western colleagues, and on the other hand, we can be glad for them that less valuable research time is spent on empty discussions about the validity of the method abroad. However, by fair remark V.A. Sementsova, "in modern science and practice the possibility of using a polygraph in order to solve crimes and increase the effectiveness of the preliminary investigation is no longer categorically rejected" <7>. However, discussions remain on improving the form and procedures, developing the methodology and improving the reliability of the organization and testing of polygraph <8>.

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<7> Sementsov V.A. [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=51072;fld=134;dst=100012"] New investigative action [/ DLMURL] - polygraph testimony // Russian Law Journal. 2010. N 5. P. 133.

<8> See, for example: Komissarova Ya.V. [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=29399;fld=134"] About the practice of using a polygraph [/ DLMURL] in the criminal proceedings of Russia // Russian investigator. 2008. N 12.P. 36 - 37.


The development of the incriminating potential of the investigation in terms of expanding the possibility of using a polygraph only seems to be a very attractive prospect. How strikingly different would be the tactic of investigative actions, if, say, V.A. Sementsov about the new investigative action - checking the testimony on the polygraph <9> were not only heard, but also fully accepted. In a later work, V.A. Sementsov expanded the prospect of producing his new investigative action, not limiting it only to the results of interrogation. In the context of what was said in such cases, the tactic of exposing a liar was reduced to obtaining consent from a previously interrogated person to verify his testimony on a polygraph, that is, the one who lied, it was also necessary to convince him of the need to expose him to a lie <10>.

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<9> Sementsov V.A. [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=51072;fld=134"] Decree. Op. [/ DLMURL] S. 132 - 137.

<10> Sementsov V.A. [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=47104;fld=134"] Verification of the polygraph testimony [/ DLMURL] // Russian Law Journal. 2011. N 2. P. 112.


Why, in fact, do you want to expose yourself if a machine and a polygraph specialist do it for you? Therefore, the point is small: to convince a liar that it is simply necessary for his own good to expose a lie through polygraph tests. However, it is completely incomprehensible why this should be done, because if you managed to convince of the perniciousness or hopelessness of a lie, then the previously interrogated person, who consciously provided information that is not true, can tell the truth itself during the second interrogation.

“It requires discussion methodically determined, according to experts,” writes V. A. Sementsov, “the impossibility of a forced examination on a polygraph." And almost immediately he notes the following: “At the same time, giving the testimony to the polygraph of the procedural regime of investigative steps (unless, of course, such a decision will be made by the legislator) allows us to argue that in this case the mandatory consent of the person is no longer required. This is due to the general requirement, presented to investigative actions - providing them with state coercion, which serves to increase production efficiency, creates favorable conditions for the most complete, comprehensive and objective criminal prosecution "<11>.

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<11> [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=47104;fld=134;dst=100017"] There [/ DLMURL].


It is interesting how forced polygraph tests will look in reality in the course of checking earlier evidence? We believe that this is completely impossible.

The main thing that does not happen in the testimony using a polygraph is the verification of the previously reported information. In this case, only the reactions of the human body can be diagnosed, associated with feelings about the reported information in connection with the subjective (!) Awareness of the subjects of their conformity or inconsistency with reality. In particular, as was noted in the literature, when tested on a polygraph, "test subjects can believe that they lie when providing actually true answers, or vice versa" <12>. In matters of an economic nature, the organizers generally may not have detailed information about the actions of their subordinates, and evaluate their actions exclusively as legitimate. Here, there can be even more transformations of various kinds in the awareness of “lies - truth” according to the principle “exactly the opposite”. In addition, is it worth mentioning again the obvious: the polygraph does not register the truth or falsehood.

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<12> The polygraph and lie detection. Washington, DC: The National Academies Press, 2003. P. 1.


As soon as the polygraph did not receive unambiguous approval in the format of a psychophysiological examination, proposals for practically direct inclusion of a laboratory psychological experiment using instrumental diagnostics of emotional differences in proving in a criminal case have no easy fate. In fact, taking into account the procedural requirements for ensuring the rights and legitimate interests of participants in criminal proceedings, the particularities of polygraph test methods, and the effectiveness of the experiment when the subject uses, for example, mental counteraction, one cannot but pay attention to the fact that the way of the polygraph method into criminal procedural proof is where as more thorny, tortuous and difficult.

