Actual aspects of the application of psychophysiological research methods using a polygraph in the implementation of state protection measures against participants in criminal proceedings

Sadekov Rustem Rafekovich ORCID: 0000-0002-2739-5490 PhD in Pedagogy Deputy Head of the Department of Psychological-Pedagogical and Medical Support of the Department of Internal Affairs Activities at the Russian Institute of Officials Training and Education 142007, Russia, Moscow Region, Domodedovo, Fir street, 3 vipk10kafedra@yandex.ru Other publications by this author

The relevance of the use of psychophysiological research methods using a polygraph in the implementation of state protection measures against participants in criminal proceedings lies in the possibility of improving the quality of crime investigation and detecting lies of participants in criminal proceedings. This can help to increase the effectiveness of the fight against crime and ensure the safety of citizens and the State as a whole.

The purpose of the presented article is to analyze a number of topical problems and prospects for the use of psychophysiological research methods using a polygraph in the implementation of state protection measures against participants in criminal proceedings.

The relevance of the use of psychophysiological research methods using a polygraph in the implementation of state protection measures against participants in criminal proceedings is due to the need to obtain objective information about the psychophysiological conditions and false consciousness of participants in the process. Such information can be critically important for making the right decisions in a criminal case, protecting the rights and interests of citizens, as well as for ensuring the effectiveness of a criminal investigation and preventing possible erroneous decisions.

In our work, based on the analysis of the experience accumulated in this field and the research of scientists and polygraph specialists, we propose to consider in more detail and explore ways to resolve certain problematic aspects related to the use of a polygraph in criminal proceedings.

The works of Darovskikh O. I., Kudryavtsev A.V., Popov I.V., Sadekov R.R., Ushakov A.Yu., Komissarova Ya.V., Kalugina N.G., Zotov K.A., Kobets L.A., Abdulaeva D. are devoted to the study of topical issues, problems, features and a number of patterns related to the use of a polygraph in criminal proceedings.Sh., Altunina A.A., Perfileva E.A., Lubkova E.A., Ovsyannikova K.E., etc.

As A.Y. Ushakov notes in his work, the use of a polygraph in the investigation of crimes is quite commonplace and widespread not only in Russia, but also abroad. The absolute leader in conducting psychophysiological research using a polygraph is the United States of America. More than a million polygraph tests are carried out annually on the territory of this state ^[1].

Korzhov Yu.Yu. emphasizes in his research that in recent years, investigative and operational authorities have increasingly begun to turn to the possibilities of a polygraph. The Criminalistics Department of the Prosecutor General's Office of the Russian Federation, based on the analysis of information from the prosecutor's offices of the subjects of the Russian Federation, summarized the practice of using a polygraph in the investigation of crimes. The use of a polygraph is an urgent need of criminal proceedings. ^[2].

At the same time, as A.A. Ivanova notes in her work, investigators and interrogators send a witness or a victim in a criminal case to a polygraph, explaining this by the need to "find out the truth", instead of carrying out the necessary investigative actions themselves without resorting to the help of a polygraph examiner, while the reliability of the results of such a study is relative, it is known that people in some cases are able to deceive the polygraph ^[3].

However, the use of a polygraph in criminal proceedings causes a number of problems and criticisms. Some of these issues include the following aspects:

1. Insufficient accuracy:

Some studies show that the polygraph can give false positive and false negative results. This can lead to erroneous decisions on the case and violation of the rights and interests of citizens. One example of the insufficient accuracy of the use of a polygraph in criminal proceedings may be a case from the United States, where the New York City Police Department previously used a polygraph to verify the reliability of witness testimony. In 1996, the polygraph was used in the case against Thomas Sheffey, accused of murdering his wife. Sheffey was tested on a polygraph, and the test results showed that he was telling the truth when he denied killing his wife. However, it later turned out that the test results had been misinterpreted, and Sheffey was found guilty of murder. This case emphasizes that the polygraph can produce erroneous results and that their interpretation should be carried out with care and filigree accuracy.

