Analysis of polygraphs and brain- mapping tests in India

This article was written by Akshita Jain, a student of Vivekananda Institute of Professional Studies, Delhi

Abstract

‘No person accused of any offence shall be compelled to be witness against himself’ is the well- stated fundamental right endowed not only to the citizens of India but to every person without any discrimination. The intent of the legislature behind providing such a right in favour of the accused was to take out the intricacies involved in the notion that a person should not be made to self- incriminate the wrong committed by him. The accused has the right to remain silent and not to admit the offence committed by him. But in certain exceptional situations, the self- incriminating statement i.e., the confession made by the accused to certain specific persons are made admissible in the court and holds an important evidentiary value in the trial of the cases. In another category of trials, where the accused doesn’t make the confession but it is incumbent to record the statement of the accused to reach at the conclusion and identify who is the guilty of the offence. In those cases, the statement of the accused is recorded against his/her consent through deception detection tests such as polygraph or the lie detector test, brain- mapping test, narco- analysis, etc. These tests are conducted to make the accused to spit out the truth and unveil all the facts related to the offence and the role of the abovesaid in the commission of the offence. Gone are the days when police had to torture the suspects to extract information from them, with the advancement in the scientific technologies lie detection is no longer remained the tedious task, these scientific detection techniques help in the interrogation and detection of the self- known fact of the accused. Yet with the very commencement of the use of these techniques, they are questioned on the ground that whether they are against the fundamental rights of the accused and principle of natural justice and if they are inconsistent with the fundamental rights whether they should be admissible and taken on record during the trials of the case and what is the credibility and evidentiary value of these tests.

Key words: Fundamental right, self- incrimination, self- incriminating statement, confession, deception detection tests, polygraphs, brain- mapping test, narco- analysis

Research objective

• To analyse the concept, process and efficiency of the polygraph and brain- mapping tests.
• To analyse the evidentiary value of these tests in the court trials.
• To analyse the constitutional validity of these lie- detection tests.

Hypothesis

The following hypothesis would be examined in this study:

• It is always the question of debate as to whether the lie- detection through the scientific means amounts to confession or not.
• The consent of the subject before conducting such tests holds an important position.
• Evidentiary value and constitutional validity of these tests are always questioned and even discussed in the court of law.

Introduction

Whenever any wrong is committed in a society towards any particular person or society at large, the law-and-order mechanism of the country take the cognizance of the matter and charge of punishing the wrong- doer and to deliver respite to the victim. A large number of authorities are indulged in the process of delivery of justice. Commencing from registering the FIR, investigation of the case, collecting evidences and witness relating to the wrong committed which is one of the most important stage in resolving any case and reaching to the actual guilty person, to arresting the accused then presenting him before the magistrate, trial in the court and eventually the acquittal or conviction of the accused, in all these stages of the trial of a case, collection of evidences, statement of witnesses plays a vital role in reaching at the conclusion. Sometimes, the statement of witnesses doesn’t suffice to provide the strong evidence for or against the alleged person, in those certain situations the statement of the accused himself becomes necessary to understand the chain of facts and circumstances that lead to the commitment of offence. On certain occasions, when the offence is committed there is no eye witness or evidence is found, in those cases the statement of the accused becomes incumbent to divert the investigation in the right direction. Confession of the accused made before specific persons holds a credible and important evidentiary value in the trial of the case. Yet, it is a difficult task to record confession of the accused as a person wouldn’t accept his crime on his own so in those situations’ confessions are recorded through scientific tools. These all-scientific methods are the fragments of forensic science. Forensic science always plays an important role in detection of the crime. As per Encarta World Dictionary, the word ‘forensic’ means crime solving relating to the application of science to decide questions arising from crime or litigation. In present era, forensic science has emerged to be an important branch of jurisprudence. The operation of forensic is nothing but application of techniques and tools of basic science for various analysis of evidence associated with crimes.¹ Polygraph tests, brain- mapping tests, narco- analysis are tools of the forensic science, though fruitful in the process of investigation but the other face of these revolutionary scientific tools is that they are often questioned on being violating the fundamental rights of the persons on whom such tests are performed.