At the empirical level of investigation of the problem, judicial practice is ambiguous on the issue of the use of psychophysiological studies using a polygraph in criminal proceedings. A striking example is the exclusion from the descriptive and motivating part of the verdict by the Judicial Collegium for Criminal Cases of the Supreme Court of the Republic of Mordovia of the conclusion of a psychophysiological study using a polygraph and an explanation of a specialist on charges K.A. Polushkin committing a crime under [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=189580;fld=134;dst=100535"] h. 1 tbsp. 105 [/ DLMURL] of the Criminal Code.

From the point of view of the Judicial Collegium, the trial court, when convicted, unreasonably cited K.A. Polushkina conclusion of a psychophysiological study using a polygraph and explanations of the specialist who conducted this study. The panel of judges noted that [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=182087;fld=134"] CPC [/ DLMURL] of the Russian Federation "does not provide for the legislative possibility of using a polygraph in criminal proceedings. This type of examination is the result of a survey using a polygraph that records psychophysiological reactions to any question, and its conclusion cannot be considered as appropriate evidence that meets the requirements of [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=182087;fld=134;dst=100674"] article 74 [/ DLMURL] Code of Criminal Procedure of the Russian Federation. According to the provisions of [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=182087;fld=134;dst=100559"] Articles 57 [/ DLMURL], [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=182087;fld=134;dst=100674"] 74 [/ DLMURL], [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=182087;fld=134;dst=100683"] 75 [/ DLMURL] and [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=182087;fld=134;dst=103273"] 80 [/ DLMURL] Code of Criminal Procedure of the Russian Federation, the findings of such a study cannot be considered scientifically substantiated due to the lack of specially developed reliable methods that exclude the probabilistic nature of the opinions expressed in a particular subject, which entails their inadmissibility in terms of their usefulness in the process of collecting, fixing and evaluating evidence in a criminal case. For these reasons, it’s also impossible to admit expert’s explanations ... the essence of which is reduced to the procedure for conducting the indicated research and its results "<13>. As you know, attracting a specialist and giving him an opinion does not imply research, while the use of a polygraph makes such a study necessary .

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<13> The appellate decision of the Supreme Court of the Republic of Mordovia of May 27, 2013 in the case N 22-1211 / 13 on the charge of K.A. Polushkin committing a crime under [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=189580;fld=134;dst=100535"] h. 1 tbsp. 105 [/ DLMURL] of the Criminal Code // Archive of the Supreme Court of the Republic of Mordovia.


Practically without explaining the essence of his position, the Judicial Collegium for Criminal Cases of the Murmansk Regional Court came to exactly the same decision, considering it necessary to exclude from the descriptive and motivating part of the verdict the references of the court to the certificate of interrogation, used by him as evidence, using a polygraph of victims, witnesses and accused, since these documents from the point of view of the court of cassation were obtained during the preliminary investigation in violation of the requirements [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=182087;fld=134 "] CPC [/ DLMURL] RF. What is the essence of violations - the court does not explain <14>.

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<14> The cassation ruling of the Murmansk Regional Court of July 24, 2012 based on the results of the consideration of the cassation appeal of the convicted person according to [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=189580; fld = 134; dst = 100946 "] Art. 161 h. 2 p. "G" [/ DLMURL] of the Criminal Code, [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=189580;fld=134;dst=102093"] Art. 325 h. 2 [/ DLMURL] of the Criminal Code, [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=189580;fld=134;dst=100574"] Art. 111 h. 1 [/ DLMURL] of the Criminal Code of the Russian Federation V.A. Sertakova in the case N 22-1769 / 12 // Archive of the Murmansk Regional Court.


The exclusion of such evidence from the descriptive and motivating part of the sentence, both in the above and in other examples, in no way affected the position of the court on the merits of the proof of guilt and involvement of the defendants and convicts. This tendency is steady and generally characterizes today's practice, and the given examples only illustrate it.

We can mainly talk about the real results of the use of the polygraph in the investigation of crimes in relation to the identification of suspects who were not involved in the general mass, who, of course, themselves are often interested in establishing the truth and getting rid of suspicions unreasonable to them. However, from a practical point of view, a psychophysiological examination as a means of protection against unlawful and unreasonable accusations often "does not work" with the prosecution completely ignoring the pre-trial production of defensive versions of innocence and innocence, which we also revealed during surveys and research of materials from investigative and judicial practice.