Of course, an expert is obliged to conduct research guided by the principles of objectivity, adhering to the scientific and practical basis, comprehensively and in full, but, as D.Abdulayeva notes, there is a problem of the lack of a unified position in science regarding reliable signs of lies, and when conducting repeated studies, the percentage of results is high, directly opposite to the original ones ^[4].

2. Insufficient reliability:

The results of the polygraph may directly depend on the qualification of the expert, the quality and technical equipment of the equipment, as well as on the physiological characteristics of the participants in the process. This may reduce the reliability and reliability of the information received. An example of the insufficient reliability of the use of a polygraph in criminal proceedings is another case of the Smith v. USA case, which was considered by the US Supreme Court in 1998.

In this case, the accused Dwayne Smith was convicted of sexually assaulting two young girls. As evidence against him, the results of a polygraph conducted with the accused as a witness were presented. The test results, according to the polygraph examiner, indicated that the accused was lying when he denied his guilt. However, the US Supreme Court ruled that the use of polygraph results as evidence is unacceptable, as it may harm the rights and freedoms of the accused, including the right to the objectivity of the court. The Supreme Court also noted that the polygraph is not a scientifically proven method of determining the veracity of statements, and that its use may lead to incorrect interpretation of the results and erroneous conclusions.

3. Inconsistency:

There is a difference in the interpretation of opinions as to whether the polygraph is a sufficiently reliable and accurate tool for detecting lies. Some experts claim that the polygraph can be an effective tool, while others consider it unsuitable for use in criminal proceedings.

An example of the inconsistency of the use of a polygraph in criminal proceedings is the case of the trial of Cameron Todd Wilson, a police officer who in 2014 shot and killed an unarmed black teenager Michael Brown in Ferguson, Missouri, USA. During the investigation of Wilson's murder, he was interrogated using a polygraph, the results of which were not used as evidence in the trial. However, parts of the interrogation protocol in which Wilson recounted the events that preceded Brown's murder were used as evidence in the investigative report. This case demonstrates the inconsistency of the use of a polygraph in criminal proceedings, since the interrogation using a polygraph was not considered reliable enough to use the results in the trial, but some fragments of the interrogation protocol were still used as evidence.

K.E. Ovsyannikova notes in her work that the ambiguity of using such a means of obtaining evidence as a polygraph is justified by the following. Due to the lack of scientific and practical confirmation of the accuracy of the information obtained by using a polygraph, it is impossible to clearly establish their falsity or truthfulness on the basis of generally accepted data. This is possible only when analyzing other evidentiary facts. Thus, it can be concluded that the research results obtained by such a technical means are used only as an additional verification of the information already received during the investigation. They can be attached to a criminal case, but their content does not acquire an evidentiary character ^[5],

4. Violation of rights:

The use of a polygraph can lead to a violation of the rights of participants in the process, such as the right to privacy and the right to justice of the court. One example of the violation of the rights to use a polygraph in criminal proceedings is the case "Frye v. United States", considered by the US Supreme Court in 1923. In this case, a polygraph was used as a means of proving the guilt of the accused of murder. However, the US Supreme Court concluded that the results of the polygraph are not scientifically proven and cannot be used in court proceedings as evidence. In its decision, the court referred to the fact that the polygraph cannot be unequivocally recognized as a reliable means of proving the veracity of statements, since the results of the polygraph may be subject to errors, and may depend on many factors, including the physical and psychological state of the accused, the qualifications of the operator, mood, etc. Thus, the use of a polygraph as evidence was declared illegal in this case, and this precedent is still considered one of the most important decisions in the field of the right to use a polygraph in criminal proceedings.

