In response to a petition by the Judicial Reform Foundation and Taiwan Innocence Project, the Control Yuan on Jan. 11 last year issued a report ordering the Ministry of Justice to re-examine all polygraph tests conducted by former Criminal Investigation Bureau expert Lee Fu-kuo (李復國) to see if there were any flaws in terms of testing procedures and results interpretation. If key factual evidence of flaws were found, the ministry is to provide remedial measures to the wrongly convicted.
On Dec. 26, Control Yuan member Wang Mei-yu (王美玉) criticized the disorderly conduct of polygraph tests, calling it “a loss for human rights.”
Minister of Justice Chiu Tai-san (邱太三) replied that “anyone who finds potential procedural flaws in the polygraph tests presided over by Lee can file a request for re-examination with the Conviction Integrity Program established under the Taiwan High Prosecutors’ Office through bar associations or law societies.”
It is regrettable and shows a lack of sincerity that the authority overseeing the national testing agency would not launch a re-examination of flawed polygraph tests made by that agency, but instead asks the public to redress injustices themselves.
Forensic science techniques emphasize repeatability, which means that repeated examinations will give the same results every time. Cross-comparisons of DNA, fingerprints or blood type all meet this requirement.
Polygraph testing, on the other hand, uses equipment to measure physical changes in blood pressure, pulse, respiration and skin conductivity in a subject, who is stimulated by certain preset questions, as a way to evaluate the truthfulness of their answers.
The testing appears to be scientific at first glance, but it is difficult to control all the variables. For instance, a subject may pass a polygraph test if they remain calm, while an innocent person may be considered lying if they are too nervous. Polygraph testing continues to be challenged because the quality of the equipment, the expertise of the testing staff, the large room for interpretation of the tests and the low repeatability, meaning it is difficult to meet scientific standards.
It is therefore questionable to see polygraph testing becoming more frequent in Taiwan, as prosecutors and judges increasingly rely on these results as supporting evidence in criminal cases. While such tests are not clearly regulated in the Code of Criminal Procedure, the general practice is to treat the tests as one valid way of examination that can be requested by courts or prosecutors pursuant to Article 208 of the code, and that as long as the accused agrees to take a polygraph test and the test is conducted following certain procedures, the results can serve as evidence pursuant to a judgement by the Supreme Court in 2003.
However, given the flaws inherent in the examination process, collecting evidence through this means should be put under further assessment and consideration.
Taiwanese experts on the Code of Criminal Procedure have differing opinions on whether polygraph test results can serve as evidence. Judicial practices in Japan, the US and Germany also vary, so there is no consensus. The practical interpretation in Japan is similar to Taiwan’s, while the US Supreme Court rejects its use as evidence because the accuracy of polygraph tests is not reliable. As for Germany, polygraph testing is viewed as a breach of Article 1 (1) of the Basic Law, which states that “human dignity shall be inviolable and that to respect and protect it shall be the duty of all state authority.” Consequently, polygraph tests are not allowed in German criminal proceedings.
Because polygraph testing lacks repeatability, it cannot help reveal the truth. In addition, conducting a polygraph test infringes upon a person’s right to remain silent and violates the regulations regarding self-incrimination pursuant to Article 95 of the Code of Criminal Procedure, which is also a violation of Article 14.3 (g) of the International Covenant on Civil and Political Rights.
Polygraph tests are flawed even if the subject agrees to the test. To ensure justice and safeguard human rights, it should be clearly stated in the Code of Criminal Procedure that using polygraph tests as the basis for prosecution by a court at any level is prohibited.
However, polygraph testing could be allowed during the investigation phase for the purpose of clarifying the case on the condition that the accused agrees to be tested and the examination is conducted in accordance with standard operating procedures. The results should then only be used as reference for the direction of the investigation and in the search for evidence. Moderate use of polygraph testing as a means to help investigation is acceptable.
Su Yiu-chen is a lawyer. Lee James Chun-i is a professor at National Taiwan University’s Graduate Institute of Forensic Medicine.
Translated by Chang Ho-ming
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