In particular, to the question "Will you refuse to satisfy the petition of the suspect, the accused and his counsel for a psychophysiological examination using a polygraph, if such helps to prove innocence and innocence?" 84% of the investigators we interviewed answered in the affirmative (6% had difficulty in answering, 10% would decide the question according to the situation). At the same time, 64% of those who “refused in any case” motivated their refusal with confidence in the inadmissibility of evidence obtained in this way, 26% referred to the fact that the inherent function of the prosecution eliminates the need to collect information justifying the accused and suspected (during conversations on the results of the interview often expressed arguments like “let the court figure it out”), the rest did not explain their position at all. For the same reasons, the practice of refusing courts to satisfy complaints in the manner [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=182087;fld=134 ; dst = 100974 "] Art. 125 [/ DLMURL] Code of Criminal Procedure of the Russian Federation for ignoring by the investigation authorities the petitions of suspects, accused and their defenders for the conduct of psychophysiological studies using a polygraph.

Given the enormous defensive potential of expanding the practice of using the polygraph, expanding the ability to identify and expose slander, self-incrimination and knowingly false reports of a crime, one cannot but take into account the opportunities that open up in connection with the recognition of a quasi-procedural action - obtaining an explanation at the stage of initiating a criminal case within pre-investigation check.

The position of the Supreme Court of Russia, expressed by him on April 16, 2013 in [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=145236;fld=134;dst=100023" is known ] [U] sub. "b" p. 5 [/U] [/ DLMURL], [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=145236;fld=134;dst=100026"] p. 6 [/ DLMURL] Decree of the Plenum of the Supreme Court of the Russian Federation N 9 "On Amending the Decision of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 N 8" On some issues of application by the courts of the Constitution of the Russian Federation in the administration of justice ", in accordance with the provisions of which obtaining an explanation found evidence of flesh and blood. Failure to fulfill the obligation by officials conducting criminal proceedings and the courts to explain to the person against whom the report of the crime was checked in the manner prescribed by [DLMURL="https://login.consultant.ru/link/? req = doc; base = ROS; n = 182087; fld = 134; dst = 101085 "] Art. 144 [/ DLMURL] Code of Criminal Procedure, the right not to testify against oneself, one’s spouse and close relatives, guaranteed by relevant standards [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n= 182087; fld = 134 "] CPC [/ DLMURL] of the Russian Federation, from the point of view of the highest court, entails the recognition of the explanations of the person in respect of whom the report of the crime was received, received in violation of the law. The same consequences also occur if the right to use the help of a lawyer (defense attorney) is not clarified, which the person now has in respect of whom the report of the crime <15> is being checked.

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<15> [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=145236;fld=134"] Decree [/ DLMURL] Plenum of the Supreme Court of the Russian Federation of April 16, 2013 N 9 "On Amending the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 N 8" On some issues of the application by the courts of the Constitution of the Russian Federation in the administration of justice "// Russian Newspaper. 2013.April 24.N 89.


At this stage, all well-known and detailed methods of psychophysiological research on a polygraph (Methods of verification and neutral questions, Methods of control questions, Methods for identifying hidden information <16>) for protective purposes should be most widely used at the level of obtaining explanations in order to identify non-involvement of suspected persons , in respect of which the crime report is being checked, or only planned.

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<16> See, for example: Saljunas V., Kovalenka A. [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=70119;fld=134"] About methods of psychophysiological research [/ DLMURL] using a polygraph // Forensic expert. 2013. N 2.P. 22 - 25.


Unmasking the potential of the tactics of convincing the need to give true testimony in the dynamics of the development and improvement of methods and regulatory legal regulation of polygraph tests will undoubtedly grow and qualitatively transform. However, based on the realities of today, we can unequivocally agree solely with a defensive, promising introduction and use of the polygraph in disclosing slander, self-incrimination and knowingly false denunciations.


Literature


1. Apostolova N.N. [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=64342;fld=134"] The use of the polygraph in criminal proceedings [/ DLMURL] // Russian justice. 2012. N 6. P. 64 - 66.

