Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IX. Evidence in the preparatory and investigative stages
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9.5. Investigation II: the examining
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9.5.5. Evidentiary acts during examining III: instrumental testimony check

9.5.5. Evidentiary acts during examining III: instrumental testimony check

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The Criminal Code allows the prosecution or the investigating authority to examine the testimony of witnesses and suspects by means of an instrumental examination. As I have already mentioned in the section on prohibitions on evidence, the consent of the witness or suspect is required for the examination.1

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Since the technical conduct of the procedure and the determination of its outcome require special expertise, the law requires the use of an expert adviser in such cases, who may be heard as a witness on the procedure and its findings.2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Among the technical and methodological rules of this act of proof, it is necessary to set out the following:

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  1. There are several types of polygraph instruments. Typically, 4 to 6 channels3 are used in the investigation, with each channel corresponding to a single machine receptor. They measure various physiological characteristics, which are transmitted to a machine that plots the results graphically on a sheet of paper with a needle and a guide line. Since several characteristics are measured at the same time (respiration, blood pressure, perspiration), the machine has several pins, so that the results are recorded in parallel. It should be noted that the use of digital technology is now common practice, the data measured by the machine being displayed on a computer screen rather than on a sheet of paper, in a graphical display.4
  2. The preparatory phase of this act of proof involves a kind of information gathering. An important part of this is a pre-test interview, during which (1) the examiner determines whether the subject can be tested at all;5 (2) if so, informs the subject of the test procedure and any questions that will be asked; (3) the examiner places the individual measuring elements of the device on the subject.
  3. A basic condition for an effective test is a stimulus-free test room, i.e. the procedure should be conducted in such conditions that the atmosphere of the room (e.g. its furnishings, noise level) does not distract the subject even indirectly when giving answers. This requirement is also expressed by the practical rule that only the examiner and the examinee should be present in the room.
  4. The assessment is carried out by an expert adviser, but no further substantive restrictions or possible legal requirements (e.g. qualification requirements) have been laid down regarding the person of the adviser. Nevertheless, these persons should obviously have sufficient routine and psychological, sociological and criminological knowledge to ensure problem-free coordination of the procedures.6 They must also assess the mental capacity and emotional characteristics of the person under investigation and summarise the results of the investigation in such a way that only the information relevant to the facts under investigation and which is likely to facilitate the investigation is included.
  5. Test questions should be simple, to the point, and preferably in the form of questions to be answered (in the case of people with a low level of education or who are not well socialised, the use of terms known and used by the person being tested should often be considered).
 

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According to Fenyvesi, the polygraph examination is also an “informal confrontation”, since “the personal presence, the person, the emotional influence of the other (opposing) party, [the power of reproach] is missing […].”7 In my view, however, the mere presence of the person in authority is also capable of generating tension and serious stress in the person under investigation. In the course of the procedure, the person under investigation is therefore ‘confronted’ not only with the apparatus but also with the official who is in control of it, and the informality of the act of proof is therefore often questionable, because of the ‘hidden presumption of guilt’ that the situation gives rise to.

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The polygraph can only be used in the investigative phase,8 rather as a tool to assist in the overall investigation. It is also a basic rule that court decisions cannot be based solely on the reports of the instrumental testimony, so the evidence obtained from it can only be a complementary part of the evidence.

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The relevance and effectiveness of this evidentiary act is rather disputed in the literature. In fact, the results are much more reliable for perpetrators of violent offences involving high emotional tension, since the recollection of the offence and the fear of the level of the punishment that may be imposed can in itself induce a state of anxiety in the person under investigation.9 I would also note, however, that some authors have argued that polygraph examinations should not be treated as testimonies of the accused, since their probative value is very low.10 Overall, I believe that it

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  • is only relevant in the case of the accused, insofar as it can determine the direction of the investigation;
  • is not in itself sufficient to allow the investigating authority (court) to draw clear conclusions about the credibility of the person under investigation, nor is it a sufficient basis for even considering this;
    is completely inappropriate for the purpose of a “defence in evidence”, because if the result of the investigation supports the prosecution, it is usually explicitly referred to by the court in its decision, whereas if the testimony supports the defence, it is not taken into account as evidence (because it is not considered as such).
     
1 § 212 (1) para.
2 § 212 (2) para.
3 Through these channels, the following characteristics are recorded: (1) blood pressure and heart rate (blood pressure cuff on the upper arm) (2) changes in respiration, including chest expansion and the characteristics of the flow of inhaled and exhaled air using air-filled hoses attached to the chest (pneumograph) (3) variation of the electrical resistance of the skin using a galvanometer placed on the fingers (4) eye movements, especially in the case of a slide projection procedure (5) ECG with electrodes placed on the chest and limbs (6) blood flow through the limbs using a photodetector attached to the fingers (7) spontaneous muscle tension and motor tremor of the body using an electrical sensor placed on the limbs. In: Zsuzsanna Hársvölgyi: Practical challenges of polygraph testing. http://arsboni.hu/poligrafos-vizsgalat-gyakorlati-kihivasai/
4 Hársvölgyi ibid. http://arsboni.hu/poligrafos-vizsgalat-gyakorlati-kihivasai/
5 The test is excluded if, for example, the person being tested has a serious respiratory or circulatory disease (but not if the person is anxious, stressed or feels stressed). Hársvölgyi ibid. http://arsboni.hu/poligrafos-vizsgalat-gyakorlati-kihivasai/
6 “The investigator must inspire confidence and be empathetic, open and sympathetic.” Hársvölgyi ibid. http://arsboni.hu/poligrafos-vizsgalat-gyakorlati-kihivasai/
7 Fenyvesi: A szembesítés büntető eljárásjogi aspektusai. [Criminal procedural aspects of confrontation] ibid. 12.
8 This principle was also recently explained by the Supreme Court in its decision 4/2007 on the interpretation of certain provisions of the Criminal Code and the Code of Criminal Procedure. See also BH 2007/8. 577.
9 On the other hand, this “can also be a limitation of the investigation, as only in the case of a serious crime can the investigation provide a well-detectable and reliable result.” Hársvölgyi ibid. http://arsboni.hu/poligrafos-vizsgalat-gyakorlati-kihivasai/
10 Lőrinczy (1998) ibid. 218.
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