Polygraph tests

Polygraph tests well known as ‘lie- detector test’ is common DDT (Deception Detection Test) in forensic science where the evidence by the way of several psychological processes is collected. Through this test, examiner whether the investigator or the forensic expert infers such a psychological state of the subject that it becomes easy to check whether the person is telling the truth or lying. Etymologically, the term Polygraph test refers to a process in which certain physiological actions are recorded. According to the Webster’s legal dictionary a Polygraph is a device for gauging certain involuntary bodily responses, such as blood pressure and perspiration, from which an opinion is drawn as to whether or not the person being tested is telling the truth.² Not a single Indian legislation gives the meaning or statutorily defines the term ‘polygraph’ but the United States Employees Polygraph Protection Act, 1988 defines the term ‘polygraph’ as an instrument that, (a) records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory, and electro dermal patterns as minimum instrumentation standards; and (b) is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.³ In addition to this US Federal Agencies referred polygraph as ‘Psychological Detection of Deception’ or PDD examination.

The origin of polygraph examination traced back to the late nineteenth century when a criminologist, Cesare Lombroso devised a machine that can measure the pulse and blood pressure to assess the honesty of the persons accused of a criminal conduct. His device was named hydrosphygmograph. In the similar fashion, a number of similar devices were used by different luminaries to gauge respiration rate, blood pressure, pulse rate, skin conductance. The main theory behind the use of such technique as a method of lie- detection is that when the person lies, his psychological behaviour varies than in the normal situations. So, while conducting the lie detection through the polygraph examination, if the subject while knowing the truth lies with regards to any question asked to him in between the examination, his psychological responses would fluctuate than the usual. It is the underlying principle that when a person lies, he becomes nervous which leads to the rise in blood pressure, heart beat perspiration, etc. All through the test certain instruments such as cardiographs, pneumographs, cardio-cuffs and sensitive electrodes are attached to the subject that gauges and records the numerous psychological responses while the subject answers the questions probed by the examiner. All the psychological responses then are analysed by the examiner examining the subject of the polygraph test be the accused, suspect, witness or in some cases the victim himself and then only the truthfulness or falsity of the subject is witnessed. The above stated test doesn’t directly articulate the truthfulness or falsity of the subject rather the examiner through his rational analysis infers the same through the alterations in the psychological responses of the subject. During the test, the subject may or may not answer the questions but his psychological reactions to the questions can analysed and inferred by the examiner.

Whenever a polygraph test is conducted with a person it takes place in certain phases. In initial phase of the test, the polygraph is not switched on and general introductory questions are asked and the basics and procedure of the test are made clear to the subject. Then in later phase the polygraph is switched on and a series of questions are asked from the subject which are relevant for which the test is conducted and basically a comparison is made with respect to the response of the person to non- incriminating and incriminating questions. There are generally three specific prominent polygraph examination techniques i.e., (a) the relevant- irrelevant technique, (b) the control question technique and (c) directed lie- control technique. All these techniques pre- test interviews yet the most common technique is control question technique in which some general questions not relevant for the investigation are asked and then the relevant questions are asked from the subject.⁴

Efficacy of the polygraph tests

Right from the inception of the use of this test for the lie detection it is subjected to debates and lot of questions on its credibility and accuracy. Some have argued that the results of the polygraph examinations are not accurate and can also be imperfect and defeated by countermeasures. As human emotions and psychological responses may vary from situation to situation and from person to person. It is in no matter necessary that if a particular being reacted towards a fact in a particular manner the other would also react in the same way it may be possible that the second person may react very strongly or give no reaction to the fact. For example, one of the results of the polygraph test is the measurement of anxiety of the subject while answering the questions, no one can certainly claim that whether the anxiety is caused due to dishonesty or from something else. So, the efficacy of test always remained a topic of debate among the experts. The National Academy of Sciences in 2003 in one of its report found that the majority of the polygraph research was ‘unreliable, unscientific and biased’, it concluded that the polygraph may have some utility but that is little basis for expectation that it could furnish highly accurate results.⁵