2. Komissarova Ya.V. [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=29399;fld=134"] About the practice of using a polygraph [/ DLMURL] in the criminal proceedings of Russia // Russian investigator. 2008. N 12.P. 36 - 37.

3. Saljunas V., Kovalenka A. [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=70119;fld=134"] About methods of psychophysiological research [/ DLMURL] using a polygraph // Forensic expert. 2013. N 2.P. 22 - 25.

4. Sementsov V.A. [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=51072;fld=134"] New investigative action [/ DLMURL] - polygraph testimony // Russian Law Journal. 2010. N 5.P. 132 - 137.

5. Sementsov V.A. [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=47104;fld=134"] Verification of the polygraph testimony [/ DLMURL] // Russian Law Journal. 2011. N 2.P. 111 - 116.

6. Keeler L. Debunking the Lie-Detector // Journal of Criminal Law and Criminology. Summer 1934. May - June. Volume 25. Issue 1. Article 15. P. 153 - 159.

7. Maschke GW, Scalabrini GJ The Lie Behind the Lie Detector. 4th digital edition. PublishedbyAntiPolygraph.org, 2005.220 p.

8. The polygraph and lie detection. Washington, DC: The National Academies Press, 2003. N 2/2016. 398 p.

 

[Демитрий]

PROBLEM OF CONDUCTING AN INTERVIEW AND OTHER INVESTIGATIVE ACTIONS

WITH APPLICATION OF A POLYGRAPH IN RUSSIA DE LEGE LATA

(IN THE CONTEXT OF THE CURRENT CRIMINAL PROCEDURE LAW)



D.V. WHITE-FORCES, N.M. Balashov, S.A. DUKHANIN,

N.I. SOFT, V.N. SUPRUN


Belykh-Silaev Dmitry Vladimirovich, editor-in-chief of the journal "Legal Psychology", lecturer at the Military University of the Ministry of Defense of Russia, lawyer, psychologist, teacher.


Balashov Nikolai Mikhailovich, Honored Lawyer of Russia, Professor of the Department of Criminology of the Military University of the Ministry of Defense of Russia.


Dukhanin Svyatoslav Artemovich, lawyer.


Myagkikh Nikolai Ivanovich, Honored Doctor of Russia, Candidate of Psychological Sciences, Colonel of the Internal Service.


Suprun Viktor Nikolaevich, Associate Professor, Moscow University of the Ministry of Internal Affairs of Russia, Colonel.


The article is devoted to the tactics of appointing and conducting checks using a polygraph in the key of a "lie detector". The possibilities of the appointment and conduct of a polygraph in the framework of the disclosure and investigation of crimes in procedural and non-procedural form are considered. So, within the framework of the “non-procedural form”, it is proposed to conduct a survey using a polygraph, and then put the results of the survey into a procedural form by: 1) interrogating a polygraph examiner as a specialist, 2) attaching a specialist’s opinion to the criminal case file, 3) introducing all the materials of the survey using the polygraph as "other documents" in accordance with [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134;dst=100682"] Clause 6, Article 74 [/ DLMURL] Code of Criminal Procedure of the Russian Federation. Within the framework of the “procedural form” of using the polygraph in the investigation of crimes, such possibilities are considered as: 1) a polygraph study; 2) psychophysiological examination using a polygraph; 3) conducting investigative actions using a polygraph.


Key words: special psychophysiological studies using a polygraph, disclosure and investigation of crimes, tactics for appointing and conducting polygraph checks, interrogation using a polygraph, procedural and non-procedural form of using a polygraph.


Problem of carrying out of interrogation and other investigative actions with application of polygraph in Russia de lege lata (in the context of the current criminal-procedure legislation)

DV Bely'kh-Silaev, NM Balashov, SA Dukhanin, NI Myagkikh, VN Suprun


Bely'kh-Silaev Dmitrij V., editor-in-chief, journal "Juridical Psychology", teacher, Military University of the Ministry of Defense of the RF, lawyer, psychologist, pedagogue.


Balashov Nikolaj M., professor, Chair of Criminalistics, Military University of the Ministry of Defense of the RF, Honored Jurist of Russia.


Dukhanin Svyatoslav A., lawyer.


Myagkikh Nikolaj I., honored doctor of Russia, colonel of internal service, candidate of psychological sciences.