5. Ambiguity of legislation:

The legislation regulating the use of a polygraph in criminal proceedings is not always clear and unambiguous. This may lead to different interpretations. An example of the ambiguity of the legislation on the use of a polygraph in criminal proceedings is the American law known as the Employee Polygraph Protection Act (EPPA). According to this law, the use of a polygraph is prohibited in the framework of interviews when hiring and firing employees, with the exception of certain categories, such as employees of law enforcement agencies, financial institutions, etc. However, in the context of criminal proceedings, legislation regarding the use of a polygraph is not uniform. In some US states, the use of a polygraph during the interrogation of the accused is prohibited, while in other states such use is allowed.

Thus, legislation in the field of the use of a polygraph in criminal proceedings in different jurisdictions may be ambiguous and not uniform, which creates problems for law enforcement agencies and courts in the use of a polygraph as evidence in criminal proceedings.

Some organizations and lawyers may include the use of a polygraph in their methods of protecting clients in criminal cases. For example, according to the American Bar Association (ABA), about 20% of lawyers in the United States have used polygraph tests in criminal cases since 2018.

In general, the use of a polygraph in the implementation of state protection measures against participants in criminal proceedings remains a rather controversial issue, and its use may depend on various factors, including legislation, the availability of experts and technical equipment. However, at the same time, the use of a polygraph in criminal proceedings also causes a lot of controversy and discussion in connection with possible violations of the rights of the accused and witnesses. Therefore, not only the technical aspect of using a polygraph is relevant, but also the legal and psychological aspects that should be taken into account when using it. In addition, it should be borne in mind that the test results may depend on many factors, such as the psychological state of the subject, his motivation, the degree of trust in the polygraph examiner and others. Therefore, in order to obtain reliable results, it is necessary to conduct testing using various psychophysiological methods and take into account many factors affecting the final test results.

As Gavrilin Yu.V. notes in his work, back in 2018, the FSB of Russia, the Ministry of Internal Affairs of Russia, the IC of Russia and the Ministry of Defense of the Russian Federation approved an Interdepartmental Methodology for the production of forensic psychophysiological examinations using a polygraph ^[6], in order to bring issues of legal regulation and the right to use a polygraph in criminal proceedings in accordance with the requirements of legislation.

Nevertheless, the use of a polygraph in criminal proceedings causes a lot of controversy and discussion. On the one hand, this tool can be useful for detecting lies and improving the quality of crime investigation, on the other hand, its use may violate the rights of the accused and witnesses, and also does not always give reliable results.

Of course, scientists have conducted research in Russia related to the use and implementation of state protection measures against participants in criminal proceedings using a polygraph, but they mainly concern evaluating the effectiveness of its use and identifying problems associated with its use.

Such an analysis was carried out by researchers in Moscow and St. Petersburg, as a result of which specialists studied regulatory legal acts and the practice of using a polygraph in criminal proceedings in Russia concerning the use of a polygraph in terms of implementing state protection measures against participants in criminal proceedings. One of the conclusions was that in Russia there is no consensus on the use of a polygraph as a means of proof in the implementation of state protection measures against participants in criminal proceedings, and there are also certain problems associated with its use, such as:

-    high cost of equipment;

- the need for a highly qualified experienced specialist who has passed professional training in polygraph work;

- in general, insufficient development of polygraph application methods in Russia;

- problems with the reliability of polygraph test results due to the possible influence of various factors on the results;

- insufficient qualification of polygraph examiners;

- the decision to conduct a polygraph examination is made in each specific case individually on the basis of all available facts and circumstances of the case.

As part of the resolution of one of the problematic issues, I, an associate professor of the Department of Psychological, Pedagogical and Medical Support of the Department of Internal Affairs of the Ministry of Internal Affairs of Russia, am conducting a dissertation study for the degree of Doctor of Pedagogical Sciences on the topic: "Adaptive methods of professional training of polygraph examiners of the Ministry of Internal Affairs of Russia", the results of which, as planned, will contribute to the optimization of the training system of future polygraph examiners of the Department and in the future they will be useful for all law enforcement agencies of the state. This circumstance is also dictated by the fact that one of the most important elements in the organization of vocational training in the system of departmental additional vocational education is the professional competence of the teaching staff ^[7].