Brain- Mapping tests

Brain- mapping also known as P-300 waves test or the BEAP test (Brain Electrical Activation Profile test) or the ‘Brain Wave Finger Printing’. The test was developed by Dr. Lawrence A. Farwell in 1995. It is a process of detecting whether the person is acquainted with certain information or fact by gauging the activities and responses in brain that is activated by exposure to certain stimuli in the brain. Those stimuli are known as ‘target stimuli’. In this test the subject is first questioned, interviewed and interrogated to discover whether the person is concealing any information or not. The person questioned is made to wear a headband with sensors to record and gauge the electric brain responses. Certain images are then shown and sounds are made to hear to the subject, the sensors attached to him monitor the electrical activities happening in the brain and register P300 waves that generates only when there is any connection of the subject with the stimulus i.e., picture or the sound shown or heard. In this stage the subject with whom the test is performed is not asked any question and according to scientific equations the brain sends a MERMER (Multifaceted Electroencephalographic Response) brain wave when the brain has something familiar stored in it, that triggers a response. On the other hand, if the person’s brain wouldn’t be familiar with such stimulus his person could not emit the similar wave response as when the brain was familiar with the stimulus. Then the computer record and analyse the brain wave responses and determine whether the facts relating to the event are still stored in the brain of the subject for which the test is being conducted the responses and activation of the brain depends on its associated memory which is inferred by the examiner through presenting a list of words before the subject. These words are presented before the subject in parts where part I consist of neutral words which don’t have any direct relationship with the case, second category of words i.e., part II involves probe words which have direct connection with the case and the subject would have known about them if he was aware with the chain of events tatt lead to the commission of the offence and lastly part III words are presented before the subject that are target words which are based on confidential findings and the subject doesn’t know about

them.⁶ The subject is directed to relax (closed eyes) and listen to the words presented in the auditory mode. This test does not expect any oral response from the subject. The conclusion is drawn by the experts after the test has been conducted and the map is derived. The test indicates the possession of the knowledge about the relevant issue, which is helpful in the investigation and collection of evidence.⁷ By this brain- mapping test infers the subject’s familiarity with the information related to the offence (crime).

Basically, the test is the examination and gauging of the ‘event related potentials’ (ERP), these are those electrical wave forms that are emitted by the brain after it has absorbed any external event. Though, in the nineteenth century the electrical impulses emitted by brain were measured through the technology of electroencephalograph (EEG) and only after the development of the computers it became easy to sort the specific wave components on an EEG and to identify the correlation between the waves and specific stimuli. The P300 wave was discovered by Dr. Samuel Sutton in 1965.⁸

Evidentiary value of polygraph and brain- mapping tests

These scientific methods of lie detection as against the traditional methods of third-degree torture to know the truth from the suspect no doubt have proved to be an effective tool in the investigation especially in the criminal cases. But the primary question arises with regards to the evidentiary value of the results attained from these tests, whether the answers given by the suspect or witness can be taken on record while the trial of the case and admitted in the same way as the statements or confession given at the time of trial and the psychological and physiological inferences procured by the examiner of these tests can be admitted as the matter of evidence in the court or used as an aid in collecting evidences? Although, the explanation (a) of Section 53, 53A and 54 of the CrPC covers within its ambit the examination of these scientific tests.