Suprun Viktor N., assistant professor, Moscow University of the Ministry of Internal Affairs of Russia, colonel.


The article concerns the tactics of assignment and carrying out of checks with application of polygraph as a "lie-detector". The attention is drawn to possibilities of assignment and carrying out of polygraph checks within the framework of detection and investigation of crimes in procedural and non-proceduralforms. Within the framework of "non-procedural form" the authors propose to carry out interview with application of polygraph and then turn it into a procedural form by the following means: 1) interrogation of polygraphologist as a specialist, 2) inclusion of the specialist's conclusion into the materials of a criminal case, 3) inclusion of all the materials of the interrogation with application of polygraph as "other documents" in accordance with p. 6 of Article 74 of the Criminal-Procedure Code of the RF. Within the framework of the "procedural form" of application of polygraph in investigation of crimes the authors consider such possibilities as 1) research with application of polygraph, 2) psycho-physiological expert evaluation with application of polygraph, 3) carrying out of investigative actions with application of polygraph.


Key words: special psycho-physiological studies with application of polygraph, detection and investigation crimes, tactics of assignment and carrying out of polygraph checks, interrogation with application of polygraph, procedural and non-procedural form of application of polygraph.


Future investigative actions

an investigator without a polygraph will also

inconceivable, as statement is now inconceivable

cardiologist diagnosed without a cardiogram.


P.V.Simonov, Academician of the Russian Academy of Sciences, 2001


A modern investigator cannot investigate

crime, having only a pen and paper.


A.I. Bastrykin, Chairman of the Investigative Committee of Russia,

Doctor of Law, Professor


What are the possibilities of using the polygraph in criminal proceedings in the context of the current criminal procedure legislation?

It should be noted right away that in our country for a long time the very possibility of using a polygraph in a criminal trial was a priori rejected. In relation to the polygraph, such labels were used as "a relic of the medieval Inquisition", "mechanical investigator", "the reactionary essence of bourgeois forensics." It seems that such assessments were dictated in many respects by ignorance and political considerations (it is no accident, incidentally, that criticism of the reactionary nature of bourgeois forensics was considered one of the tasks of Soviet forensics) [ 8 , from. 273 - 274].

At the same time, R. S. Belkin also pointed to statistics, according to which the correctness of the conclusions drawn on the basis of a polygraph reaches a very high degree of probability (80 - 90%), and in many cases all conclusions turn out to be reliable if the tactics are correct polygraph application [ 1 , from. 577].

R.S. Belkin also pointed out the possibility of using the polygraph not only during interrogation, but also during other investigative actions, among which he called presenting for identification, an investigative experiment and a search, since the approach of the investigator to a particular object during the search will give the suspect corresponding reaction [ 1 , from. 580].

Abroad, the practice of polygraph identification has a long history. At present, it is no secret that the famous Soviet intelligence officer Rudolf Abel refused to testify after his arrest, following the algorithm of actions of the intelligence agent during detention. However, without asking questions, in a curtained room under the control of a polygraph, they simply showed various slides on the screen. First, they showed the contours of geographical images of Japan, Israel, Nigeria, the USSR and other countries. When R. Abel reviewed the map of the USSR, the polygraph registered significant physiological reactions. Then the scout was presented with images of the Lubyanka buildings, other administrative buildings, after - images of the US states. Without suspecting it, R. Abel reacted to the images of the interiors of the buildings of the USSR state security organs familiar to him and those geographical locations in which he had caches and appearances. In the same way, a street, a house and a cache were learned from him [ 6 , from. 103].

R.S. Belkin [ 1 , from. 580] considered it possible to use the polygraph during interrogation, subject to the three conditions formulated by him, which, he believed, should be fixed by law (de lege ferenda):

1. The use of a polygraph is allowed only with the voluntary consent of the interrogated; the refusal to test on a polygraph, as well as the proposal to be tested in case of refusal by the interrogated, should not be recorded in any procedural document; refusal of the test cannot be interpreted in any form to the detriment of the interrogated.

2. To participate in the interrogation, it is permitted to involve a specialist psychologist who acts as a polygraph operator within the normal competence of a specialist participating in an investigative action.

3. The results of using the polygraph are not of evidentiary value and are used by the investigator only as orienting information; evidence is recognized only the factual information contained in the testimony of the interrogated. Material evidence of the use of a polygraph (tape, record) is not included in the case.