The participation of a polygraph examiner in criminal proceedings can be an effective means of proof in the implementation of state protection measures against participants in criminal proceedings, but only if all legal requirements and methodological recommendations are met. In 2019, I developed and implemented in the practical activities of the Department for Ensuring the Safety of Persons subject to state Protection of the Ministry of Internal Affairs of Russia methodological recommendations "The use of psychophysiological research methods using polygraph devices in the implementation of state protection measures against participants in criminal proceedings"^[8].

 Nevertheless, there are opinions of experts who deny the possibility of using a polygraph in criminal proceedings as a measure of state protection, referring to the fact that its results are not scientifically sound and may be subject to errors.

It should be taken into account that a polygraph examiner who receives information in the process of polygraph research should understand that the latter will not be considered evidence in court, but will be used as a verification of information.

In part 1 of Article 74 of the Code of Criminal Procedure of the Russian Federation, the wording of the evidence is given, which is guided in their activities by the court, the prosecutor's office, the investigation, the inquiry and, based on this, highlight the circumstances that will have to be proved in the future as part of the investigation of a criminal case. As for the information that the polygraph examiner receives based on the results of his work, guided by Part 2 of Article 74 of the Code of Criminal Procedure of the Russian Federation ^[9], they are not included in the list of evidence, which means that a priori they cannot act as evidence in criminal proceedings.

The Federal Law "On Operational Investigative Activities" dated 12.08.1995 No. 144-FZ provides that it is allowed to use technical and other means ^[10] that are safe for the lives of people and others to carry out operational investigative activities (for example, a survey).

The position of the Supreme Court of Russia is that the results obtained during the use of a polygraph in criminal proceedings, including at the stage of preliminary investigation, as a verification of investigation versions, do not meet the requirements imposed by law for evidence, but are used mainly by operational units during their activities.

In her work, Ivanova A.A. conducted an analysis of the judicial practice of accounting for the results of research using a polygraph as evidence, noting that the conclusions of an expert or specialist on the results of research using a polygraph cannot be accepted as evidence when considering a criminal case.

The courts in the appeal process note that the conclusions of polygraph examiners do not relate to admissible evidence, and also have no legal force and cannot be used by the prosecution.

In a scientific study conducted by a group of scientists of the Kutafin Moscow State Law University (MSLA), the opinion was expressed that the development of digital technologies opens up wide opportunities for optimizing criminal proceedings. However, these changes, sometimes large-scale, should not affect the principle and rules of evidence assessment, which is entrusted exclusively to the judge, juror, prosecutor, investigator, inquirer and does not allow the use of any technical, including digital, means. It is no coincidence that in recent years the courts have consistently recognized the use of polygraph results in proving is unacceptable. For the same reasons, the evaluation of evidence in criminal proceedings should remain an exclusive sphere of human activity carried out without the intervention of artificial intelligence and other digital technologies.

In our opinion, the opinion of O.I. Darovskikh deserves attention, who notes in her work the fact that scientists hold different positions regarding the possibility of using a polygraph to obtain evidence in criminal proceedings ^[11].

Based on various data related to physiology, the peculiarities of the human psyche, individual stress resistance, under certain circumstances, an innocent person may be held accountable as a result of reactions that arose during the interview by a polygraph examiner on the merits of the case.

A.V. Kudryavtseva suggests that only those data obtained as a result of the use of a polygraph that give a negative result from the point of view of the actions imputed to the person (the information obtained indicates that the person was not involved in the act) should be given evidentiary value, and if the studies gave a positive result, i.e. they are accusatory, then they cannot be used as evidence due to the insufficiency of their verifiability (reliability) ^[12].

The use of a polygraph in criminal proceedings in our country continues to be the subject of discussions about its effectiveness and the reliability of the results obtained.