In accordance with section 53 of CrPC, examination of an accused arrested for committing an offence can be done by a medical practitioner on the request of a sub inspector, and the explanation (a) of the section states the meaning of examination as the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case⁹, the provision basically talks about the examination of physiological aspects of the accused and psychological responses as inferred from the tests mentioned above are said to be covered within ‘such other tests as the medical practitioners thinks fit’, which is again a debateable question. The controversy was answered by the apex court in the landmark case of Selvi vs State of Karnataka, and observed that the expression ‘such other tests’ doesn’t explicitly include polygraph, brain- mapping tests and narco- analysis which are basically treated as testimonial acts and not physical evidences yet, the tests mentioned in section 53 are examples of the physical evidences so the above questioned expression is also concerned

with the physical evidences and the impugned tests are not included under this section by the legislature. Thus, these tests can’t be conducted involuntarily. That’s why neither the CrPC, evidence law nor the Constitution of India talks about the evidentiary value or admissibility of the polygraph, brain- mapping test or narco- analysis. The main reason for the question on their admissibility is that the results procured by these tests are not cent percent exact as based on the psychological responses which has the greater probability of varying from person to person and situation to situation. Also, they lack accuracy.  The other cause of the rejection of these tests as evidences is the lack of supporting and corroborating authority that can support the results of the test through their opinion.¹⁰

The second question arises as whether the answers and responses given by the accused during these tests can be inferred as the confession under the Indian Evidence Act, 1872. This question raises another question as to if the statements of these tests are considered as the confessions that is too recorded without the consent of the accused or whether it is against the right against self- incrimination that leads to testimonial compulsion. The confession and its admissibility are covered under section 24-27 of the evidence act, but nowhere the admissibility of evidences collected by these tests are discussed.

Not only in the criminal but civil cases also these tests are not admissible though the court can order medical examination by virtue of section 151, 75(e) and order 26, rule 10-A of CPC but in Selvi vs State of Karnataka, the court used the expression criminal cases or otherwise which bars the civil cases as well.

Right against self- incrimination vs the public interest

All the questions related to the evidentiary value, admissibility, continuance and constitutional validity of these scientific tests are dealt in the famous landmark case of Selvi vs State of Karnataka where the most important questions relating to these tests were raised i.e., whether the involuntary administration of the impugned techniques violates the ‘right against self- incrimination’ well settled by Article 20(3) of the Indian Constitution. Right against self- incrimination is the fundamental protection enumerated to the accused in India and its interrelation with the ‘right to fair trial’ and ‘substantive due process’ should be recognised as by other countries. Certain CrPC provisions such as section 39, 156(1) and 161(1) provide the laws where the police can investigate any person who can be acquainted with the facts of the case and the person have to co-operate in the process of investigation but those provisions can’t overrule the fundamental right of a person to not to give evidence and witness against himself as they are not bound to answer the questions asked by them in the course of the investigation. Otherwise, it would lead to incrimination. The purpose of the ‘rule against involuntary confession’ is to ensure that the testimony taken on record during trials is reliable and when the suspect or accused is compelled or without his consent made to go through these scientific tests it would increase the chances of false testimony.

Also, the compatibility between the section 27 of the Indian Evidence Act, 1872 and Article 20(3) is required to be examined to evaluate the evidentiary value of the independent materials that are discovered through these tests. The relationship between two was clarified

in Kathi Kalu Oghad case¹¹, section 27 states that when an information is given by the accused to the police without any compulsion or threat that led to the discovery of fact may or may not prove to incriminating is admissible in the court. When it is not incriminatory, no question arises but when it is self- incriminatory information it is to seen whether there is compulsion in furnishing such information or not, till there is no compulsion the information be it the self- incriminatory is admissible in the court and not against article 20(3). The next question raised in the case was whether the results consequent from the impugned techniques amount to ‘testimonial compulsion’ and thereby barring Article 20(3) of the Constitution. The results attained from the polygraph or BEAP tests are based on psychological responses which are testimonial in nature and are not the physical evidences.in M.P. Sharma case¹², the court observed what constitutes the ‘testimonial compulsion’ and held that the phrase ‘to be a witness’ used in article 20(3), infers that a person can ‘be a witness’ not only by giving oral evidences but also by producing documents or by making intelligible gestures same as in the case of dumb witness as stated 119 of the Evidence Act. To be a witness is not, more than ‘to furnish evidence’ and that evidence can be furnished through the lips or by production of a thing or by document or other modes. Then, in Kathi Kalu Oghad case¹³, the court examined that whether certain statutory provisions such as section 73 of evidence act, 5 and 6 of Identification of Prisoners Act, 1920 and section 27 of the evidence act were compatible with the Article 20(3). The court found that results obtained from these tests are treated as personal testimony thus come in the scope of testimonial compulsion and is barred by article 20(3). In Nandini Satpathy vs P.L. Dani¹⁴, the court observed what constitutes incrimination for the purpose of Article 20(3) and Krishna Iyer, J. observed that the relevant answers that furnish the clear link in chain of evidence indeed to bind the accused with crime become incriminatory and offend Article 20(3).