Other criminal procedural models for using the polygraph during interrogation were also proposed. So, V.I. Komissarov believed that the criminal procedure law should directly determine the procedure according to which if an investigator decides to use a polygraph, he must: 1) invite a lawyer if it is planned to interrogate a suspect or accused; 2) invite a teacher if a minor is being interrogated; 3) invite an interpreter if an interrogation of a foreigner, a deaf-mute is carried out; 4) establish psychological contact with interrogation participants; 5) explain to all participants the content, conditions, procedure for the production of investigative actions and features of the use of information obtained during testing; 6) make sure that the subject understood the investigator, and explain to the interrogated his right to refuse testing; 7) obtain written consent to undergo polygraph testing; 8) to explain the rights and obligations to all participants in the investigative action, about which to make a note in the minutes of the interrogation; 9) to warn the polygraph examiner of criminal liability for knowingly false decoding of the polygram, and, if necessary, for disclosing the secrets of the investigation; 10) record in the protocol the comments and statements of the participants in the process [ 7 , from. 47].

How much are these proposals of scientists taken into account by the current criminal procedure law in Russia? What does the situation with the investigation with the use of a polygraph look like from the point of view of the current criminal procedure legislation? Is it required in [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134"] CPC [/ DLMURL] RF to make changes and additions in order to make investigative actions using a polygraph possible?

We analyze the norms of the current [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134"] CPC [/ DLMURL]. In accordance with [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134;dst=100674"] Art. 74 [/ DLMURL] Code of Criminal Procedure of the Russian Federation "Evidence" evidence in a criminal case is any information on the basis of which the court, prosecutor, investigator, inquiry officer in the manner specified [DLMURL="https://login.consultant.ru/link/?req= doc; base = ROS; n = 180841; fld = 134 "] CPC [/ DLMURL], establishes the presence or absence of circumstances to be proved in criminal proceedings, as well as other circumstances relevant to the criminal case. The following are allowed as evidence: 1) testimony of the suspect, the accused; 2) testimony of the victim, witness; 3) expert opinion and testimony; 3.1) conclusion and testimony of a specialist; 4) material evidence; 5) protocols of investigative and judicial actions; 6) other documents.

From this norm of the criminal procedure law it follows that the following tactics are possible for the appointment of special psychophysiological studies (hereinafter - SPFI) with the use of a polygraph in the disclosure and investigation of crimes and the following forms of using a polygraph in the disclosure and investigation of crimes:

1) non-procedural;

2) procedural.

As part of a non-procedural form the appointment and conduct of SPFI using a polygraph is possible polygraph survey . As part of the non-procedural form of using the polygraph, the SPFI itself with the use of the polygraph is initially carried out in non-procedural form, that is, in the form of a survey, but the results of the survey can then be certified by the investigator, for which he can use any of the following tactics: 1) interrogate the polygraph examiner who conducted interrogation using a polygraph as a specialist by attaching a polygram to the interrogation protocol of a specialist, by letter and meaning [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld = 134; dst = 103272 "] Section 3.1, Art. 74 [/ DLMURL] Code of Criminal Procedure, the evidence in the case will be "interrogation of a specialist"; 2) attach the conclusion of the specialist polygraph examiner to the materials of the criminal case, because by letter and sense [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134; dst = 103272 "] Section 3.1, Art. 74 [/ DLMURL] Code of Criminal Procedure, the evidence in the case is “expert opinion”; 3) attach all the materials of the survey using the polygraph as "other documents", which in accordance with [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841; fld = 134; dst = 100682 "] Clause 6, Article 74 [/ DLMURL] Code of Criminal Procedure is also evidence in the case [ 3 , from. five].

In the framework of the procedural form <1>, by which for the purposes of this study we understand the form of actions of the investigator that is carried out as part of the investigation of the criminal case, on the basis of and in compliance with the norms [DLMURL="https://login.consultant.ru/link/?req= doc; base = ROS; n = 180841; fld = 134 "] CPC [/ DLMURL], the following tactics of appointing an SPFI investigator using a polygraph are possible [ 3 , 4 ], he has the right:

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<1> The criminal procedure form is the procedure established by law for a preliminary investigation, judicial review and resolution of criminal cases, verification of court decisions, as well as the rules for the implementation of specific procedural actions and the consolidation of their results in relevant protocols or other procedural documents. Criminal process: Textbook for universities / Otv. ed. A.V. Grinenko. M .: Norma, 2004.S. 17.