I.P. Popova notes that the disclosure and investigation of crimes is often carried out in an environment of non-obviousness, when it is necessary to work out the most incredible assumptions and study persons who, at first glance, cannot be involved in what happened. In such situations, conducting psychophysiological studies using a polygraph allows you to quickly check various versions of suspected persons, as well as witnesses and victims. At the same time, at this stage of production, the relevant guarantees of the persons participating in the survey should be normalized ^[13].

The international community, considering the use of a polygraph in the field of criminal proceedings, attentively approaches the results of psychophysiological studies obtained by polygraph specialists. One of the reasons for this state of affairs is the lack of unified scientific foundations of the psychophysiological method of "lie detection", and the results of diagnostics using a polygraph are probabilistic in nature ^[14], subjectively evaluated by a polygraph examiner.

Court cases on the use of a polygraph in criminal proceedings continue to arise and contribute to the further development of legislation and practice of using a polygraph in court proceedings.

From judicial practice and cases related to the use of a polygraph in criminal proceedings, the following conclusions can be drawn:

Polygraph tests are not recognized as reliable evidence in criminal proceedings in many countries of the world.

In cases where polygraph tests are allowed as evidence or assistance to experts, they can only be used as additional information and should not be the only evidence.

Some courts allow the use of polygraph test results as an aid to experts or to determine the veracity of the statements of the accused. However, such decisions may be overturned by higher courts.

The use of a polygraph can cause contradictory and ambiguous court decisions, as well as disputes in legislation and legal practice.

Thus, the problems of using a polygraph in criminal proceedings are multifaceted. Despite a number of important and promising solutions in the field of legal regulation, methodological support, scientific developments, this issue remains open to scientific discussions from the point of view of legal, ethical and scientific aspects. The result of such work will bring success in the case of the preparation of an appropriate regulatory framework, including one based on research in the humanities and technical sciences.

Speaking about the key features of using a polygraph in criminal proceedings, in our opinion, it is necessary to adhere to the following recommendations:

- The need to use a polygraph must be justified. The use of a polygraph should be only one of the many research methods used in a criminal investigation, and not the only one. It is also necessary to make sure that the polygraph can really help in the investigation of a specific crime.

- To conduct a psychophysiological examination, only a specialist psychologist (polygraph examiner) can work with a polygraph. This person may, if necessary, be questioned as a witness. The issue of assessing the reliability of testimony should not be included in the powers of a polygraph examiner or expert within the framework of a psychophysiological examination, since it belongs to the exclusive competence of persons exercising authority on behalf of the state to disclose and investigate crimes, review and resolve a criminal case, on the merits. The results of the survey obtained on a polygraph should be issued and applied currently in the form of a separate document - a certificate in which the result is recorded ^[13], issued as another document.

- The polygraph examiner must be an experienced and trained specialist. Improperly conducted testing can lead to false results that can harm both the accused and the objectivity of the case.

- It is important to carry out serious rule-making work aimed at developing and legislating the procedure for using a polygraph in criminal proceedings. It is necessary to properly carry out the execution of the resolution on the appointment of a psychophysiological examination and instructions for its production. The issue of developing methods of psychophysiological examinations using a polygraph in compliance with the requirements of the legislation is relevant.

- In each specific case, when a decision is made to use a polygraph, a polygraph specialist must properly prepare and conduct a survey carefully, taking into account important features in the framework of a criminal case. And this work is certainly carried out in close contact with the investigator.

 The polygraph is an effective tool for establishing the truth in a case, if preparations for its use are properly carried out, the procedure will be carried out in compliance with the principles of objectivity, timeliness, quality, fairness and legality, which is an integral part of criminal proceedings in the Russian Federation.

It can definitely be concluded that further study of the problems of using a polygraph in criminal proceedings is necessary, and this is obvious, the development of a regulatory legal framework in this area should be of primary importance, scientifically based methodological support, as well as the pedagogical system of professional retraining and advanced training of polygraph specialists for law enforcement agencies of the Russian Federation should be constantly improved and develop.

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