Also, these tests force the mental processes of a person which are also violative of personal liberty as enumerated u/a 21 of the Constitution as it is the right of the person whether to speak or to remain silent so when a person doesn’t want to speak about a particular event but compelled to do so through these scientific means which though not or less include verbal expressions but are inferred as the statement given by the subject is violative of personal liberty of that person. In addition to the Indian Constitutional provisions certain international conventions also contains provisions against the right against self- incrimination and such a cruel and inhuman treatment.  Article 7 and 14(3)(g) of the International Covenant on Civil and Political Rights (ICCPR), article 6(1) and 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and article 6 and 16 of the Convention against Torture and other Cruel, inhuman or Degrading Treatment or Punishment, 1984 talks about the protection of accused to be a witness against himself.¹⁵

NHRC Guidelines, 2000

NHRC in 2000 published guidelines for the administration of polygraph test on an accused which are necessarily to be complied with while conduction lie- detection tests i.e.,

1. No lie detector test should be administered without the consent of the subject/ accused. It is on the option of the accused whether to underwent such test or not.

1. If accused give consent, he should be given access to a lawyer and all the physical, emotional and legal implications should be made understand to the subject.
2. Consent should be recorded before the judicial magistrate.
3. During the hearing or recording before the magistrate the accused should be represented by the lawyer.
4. Person in question should be told at the time of hearing that the statement made is not ‘confessional’ before magistrate but has the status of statement made to police.
5. Magistrate shall consider the factors of detention including length of detection and nature of interrogation.
6. Recording of test shall be done by independent agency in presence of lawyer.
7. Full medical and factual narration of manner of information received must be taken on record.¹⁶

Cases where these tests were conducted

Polygraph test, brain- mapping test and narcoanalysis were conducted in many cases. Some of those infamous cases are Nithari’s serial killer case, Shivani Bhatnagar murder case, Aarushi Talwar murder case, Mumbai Serial killer case, etc. in all these cases scientific tests were conducted with the accused to infer the chain of events and the evidences. Recently, in Hathras rape and murder case polygraph test of all the accused, people on the victim side as well as of the police officer involved in the case was demanded. Also, in July last year the test of the driver and helper of truck that hit the Unnao rape victim in Uttar Pradesh and of one of the accused in PNB alleged fraud case, but the court rejected the plea as the accused refused to give their consent for the test.

Conclusion

Law is a dynamic concept and can’t remain static otherwise it will start hampering the development of the society. In the view of dynamism only, the scientific techniques were commenced to rule the investigation practices. But with development in the practices, it should not be forgotten that fundamental rights always stand on the higher pedestal and can’t be infringed investigating a case. The apex court very clearly ruled that these tests are against the fundamental rights of the subject of the test and should not be conducted involuntarily. Though with the consent of the subject and after complying with the NHRC guidelines the tests can be conducted but then also the outcomes of the test don’t have evidentiary value in the court as they are not admissible in the court for the conviction or acquittal of the accused. Yet the question arises as the consent of the accused holds greater importance then whether the accused would give his consent if he is guilty and if not then due to the inaccurate results of these tests whether an innocent person could develop trust in the results of the test. Though, giving consent or not for the test is not the test of the innocence or guilt but then also such questions would continue to be raise until the legislature wouldn’t come with the proper and clear picture of the admissibility and use of these scientific tests.