1) in accordance with [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134;dst=48"] Art. 38 [/ DLMURL] Code of Criminal Procedure give the investigating authority a separate investigative commission on conducting an SPFI with the use of a polygraph against a specific participant in a criminal process (victim, witness, suspect, accused); then a survey is conducted using a polygraph, the results of which, if necessary, can be processally verified by the above method (there are pros and cons of this method; pluses: unload the time of the investigator to conduct investigative actions, relative efficiency; minuses: in this case, the inquiry body determines the polygraph examiner, independently carries out all professional contacts with him, which can reduce the quality of interaction, lead to a situation where the deadline for the execution of the order has expired, and the order has not been executed by the inquiry body);

2) make a decision on the appointment of SPFI using a polygraph ; in this case (in contrast to the previous version), the investigator independently determines the specialist polygraph examiner who is entrusted with conducting the study, as a rule, indicating it in the text of the decision;

3) assign a psychophysiological examination using a polygraph ; here it is necessary to explain how the second option differs from the procedural point of view from the third, the study from the examination; in the theory of evidence, both research and examination are recognized as reliable evidence, but since the examination is regulated in detail by standards [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134"] CPC [/ DLMURL] (the whole [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134;dst=101462"] is dedicated to this] chapter [/ DLMURL] CCP), it is believed that during the examination there is a greater number of procedural guarantees ; this is the advantage of such tactics of appointing and conducting a polygraph, the disadvantage is the significant time spent on the examination (the study can be carried out faster), and the investigator always acts in a limited time budget.

4) conduct investigative actions using a polygraph (interrogation, presentation for identification, investigative experiment, verification of evidence on the spot, search).

We will dwell in more detail on this fourth method of the procedural form of applying the polygraph in the disclosure and investigation of crimes. It is known that during investigative actions, as a general rule, technical means can be used, which is noted in the protocol of the investigative action. So, now when carrying out almost all investigative actions, a computer is used to compile the protocol of the investigative action and a printer is used to print it out. A polygraph is such a technical tool. Now the question does not arise that one of the professional competencies of a lawyer should be the ability to work on a computer, primarily with text editors. We believe that the inalienable professional competence of future investigators should be the ability to work on a polygraph, for which appropriate changes and additions should be made to the curricula of law faculties of universities, an appropriate special course is provided, and students who successfully pass it should be able to receive a diploma for graduation about additional education in higher education (in the same way, for example, as many lawyers now receive a diploma of a translator in the field of professional communication if during their studies at the law faculty of the university they attend relevant classes at the foreign language department). So, for example, at the Military University of the Ministry of Defense of Russia, cadet psychologists and cadet lawyers have the opportunity to undergo training at the Department of Psychology on the basics of psychophysiological research using a polygraph, having also received a diploma in polygraph examiner for the main diploma [ five , from. 45].

Thus, when conducting investigative actions using a polygraph, there are two fundamental possibilities, depending on who is a polygraph examiner when conducting investigative actions using a polygraph: 1) the specialist involved in the investigative action is a polygraph examiner; 2) the polygraph examiner is the investigator himself.

Now about what investigative actions can be carried out using a polygraph. We believe that with the use of a polygraph not only the highest-frequency investigative action can be carried out - interrogation, but also presentation for identification, search, verification of evidence on the spot, investigative experiment.

Interrogation - this is an investigative action regulated by the criminal procedure law, which consists in obtaining evidence from the interrogated person about the facts and circumstances that are relevant to the criminal case from the interrogated person.

Depending on the participant in the criminal proceedings giving evidence, the following types of interrogations are possible: 1) interrogation of the victim; 2) interrogation of a witness; 3) interrogation of an expert; 4) interrogation of a specialist; 5) interrogation of the suspect; 6) interrogation of the accused.

Presentation for identification ([DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134;dst=101447"] Art. 193 [/ DLMURL] Code of Criminal Procedure of the Russian Federation) is an investigative action consisting in presenting similar objects to a person, among which an object that was previously perceived by the person is supposedly located in order to establish its identity.

For identification, living persons, objects, documents, corpses, animals may be presented. It is believed that the identification of terrain and buildings should not be carried out by presentation for identification, but by checking the evidence on the spot.

Search ([DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134;dst=101354"] Art. Art. 182 [/ DLMURL], [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134;dst=101377"] 184 [/ DLMURL] Code of Criminal Procedure of the Russian Federation) is an investigative action, which is an examination of the premises and other places, living persons, their clothes, shoes on the grounds and in the manner prescribed by law, in order to detect and seize the instruments of crime, money, valuables and other property obtained as a result of a crime, other items and documents that may be relevant to a criminal case, wanted persons and corpses.

On-site verification of readings - this is an investigative action, the essence of which is to reproduce by the participant the process, the testimonies of which are checked, the situation of the place of the event and certain actions in order to establish compliance of the previously given testimonies with the situation of the place of the event and (or) the detection of objects and documents that are relevant to the case.

According to [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134;dst=101351"] Art. 181 [/ DLMURL] Code of Criminal Procedure in order to verify and clarify data relevant to a criminal case, the investigator has the right to investigative experiment by reproducing actions, as well as the situation and other circumstances of a particular event. At the same time, the possibility of perceiving any facts, performing certain actions, the occurrence of an event is checked, as well as the sequence of the event and the mechanism of formation of traces are revealed.

The specific purpose of the investigative experiment is determined by its type. In general, the purpose of this investigative action (as well as any other) is to collect evidence, with the help of which the data relevant to the criminal case can be checked and clarified, or any new circumstances that were previously unknown were established. The protocol of the investigative experiment is a source of evidence ([DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134;dst=100681"] n. 5 h. 2 Article 74 [/ DLMURL] Code of Criminal Procedure).

For each of these investigative actions, tactics of its implementation using a polygraph should be developed, which can and should become the subject of separate studies.

Thus, we believe that to conduct investigative actions using the polygraph, no novels of the criminal procedure law are required, investigative actions using the polygraph are possible in accordance with the current criminal procedure law, and we see this possibility in the existing norms [DLMURL="https://login.consultant.ru/link/?req=doc;base=ROS;n=180841;fld=134"] CPC [/ DLMURL] RF. This, of course, does not exclude the possibility that, in accordance with the principle that "there is nothing that could not be done better," amendments and additions to the current criminal procedure law are possible.


Literature


1. Belkin R.S. Forensics course. M .: Law and Law, 2001.837 p.

2. Belykh-Silaev D.V., Balashov N.M. The use of the polygraph in the disclosure and investigation of crimes related to the disappearance of citizens // Counteraction to crimes related to the disappearance of citizens and methods of their investigation: Materials of the International scientific-practical conference (Moscow, March 20, 2015) / Ed. A.I. Bastrykin. M.: UNITY-DANA, 2015.S. 25-30.

[DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=72773;fld=134"] Tactics of appointment and conduct [/ DLMURL] special psychophysiological studies (SPFI) using a polygraph / Belykh-Silaev D.V. et al. // Legal Psychology. 2013. N 3. S. 2 - 5.

4. Belykh-Silaev D.V., Ivanov R.S. [DLMURL="https://login.consultant.ru/link/?req=doc;base=CJI;n=74985;fld=134"] Appointment of a psychophysiological examination [/ DLMURL] using a polygraph in a notarial order // Legal Psychology. 2013. N 4.P. 2 - 7.

5. Belykh-Silaev D.V., Bashalov N.M., Zhukov N.M. The possibilities of using the polygraph in the Armed Forces of the Russian Federation // Actual psychological and pedagogical problems of educational and military service activities. 2015. Issue. 4.P. 42 - 45.

6. Knyazev V.M., Varlamov G.V. Polygraph and its practical application. M., 2012.S. 103.

7. Komissarov V.I. The use of the polygraph in the fight against crime // Legality. 1995. N 11.P. 43 - 47.

8. Korukhov Yu.G. Forensic Diagnostics in Crime Investigation: A Scientific and Practical Guide. M .: Publishing. group "NORMA-INFRA", 1998. S. 273 - 274

9. The criminal process: Textbook for universities / Otv. ed. A.V. Grinenko. M .: Norma, 2004.S. 17.